Federal Register / Vol. 74, No. 164 / Wednesday, August 26, 2009 / Proposed Rules 43085 

FOR FURTHER INFORMATION CONTACT: 

Melissa V. Hampshire, Office of the 

General Counsel, Consumer Product 

Safety Commission, 4330 East West 

Highway, Bethesda, Maryland 20814; 

telephone (301) 504–7631, e-mail 

mhampshire@cpsc.gov. 

SUPPLEMENTARY INFORMATION: In the 

Federal Register of July 12, 2006 (71 FR 

39248), the CPSC proposed to amend its 

regulations to add a new part, 16 CFR 

1119, titled ‘‘Civil Penalty Factors.’’ The 

proposed rule would describe the 

factors the Commission may consider in 

determining the appropriateness and 

amount of a civil penalty for violations 

of section 19(a) of the CPSA, which 

includes the failure to furnish 

information required by section 15(b) of 

the CPSA. 

The proposal was intended to provide 

further clarity and transparency in how 

the CPSC determines civil penalty 

amounts. The Commission believed that 

the proposed rule would result in a 

better understanding by the public of 

the Commission’s approach to 

determining the appropriateness and 

amount of a civil penalty. 

The Commission received four 

comments in response to the proposed 

rule. The CPSIA was subsequently 

enacted, and section 217 of the CPSIA 

revised certain sections of the CPSA, the 

FHSA, and the Flammable Fabrics Act. 

In general, section 217 of the CPSIA 

increased the maximum civil penalty 

amounts, described new factors for the 

CPSC to consider when determining 

civil penalty amounts, and instructed 

the CPSC to issue a final rule to 

interpret the ‘‘penalty factors described 

in section 20(b) of the [CPSA] section 

5(c)(3) of the [FHSA] and section 5(e)(2) 

of the [FFA] as amended by subsection 

(a) [of the CPSIA].’’ 

Section 217 of the CPSIA, therefore, 

effectively superseded the July 12, 2006 

proposed rule by adding new factors for 

consideration and directing the 

Commission to issue a final rule 

providing its interpretation of all the 

factors in section 20(b) of the CPSA, 

section 5(c)(3) of the FHSA, and section 

5(e)(2) of the FFA. Consequently, the 

Commission, through this notice, is 

withdrawing the July 12, 2006 proposal. 

Elsewhere in this issue of the Federal 

Register, the Commission is issuing a 

new interim final rule to interpret the 

penalty factors pursuant to section 217 

of the CPSIA. 

Dated: August 19, 2009. 

Alberta E. Mills, 

Acting Secretary, Consumer Product Safety 

Commission. 

[FR Doc. E9–20590 Filed 8–25–09; 8:45 am] 

BILLING CODE 6355–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R09–OAR–2009–0558; FRL–8949–4] 

Revisions to the Arizona State PM–10 

Implementation Plan; Maricopa County 

Air Quality Department 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing to approve 

revisions to the Maricopa County Air 

Quality Department (MCAQD) portion 

of the Arizona State Implementation 

Plan (SIP). These revisions concern 

particulate matter (PM) emissions from 

non-metallic mineral mining and 

processing in the Maricopa County 

(Phoenix) serious PM–10 nonattainment 

area. We are proposing to approve a 

local rule that regulates these emission 

sources under the Clean Air Act, as 

amended in 1990 (CAA or the Act). We 

are taking comments on this proposal 

and plan to follow with a final action. 

DATES: Any comments must arrive by 

September 25, 2009. 

ADDRESSES: Submit comments, 

identified by docket number [EPA–R09– 

OAR–2009–0558], by one of the 

following methods: 

1. Federal eRulemaking Portal: 

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

on-line instructions. 

2. E-mail: steckel.andrew@epa.gov. 

3. Mail or deliver: Andrew Steckel 

(Air-4), U.S. Environmental Protection 

Agency Region IX, 75 Hawthorne Street, 

San Francisco, CA 94105–3901. 

Instructions: All comments 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 

Confidential Business Information (CBI) 

or other information whose disclosure is 

restricted by statute. Information that 

you consider CBI or otherwise protected 

should be clearly identified as such and 

should not be submitted through 

http://www.regulations.gov or e-mail. 

http://www.regulations.gov is an 

‘‘anonymous access’’ system, and EPA 

will not know your identity or contact 

information unless you provide it in the 

body of your comment. If you send email directly to EPA, your e-mail 

address will be automatically captured 

and included as part of the public 

comment. 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. 

