62200 Federal Register / Vol. 77, No. 198 / Friday, October 12, 2012 / Proposed Rules 

costs on tribal governments or preempt 

tribal law. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Nitrogen dioxides, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Volatile organic 

compounds. 

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

Dated: September 28, 2012. 

Ron Curry, 

Regional Administrator, Region 6. 

[FR Doc. 2012–25158 Filed 10–11–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R04–OAR–2010–0019(b); FRL–9741– 

1] 

Approval and Promulgation of 

Implementation Plans; North Carolina 

Portion of the Charlotte-Gastonia-Rock 

Hill, North Carolina-South Carolina 

1997 8-Hour Ozone Nonattainment 

Area; Reasonable Further Progress 

Plan 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing to approve 

state implementation plan revisions, 

submitted by the North Carolina 

Department of Environment and Natural 

Resources, on June 15, 2007, and 

November 30, 2009, to address the 

reasonable further progress (RFP) plan 

requirements for the 1997 8-hour ozone 

national ambient air quality standards 

(NAAQS) for the North Carolina portion 

of the bi-state Charlotte-Gastonia-Rock 

Hill 1997 8-hour ozone nonattainment 

area. The Charlotte-Gastonia-Rock Hill, 

North Carolina-South Carolina 1997 8- 

hour ozone nonattainment area 

(hereafter referred to as the ‘‘bi-state 

Charlotte Area’’) is comprised of 

Cabarrus, Gaston, Lincoln, 

Mecklenburg, Rowan, Union and a 

portion of Iredell (Davidson and Coddle 

Creek Townships) Counties in North 

Carolina; and a portion of York County 

in South Carolina. EPA is also providing 

the status of its adequacy determination 

for the motor vehicle emissions budgets 

(MVEB) for volatile organic compounds 

and nitrogen oxides that were included 

in North Carolina’s RFP plan. Further, 

EPA is proposing to approve these 

MVEB. This proposed action is being 

taken pursuant to section 110 of the 

Clean Air Act. EPA will take action on 

South Carolina’s RFP plan for its 

portion of the bi-state Charlotte Area, in 

a separate action. In the Final Rules 

Section of this Federal Register, EPA is 

approving the State’s implementation 

plan revisions as a direct final rule 

without prior proposal because the 

Agency views these submittals as 

noncontroversial and anticipates no 

adverse comments. 

DATES: Written comments must be 

received on or before November 13, 

2012. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R04– 

OAR–2010–0019 by one of the following 

methods: 

1. www.regulations.gov: Follow the 

on-line instructions for submitting 

comments. 

2. Email: R4–RDS@epa.gov. 

3. Fax: (404) 562–9019. 

4. Mail: ‘‘EPA–R04–OAR–2010– 

0019,’’ Regulatory Development Section, 

Air Planning Branch, Air, Pesticides and 

Toxics Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street SW., 

Atlanta, Georgia 30303–8960. 

5. Hand Delivery or Courier: Lynorae 

Benjamin, Chief, Regulatory 

Development Section, Air Planning 

Branch, Air, Pesticides and Toxics 

Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street SW., 

Atlanta, Georgia 30303–8960. Such 

deliveries are only accepted during the 

Regional Office’s normal hours of 

operation. The Regional Office’s official 

hours of business are Monday through 

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

holidays. 

Please see the direct final rule which is 

located in the Rules section of this 

Federal Register for detailed 

instructions on how to submit 

comments. 

FOR FURTHER INFORMATION CONTACT: Sara 

Waterson, Regulatory Development 

Section, Air Planning Branch, Air, 

Pesticides and Toxics Management 

Division, U.S. Environmental Protection 

Agency, Region 4, 61 Forsyth Street 

SW., Atlanta, Georgia 30303–8960. The 

telephone number is (404) 562–9061. 

Ms. Waterson can be reached via 

electronic mail at 

waterson.sara@epa.gov. 

SUPPLEMENTARY INFORMATION: On March 

12, 2008, EPA issued a revised ozone 

NAAQS. See 73 FR 16436. The current 

action, however, is being taken to 

address requirements under the 1997 8- 

hour ozone NAAQS. Requirements for 

the North Carolina portion of the bistate Charlotte Area under the 2008 

ozone NAAQS will be addressed in the 

future. For additional information see 

the direct final rule which is published 

in the Rules Section of this Federal 

Register. A detailed rationale for the 

approval of the RFP plan requirements 

for the 1997 8-hour ozone NAAQS is set 

forth in the direct final rule. If no 

adverse comments are received in 

response to this rule, no further activity 

is contemplated. If EPA receives adverse 

comments, the direct final rule will be 

withdrawn and all public comments 

received will be addressed in a 

subsequent final rule based on this 

proposed rule. EPA will not institute a 

second comment period on this 

document. Any parties interested in 

commenting on the matters being 

proposed for approval into the North 

Carolina SIP today should do so at this 

time. 

Dated: October 2, 2012. 

A. Stanley Meiburg, 

Acting Regional Administrator, Region 4. 

[FR Doc. 2012–25188 Filed 10–11–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R06–OAR–2011–0033; FRL–9740–5] 

Approval and Promulgation of 

Implementation Plans; New Mexico; 

Revisions to the New Source Review 

(NSR) State Implementation Plan (SIP); 

Prevention of Significant Deterioration 

(PSD) and Nonattainment New Source 

Review (NNSR) Permitting 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing to approve 

revisions to the New Mexico SIP to 

update the New Mexico NNSR and PSD 

SIP permitting programs consistent with 

federal requirements. EPA proposes to 

find that these revisions to the New 

Mexico SIP meet the Federal Clean Air 

Act (the Act or CAA) and EPA 

regulations, and are consistent with EPA 

policies. New Mexico submitted the 

PSD and NNSR SIP permitting revisions 

in two SIP submittals on June 11, 2009, 

and May 23, 2011. EPA is proposing this 

action under section 110 and parts C 

and D of the Act. 

DATES: Comments must be received on 

or before November 13, 2012. 

ADDRESSES: Submit your comments, 

identified by Docket No. EPA–R06– 


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OAR–2011–0033, by one of the 

following methods: 

• Federal Rulemaking Portal: http:// 

www.regulations.gov. Follow the online 

instructions for submitting comments. 

• U.S. EPA Region 6 ‘‘Contact Us’’ 

Web site: http://epa.gov/region6/ 

r6comment.htm. Please click on ‘‘6PD 

(Multimedia)’’ and select ‘‘Air’’ before 

submitting comments. 

• Email: Ms. Adina Wiley at 

wiley.adina@epa.gov. Please also send a 

copy by email to the person listed in the 

FOR FURTHER INFORMATION CONTACT

section below. 

• Fax: Ms. Adina Wiley, Air Permits 

Section (6PD–R), at fax number 214– 

665–6762. 

• Mail: Ms. Adina Wiley, Air Permits 

Section (6PD–R), Environmental 

Protection Agency, 1445 Ross Avenue, 

Suite 1200, Dallas, Texas 75202–2733. 

• Hand or Courier Delivery: Ms. 

Adina Wiley, Air Permits Section (6PD– 

R), Environmental Protection Agency, 

1445 Ross Avenue, Suite 1200, Dallas, 

Texas 75202–2733. Such deliveries are 

accepted only between the hours of 8 

a.m. and 4 p.m. weekdays, and not on 

legal holidays. Special arrangements 

should be made for deliveries of boxed 

information. 

Instructions: Direct your comments to 

Docket ID No. EPA–R06–OAR–2011– 

0033. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at 

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 www.regulations.gov 

or email. The 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 email 

comment directly to EPA without going 

through www.regulations.gov, your 

email 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. For additional information 

about EPA’s public docket visit the EPA 

Docket Center homepage at http:// 

www.epa.gov/epahome/dockets.htm. 

Docket: All documents in the docket 

are listed in the 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 at 

www.regulations.gov or in hard copy at 

the Air Planning Section (6PD–L), 

Environmental Protection Agency, 1445 

Ross Avenue, Suite 700, Dallas, Texas 

75202–2733. The file will be made 

available by appointment for public 

inspection in the Region 6 FOIA Review 

Room between the hours of 8:30 a.m. 

and 4:30 p.m. weekdays except for legal 

holidays. Contact the person listed in 

the FOR FURTHER INFORMATION CONTACT

paragraph below or Mr. Bill Deese at 

214–665–7253 to make an appointment. 

If possible, please make the 

appointment at least two working days 

in advance of your visit. There will be 

a fee of 15 cents per page for making 

photocopies of documents. On the day 

of the visit, please check in at the EPA 

Region 6 reception area at 1445 Ross 

Avenue, Suite 700, Dallas, Texas 75202. 

