27898 Federal Register / Vol. 76, No. 93 / Friday, May 13, 2011 / Rules and Regulations 

LIBRARY OF CONGRESS 

Copyright Office 

37 CFR Parts 202, 203, and 211 

[Docket No. 2011–4] 

Registration and Recordation Program 

AGENCY: Copyright Office, Library of 

Congress. 

ACTION: Final rule; technical 

amendments. 

SUMMARY: The Copyright Office is 

making non-substantive amendments to 

its regulations to reflect a reorganization 

that has moved the Recordation 

function from the Visual Arts and 

Recordation Division of the Registration 

and Recordation Program to the 

Information and Records Division. As a 

result of this reorganization, the name of 

the Registration and Recordation 

Program has been changed to the 

Registration Program. 

DATES: Effective Date: May 13, 2011. 

FOR FURTHER INFORMATION CONTACT: 

Elizabeth Scheffler, Chief Operating 

Officer, Copyright GC/I&R, P.O. Box 

70400, Washington, DC 20024. 

Telephone: (202) (707–8350). Telefax: 

(202) (707–8366). 

SUPPLEMENTARY INFORMATION: On 

February 13, 2011, the Copyright Office 

implemented a reorganization, 

commenced in December 2010, that 

moved the recordation function from 

the Visual Arts and Recordation 

Division of the Registration and 

Recordation Program to the Information 

and Records Division. As a result of the 

reorganization, the Registration and 

Recordation Program has been renamed 

the Registration Program. The 

Documents Recordation Team, which 

was part of the Visual Arts Division of 

the Registration and Recordation 

Program, has been renamed the 

Recordation Section of the Information 

and Records Division. 

The Recordation Section processes 

the recordation of transfers of copyright 

ownership and other documents 

pertaining to a copyright under section 

205 of the Copyright Act, the 

recordation of notices of termination of 

transfers and licenses under sections 

203 and 304(c) and (d) of the Copyright 

Act, and designations of agents of online 

service providers to receive notification 

of claims of infringement under section 

512(c) of the Copyright Act. 

This reorganization better aligns and 

leverages the skill sets of Recordation 

staff with similar skill sets required of 

staff in the Records Research and 

Certification Section of the Information 

and Records Division. The Office 

believes that the reorganization will 

result in timelier processing of 

recordations and make the public record 

available in a more timely fashion. 

Parts 202, 203, and 211 of the 

Copyright Office Regulations currently 

refer to the Registration and Recordation 

Program. In order to reflect the change 

in the name of the Program, the 

provisions of those parts of the 

regulations that refer to the Program are 

being amended to refer to the 

Registration Program. In addition, a 

typographical error in § 203.3(b)(2) is 

being corrected. 

List of Subjects 

37 CFR Part 202 

Copyright registration. 

37 CFR Part 203 

Freedom of Information Act. 

37 CFR Part 211 

Mask work. 

Final Rule 

Accordingly, 37 CFR Chapter II is 

amended by making the following 

technical corrections and amendments: 

PART 202—PREREGISTRATION AND 

REGISTRATION OF CLAIMS TO 

COPYRIGHT 

■ 1. The authority citation for part 202 

continues to read as follows: 

Authority: 17 U.S.C. 408(f), 702. 

§ 202.5 [Amended] 

■ 2. Amend § 202.5 by removing 

‘‘Registration and Recordation Program′′ 

each place it appears and adding in its 

place ‘‘Registration Program′′. 

§ 202.12 [Amended] 

■ 3. Amend § 202.12(c)(4)(vi) by 

removing ‘‘Registration and Recordation 

Program′′ and adding in its place 

‘‘Registration Program′′. 

§ 202.19 [Amended] 

■ 4. Amend § 202.19(e)(3) by removing 

‘‘Registration and Recordation Program′′ 

and adding in its place ‘‘Registration 

Program′′. 

§ 202.20 [Amended] 

■ 5. Amend § 202.20 by removing 

‘‘Registration and Recordation Program′′ 

each place it appears and adding in its 

place ‘‘Registration Program′′. 

§ 202.21 [Amended] 

■ 6. Amend § 202.21(h) introductory 

text by removing ‘‘Registration and 

Recordation Program′′ and adding in its 

place ‘‘Registration Program′′. 

PART 203—FREEDOM OF 

INFORMATION ACT: POLICIES AND 

PROCEDURES 

■ 7. The authority citation for part 203 

continues to read as follows: 

Authority: 17 U.S.C. 702, 5 U.S.C. 552. 

§ 203.3 [Amended] 

■ 8. Amend § 203.3 as follows: 

■ a. In paragraphs (b)(2) and (3) by 

removing ‘‘Registration and Recordation 

Program′′ and adding in its place 

‘‘Registration Program′′; and 

■ b. In paragraph (b)(2), by removing 

‘‘coyrightable′′ and adding 

‘‘copyrightable′′ in its place. 

PART 211—MASK WORK 

PROTECTION 

■ 9. The authority citation for part 211 

continues to read as follows: 

Authority: 17 U.S.C. 702, 908. 

§ 211.5 [Amended] 

■ 10. Amend § 211.5(d) by removing 

‘‘Registration and Recordation Program′′ 

and adding in its place ‘‘Registration 

Program′′. 

Dated: May 4, 2011. 

Maria A. Pallante, 

Acting Register of Copyrights. 

Approved by: 

James H. Billington, 

The Librarian of Congress. 

