Section 218(a) of the Nuclear Waste Policy Act (NWPA) of 1982, as amended, requires that “the Secretary [of the Department of Energy] shall establish a demonstration program, in cooperation with the private sector, for the dry storage of spent nuclear fuel at civilian nuclear power reactor sites, with the objective of establishing one or more technologies that the [U.S. Nuclear Regulatory] Commission may, by rule, approve for use at the sites of civilian nuclear power reactors without, to the maximum extent practicable, the need for additional site-specific approvals by the Commission.” Section 133 of the NWPA states, in part, that [the Commission] shall, by rule, establish procedures for the licensing of any technology approved by the Commission under Section 219(a) for use at the site of any civilian nuclear power reactor.”

To implement this mandate, the Commission approved dry storage of spent nuclear fuel in NRC-approved casks under a general license by publishing a final rule in Title 10 of the Code of Federal Regulations (10 CFR) Part 72, which added a new Subpart K within 10 CFR Part 72, entitled “General License for Storage of Spent Fuel at Power Reactor Sites” (55 FR 29181; July 18, 1990). This rule also established a new Subpart L within 10 CFR Part 72, entitled “Approval of Spent Fuel Storage Casks,” which contains procedures and criteria for obtaining NRC approval of spent fuel storage cask designs. The NRC subsequently issued a final rule on May 1, 2000 (65 FR 25241), that approved the Holtec International cask design and added it to the list of NRC-approved cask designs in 10 CFR 72.214 as CoC No. 1014.

On November 28, 2009, and as supplemented on November 4 and December 14, 2010, and February 25 and July 8, 2011, Holtec International, the holder of CoC No. 1014, submitted a certificate amendment request to the NRC requesting an amendment to CoC No. 1014. Specifically, Holtec International requested changes to add a new MPC-68M to the approved models currently included in CoC No. 1014 with two new boiling water reactor fuel assembly/array classes, and a new pressurized water reactor fuel assembly/class to CoC No. 1014 for loading into the MPC-32. In addition, the amendment would change 1) Condition 5 of CoC No. 1014 to add “if applicable” after the reference to Section 3.5 of Appendix B, “Cask Transfer Facility (CTF)” to clarify that the CTF is an optional facility; 2) Appendix A, TS 1.1, to modify the CTF definition to clarify that it could be used in lieu of 10 CFR Part 50 controlled structures for cask transfer evolutions; and 3) Table 3-1, MPC Cavity Drying Limits, to include the previously approved, but omitted table to eliminate inconsistencies between Table 3-1 and TS 3.1.1, Limiting Condition for Operation.

As documented in the SER, the NRC staff performed a detailed safety evaluation of the proposed CoC amendment request and found that an acceptable safety margin is maintained. In addition, the NRC staff has determined that there continues to be reasonable assurance that public health and safety will be adequately protected.

This direct final rule revises the HI-STORM 100 listing in 10 CFR 72.214 by adding Amendment No. 8 to CoC No. 1014. The amendment consists of the changes previously described, as set forth in the revised CoC and TSs. The revised TSs are identified in the SER.

The amended HI-STORM 100 cask design, when used under the conditions specified in the CoC, the TSs, and the NRC's regulations, will meet the requirements of 10 CFR Part 72; thus, adequate protection of public health and safety will continue to be ensured. When this direct final rule becomes effective, persons who hold a general license under 10 CFR 72.210 may load spent nuclear fuel into HI-STORM 100 casks that meet the criteria of Amendment No. 8 to CoC No. 1014 under 10 CFR 72.212.

The CoC No. 1014 is revised by adding the effective date of Amendment Number 8.

This rule is limited to the changes contained in Amendment No. 8 to CoC No. 1014 and does not include other aspects of the HI-STORM 100 dry storage cask system. The NRC is using the “direct final rule procedure” to issue this amendment because it represents a limited and routine change to an existing CoC that is expected to be noncontroversial. Adequate protection of public health and safety continues to be ensured. The amendment to the rule will become effective on May 2, 2012. However, if the NRC receives significant adverse comments on this direct final rule by March 19, 2012, then the NRC will publish a document that withdraws this action and will subsequently address the comments received in a final rule as a response to the companion proposed rule published elsewhere in this issue of the Federal Register . Absent significant modifications to the proposed revisions requiring republication, the NRC will not initiate a second comment period on this action.

A significant adverse comment is a comment where the commenter explains why the rule would be inappropriate, including challenges to the rule's underlying premise or approach, or would be ineffective or unacceptable without a change. A comment is adverse and significant if:

(1) The comment opposes the rule and provides a reason sufficient to require a substantive response in a notice-and-comment process. For example, a substantive response is required when:

(a) The comment causes the NRC staff to reevaluate (or reconsider) its position or conduct additional analysis;

(b) The comment raises an issue serious enough to warrant a substantive response to clarify or complete the record; or

(c) The comment raises a relevant issue that was not previously addressed or considered by the NRC staff.

(2) The comment proposes a change or an addition to the rule, and it is apparent that the rule would be ineffective or unacceptable without incorporation of the change or addition.

(3) The comment causes the NRC staff to make a change (other than editorial) to the rule, CoC, or TSs.

For detailed instructions on filing comments, please see the companion proposed rule published elsewhere in this issue of the Federal Register .

The National Technology Transfer and Advancement Act of 1995 (Pub. L. 104-113) requires that Federal agencies use technical standards that are developed or adopted by voluntary consensus standards bodies unless the use of such a standard is inconsistent with applicable law or otherwise impractical. In this direct final rule, the NRC will revise the Holtec International HI-STORM 100 System cask design listed in § 72.214 (List of Approved Spent Fuel Storage Casks). This action does not constitute the establishment of a standard that contains generally applicable requirements.

Under the “Policy Statement on Adequacy and Compatibility of Agreement State Programs” approved by the Commission on June 30, 1997, and published in the Federal Register on September 3, 1997 (62 FR 46517), this rule is classified as Compatibility Category “NRC.” Compatibility is not required for Category “NRC” regulations. The NRC program elements in this category are those that relate directly to areas of regulation reserved to the NRC by the Atomic Energy Act of 1954, as amended, or the provisions of 10 CFR. Although an Agreement State may not adopt program elements reserved to the NRC, it may wish to inform its licensees of certain requirements via a mechanism that is consistent with the particular State's administrative procedure laws but does not confer regulatory authority on the State.

The Plain Writing Act of 2010 (Pub. L. 111-274) requires Federal agencies to write documents in a clear, concise, well-organized manner that also follows other best practices appropriate to the subject or field and the intended audience. The NRC has attempted to use plain language in promulgating this rule consistent with the Federal Plain Writing Act guidelines.