The State submittal is also available 

for public inspection during official 

business hours by appointment: New 

Mexico Environment Department, Air 

Quality Bureau, 1301 Siler Road, 

Building B, Santa Fe, New Mexico 

87502. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Adina Wiley, Air Permits Section (6PD– 

R), Environmental Protection Agency, 

Region 6, 1445 Ross Avenue, Suite 700, 

Dallas, Texas 75202–2733, telephone 

214–665–2115; fax number 214–665– 

6762; email address 

wiley.adina@epa.gov. 

SUPPLEMENTARY INFORMATION: 

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

and ‘‘our’’ means EPA. 

Table of Contents 

I. Background for Our Proposed Action 

II. Analysis of State Submittals 

A. Analysis of Submitted Revisions to the 

New Mexico Prevention of Significant 

Deterioration Permitting SIP Program 

1. NSR PM2.5 Rule 

a. What are the requirements of the NSR 

PM2.5 Rule for PSD SIP Programs? 

b. How does the May 23, 2011 New Mexico 

PSD submittal satisfy the NSR PM2.5

Rule? 

i. ‘‘Condensables’’ Provision 

2. PM2.5 PSD Increment—SILs—SMC Rule 

a. What are the requirements of the PM2.5

PSD Increment—SILs—SMC Rule for 

PSD SIP Programs? 

i. What are PSD Increments? 

ii. What are PSD SILs and SMC? 

(a) Significant Impact Levels (SILs) 

(b) Significant Monitoring Concentration 

(SMC) 

(c) SILs—SMC Litigation 

b. How does the May 23, 2011 New Mexico 

PSD submittal satisfy the PM2.5 PSD 

Increment—SILs—SMC Rule? 

3. Reasonable Possibility in Recordkeeping 

Rule 

a. What are the requirements of the 

Reasonable Possibility in Recordkeeping 

Rule for PSD SIP Programs? 

b. How does the May 23, 2011 New Mexico 

PSD submittal satisfy the Reasonable 

Possibility in Recordkeeping Rule? 

B. Analysis of Submitted Revisions to the 

New Mexico Nonattainment New Source 

Review Permitting SIP Program 

1. Phase 2 8-Hour Ozone Implementation 

Rule 

a. What are the requirements of the Phase 

2 8-Hour Ozone Implementation Rule for 

NNSR SIP Programs? 

b. How does the June 11, 2009 New Mexico 

NNSR submittal satisfy the Phase 2 8- 

Hour Ozone Implementation Rule? 

2. NSR PM2.5 Rule 

a. What are the requirements of the NSR 

PM2.5 Rule for NNSR SIP Programs? 

b. How does the May 23, 2011 New Mexico 

NNSR submittal satisfy the NSR PM2.5

Rule? 

3. PM2.5 PSD Increment—SILs—SMC Rule 

a. What are the requirements of the PM2.5

PSD Increment—SILs—SMC Rule for 

NNSR SIP Programs? 

b. How does the May 23, 2011 New Mexico 

NNSR submittal satisfy the PM2.5 PSD 

Increment—SILs—SMC Rule? 

4. Reasonable Possibility in Recordkeeping 

Rule 

a. What are the requirements of the 

Reasonable Possibility in Recordkeeping 

Rule for NNSR SIP Programs? 

b. How does the May 23, 2011 New Mexico 

NNSR submittal satisfy the Reasonable 

Possibility in Recordkeeping Rule? 

III. Proposed Action 

IV. Statutory and Executive Order Reviews 

I. Background for Our Proposed Action 

The Act at section 110(a)(2)(C) 

requires states to develop and submit to 

EPA for approval into the state SIP, 

preconstruction review and permitting 

programs applicable to certain new and 

modified stationary sources of air 

pollutants for attainment and 

nonattainment areas that cover both 

major and minor new sources and 

modifications, collectively referred to as 

the New Source Review (NSR) SIP. The 

CAA NSR SIP program is composed of 

three separate programs: PSD, NNSR, 

and Minor NSR. PSD is established in 

part C of title I of the CAA and applies 

in areas that meet the NAAQS— 


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‘‘attainment areas’’—as well as areas 

where there is insufficient information 

to determine if the area meets the 

NAAQS—‘‘unclassifiable areas.’’ The 

NNSR SIP program is established in part 

D of title I of the CAA and applies in 

areas that are not in attainment of the 

NAAQS—‘‘nonattainment areas.’’ The 

Minor NSR SIP program addresses 

construction or modification activities 

that do not emit, or have the potential 

to emit, beyond certain thresholds and 

thus do not qualify as ‘‘major’’ and 

applies regardless of the designation of 

the area in which a source is located. 

Together, these programs are referred to 

as the NSR program. EPA regulations 

governing the criteria that states must 

satisfy for EPA approval of the NSR 

programs as part of the SIP are 

contained in 40 CFR 51.160–51.166; 

52.21, 52.24; and part 51, Appendix S. 

New Mexico submitted on June 11, 

2009, and May 23, 2011, a collection of 

regulations for approval by EPA into the 

New Mexico SIP for PSD and NNSR 

permitting regulations. New Mexico 

adopted these regulations and submitted 

them for SIP approval to ensure 

consistency with the federal PSD and 

NNSR permitting requirements 

associated with two recently 

promulgated NAAQS for 8-hour ozone 

and PM2.5. Specifically, the June 11, 

2009, and May 23, 2011, New Mexico 

SIP submittals address PSD and NNSR 

permitting requirements promulgated in 

EPA’s Phase 2 8-hour Ozone 

Implementation Rule (70 FR 71612, 

November 29, 2005), NSR PM2.5 Rule 

(73 FR 28321, May 16, 2008), PM2.5 PSD 

Increment—Significant Impact Levels 

(SILs)—Significant Monitoring 

Concentration (SMC) Rule (75 FR 64864, 

October 20, 2010) and Reasonable 

Possibility in Recordkeeping Rule (72 

FR 72607, December 21, 2007). Today’s 

proposed action and the accompanying 

TSD present our rationale for proposing 

approval of these regulations as meeting 

the minimum federal requirements for 

the adoption and implementation of the 

PSD and NNSR SIP permitting 

programs. Because the PSD and NNSR 

SIP permitting programs are two 

separate, distinct programs under Title 

I of the Act, this proposed action and 

the accompanying TSD will present a 

review of the submitted New Mexico 

rules first for consistency with PSD SIP 

requirements, followed by the NNSR 

SIP requirements as applicable. 

II. Analysis of State Submittals 

June 11, 2009 Submittal 

In a letter dated June 11, 2009, 

Governor Richardson submitted 

revisions to the New Mexico SIP that 

were adopted by the New Mexico 

Environmental Improvement Board (NM 

EIB) on July 31, 2009, and became 

effective on August 31, 2009. This SIP 

submittal included revisions to the 

following Parts of the New Mexico Air 

Code (NMAC): 

• Revisions to the General Definitions 

at 20.2.2 NMAC, 

• Revisions to the New Mexico PSD 

Permitting Program at 20.2.74 NMAC, 

and 

• Revisions to the New Mexico NNSR 

Permitting Program at 20.2.79 NMAC. 

Note that EPA SIP-approved the June 

11, 2009 revisions to the PSD program 

at 20.2.74 NMAC on November 26, 2010 

(75 FR 72688), effective December 27, 

2010. The rulemaking docket for this 

action is EPA–R06–OAR–2009–0656. 

EPA has taken no action to date on the 

June 11, 2009 submitted revisions to 

20.2.2 NMAC or 20.2.79 NMAC. 

This review will not cover the 

revisions to the General Definitions for 

the New Mexico SIP at 20.2.2 NMAC, 

submitted on June 11, 2009. These 

provisions are severable from our 

review of the PSD and NNSR program 

submittals because each permitting 

program contains program-specific 

definitions used in place of the General 

Definitions. The program-specific 

definitions for the PSD and NNSR 

programs are SIP-approved at 20.2.74.7 

and 20.2.79.7 NMAC, respectively. The 

revisions to 20.2.2 NMAC submitted on 

June 11, 2009, remain before EPA for 

review and will be addressed in a 

separate action. 

May 23, 2011 Submittal 

In a letter dated May 23, 2011, 

Governor Martinez submitted revisions 

to the New Mexico SIP that were 

adopted by the NM EIB on May 3, 2011, 

and became effective on June 3, 2011. 

This SIP submittal included revisions to 

the following Parts of the New Mexico 

Air Code: 

• Revisions to the New Mexico PSD 

Permitting Program at 20.2.74 NMAC, 

and 

• Revisions to the New Mexico NNSR 

Permitting Program at 20.2.79 NMAC. 

