17548 Federal Register / Vol. 76, No. 61 / Wednesday, March 30, 2011 / Rules and Regulations 

except for claims over which the Board 

has original jurisdiction. 

(c) Remand for a Statement of the 

Case. In cases before the Board in which 

a claimant has timely filed a Notice of 

Disagreement with a determination of 

the agency of original jurisdiction on a 

claim, but the record reflects that the 

agency of original jurisdiction has not 

subsequently granted the claim in full 

and has not furnished the claimant with 

a Statement of the Case, the Board shall 

remand the claim to the agency of 

original jurisdiction with instructions to 

prepare and issue a Statement of the 

Case in accordance with the provisions 

of subpart B of this part. A remand for 

a Statement of the Case is not required 

if the claimant, consistent with the 

withdrawal requirements of § 20.204 of 

this chapter, withdraws the Notice of 

Disagreement. 

(d) Exceptions. A remand or referral 

to the agency of original jurisdiction is 

not necessary for any of the following 

purposes: 

(1) Clarifying a procedural matter 

before the Board, including the 

appellant’s choice of representative 

before the Board, the issues on appeal, 

or requests for a hearing before the 

Board; 

(2) Considering law not already 

considered by the agency of original 

jurisdiction, including, but not limited 

to, statutes, regulations, and court 

decisions; 

(3) Reviewing additional evidence 

received by the Board, if, pursuant to 

§ 20.1304(c) of this chapter, the 

appellant or the appellant’s 

representative waives the right to initial 

consideration by the agency of original 

jurisdiction, or if the Board determines 

that the benefit or benefits to which the 

evidence relates may be fully allowed 

on appeal; 

(4) Requesting an opinion under 

§ 20.901 of this chapter; 

(5) Supplementing the record with a 

recognized medical treatise; or 

(6) Considering a matter over which 

the Board has original jurisdiction. 

(Authority: 38 U.S.C. 7102, 7103(c), 7104(a), 

7105). 

PART 20—BOARD OF VETERANS’ 

APPEALS: RULES OF PRACTICE 

■ 3. The authority citation for part 20 

continues to read as follows: 

Authority: 38 U.S.C. 501(a) and as noted 

in specific sections. 

Subpart J—Action by the Board 

■ 4. Amend § 20.903 by: 

■ a. Revising the section heading. 

■ b. Revising paragraph (b). 

The revisions read as follows: 

§ 20.903 Rule 903. Notification of evidence 

to be considered by the Board and 

opportunity for response. 

* * * * * 

(b) If the Board supplements the 

record with a recognized medical 

treatise—(1) General. If, pursuant to 

§ 19.9(d)(5) of this chapter, the Board 

supplements the record with a 

recognized medical treatise, the Board 

will notify the appellant and his or her 

representative, if any, that the Board 

will consider such recognized medical 

treatise in the adjudication of the 

appeal. The notice from the Board will 

contain a copy of the relevant portions 

of the recognized medical treatise. The 

appellant will be given 60 days after the 

date of the notice described in this 

section to file a response, which may 

include the submission of relevant 

evidence or argument. The date the 

Board gives the notice will be presumed 

to be the same as the date of the notice 

letter for purposes of determining 

whether a response was timely filed. 

(2) Exception. The notice described in 

paragraph (b)(1) of this section is not 

required if the Board uses a recognized 

medical treatise or medical dictionary 

for the limited purpose of defining a 

medical term and that definition is not 

material to the Board’s disposition of 

the appeal. 

■ 5. In § 20.1304, revise paragraph (b)(2) 

to read as follows: 

§ 20.1304 Rule 1304. Request for change 

in representation, request for personal 

hearing, or submission of additional 

evidence following certification of an appeal 

to the Board of Veterans’ Appeals. 

* * * * * 

(b) * * * 

(2) Exception. The motion described 

in paragraph (b)(1) of this section is not 

required to submit evidence in response 

to a notice described in § 20.903 of this 

chapter. 

* * * * * 

[FR Doc. 2011–7395 Filed 3–29–11; 8:45 am] 

BILLING CODE 8320–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 51 and 52 

[EPA–HQ–OAR–2004–0014: FRL–9280–8] 

RIN 2060–AQ73 

Prevention of Significant Deterioration 

(PSD) and Nonattainment New Source 

Review (NSR): Reconsideration of 

Inclusion of Fugitive Emissions; 

Interim Rule; Stay and Revisions 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Interim rule; stay and revisions. 

SUMMARY: EPA is taking an interim 

action to effectuate and extend a stay of 

the final rule entitled ‘‘Prevention of 

Significant Deterioration (PSD) and 

Nonattainment New Source Review 

(NSR): Reconsideration of Inclusion of 

Fugitive Emissions’’ (‘‘Fugitive 

Emissions Rule’’) published in the 

Federal Register on December 19, 2008. 

The Fugitive Emissions Rule under the 

Federal NSR program required that 

fugitive emissions be included in 

determining whether a physical or 

operational change results in a major 

modification only for sources in 

designated industries. EPA issued a stay 

of the Fugitive Emissions Rule on March 

31, 2010, that was effective for 18 

months through October 3, 2011. This 

action supersedes the stay and thereby 

corrects potential confusion caused by 

that stay. To effectuate a stay of the 

Fugitive Emissions Rule, this action 

clarifies the stay and the revisions of 

specific paragraphs in the NSR 

regulations that were affected by the 

Fugitive Emissions Rule. This action 

also extends the stay until EPA 

completes its reconsideration of the 

Fugitive Emissions Rule. 

DATES: Effective date: This interim rule 

is effective March 30, 2011. 

The administrative stay of provisions 

in 40 CFR 51.165, 51.166, Appendix S 

to part 51, and 40 CFR 52.21 published 

on March 31, 2010 (75 FR 16012) is 

lifted; and 

The following Code of Federal 

Regulations sections are stayed 

indefinitely: 40 CFR 51.165(a)(1)(v)(G) 

and (a)(1)(vi)(C)(3); 51.166(b)(2)(v) and 

(b)(3)(iii)(d); Appendix S to Part 51, 

Paragraph II.A.5(vii); and 52.21(b)(2)(v) 

and (b)(3)(iii)(c). The EPA will publish 

a document in the Federal Register 

lifting this stay. 

Comment date: Comments must be 

received on or before April 29, 2011. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–HQ– 

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Federal Register / Vol. 76, No. 61 / Wednesday, March 30, 2011 / Rules and Regulations 17549 

OAR–2004–0014, by one of the 

following methods: 

• http://www.regulations.gov. Follow 

the online instructions for submitting 

comments. 

• E-mail: a-and-r-docket@epa.gov. 

• Fax: (202) 566–1741. 

• Mail: Air and Radiation Docket, 

Environmental Protection Agency, Mail 

code 6102T, 1200 Pennsylvania Avenue, 

NW., Washington, DC 20460. 

• Hand Delivery: EPA Docket Center, 

Public Reading Room, EPA West, Room 

3334, 1301 Constitution Ave., NW., 

Washington, DC 20460. Such deliveries 

are only accepted during the Docket’s 

normal hours of operation, and special 

arrangements should be made for 

deliveries of boxed information. 

Instructions: Direct your comments to 

the applicable docket. EPA’s policy is 

that all comments received will be 

included in the public docket without 

change and may be made available 

online at http://www.regulations.gov, 

including any personal information 

provided, unless the comment includes 

information claimed to be Confidential 

Business Information (CBI) or other 

information whose disclosure is 

restricted by statute. Do not submit 

information that you consider to be CBI 

or otherwise protected through http:// 

www.regulations.gov or e-mail. The 

http://www.regulations.gov Web site is 

an ‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail comment directly 

to EPA without going through http:// 

www.regulations.gov, your e-mail 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. 

Docket: All documents in the docket 

are listed in the http:// 

www.regulations.gov index. Although 

listed in the index, some information is 

not publicly available, e.g., CBI or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

is not placed on the Internet and will be 

publicly available only in hard copy 

form. Publicly available docket 

materials are available either 

electronically through http:// 

www.regulations.gov or in hard copy at 

the EPA Docket Center, Public Reading 

Room, EPA West, Room 3334, 1301 

Constitution Ave., NW., Washington, 

DC 20460. The Public Reading Room is 

open from 8:30 a.m. to 4:30 p.m., 

Monday through Friday, excluding legal 

holidays. The telephone number for the 

Public Reading Room is (202) 566–1742, 

and the telephone number for the Air 

Docket is (202) 566–1744. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Peter Keller, Air Quality Policy 

Division, (C504–03), U.S. 

Environmental Protection Agency, 

Research Triangle Park, NC 27711; 

telephone number (919) 541–5339; fax 

number (919) 541–5509; or e-mail 

address: keller.peter@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. General Information 

A. Does this action apply to me? 

Entities potentially affected by this 

action include sources in all industry 

groups. The majority of sources 

potentially affected are expected to be in 

the following groups. 

Industry group SIC a NAICSb

Electric Services .................................................................................................................... 491 221111, 221112, 221113, 221119, 

221121, 221122 

Petroleum Refining ................................................................................................................ 291 324110 

Industrial Inorganic Chemicals .............................................................................................. 281 325181, 325120, 325131, 325182, 

211112, 325998, 331311, 

325188 

Industrial Organic Chemicals ................................................................................................ 286 325110, 325132, 325192, 325188, 

325193, 325120, 325199 

Miscellaneous Chemical Products ........................................................................................ 289 325520, 325920, 325910, 325182, 

325510 

Natural Gas Liquids ............................................................................................................... 132 211112 

Natural Gas Transport ........................................................................................................... 492 486210, 221210 

Pulp and Paper Mills ............................................................................................................. 261 322110, 322121, 322122, 322130 

Paper Mills ............................................................................................................................. 262 322121, 322122 

Automobile Manufacturing ..................................................................................................... 371 336111, 336112, 336211, 336992, 

336322, 336312, 336330, 

336340, 336350, 336399, 

336212, 336213 

Pharmaceuticals .................................................................................................................... 283 325411, 325412, 325413, 325414 

Mining .................................................................................................................................... 211, 212, 213 21 

Agriculture, Fishing and Hunting ........................................................................................... 111, 112, 113, 

115 

11 

aStandard Industrial Classification 

b North American Industry Classification System. 

Entities potentially affected by this 

action also include state, local, and 

tribal governments. 

B. What should I consider as I prepare 

my comments for EPA? 

1. Submitting CBI. Do not submit 

information containing CBI to EPA 

through http://www.regulations.gov or 

e-mail. Send or deliver information 

identified as CBI only to the following 

address: Mr. Roberto Morales, OAQPS 

Document Control Officer (C404–02), 

U.S. EPA, Office of Air Quality Planning 

and Standards, Research Triangle Park, 

North Carolina 27711, Attention: Docket 

ID EPA–HQ–OAR–2004–0014. 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 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 

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17550 Federal Register / Vol. 76, No. 61 / Wednesday, March 30, 2011 / Rules and Regulations 

1 John Walke, NRDC, EPA–HQ–OAR–2004–0014– 

0060. 

2Lisa Jackson, US EPA, EPA–HQ–OAR–2004– 

0014–0062. 

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. Information so marked 

will not be disclosed except in 

accordance with procedures set forth in 

40 CFR part 2. 

2. Tips for Preparing Your Comments. 

When submitting your comments, 

remember to: 

• Identify the rulemaking by docket 

number and other identifying 

information (subject heading, Federal 

Register date and page number). 

• Follow directions—The Agency 

may ask you to respond to specific 

questions or organize comments by 

referencing a Code of Federal 

Regulations (CFR) part or section 

number. 

• Explain why you agree or disagree, 

suggest alternatives, and substitute 

language for your requested changes. 

• If you estimate potential costs or 

burdens, explain how you arrived at 

your estimate in sufficient detail to 

allow for it to be reproduced. 

• Provide specific examples to 

illustrate your concerns, and suggest 

alternatives. 

• Explain your views as clearly as 

possible, avoiding the use of profanity 

or personal threats. 

• Make sure to submit your 

comments by the comment period 

deadline identified. 

C. Where can I get a copy of this 

document and other related 

information? 

In addition to being available in the 

docket, an electronic copy of this 

interim rule will also be available on the 

World Wide Web. Following signature 

by the EPA Administrator, a copy of this 

interim rule will be posted in the 

regulations and standards section of our 

NSR home page located at http:// 

www.epa.gov/nsr. 

D. How is this preamble organized? 

I. General Information 

A. Does this action apply to me? 

B. What should I consider as I prepare my 

comments for EPA? 

C. Where can I get a copy of this document 

and other related information? 

D. How is this preamble organized? 

II. Background Information 

III. This Action 

A. Why is EPA staying, reinstating, or 

revising, as appropriate, the regulatory 

text in specific paragraphs affected by 

the Fugitive Emissions Rule? 

B. Why is EPA issuing an interim rule? 

C. What specific revisions are being made? 

IV. Fugitive Emissions Rule Reconsideration 

V. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act 

D. Unfunded Mandates Reform Act 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation 

and Coordination with Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children from Environmental Health and 

Safety Risks 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. National Technology Transfer and 

Advancement Act 

J. Executive Order 12898: Federal Actions 

to Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

K. Congressional Review Act 

VI. Statutory Authority 

II. Background Information 

On December 19, 2008, EPA (‘‘we’’) 

issued a final rule revising the 

requirements of the major NSR 

programs regarding the treatment of 

fugitive emissions (‘‘Fugitive Emissions 

Rule’’) 73 FR 77882. The final rule 

required fugitive emissions to be 

included in determining whether a 

physical or operational change results in 

a major modification only for sources in 

industries that have been designated 

through rulemaking under section 302(j) 

of the Clean Air Act (Act or CAA). 

Previously, EPA rules required that 

fugitive emissions be included in major 

modification applicability 

determinations for all source categories. 

The final rule amended all portions of 

the major NSR program regulations: 

Permit requirements, the PSD program, 

and the emission offset interpretive 

ruling. 

On February 17, 2009, the Natural 

Resources Defense Council (NRDC) 

submitted a petition for reconsideration 

of the December 2008 final rule as 

provided for in CAA 307(d)(7)(B).1

On April 24, 2009, we responded to 

the February 17, 2009, petition by letter 

indicating that we were convening a 

reconsideration proceeding for the 

December 2008 rule on inclusion of 

fugitive emissions challenged in the 

petition and granting a 3-month 

administrative stay of the rule contained 

in the federal NSR program at 40 CFR 

parts 51 and 52. The letter also 

indicated that we would publish a 

notice of proposed rulemaking ‘‘in the 

near future’’ to address the specific 

issues for which we were granting 

reconsideration.2

The initial 3-month administrative 

stay of the Fugitive Emissions Rule 

became effective on September 30, 2009. 

See 74 FR 50115. An interim final rule 

extending the stay for an additional 3 

months became effective on December 

31, 2009. See 74 FR 65692. An 

additional 18 month stay was finalized 

on March 31, 2010, and ends on October 

3, 2011. See 75 FR 16012. That stay was 

put in place to allow sufficient time for 

EPA to propose, take public comment 

on, and issue a final action concerning 

the inclusion of fugitive emissions in 

the Federal NSR program. 

III. This Action 

A. Why is EPA staying, reinstating, or 

revising, as appropriate, the regulatory 

text in specific paragraphs affected by 

the Fugitive Emissions Rule? 

The initial stay of the Fugitive 

Emissions Rule, put in place on 

September 30, 2009, may have caused 

confusion as to the scope of the stay. In 

staying the Fugitive Emissions Rule, 

EPA reinstated the NSR regulations as 

they existed prior to the Fugitive 

Emissions Rule. In particular, we stated: 

‘‘To effectuate this stay of the December 

19, 2008, rule, we are reinstating 

previous provisions on a temporary 

basis.’’ See 74 FR at 50115–16. In several 

cases, however, paragraphs of the 

affected regulations in 40 CFR 51.165, 

40 CFR 51.166, 40 CFR 51 Appendix S, 

and 40 CFR 52.21 appeared to be stayed 

in their entirety rather than amended to 

undo the changes made by the Fugitive 

Emissions Rule as intended. The 

subsequent extensions of the stay used 

the same terms as the stay published on 

September 30, 2009, and accordingly 

did not correct the ambiguity created by 

the original promulgation of the stay. 

This action clarifies the regulations to 

accurately reflect EPA’s intent to revert 

back to the regulation text that existed 

prior to the Fugitive Emissions Rule 

amendments to the Federal NSR 

regulations. 

B. Why is EPA issuing an interim rule? 

We are issuing an interim rule to 

effectuate a stay of the Fugitive 

Emissions Rule. This interim rule 

supersedes the stay issued on March 31, 

2010, and thereby corrects ambiguity 

contained in that stay. EPA is using the 

‘‘good cause’’ exemption under the 

Administrative Procedure Act (APA) to 

take the actions set forth in this interim 

rule without prior notice and comment. 

See 5 U.S.C. 553(b)(3)(B). Section 553(b) 

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Federal Register / Vol. 76, No. 61 / Wednesday, March 30, 2011 / Rules and Regulations 17551 

of the APA generally requires that any 

rule to which it applies be issued only 

after the public has received notice of, 

and had an opportunity to comment on, 

the proposed rule. However, section 

553(b)(3)(B) exempts from those 

requirements any rule for which the 

issuing agency for good cause finds that 

providing prior notice and comment 

would be impracticable, unnecessary, or 

contrary to the public interest. Thus, 

any rule for which EPA makes such a 

finding is exempt from the notice and 

comment requirements of section 

553(b). 

We believe that the circumstances 

here provide good cause to take the 

actions set forth in this interim rule 

without prior notice and comment, 

because providing prior notice and 

comment would be unnecessary and 

contrary to the public interest. 

With this action, EPA is simply 

staying the provisions of the Fugitive 

Emissions Rule consistent with our 

original intent, which we believe was 

broadly understood. We believe that 

soliciting public comment on this 

interim rule prior to making it effective 

would be contrary to the public interest 

because it is in the public interest to 

correct the ambiguity contained in the 

current stay as expeditiously as possible 

to avoid potential confusion regarding 

the regulatory text. The NSR program is 

a vital component of the Act’s regime 

for protecting public health, and it is in 

the public’s interest that the 

requirements of the program be clear 

and unambiguous. 

EPA is also using the APA’s good 

cause exception to make this interim 

rule immediately effective. See 5 U.S.C. 

553(d)(3). Section 553(d) of the APA 

generally provides that rules may not 

take effect earlier than 30 days after they 

are published in the Federal Register. 

However, section 553(d)(3) provides 

that if the issuing agency has made a 

finding of good cause and has published 

its reasoning with the rule, the rule may 

take effect earlier. EPA has determined 

that good cause exists to stay, reinstate, 

and revise, as appropriate, certain 

paragraphs in 40 CFR parts 51 and 52 

by interim rule without prior notice and 

comment, because prior notice and 

comment would be unnecessary and 

contrary to the public interest for the 

reasons stated above. Based on this 

determination, EPA is making this 

interim rule effective immediately. 

Notwithstanding EPA’s ‘‘good cause’’ 

finding, we are providing a 30-day 

public comment period for this interim 

rule, and upon reviewing and 

considering comments received, we will 

issue a final rule either affirming the 

interim rule or affirming the interim 

rule with revisions. 

C. What specific revisions are being 

made? 

We are issuing this interim rule to: 

• Stay the following paragraphs: 40 

CFR 51.165(a)(1)(v)(G) and 

(a)(1)(vi)(C)(3), 40 CFR 51.166(b)(2)(v) 

and (b)(3)(iii)(d), 40 CFR 51 Appendix S 

II.A.5(vii), and 40 CFR 52.21 (b)(2)(v) 

and (b)(3)(iii)(c); 

• Reinstate the following paragraphs: 

40 CFR 51.165(a)(4), 40 CFR 

51.166(i)(1)(ii), 40 CFR 51 Appendix S 

II.F, and 40 CFR 52.21(i)(1)(vii); and 

• Revise the following paragraphs to 

revert back to the regulatory text that 

existed prior to the Fugitive Emissions 

Rule amendments: 40 CFR 

51.165(a)(1)(ix), (a)(1)(xxviii)(B)(2), 

(a)(1)(xxviii)(B)(4), (a)(1)(xxxv)(A)(1), 

(a)(1)(xxxv)(B)(1), (a)(1)(xxxv)(C), 

(a)(1)(xxxv)(D), (a)(2)(ii)(B), (a)(6)(iii), 

(a)(6)(iv), and (f)(4)(i)(D); 40 CFR 

51.166(a)(7)(iv)(b), (b)(3)(iii)(c), (b)(20), 

(b)(40)(ii)(b), (b)(40)(ii)(d), (b)(47)(i)(a), 

(b)(47)(ii)(a), (b)(47)(iii), (b)(47)(iv), 

(r)(6)(iii), (r)(6)(iv), and (w)(4)(i)(d); 40 

CFR 51 Appendix S II.A.6(iii), II.A.9, 

II.A.24(ii)(b), II.A.24(ii)(d), II.A.30(i)(a), 

II.A.30(ii)(a), II.A.30(iii), II.A.30(iv), 

IV.I.1(ii), IV.J.3, IV.J.4, and IV.K.4(i)(d); 

and 40 CFR 52.21(a)(2)(iv)(b), 

(b)(3)(iii)(b), (b)(20), (b)(41)(ii)(b), 

(b)(41)(ii)(d), (b)(48)(i)(a), (b)(48)(ii)(a), 

(b)(48)(iii), (b)(48)(iv), (r)(6)(iii), 

(r)(6)(iv), and (aa)(4)(i)(d). 

The overall effect of this action is to 

revert the treatment of fugitive 

emissions in applicability 

determinations to the approach that 

applied prior to the Fugitive Emissions 

Rule on an interim basis, while EPA 

completes the reconsideration. 

IV. Fugitive Emissions Rule 

Reconsideration 

Following the public comment 

period, EPA will issue a final rule either 

affirming the interim rule or affirming 

the interim rule with changes. The final 

rule will be in effect until EPA 

completes its reconsideration of the 

Fugitive Emissions Rule. We intend to 

propose and finalize a rule based on the 

results of the reconsideration by October 

4, 2012. 

V. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

This action is not a ‘‘significant 

regulatory action’’ under Executive 

Order (EO) 12866 (58 FR 51735, October 

4, 1993), because it does not raise novel 

legal or policy issues. Accordingly, this 

action is not subject to review under EO 

12866. 

B. Paperwork Reduction Act 

This action does not impose any new 

information collection burden under the 

provisions of the Paperwork Reduction 

Act, 44 U.S.C. 3501 et seq. Burden is 

defined at 5 CFR 1320.3(b). This action 

only corrects inadvertent errors in the 

existing stay of the regulations at 40 

CFR parts 51 and 52 concerning the 

inclusion of fugitive emissions and 

further stays the regulations until EPA 

completes its reconsideration. 

The Office of Management and Budget 

(OMB) has previously approved the 

information collection requirements 

contained in the existing regulations (40 

CFR parts 51 and 52) under the 

provisions of the Paperwork Reduction 

Act, 44 U.S.C. 3501 et seq., and has 

assigned OMB control number 2060– 

0003. The OMB control numbers for 

EPA’s regulations in 40 CFR are listed 

in 40 CFR part 9. 

C. Regulatory Flexibility Act 

This interim rule is not subject to the 

Regulatory Flexibility Act (RFA), which 

generally requires an agency to prepare 

a regulatory flexibility analysis for any 

rule that will have a significant 

economic impact on a substantial 

number of small entities. The RFA 

applies only to rules subject to notice 

and comment rulemaking requirements 

under the APA or any other statute. This 

rule is not subject to notice and 

comment requirements under the APA 

or any other statute because, although 

the rule is subject to the APA, the 

Agency has invoked the ‘‘good cause’’ 

exemption under 5 U.S.C. 553(b), 

therefore it is not subject to the notice 

and comment requirement. 

D. Unfunded Mandates Reform Act 

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 

action only corrects inadvertent errors 

in the existing stay of the regulations at 

40 CFR parts 51 and 52 concerning the 

inclusion of fugitive emissions and 

further stays the regulations until EPA 

completes its reconsideration. 

Therefore, this action is not subject to 

the requirements of sections 202 or 205 

of 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. 

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E. Executive Order 13132: Federalism 

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 EO 

13132. This action only corrects 

inadvertent errors in the existing stay of 

the regulations at 40 CFR parts 51 and 

52 concerning the inclusion of fugitive 

emissions and further stays the 

regulations until EPA completes its 

reconsideration. Thus, EO 13132 does 

not apply to this rule. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This action does not have tribal 

implications, as specified in EO 13175 

(65 FR 67249, November 9, 2000). This 

action will not impose any new 

obligations or enforceable duties on 

tribal governments. Thus, EO 13175 

does not apply to this action. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

EPA interprets EO 13045 (62 FR 

19885, April 23, 1997) as applying only 

to those regulatory actions that concern 

health or safety risks, such that the 

analysis required under section 5–501 of 

the EO has the potential to influence the 

regulation. This action is not subject to 

EO 13045 because it does not establish 

an environmental standard intended to 

mitigate health or safety risks. 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not subject to EO 13211 

(66 FR 28355, May 22, 2001), because it 

is not a significant regulatory action 

under Executive Order 12866. 

I. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law 

104–113, 12(d) (15 U.S.C. 272 note) 

directs EPA to use voluntary consensus 

standards in its regulatory activities 

unless to do so would be inconsistent 

with applicable law or otherwise 

impractical. Voluntary consensus 

standards are technical standards (e.g., 

materials specifications, test methods, 

sampling procedures, and business 

practices) that are developed or adopted 

by voluntary consensus standards 

bodies. NTTAA directs EPA to provide 

Congress, through OMB, explanations 

when the Agency decides not to use 

available and applicable voluntary 

consensus standards. 

This action does not involve technical 

standards. Therefore, EPA did not 

consider the use of any voluntary 

consensus standards. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order 12898 (59 FR 7629, 

Feb. 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. 

EPA has determined that this interim 

rule will not have disproportionately 

high and adverse human health or 

environmental effects on minority or 

low income populations because it only 

corrects inadvertent errors in the 

existing stay of the regulations at 40 

CFR parts 51 and 52 concerning the 

inclusion of fugitive emissions and 

further stays the regulations until EPA 

completes its reconsideration. 

K. Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. 801, et seq., as added by the 

Small Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. Section 808 allows 

the issuing agency to make a rule 

effective sooner than otherwise 

provided by the CRA if the agency 

makes a good cause finding that notice 

and public procedure is impracticable, 

unnecessary, or contrary to the public 

interest. This determination must be 

supported by a brief statement, 5 U.S.C. 

808(2). As stated previously, EPA has 

made such a good cause finding, 

including the reasons therefore, and 

established an effective date of March 

30, 2011. EPA will submit a report 

containing this rule and other required 

information to the United States Senate, 

the United States House of 

Representatives, and the Comptroller 

General of the United States prior to 

publication of the rule in the Federal 

Register. This action is not a ‘‘major 

rule’’ as defined by 5 U.S.C. 804(2). 

VI. Statutory Authority 

The statutory authority for this action 

is provided by section 301(a) of the CAA 

as amended (42 U.S.C. 7601(a)). 

List of Subjects 

40 CFR Part 51 

Administrative practices and 

procedures, Air pollution control, 

Carbon monoxide, Fugitive emissions, 

Intergovernmental relation, Lead, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Sulfur oxides, 

Transportation, Volatile organic 

compounds. 

40 CFR Part 52 

Administrative practices and 

procedures, Air pollution control, 

Carbon monoxide, Fugitive emissions, 

Intergovernmental relation, Lead, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Sulfur oxides, 

Transportation, Volatile organic 

compounds. 

Dated: March 10, 2011. 

Lisa P. Jackson, 

Administrator. 

For the reasons stated in the 

preamble, 40 CFR parts 51 and 52 are 

amended as follows: 

PART 51—[AMENDED] 

■ 1. The authority citation for part 51 

continues to read as follows: 

Authority: 23 U.S.C. 101; 42 U.S.C. 7401— 

7671q. 

■ 2. Section 51.165 is amended as 

follows: 

■ a. The stay of § 51.165(a)(1)(v)(G), 

(a)(1)(vi)(C)(3), (a)(1)(ix), 

(a)(1)(xxviii)(B)(2), (a)(1)(xxviii)(B)(4), 

(a)(1)(xxxv)(A)(1), (a)(1)(xxxv)(B)(1), 

(a)(1)(xxxv)(C), (a)(1)(xxxv)(D), 

(a)(2)(ii)(B), (a)(6)(iii), (a)(6)(iv), and 

(f)(4)(i)(D), published on March 31, 2010 

(75 FR 16012), is lifted. 

■ b. Paragraphs (a)(1)(ix), 

(a)(1)(xxviii)(B)(2), 

(a)(1)(xxviii)(B)(4),(a)(1)(xxxv)(A)(1), 

(a)(1)(xxxv)(B)(1), (a)(1)(xxxv)(C), and 

(a)(1)(xxxv)(D) are revised. 

■ c. Paragraph (a)(2)(ii)(B) is revised. 

■ d. Temporary paragraph (a)(4), is 

removed. 

■ e. A new paragraph (a)(4), is added. 

■ f. Paragraphs (a)(6)(iii) and (a)(6)(iv) 

are revised. 

■ g. Paragraph (f)(4)(i)(D) is revised. 

■ h. Paragraphs (a)(1)(v)(G) and 

(a)(1)(vi)(C)(3) are stayed. 

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Federal Register / Vol. 76, No. 61 / Wednesday, March 30, 2011 / Rules and Regulations 17553 

§ 51.165 Permit requirements. 

(a) * * * 

(1) * * * 

(ix) Fugitive emissions means those 

emissions which could not reasonably 

pass through a stack, chimney, vent or 

other functionally equivalent opening. 

* * * * * 

(xxviii) * * * 

(B) * * * 

(2) Shall include fugitive emissions to 

the extent quantifiable, and emissions 

associated with startups, shutdowns, 

and malfunctions; and 

* * * * * 

(4) In lieu of using the method set out 

in paragraphs (a)(1)(xxviii)(B)(1) 

through (3) of this section, may elect to 

use the emissions unit’s potential to 

emit, in tons per year, as defined under 

paragraph (a)(1)(iii) of this section. 

* * * * * 

(xxxv) * * * 

(A) * * * 

(1) The average rate shall include 

fugitive emissions to the extent 

quantifiable, and emissions associated 

with startups, shutdowns, and 

malfunctions. 

* * * * * 

(B) * * * 

(1) The average rate shall include 

fugitive emissions to the extent 

quantifiable, and emissions associated 

with startups, shutdowns, and 

malfunctions. 

* * * * * 

(C) For a new emissions unit, the 

baseline actual emissions for purposes 

of determining the emissions increase 

that will result from the initial 

construction and operation of such unit 

shall equal zero; and thereafter, for all 

other purposes, shall equal the unit’s 

potential to emit. 

(D) For a PAL for a major stationary 

source, the baseline actual emissions 

shall be calculated for existing electric 

utility steam generating units in 

accordance with the procedures 

contained in paragraph (a)(1)(xxxv)(A) 

of this section, for other existing 

emissions units in accordance with the 

procedures contained in paragraph 

(a)(1)(xxxv)(B) of this section, and for a 

new emissions unit in accordance with 

the procedures contained in paragraph 

(a)(1)(xxxv)(C) of this section. 

* * * * * 

(2) * * * 

(ii) * * * 

(B) The procedure for calculating 

(before beginning actual construction) 

whether a significant emissions increase 

(i.e., the first step of the process) will 

occur depends upon the type of 

emissions units being modified, 

according to paragraphs (a)(2)(ii)(C) 

through (F) of this section. The 

procedure for calculating (before 

beginning actual construction) whether 

a significant net emissions increase will 

occur at the major stationary source (i.e., 

the second step of the process) is 

contained in the definition in paragraph 

(a)(1)(vi) of this section. Regardless of 

any such preconstruction projections, a 

major modification results if the project 

causes a significant emissions increase 

and a significant net emissions increase. 

* * * * * 

(4) Each plan may provide that the 

provisions of this paragraph do not 

apply to a source or modification that 

would be a major stationary source or 

major modification only if fugitive 

emissions, to the extent quantifiable, are 

considered in calculating the potential 

to emit of the stationary source or 

modification and the source does not 

belong to any of the following 

categories: 

(i) Coal cleaning plants (with thermal 

dryers); 

(ii) Kraft pulp mills; 

(iii) Portland cement plants; 

(iv) Primary zinc smelters; 

(v) Iron and steel mills; 

(vi) Primary aluminum ore reduction 

plants; 

(vii) Primary copper smelters; 

(viii) Municipal incinerators capable 

of charging more than 250 tons of refuse 

per day; 

(ix) Hydrofluoric, sulfuric, or citric 

acid plants; 

(x) Petroleum refineries; 

(xi) Lime plants; 

(xii) Phosphate rock processing 

plants; 

(xiii) Coke oven batteries; 

(xiv) Sulfur recovery plants; 

(xv) Carbon black plants (furnace 

process); 

(xvi) Primary lead smelters; 

(xvii) Fuel conversion plants; 

(xviii) Sintering plants; 

(xix) Secondary metal production 

plants; 

(xx) Chemical process plants—The 

term chemical processing plant shall not 

include ethanol production facilities 

that produce ethanol by natural 

fermentation included in NAICS codes 

325193 or 312140; 

(xxi) Fossil-fuel boilers (or 

combination thereof) totaling more than 

250 million British thermal units per 

hour heat input; 

(xxii) Petroleum storage and transfer 

units with a total storage capacity 

exceeding 300,000 barrels; 

(xxiii) Taconite ore processing plants; 

(xxiv) Glass fiber processing plants; 

(xxv) Charcoal production plants; 

(xxvi) Fossil fuel-fired steam electric 

plants of more than 250 million British 

thermal units per hour heat input; 

(xxvii) Any other stationary source 

category which, as of August 7, 1980, is 

being regulated under section 111 or 

112 of the Act. 

* * * * * 

(6) * * * 

(iii) The owner or operator shall 

monitor the emissions of any regulated 

NSR pollutant that could increase as a 

result of the project and that is emitted 

by any emissions units identified in 

paragraph (a)(6)(i)(B) of this section; and 

calculate and maintain a record of the 

annual emissions, in tons per year on a 

calendar year basis, for a period of 5 

years following resumption of regular 

operations after the change, or for a 

period of 10 years following resumption 

of regular operations after the change if 

the project increases the design capacity 

or potential to emit of that regulated 

NSR pollutant at such emissions unit. 

(iv) If the unit is an existing electric 

utility steam generating unit, the owner 

or operator shall submit a report to the 

reviewing authority within 60 days after 

the end of each year during which 

records must be generated under 

paragraph (a)(6)(iii) of this section 

setting out the unit’s annual emissions 

during the year that preceded 

submission of the report. 

* * * * * 

(f) * * * 

(4) * * * 

(i) * * * 

(D) The PAL shall include fugitive 

emissions, to the extent quantifiable, 

from all emissions units that emit or 

have the potential to emit the PAL 

pollutant at the major stationary source. 

* * * * * 

■ 3. Section 51.166 is amended as 

follows: 

■ a. The stay of § 51.166(a)(7)(iv)(b), 

(b)(2)(v), (b)(3)(iii)(c), (b)(3)(iii)(d), 

(b)(20), (b)(40)(ii)(b), (b)(40)(ii)(d), 

(b)(47)(i)(a), (b)(47)(ii)(a), (b)(47)(iii), 

(b)(47)(iv), (r)(6)(iii) and (r)(6)(iv), and 

(w)(4)(i)(d), published on March 31, 

2010 (75 FR 16012), is lifted. 

■ b. Paragraph (a)(7)(iv)(b) is revised. 

■ c. Paragraphs (b)(3)(iii)(c), (b)(20), 

(b)(40)(ii)(b), (b)(40)(ii)(d), (b)(47)(i)(a), 

(b)(47)(ii)(a), (b)(47)(iii), and (b)(47)(iv) 

are revised. 

■ d. Temporary paragraph (i)(1)(ii) is 

removed. 

■ e. A new paragraph (i)(1)(ii) is added. 

■ f. Paragraphs (r)(6)(iii) and (r)(6)(iv) 

are revised. 

■ g. Paragraph (w)(4)(i)(d) is revised. 

■ h. Paragraphs (b)(2)(v) and 

(b)(3)(iii)(d) are stayed. 

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17554 Federal Register / Vol. 76, No. 61 / Wednesday, March 30, 2011 / Rules and Regulations 

§ 51.166 Prevention of significant 

deterioration of air quality. 

(a) * * * 

(7) * * * 

(iv) * * * 

(b) The procedure for calculating 

(before beginning actual construction) 

whether a significant emissions increase 

(i.e., the first step of the process) will 

occur depends upon the type of 

emissions units being modified, 

according to paragraphs (a)(7)(iv)(c) 

through (f) of this section. The 

procedure for calculating (before 

beginning actual construction) whether 

a significant net emissions increase will 

occur at the major stationary source (i.e., 

the second step of the process) is 

contained in the definition in paragraph 

(b)(3) of this section. Regardless of any 

such preconstruction projections, a 

major modification results if the project 

causes a significant emissions increase 

and a significant net emissions increase. 

* * * * * 

(b) * * * 

(3) * * * 

(iii) * * * 

(c) The increase or decrease in 

emissions did not occur at a Clean Unit, 

except as provided in paragraphs (t)(8) 

and (u)(10) of this section. 

* * * * * 

(20) Fugitive emissions means those 

emissions which could not reasonably 

pass through a stack, chimney, vent, or 

other functionally equivalent opening. 

* * * * * 

(40) * * * 

(ii) * * * 

(b) Shall include fugitive emissions to 

the extent quantifiable, and emissions 

associated with startups, shutdowns, 

and malfunctions; and 

* * * * * 

(d) In lieu of using the method set out 

in paragraphs (b)(40)(ii)(a) through (c) of 

this section, may elect to use the 

emissions unit’s potential to emit, in 

tons per year, as defined under 

paragraph (b)(4) of this section. 

* * * * * 

(47) * * * 

(i) * * * 

(a) The average rate shall include 

fugitive emissions to the extent 

quantifiable, and emissions associated 

with startups, shutdowns, and 

malfunctions. 

* * * * * 

(ii) * * * 

(a) The average rate shall include 

fugitive emissions to the extent 

quantifiable, and emissions associated 

with startups, shutdowns, and 

malfunctions. 

* * * * * 

(iii) For a new emissions unit, the 

baseline actual emissions for purposes 

of determining the emissions increase 

that will result from the initial 

construction and operation of such unit 

shall equal zero; and thereafter, for all 

other purposes, shall equal the unit’s 

potential to emit. 

(iv) For a PAL for a stationary source, 

the baseline actual emissions shall be 

calculated for existing electric utility 

steam generating units in accordance 

with the procedures contained in 

paragraph (b)(47)(i) of this section, for 

other existing emissions units in 

accordance with the procedures 

contained in paragraph (b)(47)(ii) of this 

section, and for a new emissions unit in 

accordance with the procedures 

contained in paragraph (b)(47)(iii) of 

this section. 

* * * * * 

(i) * * * 

(1) * * * 

(ii) The source or modification would 

be a major stationary source or major 

modification only if fugitive emissions, 

to the extent quantifiable, are 

considered in calculating the potential 

to emit of the stationary source or 

modification and such source does not 

belong to any of the following 

categories: 

(a) Coal cleaning plants (with thermal 

dryers); 

(b) Kraft pulp mills; 

(c) Portland cement plants; 

(d) Primary zinc smelters; 

(e) Iron and steel mills; 

(f) Primary aluminum ore reduction 

plants; 

(g) Primary copper smelters; 

(h) Municipal incinerators capable of 

charging more than 250 tons of refuse 

per day; 

(i) Hydrofluoric, sulfuric, or nitric 

acid plants; 

(j) Petroleum refineries; 

(k) Lime plants; 

(l) Phosphate rock processing plants; 

(m) Coke oven batteries; 

(n) Sulfur recovery plants; 

(o) Carbon black plants (furnace 

process); 

(p) Primary lead smelters; 

(q) Fuel conversion plants; 

(r) Sintering plants; 

(s) Secondary metal production 

plants; 

(t) Chemical process plants—The term 

chemical processing plant shall not 

include ethanol production facilities 

that produce ethanol by natural 

fermentation included in NAICS codes 

325193 or 312140; 

(u) Fossil-fuel boilers (or combination 

thereof) totaling more than 250 million 

British thermal units per hour heat 

input; 

(v) Petroleum storage and transfer 

units with a total storage capacity 

exceeding 300,000 barrels; 

(w) Taconite ore processing plants; 

(x) Glass fiber processing plants; 

(y) Charcoal production plants; 

(z) Fossil fuel-fired steam electric 

plants of more than 250 million British 

thermal units per hour heat input; 

(aa) Any other stationary source 

category which, as of August 7, 1980, is 

being regulated under section 111 or 

112 of the Act; or 

* * * * * 

(r) * * * 

(6) * * * 

(iii) The owner or operator shall 

monitor the emissions of any regulated 

NSR pollutant that could increase as a 

result of the project and that is emitted 

by any emissions unit identified in 

paragraph (r)(6)(i)(b) of this section; and 

calculate and maintain a record of the 

annual emissions, in tons per year on a 

calendar year basis, for a period of 5 

years following resumption of regular 

operations after the change, or for a 

period of 10 years following resumption 

of regular operations after the change if 

the project increases the design capacity 

or potential to emit of that regulated 

NSR pollutant at such emissions unit. 

(iv) If the unit is an existing electric 

utility steam generating unit, the owner 

or operator shall submit a report to the 

reviewing authority within 60 days after 

the end of each year during which 

records must be generated under 

paragraph (r)(6)(iii) of this section 

setting out the unit’s annual emissions 

during the calendar year that preceded 

submission of the report. 

* * * * * 

(w) * * * 

(4) * * * 

(i) * * * 

(d) The PAL shall include fugitive 

emissions, to the extent quantifiable, 

from all emissions units that emit or 

have the potential to emit the PAL 

pollutant at the major stationary source. 

* * * * * 

■ 4. Appendix S. to Part 51 is amended 

as follows: 

■ a. The stay of appendix S, paragraphs 

II.A.5(vii), II.A.6(iii), II.A.9, 

II.A.24(ii)(b), II.A.24(ii)(d), II.A. 30(i)(a), 

II.A.30(ii)(a), II.A.30(iii), II.A.30(iv), 

IV.I.1(ii), IV.J.3, IV.J.4, and IV.K.4(i)(d) 

published on March 31, 2010 (75 FR 

16012) is lifted. 

■ b. Paragraphs II.A.6(iii), II.A.9, 

II.A.24(ii)(b), II.A.24(ii)(d), II.A.30(i)(a), 

II.A.30(ii)(a), II.A.30(iii), and II.A.30(iv) 

are revised. 

■ c. Temporary paragraph II.F is 

removed. 

■ d. A new paragraph II.F is added. 

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Federal Register / Vol. 76, No. 61 / Wednesday, March 30, 2011 / Rules and Regulations 17555 

■ e. Paragraphs IV.I.1(ii), IV.J.3, IV.J.4, 

and IV.K.4(i)(d) are revised. 

■ f. Paragraph II.A.5(vii) is stayed. 

Appendix S to Part 51—Emission Offset 

Interpretative Ruling 

* * * * * 

II. * * * 

A. * * * 

6. * * * 

(iii) An increase or decrease in actual 

emissions is creditable only if the reviewing 

authority has not relied on it in issuing a 

permit for the source under this Ruling, 

which permit is in effect when the increase 

in actual emissions from the particular 

change occurs. 

* * * * * 

9. Fugitive emissions means those 

emissions which could not reasonably pass 

through a stack, chimney, vent, or other 

functionally equivalent opening. 

* * * * * 

24. * * * 

(ii) * * * 

(b) Shall include fugitive emissions to the 

extent quantifiable, and emissions associated 

with startups, shutdowns, and malfunctions; 

and 

* * * * * 

(d) In lieu of using the method set out in 

paragraphs II.A.24(ii)(a) through (c) of this 

Ruling, may elect to use the emissions unit’s 

potential to emit, in tons per year, as defined 

under paragraph II.A.3 of this Ruling. 

* * * * * 

30. * * * 

(i) * * * 

(a) The average rate shall include fugitive 

emissions to the extent quantifiable, and 

emissions associated with startups, 

shutdowns, and malfunctions. 

* * * * * 

(ii) * * * 

(a) The average rate shall include fugitive 

emissions to the extent quantifiable, and 

emissions associated with startups, 

shutdowns, and malfunctions. 

* * * * * 

(iii) For a new emissions unit, the baseline 

actual emissions for purposes of determining 

the emissions increase that will result from 

the initial construction and operation of such 

unit shall equal zero; and thereafter, for all 

other purposes, shall equal the unit’s 

potential to emit. 

(iv) For a PAL for a major stationary 

source, the baseline actual emissions shall be 

calculated for existing electric utility steam 

generating units in accordance with the 

procedures contained in paragraph II.A.30(i) 

of this Ruling, for other existing emissions 

units in accordance with the procedures 

contained in paragraph II.A.30(ii) of this 

Ruling, and for a new emissions unit in 

accordance with the procedures contained in 

paragraph II.A.30(iii) of this Ruling. 

* * * * * 

F. Fugitive emission sources. Section IV.A. 

of this Ruling shall not apply to a source or 

modification that would be a major stationary 

source or major modification only if fugitive 

emissions, to the extent quantifiable, are 

considered in calculating the potential to 

emit of the stationary source or modification 

and such source does not belong to any of the 

following categories: 

(1) Coal cleaning plants (with thermal 

dryers); 

(2) Kraft pulp mills; 

(3) Portland cement plants; 

(4) Primary zinc smelters; 

(5) Iron and steel mills; 

(6) Primary aluminum ore reduction 

plants; 

(7) Primary copper smelters; 

(8) Municipal incinerators capable of 

charging more than 250 tons of refuse per 

day; 

(9) Hydrofluoric, sulfuric, or nitric acid 

plants; 

(10) Petroleum refineries; 

(11) Lime plants; 

(12) Phosphate rock processing plants; 

(13) Coke oven batteries; 

(14) Sulfur recovery plants; 

(15) Carbon black plants (furnace process); 

(16) Primary lead smelters; 

(17) Fuel conversion plants; 

(18) Sintering plants; 

(19) Secondary metal production plants; 

(20) Chemical process plants—The term 

chemical processing plant shall not include 

ethanol production facilities that produce 

ethanol by natural fermentation included in 

NAICS codes 325193 or 312140; 

(21) Fossil-fuel boilers (or combination 

thereof) totaling more than 250 million 

British thermal units per hour heat input; 

(22) Petroleum storage and transfer units 

with a total storage capacity exceeding 

300,000 barrels; 

(23) Taconite ore processing plants; 

(24) Glass fiber processing plants; 

(25) Charcoal production plants; 

(26) Fossil fuel-fired steam electric plants 

of more than 250 million British thermal 

units per hour heat input; 

(27) Any other stationary source category 

which, as of August 7, 1980, is being 

regulated under section 111 or 112 of the Act. 

* * * * * 

IV. * * * 

I. * * * 

1. * * * 

(ii) The procedure for calculating (before 

beginning actual construction) whether a 

significant emissions increase (i.e., the first 

step of the process) will occur depends upon 

the type of emissions units being modified, 

according to paragraphs IV.I.1(iii) through (v) 

of this Ruling. The procedure for calculating 

(before beginning actual construction) 

whether a significant net emissions increase 

will occur at the major stationary source (i.e., 

the second step of the process) is contained 

in the definition in paragraph II.A.6 of this 

Ruling. Regardless of any such 

preconstruction projections, a major 

modification results if the project causes a 

significant emissions increase and a 

significant net emissions increase. 

* * * * * 

J. * * * 

3. The owner or operator shall monitor the 

emissions of any regulated NSR pollutant 

that could increase as a result of the project 

and that is emitted by any emissions units 

identified in paragraph IV.J.1(ii) of this 

Ruling; and calculate and maintain a record 

of the annual emissions, in tons per year on 

a calendar year basis, for a period of 5 years 

following resumption of regular operations 

after the change, or for a period of 10 years 

following resumption of regular operations 

after the change if the project increases the 

design capacity or potential to emit of that 

regulated NSR pollutant at such emissions 

unit. 

4. If the unit is an existing electric utility 

steam generating unit, the owner or operator 

shall submit a report to the reviewing 

authority within 60 days after the end of each 

year, during which records must be generated 

under paragraph IV.J.3 of this Ruling setting 

out the unit’s annual emissions during the 

year that preceded submission of the report. 

* * * * * 

K. * * * 

4. * * * 

(i) * * * 

(d) The PAL shall include fugitive 

emissions, to the extent quantifiable, from all 

emissions units that emit or have the 

potential to emit the PAL pollutant at the 

major stationary source. 

* * * * * 

PART 52—[AMENDED] 

■ 5. The authority citation for part 52 

continues to read as follows: 

Authority: 42 U.S.C. 7401 et seq. 

■ 6. Section 52.21 is amended as 

follows: 

■ a. The stay of § 52.21 (a)(2)(iv)(b), 

(b)(2)(v), (b)(3)(iii)(b), (b)(3)(iii)(c), 

(b)(20), (b)(41)(ii)(b), (b)(41)(ii)(d), 

(b)(48)(i)(a), (b)(48)(ii)(a), (b)(48)(iii), 

(b)(48)(iv), (r)(6)(iii), (r)(6)(iv), and 

(aa)(4)(i)(d), published on March 31, 

2010 (75 FR 16012), is lifted. 

■ b. Paragraph (a)(2)(iv)(b) is revised. 

■ c. Paragraphs (b)(3)(iii)(b), (b)(20), 

(b)(41)(ii)(b), (b)(41)(ii)(d), (b)(48)(i)(a), 

(b)(48)(ii)(a), (b)(48)(iii), and (b)(48)(iv) 

are revised. 

■ d. Temporary paragraph (i)(1)(vii) is 

removed. 

■ e. A new paragraph (i)(1)(vii) is added. 

■ f. Paragraphs (r)(6)(iii) and (r)(6)(iv) 

are revised. 

■ g. Paragraph (aa)(4)(i)(d) is revised. 

■ h. Paragraphs (b)(2)(v) and (b)(3)(iii)(c) 

are stayed. 

§ 52.21 Prevention of significant 

deterioration of air quality. 

(a) * * * 

(2) * * * 

(iv) * * * 

(b) The procedure for calculating 

(before beginning actual construction) 

whether a significant emissions increase 

(i.e., the first step of the process) will 

occur depends upon the type of 

emissions units being modified, 

according to paragraphs (a)(2)(iv)(c) 

through (f) of this section. The 

procedure for calculating (before 

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17556 Federal Register / Vol. 76, No. 61 / Wednesday, March 30, 2011 / Rules and Regulations 

beginning actual construction) whether 

a significant net emissions increase will 

occur at the major stationary source (i.e., 

the second step of the process) is 

contained in the definition in paragraph 

(b)(3) of this section. Regardless of any 

such preconstruction projections, a 

major modification results if the project 

causes a significant emissions increase 

and a significant net emissions increase. 

* * * * * 

(b) * * * 

(3) * * * 

(iii) * * * 

(b) The increase or decrease in 

emissions did not occur at a Clean Unit 

except as provided in paragraphs (x)(8) 

and (y)(10) of this section. 

* * * * * 

(20) Fugitive emissions means those 

emissions which could not reasonably 

pass through a stack, chimney, vent, or 

other functionally equivalent opening. 

* * * * * 

(41) * * * 

(ii) * * * 

(b) Shall include fugitive emissions to 

the extent quantifiable, and emissions 

associated with startups, shutdowns, 

and malfunctions; and 

* * * * * 

(d) In lieu of using the method set out 

in paragraphs (a)(41)(ii)(a) through (c) of 

this section, may elect to use the 

emissions unit’s potential to emit, in 

tons per year, as defined under 

paragraph (b)(4) of this section. 

* * * * * 

(48) * * * 

(i) * * * 

(a) The average rate shall include 

fugitive emissions to the extent 

quantifiable, and emissions associated 

with startups, shutdowns, and 

malfunctions. 

* * * * * 

(ii) * * * 

(a) The average rate shall include 

fugitive emissions to the extent 

quantifiable, and emissions associated 

with startups, shutdowns, and 

malfunctions. 

* * * * * 

(iii) For a new emissions unit, the 

baseline actual emissions for purposes 

of determining the emissions increase 

that will result from the initial 

construction and operation of such unit 

shall equal zero; and thereafter, for all 

other purposes, shall equal the unit’s 

potential to emit. 

(iv) For a PAL for a stationary source, 

the baseline actual emissions shall be 

calculated for existing electric utility 

steam generating units in accordance 

with the procedures contained in 

paragraph (b)(48)(i) of this section, for 

other existing emissions units in 

accordance with the procedures 

contained in paragraph (b)(48)(ii) of this 

section, and for a new emissions unit in 

accordance with the procedures 

contained in paragraph (b)(48)(iii) of 

this section. 

* * * * * 

(i) * * * 

(1) * * * 

(vii) The source or modification 

would be a major stationary source or 

major modification only if fugitive 

emissions, to the extent quantifiable, are 

considered in calculating the potential 

to emit of the stationary source or 

modification and the source does not 

belong to any of the following 

categories: 

(a) Coal cleaning plants (with thermal 

dryers); 

(b) Kraft pulp mills; 

(c) Portland cement plants; 

(d) Primary zinc smelters; 

(e) Iron and steel mills; 

(f) Primary aluminum ore reduction 

plants; 

(g) Primary copper smelters; 

(h) Municipal incinerators capable of 

charging more than 250 tons of refuse 

per day; 

(i) Hydrofluoric, sulfuric, or nitric 

acid plants; 

(j) Petroleum refineries; 

(k) Lime plants; 

(l) Phosphate rock processing plants; 

(m) Coke oven batteries; 

(n) Sulfur recovery plants; 

(o) Carbon black plants (furnace 

process); 

(p) Primary lead smelters; 

(q) Fuel conversion plants; 

(r) Sintering plants; 

(s) Secondary metal production 

plants; 

(t) Chemical process plants—The term 

chemical processing plant shall not 

include ethanol production facilities 

that produce ethanol by natural 

fermentation included in NAICS codes 

325193 or 312140; 

(u) Fossil-fuel boilers (or combination 

thereof) totaling more than 250 million 

British thermal units per hour heat 

input; 

(v) Petroleum storage and transfer 

units with a total storage capacity 

exceeding 300,000 barrels; 

(w) Taconite ore processing plants; 

(x) Glass fiber processing plants; 

(y) Charcoal production plants; 

(z) Fossil fuel-fired steam electric 

plants of more than 250 million British 

thermal units per hour heat input; 

(aa) Any other stationary source 

category which, as of August 7, 1980, is 

being regulated under section 111 or 

112 of the Act; or 

* * * * * 

(r) * * * 

(6) * * * 

(iii) The owner or operator shall 

monitor the emissions of any regulated 

NSR pollutant that could increase as a 

result of the project and that is emitted 

by any emissions unit identified in 

paragraph (r)(6)(i)(b) of this section; and 

calculate and maintain a record of the 

annual emissions, in tons per year on a 

calendar year basis, for a period of 5 

years following resumption of regular 

operations after the change, or for a 

period of 10 years following resumption 

of regular operations after the change if 

the project increases the design capacity 

or potential to emit that regulated NSR 

pollutant at such emissions unit. 

(iv) If the unit is an existing electric 

utility steam generating unit, the owner 

or operator shall submit a report to the 

Administrator within 60 days after the 

end of each year during which records 

must be generated under paragraph 

(r)(6)(iii) of this section setting out the 

unit’s annual emissions during the 

calendar year that preceded submission 

of the report. 

* * * * * 

(aa) * * * 

(4) * * * 

(i) * * * 

(d) The PAL shall include fugitive 

emissions, to the extent quantifiable, 

from all emissions units that emit or 

have the potential to emit the PAL 

pollutant at the major stationary source. 

* * * * * 

[FR Doc. 2011–6670 Filed 3–29–11; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 180 

[EPA–HQ–OPP–2010–0097; FRL–8867–7] 

Sodium Ferric 

Ethylenediaminetetraacetate; 

Exemption From the Requirement of a 

Tolerance 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: This regulation establishes an 

exemption from the requirement of a 

tolerance for residues of sodium ferric 

ethylenediaminetetraacetate (EDTA) in 

or on all food commodities when 

applied as a molluscicide and used in 

accordance with good agricultural 

practices. W. Neudorff GmbH KG 

submitted a petition to EPA under the 

Federal Food, Drug, and Cosmetic Act 

(FFDCA), requesting an exemption from 

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