19164 Federal Register / Vol. 78, No. 61 / Friday, March 29, 2013 / Proposed Rules 

enforced for two weeks in the month of 

January with the exact dates and times 

to be published annually via a Notice of 

Enforcement. 

* * * * * 

Dated: February 15, 2013. 

J.E. Ogden, 

Captain, U.S. Coast Guard, Captain of the 

Port Detroit. 

[FR Doc. 2013–07284 Filed 3–28–13; 8:45 am] 

BILLING CODE 9110–04–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R05–OAR–2012–0088; FRL–9783–4] 

Approval and Promulgation of Air 

Quality Implementation Plans; Ohio; 

Particulate Matter Standards 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing to convert a 

conditional approval of specified 

provisions of the Ohio state 

implementation plan (SIP) to a full 

approval. Ohio submitted a request to 

approve a section of its particulate 

matter (PM) rules on February 23, 2012. 

The PM rule revisions being approved 

establish work practices for coating 

operations, add a section clarifying that 

sources can be subject to both stationary 

source and fugitive source PM 

restrictions, and add a PM emission 

limitation exemption for jet engine 

testing. Pursuant to a state commitment 

underlying a previous conditional 

approval of this rule, the revised rule 

provides that any exemption from the 

work practice requirements that the 

state grants to large coating sources 

must be submitted to EPA for approval. 

DATES: Comments must be received on 

or before April 29, 2013. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R05– 

OAR–2012–0088, by one of the 

following methods: 

1. www.regulations.gov: Follow the 

on-line instructions for submitting 

comments. 

2. Email: blakely.pamela@epa.gov. 

3. Fax: (312) 692–2450. 

4. Mail: Pamela Blakely, Chief, 

Control Strategies Section, Air Programs 

Branch (AR–18J), U.S. Environmental 

Protection Agency, 77 West Jackson 

Boulevard, Chicago, Illinois 60604. 

5. Hand Delivery: Pamela Blakely, 

Chief, Control Strategies Section, Air 

Programs Branch (AR–18J), U.S. 

Environmental Protection Agency, 77 

West Jackson Boulevard, Chicago, 

Illinois 60604. Such deliveries are only 

accepted during the Regional Office 

normal hours of operation, and special 

arrangements should be made for 

deliveries of boxed information. The 

Regional Office official hours of 

business are Monday through Friday, 

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

Federal holidays. 

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: Matt 

Rau, Environmental Engineer, Control 

Strategies Section, Air Programs Branch 

(AR–18J), Environmental Protection 

Agency, Region 5, 77 West Jackson 

Boulevard, Chicago, Illinois 60604, 

(312) 886–6524, rau.matthew@epa.gov. 

SUPPLEMENTARY INFORMATION: In the 

Final Rules section of this Federal 

Register, EPA is approving the state’s 

SIP submittal as a direct final rule 

without prior proposal because the 

Agency views this as a noncontroversial 

submittal and anticipates no adverse 

comments. A detailed rationale for the 

approval 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. 

Any parties interested in commenting 

on this action should do so at this time. 

Please note that if EPA receives adverse 

comment on an amendment, paragraph, 

or section of this rule and if that 

provision may be severed from the 

remainder of the rule, EPA may adopt 

as final those provisions of the rule that 

are not the subject of an adverse 

comment. For additional information, 

see the direct final rule which is located 

in the Rules section of this Federal 

Register. 

Dated: February 11, 2013. 

Susan Hedman, 

Regional Administrator, Region 5. 

[FR Doc. 2013–07261 Filed 3–28–13; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 70 and 71 

[EPA–HQ–OAR–2013–0162; FRL–9790–5] 

RIN 2060–AQ71 

Amendments to Compliance 

Certification Content Requirements for 

State and Federal Operating Permits 

Programs 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The EPA proposes to amend 

the compliance certification 

requirements for state and federal 

operating permits programs that were 

published in the Federal Register on 

June 27, 2003. In that action, one 

sentence was removed from the rules in 

error. This action proposes to restore the 

sentence to its original location in the 

rules. 

DATES: Comments. Comments must be 

received on or before May 28, 2013. 

Public Hearing. If anyone contacts the 

EPA requesting to speak at a public 

hearing by April 19, 2013, the EPA will 

hold a public hearing. Additional 

information about the hearing would be 

published in a subsequent Federal 

Register notice. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–HQ– 

OAR–2013–0162, by one of the 

following methods: 

• Http://www.regulations.gov: Follow 

the online instructions for submitting 

comments. 

• Email: a-and-r-docket@epa.gov. 

Attention Docket ID No. EPA–HQ– 

OAR–2013–0162. 

• Fax: (202) 566–9744. 

• Mail: Attention Docket ID No. EPA– 

HQ–OAR–2013–0162, Air and Radiation 

Docket, Mailcode: 28221T, U.S. 

Environmental Protection Agency, 1200 

Pennsylvania Avenue NW., Washington, 

DC 20460. Please include a total of two 

copies. 

• Hand Delivery: Air and Radiation 

Docket, EPA/DC, EPA West, Room 3334, 

1301 Constitution Avenue NW., 

Washington, DC 20004, Attention 

Docket ID No. EPA–HQ–OAR–2013– 

0162. Such deliveries are only accepted 

during the Docket Center’s normal hours 

of operation, and special arrangements 

should be made for deliveries of boxed 

information. 

Instructions: Direct your comments to 

Docket ID No. EPA–HQ–OAR–2013– 

0162. The EPA’s policy is that all 

comments received will be included in 

the public docket without change and 


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Federal Register / Vol. 78, No. 61 / Friday, March 29, 2013 / Proposed Rules 19165 

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 the 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 the 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, the 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 the EPA cannot read your 

comment due to technical difficulties 

and cannot contact you for clarification, 

the 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 

instructions on submitting comments, 

go to section I.B of the SUPPLEMENTARY

INFORMATION section of this document. 

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 in 

www.regulations.gov or in hard copy at 

the Air and Radiation Docket, EPA/DC, 

EPA West, Room 3334, 1301 

Constitution Avenue NW., Washington, 

DC. The Public Reading Room is open 

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

through Friday, excluding legal 

holidays. The telephone number for the 

Public Reading Room is (202) 566–1744, 

and the telephone number for the Air 

and Radiation Docket is (202) 566–1742. 

FOR FURTHER INFORMATION CONTACT: 

Joanna Swanson, Air Quality Policy 

Division, Office of Air Quality Planning 

and Standards (C504–05), 

Environmental Protection Agency, 

Research Triangle Park, North Carolina 

27711; telephone number (919) 541– 

5282; fax number (919) 541–5509; email 

address: swanson.joanna@epa.gov. 

To request a public hearing or 

information pertaining to a public 

hearing on this document, contact Ms. 

Pamela Long, Air Quality Policy 

Division, Office of Air Quality Planning 

and Standards (C504–01), 

Environmental Protection Agency, 

Research Triangle Park, North Carolina 

27711; telephone number (919) 541– 

0641; fax number (919) 541–5509; email 

address: long.pam@epa.gov. 

SUPPLEMENTARY INFORMATION: The 

information in this Supplementary 

Information section of this preamble is 

organized as follows: 

I. General Information 

A. Does this action apply to me? 

B. What should I consider as I prepare my 

comments for the EPA? 