[FR Doc. 2011–11719 Filed 5–12–11; 8:45 am] 

BILLING CODE 1410–30–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R03–OAR–2010–1028; FRL–9305–2] 

Approval and Promulgation of Air 

Quality Implementation Plans; Virginia; 

Prevention of Significant Deterioration; 

Greenhouse Gas Permitting Authority 

and Tailoring Rule Revision 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is approving a State 

Implementation Plan (SIP) revision 

submitted by the Virginia Department of 

Environmental Quality (VADEQ) on 

October 27, 2010. This revision pertains 

to EPA’s greenhouse gas (GHG) 

Prevention of Significant Deterioration 

(PSD) permitting provisions as 

promulgated on June 3, 2010 in the 

Tailoring Rule. The SIP revision 

modifies Virginia’s PSD program to 

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Federal Register / Vol. 76, No. 93 / Friday, May 13, 2011 / Rules and Regulations 27899 

1Limitation of Approval of Prevention of 

Significant Deterioration Provisions Concerning 

Greenhouse Gas-Emitting Sources in State 

Implementation Plans; Final Rule. 75 FR 82536 

(December 30, 2010). 

2Endangerment and Cause or Contribute Findings 

for Greenhouse Gases Under Section 202(a) of the 

Clean Air Act. 74 FR 66496 (December 15, 2009). 

3 Interpretation of Regulations that Determine 

Pollutants Covered by Clean Air Act Permitting 

Programs. 75 FR 17004 (April 2, 2010). 

4Light-Duty Vehicle Greenhouse Gas Emission 

Standards and Corporate Average Fuel Economy 

Standards; Final Rule. 75 FR 25324 (May 7, 2010). 

5Prevention of Significant Deterioration and Title 

V Greenhouse Gas Tailoring Rule; Final Rule. 75 FR 

31514 (June 3, 2010). 

6Specifically, by notice dated December 13, 2010, 

EPA finalized a SIP Call that would require those 

states with SIPs that have approved PSD programs 

but do not authorize PSD permitting for GHGs to 

submit a SIP revision providing such authority. 

‘‘Action To Ensure Authority To Issue Permits 

Under the Prevention of Significant Deterioration 

Program to Sources of Greenhouse Gas Emissions: 

Finding of Substantial Inadequacy and SIP Call,′′ 75 

FR 77698 (Dec. 13, 2010). EPA has begun making 

findings of failure to submit that would apply in 

any state unable to submit the required SIP revision 

by its deadline, and finalizing FIPs for such states. 

See, e.g. ‘‘Action To Ensure Authority To Issue 

Permits Under the Prevention of Significant 

Deterioration Program to Sources of Greenhouse 

Gas Emissions: Finding of Failure To Submit State 

Implementation Plan Revisions Required for 

Greenhouse Gases,′′ 75 FR 81874 (December 29, 

2010); ‘‘Action To Ensure Authority To Issue 

Permits Under the Prevention of Significant 

Deterioration Program to Sources of Greenhouse 

Gas Emissions: Federal Implementation Plan,′′ 75 

FR 82246 (December 30, 2010). Because Virginia’s 

SIP already authorizes Virginia to regulate GHGs, 

Virginia is not subject to the proposed SIP Call or 

FIP. 

establish appropriate emission 

thresholds for determining which new 

stationary sources and modifications 

become subject to Virginia’s PSD 

permitting requirements for their GHG 

emissions. EPA is approving Virginia’s 

SIP revision because the Agency has 

determined that this SIP revision is in 

accordance with the CAA and Federal 

regulations regarding PSD permitting for 

GHGs. 

DATES: This final rule is effective on 

June 13, 2011. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

Number EPA–R03–OAR–2010–1028. All 

documents in the docket are listed in 

the http://www.regulations.gov Web 

site. Although listed in the electronic 

docket, some information is not publicly 

available, i.e., confidential business 

information (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 for public inspection during 

normal business hours at the Air 

Protection Division, U.S. Environmental 

Protection Agency, Region III, 1650 

Arch Street, Philadelphia, Pennsylvania 

19103. Copies of the State submittal are 

available at the Virginia Department of 

Environmental Quality, 629 East Main 

Street, Richmond, Virginia 23219. 

FOR FURTHER INFORMATION CONTACT: 

David Talley, (215) 814–2117, or by 

e-mail at talley.david@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

Throughout this document, whenever 

‘‘we,′′ ‘‘us,′′ or ‘‘our′′ is used, we mean 

EPA. On January 12, 2011 (76 FR 2070), 

EPA published a Notice of Proposed 

Rulemaking (NPR) for the 

Commonwealth of Virginia. The NPR 

proposed approval of a new Chapter 85 

of 9 VAC 5. The formal SIP revision was 

submitted by the VADEQ on October 27, 

2010. 

II. Summary of Virginia’s SIP Revision 

On October 27, 2010, VADEQ 

submitted a revision to EPA for 

approval into the Virginia SIP. This SIP 

revision would establish appropriate 

emission thresholds for determining 

which new or modified stationary 

sources become subject to Virginia’s 

PSD permitting requirements for GHG 

emissions. Final approval of Virginia’s 

October 27, 2010, SIP revision puts in 

place the GHG emission thresholds for 

PSD applicability set forth in EPA’s 

‘‘Prevention of Significant Deterioration 

and Title V Greenhouse Gas Tailoring 

Rule—Final Rule′′ (the Tailoring Rule, 

75 FR 31514, June 3, 2010) ensuring that 

smaller GHG sources emitting less than 

these thresholds will not be subject to 

permitting requirements. 

