### 40619 Federal Register / Vol. 76, No. 132 / Monday, July 11, 2011 / Rules and Regulations

does not create an environmental risk to health or risk to safety that may disproportionately affect children.

Indian Tribal Governments

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

Energy Effects

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

Technical Standards

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

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

Environment

We have analyzed this rule under Department of Homeland Security Management Directive 023–01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321–4370f), and have concluded this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2–1, paragraph (34)(g), of the Instruction. This rule involves the establishment of security zones. An environmental analysis checklist and a categorical exclusion is
available in the docket where indicated
under ADDRESSES.

List of Subjects in 33 CFR Part 165

Harbors, Marine safety, Navigation (water), Reporting and record keeping requirements, Security measures, Waterways.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR Part 165, as follows:

**PART 165—REGULATED NAVIGATION**
**AREAS AND LIMITED ACCESS AREAS**

■ 1. The authority citation for Part 165
continues to read as follows:

Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05–1, 6.04–1, 6.04–6, 160.5; Pub. L. 107–295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1

■ 2. Add § 165.T13–186 to read as
follows:

**§ 165.T13–186 Security Zone; 2011 Seattle Seafair Fleet Week Moving Vessels, Puget**  **Sound, Washington**

(a) Location. The following areas are security zones: All waters within the Captain of the Port Puget Sound Zone encompassed within 500 yards of the HMCS WHITEHORSE (NCSM 705), HMCS NANAIMO (NCSM 702), and the USCGC MELLON (WHEC 717) while each vessel is participating in the Seafair Fleet Week Parade of Ships and while moored at Pier 66, Terminal 25, and Terminal 46, Elliott Bay, Seattle,

WA.

(b) Regulations. In accordance with the general regulations in 33 CFR Part 165, Subpart D, no person or vessel may enter or remain in the security zones without the permission of the COTP or Designated Representative. The COTP has granted general permission for vessels that operate at the minimum speed necessary to maintain course to enter the outer 400 yards of the security
zone. In the event the COTP must revoke the general permission to enter, notice will be provided to the public via
a Broadcast Notice to Mariners. See 33 CFR Part 165, Subpart D, for additional requirements. The COTP may be assisted by other federal, state or local agencies with the enforcement of the security zones. (c) Authorization. All vessel operators who desire to transit through the outer 400 yards of the security zones at greater than minimum speed necessary to maintain course, enter the inner 100 yards of the security zones, or enter any portion of the security zones when general permission to transit through outer 400 yards of the security zones at minimum speed necessary to maintain
course has been revoked must obtain permission from the COTP or Designated Representative by contacting the on-scene Coast Guard patrol craft on VHF 13 or Ch 16. Requests must include the reason why movement within the security zones is necessary. Vessel operators granted permission to enter the security zones will be escorted by the on-scene Coast Guard patrol craft until they are outside of the security zones, except that vessels operating in the security zones under general permission to transit through the outer 400 yards of the security zones at minimum speed necessary to maintain
course will not be escorted.

(d) Enforcement period. This rule is effective from 8 a.m. on August 3, 2011, through 5 p.m. on August 8, 2011.

Dated: June 27, 2011.
S.J. Ferguson, Captain, U.S. Coast Guard, Captain of the Port, Puget Sound.

[FR Doc. 2011–17261 Filed 7–8–11; 8:45 am]

**BILLING CODE 9110–04–P**

**ENVIRONMENTAL PROTECTION**
**AGENCY**

**40 CFR Part 52**

**[EPA–R07–OAR–2011–0309; FRL–9429–1]**

**Approval and Promulgation of Implementation Plans; State of** 
**Missouri**

**AGENCY :**  Environmental Protection Agency (EPA).

**ACTION :**  Final rule.

**SUMMARY :**  EPA is approving the State Implementation Plan (SIP) submittal from the State of Missouri addressing the requirements of Clean Air Act (CAA or Act) sections 110(a)(1) and (2) to implement, maintain, and enforce the
1997 revisions to the National Ambient Air Quality Standards (NAAQS) for
ozone. The rationale for this action is explained in this rule and in more detail in the notice of proposed rulemaking for
this action. EPA received no comments on the proposal.