A. Analysis of Submitted Revisions to 

the New Mexico Prevention of 

Significant Deterioration Permitting SIP 

Program 

EPA’s most recent approval to the 

New Mexico PSD SIP program was on 

July 20, 2011, at 20.2.74 NMAC, where 

we updated our approval of the NM PSD 

SIP to include the revisions adopted by 

the State on January 1, 2011, for the 

permitting of greenhouse gas emissions 

consistent with EPA’s Greenhouse Gas 

Tailoring Rule. See 76 FR 43149. Since 

that time, the State of New Mexico has 

adopted and submitted for EPA 

approval one revision to the PSD 

program on May 23, 2011, affecting the 

following sections: 

• 20.2.74.7 NMAC—Definitions, 

• 20.2.74.300 NMAC—Obligations of 

Owners or Operators of Sources, 

• 20.2.74.303 NMAC—Ambient 

Impact Requirements, 

• 20.2.74.306 NMAC—Monitoring 

Requirements, 

• 20.2.74.403 NMAC—Additional 

Requirements for Sources Impacting 

Class I Federal Areas, 

• 20.2.74.502 NMAC—Significant 

Emission Rates, 

• 20.2.74.503 NMAC—Significant 

Monitoring Concentrations, 

• 20.2.74.504 NMAC—Allowable 

PSD Increment, and 

• 20.2.74.505 NMAC—Maximum 

Allowable Increases for Class I Waivers. 

This revision has been submitted to 

adopt and implement the requirements 

for PM2.5 PSD SIPs in accordance with 

EPA’s May 16, 2008 and October 20, 

2010 final NSR PM2.5 Rule and PM2.5

PSD Increments—SILs—SMC Rule and 

the December 21, 2007 Reasonable 

Possibility in Recordkeeping Rule. The 

TSD for this rulemaking includes a 

detailed analysis of the submitted 

revision and demonstration of how the 

submittal addresses the federal 

requirements. The following is a 

summary of how EPA proposes to find 

that the May 23, 2011 submitted 

revisions to the New Mexico PSD SIP 

meet the requirements of the specified 

final rules. 

1. NSR PM2.5 Rule 

a. What are the requirements of the NSR 

PM2.5 Rule for PSD SIP Programs? 

On May 16, 2008, EPA finalized the 

NSR PM2.5 Rule to implement the PM2.5

NAAQS. See 73 FR 28321. As a result 

of EPA’s final NSR PM2.5 Rule, states 

were required to submit applicable SIP 

revisions to EPA no later than May 16, 

2011, to address this Rule’s PSD and 

NNSR SIP requirements. With respect to 

PSD permitting, the SIP revision 

submittals are required to meet the 

following PSD SIP requirements to 

implement the PM2.5 NAAQS: (1) 

Require PSD permits to address directly 

emitted PM2.5 and precursor pollutants; 

(2) establish significant emission rates 

for direct PM2.5 and precursor pollutants 

(including sulfur dioxide (SO2) and 

NOX); and (3) account for gases that 

condense to form particles 

(condensables) in PM2.5 and PM10

emission limits in PSD permits. 


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1The comment period for this proposed 

rulemaking ended May 15, 2012. 

2 In addition to the NSPS for PM, it is noted that 

states regulated ‘‘particulate matter emissions’’ for 

many years in their SIPs for PM, and the same 

indicator has been used as a surrogate for 

determining compliance with certain standards 

contained in 40 CFR part 63, regarding National 

Emission Standards for Hazardous Air Pollutants. 

3Section 169(4) of the CAA provides that the 

baseline concentration of a pollutant for a particular 

baseline area is generally the same air quality at the 

time of the first application for a PSD permit in the 

area. 

b. How does the May 23, 2011 New 

Mexico PSD submittal satisfy the NSR 

PM2.5 Rule? 

New Mexico’s May 23, 2011, SIP 

revision submittal establishes that the 

State’s existing NSR permitting program 

requirements for PSD apply to the PM2.5

NAAQS and its precursors. Specifically, 

the SIP revision submittal adopts and 

submits for EPA approval the following 

NSR PM2.5 Rule PSD provisions: (1) the 

requirement for NSR permits to address 

directly emitted PM2.5 and precursor 

pollutants; (2) significant emission rates 

for direct PM2.5 and precursor pollutants 

(SO2 and NOX) and (3) the requirement 

that condensable PM be addressed in 

enforceable PM, PM10 and PM2.5

emission limits included in PSD 

permits. EPA proposes to find that New 

Mexico’s May 23, 2011 SIP revision 

submittal meets the NSR PM2.5 Rule for 

PSD and section 110 and part C of the 

CAA. 

i. ‘‘Condensables’’ Provision 

In the NSR PM2.5 Rule, EPA revised 

the definition of ‘‘regulated NSR 

pollutant’’ for PSD SIP purposes to add 

a paragraph providing that ‘‘particulate 

matter (PM) emissions, PM2.5 emissions 

and PM10 emissions’’ shall include 

gaseous emissions from a source or 

activity which condense to form 

particulate matter at ambient 

temperatures and that on or after 

January 1, 2011, such condensable 

particulate matter shall be accounted for 

in applicability determinations and in 

establishing emissions limitations for 

PM, PM2.5 and PM10 in permits. See 40 

CFR 51.166(b)(49)(vi), 52.21(b)(50)(vi) 

and ‘‘Emissions Offset Interpretative 

Ruling’’ (40 CFR part 51, Appendix S). 

A similar paragraph was added to the 

NNSR SIP provisions of the NSR PM2.5

Rule but does not include ‘‘particulate 

matter (PM) emissions.’’ See 40 CFR 

51.165(a)(1)(xxxvii)(D). 

On March 16, 2012, EPA proposed a 

rulemaking to amend the definition of 

‘‘regulated NSR pollutant’’ promulgated 

in the NSR PM2.5 Rule regarding the PM 

condensable provision at 40 CFR 

51.166(b)(49)(vi), 52.21(b)(50)(i), and 

EPA’s Emissions Offset Interpretative 

Ruling.1 See 77 FR 15656. The 

rulemaking proposes to remove the 

inadvertent requirement in the NSR 

PM2.5 Rule that the measurement of 

condensable ‘‘particulate matter 

emissions’’ be included as part of the 

measurement and regulation of 

‘‘particulate matter emissions.’’ The 

term ‘‘particulate matter emissions’’ 

includes particles that are larger than 

PM2.5 and PM10 and is an indicator 

measured under various New Source 

Performance Standards (NSPS) (40 CFR 

part 60).2

New Mexico’s May 23, 2011 SIP 

submittal revision includes EPA’s 

definition for regulated NSR pollutant 

for condensables (at 40 CFR 

51.166(b)(49)(vi)), including the term 

‘‘particulate matter emissions,’’ as 

inadvertently promulgated in the NSR 

PM2.5 Rule. EPA is, however, proposing 

to approve into the New Mexico SIP 

20.2.74.7(AS)(6) NMAC, the 

requirement that condensable PM be 

accounted for in applicability 

determinations and in establishing 

emissions limitations for PM2.5 and 

PM10. Upon final approval of this 

proposal, New Mexico’s condensable 

provision will be consistent with the 

federal rule until EPA finalizes its 

March 16, 2012, rulemaking. Once EPA 

finalizes the March 16, 2012 

rulemaking, the NMED can choose to 

initiate further rulemaking to ensure 

consistency with federal requirements. 

2. PM2.5 PSD Increment—SILs—SMC 

Rule 

a. What are the requirements of the 

PM2.5 PSD Increment—SILs—SMC Rule 

for PSD SIP Programs? 

EPA finalized the PM2.5 PSD 

Increment—SILs—SMC Rule to provide 

additional regulatory requirements 

under the PSD SIP program regarding 

the implementation of the PM2.5

NAAQS for NSR. See 75 FR 64864. As 

a result, the PM2.5 PSD Increment— 

SILs—SMC Rule required states to 

submit SIP revisions to adopt the 

required PSD increments by July 20, 

2012. Specifically, the SIP rule requires 

a state’s submitted PSD SIP revision to 

adopt and submit for EPA approval the 

PM2.5 increments pursuant to section 

166(a) of the CAA to prevent significant 

deterioration of air quality in areas 

meeting the NAAQS. States could also 

discretionarily choose to adopt and 

submit for EPA approval SILs used as a 

screening tool (by a major source subject 

to PSD) to evaluate the impact a 

proposed major source or modification 

may have on the NAAQS or PSD 

increment and a SMC, (also a screening 

tool) used by a major source subject to 

PSD to determine the subsequent level 

of data gathering required for a PSD 

permit application for emissions of 

PM2.5. More detail on the PM2.5 PSD 

Increment—SILs—SMC Rule can be 

found in EPA’s October 20, 2010 final 

rule. See 75 FR 64864. 

i. What are PSD Increments? 