Docket: The index to the docket for 

this action is available electronically at 

http://www.regulations.gov and in hard 

copy at EPA Region IX, 75 Hawthorne 

Street, San Francisco, California. While 

all documents in the docket are listed in 

the index, some information may be 

publicly available only at the hard copy 

location (e.g., copyrighted material), and 

some may not be publicly available in 

either location (e.g., CBI). To inspect the 

hard copy materials, please schedule an 

appointment during normal business 

hours with the contact listed in the FOR

FURTHER INFORMATION CONTACT section. 

FOR FURTHER INFORMATION CONTACT: 

Sona Chilingaryan, EPA Region IX, 

(415) 972–3368, 

chilingaryan.sona@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, ‘‘we,’’ ‘‘us’’ 

and ‘‘our’’ refer to EPA. 

Table of Contents 

I. The State’s Submittal 

A. What rule did the State submit? 

B. Are there other versions of this rule? 

C. What is the purpose of the submitted 

rule revision? 

II. EPA’s Evaluation and Proposed Action 

A. How is EPA evaluating the rule? 

B. Does the rule meet the evaluation 

criteria? 

C. EPA recommendations to further 

improve the rule. 

D. Proposed action and public comment. 

III. Statutory and Executive Order Reviews 

I. The State’s Submittal 

A. What rule did the State submit? 

Table 1 lists the rule addressed by this 

proposal with the dates on which it was 

adopted by the local air agency and 

submitted by the Arizona Department of 

Environmental Quality (ADEQ). 

TABLE 1—SUBMITTED RULES

Local agency Rule No. Rule title Adopted Submitted 

MCAQD ........................................................... 316 Nonmetallic Mineral Processing ..................... 3/10/08 7/10/08 

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43086 Federal Register / Vol. 74, No. 164 / Wednesday, August 26, 2009 / Proposed Rules 

1As a result, we are not responding to the 

comments we received on that proposed approval 

at this time. Commenters wishing to again raise 

issues raised in comments on that proposal should 

resubmit applicable comments to the docket for this 

rulemaking. 

2 ‘‘State Implementation Plans for Serious PM–10 

Nonattainment Areas, and Attainment Date Waivers 

for PM–10 Nonattainment Areas Generally; 

Addendum to the General Preamble for the 

Implementation of Title I of the Clean Air Act 

Amendments of 1990,’’ (Addendum), 59 FR 41998, 

42010 (August 16, 1994). 

3We have established a presumption that a 

‘‘significant’’ source category is one that contributes 

5 μg/m3 or more of PM–10 to a location of 24-hour 

violation. Addendum at 42011. ADEQ identified 

industrial sources as significant contributors to PM– 

10 24-hour exceedances at the Salt River monitors 

(see the Revised PM–10 State Implementation Plan 

for the Salt River Area, September 2005, Table 

4.2.1, pgs. 26 and 27). ADEQ found that the vast 

majority of industrial source PM–10 emissions are 

generated by nonmetallic mineral processing 

sources. Additional information about the Salt 

River Plan can be found at 71 FR 39251 (July 12, 

2006). 

4EPA granted the attainment date extension 

requested by the State on July 25, 2002 (67 FR 

48718). 

The submittal became complete by 

operation of law on January 10, 2009 

pursuant to section 110(k)(1)(B) of the 

Clean Air Act. 

B. Are there other versions of this rule? 

We approved a version of Rule 316 

into the SIP on January 4, 2001. MCAQD 

adopted revisions to the SIP-approved 

version on June 8, 2005 and ADEQ 

submitted them to us on October 7, 

2005. We proposed approval of the June 

8, 2005 version of Rule 316 on July 12, 

2006 (71 FR 39251). The June 8, 2005 

version of the rule was superseded by 

the March 10, 2008 version of the rule. 

Therefore we will not be taking final 

action on our July 12, 2006 proposed 

approval.1 We can act on only the most 

recently submitted version. We have, 

however, reviewed materials provided 

with previous submittals in evaluating 

the rule that is the subject of this 

proposed action. 

C. What is the purpose of the submitted 

rule? 

PM contributes to effects that are 

harmful to human health and the 

environment, including premature 

mortality, aggravation of respiratory and 

cardiovascular disease, decreased lung 

function, visibility impairment, and 

damage to vegetation and ecosystems. 

Section 110(a) of the CAA requires 

States to submit regulations that control 

PM emissions. In addition, SIP rules in 

serious PM–10 nonattainment areas 

such as the Maricopa County area must 

implement at least Best Available 

Control Measures (BACM), including 

Best Available Control Technology 

(BACT) (see CAA section 189(b)(1)(B) 

and 40 CFR 81.303). Rule 316 limits the 

emissions of particulate matter from 

stack, fugitive and process sources at 

nonmetallic mineral processing plants. 

