### 11992 Federal Register / Vol. 77, No. 39 / Tuesday, February 28, 2012 / Proposed Rules

B. Do the rules meet the evaluation criteria?

We believe these rules are consistent with the relevant policy and guidance regarding enforceability, RACT, RACM and SIP relaxations. The TSDs have more information on our evaluation.

C. EPA Recommendations To Further Improve the Rules

The TSDs describe additional rule revisions that we recommend for the next time the local agencies modify the rules but are not currently the basis for rule disapproval.

D. Public Comment and Final Action

Because EPA believes the submitted rules fulfill all relevant requirements, we are proposing to fully approve them as described in section 110(k)(3) of the Act. We will accept comments from the public on this proposal for the next 30 days. Unless we receive convincing new information during the comment period, we intend to publish a final approval action that will incorporate these rules into the federally enforceable SIP. III. Statutory and Executive Order Reviews

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

• Is not a ‘‘significant regulatory action’’ subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. );

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. );

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4);

• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999); • Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and

• Does not provide EPA with the discretionary authority to address disproportionate human health or environmental effects with practical, appropriate, and legally permissible methods under Executive Order 12898 (59 FR 7629, February 16, 1994). In addition, this proposed action does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the State, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law. List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements.

Authority: 42 U.S.C. 7401 et seq. Dated: February 15, 2012. Jared Blumenfeld, Regional Administrator, Region IX.
[FR Doc. 2012–4729 Filed 2–27–12; 8:45 am]

**BILLING CODE 6560–50–P**

**ENVIRONMENTAL PROTECTION AGENCY** 

**40 CFR Part 52**

**[EPA–R09–OAR–2012–0089; FRL–9638–5]**

**Revisions to the California State Implementation Plan, Mojave Desert**  **Air Quality Management District**

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

**ACTION :**  Proposed rule.

**SUMMARY :**  EPA is proposing a limited approval and limited disapproval of revisions to the Mojave Desert Air Quality Management District (MDAQMD) portion of the California State Implementation Plan (SIP). These revisions concern oxides of nitrogen (NO X ) emissions from stationary gas turbines. We are proposing action on a local rule that regulates these emission sources under the Clean Air Act as amended in 1990 (CAA or the Act). We are taking comments on this proposal and plan to follow with a final action.

**DATES :**  Any comments must arrive by March 29, 2012.

**ADDRESSES :**  Submit comments, identified by docket number EPA–R09– OAR–2012–0089, by one of the following methods:

1. Federal eRulemaking Portal: www. regulations.gov. Follow the on-line instructions.

2. Email: steckel.andrew@epa.gov.

3. Mail or deliver: Andrew Steckel (Air-4), U.S. Environmental Protection Agency Region IX, 75 Hawthorne Street, San Francisco, CA 94105–3901.

Instructions: All comments will be included in the public docket without change and may be made available online at www.regulations.gov, including any personal information provided, unless the comment includes Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Information that you consider CBI or otherwise protected should be clearly identified as such and should not be submitted through www. regulations.gov or email. www. regulations.gov is an ‘‘anonymous access’’ system, and EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send email directly to EPA, your email address will be automatically captured and included as part of the public comment. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment.

Docket: Generally, documents in the docket for this action are available electronically at www.regulations.gov and in hard copy at EPA Region IX, 75 Hawthorne Street, San Francisco, California. While all documents in the docket are listed at www.regulations.
gov, some information may be publicly available only at the hard copy location (e.g., copyrighted material, large maps), and some may not be publicly available in either location (e.g., CBI). To inspect the hard copy materials, please schedule an appointment during normal business hours with the contact listed in the **FOR**
**FURTHER INFORMATION CONTACT** section.

**FOR FURTHER INFORMATION CONTACT :**  Idalia Perez, EPA Region IX, (415) 972–
3248.

**SUPPLEMENTARY INFORMATION :**  Throughout this document, ‘‘we,’’ ‘‘us’’ and ‘‘our’’ refer to EPA.


### 11993 Federal Register / Vol. 77, No. 39 / Tuesday, February 28, 2012 / Proposed Rules

Table of Contents

I. The State’s Submittal

A. What rule did the State submit? B. Are there other versions of this rule? C. What is the purpose of the submitted

rule? II. EPA’s Evaluation and Action

A. How is EPA evaluating the rule? B. Does the rule meet the evaluation
criteria? C. What are the rule deficiencies? D. EPA Recommendations to Further

Improve the Rule E. Proposed Action and Public Comment III. Statutory and Executive Order Reviews I. The State’s Submittal

A. What rule did the State submit?

Table 1 lists the rule addressed by this proposal with the dates that it was adopted by the local air agency and submitted by the California Air Resources Board (CARB).



### TABLE 

### 1—S UBMITTED 

### R ULE

Local agency Rule No. Rule title Amended Submitted

MDAQMD ........................................................ 1159 Stationary Gas Turbines ................................ 09/28/09 05/17/10

On June 8, 2010, the submittal for MDAQMD Rule 1159 was found to meet the completeness criteria in 40 CFR Part 51 Appendix V, which must be met before formal EPA review. B. Are there other versions of this rule?

We approved an earlier version of Rule 1159 into the SIP on April 9, 1996 (61 FR 15719). C. What is the purpose of the submitted rule?

NO X helps produce ground-level ozone, smog and particulate matter, which harm human health and the environment. Section 110(a) of the CAA requires States to submit regulations that control NO X emissions. Rule 1159 regulates emissions of NO X and carbon monoxide (CO) from non-utility stationary gas turbine systems with ratings equal to or greater than 0.3 megawatts (MW). EPA’s technical support document (TSD) has more information about this rule.

II. EPA’s Evaluation and Action A. How is EPA evaluating the rule?

Generally, SIP rules must be enforceable (see section 110(a) of the Act), must require Reasonably Available Control Technology (RACT) for each category of sources covered by a Control Techniques Guidelines (CTG) document as well as each major source in nonattainment areas (see sections 182(a)(2) and 182(f)), and must not relax existing requirements (see sections 110(l) and 193). In addition, SIP rules must implement Reasonably Available Control Measures (RACM), including RACT, in moderate PM nonattainment areas, and Best Available Control Measures (BACM), including Best Available Control Technology (BACT), in serious PM nonattainment areas (see CAA sections 189(a)(1) and 189(b)(1)). The MDAQMD regulates an ozone nonattainment area (see 40 CFR part 81), so Rule 1159 must fulfill RACT. In addition, the MDAQMD regulates a PM nonattainment area classified as moderate (see 40 CFR part 81), so Rule 1159 must implement RACM.

Guidance and policy documents that we use to evaluate enforceability, RACT and RACM requirements consistently include the following:

1. ‘‘State Implementation Plans; General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990,’’ 57 FR 13498 (April 16, 1992); 57 FR 18070 (April 28, 1992).

2. ‘‘State Implementation Plans; Nitrogen Oxides Supplement to the General Preamble; Clean Air Act Amendments of 1990 Implementation of Title I; Proposed Rule,’’ (the NO X Supplement), 57 FR 55620, November 25, 1992.

3. ‘‘Issues Relating to VOC Regulation Cutpoints, Deficiencies, and Deviations,’’ EPA, May 25, 1988 (the Bluebook).

4. ‘‘Guidance Document for Correcting Common VOC & Other Rule Deficiencies,’’ EPA Region 9, August 21, 2001 (the Little Bluebook).

5. ‘‘State Implementation Plans for Serious PM–10 Nonattainment Areas, and Attainment Date Waivers for PM–10 Nonattainment Areas Generally; Addendum to the General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990,’’ 59 FR 41998, August 16, 1994.

6. ‘‘PM–10 Guideline Document,’’ EPA 452/R–93–008, April 1993.

7. ‘‘Alternative Control Technology Document, NO X Emissions from Stationary Gas Turbines,’’ U.S. EPA, 453/R–93–007, January 1993.

9. ‘‘Determination of Reasonably Available Control Technology and Best Available Retrofit Control Technology for the Control of Oxides of Nitrogen from Stationary Gas Turbines,’’ California Air Resources Board, May 18,
1992.

10. ‘‘Status Report on NO X Controls for Gas Turbines, Cement Kilns, Boilers, and Internal Combustion Engines,’’ Northeast States for Coordinated Air Use Management, December 2000. B. Does the rule meet the evaluation criteria?

Rule 1159 improves the SIP by establishing more stringent emission limits and expanding the applicability of the rule to include units in the attainment area of the District. The rule is largely consistent with the relevant policy and guidance regarding enforceability, RACT and SIP relaxations. Rule provisions which do not meet the evaluation criteria are summarized below and discussed further in the TSD. C. What are the rule deficiencies?

The following provision conflicts with section 110 and part D of the Act and prevents full approval of the SIP revision. Section D.3 exempts the Southern California Gas Company General Electric Model Frame 3 turbine located in Kelso, California from testing requirements. This undermines enforceability of the rule which contradicts CAA requirements for enforceability.

D. EPA Recommendations to Further Improve the Rule

The TSD describes additional rule revisions that we recommend for the next time the local agency modifies the rule. E. Proposed Action and Public Comment

As authorized in sections 110(k)(3) and 301(a) of the Act, EPA is proposing a limited approval of the submitted rule to improve the SIP. If finalized, this action would incorporate the submitted rule into the SIP, including those provisions identified as deficient. This approval is limited because EPA is simultaneously proposing a limited disapproval of the rule under section 110(k)(3). Neither sanctions nor a Federal Implementation Plan (FIP) would be imposed should EPA finalize this limited disapproval. Sanctions would not be imposed under CAA 179(b) because the deficiency pertains


### 11994 Federal Register / Vol. 77, No. 39 / Tuesday, February 28, 2012 / Proposed Rules

to provisions of Rule 1159 that are discretionary (i.e., not required to be included in the SIP), and EPA would not promulgate a FIP in this instance under CAA 110(c)(1) because the disapproval does not reveal a deficiency in the SIP for the area that such a FIP must correct. Specifically, the disapproval pertains to requirements only applicable in the portion of the MDAQMD that is classified as attainment for ozone and which thus does not have RACT requirements per CAA 182(a)(2) and 182(f). Accordingly, the failure of the MDAQMD to adopt revisions to Rule 1159 would not adversely affect the SIP’s compliance with the CAA’s mandated requirements, such as the requirements for section 182 ozone RACT, reasonable further progress, and attainment demonstrations.

Note that the submitted rule has been adopted by the MDAQMD, and EPA’s final limited disapproval would not prevent the local agency from enforcing it. The limited disapproval also would not prevent any portion of the rule from being incorporated by reference into the federally enforceable SIP as discussed in a July 9, 1992 EPA memo found at: http://www.epa.gov/nsr/ttnnsr01/gen/ pdf/memo-s.pdf.

We will accept comments from the public on the proposed limited approval and limited disapproval for the next 30 days. III. Statutory and Executive Order Reviews A. Executive Order 12866, Regulatory Planning and Review

The Office of Management and Budget (OMB) has exempted this regulatory action from Executive Order 12866, entitled ‘‘Regulatory Planning and Review.’’ B. Paperwork Reduction Act

This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. Burden is defined at 5 CFR 1320.3(b). C. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions.

This rule will not have a significant impact on a substantial number of small entities because SIP approvals or disapprovals under section 110 and subchapter I, part D of the Clean Air Act do not create any new requirements but simply approve or disapprove requirements that the State is already imposing. Therefore, because the proposed Federal SIP limited approval/ limited disapproval does not create any new requirements, I certify that this action will not have a significant economic impact on a substantial number of small entities.

Moreover, due to the nature of the Federal-State relationship under the Clean Air Act, preparation of flexibility analysis would constitute Federal inquiry into the economic reasonableness of State action. The Clean Air Act forbids EPA to base its actions concerning SIPs on such grounds. Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255–66 (1976); 42 U.S.C. 7410(a)(2). D. Unfunded Mandates Reform Act

Under sections 202 of the Unfunded Mandates Reform Act of 1995 (Unfunded Mandates Act), signed into law on March 22, 1995, EPA must prepare a budgetary impact statement to accompany any proposed or final rule that includes a Federal mandate that may result in estimated costs to State, local, or tribal governments in the aggregate; or to the private sector, of $100 million or more. Under section205, EPA must select the most costeffective and least burdensome alternative that achieves the objectives of the rule and is consistent with statutory requirements. Section 203 requires EPA to establish a plan for informing and advising any small governments that may be significantly or uniquely impacted by the rule.

EPA has determined that the limited approval/limited disapproval action proposed does not include a Federal mandate that may result in estimated costs of $100 million or more to either State, local, or tribal governments in the aggregate, or to the private sector. This Federal action proposes to approve and disapprove pre-existing requirements under State or local law, and imposes no new requirements. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, result from this action.
E. Executive Order 13132, Federalism

Federalism (64 FR 43255, August 10, 1999) revokes and replaces Executive Orders 12612 (Federalism) and 12875 (Enhancing the Intergovernmental Partnership). Executive Order 13132 requires EPA to develop an accountable process to ensure ‘‘meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.’’ ‘‘Policies that have federalism implications’’ is defined in the Executive Order to include regulations that have ‘‘substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.’’ Under Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that has federalism implications and that preempts State law unless the Agency consults with State and local officials early in the process of developing the proposed regulation.

This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, because it merely proposes to approve or disapprove a State rule implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.
F. Executive Order 13175, Coordination With Indian Tribal Governments

Executive Order 13175, entitled ‘‘Consultation and Coordination with Indian Tribal Governments’’ (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure ‘‘meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.’’ This proposed rule does not have tribal implications, as specified in Executive Order 13175. It will not have substantial direct effects on tribal governments, 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. Thus, Executive Order 13175 does not apply to this rule.


### 11995 Federal Register / Vol. 77, No. 39 / Tuesday, February 28, 2012 / Proposed Rules

1 See, FMC Policy and Procedures Regarding Proper Consideration of Small Entities in Rulemakings (February 7, 2003). (Commission SBREFA Policy). See, http://www.fmc.gov/assets/1/ Page/SBREFA

_ Guidelines

_2003.pdf.

2 Regulatory Flexibility Act, Pub. L. 96–354, 94 Stat. 1164 (codified at 5 U.S.C. 601 et seq. ). EPA specifically solicits additional comment on this proposed rule from tribal officials. G. Executive Order 13045, Protection of Children From Environmental Health Risks and Safety Risks

EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5–501 of the Executive Order has the potential to influence the regulation. This rule is not subject to Executive Order 13045, because it proposes to approve a State rule implementing a Federal standard.
H. Executive Order 13211, Actions That Significantly Affect Energy Supply, Distribution, or Use

This rule is not subject to Executive Order 13211, ‘‘Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use’’ (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866. I. National Technology Transfer and Advancement Act

Section 12 of the National Technology Transfer and Advancement Act (NTTAA) of 1995 requires Federal agencies to evaluate existing technical standards when developing a new regulation. To comply with NTTAA, EPA must consider and use ‘‘voluntary consensus standards’’ (VCS) if available and applicable when developing programs and policies unless doing so would be inconsistent with applicable law or otherwise impractical.

The EPA believes that VCS are inapplicable to this action. Today’s action does not require the public to perform activities conducive to the use of VCS.
J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Population

Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. EPA lacks the discretionary authority to address environmental justice in this rulemaking. List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements.

Authority: 42 U.S.C. 7401 et seq. Dated: February 15, 2012. Jared Blumenfeld, Regional Administrator, Region IX.
[FR Doc. 2012–4737 Filed 2–27–12; 8:45 am]

**BILLING CODE 6560–50–P**

**FEDERAL MARITIME COMMISSION**

**46 CFR Parts 501 and 540**

**[Docket No. 11–16]**

**RIN 3072–AC45**

**Passenger Vessel Operator Financial Responsibility Requirements for Non**  **Performance of Transportation**

**AGENCY :**  Federal Maritime Commission.

**ACTION :**  Proposed rule: Request for additional comments and information.

**SUMMARY :**  The Federal Maritime Commission requests additional comments and information in order to assist the Commission’s determination whether passenger vessel operators may be deemed ‘‘small entities’’ under the Regulatory Flexibility Act (as amended by the Small Business Regulatory Enforcement Fairness Act).

**DATES :**  Submit comments on or before March 30, 2012.

**ADDRESSES :**  Address all comments concerning this proposed rule to: Karen V. Gregory, Secretary, Federal Maritime Commission, 800 North Capitol Street NW., Washington, DC 20573–0001, Phone: (202) 523–5725, Email: secretary@fmc.gov.

**FOR FURTHER INFORMATION CONTACT :**  Vern W. Hill, Director, Bureau of Certification and Licensing, 800 North Capitol Street NW., Washington, DC 20573–0001, Phone: (202) 523–5787, Email: bcl@fmc.gov.

**SUPPLEMENTARY INFORMATION :** 
Submit Comments

Non-confidential Comments and Information. For non-confidential comments submit an original and five (5) paper copies, and if possible, send a PDF of the document by email to secretary@fmc.gov. Include in the subject line: Docket No. 11–16 and [Company/Individual Name]. Confidential Comments and Information. Confidential filings must be submitted in the traditional manner on paper, rather than by email. Comments and information that are submitted for confidential treatment must be submitted in hard copy by U.S. mail or courier. Confidential filings must be accompanied by a transmittal letter that identifies the filing as ‘‘confidential’’ and describes the nature and extent of the confidential treatment requested. Responses to this Request that contain confidential information must consist of (1) the complete filing and (2) be marked by the filer as ‘‘Confidential-Restricted,’’ with the confidential material clearly marked on each page. When a confidential filing is submitted, an original and one additional copy of the public version of the filing must be submitted. The public version of the filing should exclude confidential materials, and be clearly marked on each affected page, ‘‘confidential materials excluded.’’ The Commission will provide confidential treatment to the extent allowed by law for those submissions, or parts of submissions, for which the parties request confidentiality.

Questions regarding filing or treatment of confidential responses to this NPRM should be directed to the Commission’s Secretary, Karen V. Gregory, at the telephone number or email provided above.

Discussion

On September 13, 2011, the Commission issued its Notice of Proposed Rulemaking (NPRM) to update its financial responsibility requirements for nonperformance of passenger vessel service by passenger vessel operators that are subject to section 3 of Public Law 89–777, 46 U.S.C. 44101–44106. The NPRM was published in the Federal Register on September 20, 2011. 76 FR 58227–58236.

In the NPRM, the Commission relied upon the rebuttable presumption established in 2003 1 that PVOs are generally large companies with more than 500 employees and noted that there are no PVO small entities that would be affected by the proposed rule. NPRM, p. 12. In addition, the Commission also provided the factual basis under the Regulatory Flexibility Act (RFA), 2 as amended by the Small