Under section 165(a)(3) of the CAA, a 

PSD permit applicant must demonstrate 

that emissions from the proposed 

construction and operation of a facility 

‘‘will not cause, or contribute to, air 

pollution in excess of any maximum 

allowable increase or allowable 

concentration for any pollutant.’’ In 

other words, when a source applies for 

a PSD SIP permit to emit a regulated 

pollutant in an attainment or 

unclassifiable area, the permitting 

authority implementing the PSD SIP 

must determine if emissions of the 

regulated pollutant from the source will 

cause significant deterioration in air 

quality. Significant deterioration occurs 

when the amount of the new pollution 

exceeds the applicable PSD increment, 

which is the ‘‘maximum allowable 

increase’’ of an air pollutant allowed to 

occur above the applicable baseline 

concentration 3 for that pollutant. PSD 

increments prevent air quality in 

attainment and unclassifiable areas from 

deteriorating to the level set by the 

NAAQS. Therefore an increment is the 

mechanism used to estimate ‘‘significant 

deterioration’’ of air quality for a 

pollutant in an area. 

For PSD baseline purposes, a baseline 

area for a particular pollutant emitted 

from a source includes the attainment or 

unclassifiable/attainment area in which 

the source is located as well as any 

other attainment or unclassifiable/ 

attainment area in which the source’s 

emissions of that pollutant are projected 

(by air quality modeling) to result in an 

ambient pollutant increase of at least 1 

mg/m3 (annual average). See 40 CFR 

51.166(b)(15)(i) and (ii). Under EPA’s 

existing regulations, the establishment 

of a baseline area for any PSD increment 

results from the submission of the first 

complete PSD permit application and is 

based on the location of the proposed 

source and its emissions impact on the 

area. Once the baseline area is 

established, subsequent PSD sources 

locating in that area need to consider 

that a portion of the available increment 

may have already been consumed by 

previous emissions increases. In 

general, the submittal date of the first 

complete PSD permit application in a 

particular area is the operative ‘‘baseline 


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4Baseline dates are pollutant specific. That is, a 

complete PSD application establishes the baseline 

date only for those regulated NSR pollutants that 

are projected to be emitted in significant amounts 

(as defined in the regulations) by the applicant’s 

new source or modification. Thus, an area may have 

different baseline dates for different pollutants. 

5EPA generally characterized the PM2.5 NAAQS 

as a NAAQS for a new indicator of PM. EPA did 

not replace the PM10 NAAQs with the NAAQS for 

PM2.5 when the PM2.5 NAAQS were promulgated in 

1997. EPA rather retained the annual and 24-hour 

NAAQS for PM10 as if PM2.5 was a new pollutant 

even though EPA had already developed air quality 

criteria for PM generally. See 75 FR 64864 (October 

20, 2010). 6EPA interprets 166(a) to authorize EPA to 

promulgate pollutant-specific PSD regulations 

meeting the requirements of section 166(c) and 

166(d) for any pollutant for which EPA promulgates 

a NAAQS after 1977. 

7A cumulative analysis is a modeling analysis 

used to show that the allowable emissions increase 

from the proposed source along with other emission 

increases from existing sources, will not result in 

a violation of either the NAAQS or increment. 

date.’’ 4 On or before the date of the first 

complete PSD application, emissions 

generally are considered to be part of 

the baseline concentration, except for 

certain emissions from major stationary 

sources. Most emissions increases that 

occur after the baseline date will be 

counted toward the amount of 

increment consumed. Similarly, 

emissions decreases after the baseline 

date restore or expand the amount of 

increment that is available. See 75 FR 

64864. As described in the PM2.5 PSD 

Increment—SILs—SMC Rule, pursuant 

to the authority under section 166(a) of 

the CAA EPA promulgated numerical 

increments for PM2.5 as a new 

pollutant 5 for which the NAAQS were 

established after August 7, 1977,6 and 

derived 24-hour and annual PM2.5

increments for the three area 

classifications (Class I, II and III) using 

the ‘‘contingent safe harbor’’ approach. 

See 75 FR 64864 at 64869 and table at 

40 CFR 51.166(c)(1). 

In addition to PSD increments for the 

PM2.5 NAAQS, the PM2.5 PSD 

Increment—SILs—SMC Rule amended 

the definition at 40 CFR 51.166 and 

52.21 for ‘‘major source baseline date’’ 

and ‘‘minor source baseline date’’ to 

establish the PM2.5 NAAQS specific 

dates (including trigger dates) associated 

with the implementation of PM2.5 PSD 

increments. See 75 FR 64864. In 

accordance with section 166(b) of the 

CAA, EPA required the states to submit 

revised implementation plans adopting 

the PM2.5 PSD increments to EPA for 

approval within 21 months from 

promulgation of the final rule (by July 

20, 2012). Each state was responsible for 

determining how increment 

consumption and the setting of the 

minor source baseline date for PM2.5

would occur under its own PSD 

program. Regardless of when a state 

begins to require PM2.5 increment 

analysis and how it chooses to set the 

PM2.5 minor source baseline date, the 

emissions from sources subject to PSD 

for PM2.5 for which construction 

commenced after October 20, 2010, 

(major source baseline date) consume 

the PM2.5 increment and therefore 

should be included in the increment 

analyses occurring after the minor 

source baseline date is established for 

an area under the state’s revised PSD 

SIP program. New Mexico’s May 23, 

2011, submitted SIP revision adopts the 

PM2.5 increment permitting 

requirements promulgated in the PM2.5

PSD Increment—SILs—SMC Rule. 

ii. What are PSD SILs and SMC? 

EPA’s PM2.5 PSD Increment—SILs— 

SMC Rule also established SILs and 

SMC for the PM2.5 NAAQS to address 

air quality modeling and monitoring 

provisions for fine particle pollution in 

areas protected by the PSD program. 

The SILs and SMC are numerical values 

that represent thresholds of 

insignificant, i.e., de minimis, modeled 

source impacts or monitored (ambient) 

concentrations, respectively. The de 

minimis principle is grounded in a 

decision described by the court case 

Alabama Power Co. v. Costle, 636 F.2d 

323, 360 (D.C. Cir. 1980). In this case 

reviewing EPA’s 1978 PSD regulations, 

the court recognized that ‘‘there is likely 

a basis for an implication of de minimis 

authority to provide exemption when 

the burdens of regulation yield a gain of 

trivial or no value.’’ 636 F.2d at 360. 

EPA established such values for PM2.5 in 

the PM2.5 PSD Increment—SILs—SMC 

rule to be used as screening tools by a 

major source subject to PSD to 

determine the subsequent level of 

analysis and data gathering required for 

a PSD permit application for emissions 

of PM2.5. See 75 FR 64864. As part of the 

response to comments in the PM2.5 PSD 

Increment—SILs—SMC Rule final 

rulemaking, EPA explained that the 

agency considers that the SILs and SMC 

used as de minimis thresholds for the 

various pollutants are useful tools that 

enable permitting authorities and PSD 

applicants to screen out ‘‘insignificant’’ 

activities; however, the fact remains that 

these values are not required by the Act 

as part of an approvable SIP program. 

EPA believes that most states are likely 

to discretionarily adopt the SILs and 

SMC because of the useful purpose they 

serve regardless of our position that the 

values are not mandatory as a part of the 

PSD SIP. Alternatively, states may 

develop and submit more stringent 

values for EPA approval into the SIP if 

they desire to do so or not develop SILs/ 

SMC altogether. In any case, states are 

not under any statutory SIP-related 

deadline for revising their PSD 

programs to add these screening tools. 

See 75 FR 64864, 64900. 

(a) Significant Impact Levels (SILs) 

SILs are numeric values derived by 

EPA that may be used to evaluate the 

impact a proposed major source or 

modification may have on the NAAQS 

or PSD increment. The primary purpose 

of the SILs is to identify a level of 

ambient impact that is sufficiently low 

relative to the NAAQS or increments 

that such impact can be considered 

insignificant or de minimis. Although 

EPA has not previously incorporated 

every application of the SILs into the 

PSD regulations, EPA historically since 

1980 has supported the use of the SILs 

as de minimis thresholds to determine 

whether the predicted ambient impact 

resulting from the emissions increase at 

a proposed major new stationary source 

or modification is considered to cause 

or contribute to a violation of the 

NAAQS. Numerous EPA statements and 

practices have also recognized the use of 

SILs under the PSD program to 

determine: (1) When a proposed 

source’s ambient impacts warrants a 

comprehensive (cumulative) source 

impact analysis 7 and; (2) the size of the 

impact area within which the air quality 

analysis is completed. See 75 FR 64864. 

In the PM2.5 PSD Increment—SILs— 

SMC Rule, EPA established the SILs 

threshold which reflects the degree of 

ambient impact on PM2.5 concentrations 

that can be considered de minimis and 

would justify no further analysis or 

modeling of the air quality impact of a 

source in combination with other 

sources in the area because the source 

would not cause or contribute to an 

exceedance of the PM2.5 NAAQS or the 

PM2.5 increments. See 75 FR 64864. The 

PM2.5 PSD Increment—SILs—SMC Rule 

established SILs to evaluate the impact 

that a proposed new source or 

modification may have on the PM2.5

NAAQS or increment. When a proposed 

major new source or major modification 

of PM2.5 projects, through air quality 

modeling, an impact less than the PM2.5

SILs, the proposed construction or 

modification is considered to not have 

a significant air quality impact and 

would not need to complete a 

cumulative impact analysis involving an 

analysis of other sources in the area. 