Among other things, Rule 316 has 

opacity requirements for stack 

emissions, requires that a minimum 

moisture content be maintained at 

crushers, shaker screens, and material 

transfer points, has silt loading and 

stabilization standards for unpaved 

roads and disturbed areas, as well as 

track out control provisions which 

require the use of rumble grates and 

wheel washers. EPA’s technical support 

document (TSD) has more information 

about this rule. 

II. EPA’s Evaluation and Proposed 

Action 

A. How is EPA evaluating the rule? 

Generally, SIP rules must be 

enforceable (see CAA section 110(a)) 

and must not relax existing 

requirements (see section 110(l)). As 

stated above, SIP rules must also 

implement at least Best Available 

Control Measures (BACM), including 

Best Available Control Technology 

(BACT), in serious PM–10 

nonattainment areas such as the 

Maricopa County area. The CAA does 

not clearly define what level of control 

constitutes BACM for specific activities. 

In guidance, we have defined it to be, 

among other things, the maximum 

degree of emission reduction achievable 

from a source or source category which 

is determined on a case-by-case basis, 

considering energy, economic, 

environmental impacts and other costs.2

We have outlined in our guidance a 

four-step process for identifying BACM. 

Addendum at 42010–42014. These steps 

include developing a detailed emissions 

inventory of PM–10 sources and source 

categories, evaluating the impact on 

PM–10 concentrations of the various 

sources and source categories to 

determine which are significant,3

identifying potential BACM for 

significant source categories and 

evaluating their reasonableness, 

considering technological feasibility, 

costs, and energy and environmental 

impacts, and providing for the 

implementation of the BACM or 

providing a reasoned justification for 

rejecting any potential BACM. 

SIP rules in serious PM–10 nonattainment areas, such as the Maricopa 

area, for which the State has requested 

an attainment date extension beyond 

2001, must also meet the Most Stringent 

Measures (MSM) requirement in section 

188(e).4 The CAA section 188(e) 

requirement for MSM is similar to the 

requirement for BACM. Under section 

188(e), serious PM–10 areas applying for 

an attainment date extension are 

required to include in their attainment 

plans the most stringent measures 

included in other SIPs or in practice in 

other states and which can be feasibly 

implemented in the area. Given the 

similarity between the BACM 

requirement and the MSM requirement, 

we believe that determining MSM 

should follow a process similar to 

determining BACM, but with one 

additional step, to compare the 

potentially most stringent measure 

against the measures already adopted in 

the area to determine if the existing 

measures are most stringent. See 66 FR 

50252, 50281, 50284 (October 2, 2001) 

for a discussion of our interpretation of 

the BACM and MSM requirements as 

applied to the Maricopa area. 

Guidance and policy documents that 

we used to help evaluate specific 

enforceability and BACM requirements 

include the following: 

1. ‘‘Issues Relating to VOC Regulation 

Cutpoints, Deficiencies, and Deviations; 

Clarification to Appendix D of 

November 24, 1987 Federal Register 

Notice,’’ (Blue Book), notice of 

availability published in the May 25, 

1988 Federal Register. 

2. ‘‘Guidance Document for Correcting 

Common VOC & Other Rule 

Deficiencies,’’ EPA Region 9, August 21, 

2001 (the Little Bluebook). 

3. ‘‘State Implementation Plans for 

Serious PM–10 Nonattainment Areas, 

and Attainment Date Waivers for PM–10 

Nonattainment Areas Generally; 

Addendum to the General Preamble for 

the Implementation of Title I of the 

Clean Air Act Amendments of 1990,’’ 59 

FR 41998 (August 16, 1994). 

4. ‘‘PM–10 Guideline Document,’’ 

EPA 452/R–93–008, April 1993. 

5. ‘‘Fugitive Dust Background 

Document and Technical Information 

Document for Best Available Control 

Measures,’’ EPA 450/2–92–004, 

September 1992. 

We also compared Rule 316 to several 

regulations in other PM–10 

nonattainment areas, which are further 

described in the TSD. 

B. Does the rule meet the evaluation 

criteria? 