**DATES :**  Effective Date: This rule is effective August 10, 2011.


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1 See, Comments of Midwest Environmental Defense Center, dated May 31, 2011. Docket #EPA– R05–OAR–2007–1179 (adverse comments on proposals for three states in Region 5). EPA notes that these public comments on another proposal are not relevant to this rulemaking and do not have to be directly addressed in this rulemaking. EPA will respond to these comments in the appropriate rulemaking action to which they apply. **ADDRESSES :**  EPA has established a
docket for this action under Docket ID
No. EPA–R07–OAR–2011–0309. All
documents in the docket are listed on
the http://www.regulations.gov index. Although listed in the index, 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 at the U.S. Environmental Protection Agency, Region 7, in the Air Planning and Development Branch, of the Air and Waste Management Division, 901 North 5th Street, Kansas City, Kansas 66101. EPA requests that, if at all possible, you contact the person
listed in the **FOR FURTHER INFORMATION**

**CONTACT** section to schedule your inspection. The interested persons wanting to examine these documents should make an appointment with the
office at least 24 hours in advance. Regional Office official hours of business are Monday through Friday, 8:00 to 4:30, excluding Federal holidays.

**FOR FURTHER INFORMATION CONTACT :**  Ms. Elizabeth Kramer, Air Planning and Development Branch, U.S. Environmental Protection Agency, Region 7, 901 North 5th Street, Kansas City, Kansas 66101; telephone number: (913) 551–7186; fax number: (913) 551–

7844; e-mail address: kramer.elizabeth@epa.gov.

**SUPPLEMENTARY INFORMATION :**  Throughout this document whenever ‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean EPA. These sections provide additional
information on this final action:

Table of Contents

I. Background II. Summary of Relevant Submissions III. Scope of Infrastructure SIPs

IV. Final Action V. Statutory and Executive Order Reviews

I. Background

On March 30, 2011 (76 FR 17585), EPA published a proposed rulemaking
for the State of Missouri. This rulemaking proposed approval of Missouri’s submittal dated February 27, 2007, as meeting the relevant and applicable requirements of CAA sections 110(a)(1) and (2) necessary to implement, maintain, and enforce the 1997 NAAQS. II. Summary of Relevant Submissions

The above referenced submittal
addresses the infrastructure elements specified in CAA sections 110(a)(1) and (2). This submittal refers to the implementation, maintenance and
enforcement of the 1997 8-hour ozone NAAQS. The rationale supporting EPA’s proposed action is explained in the proposal and EPA incorporates by reference the rationale in the proposal as supplemented by this rule, as its rationale for the final rule. No public
comments were received on the proposed rulemaking.

III. Scope of Infrastructure SIPs

EPA is currently acting upon SIPs that address the infrastructure requirements of CAA section 110(a)(1) and (2) for ozone and PM2.5 NAAQS for various states across the country. Commenters on EPA’s recent proposals for some
states raised concerns about EPA statements that it was not addressing
certain substantive issues in the context of acting on the infrastructure SIP
submissions. 1 The commenters specifically raised concerns involving provisions in existing SIPs and with
EPA’s statements that it would address two issues separately and not as part of
actions on the infrastructure SIP submissions: (i) existing provisions related to excess emissions during periods of start-up, shutdown, or malfunction at sources, that may be contrary to the CAA and EPA’s policies addressing such excess emissions (‘‘SSM’’); and (ii) existing provisions
related to ‘‘director’s variance’’ or ‘‘director’s discretion’’ that purport to permit revisions to SIP approved emissions limits with limited public process or without requiring further approval by EPA, that may be contrary to the CAA (‘‘director’s discretion’’).
EPA notes that there are two other
substantive issues for which EPA
likewise stated that it would address the issues separately: (i) existing provisions
for minor source new source review programs that may be inconsistent with the requirements of the CAA and EPA’s regulations that pertain to such programs (‘‘minor source NSR’’); and (ii) existing provisions for Prevention of Significant Deterioration (PSD) programs that may be inconsistent with current requirements of EPA’s ‘‘Final NSR Improvement Rule,’’ 67 FR 80186 (December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (‘‘NSR Reform’’). In light of the comments, EPA
now believes that its statements in various proposed actions on infrastructure SIPs with respect to these
four individual issues should be explained in greater depth with respect
to these issues.