1. Submitting CBI 

2. Tips for Preparing Your Comments 

C. Where can I get a copy of this document 

and other related information? 

D. How can I find information about a 

possible public hearing? 

II. Overview of the Proposed Rule 

III. Background 

A. The Title V Operating Permits Program 

B. History of Changes to the Title V 

Compliance Certification Requirements 

1. The CAM Rulemaking and the Credible 

Evidence Rule 

2. The 2001 and 2003 Rulemakings To 

Address a Court Remand 

IV. Proposed Revisions to the Title V 

Program Rules 

A. The Proposed Change and Rationale 

B. Scope of Rulemaking and Request for 

Comment 

V. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act 

D. Unfunded Mandates Reform Act 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution or Use 

I. National Technology Transfer and 

Advancement Act 

J. Executive Order 12898: Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

I. General Information 

A. Does this action apply to me? 

Entities potentially affected by this 

proposed action would include owners 

and operators of emission sources in all 

industry groups that hold or apply for 

a title V operating permit. Other entities 

potentially affected by this proposed 

action would include federal, state, 

local, and tribal air pollution control 

agencies that administer title V permit 

programs. 

B. What should I consider as I prepare 

my comments for the EPA? 

1. Submitting CBI 

Do not submit this information to the 

EPA through www.regulations.gov or 

email. Clearly mark the part or all of the 

information that you claim to be CBI. 

For CBI information in a disk or CD 

ROM that you mail to the EPA, mark the 

outside of the disk or CD ROM as CBI 

and then identify electronically within 

the disk or CD ROM the specific 

information that is claimed as CBI. In 

addition to one complete version of the 

comment that includes information 

claimed as CBI, a copy of the comment 

that does not contain the information 

claimed as CBI must be submitted for 

inclusion in the public docket. 

Information so marked will not be 

disclosed except in accordance with 

procedures set forth in 40 CFR Part 2. 

Send or deliver information identified 

as CBI only to the following address: 

Roberto Morales, OAQPS Document 

Control Officer (C404–02), 

Environmental Protection Agency, 

Research Triangle Park, NC 27711, 

Attention Docket ID No. EPA–HQ– 

OAR–2013–0162. 

2. Tips for Preparing Your Comments 

When submitting comments, 

remember to: 

• Identify the rulemaking by docket 

number and other identifying 

information (subject heading, Federal 

Register date and page number). 

• Follow directions—The agency may 

ask you to respond to specific questions 

or organize comments by referencing a 

Code of Federal Regulations (CFR) part 

or section number. 

• Explain why you agree or disagree; 

suggest alternatives and substitute 

language for your requested changes. 

• Describe any assumptions and 

provide any technical information and/ 

or data that you used. 

• If you estimate potential costs or 

burdens, explain how you arrived at 

your estimate in sufficient detail to 

allow for it to be reproduced. 

• Provide specific examples to 

illustrate your concerns, and suggest 

alternatives. 

• Explain your views as clearly as 

possible, avoiding the use of profanity 

or personal threats. 

• Make sure to submit your 

comments by the comment period 

deadline identified. 


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19166 Federal Register / Vol. 78, No. 61 / Friday, March 29, 2013 / Proposed Rules 

1The compliance certification requirement are 

found in 40 CFR 70.6(c)(5) and 71.6(c)(5). 

C. Where can I get a copy of this 

document and other related 

information? 

In addition to being available in the 

docket found on www.regulations.gov, 

an electronic copy of this proposed rule 

will also be available on the World 

Wide Web. Following signature by the 

EPA Administrator, a copy of this 

proposed rule will be posted on the 

EPA’s title V Web page at http:// 

www.epa.gov/ttn/oarpg/t5pfpr.html. 

D. How can I find information about a 

possible public hearing? 

To request a public hearing or 

information pertaining to a public 

hearing on this document, contact Ms. 

Pamela Long, Air Quality Policy 

Division, Office of Air Quality Planning 

and Standards (C504–03), 

Environmental Protection Agency, 

Research Triangle Park, North Carolina 

27711; telephone number (919) 541– 

0641; fax number (919) 541–5509; email 

address: long.pam@epa.gov. 

II. Overview of the Proposed Rule 

This proposed rule would restore a 

sentence that was inadvertently 

removed from the operating permits 

program rules found in 40 CFR parts 70 

and 71 due to an editing error. This 

error occurred in a June 27, 2003, final 

rule (68 FR 38517) amending the 

compliance certification requirements 

in 40 CFR 70.6(c)(5)(iii)(B) and 

71.6(c)(5)(iii)(B). The final rule removed 

the following sentence from the end of 

paragraph (c)(5)(iii)(B) of both sections: 

‘‘If necessary, the owner or operator also 

shall identify any other material 

information that must be included in 

the certification to comply with section 

113(c)(2) of the Act, which prohibits 

knowingly making a false certification 

or omitting material information.’’ This 

proposed rule would restore this 

sentence to its former position in both 

paragraphs. 

This sentence was originally added to 

the operating permits rules in the 

context of the 1997 Compliance 

Assurance Monitoring (CAM) 

rulemaking, which clarified the use of 

CAM monitoring data in compliance 

certifications. Specifically, this sentence 

was intended to clarify that material 

information (i.e., compliance 

information beyond required 

monitoring) known by the owner or 

operator must be identified and 

addressed in compliance certifications 

consistent with section 113(c)(2) of the 

Act and the 1997 Credible Evidence 

rule. The 2003 rulemaking that 

erroneously removed the subject 

sentence was intended to address a 

court remand concerning other aspects 

of the annual compliance certification 

requirements of title V. 

The EPA is requesting comments only 

on whether, on the sole basis that the 

removal of the language in question was 

inadvertent, the language in question 

should or should not be restored. 

However, the EPA is not requesting 

comments on any other aspects of these 

provisions or on any other provisions of 

the part 70 and 71 rules. 

III. Background 

This section traces the origin of the 

sentence that is addressed in this 

proposal and its accidental removal 

from the regulations. Section III.A gives 

background information on the 

operating permits program under the 

Clean Air Act (CAA or ‘‘the Act’’), 

followed in section III.B by background 

on the rulemaking that created the 

sentence in question and the rulemaking 

in which the sentence was accidentally 

removed. 

A. The Title V Operating Permits 

Program 

Title V of the Act establishes an 

operating permits program for major 

sources of air pollutants, as well as 

certain other sources (CAA section 

502(a)). Under title V, states were 

required to develop and implement title 

V permitting programs in conformance 

with program requirements promulgated 

by the EPA, which the EPA placed in 40 

CFR part 70. Under title V, the EPA also 

developed a federal operating permits 

program to apply where states do not 

have approved programs, where the 

EPA determines that a state is not 

adequately implementing a program, in 

cases where a state has not satisfied an 

EPA objection, in Indian country (absent 

an explicitly approved part 70 program), 

and in certain areas of the Outer 

Continental Shelf. The federal program 

was promulgated in 40 CFR part 71. 

Most states, certain local agencies and 

one tribe have approved part 70 

programs. The EPA administers the part 

71 federal program in most areas of 

Indian Country (one tribe has been 

delegated implementation authority) 

and in certain areas of the Outer 

Continental Shelf (where there is no 

state permitting authority). 