We believe this rule is consistent with 

the relevant guidance and meets the 

requirements in CAA section 110(a) 

regarding enforceability, the 

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Federal Register / Vol. 74, No. 164 / Wednesday, August 26, 2009 / Proposed Rules 43087 

requirements in CAA section 110(l) 

regarding SIP relaxation, and the 

requirements in CAA sections 

189(b)(1)(B) and 188(e) regarding BACM 

and MSM. Monitoring, recordkeeping, 

reporting and associated requirements 

generally ensure that the submitted rule 

can be enforced. The March 10, 2008 

version of Rule 316 is more stringent 

than the SIP-approved rule. Moreover, 

in addition to reviewing the analysis 

submitted by ADEQ, we have compared 

the requirements in Rule 316 to 

requirements in comparable rules in 

other PM–10 nonattainment areas and 

believe that Rule 316 is generally as 

stringent as the requirements in those 

other areas. The TSD has more 

information on our evaluation. 

C. EPA Recommendations To Further 

Improve the Rule 

The TSD describes additional rule 

revisions that do not affect EPA’s 

current proposed action but are 

recommended for the next time MCAQD 

modifies the rule. 

D. Proposed Action and Public 

Comment 

Because EPA believes the submitted 

rule fulfills all relevant requirements, 

we are proposing to fully approve it 

pursuant to CAA section 110(k)(3) as 

meeting the requirements of sections 

189(b)(1)(B) and 188(e). We will accept 

comments from the public on this 

proposal for the next 30 days. Unless we 

receive convincing new information 

during the comment period, we intend 

to publish a final approval action that 

will incorporate this rule into the 

Federally enforceable SIP. 

III. Statutory and Executive Order 

Reviews 

Under the Clean Air Act, the 

Administrator is required to approve a 

SIP submission that complies with the 

provisions of the Act and applicable 

Federal regulations. 42 U.S.C. 7410(k); 

40 CFR 52.02(a). Thus, in reviewing SIP 

submissions, EPA’s role is to approve 

State choices, provided that they meet 

the criteria of the Clean Air Act. 

Accordingly, this action merely 

approves state law as meeting Federal 

requirements and does not impose 

additional requirements beyond those 

imposed by State law. For that reason, 

this action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the Clean Air Act; 

and 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this rule does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the State, and EPA notes that 

it will not impose substantial direct 

costs on tribal governments or preempt 

tribal law. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Intergovernmental 

relations, Particulate matter, Reporting 

and recordkeeping requirements. 

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

Dated: July 31, 2009. 

Laura Yoshii, 

Acting Regional Administrator, Region IX. 

[FR Doc. E9–20597 Filed 8–25–09; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Centers for Medicare & Medicaid 

Services 

42 CFR Parts 410, 411, 414, 415, 485, 

and 489 

[CMS–9061–N] 

Electronic Public Comment 

Transmission Error for Two Medicare 

Program Rules 

AGENCY: Centers for Medicare & 

Medicaid Services (CMS), HHS. 

ACTION: Request for resubmission of 

comments. 

SUMMARY: This document requests that 

the public resubmit their comments on 

the CY 2010 Physician Fee Schedule or 

CY 2010 Hospital Outpatient 

Prospective Payment System/ 

Ambulatory Surgical Center Payment 

System proposed rule before the close of 

the comment period for these rules (that 

is, August 31, 2009) if their comments 

were originally submitted via 

www.regulations.gov during the period 

from July 26, 2009 through July 30, 

2009. 

DATES: To be assured consideration, 

comments on the CY 2010 Physician 

Fee Schedule proposed rule published 

July 13, 2009 (74 FR 33520) and the CY 

2010 Hospital Outpatient Prospective 

Payment System/Ambulatory Surgical 

Center Payment System proposed rule 

published July 20, 2009 (74 FR 35232), 

must be received at one of the addresses 

provided below, no later than 5 p.m. on 

August 31, 2009. 

ADDRESSES: In commenting, please refer 

to file code— 

• CMS–1413–P (for the CY 2010 

Physician Fee Schedule proposed rule); 

or 

• CMS–1414–P (for the CY 2010 

Hospital Outpatient Prospective 

Payment System/Ambulatory Surgical 

Center Payment System proposed rule). 

Because of staff and resource 

limitations, we cannot accept comments 

by facsimile (FAX) transmission. 

You may submit comments in one of 

four ways (please choose only one of the 

ways listed): 

1. Electronically. You may submit 

electronic comments on either of these 

proposed rules via http:// 

www.regulations.gov. Enter one of the 

following docket identification numbers 

in the keyword search field: 

a. CMS–2009–0058, for the CY 2010 

Physician Fee Schedule proposed rule. 

b. CMS–2009–0060, for the CY 2010 

Hospital Outpatient Prospective 

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