EPA intended the statements in the proposals concerning these four issues merely to be informational, and to provide general notice of the potential existence of provisions within the existing SIPs of some states that might require future corrective action. EPA did not want states, regulated entities, or members of the public to be under the misconception that the Agency’s approval of the infrastructure SIP submission of a given state should be interpreted as a re-approval of certain types of provisions that might exist buried in the larger existing SIP for such state. Thus, for example, EPA explicitly noted that the Agency believes that some states may have existing SIP approved SSM provisions that are contrary to the CAA and EPA policy, but that ‘‘in this rulemaking, EPA is not proposing to approve or disapprove any existing State provisions with regard to excess emissions during SSM of operations at facilities.’’ EPA further explained, for informational purposes, that ‘‘EPA plans to address such State regulations in the future.’’ EPA made similar statements, for similar reasons, with respect to the director’s discretion, minor source NSR, and NSR Reform issues. EPA’s objective was to make clear that approval of an infrastructure SIP for these ozone and PM2.5 NAAQS should not be construed as explicit or implicit re-approval of any existing provisions that relate to these four
substantive issues.

Unfortunately, the commenters and others evidently interpreted these
statements to mean that EPA considered action upon the SSM provisions and the
other three substantive issues to be integral parts of acting on an infrastructure SIP submission, and therefore that EPA was merely postponing taking final action on the
issue in the context of the infrastructure
SIPs. This was not EPA’s intention. To the contrary, EPA only meant to convey its awareness of the potential for certain types of deficiencies in existing SIPs, and to prevent any misunderstanding that it was reapproving any such existing provisions. EPA’s intention was to convey its position that the statute does not require that infrastructure SIPs address these specific substantive issues in existing SIPs and that these issues


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2 For example, section 110(a)(2)(E) provides that states must provide assurances that they have adequate legal authority under state and local law to carry out the SIP; section 110(a)(2)(C) provides that states must have a substantive program to address certain sources as required by part C of the CAA; section 110(a)(2)(G) provides that states must have both legal authority to address emergencies and substantive contingency plans in the event of such an emergency.

3 For example, section 110(a)(2)(D)(i) requires
EPA to be sure that each state’s SIP contains adequate provisions to prevent significant contribution to nonattainment of the NAAQS in other states. This provision contains numerous terms that require substantial rulemaking by EPA in order to determine such basic points as what constitutes significant contribution. See, e.g., ‘‘Rule To Reduce Interstate Transport of Fine Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions to Acid Rain Program; Revisions to the NOx SIP Call; Final Rule,’’ 70 FR 25162 (May 12, 2005)(defining, among other things, the phrase ‘‘contribute significantly to nonattainment’’).

4 See, e.g., Id., 70 FR 25162, at 63–65 (May 12, 2005)(explaining relationship between timing requirement of section 110(a)(2)(D) versus section 110(a)(2)(I)).

5 EPA issued separate guidance to states with respect to SIP submissions to meet section 110(a)(2)(D)(i) for the 1997 ozone and 1997 PM2.5 NAAQS. See, ‘‘Guidance for State Implementation Plan (SIP) Submissions to Meet Current Outstanding Obligations Under Section 110(a)(2)(D)(i) for the 8-Hour Ozone and PM2.5 National Ambient Air Quality Standards,’’ from William T. Harnett, Director Air Quality Policy Division OAQPS, to Regional Air Division Director, Regions I–X, dated August 15, 2006.