Under the National Environmental Policy Act of 1969, as amended, and the NRC regulations in Subpart A of 10 CFR Part 51, the NRC has determined that this rule, if adopted, would not be a major Federal action significantly affecting the quality of the human environment and, therefore, an environmental impact statement is not required. The NRC has prepared an environmental assessment and, on the basis of this environmental assessment, has made a finding of no significant impact. This rule amends the CoC for the Holtec International HI-STORM 100 System cask design within the list of approved spent fuel storage casks that power reactor licensees can use to store spent fuel at reactor sites under a general license. Amendment No. 8 adds a new multipurpose canister (MPC)—68M to the approved models currently included in CoC No. 1014 with two new boiling water reactor fuel assembly/array classes, and a new pressurized water reactor fuel assembly/class to CoC No. 1014 for loading into the MPC-32. In addition, the amendment changes: (1) Condition 5 of CoC No. 1014 to add “if applicable” after the reference to Section 3.5 of Appendix B, “Cask Transfer Facility (CTF)” to clarify that the CTF is an optional facility; (2) Appendix A, TS 1.1, to modify the CTF definition to clarify that it could be used in lieu of 10 CFR part 50 controlled structures for cask transfer evolutions; and (3) Table 3-1, MPC Cavity Drying Limits, to include the previously approved, but omitted, table to eliminate inconsistencies between Table 3-1 and TS 3.1.1, Limiting Condition for Operation.

The environmental assessment and finding of no significant impact on which this determination is based are available for inspection at the NRC PDR, Room O-1F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852. Single copies of the environmental assessment and finding of no significant impact are available from Gregory Trussell, Office of Federal and State Materials and Environmental Management Programs, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone: 301-415-6445, email: Gregory.Trussell@nrc.gov.

This rule does not contain any information collection requirements and, therefore, is not subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). Existing requirements were approved by the Office of Management and Budget (OMB), Approval Number 3150-0132.

The NRC may not conduct or sponsor, and a person is not required to respond to a request for information or an information collection requirement unless the requesting document displays a currently valid OMB control number.

On July 18, 1990 (55 FR 29181), the NRC issued an amendment to 10 CFR part 72 to provide for the storage of spent nuclear fuel under a general license in cask designs approved by the NRC. Any nuclear power reactor licensee can use NRC-approved cask designs to store spent nuclear fuel if it notifies the NRC in advance, the spent fuel is stored under the conditions specified in the cask's CoC, and the conditions of the general license are met. A list of NRC-approved cask designs is contained in 10 CFR 72.214. On May 1, 2000 (65 FR 25241), the NRC issued an amendment to 10 CFR part 72 that approved the HI-STORM 100 cask design by adding it to the list of NRC-approved cask designs in 10 CFR 72.214.

On November 28, 2009, and as supplemented on November 4 and December 14, 2010, and February 25 and July 8, 2011, Holtec International, the holder of CoC No. 1014, submitted a certificate amendment request to the NRC requesting an amendment to CoC No. 1014. Specifically, Holtec International requested changes to add a new multipurpose canister (MPC)-68M to the approved models currently included in CoC No. 1014 with two new boiling water reactor fuel assembly/array classes, and a new pressurized water reactor fuel assembly/class to CoC No. 1014 for loading into the MPC-32. In addition, the amendment would change: (1) Condition 5 of CoC No. 1014 to add “if applicable” after the reference to Section 3.5 of Appendix B, “Cask Transfer Facility (CTF)” to clarify that the CTF is an optional facility; (2) Appendix A, TS 1.1, to modify the CTF definition to clarify that it could be used in lieu of 10 CFR part 50 controlled structures for cask transfer evolutions; and (3) Table 3-1, MPC Cavity Drying Limits, to include the previously approved, but omitted table to eliminate inconsistencies between Table 3-1 and TS 3.1.1, Limiting Condition for Operation.

The alternative to this action is to withhold approval of Amendment No. 8 and to require any 10 CFR part 72 general licensee seeking to load spent nuclear fuel into HI-STORM 100 casks under the changes described in Amendment No. 8 to request an exemption from the requirements of 10 CFR 72.212 and 72.214. Under this alternative, each interested 10 CFR part 72 licensee would have to prepare, and the NRC would have to review, a separate exemption request, thereby increasing the administrative burden upon the NRC and the costs to each licensee.

Approval of the direct final rule is consistent with previous NRC actions. Further, as documented in the SER and the environmental assessment, the direct final rule will have no adverse effect on public health and safety or the environment. This direct final rule has no significant identifiable impact or benefit on other Government agencies. Based on this regulatory analysis, the NRC concludes that the requirements of the direct final rule are commensurate with the NRC's responsibilities for public health and safety and the common defense and security. No other available alternative is believed to be as satisfactory, and thus, this action is recommended.

Under the Regulatory Flexibility Act of 1980 (5 U.S.C. 605(b)), the NRC certifies that this rule will not, if issued, have a significant economic impact on a substantial number of small entities. This direct final rule affects only nuclear power plant licensees and Holtec International. These entities do not fall within the scope of the definition of “small entities” set forth in the Regulatory Flexibility Act or the size standards established by the NRC (10 CFR 2.810).

The NRC has determined that the backfit rule (10 CFR 72.62) does not apply to this direct final rule because this amendment does not involve any provisions that would impose backfits as defined in 10 CFR Chapter I. Therefore, a backfit analysis is not required.

Under the Congressional Review Act of 1996, the NRC has determined that this action is not a major rule and has verified this determination with the Office of Information and Regulatory Affairs, OMB.

For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; the Nuclear Waste Policy Act of 1982, as amended; and 5 U.S.C. 552 and 553; the NRC is adopting the following amendments to 10 CFR part 72.

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM published in the Federal Register on August 24, 2011 (76 FR 52899). That NPRM proposed to require doing certain wiring changes, installing a new relay and necessary wiring in the CACTCS, and performing an operational test of the cooling pack system.

We gave the public the opportunity to participate in developing this AD. We have considered the comments received. Boeing supports the NPRM (76 FR 52899, August 24, 2011). American Airlines stated that it is not affected by the NPRM.

We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting the AD as proposed except for minor editorial changes. We have determined that these minor changes:

• Are consistent with the intent that was proposed in the NPRM (76 FR 52899, August 24, 2011) for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM (76 FR 52899, August 24, 2011).

We estimate that this AD affects 35 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. 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.

We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect 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.

For the reasons discussed above, I certify that this AD:

(1) Is not a “significant regulatory action” under Executive Order 12866,

(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),

(3) Will not affect intrastate aviation in Alaska, and

(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the Federal Register on October 26, 2011 (76 FR 66198). The MCAI states:

You may obtain further information by examining the MCAI in the AD docket.

We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM (76 FR 66198, October 26, 2011), or on the determination of the cost to the public.

We reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed except for minor editorial changes. We have determined that these minor changes:

• Are consistent with the intent that was proposed in the NPRM (76 FR 66198, October 26, 2011), for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM (76 FR 66198, October 26, 2011).

We estimate that this AD will affect 39 products of U.S. registry. We also estimate that it will take about 10 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Required parts will cost about $0 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these parts. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of this AD to the U.S. operators to be $33,150, or $850 per product.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. 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.

We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect 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.

For the reasons discussed above, I certify that this AD:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);

3. Will not affect intrastate aviation in Alaska; and

4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket.

You may examine the AD docket on the Internet at http://www.regulations.gov; or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains the NPRM (76 FR 66198, October 26, 2011), the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone (800) 647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:

On December 29, 2009, we published a final rule requiring manufacturers of durable infant or toddler products to: (1) Provide with each product a postage-paid consumer registration form; (2) keep records of consumers who register such products with the manufacturer; and (3) permanently place the manufacturer's name and contact information, model name and number, and the date of manufacture on each such product. 74 FR 68668. The rule specified formatting and text requirements for the registration forms. Subsequently, we published a correction notice on February 22, 2010. 75 FR 7550. Since December 29, 2010, registration forms have been required for all durable infant or toddler products covered by the rule.