III. What is the background for today’s 

proposed action? 

This section briefly summarizes EPA’s 

recent GHG-related actions that provide 

the background for today’s final action. 

More detailed discussions of the 

background are found in the preambles 

for those actions. In particular, the 

background is contained in what we call 

the GHG PSD SIP Narrowing Rule,1 and 

in the preambles to the actions cited in 

that rule. 

A. GHG-Related Actions 

EPA has recently undertaken a series 

of actions pertaining to the regulation of 

GHGs that, although for the most part 

distinct from one another, establish the 

overall framework for today’s final 

action to approve Virginia’s October 27, 

2010 SIP revision. Four of these actions 

include, as they are commonly called, 

the Endangerment Finding and Cause or 

Contribute Finding, which EPA issued 

in a single final action,2 the Johnson 

Memo Reconsideration,3 the Light-Duty 

Vehicle Rule,4 and the Tailoring Rule.5

Taken together and in conjunction with 

the CAA, these actions established 

regulatory requirements for GHGs 

emitted from new motor vehicles and 

new motor vehicle engines; determined 

that such regulations, when they took 

effect on January 2, 2011, subjected 

GHGs emitted from stationary sources to 

PSD requirements; and limited the 

applicability of PSD requirements to 

GHG sources on a phased-in basis. EPA 

took this last action in the Tailoring 

Rule, which, more specifically, 

established appropriate GHG emission 

thresholds for determining the 

applicability of PSD requirements to 

GHG-emitting sources. 

The PSD permitting program is 

implemented through the SIP, and so in 

December 2010, EPA promulgated 

several rules to implement the new GHG 

PSD SIP program. Recognizing that 

some states had approved SIP PSD 

programs that did not apply PSD to 

GHGs, EPA issued a SIP call and, for 

some of these states, a Federal 

Implementation Plan (FIP).6

Recognizing that other states had 

approved SIP PSD programs that do 

apply PSD to GHGs, but that do so for 

sources that emit as little as 100 or 250 

tons per year (tpy) of GHG, and that do 

not limit PSD applicability to GHGs to 

the higher thresholds in the Tailoring 

Rule, EPA issued the GHG PSD SIP 

Narrowing Rule. Under that rule, EPA 

withdrew its approval of the affected 

SIPs to the extent those SIPs covered 

GHG-emitting sources below the 

Tailoring Rule thresholds. EPA based its 

action primarily on the ‘‘error 

correction′′ provisions of CAA section 

110(k)(6). 

B. Virginia’s Actions 

On July 28, 2010, Virginia provided a 

letter to EPA, in accordance with an 

EPA request to all states in the Tailoring 

Rule, with confirmation that the 

Commonwealth of Virginia has the 

authority to regulate GHGs in its PSD 

program. The letter also confirmed that 

current Virginia rules require regulating 

GHGs at the 100/250 tpy threshold that 

generally applies to all air pollutants 

subject to PSD and that is provided 

under the CAA PSD provisions, section 

169(1), rather than at the higher 

thresholds set in the Tailoring Rule. 

(See the docket for this rulemaking for 

a copy of Virginia’s letter.) 

In the SIP Narrowing Rule, published 

on December 30, 2010, EPA withdrew 

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27900 Federal Register / Vol. 76, No. 93 / Friday, May 13, 2011 / Rules and Regulations 

7 ‘‘Limitation of Approval of Prevention of 

Significant Deterioration Provisions Concerning 

Greenhouse-Gas Emitting Sources in State 

Implementation Plans; Final Rule.′′ 75 FR 82536 

(December 30, 2010). 

8Tailoring Rule, 75 FR 31517/1. 

9SIP Narrowing Rule, 75 FR 82540/2. 

10 Id. at 82542/3. 

11 Id. at 82544/1. 

12 Id. at 82540/2. 

13Although the Commenter discussed only the 

proposal to narrow, the final PSD SIP Narrowing 

Rule had been issued prior to when the commenter 

submitted its comments. EPA assumes these 

comments are intended to apply to the final PSD 

SIP Narrowing Rule. 

its approval of Virginia’s SIP—among 

other SIPs—to the extent that the SIP 

applies PSD permitting requirements to 

GHG emissions from sources emitting at 

levels below those set in the Tailoring 

Rule.7 As a result, Virginia’s current 

federally approved SIP provides the 

state with authority to apply PSD to 

GHG-emitting sources and requires new 

and modified sources to receive a PSD 

permit based on GHG emissions, but 

only if those sources emit at or above 

the Tailoring Rule thresholds. 

Virginia’s October 27, 2010 SIP 

revision amends its SIP to put in place 

the GHG emission thresholds for PSD 

applicability set forth in EPA’s Tailoring 

Rule. EPA’s approval of Virginia’s 

October 27, 2010 incorporates these 

adopted by the Commonwealth into the 

Federally-approved SIP. Doing so will 

clarify the applicable thresholds in the 

Virginia SIP. 

The basis for this SIP revision is that 

limiting PSD applicability to GHG 

sources which emit at or above the 

higher thresholds in the Tailoring Rule 

is consistent with the SIP provisions 

that provide required assurances of 

adequate resources, and thereby 

addresses the flaw in the SIP that led to 

the SIP Narrowing Rule. Specifically, 

CAA section 110(a)(2)(E) includes as a 

requirement for SIP approval that States 

provide ‘‘necessary assurances that the 

State * * * will have adequate 

personnel [and] funding * * * to carry 

out such [SIP].′′ In the Tailoring Rule, 

EPA established higher thresholds for 

PSD applicability to GHG-emitting 

sources on grounds that the states 

generally did not have adequate 

resources to apply PSD to GHG-emitting 

sources below the Tailoring Rule 

thresholds,8 and no State, including 

Virginia, asserted that it did have 

adequate resources to do so.9 In the SIP 

Narrowing Rule, EPA found that the 

affected states, including Virginia, had a 

flaw in their SIP at the time they 

submitted their PSD programs, which 

was that the applicability of the PSD 

programs was potentially broader than 

the resources available to them under 

their SIP.10 Accordingly, for each 

affected state, including Virginia, EPA 

concluded that EPA’s action in 

approving the SIP was in error, under 

CAA section 110(k)(6), and EPA 

rescinded its approval to the extent the 

PSD program applies to GHG-emitting 

sources below the Tailoring Rule 

thresholds.11 EPA recommended that 

States adopt a SIP revision to 

incorporate the Tailoring Rule 

thresholds, thereby (i) assuring that 

under State law, only sources at or 

above the Tailoring Rule thresholds 

would be subject to PSD; and (ii) 

avoiding confusion under the Federally 

approved SIP by clarifying that the SIP 

applies to only sources at or above the 

Tailoring Rule thresholds.12

IV. EPA’s Response to Comments 

Received on the Proposed Action 

EPA received a single set of relevant 

comments on its January 12, 2011 (76 

FR 2070) proposed action to approve 

revisions to Virginia SIP. These 

comments, provided by the Air 

Permitting Forum (hereinafter referred 

to as ‘‘the Commenter′′), raised concerns 

with regard to EPA’s January 12, 2011 

proposed action. A full set of these 

comments is provided in the docket for 

today’s final action. A summary of the 

comments and EPA’s responses are 

provided below. 

Generally, the adverse comments fall 

into four categories. First, the 

Commenter asserts that PSD 

requirements cannot be triggered by 

GHGs. Second, the Commenter 

expresses concerns regarding ‘‘EPA’s 

statement that it may narrow its prior 

SIP approvals′′ to ensure that sources 

with GHG emissions that are less than 

the Tailoring Rule’s thresholds will not 

be obligated under Federal law to obtain 

PSD permits prior to a SIP revision 

incorporating those thresholds. The 

Commenter explains that this SIP 

approval narrowing action would be 

‘‘illegal.′′ 13 Third, the Commenter states 

that EPA has failed to meet applicable 

statutory and executive order review 

requirements. Lastly, the Commenter 

states: ‘‘If EPA proceeds with this action, 

it must condition approval on the 

continued validity of its determination 

that PSD can be triggered by GHGs.′′ 

EPA’s response to these four categories 

of comments is provided below. 

Comment 1: The Commenter asserts 

that PSD requirements cannot be 

triggered by GHGs. In its letter, the 

Commenter states: ‘‘[n]o area in the 

Commonwealth of Virginia has been 

designated attainment or unclassifiable 

for greenhouse gases (GHGs), as there is 

no national ambient air quality standard 

(NAAQS) for GHGs. Therefore, GHGs 

cannot trigger PSD permitting 

requirements.′′ The Commenter notes 

that it made this argument in detail in 

comments submitted to EPA on the 

Tailoring Rule and other related GHG 

rulemakings. The Commenter attached 

those previously submitted comments to 

its comments on the proposed 

rulemaking related to this action. 

Finally, the Commenter states that ‘‘EPA 

should immediately provide notice that 

it is now interpreting the Act not to 

require that GHGs trigger PSD and allow 

Virginia to rescind that portion of its 

rules that would allow GHGs to trigger 

PSD.′′ 

Response 1: EPA established the 

requirement that PSD applies to all 

pollutants newly subject to regulation, 

including non-NAAQS pollutants, in 

earlier national rulemakings concerning 

the PSD program, and EPA has not reopened that issue in this rulemaking. 

Accordingly, these comments are not 

relevant to this rulemaking. In addition, 

EPA has explained in detail, in recent 

rulemakings concerning GHG PSD 

requirements, its reasons for disagreeing 

with these comments. For convenience, 

we briefly summarize these reasons 

here, although, again, we have not reopened this issue in this rulemaking. 

In an August 7, 1980 rulemaking at 45 

FR 52676, 45 FR 52710–52712, and 45 

FR 52735, EPA stated that a ‘‘major 

stationary source′′ was one that emitted 

‘‘any air pollutant subject to regulation 

under the Act′′ at or above the specified 

numerical thresholds; and defined a 

‘‘major modification,′′ in general, as a 

physical or operational change that 

increased emissions of ‘‘any pollutant 

subject to regulation under the Act′′ by 

more than an amount that EPA 

variously termed as de minimis or 

significant. In addition, in EPA’s NSR 

Reform rule at 67 FR 80186 and 67 FR 

80240 (December 31, 2002), EPA added 

to the PSD regulations the new 

definition of ‘‘regulated NSR pollutant′′ 

[currently codified at 40 CFR 

52.21(b)(50) and 40 CFR 51.166(a)(49)], 

noted that EPA added this term based 

on a request from a commenter to 

‘‘clarify which pollutants are covered 

under the PSD program′′ and explained 

that in addition to criteria pollutants for 

which a NAAQS has been established, 

‘‘[t]he PSD program applies 

automatically to newly regulated NSR 

pollutants, which would include final 

promulgation of an NSPS [new source 

performance standard] applicable to a 

previously unregulated pollutant.′′ Id. at 

67 FR 80240 and 67 FR 80264. Among 

other things, the definition of ‘‘regulated 

NSR pollutant′′ includes ‘‘[a]ny 

pollutant that otherwise is subject to 

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Federal Register / Vol. 76, No. 93 / Friday, May 13, 2011 / Rules and Regulations 27901 

regulation under the Act.′′ See 40 CFR 

52.21(b)(50)(d)(iv); see also 40 CFR 

51.166(a)(49)(iv). 

In any event, EPA disagrees with the 

Commenter’s underlying premise that 

PSD requirements were not triggered for 

GHGs when GHGs became subject to 

regulation as of January 2, 2011. As just 

noted, this has been well-established 

and discussed in connection with prior 

EPA actions, including, most recently, 

the Johnson Memo Reconsideration and 

the Tailoring Rule. In addition, EPA’s 

January 12, 2011 proposed rulemaking 

notice provides the general basis for the 

Agency’s rationale that GHGs, while not 

a NAAQS pollutant, can trigger PSD 

permitting requirements. The January 

12, 2011 notice also refers the reader to 

the preamble to the Tailoring Rule for 

further information on this rationale. In 

that rulemaking, EPA addressed at 

length the comment that PSD can be 

triggered only by pollutants subject to 

the NAAQS and concluded that such an 

interpretation of the Act would 

contravene Congress’s unambiguous 

intent. See 75 FR 31560–31562. Further 

discussion of EPA’s rationale for 

concluding that PSD requirements are 

triggered by non-NAAQS pollutants 

such as GHGs appears in the Tailoring 

Rule Response to Comments document 

(‘‘Prevention of Significant Deterioration 

and Title V GHG Tailoring Rule: EPA’s 

Response to Public Comments′′), pp. 34– 

41; and in EPA’s response to motions for 

a stay filed in the litigation concerning 

those rules [‘‘EPA’s Response to Motions 

for Stay,′′ Coalition for Responsible 

Regulation v. EPA, D.C. Cir. No. 09– 

1322 (and consolidated cases)], at pp. 

47–59, and are incorporated by 

reference here. These documents have 

been placed in the docket for today’s 

action. 

Comment 2: The Commenter 

expresses concerns regarding the 

legality of narrowing prior SIP 

approvals if states cannot interpret their 

regulations to include the Tailoring Rule 

thresholds within the phrase ‘‘subject to 

regulation.′′ 

Response 2: While EPA does not agree 

with the Commenter’s assertion that the 

narrowing approach that EPA proposed 

in the Tailoring Rule and finalized in 

the PSD SIP Narrowing Rule is illegal, 

the validity of the narrowing approach 

is irrelevant to the action that EPA is 

today taking for Virginia’s October 27, 

2010 SIP revision. EPA did not propose 

to narrow its approval of Virginia’s SIP 

as part of its January 12, 2011 proposed 

action, and in today’s final action, EPA 

is acting to approve a SIP revision 

submitted by Virginia and is not 

otherwise narrowing its approval of 

prior submitted and approved 

provisions in the Virginia SIP. 

Accordingly, the legality of the 

narrowing approach is not at issue in 

this rulemaking. 

Comment 3: The Commenter states 

that EPA has failed to meet applicable 

statutory and executive order review 

requirements. Specifically, the 

Commenter refers to the statutory 

requirements and executive orders for 

the Paperwork Reduction Act, the 

Regulatory Flexibility Act (RFA), the 

Unfunded Mandates Reform Act, and 

Executive Order 13132 (Federalism). 

Additionally, the Commenter mentions 

that EPA has never analyzed the costs 

and benefits associated with triggering 

PSD for stationary sources in Virginia, 

much less nationwide. 

Response 3: EPA disagrees with the 

Commenter’s statement that EPA has 

failed to meet applicable statutory and 

executive order review requirements. As 

stated in EPA’s proposed approval of 

Virginia’s October 27, 2010 SIP revision, 

this action merely approves state law as 

meeting Federal requirements and does 

not impose additional requirements 

beyond those imposed by state law. 

Accordingly, EPA’s approval, in and of 

itself, does not impose any new 

information collection burden, as 

defined in 5 CFR 1320.3(b) and (c), that 

would require additional review under 

the Paperwork Reduction Act. In 

addition, this SIP approval will not have 

a significant economic impact on a 

substantial number of small entities, 

beyond that which would be required 

by the state law requirements, so a 

regulatory flexibility analysis is not 

required under the RFA. Accordingly, 

this rule is appropriately certified under 

section 605(b) of the RFA. Moreover, as 

this action approves pre-existing 

requirements under state law and does 

not impose any additional enforceable 

duty beyond that required by state law, 

it does not contain any unfunded 

mandates or significantly or uniquely 

affect small governments, such that it 

would be subject to the Unfunded 

Mandates Reform Act. Furthermore, this 

action does not have Federalism 

implications that would make Executive 

Order 13132 applicable, because it 

merely approves a state rule 

implementing a Federal standard and 

does not alter the relationship or the 

distribution of power and 

responsibilities established in the CAA. 

Finally, regarding the Commenter’s 

assertion that EPA has ‘‘never analyzed 

the costs and benefits of triggering PSD 

for stationary sources in Virginia, much 

less nationwide′′, this comment is not 

relevant to the current action because 

this action is not triggering GHG PSD 

requirements. 

Today’s rule is a routine approval of 

a SIP revision, which approves state 

law, and does not impose any 

requirements beyond those imposed by 

state law. To the extent these comments 

are directed more generally to the 

application of the statutory and 

executive order reviews to the required 

regulation of GHGs under PSD 

programs, these comments are irrelevant 

to the approval of state law in today’s 

action. However, EPA provided an 

extensive response to similar comments 

in promulgating the Tailoring Rule. EPA 

refers the Commenter to the sections in 

the Tailoring Rule entitled ‘‘VII. 

Comments on Statutory and Executive 

Order Reviews,′′ 75 FR 31601–31603, 

and ‘‘VI. What are the economic impacts 

of the final rule?,′′ 75 FR 31595–31601. 

EPA also notes that today’s action does 

not in-and-of itself trigger the regulation 

of GHGs. To the contrary, GHGs are 

already being regulated nationally, and 

PSD permitting for GHG emissions by 

Virginia is already authorized under the 

existing SIP. Today’s action simply puts 

in place the GHG emission thresholds 

for PSD applicability set forth in EPA’s 

Tailoring Rule, thereby ensuring that 

smaller GHG sources emitting less than 

these thresholds will not be subject to 

permitting requirements. 

Comment 4: The Commenter states 

that ‘‘[i]f EPA proceeds with this action, 

it must condition approval on the 

continued validity of its determination 

that PSD can be triggered by GHGs.′′ 

Further, the Commenter remarks on the 

ongoing litigation in the U.S. Court of 

Appeals for the D.C. Circuit. 

Specifically, regarding EPA’s 

determination that PSD can be triggered 

by GHGs or is applicable to GHGs, the 

Commenter mentions that ‘‘EPA should 

explicitly state in any final rule that the 

continued enforceability of these 

provisions in the Virginia SIP is limited 

to the extent to which the Federal 

requirements remain enforceable.′′ 

Response 4: EPA believes that it is 

most appropriate to take actions that are 

consistent with the Federal regulations 

that are in place at the time the action 

is being taken. To the extent that any 

changes to Federal regulations related to 

today’s action result from pending legal 

challenges or other actions, EPA will 

process appropriate SIP revisions in 

accordance with the procedures 

provided in the Act and EPA’s 

regulations. EPA notes that in an order 

dated December 10, 2010, the United 

States Court of Appeals for the D.C. 

Circuit denied motions to stay EPA’s 

regulatory actions related to GHGs. 

Coalition for Responsible Regulation, 

Inc. v. EPA, Nos. 09–1322, 10–1073, 10– 

1092 (and consolidated cases), Slip Op. 

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at 3 (D.C. Cir. December 10, 2010) (order 

denying stay motions). 

V. General Information Pertaining to 

SIP Submittals From the 

Commonwealth of Virginia 

In 1995, Virginia adopted legislation 

that provides, subject to certain 

conditions, for an environmental 

assessment (audit) ‘‘privilege′′ for 

voluntary compliance evaluations 

performed by a regulated entity. The 

legislation further addresses the relative 

burden of proof for parties either 

asserting the privilege or seeking 

disclosure of documents for which the 

privilege is claimed. Virginia’s 

legislation also provides, subject to 

certain conditions, for a penalty waiver 

for violations of environmental laws 

when a regulated entity discovers such 

violations pursuant to a voluntary 

compliance evaluation and voluntarily 

discloses such violations to the 

Commonwealth and takes prompt and 

appropriate measures to remedy the 

violations. Virginia’s Voluntary 

Environmental Assessment Privilege 

Law, Va. Code Sec. 10.1–1198, provides 

a privilege that protects from disclosure 

documents and information about the 

content of those documents that are the 

product of a voluntary environmental 

assessment. The Privilege Law does not 

extend to documents or information (1) 

that are generated or developed before 

the commencement of a voluntary 

environmental assessment; (2) that are 

prepared independently of the 

assessment process; (3) that demonstrate 

a clear, imminent and substantial 

danger to the public health or 

environment; or (4) that are required by 

law. 

On January 12, 1998, the 

Commonwealth of Virginia Office of the 

Attorney General provided a legal 

opinion that states that the Privilege 

law, Va. Code Sec. 10.1–1198, precludes 

granting a privilege to documents and 

information ‘‘required by law,′′ 

including documents and information 

‘‘required by Federal law to maintain 

program delegation, authorization or 

approval,′′ since Virginia must ‘‘enforce 

Federally authorized environmental 

programs in a manner that is no less 

stringent than their Federal 

counterparts. * * *′′ The opinion 

concludes that ‘‘[r]egarding Sec. 10.1– 

1198, therefore, documents or other 

information needed for civil or criminal 

enforcement under one of these 

programs could not be privileged 

because such documents and 

information are essential to pursuing 

enforcement in a manner required by 

Federal law to maintain program 

delegation, authorization or approval.′′ 

Virginia’s Immunity law, Va. Code 

Sec. 10.1–1199, provides that ‘‘[t]o the 

extent consistent with requirements 

imposed by Federal law,′′ any person 

making a voluntary disclosure of 

information to a state agency regarding 

a violation of an environmental statute, 

regulation, permit, or administrative 

order is granted immunity from 

administrative or civil penalty. The 

Attorney General’s January 12, 1998 

opinion states that the quoted language 

renders this statute inapplicable to 

enforcement of any Federally authorized 

programs, since ‘‘no immunity could be 

afforded from administrative, civil, or 

criminal penalties because granting 

such immunity would not be consistent 

with Federal law, which is one of the 

criteria for immunity.′′ 

Therefore, EPA has determined that 

Virginia’s Privilege and Immunity 

statutes will not preclude the 

Commonwealth from enforcing its PSD 

program consistent with the Federal 

requirements. In any event, because 

EPA has also determined that a state 

audit privilege and immunity law can 

affect only state enforcement and cannot 

have any impact on Federal 

enforcement authorities. EPA may at 

any time invoke its authority under the 

CAA, including, for example, sections 

113, 167, 205, 211 or 213, to enforce the 

requirements or prohibitions of the state 

plan, independently of any state 

enforcement effort. In addition, citizen 

enforcement under section 304 of the 

CAA is likewise unaffected by this, or 

any, state audit privilege or immunity 

law. 

VI. Final Action 

EPA is approving 9 VAC5 Chapter 85 

as a revision to the Virginia SIP. EPA 

has determined that this SIP submittal 

is approvable because it is in 

accordance with the CAA and EPA 

regulations regarding PSD permitting for 

GHGs. 

As discussed above, in the PSD SIP 

Narrowing Rule, EPA both narrowed its 

prior approval of a number of SIPs and 

asked that each affected state withdraw 

from EPA consideration the part of its 

SIP that is no longer approved, and 

stated that approval of a SIP revision 

incorporating the Tailoring Rule 

thresholds into a SIP would count as 

removing these no-longer-approved 

provisions. Today’s SIP revision 

approval accomplishes exactly this. 

Because EPA is approving Virginia’s 

changes to its air quality regulations to 

incorporate appropriate thresholds for 

GHG permitting applicability into 

Virginia’s SIP, then paragraph (t) in 

§ 52.2423 of 40 CFR part 52, as included 

in EPA’s PSD SIP Narrowing Rule— 

which codifies EPA’s limiting its 

approval of Virginia’s PSD SIP to not 

cover the applicability of PSD to GHGemitting sources below the Tailoring 

Rule thresholds—is no longer necessary. 

In today’s action, EPA is also amending 

Section 52.2423 of 40 CFR part 52 to 

remove this unnecessary regulatory 

language; the removal of this nowextraneous language is ministerial in 

nature. 

VII. Statutory and Executive Order 

Reviews 

A. General Requirements 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

CAA and applicable Federal regulations. 

42 U.S.C. 7410(k); 40 CFR 52.02(a). 

Thus, in reviewing SIP submissions, 

EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. Accordingly, this 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 CAA; and 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

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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 Virginia 

SIP is not approved to apply in Indian 

country located in the Commonwealth, 

and EPA notes that it will not impose 

substantial direct costs on tribal 

governments or preempt tribal law. 

B. Submission to Congress and the 

Comptroller General 

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. EPA will submit a 

report containing this action and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule′′ as 

defined by 5 U.S.C. 804(2). 

C. Petitions for Judicial Review 

Under section 307(b)(1) of the CAA, 

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the appropriate 

circuit by July 12, 2011. Filing a petition 

for reconsideration by the Administrator 

of this final rule to approve Virginia’s 

October 27, 2010 SIP revision does not 

affect the finality of this action for the 

purposes of judicial review nor does it 

extend the time within which a petition 

for judicial review may be filed, and 

shall not postpone the effectiveness of 

such rule or action. This action 

pertaining to greenhouse gas permitting 

in Virginia may not be challenged later 

in proceedings to enforce its 

requirements. (See section 307(b)(2).) 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

and Reporting and recordkeeping 

requirements. 

Dated: April 25, 2011. 

James W. Newsom, 

Acting Regional Administrator, Region III. 

40 CFR Part 52 is amended as follows: 

PART 52—[AMENDED] 

■ 1. The authority citation for 40 CFR 

part 52 continues to read as follows: 

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

Subpart VV—Virginia 

■ 2. In § 52.2420, the table in paragraph 

(c) is amended by adding entries for 

Chapter 85, Sections 5–85–10, 5–85–40, 

5–85–50; 5–85–60, and 5–85–70 after 

existing section 5–80–2240 to read as 

follows: 

§ 52.2420 Identification of plan. 

* * * * * 

(c) * * * 

EPA-APPROVED VIRGINIA REGULATIONS AND STATUTES

State citation Title/subject 

State 

effective 

date 

EPA approval date 

Explanation 

[former SIP 

citation] 

*******

9 VAC 5, Chapter 85 Permits for Stationary Sources of Pollutants Subject to Regulation 

Part I Applicability 

5–85–10 ............................... Applicability ...................................................................... 1/2/11 5/13/11 [Insert page number where the document 

begins].

Part III Prevention of Significant Deterioration Permit Actions 

5–85–40 ............................... Prevention of Significant Deterioration Area Permit Actions.1/2/11 5/13/11 [Insert page number where the document 

begins].

5–85–50 ............................... Definitions ........................................................................ 1/2/11 5/13/11 [Insert page number where the document 

begins].

Part IV State Operating Permit Actions 

5–85–60 ............................... State Operating Permit Actions ....................................... 1/2/11 5/13/11 [Insert page number where the document 

begins].

5–85–70 ............................... Definitions ........................................................................ 1/2/11 5/13/11 [Insert page number where the document 

begins].

* * * * * * * 

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27904 Federal Register / Vol. 76, No. 93 / Friday, May 13, 2011 / Rules and Regulations 

* * * * * 

■ 3. In § 52.2423, paragraph (t) is 

removed. 

[FR Doc. 2011–11710 Filed 5–12–11; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R05–OAR–2010–0999; FRL–9304–8] 

Approval and Promulgation of Air 

Quality Implementation Plans; Indiana 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Direct final rule. 

SUMMARY: EPA is approving a request 

submitted by the Indiana Department of 

Environmental Management (IDEM) on 

November 24, 2010, to revise the 

Indiana State Implementation Plan 

(SIP). The submission revises the 

Indiana Administrative Code (IAC) by 

amending and updating the definition of 

‘‘References to the Code of Federal 

Regulations,′′ to refer to the 2009 

edition. The submission also makes a 

minor revision to the definition of 

‘‘Nonphotochemically reactive 

hydrocarbons′′ or ‘‘negligibly 

photochemically reactive compounds′′ 

by deleting an outdated Federal 

Register citation. 

DATES: This rule is effective on July 12, 

2011, unless EPA receives adverse 

written comments by June 13, 2011. If 

EPA receives adverse comments, EPA 

will publish a timely withdrawal of the 

rule in the Federal Register and inform 

the public that the rule will not take 

effect. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R05– 

OAR–2010–0999 by one of the following 

methods: 

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

the on-line instructions for submitting 

comments. 

2. E-mail: aburano.douglas@epa.gov. 

3. Fax: (312) 408–2279. 

4. Mail: Douglas Aburano, Chief, 

Control Strategies Section, Air Programs 

Branch (AR–18J), U.S. Environmental 

Protection Agency, 77 West Jackson 

Boulevard, Chicago, Illinois 60604. 

5. Hand Delivery: Douglas Aburano, 

Chief, Control Strategies Section, Air 

Programs Branch (AR–18J), U.S. 

Environmental Protection Agency, 77 

West Jackson Boulevard, Chicago, 

Illinois 60604. Such deliveries are only 

accepted during the Regional Office 

normal hours of operation, and special 

arrangements should be made for 

deliveries of boxed information. The 

Regional Office official hours of 

business are Monday through Friday, 

8:30 a.m. to 4:30 p.m. excluding Federal 

holidays. 

Instructions: Direct your comments to 

Docket ID No. EPA–R05–OAR–2010– 

0999. 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, 

will be publicly available only in hard 

copy. Publicly available docket 

materials are available either 

electronically in http:// 

www.regulations.gov or in hard copy at 

the U.S. Environmental Protection 

Agency, Region 5, Air and Radiation 

Division, 77 West Jackson Boulevard, 

Chicago, Illinois 60604. This facility is 

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

Monday through Friday, excluding 

Federal holidays. We recommend that 

you telephone Charles Hatten, 

Environmental Engineer, at (312) 886– 

6031 before visiting the Region 5 office. 

FOR FURTHER INFORMATION CONTACT: 

Charles Hatten, Environmental 

Engineer, Control Strategies Section, Air 

Programs Branch (AR–18J), U.S. 

Environmental Protection Agency, 

Region 5, 77 West Jackson Boulevard, 

Chicago, Illinois 60604, (312) 886–6031, 

hatten.charles@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document whenever 

‘‘we,′′ ‘‘us,′′ or ‘‘our′′ is used, we mean 

EPA. This supplementary information 

section is arranged as follows: 

I. What is the background for this action? 

A. When did the State submit the 

requested SIP revision to EPA? 

B. Did Indiana hold public hearings on this 

SIP revision? 

II. What revision did the State request be 

incorporated into the SIP? 

III. What action is EPA taking? 

IV. Statutory and Executive Order Reviews 

I. What is the background for this 

action? 

A. When did the State submit the 

requested SIP revision to EPA? 

IDEM submitted the SIP revision on 

November 24, 2010. 

B. Did Indiana hold public hearing on 

this SIP revision? 

IDEM held a public hearing on June 

2, 2010. IDEM did not receive any 

public comments concerning the SIP 

revision. 

II. What revision did the State request 

be incorporated into the SIP? 

The State has requested that SIP 

revision include: (1) updated references 

to the CFR at 326 IAC 1–1–3, and (2) the 

deletion of a reference to Federal 

Register citation at 326 IAC 1–2–48 to 

clarify that the compounds dimethyl 

carbonate and propylene carbonate are 

excluded from the definition of volatile 

organic compound (VOC). 

Rule 326 IAC 1–1–3, definition of 

‘‘References to the Code of Federal 

Regulations.′′ IDEM updated the 

reference to the CFR in 326 IAC 1–1–3 

from the 2008 edition to the 2009 

edition. This is solely an administrative 

change that allows Indiana to reference 

a more current version of the CFR. By 

amending 326 IAC 1–1–3 to reference 

the most current version of the CFR, 

Title 326 of the IAC will be consistent 

and current with Federal regulations. 

Rule 326 IAC 1–2–48, definition of 

‘‘Nonphotochemically reactive 

hydrocarbons′′ or ‘‘negligibly 

photochemically reactive compounds.′′ 

IDEM has amended 326 IAC 1–2–48 to 

clarify the inclusion of two additional 

compounds to the list of compounds 

that are excluded from the definition of 

VOC by deleting language in section 

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