I. Background

The Wool Products Labeling Act of 1939 (“Wool Act”), 15 U.S.C. 68-68j, requires marketers to attach a label to each wool product disclosing: (1) The percentages by weight of the wool, recycled wool, and other fibers accounting for 5% or more of the product, and the aggregate of all other fibers; (2) the maximum percentage of the total weight of the wool product of any nonfibrous matter; (3) the name under which the manufacturer or other responsible company does business or, in lieu thereof, the registered identification number (“RN number”) of such company; and (4) the name of the country where the wool product was processed or manufactured.1 The Wool Act also contains advertising and record-keeping provisions.

Additionally, the Wool Act authorizes the Commission to “make rules and regulations for the manner and form of disclosing information required by this subchapter * * * and to make such further rules and regulations under and in pursuance of the terms of this subchapter as may be necessary and proper for administration and enforcement.”2 Pursuant to this provision, the Commission promulgated the Wool Rules.3

The Commission completed its last comprehensive review of the Rules in 1998, and modified the Rules twice in 1998 and again in 2000. Specifically, as a result of the 1998 review,4 the Commission, among other things, streamlined the labeling requirements and incorporated the definition of “trimmings” set forth in § 303.12 of the Rules and Regulations Under the Textile Fiber Products Identification Act (“Textile Rules”).5 Later in 1998, the Commission amended the Rules to update Commission addresses.6 In 2000, it amended the Rules to clarify that the Commission will assign only one RN number to a qualified applicant and to clarify the country-of-origin disclosure requirements.7 At that time the Commission also amended certain provisions of the Textile Rules that the Wool Rules incorporate. In particular, the Commission revised the RN number application process set forth in the Textile Rules and amended the Textile Rules to reference an updated version of International Organization for Standardization ISO 2076: 1999(E), “Textiles—Man-Made Fibres—Generic Names,” the standard currently set forth in § 303.7 of the Textile Rules.8

In 2006, Congress amended the Wool Act by passing the Wool Suit Fabric Labeling Fairness and International Standards Conforming Act (“Conforming Act”).9 This legislation declared that specified wool products manufactured on or after January 1, 2007, including cashmere, are misbranded if the average diameter of their fibers does not meet certain standards. The Commission seeks comment on how it should modify the Wool Rules to implement the Conforming Act.

The Conforming Act sets the maximum average diameter for 18 different “Super” designations of wool products by average fiber diameter. For example, a wool product is misbranded if it is identified as “Super 80's” or “80's” unless the average diameter of the wool fibers in the product is 19.75 microns or finer.10 The Conforming Act also authorizes the Commission to adopt additional standards or deviations for these wool products.11

We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted without change tohttp://www.regulations.govand will include any personal information you have provided.

If you submit a comment, please include the docket number for this rulemaking (USCG-2011-0551), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online (viahttp://www.regulations.gov) or by fax, mail, or hand delivery, but please use only one of these means. If you submit a comment online viawww.regulations.gov,it will be considered received by the Coast Guard when you successfully transmit the comment. If you fax, hand deliver, or mail your comment, it will be considered as having been received by the Coast Guard when it is received at the Docket Management Facility. We recommend that you include your name and a mailing address, an email address, or a telephone number in the body of your document so that we can contact you if we have questions regarding your submission.

To submit your comment online, go tohttp://www.regulations.gov,click on the “submit a comment” box, which will then become highlighted in blue. In the “Document Type” drop down menu select “Proposed Rule” and insert “USCG-2011-0551” in the “Keyword” box. Click “Search” then click on the balloon shape in the “Actions” column. If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 81/2by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period and may change the rule based on your comments.

To view comments, as well as documents mentioned in this preamble as being available in the docket, go tohttp://www.regulations.gov,click on the “read comments” box, which will then become highlighted in blue. In the “Keyword” box type “USCG-2011-0551” and click “Search.” Click the “Open Docket Folder” in the “Actions” column. You may also visit the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. We have an agreement with the Department of Transportation to use the Docket Management Facility.

Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act notice regarding our public dockets in the January 17, 2008, issue of theFederal Register(73 FR 3316).

We will hold three public meetings on this proposed rule on March 6, 7, and 8, 2012. All meetings will be held from 6 p.m. to 8 p.m. in the following locations. The meetings may end earlier if all concerns are heard prior to 8 p.m.

March 6, 2012: Presidio Log Cabin, 1299 Storey Ave., San Francisco, CA 94129;

March 7, 2012: Inn Marin, 250 Entrada Dr., Novato, CA 94949;

March 8, 2012: Waterfront Hotel, 10 Washington St., Oakland, CA 94607.

For information on services and facilities, or if you have any questions, contact Lieutenant Junior Grade DeCarol A. Davis at (415) 399-7436, or e-mailD11-PF-MarineEvents@uscg.mil. A written summary of each meeting will be placed in the docket.

Under 33 CFR 100.35, the Coast Guard District Commander has authority to promulgate certain special local regulations deemed necessary to ensure the safety of life on the navigable waters immediately before, during, and immediately after an approved regatta or marine parade. The Commander of Coast Guard District 11 has delegated to the Captain of the Port (COTP) San Francisco the responsibility of issuing such regulations. The COTP also has the authority to establish safety zones under 33 CFR 1.05-1(e) and 165.5.

As discussed below, the America's Cup Race Management has applied for a Marine Event Permit to hold the 34th America's Cup races on the waters of San Francisco Bay in California. The Coast Guard has not approved the Marine Event Permit and is still evaluating the application. If the permit is approved, however, we anticipate that a special local regulation may be necessary to ensure public safety during the races. To provide adequate time for public input, we are proposing this special local regulation and safety zone prior to a decision on the Marine Event Permit. If the Marine Event Permit is not approved, we will withdraw this proposed rule.

On December 31, 2010, the America's Cup Organizing Committee selected the City of San Francisco as the event sponsor to host the 34th America's Cup sailing events taking place in 2012 and 2013. Mayor Gavin Newsom and the San Francisco Board of Supervisors approved a 34th America's Cup Host and Venue Agreement with the America's Cup Event Authority and America's Cup Organizing Committee.

In 2012, the City of San Francisco plans to host two America's Cup World Series regattas as part of a circuit of sailing events being conducted at other U.S. and international venues. The San Francisco World Series regattas are scheduled to occur August 11-19, 2012, and August 25-September 2, 2012. Each World Series regatta consists of fleet and match races and determines a regatta winner, but the outcomes do not affect the Louis Vuitton Cup or the America's Cup Finals Match in 2013.

In August 2013, the City of San Francisco plans to host the Louis Vuitton Cup challenger selection series to determine the contestant to race the Defender of the 34th America's Cup. During the challenger selection series, teams will compete in a series of fleet and match races to determine the Louis Vuitton Cup winner, and that winning team will compete against the America's Cup Defender in the 34th America's Cup Finals Match, a best of nine match races, currently planned for September 7-24, 2013, and expected to draw the most spectator activity.

The 2012 World Series regattas feature 45-foot winged-sail catamarans (AC45) which have attained speeds in excess of 30 knots. In 2013, the Louis Vuitton Cup and America's Cup Finals match will feature larger 72-foot catamarans (AC72), each crewed by a team of 11 competitors. The AC72 is predicted to attain speeds in excess of 40 knots. The America's Cup Event Authority has selected venues for each regatta around the world to showcaseracing close to spectators ashore and via broadcast media. In San Francisco, they propose to take advantage of the natural amphitheater that the Central Bay and City waterfront provides.

Prior to drafting this Notice of Proposed Rulemaking, the Coast Guard solicited input from maritime users and stakeholders to better understand the nature of commercial and recreational activities on the Bay and how the proposed America's Cup sailing regattas could impact such activities. The Coast Guard used the local Harbor Safety Committee (HSC) and hosted various public meetings to obtain information and gather feedback on notional solutions.

The Coast Guard attends all San Francisco HSC meetings, providing a monthly status report on safety conditions in the Bay and addressing questions for maritime users at large. Since July 2011, the Coast Guard has reserved a place on the HSC agenda to discuss America's Cup planning and has fielded questions and concerns regarding the proposed marine event. Issues brought forward by the HSC include the following: (1) Concern regarding communication to the public (i.e., how the public will be notified when race-related regulations are in effect); (2) concern about the Coast Guard's ability and capacity to enforce event regulations over the time period proposed; (3) concern about the economic impact to commercial entities on the Bay; and (4) concern about San Francisco Bay weather patterns that could quickly change and affect safety.

In addition to gathering comments and concerns from the HSC, the Coast Guard held public meetings to gather information related to activities on the Bay that might be affected by the America's Cup events or related safety regulations. In these public meetings, the Coast Guard met with the following maritime users: The deep-draft commercial vessel operators and facility operators; tug and barge operators; ferry vessel operators; charter fishing vessel operators; small passenger vessel operators; and recreational vessel operators and other maritime stakeholders.

During the public meetings, the Coast Guard emphasized the following key objectives in implementing a special local regulation and permitting the event: (1) Maintaining a safe and accessible waterway; (2) maintaining smooth flow of maritime commerce; (3) mitigating environmental impacts; and (4) continuing USCG operations.

Typical comments received during public meetings included: (1) Enforcing navigational Rules of the Road; (2) allowing for necessary commercial access in and out of any regulated area; (3) ensuring the safety of spectators; (4) encouraging Coast Guard communication with the public; (5) minimizing the impact to commercial shipping traffic due to potential closure of the Eastbound and Westbound Traffic Lanes; and (6) addressing crowding and congestion due to on-water spectator activity. A record of these meetings is available in the docket, and the Coast Guard considered the public input received at these meetings when developing this proposed rule. The Coast Guard plans to continue consulting maritime users as part of a broad effort to determine and mitigate impacts throughout the America's Cup operational planning process.

The Coast Guard proposes to create two temporary sections in the Code of Federal Regulations, one for the 2012 events and one for the 2013 events.

The Coast Guard proposes to establish a special local regulation associated with the America's Cup World Series regattas in 2012. The areas regulated by this special local regulation would be east of the Golden Gate Bridge, south of Alcatraz Island, west of Treasure Island, and in the vicinity of the City of San Francisco waterfront. The Coast Guard does not propose to regulate movement within marinas, pier spaces, and facilities along the City of San Francisco waterfront. The Coast Guard proposes to establish a primary regulated area, which includes an area reserved for recreational swimmers, rowers, and kayakers; and a contingent regulated area used only during exceptional circumstances subject to COTP determination. Images of the primary and contingent regulated areas are available in the docket. In this special local regulation, the Coast Guard also intends to regulate vessel traffic in the Central Bay to maintain commercial access to the ports.

All proposed restrictions would apply between noon and 5 p.m. on designated race days, but normal operations could resume earlier than 5 p.m. at the discretion of the COTP. Designated race days would occur between August 11 and September 2, 2012. Not every day during that period would be a race day. The Coast Guard anticipates issuing notice of 12 race dates via Broadcast Notice to Mariners and publishing these race dates in the Local Notice to Mariners and theFederal Register.

The Coast Guard proposes to define a primary regulated area that surrounds the primary race area. The Coast Guard intends to define a regulated area larger than the proposed race area to accommodate changing weather conditions that may alter the exact orientation of racecourses shortly before each racing day and to help the public understand the maximum size of the regulated area of water during race periods. On most race days, the Coast Guard anticipates that some portion of the regulated area will not be restricted. America's Cup support vessels bearing prominently displayed banners will mark the race area on each race day to indicate areas restricted from non-participating vessels.

During prevailing westerly wind conditions, the regulated area for 2012 would be an area of approximately 2 square miles bounded by a line beginning at position 37°48′39″ N, 122°25′27″ W at the Municipal Pier at Aquatic Park, running north to position 37°49′14″ N, 122°25′27″ W located south of Alcatraz Island, running west to position 37°49′14″ N, 122°28′07″ W, running southwest to position 37°49′02″ N, 122°28′21″ W, running south to position 37°48′32″ N, 122°28′21″ W (NAD 83), running eastward along the City of San Francisco shoreline and ending at the Municipal Pier. As discussed in the above paragraph, the Coast Guard anticipates that the actual race area would be smaller than the primary regulated area bounded by these coordinates. The size of the regulated area is intended to accommodate the size and speed of the America's Cup racing vessels, while still allowing the flow of maritime commerce through the central Bay.

The Coast Guard also proposes a contingent race area to be used in the unlikely event that north-south wind conditions make the primary race area unusable for racing. This area will be located east of Alcatraz Island and northwest of Treasure Island within a contingent regulated area bounded by a line connecting the following coordinates: 37°50′56″ N, 122°24′37″ W; 37°51′24″ N, 122°23′39″ 37°51′23″ N, 122°22′58″ W; 37°50′07″ N, 122°22′05″ W; 37°49′54″ N, 122°22′43″ W; 37°49′35″ N, 122°22′46″ W; 37°48′51″ N, 122°22′20″ W; 37°48′52″ N, 122°23′56″ W; 37°49′02″ N, 122°24′43″ W; 37°49′48″ N, 122°24′47″ W; and 37°50′55″ N, 122°24′37″ W (NAD 83).

The Coast Guard understands that the proposed contingent regulated area extends into navigation channels east of Alcatraz Island and northwest of Treasure Island. In the unlikely event racing is planned in the contingent regulated area, it will only be conducted with COTP approval. If the COTP deemsthat racing would interfere with the commercial shipping traffic requiring transit through the contingent regulated area, then the race will be delayed, shortened, or terminated to accommodate commercial shipping schedules.

The proposed rule would prohibit unauthorized vessels from entering the race area in use between noon and 5 p.m. on designated race days. This prohibition is necessary for public and participant safety because of the speed of the racing vessels. The Coast Guard understands, however, that other vessels may need to transit through these areas in order to continue operations. For example, we are aware that dredges may need to access the Alcatraz disposal site and that commercial ferries and fishing vessels will need to access the City of San Francisco waterfront; therefore, this proposed rule provides for entry into the race area after requesting and receiving Coast Guard permission.

The proposed rule intends to create a designated area for recreational swimmers, rowers, and kayakers located near the shoreline between Fort Point and Anita Rock. The expected number of vessels in the Bay and potential for crowding is such that the Coast Guard intends to create a designated space for these activities. During designated race periods, this area would be closed to motorized vessels and all other vessels greater than 20 feet. All vessels are prohibited from anchoring in this designated area. Restricting motorized and larger vessels from this area would help reduce environmental impact to the Crissy field shoreline, ensure access and safety for swimmers, rowers, and kayakers, and reduce potential viewing obstruction for spectators ashore.

This proposed rule would also prohibit anchoring and loitering along the San Francisco waterfront area east of the protected swimming and boating area, and extending to the Municipal Pier at Aquatic Park. Because the proposed race area for 2012 will be close to the waterfront, this restriction is necessary to protect public safety and prevent potential spectator vessel congestion south of the race area.

Because of the location of the America's Cup race areas and anticipated spectator activity on race days, this proposed rule would close the Eastbound and Westbound San Francisco Bay Traffic Lanes to vessels greater than or equal to 100 gross tons during designated race periods. Vessels less than 100 gross tons are not barred from the traffic lanes, so long as they stay out of the race area. The Coast Guard understands that commercial vessels greater than or equal to 100 gross tons may need to transit through the closed traffic lanes to conduct operations that would not interfere with the America's Cup sailing events; therefore, this proposed rule provides for entry into the closed traffic lanes with COTP permission.

Shipping traffic may continue to operate using the existing Deep Water (two-way) Traffic Lane. The Regulated Navigation Area (RNA) specified in 33 CFR 165.1181 would continue to apply in this area. This RNA contains one-way provisions for certain vessels such as those greater than 1,600 gross tons carrying dangerous cargos. At the COTP's discretion, vessels in addition to those listed in the RNA could be restricted to one-way traffic as coordinated by Sector San Francisco's Vessel Traffic Service (VTS). Such a one-way traffic scheme could allow more maneuvering space for transiting vessels and may reduce navigational obstacles.

The Coast Guard retains the discretion to delay, shorten, or terminate any America's Cup race, if necessary to ensure safety. Failure to comply with the lawful directions of the Coast Guard could result in additional vessel movement restrictions, citation, or both.

For reasons similar to those described above, the Coast Guard proposes to establish a special local regulation associated with the Louis Vuitton Cup challenger selection series and the America's Cup Finals Match occurring in 2013. Similar to the special local regulation for the 2012 America's Cup World Series, the primary regulated area would be east of the Golden Gate Bridge, south of Alcatraz Island, west of Treasure Island, and in the vicinity of the City of San Francisco waterfront. Images of the regulated areas for 2013 are available in the docket.

