61074 Federal Register / Vol. 74, No. 224 / Monday, November 23, 2009 / Proposed Rules 

1 2009 Blue Book Q&A 8, available on PBGC’s 

Web site, http://www.pbgc.gov. Blue Books are 

summaries of the questions and answers discussed 

at meetings between PBGC staff and representatives 

of the Enrolled Actuaries Program Committee in 

preparation for the annual Enrolled Actuaries 

Meetings. The summaries reflect the views of 

individual staff members and do not represent the 

official position of PBGC. 

comments be faxed to the Office of 

Information and Regulatory Affairs, 

OMB, Attn: FDA Desk Officer, FAX: 

202–395–6974. 

VIII. Comments 

Interested persons may submit to the 

Division of Dockets Management (see 

ADDRESSES) written or electronic 

comments regarding this document. 

Submit a single copy of electronic 

comments or two paper copies of any 

mailed comments, except that 

individuals may submit one paper copy. 

Comments are to be identified with the 

docket number found in brackets in the 

heading of this document. Received 

comments may be seen in the Division 

of Dockets Management between 9 a.m. 

and 4 p.m., Monday through Friday. 

List of Subjects in 21 CFR Part 501 

Animal food labeling, Specific animal 

food labeling requirements. 

Therefore, under the Federal Food, 

Drug, and Cosmetic Act and under 

authority delegated to the Commissioner 

of Food and Drugs, it is proposed that 

21 CFR part 501 be amended as follows: 

PART 501—ANIMAL FOOD LABELING 

1. The authority citation for 21 CFR 

part 501 continues to read as follows: 

Authority: 15 U.S.C. 1453, 1454, 1455; 21 

U.S.C. 321, 331, 342, 343, 348, 371. 

2. Section 501.22 is amended by 

adding paragraph (k) to read as follows: 

§ 501.22 Animal foods; labeling of spices, 

flavorings, colorings, and chemical 

preservatives. 

* * * * * 

(k) The label of an animal food to 

which any coloring has been added 

shall declare the coloring in the 

statement of ingredients in the manner 

specified in paragraphs (k)(1) and (k)(2) 

of this section. 

(1) A color additive or the lake of a 

color additive subject to certification 

under section 721(c) of the act shall be 

declared by the name of the color 

additive listed in the applicable 

regulation in part 74 or part 82 of this 

chapter, except that it is not necessary 

to include the ‘‘FD&C’’ prefix or the 

term ‘‘No.’’ in the declaration, but the 

term ‘‘Lake’’ shall be included in the 

declaration of the lake of the certified 

color additive (e.g., Blue 1 Lake). 

Manufacturers may parenthetically 

declare an appropriate alternative name 

of the certified color additive following 

its common or usual name as specified 

in part 74 or part 82 of this chapter. 

(2) Color additives not subject to 

certification may be declared as 

‘‘Artificial Color,’’ ‘‘Artificial Color 

Added,’’ or ‘‘Color Added’’ (or by an 

equally informative term that makes 

clear that a color additive has been used 

in the food). Alternatively, such color 

additives may be declared as ‘‘Colored 

with_______’’ or ‘‘_______ color,’’ the 

blank to be filled with the name of the 

color additive listed in the applicable 

regulation in part 73 of this chapter. 

Dated: November 17, 2009. 

David Horowitz, 

Assistant Commissioner for Policy. 

[FR Doc. E9–27984 Filed 11–20–09; 8:45 am] 

BILLING CODE 4160–01–S 

PENSION BENEFIT GUARANTY 

CORPORATION 

29 CFR Part 4041 

Purchase of Irrevocable Commitments 

Prior to Standard Termination 

AGENCY: Pension Benefit Guaranty 

Corporation. 

ACTION: Request for public comment. 

SUMMARY: Practitioners and employers 

have requested guidance from PBGC on 

the extent to which plan administrators 

may purchase irrevocable commitments 

to provide plan benefits before initiating 

a standard termination under section 

4041(b) of ERISA. PBGC is soliciting 

public comments to help develop this 

guidance. The issues on which PBGC 

seeks comments include the extent to 

which such purchases of irrevocable 

commitments violate statutory and 

regulatory termination requirements, 

safeguards for participants and 

beneficiaries, and sanctions for 

violations. 

DATES: Comments must be received on 

or before January 22, 2010. 

ADDRESSES: Comments may be 

submitted by any of the following 

methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the Web 

site instructions for submitting 

comments. 

• E-mail: reg.comments@pbgc.gov. 

• Fax: 202–326–4224. 

• Mail or Hand Delivery: Legislative 

and Regulatory Department, Pension 

Benefit Guaranty Corporation, 1200 K 

Street, NW., Washington, DC 20005– 

4026. 

Comments received, including personal 

information provided, will be posted to 

http://www.pbgc.gov. Copies of 

comments may also be obtained by 

writing to Disclosure Division, Office of 

the General Counsel, Pension Benefit 

Guaranty Corporation, 1200 K Street, 

NW., Washington, DC 20005–4026 or 

calling 202–326–4040 during normal 

business hours. (TTY and TDD users 

may call the Federal relay service tollfree at 1–800–877–8339 and ask to be 

connected to 202–326–4040.) 

FOR FURTHER INFORMATION CONTACT: 

Constance Markakis or Catherine B. 

Klion, Attorneys, Legislative and 

Regulatory Department, Pension Benefit 

Guaranty Corporation, Suite 12300, 

1200 K Street, NW., Washington, DC 

20005–4026, 202–326–4024. (For TTY– 

TTD users, call the Federal relay service 

toll-free at 1–800–877–8339 and ask to 

be connected to 202–326–4024.) 

SUPPLEMENTARY INFORMATION: PBGC 

administers the termination insurance 

program under Title IV of the Employee 

Retirement Income Security Act of 1974 

(ERISA). Under section 4041(b) of 

ERISA, a plan that has sufficient assets 

to pay all plan liabilities may terminate 

in a standard termination. Standard 

termination requirements (including 

reporting and disclosure requirements 

and restrictions on distributing plan 

assets during the termination process) 

are set forth in the statute, PBGC’s 

regulation on Termination of Single 

Employer Plans, 29 CFR part 4041, and 

termination forms and instructions, 

available on PBGC’s Web site, http:// 

www.pbgc.gov. 

Questions have been raised as to the 

extent to which a plan administrator 

may purchase irrevocable commitments 

for some or all participants during a 

period of time before initiating a 

standard termination. Plans sometimes 

consider purchase of an irrevocable 

commitment (an obligation by an 

insurer to pay benefits) to take 

advantage of favorable interest rates, or 

to gradually prepare for a termination. 

Although PBGC understands these 

considerations, PBGC has concerns 

about whether such purchases could 

circumvent the statutory and regulatory 

protections afforded participants and 

beneficiaries under the standard 

termination process. PBGC has provided 

only limited informal guidance on this 

issue.1 This notice seeks public 

comment to help develop more 

comprehensive guidance. 

Standard Termination Process 

Under part 4041, a single-employer 

plan may terminate in a standard 

termination if, in accordance with 

regulatory requirements, the plan 


jlentini on DSKJ8SOYB1PROD with PROPOSALS
Federal Register / Vol. 74, No. 224 / Monday, November 23, 2009 / Proposed Rules 61075 

2 If the identity-of-insurer information is not 

known at the time the NOIT is issued, the plan must 

provide it in a supplemental notice no later than 45 

days before the distribution date. 

3Under § 4041.29, PBGC will assess a penalty for 

late filing of a post-distribution certification only to 

the extent the certification is filed more than 90 

days after the distribution deadline (including 

extensions). 

administrator provides to affected 

parties a notice of intent to terminate 

(NOIT) and a notice of plan benefits 

(NOPB), files a standard termination 

notice with PBGC, and distributes plan 

assets in satisfaction of plan benefits. 

Disclosure Requirements 

The NOIT must be issued to 

participants, beneficiaries, alternate 

payees, and employee organizations 

representing participants at least 60 

days, and no more than 90 days, before 

the proposed termination date. The 

NOIT must include a statement that 

after plan assets have been distributed 

in full satisfaction of all plan benefits 

for a participant or beneficiary, 

including by the purchase of an 

irrevocable commitment, PBGC no 

longer guarantees the plan benefits. The 

NOIT must include the name and 

address of the insurers from whom (if 

known), or (if not) from among whom, 

the plan administrator intends to 

purchase irrevocable commitments, as 

well as information on state guaranty 

association coverage of annuities.2

The NOPB must be issued to 

participants, beneficiaries, and alternate 

payees no later than the time the 

standard termination notice is filed with 

PBGC. The NOPB must include the 

proposed termination date, the amount 

and form of the person’s plan benefits, 

including the amount and form that 

would be payable at the earliest benefit 

commencement date, and information 

on payment in a lump sum. Except in 

the case of an affected party in pay 

status for more than a year, the NOPB 

must include the personal data needed 

to calculate the affected party’s plan 

benefits, along with a statement 

requesting that the affected party 

promptly correct any information 

believed to be incorrect. If any of the 

personal data needed is not available, 

the NOPB must include the best 

available data, along with a statement 

informing the affected party of the data 

not available and giving the affected 

party an opportunity to provide it. 

Standard Termination Notice 

The plan must file a standard 

termination notice (Form 500) with 

PBGC on or before the 180th day after 

the proposed termination date. The 

standard termination notice includes 

the number of plan participants and 

beneficiaries as of the proposed 

termination date, the estimated fair 

market value of plan assets available to 

pay for plan benefits as of the proposed 

termination date, and the estimated 

present value of plan benefits (including 

the estimated cost of annuity contracts 

to provide plan benefits) as of the 

proposed distribution date. PBGC has 60 

days (unless extended) after receipt of a 

standard termination notice to review 

the proposed termination for 

compliance with applicable 

requirements. 

PBGC will issue a notice of 

noncompliance during the 60-day 

review period whenever it determines 

that the plan administrator failed to 

issue the NOIT or the NOPB in 

accordance with applicable 

requirements, the plan administrator 

failed to file the standard termination 

notice in accordance with applicable 

requirements, or as of the proposed 

distribution date, plan assets will not be 

sufficient to satisfy all plan benefits. 

PBGC may decide not to issue a notice 

of non-compliance based on a failure to 

meet those reporting or disclosure 

requirements if it determines that 

issuance of the notice would be 

inconsistent with the interests of 

participants and beneficiaries. 

Closeout of Plan 

If, by the end of the 60-day review 

period, PBGC does not issue a notice of 

noncompliance, the plan administrator 

must complete the distribution of assets 

to provide all plan benefits under the 

plan within 180 days. (If the plan has 

applied for an IRS determination letter 

by the time the standard termination 

notice is filed, distribution must be 

completed within 120 days after receipt 

of a favorable determination letter.) 

Assets are distributed by purchasing 

irrevocable commitments from an 

insurer or in another permitted form 

under the plan (usually payments of 

lump sums). To comply with Title IV, 

the plan administrator must select the 

insurer in accordance with the fiduciary 

standards of Title I (§ 4041.28(c)(3)). 

If plan benefits are provided through 

the purchase of an irrevocable 

commitment, the plan administrator or 

the insurer must, within 30 days after it 

is available, provide the participant or 

beneficiary with a certificate or a copy 

of the annuity contract. If the certificate 

or contract is not provided within 90 

days after the distribution deadline, the 

plan administrator must, by that date, 

provide the participant or beneficiary 

with a notice containing the insurer’s 

name, address, and contact information. 

The notice must also state that the 

obligation for providing the benefit has 

transferred to the insurer and that the 

participant or beneficiary will receive 

from the plan administrator or insurer a 

certificate or a copy of the annuity 

contract. 

Within 30 days after the last 

distribution date,3 the plan 

administrator must file with PBGC a 

post-distribution certification (Form 

501). The latter must include the names 

of insurers that provided irrevocable 

commitments, numbers of participants 

or beneficiaries for whom irrevocable 

commitments were purchased, and the 

total value of the irrevocable 

commitments. 

Administration of Plan During 

Termination Process 

From the first day the plan 

administrator issues a NOIT in a 

standard termination to the last day of 

PBGC’s 60-day review period, the plan 

administrator may not purchase 

irrevocable commitments to provide any 

plan benefits (§ 4041.22). An exception 

applies if the participant has separated 

from active employment or is otherwise 

permitted under the Code to receive the 

distribution, the distribution is 

consistent with prior plan practice, and 

the distribution is not reasonably 

expected to jeopardize the plan’s 

sufficiency for plan benefits. 

Irrevocable Commitments 

An irrevocable commitment is 

defined in § 4001.2 as ‘‘an obligation by 

an insurer to pay benefits to a named 

participant or surviving beneficiary, if 

the obligation cannot be cancelled 

under the terms of the insurance 

contract (except for fraud or mistake) 

without the consent of the participant or 

beneficiary and is legally enforceable by 

the participant or beneficiary.’’ 

Some plans contain provisions 

permitting the purchase of immediate 

annuity contracts that are irrevocable 

commitments when participants retire. 

Plans may also purchase deferred 

annuity contracts that are irrevocable 

commitments in connection with a plan 

merger, benefit freeze, or spin-off 

termination, to annuitize all or part of 

the accrued benefits of active or 

deferred vested participants. If the plan 

purchases irrevocable commitments in 

those situations, it may hold the 

certificate or give it to the participant. 

A plan may also purchase annuity 

contracts as a funding or investment 

vehicle of the plan (e.g., the contract 

grows at a minimum guaranteed rate 

during the accumulation phase). Such 

contracts are not irrevocable 

commitments and do not transfer the 


jlentini on DSKJ8SOYB1PROD with PROPOSALS
61076 Federal Register / Vol. 74, No. 224 / Monday, November 23, 2009 / Proposed Rules 

4Under IRS regulations, a plan generally is 

required to reflect in the plan’s funding target and 

target normal cost the liability for benefits that are 

funded through insurance contracts held by the 

plan, and to include in plan assets the value of the 

corresponding insurance contracts. A plan is 

permitted, however, to exclude the benefits 

provided under such contracts and the 

corresponding contracts to the extent that a 

participant’s or beneficiary’s right to receive those 

benefits is an ‘‘irrevocable contractual right’’ based 

on premiums paid prior to the valuation date. See 

Treas. Reg. § 1.430(d)–1(c)(2), 74 FR 53004, 53038 

(Oct. 15, 2009). A plan’s election under IRS 

regulations to include or exclude irrevocable 

commitments in the plan’s valuation and minimum 

funding requirements has no bearing on whether 

the individuals for whom the irrevocable 

commitments are purchased are participants for 

purposes of part 4041. In addition, under IRS 

regulations, any payment for the purchase of an 

irrevocable commitment is a ‘‘prohibited payment’’ 

that is subject to certain funding-based limitations 

on accelerated benefit distributions under Code 

section 436(d). Treas. Reg. § 1.436–1(d), 74 FR at 

53083. 

5Under section 4071 of ERISA and PBGC’s 

information penalty regulation (part 4071), PBGC 

may assess a penalty of up to $1,100 a day if 

material information is not timely provided. PBGC’s 

current information penalty policy (60 FR 36837, 

Jul. 18. 1995) provides for a guideline information 

penalty of $25 per day for the first 90 days of 

delinquency and $50 per day thereafter. Penalties 

are reduced proportionately for plans with fewer 

than 100 participants, and the total penalty is 

capped at $100 times the number of plan 

participants. The guideline penalty may be adjusted 

up or down based on the facts and circumstances— 

for example, willful failure to comply, pattern or 

practice of violation, or substantial harm to 

participants or PBGC. PBGC may waive an 

information penalty for ‘‘reasonable cause.’’ 

liability of the plan for benefits to the 

insurance company or extinguish 

PBGC’s obligation to guarantee plan 

benefits. While these contracts are often 

‘‘unallocated’’ group annuity contracts, 

a plan may also purchase such contracts 

to fund individual participants’ benefits. 

An annuity contract may at times be 

cashed in for its surrender value (this 

may occur during the termination 

process if the asset value is not 

diminished). However, a plan may not 

exercise a contract provision for the 

conversion of the contract to irrevocable 

commitments before the end of PBGC’s 

60-day review period, subject to the 

exception in § 4042.22(b) described 

above. Purchase of annuity contracts as 

a funding or investment vehicle of the 

plan does not raise termination 

concerns with PBGC. 

For benefits provided through the 

purchase of irrevocable commitments, 

the distribution date is the date on 

which the obligation to provide the 

benefits passes from the plan to the 

insurer. Once an insurer has made an 

irrevocable commitment to pay all 

benefits to which a participant who is 

retired or separated from employment is 

entitled under the plan and who is 

either receiving plan benefits or entitled 

to begin receiving plan benefits in the 

future, the individual ceases to be a 

participant for purposes of part 4041 

(§ 4041.2).4 Similarly, an individual 

ceases to be a beneficiary under the plan 

for such purposes once an insurer 

makes an irrevocable commitment to 

provide all the plan benefits to which 

the beneficiary is entitled. 

Audit and Enforcement 

PBGC currently conducts posttermination audits of all plans that 

terminate in a standard termination 

with a participant count of 300 or more. 

For plans with fewer than 300 

participants, PBGC randomly selects 

plans to audit. PBGC also may audit a 

plan when the agency has reason to 

believe there may be a problem. The 

focus of the standard termination audits 

is to ensure that participants receive the 

benefits to which they were entitled. 

PBGC also audits compliance with 

termination disclosure and reporting 

requirements. Failure to provide 

required termination-related notices and 

disclosures is subject to information 

penalties under section 4071 of ERISA.5

Starting in 2006, PBGC has been 

auditing all plans that make a final 

distribution of plan assets before or 

without filing a standard termination 

notice in accordance with the standard 

termination regulations. After PBGC 

identifies such a plan, generally when it 

fails to pay premiums, it requires the 

plan to file a standard termination 

notice and post-distribution 

certification. PBGC can have difficulty, 

however, identifying plans that 

purchase irrevocable commitments prior 

to termination, particularly when the 

irrevocable commitments are purchased 

for a group of participants (e.g., retirees), 

but not all participants. 

Section 4044.4 of PBGC’s regulation 

on Allocation of Assets in SingleEmployer Plans (part 4044) provides 

that a distribution in anticipation of 

termination is considered to be an 

allocation of plan assets upon 

termination. A plan administrator 

violates ERISA if plan assets are 

allocated or distributed upon plan 

termination in a manner other than that 

prescribed under section 4044 of ERISA 

and part 4044. The anticipation-oftermination rules generally do not come 

into play where the plan terminates in 

a standard termination. Those rules 

could be relevant, however, where plan 

assets are not sufficient to pay plan 

benefits at the time of any distribution 

upon termination. 

PBGC Concerns 

ERISA section 4041(a) provides that 

the rules in section 4041(b) for a 

standard termination or in section 

4041(c) for a distress termination are the 

exclusive means by which a singleemployer plan may voluntarily 

terminate. Under section 4041(b), PBGC 

must issue a notice of noncompliance to 

the plan administrator if it determines 

that participants and beneficiaries have 

not received all required notices and 

information or that there is reason to 

believe that the plan is not sufficient for 

benefit liabilities. PBGC has two 

substantial concerns when a plan 

purchases irrevocable commitments 

before initiating a related standard 

termination. 

The first concern is that the purchase 

circumvents the statutory and regulatory 

protections afforded under the standard 

termination process. A participant 

whose plan benefits are fully satisfied 

through purchase of an irrevocable 

commitment prior to the first day a 

NOIT is issued in a related termination 

would not receive disclosures required 

as part of the standard termination 

process, including advance notice of the 

termination, advance information about 

the insurer, and a statement that PBGC 

no longer guarantees those plan 

benefits. Such participants may not 

have the same opportunity to correct 

personal information used to calculate 

their benefits or provide personal data 

not available to the plan. In addition, 

PBGC would not receive information 

necessary to determine whether 

participants received the correct 

benefits, including information on the 

number of persons for whom irrevocable 

commitments were purchased and the 

benefits provided through the purchase 

of irrevocable commitments. 

The second concern is that plan assets 

could be insufficient for plan benefits at 

the time of any distribution upon 

termination, since plan assets used to 

purchase irrevocable commitments (and 

the investment returns on those assets) 

would no longer be available to pay 

other plan benefits. If the plan was 

sufficient for guaranteed benefits, it 

might still terminate as a distress 

termination, but some participants 

would lose nonguaranteed benefits. If 

the plan was not sufficient for 

guaranteed benefits, PBGC might have 

to terminate and trustee the plan, and 

some participants and PBGC could be 

harmed. This concern generally does 

not arise with irrevocable commitments 

purchased after the first day a NOIT is 

provided, because the exception in 

§ 4041.22(b) applies only if the 

distribution is not reasonably expected 

to jeopardize the plan’s sufficiency. 

Neither concern applies if a plan 

purchases an annuity contract as a 

funding or investment vehicle of the 


jlentini on DSKJ8SOYB1PROD with PROPOSALS
Federal Register / Vol. 74, No. 224 / Monday, November 23, 2009 / Proposed Rules 61077 

6 2007 Blue Book Q&A 6 provides informal 

guidance that PBGC staff interprets § 4041.24(a) as 

not requiring a plan administrator to issue a NOPB 

to a participant whose benefits are paid out in 

accordance with § 4041.22 on or before the due date 

for issuing the NOPB. However, the Instructions to 

Form 501 provide that the post-distribution 

certification must include such participants and 

beneficiaries for whom annuities are purchased 

after the plan’s termination date in the normal 

course of business, including a certification of their 

distributions by category and amount (see also, 

2008 Blue Book Q&A 7). 2009 Blue Book Q&A 11 

provides informal guidance that a standard 

termination audit will generally cover any 

participant or beneficiary who is an affected party 

as of the plan’s termination date, regardless of the 

timing of the distribution for that affected party. 

plan before or after the NOIT is 

provided, so long as it is not an 

irrevocable commitment. However, the 

same concerns would arise if the plan 

converted such a contract to irrevocable 

commitments before or after initiating a 

standard termination. 

Request for Comments 

PBGC is soliciting comments on 

issues related to a purchase of 

irrevocable commitments before the 

initiation of a standard termination. 

PBGC seeks comments on any and all 

relevant issues, including the following: 

(1) Factors PBGC should take into account 

in determining whether a purchase of 

irrevocable commitments before the 

initiation of a standard termination is related 

to (i.e., in preparation of) the standard 

termination (e.g., plan annuitizes plan 

benefits of all retirees or terminated vested 

participants with no connection to any other 

plan transaction, such as a merger). 

(2) Whether there should be a rebuttable 

presumption that a purchase of irrevocable 

commitments made within a specific time 

period (e.g., a year) before the first day a 

NOIT is issued in a standard termination is 

related to a standard termination and if so, 

what time period. 

(3) Whether there should be a safe harbor 

for a purchase of irrevocable commitments 

under specified circumstances before the first 

day a NOIT is issued in a standard 

termination. If so, what time period should 

apply (e.g., one year, two years, or three years 

before a NOIT is issued)? Whether a safe 

harbor should be conditioned on the purpose 

of the purchase (e.g., to lock in rates with an 

insurer in order to ensure plan sufficiency). 

Whether a safe harbor should be limited to 

plans in which the plan assets exceed plan 

benefits by a certain margin. If so, by what 

margin and as of what date? What reporting 

and disclosure requirements should be 

required with a safe harbor? 

(4) How PBGC can better identify plans 

that purchase irrevocable commitments for 

some or all participants shortly before 

initiating a standard termination. 

(5) Appropriate enforcement actions in the 

case of a purchase of irrevocable 

commitments before the initiation of a 

related standard termination. 

(6) Appropriate information penalties for 

failures to provide notices and disclosures 

required as part of the termination process, 

including guideline information penalty 

amounts, and aggravating and mitigating 

factors (e.g., before purchasing irrevocable 

commitments, the plan administrator 

provided participants with the information 

required in the NOIT and NOPB, or the plan 

reported information to PBGC about 

irrevocable commitments purchased). 

(7) In the case of a permissible purchase of 

irrevocable commitments in accordance with 

§ 4041.22(b) made after a NOIT is issued, 

what information should the plan be required 

to provide to participants? To PBGC? 6

(8) What are employers’ experiences with 

‘‘locking in’’ rates for purchases of 

irrevocable commitments? What are the costs 

of locking in rates and how long do lockedin rates remain in effect? In the case of 

annuity contracts that are purchased as an 

investment vehicle, can plans lock in rates 

for the conversion of these contracts to 

irrevocable commitments at a future date and 

if so, at what costs and for how long? 

Issued in Washington, DC, this 18th day of 

November 2009. 

Vincent K. Snowbarger, 

Acting Director, Pension Benefit Guaranty 

Corporation. 

[FR Doc. E9–28102 Filed 11–20–09; 8:45 am] 

BILLING CODE 7709–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 63 

[EPA–R01–OAR–2009–0031; A–1–FRL– 

8974–6] 

Approval of the Clean Air Act, Section 

112(l), Authority for Hazardous Air 

Pollutants: Perchloroethylene Air 

Emission Standards for Dry Cleaning 

Facilities: Commonwealth of 

Massachusetts Department of 

Environmental Protection 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA proposes to approve 

Massachusetts Department of 

Environmental Protection’s 

(‘‘MassDEP’’) request to implement and 

enforce the amended 310 CMR 70.00 

Environmental Results Program (‘‘ERP’’) 

Certification and the amended 7.26(10)– 

(16) Perchloroethylene Air Emissions 

Standards for Dry Cleaning Facilities 

(together referred to as the ‘‘amended 

Dry Cleaner ERP’’) as a partial 

substitution for the amended National 

Emissions Standards for Hazardous Air 

Pollutants for Perchloroethylene Dry 

Cleaning Facilities (‘‘Dry Cleaning 

NESHAP’’), as it applies to area sources. 

This approval would make the 

Massachusetts Department of 

Environmental Protection’s amended 

rules federally enforceable. Major 

sources would remain subject to the 

Federal Dry Cleaning NESHAP. In 

addition, dry cleaners installed in a 

building with a residence between 

December 21, 2005 and July 13, 2006 

would remain subject to the Federal Dry 

Cleaning NESHAP. 

DATES: Written comments must be 

received on or before December 23, 

2009. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R01– 

OAR–2009–0031 by one of the following 

methods: 

1. http://www.regulations.gov: Follow 

the on-line instructions for submitting 

comments. 

2. E-mail: mcdonnell.ida@epa.gov. 

3. Fax: (617) 918–0653. 

4. Mail: ‘‘EPA–R01–OAR–2009– 

0031’’, Ida McDonnell, U.S. 

Environmental Protection Agency, EPA 

New England Regional Office, One 

Congress Street, Suite 1100 (mail code 

CAP), Boston, MA 02114–2023. 

5. Hand Delivery or Courier: Deliver 

your comments to: Ida McDonnell, 

Acting Manager, Air Permits, Toxics 

and Indoor Programs Unit, Office of 

Ecosystem Protection, U.S. 

Environmental Protection Agency, EPA 

New England Regional Office, One 

Congress Street, 11th floor, (CAP), 

Boston, MA 02114–2023. Such 

deliveries are only accepted during the 

Regional Office’s normal hours of 

operation. The Regional Office’s official 

hours of business are Monday through 

Friday, 8:30 to 4:30, excluding legal 

holidays. 

Please see the direct final rule which 

is located in the Rules Section of this 

Federal Register for detailed 

instructions on how to submit 

comments. EPA will forward copies of 

all submitted comments to the 

Massachusetts Department of 

Environmental Protection. 

FOR FURTHER INFORMATION CONTACT: 

Susan Lancey, Air Permits, Toxics and 

Indoor Programs Unit, Office of 

Ecosystem Protection, U.S. 

Environmental Protection Agency, EPA 

New England Regional Office, One 

Congress Street, Suite 1100 (CAP), 

Boston, MA 02114–2023, telephone 

number (617) 918–1656, fax number 

(617) 918–0656, e-mail 

lancey.susan@epa.gov. 

SUPPLEMENTARY INFORMATION: In the 

Final Rules Section of this Federal 

Register, EPA is approving the 

Commonwealth of Massachusetts’ 

Section 112(l) submittal as a direct final 


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