Once the operating permits programs 

are in place, title V requires every major 

source to apply for and operate pursuant 

to an operating permit (CAA sections 

502(a) and 503), and requires that the 

permits contain conditions that assure 

compliance with all of the sources’ 

applicable requirements under the Act 

(CAA section 504(a)). Among other 

things, title V also requires that sources 

certify compliance with the applicable 

requirements of their permits no less 

frequently than annually (CAA section 

503(b)(2)), provides authority to the EPA 

to prescribe procedures for determining 

compliance and for monitoring and 

analysis of pollutants regulated under 

the Act (CAA section 504(b)) and 

requires each permit to ‘‘set forth 

inspection, entry, monitoring, 

compliance certification, and reporting 

requirements to assure compliance with 

the permit terms and conditions’’ (CAA 

section 504(c)). 

B. History of Changes to the Title V 

Compliance Certification Requirements 

1. The CAM Rulemaking and the 

Credible Evidence Rule 

The part 70 rule was originally 

promulgated on July 21, 1992 (57 FR 

32250), and the part 71 rule on July 1, 

1996 (61 FR 34202). Among other 

requirements, these rules required 

operating permits to include 

requirements for sources to submit 

annual compliance certifications,1

consistent with CAA sections 503(b)(2), 

504(c) and 114(a)(3). 

The requirement to identify ‘‘any 

other material information * * *,’’ 

which is the sentence the EPA is 

proposing to restore in this action, was 

originally added to the title V 

compliance certification requirements of 

parts 70 and 71 in the context of a CAM 

rulemaking on October 22, 1997 (62 FR 

54899). The CAM rule (located at 40 

CFR part 64) is authorized by CAA 

section 114(a), which requires the EPA 

to promulgate regulations concerning 

enhanced monitoring and compliance 

certification. The CAM rule is an 

applicable requirement of the Act that 

imposes a methodology to create 

monitoring and/or recordkeeping to 

provide a reasonable assurance of 

compliance with applicable 

requirements. Section 114(a)(3) of the 

Act specifies certain requirements for 

compliance certifications that are 

relevant to the CAM rule and to title V. 

A goal of the CAM rule is to establish 

additional monitoring requirements so 

that units subject to part 64 can use the 

CAM monitoring data to address title V 

compliance certification requirements. 

At the time that the CAM rule was 

promulgated, in order to clarify that the 

EPA always intended for the CAM 

provisions to operate within the title V 

compliance certification process, the 

compliance certification provisions in 

40 CFR 70.6(c)(5)(iii) and 71.6(c)(5)(iii) 

were also amended to reflect the 


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2The language in 40 CFR 70.6 and 71.6 was 

identical except that the final sentence that appears 

above in the text of paragraph (c)(5)(iii)(C) was not 

included in 40 CFR 71.6. This difference in 

language was maintained throughout the revisions 

discussed in this preamble, and remains the same 

in the current regulations. 

3The compliance certification requirements 

apply to all part 70 and 71 sources, not just part 

64 (CAM) sources. 

4 In explaining why the Credible Evidence 

rulemaking made no changes to 40 CFR part 70 or 

71, the EPA also stated that the final Credible 

Evidence rule ‘‘merely eliminates any potential 

ambiguity or conflict between Parts 51, 52, 60, and 

61 and Part 70 regarding the ability of sources to 

use non-reference test data in compliance 

certifications. Consistent with the congressional 

intent reflected in Title V and section 114(a)(3), Part 

70 already contemplates use of non-reference test 

data in compliance certifications’’ (62 FR 8319). 

requirements of compliance certification 

for those units subject to part 64 (62 FR 

54937). In the CAM rulemaking, the 

EPA explained the revisions of the part 

70 and 71 compliance certification 

requirements as follows: 

To tailor compliance certification to the 

monitoring imposed by part 64, EPA has 

revised § 70.6(c)(5)(iii) (and § 71.6(c)(5)(iii)) 

so that a compliance certification includes 

the following elements. 

First, the permit conditions being certified 

must be identified. Second, the method(s) 

and other information used to determine 

compliance status of each term and condition 

must be identified. These method(s) will 

have to include at a minimum any testing 

and monitoring methods identified in 

§ 70.6(a)(3) that were conducted during the 

relevant time period. In addition, if the 

owner or operator knows of other material 

information (i.e., information beyond 

required monitoring that has been 

specifically assessed in relation to how the 

information potentially affects compliance 

status), that information must be identified 

and addressed in the compliance 

certification. This requirement merely 

emphasizes the general prohibition in section 

113(c)(2) of the Act on knowingly making a 

false certification or omitting material 

information and the general criminal section 

on submitting false information to the 

government codified at 18 USC 1001. The 

revised part 70 provision does not impose a 

duty on the owner or operator to assess every 

possible piece of information that may have 

some undetermined bearing on compliance 

* * * 

62 FR 54936. 

Thus, after the 1997 CAM rulemaking, 

the compliance certification provisions 

that are pertinent to this proposal, 40 

CFR 70.6(c)(5)(iii)(B) and (C) and 

71.6(c)(5)(iii)(B) and (C), stated that a 

part 70 or 71 source’s compliance 

certifications must include, among other 

items, the following information: 

(B) The identification of the method(s) or 

other means used by the owner or operator 

for determining the compliance status with 

each term and condition during the 

certification period, and whether such 

methods or other means provide continuous 

or intermittent data. Such methods and other 

means shall include, at a minimum, the 

methods and means required under 

paragraph (a)(3) of this section. If necessary, 

the owner or operator also shall identify any 

other material information that must be 

included in the certification to comply with 

section 113(c)(2) of the Act, which prohibits 

knowingly making a false certification or 

omitting material information; 

(C) The status of compliance with the 

terms and conditions of the permit for the 

period covered by the certification, based on 

the method or means designated in paragraph 

(c)(5)(iii)(B) of this section. The certification 

shall identify each deviation and take it into 

account in the compliance certification. The 

certification shall also identify as possible 

exceptions to compliance any periods during 

which compliance is required and in which 

an excursion or exceedance as defined under 

part 64 of this chapter occurred; and 

62 FR 54947 (emphasis added to denote 

the sentence that is at issue in this 

action).2 3

Another rule, the Credible Evidence 

rule, was promulgated earlier in 1997 

(62 FR 8314, February 24, 1997). The 

Credible Evidence rulemaking clarified 

that non-reference test data can be used 

in enforcement actions, and removed 

any potential ambiguity regarding use of 

such data for compliance certifications 

under section 114 and title V of the Act. 

That rulemaking was based on the 

EPA’s understanding that Congress gave 

the EPA clear statutory authority to use 

any available information—not just data 

from reference tests or other federally 

promulgated or approved compliance 

methods—to prove CAA violations (62 

FR 8314). The Credible Evidence rule 

revised 40 CFR parts 51, 52, 60 and 61 

to make clear that ‘‘any credible 

evidence’’ can be used for this purpose 

by the EPA, states and citizens, but 

made no such revisions to part 70 or 71, 

in part because the CAM rule that was 

under development was expected to 

concurrently modify the existing part 70 

requirements to provide additional 

detail as to what information sources 

must consider when certifying 

compliance (62 FR 8319).4

Although the scope of and authority 

for the Credible Evidence and CAM 

rules differ, there are complementary 

aspects to these rules (62 FR 54906). 