Additionally, a source with a de 

minimis ambient impact would not be 

considered to cause or contribute to a 

violation of the PM2.5 NAAQS or 

increments. 

The PM2.5 PSD Increment—SILs— 

SMC Rule established the PM2.5 SILs at 


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8 40 CFR 51.165(b) require states to adopt and 

submit for approval by EPA as a SIP revision, a 

preconstruction review permit program for major 

stationary sources and major modifications that 

wish to locate in an attainment or unclassifiable 

area but would cause or contribute to a violation 

of the NAAQS. 

9On April 6, 2012, EPA filed a brief with the D.C. 

Circuit court defending the Agency’s authority to 

promulgate SILs and SMC for PSD purposes. 

10EPA interprets section 165(a)(3) of the CAA to 

allow the use of significance levels as a means to 

demonstrate that a source will not cause or 

contribute to any violation of the NAAQS or 

increments. The terms ‘‘cause or contribute to’’ and 

‘‘demonstrate’’ are ambiguous and EPA reasonably 

interprets the statue to allow sources that do not 

contribute significantly to ambient air 

concentrations of PM2.5 to demonstrate compliance 

through modeling of the source’s impact measured 

against the SILs. 

11Additional information on this issue can also 

be found in an April 25, 2010, comment letter from 

EPA Region 6 to the Louisiana Department of 

Environmental Quality regarding the SILs-SMC 

litigation. A copy of this letter can be found in the 

docket for today’s rulemaking at 

www.regulations.gov using docket ID: EPA–R06– 

OAR–2011–0033. 

EPA’s existing NNSR SIP regulations at 

40 CFR 51.165(b) and the PSD SIP 

regulations at 40 CFR 51.166(k)(2), 

52.21(k)(2) and part 51, Appendix S as 

optional screening tools. Prior to the 

PM2.5 PSD Increment—SILs—SMC Rule, 

the concept of a SIL was not previously 

incorporated into the PSD SIP 

regulations but was present in the NNSR 

SIP regulations. The regulations in 40 

CFR 51.165(b) 8 establish the minimum 

requirements for NNSR programs in 

SIPs but apply specifically to major 

stationary sources and major 

modifications located in attainment or 

unclassifiable/attainment areas. Where a 

PSD source located in such areas may 

have an impact on an adjacent 

nonattainment area, the PSD source 

must still demonstrate that it will not 

cause or contribute to a violation of the 

NAAQS in the adjacent nonattainment 

area. Where emissions from a proposed 

PSD source or modification would have 

an ambient impact in a nonattainment 

area that would exceed the SILs, the 

source is considered to cause or 

contribute to a violation of the NAAQS 

and may not be issued a PSD permit 

without obtaining emissions reductions 

to compensate for its impact. See 40 

CFR 51.165(b)(2)–(3). New Mexico’s 

May 23, 2011 SIP submittal addresses 

the PM2.5 SILS thresholds and 

provisions promulgated in the PM2.5

PSD Increment—SILs—SMC Rule at 40 

CFR 51.165(b)(2) and 51.166(k)(2). 

(b) Significant Monitoring 

Concentration (SMC) 

Under the CAA and EPA SIP 

regulations, an applicant for a PSD 

permit is required to gather 

preconstruction monitoring data in 

certain circumstances. Section 165(a)(7) 

of the Act calls for ‘‘such monitoring as 

may be necessary to determine the effect 

which emissions from any such facility 

may have, or is having, on air quality in 

any areas which may be affected by 

emissions from such source.’’ In 

addition, section 165(e) requires an 

analysis of the air quality in areas 

affected by a proposed major facility or 

major modification and calls for 

gathering one year of monitoring data 

unless the reviewing authority 

determines that a complete and 

adequate analysis may be accomplished 

in a shorter period. These requirements 

are codified in EPA’s PSD SIP 

regulations at 40 CFR 51.166(m) and 

PSD Federal Implementation Plan 

regulations at 40 CFR 52.21(m). In 

accordance with EPA’s Guideline for 

Air Quality Modeling (40 CFR part 51, 

Appendix W), the preconstruction 

monitoring data is primarily used to 

determine background concentrations in 

modeling conducted to demonstrate that 

the proposed source or modification 

will not cause or contribute to a 

violation of the NAAQS. SMC are 

numerical values that represent 

thresholds of insignificant, i.e., de 

minimis, monitored (ambient) impacts 

on pollutant concentrations. In EPA’s 

PM2.5 PSD Increment—SILs—SMC Rule, 

EPA established a SMC of 4 mg/m3 for 

PM2.5 to be used as a screening tool by 

a major source subject to PSD to 

determine the subsequent level of data 

gathering required for a PSD permit 

application for emissions of PM2.5. 

Using the SMC as a screening tool, 

sources may be able to demonstrate that 

the modeled air quality impact of 

emissions from the new source or 

modification, or the existing air quality 

level in the area where the source would 

construct, is less than the SMC, i.e., de 

minimis, and may be allowed to forego 

the preconstruction monitoring 

requirement for a particular pollutant at 

the discretion of the reviewing 

authority. See 75 FR 64864, 40 CFR 

51.166(i)(5) and 52.21(i)(5). As 

mentioned above, SMCs are not 

minimum required elements of an 

approvable SIP under the CAA. This de 

minimis value is widely considered to 

be a useful component for implementing 

the PSD program, but is not statutorily 

required for EPA approval of a state’s 

PSD SIP revision submittal. States can 

satisfy the statutory requirements for an 

approvable PSD SIP program by 

requiring each PSD applicant to submit 

air quality monitoring data for PM2.5

without using de minimis thresholds to 

exempt certain sources from such 

requirements. States with EPA-approved 

PSD SIP programs that adopt and 

submit for EPA approval the SMC for 

PM2.5 may use the SMC, once it is part 

of an approved SIP, to determine when 

it may be appropriate to exempt a 

particular major stationary source or 

major modification from the monitoring 

requirements under its PSD SIP 

program. New Mexico’s May 23, 2011 

submitted SIP revision adopts the SMC 

threshold. 

(c) SILs-SMC Litigation 

EPA’s authority to promulgate the 

SILs and SMC for PSD purposes has 

been challenged by the Sierra Club. See 

Sierra Club v. EPA, Case No. 10–1413 

(D.C. Circuit Court).9 Specifically, Sierra 

Club claims that the SILs and SMC 

screening tools adopted in the October 

20, 2010, rule are inconsistent with the 

CAA and EPA’s de minimis authority.10

EPA responded to Sierra Club’s claims 

in a Brief dated April 6, 2012, which 

described the Agency’s authority to 

develop and promulgate SILs and 

SMC.11 A copy of EPA’s April 6, 2012 

Brief can be found in the docket for 

today’s proposed action. 

b. How does the May 23, 2011 New 

Mexico PSD submittal satisfy the PM2.5

Increment—SILs—SMC Rule? 

New Mexico’s May 23, 2011 SIP 

revision submittal adopts the following 

PSD provisions in the PM2.5 PSD 

Increment—SILs—SMC Rule: (1) PSD 

increments for PM2.5 annual and 24- 

hour NAAQS pursuant to section 166(a) 

of the CAA; (2) SILs to be used as a 

screening tool to evaluate the impact a 

proposed major source or modification 

may have on the NAAQS or PSD 

increment; and (3) SMC, also used as a 

screening tool, to determine the level of 

data gathering required of a major 

source in support of its PSD permit 

application for PM2.5 emissions. 

Specifically, regarding the PSD 

increments, the submitted SIP revision 

changes include: 1) the PM2.5

increments as promulgated in at 40 CFR 

51.166(c)(1) and (p)(4) (for Class I 

Variances) and 2) amendments to the 

terms ‘‘major source baseline date’’ (at 

40 CFR 51.166(b)(14)(i)(c)) and 

52.21(b)(14)(i)(c)), ‘‘minor source 

baseline date’’(including establishment 

of the ‘‘trigger date’’) and ‘‘baseline 

area’’ (as amended at 40 CFR 

51.166(b)(15)(i) and (ii) and 

52.21(b)(15)(i)). These changes provide 

for the implementation of the PM2.5 PSD 

increments for the PM2.5 NAAQS in the 

state’s PSD program. In today’s action, 

EPA is proposing to approve New 

Mexico’s May 23, 2011 submitted SIP 


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revision provisions to address the PM2.5

PSD increment provisions promulgated 

in the PM2.5 PSD Increments SILs-SMC 

Rule. 