6 For example, implementation of the 1997 PM2.5 NAAQS required the deployment of a system of
new monitors to measure ambient levels of that new indicator species for the new NAAQS. may be dealt with separately, outside the context of acting on the
infrastructure SIP submission of a state. To be clear, EPA did not mean to imply that it was not taking a full final agency
action on the infrastructure SIP submission with respect to any
substantive issue that EPA considers to be a required part of acting on such submissions under section 110(k) or under section 110(c). Given the confusion evidently resulting from EPA’s statements, however, we want to explain more fully the Agency’s reasons for concluding that these four potential substantive issues in existing SIPs may be addressed separately.

The requirement for the SIP
submissions at issue arises out of CAA section 110(a)(1). That provision requires that states must make a SIP submission ‘‘within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a national primary ambient air quality standard (or any revision thereof)’’ and that these SIPS are to provide for the ‘‘implementation, maintenance, and enforcement’’ of such NAAQS. Section 110(a)(2) includes a list of specific elements that ‘‘[e]ach such plan’’
submission must meet. EPA has historically referred to these particular
submissions that states must make after the promulgation of a new or revised NAAQS as ‘‘infrastructure SIPs.’’ This specific term does not appear in the statute, but EPA uses the term to distinguish this particular type of SIP submission designed to address basic structural requirements of a SIP from other types of SIP submissions designed to address other different requirements,
such as ‘‘nonattainment SIP’’ submissions required to address the nonattainment planning requirements of part D, ‘‘regional haze SIP’’ submissions required to address the visibility protection requirements of CAA section 169A, new source review permitting program submissions required to address the requirements of part D, and a host of other specific types of SIP submissions that address other specific

matters.

Although section 110(a)(1) addresses the timing and general requirements for these infrastructure SIPs, and section 110(a)(2) provides more details concerning the required contents of these infrastructure SIPs, EPA believes that many of the specific statutory provisions are facially ambiguous. In particular, the list of required elements provided in section 110(a)(2) contains a wide variety of disparate provisions, some of which pertain to required legal authority, some of which pertain to required substantive provisions, and some of which pertain to requirements for both authority and substantive provisions. 2 Some of the elements of section 110(a)(2) are relatively straightforward, but others clearly require interpretation by EPA through rulemaking, or recommendations through guidance, in order to give specific meaning for a particular NAAQS. 3

Notwithstanding that section 110(a)(2)
states that ‘‘each’’ SIP submission must meet the list of requirements therein, EPA has long noted that this literal reading of the statute is internally inconsistent, insofar as section 110(a)(2)(I) pertains to nonattainment SIP requirements that could not be met on the schedule provided for these SIP submissions in section 110(a)(1). 4 This
illustrates that EPA must determine which provisions of section 110(a)(2) may be applicable for a given
infrastructure SIP submission. Similarly, EPA has previously decided
that it could take action on different parts of the larger, general ‘‘infrastructure SIP’’ for a given NAAQS
without concurrent action on all subsections, such as section 110(a)(2)(D)(i), because the Agency
bifurcated the action on these latter ‘‘interstate transport’’ provisions within section 110(a)(2) and worked with states to address each of the four prongs of section 110(a)(2)(D)(i) with substantive administrative actions proceeding on
different tracks with different
schedules. 5 This illustrates that EPA may conclude that subdividing the applicable requirements of section 110(a)(2) into separate SIP actions may sometimes be appropriate for a given NAAQS where a specific substantive action is necessitated, beyond a mere submission addressing basic structural aspects of the State’s implementation plan. Finally, EPA notes that not every element of section 110(a)(2) would be relevant, or as relevant, or relevant in the same way, for each new or revised NAAQS and the attendant infrastructure SIP submission for that NAAQS. For example, the monitoring requirements that might be necessary for purposes of section 110(a)(2)(B) for one NAAQS could be very different than what might be necessary for a different pollutant. Thus, the content of an infrastructure
SIP submission to meet this element from a state might be very different for an entirely new NAAQS, versus a minor revision to an existing NAAQS. 6

Similarly, EPA notes that other types of SIP submissions required under the statute also must meet the requirements of section 110(a)(2), and this also demonstrates the need to identify the applicable elements for other SIP submissions. For example, nonattainment SIPs required by part D
likewise have to meet the relevant subsections of section 110(a)(2) such as section 110(a)(2)(A) or (E). By contrast,
it is clear that nonattainment SIPs would not need to meet the portion of section 110(a)(2)(C) that pertains to part C, i.e., the PSD requirement applicable

in attainment areas. Nonattainment SIPs required by part D also would not need to address the requirements of section 110(a)(2)(G) with respect to emergency episodes, as such requirements would
not be limited to nonattainment areas. As this example illustrates, each type of SIP submission may implicate some subsections of section 110(a)(2) and not
others.

Given the potential for ambiguity of the statutory language of section 110(a)(1) and (2), EPA believes that it is appropriate for EPA to interpret that language in the context of acting on the infrastructure SIPs for a given NAAQS. Because of the inherent ambiguity of the list of requirements in section 110(a)(2), EPA has adopted an approach in which it reviews infrastructure SIPs against this list of elements ‘‘as applicable.’’ In other words, EPA assumes that Congress


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7 See, ‘‘Guidance on SIP Elements Required Under Section 110(a)(1) and (2) for the 1997 8-hour Ozone and PM2.5 National Ambient Air Quality Standards,’’ from William T. Harnett, Director Air Quality Policy Division, to Air Division Directors, Regions I–X, dated October 2, 2007 (the ‘‘2007 Guidance’’). EPA issued comparable guidance for the 2006 PM2.5 NAAQS entitled ‘‘Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) for the 2006 24–Hour Fine Particle (PM2.5) National Ambient Air Quality Standards (NAAQS),’’ from William T, Harnett, Director Air Quality Policy Division, to Regional Air Division Directors, Regions I–X, dated September 25, 2009 (the ‘‘2009 Guidance’’).

8 Id., at page 2.

9 Id., at attachment A, page 1.

10 Id., at page 4. In retrospect, the concerns raised by commenters with respect to EPA’s approach to
some substantive issues indicates that the statute is not so ‘‘self explanatory,’’ and indeed is sufficiently ambiguous that EPA needs to interpret it in order to explain why these substantive issues do not need
to be addressed in the context of infrastructure SIPs and may be addressed at other times and by other

means. 11 EPA has recently issued a SIP call to rectify a specific SIP deficiency related to the SSM issue. See, ‘‘Finding of Substantial Inadequacy of Implementation Plan; Call for Utah State Implementation Plan Revision,’’ 74 FR 21639 (April 18, 2011).

12 EPA has recently utilized this authority to correct errors in past actions on SIP submissions related to PSD programs. See, ‘‘Limitation of Approval of Prevention of Significant DeteriorationProvisions Concerning Greenhouse Gas EmittingSources in State Implementation Plans; Final Rule,’’ 75 FR 82536 (Dec. 30, 2010). EPA has previously used its authority under CAA 110(k)(6) to remove numerous other SIP provisions that the Agency determined it had approved in error. See, e.g., 61 FR 38664 (July 25, 1996) and 62 FR 34641 (June 27, 1997) (corrections to American Samoa, Arizona, California, Hawaii, and Nevada SIPs); 69 FR 67062 (November 16, 2004) (corrections to California SIP); and 74 FR 57051 (November 3, 2009) (corrections to Arizona and Nevada SIPs). could not have intended that each and every SIP submission, regardless of the purpose of the submission or the NAAQS in question, would meet each of the requirements, or meet each of them in the same way. EPA elected to use guidance to make recommendations for infrastructure SIPs for these NAAQS.

On October 2, 2007, EPA issued guidance making recommendations for
the infrastructure SIP submissions for both the 1997 8-hour ozone NAAQS and the 1997 PM2.5 NAAQS. 7 Within this guidance document, EPA described the duty of states to make these submissions to meet what the Agency characterized
as the ‘‘infrastructure’’ elements for SIPs, which it further described as the ‘‘basic SIP requirements, including emissions inventories, monitoring, and modeling to assure attainment and
maintenance of the standards.’’ 8 As further identification of these basic structural SIP requirements, ‘‘attachment A’’ to the guidance document included a short description
of the various elements of section 110(a)(2) and additional information about the types of issues that EPA considered germane in the context of
such infrastructure SIPs. EPA emphasized that the description of the basic requirements listed on attachment
A was not intended ‘‘to constitute an interpretation of’’ the requirements, and was merely a ‘‘brief description of the required elements.’’ 9 EPA also stated its belief that with one exception, these requirements were ‘‘relatively self explanatory, and past experience with SIPs for other NAAQS should enable States to meet these requirements with assistance from EPA Regions.’’ 10 For the one exception to that general assumption, however, i.e., how states should proceed with respect to the requirements of section 110(a)(2)(G) for the 1997 PM2.5 NAAQS, EPA gave much more specific recommendations.
But for other infrastructure SIP submittals, and for certain elements of
the submittals for the 1997 PM2.5 NAAQS, EPA assumed that each State would work with its corresponding EPA regional office to refine the scope of a
State’s submittal based on an assessment of how the requirements of section 110(a)(2) should reasonably apply to the basic structure of the State’s implementation plan for the NAAQS in question.

Significantly, the 2007 Guidance did not explicitly refer to the SSM, director’s discretion, minor source NSR, or NSR Reform issues as among specific substantive issues EPA expected states
to address in the context of the infrastructure SIPs, nor did EPA give any more specific recommendations with respect to how states might address such issues even if they elected to do so.
The SSM and director’s discretion issues implicate section 110(a)(2)(A),
and the minor source NSR and NSR Reform issues implicate section 110(a)(2)(C). In the 2007 Guidance, however, EPA did not indicate to states that it intended to interpret these provisions as requiring a substantive submission to address these specific
issues in the context of the infrastructure SIPs for these NAAQS. Instead, EPA’s 2007 Guidance merely
indicated its belief that the states should make submissions in which they established that they have the basic SIP structure necessary to implement, maintain, and enforce the NAAQS. EPA
believes that states can establish that they have the basic SIP structure, notwithstanding that there may be potential deficiencies within the existing SIP. Thus, EPA’s proposals
mentioned these issues not because the Agency considers them issues that must
be addressed in the context of an infrastructure SIP as required by section 110(a)(1) and (2), but rather because
EPA wanted to be clear that it considers these potential existing SIP problems as separate from the pending infrastructure

SIP actions.

EPA believes that this approach to the infrastructure SIP requirement is reasonable, because it would not be feasible to read section 110(a)(1) and (2) to require a top to bottom, stem to stern, review of each and every provision of an existing SIP merely for purposes of assuring that the state in question has
the basic structural elements for a functioning SIP for a new or revised NAAQS. Because SIPs have grown by accretion over the decades as statutory and regulatory requirements under the CAA have evolved, they may include some outmoded provisions and historical artifacts that, while not fully up to date, nevertheless may not pose a significant problem for the purposes of ‘‘implementation, maintenance, and
enforcement’’ of a new or revised NAAQS when EPA considers the overall effectiveness of the SIP. To the contrary, EPA believes that a better approach is for EPA to determine which specific SIP elements from section 110(a)(2) are applicable to an infrastructure SIP for a given NAAQS, and to focus attention on those elements that are most likely to need a specific SIP revision in light of the new or revised NAAQS. Thus, for example, EPA’s 2007 Guidance specifically directed states to focus on the requirements of section 110(a)(2)(G) for the 1997 PM2.5 NAAQS because of the absence of underlying EPA regulations for emergency episodes for this NAAQS and an anticipated absence of relevant provisions in existing SIPs.

Finally, EPA believes that its approach is a reasonable reading of section 110(a)(1) and (2) because the statute provides other avenues and mechanisms to address specific substantive deficiencies in existing SIPs. These other statutory tools allow the Agency to take appropriate tailored action, depending upon the nature and severity of the alleged SIP deficiency. Section 110(k)(5) authorizes EPA to issue a ‘‘SIP call’’ whenever the Agency
determines that a State’s implementation plan is substantially inadequate to attain or maintain the NAAQS, to mitigate interstate transport, or otherwise to comply with the CAA. 11 Section 110(k)(6) authorizes EPA to correct errors in past actions, such as past approvals of SIP submissions. 12 Significantly, EPA’s determination that
an action on the infrastructure SIP is not the appropriate time and place to address all potential existing SIP problems does not preclude the


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13 EPA has recently disapproved a SIP submission from Colorado on the grounds that it would have included a director’s discretion provision inconsistent with CAA requirements, including section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344 (July 21, 2010)(proposed disapproval of director’s discretion provisions); 76 FR 4540 (January 26, 2011)(final disapproval of such provisions). Agency’s subsequent reliance on provisions in section 110(a)(2) as part of
the basis for action at a later time. For example, although it may not be appropriate to require a state to eliminate all existing inappropriate director’s discretion provisions in the course of acting on the infrastructure SIP, EPA believes that section 110(a)(2)(A) may be among the statutory bases that the Agency cites in the course of addressing the issue in a subsequent

action. 13

IV. Final Action

EPA is taking final action to approve Missouri’s submittal that provides the basic program elements to meet the applicable requirements in CAA sections 110(a)(2)(A),(B),(C), (D)(ii),(E),(F),(G),(H),(J),(K),(L), and (M) necessary to implement, maintain, and enforce the 1997 8-hour ozone NAAQS.

As explained in the proposed rulemaking, this action does not address the requirements of section 110(a)(2)(D)(i) for the 1997 8-hour ozone NAAQS, because it has already been addressed in a separate rulemaking. See 72 FR 25975. The scope of this action is further discussed in section III, above.

V. Statutory and Executive Order

Reviews

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

The Congressional Review Act, 5

U.S.C. 801 et seq., as amended 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).

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 September 9, 2011. Filing a petition for reconsideration by the
Administrator of this final rule 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 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,

Ozone.

Dated: June 28, 2011.
Karl Brooks, Regional Administrator, Region 7.

40 CFR part 52 is amended as follows:

**PART 52—[AMENDED]**

■ 1. The authority citation for part 52
continues to read as follows:

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

**Subpart AA—Missouri**

■ 2. In § 52.1320 (e) the table is amended by adding an entry in
numerical order to read as follows:

**§ 52.1320 Identification of plan.**

* * * * *

(e) * * *


### 40624 Federal Register / Vol. 76, No. 132 / Monday, July 11, 2011 / Rules and Regulations

1 See, Comments of Midwest Environmental Defense Center, dated May 31, 2011. Docket # EPA– R05–OAR–2007–1179 (adverse comments on proposals for three states in Region 5). EPA notes that these public comments on another proposal are not relevant to this rulemaking and do not have to be directly addressed in this rulemaking. EPA will respond to these comments in the appropriate rulemaking action to which they apply. 

### EPA-A PPROVED 

### M ISSOURI 

### N ONREGULATORY 

### SIP P ROVISIONS

Name of non-regulatory SIP revision Applicable geographic or nonattainment area State submittal date EPA approval date Explanation

*******(54) Section 110(a)(2) Infrastructure Requirements for the 1997 8-Hour Ozone NAAQS. Statewide ................... 02/27/2007 07/11/2011, [Insert citation of publication]. This action addresses the following CAA elements, as applicable: 110(a)(2)(A), (B), (C), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M).

[FR Doc. 2011–17253 Filed 7–8–11; 8:45 am]

**BILLING CODE 6560–50–P**

**ENVIRONMENTAL PROTECTION**
**AGENCY**

**40 CFR Part 52**

**[EPA–R07–OAR–2011–0304; FRL–9434–3]**

**Approval and Promulgation of Implementation Plans; State of Kansas** 

**AGENCY :**  Environmental Protection Agency (EPA).

**ACTION :**  Final rule.

**SUMMARY :**  EPA is approving the State Implementation Plan (SIP) submittal from the State of Kansas addressing the requirements of Clean Air Act (CAA or Act) sections 110(a)(1) and (2) to implement, maintain, and enforce the
1997 revisions to the National Ambient Air Quality Standards (NAAQS) for
ozone. The rationale for this action is explained in this notice and in more detail in the notice of proposed rulemaking for this action. EPA received no comments on the proposal.

**DATES :**  Effective Date: This rule is effective August 10, 2011.

**ADDRESSES :**  EPA has established a
docket for this action under Docket ID
No. EPA–R07–OAR–2011–0304. All
documents in the docket are listed on
the http://www.regulations.gov index. Although listed in the index, 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 at the U.S. Environmental Protection Agency, Region 7, in the Air Planning and Development Branch of the Air and Waste Management Division, 901 North 5th Street, Kansas City, Kansas 66101. EPA requests that, if at all possible, you contact the person
listed in the **FOR FURTHER INFORMATION**

**CONTACT** section to schedule your inspection. The interested persons wanting to examine these documents should make an appointment with the
office at least 24 hours in advance. The Regional Office official hours of business are Monday through Friday, 8 to 4:30, excluding Federal holidays.

**FOR FURTHER INFORMATION CONTACT :**  Ms. Elizabeth Kramer, Air Planning and Development Branch, U.S. Environmental Protection Agency, Region 7, 901 North 5th Street, Kansas City, Kansas 66101; telephone number: (913) 551–7186; fax number: (913) 551–

7844; e-mail address: kramer.elizabeth@epa.gov.

**SUPPLEMENTARY INFORMATION :**  Throughout this document whenever ‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean EPA. These sections provide additional
information on this final action:

Table of Contents

I. Background II. Summary of Relevant Submissions III. Scope of Infrastructure SIPs
IV. Final Action V. Statutory and Executive Order Reviews

I. Background

On March 30, 2011 (76 FR 17599), EPA published a proposed rulemaking for the State of Kansas. This rulemaking proposed approval of Kansas’ submittals dated January 8, 2008 and July 20, 2009 as meeting the relevant and applicable requirements of CAA sections 110(a)(1) and (2) necessary to implement, maintain, and enforce the 1997 8-hour ozone NAAQS.

II. Summary of Relevant Submissions

The above referenced submittals
address the infrastructure elements specified in CAA sections 110(a)(1) and (2). These submittals refer to the implementation, maintenance and
enforcement of the 1997 8-hour ozone NAAQS. The rationale supporting EPA’s proposed action is explained in the proposal and EPA incorporates by reference the rationale in the proposal, as supplemented by this notice, as its rationale for the final rule. No public
comments were received on the proposed rulemaking.

III. Scope of Infrastructure SIPs

EPA is currently acting upon SIPs that address the infrastructure requirements of CAA section 110(a)(1) and (2) for
ozone and PM2.5 NAAQS for various states across the country. Commenters on EPA’s recent proposals for some
states raised concerns about EPA statements that it was not addressing
certain substantive issues in the context of acting on the infrastructure SIP
submissions. 1 The commenters specifically raised concerns involving provisions in existing SIPs and with
EPA’s statements that it would address two issues separately and not as part of
actions on the infrastructure SIP submissions: (i) existing provisions related to excess emissions during periods of start-up, shutdown, or malfunction at sources, that may be contrary to the CAA and EPA’s policies addressing such excess emissions (‘‘SSM’’); and (ii) existing provisions
related to ‘‘director’s variance’’ or ‘‘director’s discretion’’ that purport to permit revisions to SIP approved emissions limits with limited public process or without requiring further approval by EPA, that may be contrary to the CAA (‘‘director’s discretion’’).
EPA notes that there are two other
substantive issues for which EPA
likewise stated that it would address the issues separately: (i) Existing provisions
for minor source new source review programs that may be inconsistent with the requirements of the CAA and EPA’s regulations that pertain to such programs (‘‘minor source NSR’’); and (ii) existing provisions for Prevention of Significant Deterioration (PSD)