The 1997 CAM rulemaking discussed 

the relationship between the CAM rule 

and the Credible Evidence rule. In 

addressing comments on this 

relationship, the EPA stated the 

following in the 1997 CAM rulemaking: 

First, these commenters suggested that 

compliance with indicator ranges under part 

64 should act as a shield to enforcement 

actions. The Agency disagrees. Complete 

compliance with an approved part 64 

monitoring plan does not shield a source 

from enforcement actions for violations of 

applicable requirements of the Act if other 

credible evidence proves violations of 

applicable emission limitations or standards. 

The Agency expects that a unit that is 

operating within appropriately established 

indicator ranges as part of approved 

monitoring will, in fact, be in compliance 

with its applicable limits. Part 64 does not 

prohibit the Agency, however, from 

undertaking enforcement where appropriate 

(such as cases where the part 64 indicator 

ranges may have been set improperly and 

other data such as information collected 

during an inspection provides clear evidence 

that enforcement is warranted). 

* * * * * 

Finally, it has been suggested during the 

part 64 and credible evidence rulemakings 

that a Title V permit may be written to limit 

the types of evidence used to prove 

violations of emissions standards. As 

mentioned in the [Credible Evidence 

rulemaking], even if a Title V permit 

specifies that certain monitoring, CAM or 

other monitoring, be performed and that this 

monitoring is the sole or exclusive means of 

establishing compliance or non-compliance, 

EPA views such provisions as null and void. 

Such an attempt to eliminate the possible use 

of credible evidence other than the 

monitoring specified in a Title V permit is 

antithetical to the credible evidence rule and 

to section 113(e)(1). If such a provision is 

nonetheless included in a permit, the permit 

should be vetoed to avoid any ambiguity. If 

the provision is not vetoed, the provision is 

without meaning, as it is ultra vires, that is, 

beyond the authority of the permit writer to 

limit what evidence may be used to prove 

violations, just as if a permit writer were to 

attempt to write in a provision that a source 

may not be assessed a penalty of $25,000 per 

day of violation for each violation. Evidence 

that is permitted by statute to be used for 

enforcement purposes, fines that may be 

levied, and any other statutory provisions, 

may not be altered by a permit. 

62 FR 54907. 

This discussion provides a clear 

statement by the EPA regarding its 

position on credible evidence and title 

V permits. The EPA has not reversed or 

weakened this position in subsequent 

actions. 

2. The 2001 and 2003 Rulemakings To 

Address a Court Remand 

On March 1, 2001, to respond to an 

October 29, 1999, remand from the 

United States Court of Appeals for the 

District of Columbia Circuit in Natural 

Resources Defense Council v. EPA, 194 

F.3d 130 (D.C. Cir. 1999), the EPA 

published a direct final rule (66 FR 

12872) and a parallel proposal (66 FR 

12916) requiring title V compliance 

certifications to identify whether 

compliance during the period was 

continuous or intermittent as specified 

in CAA section 114(a)(3) per the 1990 

CAA Amendments. Accordingly, this 

language was to be added to paragraph 


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19168 Federal Register / Vol. 78, No. 61 / Friday, March 29, 2013 / Proposed Rules 

5There are a number of errors in this paragraph 

of the Federal Register as it appeared in the 

preamble text in both the direct final and parallel 

proposed rules. The first sentence of the preamble 

text in both the direct final and parallel proposed 

rules misidentified 40 CFR 70.6(c)(5)(iii)(B) and 

71.6(c)(5)(iii)(B) as the paragraphs in which text 

was being added. However, the revised regulatory 

text actually addressed paragraph (c)(5)(iii)(C) of the 

two rules, and the revised regulatory text was 

clearly placed in the paragraph (C) in the rule 

language section of the notices. In addition, the 

clause ‘‘including whether compliance during the 

period was continuous or intermittent’’ that is 

located midway through the paragraph should have 

been italicized to denote the text that was proposed 

to be added in response to the court decision, but 

no text was italicized. 

6These comments are available in Docket No. 

EPA–HQ–OAR–2002–0062, items EPA–HQ–OAR– 

2002–0062–0002 through –0006. 

(c)(5)(iii)(C) of both 40 CFR 70.6 and 

71.6. The preamble discussion of this 

change stated the following: 

In response to the court’s remand, we have 

added text to sections, §§ 70.6(c)(5)(iii)([C]) 

and 71.6(c)(5)(iii)([C]), to require that the 

responsible official for the affected facility 

include in the annual (or more frequent) 

compliance certification whether compliance 

during the period was continuous or 

intermittent. Specifically, the revised text, 

including the introductory language for both 

sections reads: ‘‘Permits shall include each of 

the following * * *: A requirement that the 

compliance certification include all of the 

following * * *: The status of compliance 

with the terms and conditions of the permit 

for the period covered by the certification, 

including whether compliance during the 

period was continuous or intermittent. The 

certification shall be based on the method or 

means designated in paragraph (c)(5)(iii)(B) 

of this section.’’ The italicized text indicates 

the revisions made in response to the Court 

decision. Other text within both of these 

sections remains as promulgated in 1997. 

Under this revised language, the responsible 

official must include in the compliance 

certification a statement as to whether 

compliance during the period was 

continuous or intermittent. We believe these 

revisions respond directly and adequately to 

the Court’s decision to remand the 

compliance certification requirements to us 

and are consistent with the requirements of 

the Act. 

66 FR 12874 (direct final rule); 66 FR 

12918 (parallel proposed rule).5

The revised regulatory language in the 

2001 direct final rulemaking for the part 

70 program reads as follows: 

§ 70.6 Permit content. 

* * * * * 

(c) * * * 

(5) * * * 

(iii) * * * 

(C) The status of compliance with the 

terms and conditions of the permit for the 

period covered by the certification, including 

whether compliance during the period was 

continuous or intermittent. The certification 

shall be based on the method or means 

designated in paragraph (c)(5)(iii)(B) of this 

section. The certification shall identify each 

deviation and take it into account in the 

compliance certification. The certification 

shall also identify as possible exceptions to 

compliance any periods during which 

compliance is required and in which an 

excursion or exceedance as defined under 

part 64 of this chapter occurred; and 

* * * * * 

66 FR 12876. 

The revised regulatory language in the 

2001 direct final rulemaking for the part 

71 program reads as follows: 

§ 71.6 Permit content. 

* * * * * 

(c) * * * 

(5) * * * 

(iii) * * * 

(C) The status of compliance with the 

terms and conditions of the permit for the 

period covered by the certification, including 

whether compliance during the period was 

continuous or intermittent. The certification 

shall be based on the method or means 

designated in paragraph (c)(5)(iii)(B) of this 

section. The certification shall identify each 

deviation and take it into account in the 

compliance certification; and 

* * * * * 

66 FR 12876. 

During the period provided for public 

comment on the 2001 direct final rule 

and parallel proposal, the EPA received 

significant comments.6 Accordingly, the 

EPA withdrew the direct final rule, 

considered the comments that were 

received and, based on consideration of 

those comments, published a final rule 

on June 27, 2003 (68 FR 38518). In the 

final rule, the EPA finalized paragraph 

(c)(5)(iii)(C) of both 40 CFR 70.6 and 

71.6 as proposed. In addition, in 

response to comments, the EPA revised 

paragraph (c)(5)(iii)(B) in both rules to 

remove from the first sentence the 

reference to whether the methods or 

other means used by the source to 

determine compliance ‘‘provide 

continuous or intermittent data.’’ The 

preamble stated the following: 

In response to the comments, we have 

deleted the second clause after the comma in 

the first sentence from §§ 70.6(c)(5)(iii)(B) 

and 71.6(c)(5)(iii)(B). This removes the 

requirement that the responsible official for 

the affected facility identify in the annual (or 

more frequent) compliance certification 

whether the methods provide continuous or 

intermittent data. * * * Other text within 

§§ 70.6(c)(5)(iii)(B), 71.6(c)(5)(iii)(B), 

70.6(c)(5)(iii)(C), and 71.6(c)(5)(iii)(C) 

remains as proposed in March 2001. The 

language in this final rule requires 

responsible officials to identify in the 

compliance certification whether compliance 

during the covered period was continuous or 

intermittent, but responsible officials do not 

need to state whether the methods used for 

determining compliance provide continuous 

or intermittent data. We believe these 

revisions respond directly and adequately to 

the Court’s decision to remand the 

compliance certification requirements to us 

and are consistent with the requirements of 

the Act. 

68 FR 38521. 

However, in addition to the change 

described above, the actual revisions as 

set out in the regulatory language 

section in the 2003 final rule also 

deleted the last sentence of paragraph 

(c)(5)(iii)(B) in both the part 70 and 71 

rules, despite the fact that the preamble 

stated that no other changes were being 

made. Id. The final regulatory language 

for 40 CFR 70.6 and 71.6 is shown 

below: 

§ 70.6 Permit content. 

* * * * * 

(c) * * * 

(5) * * * 

(iii) * * * 

(B) The identification of the method(s) or 

other means used by the owner or operator 

for determining the compliance status with 

each term and condition during the 

certification period. Such methods and other 

means shall include, at a minimum, the 

methods and means required under 

paragraph (a)(3) of this section; 

(C) The status of compliance with the 

terms and conditions of the permit for the 

period covered by the certification, including 

whether compliance during the period was 

continuous or intermittent. The certification 

shall be based on the method or means 

designated in paragraph (c)(5)(iii)(B) of this 

section. The certification shall identify each 

deviation and take it into account in the 

compliance certification. The certification 

shall also identify as possible exceptions to 

compliance any periods during which 

compliance is required and in which an 

excursion or exceedance as defined under 

part 64 of this chapter occurred; and 

* * * * * 

§ 71.6 Permit content. 

* * * * * 

(c) * * * 

(5) * * * 

(iii) * * * 

(B) The identification of the method(s) or 

other means used by the owner or operator 

for determining the compliance status with 

each term and condition during the 

certification period. Such methods and other 

means shall include, at a minimum, the 

methods and means required under 

paragraph (a)(3) of this section; 

(C) The status of compliance with the 

terms and conditions of the permit for the 

period covered by the certification, including 

whether compliance during the period was 

continuous or intermittent. The certification 

shall be based on the method or means 

designated in paragraph (c)(5)(iii)(B) of this 

section. The certification shall identify each 

deviation and take it into account in the 

compliance certification; and 

* * * * * 

68 FR 38523. 


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7As discussed previously, while the 2001 

preamble discussion of the proposed revisions at 66 

FR 12918 mistakenly referred to changes to 

paragraph (c)(5)(iii)(B) of 40 CFR 70.6 and 71.6, the 

proposed amendments in that action addressed 

only 40 CFR 70.6(c)(5)(iii)(C) and 71.6(c)(5)(iii)(C). 

The proposed revisions to the regulatory language 

correctly addressed 40 CFR 70.6(c)(5)(iii)(C) and 

71.6(c)(5)(iii)(C). 

8Responses to public comments prepared for the 

June 27, 2003 Final Rule, section 2.3, page 11, EPA 

Docket No. EPA–HQ–OAR–2002–0062–0008, June 

2003. 

9Annual Compliance Certification (A–COMP), 

EPA Form 5900–04, at page 4 (emphasis added), 

accessed from http://www.epa.gov/airquality/ 

permits/p71forms.html on September 25, 2012. 

10http://www.epa.gov/airquality/permits/ 

p71forms.html accessed on September 25, 2012. 11http://www.epa.gov/airquality/permits/ 

p71forms.html accessed on September 25, 2012. 12Region II part 71 permit issued to Turning 

Stone Casino Resort in Verona, New York, http:// 

www.epa.gov/region02/air/permit/ 

trsc07052011.pdf. Region VIII part 71 permits 

issued to (1) Samson Resources Company, http:// 

www.epa.gov/region8/air/permitting/SamsonHowardSWD_Initial_V-SU-0051-10.00.pdf; and (2) 

Public Service Company of Colorado, http:// 

www.epa.gov/region8/air/permitting/PSCoTiffanyCS-FinalRenewal-2-Permit-V-SU-00023- 

2010.00.pdf. Region V part 71 permit issued for 

operations at the Treasure Island Resort & Casino 

in Red Wing, Minnesota. http://yosemite.epa.gov/ 

r5/r5ard.nsf/f5dbe2e3ef9dc9c1862570430068f396/ 

10cd79ad1a4c177386257ad0004d7bc3/$FILE/V-PI2704900084-2012-10%20-%20Final.pdf. These Web 

sites were accessed on December 19, 2012. 

A comparison of the version of 

paragraphs 40 CFR 70.6(c)(5)(iii)(B) and 

71.6(c)(5)(iii)(B) promulgated in 2003 

with the version promulgated in the 

1997 CAM rule, as described in section 

III.B.1 above, shows that the last 

sentence of those paragraphs—which 

stated ‘‘If necessary, the owner or 

operator also shall identify any other 

material information that must be 

included in the certification to comply 

with section 113(c)(2) of the Act, which 

prohibits knowingly making a false 

certification or omitting material 

information.’’—was deleted, despite the 

fact that no mention of this change was 

made in either the 2001 direct final and 

parallel proposed rulemaking or the 

2003 final rulemaking. The accidental 

deletion of that last sentence in 40 CFR 

70.6(c)(5)(iii)(B) and 71.6(c)(5)(iii)(B) is 

the error that the EPA seeks to correct 

with this proposed action. 

IV. Proposed Revisions to the Title V 

Program Rules 

A. The Proposed Change and Rationale 

This proposed rule would reinstate 

the inadvertently removed sentence, 

which, consistent with the Credible 

Evidence rule, directs owners and 

operators of sources to ‘‘identify any 

other material information that must be 

included in the certification to comply 

with section 113(c)(2) of the Act, which 

prohibits knowingly making a false 

certification or omitting material 

information,’’ in its original place before 

the semicolon at the end of 40 CFR 

70.6(c)(5)(iii)(B) and 71.6(c)(5)(iii)(B). 

No other changes are proposed, and the 

other regulatory text within these 

paragraphs would remain as finalized 

on June 27, 2003. Thus, this proposed 

rule only seeks to correct what the EPA 

believes was demonstrably an error in 

the 2003 final rulemaking discussed in 

the previous section. 

As illustrated in the previous section, 

the substance of the preambles and rule 

text from the 2001 and 2003 

rulemakings make it clear that the EPA 

did not intend to remove the missing 

sentence from 40 CFR 70.6(c)(5)(iii)(B) 

or 71.6(c)(5)(iii)(B). The EPA did not 

discuss or propose any revisions to 

these paragraphs in the 2001 direct final 

rulemaking or parallel proposal.7

Similarly, while the EPA revised the 

text of 40 CFR 70.6(c)(5)(iii)(B) and 

71.6(c)(5)(iii)(B) as part of the 2003 final 

amendments, it did not discuss any 

intent to remove this sentence. To the 

contrary, the EPA stated clearly that 

‘‘[o]ther text within §§ 70.6(c)(5)(iii)(B), 

71.6(c)(5)(iii)(B), 70.6(c)(5)(iii)(C), and 

71.6(c)(5)(iii)(C) remains as proposed in 

March 2001’’ (68 FR 38521). The EPA 

did not propose to remove the deleted 

sentence from paragraph (c)(5)(iii)(B) of 

40 CFR 70.6 and 71.6 or to make any 

other changes to those paragraphs in 

that March 2001 rulemaking. Moreover, 

the EPA’s response to comments on the 

2001 proposed amendments reiterated 

the sentence’s requirement that 

‘‘responsible officials must identify in 

[their title V compliance certifications] 

other material information where failure 

to do so would constitute a false 

certification of compliance.’’ 8

Despite the accidental removal of the 

sentence in question on June 27, 2003, 

the EPA’s actions since that time have 

remained consistent with the direction 

provided in the accidentally removed 

sentence, and with the Credible 

Evidence rule in general. For example, 

the part 71 federal operating permits 

program administered by the EPA 

includes a form for sources to use for 

their annual compliance certifications, 

and the instructions for completing the 

form state the following: 

Compliance Status: For each permit 

requirement and its associated compliance 

methods, indicate whether there was 

intermittent or continuous compliance 

(check one) during the reporting period. You 

should consider all available information or 

knowledge that you have when evaluating 

this, including compliance methods required 

by the permit and ‘‘credible evidence’’ (e.g., 

non-reference test methods and information 

‘‘readily available’’ to you). You are always 

free to include written explanations and 

other information to clarify your conclusion 

regarding compliance status 9

Language similar to this was 

originally included in the instructions 

for the compliance certification form 

that the EPA issued shortly after the 

credible evidence sentence (the 

sentence we are restoring) was added to 

parts 70 and 71 as part of the 

promulgation of the CAM rule in 1997. 

After the credible evidence language 

was inadvertently deleted from the part 

71 rule in 2003, the EPA revised the 

compliance certification form and 

associated instructions in 2004 to reflect 

the requirement for sources to certify 

whether compliance was continuous or 

intermittent, but the EPA did not revise 

the instruction for sources to consider 

credible evidence when determining 

compliance status. In addition, the EPA 

Web site where the part 71 forms and 

instructions are located states that ‘‘[o]n 

February 22, 2004, we revised the 

Annual Compliance Certification form 

and the Instruction Manual to reflect 

policy decisions concerning monitoring 

and the data used for compliance 

certifications.’’ 10 The retention of the 

instruction to consider credible 

evidence in the Annual Compliance 

Certification form clearly indicates that 

the EPA continues to believe that the 

title V rules should be implemented as 

if the removed sentence is still 

applicable. Note also that the EPA has 

made revisions to the part 71 forms a 

number of times since 2003, so it has 

had ample opportunity to change this 

language if its policy had changed; 

however, the EPA has made no such 

changes.11

Title V permits issued by EPA 

Regional Offices since 2003 also provide 

evidence of the EPA’s ongoing practice 

of requiring sources to use credible 

evidence in compliance certifications. A 

review of a sample of recent part 71 

permits revealed that they include 

language similar to the language in the 

removed sentence, which requires the 

annual compliance certification to 

include ‘‘any other material information 

that must be included in the 

certification to comply with section 

113(c)(2) of the Act, which prohibits 

knowingly making a false certification 

or omitting material information.’’ 

These permits include a permit issued 

by Region II in 2011, two permits issued 

by Region VIII in 2010 and 2011, and a 

permit issued by Region V in 2012.12

Similarly, EPA guidance to title V rule 

writers on an EPA Region III Web site 

concerning compliance and 

enforcement illustrates the EPA’s 

commitment to the use of credible 


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13http://www.epa.gov/reg3artd/permitting/ 

t5_compl_enf.htm. The Web site states that this 

page was last updated on February 11, 2011. 

14EPA Office of Inspector General, Substantial 

Changes Needed in Implementation and Oversight 

of Title V Permits If Program Goals Are To Be Fully 

Realized, Report No. 2005–P–00010, pp 31–32 and 

p 37, Recommendation 2–2, March 9, 2005. 

http://www.epa.gov/oig/reports/2005/20050309- 

2005-P-00010.pdf 

15Section 70.4(i) provides that states with an 

approved part 70 program may need to revise their 

programs when the relevant federal statutes or 

regulations are modified or supplemented. Given 

that the relevant federal statute concerning 

representations or statements made in compliance 

certifications (CAA section 113(c)(2)) applies 

regardless of the specific language in 40 CFR 

70.6(c)(5)(iii)(B), the EPA is proposing that states 

will not need to submit part 70 program revisions 

in response to this rulemaking, except where a state 

program interferes with the implementation of the 

sentence the EPA proposes to restore. The EPA is 

also proposing that permit reopenings will not be 

needed under 40 CFR 70.7(f)(1) or 71.7(f)(1) in 

response to this rulemaking, except where a permit 

contains language that interferes with the 

implementation of the sentence the EPA proposes 

to restore. Notwithstanding the previous statements 

in this footnote, the EPA may require individual 

states to revise their programs or reopen permits 

where the EPA believes such actions would be 

necessary to ensure the appropriate implementation 

of the program or its permits. 

evidence. That Web site includes the 

following guidance: 

Title V permit conditions cannot limit the 

types of data or information (i.e., credible 

evidence) that may be used to prove a 

violation of any applicable requirement. Title 

V permits should contain language clarifying 

that any credible evidence may be used in 

determining a source’s compliance status (or 

alternatively, that nothing in the permit 

precludes the use of credible evidence in 

determining compliance or noncompliance 

with the terms of the permit). Such language 

gives fair notice to the source and the public, 

and prevents the source from claiming that 

they weren’t on notice that other credible 

evidence could be used to demonstrate a 

violation or compliance. Such language can 

most easily be added to Title V permits by 

modifying the ‘‘boilerplate’’ provisions (i.e., 

general permit conditions) as in the following 

example * * *.13

As illustrated by these examples, 

following the mistaken removal of the 

sentence on June 27, 2003, the EPA has 

clearly articulated a position consistent 

with the Credible Evidence rule under 

all circumstances, including the annual 

compliance certification. In light of the 

EPA’s continued, consistent 

commitment to the use of credible 

evidence in compliance certifications 

and other title V contexts, the EPA has 

not previously devoted its limited 

resources to correcting the inadvertent 

deletion in the regulatory text through a 

formal rulemaking. Nonetheless, the 

EPA’s Office of Inspector General (OIG) 

has indicated that the title V rules 

should be amended to restore the 

credible evidence language to the 

regulatory requirements in order to 

improve the content of annual 

compliance certifications.14 In 

concurrence with the OIG 

recommendation, the EPA is now taking 

this action to restore the language 

currently missing in the part 70 and 71 

rules. 

In any case, the restored language 

reflects the Act’s general prohibition on 

knowingly making a false certification 

or omitting material information, 

independent of any EPA policy or 

previous rulemaking actions. As 

modified in the 1990 CAA 

Amendments, section 113(c)(2) of the 

Act states that any person who 

knowingly ‘‘makes any false material 

statement, representation, or 

certification in, or omits material 

information from, * * * any notice, 

application, record, report, plan, or 

other document required pursuant to 

this Act’’ (emphasis added) is subject to 

fine or imprisonment, upon conviction. 

The EPA believes that it is important for 

sources to be on notice and to 

understand the requirement to consider 

as part of their compliance status any 

compliance information determined by 

methods other than those identified in 

the permit. Moreover, for the sake of 

clarity, the EPA believes that this 

general duty should be explicit in the 

part 70 and 71 compliance certification 

requirements. 

B. Scope of Rulemaking and Request for 

Comment 

The purpose of this rulemaking is to 

restore language inadvertently deleted 

from the title V regulations, 40 CFR 

parts 70 and 71.15 Given the passage of 

time, the EPA is proposing to make this 

change through a proposed rule and 

providing an opportunity for public 

input. Accordingly, the EPA is 

requesting comments only on whether, 

on the sole basis that the removal of the 

language in question was inadvertent, 

the language in question should or 

should not be restored. However, the 

EPA is not requesting comments on any 

other aspects of these provisions or on 

any other provisions of the part 70 and 

71 rules. If comments are submitted 

outside of this scope, the EPA will not 

take them into consideration when 

finalizing this rule. 

V. Statutory and Executive Order 

Reviews 

This proposed rule would implement 

a technical correction to the CFR, 

adding a sentence that was 

inadvertently removed in a prior 

rulemaking; it would not otherwise 

impose or amend any requirements. The 

analysis below is consistent with the 

limited nature of this rulemaking. 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

This action is not a ‘‘significant 

regulatory action’’ under the terms of 

Executive Order 12866 (58 FR 51735, 

October 4, 1993) and is therefore not 

subject to review under Executive 

Orders 12866 and 13563 (76 FR 3821, 

January 21, 2011). 

B. Paperwork Reduction Act 

This action does not impose any new 

information collection burden. The EPA 

is simply correcting the CFR to reinstate 

a sentence that was inadvertently 

removed. However, the Office of 

Management and Budget (OMB) has 

previously approved the information 

collection requirements contained in the 

existing regulations at 40 CFR parts 70 

and 71 under the provisions of the 

Paperwork Reduction Act, 44 U.S.C. 

3501 et seq., and has assigned OMB 

control numbers 2060–0243 and 2060– 

0336, respectively. The OMB control 

numbers for the EPA’s regulations in 40 

CFR are listed in 40 CFR part 9. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements under the 

Administrative Procedures Act or any 

other statute 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 

organizations and small governmental 

jurisdictions. 

For purposes of assessing the impacts 

of this proposed action on small 

entities, small entity is defined as: (1) A 

small business as defined in the U.S. 

Small Business Administration size 

standards at 13 CFR 121.201; (2) a small 

governmental jurisdiction that is a 

government of a city, county, town, 

school district or special district with a 

population of less than 50,000; or (3) a 

small organization that is any not-forprofit enterprise that is independently 

owned and operated and is not 

dominant in its field. 

After considering the economic 

impacts of today’s proposed rule on 

small entities, I certify that this action 

will not have a significant economic 

impact on a substantial number of small 

entities. This proposed rule will not 

impose any requirements on small 

entities. As explained above, this 


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proposed rule would merely restore a 

sentence removed from the rules in 

error and, therefore, does not impose 

any new requirements on any entities, 

either large or small. The EPA continues 

to be interested in the potential impacts 

of the proposed rule on small entities 

and welcomes comments on issues 

related to such impacts. 

D. Unfunded Mandates Reform Act 

This proposed rule contains no 

federal mandates under the provisions 

of title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA), 2 U.S.C. 

1531–1538 for state, local or tribal 

governments or the private sector. The 

action imposes no enforceable duty on 

any state, local or tribal governments or 

the private sector; it simply restores a 

sentence removed from the rules 

because of erroneous amendatory 

language contained in the June 27, 2003, 

amendments. Therefore, this action is 

not subject to the requirements of 

sections 202 and 205 of the UMRA. 

This action is also not subject to the 

requirements of section 203 of UMRA 

because it contains no regulatory 

requirements that might significantly or 

uniquely affect small governments. The 

sentence restored in this action was 

removed in error and, therefore, it does 

not impose new regulatory 

requirements. 

E. Executive Order 13132: Federalism 

This action does not have federalism 

implications. It 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. As explained 

previously, this proposed rule would 

merely restore a sentence removed from 

the rules in error. Thus, Executive Order 

13132 does not apply to this rule. 

In the spirit of Executive Order 13132, 

and consistent with EPA policy to 

promote communications between the 

EPA and state and local governments, 

the EPA specifically solicits comment 

on this proposed action from state and 

local officials. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This action does not have tribal 

implications, as specified in Executive 

Order 13175 (65 FR 67249, November 9, 

2000). As explained previously, this 

proposed rule would merely restore a 

sentence removed from the rules in 

error. Thus, Executive Order 13175 does 

not apply to this action. 

The EPA specifically solicits 

additional comment on this proposed 

action from tribal officials. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

The 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 action is not subject to 

Executive Order 13045 because it does 

not establish an environmental standard 

intended to mitigate health or safety 

risks. 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution or Use 

This action is not subject to Executive 

Order 13211 (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(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (NTTAA), Public Law 104– 

113, 12(d) (15 U.S.C. 272 note) directs 

the EPA to use voluntary consensus 

standards in its regulatory activities 

unless to do so would be inconsistent 

with applicable law or otherwise 

impractical. Voluntary consensus 

standards are technical standards (e.g., 

materials specifications, test methods, 

sampling procedures and business 

practices) that are developed or adopted 

by voluntary consensus standards 

bodies. The NTTAA directs the EPA to 

provide Congress, through the OMB, 

explanations when the agency decides 

not to use available and applicable 

voluntary consensus standards. 

This proposed rulemaking does not 

involve technical standards. Therefore, 

the EPA did not consider the use of any 

voluntary consensus standards. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order 12898 (59 FR 7629, 

February 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. 

The EPA has determined that this 

proposed rule will not have 

disproportionately high and adverse 

human health or environmental effects 

on minority or low-income populations 

because it does not affect the level of 

protection provided to human health or 

the environment. As explained 

previously, this proposed rule would 

merely restore a sentence removed from 

the rules in error. 

List of Subjects 

40 CFR Part 70 

Environmental protection, 

administrative practice and procedure, 

air pollution control, intergovernmental 

relations, reporting and recordkeeping 

requirements. 

40 CFR Part 71 

Environmental protection, 

administrative practice and procedure, 

air pollution control, reporting and 

recordkeeping requirements. 

Dated: March 22, 2013. 

Bob Perciasepe, 

Acting Administrator. 

For the reasons stated in the 

preamble, title 40, chapter I of the Code 

of Federal Regulations is proposed to be 

amended as follows: 

PART 70—STATE OPERATING PERMIT 

PROGRAMS 

■ 1. The authority citation for part 70 

continues to read as follows: 

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

■ 2. Revise § 70.6 paragraph (c)(5)(iii)(B) 

to read as follows: 

§ 70.6 Permit content. 

* * * * * 

(c) * * * 

(5) * * * 

(iii) * * * 

(B) The identification of the method(s) 

or other means used by the owner or 

operator for determining the compliance 

status with each term and condition 

during the certification period. Such 

methods and other means shall include, 

at a minimum, the methods and means 

required under paragraph (a)(3) of this 

section. If necessary, the owner or 

operator also shall identify any other 

material information that must be 

included in the certification to comply 

with section 113(c)(2) of the Act, which 

prohibits knowingly making a false 

certification or omitting material 

information; 

* * * * * 


erowe on DSK2VPTVN1PROD with PROPOSALS-1
19172 Federal Register / Vol. 78, No. 61 / Friday, March 29, 2013 / Proposed Rules 

PART 71—FEDERAL OPERATING 

PERMIT PROGRAMS 

■ 1. The authority citation for part 71 

continues to read as follows: 

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

■ 2. Revise § 71.6 paragraph (c)(5)(iii)(B) 

to read as follows: 

§ 71.6 Permit content. 

* * * * * 

(c) * * * 

(5) * * * 

(iii) * * * 

(B) The identification of the method(s) 

or other means used by the owner or 

operator for determining the compliance 

status with each term and condition 

during the certification period. Such 

methods and other means shall include, 

at a minimum, the methods and means 

required under paragraph (a)(3) of this 

section. If necessary, the owner or 

operator also shall identify any other 

material information that must be 

included in the certification to comply 

with section 113(c)(2) of the Act, which 

prohibits knowingly making a false 

certification or omitting material 

information; 

* * * * * 

[FR Doc. 2013–07266 Filed 3–28–13; 8:45 a.m.] 

BILLING CODE 6560–50–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Parts 2 and 25 

[IB Docket No. 12–376; FCC 12–161] 

Earth Stations Aboard Aircraft 

Communicating with Fixed-Satellite 

Service Geostationary-Orbit Space 

Stations 

AGENCY: Federal Communications 

Commission. 

ACTION: Proposed rule; correction. 

SUMMARY: The Federal Communications 

Commission is correcting the comment 

and reply comment dates for a proposed 

rule that appeared in the Federal 

Register of March 8, 2013. The 

document proposed rules for Earth 

Stations Aboard Aircraft. 

FOR FURTHER INFORMATION CONTACT: 

Andrea Kelly, Satellite Division, 

International Bureau, FCC, (202) 418– 

0748, Andrea.Kelly@fcc.gov, or Howard 

Griboff, Policy Division, International 

Bureau, FCC, (202) 418–1460, 

Howard.Griboff@fcc.gov. 

Correction 

In the proposed rule of March 8, 2013, 

FR Doc. 2013–04429, on page 14952, 

column 1, correct the DATES section to 

read as follows: 

DATES: Submit comments on or before 

May 22, 2013 and replies on or before 

June 21, 2013.’’ 

Federal Communications Commission. 

Marlene H. Dortch, 

Secretary. 

[FR Doc. 2013–07264 Filed 3–28–13; 8:45 am] 

BILLING CODE 6712–01–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS–R5–ES–2012–0045; 

4500030113] 

RIN 1018–AY12 

Endangered and Threatened Wildlife 

and Plants; Endangered Status for the 

Diamond Darter and Designation of 

Critical Habitat 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Proposed rule; reopening of 

comment period and availability of draft 

economic analysis. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service, announce the 

reopening of the public comment period 

on our July 26, 2012, proposed listing 

and designation of critical habitat for 

the diamond darter (Crystallaria 

cincotta) under the Endangered Species 

Act of 1973, as amended (Act). We also 

announce the availability of a draft 

economic analysis (DEA) of the 

proposed designation of critical habitat 

and an amended required 

determinations section of the proposal. 

We are reopening the comment period 

to allow all interested parties an 

opportunity to comment simultaneously 

on the proposed rule, associated DEA, 

and amended required determinations 

section. Comments previously 

submitted on the proposed rule need 

not be resubmitted, as they will be fully 

considered in preparation of the final 

rule. 

DATES: We will consider all comments 

received or postmarked on or before 

April 29, 2013. Comments submitted 

electronically using the Federal 

eRulemaking Portal (see ADDRESSES, 

below) must be received by 11:59 p.m. 

Eastern Time on the closing date. 

ADDRESSES: Document availability: You 

may obtain copies of the proposed rule 

and the draft economic analysis on the 

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

Docket Number FWS–R5–ES–2012– 

0045, or by mail from the West Virginia 

Field Office (see FOR FURTHER

INFORMATION CONTACT). 

Comment submission: You may 

submit written comments by one of the 

following methods: 

(1) Electronically: Go to the Federal 

eRulemaking Portal: http:// 

www.regulations.gov. Search for Docket 

No. FWS–R5–ES–2012–0045, which is 

the docket number for this rulemaking. 

(2) By hard copy: Submit by U.S. mail 

or hand-delivery to: Public Comments 

Processing, Attn: FWS–R5–ES–2012– 

0045; Division of Policy and Directives 

Management; U.S. Fish and Wildlife 

Service; 4401 N. Fairfax Drive, MS 

2042–PDM; Arlington, VA 22203. 

We request that you send comments 

only by the methods described above. 

We will post all comments on http:// 

www.regulations.gov. This generally 

means that we will post any personal 

information you provide us (see the 

Public Comments section below for 

more information). 

FOR FURTHER INFORMATION CONTACT: John 

Schmidt, Acting Field Office 

Supervisor, U.S. Fish and Wildlife 

Service, West Virginia Field Office, 694 

Beverly Pike, Elkins, WV 26241; by 

telephone (304) 636–6586; or by 

facsimile (304) 636–7824. Any person 

who uses a telecommunications device 

for the deaf (TDD) may call the Federal 

Information Relay Service (FIRS) at 

800–877–8339. 

SUPPLEMENTARY INFORMATION: 

Public Comments 

We will accept written comments and 

information during this reopened 

comment period on our proposed listing 

and designation of critical habitat for 

the diamond darter (Crystallaria 

cincotta) that was published in the 

Federal Register on July 26, 2012 (77 FR 

43906), our DEA, and the amended 

required determinations provided in 

this document. We will consider 

information and recommendations from 

all interested parties. 

We are also notifying the public that 

we will publish two separate rules for 

the final listing determination and the 

final critical habitat determination for 

the diamond darter. The final listing 

rule will publish under the existing 

docket number, FWS–R5–ES–2012– 

0045, and the final critical habitat 

designation will publish under new 

docket number FWS–R5–ES–2013– 

0019. 

We will consider information and 

recommendations from all interested 

parties as to both determinations. As to 

the proposed listing determination, we 

are particularly interested in comments 

concerning: 


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