Regarding the SILs and SMC 

established in the PM2.5 PSD 

Increment—SILs—SMC Rule, the Sierra 

Club has challenged EPA’s authority to 

promulgate SILs and SMC. In a brief 

filed in the D.C. Circuit on April 6, 

2012, EPA described the Agency’s 

authority under the CAA to promulgate 

and implement the SMC and SILs de 

minimis thresholds. With respect to the 

SMC, New Mexico’s SIP revision 

submittal includes the SMC of 4 mg/m3

for PM2.5 NAAQS at rule 20.2.74.503 

NMAC that was added to the existing 

monitoring SIP exemption at 40 CFR 

51.166(i)(5)(i)(c). EPA is proposing to 

approve the PM2.5 SMC into the New 

Mexico PSD SIP as EPA believes the use 

of the SMC is a valid exercise of the 

Agency’s de minimis authority. 

Furthermore, New Mexico’s May 23, 

2011 submitted SIP revision is 

consistent with EPA’s current 

promulgated provisions in the PM2.5

PSD Increment—SILs—SMC Rule. 

However, EPA notes that future court 

action may require the adoption and 

submittal of subsequent rule revisions 

and SIP revisions from New Mexico. 

New Mexico’s SIP revision submittal, 

adopting the new PSD SIP requirements 

for PM2.5 pursuant to the PM2.5 PSD 

Increment—SILs—SMC Rule also 

includes new regulatory text matching 

that at 40 CFR 51.166(k)(2), concerning 

the implementation of SILs for PM2.5. 

EPA stated in the preamble to the PM2.5

PSD Increment—SILs—SMC Rule that 

we do not consider the SILs to be a 

mandatory SIP element, but regard them 

as discretionary on the part of regulating 

authority for use in the PSD SIP 

permitting process. Nevertheless, as 

mentioned previously, the PM2.5 SILs 

are currently the subject of litigation 

before the U.S. Court of Appeals. (Sierra 

Club v. EPA, Case No 10–1413, D.C. 

Circuit). In response to that litigation, 

EPA has requested that the court 

remand and vacate the regulatory text in 

the EPA’s PSD regulations at paragraph 

(k)(2) so that EPA can make necessary 

rulemaking revisions to that text. In 

light of EPA’s request for remand and 

vacatur and the agency’s 

acknowledgement of the need to revise 

the regulatory text presently contained 

at paragraph (k)(2) of sections 40 CFR 

51.166 and 52.21, EPA does not believe 

that it is appropriate at this time to act 

upon that portion of the State’s SIP 

revision submittal that contains the 

affected regulatory text in the New 

Mexico PSD regulations, at 

20.2.74.303(A) NMAC. Instead, EPA is 

severing and taking no action at this 

time with regard to these specific 

provisions contained in the submitted 

SIP revision. By severing, we mean that 

the submitted portions of the SIP 

revision that address New Mexico’s NSR 

permitting program we are proposing 

action on in this notice can be 

implemented independently of the 

portions of the submittal relating to 

SILs. EPA anticipates taking action on 

the PM2.5 SILs portion of New Mexico’s 

May 23, 2011 PSD SIP revision in a 

separate rulemaking once the court case 

regarding the SILs issue has been 

resolved. 

The aforementioned proposed 

amendments to New Mexico’s SIP 

provide the framework for 

implementation of PM2.5 NAAQS in the 

state’s PSD permitting. Based on review 

and consideration of New Mexico’s May 

23, 2011 SIP revision submittal, EPA is 

finding that the New Mexico SIP 

revision submittals meet the 

aforementioned PSD permitting 

provisions promulgated in the NSR 

PM2.5 Rule and PM2.5 PSD Increment— 

SILs—SMC Rule. Consequently, EPA 

has made the preliminary determination 

to approve the SIP revisions submittals 

into the New Mexico SIP to implement 

the PSD NSR program for the PM2.5

NAAQS. 

3. Reasonable Possibility in 

Recordkeeping Rule 

a. What are the requirements of the 

Reasonable Possibility in Recordkeeping 

Rule for PSD SIP Programs? 

EPA finalized the Reasonable 

Possibility in Recordkeeping Rule for 

PSD and NNSR SIPs on December 21, 

2007. See 72 FR 72607. As a result, SIP 

revisions meeting the rule were due to 

EPA on December 21, 2010. The final 

rule clarifies the ‘‘reasonable 

possibility’’ standard promulgated as 

part of EPA’s 2002 NSR Reform rule. 

The ‘‘reasonable possibility’’ standard 

identifies for sources and reviewing 

authorities the criteria under which an 

owner or operator of a major stationary 

source undergoing a physical change or 

change in the method of operation that 

does not trigger major NSR permitting 

requirements must keep records. The 

standard also specifies the 

recordkeeping and reporting 

requirements on such sources. This final 

rule is in response to the decision by the 

U.S. Court of Appeals for the D.C. 

Circuit in New York v. EPA, 413 F.3d 3 

(D.C. Cir. 2005) in which the 

‘‘reasonable possibility’’ standard was 

remanded for further clarification. 

b. How does the May 23, 2011 New 

Mexico PSD submittal satisfy the 

reasonable possibility in recordkeeping 

rule? 

New Mexico’s May 23, 2011 SIP 

revision submittal adopts new 

provisions at 20.2.74.300(E) and (E)(6) 

NMAC to implement the clarifications 

to the ‘‘reasonable possibility’’ standard 

promulgated by EPA on December 21, 

2007. The revisions submitted by New 

Mexico are consistent with federal PSD 

SIP requirements at 40 CFR 51.166(r)(6), 

(r)(6)(vi)(a) and (b). See 72 FR 72607, 

72616. EPA therefore proposes full 

approval of these submitted new 

provisions. 

B. Analysis of Submitted Revisions to 

the New Mexico Nonattainment New 

Source Review Permitting SIP Program 

EPA’s most recent approval of the 

New Mexico NNSR SIP program was on 

September 5, 2007, where we updated 

our approval of the NM NNSR SIP 

program to include the revisions to 

address NSR Reform as adopted by the 

State on December 6, 2005. See 72 FR 

50879. Since that time, the State of New 

Mexico has adopted and submitted 

revisions on June 11, 2009, and May 23, 

2011, to the NNSR SIP program, 

affecting the following sections: 

• 20.2.79.7 NMAC—Definitions (both 

June 11, 2009 and May 23, 2011) 

• 20.2.79.109 NMAC—Applicability 

(both June 11, 2009 and May 23, 2011) 

• 20.2.79.115 NMAC—Emission 

Offsets (June 11, 2009) 

• 20.2.79.119 NMAC—Tables, 

Significant Ambient Concentrations 

(May 23, 2011) 

These revisions have been submitted 

for approval by EPA to the NNSR SIP to 

adopt and implement the requirements 

in the November 29, 2005 Phase 2 8- 

hour Ozone Implementation Rule, the 

May 16, 2008 NSR PM2.5 Rule, the 

October 20, 2010 PM2.5 PSD 

Increments—SILs—SMC Rule, and the 

December 21, 2007 Reasonable 

Possibility in Recordkeeping Rule. The 

TSD for this rulemaking includes a 

detailed analysis of the submitted 

revisions and demonstration of how 

each revision addresses the federal 

requirements. The following is a 

summary of how EPA proposes to find 

the June 11, 2009 and May 23, 2011 

revisions to the New Mexico NNSR 

program implement the requirements of 

the specified final rules. 


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12See 75 FR 72688, November 26, 2010. EPA 

previously approved revisions addressing NOX as a 

precursor of the 1997 8-hour ozone NAAQS in its 

action finding New Mexico’s SIP does not interfere 

with measures required to prevent significant 

deterioration of air quality in other states for this 

NAAQS as per the third element of section 

110(a)(2)(D). Approval of those revisions ensured 

New Mexico’s PSD SIP included changes necessary 

to implement the 1997 8-hour ozone NAAQS 

within the state as contemplated in the August 15, 

2006 ‘‘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’’ to meet the third element of 

section 110(a)(2)(D). 

13 40 CFR 51.165(b) require states to adopt and 

submit for approval by EPA as a SIP revision, a 

preconstruction review permit program for major 

stationary sources and major modifications that 

wish to locate in an attainment or unclassifiable 

area but would cause or contribute to a violation 

of the NAAQS. 

1. Phase 2 8-Hour Ozone 

Implementation Rule 

a. What are the requirements of the 

Phase 2 8-Hour Ozone Implementation 

Rule for NNSR SIP Programs? 

As a result of the Phase 2 8-Hour 

Ozone Implementation Rule, states were 

required to submit applicable SIP 

revisions to EPA no later than June 15, 

2007, to address this Rule’s SIP 

requirements for both the PSD and 

NNSR programs. See 70 FR 71612, 

71683. The SIP revision submittals were 

required by this Rule to revise the major 

source thresholds, significant emission 

rates, and offset ratios for ozone such 

that nitrogen oxides (NOX) are 

recognized as an ozone precursor. New 

Mexico’s June 11, 2009 SIP submittal 

included revisions to the PSD and 

NNSR programs to address these 8-hour 

ozone permitting requirements. EPA 

previously approved the June 11, 2009 

submitted revisions to the PSD program 

addressing Phase 2 8-hour ozone 

implementation as part of the New 

Mexico PSD SIP.12 Consequently, our 

action today only addresses the NNSR 

submitted program revisions that 

address the SIP requirements of this 

Phase 2 8-Hour Ozone Implementation 

Rule. 

b. How does the June 11, 2009 New 

Mexico NNSR submittal satisfy the 

Phase 2 8-Hour Ozone Implementation 

Rule? 

New Mexico’s June 11, 2009 SIP 

submission includes new provisions to 

implement the NNSR SIP requirements 

of the Phase 2 8-hour Ozone 

Implementation Rule as promulgated by 

EPA on November 29, 2005. 

Specifically, New Mexico adopted 

revisions to the definitions of ‘‘major 

stationary source’’ and ‘‘significant’’, 

added new provisions to the source 

applicability requirements, and added 

new provisions to the emission offset 

requirements. These revisions serve to 

incorporate the major stationary source 

thresholds, significant emission rates 

and offset ratios pursuant to part D of 

title I of the CAA for the 8-hour ozone 

NAAQS, the CO NAAQS, and the PM10

NAAQS. New Mexico also adopted 

revisions to the requirements for 

emission reductions achieved through 

curtailments or shutdowns consistent 

with federal requirements. Based on our 

review and analysis available in the 

TSD for this action, we are proposing 

approval of the June 11, 2009 revisions 

to the New Mexico SIP that implement 

the NNSR SIP requirements of the Phase 

2 8-hour ozone rule consistent with 

requirements at 40 CFR 51.165. 

2. NSR PM2.5 Rule 

a. What are the requirements of the NSR 

PM2.5 Rule for NNSR SIP Programs? 

On May 16, 2008, EPA finalized the 

NSR PM2.5 Rule to implement the PM2.5

NAAQS. See 73 FR 28321. As a result 

of EPA’s final NSR PM2.5 Rule, states 

were required to submit applicable SIP 

revisions to EPA no later than May 16, 

2011, to address this Rule’s PSD and 

NNSR SIP requirements. Specifically, 

the SIP revision submittals are required 

to meet the following NNSR SIP 

requirements to implement the PM2.5

NAAQS: (1) Require NNSR permits to 

address directly emitted PM2.5 and 

precursor pollutants; (2) establish 

significant emission rates for direct 

PM2.5 and precursor pollutants 

(including sulfur dioxide (SO2) and 

NOX); (3) establish PM2.5 emission 

offsets; and (4) account for gases that 

condense to form particles 

(condensables) in PM2.5 and PM10

emission limits in NNSR permits. 

Additionally, the NSR PM2.5 Rule 

authorized states to adopt and submit 

provisions in their NNSR rules that 

would allow interpollutant offset 

trading. 

b. How does the May 23, 2011 New 

Mexico NNSR submittal satisfy the NSR 

PM2.5 Rule? 

New Mexico’s May 23, 2011 

submission includes new provisions to 

implement the NNSR SIP requirements 

of the NSR PM2.5 Rule, as promulgated 

by EPA on May 16, 2008. Specifically, 

New Mexico adopted revisions to the 

definitions of ‘‘regulated NSR pollutant’’ 

and ‘‘significant’’, added new provisions 

to the source applicability requirements, 

and added new provisions for emission 

offset requirements. These submitted 

revisions (1) Require NNSR permits to 

address directly emitted PM2.5 and 

precursor pollutants; (2) establish 

significant emission rates for direct 

PM2.5 and precursor pollutants 

(including sulfur dioxide (SO2) and 

nitrogen oxides (NOX)); (3) establish 

PM2.5 emission offsets; (4) account for 

gases that condense to form particles 

(condensables) in PM2.5 and PM10

emission limits in NNSR permits; and 

(5) provide for interprecursor offsetting 

of direct PM2.5 emissions with emissions 

of identified PM2.5 precursors based on 

an approved interprecursor trading 

hierarchy and ratio in the approved plan 

for a particular nonattainment area. 

Note that the language adopted and 

submitted by the State of New Mexico 

providing for interprecursor offsetting 

establishes the generic framework only. 

EPA is proposing to approve the generic 

framework as part of the New Mexico 

SIP. Sources proposing to construct/ 

modify in nonattainment areas, 

however, will be unable to use 

interprecursor offsetting unless and 

until New Mexico adopts and submits 

said hierarchies and ratios for EPA 

review and they are subsequently 

approved by EPA into the New Mexico 

SIP. 

3. PM2.5 PSD Increment—SILs—SMC 

Rule 

a. What are the requirements of the 

PM2.5 PSD Increment—SILs—SMC Rule 

for NNSR SIP Programs? 

The PM2.5 PSD Increment—SILs— 

SMC Rule established the PM2.5 SILs at 

EPA’s existing NNSR SIP regulations at 

40 CFR 51.165(b). The regulations in 40 

CFR 51.165(b) 13 establish the minimum 

requirements for NNSR programs in 

SIPs but apply specifically to major 

stationary sources and major 

modifications located in attainment or 

unclassifiable/attainment areas. Where a 

PSD source located in such areas may 

have an impact on an adjacent 

nonattainment area, the PSD source 

must still demonstrate that it will not 

cause or contribute to a violation of the 

NAAQS in the adjacent nonattainment 

area. Where emissions from a proposed 

PSD source or modification would have 

an ambient impact in a nonattainment 

area that would exceed the SILs, the 

source is considered to cause or 

contribute to a violation of the NAAQS 

and may not be issued a PSD permit 

without obtaining emissions reductions 

to compensate for its impact. See 40 

CFR 51.165(b)(2)–(3). 


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b. How does the May 23, 2011 New 

Mexico NNSR submittal satisfy the 

PM2.5 PSD Increment—SILs—SMC 

Rule? 

The PM2.5 PSD Increment—SILs— 

SMC rule promulgated PM2.5 SILs 

thresholds in the NNSR regulations at 

40 CFR 51.165(b)(2). New Mexico’s May 

23, 2011 submission includes the PM2.5

SILs thresholds at 20.2.79.119 NMAC, 

consistent with the federal requirement 

to have the PM2.5 SILs in EPA’s NNSR 

SIP regulations at 40 CFR 51.165(b)(2). 

In light of the fact that EPA did not 

request the court to remand and vacate 

language at 40 CFR 51.165(b) and the 

agency has explained and affirmed its 

authority to develop and promulgate 

SILs in the brief filed with the D.C. 

Circuit Court concerning the litigation, 

EPA is proposing to approve New 

Mexico’s adoption of the PM2.5 SILs 

thresholds at 20.2.79.119 NMAC. EPA 

notes, however, that the SILs-SMC 

litigation is ongoing and therefore future 

court action may require the submittal 

of subsequent rule revisions and SIP 

submittals from the State of New 

Mexico. 

The aforementioned amendments to 

New Mexico’s NNSR SIP program along 

with the revisions to the New Mexico 

PSD SIP program discussed in Section 

II.A of this proposed action, provide the 

framework for implementation of PM2.5

NAAQS in the state’s PSD and NNSR 

SIP programs. Based on our review and 

analysis, EPA is finding that New 

Mexico’s May 23, 2011 submitted 

revisions to the NNSR SIP program meet 

the NNSR permitting provisions 

promulgated in the NSR PM2.5 Rule and 

PM2.5 PSD Increment—SILs—SMC Rule. 

Consequently, EPA has made the 

preliminary determination to approve 

the May 23, 2011 SIP revision 

submittals into the New Mexico SIP to 

implement the NNSR program for the 

PM2.5 NAAQS. 

4. Reasonable Possibility in 

Recordkeeping Rule 

a. What are the requirements of the 

Reasonable Possibility in Recordkeeping 

Rule for NNSR SIP Programs? 

EPA finalized the Reasonable 

Possibility in Recordkeeping Rule for 

PSD and NNSR SIPs on December 21, 

2007. See 72 FR 72607. As a result, SIP 

revisions meeting the rule were due to 

EPA on December 21, 2010. The final 

rule clarifies the ‘‘reasonable 

possibility’’ standard promulgated as 

part of EPA’s 2002 NSR Reform rule. 

The ‘‘reasonable possibility’’ standard 

identifies for sources and reviewing 

authorities the criteria under which an 

owner or operator of a major stationary 

source undergoing a physical change or 

change in the method of operation that 

does not trigger major NSR permitting 

requirements must keep records. The 

standard also specifies the 

recordkeeping and reporting 

requirements on such sources. This final 

rule is in response to the decision by the 

U.S. Court of Appeals for the D.C. 

Circuit in New York v. EPA, 413 F.3d 3 

(D.C. Cir. 2005) in which the 

‘‘reasonable possibility’’ standard was 

remanded for further clarification. 

b. How does the May 23, 2011 New 

Mexico NNSR submittal satisfy the 

Reasonable Possibility in Recordkeeping 

Rule? 

New Mexico’s May 23, 2011 SIP 

revision submittal includes new 

provisions at 20.2.79.109(F) and (F)(6) 

NMAC to implement the clarifications 

to the ‘‘reasonable possibility’’ standard 

promulgated by EPA on December 21, 

2007. See 72 FR 72607, 72616. The 

revisions submitted by New Mexico are 

consistent with federal NNSR 

permitting requirements at 40 CFR 

51.165(a)(6), (a)(6)(vi). EPA therefore 

proposes full approval of these new 

provisions. 

III. Proposed Action 

EPA is proposing the following 

actions in accordance with section 110 

and parts C and D of the Act and EPA’s 

regulations and consistent with EPA 

guidance. EPA is proposing to approve 

portions of two revisions to the New 

Mexico SIP submitted by the Governor 

of New Mexico on June 11, 2009 and 

May 23, 2011. 

EPA is proposing to approve the 

following revised rules submitted in 

2011 as meeting the PM2.5 PSD 

requirements under EPA’s May 16, 2008 

and October 20, 2010 final PM2.5 PSD 

permitting implementation rules and 

the December 21, 2007 Reasonable 

Possibility in Recordkeeping Rules. 

• 20.2.74.7 NMAC—Definitions, 

• 20.2.74.300 NMAC—Obligations of 

Owners or Operators of Sources, 

• 20.2.74.303 NMAC—Ambient 

Impact Requirements, 

• 20.2.74.306 NMAC– Monitoring 

Requirements, 

• 20.2.74.403 NMAC—Additional 

Requirements for Sources Impacting 

Class I Federal Areas, 

• 20.2.74.502 NMAC—Significant 

Emission Rates, 

• 20.2.74.503 NMAC—Significant 

Monitoring Concentrations, 

• 20.2.74.504 NMAC—Allowable 

PSD Increment, and 

• 20.2.74.505 NMAC—Maximum 

Allowable Increases for Class I Waivers. 

EPA is proposing to approve the 

following revised rules submitted in 

2009 as meeting the EPA’s November 

29, 2005 Phase 2 8-hour Ozone 

Implementation Rule for nonattainment 

areas. 

• 20.2.79.7 NMAC—Definitions, 

• 20.2.79.109 NMAC—Applicability, 

and 

• 20.2.79.115 NMAC—Emission 

Offsets. 

EPA is proposing to approve the 

following revised rules submitted in 

2011 as meeting EPA’s PM2.5 NNSR 

requirements under EPA’s May 16, 2008 

and October 20, 2010 final PM2.5 NSR 

permitting implementation rules and 

the December 21, 2007 Reasonable 

Possibility in Recordkeeping Rules. New 

Mexico also made some nonsubstantive 

changes in 2011 to 20.2.79.109 NMAC 

as adopted and submitted in 2009, and 

we are proposing to approve these 

nonsubstantive changes. 

• 20.2.79.7 NMAC—Definitions, 

• 20.2.79.109 NMAC—Applicability, 

and 

• 20.2.79.119 NMAC—Tables. 

EPA is severing from this proposed 

action the revisions to 20.2.74.303(A) 

NMAC submitted on May 23, 2011 

which are equivalent to the provisions 

EPA has requested the court to remand 

and vacate at 40 CFR 51.166(k)(2) that 

were promulgated on October 20, 2010, 

and conflict with our intentions for the 

use of SILs to demonstrate compliance 

with CAA section 163(a). Therefore, 

20.2.74.303 NMAC as adopted by NMED 

on January 1, 2011, and SIP-approved 

by EPA on July 20, 2011, remains the 

SIP-approved section. The NMED 

continues to retain the ability to 

implement the PM2.5 SILs at 20.2.79.119 

NMAC consistent with EPA’s 

interpretation of CAA section 163(a). 

Further, the revisions to 20.2.74.303(A) 

NMAC submitted on May 23, 2011, will 

remain before EPA for review. EPA will 

revisit these provisions after the court 

addresses EPA’s request for remand 

with vacatur or EPA initiates 

rulemaking to revise 40 CFR 

51.166(k)(2). 

IV. 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 proposed 

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 proposed action: 


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Federal Register / Vol. 77, No. 198 / Friday, October 12, 2012 / Proposed Rules 62209 

• 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. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Nitrogen oxides, Particulate matter, 

Reporting and recordkeeping 

requirements. 

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

Dated: September 28, 2012. 

Ron Curry, 

Regional Administrator, Region 6. 

[FR Doc. 2012–25156 Filed 10–11–12; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 622 

RIN 0648–BC37 

Fisheries of the Caribbean, Gulf of 

Mexico, and South Atlantic; Reef Fish 

Fishery of the Gulf of Mexico; 

Amendment 38 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Notice of availability; request 

for comments. 

SUMMARY: NMFS announces that the 

Gulf of Mexico (Gulf) Fishery 

Management Council (Council) has 

submitted Amendment 38 to the Fishery 

Management Plan for the Reef Fish 

Resources of the Gulf of Mexico (FMP) 

for review, approval, and 

implementation by NMFS. Amendment 

38 proposes to modify post-season 

accountability measures (AMs) that 

affect shallow-water grouper species 

(SWG), change the trigger for AMs, and 

revise the Gulf reef fish framework 

procedure. 

DATES: Written comments must be 

received on or before December 11, 

2012. 

ADDRESSES: You may submit comments 

on the amendment identified by 

‘‘NOAA–NMFS–2012–0149’’ by any of 

the following methods: 

• Electronic Submissions: Submit 

electronic comments via the Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

‘‘Instructions’’ for submitting comments. 

• Mail: Steve Branstetter, Southeast 

Regional Office, NMFS, 263 13th 

Avenue South, St. Petersburg, FL 33701. 

Instructions: All comments received 

are a part of the public record and will 

generally be posted to http:// 

www.regulations.gov without change. 

All Personal Identifying Information (for 

example, name, address, etc.) 

voluntarily submitted by the commenter 

may be publicly accessible. Do not 

submit Confidential Business 

Information or otherwise sensitive or 

protected information. NMFS will 

accept anonymous comments (enter N/ 

A in the required field if you wish to 

remain anonymous). 

To submit comments through the 

Federal e-Rulemaking Portal: http:// 

www.regulations.gov, enter ‘‘NOAA– 

NMFS–2012–0149’’ in the search field 

and click on ‘‘search.’’ After you locate 

the document ‘‘Gulf of Mexico Reef Fish 

Amendment 38,’’ click the ‘‘Submit a 

Comment’’ link in that row. This will 

display the comment web form. You can 

then enter your submitter information 

(unless you prefer to remain 

anonymous), and type your comment on 

the web form. You can also attach 

additional files (up to 10MB) in 

Microsoft Word, Excel, WordPerfect, or 

Adobe PDF file formats only. 

Comments received through means 

not specified in this notice will not be 

considered. 

For further assistance with submitting 

a comment, see the ‘‘Commenting’’ 

section at http://www.regulations.gov/ 

#!faqs or the Help section at http:// 

www.regulations.gov. 

Electronic copies of Amendment 38 

may be obtained from the Southeast 

Regional Office Web site at http:// 

sero.nmfs.noaa.gov/sf. 

FOR FURTHER INFORMATION CONTACT: 

Steve Branstetter, telephone: 727–824– 

5305, or email: 

Steve.Branstetter@noaa.gov. 

SUPPLEMENTARY INFORMATION: The reef 

fish fishery of the Gulf is managed 

under the FMP. The FMP was prepared 

by the Council and implemented 

through regulations at 50 CFR part 622 

under the authority of the MagnusonStevens Fishery Conservation and 

Management Act (Magnuson-Stevens 

Act). 

Background 

Accountability measures were 

established for gag and red grouper in 

2009 through Amendment 30B to the 

FMP (74 FR 17603, April 16, 2009). 

These AMs included the following 

provision: if the recreational sector 

annual catch limit (ACL) for gag or red 

grouper is exceeded in the current year, 

the recreational season for all SWG is 

shortened the following year to ensure 

that the gag or red grouper recreational 

ACL is not exceeded again. Regulations 

implemented through Amendment 32 to 

the FMP (77 FR 6988, February 10, 

2012) added more AMs, including inseason closures for gag and red grouper, 

and overage adjustments for gag and red 

grouper if they are overfished. 

Amendment 38 would modify the postseason AMs for gag and red grouper so 

that the shortening of the season 

following a season with an ACL overage 

applies only to the species with 

landings that exceeded the ACL the 

prior year. Modifying the AMs would 

improve the likelihood of achieving 

optimum yield for red grouper and 

avoid unnecessary closures of all SWG 

species (i.e., gag, red grouper, black 


wreier-aviles on DSK5TPTVN1PROD with PROPOSALS