On August 8, 2011, we published a notice of proposed rulemaking to amend the rule in order to clarify or correct certain aspects of the rule. 76 FR 48053. Through this document, we are finalizing the amendment.

We note that, although manufacturers of durable infant or toddler products must comply with the registration requirements, they are not required to have a third party testing laboratory “test” their product's compliance with the registration requirements.

The CPSIA directed us to promulgate a final consumer product safety rule requiring manufacturers of durable infant or toddler products to establish and maintain consumer registration programs for such products. Section 104(d) of the CPSIA specified numerous requirements for the manufacturer's registration programs and for the Commission's rule. The rule we published on December 29, 2009 (74 FR 68668) carried out that statutory direction.

We received three comments on the proposed amendment that we had published on August 8, 2011. 76 FR 48053. These three comments raised four issues. One comment was from a consumer who generally supported the proposed amendment; the remaining two comments addressed particular aspects of the proposed amendment. We describe and respond to the comments in section C of this document and describe the final rule in section D. To make it easier to identify the comments and our responses, the word “Comment,” in parentheses, will appear before the comment's description, and the word “Response,” in parentheses, will appear before our response. We also have numbered each comment issue to help distinguish between different issues. The number assigned to each comment issue is purely for organizational purposes and does not signify the comment's value or importance, or the order in which it was received.

( Comment 1 ): As noted, one comment was from a consumer who generally supported the proposed amendment.

( Response 1 ): We agree that the changes will clarify the registration rule requirements.

( Comment 2): Another comment also supported the amendment, but requested that “if a third party is used for collecting the registration cards, then the manufacturer should be allowed to put the third party vendor or a `brand name' in lieu of a manufacturer's name.” The commenter explained that “[S]ometimes the manufacturer or importer's name may have little meaning to consumers who may be more inclined to fill out a registration card with a reputable processor they believe will be more likely to adhere to confidential treatment of submitted information or by identification of a product description with “Brand Name” that they more readily recognize than an unknown legal entity that is the manufacturer of the product.”

( Response 2): We proposed to amend the rule to state that if a manufacturer uses a third party to process the registration cards, the third party's name could be included as “in care of” (“c/o”) as part of the address on the form. The third party processor's name would be in addition to the manufacturer's name. Allowing a brand name to replace the manufacturer's name entirely, we believe, could confuse consumers and make it more difficult for consumers to report a problem with the product. Moreover, section 104(d)(2)(D) of the CPSIA requires that the manufacturer's name be on the registration form. However, we do agree that a consumer may be more likely to submit a registration card with a brand name that he or she is familiar with. For these reasons, we accept this suggestion in part. A manufacturer may list the brand name in addition to the manufacturer's name on the bottom front and the top back of the form, with the brand owner's permission.

( Comment 3): A third comment suggested that we allow Quick Response (“QR”) codes on registration cards. The comment explained that QR codes “are a type of matrix barcode that allow[s] storage of information, including links that direct consumers to a Web site when read with a readily available QR reader on a smart phone or other device.”

(Response 3): We agree that QR codes and other barcode technologies that allow consumers to use a smart phone or other device to reach a registration page may facilitate product registration; therefore, we have added paragraph (e) (Optional Barcode) to section 1130.6. Manufacturers who use these technologies must comply with all the requirements of this part 1130, including those in section 1130.7 and the restriction that the manufacturer shall not use or disseminate the consumer registration information for any purpose other than notifying the consumer of a safety alert or recall.

(Comment 4): One comment agreed with the proposed 12-month effective date, stating that it “is a reasonable time frame for all manufacturers to deplete their current inventory of registration cards.”

(Response 4): We agree with the comment and are finalizing the proposed effective date.

As originally published, § 1130.6 specifies requirements for the format of registration forms, and § 1130.7 specifies the requirements for the text of registration forms. In the preamble to the proposal, we stated that we believe explaining the requirements in this way may be confusing. 76 FR 48053-54. Therefore, we proposed eliminating this framework and collapsing the requirements from §§ 1130.6 and 1130.7 into one section and clarifying them. Id. We proposed describing the registration form more clearly, moving logically from the front top of the form to the front bottom of the form, to the back top of the form, and ending with the back bottom of the form. We proposed the following corresponding changes: combining the existing §§ 1130.6 and 1130.7 into a revised § 1130.6; renumbering existing §§ 1130.8 and 1130.9 as §§ 1130.7 and 1130.8, respectively; and changing references to §§ 1130.6 through 1130.9 (such as § 1130.3(a)(2), which refers to § 1130.9) to reflect the renumbered sections. Id.

We did not receive any negative comments on proposed § 1130.6 and the proposed corresponding references, and so we are finalizing them without change.

As originally published, § 1130.6(c) requires that registration forms use 12-point and 10-point type. Manufacturers and testing labs reported confusion concerning the physical size required for the type. The dictionary defines a “point” as 1/72 of an inch. However, according to font charts, font sizes used in printing do not follow this formula and are actually smaller than this measurement.

We proposed specifying the physical measurement of the type, rather than referring to “point.” For example, instead of requiring “12-point” type, we proposed stating in § 1130.6(b)(2) that “0.12-inch (3.0 mm) type” is required.

We did not receive any negative comments on proposed § 1130.6(b)(2) and are finalizing it without change.

Section 1130.6(a) of the rule requires firms to provide a form at least the size of two standard postcards, connected together by a perforated line, so that the two portions can be separated. The consumer retains the top portion, which contains a statement of the purpose of the card and the manufacturer's contact information. According to several manufacturers, consumers have been confused about what they need to return to the manufacturer, and some consumers have been sending in the entire form or the top portion of the form only.

As originally published, § 1130.7(b) requires that the back of the top portion of the form state the manufacturer's name and contact information (a U.S. mailing address, a telephone number, toll-free, if available), among other things. The example shown in Figure 1 of the rule shows this information to be center justified, which makes this look like a mailing address.

We proposed amending § 1130.6(d)(1)(i) to specify that the manufacturer's name and contact information on the top portion of the form is to be stated in sentence format and appear underneath the heading: “ Manufacturer's Contact Information.” In Figure 2, we proposed that the order of the manufacturer's contact information and the model name, model number, and manufacture date would be reversed from the order in the original Figure 2. This places the manufacturer's contact information on top and decreases the likelihood that a consumer would return the top part of the form.

In addition, we proposed adding a new provision in § 1130.6(d)(1)(ii), requiring that just above the perforation line, each form must state in capital letters: “KEEP THIS TOP PART FOR YOUR RECORDS. FILL OUT AND RETURN BOTTOM PART.”

Finally, we proposed revising the wording in the purpose statement to clarify that consumers should mail the bottom part of the form. As originally published, § 1130.7(a) and Figure 1 stated: “please complete and mail this card.” We proposed that § 1130.6(c)(1) and Figure 1 state: “please complete and mail the bottom part of this card.”

As discussed in section C of this preamble, we received a comment asking us to allow the brand name in lieu of the manufacturer's name on registration cards. We are accepting this suggestion in part and have revised § 1130.6(d)(1)(i) to allow the manufacturer to list the brand name in addition to the manufacturer's name.

As originally published, (and then corrected in February 2010), § 1130.7(d) requires that the bottom back portion of the form state the manufacturer's name with the product information. However, the illustration in Figure 2 of the rule does not show the manufacturer's name in this location. Some manufacturers pointed out that there is limited space on this part of the form, and they suggested that omitting the manufacturer's name would allow more space for the consumer's information.

We proposed (in § 1130.6(d)(2)) omitting the requirement that the manufacturer's name be stated along with the product information at the back bottom portion of the form. We stated in the preamble to the proposed rule that we will allow a manufacturer to include its name on the back portion of the card if it wants to do so.

We received no negative comments on proposed § 1130.6(d)(2) and are finalizing it without change.

As originally published, § 1130.6(b)(3) requires that the registration form be pre-addressed “with the manufacturer's name and mailing address where registration information is to be collected.” As discussed in the preamble to the final rule (74 FR at 68670), a manufacturer is allowed to contract with a third party who would be responsible for maintaining the registration information. Some manufacturers asked whether the third party's name could appear in the mailing information on the form in these circumstances.

We proposed stating in § 1130.6(c)(2) that, if a manufacturer uses a third party to process the registration forms, the third party's name may be included as a “c/o” on the form. As discussed in section C of this preamble, we received a comment asking us to allow a “brand name” in lieu of the manufacturer's name. In response to the comment, we have revised § 1130.6(c)(2) to allow the manufacturer to add a brand name on the bottom front of the registration form.

Several manufacturers asked whether the consumer registration information they receive must be maintained at a location in the United States. As originally published, the rule does not specifically address this issue.

In the preamble to the proposed rule, we stated that because so much data and information are kept electronically and can be retrieved quickly, we do not believe that it is necessary to require that registration information be maintained in the United States. 76 FR 48054. However, manufacturers must be able to access the information when requested. Therefore, we proposed stating in § 1130.8(d) that registration records shall be made available within 24 hours of a request by the CPSC.

We received no negative comments on this provision and are finalizing it without change.

As originally published, § 1130.7(a) provides, in part, that: “The front top portion of each form shall state `PRODUCT REGISTRATION FOR SAFETY ALERT OR RECALL. We will use the information provided on this card to contact you only if there is a safety alert or recall for this product. We will not sell, rent, or share your personal information. To register your product, please complete and mail this card or visit our online registration at http://www.Web sitename.com. ' ” In the preamble to the proposed rule, 76 FR 48054, we noted that there are two discrepancies between the wording of the text and the illustration in Figure 1.

To make the text and Figure 1 consistent, we proposed making two changes to the text in § 1130.6(c)(1): Adding the word “ONLY” at the end of the first sentence, and deleting “http//from the Web site name.

We received no comment on this provision and are finalizing it without change.

As discussed in section C of this preamble, we received a comment asking us to allow QR codes on registration forms. We are adding a new paragraph (e) to § 1130.6 to give manufacturers the option of including a barcode, or other machine readable data, that would provide a link for the consumer to register the product. If manufacturers use this technology they must comply with all the requirements of the rule.

We stated in the preamble to the proposed rule, 76 FR 48055, that we recognize that manufacturers may have an existing inventory of registration forms and that the changes to the forms are minor and would not affect safety. We proposed that the amendment would take effect 12 months after publication of a final rule. We also stated that until the amendment takes effect, we would consider registration forms to be in compliance that meet either the existing rule or the amendment. Id. We received one comment in favor of the proposed effective date. Therefore, the final rule provides a 12-month effective date.

The Regulatory Flexibility Act (“RFA”) generally requires that agencies review proposed rules for their potential economic impact on small entities, including small businesses. However, as we noted in the preamble to the proposed rule, id., section 104(d)(1) of the CPSIA removes this requirement for the rule implementing the CPSIA's consumer registration provision. Consequently, no regulatory flexibility analysis or certification is necessary for this proposed amendment clarifying and correcting the consumer registration rule. Moreover, the changes are minor and will not alter the impact that the registration rule has on small entities.

Section 104(d)(1) of the CPSIA also excludes the consumer registration rule from requirements of the Paperwork Reduction Act, 44 U.S.C. sections 3501 through 3520. Consequently, no Paperwork Reduction Act analysis is necessary for this amendment clarifying and correcting the consumer registration rule. Moreover, the changes are minor and will not alter any collection of information required under the registration rule.

Our regulations provide a categorical exemption for our rules from any requirement to prepare an environmental assessment or an environmental impact statement as they “have little or no potential for affecting the human environment.” 16 CFR 1021.5(c)(2). This amendment falls within the categorical exemption.

Accordingly, we amend 16 CFR part 1130 as follows:

In the Federal Register of November 25, 2011 (76 FR 72617), FDA issued a final rule codifying a method of detection for residues of n -methyl-2-pyrrolidone in edible tissues of cattle. That document contained a universal resource locator (URL) linking to the Agency's Web site that did not reflect the most recent URL. This document corrects the URL.

Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs and redelegated to the Center for Veterinary Medicine, 21 CFR part 500 is amended as follows:

The Coast Guard will enforce the Blair Waterway Security Zone set forth in paragraph (c) (1) of 33 CFR 165.1321 on February 17, 2012 at 6 a.m. through 11:59 p.m. on February 21, 2012 unless cancelled sooner by the Captain of the Port or Designated Representative. Under the provisions of 33 CFR 165.1321, the Coast Guard published a final rule for the security of Department of Defense assets and military cargo in the navigable waters of Puget Sound and adjacent waters. The security zone will provide for the regulation of vessel traffic in the vicinity of military cargo loading facilities in the navigable waters of the United States. This security zone also excludes persons and vessels from the immediate vicinity of these facilities during military cargo loading and unloading operations. In addition, the regulation establishes requirements for all vessels to obtain permission of the COTP or Designated Representative, including the Vessel Traffic Service (VTS), to enter, move within, or exit this security zone when it is enforced. Entry into this zone is prohibited unless otherwise exempted or excluded under 33 CFR 165.1321 or unless authorized by the Captain of the Port or Designated Representative.

This notice is issued under authority of 33 CFR 165.1321 and 5 U.S.C. 552(a). In addition to this notice in the Federal Register , the Coast Guard will provide the maritime community with extensive advance notification of this enforcement period via the Local Notice to Mariners, marine information broadcasts, local radio stations and area newspapers.

If the COTP determines that the regulated area need not be enforced for the full duration stated in this notice, he may use a Broadcast Notice to Mariners to grant general permission to enter the regulated area.

Throughout this document “we,” “us,” or “our” refer to EPA.

EPA established NAAQS for lead on October 5, 1978 (43 FR 46246). The 1978 NAAQS for lead is set at a level of 1.5 μg/m 3 of air, averaged over a calendar quarter. The Herculaneum, Missouri area is designated nonattainment for the 1978 lead NAAQS. The area is also designated nonattainment for the lead NAAQS promulgated by EPA in 2008, published on November 12, 2008 (73 FR 66964). The action which is the subject of today's notice addresses only the State's obligations regarding the 1978 standard. A SIP addressing the 2008 standard is due no later than June 30, 2012.

From 2002 to 2005, ambient air monitors in the Herculaneum area monitored attainment of the 1978 lead NAAQS for 10 consecutive calendar quarters. Despite implementation of all contingency measures specified by the approved 2002 SIP (67 FR 18497), in the first two quarters of 2005, air quality monitors in the area recorded violations of the 1978 lead NAAQS, which is 1.5 μg/m 3 lead. Because of these violations of the 1978 lead NAAQS, EPA proposed and subsequently finalized a SIP Call on April 14, 2006 (71 FR 19432). The SIP Call notified the State of EPA's finding that the SIP was substantially inadequate to provide for attainment and maintenance of the lead NAAQS in Herculaneum, and required the State to submit a revised SIP within 12 months of the finding.

On May 31, 2007, EPA received Missouri's revised SIP dated April 26, 2007, for the Herculaneum area. MDNR submitted supplemental information to EPA on March 19, 2008. The 2007 SIP submission addressed most of the criteria set forth in the SIP Call, with the exception that process ventilation requirements had not yet been established. On October 8, 2008, EPA proposed conditional approval of Missouri's SIP submissions for May 31, 2007, and March 19, 2008 (73 FR 58913), pending the establishment of enforceable ventilation requirements. The reader should refer to the proposed conditional approval for a detailed discussion of the 2007 SIP submittal, and the rationale for proposing to approve it with conditions.

On September 3, 2009, EPA received the SIP revision addressing ventilation controls, following adoption by the Missouri Air Conservation Commission on July 29, 2009. EPA determined that the SIP revision contains enforceable ventilation conditions to ensure adequate building particle capture. On August 27, 2010, EPA proposed full approval of Missouri's SIP, including the May 31, 2007, SIP submittal; the March 19, 2008, supplemental information; and the September 3, 2009, supplemental SIP revision; to bring Herculaneum into attainment of the 1978 lead NAAQS (75 FR 52701). A detailed rationale for the proposed approval was included in the August 27, 2010, supplemental proposal.

The October 8, 2008, proposed conditional approval contains an extensive description of the operation of the smelter, and a discussion of Missouri's SIP. The proposed conditional approval includes a discussion of air dispersion model selection, and meteorological and emissions inventory input data, among other elements. The control strategy and contingency measures are incorporated into the 2007 Consent Judgment between Missouri and Doe Run. For more information on these elements, and EPA's analysis of them, please refer to the October 8, 2008 Federal Register (73 FR 58913) and associated docket.

The September 3, 2009, SIP revision addressing building ventilation requirements, supplements the May 2007 SIP submission. Ventilation controls include flow rate and fan amperage limits for the Sinter Plant, Blast Furnace Building, and Refinery Building that result in a minimum inflow of air at all openings (e.g., doors) to demonstrate that each building is under negative pressure. The 2009 supplemental SIP revision includes the revised Work Practices Manual, as well as the Consent Judgment amended to include the ventilation controls, associated implementation schedules, and contingency measures. The 2009 amended Consent Judgment and Work Practices Manual are enforceable documents included in Missouri's SIP submittal, and, by virtue of this approval, are Federally enforceable as well. For additional information on these elements, please refer to the August 27, 2010, Federal Register (75 FR 52701) and associated docket.

MDNR has revised the Work Practices Manual to include the additional recordkeeping, compliance monitoring, and corrective action requirements associated with building ventilation. The facility is required to measure flow rates once per minute using an automatic data logging system and to conduct an inflow test of all applicable doors and openings each calendar quarter. Doe Run must submit quarterly reports to MDNR summarizing any violations of flow rate and amperage requirements, and corrective actions taken. Finally, if an ambient air quality monitor in Herculaneum exceeds 1.4 μg/m 3 of lead, the facility must conduct a fluid modeling study of flow patterns within process buildings to determine whether additional ventilation controls are appropriate.

In addition to the ventilation control requirements, the Work Practices Manual has also been revised to prohibit construction when temperatures are below 39 degrees Fahrenheit. During the first quarter of 2008, the facility monitored a violation of the 1978 lead NAAQS primarily due to in-plant road dust from construction equipment activities during periods of time when the watering system at the plant was not operating. Limiting construction when the plant watering system cannot be operated for dust suppression is expected to decrease the lead concentrations in ambient air.

EPA has determined that the September 3, 2009, supplemental SIP revision contains the necessary enforceable conditions for ventilation-related control measures. EPA described its analysis of these ventilation requirements in the supplemental proposal, and incorporates its analysis in this final action.

The Main Street monitor operated by MDNR is the closest ambient air monitor to the Herculaneum facility. Since the first quarter of 2008, the Main Street monitor has reported 12 consecutive quarterly averages, or three years, of lead concentrations that attain the 1978 lead NAAQS (1.5 μg/m 3 ). Lead concentrations measured by MDNR at the Main Street monitor from the second quarter of 2008 to the present range from 0.662 μg/m 3 , reported for October through December of 2009, to 1.124 μg/m 3 , reported for July through September 2009.

Modeling conducted by MDNR as a part of its 2007 SIP attainment demonstration predicts an ambient lead concentration of 1.49 μg/m 3 at the facility fence line. A comparison of the SIP attainment demonstration modeling with the measured ambient lead concentrations over the past three years, described above, indicates that the model conservatively predicts ambient lead concentrations and provides further assurance that the control strategy provides for attainment of the 1978 lead NAAQS.

EPA received one set of comments from Doe Run on its October 8, 2008, proposed conditional approval of Missouri's SIP submission (73 FR 58913). EPA is responding to this set of comments in this final action. EPA did not receive any comments on the supplemental proposed rule.

On November 7, 2008, Doe Run commented that EPA should grant full approval of the 2007 Missouri SIP submittal for attainment of the 1978 lead NAAQS at the Herculaneum facility. The basis of this comment was:

1. Doe Run proceeded to install and implement the controls and measures specified by the 2007 SIP submission even though EPA had not approved the SIP;

2. EPA points to no specific SIP deficiency under section 110 of the CAA in its proposal to conditionally rather than fully approve the SIP submittal;

3. It is unnecessary for EPA to further delay final and full approval to ensure the enforceability of the SIP submittal;

4. The buildings included in the ventilation study upon which final approval is predicated have been and continue to maintain adequate inflow and building closures control fugitive emissions as intended by the SIP submittal; and

5. The modeling demonstration supports full approval.

In this action, EPA is granting full approval to the Missouri SIP submittal (consisting, as stated previously, of the initial 2007 submittal, the 2008 supplemental information, and the 2009 supplemental SIP revision) so that the comment requesting full approval of the prior submission is no longer relevant. However, we note that EPA initially proposed conditional approval of the SIP submittal based on the requirement of section 110(a)(2)(A) of the CAA which states that SIPs shall include enforceable emission limitations and other control measures that may be necessary or appropriate to meet the applicable requirements of the CAA. Until the 2009 supplemental SIP revision was received, the ventilation controls, which are a necessary part of the emission reduction strategy for attaining the 1978 lead NAAQS, were not permanent and enforceable. With this final action, the obligation to continue to meet these requirements is now mandated by the SIP, as required by section 110(a)(2)(A).

This rulemaking takes final action to approve the Missouri SIP containing control measures to bring the Herculaneum area into attainment with the 1978 lead NAAQS (1.5 μg/m 3 ). The 2007 SIP submittal, 2008 supplemental information, and the 2009 supplemental SIP revision (which includes the revised Work Practices Manual and the 2007 Missouri Consent Judgment with the 2009 amendment to include enforceable ventilation control requirements) together demonstrate attainment of the 1978 lead NAAQS and fulfill the requirements of the CAA. EPA notes that although this SIP revision is directionally correct in terms of achieving reductions in lead emissions, the State remains obligated to submit a SIP to attain the 2008 lead NAAQS.

Under the CAA, the Administrator is required to approve a SIP submission that the Administrator determines to be in compliance 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 final 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 final action:

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

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

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

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

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

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

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

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

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

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

The Congressional Review Act, 5 U.S.C. 801 et seq., as 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 Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 17, 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. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR part 52 is amended as follows:

Regional Office Contacts Region I—Alison Simcox (617) 918-1684, Region II—Kenneth Fradkin (212) 637-3702, Region III—Maria Pino (215) 814-2181, Region IV—Steve Scofield (404) 562-9034, Region V—John Summerhays (312) 886-6067, Region VI—Joe Kordzi (214) 665-7186, Region VII—Amy Algoe-Eakin (913) 551-7942, Region VIII—Catherine Roberts (303) 312-6025, Region IX—Eleanor Kaplan (415) 972-4147, Region X—Krishna Viswanathan (206) 553-2684.

The public may inspect the rule and state-specific technical support information at the following locations:

The following is an outline of the Preamble.

The following are abbreviations of terms used in the preamble.

The purpose of this action is to promulgate and announce initial area designations for all areas of the country for the 2010 NO 2 NAAQS based on available information, in accordance with the requirements of the Clean Air Act (CAA). The list of all areas being designated in each state, and the boundaries of each area, appear in the tables at the end of this final rule. The EPA has been working closely with the states involved in these designations and several steps have been taken to announce that this rule is available. The EPA has posted the notice on several EPA Web sites.

This notice identifies all areas of the United States (U.S.) as being designated as “unclassifiable/attainment” for the 2010 NO 2 NAAQS. The basis for designating these areas as “unclassifiable/attainment” is monitored air quality data from calendar years 2008-2010 indicating no violations of the NAAQS.

The EPA and state agencies are currently working to establish an expanded network of NO 2 monitors, expected to be deployed in 2013. Once 3 years of air quality data have been collected from the expanded network, the EPA will be able to evaluate NO 2 air quality in additional locations.

NO 2 is a reddish-brown, highly reactive gas that is formed in the ambient air through the oxidation of nitric oxide (NO). Nitrogen oxides (NO X ) is the term used to describe the sum of NO, NO 2 , and other oxides of nitrogen. A variety of NO X compounds and their transformation products occur both naturally and as a result of human activities. Anthropogenic (i.e., manmade) emissions of NO X account for a large majority of all nitrogen inputs to the environment. The major sources of anthropogenic NO X emissions are high-temperature combustion processes, such as those occurring in automobiles and power plants. Most NO X from combustion sources (about 95 percent) are emitted as NO, which is readily converted to NO 2 in the environment; the remainder is emitted largely as NO 2 . Natural sources of NO X are lightning, biological and abiological processes in soil, and stratospheric intrusion.

Current scientific evidence links short-term NO 2 exposures, ranging from 30 minutes to 24 hours, with an array of adverse respiratory effects including increased asthma symptoms, more difficulty controlling asthma, and an increase in respiratory illnesses and symptoms. Studies also show a connection between short-term exposure and increased visits to emergency departments and hospital admissions for respiratory illnesses, particularly in populations including children, the elderly, and asthmatics.

The EPA's NAAQS for NO 2 is designed to protect against exposure to the entire group of NO X . NO 2 is the component of greatest concern and is used as the indicator for the larger group of NO X . ( See 75 FR 6474.)

After the promulgation of a new or revised NAAQS, the EPA is required to designate areas as nonattainment, attainment, or unclassifiable, pursuant to section 107(d)(1) of the CAA. The Administrator signed a final rule revising the NO 2 NAAQS on January 22, 2010, which was published in the Federal Register on February 9, 2010, and became effective April 12, 2010. Based on the Administrator's review of the scientific evidence, including numerous studies published since the last review of the NO 2 NAAQS, and taking into consideration the comments expressed by the Clean Air Scientific Advisory Committee and the public, the Administrator set a new 1-hour NO 2 standard at the level of 100 parts per billion (ppb). In addition to establishing an averaging time and level, the Administrator also set a new form for the standard. The form for the 1-hour NO 2 standard is the 3-year average of the 98th percentile of the annual distribution of daily maximum 1-hour average concentrations. The rule also retained, with no change, the current annual average NO 2 standard of 53 ppb.

The rule also set new requirements for the placement of NO 2 monitors. The EPA and state agencies are currently working to establish an expanded network of NO 2 monitors, expected to be deployed in 2013. NO 2 concentrations near major roads are appreciably higher than those measured at monitors in the current network. Monitoring studies indicate that near-road (within about 50 meters) concentrations of NO 2 can be 30 to 100 percent higher than concentrations away from major roads.

The CAA requires the EPA to complete the initial area designation process within 2 years of promulgating a new or revised NAAQS. However, if the Administrator has insufficient information to make these designations within that time frame, the EPA has the authority to extend the designation process by up to 1 additional year.

By not later than 1 year after the promulgation of a new or revised NAAQS, each state governor is required to recommend air quality designations, including the appropriate boundaries for areas, to the EPA. The EPA reviews those state recommendations and is authorized to make any modifications the Administrator deems necessary. The statute does not define the term “necessary,” but the EPA interprets this to authorize the Administrator to modify designations that did not meet the statutory requirements or were otherwise inconsistent with the facts or analysis deemed appropriate by the EPA. If the EPA is considering modifications to a state's initial recommendation, the EPA is required to notify the state of any such intended modifications to its recommendation not less than 120 days prior to the EPA's promulgation of the final designation. If the state does not agree with the EPA's intended modification, it then has an opportunity to respond to the EPA and to demonstrate why it believes the modification proposed by the EPA is inappropriate. Even if a state fails to provide any recommendation for an area, in whole or in part, the EPA still must promulgate a designation that the Administrator deems appropriate.

Section 107(d)(1)(A)(i) of the CAA defines a nonattainment area as any area that does not meet an ambient air quality standard or that is contributing to ambient air quality in a nearby area that does not meet the standard. If an area meets either prong of this definition, then the EPA is obligated to designate the area as “nonattainment.” Section 107(d)(1)(A)(iii) provides that any area that the EPA cannot designate on the basis of available information as meeting or not meeting the standards should be designated as “unclassifiable.”

The EPA believes that section 107(d) provides the agency with discretion to determine how best to interpret the terms in the definition of a nonattainment area (e.g., “contributes to” and “nearby”) for a new or revised NAAQS, given considerations such as the nature of a specific pollutant, the types of sources that may contribute to violations, the form of the standards for the pollutant, and other relevant information. In particular, the EPA believes that the statute does not require the agency to establish bright line tests or thresholds for what constitutes “contribution” or “nearby” for purposes of designations. 1

Similarly, the EPA believes that the statute permits the EPA to evaluate the appropriate application of the term “area” to include geographic areas based upon full or partial county boundaries, and contiguous or non-contiguous areas, as may be appropriate for a particular NAAQS. For example, section 107(d)(1)(B)(ii) explicitly provides that the EPA can make modifications to designation recommendations for an area “or portions thereof,” and, under section 107(d)(1)(B)(iv), a designation remains in effect for an area “or portion thereof” until the EPA redesignates it.

Designation activities for federally-recognized tribes are covered under the authority of section 301(d) of the CAA. This provision of the CAA authorizes the EPA to treat eligible tribes in a similar manner as states. Pursuant to section 301(d)(2), we promulgated regulations, known as the Tribal Authority Rule (TAR), on February 12, 1999. See 63 FR 7254, codified at 40 CFR 49 (1999). That rule specifies those provisions of the CAA for which it is appropriate to treat tribes in a similar manner as states. Under the TAR, tribes may choose to develop and implement their own CAA programs, but are not required to do so. The TAR also establishes procedures and criteria by which tribes may request from the EPA a determination of eligibility for such treatment. The designations process contained in section 107(d) of the CAA is included among those provisions determined to be appropriate by the EPA for treatment of tribes in the same manner as states. Under the TAR, tribes generally are not subject to the same submission schedules imposed by the CAA on states. As authorized by the TAR, tribes may seek eligibility to submit designation recommendations to the EPA. In addition, CAA section 301(d)(4) gives the EPA discretionary authority, in cases where it determines that treatment of tribes as identical to states is “inappropriate or administratively infeasible,” to provide for direct administration by regulation to achieve the appropriate purpose.

Designation recommendations and supporting documentation for the NO 2 NAAQS were submitted by most states and a few tribes to the EPA by January 22, 2011. After receiving recommendations from states and tribes, and after reviewing and evaluating each recommendation, the EPA provided a response to the states and tribes on June 29, 2011. In these letter responses, we indicated whether the EPA intended to make modifications to the initial state or tribal recommendations and explained the EPA's reasons for making any such modifications. The EPA requested that states and tribes respond to any proposed EPA modifications by August 29, 2011. We received comments from some states suggesting changes to the EPA's proposed modifications and providing additional information. The EPA evaluated these comments, and, as a result, some of the final designations reflect further modifications to the initial state and tribal recommendations. The state and tribal letters, including the initial recommendations, the EPA's June 2011 responses to those letters, including any modifications, and the subsequent state and tribal comment letters are in the docket for this action.

Although not required by section 107(d) of the CAA, the EPA also provided an opportunity for members of the public to comment on the EPA's June 2011 response letters. In order to gather additional information for the EPA to consider before making final designations, EPA published a notice on July 7, 2011, (76 FR 39798) which invited the public to comment on the EPA's intended designations. In that notice, the EPA provided the opportunity to all interested parties other than states and tribes to submit comments by August 8, 2011. State and tribal initial recommendations and EPA's responses, including modifications, were posted on a publically accessible Web site ( http://www.epa.gov/airquality/nitrogenoxides/designations/index.html ). Comments from the public and EPA's responses to comments are in the docket for this action.

In the notice of proposed rulemaking for the revised NO 2 NAAQS (73 FR 29184), the EPA issued proposed guidance, on its approach to implementing the standard, including its approach to initial area designations. The EPA solicited comment on that guidance and, in the notice of final rulemaking (75 FR 6475), adopted guidance concerning how to designate areas for the NO 2 NAAQS. In that guidance the EPA recommended that monitoring data using the 3 most recent years of quality-assured air quality data from the current monitoring network, which would be for the years 2008-2010, be used to identify violations of the NO 2 NAAQS. The EPA is basing these final designations on monitored NO 2 concentrations from Federal Reference Method (FRM) monitors from calendar years 2008-2010.

In the guidance, the EPA stated that in the event that a current NO 2 monitor indicates a violation of the revised standards, the EPA intends to designate such areas “nonattainment” no later than 2 years following promulgation of the revised standards. The EPA also stated that it intends to designate the rest of the country as “unclassifiable” for the revised NO 2 NAAQS until sufficient air quality data is collected from a near-roadway monitoring network. Once the near-roadway network is fully deployed and 3 years of air quality data are available, the EPA has authority under the CAA to redesignate areas as appropriate from “unclassifiable” to “attainment” or “nonattainment.” The EPA anticipates that sufficient data to conduct redesignations would be available after 2015.

In the EPA's June 2011 response letters to state and tribal recommendations, the EPA stated that in response to recommendations and review of the 2008-2010 monitored NO 2 concentrations, it intended to designate all areas of the U.S. as “unclassifiable/attainment.” The EPA uses this designation in practice for initial designations to mean that available information does not indicate that the air quality in these areas exceeds the 2010 NO 2 NAAQS.

In the EPA's June 2011 response letters to state and tribal recommendations, the EPA recommended that states and tribes consider implications for the prevention of significant deterioration of air quality (PSD) program when proposing their boundaries. Several states responded by providing suggested changes to their recommended boundaries. The EPA has accepted these changes and has applied them in these final designations.

The EPA received comments from one state and one trade association, both indicating that the EPA should designate areas as “attainment” rather than “unclassifiable/attainment.”

The trade association commenter stated that a designation of “attainment” signifies the air is healthy while a designation of “unclassifiable” does not. The commenter acknowledges the concern that the current monitoring network is inadequate in many instances to determine if an area meets the 2010 NO 2 NAAQS. Nonetheless, the commenter believes a designation of “attainment” is appropriate where current monitoring shows no violations. The commenter acknowledges that redesignation to “nonattainment” would be appropriate if new monitors show violations of the 2010 NO 2 NAAQS.

The second comment, from a state, restated their recommendation that their entire state should be designated as “attainment.” In their comment, they provide 2007-2010 data from seven NO 2 monitors operated in the state. The commenter points out that no single year 98th percentile has exceeded 44 percent of the 2010 NO 2 NAAQS and design values have not exceeded 42 percent of the 2010 NO 2 NAAQS.

After considering state and public comments on the EPA's June 2011 response letters to state and tribal recommendations, the EPA is finalizing designations for all areas of the U.S. as “unclassifiable/attainment.” This designation is intended to indicate that for the purposes of initial area designations, available information does not indicate that air quality in these areas exceeds the NAAQS.

Although all existing community-based monitoring sites indicate attainment with the NO 2 NAAQS, the existing NO 2 monitoring network does not fully portray or represent the NO 2 concentrations near roadways. Until more complete information on NAAQS compliance is available, the EPA does not believe a designation of “attainment” is appropriate.

The CAA's PSD requirements are designed to ensure that economic growth will occur in a manner consistent with preserving clean air in areas not currently violating the NAAQS ( see CAA sections 160-169). In such areas, new or modified major sources of NO 2 must comply with maximum allowable increases (increments) in concentrations of NO 2. In some parts of the U.S., “baseline areas” have already been established for NO 2 increment analysis under the designations associated with the existing NO 2 annual NAAQS. 2 The boundaries for such areas are not affected by the newly designated areas listed as “unclassifiable/attainment” for the 1-hour NO 2 NAAQS. In addition, any increment baseline areas created in the future for the annual NO 2 standard should be based on the existing designations that are associated with (and continue to apply to) the NO 2 annual NAAQS.

The final NO 2 designations contained in this action are based upon air quality monitoring data from calendar years 2008-2010.

All counties, partial counties or Air Quality Control Regions listed in the table at the end of this document are designated as indicated. There are no areas of Indian country being designated nonattainment at this time.

Information providing the basis for this action and related decisions are provided in the docket for this rulemaking. The applicable EPA guidance memoranda, and copies of correspondence regarding this process between the EPA and the states, tribes, and other parties are available for review at the EPA Docket Center listed above in the addresses section of this document and on our designation Web site at http://www.epa.gov/airquality/nitrogenoxides/designations/index.html. State-specific information is available from the EPA Regional Offices.

Upon promulgation of a new or revised NAAQS, the CAA requires the EPA to designate areas as attaining or not attaining the NAAQS. The CAA then specifies requirements for areas based on whether such areas are attaining or not attaining the NAAQS. In this final rule, the EPA assigns designations to areas as required.

This action will respond to the requirement to promulgate air quality designations after promulgation of a NAAQS. This type of action is exempt from review under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011).

This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. Burden is defined at 5 CFR 1320.3(b). This rule responds to the requirement to promulgate air quality designations after promulgation of a new or revised NAAQS. This requirement is prescribed in the CAA section 107. The present final rule does not establish any new information collection requirements.

This final rule is not subject to the Regulatory Flexibility Act (RFA), which generally requires an agency to prepare a regulatory flexibility analysis for any rule that will have a significant economic impact on a substantial number of small entities. The RFA applies only to rules subject to notice-and-comment rulemaking requirements under the Administrative Procedure Act (APA) or any other statute. This rule is not subject to notice-and-comment requirements under the APA or any other statute because the rule is subject to CAA section 107(d)(2)(B), which does not require that the agency issue a notice of proposed rulemaking before issuing this rule.

This action contains no federal mandate under the provisions of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531-1538 for state, local, or tribal governments or the private sector. The action imposes no enforceable duty on any state, local or tribal governments or the private sector. Therefore, this action is not subject to the requirements of sections 202 and 205 of the UMRA.

This action is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments. It does not create any additional requirements beyond those of the CAA and NO 2 NAAQS (40 CFR 50.11). The CAA establishes the process whereby states take primary responsibility in developing plans to meet the NO 2 NAAQS.

This final rule does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. The CAA establishes the process whereby states take primary responsibility in developing plans to meet the NO 2 NAAQS. This rule will not modify the relationship of the states and the EPA for purposes of developing programs to implement the NO 2 NAAQS. Thus, Executive Order 13132 does not apply to this rule.

This action does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). This rule concerns the designation of areas for the 1-hour NO 2 NAAQS. The CAA provides for states and eligible tribes to develop plans to regulate emissions of air pollutants within their areas, as necessary, based on the designations. The TAR provides tribes the opportunity to apply for eligibility to develop and implement CAA programs such as programs to attain and maintain the NO 2 NAAQS, but it leaves to the discretion of the tribe the decision of whether to apply to develop these programs and which programs, or appropriate elements of a program, the tribe will seek to adopt. This rule does not have a substantial direct effect on one or more Indian tribes. It does not create any additional requirements beyond those of the NO 2 NAAQS (40 CFR section 50.11). This rule establishes the designation for certain areas of the country for the NO 2 NAAQS but no areas in Indian country are being designated nonattainment under this rule. Consequently, no tribe has any immediate requirement to implement a CAA program to attain the 1-hour NO 2 NAAQS in Indian Country at this time. Furthermore, this rule does not affect the relationship or distribution of power and responsibilities between the federal government and Indian tribes. The CAA and the TAR establish the relationship of the federal government and tribes in developing plans to attain the NAAQS, and this rule does nothing to modify that relationship. Thus, Executive Order 13175 does not apply to this action.

Although Executive Order 13175 does not apply to this action, the EPA communicated with tribal leaders and environmental staff regarding the designations process. The EPA also sent individualized letters to all federally recognized tribes to explain the designation process for the 2010 NO 2 NAAQS, to provide the EPA designations guidance, and to offer consultation with the EPA. The EPA provided further information to tribes through presentations at the National Tribal Forum and through participation in National Tribal Air Association conference calls. The EPA also sent individualized letters to all federally recognized tribes that submitted recommendations to the EPA about the EPA's intended designations for the NO 2 standards and offered tribal leaders the opportunity for consultation. These communications provided opportunities for tribes to voice concerns to the EPA about the general designations process for the NO 2 NAAQS, as well as concerns specific to a tribe, and informed the EPA about key tribal concerns regarding designations as the rule was under development.

The EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the Executive Order has the potential to influence the regulation. This action is not subject to Executive Order 13045 because it does not establish an environmental standard intended to mitigate health or safety risks.

This action is not subject to Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not a significant regulatory action under Executive Order 12866.

Section 12(d) of the NTTAA of 1995, Public Law 104-113, section 12(d) (15 U.S.C. 272 note) directs the EPA to use voluntary consensus standards (VCS) in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impracticable. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by VCS bodies. The NTTAA directs the EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable VCS.

This action does not involve technical standards. Therefore, the EPA did not consider the use of any VCS.

Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the U.S.

The CAA requires that the EPA designate as nonattainment “any area that does not meet (or that contributes to ambient air quality in a nearby area that does not meet) the national primary or secondary ambient air quality standard for the pollutant.” By designating as nonattainment all areas where available information indicates a violation of the NO 2 NAAQS, this action protects all those residing, working, attending school, or otherwise present in those areas regardless of minority or economic status.

EPA has determined that this final rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it increases the level of environmental protection for all affected populations without having any disproportionately high and adverse human health or environmental effects on any population, including any minority or low-income population

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 U.S. The 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 U.S. 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). This rule will be effective February 29, 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: (i) When the agency action consists of “nationally applicable regulations promulgated, or final actions taken, by the Administrator,” or (ii) when 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.”

This rule designating areas for the 2010 NO 2 NAAQS is “nationally applicable” within the meaning of section 307(b)(1). This rule establishes designations for areas across the U.S. for the 2010 NO 2 NAAQS. At the core of this rulemaking is EPA's interpretation of the definition of nonattainment under section 107(d)(1) of the CAA, and its application of that interpretation to areas across the country.

For the same reasons, the Administrator also is determining that the final designations are of nationwide scope and effect for the purposes of section 307(b)(1). This is particularly appropriate because, in the report on the 1977 Amendments that revised section 307(b)(1) of the CAA, Congress noted that the Administrator's determination that an action is of “nationwide scope or effect” would be appropriate for any action that has a scope or effect beyond a single judicial circuit. H.R. Rep. No. 95-294 at 323, 324, reprinted in 1977 U.S.C.C.A.N. 1402-03. Here, the scope and effect of this rulemaking extends to numerous judicial circuits since the designations apply to areas across the country. In these circumstances, section 307(b)(1) and its legislative history calls for the Administrator to find the rule to be of “nationwide scope or effect” and for venue to be in the D.C. Circuit.

Thus, any petitions for review of final designations 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 .

For the reasons set forth in the preamble, 40 CFR Part 81, is amended as follows: