Classification

This action is not subject to the provisions of Executive Order 12866 since it involves only internal Agency management. This action is not published for prior notice and comment under the Administrative Procedure Act since it involves only internal Agency management and publication for comment is unnecessary and contrary to the public interest.

This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. In accordance with this rule: (1) Unless otherwise specifically provided, all State and local laws and regulations that are in conflict with this rule will be preempted; (2) no retroactive effect will be given to this rule except as specifically prescribed in the rule; and (3) administrative proceedings of the National Appeals Division (7 CFR part 11) must be exhausted before litigation against the Department is instituted.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, agencies generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, or tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. When such a statement is needed for a rule, section 205 of the UMRA generally requires agencies to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, more cost-effective, or least burdensome alternative that achieves the objectives of the rule.

This rule contains no Federal mandates (under the regulatory provisions of title II of the UMRA) for State, local, and tribal governments or the private sector. Thus, the rule is not subject to the requirements of section 202 and 205 of the UMRA.

This document has been reviewed in accordance with 7 CFR part 1940, subpart G, “Environmental Program.” The Agencies have determined that this final action does not constitute a major Federal action significantly affecting the quality of human environment, and in accordance with the National Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq., an Environmental Impact Statement is not required.

The policies contained in this rule do not have any substantial direct effect on 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. Nor does this rule impose substantial direct compliance costs on State and local governments. Therefore, consultation with the States is not required.

The Programs impacted by this action, and associated Catalog of Federal Domestic Assistance numbers, are as follows:

This rule does not revise or impose any new information collection requirements from those approved by OMB.

The Agencies are committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

The Department is updating Agency regulations regarding intergovernmental reviews conducted pursuant to the National Environmental Policy Act (“NEPA,” 40 CFR 1500-1508). To accomplish this goal, existing RD Instruction 1940-J, “Intergovernmental Review,” is being rewritten and replaced by RD Instruction 1970-I. Because several regulations make reference to RD Instruction 1940-J, revisions are needed to change all references from 1940-J to 1970-I. The intended effect is to simplify and update the regulations and to ensure the Department's field offices have current guidance on intergovernmental review of proposed projects being reviewed pursuant to NEPA.

For the reasons set forth in the preamble, Chapters XVII, XVIII, XXXV, and XLII, of title 7 of the Code of Federal Regulations are amended as follows:

The FAA has determined that the low and high altitude Alaska reporting point MARLO has the same name as another reporting point fix that is in use by another country and is contained in the aeronautical database. To overcome possible confusion and flight safety issues, the FAA is changing the name of the low and high altitude MARLO compulsory reporting point in the vicinity of Kodiak, Alaska, to become the CJAYY compulsory reporting point by removing MARLO and establishing CJAYY in the same location. The latitude and longitude information used to define the reporting point, as well as the intersection description information, are unchanged. Accordingly, since this is an administrative change and does not affect the boundaries, altitudes, or operating requirements of the airspace, notice and public procedures under Title 5 U.S.C. 553(b) are unnecessary.

The FAA amends Title 14 Code of Federal Regulations (14 CFR) part 71 by removing the low and high altitude MARLO Alaskan compulsory reporting point in the vicinity of Kodiak, Alaska, and establishing the low and high altitude CJAYY Alaskan compulsory reporting point in the same location.

Alaskan Low Altitude Reporting Points are listed in paragraph 7004 of FAA Order 7400.9V dated August 9, 2011, and effective September 15, 2011, which is incorporated by reference in 14 CFR 71.1. Alaskan High Altitude Reporting Points are listed in paragraph 7005 of FAA Order 7400.9V dated August 9, 2011, and effective September 15, 2011, which is incorporated by reference in 14 CFR 71.1. The reporting points listed in this document will be revised subsequently in the Order.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.

This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends Low and High Altitude Compulsory Reporting Points in Alaska.

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with 311a, FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures.” This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:

The Commission is extending the expiration date for interim final temporary Rule 15Ba2-6T under the Exchange Act.

Section 15B(a)(1) of the Exchange Act, 1 as amended by Section 975(a)(1)(B) of the Dodd-Frank Act, 2 makes it unlawful for a municipal advisor to provide advice to or on behalf of a municipal entity or obligated person with respect to municipal financial products or the issuance of municipal securities, or to undertake a solicitation of a municipal entity or obligated person, unless the municipal advisor is registered with the Commission. Section 15B(a)(2) of the Exchange Act, 3 as amended by Section 975(a)(2) of the Dodd-Frank Act, provides that a municipal advisor may be registered by filing with the Commission an application for registration in such form and containing such information and documents concerning the municipal advisor and any person associated with the municipal advisor as the Commission, by rule, may prescribe as necessary or appropriate in the public interest or for the protection of investors.

The registration requirement for municipal advisors became effective on October 1, 2010. On September 1, 2010, the Commission adopted interim final temporary Rule 15Ba2-6T under the Exchange Act, 4 which permits municipal advisors to temporarily satisfy the statutory registration requirement by completing Form MA-T  5 through the Commission's public Web site. 6 Rule 15Ba2-6T serves as a transitional step to the implementation of a permanent registration program, makes relevant information available to the public and municipal entities, and permits municipal advisors to continue their business after October 1, 2010.

Under existing Rule 15Ba2-6T, all temporary registrations submitted pursuant to that rule will expire on the earlier of: (1) The date that the municipal advisor's registration is approved or disapproved by the Commission pursuant to a final rule adopted by the Commission establishing another manner of registration of municipal advisors and prescribing a form for such purpose;  7 (2) the date on which the municipal advisor's temporary registration is rescinded by the Commission; or (3) on December 31, 2011. 8 Further, existing Rule 15Ba2-6T will expire on December 31, 2011. 9

As stated in the Interim Release, the Commission believes that providing a temporary registration process for municipal advisors, pursuant to an interim final temporary rule, is a necessary and appropriate way to proceed, is consistent with the intent of Congress in enacting Section 975 of the Dodd-Frank Act, and is a tailored way to provide investors and municipal entities with basic and important information while the Commission considers a permanent registration program. As noted above, however, existing Rule 15Ba2-6T will expire on December 31, 2011. Accordingly, the Commission has determined that it is necessary and appropriate to extend the expiration date of Rule 15Ba2-6T to September 30, 2012, to provide a method for municipal advisors to continue to temporarily satisfy the registration requirement under Section 15B of the Exchange Act until the Commission promulgates a final rule establishing another manner of registration of municipal advisors, prescribing a form for such purpose, and developing an electronic registration system. This extension will prevent a gap between the time at which the temporary rule expires and at which municipal advisors must be registered with the Commission under a permanent registration regime. The Commission notes that it is adopting amendments to Rule 15Ba2-6T only to extend the expiration date of that rule. The Commission is not making any other amendments to Rule 15Ba2-6T or Form MA-T.

Specifically, the Commission is amending Rule 15Ba2-6T(e) to provide that all temporary registrations submitted pursuant to Rule 15Ba2-6T will expire on the earlier of: (1) The date that the municipal advisor's registration is approved or disapproved by the Commission pursuant to a final rule adopted by the Commission establishing another manner of registration of municipal advisors and prescribing a form for such purpose; (2) the date on which the municipal advisor's temporary registration is rescinded by the Commission; or (3) on September 30, 2012. The Commission is also amending Rule 15Ba2-6T(f) to provide that the interim final temporary rule will expire on September 30, 2012. Thus, absent further action by the Commission, Rule 15Ba2-6T will expire on September 30, 2012 at 11:59 p.m. Eastern Time.

The Commission has considered the seven comment letters received on the Interim Release  10 and, given the limited nature of this extension and the Commission's ongoing process of considering permanent rules for the registration of municipal advisors, the Commission is not making any other changes to the temporary registration rule and Form MA-T. The Commission believes that making other changes to the temporary rule and Form MA-T could cause those relying on the rule or form to need to make adjustments to their operations or amendments to their forms that may be applicable only until the permanent rules are considered by the Commission. The Commission also notes that the comment letters received in response to the Interim Release were addressed in the Proposing Release, and were considered for purposes of the proposed rules for the registration of municipal advisors.

The amendments to Rule 15Ba2-6T will be effective on December 31, 2011. The Administrative Procedure Act (“APA”) generally requires an agency to publish notice of a proposed rulemaking in the Federal Register . 11 This requirement does not apply, however, if the agency “for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.”  12 The Commission notes that extending the expiration date of Rule 15Ba2-6T will not affect the substantive provisions of that rule, and will allow municipal advisors to continue to comply with the statutory registration requirement until a permanent registration regime becomes effective. Further, the Commission notes that extending the expiration date of Rule 15Ba2-6T will prevent a regulatory gap from developing between the time at which the temporary rule expires and at which municipal advisors must be registered with the Commission under a permanent registration regime. For these reasons, and the reasons discussed throughout this release, the Commission believes that there is good cause to extend the expiration date of Rule 15Ba2-6T to September 30, 2012, and to find that notice and solicitation of comment on the extension is impracticable, unnecessary, or contrary to the public interest. 13

The APA also generally requires that an agency publish a substantive rule in the Federal Register not less than 30 days before its effective date. 14 However, this requirement does not apply if the agency finds good cause and publishes such cause with the rule. 15 For reasons similar to those explained above, the Commission finds good cause not to delay the effective date of the extension.

In connection with the adoption of Rule 15Ba2-6T and Form MA-T, the Commission submitted to the Office of Management and Budget (“OMB”) a request for approval of the “collection of information” requirements contained in the temporary rule and form in accordance with the Paperwork Reduction Act of 1995. 16 OMB initially approved the collection of information on an emergency basis with an expiration date of March 31, 2011. The Commission subsequently submitted a request for extension of the approval, and OMB extended the approval to March 31, 2014. The collection of information to which Rule 15Ba2-6T and Form MA-T relates is “Rule 15Ba2-6T and Form MA-T—Temporary Registration of Municipal Advisors.” The OMB control number for the collection of information is 3235-0659. Since the Commission is not amending Rule 15Ba2-6T or the disclosure requirements contained in Form MA-T other than extending the expiration date for Rule 15Ba2-6T, this amendment will not change the “collection of information” previously approved by the OMB.

The Commission is sensitive to the costs and benefits of its rules. The Commission has previously considered and discussed the costs and benefits of Rule 15Ba2-6T. 17 Since the Commission is not amending Rule 15Ba2-6T and Form MA-T other than to extend the expiration date for that rule, the Commission believes that the same general analysis will continue to apply for the period of the extension. An important benefit of extending the expiration date for Rule 15Ba2-6T, however, will be to allow municipal advisors to continue to comply with the statutory registration requirement until a permanent registration regime becomes effective, and to avoid a regulatory gap from developing between the time at which the temporary rule expires and at which municipal advisors must be registered with the Commission under a permanent registration regime.

Since the Commission is only extending the expiration date for Rule 15Ba2-6T and is not substantively changing Rule 15Ba2-6T and Form MA-T, the Commission's estimated burden for each municipal advisor to complete and amend Form MA-T remains unchanged. 18 However, the Commission estimates that as a result of the amendment, approximately 162  19 new municipal advisors will register between January 1, 2012 and September 30, 2012 at a total labor cost of approximately $168,000. 20 With regard to the 162 new municipal advisors and the municipal advisors already registered pursuant to Rule 15Ba2-6T, the Commission estimates that, between January 1, 2012 and September 30, 2012, there will be approximately 160  21 amendments and withdrawals at a total labor cost of approximately $22,000. 22

Section 3(f) of the Exchange Act requires the Commission, whenever it engages in rulemaking and is required to consider or determine whether an action is necessary or appropriate in the public interest, to consider, in addition to the protection of investors, whether the action would promote efficiency, competition and capital formation. 23 In addition, Section 23(a)(2) of the Exchange Act requires the Commission, when making rules under the Exchange Act, to consider the impact such rules would have on competition. 24 Section 23(a)(2) of the Exchange Act prohibits the Commission from adopting any rule that would impose a burden on competition not necessary or appropriate in furtherance of the purposes of the Exchange Act. 25 In the Interim Release, the Commission considered the effects of Rule 15Ba2-6T on efficiency, competition, and capital formation. 26 Since the Commission is not amending Rule 15Ba2-6T and Form MA-T other than extending the expiration date for Rule 15Ba2-6T, the Commission believes that the same analysis applies, and continues to believe that Rule 15Ba2-6T, as extended, will not result in a burden on competition not necessary or appropriate in furtherance of the purposes of the Exchange Act.

Pursuant to the Exchange Act, and particularly Section 15B (15 U.S.C. 78 o -4), the Commission is amending § 240.15Ba2-6T of Title 17 of the Code of Federal Regulations in the manner set forth below.

For the reasons set out in the preamble, Title 17, Chapter II, of the Code of Federal Regulations is amended as follows.

OSHA is publishing technical amendments to 16 OSHA standards. These revisions do not affect the substantive requirements or coverage of those standards, do not modify or revoke existing rights or obligations, and do not establish new rights or obligations.

OSHA is correcting a typographical error in the reference to a chemical covered by the Process safety management of highly hazardous chemicals standard (29 CFR 1910.119; 57 FR 6403). Appendix A of the standard lists the covered chemicals. The chemical Oleum appears in Appendix A with an incorrect Chemical Abstracts Service (CAS) number of 8014-94-7. The correct CAS number for Oleum is 8014-95-7 (see The Merck Index, 13th Edition (2001)), and OSHA is correcting this error.

OSHA is updating a citation in the Hazardous waste operations and emergency response (HAZWOPER) Standard (29 CFR 1910.120; 54 FR 9294). In paragraph (a)(3) of the standard, OSHA defines the term “hazardous substance.” In that definition, OSHA refers to “Section 101(14)” of the Comprehensive Environmental Response Compensation, and Liability Act (CERCLA) (42 U.S.C. 9601). After OSHA published the standard, Congress redesignated Section 101(14) of CERCLA as Section 103(14). OSHA is revising the definition to include the new citation.

OSHA is correcting a cross-reference in the Permit-required confined spaces standard (29 CFR 1910.146; 58 FR 4549). Paragraph (d)(4) of the standard lists equipment that the employer must provide and maintain for permit-space entry. Specifically, paragraph (d)(4)(vi) requires that the employer provide barriers and shields “as required by paragraph (d)(3)(iv) of this section.” Paragraph (d)(3) lists various means, procedures, and practices the employer must develop and implement for safe permit-space entry operations. When OSHA issued § 1910.146, paragraph (d)(3)(iv) listed as one of those practices “providing pedestrian, vehicle, or other barriers as necessary to protect entrants from external hazards.” When OSHA revised § 1910.146 in 1998, it inserted a new practice as paragraph (d)(3)(ii) and renumbered the remaining practices (63 FR 230). Consequently, OSHA redesignated paragraph (d)(3)(iv) as paragraph (d)(3)(v). However, during that rulemaking, OSHA did not revise the cross-reference to this provision. This notice corrects that oversight.

OSHA is updating cross-references in §§ 1910.151 and 1926.50, which establish requirements for medical services and first aid in general industry and construction, respectively. In 1998, OSHA added non-mandatory Appendix A to both standards to provide information about basic first-aid supplies and to instruct employers to use OSHA 200 logs and OSHA 101 forms to identify unique or changing first-aid needs.

After OSHA adopted Appendix A, it revised the rule on Recordkeeping and reporting occupational injuries and illnesses rule (29 CFR part 1904). As part of that rulemaking, OSHA revised the forms that employers must keep for recording and reporting workplace injuries and illnesses (§ 1904.29). OSHA replaced the 200 Log and Summary of Occupational Injuries and Illnesses with two separate forms—the OSHA 300 (Log of Work-Related Injuries and Illnesses) and the OSHA 300A (Summary of Work-Related Injuries and Illnesses). In addition, OSHA replaced Form 101 (Supplementary Record of Occupational Injuries and Illnesses) with OSHA Form 301 (Injury and Illness Incident Report). During this rulemaking, OSHA planned to revise all references to the recordkeeping forms in other OSHA standards. However, OSHA overlooked the appendices in both §§ 1910.151 and 1926.50. This notice is updating those references.

OSHA originally published the standard for servicing multi-piece rim wheels, § 1910.177, on January 29, 1980 (45 FR 6706). OSHA amended the standard on February 3, 1984, to incorporate servicing requirements for single-piece rim wheels, and to make minor revisions to the multi-piece rim wheel servicing provisions (49 FR 4338). Having developed its own charts in the interim by revising the National Highway Traffic Safety Administration (NHTSA) charts, OSHA amended the standard to include these revisions and indicate the availability of the new charts from OSHA (53 FR 34736).

Appendix B of the standard states that the regulated community can obtain copies of the OSHA charts entitled “Demounting and Mounting Procedures for Truck/Bus Tires” and “Multi-piece Rim Matching Chart” directly from OSHA. However, OSHA has not had copies of these charts available for distribution for several years. Similarly, the NHTSA publications entitled “Demounting and Mounting Procedures Truck/Bus Tires” and “Multi-piece Rim Matching Chart” appear to be no longer available. Therefore, based on discussions with representatives from the tire, rubber, and wheel manufacturing industries, OSHA determined that new charts addressing current hazards in the tire-servicing industry are necessary.

Given the information technologies available in the 1980s, large posters containing the tire-servicing information appeared to OSHA to be the most effective means of providing workers with the information at the worksite necessary to perform tire-servicing operations safely. This approach involved printing and distributing large numbers of these posters. In updating this information, OSHA decided not to print large posters with the updated information, but to provide an 8 1/2 inch by 11-inch printed manual containing this information that employers could use in the shop as an alternative to displaying the large posters. The manual would be more portable and accessible than a large poster, which employers typically mounted on a wall.

To reduce the distribution burden, OSHA will print and mail the manuals, but not the posters. The posters, as well as the manuals, will be available in electronic files (PDF) on the OSHA Web site at http://www.osha.gov/publications (and type “tire chart” in the search field). Since the file for the large poster will be available in various sizes (including 8 1/2 inches by 11 inches), OSHA determined that, to be legible, posters located in the service area as specified by 29 CFR 1910.177(d)(5) must be at least 2 feet by 3 feet in size ( i.e., the size of the former posters supplied by OSHA).

OSHA also is revising the content of its two existing charts. The “Multi-piece Rim Matching Chart” will provide an updated list of multi-piece rim wheel components, both current and obsolete, while the “Demounting and Mounting Procedures for Truck/Bus Tires” chart will consist of two separate charts entitled “Demounting and Mounting Procedures for Tubeless Truck and Bus Tires” and “Demounting and Mounting Procedures for Tube-Type Truck and Bus Tires.”

OSHA believes that the new charts will reduce tire-servicing accidents among employees and simplify compliance with the standard because the new charts summarize updated information from many sources, including the NHTSA and OSHA charts, rim manuals, and the OSHA standard, and are more accessible and useable than the posters these charts are replacing. In addition, the updated manuals and posters will not increase the substantive obligation on employers under the standard to provide employees with tire-servicing information. Consistent with these revisions, OSHA is amending the definitions of “charts” in paragraph (b) of the standard to refer to the new Department of Labor charts ( i.e., manuals or posters), or to any other information or poster that provides at least the same instructions, safety precautions, and other information contained in OSHA's charts, and that is applicable to the types of rim wheels the employer is servicing. In addition, OSHA is revising Appendix B to provide current ordering information for the new OSHA manuals.

The Mechanical power presses standard (29 CFR 1910.217) requires that employers submit to OSHA reports of employees injured while operating such presses. Paragraph (g)(1) specifies that employers must submit the reports to federal OSHA or, for state-plan states, the state agency administering the plan. OSHA is revising this provision to include the new title of the federal OSHA office designated to receive the reports, and to provide an electronic address for submitting reports, which the Paperwork Reduction Act and associated regulations (44 U.S.C. chapter 35; 5 CFR 1320.8(a)(5)) encourages.

OSHA is correcting three errors involving incorrect cross references in this standard. On June 18, 1998 (63 FR 33450), OSHA removed or revised provisions in its standards that were outdated, duplicative, unnecessary, or inconsistent. Among other revisions, this action deleted paragraphs (b)(1) and (b)(3) from this standard, which referenced outdated American National Standards Institute national consensus standards B15.1-1953, Safety Code for Mechanical Power-Transmission Apparatus, and A12.1-1967, Safety Requirements for Floor and Wall Openings, Railings, and Toeboards, respectively. However, in doing so, OSHA did not amend paragraphs (e)(12)(i), which references deleted paragraph (b)(3), or paragraph (e)(12)(ii), which references deleted paragraph (b)(1). In addition, with the deletion of paragraphs (b)(1), (b)(2), and (b)(3), OSHA redesignated paragraph (b)(4) as paragraph (b)(1). However, OSHA did not revise the cross reference to redesignated paragraph (b)(1) in paragraph (e)(12)(iii). Therefore, with this notice, OSHA is removing the references to paragraphs (b)(3), (b)(1), and (b)(4) in existing paragraphs (e)(12)(i), (e)(12)(ii), and (e)(12)(iii), respectively, and replacing these references with the correct references (29 CFR 1910.23, 29 CFR 1910.219, and paragraph (b)(1) of 29 CFR 1910.261, respectively).

OSHA is correcting a typographical error in a cross reference in this standard. Paragraph (e)(2)(iv) of the standard, which establishes safety requirements for twin circular-head saw rigs, provides: “Twin circular head saw rigs such as scrag saws shall meet the specifications for single circular head saws in paragraph (e)(1)(iii) of this section where applicable.” The cross reference to paragraph (e)(1)(iii) of the standard is incorrect. The provision should cross reference paragraph (e)(2)(iii), which specifies requirements for singular circular-head saws; OSHA is correcting the error.

The Grain handling facilities standard (29 CFR 1910.272) applies to general industry and, through incorporation by reference, to marine terminals that handle grain (29 CFR 1917.1(a)(2)(v)). In 1985, OSHA issued a compliance directive interpreting requirements of the standard as it applied to marine terminals (see CPL 02-00-066). The directive was the result of a settlement agreement with the National Grain and Feed Association, Inc.

In 2002, OSHA conducted a regulatory review of the standard pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) and Executive Order 12866. During the review, stakeholders recommended that OSHA include in the standard a cross reference to the compliance directive. OSHA agreed and, accordingly, is inserting a note in paragraph (a) of the standard stating that OSHA will enforce the standard, as it applies to marine terminals, consistent with the 1985 compliance directive.

Phase III of the Standards Improvement Project (SIP III) revised requirements within OSHA standards that were confusing, outdated, duplicative, or inconsistent. One such revision to the Commercial Diving Operations standard at § 1910.440(b)(5) removed the requirement that employers transfer dive and employee medical records to the National Institute for Occupational Safety and Health (NIOSH) in the absence of a successor employer. However, subsequent review of the regulatory text at § 1910.440(b)(4) identified a provision requiring employers to transfer hospitalization and decompression-related records to NIOSH after the five-year retention period for these records expires. This record-transfer requirement involves records that are similar to the records specified in the record-transfer requirement in § 1910.440(b)(5), which OSHA removed from the standard under SIP III. Therefore, for the sake of consistency and accuracy, OSHA is revising § 1910.440(b)(4) by removing the record-transfer requirement in § 1910.440(b)(4). 1 The rationale for removing this record-transfer requirement is the same as the rationale expressed earlier by OSHA when it removed § 1910.440(b)(5) from the standard (see 76 FR 33590, 33598).

In the 13 Carcinogens standard (29 CFR 1910.1003), OSHA is deleting two cross references to a section of the standard that it removed in the second Standards Improvement Project rulemaking (70 FR 1116). In that rulemaking, OSHA deleted paragraph (f) of the standard, which required that employers submit to OSHA reports of operations involving any of the 13 carcinogens and incidents resulting in the release of any of them. However, during the rulemaking OSHA did not delete two cross references to paragraph (f) contained in paragraph (d)(2) of the standard (see paragraphs (d)(2)(v) and (d)(2)(iii)). OSHA is correcting this oversight.

The SIP III final rule also made revisions regarding medical surveillance in the Lead standards at § 1910.1025 (General Industry) and § 1926.62 (Construction). The purpose of these revisions was to achieve consistency among the action levels for employee notification across all OSHA Lead standards (see 76 FR 33590, 33598). Accordingly, the SIP III final rule revised the language in §§ 1910.1025(j) and 1926.62(j) regarding actionable blood-lead levels for employee notification from “exceeds” 40 μg/dl to “is at or above” 40 μg/dl. 2 Subsequent review of the regulatory text in §§ 1910.1025 (j)(2)(iv)(B) and 1926.62(j)(2)(iv)(B) found that these paragraphs used the term “exceeds” to describe the actionable blood-lead level for notifying employees of requirements for temporary medical removal and employee medical-removal protection benefits. For the sake of consistency and accuracy among action levels across all OSHA Lead standards, and in keeping with the original purpose specified in the SIP III rulemaking, OSHA is replacing the term “exceeds” in §§ 1910.1025 (j)(2)(iv)(B) and 1926.62(j)(2)(iv)(B) with the phrase “is at or above” to designate the actionable blood-lead levels ( i.e., 40 μg/dl) at which employers must notify their employees that the standard requires temporary medical removal with medical-removal protection benefits when an employee's blood-lead level is at or above a specified level.

OSHA is updating a cross reference to 29 CFR 1904.6 in the Bloodborne pathogens standard (29 CFR 1910.1030). On January 18, 2001, in conformance with the Needlestick Safety and Prevention Act (P.L. 106-430), OSHA revised the Bloodborne pathogens standard to require that employers maintain logs of percutaneous injuries from contaminated sharps (see § 1910.1030(i)(5)). The revised standard at § 1910.1030(i)(5)(iii) required that employers maintain the sharps injury log for the period required by 29 CFR 1904.6. OSHA subsequently revised the Recordkeeping rule (29 CFR 1904; 66 FR 6122). As part of that rulemaking, OSHA reordered many sections of the Recordkeeping rule, including § 1904.6, which became § 1904.33. Therefore, OSHA now is updating the cross reference in paragraph (i)(5)(iii) of the Bloodborne pathogens rule from 29 CFR 1904.6 to 29 CFR 1904.33.

OSHA is correcting a typographical error in the Air contaminants standard for shipyard employment (29 CFR 1915.1000). The standard contains requirements for limiting employee exposure to the hazardous substances listed in Table Z of the rule. Paragraph (d) of the standard contains a computation formula for determining exposure levels for employees exposed to more than one substance for which subpart Z of part 1915 lists an 8-hour time weighted average. Paragraph (d)(1)(ii) of the standard contains an example to illustrate the computation formula. In four places in this paragraph, the example incorrectly refers to the abbreviation for “parts per million” as “p/m.” In this notice, OSHA is correcting the abbreviation to read “ppm.”

OSHA determined that this rulemaking is not subject to the procedures for public notice and comment specified in Section 4 of the Administrative Procedures Act (5 U.S.C. 553), Section 6(b) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 655(b)), and 29 CFR 1911.5. This rulemaking does not affect or change any existing rights or obligations, and no stakeholder is likely to object to them. Therefore, the Agency finds good cause that public notice and comment are unnecessary within the meaning of 5 U.S.C. 553(b)(3)(B), 29 U.S.C. 655(b), and 29 CFR 1911.5.

David Michaels, MPH, Ph.D., Assistant Secretary of Labor for Occupational Safety and Health, U.S. Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210, authorized the preparation of this document. Accordingly, pursuant to Section 6 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 655), Section 107 of the Contract Work Hours and Safety Standards Act (Construction Safety Act) (40 U.S.C. 3704), Section 4 of the Administrative Procedures Act (5 U.S.C. 553), Secretary of Labor's Order No. 4-2010 (75 FR 55355), and 29 CFR 1911.5, 29 CFR parts 1910, 1915 and 1926 are amended as set forth below.

TRICARE serves over 9.6 million beneficiaries comprised of active duty service members, retirees, and their families, among others. The nature of the conflicts in Iraq and Afghanistan, their duration, and the Department of Defense's appreciation and sensitivity to the impact of combat on a service member's mental health have driven strong efforts to ensure that quality mental health care is available and accessible to TRICARE beneficiaries. One element of these efforts is ongoing attention to increasing the number of quality providers that can assess and treat TRICARE beneficiaries.

The National Defense Authorization Act for Fiscal Year 2006 Conference Report, No. 109-360, p. 753-4, requested from DoD a report to Congress on actions taken to improve the efficiency and effectiveness of procedures to facilitate physician referral and supervision of licensed professional counselors (LPCs), including a description of “best practices” employed throughout the military health system to ensure access to services provided by mental health counselors under the TRICARE Program. That report concluded that there remained significant variability among the States in training programs and requirements for licensure as a mental health counselor and that while there was evidence that the extent of training variability had decreased over time, it continued to be evident that professional counselors licensed to practice had quite varying exposure to classroom education and supervised clinical experiences in the assessment and treatment of persons with mental disorders. In conclusion the report noted: “Given the practical obstacles to physician supervision of LPCs and the perceived impediment to accessing services caused by the physician referral requirement, it would be prudent to explore issues of supervision, referral, provider credentialing, and scope of practice to develop options that would preserve quality of care, safeguard the health and well-being of Service members and maximize access to mental health care for all beneficiaries. An examination of these issues would certainly support other activities having the goal of improving mental health care to veterans, active duty service members and their families, including the recent creation of the DoD Task Force on Mental Health.”

Section 717 of the National Defense Authorization Act of Fiscal Year 2008 directed the Secretary of Defense to study the credentials, preparation, and training of individuals practicing as licensed mental health counselors and to make recommendations for permitting licensed mental health counselors to practice independently under the TRICARE program. The study, completed by the Institute of Medicine of the National Academies of Science, recommended allowing LMHCs who meet certain training, education, experience, certification, and licensure requirements to practice independently under the TRICARE program. This interim final rule implements changes to 32 CFR part 199 based on those recommendations.

The certification criteria established in this IFR are largely consistent with the recommendations found in “Provision of Mental Health Counseling Services under TRICARE,” a study funded by DoD and completed in 2010 by the Institute of Medicine (IOM) of the National Academies of Science http://www.iom.edu/Reports/2010/Provision-of-Mental-Health-Counseling-Services-Under-TRICARE.aspx.

The IOM recommendations specify that independent practice of mental health counselors (MHCs) in TRICARE should occur under certain circumstances: “A master's or higher-level degree in counseling from a program in mental health counseling or clinical mental health counseling that is accredited by Council for Accreditation of Counseling and Related Educational Programs (CACREP); a state license in mental health counseling at the “clinical” or the higher or highest level available in states that have tiered licensing schemes; the passage of the National Clinical Mental Health Counseling examination (NCMHCE); and a well-defined scope of practice for practitioners.” The new rule will implement these standards over time while preserving the requirement for 3,000 hours of supervised clinical practice and 100 hours of face-to-face supervision. TRICARE is committed to ensuring that the quality standards recommended by the IOM are adopted by TRICARE, but understands that the availability of CACREP accredited mental health counseling training programs and the use of the NCMHCE as a quality standard are not yet widespread in the field. Therefore, with this rule, TRICARE will adopt new quality standards for the independent practices of mental health counselors as of January 1, 2015, and in addition will recognize mental health counselors as independent providers who have met certain currently recognized quality standards on or before December 31, 2014. Specifically, in order to practice independently, those mental health counselors must have met, in part, one of the following two quality standards on or before December 31, 2014: (1) Possess a master's or higher-level degree from a mental health counseling program of education and training accredited by CACREP and must have passed the National Counselor Examination (NCE); or (2) possess a master's or higher-level degree from a mental health counseling program of education and training from either a CACREP or regionally accredited institution and have passed the NCMHCE. The many professional mental health counselors who meet these quality standards are a resource that TRICARE is anxious to make available to Service members, retirees and their families and their inclusion as independent practitioners under the TRICARE program will ensure that ready access to quality providers is preserved for TRICARE beneficiaries.

Independent practice by mental health counselors would mean a change from working under the supervision and referral of a physician to autonomous practice and third party reimbursement. While access to care was not a direct focus of the IOM study, increasing the availability of fully qualified providers would benefit TRICARE beneficiaries.

This interim final rule establishes a transition period to phase out the requirement for physician referral and supervision for mental health counselors and to create a new category of allied health professionals, to be known as certified mental health counselors (CMHCs), who will be authorized to practice independently under TRICARE.

During this transition period the MHCs who do not meet the requirements for independent practice as established in this rule, may continue to provide services to TRICARE beneficiaries under the requirements of physician referral and ongoing supervision. This transition period, ending December 31, 2014, will allow time for those MHCs who seek to continue providing services under the TRICARE program to meet the independent practice requirements as outlined in this notice. After that date persons who do not meet the requirements for being a CMHC will no longer be recognized by TRICARE and payment for their services will no longer be allowed even if they work under the supervision of a physician.

Lastly, although this rule sets forth the currently accepted and recommended criteria for an individual to be recognized as a CMHC, Section 199.6(c)(3)(iii)(N) (3 ) has been added to allow the Director, TRICARE Management Activity to amend or modify existing requirements or add other qualifications or criteria in the future to accommodate professional quality and licensing standards as they may change over time.

The rule meets DoD's goal to balance the implementation of quality standards for mental health counselors with beneficiary access to their services. The implementation period of the provider requirements elaborated in this rule permits DoD to preserve patient access to experienced and well-trained mental health professionals while permitting other providers to meet those standards by January 1, 2015. This rule is expected to encourage greater participation of MHCs in the TRICARE network, result in improved access to quality mental health treatment for TRICARE beneficiaries, and sets provider quality standards typical of other mental health providers authorized under TRICARE.

Section 801 of Title 5, United States Code, Executive Order (E.O.) 12866, and E.O. 13563 require certain regulatory assessments and procedures for any major rule or significant regulatory action, defined as one that would result in an annual effect of $100 million or more on the national economy or which would have other substantial impacts. It has been certified that this rule is not economically significant, and has been reviewed by the Office of Management and Budget as required under the provisions of E.O. 12866 and E.O. 13563.

Section 202 of Public Law 104-4, “Unfunded Mandates Reform Act,” requires that an analysis be performed to determine whether any federal mandate may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector of $100 million in any one year. It has been certified that this rule does not contain a Federal mandate that may result in the expenditure by State, local and tribal governments, in aggregate, or by the private sector, of $100 million or more in any one year, and thus this rule is not subject to this requirement.

Public Law 96-354, “Regulatory Flexibility Act” (RFA) (5 U.S.C. 601), requires that each Federal agency prepare a regulatory flexibility analysis when the agency issues a regulation which would have a significant impact on a substantial number of small entities. This rule is not an economically significant regulatory action, and it has been certified that it will not have a significant impact on a substantial number of small entities. Therefore, this rule is not subject to the requirements of the RFA.

This rule does not contain a “collection of information” requirement, and will not impose additional information collection requirements on the public under Public Law 96-511, “Paperwork Reduction Act” (44 U.S.C. chapter 35).

E.O. 13132, “Federalism,” requires that an impact analysis be performed to determine whether the rule has federalism implications that would 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. It has been certified that this rule does not have federalism implications, as set forth in E.O. 13132.

Accordingly, 32 CFR Part 199 is amended as follows:

The Department of Defense published a proposed rule on September 27, 2010 (75 FR 59176-59179). Three sets of comments were received and are addressed below.

Comment 1: As an initial matter, this proposed rule contains no paragraph (j), and there appears to be no current paragraph (j) to which this could be referring. While it is entirely reasonable for the DoD to amend this rule later to cover the issue of fees, it is improper for the DoD to include a reference now to a potential later amendment that will itself have to go through the notice and comment rulemaking procedure. It is far more reasonable to leave this subparagraph out of the current iteration and add it when the actual paragraph (j) is added to the rule.

Response 1: Paragraph revised to be consistent with section 2001.33(e) of 32 CFR (see section 222.10).

Comment 2: It is entirely proper that a requester shall not be given MDR appeal rights for records withheld pursuant to FOIA exemptions. However, it is not proper for records to be withheld pursuant to FOIA exemptions as part of the MDR process without providing the proper appeal rights that accompany all FOIA withholding decisions.

Response 2: The FOIA and MDR process are separate and distinct processes. A MDR is not a FOIA Request; a requester does not have the right to appeal MDR's denied under FOIA exemptions without having filed a FOIA Request. If a requester is denied under the rules of FOIA, the requester must submit a FOIA request for those records in order to have the exemptions examined. (See par 4 and par 5(c)3(d) of section 222.5.)

Comment 3: Proposed Section 222.5(a)(vii) reads as follows: “This section shall not apply to any request for a review made to an element of the Intelligence Community that is made by a person other than an individual as that term is defined by 5 U.S.C. 552a(a)(2), or by a foreign government entity or any representative thereof.”

This language differs meaningfully from the interpretive guidance rules in Section 32 CFR 2001.33(i), which say, in part, “requests for mandatory declassification review made to an element of the Intelligence Community by anyone other than a citizen of the United States or an alien lawfully admitted for permanent residence may be denied by the receiving Intelligence Community element.”

Response 3: Section removed from final rule.

4: Comments from DoD Internal review of proposed rule:

a. Change the Executive Order in the last line of Paragraph 1 from 12958 to 13526.

b. Appoint an appellate authority and process MDR appeals for information originating in the OSD, the Office of the Chairman of the Joint Chiefs of Staff and the Joint Staff, and DoD components not listed in the Appendix to Enclosure 2.

c. Insert reference to DoD 5200.1-R so the paragraph reads “The DoD Components shall process MDR requests * * * in accordance with DoD 5200.1-R and Part 2001 of title 32 * * *”

d. Replace paragraph 7.b with the following (or similar) statement: “The DoD Component shall consult with DOS as necessary to determine whether the information is subject to a treaty or international agreement that would prevent its declassification. The office to consult is * * *” (U//FOUO) The purpose of the statement is to allow DoD intelligence organizations that have existing, authorized agreements for coordinating actions on FGI to continue to use those arrangements with counterpart organizations of foreign governments for the purposes of coordinating Mandatory Declassification actions.

e. Updated all DoD Component contact information.

Response to Internal Comments: Internal comments from staffing reviews were incorporated as appropriate. Changes were made in the following sections: references, paragraph (d), § 222.5 MDR processing procedures of the final in response to the comments received.

It has been certified that 32 CFR part 222 does not:

(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy; a section of the economy; productivity; competition; jobs; the environment; public health or safety; or State, local, or tribunal governments or communities;

(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another Agency;

(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or

(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in these Executive Orders.

It has been certified that 32 CFR part 222 does not contain a Federal mandate that may result in the expenditure by State, local and tribunal governments, in aggregate, or by the private sector, of $100 million or more in any one year.

It has been certified that 32 CFR part 222 is not subject to the Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if promulgated, have a significant economic impact on a substantial number of small entities. The rule implements the procedures for the effective administration of the DoD MDR Program.

It has been certified that 32 CFR part 222 does not impose reporting or recordkeeping requirements under the Paperwork Reduction Act of 1995.

It has been certified that 32 CFR part 222 does not have federalism implications, as set forth in Executive Order 13132. This rule does not have substantial direct effects on:

(1) The States;

(2) The relationship between the National Government and the States; or

(3) The distribution of power and responsibilities among the various levels of Government.

Throughout this document, wherever “we,” “us,” or “our” is used, we mean the EPA. Information is organized as follows:

Title I of the CAA, as amended by Congress in 1990, specifies the general requirements for states to submit State Implementation Plans (SIPs) to attain and/or maintain the NAAQS and EPA's actions regarding approval of those SIPs. On October 8, 2008, October 10, 2008, March 17, 2009, June 23, 2010, December 22, 2010 and May 5, 2011, the Oregon Department of Environmental Quality (ODEQ) submitted numerous revisions to the SIP for the State of Oregon. On September 23, 2011 (76 FR 59090), EPA solicited public comment on a proposal to approve specified portions of the State's submissions. See 76 FR 59090. No public comments were received on the proposal and we are now taking final action to approve the SIP revisions as described in the September 23, 2011, proposal.

On July 18, 1997, EPA promulgated the 1997 8-hour ozone  1 NAAQS and the 1997 PM 2.5 NAAQS  2 . Additionally on December 18, 2006, EPA revised the 1997 24-hour PM 2.5 standard. 3 Today's actions relate to these revised standards (the 1997 8-hour ozone NAAQS and the 1997 and 2006 PM 2.5 NAAQS).

The interstate transport SIP provisions in section 110(a)(2)(D)(i) (also called “good neighbor” provisions) require each state to submit a SIP that contains provisions that prohibit emissions that adversely affect another state in the ways contemplated in the statute. Section 110(a)(2)(D)(i) identifies four distinct elements related to the evaluation of impacts of interstate transport of air pollutants. In this rulemaking EPA is approving Oregon's SIP with respect to the third element of that section. The third element of section 110(a)(2)(D)(i) requires a SIP to contain adequate provisions prohibiting emissions that interfere with any other state's required measures to prevent significant deterioration of its air quality.

As a part of its SIP submittal addressing interstate transport, ODEQ submitted an analysis entitled “Oregon SIP Infrastructure for Addressing the Interstate Transport of Ozone and Fine Particulate Matter”, dated November 5, 2009, to EPA on December 22, 2010. 4 EPA finds that ODEQ's submission, when evaluated in conjunction with the NSR/PSD rule revisions that EPA is also approving in today's action, meets the requirements under the CAA necessary to avoid interference with another state's SIP measures for preventing significant deterioration of air quality. We are, therefore, approving Oregon's SIP submission for purposes of meeting the requirements of CAA section 110(a)(2)(D)(i) that addresses the third PSD element of the interstate transport provisions for the 1997 8-hour ozone NAAQS and the 1997 and 2006 PM 2.5 NAAQS.

On December 31, 2002, EPA published final rule changes to the PSD and nonattainment NSR programs (67 FR 80186) and on November 7, 2003, EPA published a notice of final action on the reconsideration of the December 31, 2002 final rule changes (68 FR 63021). The December 31, 2002 and the November 7, 2003, final actions, are collectively referred to as the “2002 NSR Reform Rules.”

The 2002 NSR Reform Rules require that state agencies adopt and submit revisions to their SIP permitting programs implementing the minimum program elements of the 2002 NSR Reform Rules no later than January 2, 2006. To meet this requirement, ODEQ submitted an NSR reform equivalency demonstration report on December 22, 2005.

For the reasons discussed in EPA's proposed action, EPA has determined that Oregon's PSD program for reviewing and controlling emissions from new and modified sources is at least as strict as EPA's program. We have reviewed Oregon's NSR/PSD program and ODEQ's recent rule revisions and have determined that the NSR/PSD program meets the current requirements in 40 CFR 51.165 and 51.166. Accordingly, EPA is taking final action to approve these measures into the federally approved SIP.

On May 5, 2011, ODEQ submitted a series of additional rule changes as revisions to the Oregon SIP. These rule changes are necessary to align its rules with significant changes made to EPA's air quality permitting regulations, including the 2002 NSR Reform Rules (published on December 31, 2002, effective date March 3, 2003), and the permitting of PM 2.5 (direct PM 2.5 and PM 2.5 precursors) and GHG emissions. The SIP submittal covers revisions to OAR chapter 340, divisions 200, 202, 216, 224, 225, and 228.

The rule revisions include the adoption of a threshold or significant emission rate of 10 tons per year of PM 2.5 as a significant change at an existing facility. Facilities would trigger NSR/PSD permitting only if a physical or operational change increased emissions above this threshold. The rule revisions also include the adoption of levels to determine if additional ambient air quality analysis is required, track the cumulative impact of emissions growth in areas that meet air quality standards, and determine if preconstruction monitoring is required for PM 2.5 .

In addition, the May 5, 2011, SIP submittal includes rules to allow the permitting of GHG emissions under Oregon's NSR/PSD program. Oregon's definition of “federal major source” is almost identical to EPA's definition of “major stationary source” and as such, Oregon has tailored its PSD rules in a manner identical to EPA's with respect to major sources of GHG emissions. That is, for a “federal major source” to be “major” for GHGs under the Oregon PSD program, it must have the potential to emit GHGs equal to or greater than 100,000 tons per year on a carbon dioxide equivalent (CO2e) basis and a potential to emit GHGs equal to or greater than 100/250 tons per year on a mass basis. 5 However, Oregon's definition of “major modification” is substantially different than (but equivalent to) EPA's definition of “major modification” so Oregon has tailored its PSD rule in a different manner in order to produce the same outcome with respect to major modifications for GHGs as EPA's Tailoring Rule.

In order for Oregon's PSEL-based definition to have the same effect as EPA's definition of “major modification” with respect to GHG emissions ( i.e., an increase greater than 75,000 tons per year on a CO2e basis and an increase greater than “zero” on a mass basis), Oregon's rule requires the establishment of PSELs on a CO2e basis and an increase in the PSEL of more than 75,000 tons per year on a CO2e basis, before a “major modification” under the Oregon rules will have occurred. 6 This approach is consistent with how the Oregon program defines major modifications for all other NSR regulated pollutants and results in the same outcome as EPA's Tailoring Rule with respect to major modifications for GHG emissions.

EPA finds that these provisions are consistent with EPA's GHG Tailoring Rule and is approving the GHG PSD permitting provisions into the federally approved Oregon SIP, providing Oregon with the authority to issue PSD permits addressing GHG emissions. EPA is simultaneously withdrawing the FIP codified in 40 CFR 52.1987(d) that ensures the availability of a PSD-permitting authority for GHG-emitting sources in Oregon to reflect the fact that analogous provisions are now a part of the federally-approved SIP. EPA has identified a technical error in 40 CFR 52.1987 whereby subsections (a), (b), and (c) were erroneously omitted from the code of federal regulations when EPA promulgated the GHG FIP and added subsection (d). 7 In this action, EPA is clarifying that subsections (a), (b), and (c) should not have been omitted from the text of the CFR as EPA never provided notice of its intent (and did not intend) to remove those provisions from the SIP.

The CAA does not provide an exemption for agricultural operations while, prior to 2007, Oregon's State law exempted most agricultural operations from air quality regulations. To address this discrepancy, the 2007 Oregon Legislature (in accordance with Oregon Senate Bill 235) updated Oregon's air quality law (Oregon Revised Statute (ORS) 468.020 and 468A.020) to be consistent with the Federal CAA enabling the regulation of air emissions from agricultural sources if necessary to implement the Federal CAA. The Oregon Environmental Quality Commission in turn adopted rule amendments to OAR (340) 200-0030, (340) 210-0205, and (340) 264-0040 to align these rules with ORS 468A.020 and to make revisions to Oregon's SIP and the Oregon Title V operating permit program. The revisions to OAR (340) 200-0030, (340) 210-0205, and (340) 264-0040 were submitted to EPA by ODEQ on October 8, 2008. OAR rules now allow agricultural air quality pollution sources to be regulated in Oregon as necessary to meet CAA requirements.

EPA believes that the revised ORS 468A.020 (in conjunction with the corresponding revisions to the OAR (340) 200-0030, (340) 210-0205, and (340) 264-0040) meet CAA requirements and, therefore, are approving these revised OAR provisions into the federally approved Oregon SIP.

EPA is also approving portions of the October 10, 2008, March 17, 2009, and June 23, 2010, SIP submittals from ODEQ that correct previous errors, provide clarification and streamline air quality permitting rules in the State of Oregon.

On November 5, 1999, ODEQ submitted a complete rule renumbering to EPA for approval. On January 22, 2003 (68 FR 2891), we approved most of these new divisions but at that time did not take action on division 208 (Visible Emissions and Nuisance Requirements). We are now approving rules 0010 (Definitions), 0100 (Visible Emissions, Applicability), 0110 (Visible Emissions, Visible Air Contaminant Limitations), 0200 (Fugitive Emissions Requirements, Applicability) and 0210 (Fugitive Emissions Requirements) of division 208 into the Oregon SIP which replace division 21, rules 015, 050, 055, and 060, which are simultaneously being removed from the SIP (codified in 40 CFR 52.1970(c)(153)(i)(G)).

We are also approving Oregon's current excess emission rules (division 214, rules 0300 through 0360 that were included in the October 10, 2008 SIP submittal) into the Oregon SIP. These division 214 rules replace the federally-approved division 28, rules 1400, 1410, 1420, 1430, 1440, and 1450, which are simultaneously removed from the SIP in this action (codified in 40 CFR 52.1970(c)(153)(i)(G)). EPA finds that the division 214 rules conform to Federal standards related to excess emissions. Oregon's excess emission provisions specify the factors that the State will take into account regarding the exercise of its enforcement discretion in response to excess emissions.

Additionally, as part of October 10, 2008 SIP submittal, ODEQ submitted a revision to repeal outdated rules governing wigwam waste burners with a statewide prohibition on their use (division 234, rules 0110, 0120, and 0130) and redundant kraft pulp mill rules (division 234, rules 0230 and 0260). These rules are removed from the SIP in this action (codified in 40 CFR 52.1970(c)(154)(i)(A)).

These rules are described with additional specificity in our proposal for this action (76 FR 59090).

EPA is taking final action to approve into Oregon's federally-approved SIP the provisions discussed in the September 23, 2011, proposal. This action will result in the following changes to the Oregon SIP in 40 CFR part 52, subpart MM.

EPA is approving into the Oregon SIP at 40 CFR part 52, subpart MM, the following revisions to chapter 340 of the OAR listed in Table 1. It is important to note that in those instances where ODEQ submitted multiple revisions to a single rule of chapter 340 of the OAR, the most recent version of that rule (based on State effective date) is being incorporated into the SIP since it supersedes all previous revisions.

The following provisions were included in the SIP submittals discussed above. However, EPA is taking no action to incorporate them into Oregon's federally approved SIP at this time.

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

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

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

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

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

• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

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

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

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

Part 52, chapter I, title 40 of the Code of Federal Regulations is amended as follows:

Throughout this document, the terms “we,” “us,” and “our” refer to EPA.

On August 23, 2011 (76 FR 52604), EPA published a notice of proposed rulemaking (NPR) for the State of Kansas, proposing approval of Kansas' regional haze plan for the first implementation period (through 2018). A detailed explanation of the CAA's visibility requirements and the regional haze rule as it applies to Kansas was provided in the NPR and will not be restated here. EPA's rationale for proposing approval of the Kansas SIP revision was described in detail in the proposal, and is further described in this final rulemaking.

The publication of EPA's proposed rule on August 23, 2011 initiated a 30 day public comment period that ended on September 22, 2011. During the public comment period we received written comments from the State of Colorado, the Kansas Department of Health and Environment on behalf of the State of Kansas (State), Kansas City Power & Light, Westar Energy, and the National Parks Conservation Association (NPCA). We have summarized the comments and provided our responses below. Full copies of the comment letters are available in the docket for this rulemaking.

Comment #1: The State of Colorado submitted comments supportive of EPA's proposed approval and applauding the State of Kansas' efforts to evaluate and promulgate cost effective emission controls that will improve visibility in a number of Class I areas, including Rocky Mountain National Park and Great Sand Dunes National Park & Preserve.

Response #1: We appreciate the State of Colorado's comments on our proposed action.

Comment #2: The State and Westar Energy noted some transcription errors in table 7 of the proposed notice, titled “Control or work practice strategies for Westar units to meet Kansas long term strategy requirements.” Some limits for sulfur dioxide (SO 2 ) were recorded as limits for nitrogen oxides (NO X ), and vice versa. The specific errors were:

• Lawrence Unit 3: the limit of 0.18 lbs/mmBtu is for NO X , not SO 2

• Lawrence Unit 4: the limit of 0.18 lbs/mmBtu is for NO X , not SO 2 ; and the limit of 0.15 lbs/mmBtu is for SO 2 , not NO X

• Tecumseh Unit 7/9: the limit of 0.18 lbs/mmBtu is for NO X, not SO 2

• Tecumseh Unit 8/10: limit of 0.18 lbs/mmBtu for NO X , not SO 2 .

Response #2: EPA agrees that there were transcription errors in table 7. Table 7 is corrected to read as follows:

Comment #3: Westar Energy noted errors in table 8 of the proposed approval, titled, “Estimated NO X and SO 2 emission reductions for implementation of controls or work practices required by Kansas' long term strategy”. Errors in table 8 included listing the 2002 SO 2 emissions for Lawrence Unit 5 as 4,546.3 tons (the correct value is 4,353.7 tons), and listing the post-control NO X emissions for Lawrence Unit 4 at 835.4 tons (the correct value is 1002.4 tons).

Response #3: EPA agrees that there were errors in table 8. Table 8 is corrected as follows:

Comment #4: As noted in the proposal, the State entered into Consent Agreements with Kansas City Power and Light and Westar Energy to incorporate the Best Available Retrofit Technology (BART) emission rates, compliance schedules, monitoring, recordkeeping, reporting, and enforceability requirements. EPA proposed to disapprove specific startup, shutdown and malfunction (SSM) provisions in the State's regional haze Consent Agreements with Westar Energy and Kansas City Power and Light that were submitted as part of the regional haze SIP. The State commented that EPA's proposed exclusion of periods of SSM from the Consent Agreements has the effect of making the BART emission limits more stringent. The State requested that EPA consider fully approving the SIP revision. Kansas City Power and Light commented that the proposed approval of the Kansas Regional Haze SIP excluding the SSM provisions fundamentally changes the basis of the emission limits, and because the SSM provisions were agreed to through good faith negotiations with the State, Kansas City Power and Light asked that the Agreements be renegotiated. Westar Energy made similar comments, disagreeing with the proposed disapproval of the SSM provisions in the Consent Agreement between the State and Westar Energy.

Response #4: As EPA explained in the proposed notice, the Consent Agreements exempted periods of startup and shutdown for both Kansas City Power and Light and Westar Energy from compliance with applicable emission limits, which were not narrowly defined, and exempted periods of malfunction for Westar Energy. EPA proposed to disapprove the exemptions because they are inconsistent with the Clean Air Act and EPA's September 20, 1999, guidance, “State Implementation Plans: Policy Regarding Excess Emissions during Malfunctions, Startup and Shutdown.”  1

EPA subsequently received a letter from the State dated December 1, 2011, withdrawing the SSM provisions in the Consent Agreements in their entirety from the regional haze SIP. Specifically, the following four provisions were withdrawn from EPA's consideration for approval in the regional haze SIP:

1. All references to, “excluding periods of startup and shutdown” in Paragraph 23 of the Kansas City Power and Light Company regional haze agreement;

2. The reference to, “excluding periods of startup, shutdown and malfunction” in footnote 1 of Appendix A to the Westar Energy, Inc. regional haze agreement;

3. All references to, “excluding periods of startup and shutdown” in Chapter 9.3.1 of the Kansas regional haze SIP;

4. And the sentence, “The Agreements between KDHE and the affected BART sources currently exclude emissions associated with startup, shutdowns, and malfunctions (SSM) in the agreed upon emission limits” in Chapter 9.5 of the Kansas regional haze SIP.

Since the SSM provisions were withdrawn by the State, and are therefore no longer before EPA, neither EPA's proposed disapproval of these exemptions nor the comments on that proposed disapproval are relevant to this final action.

Comment #5: NPCA commented that Kansas' regional haze plan is incomplete and insufficient, because of what NPCA considers an incomplete five step BART analysis at Westar Energy Jeffrey Energy Center Units 1 and 2, and at Kansas City Power and Light La Cygne Units 1 and 2. NPCA states that requiring presumptive limits does not negate the need for a State to determine BART for each source subject to BART on a case-by-case basis through a five factor analysis. NPCA stated that the most stringent emissions rate the various technologies are capable of achieving needs to be analyzed for cost and visibility improvement in order to make an adequate BART determination. NPCA offered a number of specific comments about these units, which are listed and addressed separately below.

NPCA asserted that selective catalytic reduction (SCR) is a cost-effective technology to control NO X emissions. As such, NPCA believes that SCR should be required as BART for Westar Energy Jeffrey Units 1 and 2. The original BART analysis for these units examined SCR at an emission rate of 0.10 lbs/MMBtu and determined that the cost effectiveness was $2,211/ton of NO X removed and $1,738/ton of NO X removed for Units 1 and 2, respectively. NPCA states that these costs, while reasonable, are improperly inflated due to the State's low control efficiency assumptions; and that SCR is capable of achieving a lower emissions rate than what the State assumed in its BART analysis, such as 0.05 lbs/MMBtu.

Response #5: On December 1, 2011, the State provided supplemental information on incremental cost and visibility improvement for various control strategies for Westar Energy Jeffrey Energy Center Units 1 and 2, and Kansas City Power and Light La Cygne Units 1 and 2. This information is available in the docket for this rulemaking. The supplemental dispersion modeling provided by the State was conducted with the CALPUFF model using the same inputs that were used during the original BART analysis, except that the emissions rates were changed to determine visibility improvement from various control options. Visibility impacts were evaluated at five Class I areas: Caney Creek and Upper Buffalo in Arkansas, Hercules Glades and Mingo in Missouri, and Wichita Mountains in Oklahoma. The State also obtained or developed annualized costs for the additional equipment that would be required to be installed in order to achieve lower emission rates.

The BART cost analysis for SCR at Jeffrey Units 1 and 2 was performed based on an emission limit of 0.10 lbs/MMBtu, which is within the range of effectiveness that the State believed to be reasonable as a retrofit control on older tangential-fired units. The State assumed a control efficiency of 79-80 percent, which is in the mid-range of control efficiencies demonstrated for SCR, as noted by NPCA in their comments. EPA believes the State's decision to choose a control efficiency within the middle of the range for the purpose of estimating cost is a reasonable approach and is acceptable according to the BART Guidelines. 2 In the BART analysis, SCR operated at a rate of 0.10 lbs/MMBtu was evaluated for incremental cost improvements and was excluded as BART based on the high incremental cost for the associated low incremental visibility improvements.

The State subsequently provided additional cost and visibility information for SCR at Jeffrey Units 1 and 2, assuming an emissions rate of 0.08 lbs/MMBtu. The State asserted that the 0.05 lb/MMBtu rate was not reasonable to evaluate as retrofit for 35 year old tangential-fired units. The difference in modeled impact for Jeffrey Unit 1 between the SCR scenario (0.08 lbs NO X /MMBtu) and the low NO X burner (LNB) scenario (0.15 lbs NO X /MMBtu) at Hercules Glades, the most impacted Class I area, is 0.048 deciviews (dv) of additional improvement. The difference in the cumulative improvement across all five Class I areas for this scenario is 0.161 dv. The annualized incremental cost of these controls is $13,362,820 in 2005 dollars, which we calculated to be $5,374 per ton.

The use of SCR at Jeffrey Unit 2 has similar incremental costs as for Jeffrey Unit 1, but less visibility improvement. Incremental visibility improvement resulting from tightening the presumptive NO X rate of 0.15 lbs/MMBtu to a rate of 0.08 lbs/MMBtu is 0.042 dv at Upper Buffalo, and 0.153 dv cumulatively across the five Class I areas. The incremental annual cost of these controls is $13,345,950, for an incremental cost per ton of $5,367.

The State concluded that these additional NO X reduction costs are high for the associated low incremental visibility improvements for Jeffrey Units 1 and 2, and changes to the proposed BART emission limits are not warranted. EPA agrees that based on the low visibility improvements and high costs of additional control, it is reasonable to determine that no changes to the proposed BART emission limits are warranted. It is also consistent with the BART Guidelines, which provide the State flexibility to determine the weight and significance of the five factors. EPA finds little support in the State's information for the statement that a rate of 0.05 lbs/MMBtu is not reasonable to evaluate for older tangential-fired units. However, it is reasonable to conclude that the costs and visibility improvement of SCR operated at a rate of 0.05 lbs/MMBtu would lead to a similar conclusion that the additional costs would be high for the associated low incremental visibility improvement. Therefore, EPA finds that no changes to the BART determinations or to the SIP are needed in response to this comment.

In addition, EPA notes that following the State's BART determinations and submission of the regional haze SIP, Westar Energy, EPA, and the State entered into a Federal Consent Decree in resolution of alleged violations of the Clean Air Act. 3 Under the Consent Decree, Westar Energy is required to install an SCR on Jeffrey Unit 1, 2, or 3 by December 31, 2014 in order to achieve and maintain a 30-day rolling average unit emission rate for NO X of no greater than 0.080 lbs/MMBtu. By December 31, 2012 Westar Energy must elect to install a second SCR on one of the other two Jeffrey units, or meet a 0.100 lbs/MMBtu plant-wide 12-month rolling average emission rate for NO X . If Westar Energy elects to install the second SCR, it is to be installed by December 31, 2016 to achieve and maintain a 30-day rolling average unit emission rate for NO X of no greater than 0.070 lbs/MMBtu. Additionally, the Jeffrey plant must comply with a plant-wide 12 month rolling tonnage limitation of 9600 tons. Therefore, following implementation of the regional haze requirements and the Consent Decree provisions, the Westar Jeffrey Units will be well controlled for NO X .

Comment #6: NPCA commented that overfire air and selective non-catalytic reduction (SNCR) were determined to be feasible technologies during the BART analysis, but were not evaluated for cost or visibility impacts at Jeffrey Units 1 and 2. NPCA commented that LNB or ultra LNB with SCR was likewise not evaluated, despite the BART analysis noting that such combinations can achieve reductions up to 97 percent.

Response #6: Overfire air was considered along with LNB, so this combination of controls was included in the cost and visibility analysis submitted by the State. Likewise, LNB was included with the consideration of SCR, as it makes the SCR less expensive to build.

The State subsequently provided cost and visibility information for SNCR operated at 0.10 lbs/MMBtu at these units. For Jeffrey Unit 1, the change in visibility improvement between the SNCR scenario (0.10 lbs NO X /MMBtu) and the LNB scenario (0.15 lbs NO X /MMBtu) at Hercules Glades was 0.030 dv. The difference in the cumulative improvement across all five Class I areas for this scenario was 0.090 dv. The annual incremental cost of these controls is $3,103,877, for an incremental cost per ton of $1,748.

The results for SNCR at Jeffrey Unit 2 are similar—0.020 dv of improvement at Wichita Mountains and 0.080 dv cumulative improvement across all five Class I areas. The annual incremental cost of these controls is $3,103,877, for an incremental cost per ton of $1,478.

The State concluded that the additional NO X reduction costs are high for the associated low incremental visibility improvements for Jeffrey Units 1 and 2, and do not warrant changes to the proposed BART controls. Although the costs are likely cost effective on a per ton basis, the BART Guidelines provide the State flexibility to determine the weight and significance of the five factors, and EPA agrees that the State reasonably determined that the costs of further control are not warranted based on the low additional visibility improvements. Therefore, EPA finds that no changes to the BART determinations or to the SIP are needed in response to this comment.

Comment #7: NPCA commented that the BART determinations for La Cygne Units 1 and 2 were flawed due to an incomplete analysis of SCR and other NO X control options. La Cygne Unit 1 has an existing SCR, but NPCA asserted that the most stringent rate the SCR is capable of achieving at Unit 1 was not analyzed. NPCA commented that a control technology has not actually been selected for Unit 2; rather, an overall emissions rate was established as BART. NPCA claims that SCR with the lowest achievable emissions rate should be evaluated as BART for Unit 2 and would likely be shown to be cost effective. NPCA commented that other combinations of NO X controls should also be evaluated for Unit 2, including overfire air, LNB, and the combination of SCR with feasible combustion controls.

Response #7: The State's evaluation of the BART analysis for La Cygne Units 1 and 2 for NO X resulted in the decision that establishing a combined emissions limit for both units with a rate of 0.13 lbs/MMBtu was BART.

For Unit 1, as a part of the BART analysis, the State reviewed EPA's Clean Air Markets Division and the Energy Information Agency's databases for emissions data on cyclone boilers equipped with SCR technology. A relatively small number of cyclone boilers were so equipped at that time and their emission rates varied both above and below the presumptive NO X rate. Based on this information, the State determined that a rate of 0.10 lbs/MMBtu was a reasonably stringent rate to evaluate for the existing control.

NPCA is correct that SCR was not specified as BART for Unit 2; rather, a combined rate for La Cygne Units 1 and 2 was specified as BART. While a range of control technologies must be evaluated in order to make a BART determination, EPA believes that it is acceptable to establish an enforceable emission limit as BART, rather than specifying a control technology to achieve it.

The State subsequently provided additional visibility and cost information to show the incremental visibility improvement that would result from requiring lower NO X emission rates for Unit 2. The annualized cost for SCR on Kansas City Power and Light La Cygne Unit 2 was obtained from Table 5.5 of the BART analysis. 4 The State claimed that in order to achieve a lower emissions rate, the size of the SCR would need to be scaled up, resulting in concurrent increases in electrical demand, in raw materials, and maintenance. The incremental annualized cost for these additional capital and operational costs was estimated to be 20 percent greater than the initial cost projection for the SCR. The change in visibility improvement between the proposed BART emission rate (0.23 lbs NO X /MMBtu) and the Unit 2 SCR scenario (0.08 lbs NO X /MMBtu) was 0.082 dv for Upper Buffalo. The difference in the cumulative improvement across all five Class I areas is 0.25 dv. The annualized incremental cost of controls in this scenario is $2,981,706, for an incremental cost per ton of $548.

As with the Jeffrey units, overfire air was considered along with LNB, so this combination of control technologies has already been evaluated.

The annualized cost for SNCR control on Kansas City Power and Light La Cygne Unit 2 was determined by using SNCR costs obtained from Jeffrey Unit 1, and scaling the dollar amount using heat input and NO X rates. The change in visibility improvement between the proposed BART emissions rate (0.23 lbs NO X /MMBtu) and the Unit 2 SNCR scenario (0.14 lbs NO X /MMBtu) is 0.044 dv for Hercules Glades. The difference in the cumulative improvement across all five Class I areas is 0.12 dv. The annualized incremental cost of controls in this scenario is $972,747, for an incremental cost per ton of $298.

The State concluded that the additional NO X reduction costs are high for the associated low incremental visibility improvements for La Cygne Units 1 and 2, and do not warrant changes to the proposed BART controls. The BART Guidelines provide the State the flexibility to determine the weight and significance of the five factors. Although the costs appear to be reasonable on a cost per ton basis, EPA has some concern with the scaling methodology utilized by the State to arrive at cost estimates for the lower NO X rates. However, given the low visibility improvements associated with the additional control, EPA agrees it is reasonable to determine that the costs of further control are not warranted and no changes to the BART determinations or to the SIP are needed in response to this comment.

EPA also notes that since the time of the State's BART determinations and submission of the regional haze SIP, Kansas City Power and Light applied for a permit to install SCR on La Cygne Unit 2. The permit was effective March 16, 2011. 5 In order for the permit to remain valid, Kansas City Power and Light must commence construction within 18 months of the permit's effective date (by September 2012).

Comment #8: NPCA commented that while La Cygne Units 1 and 2 and Jeffrey Units 1 and 2 have proposed to either install or upgrade scrubbers at all four units to control SO 2 emissions, the State's analysis was incomplete in that it lacked an evaluation of the most stringent emission limits the technology is capable of achieving. NPCA claims that scrubbers, both wet and dry, are capable of emission reductions below the proposed BART emission rates of 0.15 lbs/MMBtu at Jeffrey and 0.10 lbs/MMBtu at La Cygne. NPCA suggests that scrubbers are capable of achieving 0.03 to 0.05 lbs/MMBtu at each unit.

Response #8: The State's evaluation of the BART analysis for Jeffrey Units 1 and 2 for SO 2 resulted in the determination that rebuilding the existing wet scrubber units and meeting a rate of 0.15 lbs/mmBtu was BART. The State did not believe that it was feasible to achieve an emissions rate of 0.05 lbs/MMBtu with rebuilt technology, so costs and visibility improvements were subsequently provided for the installation of a new scrubber operating at 0.05 lbs/MMBtu for both Jeffrey units. The State obtained annualized costs for new scrubbers on Jeffrey Units 1 and 2 from Westar Energy. The change in visibility improvement between the new wet scrubber scenario (0.05 lbs SO 2 /MMBtu) and the proposed BART emission limit (0.15 lbs SO 2 /MMBtu) for Jeffrey Unit 1 was 0.052 dv at Hercules Glades. The difference in the cumulative improvement across all five Class I areas is 0.168 dv. The annualized incremental cost of controls in this scenario is $23,567,203, for an incremental cost per ton of $6,635.

The differences for Jeffrey Unit 2 under these scenarios are comparable to Unit 1—0.057 dv improvement at Hercules Glades, and 0.160 cumulatively. The annualized incremental cost of controls in this scenario was $23,567,203, for an incremental cost per ton of $6,635.

The State concluded that the additional SO 2 reduction costs are high given the low incremental visibility improvements for Jeffrey Units 1 and 2, and do not warrant changes to the proposed BART emission rates. EPA has some concern with the assumptions used by the State in arriving at the cost estimates, however, given the very low visibility improvement modeled for the additional control, consistent with the BART Guidelines which provide the State flexibility to determine the weight and significance of the five factors, EPA agrees it is reasonable to determine that the costs of further control are not warranted and no changes to the BART determinations or to the SIP are needed in response to this comment.

EPA also notes, as was referenced above, since the time of the State's BART determinations and submission of the regional haze SIP, Westar Energy, EPA and the State entered into a Federal Consent Decree in resolution of alleged violations of the Clean Air Act. The Consent Decree requires that Jeffrey Units 1 and 2 each meet a 30-day rolling average unit removal efficiency for SO 2 of at least 97 percent or a 30-day rolling average unit emission rate for SO 2 of 0.070 lbs/MMBtu. Therefore, following implementation of the regional haze requirements and the Consent Decree, Jeffrey Units 1 and 2 will be well controlled for SO 2 .

The State's evaluation of the BART analysis for La Cygne Units 1 and 2 for SO 2 resulted in the determination that a combined emissions limit for both units at rate of 0.10 lbs/MMBtu was BART. Unit 1 has an existing scrubber that will be modified to separate the PM control from the SO 2 control resulting in increased SO 2 removal efficiency. Unit 2, which did not have an existing scrubber, will be retrofitted with a new scrubber. The combined BART emission rate chosen for SO 2 controls is within the range of expected removal efficiencies, considering one unit is a retrofitted scrubber.

The State subsequently provided additional cost and visibility information to further evaluate lower SO 2 emission rates. The State estimated the incremental annualized cost estimate to be 20 percent greater than the initial cost projection for the scrubber, because of the increased electrical demand, raw material costs, and maintenance costs associated with achieving a more stringent emissions rate.

For the Unit 1 scrubber at La Cygne, the change in visibility improvement from the presumptive BART emissions rate (0.15 lbs SO 2 /MMBtu) to a lower rate (0.05 lbs SO 2 /mmBtu) is 0.04 dv at Caney Creek. The difference in the cumulative improvement across all five Class I areas for this scenario is 0.12 dv. The annualized incremental cost of controls in this scenario is $6,098,239, for an incremental cost per ton of $1,495. The La Cygne Unit 2 scrubber scenario is comparable: 0.04 dv improvement at Hercules Glades, and 0.097 dv cumulative improvement. The annualized incremental cost of controls in this scenario is $5,427,642, for an incremental cost per ton of $1,495.

The State concluded that the additional SO 2 reduction costs are high given the associated low incremental visibility improvements for La Cygne Units 1 and 2, and changes to the proposed BART controls are not warranted. Although the costs appear to be reasonable on a cost per ton basis, EPA has some concern with the scaling methodology utilized by the State to arrive at the cost estimates for the lower SO 2 rate. However, given the low additional visibility improvement, consistent with the BART Guidelines which provide the State flexibility to determine the weight and significance of the five factors, EPA agrees it is reasonable to determine that the costs of further control are not warranted and no changes to the BART determinations or to the SIP are needed in response to this comment.

Comment #9: NPCA commented that the proposed SIP fails to address cumulative impact of Kansas BART sources on all Class I areas impacted. NPCA says that the modeling results presented in the proposed approval do not provide for a determination of the cumulative impact from Jeffrey Units 1 and 2 or La Cygne Units 1 and 2. NPCA notes that the four BART units mentioned above impact nine Class I areas, but the State only provided visibility information for five Class I areas.

Response #9: In order to keep the size of the modeling domain manageable, the State chose to conduct refined modeling on the five most impacted Class I areas. Given the level of the modeled impacts at these five Class I areas, EPA does not believe that the State was unreasonable in streamlining its modeling exercise to exclude the other four Class I areas from its visibility analysis. Given the overall modeled impacts at the most impacted Class I areas, taking into account the impacts at the other four areas would have been unlikely to significantly change the State's conclusions about BART emission limits. Therefore, EPA believes that no changes to the BART determinations or to the SIP are needed in response to this comment.

EPA is taking final action to approve the State of Kansas' Regional Haze SIP, submitted on November 9, 2009, with supplemental information provided in December 2011, including a letter dated December 1, 2011, in which the State withdrew specific SSM provisions of the regional haze SIP from EPA's consideration. EPA finds that the Kansas regional haze SIP submittal meets all of the applicable Regional Haze requirements set forth in section 169A and 169B of the Act and in the Federal regulations codified at 40 CFR 51.300-308, and the requirements of 40 CFR Part 51, Subpart F and Appendix V.

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 CAA. Accordingly, this action merely approves State law as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this action:

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

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

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

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

• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

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

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

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

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 rule does not have tribal implications, as specified in Executive Order 13175. It will not have substantial direct effects on tribal governments. Thus, Executive Order 13175 does not apply to this rule.

40 CFR part 52 is amended as follows:

The following are abbreviations of terms used in final rule:

Regulated Entities. Entities regulated by this action primarily are fossil fuel- fired boilers, turbines, and combined cycle units that serve generators that produce electricity for sale or cogenerate electricity for sale and steam. Regulated categories and entities include:

This table is not intended to be exhaustive, but rather to provide a guide for readers regarding entities likely to be regulated by this action. This table lists the types of entities which EPA is now aware could potentially be regulated by this action. Other types of entities not listed in this table could also be regulated. To determine whether your facility, company, business, organization, etc., is regulated by this action, you should carefully examine the applicability criteria in §§ 97.404, 97.504, and 97.604 of title 40 of the Code of Federal Regulations. If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding FOR FURTHER INFORMATION CONTACT section.

In addition to being available in the docket, an electronic copy of this rule will also be available on the World Wide Web. Following signature by the EPA Administrator, a copy of this action will be posted on the EPA Web site at http://www.epa.gov/crossstaterule.

In this final rule, EPA finalizes its conclusion that Iowa, Kansas, Michigan, Missouri, Oklahoma, and Wisconsin significantly contribute to nonattainment or interfere with maintenance of the 1997 ozone National Ambient Air Quality Standards (NAAQS) in other states. These states' final ozone-season NO X budgets are presented and discussed in section III.E below, and more detailed information can be found in the “Determination of State Budgets for the Final Ozone Supplemental of the Transport Rule” TSD found in the docket for this rulemaking.

In addition, EPA is finalizing FIPs to address the interstate transport requirements of the relevant NAAQS using a program created in the Transport Rule 1 that was finalized on July 6, 2011 (76 FR 48208, August 8, 2011). EPA is implementing the ozone season NO X program in the Transport Rule (with minor revisions) as the FIPs for Iowa, Michigan, Missouri, Oklahoma, and Wisconsin to address the emissions identified as significantly contributing to nonattainment or interfering with maintenance with respect to the 1997 ozone NAAQS. With respect to Kansas, EPA is not finalizing the proposed FIP because we do not have the authority to do so at this time, as discussed in section III.C below.

As explained in the final Transport Rule preamble (76 FR 48208), EPA improved and updated both steps of its significant contribution analysis from the Transport Rule proposal. EPA updated its modeling platforms and modeling inputs in response to public comments received on the proposed Transport Rule and subsequent Notices of Data Availability (NODAs), and performed other standard updates. It updated and improved the modeling platforms and modeling inputs used to identify states with contributions to certain downwind receptors that meet or exceed specified air quality thresholds. It also updated and improved its analysis for identifying any emissions within such states that constitute the state's significant contribution to nonattainment or interference with maintenance. Therefore, the results of the analysis conducted for the final Transport Rule differed somewhat from the results of the analysis conducted for the proposal.

With respect to the 1997 ozone NAAQS, the analysis EPA conducted for the Transport Rule proposal did not identify Wisconsin, Iowa, and Missouri as states that significantly contribute to nonattainment and/or interfere with maintenance of the ozone NAAQS in another state. However, the analysis conducted for the final Transport Rule showed that emissions from these three states interfere with maintenance of the ozone NAAQS in another state. The analysis also showed that emissions from Missouri significantly contribute to nonattainment in another state. Additionally, the analysis identified two ozone maintenance receptors that were not identified by the modeling conducted for the proposal. These two ozone maintenance receptor sites are located in Allegan County, Michigan and Harford County, Maryland. Five states (Iowa, Kansas, Michigan, Oklahoma, and Wisconsin), which EPA identified as interfering with maintenance problems at the Allegan County and/or Harford County receptors, based on modeling for the final rule, uniquely contribute to these receptors, i.e., absent these receptors the states would not be covered by the Transport Rule ozone-season program (although the states, except for Oklahoma, are covered by the Transport Rule annual programs). EPA did not issue FIPs with respect to the 1997 ozone NAAQS or finalize ozone season NO X budgets for these states in the final Transport Rule. Instead, EPA published a supplemental notice of proposed rulemaking (76 FR 40662) to provide an opportunity for public comment on our conclusion that these states significantly contribute to nonattainment or interfere with maintenance of the 1997 ozone NAAQS.

EPA did not change its methodology between the proposed Transport Rule and the final Transport Rule for identifying upwind states that significantly contribute to nonattainment or interfere with maintenance in other states; nor did EPA change its methodology for identifying receptors of concern with respect to maintenance of the 1997 ozone NAAQS. The final Transport Rule's air quality modeling identified the new states and new receptors described above based on modeling using updated input information (including emission inventories), much of which was provided to EPA through public comment on the proposal and subsequent NODAs.

In the proposal for this supplemental rulemaking, EPA took comment only on (a) its conclusions that the six states identified above have emissions that significantly contribute to nonattainment and/or interfere with maintenance of the 1997 ozone NAAQS and (b) its decision to use the final Transport Rule programs as the FIPs to address these emissions in the six states.

EPA did not reconsider or take comment on any aspect of the final Transport Rule, including any aspect of the methodology used to identify receptors for nonattainment; the methodology used to identify receptors for maintenance; the methodology used to identify any specific state's significant contribution and interference with maintenance; the methodologies used to establish state budgets, variability limits, and state assurance levels; and the methodologies used to allocate allowances to existing units, to establish new unit set-asides and Indian country new unit set-asides, and to allocate allowances in these set-asides. EPA provided an adequate opportunity for public comment on all of these issues during the comment period for the proposed Transport Rule and during the comment periods for the associated NODAs. 2 EPA received numerous comments on the proposed Transport Rule and on the associated NODAs and considered all significant comments received during the comment periods for these actions before finalizing the Transport Rule. Responses to those comments are available in the public docket for the final Transport Rule.

In the proposal for this rulemaking, EPA also did not reconsider or take comment on the emission inventories used for the final Transport Rule modeling, including the emission inventories for the six states identified above. EPA provided ample opportunity for comment on these inventories during the comment period for the proposed Transport Rule and the comment periods for the NODAs associated with that proposal. Inventories for all states included in the modeling domain were made available for public comment during that process. The public had ample reason to comment on the inventories for these six states, moreover, not only because these inventories affect the modeling for all states in the modeling domain, but also because EPA was proposing to include all six states in at least one of the Transport Rule trading programs and the inventories were used in the analysis supporting that proposal. For instance, EPA proposed to include Kansas and Michigan in the ozone-season NO X , annual NO X , and annual SO 2 programs; proposed to include Oklahoma in the ozone-season NO X program; and proposed to include Iowa, Missouri, and Wisconsin in the SO 2 and annual NO X programs. Commenters therefore had reason to look closely at all of the emission data for all six states that EPA made available in the proposal and the NODAs. Ultimately, EPA made numerous changes to these inventories in response to public comments.

The statutory authority for this action is provided by the CAA, as amended, 42 U.S.C. 7401 et seq. Section 110(a)(2)(D) of the CAA, often referred to as the “good neighbor” provision of the Act, requires states to prohibit certain emissions because of their impact on air quality in downwind states. Specifically, it requires all states, within 3 years of promulgation of a new or revised NAAQS, to submit SIPs that prohibit certain emissions of air pollutants because of the impact they would have on air quality in other states. 42 U.S.C. § 7410(a)(2)(D). Section 301(a)(1) of the CAA gives the Administrator of EPA general authority to prescribe such regulations as are necessary to carry out her functions under the Act. 42 U.S.C. 7601(a)(1). Section 110(c)(1) requires the Administrator to promulgate a FIP at any time within 2 years after the Administrator (a) finds that a state has failed to make a required SIP submission or that such a submission is incomplete or (b) disapproves a SIP submission, unless the state corrects the deficiency and the Administrator approves the SIP revision. 42 U.S.C. 7410(c)(1). Tribes are not required to submit state implementation plans. However, as explained in EPA's regulations outlining Tribal Clean Air Act authority, EPA is authorized to promulgate FIPs for Indian country as necessary or appropriate to protect air quality if a tribe does not submit and obtain EPA approval of an implementation plan. See 40 CFR 49.11(a).

For each FIP in this rule, EPA either (a) found that the state has failed to make a required section 110(a)(2)(D)(i)(I) SIP submission or (b) disapproved a SIP submission. In addition, EPA has determined, in each case, that there has been no approval by the Administrator of a SIP submission correcting the deficiency prior to promulgation of the FIP. EPA's obligation to promulgate a FIP arose when the finding of failure to submit or disapproval was made, and in no case has it been relieved of that obligation. (The specific findings made and actions taken by EPA are described in greater detail in the TSD entitled “Status of CAA 110(a)(2)(D)(i)(I) SIPs Supplemental Rule TSD,” which is available in the public docket for this rule.)

As noted in the SNPR, EPA proposed a SIP Call under CAA 110(k)(5) for Kansas (76 FR 763, January 6, 2011), based on its conclusion that Kansas significantly contributes to nonattainment or interferes with maintenance of the 1997 ozone NAAQS. On March 9, 2007, EPA approved a section 110(a)(2)(D)(i) SIP submission from the state of Kansas for the 1997 ozone and 1997 PM 2.5 NAAQS (72 FR 10608, March 9, 2007). This SIP submission did not rely on compliance with the Clean Air Interstate Rule (CAIR)  3 to satisfy the requirements of section 110(a)(2)(D)(i)(I). The analysis for the proposed Transport Rule, however, demonstrated that emissions from Kansas significantly contribute to nonattainment or interfere with maintenance of the 1997 ozone NAAQS in other states. Because the approved Kansas SIP does not prohibit these emissions, EPA proposed to find it substantially inadequate to meet the requirements of section 110(a)(2)(D)(i)(I) with respect to the 1997 ozone NAAQS. EPA intends to take final action on this proposal concurrent with this action or shortly thereafter. See section C below for more information on Kansas.

The five states addressed in this final rule for which EPA's analysis identifies the state's full reduction responsibility under section 110(a)(2)(D)(i)(I) with respect to the 1997 ozone NAAQS are Iowa, Kansas, Michigan, Oklahoma, and Wisconsin. The one state addressed in this final rule for which EPA's analysis identifies reductions that are necessary but may not be sufficient to satisfy section 110(a)(2)(D)(i)(I) with respect to the 1997 ozone NAAQS is Missouri. This is because, in the final Transport Rule air quality modeling control scenario in 2014, Missouri is estimated to be significantly contributing to residual nonattainment and/or interfering with residual maintenance at receptors in Brazoria and Harris Counties (Houston) in Texas, and Houston is the only area projected to remain in nonattainment in 2014. As described in the final Transport Rule (TR) preamble ( e.g., Page 48210) 76 FR 48208, August 8, 2011, only one area (Houston) is projected to remain in nonattainment for the 1997 ozone NAAQS in 2014 with the Transport Rule in place. For the upwind states linked to the receptors in this area (including Missouri), additional reductions may be necessary to fully eliminate each state's significant contribution to nonattainment and/or interference with maintenance. .Missouri was also found to contribute above the threshold to the new maintenance receptor, Allegan County, Michigan. 4

EPA has not yet determined whether additional reductions in ozone-forming emissions are necessary to address Missouri's significant contribution to downwind nonattainment and interference with maintenance, which may not be fully quantified in this rulemaking with respect to the 1997 ozone NAAQS. Additional technical analysis will be necessary to complete this determination. See section B.iii below for further discussion.

EPA concludes in this final rule that application of the methodologies to identify nonattainment and maintenance receptors and to determine significant contribution to nonattainment and interference with maintenance with respect to the 1997 ozone NAAQS, as described in the final Transport Rule, demonstrates that Iowa, Kansas, Michigan, Missouri, Oklahoma, and Wisconsin significantly contribute to nonattainment or interfere with maintenance of the 1997 ozone NAAQS in other states. EPA also concludes in this final rule that the Transport Rule NO X Ozone Season Trading Program set forth in the final Transport Rule (with minor revisions discussed in section III.F of this preamble) should be used as the FIP for five of the six states with regard to the 1997 ozone NAAQS. As discussed below, EPA received comments concerning whether, and in what amount, some of the states significantly contribute or interfere with maintenance. EPA did not receive any comments claiming that EPA should not use the Transport Rule NO X Ozone Season Trading Program as the FIP if the state is found to significantly contribute or interfere with maintenance.

EPA is finalizing a FIP for Iowa that, through implementation of the Transport Rule ozone season program, limits power plant NO X emissions starting in the 2012 ozone season.

The analysis for the final Transport Rule identified Iowa as a state that interferes with maintenance of the 1997 ozone NAAQS only for a newly-identified maintenance receptor in Allegan County, Michigan. EPA specifically requested comment in the proposed notice for this supplemental action on whether there are errors in the Agency's application of the Transport Rule methodologies with respect to Iowa's significant contribution to nonattainment and/or interference with maintenance of the 1997 ozone NAAQS. There were no public comments that identified any errors in EPA's determination of state budgets for Iowa, which demonstrated EPA's quantification of emission reductions necessary to eliminate significant contribution and interference with maintenance.

One commenter noted that inclusion of Iowa is justified. Another commenter questioned the Allegan County, Michigan receptor. For more information on the Allegan receptor, see section D below in this preamble. Other comments concerning the 2005 baseline, and “sunk costs”, are outside the scope of the proposed rule in this rulemaking, and, while these issues are not reopened in this rulemaking, EPA notes the issues have been addressed in the record of the final Transport Rule. See the docket for this rulemaking at www.regulations.gov, EPA-HQ-OAR-2009-0491.

EPA is finalizing a FIP for Michigan that, through implementation of the Transport Rule ozone season program, limits power plant NO X emissions starting in the 2012 ozone season.

In its 2010 Transport Rule proposal, EPA proposed to determine that Michigan significantly contributes to nonattainment or interferes with maintenance of the 1997 ozone NAAQS and also proposed to include Michigan in the Transport Rule ozone-season NO X program. In the analysis conducted for the final Transport Rule, Michigan is linked only to a newly-identified ozone maintenance receptor in Harford County, Maryland. EPA specifically requested comment in the proposed notice for this supplemental action on whether there are errors in the Agency's application of the Transport Rule methodologies with respect to Michigan's interference with maintenance of the 1997 ozone NAAQS.

There were two major comments relating to Michigan. One comment regarded the use of the FIP and requested a delay for a minimum of 18 months so the state could submit an approvable SIP. The matter of EPA's authority under the Clean Air Act is discussed in detail in the final Transport Rule and above in section III.A. The second comment addressed the Indian country new unit set-aside and suggested that the state is the appropriate authority to allocate new source allowances, even to units located on tribal lands. The comment, concerning the authority to allocate allowances from the Indian country new unit set-aside, is outside the scope of the proposed rule in this rulemaking, and, while issues concerning the Indian country new unit set-aside are not reopened in this rulemaking, EPA notes the issues have been addressed in the preamble to the final Transport Rule at 76 FR 48317 and 48293.

EPA is finalizing the FIP for Missouri that, through implementation of the Transport Rule ozone season program, limits power plant NO X emissions starting in the 2012 ozone season.

The analysis for the final Transport Rule identified Missouri as a state that significantly contributes to nonattainment and/or interferes with maintenance of the 1997 ozone NAAQS in Harris County, Texas, Brazoria County, Texas, and Allegan County, Michigan. EPA requested comment in the proposed notice for this supplemental action specifically on whether there are errors in the Agency's application of the Transport Rule methodologies with respect to Missouri's significant contribution to nonattainment and interference of the 1997 ozone NAAQS.

One commenter challenged the methodology used by EPA to quantify significant contribution, arguing that it was flawed because EPA's base year does not include CAIR and does not represent current air quality. As explained in the proposal, EPA did not reopen for comment the methodology developed in the final Transport Rule to quantify emissions that significantly contribute to or interfere with maintenance in another state. These comments are outside the scope of the proposed rule in this rulemaking, and, while these issues are not reopened in this rulemaking, the issues have been addressed in the record of the final Transport Rule.

One commenter stated that the proposal for this action would not require full elimination of Missouri's significant contribution. EPA stated in the preamble to this rule's proposal that for Missouri, our analysis identifies reductions that are necessary but may not be sufficient to satisfy section 110(a)(2)(D)(i)(I) with respect to the 1997 ozone NAAQS. This is because Missouri is estimated to be significantly contributing to nonattainment and/or interfering with maintenance in Brazoria and Harris Counties in Texas, as demonstrated in the final Transport Rule air quality modeling of the control scenario in 2014 (see the Air Quality Modeling Final Rule TSD in the docket to this rulemaking, for additional details).

EPA intends to conduct further analysis and provide appropriate guidance and/or rulemaking to address any remaining significant contribution to nonattainment and interference with maintenance with respect to the 1997 ozone NAAQS for any state ( e.g., Missouri) identified in the final Transport Rule and in the associated supplemental notice, for which EPA was unable to fully quantify the emissions that must be prohibited to satisfy the requirements of section 110(a)(2)(D)(i)(I) with respect to the 1997 ozone NAAQS.

A commenter questioned whether the compliance deadline established by EPA in the FIP with regard to the 1997 ozone season NAAQS is feasible or valid in light of, among other things, the commenter's suggestion that the Transport Rule NO X ozone season allowance market will not be viable. EPA has determined it is feasible for sources in Missouri to meet the 2012 budget finalized in this rule. The 2012 budget relies on control strategies that Missouri sources are already preparing to implement for the annual NO X program. These include running existing or already planned controls and making changes in dispatch (how electricity is distributed across units at a facility) that could include shifting generation from higher emitting units to lower emitting units. Sources also have further flexibility through the opportunity to purchase allowances. Twenty states have already been finalized as participants in the Transport Rule ozone season program and NO X ozone season allowances have already been traded. Trading began prior to the formal distribution of allowances, and trading volume has increased since distribution, with prices steadily decreasing. This market is following a common pattern of emission allowance markets in their introductory stages—prices are initially high and then drop as parties become familiar with the characteristics of the market through repeated iterations of bids, offers, and trades. Observed market allowance prices for the NO X ozone season program are trending toward the projected equilibrium values included in EPA's analysis of the final Transport Rule. 5

EPA is finalizing the FIP for Oklahoma that, through implementation of the Transport Rule ozone season program, limits power plant NO X emissions starting in the 2012 ozone season.

In its 2010 Transport Rule proposal, EPA proposed to determine that Oklahoma significantly contributes to nonattainment or interferes with maintenance of the 1997 ozone NAAQS and also proposed to include Oklahoma in the Transport Rule ozone-season program. In the analysis conducted for the final Transport Rule, Oklahoma was linked only to a newly-identified ozone maintenance receptor in Allegan County, Michigan. Oklahoma was not linked to any nonattainment receptors. EPA specifically requested comment in the proposed notice for this supplemental action on whether there are errors in the Agency's application of the Transport Rule methodologies with respect to Oklahoma's significant contribution to nonattainment and/or interference with maintenance of the 1997 ozone NAAQS.

Several commenters generally question the validity of EPA's conclusion that Oklahoma interferes with maintenance of the 1997 ozone NAAQS in downwind states, especially regarding the Allegan County, Michigan receptor. See the discussion of the Allegan receptor below in section III.D. Other comments regarding the CAMx air quality model, emissions inventory data, and choice of base year are outside the scope of the proposed rule in this rulemaking, and, while these issues are not reopened in this rulemaking, the issues have been addressed in the record of the final Transport Rule and this supplemental rule.

EPA also received comments regarding the size of the proposed ozone season NO X budget for Oklahoma. Some commenters argued the Oklahoma ozone season budget was incorrectly calculated because it assumed reductions that could not be feasibly achieved by the 2012 ozone season. The analysis conducted for the proposal showed that reductions in Oklahoma could be achieved through, among other actions, installation of low-NO X burners (LNBs) at about 4.4 gigawatts (GW) of coal-fired generation capacity in the state, and the shifting of dispatch to cleaner generators. Commenters disputed the ability of sources in Oklahoma to effect sufficient reductions through either of these strategies in time to meet the proposed 2012 state budget. Each identified issue is addressed below.

As to the LNBs, in the final Transport Rule, EPA found that it is technically feasible to install LNBs within a 6-month period. The shutdown of a unit and physical installation of LNBs at the unit necessarily occurs near the end of the 6-month period. Because of the timing of this final action, the units in Oklahoma would have to shut down to install the LNBs during the ozone season—the summer peak demand period for electricity in Oklahoma. Taking these units off-line during the summer peak demand period would reduce the amount of available capacity in the reliability subregion of the Southwest Power Pool that includes Oklahoma. EPA's policy case modeling suggests that this reduction in available capacity could shift this subregion below its assured planning reserve margin which is based on North American Electricity Reliability Corporation (NERC) planning reserve margins. See “Determination of State Budgets for the Final Ozone Supplemental of the Transport Rule” TSD. Because physical installation of the LNBs during the 2012 summer peak on units in Oklahoma could potentially cause the region to miss this important reliability target, EPA concludes that installation of these LNBs during the ozone season is not technically feasible. 6 Therefore, EPA is assuming that no low-NO X burners can be installed in Oklahoma prior to or during the 2012 ozone-season and is setting the Oklahoma 2012 ozone season NO X budget at a level that reflects emission reductions achievable through actions (such as changes in generation unit dispatch) that do not include additional LNB installations. EPA is setting the Oklahoma ozone season NO X budget for 2013 and beyond at the level that was proposed, i.e., to reflect NO X levels achievable with additional LNB installations that can be completed before the 2013 ozone season without necessitating the shutdown of units during the summer peak demand period in 2012.

EPA does not believe that this issue relating to LNB installation timing applies to the other four states for which EPA is finalizing a FIP in this action. Because those four states are already required to meet Transport Rule annual NO X reduction requirements (which start January 2012), and were notified of that requirement with the July 6, 2011 finalization of the Transport Rule, physical installation of LNBs near the end of the 6-month period for LNBs are not expected to occur during peak electricity demand periods. Moreover, information in the record indicates that, for units in Iowa, Michigan, Missouri, and Wisconsin, LNBs were already planned and are in the process of being installed. Therefore, EPA believes that the issue raised is unique to Oklahoma and does not justify adjusting the 2012 ozone season budgets for the four other states subject to this final action. As discussed below, EPA is finalizing the 2012 ozone season budgets as proposed for the four states, except for a few corrections in the Michigan and Wisconsin budgets addressed in section III.E, below.

Some commenters also argued that EPA erred in assuming emissions from oil/gas steam units could be significantly reduced by the 2012 ozone season. Including Oklahoma, there are a total of five ozone-season-only states subject to the Transport Rule—that is, five states that are subject to the ozone-season NO X program without also being subject to the annual NO X program. The ozone-season budgets for the four other states (Mississippi, Arkansas, Florida, and Louisiana) were finalized in the final Transport Rule which was signed and widely disseminated in July 2011. EPA did not finalize an ozone-season budget for Oklahoma at that time. EPA is finalizing the ozone-season budget for Oklahoma more than 5 months after the budgets for the other states included in the ozone-season program were finalized and less than six months before the start of the 2012 ozone season. In this respect, therefore, Oklahoma is uniquely situated.

EPA believes that units in Oklahoma will have sufficient time for compliance planning to include modest adjustments of NO X emissions at covered sources in Oklahoma ( e.g., fine-tuning of existing combustion controls). However, EPA agrees that Oklahoma utilities may not have time between finalization of this rule and the 2012 ozone season to realign firm power supply to dispatch cleaner, more cost-effective sources of generation to meet local electricity demand that is currently being met by oil/gas steam generators. Therefore, EPA is adjusting the Oklahoma state budget for the 2012 ozone season specifically on the basis of revised projected emissions at oil/gas steam generators reflecting an immediate-term dispatch pattern that maintains the firm power supply arrangements already in place to serve local electricity demand. In light of Oklahoma's unique situation, EPA is assuming for the purposes of this adjustment that projected 2012 emissions from oil/gas steam units in Oklahoma will be consistent with recently observed dispatch of this class of units in the state. EPA believes this situation is unique to Oklahoma due to the fact that sources in the other states covered by this rulemaking are already covered by a pre-existing Transport Rule FIP addressing NO X emission control, and that these sources will have had substantially more compliance planning time to consider adjustments to dispatch in advance of the 2012 ozone season.

EPA believes that the original projections of Oklahoma EGU emissions of ozone-season NO X at the Transport Rule's threshold cost-per-ton level remain achievable, through a combination of reduction measures, including LNB installations and increased dispatch of cleaner generating sources, in time for compliance in the 2013 ozone season and beyond, under the state budget as proposed. EPA is only adjusting the final Oklahoma state budget for the 2012 ozone season. See the technical support document, “Determination of 2012 Ozone Season State Emission Budgets for the Final Transport Rule Ozone Supplemental,” in the docket to this rulemaking for more details.

EPA is finalizing the FIP for Wisconsin that, through implementation of the Transport Rule ozone season program, limits power plant NO X emissions starting in the 2012 ozone season.

The analysis for the final Transport Rule identified Wisconsin as a state that interferes with maintenance only for a newly-identified 1997 ozone NAAQS maintenance receptor in Allegan County, Michigan. EPA specifically requested comment in the proposed notice for this supplemental action on whether there are errors in the Agency's application of the Transport Rule methodologies with respect to Wisconsin's significant contribution to nonattainment and interference of the 1997 ozone NAAQS. There were no comments with respect to Wisconsin's significant contribution to nonattainment and/or interference of the 1997 ozone NAAQS or with respect to EPA's proposed use of the Transport Rule ozone season program as the FIP.

EPA is finalizing its determination that Kansas significantly contributes to nonattainment or interferes with maintenance in another state with respect to the 1997 ozone NAAQS. EPA is not finalizing the proposed FIP for Kansas at this time. As explained below, EPA intends to take final action on its proposed SIP Call for Kansas concurrent with this action or shortly thereafter. If Kansas fails to submit a SIP that meets the requirements of 110(a)(2)(D)(i)(I) with respect to the 1997 ozone standards by any deadline established in any final SIP Call, EPA would take action as appropriate to satisfy its obligation to promulgate a FIP to address the statutory requirements.

The analysis for the final Transport Rule and the analysis for the 2010 proposal both identified Kansas as a state that interferes with maintenance of the 1997 ozone NAAQS in another state. In its 2010 Transport Rule proposal, EPA proposed to determine that Kansas significantly contributes to nonattainment or interferes with maintenance of the 1997 ozone NAAQS and thus proposed to include Kansas in the Transport Rule ozone-season NO X program. The analysis conducted for the final Transport Rule, demonstrated that Kansas is linked only to a newly-identified ozone maintenance receptor in Allegan County, Michigan. As noted above, EPA decided to provide an additional opportunity to comment on its conclusions with respect to states that were linked, in the final Transport Rule analysis, only to receptors that were identified for the first time in that analysis. In that supplemental proposal, EPA specifically requested comment in the proposed notice to this supplemental action on whether there are errors in the Agency's application of the Transport Rule methodologies with respect to Kansas's significant contribution to nonattainment and interference of the 1997 ozone NAAQS. After a review of comments received, EPA has concluded that Kansas interferes with maintenance of the 1997 ozone NAAQS in Allegan County, Michigan.

This action does not take final action on the portion of the proposal relating to whether to use the Transport Rule ozone season program as the FIP for Kansas. In the 2010 Transport Rule proposal, EPA summarized the status of the CAA section 110(a)(2)(D)(i)(I) SIP for the state of Kansas with regard to the 1997 ozone NAAQS. As explained therein, EPA had previously approved a section 110(a)(2)(D)(i) SIP submission from the state of Kansas for the 1997 ozone and 1997 PM 2.5 NAAQS on March 9, 2007 (72 FR 10608). That SIP submission did not rely on the unlawful CAIR trading programs or rely in any way on the conclusion in CAIR that compliance with CAIR was sufficient to satisfy a state's 110(a)(2)(D)(i)(I) obligations with respect to the 1997 ozone and PM 2.5 NAAQS. Kansas is unique in this regard because no other state covered by the Transport Rule or this action has an approved SIP that did not rely on the CAIR requirements, which the DC Circuit held were not sufficient to satisfy the requirements of 110(a)(2(D)((I)(I) of the Act. For these reasons, EPA does not have an obligation under section 110(c)(1) of the Act to promulgate a FIP for Kansas at this time. Therefore, in a separate action, EPA proposed a SIP Call under CAA section 110(k)(5) for Kansas (76 FR 763, January 6, 2011), and proposed to find the Kansas SIP substantially inadequate to meet the requirements of 110(a)(2)(D)(i)(I) with respect to the 1997 ozone NAAQS. This proposal was based on the proposed conclusion that emissions from Kansas are significantly contributing to nonattainment or interfering with maintenance of the 1997 ozone NAAQS in another state. EPA intends to take final action on the proposed SIP Call concurrently with this action or shortly thereafter.

The final Transport Rule air quality modeling identified a new maintenance receptor in Allegan County, Michigan, to which upwind states interfere with maintenance of the NAAQS.

Some commenters noted that EPA took final action on September 24, 2010 to redesignate the Allegan County, Michigan nonattainment area to attainment for the 1997 8-hour ozone standard. 75 FR 58312; September 24, 2010. Moreover, commenters noted that EPA in the same action approved Michigan's “maintenance plan” for maintaining the 8-hour ozone NAAQS through 2021 in the same area. Based on this observation, these commenters asserted that EPA should not consider Allegan County to be a “maintenance receptor” for purposes of the Transport Rule. Accordingly, these commenters believed that EPA should not be requiring emission reductions from upwind states on the basis of the contributions to Allegan County, Michigan.

EPA agrees that the nonattainment area containing Allegan County, Michigan was redesignated by EPA on September 24, 2010, and that EPA approved the state of Michigan's maintenance plan for the area. The area, therefore, is currently considered to be a maintenance area and not a nonattainment area.

EPA, however, disagrees with commenters' conclusion that a maintenance area ( i.e., an area that has been redesignated and is thus subject to a maintenance plan) should not be considered a maintenance receptor in EPA's analysis for a number of reasons. First, EPA notes that ozone values at the Allegan location, historically and in the future, are strongly influenced by interstate transport. Second, the methodology for identifying “maintenance” receptors relevant to upwind state contributions in the Transport Rule is a unique test designed to satisfy the “interfere with maintenance” prong of 110(a)(2)(D)(i)(I); EPA believes this methodology responds to the U.S. Court of Appeals for the DC Circuit in the July 20, 2008 decision in North Carolina v. EPA, 531 F.3d 896, ruling on the deficiency of CAIR with regard to this 110(a)(2)(D)(i) obligation. Finally, as stated in the preamble to the final Transport Rule, EPA's test for identifying “maintenance receptors” for the Transport Rule appropriately differs from, and is not dependent on, recent monitoring data, including data used to re-designate an area as being in attainment.

Allegan County is a mostly rural county located in southwestern Michigan along Lake Michigan. EPA source apportionment modeling for 2012 shows that for the ozone monitor in Allegan County, 96 percent of ozone is attributable to out-of-state emissions. As such, Allegan Country provides a particularly compelling example of the limited ability of any individual state to unilaterally control air quality outcomes within its borders. See Air Quality Modeling Final Rule TSD, EPA-HQ-OAR-2009-0491-4140 for details.

Table III.D-1 provides more information on the nature of ozone at this site. In many years in the available data set, there are a few days with markedly higher ozone values than are measured for the remainder of the year. Whether those values lead to exceedances of the 8-hour ozone NAAQS is dependent on whether that phenomenon extends to the 4th highest day of the season and on the degree to which this occurs in consecutive years. Accordingly, this site's ozone design value can experience significant variability from year to year.

Table III.D-1 shows that the 1st high annual measured value over the last 9 years has ranged from 92-113 ppb, except in 2010 when the 1st high value was only 77 ppb. The 4th high values have ranged between 73 and 95 ppb. There were three consecutive years with low 4th high values below 80 ppb (2007-2009) and there was one period (2005-2007) with consecutive 4th high values greater than 90 ppb. The fact that the 4th high value dropped from 94 ppb in 2007 to 73 ppb 2008, and then increased again from 73 ppb in 2010 to 87 ppb in 2011 shows that the pattern of regional transport and meteorology are the primary factors in the year to year variability of the observed design value at this site. The magnitude of the year-to-year changes is too large to be caused solely by emission reductions or increases in Allegan County, or even in upwind states. Based on EPA's CAMx source apportionment modeling, if emission reductions were solely responsible for the improvement in ozone concentrations in Allegan County from 2007 to 2008, all of the NO X emissions in the upwind states of Illinois, Indiana, and Missouri would have to have dropped by greater than 50 percent between those years. Since that is clearly not the case, the data show that meteorological conditions and regional transport patterns may still effect substantial changes in ozone in Allegan County, which supports its identification as a receptor whose maintenance of the NAAQS may be jeopardized without further emission reductions in upwind states.

EPA's rationale for approving the maintenance plan for Allegan County is described in the proposed approval notice (75 FR 42018; July 20, 2010). A number of tables in that proposed approval compared current emissions to future emissions for VOC and NO X sources located within the Allegan County nonattainment area. The analysis concluded that projected emission levels, for sources within the nonattainment area, were decreasing throughout the maintenance period. The ozone redesignation and maintenance plan analysis completed by Michigan meets EPA guidance but uses a different test and data that are less current than what were applied in the Transport Rule. The maintenance plan test for the local SIP requires an analysis to show that emissions in the local area will not increase, thereby showing that the area will be able to maintain the ozone NAAQS. The redesignation is based on having current air quality data which shows that the area is attaining the NAAQS and the area meets all other Clean Air Act requirements for redesignation.

In the North Carolina decision concerning CAIR, the Court directed EPA to give independent meaning to the “interfere with maintenance” prong of CAA section 110(a)(2)(D)(i)(I) and to separately identify upwind sources that interfere with downwind maintenance. In particular, the Court expressed concern that CAIR did not adequately protect areas that find themselves barely in attainment by the statutory deadline and suggested that EPA needed to take into account the historic variability of a downwind area's ozone levels in determining whether an upwind source would cause that downwind area to have trouble maintaining the NAAQS.

Accordingly, EPA in the Transport Rule explicitly gave independent meaning to the “interfere with maintenance” prong of section 110(a)(2)(D)(i)(I) by evaluating contributions to maintenance receptors as well as contributions to identified nonattainment receptors. The maintenance methodology used an approach that examined multiple design value periods (from 2003-2007) projected to 2012. This allowed an estimate of variability in future design values, based on past measured variability. A detailed discussion of EPA's new approach, rationale, and responses to comments on the approach, including the methodology for identifying maintenance receptors, is found in section V.C.2 of the preamble to the final Transport Rule (76 FR 48227).

In the application in the final Transport Rule of that approach, Allegan County was identified as a maintenance receptor but not as a nonattainment receptor. That is, for Allegan County, EPA projected that, under “average” conditions that would take place in the relevant area in the future, Allegan County would not exceed the ozone NAAQS in 2012. On the other hand, EPA projected, under conditions reflecting the maximum design values in the relevant area during 2003-2007, that Allegan County could exceed the ozone NAAQS. EPA's analysis took into account the fact that previously experienced meteorological conditions ( e.g., dominant wind direction, temperatures, and air mass patterns) promoting ozone formation may reoccur in the relevant area in the future. Consistently applying this approach throughout the relevant area, EPA found that Allegan County exceeded the threshold for inclusion as a maintenance receptor.

EPA's methodology for identifying nonattainment and maintenance receptors is based on modeled projections of measured air quality at specific monitors, not on the designation status of an area. 7 EPA believes this approach is appropriate for the reasons explained in section V.C.2 of the preamble to the final Transport Rule. 76 FR 48230. EPA does not believe it would be appropriate to rely on the designation status of an area to determine air quality or for determining whether one state is contributing significantly to nonattainment or interfering with maintenance of another state under CAA section 110(a)(2)(D)(i)(I). The CAA does not require EPA to do so. As EPA explained in the proposal to designate Allegan County as an attainment area, an area's transport requirements under section 110(a)(2)(D) are not linked to an area's attainment designation and continue to apply regardless of an area's designation status. 75 FR 42018, 42023. The U.S. Court of Appeals for the DC Circuit's decision in Michigan v. EPA, 213 F.3d 663 (2000), further supports the position that determinations of significant contribution or interference with maintenance under CAA section 110(a)(2)(D)(i)(I) is most appropriately based on current air quality and modeling, rather than an area's attainment designation. In fact, it would be impractical given the timing of when designations are made and nonattainment SIPs due to base such a determination on an area's attainment or maintenance designation, suggesting that Congress did not intend section 110(a)(2)(D)(i)(I) SIPs to be linked in any way to designation status. Further, even areas that have never been in nonattainment or have been re-designated to attainment (including those where the majority of pollution comes from out of state) continue to be at risk for falling into nonattainment as a result of emissions from upwind states, as the North Carolina court recognized, 531 F.3d at 910.

Generally, in judging whether to re-designate a given area, EPA evaluates local emissions as part of the “maintenance plan.” However, if EPA proposes to re-designate areas to attainment, this does not remove the need to address emissions in upwind states which could interfere with the maintenance plan. Without a cap on emissions in upwind states with a significant impact, upwind state emissions might in fact grow, increasing the possibility that the area being evaluated will not be able to maintain attainment. Furthermore, since upwind states are not required to have contingency measures under a downwind state's SIP, it is incumbent on EPA to ensure that states with significant impacts are appropriately controlled.

Additionally, EPA notes that the Transport Rule was based upon newer and more extensive information than was available at the time of our approval of Michigan's “maintenance plan” for Allegan County, and the more recent information suggests Allegan County may have difficulty maintaining attainment, notwithstanding its 2010 redesignation. EPA believes that the maintenance requirements in the Transport Rule serve to reinforce and supplement the state's maintenance plan, providing important support by greatly decreasing the probability that emissions from upwind states could lead to future nonattainment. As discussed above, EPA's projections for 2012 indicate that 96 percent of ozone at the Allegan County receptor is created by precursor emissions originating from states other than Michigan. Clearly, the ability to maintain the ozone NAAQS in Allegan Country is largely influenced by upwind state emissions.

Commenters in Oklahoma noted that EPA should use actual monitoring data, “which reflects CAIR reductions,” to demonstrate that Allegan County would remain in attainment. They cited ambient measurements of 74 ppb for the 3-year average for 2008-2010. Recent preliminary air quality data for 2011 serve to reinforce EPA's view that the variability in meteorology is a significant issue for the Allegan receptor's ability to maintain the NAAQS. In 2011, there were four ambient values exceeding the 85 ppb level of the 1997 NAAQS, with a high value of 98 ppb. In other words, the 4th high value for 2011 exceeded the NAAQS. These values do not yet lead to a conclusion that the area is in nonattainment because the preliminary 2009-2011 design value—the average of the 4th high values for 2009, 2010, and 2011  8 —remains below 85 ppb. However, if the 4th high ambient values for 2012 and 2013 were the same as the preliminary values for 2011, the area would be in violation of the NAAQS. But even with relatively lower ozone concentrations across much of the country in the 2008-2010 period, the preliminary 2011 data show that Allegan County clearly continues to experience high ozone days, suggesting that this location may have maintenance problems that may eventually lead to violations of the 1997 ozone NAAQS. The data illustrate the highly variable nature of ozone at the Allegan location and reinforce the wisdom of taking variability into account in our “maintenance” analysis.

EPA is finalizing state ozone season NO X emission budgets for covered units (generally large electric generating units)  9 in Iowa, Michigan, Missouri, Oklahoma, and Wisconsin under the FIPs for the 1997 ozone NAAQS. As noted above, EPA is not taking final action on the proposed Kansas FIP at this time.

EPA is finalizing these budgets, adjusted if necessary based on comments received, as part of the FIPs for these five states. These budgets and the associated variability limits are presented in Table III.E-1. Note that EPA has proposed, in a separate rulemaking (76 FR 63860), to revise the effective date of the assurance penalty provisions so that they start on January 1, 2014 instead of January 1, 2012. If EPA finalizes that revision, the assurance provisions and variability limits below would not apply for 2012 and 2013. The new unit set-asides and Indian country new unit set-aside, if applicable, for these five states are presented in Table III.E-2. For illustrative purposes only, in order to provide a complete picture of the Transport Rule ozone season program, Tables III.E-1 and III.E-2 also include information concerning the other states in that program. However, the proposed rule did not reconsider or request comment on any issues concerning the other states, and neither the proposed rule nor this final rule reopens any issues concerning these other states.

In section III.B.iv, EPA explained that this final rule adjusts the Oklahoma state budget only for the 2012 ozone season, reflecting revised emission projections that do not include LNB installation or the redispatching of oil/gas steam units by the 2012 ozone season. For 2013 onwards, the Oklahoma ozone season budget remains at the level EPA proposed.

In the October 6, 2011 proposed Revisions to the Transport Rule (also known as the Cross-State Air Pollution Rule), EPA proposed, and invited comment on, adjustments to the annual NO X emission budgets for both Michigan and Wisconsin. For both states, the budget was proposed to be increased based on revised assumptions regarding Selective Catalytic Reduction (SCR) technology previously assumed to be installed and operating at specific units in 2012. In the case of Michigan, the budget was proposed to be increased to account for Monroe Unit 2 not having a SCR in 2012 or 2014. For Wisconsin, a similar adjustment was proposed to account for JP Madgett Unit 1 not having a SCR in 2012 or 2014. EPA recognized that these revised input assumptions would also affect the calculation of the states' ozone-season budgets, and EPA is now applying that information to the determination of these states' ozone season NO X budgets in this final rule. Applying the updated information regarding Monroe Unit 2 in Michigan and JP Madgett Unit 1 in Wisconsin results in budgets for Michigan and Wisconsin that are 2,289 tons and 1,080 tons, respectively, larger than the proposed budgets for these states. The final budgets are reflected in Table III.E-1.

As noted above, EPA is finalizing for the five states the ozone season new unit set-asides for allowance allocations to new units, determined in the same manner as for the other states covered in the Transport Rule ozone season NO X program. This approach is described in section VII.D.2, “Allocations to New Units,” of the preamble to the final Transport Rule. Table III.E-2 shows the new unit set-aside for Iowa, Michigan, Missouri, Oklahoma, and Wisconsin as a percent of state ozone season NO X emissions. Table III.E-3 shows the new unit set-aside and Indian country new unit set-aside, as appropriate, for the five states and, for the reasons discussed above, the other states in the Transport Rule ozone season program.

In addition, as described in section VII.D.2, “Allocations to New Units,” of the preamble to the final Transport Rule, EPA is providing a mechanism to make allowances available in the future for new units built in Indian country. Table III.E-3 shows the Indian country set-asides EPA is finalizing to set aside Transport Rule ozone-season allowances from the budgets of the states addressed in this final rule that have Indian country within their borders ( i.e., Iowa, Michigan, Missouri, and Wisconsin). As explained in the final Transport Rule, EPA will administer these Indian country new unit set-asides regardless of whether a state replaces its Transport Rule FIP with an approved SIP. EPA received one comment from a state regarding the size of its Indian Country new unit set-aside. However, there was no information submitted showing that EPA's calculations or methodologies were in error. Therefore, EPA is finalizing the new unit set-asides and Indian country new unit set-asides, as proposed, with adjustments to reflect any revisions to the appropriate budgets, for the five states in this final action.

Finally, EPA is finalizing the unit-level allocations of Transport Rule NO X ozone season allowances under the FIP to existing covered units in Iowa, Michigan, Missouri, Oklahoma, and Wisconsin. These allocations are presented in the TSD entitled “Final Unit-Level Ozone Season NO X Allowance Allocations to Existing Units in Five States: Supplemental Final Rule TSD,” which is available in the public docket for this rule and on the Web at http://www.epa.gov/crossstaterule . The methodology and procedures used for allocations to existing units covered by the Transport Rule ozone season NO X program are specified in section VII.D, “Allocation of Emission Allowances,” of the preamble to the final Transport Rule and in the TSD entitled “Allowance Allocation Final Rule TSD,” which is available in the public docket for this rule. The TSD entitled “Final Unit-Level Ozone Season NO X Allowance Allocations to Existing Units in Five States: Supplemental Final Rule TSD” also describes how to access publicly available downloadable Excel spreadsheets with the unit-level allowance allocations and the supporting data EPA used in applying the final Transport Rule existing unit allocation methodology to eligible units in each of the five states in this final rule on the Web at http://www.epa.gov/crossstaterule .

As discussed above, EPA concludes in this final rule that the Transport Rule NO X Ozone Season Trading Program set forth in the final Transport Rule should be used as the FIP for Iowa, Michigan, Missouri, Oklahoma, and Wisconsin with regard to the 1997 ozone NAAQS. In the SNPR, EPA proposed that the implementation of the Transport Rule ozone season program be identical for these five states to implementation for the other states subject to this program. Under this final rule, the implementation of this program for these five states is the same as for the other states, except for the deadlines for submission of allocations for existing units for 2013.

Under the Transport Rule, states have the option of submitting three types of SIP revisions that, if approved, change certain provisions of the Transport Rule NO X Ozone Season Trading Program. First, a state may submit a SIP revision setting forth allocations to existing units for 2013. Second, a state may submit an abbreviated SIP that replaces the allowance allocation provisions in the FIP to existing and new units starting in 2014 or any year thereafter. Third, a state may submit a full SIP that replaces the FIP entirely (except for any provisions concerning units in any Indian country within the borders of the state) but substantively changes only the allowance allocation provisions starting in 2014 or any year thereafter.

With regard to the first type of SIP revision, involving only 2013 allocations to existing units, the final Transport Rule set a series of deadlines concerning submission, approval, and implementation of state-determined 2013 existing-unit allocations. Specifically, states under the final Transport Rule were required to inform EPA of their intent to submit 2013 allocations for existing units by November 7, 2011 and must submit these allocations by April 1, 2012, and the Administrator will record the allocations, if approved, by October 1, 2012. Because this series of sequential deadlines began about six months before the issuance and the publication of this final rule, EPA is revising the final Transport Rule (including the Transport Rule NO X Ozone Season Trading Program) to establish an analogous series—only for Iowa, Michigan, Missouri, Oklahoma, and Wisconsin—of deadlines for 2013 allocations of Transport Rule NO X Ozone Season allowances using dates that are about six months later than the dates in the generally applicable series of 2013 allocation-related deadlines. For example, the five states must inform EPA of their intent to submit 2013 allocations for existing units by the date 70 days after publication of this final rule in the Federal Register and must submit these allocations by October 1, 2012, and the Administrator will record the allocations, if approved, by April 15, 2013. 12

With regard to the other two types of SIP revisions (abbreviated SIPs and full SIPs), all of the deadlines for SIP submission and for submission of allocations (or results of auctions, if any) for the other states in the Transport Rule ozone season program are about 11 months or more after the issuance or the publication of the final Transport Rule, and no commenters suggested changing these deadlines for Iowa, Michigan, Missouri, Oklahoma, and Wisconsin. Consequently, EPA is finalizing these deadlines related to abbreviated SIPs and full SIPs. The submission deadlines and process for abbreviated SIPs and full SIPs for all states (including the five states covered by this final rule) in the Transport Rule ozone season program are found in section X, “Transport Rule State Implementation Plans,” of the preamble to the final Transport Rule.

Finally, under the final Transport Rule, the first Transport Rule ozone season trading program runs from May 1, 2012 through September 30, 2012. For the reasons discussed above, the FIPs for Iowa, Michigan, Missouri, Oklahoma, and Wisconsin apply the Transport Rule ozone-season NO X requirements to sources in those states in the same manner the requirements are applied to sources in other states covered by Transport Rule ozone-season provisions.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is a “significant regulatory action.” Accordingly, EPA submitted this action to the Office of Management and Budget (OMB) for review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011) and any changes made in response to OMB recommendations have been documented in the docket for this action. This action has also been determined to be economically significant. EPA's regulatory impacts analysis (RIA) of the July 2011 final Transport Rule included modeling of ozone-season NO X reductions for the states covered in this final rulemaking. While the results of that analysis cannot be disaggregated to isolate the impacts of this rulemaking alone, that analysis does include a comprehensive and fully detailed accounting of the costs and benefits of the Transport Rule programs, inclusive of the impacts of this rulemaking. 13

EPA is required to document the information collection burden imposed by the Transport Rule program on industry, States, and EPA in an information collection request (ICR). The ICR describes the information collection requirements associated with the final Transport Rule program inclusive of this proposal and estimates the incremental costs of compliance with all such requirements, such as the requirement for industry to monitor, record, and report emissions data to EPA.

The ICR for the Transport Rule Program inclusive of this supplemental rule was submitted for approval to OMB under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., and was approved under OMB control number 2060-0667. EPA believes that there are no information collection requirements or burden beyond those reported in the Transport Rule program inclusive of this supplemental rule.

The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure 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 final rule on small entities, small entity is defined as:

(1) A small business as defined by the Small Business Administration's (SBA) regulations at 13 CFR 121.201. For the electric power generation industry, the small business size standard is an ultimate parent entity defined as having a total electric output of 4 million megawatt-hours (MW-hour) or less in the previous fiscal year.

(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; and

(3) A small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.

After considering the economic impacts of the Transport Rule program inclusive of this supplemental rule on small entities, as described in section XII.C of the preamble to the final Transport Rule, EPA certifies that this action will not have a significant economic impact on a substantial number of small entities (No SISNOSE). This certification is based on the economic impact of the final Transport Rule inclusive of this supplemental rule on all affected small entities across all industries affected. EPA assessed the potential impact of the final Transport Rule on small entities and found that there are about 660 potentially affected small units ( i.e., greater than 25 MW and generating less than 4MM MWh) out of 3,625 existing units in the TR region. The majority of these EGUs are owned by entities that do not meet the small entity definition. The remaining 271 of the 660 EGUs are owned by 108 potentially affected small entities and are likely to be affected by this rule. EPA estimates that 24 of the 108 identified small entities will have annualized costs greater than 1 percent of their revenues, and the other 84 are projected to incur costs less than 1 percent of revenues. Eleven small entities out of 108—only about 10 percent—are estimated to have annualized costs greater than 3 percent of their revenues, which factors into EPA's finding of no SISNOSE. EPA believes that the provisions of the Regulatory Flexibility Act are covered by and reported in section XII.C of the preamble to the final Transport Rule.

Although this final rule will not have a significant economic impact on a substantial number of small entities, EPA nonetheless has tried to reduce the impact of this rule on small entities. In EPA's modeling, most of the cost impacts for these small entities and their associated units are driven by lower electricity generation relative to the base case. Another main driver of small entity impacts are higher fuel costs, which the affected units would incur irrespective of whether they had to comply with this rule. In addition, EPA's decision to exclude units smaller than 25 MWe has already significantly reduced the burden on hundreds of small entities. Hence, EPA has concluded that there is no SISNOSE for this rule.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531-1538, requires federal agencies, unless otherwise prohibited by law, to assess the effects of their regulatory actions on state, local, and tribal governments and the private sector. The Transport Rule program inclusive of this supplemental rule contains a Federal mandate that may result in expenditures of $100 million or more for state, local, and tribal governments, in the aggregate, or the private sector in any one year. Accordingly, EPA has prepared under section 202 of the UMRA a written statement that is summarized in section XII.D of the preamble to the final Transport Rule.

Consistent with the intergovernmental consultation provisions of section 204 of the UMRA, EPA held consultations with the governmental entities affected by the final Transport Rule and this supplemental rule. As detailed in section XII.D of the preamble to the final Transport Rule, EPA participated in informational calls with the Environmental Council of the States (ECOS) and the National Governors Association to provide information about the January 7, 2011 NODA  14 directly to state and local officials and conducted consultations with federally recognized tribes prior to finalizing the final Transport Rule and issuing the supplemental notice of proposed rulemaking for the action being finalized here for inclusion of six additional states (of which only three being finalized today—Iowa, Michigan, and Wisconsin—have Indian country within their boundaries).

EPA believes that no unfunded mandates have been created by the Transport Rule program inclusive of this action. Neither the final Transport Rule nor the provisions in this SNPR have regulatory requirements that might significantly or uniquely affect small governments.

As described in section XII.E of the preamble to the final Transport Rule, EPA has concluded that the Transport Rule program inclusive of this supplemental rule does not have federalism implications. Thus, Executive Order 13132 does not apply to the final Transport Rule or to this SNPR.

Under Executive Order 13175 (65 FR 67249, November 9, 2000), EPA may not issue a regulation that has tribal 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 tribal governments, or EPA consults with tribal officials early in the process of developing the proposed regulation and develops a tribal summary impact statement. EPA has concluded that this action may have tribal implications. As described in section XII.F of the preamble to the final Transport Rule, EPA believes that there has been proper consultation and coordination with Indian tribal governments for the Transport Rule program inclusive of this supplemental rule.

As required by section 7(a) of the Executive Order, EPA's Tribal Consultation Official has certified that the requirements of the Executive Order have been met in a meaningful and timely manner. A copy of the certification is included in the docket for the final Transport Rule.

Executive Order 13045 (62 FR 19,885, April 23, 1997) applies to any rule that: (1) Is determined to be “economically significant” as defined under EO 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of this planned rule on children, and explain why this planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.

As described in section XII.G of the preamble to the final Transport Rule, the Transport Rule program inclusive of this supplemental rule is not subject to Executive Order 13045 because it does not involve decisions that increase environmental health or safety risks that may disproportionately affect children. The EPA believes that the emissions reductions from the strategies in the Transport Rule program inclusive of this action will further improve air quality and will further improve children's health.

Executive Order 13211 (66 FR 28355, May 22, 2001) provides that agencies shall prepare and submit to the Administrator of the Office of Regulatory Affairs, OMB, a Statement of Energy Effects for certain actions identified as “significant energy actions.” Section 4(b) of Executive Order 13211 defines “significant energy action” as “any action by an agency (normally published in the Federal Register ) that promulgates or is expected to lead to the promulgation of a final rule or regulation, including notices of inquiry, advance notices of proposed rulemaking, and notices of proposed rulemaking: (1)(i) That is a significant regulatory action under Executive Order 12866 or any successor order, and (ii) is likely to have a significant adverse effect on the supply, distribution, or use of energy; or (2) that is designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action.” This rule is a significant regulatory action under Executive Order 12866, and this rule is likely to have a significant adverse effect on the supply, distribution, or use of energy. EPA prepared a Statement of Energy Effects for the Transport Rule program inclusive of this supplemental rule which appears in section XII.H of the preamble to the final Transport Rule.

EPA believes that there is no impact to the energy supply beyond that which is reported for the Transport Rule program inclusive of this supplemental rule in the final Transport Rule.

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 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. NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. As described in section XII.I of the preamble to the final Transport Rule, the Transport Rule program inclusive of this supplemental rule will require all sources to meet the applicable monitoring requirements of 40 CFR part 75. Part 75 already incorporates a number of voluntary consensus standards.

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, low-income, and Tribal populations in the United States. During development of this Transport Rule program inclusive of this supplemental rule, EPA considered its impacts on low-income, minority, and tribal communities in several ways and provided multiple opportunities for these communities to meaningfully participate in the rulemaking process. As described in section XII.J of the preamble to the final transport Rule, EPA believes that the final remedy in the Transport Rule program inclusive of this supplemental rule addresses potential environmental justice concerns about localized hot spots and reduces ambient concentrations of pollution where they are most needed by sensitive and vulnerable populations.

EPA believes that the vast majority of communities and individuals in areas covered by the Transport Rule program inclusive of this action, including numerous low-income, minority, and tribal individuals and communities in both rural areas and inner cities in the eastern and central U.S., will see significant improvements in air quality and resulting improvements in health. EPA's assessment of the effects of the final Transport Rule program inclusive of this supplemental rule on these communities is detailed in section XII.J of the preamble to the final Transport Rule. Based on this assessment, EPA concludes that we do not expect disproportionately high and adverse human health or environmental effects on minority, low-income, or tribal populations in the United States as a result of implementing the Transport Rule program inclusive of this action.

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A Major rule cannot take effect until 60 days after it is published in the Federal Register. This action is a “major rule” as defined by 5 U.S.C. 804(2). This rule will be effective February 27, 2012.

Petitions for judicial review of this action must be filed in the United States Court of Appeals for the District of Columbia Circuit by February 27, 2012. Section 307(b)(1) of the CAA indicates which Federal Courts of Appeal have venue for petitions of review of final actions by EPA. This section provides, in part, that petitions for review must be filed in the Court of Appeals for the District of Columbia Circuit if (i) the agency action consists of “nationally applicable regulations promulgated, or final action taken, by the Administrator,” or (ii) such action is locally or regionally applicable, if “such action is based on a determination of nationwide scope or effect and if in taking such action the Administrator finds and publishes that such action is based on such a determination.”

Any final action related to the Transport Rule is “nationally applicable” within the meaning of section 307(b)(1). Through this rule, EPA interprets section 110 of the CAA, a provision which has nationwide applicability. In addition, the Transport Rule applies to 27 States. The Transport Rule is also based on a common core of factual findings and analyses concerning the transport of pollutants between the different states subject to it. For these reasons, the Administrator also is determining that any final action regarding the Transport Rule is of nationwide scope and effect for purposes of section 307(b)(1). Thus, pursuant to section 307(b) any petitions for review of final actions regarding the Transport Rule must be filed in the Court of Appeals for the District of Columbia Circuit within 60 days from the date final action is published in the Federal Register.

Filing a petition for reconsideration of this action does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed and shall not postpone the effectiveness of such rule or action. In addition, pursuant to CAA section 307(b)(2) this action may not be challenged later in proceedings to enforce its requirements.

For the reasons set forth in the preamble, parts 52 and 97 of chapter I of title 40 of the Code of Federal Regulations are amended as follows:

Section 129(a)(5) of the CAA requires EPA to conduct a 5-year review of the solid waste incinerator new source performance standards (NSPS) and EGs and revise both, as appropriate. On October 6, 2009, EPA took final action in the Federal Register to revise HMIWI rules under sections 111 and 129 of the CAA. See 74 FR 51368. This revision was made pursuant to the U.S. Court of Appeals for the District of Columbia Circuit decision which remanded EPA's previous HMIWI regulations, and required that EPA provide further explanation to justify EPA's determination on the minimum regulatory “floors” for new and existing HMIWI. The October 6, 2009 revision also satisfies the CAA Section 129(a)(5) requirement to conduct a review of the standards every 5 years. Section 129(b)(2) of the CAA requires states to submit to EPA for approval state plans and revisions that implement and enforce the amended EGs, in this case, 40 CFR part 60, subpart Ce. State plans and revisions must be at least as protective as the EGs, and become federally enforceable as a section 111(d)/129 plan revision upon approval by EPA. The procedures for adoption and submittal of state plans and revisions are codified in 40 CFR part 60, subpart B.

The required Florida 111(d)/129 Plan revision was submitted by FDEP to EPA on December 21, 2010. EPA has reviewed the plan revision for existing HMIWI units in the context of the requirements of 40 CFR part 60, and subparts B and Ce, as amended. State plans must include the following nine essential elements: (1) Identification of legal authority, (2) identification of mechanism for implementation, (3) inventory of affected facilities, (4) emissions inventory, (5) emissions limits, (6) compliance schedules, (7) testing, monitoring, recordkeeping, and reporting, (8) public hearing records, and (9) annual state progress reports on facility compliance.

Federal regulations found at 40 CFR 60.26 require the plan to demonstrate that the State has legal authority to adopt and implement the emission standards and compliance schedules. FDEP has demonstrated that it has the legal authority to adopt and implement the emission standards and compliance governing MWC emissions. FDEP's legal authority is derived from state law found at Florida Statutes (F.S.) Sec. 403.031 (Definitions), F.S. Sec. 403.061 (Department powers and duties), F.S. Sec. 403.0872 (Title V air operating permits), and F.S. Sec. 403.8055 (Authority to adopt federal standards by reference). F.S. Subsections 403.061(6), (7), (8), and (13) give the authority for obtaining information and for requiring recordkeeping, and use of monitors. F.S. Subsection 403.061(35) gives the department authority to exercise the duties, powers, and responsibilities required of the State under the CAA. The sections of the Florida Statutes that give authority for compliance and enforcement authority are F.S. Sec. 403.121 (Judicial and administrative remedies), F.S. Sec. 403.131 (Injunctive relief), F.S. Sec. 403.141 (Civil remedies), and F.S. Sec. 403.161 (Civil and criminal penalties). Finally, F.S. Sec. 119.07 is the authority for making the information available to the public. Furthermore, FDEP has submitted and EPA has approved a previous Florida 111(d)/129 Plan for HMIWIs that demonstrate the required legal authority (40 CFR 62.2370). Therefore, the Plan meets the requirements of 40 CFR 60.26.

The subpart B provision at 40 CFR 60.24(a) requires that state plans include emissions standards, defined 40 CFR 60.21(f) as “a legally enforceable regulation setting forth an allowable rate of emissions into the atmosphere, or prescribing equipment specifications for control of air pollution emissions.” Florida Administrative Code (F.A.C.) Chapter 62-204.800, “Federal Regulations Adopted by Reference” has been amended to incorporate revisions to subpart Cb. These amendments to F.A.C. Rule 62-204.800(8) and (9), for Standards of Performance for New Stationary Sources and Emission Guidelines and Compliance Times, respectively, were proposed on October 8, 2010, and became effective on December 30, 2010. These rules meet the requirement of 40 CFR 60.24(a) to have a legally enforceable emission standard.

Federal regulations found at 40 CFR 60.25(a) require each state plan to include a complete source inventory of all HMIWI units. FDEP has identified ten (10) affected facilities. An affected facility is not exempt from applicable sections 111(d)/129 requirements because it is not listed in the inventory compiled by FDEP. The affected facilities identified by FDEP are shown in the table below:

Federal regulations found at 40 CFR 60.25(a) require that each state plan include an emissions inventory that estimates emissions of the pollutant regulated by the EGs. Emissions from HMIWI units contain organics (dioxins/furans), metals (cadmium, lead, mercury, particulate matter, opacity), and acid gases (hydrogen chloride, sulfur dioxide, and nitrogen oxides). FDEP submitted an emissions inventory of HMIWI units as part of its state plan. This emissions inventory contains HMIWI unit emissions rates for each regulated pollutant for each designated facility based on the most recent stack test data. This meets the emission inventory requirements of 40 CFR 60.25(a).

Federal regulations found at 40 CFR 60.24(c) specify that the state plan or revision must include emission standards that are no less stringent than the EGs, except as specified in 40 CFR 60.24(f), which allows for less stringent emission limitations on a case-by-case basis if certain conditions are met. This exception clause is superseded by section 129(b)(2) of the CAA, which requires that state plans be “at least as protective” as the EGs. F.A.C. Rule 62-204.800(9)(g)3.a. and b. specifically adopts by reference the EGs contained in 40 CFR part 60 subpart Ce. Since the emissions standards are adopted by reference, the emission standards in the state plan are “at least as protective” as those in subpart Ce, as amended.

Federal regulations found at 40 CFR 60.24(c) and (e), require that each state plan must include an expeditious compliance schedule that owners and operators of affected MWC units must meet in order to comply with the requirements of the plan. F.A.C. Rule 62-204.800(9)(g)9., contains compliance times for HMIWI units. The Plan requires that all existing HMWI units comply with the requirements of the plan by June 1, 2012, unless the unit complies with the alternate schedule found at 40 CFR 60.39e(c). The Plan revision meets applicable Federal requirements for compliance schedules.

The provisions of subpart B, 40 CFR 60.24(b) and 60.25(b), stipulate facility testing, monitoring, recordkeeping and reporting requirements for state plans. F.A.C. Rules 62-204.800(9)(g)7.a. and b., and 62-204.800(9)(g)8.a. and b., adopt by reference the performance testing and monitoring, and reporting and recordkeeping requirements found at 40 CFR 60.37e and 60.38e, respectively. The Plan revision meets applicable Federal requirements for testing, monitoring, recordkeeping, and reporting requirements.

FDEP published a notice of opportunity to submit public comments or request a public hearing on the state plan revision on October 22, 2010. No comments were received, and a public hearing was not requested. Applicable portions of F.A.C. Chapter 62-204.800 amendments became effective on December 30, 2010. FDEP provided evidence of complying with public notice and other hearing requirements. FDEP also certified that “the public notice and hearing requirements of all applicable state and federal regulations have been satisfied.” FDEP has met the requirement of 40 CFR 60.23 for a public hearing.

FDEP must submit to EPA on an annual basis a report which details the progress in the enforcement of the plan in accordance with 40 CFR 60.25(e) and (f). Accordingly, FDEP will submit annual reports on progress in plan enforcement to EPA on an annual (calendar) basis, commencing with the first full report period after plan revision approval.

Based upon the rationale discussed above, EPA is approving the Plan revision and related F.A.C. Rule 62-204.800(9) amendments, as adopted by Florida on October 8, 2010. This approval excludes certain authorities retained by EPA, as stated in 40 CFR 60.50c(i). As required by 40 CFR 60.28(c), any revisions to the Plan or supporting regulations will not be considered part of the applicable plan until submitted by FDEP in accordance with 40 CFR 60.28(a) or (b), as applicable, and until approved by EPA in accordance with 40 CFR part 60, subpart B, requirements.

EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comments. This action simply reflects already existing Federal requirement for state air pollution control agencies and existing HMIWI units that are subject to the provisions of 40 CFR part 60, subpart Ce and related subpart Ec. However, in the “Proposed Rules” section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the section 111(d)/129 Plan revision should relevant adverse or critical comments be filed. This rule will be effective January 26, 2012 without further notice unless EPA receives adverse comments by January 26, 2012. If EPA receives adverse comments, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule did not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. If no such comments are received, the public is advised that this rule will be effective on February 27, 2012 and no further action will be taken on the proposed rule.

Under the CAA, the Administrator is required to approve a 111(d)/129 plan submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing 111(d)/129 plan submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

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

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

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

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

• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

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

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

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

The Congressional Review Act, 5 U.S.C. 801 et seq ., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by February 27, 2012. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)).

For the reasons set forth in the preamble, part 62 of chapter I of title 40 of the Code of Federal Regulations is amended as follows:

This is a summary of the Commission's Fourth Report and Order in EB Docket No. 04-296, FCC 11-136, adopted on September 15, 2011, and released on September 16, 2011. The full text of this document is available for inspection and copying during normal business hours in the FCC Reference Center (Room CY-A257), 445 12th Street SW., Washington, DC 20554. The complete text of this document also may be purchased from the Commission's copy contractor, Best Copy and Printing, Inc., 445 12th Street SW., Room, CY-B402, Washington, DC 20554. The full text may also be downloaded at: www.fcc.gov.

1. This Fourth Report and Order is one of two orders in which the Commission will take additional steps to integrate CAP into its part 11 rules governing the EAS. In this Fourth Report and Order, the Commission amends § 11.56 of its EAS rules to require EAS Participants to be able to receive CAP-formatted EAS alerts as required by part 11 no later than June 30, 2012. The Commission anticipates that it will adopt the CAP-based revisions to its part 11 EAS rules in a subsequent order stemming from its Third Further Notice of Proposed Rulemaking ( Third FNPRM ), 76 FR 35810-01, June 20, 2011, in this docket sufficiently in advance of June 30, 2012, to allow EAS Participants ample time to comply with the new part 11 rules. In this subsequent order, the Commission will also address the many remaining non-CAP related issues raised in its Third FNPRM. This amendment of § 11.56 of the Commission's rules moots the Petition for an Expedited Further Extension of the 180-Day “Cap” Compliance Deadline, EB Docket 04-296 (filed July 29, 2011) (Joint Petition) filed jointly by 46 state broadcasters associations, NAB, NCTA, the Society of Broadcast Engineers, ACA, the Association for Maximum Service Television, National Public Radio, the Association of Public Television Stations, and the Public Broadcasting Service for extension of the 180-day CAP compliance deadline.

2. In the Third FNPRM, the Commission noted that some equipment vendors may be marketing equipment—intermediary devices—that connects in some fashion with previously certified EAS equipment to allow that equipment to receive CAP-formatted alerts in the legacy EAS format. The Commission sought comment on a number of issues regarding these devices, including whether they must be certified under current EAS rules and whether they satisfy the Commission's 2007 CAP-related requirements. Although the Commission intends to address these issues in a subsequent order, it notes that, based on the record, it appears that some EAS Participants may have purchased such equipment. In this Fourth Report and Order, the Commission reminds EAS Participants that equipment that meets the definition of an encoder or a decoder under Commission rules must be certified under § 11.34 of the Commission's current rules. In addition, equipment used to receive CAP-formatted EAS alerts must, at a minimum, comply with the CAP requirements the Commission adopted in the Second Report and Order in this docket. While the Commission does not decide today whether intermediary devices comply with these requirements, it is unclear whether any equipment that does not meet these current baseline requirements will be able to satisfy any CAP-related rules we may adopt in the future. Consequently, the Commission urges EAS Participants that have purchased or are considering purchase of any type of EAS equipment to verify with manufacturers and/or vendors that the equipment complies with current FCC rules.

3. This document contains no modified information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13.

4. The Commission will send a copy of this Fourth Report and Order in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act (“CRA”), see 5 U.S.C. 801(a)(1)(A).

5. The Regulatory Flexibility Act (RFA) requires that agencies prepare a regulatory flexibility analysis for notice-and-comment rulemaking proceedings, unless the agency certifies that “the rule will not have a significant economic impact on a substantial number of small entities.” In this Fourth Report and Order, we have revised the rules to extend the date by which EAS Participants must be able to receive CAP-formatted EAS alert to June 30, 2012. We hereby certify that this rule revision will not have a significant economic impact on a substantial number of small entities, because the action merely maintains the status quo regarding CAP compliance. The Commission will send a copy of this Fourth Report and Order, including this certification, to the Chief Counsel for Advocacy of the Small Business Administration. In addition, the Fourth Report and Order (or a summary thereof) and certification will be published in the Federal Register .

6. Accordingly, it is ordered that, pursuant to sections 1, 2, 4(i), 4(o), 301, 303(r), 303(v), 307, 309, 335, 403, 624(g), 706, and 715 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i) and (o), 301, 303(r), 303(v), 307, 309, 335, 403, 544(g), 606, and 615, this Fourth Report and Order is adopted;

7. It is further ordered that part 11 of the Commission's rules, 47 CFR part 11, is amended. The Order shall become effective December 27, 2011;

8. It is further ordered that the Joint Petition for Further Extension of the CAP Compliance Deadline is dismissed as moot;

9. It is further ordered that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Fourth Report and Order, including the Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 11 as follows:

Federal regulations at 50 CFR part 679 implement the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) and govern the groundfish fisheries in the BSAI. The Council prepared the FMP and NMFS approved it under the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). General regulations governing U.S. fisheries also appear at 50 CFR part 600.

The FMP and its implementing regulations require NMFS, after consultation with the Council, to specify annually the total allowable catch (TAC) for each target species category, the sum of which must be within the optimum yield range of 1.4 million to 2.0 million metric tons (mt) (see § 679.20(a)(1)(i)). This proposed rule specifies 2.0 million mt for both 2012 and 2013. Section 679.20(c)(1) further requires NMFS to publish proposed harvest specifications in the Federal Register and solicit public comments on proposed annual TACs and apportionments thereof, PSC allowances, prohibited species quota (PSQ) reserves established by § 679.21, seasonal allowances of pollock, Pacific cod, and Atka mackerel TAC, American Fisheries Act allocations, Amendment 80 allocations, and Community Development Quota (CDQ) reserve amounts established by § 679.20(b)(1)(ii). The proposed harvest specifications set forth in Tables 1 through 12 of this action satisfy these requirements.

Under § 679.20(c)(3), NMFS will publish the final harvest specifications for 2012 and 2013 after (1) considering comments received within the comment period (see DATES ), (2) consulting with the Council at its December 5 through 13, 2011 meeting, and (3) considering new information presented in the final 2011 SAFE reports prepared for the 2012 and 2013 groundfish fisheries.

The Council is currently considering implementing management measures in the event that Pacific cod is split from a BSAI-wide fishery into separate OFLs, ABCs and TACs for the Bering Sea subarea and the Aleutian Island districts. This split is dependent upon the development of an age-structured model for the Aleutian Islands Pacific cod stock assessment that will be reviewed by the Plan Team and SSC in 2012 or 2013. This could impact the over fishing levels (OFL), acceptable biological catches (ABC), and total allowable catches (TAC) for Pacific cod on Table 1 for 2013.

In 2011, Kamchatka flounder had OFLs, ABCs, and TACs in the harvest specifications (76 FR 11139, March 1, 2011). In the proposed 2011 and 2012 harvest specifications (75 FR 76372, December 8, 2010) NMFS requested public comment on the proposal to allocate 10.7 percent of the Kamchatka flounder TAC to the CDQ program. Comments were received from each of the six CDQ groups requesting that NMFS not allocate Kamchatka flounder to the CDQ program. Based upon these comments, NMFS determined to not allocate Kamchatka flounder to the six CDQ groups in 2011. However, in 2011, a vessel fishing on behalf of one of the CDQ groups conducted directed fishing as defined at § 679.2 for Kamchatka flounder. That activity indicates that Kamchatka flounder may constitute a directed fishery of the Bering Sea and Aleutian Islands under section 305(i)(1)(B)(i) of the Magnuson-Stevens Act, which may make it necessary to make an allocation for Kamchatka flounder. Therefore, NMFS requests comment about whether the CDQ groups intend to conduct directed fishing for Kamchatka flounder in 2012 or 2013. For the final 2012 and 2013 groundfish harvest specifications for the BSAI NMFS will consider any comments received in determining whether to allocate Kamchatka flounder to the CDQ program. Specifically, if NMFS receives information that none of the CDQ groups intend to conduct directed fishing for Kamchatka flounder, then NMFS would not allocate 10.7 percent of the Kamchatka flounder TAC to the CDQ program. However, if any one of the six CDQ groups intends to conduct directed fishing for Kamchatka flounder, or if NMFS does not receive information that demonstrates unanimity among the CDQ groups about the economic value of Kamchatka flounder to the CDQ groups, NMFS would allocate 10.7 percent of the TAC to the CDQ program in 2012 and 2013.

If an allocation of Kamchatka flounder is made to the CDQ program in the final 2012 and 2013 groundfish harvest specifications for the BSAI, this CDQ reserve will be allocated among the CDQ groups using the same percentage allocations currently used to allocate the arrowtooth flounder complex among the CDQ groups. These percentage allocations are shown in Table 1 of a notice published in the Federal Register on August 31, 2006 (71 FR 51804). The current percentage allocations of arrowtooth flounder among the CDQ groups would be used to allocate Kamchatka flounder among the CDQ groups because the new TAC category was created by splitting Kamchatka flounder from the arrowtooth flounder complex.

The amounts proposed for the 2012 and 2013 harvest specifications are based on the 2010 SAFE report and are subject to change in the final harvest specifications to be published by NMFS following the Council's December 2011 meeting. At that meeting the Council will consider information contained in the final 2011 SAFE report, recommendations from the November 2011 BSAI Groundfish Plan Team (Plan Team) meeting, the December 2011 Scientific and Statistical Committee (SSC), the Advisory Panel (AP) meetings, and public testimony in making its recommendations for the final 2012 and 2013 harvest specifications.

At the October 2011 Council meeting, the SSC, AP, and Council reviewed the most recent biological and harvest information about the condition of the BSAI groundfish stocks. The Council's Plan Team compiled and presented this information, which was initially compiled by the Plan Team and presented in the final 2010 SAFE report for the BSAI groundfish fisheries, dated November 2010 (see ADDRESSES ). In November 2011, the Plan Team updated the 2010 SAFE report to include new information collected during 2011, such as revised stock assessments and catch data. The Plan Team compiled this information and produced the 2011 SAFE report. The Council will review the 2011 SAFE report during the December 2011 Council meeting. At that meeting the Council will consider information contained in the 2011 SAFE report, recommendations made by the Plan Team during its November 2011 meeting, the December 2011 SSC and AP meetings, public testimony, and relevant written public comments in making its recommendations for the final 2012 and 2013 harvest specifications.

In previous years some of the largest changes from the proposed to the final harvest specifications have been based on the most recent NMFS surveys, which provide updated estimates of stock biomass and spatial distribution, and changes to the models used in the stock assessments. These changes are recommended by the November 2011 Plan Team and are included in the final 2011 SAFE report. The final 2011 SAFE report includes the most recent information, such as 2011 catch. The final harvest specification amounts for these stocks are not expected to vary greatly from the proposed specification amounts published here.

If the final 2011 SAFE report indicates that the stock biomass trend is increasing for a species, then the final 2012 and 2013 harvest specifications may reflect that increase from the proposed harvest specifications. Conversely, if the final 2011 SAFE report indicates that the stock biomass trend is decreasing for a species, then the final 2012 and 2013 harvest specifications may reflect a decrease from the proposed harvest specifications. In addition to changes driven by biomass trends, there may be changes in TACs due to the sum of ABCs exceeding 2 million mt. Since the FMP requires TACs to be set to an optimum yield between 1.4 and 2 million mt, the Council may be required to recommend TACs that are lower than the ABCs recommended by the Plan Team if setting TACs equal to ABC would cause the TAC to exceed an optimum yield of 2 million mt. Generally, ABCs greatly exceed 2 million mt in years with a large pollock biomass. Based upon the 2011 SAFE report, it is anticipated that both 2012 and 2013 will have large pollock biomasses, and the sum of the ABCs will exceed 2 million mt.

The proposed ABCs and TACs are based on the best available biological and socioeconomic data, including projected biomass trends, information on assumed distribution of stock biomass, and revised methods used to calculate stock biomass. The FMP specifies a series of six tiers to define OFLs and ABCs based on the level of reliable information available to fishery scientists. Tier one represents the highest level of information quality available while tier six represents the lowest.

In November 2011, the Plan Team recommended a predation-based estimate to octopus mortality as an alternative Tier 6 estimate. If the SSC and Council approve this approach, the OFL and ABC for octopus will likely be larger in 2012 than in 2011.

In October 2011, the SSC adopted the proposed 2012 and 2013 OFLs and ABCs recommended by the Plan Team for all groundfish species. The Council adopted the SSC's OFL and ABC recommendations and the AP's TAC recommendations. These amounts are unchanged from the final 2012 harvest specifications published in the Federal Register on March 1, 2011 (76 FR 11139). For 2012 and 2013, the Council recommended and NMFS proposes the OFLs, ABCs, and TACs listed in Table 1. The proposed ABCs reflect harvest amounts that are less than the specified overfishing amounts. The sum of the proposed 2012 and 2013 ABCs for all assessed groundfish is 2,911,610 mt, which is higher than the final 2011 ABC total of 2,534,729 mt (76 FR 11139, March 1, 2011).

The Council recommended proposed TACs for 2012 and 2013 that are equal to proposed ABCs for sablefish, Kamchatka flounder, Pacific ocean perch, shortraker rockfish, and rougheye rockfish. The Council recommended proposed TACs for 2012 and 2013 that are less than the proposed ABCs for pollock, Pacific cod, Atka mackerel, yellowfin sole, rock sole, Greenland turbot, arrowtooth flounder, flathead sole, “other flatfish,” Alaska plaice, northern rockfish, “other rockfish,” squids, sharks, skates, sculpins, and octopuses.

Section 679.20(a)(5)(iii)(B)( 1 ) requires the Aleutian Islands (AI) pollock TAC to be set at 19,000 mt when the AI pollock ABC equals or exceeds 19,000 mt. The Bogoslof pollock TAC is set to accommodate incidental catch amounts. With the exceptions of sablefish, Kamchatka flounder, Pacific ocean perch, shortraker rockfish, and rougheye rockfish; TACs are set below ABCs. TACs are set so that the sum of the overall TAC does not exceed the BSAI optimum yield.

The proposed groundfish OFLs, ABCs, and TACs are subject to change pending the completion of the 2011 SAFE report and the Council's recommendations for final 2012 and 2013 harvest specifications during its December 2011 meeting. These proposed amounts are consistent with the biological condition of groundfish stocks as described in the 2010 SAFE report, and adjusted for other biological and socioeconomic considerations. Pursuant to section 3.2.3.4.1 of the Fishery Management Plan, the Council could recommend adjusting the TACs if warranted on the basis of bycatch considerations, management uncertainty, or socioeconomic considerations, or if required in order to cause the sum of the TACs to fall within the OY range. Table 1 lists the proposed 2012 and 2013 OFL, ABC, TAC, initial TAC (ITAC), and CDQ amounts for groundfish for the BSAI. The proposed apportionment of TAC amounts among fisheries and seasons is discussed below.

The regulations at section 679.20(b) require NMFS to place certain amounts of BSAI TAC in reserve. Section 679.20(b)(1)(i) requires the placement of 15 percent of the TAC for each target species category, except for pollock, hook-and-line and pot gear allocation of sablefish, and Amendment 80 species, in a non-specified reserve. Section 679.20(b)(1)(ii)(B) requires that 20 percent of the hook-and-line and pot gear allocation of sablefish be allocated to the fixed gear sablefish CDQ reserve. Section 679.20(b)(1)(ii)(D) requires that 7.5 percent of the trawl gear allocations of sablefish and 10.7 percent of Bering Sea Greenland turbot, and arrowtooth flounder be allocated to the respective CDQ reserves. Additionally, unless NMFS receives comments that the CDQ groups do not intend to conduct directed fisheries for Kamchatka flounder, NMFS will assume that a directed fishery exists, under section 305(i)(1)(B)(i) of the MSA, and allocate 10.7 percent of the TAC for Kamchatka flounder to the CDQ reserves. Section 679.20(b)(1)(ii)(C) requires that 10.7 percent of the TACs for Atka mackerel, AI Pacific ocean perch, yellowfin sole, rock sole, flathead sole, and Pacific cod be allocated to the CDQ reserves. Sections 679.20(a)(5)(i)(A) and 679.31(a) also require the allocation of 10 percent of the BSAI pollock TACs to the pollock CDQ directed fishing allowance (DFA). The entire Bogoslof District pollock TAC is allocated as an ICA (see § 679.20(a)(5)(ii)). With the exception of the hook-and-line and pot gear sablefish CDQ reserve, the regulations do not further apportion the CDQ reserves by gear. Sections 679.30 and 679.31 set forth regulations governing the management of the CDQ reserves.

Pursuant to § 679.20(a)(5)(i)(A)( 1 ), NMFS proposes a pollock ICA of 3 percent of the Bering Sea subarea pollock TAC after subtraction of the 10 percent CDQ reserve. This allowance is based on NMFS' examination of the pollock incidental catch, including the incidental catch by CDQ vessels, in target fisheries other than pollock from 1999 through 2011. During this 13-year period, the pollock incidental catch ranged from a low of 2.4 percent in 2006 to a high of 5 percent in 1999, with a 13-year average of 3.2 percent. Pursuant to § 679.20(a)(5)(iii)(B)( 2 )( i ) and ( ii ), NMFS proposes a pollock ICA of 1,600 mt for the AI subarea after subtraction of the 10 percent CDQ DFA. This allowance is based on NMFS' examination of the pollock incidental catch, including the incidental catch by CDQ vessels, in target fisheries other than pollock from 2003 through 2011. During this 9-year period, the incidental catch of pollock ranged from a low of 5 percent in 2006 to a high of 10 percent in 2003, with a 9-year average of 7 percent.

Pursuant to § 679.20(a)(8) and (10), NMFS proposes ICAs of 5,000 mt of flathead sole, 10,000 mt of rock sole, 2,000 mt of yellowfin sole, 10 mt of Western Aleutian District Pacific ocean perch, 75 mt of Central Aleutian District Pacific ocean perch, 100 mt of Eastern Aleutian District Pacific ocean perch, 40 mt for Western Aleutian District Atka mackerel, 75 mt for Central Aleutian District Atka mackerel, and 1,000 mt of Eastern Aleutian District and Bering Sea subarea Atka mackerel after subtraction of the 10.7 percent CDQ reserve. These allowances are based on NMFS' examination of the average incidental catch in other target fisheries from 2003 through 2011.

The regulations do not designate the remainder of the non-specified reserve by species or species group. Any amount of the reserve may be apportioned to a target species that contributed to the non-specified reserve, provided that such apportionments do not result in overfishing (see § 679.20(b)(1)(i)).

Section 679.20(a)(5)(i)(A) requires that the pollock TAC apportioned to the Bering Sea subarea, after subtraction of 10 percent for the CDQ program and 3 percent for the ICA, be allocated as a DFA as follows: 50 percent to the inshore sector, 40 percent to the catcher/processor sector, and 10 percent to the mothership sector. In the Bering Sea subarea, 40 percent of the DFA is allocated to the A season (January 20 to June 10) and 60 percent of the DFA is allocated to the B season (June 10 to November 1) (§ 679.20(a)(5)(i)(B)). The AI directed pollock fishery allocation to the Aleut Corporation is the amount of pollock remaining in the AI subarea after subtracting 1,900 mt for the CDQ DFA (10 percent) and 1,600 mt for the ICA (§ 679.20(a)(5)(iii)(B)( 2 )( ii )). In the AI subarea, 40 percent of the ABC is allocated to the A season and the remainder of the directed pollock fishery is allocated to the B season. Table 2 lists these proposed 2012 and 2013 amounts.

Section 679.20(a)(5)(i)(A)( 4 ) also includes several specific requirements regarding Bering Sea subarea pollock allocations. First, 8.5 percent of the pollock allocated to the catcher/processor sector will be available for harvest by AFA catcher vessels with catcher/processor sector endorsements, unless the Regional Administrator receives a cooperative contract that provides for the distribution of harvest among AFA catcher/processors and AFA catcher vessels in a manner agreed to by all members. Second, AFA catcher/processors not listed in the AFA are limited to harvesting not more than 0.5 percent of the pollock allocated to the catcher/processor sector. Table 2 lists the proposed 2012 and 2013 allocations of pollock TAC. Tables 9 through 12 list the AFA catcher/processor and catcher vessel harvesting sideboard limits. In past years, the proposed harvest specifications included text and tables describing pollock allocations to the Bering Sea subarea inshore pollock cooperatives and open access sector. These allocations are based on the submission of AFA inshore cooperative applications due to NMFS on December 1 of each calendar year. Because AFA inshore cooperative applications for 2012 have not been submitted to NMFS, thereby preventing NMFS from calculating 2012 allocations, NMFS has not included inshore cooperative text and tables in these proposed harvest specifications. NMFS will post 2012 AFA inshore cooperative allocations on the Alaska Region Web site at http://alaskafisheries.noaa.gov when they become available in December 2011.

Table 2 also lists proposed seasonal apportionments of pollock and harvest limits within the Steller Sea Lion Conservation Area (SCA). The harvest of pollock within the SCA, as defined at § 679.22(a)(7)(vii), is limited to 28 percent of the DFA until 12 noon, April 1 as provided in § 679.20(a)(5)(i)(C). The remaining 12 percent of the 40 percent annual DFA allocated to the A season may be taken outside the SCA before 12 noon, April 1 or inside the SCA after 12 noon, April 1. The A season pollock SCA harvest limit will be apportioned to each sector in proportion to each sector's allocated percentage of the DFA. Table 2 lists these proposed 2012 and 2013 amounts by sector.

Section 679.20(a)(8)(ii) allocates the Atka mackerel TACs to the Amendment 80 and BSAI trawl limited access sectors, after subtraction of the CDQ reserves, jig gear allocation, and ICAs for the BSAI trawl limited access sector and non-trawl gear (Table 3). The allocation of the ITAC for Atka mackerel to the Amendment 80 and BSAI trawl limited access sectors is established in Table 33 to part 679 and in § 679.91. Pursuant to § 679.20(a)(8)(i), up to 2 percent of the Eastern Aleutian District and Bering Sea subarea Atka mackerel ITAC may be allocated to jig gear. The amount of this allocation is determined annually by the Council based on several criteria, including the anticipated harvest capacity of the jig gear fleet. The Council recommended and NMFS proposes a 0.5 percent allocation of the Atka mackerel ITAC in the Eastern Aleutian District and Bering Sea subarea to jig gear in 2012 and 2013. This percentage is applied after the subtraction of the CDQ reserve and the ICA.

Section 679.20(a)(8)(ii)(C)( 3 ) limits the annual TAC for Area 542 to no more than 47 percent of the Area 542 ABC. Section 679.7(a)(19) prohibits retention of Atka mackerel in Area 543, and the proposed amount is set to account for discards in other fisheries.

Section 679.20(a)(8)(ii)(A) apportions the Atka mackerel TAC (including the CDQ reserve) into two equal seasonal allowances. The first seasonal allowance is made available for directed fishing with trawl gear from January 20 to June 10 (A season), and the second seasonal allowance is made available from June 10 to November 1 (B season). The jig gear allocation is not apportioned by season.

Sections 679.20(a)(8)(ii)(C)( 1 )( i ) and ( ii ) require the Amendment 80 cooperatives and CDQ groups to limit harvest to 10 percent of their Central Aleutian District Atka mackerel allocation equally divided between the A and B seasons within waters 10 nm to 20 nm of Gramp Rock and Tag Island, as described on Table 12 to part 679. Vessels not fishing under the authority of an Amendment 80 cooperative quota or CDQ allocation are prohibited from conducting directed fishing for Atka mackerel inside Steller sea lion critical habitat in the Central Aleutian District.

Two Amendment 80 cooperatives have formed for the 2012 fishing year. Because all Amendment 80 vessels are part of a cooperative, no allocation to the Amendment 80 limited access sector is required. NMFS will post 2012 Amendment 80 cooperative allocations on the Alaska Region Web site at http://alaskafisheries.noaa.gov prior to the start of the fishing year on January 1, 2012, based on the harvest specifications effective on that date.

Table 3 lists these 2012 and 2013 Atka mackerel season and area allowances, as well as the sector allocations. The 2013 allocations for Amendment 80 species between Amendment 80 cooperatives and the Amendment 80 limited access sector will not be known until eligible participants apply for participation in the program by November 1, 2012.

Sections 679.20(a)(7)(i) and (ii) allocate the Pacific cod TAC in the BSAI, after subtraction of 10.7 percent for the CDQ program, as follows: 1.4 percent to vessels using jig gear, 2.0 percent to hook-and-line and pot catcher vessels less than 60 ft (18.3 m) length overall (LOA), 0.2 percent to hook-and-line catcher vessels greater than or equal to 60 ft (18.3 m) LOA, 48.7 percent to hook-and-line catcher/processors, 8.4 percent to pot catcher vessels greater than or equal to 60 ft (18.3 m) LOA, 1.5 percent to pot catcher/processors, 2.3 percent to AFA trawl catcher/processors, 13.4 percent to non-AFA trawl catcher/processors, and 22.1 percent to trawl catcher vessels. The ICA for the hook-and-line and pot sectors will be deducted from the aggregate portion of Pacific cod TAC allocated to the hook-and-line and pot sectors. For 2012 and 2013, the Regional Administrator proposes an ICA of 500 mt based on anticipated incidental catch in these fisheries.

The allocation of the ITAC for Pacific cod to the Amendment 80 sector is established in Table 33 to part 679 and § 679.91. Two Amendment 80 cooperatives have formed for the 2012 fishing year. Because all Amendment 80 vessels are part of a cooperative, no allocation to the Amendment 80 limited access sector is required. NMFS will post 2012 Amendment 80 cooperative allocations on the Alaska Region Web site at http://alaskafisheries.noaa.gov prior to the start of the fishing year on January 1, 2012, based on the harvest specifications effective on that date.

The 2013 allocations for Amendment 80 species between Amendment 80 cooperatives and the Amendment 80 limited access sector will not be known until eligible participants to apply for participation in the program by November 1, 2012. NMFS will post 2013 Amendment 80 cooperatives and Amendment 80 limited access allocations on the Alaska Region Web site at http://alaskafisheries.noaa.gov when they become available in December 2012.

The Pacific cod ITAC is apportioned into seasonal allowances to disperse the Pacific cod fisheries over the fishing year (see §§ 679.20(a)(7) and 679.23(e)(5)). In accordance with § 679.20(a)(7)(iv)(B) and (C), any unused portion of a seasonal Pacific cod allowance will become available at the beginning of the next seasonal allowance.

The CDQ and non-CDQ season allowances by gear based on the proposed 2012 and 2013 Pacific cod TACs are listed in Table 4 based on the sector allocation percentages of Pacific cod set forth at §§ 679.20(a)(7)(i)(B) and 679.20(a)(7)(iv)(A); and the seasonal allowances of Pacific cod set forth at § 679.23(e)(5). Section 679.7(a)(19) prohibits retention of Pacific cod in Area 543 and § 679.7(a)(23) prohibits directed fishing for Pacific cod with hook-and-line, pot, or jig gear in the AI subarea November 1 through December 31.

Sections 679.20(a)(4)(iii) and (iv) require the allocation of sablefish TACs for the Bering Sea and AI subareas between trawl gear and hook-and-line or pot gear. Gear allocations of the TACs for the Bering Sea subarea are 50 percent for trawl gear and 50 percent for hook-and-line or pot gear. Gear allocations for the AI subarea are 25 percent for trawl gear and 75 percent for hook-and-line or pot gear. Section 679.20(b)(1)(ii)(B) requires apportionment of 20 percent of the hook-and-line and pot gear allocation of sablefish from the nonspecified reserves to the CDQ reserve. Additionally, § 679.20(b)(1)(ii)(D) requires apportionment of 7.5 percent of the trawl gear allocation of sablefish to the CDQ reserve. The Council recommended that only trawl sablefish TAC be established biennially. The harvest specifications for the hook-and-line gear and pot gear sablefish Individual Fishing Quota (IFQ) fisheries will be limited to the 2012 fishing year to ensure those fisheries are conducted concurrently with the halibut IFQ fishery. Concurrent sablefish and halibut IFQ fisheries would reduce the potential for discards of halibut and sablefish in those fisheries. The sablefish IFQ fisheries would remain closed at the beginning of each fishing year until the final harvest specifications for the sablefish IFQ fisheries are in effect. Table 5 lists the proposed 2012 and 2013 gear allocations of the sablefish TAC and CDQ reserve amounts.

Sections 679.20(a)(10)(i) and (ii) require that an allocation be made to the Amendment 80 and BSAI trawl limited access sectors for AI Pacific ocean perch, and BSAI flathead sole, rock sole, and yellowfin sole TACs, after subtraction of 10.7 percent for the CDQ reserve and an ICA for the BSAI trawl limited access sector and vessels using non-trawl gear. The allocation of the ITAC for AI Pacific ocean perch, and BSAI flathead sole, rock sole, and yellowfin sole to the Amendment 80 sector is established in Tables 33 and 34 to part 679 and in § 679.91.

Two Amendment 80 cooperatives have formed for the 2012 fishing year. Because all Amendment 80 vessels are part of a cooperative, no allocation to the Amendment 80 limited access sector is required. NMFS will post 2012 Amendment 80 cooperative allocations on the Alaska Region Web site at http://alaskafisheries.noaa.gov prior to the start of the fishing year on January 1, 2012, based on the harvest specifications effective on that date.

The 2013 allocations for Amendment 80 species between Amendment 80 cooperatives and the Amendment 80 limited access sector will not be known until after November 1, 2012, the deadline date for eligible participants to apply for participation in the program. NMFS will post 2013 Amendment 80 cooperatives and Amendment 80 limited access allocations on the Alaska Region Web site at http://alaskafisheries.noaa.gov when they become available in December 2012.

Table 6 lists the proposed 2012 and 2013 allocations and seasonal apportionments of the AI Pacific ocean perch, and BSAI flathead sole, rock sole, and yellowfin sole TACs.

Section 679.21(e) sets forth the BSAI PSC limits. Pursuant to § 679.21(e)(1)(iv) and (e)(2), the 2012 and 2013 BSAI halibut mortality limits are 3,675 mt for trawl fisheries and 900 mt for the non-trawl fisheries. Sections 679.21(e)(3)(i)(A)( 2 ) and (e)(4)(i)(A) allocate 326 mt of the trawl halibut mortality limit and 7.5 percent, or 67 mt, of the non-trawl halibut mortality limit as the PSQ reserve for use by the groundfish CDQ program.

Section 679.21(e)(4)(i) authorizes the apportionment of the non-trawl halibut PSC limit into PSC bycatch allowances among six fishery categories. Table 7c lists the fishery bycatch allowances for the trawl and non-trawl fisheries.

Pursuant to section 3.6 of the BSAI FMP, the Council recommends, and NMFS agrees, that certain specified non-trawl fisheries be exempt from the halibut PSC limit. As in past years after consultation with the Council, NMFS exempts pot gear, jig gear, and the sablefish IFQ hook-and-line gear fishery categories from halibut bycatch restrictions for the following reasons: (1) The pot gear fisheries have low halibut bycatch mortality; (2) NMFS estimates halibut mortality for the jig gear fleet to be negligible because of the small size of the fishery and the selectivity of the gear; and (3) the sablefish and halibut IFQ fisheries have low halibut bycatch mortality because the IFQ program requires legal-size halibut to be retained by vessels using hook-and-line gear if a halibut IFQ permit holder or a hired master is aboard and is holding unused halibut IFQ (subpart D of 50 CFR part 679). In 2011, total groundfish catch for the pot gear fishery in the BSAI was 29,305 mt, with an associated halibut bycatch mortality of 6 mt.

The 2011 jig gear fishery harvested about 505 mt of groundfish. Most vessels in the jig gear fleet are less than 60 ft (18.3 m) LOA and thus are exempt from observer coverage requirements. As a result, observer data are not available on halibut bycatch in the jig gear fishery. However, as mentioned above, NMFS estimates a negligible amount of halibut bycatch mortality because of the selective nature of jig gear and the low mortality rate of halibut caught with jig gear and released.

Section 679.21(f)(2), annually allocates portions of either 47,591 or 60,000 Chinook salmon PSC among the AFA sectors depending upon past catch performance and upon whether or not Chinook salmon bycatch incentive plan agreements are formed. If an AFA sector participates in an approved Chinook salmon bycatch incentive plan agreement, then NMFS will allocate a portion of the 60,000 PSC limit to that sector as specified in § 679.21(f)(3)(iii)(A). If no Chinook salmon bycatch incentive plan agreement is approved, or if the sector has exceeded its performance standard under § 679.21(f)(6), NMFS will allocate a portion of the 47,591 Chinook salmon PSC limit to that sector as specified in § 679.21(f)(3)(iii)(B). In 2012, the Chinook salmon PSC limit is 60,000 and the AFA sector Chinook salmon allocations are seasonally allocated with 70 percent of the allocation for the A season pollock fishery, and 30 percent of the allocation for the B season pollock fishery as stated in § 679.21(f)(3)(iii)(A). The basis for these PSC limits is described in detail in the final rule implementing management measures for Amendment 91 (75 FR 53026, August 30, 2010). NMFS publishes the approved Chinook salmon bycatch incentive plan agreements, allocations and reports at: http://alaskafisheries.noaa.gov/sustainablefisheries/bycatch/default.htm.

Section 679.21(e)(1)(viii) specifies 700 fish as the 2012 and 2013 Chinook salmon PSC limit for the AI subarea pollock fishery. Section 679.21(e)(3)(i)(A)( 3 )( i ) allocates 7.5 percent of the 700 fish, or 53 Chinook salmon, as the AI subarea PSQ for the CDQ program and allocates the remaining 92.5 percent, or 647 Chinook salmon, to the non-CDQ fisheries.

Section 679.21(e)(1)(vii) specifies 42,000 fish as the 2011 and 2012 non-Chinook salmon PSC limit. Section 679.21(e)(3)(i)(A)( 3 )( ii ) allocates 10.7 percent, or 4,494 non-Chinook salmon, as the PSQ for the CDQ program and allocates the remaining 89.3 percent, or 37,506 non-Chinook salmon, to the non-CDQ fisheries.

PSC limits for crab and herring are specified annually based on abundance and spawning biomass. Due to the lack of new information as of October 2011 regarding red king crab and herring PSC limits and apportionments, the Council recommended and NMFS proposes using the crab and herring 2011 and 2012 PSC limits and apportionments based on the 2010 survey data for the proposed 2012 and 2013 limits and apportionments. The Council will reconsider these amounts in December 2011. Pursuant to § 679.21(e)(3)(i)(A)( 1 ), 10.7 percent of each PSC limit specified for crab is allocated as a PSQ reserve for use by the groundfish CDQ program.

Based on 2010 survey data, the red king crab mature female abundance is estimated at 31.5 million red king crabs, and the effective spawning biomass is estimated at 67.4 million lb (30,572 mt). Based on the criteria set out at § 679.21(e)(1)(i), the proposed 2012 and 2013 PSC limit of red king crab in Zone 1 for trawl gear is 197,000 animals. This limit derives from the mature female abundance estimate of more than 8.4 million king crab and the effective spawning biomass estimate of more than 55 million lbs (24,948 mt).

Section 679.21(e)(3)(ii)(B)( 2 ) establishes criteria under which NMFS must specify an annual red king crab bycatch limit for the Red King Crab Savings Subarea (RKCSS). The regulations limit the RKCSS to up to 25 percent of the red king crab PSC allowance based on the need to optimize the groundfish harvest relative to red king crab bycatch. NMFS proposes the Council's recommendation that the red king crab bycatch limit be equal to 25 percent of the red king crab PSC allowance within the RKCSS (Table 7b). Based on 2010 survey data, Tanner crab ( Chionoecetes bairdi ) abundance is estimated at 379 million animals. Pursuant to criteria set out at § 679.21(e)(1)(ii), the calculated 2012 and 2013 C. bairdi crab PSC limit for trawl gear is 830,000 animals in Zone 1 and 2,520,000 animals in Zone 2. These limits derive from the C. bairdi crab abundance estimate being in excess of the 270 million animals for the Zone 1 allocation and 290 million animals for the Zone 2 allocation, but less than 400 million animals for both zones allocations. Pursuant to § 679.21(e)(1)(iii), the PSC limit for snow crab ( C. opilio ) is based on total abundance as indicated by the NMFS annual bottom trawl survey. The C. opilio crab PSC limit is set at 0.1133 percent of the Bering Sea abundance index minus 150,000 crab if left unajusted. However, if the abundance is less than 4.5 million animals, the minimum PSC limit will be 4,350,000 animals pursuant to § 679.21(e)(1)(iii)(A) and (B). Based on the 2010 survey estimate of 7.5 billion animals, the calculated limit is 8,310,480 animals.

Pursuant to § 679.21(e)(1)(v), the PSC limit of Pacific herring caught while conducting any trawl operation for BSAI groundfish is 1 percent of the annual eastern Bering Sea herring biomass. The best estimate of 2012 and 2013 herring biomass is 197,400 mt. This amount was derived using 2010 survey data and an age-structured biomass projection model developed by the Alaska Department of Fish and Game. Therefore, the herring PSC limit proposed for 2012 and 2013 is 2,273 mt for all trawl gear as presented in Tables 7a and 7b.

Section 679.21(e)(3)(A) requires PSQ reserves to be subtracted from the total trawl PSC limits. The amount of the 2012 PSC limits assigned to the Amendment 80 and BSAI trawl limited access sectors are specified in Table 35 to part 679. The resulting allocation of PSC to CDQ PSQ, the Amendment 80 sector, and the BSAI trawl limited access sector are listed in Table 7a. Pursuant to § 679.21(e)(1)(iv) and § 679.91(d) through (f), crab and halibut trawl PSC assigned to the Amendment 80 sector is then further allocated to Amendment 80 cooperatives as PSC cooperative quota as presented in Table 7d. Two Amendment 80 cooperatives have formed for the 2012 fishing year. Because all Amendment 80 vessels are part of a cooperative, an allocation to the Amendment 80 limited access sector is not required. NMFS will post 2012 Amendment 80 cooperative allocations on the Alaska Region Web site at http://alaskafisheries.noaa.gov prior to the start of the fishing year on January 1, 2012, based on the harvest specifications effective on that date.

The 2013 allocations for Amendment 80 species between Amendment 80 cooperatives and the Amendment 80 limited access sector will not be known until after November 1, 2012, the deadline date for eligible participants to apply for participation in the program. NMFS will post 2013 Amendment 80 cooperatives and Amendment 80 limited access allocations on the Alaska Region Web site at http://alaskafisheries.noaa.gov when they become available in December 2012.

Section 679.21(e)(5) authorizes NMFS, after consultation with the Council, to establish seasonal apportionments of PSC amounts for the BSAI trawl limited access and Amendment 80 limited access sectors in order to maximize the ability of the fleet to harvest the available groundfish TAC and to minimize bycatch. The factors considered are (1) seasonal distribution of prohibited species, (2) seasonal distribution of target groundfish species, (3) PSC bycatch needs on a seasonal basis relevant to prohibited species biomass, (4) expected variations in bycatch rates throughout the year, (5) expected start of fishing effort, and (6) economic effects of seasonal PSC apportionments on industry sectors.

NMFS proposes the Council's recommendation of the seasonal PSC apportionments in Table 7c to maximize harvest among gear types, fisheries, and seasons while minimizing bycatch of PSC based on the above criteria.