As with the 2012 proposed rule, all proposed restrictions would apply between noon and 5 p.m. on designated race days, which would occur between July 4 and September 24, 2013. Not every calendar day during that period would be a race day. The Coast Guard anticipates issuing notice of 45 race dates via Broadcast Notice to Mariners and publishing these race dates in the Local Notice to Mariners and theFederal Register. As competition continues, the number of races planned each day in 2013 will decrease as competitors are eliminated during the Louis Vuitton Cup challenger series. America's Cup Race Management proposes conducting only one match per race day from August 23, 2013 through the America's Cup Finals conclusion on September 24, 2013.

The primary regulated area proposed for 2013 is larger than 2012's because of the larger size of the AC72 racing vessels. The 2013 proposed rule would implement the same provisions as described for the 2012 special local regulation for establishing a primary regulated area, which will include an area reserved for recreational swimmers, rowers, kayakers; and a contingent regulated area. As in 2012, the Coast Guard also intends to regulate vessel traffic in the Central Bay to maintain commercial access to the ports. In addition to those provisions discussed in the 2012 special local regulation, the Coast Guard proposes to establish a transit zone along the San Francisco waterfront and restrict the use of Anchorage 7.

During prevailing westerly wind conditions, the 2013 race area would be located inside of a primary regulated area approximately 4.5 square miles large bounded by a line beginning at position 37°48′12″ N, 122°24′04″ W located on the foot of Pier 23, running northeast to position 37°48′41″ N, 122°23′16″ W, running northwest to position 37°49′41″ N, 122°24′30″ W located east of Alcatraz Island, running west to position 37°49′41″ N, 122°27′35″ W, running southwest to position 37°49′02″ N, 122°28′21″ W, running south to position 37°48′32″ N, 122°28′21″ W, and running eastward along the City of San Francisco shoreline ending at position 37°48′12″ N, 122°24′04″ W located on the foot of Pier 23.

As in 2012, the Coast Guard anticipates that the actual 2013 race area would be smaller than the regulated bounded by the coordinates above. America's Cup support vessels bearing prominently displayed banners will mark the race area on each race day to indicate areas restricted from non-participating vessels.

While evaluating the primary regulated area proposed for 2012 and its possible impact to commercial operators, the Coast Guard considered including a dedicated transit zone for 2012 similar to the one proposed for 2013. The Coast Guard believes that a transit zone for 2012 would be unnecessary because the regulated area's size and location, which are similar to that of the regulated area for San Francisco Fleet Week, adequately allow vessel operators to transit around the regulated area. Conversely, the regulated area for 2013 is more than twice as large as the regulated area for 2012, and the Coast Guard anticipates that the Louis Vuitton Cup and theAmerica's Cup Finals in 2013 will draw more spectator activity than the regattas in 2012. Due to the size of the regulated area in 2013, it may be less feasible for commercial operators to safely transit around this regulated area as expected in 2012. For this reason, this rule proposes to establish a transit zone along the City of San Francisco waterfront and a no-loitering area similar to the one proposed for 2012.

The transit zone is intended to facilitate the safe transit of vessels needing access to pier space and facilities along the City of San Francisco waterfront and to minimize other traffic that may obstruct the waterfront. Vessels would not be permitted to loiter or block the transit area. At the COTP's discretion, vessel movement in this zone could be restricted to one-way traffic coordinated by the Patrol Commander. The eastern entrances of the transit zone may be temporarily closed as races finish.

This proposed rule would also restrict vessels from anchoring in Anchorage No. 7 without permission from the COTP during designated race periods in 2013. Keeping this area clear would increase maneuvering room for transiting vessels during peak spectator activity and provide an emergency anchorage in response to a marine casualty.

The Coast Guard retains the discretion to delay, shorten, or terminate any America's Cup race, if necessary. Failure to comply with the lawful directions of the Coast Guard could result in additional vessel movement restrictions, citation, or both.

The Coast Guard proposes to establish a temporary safety zone requiring persons and vessels to remain 100 yards from America's Cup racing vessels. This temporary safety zone would be in place between noon and 5 p.m. on race days and would not be in effect while the racing vessels are practicing outside of designated race periods. Only on rare occasions do we anticipate America's Cup racing vessels competing outside of the race area, and we anticipate that this safety zone will be necessary for public safety during such exceptional circumstances. An example of an exceptional circumstance would be using the safety zone to provide additional safeguards during Opening Day Ceremonies when America's Cup Race Management proposes to conduct a race leg under the Golden Gate Bridge.

We also have proposed this temporary safety zone in part to reduce the size of the footprint of the primary regulated areas. The provisions of this temporary safety zone would not apply to anchored vessels, nor would it exempt racing vessels from any Federal, state or local laws or regulations, including Rules of the Road regulations.

We developed this proposed rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.

Executive Orders 12866, Regulatory Planning and Review, and 13563, Improving Regulation and Regulatory Review, direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This proposed rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order.

The entities most likely to be affected by this proposed rule would be commercial shipping traffic, ferry vessels, fishing vessels, and pleasure craft engaged in recreational activities. Although this rule proposes to restrict navigation on San Francisco Bay, these restrictions would only be in place in a small area for a limited time on specific dates. We also expect this event to be well publicized so that waterway users would be able to plan their activities in advance to take into account any restrictions.

The proposed rule would not exceed a five-hour period between noon and 5 p.m. on certain dates. On many race days, the affected period will be shorter. The entities affected would be permitted to navigate around the restricted area during these periods, and the proposed rule would create a traffic scheme for doing so. The proposed rule would not prevent commercial operators from conducting operations during the America's Cup sailing events. Shipping traffic may operate around the regulated area using the Deep Water (two-way) Traffic Lane. The San Francisco VTS will help facilitate the safe and efficient use of the waterways.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities. We find that the proposed rule would have some effect on small entities, but would not have a significant economic impact on a substantial number of the entities. This proposed rule would affect the following entities, some of which might be small entities: (i) the owners or operators of commercial vessels intending to transit, operate, or anchor in a portion of the San Francisco Bay; and (ii) owners and operators of recreational vessels using the regulated portion of San Francisco Bay.

Although this proposed rule would affect these small entities, this rule would not have a significant economic impact on a substantial number of small entities for several reasons: (i) This rule will restrict only a small portion of the waterway for a limited period of time; (ii) vessel traffic could pass safely around the area; (iii) vessel traffic may pass through the area with COTP approval; (iv) recreational vessel operators may use spaces outside of the affected areas; (v) the maritime public would be advised in advance of this regulated area via Broadcast Notice to Mariners; and (vi) at times of high traffic density anticipated in 2013, there will be a transit zone implemented to facilitate navigation. These measures have been implemented during similar marine events such as Fleet Week and have been successful.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (seeADDRESSES) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact Lieutenant Junior Grade DeCarol A. Davis at (415) 399-7436, or emailD11-PF-MarineEvents@uscg.mil.The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this proposed rule under that Order and have determined that it does not have implications for federalism.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

This proposed rule would not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.

This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

We have analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.

This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

Pursuant to the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and the Department of Homeland Security Management Directive 023-01 and Coast Guard Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the NEPA, the Coast Guard is working cooperatively with other affected Federal Agencies to evaluate potential environmental effects associated with the special local regulation, marine event permit, and safety zones for the proposed 34th America's Cup. The Coast Guard will not publish a final rule until the NEPA review has been completed.

We are publishing this proposed rule now to encourage maximum public input on the safety provisions proposed and seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

The NEPA analysis will be available during the NPRM public review period and additional information on the NEPA analysis, along with the dates of the NEPA public review period, can be found atwww.americascupnepa.org.Comments specific to the NEPA analysis or the marine event permit should be directed to the contact listed atwww.americascupnepa.org.

For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR parts 100 and 165 as follows:

Requests to testify should indicate the following: (1) The name of the person wishing to testify; (2) the person's contact information (telephone number and email address); (3) the organization(s)the person represents, if any; and (4) an indication of the amount of time needed for the testimony. Requests to testify must be submitted by email to Jennifer Lo atJennifer.Lo@uspto.gov.Based upon the requests received, an agenda for witness testimony will be sent to testifying requesters and posted on the USPTO Internet Web site (address:www.uspto.gov/americainventsact). If time permits, the PPAC may permit unscheduled testimony as well.

Effective September 16, 2011, with the passage of the AIA, the USPTO is authorized under Section 10 of the AIA to set or adjust by rule all patent and trademark fees established, authorized, or charged under Title 35 of the United States Code and the Trademark Act of 1946, respectively. Patent and trademark fees set or adjusted by rule under Section 10 of the AIA may only recover the aggregate estimated costs to the Office for processing, activities, services, and materials relating to patents and trademarks, respectively, including administrative costs of the Office with respect to each as the case may be.

Congress set forth the process for the USPTO to follow in setting or adjusting patent and trademark fees by rule under Section 10 of the AIA. Congress requires the relevant advisory committee to hold a public hearing about the USPTO fee proposals after receiving them from the agency. Congress likewise requires the relevant advisory committee to prepare a written report on the proposed fees and the USPTO to consider the relevant advisory committee's report before finally setting or adjusting the fees. Further, Congress requires the USPTO to publish its proposed fees and supporting rationale in theFederal Registerand give the public not less than 45 days in which to submit comments on the proposed change in fees. Finally, Congress requires the USPTO to publish its final rule setting or adjusting fees also in theFederal Register.

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EPA is proposing to approve Kentucky's SIP revision, submitted through the DAQ to EPA on December 3, 2008, for the purpose of demonstrating attainment of the 1997 Annual PM2.5NAAQS for the Kentucky portion of the Huntington-Ashland Area. Kentucky's PM2.5attainment plan includes an analysis of RACM/RACT, an RFP plan, base-year and attainment-year emissions inventories for the Area, contingency measures, and an insignificance determination for mobile PM2.5and NOx emissions for transportation conformity purposes.

EPA has determined that Kentucky's PM2.5attainment plan for the 1997 Annual PM2.5NAAQS for its portion of the Huntington-Ashland Area meets applicable requirements of the CAA and the PM2.5Implementation Rule. EPA is proposing to approve Kentucky's attainment plan for the Commonwealth's portion of the Huntington-Ashland Area, including the insignificance determination for PM2.5and NOXfor the mobile source contribution to ambient PM2.5levels for the Commonwealth's portion of the Huntington-Ashland Area. EPA's analysis for this proposed action is discussed in Section IV of this proposed rulemaking.

On July 18, 1997 (62 FR 36852), EPA established the 1997 PM2.5NAAQS as an annual standard of 15.0 micrograms per cubic meter (µg/m3), based on a 3-year average of annual mean PM2.5concentrations, and a 24-hour (or daily) standard of 65 µg/m3, based on a 3-year average of the 98th percentile of 24-hour concentrations. EPA established the NAAQS based on significant evidence and numerous health studies demonstrating that serious health effects are associated with exposures to PM2.5.

Following promulgation of a new or revised NAAQS, EPA is required by the CAA to designate areas throughout the United States as attaining or not attaining the NAAQS; this designation process is described in section 107(d)(1) of the CAA. EPA and state air quality agencies initiated the monitoring process for the 1997 PM2.5NAAQS in 1999 and established a complete set of air quality monitors by January 2001. On January 5, 2005, EPA promulgated initial air quality designations for the 1997 PM2.5NAAQS (70 FR 944), which became effective on April 5, 2005, based on air quality monitoring data for calendar years 2001-2003.

On April 14, 2005, EPA promulgated a supplemental rule amending the Agency's initial designations (70 FR 19844) but retaining the original effective date of April 5, 2005. As a result of that supplemental rule, PM2.5nonattainment designations are in effect for 39 areas, comprising 208 counties within 20 states (and the District of Columbia) nationwide, with a combined population of about 88 million. The Kentucky portion of the tri-state WV-KY-OH Huntington-Ashland Area, which is the subject of this proposed rulemaking, is included in the list of areas designated nonattainment for the 1997 PM2.5NAAQS. As mentioned above, the Kentucky portion of the Huntington-Ashland Area consists of Boyd County in its entirety and a portion of Lawrence County, Kentucky.

On October 17, 2006, EPA strengthened the 24-hour PM2.5NAAQS to 35 µg/m3and retained the level of the Annual PM2.5NAAQS at 15.0 µg/m3. See71 FR 61144. On November 13, 2009, EPA designated areas as either attainment/unclassifiable, unclassifiable or nonattainment with respect to the revised 24-Hour PM2.5NAAQS.See74 FR 58688. Of relevance to the proposed rulemaking herein, EPA's November 2009 designation action clarified the designations for the 1997 PM2.5NAAQS by relabeling the existing designation tables to specifically identify designations made for the 1997 Annual PM2.5NAAQS and those made for the 1997 24-hour PM2.5NAAQS (i.e., 65 µg/m3).

As noted above, on April 25, 2007, EPA issued the PM2.5Implementation Rule for the 1997 PM2.5NAAQS (72 FR 20586). This rule describes the CAA framework and requirements for developing SIPs to achieve attainment in areas designated nonattainment for the 1997 PM2.5NAAQS. Such attainment plans must include a demonstration that a nonattainment area will meet the applicable NAAQS within the timeframe provided in the statute. This demonstration must include modeling that is performed in accordance with 40 CFR 51.112 (Demonstration of adequacy) and Appendix W to part 51 (Guideline on Air Quality Models) and that is consistent with EPA modeling guidance.See40 CFR 51.1007. The modeling demonstration should include supporting technical analyses and descriptions of all relevant adopted Federal, state, and local regulations and control measures that have been adopted in order to provide for attainment of the 1997 PM2.5NAAQS by the proposed attainment date.

For the 1997 PM2.5NAAQS, an attainment demonstration must show that a nonattainment area will attain the standards as expeditiously as practicable, but within five years of designation (i.e., by an attainment date of no later than April 5, 2010, based on air quality data for 2007 through 2009). If the area is not expected to meet the NAAQS by April 5, 2010, a state may request to extend the attainment date by one to five years based upon the severity of the nonattainment problem or the feasibility of implementing control measures in the specific area. CAA section 172(a)(2). For EPA to approve an extension of the attainment date beyond 2010, the state must provide an analysis that is consistent with the statutory criteria for an extension and that demonstrates that the attainment date is as expeditious as practicable for the area, given the existing facts and circumstances.

For each nonattainment area, the state (or each state of a multi-state area) must demonstrate that it has adopted all RACM, including all RACT, as needed to provide for attainment of the PM2.5NAAQS in the area “as expeditiously as practicable.” The PM2.5Implementation Rule provides guidance for making these RACM/RACT determinations.Seediscussion in section IV.A.4. below. Any measures that are necessary to meet these requirements that are not already federally promulgated or in an EPA-approved part of the SIP must be submitted as part of a state's attainment plan. Any state measures in the control strategy must meet the applicable statutory and regulatory requirements, and, in particular, must be enforceable.

The PM2.5Implementation Rule also includes guidance on pollutants that states must address in their attainment plans. Section 302(g) of the CAA authorizes EPA to regulate criteria pollutants and their precursors. The main chemical precursors associated with fine particle formation are SO2, NOX, volatile organic compounds (VOCs), and ammonia. The effect of reducing emissions of precursor pollutants that contribute to PM2.5concentrations varies by area, however, depending upon local PM2.5composition, emission levels, and other area-specific factors. For this reason, the PM2.5Implementation Rule recommends that states control the direct PM2.5emissions and the precursor emissions that would be most effective for attaining the NAAQS within the specific area, based upon an appropriate technical demonstration.

The PM2.5Implementation Rule defines direct PM2.5emissions as “solid particles emitted directly from an air emissions source or activity, or gaseous emissions or liquid droplets from an air emissions source or activity which condense to form particulate matter at ambient temperatures. Direct PM2.5emissions include elemental carbon, directly emitted organic carbon, directly emitted sulfate, directly emitted nitrate, and other inorganic particles (including but not limited to crustal material, metals, and sea salt).” 40 CFR 51.1000.

The PM2.5Implementation Rule requires states to identify and evaluate sources of PM2.5direct emissions and PM2.5attainment plan precursors. 40 CFR 51.1002(c). The rule requires states to address SO2as a PM2.5attainment plan precursor and to evaluate SO2for possible control measures in all PM2.5nonattainment areas. States are also required to address and evaluate reasonable controls for NOXas a PM2.5attainment plan precursor unless the state and EPA make a finding that NOXemissions from sources in the state do not significantly contribute to PM2.5concentrations in the relevant nonattainment area.

Although current scientific information shows that certain VOC emissions are precursors to the formation of secondary organic aerosol, and significant progress has been made in understanding the role of gaseous organic material in the formation of organic PM, this relationship remains complex. Further research and technical tools are needed to better characterize emissions inventories for specific VOCs and to determine the extent of the contribution of specific VOCs to organic PM mass. Because of these factors, the PM2.5Implementation Rule does not require states to address or evaluate controls for VOCs as PM2.5attainment plan precursors unless the state or EPA makes a finding that VOC emissions from sources in the state significantly contribute to PM2.5concentrations in the relevant nonattainment area.

The PM2.5Implementation Rule describes the formation of particles related to ammonia emissions, which is a complex, nonlinear process. Though recent studies have improved our understanding of the role of ammonia in aerosol formation, further research is needed to better describe the relationship between ammonia emissions and particulate matter concentrations and the related impacts. Also, area-specific data is needed to evaluate the effectiveness of reducing ammonia emissions in reducing PM2.5concentrations in different areas and to determine where ammonia decreases may increase the acidity of particles and precipitation. For these reasons, the PM2.5Implementation Rule does not require states to address or evaluate controls for ammonia as PM2.5attainment plan precursors unless the state or EPA makes a finding that ammonia emissions from sources in the state significantly contribute to PM2.5concentrations in the relevant nonattainment area.

The presumptive inclusion of NOXand the presumptive exclusion of VOCs and ammonia as attainment plan precursors can be reversed based on an acceptable technical demonstration for a particular nonattainment area by the state or EPA. The state must demonstrate that, based on the sum of available technical and scientific information, it would be appropriate for a nonattainment area to reverse the presumptive approach for a particular precursor. Such a demonstration should include information from multiplesources, such as results of speciation data analyses, air-quality modeling studies, chemical-tracer studies, emissions inventories, or special intensive measurement studies to evaluate specific atmospheric chemistry in an area.SeePM2.5Implementation Rule, 72 FR 20596.

The PM2.5Implementation Rule also provides guidance for the other elements of a state's attainment plan, including, but not limited to, emissions inventories, contingency measures, and motor-vehicle emissions budgets used for transportation conformity purposes. There are, however, three aspects of the preamble to the PM2.5Implementation Rule for which EPA received petitions requesting reconsideration. The specific guidance elements identified by petitioners pertain to the presumption or advance determination that compliance with the requirements of the Clean Air Interstate Rule (CAIR) automatically satisfies the requirements for RACT or RACM for NOXor SO2emissions from electric generating unit (EGU) sources participating in regional cap and trade programs (SeePM2.5Implementation Rule, section II.F.7.); the suggestion that the economic feasibility element of a RACT determination should include consideration of whether the cost of a measure is reasonable in light of the benefits (SeePM2.5Implementation Rule, section II.F.5.); and the policy of allowing certain emissions reductions from outside the nonattainment area to be credited as meeting the RFP requirement (SeePM2.5Implementation Rule, section II.G.5.). EPA has granted these petitions and intends to propose rulemaking to change these aspects of the PM2.5Implementation Rule. However, EPA's evaluation of the attainment plan for the Huntington-Ashland Area is not impacted by its reconsideration of any of these aspects of the PM2.5Implementation Rule because the plan does not rely upon them.

On September 7, 2011, EPA determined that the Huntington-Ashland Area had attaining data for the 1997 Annual PM2.5NAAQS. 76 FR 55542. That determination was based on quality-assured, quality controlled and certified ambient air monitoring data that shows the area met the 1997 Annual PM2.5NAAQS. Furthermore, in accordance with CAA 179(c), EPA determined in the same notice that the Huntington-Ashland Area attained the 1997 Annual PM2.5NAAQS by its applicable attainment date of April 5, 2010. This information is mentioned here in support of EPA's determination that Kentucky's attainment plan was sufficient to bring the Huntington-Ashland Area into attainment no later than the required attainment date of April 5, 2010.

Kentucky's PM2.5attainment plan submittal covers the Kentucky portion of the Huntington-Ashland Annual PM2.5nonattainment area, which is the only portion for which the Commonwealth has jurisdiction. Today's action regards only the Kentucky portion of the Huntington-Ashland Area. However, the modeling analysis provided with Kentucky's attainment plan documentation includes modeling results for the entire tri-state Area and the results of Ohio and West Virginia's demonstrations for their portions of the Area, for which the conclusions of attainment are consistent with that of Kentucky's.

In accordance with section 172(c) of the CAA and the PM2.5Implementation Rule, the attainment plan submitted by the DAQ for the Kentucky portion of the Huntington-Ashland Area includes (1) emissions inventories for the plan's base year (2002) and attainment year (2009); (2) an attainment demonstration; and (3) an insignificance finding for the mobile source contribution of PM2.5and NOX. The attainment demonstration includes: (a) technical analyses that locate, identify, and quantify sources of emissions contributing to violations of the 1997 Annual PM2.5NAAQS; (b) analyses of future-year emissions reductions and air quality improvements expected to result from national and local programs; adopted emission reduction measures with schedules for implementation; and contingency measures required under section 172(c)(9) of the CAA.See72 FR 20605.

To analyze future-year emission reductions and air quality improvements, Kentucky used regional modeling analyses developed through the Association for Southeastern Integrated Planning (ASIP). The ASIP was a collaborative modeling and technical analysis effort among the states of Kentucky, Alabama, Florida, Georgia, Mississippi, North Carolina, South Carolina, Tennessee, Virginia and West Virginia to develop a regional assessment of the controls needed to achieve attainment of the 1997 PM2.5NAAQS and the 2006 8-hour ozone NAAQS. This regional modeling was performed in accordance with EPA's “Guidance on the Use of Models and Other Analyses for Demonstrating Attainment of Air Quality Goals for Ozone, PM2.5, and Regional Haze” (EPA-454/B-07-002, April 2007) (hereafter referred to as “EPA's Modeling Guidance”).

Consistent with CAA requirements (see, e.g.,section 172), and 40 CFR 51.1007, an attainment demonstration for a PM2.5nonattainment area must include a showing that the area will attain the annual and 24-hour standards as expeditiously as practicable. The demonstration must also meet the requirements of 40 CFR 51.112 and Part 51, Appendix W, and include inventory data, modeling results, and emissions reduction analyses on which the state has based its projected attainment. In the case of the Huntington-Ashland Area, the Area has already attained the standard. Thus, EPA is now proposing to determine that the attainment demonstration submitted by the Commonwealth was sufficient, and EPA is taking action to approve individual components that are necessary for the continued attainment and maintenance of the Area.

As discussed in section II.B. above, the PM2.5Implementation Rule requires states to identify and evaluate sources of PM2.5direct emissions and PM2.5attainment plan precursors. The rule provides that SO2is a PM2.5attainment plan precursor in all areas. The rule also sets forth the rebuttable presumptions that NOXis a PM2.5attainment plan precursor in all areas and that ammonia and VOCs are not PM2.5attainment plan precursors. Neither Kentucky nor the EPA has found reason to reverse these presumptions for the Huntington-Ashland Area. Accordingly, Kentucky's PM2.5attainment plan evaluates emissions of direct PM2.5, SO2, and NOXin the Kentucky portion of the Huntington-Ashland Area.

States are required under section 172(c)(3) of the CAA to develop comprehensive, accurate and current emissions inventories of all sources of the relevant pollutant or pollutants in the area. These inventories provide a detailed accounting of all emissions and emissions sources by precursor or pollutant. In addition, inventories are used in air quality modeling to demonstrate that attainment of the 1997 PM2.5NAAQS is as expeditious aspracticable and, if an attainment date extension beyond 2010 is needed, to support the need for such an extension. Emissions inventory guidance was provided in the April 1999 document, “Emissions Inventory Guidance for Implementation of Ozone and Particulate Matter NAAQS and Regional Haze Regulations,” (EPA-454/R-99-006), which was updated in November 2005 (EPA-454/R-05-001) (hereafter referred to as “EPA's Emissions Inventory Guidance”). Emissions reporting requirements were provided in the 2002 Consolidated Emissions Reporting Rule (CERR) (67 FR 39602). On December 17, 2008 (73 FR 76539), EPA promulgated the Air Emissions Reporting Requirements (AERR) to update emissions reporting requirements in the CERR and to harmonize, consolidate and simplify data reporting by states.

In accordance with the CERR and EPA's Emissions Inventory Guidance, the PM2.5Implementation Rule requires states to submit inventory information on directly emitted PM2.5and PM2.5precursors and any additional inventory information needed to support an attainment demonstration and (where applicable) an RFP plan.

PM2.5is comprised of filterable and condensable emissions. Condensable particulate matter (CPM) can comprise a significant percentage of direct PM2.5emissions from certain sources and are required to be included in national emissions inventories based on emission factors. Test Methods 201A and 202 are available for source-specific measurement of condensable emissions. However, the PM2.5Implementation Rule notes that there were issues raised by commenters related to availability and implementation of these test methods as well as uncertainties in existing data for condensable PM2.5. EPA established a transition period during which EPA could assess possible revisions to available test methods and to allow time for states to update emissions inventories as needed to address direct PM2.5, including condensable emissions. Because of the time required for this assessment, EPA recognized that states would be limited in how to effectively address CPM emissions and established a period of transition, up to January 1, 2011, during which state submissions for PM2.5were not required to address CPM emissions. Amendments to these test methods were proposed on March 25, 2009 (74 FR 12969), and finalized on December 21, 2010 (75 FR 80118). The amendments to Method 201A added a particle-sizing device for PM2.5sampling, and the amendments to Method 202 revised the sample collection and recovery procedures of the method to reduce the formation of reaction artifacts that could lead to inaccurate measurements of CPM emissions.

The period of transition for establishing emissions limits for condensable direct PM2.5ended on January 1, 2011. PM2.5submissions made during the transition period are not required to address CPM emissions, however, states must address the control of direct PM2.5emissions, including condensable emissions, with any new action taken after January 1, 2011. Kentucky submitted the Huntington-Ashland Area attainment plan prior to January 1, 2011, and did not consider CPM in addressing the control of PM2.5emissions.

In July 2008, EarthJustice filed a petition requesting reconsideration of EPA's transition period for CPM emissions provided in the PM2.5Implementation Rule. In January 2009, EPA decided to allow states that have not previously addressed CPM to continue to exclude CPM for PSD permitting during the transition period. Today's action reflects a review of Kentucky's submittal based on current EPA guidance as described in the PM2.5Implementation Rule.

The 172(c)(3) emissions inventory is developed by the incorporation of data from multiple sources. States were required to develop and submit to EPA a triennial emissions inventory according to the CERR for all source categories (i.e.,point, area, nonroad mobile and on-road mobile). This inventory often forms the basis of data that are updated with more recent information and data that also is used in their attainment demonstration modeling inventory. Such was the case in the development of the 2002 emissions inventory that was submitted in the Commonwealth's attainment SIP for this Area. The 2002 emissions inventory was based on data developed with Visibility Improvement State and Tribal Association of the Southeast (VISTAS) contractors for the same ten states of the ASIP effort and submitted by the states to the 2002 National Emissions Inventory. Several iterations of the 2002 inventories were developed for the different emissions source categories resulting from revisions and updates to the data. This resulted in the use of version G2 of the updated data to represent the point sources' emissions. Data from many databases, studies and models (e.g.,vehicle miles traveled, fuel programs, the NONROAD 2002 model data for commercial marine vessels, locomotives and Clean Air Market Division, etc.) resulted in the inventory submitted in this SIP. The data were developed according to EPA's Emissions Inventory Guidance and a quality assurance project plan that was developed through VISTAS and approved by EPA. EPA agrees that the process used to develop this inventory was adequate to meet the requirements of the CAA,e.g.,CAA section 172(c)(3), and the implementing regulations.

Tables 1-5 below show the level of emissions in the Kentucky portion of the Huntington-Ashland Area for 2002 by pollutant, county, and emissions source category. The point, area, and nonroad values for Lawrence County in the December 8, 2008, submittal were for the entire county, not just the census block that EPA designated as nonattainment. On May 26, 2011, at the request of EPA, the Commonwealth submitted updated tables to include information on point source emissions from the designated census block and population based apportionment of the area and nonroad sectors to support the mobile source insignificance finding discussed further in Section IV.B. below. A copy of the May 26, 2011, clarification letter and updated tables can be found in the docket for this proposed action (EPA-R02-OAR-2010-0255) on thewww.regulations.govWeb site. EPA is proposing to approve the emissions inventory for the Kentucky portion of the Huntington-Ashland Area as meeting the requirements of Section 172(c)(3) of the CAA.

EPA has reviewed Kentucky's emissions inventory and finds that it is adequate for the purposes of meeting section 172(c)(3) emissions inventory requirement. The emissions inventory is approvable because the emissions weredeveloped consistent with the CAA, implementing regulations and EPA guidance for emissions inventories. Additional emissions inventory information, including summary tables for the Ohio and West Virginia portions of the Huntington-Ashland Area, are included in Appendix E of Kentucky's attainment SIP and are located in the docket for this proposed action (EPA-R02-OAR-2010-0255) on thewww.regulations.govWeb site.

The PM2.5attainment demonstrations must include modeling that should be developed in accordance with EPA's Modeling Guidance. A brief description of the modeling used to support Kentucky's attainment demonstration follows. More detailed information can be found in Kentucky's December 3, 2010, SIP revision in the docket for this proposed action (EPA-R02-OAR-2010-0255) on thewww.regulations.govWeb site.

Ambient PM2.5typically includes both primary (directly emitted) PM2.5and secondary PM2.5(e.g., sulfates and nitrates formed by chemical reactions in the atmosphere). Some of the physicochemical processes leading to the formation of secondary PM2.5may take hours or days, as may some of the removal processes. Thus, some sources of secondary PM2.5may be sources outside of the nonattainment area. To model a sufficient geographic area to take these processes into account, Kentucky' regional modeling domain covered an area slightly greater than the geographical area of the VISTAS/ASIP states in this attainment demonstration.

Kentucky, through the ASIP and VISTAS, conducted an analysis of the major contributing components of PM2.5in the Kentucky portion of the Huntington-Ashland Area. Specifically, organic carbon (OC) and sulfuric acid (SO4) account for the largest contributions. The majority of OC can be attributed to biogenic emissions and SO4to emissions of SO2. SO2emissions are primarily associated with the point source sector, accounting for approximately 98 percent of the SO2emission in the Huntington-Ashland Area. Emissions sensitivity modeling for the Huntington-Ashland Area indicated that SO2emissions reductions from EGUs in Kentucky, Tennessee, and West Virginia would have the greatest benefits for the Area. The VISTAS modeling also projects limited benefits to total PM2.5emissions from reductions of NOX. The modeling performed by VISTAS showed that reductions of primary carbon from the mobile sector were more effective than reductions of either VOCs or NOXfrom mobile sources. EPA agrees with Kentucky's assertion that controlling SO2from point sources is the most effective means of addressing attainment of the 1997 Annual PM2.5NAAQS in the Huntington-Ashland Area.

The ASIP performed modeling for ozone and PM2.5for the 10 collaborating southeastern states, including Kentucky. The modeling analysis is a complex technical evaluation that began with selection of the modeling system. The ASIP and/or VISTAS used the following modeling system:

•Meteorological Model:The Pennsylvania State University/National Center for Atmospheric Research Mesoscale Meteorological Model is a nonhydrostatic, prognostic meteorological model routinely used for urban- and regional-scale photochemical, ozone, PM2.5,and regional haze regulatory modeling studies.

•Emissions Model:The Sparse Matrix Operator Kernel Emissions modeling system is an emissions modeling system that generates hourly gridded speciated emission inputs of mobile, non-road mobile, area, point, fire and biogenic emission sources for photochemical grid models.

•Air Quality Model:The EPA's Models-3/Community Multiscale Air Quality (CMAQ) modeling system is a photochemical grid model capable of addressing ozone, PM, visibility and acid deposition at a regional scale. The photochemical model selected for this study was CMAQ version 4.5. It was modified through VISTAS with a module for Secondary Organics Aerosols in an open and transparent manner that was also subjected to outside peer review.

CMAQ modeling of regional haze in the VISTAS region for 2002 and 2009 was carried out on a grid of 12 × 12 kilometer cells that covers the ten VISTAS states and states adjacent to them. This grid is nested within a larger national CMAQ modeling grid of 36 × 36 kilometer grid cells that covers the continental United States, portions of Canada and Mexico, and portions of the Atlantic and Pacific Oceans along the east and west coasts. Selection of a representative period of meteorology is crucial for evaluating baseline air quality conditions and projecting future changes in air quality due to changes in emissions of visibility-impairing pollutants. VISTAS conducted an in-depth analysis which resulted in the selection of the entire calendar year of 2002 as the best period of meteorology available for conducting the CMAQ modeling. As noted above, the VISTAS and ASIP states modeling was developed consistent with EPA's Emissions Inventory Guidance and EPA's Modeling Guidance.

VISTAS examined the model performance of the regional modeling for the areas of interest before determining whether the CMAQ model results were suitable for use in the assessment of an attainment of the PM2.5NAAQS and for use in the modeling assessment. The modeling assessment predicts future levels of emissions and visibility impairment used to support the 2009 PM2.5control strategy. In keeping with the objective of the CMAQ modeling platform, the air quality model performance was evaluated using graphical and statistical assessments based on measured ozone, fine particles, and acid deposition from various monitoring networks and databases for the 2002 base year. A diverse set of statistical parameters from the EPA's Modeling Guidance was used to stress and examine the model and modeling inputs. Once the model performance of the 2002 base year was determined to be acceptable, the EPA model attainment test was used to assess whether attainment of the PM2.5NAAQS would be achieved in 2009. The DAQ provided the appropriate supporting documentation for all required analyses used to determine Kentucky's control strategy. The technical analyses and modeling used to assess attainment in 2009 for the Area is consistent with the CAA, EPA's PM2.5Implementation Rule and EPA's Modeling Guidance. EPA accepts the VISTAS and ASIP technical modeling to support the attainment SIP for the Area because the modeling system was chosen and simulated according to EPA's Modeling Guidance. For purposes of the Huntington-Ashland attainment demonstration, EPA agrees with the VISTAS model performance procedures and results, and that the CMAQ is an appropriate tool for the assessment of PM2.5for the Kentucky attainment demonstration for this Area. Additional details on the ASIP and VISTAS modeling is included in the Kentucky SIP.

The modeling results were used in a relative sense in concert with observed PM2.5air quality data (i.e., taking the ratio of future to present model predicted air quality and multiplying it times an “ambient design value”). The ambient design value is an average of the three current design values (i.e., 2001, 2002, and 2003) that straddle the modeling base year (i.e., 2002). EPArecommends using the average of the three design value periods which include the baseline inventory year. This average design value best represents the baseline concentrations, while taking into account the variability of meteorology and emissions (over a five-year period). This EPA attainment test approach should reduce some of the uncertainty involved with using absolute model predictions alone. Using the model in a relative sense also reduces the effects of uneven model performance and possible major biases in predicting absolute concentrations of one or more components. The ratio of future to present model predicted air quality resulted in relative reduction factors (RRF). The multiplication of the RRF by an ambient design value from the base year (i.e., 2002) provided estimates of future design values to determine if monitors and areas with monitors in the nonattainment area will comply with the annual PM2.5NAAQS.

EPA provided guidance to states and tribes for projecting PM2.5concentrations using a “speciated modeled attainment test” (SMAT) (EPA-454/B-07-002, April 2007). Once modeling for a projection year and a base year are complete, RRFs are computed for each component of PM2.5in the modeling domain. Modeling by Kentucky to assess attainment in the entire Huntington-Ashland Area used the following components of PM2.5: SO4, NO3, directly emitted organic particles, and directly emitted inorganic particles. Ammonia is treated as part of SO4and NO3molecules, and water is assumed to be present at a constant mass in both the base year and projection year. For each monitoring location, the RRF for a component is computed as the ratio of the projection year divided by the base year modeled concentration for a three-by-three array of modeled grid cells centered on the monitoring location.

Projection year component concentrations are estimated by multiplying the RRFs times a monitoring based base year component concentration, determined by applying measured speciation data to the monitored total PM2.5design concentration. The sum of these estimated projection year component concentrations is the estimated projection year PM2.5concentration. If future estimates of PM2.5concentrations are less than the 1997 PM2.5NAAQS, then the modeling indicates attainment of the standard.

PM2.5includes a mixture of components that can behave independently from one another (e.g., primary vs. secondary particles) or that are related to one another in a complex way (e.g., different secondary particles). Thus, it is appropriate to consider the predicted future concentration of PM2.5to be the sum of the predicted component concentrations.See72 FR 20608. As recommended in EPA's Modeling Guidance, Kentucky divided PM2.5into its major components and noted the future effects of already implemented strategies on each. The effect on PM2.5was estimated as a sum of the effects on individual components. Future PM2.5design values at specified monitoring sites were estimated by adding the future-year values of seven PM2.5components. All future site-specific PM2.5design values were below the concentration specified in the NAAQS; therefore, the Huntington-Ashland Area passed the SMAT evaluation.

EPA has also developed a software package called Modeled Attainment Test Software (MATS) which will spatially interpolate data, adjust the spatial fields based on model output gradients and multiply the fields by model calculated RRFs. EPA recommended that the Commonwealth provide MATS attainment test values for 2009 since the tool became available soon after Kentucky had drafted its attainment demonstration. The 2009 MATS values for the entire Huntington-Ashland Area also indicate attainment of the annual PM2.5NAAQS in 2009. Table 7 illustrates the current (2002 DVC) and future (2009 DVF) annual design values for 2009 for the monitors in the nonattainment area.

Kentucky provided supplemental analysis to further support results from the modeled attainment tests. As a first step, Kentucky noted that the modeled attainment tests supported a conclusion that the proposed strategy will meet the air quality goals by the attainment year. As noted in section 7 of EPA's Modeling Guidance, corroboratory analyses should be used to help assess whether a simulated control strategy is sufficient to meet the NAAQS. One of the metrics identified in the guidance is the calculations of the percent change in the number of grid cells greater than or equal to 15.0 µg/m3in the nonattainment area. For Kentucky's analysis, cell counts of modeling data were tallied for both the 2002 baseline and 2009 attainment year modeling runs for a subset of the highest days from the base year and which coincide with the 29 days used in the model performance evaluation and modeling results discussed previously. The analysis indicates a 10 percent increase in the number of cells representing days with concentrations below 15.0 μg/m3.

Kentucky conducted an additional unmonitored area analysis to ensure that a control strategy leads to reductions in PM2.5at other locations which could have baseline (and future) design values exceeding the NAAQS were a monitor deployed there. Consistent with EPA's Modeling Guidance, the ASIP determined the 2002 current year and 2009 projected PM2.5design values in the Huntington-Ashland Area using the 2002 typical and 2009 BaseG4 CMAQ 12 km modeling results. Appendix L of the Commonwealth's submittal contains maps which illustrate that the MATS projections for the unmonitored areas in Kentucky and the entire Huntington-Ashland Area will be below the PM2.5NAAQS by 2009.

Kentucky's PM2.5attainment demonstration submittal covers only the portion of the Huntington-Ashland Area for which Commonwealth has jurisdiction (Boyd County and a portion of Lawrence County). However, the modeling results for the West Virginia and Ohio portions of the Area reach conclusions of attainment which areconsistent with that of Kentucky. The technical analyses and modeling to assess attainment of the entire nonattainment Area were developed consistent with EPA's Modeling Guidance. The modeling system was chosen and simulated to develop a model performance evaluation of the nonattainment area to provide the necessary assurances and results that an assessment of future controls for attainment is merited. Application of the EPA modeled attainment test and the MATS indicated future design values that are less than 15.0 μg/m3and consistent with attainment of the 1997 Annual PM2.5NAAQS. The additional analyses based on other regional modeling studies, including EPA and the Midwest RPO, support the modeling results developed by the ASIP and Kentucky. Finally, the area's status as having attained the standard further supports the modeling results.

As noted in section II.C. above, on September 7, 2011, EPA determined that the Huntington-Ashland Area had attaining data for the 1997 Annual PM2.5NAAQS based upon data for the 3-year period 2007-2009, with a design value (i.e., the highest 3-year average of annual mean PM2.5concentrations) of 14.3 μg/m3. In that same notice EPA noted that the Area also had attaining data for the 3-year period 2008-2010, with a design value of 13.1 μg/m3. These data, which have been quality-assured, certified, and recorded in EPA's Air Quality System (AQS), are summarized in Tables 8 and 9 below. In addition, monitoring data thus far available, but not yet certified, in the AQS database for 2011 show that this Area continues to meet the 1997 Annual PM2.5NAAQS. The continuing decrease in PM2.5concentrations in the Area supports Kentucky's determination that current measures were sufficient to bring the Area into attainment by no later than the required attainment date of April 5, 2010.

CAA section 172(c)(1) requires that each attainment plan “provide for the implementation of all reasonably available control measures as expeditiously as practicable (including such reductions in emissions from the existing sources in the area as may be obtained through the adoption, at a minimum, of reasonably available control technology), and shall provide for attainment of the national primary ambient air quality standards.” EPA interprets RACM, including RACT, under section 172 as measures that a state finds are both reasonably available and contribute to attainment as expeditiously are practicable in the nonattainment area. 40 CFR 51.1010; 72 FR 20586, 20612.

States are required to evaluate RACM/RACT for direct PM2.5emissions and all of the area's attainment plan precursors. 40 CFR 51.1002(c); 72 FR 20586,20589-97. The state must address SO2as a PM2.5attainment plan precursor and evaluate sources of SO2emissions in the state for control measures. The state must address NOXas a PM2.5attainment plan precursor and evaluate sources of NOXemissions in the state for control measures, unless the state and EPA provide an appropriate technical demonstration for a specific area showing that NOXemissions from sources in the state do not significantly contribute to PM2.5concentrations in the nonattainment area. Also, because EPA concluded that VOCs and ammonia are presumptively not regulatory precursors for PM2.5, the state is not required to evaluate RACM/RACT for sources of VOCs or ammonia unless there is a determination supported by an appropriate demonstration that such emissions need to be regulated for expeditious attainment of the NAAQS in the specific area.

For PM2.5attainment plans, the PM2.5Implementation Rule requires a combined approach to RACM and RACT under subpart 1 of Part D of the CAA (“Plan Requirements for Nonattainment Areas/Nonattainment Areas in General”). Subpart 1, unlike subparts 2 and 4, does not identify specific source categories for which EPA must issue control technique documents or guidelines and does not identify specific source categories for state and EPA evaluation during attainment plan development. 72 FR 20586, 20610.Rather, under subpart 1, EPA considers RACT to be part of an area's overall RACM obligation consistent with the section 172 definition. Because the variable nature of the PM2.5problem in different nonattainment areas may require states to develop attainment plans that address widely disparate circumstances, EPA determined not only that states should have flexibility with respect to RACM/RACT controls but also that in areas needing significant emission reductions, RACM/RACT controls on smaller sources may be necessary to reach attainment as expeditiously as practicable. 72 FR 20586, 20612 and 20615. Thus, under the PM2.5Implementation Rule, RACT and RACM are those reasonably available measures that contribute to attainment as expeditiously as practicable in the specific nonattainment area. 40 CFR 51.1010; 72 FR 20586, 20612.

The PM2.5Implementation Rule requires that attainment plans include the list of measures that a state considered and information sufficient to show that the state met all requirements for the determination of what constitutes RACM/RACT in a specific nonattainment area. 40 CFR 51.1010(a). In addition, the rule requires that the state, in determining whether a particular emissions reduction measure or set of measures must be adopted as RACM/RACT, consider the cumulative impact of implementing the available measures and to adopt as RACM/RACT any potential measures that are reasonably available considering technological and economic feasibility if, considered collectively, they would advance the attainment date by one year or more. If a measure or measures is not necessary for expeditious attainment of the NAAQS in the area, then by definition that measure is not RACM/RACT for purposes of the 1997 PM2.5NAAQS in that area. Any measures that are necessary to meet these requirements which are not already either federally promulgated, part of the state's SIP, or otherwise creditable in SIPs must be submitted in enforceable form as part of a state's attainment plan for the area. 72 FR 20586, 20614.

Guidance provided in the PM2.5Implementation Rule for evaluating RACM/RACT level controls for an area also indicates that there could be flexibility with respect to those areas that were predicted to attain the 1997 PM2.5NAAQS within five years of designation as a result of existing national or local measures. 72 FR 20586, 20612. In such circumstances, the state may conduct a more limited RACM/RACT analysis that does not involve additional air quality modeling. Moreover, the RACM/RACT analysis for such area would focus on a review of reasonably available measures, the estimation of potential emissions reductions, and the evaluation of the time needed to implement the measures. Thus, the PM2.5Implementation Rule guidance recommends that an analysis for those areas expected to attain within five years of designation as a nonattainment area for the 1997 PM2.5NAAQS may be a less rigorous than for areas expected to attain later.

A more comprehensive discussion of the RACM/RACT requirement for PM2.5attainment plans and EPA's guidance for it can be found in the preamble to the PM2.5Implementation Rule. 72 FR 20586, 20609-20633.

Kentucky's analysis, which appears in chapter 7 of the attainment plan submission, evaluates sources of PM2.5, SO2, and NOXlocated in the nonattainment area for potential control as RACM/RACT. The Commonwealth determined that controls of sources of VOCs or ammonia would not be necessary for expeditious attainment of the NAAQS in this area. EPA agrees that Kentucky's determination is supported by its analysis. The Commonwealth's determination with respect to which pollutants the plan should evaluate is discussed in chapter 1 of the submittal.

After evaluating which pollutants should be addressed in the attainment plan, the Commonwealth identified all source categories of those emissions located within the nonattainment area to determine available controls that could advance the attainment date by one year or more.SeeAppendix M of the attainment plan submittal. Based on the emissions inventory and other information, the Commonwealth identified several source categories as sources that should be evaluated for controls. Stationary source measure categories identified include stationary diesel engine retrofit, rebuild or replacements; new or upgraded emission control requirements for direct PM2.5emissions at stationary sources; improved capture of particulate emissions to increase the amount of PM2.5ducted to control devices; new or upgraded emission controls for PM2.5precursors at stationary sources; energy efficiency measures to reduce fuel consumption and associated pollutant emissions; and measures to reduce fugitive dust from industrial sites. Mobile source measure categories identified include on-road diesel engine retrofits for school buses, trucks and transit buses using EPA verified technologies; nonroad diesel engine retrofit, rebuild or replacement; diesel idling programs for trucks, locomotive, and other mobile sources; transportation control measures, including those listed in section 108(f) of the CAA and other transportation demand management and transportation systems management strategies; programs to reduce emissions or accelerate retirement of high emitting vehicles, boats, and lawn and garden equipment; emissions testing and repair/maintenance programs for on-road vehicles, nonroad heavy-duty vehicles and equipment; programs to expand use of clean burning fuels; low emissions specifications for equipment or fuel used for large construction contracts, industrial facilities, ship yards, airports, and public or private vehicle fleets; and opacity or other emissions standards for “gross-emitting” diesel equipment or vessels. Area source measure categories identified include new open burning regulations and/or measures to improve program effectiveness such as programs to reduce or eliminate burning of land clearing vegetation; programs to reduce emissions from woodstoves and fireplaces including outreach programs, curtailments during days with expected high ambient levels of PM2.5,and programs to encourage replacement of woodstoves when houses are sold; controls on emissions from charbroiling or other commercial cooking operations; and reduced solvent usage or solvent substitution.

In accordance with 40 CFR 51.1010, the attainment demonstration component for a PM2.5nonattainment area SIP is required to demonstrate that all RACM (including RACT for stationary sources) necessary to demonstrate attainment as expeditiously as practicable have been adopted. The cumulative impact of implementing available measures must be considered in determining whether a particular emission reduction measure or set of measures is required to be adopted as RACM. Potential measures that are reasonably available considering technical and economic feasibility must be adopted as RACM if, considered collectively, they would advance the attainment date by one year or more. Therefore, since Kentucky demonstrated attainment of the 1997 PM2.5NAAQS in the Kentucky portion of the Huntington-Ashland Area by the end of 2009, any RACM measures would have needed to be in effect at the beginning of 2008 to have had any potential to advance the attainment date by at least one year.

Through participation in regional planning efforts of the Southeast Regional Planning Organization, VISTAS and the ASIP, Kentucky has evaluated potential control measures to attain the fine particle. For the relevant source categories, the Commonwealth evaluated the potential control measures that would be considered reasonable for the Huntington-Ashland Area, in light of timing and other considerations consistent with EPA's guidance. DAQ determined that there were no additional measures that could be adopted by January 1, 2008. In addition, existing measures and measures planned for implementation by 2009 enabled the Huntington-Ashland Area to attain the 1997 PM2.5NAAQS. Therefore, no further actions on RACM or RACT are warranted.

In accordance with section 172 of the CAA, the Kentucky portion of the Huntington-Ashland Area has adopted all RACM, including RACT, needed to attain the standards “as expeditiously as practicable.” Kentucky's demonstration for attaining the 1997 PM2.5NAAQS in the Kentucky portion of the Huntington-Ashland Area is based on the following enforceable measures, as discussed in Chapter 5 of the plan: tier 2 vehicle standards; heavy-duty gasoline and diesel highway vehicle standards; large nonroad diesel engine standards; nonroad spark-ignition engines and recreational engines standards; combustion turbine MACTs; VOC 2-, 4-, 7-, and 10-year MACT standards; consent agreements; open burning bans; and fugitive emissions standards.

EPA is proposing to approve Kentucky's evaluation of RACM/RACT control measures for the Kentucky portion of the Huntington-Ashland Area. As noted in section C. above, EPA has already determined that the Huntington-Ashland Area has attaining data for the 1997 Annual PM2.5NAAQS and met the standard by its applicable attainment date of April 5, 2010. EPA's guidance for the PM2.5Implementation Rule recommends that if an area was predicted through the attainment plan to attain the standard within five years after designation, then the state could submit a more limited RACM/RACT analysis and the state could elect not to do additional modeling.

In light of the fact that the Kentucky portion of the Huntington-Ashland Area is now attaining the standards, EPA proposes to conclude that the attainment plan meets the RACM/RACT requirements of the PM2.5Implementation Rule and that the level of control in the Commonwealth's attainment plan constitutes RACM/RACT for purposes of the 1997 PM2.5NAAQS. Because the PM2.5Implementation Rule defines RACM/RACT as that level of control that is necessary to bring the area into attainment as expeditiously as practicable, the current level of Federally enforceable controls on sources located within the Area is by definition RACM/RACT for this Area for this purpose, given the Area's status as attaining the standard.

Section 172(c)(2) of the CAA and the PM2.5Implementation Rule require that attainment plans include a demonstration that reasonable further progress toward meeting air quality standards will be achieved through generally linear incremental improvement in air quality. For the 1997 PM2.5NAAQS, a state is required to submit a separate RFP plan for any area for which the state seeks an extension of the attainment date beyond 2010. The PM2.5Implementation Rule set forth that an area that demonstrates attainment within five years of the date of designation will be considered to have satisfied the RFP requirement and is not required to submit a separate RFP plan.See40 CFR 51.1009(b). The Kentucky attainment plan submittal meets the RFP requirements for the Huntington-Ashland Area by demonstrating that the Area attained the 1997 PM2.5NAAQS by the 2010 attainment date.

In accordance with section 172(c)(9) of the CAA, the PM2.5Implementation Rule requires that PM2.5attainment plans include contingency measures. 40 CFR 51.1012 and 72 FR at 20642-20646. (April 25, 2007). Contingency measures are additional measures to be implemented in the event that an area fails to meet RFP or fails to attain a standard by its attainment date. These measures must be fully adopted rules or control measures that can be implemented quickly and without additional EPA or state action if the area fails to meet RFP or fails to attain by its attainment date and should contain trigger mechanisms and an implementation schedule. In addition, they should be measures not already included in the SIP control strategy for attaining the standard and should provide for emission reductions equivalent to one year of RFP.

The Kentucky attainment plan describes the contingency measures for the Huntington-Ashland Area as being comprised of Federal measures that were already in place and that would take effect automatically, without further action by the Commonwealth or EPA, if the Area were to fail to attain the standard by its attainment date. As noted in section II.C. of this proposed rulemaking, EPA made a determination, based on complete, quality-assured, quality-controlled, and certified ambient air monitoring data for the 2007-2009 monitoring period, that the Huntington-Ashland Area attained the 1997 Annual PM2.5NAAQS by the applicable attainment date of April 5, 2010. Because EPA has determined, in accordance with CAA 179(c)(1), that the area attained by its required deadline, no contingency measures for failure to attain by this date need to be implemented. Furthermore, as set forth in the PM2.5Implementation Rule, areas that attained the NAAQS by the attainment date are considered to have satisfied the requirement to show RFP, and as such do not need to implement contingency measures to make further progress to attainment. Since EPA has determined that the Area has attained by the attainment date, the contingency measures submitted by Kentucky are no longer necessary for the Huntington-Ashland Area to meet RFP requirements or to attain the annual PM2.5NAAQS by the attainment date.

Kentucky provided a demonstration of attainment of the 1997 PM2.5NAAQS in the Huntington-Ashland Area by no later than five years after the Area was designated nonattainment. In accordance with the PM2.5Implementation Rule, areas such as this, demonstrating that they will attain the standard by April 5, 2010, attainment deadline, are considered to have satisfied the requirement to show RFP toward attainment and need not submit a separate RFP plan. For similar reasons, such areas are also not subject to a requirement for a mid-course review.

The CAA requires federal actions in nonattainment and maintenance areas to “conform to” the goals of SIPs.See, e.g.,CAA section 176. This means that such actions will not cause or contribute to violations of a NAAQS; worsen the severity of an existing violation; or delay timely attainment of any NAAQSor any interim milestone. Actions involving Federal Highway Administration (FHWA) or Federal Transit Administration (FTA) funding or approval are subject to the transportation conformity rule (40 CFR part 93, subpart A). Under this rule, metropolitan planning organizations (MPOs) in nonattainment and maintenance areas coordinate with state air quality and transportation agencies, EPA, and the FHWA and FTA to demonstrate that their metropolitan transportation plans and transportation improvement programs (TIP) conform to applicable SIPs. This is typically determined by showing that estimated emissions from existing and planned highway and transit systems are less than or equal to the motor vehicle emissions budgets contained in a SIP.

For motor vehicle emissions budgets to be approvable, they must meet, at a minimum, EPA's adequacy criteria found at 40 CFR 93.118(e)(4). In certain instances, the Transportation Conformity Rule allows areas to forgo establishment of a MVEB where it is demonstrated that the regional motor vehicle emissions for a particular pollutant or precursor are an insignificant contributor to the air quality problem in an area. The general criteria for insignificance determinations can be found in 40 CFR 93.109(m). Insignificance determinations are based on a number of factors, including the percentage of motor vehicle emissions in context of the total SIP inventory; the current state of air quality as determined by monitoring data for the relevant NAAQS; the absence of SIP motor vehicle control measures; and the historical trends and future projections of the growth of motor vehicle emissions. EPA's rationale for providing for insignificance determinations is described in the July 1, 2004, revision to the Transportation Conformity Rule at 69 FR 40004.5 Specifically, the rationale is explained on page 40061 under the subsection entitled “XXIII.B. Areas With Insignificant Motor Vehicle Emissions.” Any insignificance determination under review of EPA is subject to the adequacy and approval process for EPA's action on the SIP.

EPA made an insignificance finding through the transportation conformity adequacy process for NOXand directly emitted PM2.5for the Kentucky portion of the Huntington-Ashland PM2.5nonattainment area on June 18, 2010 (75 FR 34734). As a result of EPA's insignificance finding, the Kentucky portion of the Huntington-Ashland Area was no longer required to perform regional emissions analyses for either directly emitted PM2.5or NOXas part of future PM2.5conformity determinations for the 1997 Annual PM2.5NAAQS until such time that EPA reviewed and took action on the Huntington-Ashland Area's attainment plan (the subject of today's proposed action). EPA's June 18, 2010, insignificance finding for directly emitted PM2.5and NOXthrough the adequacy process (effective on July 6, 2010) only relates to the Kentucky portion of the tri-state Huntington-Ashland Area.6

When EPA makes an insignificance determination through the adequacy process for transportation conformity, EPA notes that an adequacy determination does not imply that an insignificance determination in the SIP (i.e., in this case the attainment plan) will ultimately be approved. Consistent with EPA's adequacy review of Kentucky's December 3, 2008, attainment plan and the Agency's subsequent thorough review of the entire SIP submission, EPA is proposing to approve Kentucky's insignificance determination for the mobile source contribution of NOXand PM2.5emissions to the overall PM2.5emissions in the Huntington-Ashland Area. As stated previously, the point, area, and nonroad values for Lawrence County in the December 8, 2008 submittal were for the entire county, not just the census block that U.S.EPA designated as nonattainment. The on-road mobile emissions were determined specifically for the designated portion of Lawrence County. On May 26, 2011, at the request of EPA, the Commonwealth submitted updated tables to include information on point source emissions from the designated census block and population based apportionment of the area and non-road sectors to support the mobile source insignificance finding.

EPA finds that Kentucky's SIP submittal meets the criteria in the transportation conformity rules for an insignificance finding for both NOXand PM2.5contribution from motor vehicles in the Kentucky portion of the Huntington-Ashland Area. That is, EPA finds that the SIP submittal demonstrates that, for NOXand PM2.5, regional motor vehicle emissions are an insignificant contributor to the annual PM2.5concentrations in the Kentucky portion of the Area. This finding is based on the following factors:

• Tables 8.2-3 and 8.2-5 of Kentucky's submittal, as revised on May 26, 2011, demonstrate that the on-road NOXand PM2.5emissions in 2009 for the Kentucky portion of the Area are only 7.43 percent and 0.97 percent, respectively, of the total emissions for the Kentucky portion of the Area.

• The tables also show that mobile source emissions of NOXand PM2.5are declining. Specifically, NOXand PM2.5mobile emissions were projected to decrease by approximately 28 percent and 40 percent, respectively, between the 2002 and 2009. The decrease in NOXand PM2.5emissions were expected during a time when the VMT were expected to increase by 16 percent in the Kentucky portion of the Area.

• There have been no SIP requirements for motor vehicles control measures for the Kentucky portion of the Area.

• According to the Ashland Area Metropolitan Planning Organization (Ashland MPO) analysis, the projected mobile source emissions to 2030 indicate that there is no reason to expect highway motor vehicle growth that would cause a violation of the 1997 Annual PM2.5NAAQS.

• As described above, the area has attained the 1997 Annual PM2.5standard and EPA is proposing to approve the attainment plan for the Kentucky portion of the area.

As discussed above, the Area is not currently required to perform a regional emissions analysis for the Kentucky portion of the Huntington-Ashland Area based on the adequacy determination for the finding that on-road emissions of NOXand direct PM2.5are insignificant contributors to the area's PM2.5air quality problem. Today EPA is proposing to approve that insignificance finding as part of the state's attainment plan for the Area. If finalized, such approval it would serve to confirm that the Kentucky portion of the Area is not required to perform a regional emissions analysis for either directly emitted PM2.5or NOXas a part of future PM2.5conformity determinations for the 1997 Annual PM2.5standard.7 PM2.5hot-spotanalysis will continue to apply for required projects under 40 CFR 93.116 and 93.123(b) of the Transportation Conformity Rule.

Weighing all the factors for an insignificance finding, particularly the minor contribution of mobile source NOXand PM2.5, EPA has determined that the NOXand PM2.5contribution from motor vehicles emissions to the Annual PM2.5pollution for the Kentucky portion of the Area are insignificant. EPA's insignificance finding should be considered and specifically noted in the transportation conformity documentation that is prepared for this area.

The insignificance determination that Kentucky submitted for the Huntington-Ashland Area was developed with projected mobile source emissions derived using the MOBILE6 motor vehicle emissions model. EPA is proposing to approve the inventory and the insignificance determination because this model was the most current model available at the time Kentucky was performing its analysis. However, EPA has now issued an updated motor vehicle emissions model known as Motor Vehicle Emission Simulator or MOVES. In its announcement of this model, EPA established a two-year grace period for continued use of MOBILE6 (extending to March 2, 2012), after which states (other than California) must use MOVES in conformity determinations for transportation plans and transportation improvement programs.

EPA is proposing to approve Kentucky's annual PM2.5attainment plan for the Kentucky portion of the Huntington-Ashland Area. EPA has determined that the SIP meets applicable requirements of the CAA, as described in the PM2.5Implementation Rule. Specifically, EPA is proposing to approve Kentucky's attainment demonstration, including the RACM/RACT analysis; RFP analysis, base-year and attainment-year emissions inventories; and, for transportation conformity purposes, an insignificance determination for PM2.5and NOXfor the mobile source contribution to ambient PM2.5levels for the Commonwealth's portion of the Huntington-Ashland Area. The requirement for a RFP plan is satisfied because Kentucky demonstrated attainment of the 1997 PM2.5NAAQS in the Area by April 2010. Also, because EPA has determined that the Area has attained by the attainment date, the contingency measures submitted by Kentucky are no longer necessary for the Huntington-Ashland Area to meet RFP requirements or to attain the annual PM2.5NAAQS by the attainment date.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this proposed action merely approves state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501et seq.);

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601et seq.);

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this proposed rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the Commonwealth, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

Organization of this Document.The following outline is provided to aid in locating information in this preamble.

A red-line version of the regulatory language that incorporates the changes in this action is available in the docket.

The regulated categories and entities potentially affected by this action include:

This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this reconsideration action. To determine whether your facility may be affected by this reconsideration action, you should examine the applicability criteria in 40 CFR 63.11494 of subpart VVVVVV (National Emission Standards for Hazardous Air Pollutants for Chemical Manufacturing Area Sources). If you have any questions regarding the applicability of the final rule to a particular entity, consult either the air permit authority for the entity or your EPA regional representative, as listed in 40 CFR 63.13.

Submitting CBI.Do not submit information that you consider to be CBI electronically throughhttp://www.regulations.govor email. Send or deliver information identified as CBI to only the following address: Mr. Nick Parsons, c/o OAQPS Document Control Officer (Room C404-02), U.S. Environmental Protection Agency, Research Triangle Park, North Carolina 27711, Attn: Docket ID No. EPA-HQ-OAR-2008-0334.

Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to the EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. If you submit a disk or CD-ROM that does not contain CBI, mark the outside of the disk or CD-ROM clearly that it does not contain CBI. Information marked as CBI will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

If you have any questions about CBI or the procedures for claiming CBI, please consult the person identified in theFOR FURTHER INFORMATION CONTACTsection.

Docket.The docket number for this action and the final rule (40 CFR part 63, subpart VVVVVV) is Docket ID No. EPA-HQ-OAR-2008-0334.

World Wide Web (WWW).In addition to being available in the docket, an electronic copy of this action is available on the WWW through the Technology Transfer Network (TTN) Web site. Following signature, a copy of this notice will be posted on the TTN's policy and guidance page for newly proposed or promulgated rules athttp://www.epa.gov/ttn/oarpg. The TTN provides information and technology exchange in various areas of air pollution control.

Section 112(d) of the Clean Air Act (CAA) requires the EPA to establish national emission standards for hazardous air pollutants (NESHAP) for both major and area sources of HAP that are listed for regulation under CAA section 112(c). A major source is any stationary source that emits or has the potential to emit 10 tons per year (tpy) or more of any single HAP or 25 tpy or more of any combination of HAP. An area source is a stationary source that is not a major source.

On October 29, 2009 (74 FR 56008), the EPA issued the NESHAP for the nine chemical manufacturing area source (CMAS) categories that were listed pursuant to CAA sections 112(c)(3) and 112(k)(3)(B). The nine area source categories are Agricultural Chemicals and Pesticides Manufacturing, Cyclic Crude and Intermediate Production, Industrial Inorganic Chemical Manufacturing, Industrial Organic Chemical Manufacturing, Inorganic Pigments Manufacturing, Miscellaneous Organic Chemical Manufacturing, Plastic Materials and Resins Manufacturing, Pharmaceutical Production and Synthetic Rubber Manufacturing.

CAA section 112(k)(3)(B) directs the EPA to identify at least 30 HAP that, as a result of emissions from area sources, pose the greatest threat to public health in the largest number of urban areas. The EPA implemented this provision in 1999 in the Integrated Urban Air Toxics Strategy, (64 FR 38715, July 19, 1999) (Strategy). Specifically, in the Strategy, the EPA identified 30 HAP that pose the greatest potential health threat in urban areas, and these HAP are referred to as the “30 urban HAP.” Section 112(c)(3) of the CAA requires the EPA to list sufficient categories or subcategories of area sources to ensure that area sources representing 90 percent of the emissions of the 30 urban HAP are subject to regulation. The EPA completed this requirement in 2011 (76 FR 15308, March 21, 2011). The chemical manufacturing area source categories were listed to satisfy this requirement for 15 of the 30 urban HAP.1 Pursuant to CAA section 112(d)(5), the NESHAP reflect generally available control technologies or management practices (GACT). The NESHAP apply to each chemical manufacturing process unit (CMPU) that uses, generates or produces any of the 15 urban HAP for which the area source categories were listed (collectively “chemical manufacturing urban HAP” or “Table 1 HAP”).

On February 12, 2010, following promulgation of the final rule, the EPA received a petition for reconsideration from the American Chemistry Council (ACC) and the Society of Chemical Manufacturers & Affiliates (SOCMA) (“Petitioners”). A copy of this petition is provided in the docket (see Docket ID No. EPA-HQ-OAR-2008-0334). Petitioners, pursuant to CAA section 307(d)(7)(B), requested that the EPAreconsider six provisions in the rules: (1) The requirement that major sources that installed air pollution controls after 1990, and, as a result, became area sources, obtain a title V permit; (2) the requirement that sources subject to the final rule and any overlapping provision in another rule comply with each provision independently, or with the most stringent requirements of each rule; (3) the requirement that leak inspections include direct and proximal (thorough) inspection of all areas of potential leak within the CMPU; (4) the requirement that process vessels in HAP service be equipped with a cover or lid that must be in place at all times when the vessel contains HAP, except for material addition and sampling; (5) the requirement to conduct leak inspections while the equipment is in HAP service; and (6) the requirement that a CMPU include all equipment and processes used to produce a “family of materials.” The arguments in support of these requests are provided in the petition and described briefly below. Petitioners also requested that the EPA stay the effectiveness of these provisions of the rule to save many facilities from needlessly having to file the initial notifications required by the final rule.

On June 15, 2010, the EPA sent a letter to Petitioners informing them that the EPA was granting the request for reconsideration on at least one issue raised in the petition, and that the agency would identify the specific issue or issues for which it was granting reconsideration in the reconsideration notice that would be published in theFederal Register. The letter also indicated that the EPA considered the request for a stay to be moot because the due date for initial notifications had already passed.

In this notice, we are granting reconsideration of, and requesting comment on, the six issues raised by Petitioners in their petition for reconsideration.Section IVof this preamble summarizes these issues and discusses our proposed responses to each issue.

We are also proposing additional provisions related to malfunctions and requesting comment on the provisions in the final rule that address periods of startup and shutdown. We are also proposing amendments to, and taking comment on, the standards applicable to metal HAP process vents. Finally, we are proposing technical corrections to certain applicability and compliance provisions in the final rule.

We are seeking public comment only on the issues specifically identified in this notice. We will not respond to any comments addressing other aspects of the final rule or any other related rulemakings.

This section of the preamble contains the EPA's basis for our proposed responses to the issues identified in the petition for reconsideration. We solicit comment on all proposed responses and revisions discussed in the following sections.

The EPA proposed to exempt all chemical manufacturing area sources from the requirement to obtain a title V permit. In the final rule, in response to comments and after a full review of the record, the EPA stated that it was not finalizing the exemption for major sources that became synthetic area sources by installing air pollution controls after 1990. Among other things, the agency explained that we made the change, in part, because we failed to consider the large number of such sources in proposing the exemption, and because these sources had uncontrolled emissions that made them much more like major sources. See 74 FR 56013, October 29, 2009. Petitioners maintain that the proposed exemption of CMAS facilities from title V permitting requirements was fully and correctly justified in the preamble to the proposed CMAS rule. The Petitioners also claim:

• The EPA's assertion in the final rule that facilities that installed control equipment to become synthetic area sources are “generally larger and more sophisticated” than other chemical manufacturing area sources contradicts our earlier finding in the proposed rule that many of the facilities that would be affected by the CMAS rule are small entities without the resources to comply with permitting requirements. The Petitioners also state that approximately 87 percent of SOCMA members and 45 percent of ACC members are small businesses, which they cite as support for the proposed finding.

• The final rule fails to recognize that, in order for a facility to be treated as a synthetic area source due to the installation of controls, the facility has a legal duty to use the equipment because the control requirement must be federally enforceable. Further, the Petitioners state that, “In order to have been approved by the EPA, a state operating permit program that imposes a federally enforceable requirement to use control equipment must provide the public with notice and an opportunity to comment on draft permits * * * and must also provide for emissions reporting and public availability of reported information.”

• The final rule is contrary to the decision inAlabama Power Co.v.EPA,which held that a source's potential to emit is determined by its design capacity and the anticipated functioning of the air pollution control equipment. Thus, the petitioners claim that whether a facility is a natural area source or a synthetic area source (due to either operational limits or the use of control devices) should not matter for regulatory purposes.

• The EPA argued in the area source rules for asphalt processing/asphalt roofing manufacturing, and paint and allied products manufacturing, that state-delegated programs are sufficient to assure compliance, and that it is not more difficult for citizens to enforce the NESHAP absent a title V permit. According to the Petitioners, these statements are equally, if not more, true for chemical manufacturing synthetic area sources.

• Title V requirements will impose substantial transactional and compliance costs on subject facilities, and limit their flexibility to respond to market opportunities.

In conclusion, Petitioners suggest that we should exempt all chemical manufacturing area sources from the requirement to obtain a title V permit consistent with the proposed rule. We reviewed our rationale, as stated in the preamble to the final rule (74 FR 56013-56014) and summarized below, for the final title V permitting requirement for facilities that became synthetic area sources by virtue of installing air pollution control devices after 1990. We continue to believe that requiring title V for synthetic area sources that installed controls to become area sources is appropriate; therefore, we are not proposing to exempt such sources from the requirement to obtain a title V permit. We are, however, making changes to the applicability of the provision at issue. Instead of requiring a title V permit for all synthetic area sources that installed air pollution controls in order to become an area source, regardless of whether the controls were installed on an affected CMPU, we are now proposing to only require a title V permit for a synthetic area source if air pollution controls were installed on at least one CMPU subject to the final rule in order to become an area source. Such a limitation would be consistent with the standards in the final rule that are applicable only to the CMPU that emit one of the chemical manufacturing urban HAP. We are alsoproposing to add provisions that inform sources when they must submit a title V permit application consistent with the title V regulations at 40 CFR part 70 and 40 CFR part 71.

Pursuant to section 502(a) of the CAA, the Administrator may “exempt one or more [area] source categories (in whole or in part) from the requirements of [title V] if the Administrator finds that compliance with such requirements is impracticable, infeasible, or unnecessarily burdensome * * * .” In December 2005, in a national rulemaking, the EPA interpreted the term “unnecessarily burdensome” in CAA section 502, and developed a four-factor balancing test for determining whether title V is unnecessarily burdensome for a particular area source category, such that an exemption from title V is appropriate. See 70 FR 75320, December 19, 2005 (Exemption Rule). The EPA evaluated the chemical manufacturing area source categories pursuant to the four-factor balancing test in the proposed rule, and determined that title V permitting was unnecessarily burdensome. 73 FR 58371-58373. However, as stated above, the EPA did not finalize the exemption for synthetic area sources that became area sources by installing air pollution controls after November 15, 1990, in part, because the agency failed to consider the large number of such sources in proposing the exemption. 74 FR 56013. We explained the reasons for our oversight, and then concluded that title V was not unnecessarily burdensome and provided a reasoned basis for that conclusion, as discussed below. 74 FR 56013-56014.

In the preamble to the final rule, we noted that the chemical manufacturing area source categories are different from other area source categories we have exempted because the categories include a large number of synthetic area sources (major sources that installed air pollution controls to become area sources) and the sources in the other categories generally have very low emissions of HAP before control. We then stated that at least 10 percent of the estimated 75 facilities that are synthetic area sources for HAP by virtue of installing controls have uncontrolled HAP emissions over 100 tpy. We also indicated that our information showed that many of the sources are located in cities, and often in close proximity to residential and commercial centers where large numbers of people live and work. We further stated that these synthetic area sources have significantly higher emissions potential when uncontrolled than the other sources in the chemical manufacturing area source categories, and that they are much more like the major sources of HAP subject to the Hazardous Organic Chemical Manufacturing NESHAP (HON) and the Miscellaneous Organic Chemical Manufacturing NESHAP (MON). For these reasons, and other reasons set forth in the preamble to the final rule, we determined that “requiring additional public involvement and compliance assurance requirements through title V is important to ensure that these sources are maintaining their emissions at the area source level, and, while there is some burden on the affected facilities, we think that the burden is not significant because these facilities are generally larger and more sophisticated than the natural area sources and sources that took operational limits to become area sources.” 74 FR 56014.

Contrary to the Petitioners' first assertion, we do not believe that there is a conflict between our finding that many CMAS facilities are small entities that lack the technical and financial resources to comply with title V, and our finding that CMAS facilities that are synthetic area sources due to the use of control devices are generally larger and more sophisticated than other facilities covered by the final rule. The fact that nearly all SOCMA members are small businesses does not, by itself, counter these findings. As we stated in the preamble to the final rule, an estimated 450 CMAS facilities have processes that would be subject to the rule. Of those, we estimated that 75 are synthetic area sources by virtue of add-on controls, and only 47 of these facilities were estimated to need a new title V permit because the remainder of the sources are already subject to title V for other reasons. Of the 47 sources that would require a new title V permit under the requirement in the final rule, we estimated that at least two-thirds of these facilities are large entities. Since we do not know whether the add-on controls at these 75 facilities are installed on a CMPU subject to the final rule, we cannot estimate the total number of facilities that would be required to obtain a new title V permit under this proposed revision to the title V permit requirement. However, we believe that it would be less than the 47 facilities that would have required a new title V permit under the final rule requirement. Based on information from SOCMA, approximately 270 member companies are small businesses. However, it is not clear how many of these companies have facilities that are subject to the CMAS rule, how many of the subject facilities are synthetic area sources for HAP emissions due to the use of control devices or how many of the synthetic area sources for HAP emissions are subject to title V permitting requirements for other reasons. The information provided by Petitioner ACC is similarly vague on this issue.

The Petitioners also argue that the title V requirement is not appropriate because: (1) State operating permits that impose a federally enforceable requirement must provide the public with notice and the opportunity to comment on the draft permit; (2) synthetic area source limits must be federally enforceable pursuant to the definition of “potential to emit” at 40 CFR 63.2, and that it should not matter whether an area source is synthetic or natural; (3) the EPA has determined in other area source rules that state-delegated programs and Federal enforceability of the standards is sufficient, and that determination is equally applicable to the area sources subject to title V in this rule; and (4) the requirement to obtain a title V permit will impose substantial compliance costs and reduce flexibility at the subject facilities. We are not proposing changes to the title V permitting requirement based on these arguments because we do not believe that they support a change in our position. First, while it is true that the EPA regulations require Federal enforceability of limitations on potential to emit HAP, Petitioners did not provide any information as to the level of public participation required to obtain such limits and whether the level of participation was as comprehensive as that required pursuant to title V. Even if Petitioners could demonstrate that the level of public participation was comparable to that required under title V, our determination would not be altered on that issue alone because title V has other important requirements that may not apply to synthetic area sources that are not subject to title V (e.g.,the requirement to annually certify compliance with all applicable requirements). Second, the EPA disagrees that natural and synthetic area sources must be treated the same. As stated in the preamble to the final rule, “[synthetic area source] facilities are generally larger and more sophisticated than the natural area sources and sources that took operational limits to become area sources” (74 FR 56014). Third, we explained in the preamble to the final rule that the chemical manufacturing area sources are not similar to other area source categories that we have exempted because of thelarge number of synthetic area sources that installed add-on controls and the high volume of pre-control device HAP emissions from the chemical manufacturing area sources that added controls as compared with other area sources. As these synthetic area sources have essentially the same pre-control device HAP emissions potential as a major source chemical manufacturing facility, we believe that the title V permit requirement will help ensure that these control devices remain in place and that these sources maintain their area source status. Since it is possible that the non-operation, failure or underperformance of a single control device could result in a source within this category exceeding the major source emission threshold (10 tpy or more of any single HAP or 25 tpy or more of any combination of HAP), we believe that the additional scrutiny that permitting authorities place on sources with title V permits is warranted. Finally, Petitioners have provided no information that demonstrates that the cost of compliance for affected facilities will, in fact, significantly burden the sources subject to the title V requirement, or that such requirement will limit operational flexibility. We request comments and information that address these issues, including information and requirements that are required by state operating permit programs, so that we can more thoroughly evaluate applicability of title V for the identified sources.

As stated above, we are proposing changes to the applicability of the title V permit requirement to synthetic area sources that installed controls. The proposed changes more clearly identify the sources subject to title V as those that route (or have routed) emissions from at least one process unit subject to the final rule to a control device(s) that is required to maintain synthetic area source status at the facility, which will likely reduce the number of sources required to obtain a title V permit, if promulgated. Specifically, because the standards apply only to CMPU that meet the specific applicability criteria in the rule, we request comment on whether the title V permitting requirement should be applicable only if one or more of the CMPU that are subject to the final standards are controlled by the air pollution control equipment necessary for the facility to maintain area source status. We are also proposing to include language that informs sources subject to title V requirements when they must submit a title V permit application. The EPA is including these new provisions because, on March 14, 2011, the agency issued a final rule staying the requirement to obtain a title V permit until the final reconsideration rule is published in theFederal Register. 76 FR 13514. Because the stay will be lifted once the final rule is published in theFederal Register, we determined it was necessary to include an application deadline for those existing sources currently subject to the final rule to avoid confusion as to when title V permit applications would be due. The proposed application deadline for existing sources provides the full 12 months otherwise available to sources newly subject to title V pursuant to the EPA regulations at 40 CFR part 70 and 40 CFR part 71. See 40 CFR 70.5(a)(1) and 40 CFR 71.5(a)(1). We also propose to include a provision indicating the time available for new sources and existing sources that become subject to the rule after the effective date to submit a title V permit application.2 We solicit comment on these proposed changes to the final rule.

Additionally, we are soliciting comment on the promulgated final rule requirement that required a facility to obtain a title V permit if emissions from any process unit are (or have been) routed to the control device(s) that is required to maintain synthetic area source status at the facility.

We are requesting comment with supporting rationale on the requirement, as specified in this proposed rule and the promulgated final rule requirement outlined above. We are also interested in information that would allow us to better estimate the burden under the requirement in this proposed rule and the alternative. For example, we are interested in results of any surveys that document: (1) The percentage and/or number of CMAS facilities that are synthetic area sources for HAP emissions because they use federally-enforceable control devices; (2) the percentage and/or number of such facilities that are using the control devices to control emissions from at least one CMAS CMPU; (3) the financial burden of obtaining a title V permit compared to sales; and (4) the percentage and/or number of such facilities that are not already subject to title V requirements for other reasons. We are not taking comment on our decision in the final rule to exempt from title V chemical manufacturing areas sources that are natural area sources or that took operational limits to become area sources.

Petitioners note that their comments on the proposed rule urged the EPA to include provisions in the final rule that would minimize the burden associated with overlapping provisions between the CMAS rule and other rules. Specifically, they recommended that the CMAS rule include provisions to allow a facility subject to the CMAS rule and any other applicable area or major source rule to opt to comply with either, and noted that such an approach has been taken in many other rules. In response to those comments, we added provisions to address overlapping requirements in the final rule. See 40 CFR 63.11500. However, Petitioners consider the overlapping rule requirements in the final rule, which specify that a facility may elect to comply with the most stringent provisions of the applicable rules as an alternative to complying fully with each rule independently, to be “unprecedented, burdensome, and highly problematic.” According to the Petitioners, concerns with the alternative are that: (1) There can be uncertainty regarding which provision is more stringent; (2) facilities will be at risk that the EPA or a delegated authority will subsequently disagree with the source's determination; and (3) the effort necessary to construct a matrix of applicable requirements and determine which are the most stringent will exceed available staff and financial resources of many area sources. In addition, Petitioners state that complying in every respect with two overlapping rules is bound to involve substantial duplication, and, in some cases, may not be possible due to conflicts between the two rules. For these reasons, Petitioners recommend that we either propose to eliminate the final language or request comment on it.

We disagree with the Petitioners' assertion that the requirements in the final rule are unprecedented and procedurally invalid. In the absence of the language in the final rule, a facility would be required to comply with all applicable requirements in both the CMAS rule and all other applicable rules, regardless of whether some equipment is subject to more than one rule. The final CMAS rule merely made explicit the implicit requirement to comply with all applicable standards. It was in response to Petitioners' comments that the agency provided anoverlapping requirements alternative that allows a facility to identify and comply with only one set of requirements (i.e.,the most stringent requirements in the overlapping rules). The alternative was intended as a means of reducing the compliance burden without diminishing the level of environmental protection provided by each rule.

We did not include language that defines the more stringent requirements, as found in other rules, due to the great variety in characteristics of CMAS processes and the wide variety of compliance options in both the CMAS rule and overlapping rules. This variety makes it difficult to develop language that would not inadvertently allow a CMAS facility to comply with requirements less stringent than those contained in 40 CFR part 63, subpart VVVVVV, or less stringent than the required control level in an overlapping rule. Furthermore, as noted in the economic and control cost impacts analyses (see Docket ID No. EPA-HQ-OAR-2008-0334-0079), we expect that most CMAS facilities will be subject to only the management practices in subpart VVVVVV. For those sources, we anticipate that it generally will not be difficult or burdensome to determine which requirements in subpart VVVVVV and an overlapping rule are the most stringent. For those sources that are unable to determine the more stringent requirement between subpart VVVVVV and an overlapping requirement, we believe it would be more appropriate to address those situations on a case-by-case basis.

We are granting reconsideration of the overlapping provisions requirement in 40 CFR 63.11500 of the final rule to allow comment on both the language in the final rule and any alternative suggestions. Specifically, we are interested in language that would reduce the compliance burden for the CMAS rule and any overlapping rules combined, yet assure that all requirements in the CMAS rule are met. We are also interested in specific examples of requirements in overlapping rules that conflict with requirements in the CMAS final rule.

In the final rule, the EPA revised the provision for inspections to require that facilities conduct a “direct and proximal (thorough) inspection of all areas of potential leak within the CMPU.” Petitioners object to the requirement in the final rule to conduct “direct and proximal (thorough)” inspections because they believe it requires inspections without regard to safety or difficulty of access. Petitioners also note that areas that are difficult to inspect or unsafe to inspect or monitor are exempted from regular inspection requirements in other rules, and they point out that, in their comments on the proposed CMAS rule, they requested clarification that sensory inspections may be done from a distance when equipment is either inaccessible or unsafe for close visual inspection. Therefore, Petitioners maintain that the agency should either propose to eliminate the direct and proximal inspection requirement or request comment on it.

We have determined that the inspections required in the final rule require control that is more stringent than GACT because we are not aware of any facility conducting direct and proximal inspections of all process vessels and equipment. For this reason, and to address Petitioners' concerns, we are proposing to delete the requirement for direct and proximal inspections. However, we want to assure that sensory inspections be performed at distances such that the results are meaningful.

As a result, we are proposing that the amended rule would specify that a facility must conduct quarterly sensory inspections of all equipment and process vessels, provided these methods are capable of detecting leaks within the CMPU (i.e.,the inspector is within sufficient proximity to the equipment that leaking equipment can be detected by sight, sound or smell). We are not, however, proposing to exempt equipment that is difficult or unsafe to monitor. Rules that provide such exemptions do so because they require instrument monitoring that relies on being able to locate the instrument probe very close to the equipment being inspected(e.g.,see 40 CFR part 63, subparts TT and UU). Sensory monitoring does not require intimate contact with each piece of equipment to be effective at identifying leaks. In addition, due to the wide variety of design and operating conditions throughout the source category, we also are not proposing criteria regarding an acceptable distance for inspection or the types of conditions under which the inspection may be conducted from a distance. Our intent is that each facility should conduct inspections as close as practical to the equipment to be able to detect leaks while also following procedures contained in site-specific safety plans. The proposed requirements would be consistent with sensory inspection requirements in 40 CFR part 63, subpart R. We request comment on both the direct and proximal language in the final rule and these proposed revisions.

We proposed to require process vessels in HAP service be closed “except when operator access is necessary.” 73 FR 58377 (proposed 40 CFR 63.11495(a)). The final rule requires process vessels in HAP service to be equipped with a cover or lid that must be in place at all times when the vessel contains HAP, “except for material addition and sampling.” 40 CFR 63.11495(a)(1). Petitioners contend that compliance with this management practice requirement is impossible due to safety issues and because it does not consider the need to take material out of a vessel or to conduct maintenance. Petitioners are particularly concerned that the requirement does not appear to allow openings for any type of maintenance, even after the process is shut down, and only trace levels of HAP are present. In subsequent correspondence, Petitioners suggest that their concerns would be resolved if we modify the rule so that the cover or lid requirement applies only when a process vessel is “in use” (which is a concept that they state can be easily applied), and clarify that “in use” does not include routine cleaning operations. See Docket ID No. EPA-HQ-OAR-2008-0334. Petitioners explain that the exclusion for cleaning is needed because the definition of a “chemical manufacturing process” includes routine cleaning operations, but vessels must be opened for cleaning. Therefore, the Petitioners state that we should either propose changes that would require the use of covers or lids only when subject process vessels are in use, or seek comments on the requirement as written in the final rule.

We are granting reconsideration of the requirement to use a cover or lid on process vessels because the Petitioners comments indicate that the requirement can be interpreted as requiring control more stringent than we intended. The proposed rule specified that “all process equipment in which organic HAP is used to process material must be covered when in use, and closure mechanisms on other openings and access points in process equipment must be in the closed position during operation, except when operator access is necessary.” 73 FR 58377 (proposed 40 CFR 63.11495(a)). The intent of the requirement for covers in the proposed rule was to ensure that processes do not operate with open-top vessels. The purpose of the cover is to minimizeemissions from surface evaporation, but not necessarily to have a tight seal between the cover and the vessel. For the final rule, we tried to clarify what “in use” and “operator access” meant by specifying that the cover (or lid) “must be in place at all times when the vessel contains HAP, except for material addition and sampling.” However, as the Petitioners have pointed out, the revised language can be interpreted as prohibiting removal of the cover, even when only traces of HAP remain in the vessel after it has been drained, which would prohibit opening to perform maintenance or manual cleaning. Requiring use of the cover in this way is not GACT, and it was not our intent.

To address the Petitioners' issues, we are proposing to revise 40 CFR 63.11495(a)(1) in the final rule to read as follows: “Each process vessel must be equipped with a cover or lid that must be closed whenever the vessel is in organic HAP service or metal HAP service, except for manual operations that require access, such as material addition and removal, inspection, sampling, and cleaning.” We note that allowing opening of a process vessel for material removal clarifies that process vessels, such as filter presses, may be opened in order to remove the filter cake.

The proposed change also would exempt manual cleaning operations from the requirement to maintain closed covers and lids while a process vessel is in organic HAP or metal HAP service. As the Petitioners noted, the definition of “chemical manufacturing process” is drawn from the definition of a “miscellaneous organic chemical manufacturing process” in 40 CFR 63.2550 of the MON. That definition includes “routine cleaning operations,” which are described in the preamble to the final MON as “cleaning conducted within enclosed equipment between batches or between campaigns.” The MON preamble goes on to state that these operations “often consist of conducting solvent rinses through the equipment,” and emissions are characterized as part of the emissions from a batch process vent. See 68 FR 63860, November 10, 2003. Contrary to Petitioner's assertion, this type of cleaning was included as part of the process specifically because we considered the vessels to be “in use” while it is conducted. We also consider vessels to be in use when manual cleaning is performed. To clarify this point, we are proposing to revise the definition of “chemical manufacturing process” to specify that all cleaning activities are part of the process. However, because GACT does not include the use of closed covers and lids when performing manual cleaning, we are proposing two additional changes. First, we are proposing the change noted above to exempt manual cleaning operations from the requirement to maintain covers and lids in the closed position when the vessel is in organic HAP service or metal HAP service. Second, we are proposing to revise the definition of “in organic HAP service” to specify that a process vessel is no longer in organic HAP service after the vessel has been emptied to the extent practicable (i.e.,a vessel with liquid left on process vessel walls or as bottom clingage, but not in pools, due to floor irregularity, is considered completely empty), and any cleaning has been completed. We expect emissions to be minimal during manual cleaning operations and when a process vessel is no longer in organic HAP service. We are not proposing any changes to 40 CFR 63.11494(a)(1) regarding maintenance activities because those activities would be conducted after the vessel has been drained (and possibly cleaned) and the vessel would no longer be in organic HAP service.

We request comments on both the provisions, as specified in the final rule and the proposed changes. Specifically, we request comment on whether the proposed changes effectively address the issues raised by Petitioners, and clarify the requirements without introducing unintended consequences. We also request comment on whether a change like that proposed for the definition of “in organic HAP service” is needed for the definition of “in metal HAP service.” In particular, we request comment on whether a change is needed to address when vessels that contain metal HAP in the form of particulate are in use, and, if so, we request information on the types of vessels for which the change is needed and recommendations on how the language in the definition could be structured. We are also requesting comment on possible changes to the requirements for cleaning that would include requirements for manual cleaning as well as for automated rinses through closed equipment.

Petitioners state that “the final rule can be read to imply that the equipment must be in HAP service when the inspection is conducted.” Petitioners note that this is in contrast to the proposed rule, which would have required quarterly inspections without specifying any other conditions. Petitioners stated that they did not comment on the proposed language because they considered it to be reasonable; however, Petitioners contend that the apparent requirement in the final rule is problematic because batch processors who operate equipment in HAP service for short periods of time and have limited operating personnel may find it difficult to accomplish the required inspections during these narrow windows of time. Petitioners ask for clarification about whether this interpretation is correct, and, if it is, Petitioners state that we should either propose reverting to the proposed language, or propose language allowing quarterly leak detection and repair inspections when the equipment is in volatile organic compound (VOC) service, not just HAP service.

Based on our review of this issue, we are proposing some editorial changes to 40 CFR 63.11495(a)(3) of the final rule to make the rule easier to read and understand. These changes are described in Section VII of this preamble. However, we decided not to propose changes as suggested by the Petitioners because we have several concerns regarding how inspections can be conducted effectively when the process is not operating in HAP service. We request comment on both the specific concerns described below, as well as all other aspects of the requirements in the final rule related to the timing of inspections. First, because the configuration of process vessels and equipment likely changes from one CMPU to the next, we request comment on how sources would track which vessels and equipment to inspect in VOC service if we adopted Petitioners' approach and whether this effort would negate any advantages of having flexibility to inspect at times other than when the subject CMPU is operating in organic HAP service. Second, process vessels are generally opened and cleaned when reconfiguring to create a different CMPU, and equipment connections are also often opened. Therefore, we also request comment discussing how inspections in VOC service for a different configuration would provide information that is relevant to determining whether there are leaks from the subject CMPU. Finally, if someone elects to conduct Method 21 monitoring rather than sensory inspections, the instrument reading obtained would be related to the concentration of organic compound in the fluid and the response factor of the instrument for that organic compound. Thus, we request comment on the need to specify criteria for the type of fluidthat may be used when conducting inspections of vessels and equipment in VOC service (e.g.,that the VOC concentration must be no less than the total organic compound concentration in the subject CMPU when in organic HAP service). We will consider adopting the Petitioners' approach after reconsideration if we can adequately address these issues.

After proposal, the rule was revised in response to comments from Petitioners and others that argued applicability should be established on a CMPU basis instead of facility-wide basis. Petitioners specifically suggested that the EPA adopt the CMPU construct. We defined the CMPU in the final rule to include “all process vessels, equipment, and activities necessary to operate a chemical manufacturing process that produces a material or family of materials * * *. A CMPU consists of one or more unit operations and any associated recovery device.” 40 CFR 63.11494(b). In adopting the CMPU construct, we determined that, to adequately characterize the CMPU, the applicability of the rule should extend to the “family of materials” because the CMPU concept is derived from the MON, and production of a family of materials is part of a single process unit in the MON. Furthermore, as in the MON, the CMAS rule specifies mass emission thresholds above which more stringent control of batch process vents is required. Petitioners state that it can be difficult under the CMAS rule to determine what constitutes a family of materials. Petitioners believe that the term “family of materials” effectively expands the scope of a CMPU to include equipment that is not part of a process that uses or produces Table 1 HAP. Petitioners contend that there is no policy justification for applying the CMAS rule this broadly. Therefore, Petitioners request that the EPA interpret the “family of materials” term in such a way as to avoid regulating equipment that is not used to process a Table 1 HAP. Alternatively, Petitioners suggest that the EPA propose eliminating the phrase “or a family of materials” from the rule.

The definition of “family of materials” in the MON, and referenced in 40 CFR 63.11502 of the CMAS final rule, is as follows:

As in the MON, the intent of the family of materials concept in 40 CFR part 63, subpart VVVVVV is to ensure that sources will not be able to improperly avoid installation of add-on controls for batch process vent emissions by creating separate CMPU for production of essentially the same products (i.e.,products produced from the same basic raw materials, with essentially identical HAP emissions, and using the same configuration of manufacturing equipment). For example, a series of polymer products that differ only in molecular weight or the type of non-HAP additive are considered a family of materials when the same primary raw materials are used, the same types of HAP are emitted and the same configuration of production equipment is used. However, because the definition of family of materials in the final rule uses the term “essentially” identical HAP emission profiles, a family of materials potentially could include some products whose production does not involve Table 1 HAP. Therefore, to clarify the requirements, we are proposing to revise the definition of family of materials to state that only those products whose production involves emission of the same Table 1 HAP are to be considered part of a family of materials.

We also want to clarify the family of materials concept as it relates to production of isolated intermediates. A chemical manufacturing process is defined, in part, as “all equipment which collectively functions to produce a product or isolated intermediate.” An isolated intermediate is defined, in part, as “a product of a process that is stored before subsequent processing.” (As discussed in section VII of this preamble, we are proposing to add a definition of “isolated intermediate” that is consistent with the definition in the MON.) Even if an isolated intermediate and final product are produced using the same manufacturing equipment configuration and have the same Table 1 HAP emissions, they generally cannot be part of a family of materials because the definition specifies production of all products in the family must involve the same basic feedstocks. This condition would not be met if an isolated intermediate is used as a feedstock in later production of a final product. Furthermore, the definition of family of materials specified that all products in the family must have the same basic composition, end use, or functionality. This condition also would not be met in a situation where the isolated intermediate is transformed in the process to produce the final product.

We are requesting comment on all aspects of the family of materials concept, including the proposed change. We are particularly interested in descriptions of situations where someone thinks it would apply, but should not, and we request suggestions for additional changes that would make it easier to understand, apply and enforce. We are not, however, accepting comments on the use of the CMPU as the basis for determining applicability of the CMAS final rule.

During the comment period of the proposed rule, the United States Court of Appeals for the District of Columbia Circuit vacated two provisions in the EPA's CAA section 112 regulations governing the emissions of HAP during periods of startup, shutdown and malfunction (SSM).Sierra Clubv.EPA,551 F.3d 1019 (D.C. Cir. 2008), cert. denied, 130 S. Ct. 1735 (U.S. 2010). Specifically, the Court vacated the SSM exemption contained in 40 CFR 63.6(f)(1) and 40 CFR 63.6(h)(1), that are part of a regulation, commonly referred to as the “General Provisions Rule,” that the EPA promulgated under section 112 of the CAA. When incorporated into CAA section 112(d) regulations for specific source categories, the exemption in these two provisions exempts sources from the requirement to comply with the otherwise applicable CAA section 112(d) emission standard during periods of SSM.

The proposed CMAS rule contained references to the vacated provisions. Because the provisions were vacated, we removed the references in the final rule, and, in their place, we included alternative standards for startup and shutdown periods for continuous process vents. Table 3 to 40 CFR part 63, subpart VVVVVV. For batch process vents, we determined that startup and shutdown periods were already accounted for in the existing standard, and we determined that the remaining equipment did not have periods of startup and shutdown. 74 FR 56013. We declined to establish a different standard for malfunctions, as suggested by commenters. 74 FR 56033.

Further, as explained in the preamble to the final rule (74 FR 56033), periods of startup, normal operations and shutdown are all predictable androutine aspects of a source's operations. However, by contrast, malfunction is defined as a “sudden, infrequent, and not reasonably preventable failure of air pollution control and monitoring equipment, process equipment or a process to operate in a normal or usual manner * * *” (40 CFR 63.2). Nothing in CAA section 112(d) or in case law requires that the EPA anticipate and account for the innumerable types of potential malfunction events in setting emission standards. SeeWeyerhaeuserv.Costle,590 F.2d 1011, 1058 (D.C. Cir. 1978) (“In the nature of things, no general limit, individual permit, or even any upset provision can anticipate all upset situations. After a certain point, the transgression of regulatory limits caused by `uncontrollable acts of third parties,' such as strikes, sabotage, operator intoxication or insanity, and a variety of other eventualities, must be a matter for the administrative exercise of case-by-case enforcement discretion, not for specification in advance by regulation.”). Further, it is reasonable to interpret CAA section 112(d) as not requiring the EPA to account for malfunctions in setting emissions standards.

We believe it would be impracticable to take malfunctions into account in setting CAA section 112(d) standards for chemical manufacturing area sources. As noted above, by definition, malfunctions are sudden and unexpected events, and it would be difficult to set a standard that takes into account the myriad different types of malfunctions that can occur across all sources in the categories. Moreover, malfunctions can vary in frequency, degree and duration, further complicating standard setting. See,e.g.,Sierra Clubv.EPA,167 F.3d 658, 662 (D.C. Cir. 1999) (the EPA typically has wide latitude in determining the extent of data-gathering necessary to solve a problem. We generally defer to an agency's decision to proceed on the basis of imperfect scientific information, rather than to “invest the resources to conduct the perfect study.”).

In the event that a source fails to comply with the applicable CAA section 112(d) standards as a result of a malfunction event, the EPA would determine an appropriate response based on, among other things, the good faith efforts of the source to minimize emissions during malfunction periods, including preventative and corrective actions, as well as root cause analyses to ascertain and rectify excess emissions. The EPA would also consider whether the source's failure to comply with the CAA section 112(d) standard was, in fact, “sudden, infrequent, not reasonably preventable” and was not instead “caused in part by poor maintenance or careless operation.” 40 CFR 63.2 (definition of malfunction).

Finally, the EPA recognizes that even equipment that is properly designed and maintained can sometimes fail, and that such failure can sometimes cause an exceedance of the relevant emission standard or other violation. (See,e.g.,State Implementation Plans: Policy Regarding Excessive Emissions During Malfunctions, Startup, and Shutdown(Sept. 20, 1999);Policy on Excess Emissions During Startup, Shutdown, Maintenance, and Malfunctions(Feb. 15, 1983)). The EPA is, therefore, proposing to add to the final rule an affirmative defense to civil penalties for exceedances of emission limits or other violations of applicable standards that are caused by malfunctions. See 40 CFR 63.11502 (defining “affirmative defense” to mean, in the context of an enforcement proceeding, a response or defense put forward by a defendant, regarding which the defendant has the burden of proof, and the merits of which are independently and objectively evaluated in a judicial or administrative proceeding). We also are proposing regulatory provisions to specify the elements that are necessary to establish this affirmative defense; the source must prove by a preponderance of the evidence that it has met all of the elements set forth in 40 CFR 63.11501(e). See 40 CFR 22.24. The criteria ensure that the affirmative defense is available only where the event that causes an exceedance of the emission limit meets the narrow definition of malfunction in 40 CFR 63.2 (sudden, infrequent, not reasonable preventable and not caused by poor maintenance and or careless operation). For example, to successfully assert the affirmative defense, the source must prove by a preponderance of the evidence that excess emissions “[w]ere caused by a sudden, infrequent, and unavoidable failure of air pollution control and monitoring equipment, process equipment, or a process to operate in a normal or usual manner * * *.” The criteria also are designed to ensure that steps are taken to correct the malfunction, to minimize emissions in accordance with CAA section 63.11501(e), and to prevent future malfunctions. For example, the source must prove by a preponderance of the evidence that “[r]epairs were made as expeditiously as possible when the applicable emission limitations were being exceeded * * *” and that “[a]ll possible steps were taken to minimize the impact of the excess emissions on ambient air quality, the environment and human health * * *.” In any judicial or administrative proceeding, the Administrator may challenge the assertion of the affirmative defense, and, if the respondent has not met its burden of proving all of the requirements in the affirmative defense, appropriate penalties may be assessed in accordance with section 113 of the CAA (see also 40 CFR 22.77).

The EPA included an affirmative defense in the final rule in an attempt to balance a tension, inherent in many types of air regulation, to ensure adequate compliance while simultaneously recognizing that despite the most diligent of efforts, emission limits may be exceeded under circumstances beyond the control of the source. The EPA must establish emission standards that “limit the quantity, rate, or concentration of emissions of air pollutants on a continuous basis.” 42 U.S.C. 7602(k) (defining “emission limitation and emission standard”). See,e.g.,Sierra Clubv.EPA,551 F.3d 1019, 1021 (DC Cir. 2008). Thus, the EPA is required to ensure that section 112 emissions limitations are continuous. The affirmative defense for malfunction events meets this requirement by ensuring that even where there is a malfunction, the emission limitation is still enforceable through injunctive relief. While “continuous” limitations, on the one hand, are required, there is also case law indicating that, in many situations, it is appropriate for the EPA to account for the practical realities of technology. For example, inEssex Chemicalv.Ruckelshaus,486 F.2d 427, 433 (DC Cir. 1973), the District of Columbia Circuit Court acknowledged that, in setting standards under CAA section 111 “variant provisions” such as provisions allowing for upsets during startup, shutdown and equipment malfunction “appear necessary to preserve the reasonableness of the standards as a whole and that the record does not support the `never to be exceeded' standard currently in force.” See also,Portland Cement Associationv.Ruckelshaus,486 F.2d 375 (DC Cir. 1973). Though intervening case law such asSierra Clubv.EPAand the CAA 1977 amendments undermine the relevance of these cases today, they support the EPA's view that a system that incorporates some level of flexibility is reasonable. The affirmative defense simply provides for a defense to civil penalties for excess emissions that are proven to be beyond the control of the source. By incorporating anaffirmative defense, the EPA has formalized its approach to upset events. In a Clean Water Act setting, the Ninth Circuit required this type of formalized approach when regulating “upsets beyond the control of the permit holder.”Marathon Oil Co.v.EPA,564 F.2d 1253, 1272-73 (9th Cir. 1977). But see,Weyerhaeuser Co.v.Costle,590 F.2d 1011, 1057-58 (DC Cir. 1978) (holding that an informal approach is adequate). The affirmative defense provisions give the EPA the flexibility to both ensure that its emission limitations are “continuous” as required by 42 U.S.C. 7602(k), and account for unplanned upsets and thus support the reasonableness of the standard as a whole.

The EPA has attempted to ensure that we have not incorporated into proposed regulatory language any provisions that are inappropriate, unnecessary, or redundant in the absence of the SSM exemption. We are specifically seeking comment on whether there are any such provisions that we have inadvertently incorporated or overlooked. We are also seeking comment on the inclusion of the affirmative defense provisions. Finally, we solicit comment on provisions in the final rule applicable to startup and shutdown periods for continuous and batch process vents.

In addition to the affirmative defense provisions described above, we are also proposing several changes throughout the rule and in Table 9 (the table that specifies applicability of General Provisions to subpart VVVVVV of 40 CFR part 63) to specify applicable requirements during periods of startup and shutdown and periods of malfunction. For example, we are proposing to add new paragraphs in 40 CFR 63.11501(c)(1)(vii) and (viii) that would require records of the occurrence and duration of malfunctions, as well as records of actions taken to minimize emissions during these periods and to fix malfunctioning equipment. We are also proposing to add a paragraph in 40 CFR 63.11501(d)(8) that would require reporting of information related to each malfunction. Table 9 in the final rule states that 63.6(e)(1)(i) does not apply to subpart VVVVVV. We are also proposing to add a new paragraph in 40 CFR 63.11495(d) that specifies the general duty to minimize emissions applies at all times. In addition to the proposed changes in the text of the rule, entries for 40 CFR 63.6(e)(1)(i), 63.10(b)(2) and 63.10(d)(5) also would be changed to reference the new paragraphs in 40 CFR 63.11495(d), 63.11501(c) and 63.11501(d). Finally, we are proposing to revise Table 9 to state that the performance testing requirements in 40 CFR 63.7(e)(1) do not apply. The comments to Table 9 for that provision identify the location of the applicable performance testing requirements for CMAS sources.

A metal HAP process vent is defined in the final rule as “the point of discharge to the atmosphere (or inlet to a control device, if any) of a metal HAP-containing gas stream from any CMPU at an affected source.” We are requesting comment on the applicability of this definition to all types of equipment from which metal HAP are emitted. We are particularly interested in comments on how well it applies to chemical manufacturing processes in comparison to the definitions for batch and continuous process vents, which have been used in HON, MON and several other MACT standards for chemical manufacturing.

Since promulgation, we determined that the final rule does not clearly explain how the rule applies when the Table 1 metal HAP are emitted as a gaseous organo-metallic compound along with other organic compounds that are routed to an incinerator for control. To clarify our intent, the following discussion summarizes the requirements in the final rule for all types of metal HAP compounds, including organo-metallic compounds. It also identifies potential limitations in these requirements and requests information to enable better characterization of affected CMPU.

Table 4 to 40 CFR part 63, subpart VVVVVV specifies that an owner or operator of an affected CMPU with metal HAP emissions equal to or greater than 400 pounds per year (lb/yr) must reduce the metal HAP emissions by at least 95 percent. The emission limit specified in Table 4 to subpart VVVVVV does not differentiate between compounds that are emitted as particulate and compounds that are emitted as vapor or as liquid droplets, or between organic and inorganic compounds. All Table 1 metal HAP compounds in all phases are subject. Thus, in the case of a CMPU that uses an organo-metallic Table 1 metal HAP compound, both the 400 lb/yr threshold and 95-percent emission limit apply. Although combustion would change the type of Table 1 metal HAP compound(s) emitted, it would not destroy the metal itself and likely would not reduce the mass by 95 percent. Thus, if the uncontrolled metal HAP emissions are greater than 400 lb/yr, additional control of the metal HAP would be required either upstream or downstream of the incinerator.

To demonstrate initial compliance, the owner or operator must conduct either a performance test or an engineering assessment (except new sources using a baghouse as a control device are required to conduct a performance test). If the owner or operator elects to conduct a performance test for a CMPU from which the metal HAP are emitted as a vapor, then the test must be conducted using Method 29 because the other specified alternative, Method 5, is not applicable. To demonstrate ongoing compliance, the owner or operator must develop and operate in accordance with a site-specific monitoring plan. This requirement applies for any type of control device used to control metal HAP emissions.

Although the metal HAP requirements apply to all Table 1 metal HAP as described above, the 400 lb/yr threshold was developed, primarily, based on information from CMPU where the metal HAP is emitted as particulate. In general, these facilities processed ores and/or manufactured solid materials such as pigments, catalysts or manganese dioxide. Some metal HAP at certain steps in some processes are liquids or dissolved in solvents, but these metal HAP compounds typically have very low vapor pressures and emissions; the bulk of the metal HAP emissions are particulates from operations such as grinding, mixing, calcining, drying and packaging. In addition, the control cost impacts were developed assuming the metal HAP are emitted in the form of particulate (See Docket ID No. EPA-HQ-OAR-2008-0334-0005). Therefore, we are requesting comment on whether there are reasons GACT for processes that emit gaseous Table 1 metal HAP should be different from GACT, as specified in the final rule. We are particularly interested in information on the types of processes that emit gaseous Table 1 metal HAP, the range in uncontrolled emissions from such processes, the types of emission points (i.e.,are these emission points consistent with the definition of “metal HAP process vent”), the types of control devices used to control such emissions and whether those processes also emit particulate metal HAP.

We are proposing several technical corrections. These amendments arebeing proposed to correct inaccuracies and oversights that were promulgated in the final rule. These proposed changes are described in Table 1 of this preamble. We request comment on all of these proposed changes.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is a “significant regulatory action” because it may raise novel legal or policy issues. Accordingly, the EPA submitted this action to the Office of Management and Budget (OMB) for review under Executive Order 12866 and Executive Order 13563 (76 FR 3821, January 21, 2011), and any changes made in response to OMB recommendations have been documented in the docket for this action.

The information collection requirements in this rule have been submitted for approval to the Office of Management and Budget (OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501,et seq.The Information Collection Request (ICR) document prepared by the EPA has been assigned EPA ICR number 2323.03. The information collection requirements are not enforceable until OMB approves them.

The information requirements are based on notification, recordkeeping and reporting requirements in the NESHAP General Provisions (40 CFR part 63, subpart A), which are mandatory for all operators subject to national emission standards. These recordkeeping and reporting requirements are specifically authorized by section 114 of the CAA (42 U.S.C. 7414). All information submitted to the EPA pursuant to the recordkeeping and reporting requirements for which a claim of confidentiality is made is safeguarded according to agency policies set forth in 40 CFR part 2, subpart B.

For this proposed rule, the EPA is adding affirmative defense to the estimate of burden in the ICR. To provide the public with an estimate of the relative magnitude of the burden associated with an assertion of the affirmative defense position adopted by a source, the EPA has provided administrative adjustments to this ICR to show what the notification, recordkeeping and reporting requirements associated with the assertion of the affirmative defense might entail. The EPA's estimate for the required notification, reports and records for any individual incident, including the root cause analysis, totals $2,958 and is based on the time and effort required of a source to review relevant data, interview plant employees, and document the events surrounding a malfunction that has caused an exceedance of an emissions limit. The estimate also includes time to produce and retain the record and reports for submission to the EPA. The EPA provides this illustrative estimate of this burden because these costs are only incurred if there has been a violation and a source chooses to take advantage of the affirmative defense.

Given the variety of circumstances under which malfunctions could occur, as well as differences among sources' operation and maintenance practices, we cannot reliably predict the severity and frequency of malfunction-related excess emissions events for a particular source. It is important to note that the EPA has no basis currently for estimating the number of malfunctions that would qualify for an affirmative defense. Current historical records would be an inappropriate basis, as source owners or operators previously operated their facilities in recognition that they were exempt from the requirement to comply with emissions standards during malfunctions. Of the number of excess emissions events reported by source operators, only a small number would be expected to result from a malfunction (based on the definition above), and only a subset of excess emissions caused by malfunctions would result in the source choosing to assert the affirmative defense. Thus, we believe the number of instances in which source operators might be expected to avail themselves of the affirmative defense will be extremely small. For this reason, we estimate no more than 2 or 3 such occurrences for all sources subject to 40 CFR part 63, subpart VVVVVV over the 3-year period covered by this ICR. We expect to gather information on such events in the future and will revise this estimate as better information becomes available. The annual monitoring, reporting and recordkeeping burden for this collection (averaged over the first 3 years after the effective date of the standards) for these amendments to subpart VVVVVV is estimated to be $3,141 per year. This includes 30 labor hours per year at a total labor cost of $3,141 per year. There is no change in annual burden to the Federal government for these amendments.

An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for the EPA's regulations in 40 CFR are listed in 40 CFR part 9. When these ICR are approved by OMB, the agency will publish a technical amendment to 40 CFR part 9 in theFederal Registerto display the OMB control numbers for the approved information collection requirements contained in the final rules.

To comment on the agency's need for this information, the accuracy of the provided burden estimates, and any suggested methods for minimizing respondent burden, the EPA has established a public docket for this rule, which includes this ICR, under Docket ID number EPA-HQ-OAR-2008-0334. Submit any comments related to the ICR to the EPA and OMB. See theADDRESSES section at the beginning of this notice for where to submit comments to the EPA. Send comments to OMB at the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street NW., Washington, DC 20503, Attention: Desk Office for the EPA. Since OMB is required to make a decision concerning the ICR between 30 and 60 days after March 30, 2012, a comment to OMB is best assured of having its full effect if OMB receives it by February 29, 2012. The final rule will respond to any OMB or public comments on the information collection requirements contained in this proposal.

The Regulatory Flexibility Act generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedures Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.

For purposes of assessing the impacts of this proposed rule on small entities, small entity is defined as: (1) A small business as defined by the Small Business Administration's regulations at 13 CFR 121.201(less than 500, 750 or 1,000 employees, depending on the specific NAICS Code under subcategory 325); (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise that is independently owned and operated and is not dominant in its field.

After considering the economic impacts of this proposed rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. This proposed rule will not impose any new requirements on any small entities because it does not impose any additional regulatory requirements beyond those already promulgated in the final rule. We continue to be interested in the potential impacts of the proposed rule on small entities and welcome comments on issues related to such impacts.

This action contains no Federal mandates under the provisions of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531-1538 for state, local or tribal governments or the private sector. This proposed rule imposes no enforceable duty on any state, local or tribal governments or the private sector. Therefore, this proposed rule is not subject to the requirements of sections 202 and 205 of the UMRA.

This action is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments. This rule proposes amendments to aid with compliance, but does not change the level of the standards in the rule.

This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This proposed rule will not impose direct compliance costs on state or local governments, and will not preempt state law. Thus, Executive Order 13132 does not apply to this action.

In the spirit of Executive Order 13132, and consistent with EPA policy to promote communications between the EPA and state and local governments, the EPA specifically solicits comment on this proposed action from state and local officials.

This proposed rule does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). It will not have substantial direct effects on tribal governments, on the relationship between the Federal government and Indian tribes or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this proposed rule.

The EPA specifically solicits additional comment on this proposed action from tribal officials.

The EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the Executive Order has the potential to influence the regulation. This proposed rule is not subject to Executive Order 13045 because it is based solely on technology performance.

This action is not a “significant energy action” as defined in Executive Order 13211 (66 FR 28355, May 22, 2001), because it is not likely to have a significant adverse effect on the supply, distribution or use of energy. Further, this action does not change the level of standards already in place.

Section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) of 1995, Public Law 104-113, 12(d) (15 U.S.C. 272 note) directs the EPA to use voluntary consensus standards (VCS) in its regulatory activities, unless to do so would be inconsistent with applicable law or otherwise impractical. VCS are technical standards (e.g.,materials specifications, test methods, sampling procedures and business practices) that are developed or adopted by VCS bodies. NTTAA directs the EPA to provide Congress, through OMB, explanations when the agency decides not use available and applicable VCS.

This proposed rulemaking does not involve technical standards. Therefore, the EPA did not consider the use of any VCS.

Executive Order 12898 (59 FR 7629, February 16, 1994) establishes Federal executive policy on environmental justice. Its main provision directs Federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies and activities on minority populations and low-income populations in the United States.

The EPA has determined that this proposed rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it increases the level of environmental protection for all affectedpopulations without having any disproportionately high and adverse human health or environmental effects on any population, including any minority or low-income population. The amendments do not relax the control measures on sources regulated by the rules, and, therefore, will not cause emissions increases from these sources.

For the reasons cited in the preamble, title 40, chapter I, part 63 of the Code of Federal Regulations is proposed to be amended as follows: