We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2003-12-14, Amendment 39-13199 (68 FR 36900, June 20, 2003). That AD applies to the specified products. The NPRM published in the Federal Register on July 25, 2012 (77 FR 43550). That NPRM proposed to require determining the engine history; performing a one-time visual inspection of the axial compressor for erosion; performing initial and repetitive cleaning of the gas generator hollow shaft; and replacing the rear bearing if the amount of dust collected during cleaning exceeds 8 grams. That NPRM also included an optional terminating action. That NPRM also removed Turbomeca S.A. Arriel 1E and 1K turboshaft engines from the applicability section of the AD. The 1E engine is no longer in service. The 1K engine is not an FAA validated engine.

We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the proposal and the FAA's response to each comment.

Charles E. Greenberg requested that the FAA consider modifying the AD to accommodate operators of helicopters with barrier filter installations for the engine intakes. If operator records can show that specific serial number engines have always operated with filtered air, the requirement for cleaning the gas generator hollow shaft should be superseded by a requirement to maintain records of operation with barrier filter protection. The commenter stated that no dirt can be ingested by an engine downstream of the filter, as long as the barrier filter has never gone into bypass mode.

We disagree. The FAA cannot anticipate all of the available barrier filter designs installed on helicopter models. Each barrier filter design and helicopter combination would require its own assessment of the filter's use and effectiveness. We did not change the AD.

However, the substantiated continuous use of a barrier filter may be proposed as an alternative method of compliance (AMOC) to this AD, using the standard AMOC request procedure.

We reviewed the relevant data, considered the comment received, and determined that air safety and the public interest require adopting the AD as proposed.

We estimate that this AD will affect about 1,421 engines installed on helicopters of U.S. registry. We also estimate that it will take about 24 work-hours per engine to inspect and clean the gas generator module. The average labor rate is $85 per work-hour. A replacement gas generator rear bearing would cost about $4,128 per engine and take about 8 work-hours to replace. Based on these figures, we estimate the cost of the AD on U.S. operators to be $2,898,840.

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 have 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 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 published in the Federal Register on August 21, 2012 (77 FR 50414). That NPRM proposed to require a detailed inspection for cracking and corrosion of the channel and fillers adjacent to the drain mast bolts, an inspection to determine the location of the bonding strap, a measurement of the washers under the drain mast bolts, and related investigative actions and repair if necessary.

We gave the public the opportunity to participate in developing this AD. The following presents the comment received on the proposal (77 FR 50414, August 21, 2012) and the FAA's response to the comment.

Aviation Partners Boeing (APB) stated that the installation of winglets per Supplemental Type Certificate (STC) ST01219SE does not affect them.

We have added paragraph (c)(2) to this AD to state that installation of STC ST01219SE ( http://rgl.faa.gov/regulatory_and_guidance_library/rgstc.nsf/0/2C6E3DBDDD36F91C862576A4005D64E2?OpenDocument&Highlight=st01219se ) does not affect the ability to accomplish the actions required by this AD. Therefore, for airplanes on which STC ST01219SE is installed, a “change in product” alternative method of compliance (AMOC) approval request is not necessary to comply with the requirements of 14 CFR 39.17. For all other AMOC requests, the operator must request approval for an AMOC in accordance with the procedures specified in paragraph (i) of this AD.

We reviewed the relevant data, considered the comment received, and determined that air safety and the public interest require adopting the AD with the change described previously and minor editorial changes. We have determined that these minor changes:

• Are consistent with the intent that was proposed in the NPRM (77 FR 50414, August 21, 2012) for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM (77 FR 50414, August 21, 2012).

We also determined that these changes will not increase the economic burden on any operator or increase the scope of the AD.

We estimate that this AD affects 612 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

We estimate the following costs to do certain necessary conditional actions that would be required based on the results of the inspection. We have no way of determining the number of aircraft that might need these actions:

We have received no definitive data that would enable us to provide a cost estimate for the repair specified in 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 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 September 18, 2012 (77 FR 57531). That NPRM proposed to correct an unsafe condition for the specified products. 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 (77 FR 57531, September 18, 2012) or on the determination of the cost to the public.

We reviewed the relevant 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 (77 FR 57531, September 18, 2012) for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM (77 FR 57531, September 18, 2012).

We estimate that this AD will affect 63 products of U.S. registry. We also estimate that it will take about .5 work-hour per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour.

Based on these figures, we estimate the cost of this AD on U.S. operators to be $2,677.50, or $42.50 per product.

In addition, we estimate that any necessary follow-on actions will take about 8 work-hours and require parts costing $1,957, for a cost of $2,637 per product for Models S10 and S10-V. We also estimate that any necessary follow-on actions will take about 16 work-hours and require parts costing $1,311, for a cost of $2,671 per product for Model S10-VT. We have no way of determining the number of products that may need these actions.

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 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.

You may examine the AD docket on the Internet at http://www.regulations.gov; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains the NPRM, the regulatory evaluation, any comments received, and other information. The street address for the Docket 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:

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 September 19, 2012 (77 FR 58052). That NPRM proposed to correct an unsafe condition for the specified products. The MCAI states:

We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM or on the determination of the cost to the public.

We reviewed the relevant 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 (77 FR 58052, September 19, 2012) for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM.

We estimate that this AD will affect 29 products of U.S. registry. We also estimate that it would take about 4 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Required parts would cost about $100 per product.

Based on these figures, we estimate the cost of the AD on U.S. operators to be $12,760, or $440 per product.

According to the manufacturer, all of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all costs in our cost estimate.

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 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.

You may examine the AD docket on the Internet at http://www.regulations.gov; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains the NPRM, the regulatory evaluation, any comments received, and other information. The street address for the Docket 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:

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2009-03-04, Amendment 39-15805 (74 FR 7796, February 20, 2009). That AD applies to the specified products. The NPRM published in the Federal Register on July 25, 2012 (77 FR 43552). That NPRM proposed to require a one-time inspection and torque check of the 3-way union plug, replacement of the plug before further flight if it is found to be non-compliant, and would prohibit installation of FCUs that have not passed the 3-way union plug inspection and torque check.

We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM.

We reviewed the relevant data and determined that air safety and the public interest require adopting the AD as proposed.

Based on the updated service information, we estimate that this AD will affect about 179 engines installed on helicopters of U.S. registry. We also estimate that it will take about 0.5 hour per product to comply with this AD. The average labor rate is $85 per hour. Required parts will cost about $14 per product. Based on these figures, we estimate the cost of the AD on U.S. operators to be $10,114. Our cost estimate is exclusive of possible warranty coverage.

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 have 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 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:

On October 29, 2012, the FAA published a final rule, technical amendment in the Federal Register amending the description of RNAV route Q-1 by adding two new waypoints to the route (77 FR 65461). Subsequent to publication, an error was discovered in the spelling of the TOCOS waypoint.

Area Navigation Routes are published in paragraph 6011 of FAA Order 7400.9W, dated August 8, 2012, and effective September 15, 2012, which is incorporated by reference in 14 CFR 71.1. The RNAV route listed in this document will be published subsequently in the Order.

Accordingly, pursuant to the authority delegated to me, the TACOS, CA, waypoint published in the Federal Register on October 29, 2012 (77 FR 65461) for RNAV route Q-1 is corrected as follows:

After a recent review of aeronautical data, the Aeronautical Navigation Products Group identified the current VOR Federal airway V-8 description published in FAA Order 7400.9, Airspace Designations and Reporting Points, did not match the airway information contained in the FAA's aeronautical database or the charted depiction of the airway. When V-8 was amended in the Federal Register of September 30, 1993 (58 FR 51010), the airway was realigned over the Rifle, CO, VHF Omnidirectional Range/Distance Measuring Equipment (VOR/DME) navigation aid between Grand Junction, CO, and Kremmling, CO. In the Federal Register of August 9, 2010 (75 FR 47709), V-8 was renamed from the Findlay, OH, VORTAC to the Flag City, OH, VORTAC. The Rifle, CO, VOR/DME was inadvertently deleted from the airway description. The FAA aeronautical database retained the Rifle, CO, VOR/DME in the airway description correctly and the associated aeronautical charts remain published accordingly. To overcome any confusion or flight safety issues associated with conflicting airway description information being published, the FAA is amending the V-8 legal description to reflect the airway aligned over the Rifle, CO, VOR/DME. Accordingly, since this is an administrative correction to update the V-8 description to be in concert with the FAA's aeronautical database and charting, 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 amending the legal description of VOR Federal airway V-8 in the vicinity of Rifle, CO. Specifically, the FAA amends V-8 to reflect the airway aligned over the Rifle, CO, VOR/DME; thus, matching the information currently contained in the FAA's aeronautical database and the charted depiction of the airway.

VOR Federal airways are listed in paragraph 6010 of FAA Order 7400.9W dated August 8, 2012, and effective September 15, 2012, which is incorporated by reference in 14 CFR 71.1. The VOR Federal airway 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 an existing VOR Federal airway within the NAS.

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:

This rule amends Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) by amending the referenced SIAPs. The complete regulatory description of each SIAP is listed on the appropriate FAA Form 8260, as modified by the National Flight Data Center (FDC)/Permanent Notice to Airmen (P-NOTAM), and is incorporated by reference in the amendment under 5 U.S.C. 552(a), 1 CFR part 51, and § 97.20 of Title 14 of the Code of Federal Regulations.

The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, but refer to their graphic depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP contained in FAA form documents is unnecessary. This amendment provides the affected CFR sections and specifies the types of SIAP and the corresponding effective dates. This amendment also identifies the airport and its location, the procedure and the amendment number.

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP as amended in the transmittal. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained for each SIAP as modified by FDC/P-NOTAMs.

The SIAPs, as modified by FDC P-NOTAM, and contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these changes to SIAPs, the TERPS criteria were applied only to specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in a FDC NOTAM as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for all these SIAP amendments requires making them effective in less than 30 days.

Because of the close and immediate relationship between these SIAPs and safety in air commerce, I find that notice and public procedure before adopting these SIAPs are impracticable and contrary to the public interest and, where applicable, that good cause exists for making these SIAPs effective in less than 30 days.

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. It, therefore—(1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under 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. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal regulations, Part 97, 14 CFR part 97, is amended by amending Standard Instrument Approach Procedures, effective at 0901 UTC on the dates specified, as follows:

This rule amends Title 14 of the Code of Federal Regulations, Part 97 (14 CFR part 97), by establishing, amending, suspending, or revoking SIAPS, Takeoff Minimums and/or ODPS. The complete regulators description of each SIAP and its associated Takeoff Minimums or ODP for an identified airport is listed on FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR part 97.20. The applicable FAA Forms are FAA Forms 8260-3, 8260-4, 8260-5, 8260-15A, and 8260-15B when required by an entry on 8260-15A.

The large number of SIAPs, Takeoff Minimums and ODPs, in addition to their complex nature and the need for a special format make publication in the Federal Register expensive and impractical. Furthermore, airmen do not use the regulatory text of the SIAPs, Takeoff Minimums or ODPs, but instead refer to their depiction on charts printed by publishers of aeronautical materials. The advantages of incorporation by reference are realized and publication of the complete description of each SIAP, Takeoff Minimums and ODP listed on FAA forms is unnecessary. This amendment provides the affected CFR sections and specifies the types of SIAPs and the effective dates of the, associated Takeoff Minimums and ODPs. This amendment also identifies the airport and its location, the procedure, and the amendment number.

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP, Takeoff Minimums and ODP as contained in the transmittal. Some SIAP and Takeoff Minimums and textual ODP amendments may have been issued previously by the FAA in a Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for some SIAP and Takeoff Minimums and ODP amendments may require making them effective in less than 30 days. For the remaining SIAPS and Takeoff Minimums and ODPS, an effective date at least 30 days after publication is provided.

Further, the SIAPs and Takeoff Minimums and ODPS contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPS and Takeoff Minimums and ODPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedures before adopting these SIAPS, Takeoff Minimums and ODPs are impracticable and contrary to the public interest and, where applicable, that good cause exists for making some SIAPs effective in less than 30 days.

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. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under 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. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) is amended by establishing, amending, suspending, or revoking Standard Instrument Approach Procedures and/or Takeoff Minimums and/or Obstacle Departure Procedures effective at 0902 UTC on the dates specified, as follows:

This rule amends Title 14 of the Code of Federal Regulations, Part 97 (14 CFR part 97), by establishing, amending, suspending, or revoking SIAPS, Takeoff Minimums and/or ODPS. The complete regulators description of each SIAP and its associated Takeoff Minimums or ODP for an identified airport is listed on FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR 97.20. The applicable FAA Forms are FAA Forms 8260-3, 8260-4, 8260-5, 8260-15A, and 8260-15B when required by an entry on 8260-15A.

The large number of SIAPs, Takeoff Minimums and ODPs, in addition to their complex nature and the need for a special format make publication in the Federal Register expensive and impractical. Furthermore, airmen do not use the regulatory text of the SIAPs, Takeoff Minimums or ODPs, but instead refer to their depiction on charts printed by publishers of aeronautical materials. The advantages of incorporation by reference are realized and publication of the complete description of each SIAP, Takeoff Minimums and ODP listed on FAA forms is unnecessary. This amendment provides the affected CFR sections and specifies the types of SIAPs and the effective dates of the, associated Takeoff Minimums and ODPs. This amendment also identifies the airport and its location, the procedure, and the amendment number.

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP, Takeoff Minimums and ODP as contained in the transmittal. Some SIAP and Takeoff Minimums and textual ODP amendments may have been issued previously by the FAA in a Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for some SIAP and Takeoff Minimums and ODP amendments may require making them effective in less than 30 days. For the remaining SIAPS and Takeoff Minimums and ODPS, an effective date at least 30 days after publication is provided.

Further, the SIAPs and Takeoff Minimums and ODPS contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPS and Takeoff Minimums and ODPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedures before adopting these SIAPS, Takeoff Minimums and ODPs are impracticable and contrary to the public interest and, where applicable, that good cause exists for making some SIAPs effective in less than 30 days.

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. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866;(2) is not a “significant rule ” under 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. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) is amended by establishing, amending, suspending, or revoking Standard Instrument Approach Procedures and/or Takeoff Minimums and/or Obstacle Departure Procedures effective at 0902 UTC on the dates specified, as follows:

This rule amends Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) by amending the referenced SIAPs. The complete regulatory description of each SIAP is listed on the appropriate FAA Form 8260, as modified by the National Flight Data Center (FDC)/Permanent Notice to Airmen (P-NOTAM), and is incorporated by reference in the amendment under 5 U.S.C. 552(a), 1 CFR part 51, and § 97.20 of Title 14 of the Code of Federal Regulations.

The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, but refer to their graphic depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP contained in FAA form documents is unnecessary. This amendment provides the affected CFR sections and specifies the types of SIAP and the corresponding effective dates. This amendment also identifies the airport and its location, the procedure and the amendment number.

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP as amended in the transmittal. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained for each SIAP as modified by FDC/P-NOTAMs.

The SIAPs, as modified by FDC P-NOTAM, and contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these changes to SIAPs, the TERPS criteria were applied only to specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in a FDC NOTAM as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for all these SIAP amendments requires making them effective in less than 30 days.

Because of the close and immediate relationship between these SIAPs and safety in air commerce, I find that notice and public procedure before adopting these SIAPs are impracticable and contrary to the public interest and, where applicable, that good cause exists for making these SIAPs effective in less than 30 days.

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. It, therefore—(1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under 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. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal Regulations, Part 97, 14 CFR part 97, is amended by amending Standard Instrument Approach Procedures, effective at 0901 UTC on the dates specified, as follows:

Background

On February 15, 2012, NMFS published a proposed rule in the Federal Register (77 FR 8759) to revise regulations at 50 CFR part 300, subpart O, in order to implement certain decisions of the WCPFC. The proposed rule was open to public comment through April 16, 2012.

This final rule is issued under the authority of the WCPFC Implementation Act (16 U.S.C. 6901 et seq. ), which authorizes the Secretary of Commerce, in consultation with the Secretary of State and the Secretary of the Department in which the United States Coast Guard is operating (currently the Department of Homeland Security), to promulgate such regulations as may be necessary to carry out the obligations of the United States under the Convention, including the decisions of the WCPFC. The authority to promulgate regulations has been delegated to NMFS.

This final rule implements provisions in Conservation and Management Measures (CMMs) adopted by the WCFPC, particularly CMMs 2009-06, 2009-01, 2010-02, and 2009-02. The preamble to the proposed rule includes further background information, including information on the Convention and the WCPFC, as well as detailed information about each of the CMMs being implemented in this rule, and the basis for the proposed regulations.

This final rule establishes the following requirements:

The owner and operator (operator means, with respect to any vessel, the master or other individual aboard and in charge of that vessel) of any U.S. fishing vessel used for commercial fishing that transships HMS in the Convention Area, whether from an offloading vessel or to a receiving vessel, or that transships HMS caught in the Convention Area, whether from an offloading vessel or to a receiving vessel, is required to ensure the completion of and submission to NMFS of a transshipment report for each transshipment. The form required to be used for these reports is available from the NMFS Pacific Islands Regional Administrator. A separate report is required for each transshipment.

The information specified on the report form must be recorded on the form within 24 hours of completion of the transshipment. The requirements for transshipments on the high seas and for emergency transshipments (i.e., a transshipment conducted under circumstances of force majeure or other serious mechanical breakdown that could reasonably be expected to threaten the health or safety of the vessel or crew or cause a significant financial loss through fish spoilage) that would otherwise be prohibited are slightly different than the requirements for all other transshipments. For transshipment on the high seas and for emergency transshipments that would otherwise be prohibited, the report must be submitted by email or fax to the address specified by the NMFS Pacific Islands Regional Administrator no later than 10 calendar days after completion of the transshipment. The report can be submitted without signatures to accommodate vessels that remain at sea for more than 10 days after completion of the transshipment and that do not have fax or email capabilities. In such circumstances, for example, the information required on the form could be communicated via radio to a shore agent, and the shore agent could email or fax the form to NMFS within the 10-day deadline, which would enable NMFS to submit the report to the Commission within the 15-day due date under CMM 2009-06.

The original, signed copy of the report for high seas or emergency transshipments must be submitted to the address specified on the form no later than 15 calendar days after the vessel first enters into port, or 15 calendar days after the transshipment for emergency transshipments in port.

For all other transshipments (i.e., transshipments that do not take place on the high seas and that are not emergency transshipments), if the transshipment is subject to transshipment reporting requirements in 50 CFR part 300 subpart D, 50 CFR part 660, or 50 CFR part 665, the original transshipment report must be submitted by the due date for submitting the transshipment reports specified in those regulations. If the vessel owner and operator are not subject to any of the above-referenced transshipment reporting requirements, for transshipments at sea the report must be submitted no later than 72 hours after the vessel first enters into port; for transshipments in port, the report must be submitted no later than 72 hours after completion of the transshipment. These reporting requirements do not apply to transshipments that take place entirely within the territorial seas or archipelagic waters of any nation, as defined by the domestic laws and regulations of that nation and recognized by the United States, and only include fish caught within such waters.

As noted in the preamble to the proposed rule, NMFS has developed a specific form, the Pacific Transshipment Declaration Form, to be used for the transshipment reporting requirements.

For any transshipment of HMS on the high seas in the Convention Area or on the high seas anywhere of HMS that were caught in the Convention Area that is not prohibited (e.g., high seas transshipments by vessels other than purse seine vessels), vessel owners and operators must ensure the submission to the Commission of notice of the transshipment at least 36 hours prior to the transshipment. The notice must be provided by fax or email in the format specified by the NMFS Pacific Islands Regional Administrator as specified in this rule. The notice must include the following information: (1) The name of the offloading vessel; (2) the vessel identification markings located on the hull or superstructure of the offloading vessel; (3) the name of the receiving vessel; (4) the vessel identification markings located on the hull or superstructure of the receiving vessel; (5) the expected amount, in metric tons, of the fish product being transshipped, broken down by species and processed state; (6) the expected date or dates of the transshipment; (7) the expected location of transshipment, including latitude and longitude to the nearest tenth of a degree; (8) an indication of which one of the following areas the expected transshipment location is situated: High seas inside the Convention Area, high seas outside the Convention Area, or an area under the jurisdiction of a particular nation—in which case the nation must be specified; and (9) the geographic location of the catch to be transshipped, as described by: The expected amount of HMS to be transshipped, in metric tons, that was caught in each of the following areas: inside the Convention Area on the high seas, outside the Convention Area on the high seas, and within areas under the jurisdiction of a particular nation, with each such nation and the associated amount specified. Information regarding the geographic location of the catch is not required, however, if the reporting vessel is the receiving vessel. The transshipment must take place within 24 nautical miles of the expected location provided in the notice.

Notice is also required for emergency transshipments that would otherwise be prohibited. For each transshipment that qualifies as an emergency transshipment, the owner or operator of the offloading and receiving vessels must ensure delivery of the notice directly to the Commission by fax or email within 12 hours of completion of the transshipment, and must ensure the notice includes the same information described above for the notice for high seas transshipments, as well as a description of the reasons for the emergency transshipment, in the format specified by the NMFS Pacific Islands Regional Administrator. The transshipment must take place within 24 nautical miles of the location provided in the notice.

This final rule allows emergency transshipments involving purse seine vessels to take place at sea in the Convention Area. Such transshipments were prohibited prior to the effective date of this final rule (see 50 CFR 300.216).

A copy of each notice must be submitted to NMFS by the same due dates specified for submission to the Commission: That is, at least 36 hours prior to the start of such transshipment on the high seas or within 12 hours after completion of an emergency transshipment.

Transshipments at sea in the Convention Area require observer coverage for vessels, with the specific requirements dependent upon the type of vessel and the type of fish to be transshipped. Observer coverage is not required for emergency transshipments at sea or for transshipments that take place entirely within the territorial seas or archipelagic waters of any nation, as defined by the domestic laws and regulations of that nation and recognized by the United States, and only includes fish caught in such waters. The observers are required to be WCPFC Observers. Observers deployed by NMFS are currently considered WCPFC Observers, as the program has completed the required authorization process to become part of the WCPFC Regional Observer Programme (ROP). For most transshipments, an observer is required on board the receiving vessel. However, for transshipments to a receiving vessel less than or equal to 33 meters in registered length, and not involving purse seine-caught fish or frozen longline-caught fish, the observer may be deployed on either the offloading vessel or receiving vessel. All involved vessel owners and operators are required to ensure that a WCPFC Observer is on board one of the two vessels to monitor the transshipment for the duration of the transshipment, even when the requirement to carry an observer falls on the other vessel involved in the transshipment (e.g., in those cases when the observer requirement applies only to the receiving vessel). The owner or operator of a vessel requiring an observer for transshipments at sea must ensure that notice is provided to the NMFS Pacific Islands Regional Administrator at least 72 hours (excluding weekends and Federal holidays) before the vessel leaves port on the fishing trip indicating the need for an observer. The notice will need to include the official number of the vessel, the name of the vessel, the intended date, time and location of departure, the name of the vessel operator, and a telephone number at which the vessel owner, vessel operator, or a designated agent may be contacted during the business day (8 a.m. to 5 p.m. Hawaii Standard Time). The notice must be provided to the office or telephone number designated by the NMFS Pacific Islands Regional Administrator. If applicable, notice may be provided in conjunction with the notice required under 50 CFR 665.803(a), which requires the permit holder, or designated agent, for any vessel registered for use under a Hawaii longline limited access permit, or for any vessel greater than 40 feet length overall that is registered for use under an American Samoa longline limited access permit, to notify NMFS at least 72 hours (excluding weekends and Federal holidays) before the vessel leaves port on a fishing trip, any part of which occurs in the U.S. EEZ around the Hawaiian Archipelago or American Samoa.

In addition, a receiving vessel must receive product from only one offloading vessel at a time for each observer that is available to monitor the transshipment; the observer may be on the offloading or receiving vessel. Accordingly, if only one WCPFC Observer is available, the receiving vessel must receive HMS from only one offloading vessel at a time.

Operators and crew members of vessels carrying observers under these requirements are subject to general requirements regarding WCPFC Observers at 50 CFR 300.215, such as providing any WCPFC Observer on board the vessel with full access to the vessel, as well as access to information and data sources.

The owner and operator of any U.S. fishing vessel used for commercial fishing for HMS must ensure that any vessel with which they engage in transshipment (to or from) in the Convention Area, or engage in bunkering or other support activities (to or from) in the Convention Area, falls into one of the three following categories. The vessel must be: (1) Flagged by a WCPFC Member or Cooperating Non-Member; (2) on the WCPFC Interim Register of Non-Member Carrier and Bunker Vessels (Interim Register), which is available at http://www.wcpfc.int/; or (3) on the WCPFC Record of Fishing Vessels, which is available at http://www.wcpfc.int/. NMFS notes that the Interim Register is tentatively scheduled to expire in 2013, at which point no vessels would fall in this category. Only fishing vessels that are authorized to be used for fishing in the U.S. EEZ may transship and/or bunker in the U.S. EEZ. These requirements for transshipments do not apply to emergency transshipments or transshipments that take place entirely within the territorial seas or archipelagic waters of any nation, as defined by the domestic laws and regulations of that nation and recognized by the United States, and only include fish caught within such waters.

The owner or operator of any U.S. fishing vessel used for commercial fishing must ensure the submission of a notice to the Commission containing specific information at least six hours prior to entry and no later than six hours prior to exiting the Eastern SMA (see Figure 1, below). The notices must be submitted in the format specified by the NMFS Pacific Islands Regional Administrator. The notices must be submitted via fax or email and must include the following information: (1) The vessel identification markings located on the hull or superstructure of the vessel; (2) whether the notice is for entry or exit; (3) date and time of anticipated point of entry or exit; (4) latitude and longitude of anticipated point of entry or exit; (5) amount of fish product on board at the time of the report, in kilograms, in total and for each of the following species or species groups: yellowfin tuna, bigeye tuna, albacore, skipjack tuna, swordfish, shark, other; and (6) an indication of whether the vessel has engaged in or will engage in any transshipments while in the Eastern SMA. A copy of the notice must be provided to NMFS at least six hours prior to the entry and no later than six hours prior to the exit.

The map in Figure 1 shows the Eastern SMA as the high seas area within the rectangle bounded by the bold black lines.

Figure 1. Eastern SMA. Areas of high seas are indicated in white; areas of claimed national jurisdiction, including territorial seas, archipelagic waters, and EEZs, are indicated in dark shading. The Eastern SMA is the high seas area (in white) within the rectangle bounded by the bold black lines. This map displays indicative maritime boundaries only.

The owner or operator of any U.S. purse seine fishing vessel must ensure the submission of a report containing specific information to the Commission and a copy of the report to NMFS no later than 48 hours after any discard at sea of bigeye tuna ( Thunnus obesus ), yellowfin tuna ( Thunnus albacares ), or skipjack tuna ( Katsuwonus pelamis ). The reports must be submitted in the format specified by the NMFS Pacific Islands Regional Administrator via fax or email. A specific form, the U.S. Purse Seine Discard Form (OMB Control Number 0648-0649), has been developed for this requirement. A hard copy of the report must be submitted to the observer on board the vessel.

This final rule prohibits the transfer of fish at sea from a purse seine net deployed by or under the control of a fishing vessel of the United States to any other fishing vessel in the Convention Area. However, the rule includes a narrow exception that allows U.S. purse seine vessels to transfer fish through net sharing (i.e., the transfer of fish that have not yet been loaded on board any fishing vessel from the purse seine net of one vessel to another fishing vessel) to other U.S. purse seine vessels on the final set of a trip when there is insufficient well space for the fish. The final rule also amends the regulatory definition of transshipment to exclude net sharing from the definition of transshipment as purse seine vessels are generally prohibited from engaging in transshipment of HMS at sea. Under the exception for net sharing, the purse seine vessel that transfers fish through net sharing is prohibited from making further purse seine sets during the remainder of its fishing trip.

Furthermore, in the U.S. EEZ, net sharing is allowed only between U.S. vessels that are authorized to be used for fishing in that area. In the event of a net share, the owner and operator of the vessel that caught the fish must record the catch, as required under 50 CFR 300.34(c)(1), on the Regional Purse Seine Logsheet (RPL), and must note that the net sharing has taken place, in the manner specified by the NMFS Pacific Islands Regional Administrator, on the RPL. The owner and operator of the vessel that accepted the fish must note on the RPL for their vessel that the net sharing has taken place, in the manner specified by the NMFS Pacific Islands Regional Administrator.

In addition to the new requirements, the final rule amends the language that is in 50 CFR 300.223(d) to remove the termination date (December 31, 2012) applicable to the catch retention provision and includes some editorial changes to that language (i.e., from stating that “a fishing vessel of the United States equipped with purse seine gear may not discard at sea within the Convention Area any bigeye tuna, yellowfin tuna, or skipjack tuna” to stating that “an owner or operator of a fishing vessel of the United States equipped with purse seine gear must ensure the retention on board at all times while at sea within the Convention Area any bigeye tuna, yellowfin tuna, or skipjack tuna”). The final rule also corrects 50 CFR 300.222(y), which was inconsistent with 50 CFR 300.223(d)(3). Section 300.223(d)(3) states that the catch retention requirements are applicable to the entire Convention Area. However, § 300.222(y), which is a prohibitions section, stated that the prohibition on discarding fish at sea in contravention of § 300.223(d) is limited to the high seas and areas within the jurisdiction of the United States, including the U.S. EEZ and territorial sea between 20° N. latitude and 20° S. latitude. This final rule amends § 300.222(y) to amend the description of the requirement to state that the catch retention requirements are applicable to the entire Convention Area.

The final rule also includes a minor change to the wording of the language at 50 CFR 300.216(b) so that the terminology referring to U.S. purse seine vessels is consistent throughout 50 CFR part 300 subpart O. Specifically, the phrase “purse seine fishing vessel of the United States” is replaced with “fishing vessel of the United States equipped with purse seine gear.”

The final rule also modifies the prohibitions for at-sea transshipments for purse seine vessels. The final rule includes an additional prohibition for transshipments at sea involving purse seine vessels of fish caught in the Convention Area but transshipped outside of the Convention Area, and allows emergency transshipments involving purse seine vessels to take place at sea in the Convention Area.

NMFS received one comment letter on the proposed rule, with three distinct comments. Each comment is summarized below, followed by a response from NMFS.

The basis for the prohibitions on net sharing provided in the proposed rule—that it would be difficult to keep track of fish—seems insufficient. The purse seine vessel receiving the fish would likely report the fish, since it would have the best estimate of the amount in the net share. It is also unclear how commonly net sharing among purse seine vessels takes place. If this is a matter of serious concern, a better explanation of the need for the prohibitions should be given. It would be worthwhile to exempt the transfer of live fish from one fishing vessel to another from this prohibition. Although vessels fishing in the eastern Pacific Ocean (EPO) will not likely be subject to these prohibitions on a frequent basis, in the past, there has been some confusion, since corrected, as to whether the prohibition on transshipping in the area of application of the IATTC applies to the transfer of live bluefin tuna.

As stated in the proposed rule, existing regulations at 50 CFR 300.223(d) require U.S. purse seine fishing vessels to retain all catch of bigeye tuna, yellowfin tuna, and skipjack tuna unless: (1) The fish are unfit for human consumption; (2) there is insufficient well space to accommodate all the fish captured in a given set, provided that no additional sets are made during the trip; or (3) serious malfunction of equipment occurs. Existing regulations at 50 CFR 300.216 prohibit purse seine vessels from conducting transshipments at sea in the Convention Area, consistent with Article 29 of the Convention. However, the existing catch retention provisions at 50 CFR 223(d) do not address whether net sharing falls within the definition of transshipment, which is prohibited at sea for purse seine vessels. As stated in Section 3.1.1.1 of the EA, NMFS estimates that approximately 10 percent of all U.S. purse seine trips in the WCPO include a net sharing event. This rule explicitly excludes net sharing activities from the definition of transshipment and implements a general prohibition on net sharing, as net sharing in most situations would not be consistent with the catch retention requirements.

However, the rule allows U.S. purse seine fishing vessels to conduct limited net sharing on the final set of a trip with other U.S. purse seine vessels, consistent with CMM 2008-01, which states that “excess fish taken in the last set may be transferred to and retained on board another purse seine vessel provided this is not prohibited under applicable national law.” As stated in the IRFA, NMFS considered the alternatives of allowing U.S. purse seine fishing vessels to conduct net sharing with foreign-flagged vessels, and allowing U.S. purse seine fishing vessels to conduct net sharing both to and from foreign-flagged vessels on the last set of the transferring vessel's trip. Alternatives to allow net sharing on other than the last set would be inconsistent with CMM 2008-01, so were not considered. However, allowing net sharing to foreign-flagged vessels would make it difficult to ensure consistent counting of catches—for example, the shared catch might be logged as catch by both the U.S. catcher vessel and the foreign-flagged vessel with which the catch is shared, resulting in inaccurate reporting. Allowing net sharing to and from foreign-flagged vessels would have the same shortcomings and would also be very difficult to enforce, as the United States would have limited ability to determine whether a foreign-flagged vessel complied with the last-set condition.

Regarding the commenter's recommendation to generally exempt the transfer of live fish from one vessel to another, net sharing of live fish on the final set of trip between U.S. purse seine fishing vessels is not prohibited under the new rule.

Finally, the net sharing requirements in this rule are applicable in the Convention Area, and do not apply in the EPO.

Regarding the projected costs for observer coverage for transshipments at sea, a refrigerated carrier vessel that operates regularly in the Convention Area would likely have an observer on board, so the observer coverage requirements for troll vessels transshipping on the high seas would likely be covered. However, if a troll vessel wants to transship on the high seas to a carrier that is not already active in the Convention Area, the projected cost of the observer requirements does not include the following cost estimates: (1) Cost in time and money to see that such a refrigerated carrier is properly registered; and (2) the cost of travel to get an observer accepted by the ROP of the WCPFC to and from the transshipping point. Although this may be seen as a business cost for transshipping, it is still a substantial cost that may well fall on the troll or pole-and-line vessels, and should at least be factored into the cost estimates.

Should a U.S. troll or pole-and-line vessel desire to transship to a foreign-flagged carrier vessel that is not already active in the Convention Area, and if the owner of the carrier vessel chooses to make the carrier vessel available for such transshipments by satisfying the various applicable WCPFC requirements, NMFS agrees that some of the costs of doing so could be passed on to fishing businesses that interact with the carrier vessel, such as the U.S. troll or pole-and-line fishing business. Such costs include the $2,500 annual fee for registering a vessel on the Interim Register, the costs associated with participating in the WCPFC vessel monitoring system, and the costs associated with carrying WCPFC ROP observers, possibly including travel costs for the observer. NMFS notes that the cost of transporting a WCPFC Observer would depend on the circumstances, and could be minimal if a WCPFC Observer is available at the carrier vessel's port of departure and does not need further transportation from the port of return. NMFS also notes that the Interim Register is tentatively scheduled to expire in 2013. If some or all these costs are passed on by the owner/operator of the carrier vessel to fishing businesses that make use of the carrier vessel, NMFS expects that carrier vessels would be likely to work with multiple offloading vessels and would distribute the costs accordingly. The costs borne by any single U.S. troll or pole-and-line fishing business would be accordingly smaller than the total costs. NMFS has revised the RIR to acknowledge and reflect these possible costs incurred by U.S. fishing businesses. This comment is also relevant in the context of the FRFA, as discussed in the Classification section of this preamble.

Regarding the notification of entry and exit to and from the Eastern SMA, the system set up for this entry and exit notification scheme is fatally flawed under international law, because States bordering a high seas pocket have no more right to know what is going on there than other Commission members. If Kiribati, Cook Islands and French Polynesia are to receive special notifications, those notifications should be made to the Commission and be available to all Commission members.

While few, if any, U.S. albacore troll and pole-and-line vessels fish in the Eastern SMA, this area is close to various transit lines. That area is right along the track line going from Papeete, French Polynesia, to Majuro, Marshall Islands—both are important ports for the South Pacific albacore troll fishery. In the past, vessels in this fishery transshipped their fish in Papeete and then proceeded directly to Majuro for fueling before heading to fishing grounds in the North Pacific. Historically, as many as a dozen vessels made that circuit. The Eastern SMA is also very close to the track line going from Pago Pago, American Samoa, to Papeete. There is also a history of vessels proceeding from the South Pacific fishing grounds to Honolulu, and the Eastern SMA is near that track line. Thus, the proposed rule underestimates the frequency of U.S. troll and pole and line vessels transiting the Eastern SMA and associated costs.

NMFS notes the commenter's view that the system set up by the Commission for the Eastern SMA is flawed. This comment appears to be a general comment on the Commission's decision to adopt CMM 2010-02, which is beyond the scope of this rulemaking. The Commission exercised its authority pursuant to the Convention to adopt conservation and management measures for the high seas, which are implemented by members, including, where appropriate, by flag State members, in accordance with their jurisdiction and control over vessels flying their flag on the high seas. To the extent the comment alleges that NMFS' implementation of the notification scheme provided for in this final rule is inconsistent with international law, NMFS disagrees. In order to meet the international obligations of the United States as a member of the Commission, and pursuant to the authority of the WCPFC Implementation Act, NMFS is implementing this provision of CMM 2010-02 via regulations. NMFS is unaware of any provisions of international law that this rulemaking would violate.

NMFS appreciates the additional information regarding the operational activity of the U.S. albacore troll and pole-and-line vessels near the Eastern SMA. However, the comment does not include any indication of the historical or current number of Eastern SMA entries and exits by such vessels on an annual basis. In the RIR issued with the proposed rule and in the IRFA, NMFS estimated that U.S. albacore troll vessels would enter the Eastern SMA between zero and two times per year and exit the same number of times. This estimate was based on readily available data regarding the fishing patterns of the fleet, indicating that the fishing grounds of this fleet are and have been in areas distant from the Eastern SMA. In order to take into consideration the commenter's information, NMFS has evaluated (unpublished) data from NMFS' vessel monitoring system (VMS) to determine the precise annual number of Eastern SMA entries and exits by vessels in this fleet. The VMS data indicate that U.S. albacore troll vessels entered the Eastern SMA zero times during 2011 and 2012 (2011 was the first full year in which U.S. albacore troll vessels fishing in the Convention Area were required to participate in the vessel monitoring system).

Given these recent data and the location of the traditional fishing grounds of the U.S. albacore troll fleet, NMFS believes that the estimate of zero to two entries per year (and zero to two exits per year) is reasonable and an appropriate basis on which to estimate the costs to the U.S. albacore troll fleet to satisfy the Eastern SMA entry and exit notification requirements. NMFS acknowledges that there has been limited activity by the albacore troll fleet in the Convention Area in recent years (see Table 10 in the EA indicating that the number of U.S. albacore troll vessels operating in the South Pacific each year has numbered no more than six since 2007). Should the activity of the U.S. albacore troll fleet in the Convention Area return to the greater levels experienced in the past and should that increased activity include use of the historic lines of transit mentioned in the comment, the number and associated costs of the entry and exit notifications may be higher, possibly affecting as many as a dozen vessels each year, as noted by the commenter, or more. Although such a future scenario is possible, it, like other possible future scenarios, is speculative and does not warrant changes to the estimates used by NMFS as a basis to estimate the costs to affected U.S. fishing fleets.

NMFS made some minor technical and non-substantive changes to the proposed rule in this final rule to remove ambiguities. Also, given the effective date the final rule, the provision that the at-sea observer provisions do not apply to transshipments to receiving vessels greater than 33 meters in registered length and involving only fish caught by troll gear and/or pole-and-line gear prior to January 1, 2013, has been removed. Due to an editorial error, the proposed rule indicated that a new, separate definition would be provided for the term “on board.” However, the definition of “on board” was included in the revised definition of transshipment and in the definition of net sharing in the proposed rule, which remain the same in this final rule. Also, although the regulatory text in the proposed rule specified that the purse seine discard reports would be required for discards of bigeye tuna, yellowfin tuna, or skipjack tuna, the proposed rule's preamble incorrectly indicated that discards of fish, in general, would need to be reported. In addition, although the regulatory text in the proposed rule specified the editorial changes to the purse seine catch retention requirement, the proposed rule's preamble did not mention these editorial changes (i.e., from stating that “a fishing vessel of the United States equipped with purse seine gear may not discard at sea within the Convention Area any bigeye tuna, yellowfin tuna, or skipjack tuna” to stating that “an owner or operator of a fishing vessel of the United States equipped with purse seine gear must ensure the retention on board at all times while at sea within the Convention Area any bigeye tuna, yellowfin tuna, or skipjack tuna”).

In § 902.1(b) of title 15 of the Code of Federal Regulations, which includes a table listing control numbers issues by the Office of Management and Budget (OMB) for collections of information required under NOAA regulations, new entries have been added for the OMB control numbers approved for the information collections required under §§ 300.215, 300.218, and 300.225 of title 50 of the Code of Federal Regulations.

Under NOAA Administrative Order 205-11, dated December 17, 1990, the under Secretary of Oceans and Atmosphere has delegated authority to sign material for publication in the Federal Register to the Assistant Administrator for Fisheries, NOAA.

The Administrator, Pacific Islands Region, NMFS, has determined that this final rule is consistent with the WCPFC Implementation Act and other applicable laws.

The final rule has been determined not to be significant for purposes of Executive Order 12866.

A FRFA was prepared. The FRFA incorporates the IRFA prepared for the proposed rule. The analysis in the IRFA is not repeated here in its entirety.

A description of the action, why it is being considered, and the legal basis for this action are contained in the preamble of the proposed rule and in the SUMMARY and SUPPLEMENTARY INFORMATION sections of this final rule, above. The analysis follows:

There would be no disproportionate economic impacts between small and large entities operating vessels as a result of this final rule. Furthermore, there would be no disproportionate economic impacts based on vessel size, gear, or homeport.

NMFS received two comments related to the IRFA (see Comments 2 and 3 on the proposed rule, above). Regarding Comment 2, NMFS agrees with the commenter that U.S. fishing businesses could bear costs associated with transshipping to foreign-flagged carrier vessels that are not already active in the Convention Area, and that this should be factored into the estimated compliance costs. See NMFS' Response to Comment 2 on the proposed rule, above, for a description of those possible costs. NMFS has also revised the RIR to reflect those possible costs. Regarding Comment 3, NMFS acknowledges the additional information about the historical activity of U.S. albacore troll and pole-and-line vessels near the Eastern SMA, as well as the possibility that the future rate of entries into and exits out of the Eastern SMA by U.S. albacore troll vessels, and the associated costs, could be greater than the estimates provided in the IRFA. However, NMFS believes that the estimate in the IRFA of zero to two entries per year (and zero to two exits per year) is reasonable, based on readily available information regarding the fishing patterns of the fleet and recent VMS data, and an appropriate basis for the cost estimates. See NMFS' Response to Comment 3 on the proposed rule, above, for further details. NMFS has not made any changes to the rule as a result of these two comments.

The final rule will apply to owners and operators of U.S. HMS fishing vessels used to: (1) Transship HMS in the Convention Area or to transship outside the Convention Area HMS caught in the Convention Area; (2) enter or exit the Eastern SMA; or (3) purse seine for HMS in the Convention Area. The estimated number of affected entities is as follows, broken down by vessel type:

Based on the number of longline vessels permitted to fish under the Fishery Ecosystem Plan for Pacific Pelagic Fisheries of the Western Pacific Region or the Fishery Management Plan for U.S. West Coast Fisheries for Highly Migratory Species as of January 2011, the estimated number of longline vessels to which the rule will apply is 170. Based on the number of purse seine vessels licensed under the South Pacific Tuna Treaty as of January 2011, the estimated number of purse seine vessels to which the rule will apply is 36. Based on the average annual number of albacore troll vessels that fished in the Convention Area during 2002-2009, the estimated number of troll vessels to which the rule will apply is 26. The total estimated number of vessels that would be subject to the rule is 232.

Based on the best available financial information about the affected fishing fleets, and using individual vessels as proxies for individual businesses, NMFS believes that all the affected fish harvesting businesses in the longline and troll fleets are small entities as defined by the RFA; that is, they are independently owned and operated and not dominant in their fields of operation, and have annual receipts of no more than $4.0 million. In the purse seine fleet, most or all of the businesses that operate these vessels are large entities as defined by the RFA. However, it is possible that one or a few of these fish harvesting businesses meet the criteria for small entities, so the purse seine fleet is included in the remainder of this analysis.

The reporting, recordkeeping, and other compliance requirements under this rule are described earlier in the preamble. The classes of small entities subject to the requirements and the types of professional skills necessary to fulfill each of the requirements are described in the IRFA.

NMFS has attempted to identify alternatives that would accomplish the objectives of the Act and minimize any significant economic impact of the final rule on small entities. The alternative of taking no action at all was rejected because it would fail to accomplish the objectives of the WCPFC Implementation Act. As a Contracting Party to the Convention, the United States is required to implement the decisions of the WCPFC. For some of the elements where the CMMs provide discretion in implementation, NMFS has identified specific alternatives, as described below. For the other elements, NMFS has not identified alternatives. However, for each of the elements where alternatives have not been identified, NMFS has developed the element to be the least burdensome on small entities, while still being in accordance with the relevant WCPFC decision, as explained below.

With respect to element (1) of the rule, transshipment reporting requirements, one alternative would be to impose a uniform timeframe for submission of the report; to satisfy all requirements and the provisions of CMM 2009-06, it would have to be submitted to NMFS within 10 calendar days after completion of the transshipment. This alternative would be more burdensome for certain types of fishing vessels than the alternative adopted in this final rule, and was rejected for that reason. Submission of transshipment reports, as well as specific timeframes for submission of the reports for high seas and emergency transshipments, are specified in CMM 2009-06. Thus, NMFS has not identified any alternatives that would be less burdensome than the alternative adopted in this final rule and would accomplish the objectives of the WCPFC Implementation Act.

With respect to element (2), prior notice for high seas transshipments and emergency transshipments, one alternative would be to give affected entities the option of either providing the notice of high seas transshipment to NMFS at least one business day plus 36 hours in advance of the transshipment (i.e., 60 hours before the transshipment), or, as under this final rule, providing the notice directly to the WCPFC at least 36 hours in advance of the transshipment, with a copy to NMFS. This flexibility could relieve the burden for some entities and/or situations; specifically, in cases where it is less burdensome to send the notification to NMFS than to the WCPFC. Under this alternative, if a vessel operator exercises the first option, NMFS would have to forward the notification to the WCPFC within one business day, so this alternative would bring some additional administrative costs to NMFS. This alternative would also have the disadvantage of being more complex and possibly more confusing to affected entities than the final rule (under which there would be a single timeframe and single recipient). For these reasons, and because NMFS believes that the benefits of the flexibility afforded to affected entities by this alternative would be minor, this alternative was rejected. CMM 2009-06 specifies submission of the notices, as well as specific timeframes for submission of the notices. Thus, the alternatives considered by NMFS were restricted by the parameters of the CMM.

With respect to element (3), observer coverage for transshipments at sea, NMFS has not identified any alternatives that would be less burdensome than the alternative adopted in this final rule and would accomplish the objectives of the WCPFC Implementation Act. CMM 2009-06 specifies requirements for at-sea observer coverage. For most transshipments, the provisions of the CMM specify that the observer must be on board the receiving vessel. However, for transshipments to receiving vessels less than or equal to 33 meters in registered length and not involving purse seine caught fish or frozen longline caught fish, the observer may be on board the offloading or receiving vessel. The final rule allows maximum flexibility for at-sea observer coverage by allowing observers to be on board either the offloading or receiving vessel for transshipments to receiving vessels less than or equal to 33 meters in registered length and not involving purse seine caught fish or frozen longline caught fish. There are other conceivable alternatives, such as requiring that an observer be on board the receiving vessel or requiring that an observer be on board the offloading vessel. However, these two approaches would be more constraining, and thus, more burdensome on affected entities than the provisions in the final rule and would not provide any advantages with respect to the underlying purpose of the observer requirement. In developing this element to afford affected entities with the maximum flexibility, NMFS is ensuring that there is a greater chance of compliance, and thus, a greater chance that the objective of the CMM and the final rule will be satisfied.

With respect to element (4), restrictions on vessels with which transshipping and bunkering may be conducted, NMFS has not identified any alternatives that would be less burdensome than the alternative adopted in this final rule and would accomplish the objectives of the WCPFC Implementation Act. CMM 2009-06 and CMM 2009-01 include specific provisions for vessels with which transshipping and bunkering may be conducted and the final rule implements those provisions; the CMMs leave no room for consideration of any alternatives. With respect to element (5), notice of entry or exit for Eastern SMA, NMFS has not identified any alternatives that would be less burdensome than the alternative adopted in this final rule and would accomplish the objectives of the WCPFC Implementation Act. CMM 2010-02 includes specific requirements for notice of entry or exit for the Eastern SMA and the final rule implements those provisions; the CMM leaves no room for consideration of any alternatives that would reduce the cost of compliance.

With respect to element (6), the purse seine discard report, NMFS has not identified any alternatives that would be less burdensome than the alternative adopted in this final rule and would accomplish the objectives of the WCPFC Implementation Act. CMM 2009-02 includes specific requirements for the purse seine discard report, and the final rule implements those provisions; the CMM leaves no room for consideration of any alternatives that would reduce the cost of compliance.

With respect to element (7), net sharing restrictions and reporting, one alternative would be to allow U.S. vessels to net share to (but not from) foreign-flagged vessels, and a second would be to allow U.S. vessels to net share both to and from foreign vessels. Under both these alternatives, net sharing would be allowed only on the last set. Alternatives to allow net sharing on other than the last set would not be consistent with WCPFC decisions, so were not further considered. Both alternatives identified above would be less restrictive than the alternative adopted in this final rule and thus bring lower compliance costs. The first alternative would make it difficult to ensure consistent counting and reporting of catches—for example, the shared catch might be logged as catch by both the U.S. catcher vessel and the foreign vessel with which the catch is shared. Since the foreign vessel is not expected to report its catch and effort data to NMFS, this could result in inaccurate reporting of catch. The alternative was rejected for that reason. The second alternative would have the same shortcoming and would also be very difficult to enforce, as the United States would have limited ability to determine whether a foreign vessel complied with the last-set condition. The alternative was rejected for those reasons.

For each element, NMFS also considered the no-action alternative, or status quo situation. However, as stated above, the no-action alternative would not accomplish the objectives of the WCPFC Implementation Act and was rejected for that reason.

Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides.” The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. As part of this rulemaking process, one or more small entity compliance guides have been prepared. The guide(s) will be sent to permit and license holders in the affected fisheries. The guide(s) and this final rule will also be available at http://www.fpir.noaa.gov/ and by request from NMFS PIRO (see ADDRESSES ).

This final rule contains new collection-of-information requirements subject to the Paperwork Reduction Act (PRA) and which have been approved by OMB under control number 0648-0649. The public reporting burdens for each of the requirements are estimated as follows: transshipment reporting: 60 minutes per response, on average; prior notice for high seas transshipments and emergency transshipments: 15 minutes per response, on average; pre-trip notification for the purpose of deploying observers: 1 minute per response, on average; notice of entry or exit for Eastern SMA: 15 minutes per response, on average; purse seine discard report: 30 minutes per response, on average. These estimates include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

Send comments on these or any other aspects of the proposed collection of information to Michael D. Tosatto, Regional Administrator, NMFS PIRO (see ADDRESSES ), and by email to OIRA_Submission@omb.eop.gov or fax to 202-395-7285.

This final rule also contains a collection-of-information requirement subject to the PRA that was previously approved by OMB under control number 0648-0218, “South Pacific Tuna Act” (the net sharing reporting requirement). The public reporting burden for the Catch Report Form under that collection-of-information requirement is estimated to average one hour per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. NMFS estimated that the net sharing reporting requirement would not increase the public reporting burden for the Catch Report Form. Send comments regarding this burden estimate, or any other aspect of this data collection, including suggestions for reducing the burden, to Michael D. Tosatto, Regional Administrator, NMFS PIRO (see ADDRESSES ) and by email to OIRA_Submission@omb.eop.gov or fax to 202-395-7285.

Notwithstanding any other provision of the law, no person is required to respond to, and no person shall be subject to penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number.

Prior notice and opportunity for public comment are not required with respect to the revision to the table of OMB control numbers in 15 CFR 902.1(b), because this action is a rule of agency organization, procedure or practice under 5 U.S.C. 553(b)(A).

For the reasons set out in the preamble, 15 CFR Chapter IX and 50 CFR Chapter III are amended as follows:

This final rule implements a number of amendments to the statutory requirements governing HUD's IHBG and Title VI Loan Guarantee programs under the Native American Housing Assistance Act of 1996 (25 U.S.C. 4101 et seq. ). Specifically, it focuses on implementing provisions of the Native American Housing Assistance and Self- Determination Reauthorization Act of 2008 (Pub. L. 110-411, approved October 14, 2008) (NAHASDA Reauthorization Act or 2008 Reauthorization Act). The NAHASDA Reauthorization Act reauthorizes the Native American Housing Assistance and Self-Determination Act of 1996 (25 U.S.C. 4101 et seq. ) (NAHASDA) through September 30, 2013, and makes a number of amendments to the statutory requirements governing HUD's IHBG and Title VI Loan Guarantee programs. Among other changes, the NAHASDA Reauthorization Act amends section 106 of NAHASDA to provide that HUD shall initiate a negotiated rulemaking in order to implement provisions of the 2008 Reauthorization Act that require rulemaking. The rule also implements statutory changes to NAHASDA made by several laws enacted between 1998 and 2005. 1 After establishing the NAHASDA Negotiated Rulemaking Committee (Committee), and with the full and active participation of the Tribal representation on the Committee, HUD and the Committee published a proposed rule on November 18, 2011 (76 FR 71474), which reflected the consensus decision of the Committee. This final rule takes into consideration the public comments on the proposed rule and, as discussed in this preamble, makes some changes to the November 18, 2011, proposed rule. This final rule reflects the consensus decisions reached by HUD and the Committee.

This final rule would amend HUD's regulations by implementing statutory amendments to NAHASDA. The rule amends the regulations under subpart A of 24 CFR part 1000 regarding the guiding principles of NAHASDA, definitions, labor standards, environmental review procedures, procurement, tribal and Indian preference, and program income. The rule also amends subpart B of 24 CFR part 1000, which addresses eligible families, useful life of properties, and criminal conviction records, and subpart C of 24 CFR part 1000, which addresses the tribal program year, Indian Housing Plan (IHP) requirements, administrative and planning expenses, reserve accounts, local cooperation agreements, and exemption from taxation. Changes to subpart D of part 1000 address certain formula information that must be included in the IHP and Annual Performance Report (APR), as well as the date by which HUD must provide data used for the formula and projected allocation to a tribe or Tribally Designated Housing Entity (TDHE). The final rule amends subpart E of 24 CFR part 1000, which addresses financing guarantees, and subpart F of 24 CFR part 1000, which addresses HUD monitoring, APRs, APR review, HUD performance measures, recipient comments on HUD reports, remedial actions in the event of substantial noncompliance, audits, submission of audit reports, and records retention.

This rule implements the NAHASDA Reauthorization Act, but does not directly address those provisions that affect the NAHASDA allocation formula, subpart D of 24 CFR part 1000. In implementing these provisions of the NAHASDA Reauthorization Act, this rule does not impose any significant additional costs on Indian tribes, tribal and regional housing authorities, or TDHEs. It provides tribes greater flexibility in administering of their IHBG and Title VI Loan programs and reduces administrative costs by, for example, exempting procurements of goods and services with a value of less than $5000 from competitive requirements and permitting recipients to use Federal supply sources made available by the General Services Administration. Accordingly, HUD has determined that this rule is not an economically significant regulatory action.

NAHASDA reorganized and simplified HUD's system of housing assistance to Native Americans by eliminating several separate HUD programs and replacing them with a single block grant program, made directly to tribes, known as the IHBG. Title VI of NAHASDA also authorizes federal guarantees for the financing of certain tribal activities (under the Title VI Loan Guarantee Program). HUD's regulations governing the IHBG and Title VI Loan Guarantee programs are located in 24 CFR part 1000. In accordance with section 106 of NAHASDA, HUD developed the regulations with active tribal participation under the procedures of the Negotiated Rulemaking Act of 1990 (5 U.S.C. 561-570).

Under the IHBG program, HUD makes assistance available to eligible Indian tribes for affordable housing activities. The amount of assistance made available to each Indian tribe is determined using a formula that was developed as part of the NAHASDA negotiated rulemaking process (IHBG Formula). Based on the amount of funding appropriated annually for the IHBG program, HUD calculates the annual grant for each Indian tribe and provides this information to the Indian tribes. An IHP for the Indian tribe is then submitted to HUD. If the IHP is found to be in compliance with statutory and regulatory requirements, the grant is made.

Under the Title VI Loan Guarantee program, HUD guarantees obligations issued by tribes or TDHEs, with tribal approval, to finance eligible affordable housing activities under Section 202 of NAHASDA and housing-related community development activities consistent with the purposes of NAHASDA. No guarantee can be approved if the total outstanding obligations exceed five times the amount of the grant for the issuer, taking into consideration the amount needed to maintain and protect the viability of housing developed or operated pursuant to the U.S. Housing Act of 1937. The program requires issuers to pledge current and future IHBG appropriations to the repayment of the guaranteed obligations. The full faith and credit of the United States is pledged to the payment of all guarantees.

The NAHASDA Reauthorization Act reauthorizes NAHASDA through September 30, 2013, and makes a number of amendments to the statutory requirements governing the IHBG and Title VI Loan Guarantee programs. Among other changes, the NAHASDA Reauthorization Act amends section 106 of NAHASDA to require that HUD establish a negotiated rulemaking committee, in accordance with the procedures of the Negotiated Rulemaking Act of 1990 (5 U.S.C. 561-570) to implement aspects of the 2008 Reauthorization Act that require rulemaking. On January 12, 2009 (74 FR 1227), as required by section 106 of NAHASDA, HUD announced its intention to establish a Negotiated Rulemaking Committee to develop the regulatory changes to the IHBG and Title VI Loan Guarantee programs. On September 23, 2009 (74 FR 48584), after taking nominations for membership on the committee, HUD published membership on the Committee reflecting a balanced representation of Indian tribes.

The NAHASDA Rulemaking Committee convened for one 2-day meeting and five 3-day meetings in Scottsdale, Arizona; Westminster, Colorado; Seattle, Washington; and St. Paul, Minnesota, from March to August 2010. Under the terms of the charter approved by the Committee, the negotiations were to focus on implementation of NAHASDA, as amended, except that subpart D of 24 CFR part 1000, which governs the NAHASDA allocation formula, was generally to be excluded from the negotiations. (The committee nonetheless agreed by consensus to make minor revisions to regulations in subpart D in order to address issues that primarily involved provisions under subpart C.) With the full and active participation of the Tribes, HUD and the Committee published a proposed rule on November 18, 2011 (76 FR 71474). The November 18, 2011, proposed rule reflected the consensus decisions of HUD and the Tribal representatives. The NAHASDA Rulemaking Committee convened for a 2-day meeting in Washington, DC, on May 1-2, 2012, to review and consider public comments received on the proposed rule. This final rule takes into consideration the public comments on the proposed rule, and makes some changes, based on the public comments, to the November 18, 2011, proposed rule. It also reflects the consensus decisions reached by HUD and the Committee.

This final rule follows publication of the November 18, 2011, proposed rule and takes into consideration the public comments received on the proposed rule. In response to public comment, a discussion of which is presented in the following section of this preamble, and in further consideration of issues addressed at the proposed rule stage, HUD and the Committee are making the following changes at this final rule stage and clarifying or correcting portions of the preamble to the November 18, 2011, proposed rule:

• HUD and the Committee are revising § 1000.16, which addresses labor standards, to accurately reflect the intent of the Committee during the negotiated rulemaking sessions held in Westminster, Colorado; specifically, that construction and development contracts are not subject to the prevailing wage provisions referenced in NAHASDA section 104(b)(1) if the contracts are subject to Tribal laws that require payment of not less than prevailing wages, as determined by the Indian tribe. HUD is also clarifying that operations and maintenance contracts and work performed by the TDHE and Tribal employees directly are excluded from Davis-Bacon and HUD wage rates where a Tribal wage provision that requires not less than prevailing wage rates is in existence. In making these changes, HUD also agrees that the preamble of the November 18, 2011, proposed rule incorrectly describes this change as one that did not reach consensus and, accordingly corrects that preamble to reflect otherwise.

• HUD and the Committee are revising § 1000.503(a) to more accurately describe the assessment factors that determine the frequency and level of monitoring recipients. Specifically, HUD and the Committee are revising paragraphs (a)(4), (a)(5) and (a)(6) of § 1000.503 to specifically reference Office of Management and Budget (OMB) Circular A-133. This revision is based on the parties' understanding during the negotiated rulemaking sessions leading to the development of the proposed rule that the delinquent audits included in HUD's risk assessment were delinquent OMB Circular A-133 audits. In addition, to reflect existing practice that considers open Inspector General audit findings as a risk assessment factor, HUD and the Committee are revising § 1000.503(a)(4) to reference open Inspector General audit findings.

• HUD and the Committee are revising § 1000.503(b) to address a perceived grammatical problem and bring greater clarity to the paragraph.

• While not changing HUD regulatory text of § 1000.532(a), HUD and the Committee are clarifying the description of this section in this final rule. Specifically, rather than covering “significant noncompliance with a major activity of a recipient's IHP,” as described in the proposed rule, § 1000.532 is clarified to provide that it applies to several categories of “substantial noncompliance” as that term is defined in § 1000.534.

The public comment period for the November 18, 2011, proposed rule closed on January 17, 2012, and HUD received 20 public comments, including one duplicate, on the proposed rule. Comments were submitted by federally recognized Indian tribes, tribal and regional housing authorities, TDHEs, associations comprised of tribes, a law office, a nonprofit devoted to issues of race and ethnicity, and a member of the public. On May 1 and 2, 2012, the Committee met in Washington, DC, to review and consider responses to the public comments. This section of the preamble addresses the significant issues raised in the public comments and organizes the comments by subject category, with a brief description of the issue, followed by the Committee's response. For the convenience of readers, the discussion of the public comments is organized into three sections. The first section discusses the general comments that were received on the proposed rule. The second section discusses the public comments received on specific proposed regulatory changes contained in the proposed rule. The third section discusses the public comments received on nonconsensus issues (i.e., those issues on which the Committee could not reach agreement on proposed regulatory language).

Issue: Tribal and Indian preferences, generally. One commenter stated that unless there is an explicit statutory mandate to do so, there should be no preferences given on the basis of “Indian” (racial) as opposed to “tribal” (political) status. The commenter cited Morton v. Mancari to support this comment. The commenter stated that the former is a racial classification and, therefore, triggers strict scrutiny and is presumptively unconstitutional. Adarand Constructors, Inc. v. Pena and Personnel Administrator v. Feeney.

Response: The commenter stated that “unless there is an explicit statutory mandate to do so, there should be no preferences given on the basis of `Indian' (racial) as opposed to `tribal' (political) status,” asserting that “the former is a racial classification and, therefore, triggers strict scrutiny and is presumptively unconstitutional.” The commenter references the United States Supreme Court's decision in Morton v Mancari, 417 U.S. 535 (1974), in support of this comment. The Committee notes that there is a mandate to use Indian preference under NAHASDA, both in providing affordable housing and in hiring and contracting. 25 U.S.C. 4101, 4111, 4131. Further, the Committee notes that Morton, contrary to the commenter's assertion, expressly found that, “Indian” preference is not a racial categorization, but is rather a political one and that, therefore, the use of Indian preference does not trigger strict scrutiny review under the Constitution's equal protection clause. 417 U.S. 535, 554-555. As a result, the Committee decided not to revise any provisions providing Indian or tribal preference in this final rule.

Issue: Lack of timeliness in issuing regulations. Several commenters expressed their concern that HUD is only now promulgating regulations to implement provisions that were enacted through the NAHASDA. The commenters stated that it is imperative that HUD be timelier in proposing future regulations.

Response: HUD recognizes the concern raised by the commenters and is committed to working more timely in proposing future regulations.

Issue: Initiation of rulemaking; providing for periodic review (§ 1000.9(b)). Several commenters, citing section 106(b)(2)(D) of NAHASDA, as amended, stated that the proposed rule provides a mechanism for initiating rulemaking when NAHASDA is amended, but does not provide a mechanism for initiating the periodic review of the regulations as required by this section of NAHASDA.

Response: The Committee considered the comments and determined that no change is required to § 1000.9(b) as published in the proposed rule.

Issue: Initiation of rulemaking; clarifying actions that “significantly” amend NAHASDA (§ 1000.9(b)). Several commenters recommended that HUD clarify the standard used when determining whether an enactment has “significantly” amended NAHASDA. The commenters stated that without such clarification, HUD would retain too much discretion to determine when negotiated rulemaking is called for. The commenters recommended that HUD define “significantly” as “any enactment that has the effect of altering the rights, privileges, duties, or responsibilities of the Secretary, Tribes, or TDHEs, that changes any aspect of the funding allocation mechanism under the statute, or that changes any procedure.” Several other commenters agreed and opined that had HUD initiated negotiated rulemaking in 2002, many of the accounting issues facing tribes and TDHEs would not have been necessary.

Response: The Committee considered these comments and did not reach consensus on revising § 1000.9(b) as published in the propose rule. Tribal representatives stated that defining “significantly” would provide more clarity and certainty regarding when negotiated rulemaking was required rather than leaving the decision entirely within HUD's discretion. HUD's position was that § 1000.9(b) was intended to provide HUD the flexibility to quickly respond to minor changes or technical changes to NAHASDA without first having to establish a negotiated rulemaking committee, a process that may take considerable time and resources. HUD asserted that defining “significantly” as recommended by the commenters or removing the word “significantly” from § 1000.9(b) would be difficult and likely result in the delayed implementation of amendments to NAHASDA to the detriment of both HUD and the Tribes. As a result, the Committee did not reach consensus to revise § 1000.9(b) in response to these comments.

Issue: Labor Standards; consensus reached to exclude contracts from section 104(b)(1) of NAHASDA (§ 1000.16(e)). Several commenters stated that the Committee reached consensus on including language that would exclude construction and development contracts from being required to contain the prevailing wage provision referenced in section 104(b)(1) of NAHASDA. These commenters cited to transcripts of the negotiated rulemaking sessions held in Westminster, Colorado (Neg. Reg. Committee Transcript Vol. II, Page 168 and Issue Number 32 on the NAIHC Legislative Committee Analysis Chart) to support their position. These commenters also stated that the Committee reached agreement specifying that “agreements for assistance, sale or lease” included construction and development contracts. These commenters stated that the final rule should reflect the Committee's action to include regulatory language specifically excluding construction and development contracts from this provision.

These commenters also stated that HUD should clarify that contracts for operations and maintenance of NAHASDA-assisted affordable housing are not subject to the provisions of section 104(b)(1) provided that applicable tribal law requires the payment of prevailing wage rates, and that work performed directly by tribal or TDHE employees on NAHASDA-assisted housing is also excluded from that provision. Another commenter also recommended that proposed § 1000.16(e) be revised to provide a more complete description of those activities not subject to the prevailing wage requirement. The commenter recommended that proposed § 1000.16(e) be revised to add, “including such construction and development contracts and such contracts for the maintenance and operation of NAHASDA-assisted affordable housing. Work performed directly by tribal or TDHE employees on NAHASDA-assisted housing is also not subject to the prevailing wages provisions in section 104(b)(1) if covered by one or more such laws or regulations adopted by an Indian tribe.”

Response: After reviewing this issue, the Committee agreed that consensus was reached and that construction and development contracts, if entered into pursuant to a HUD contract or agreement for assistance, sale, or lease under NAHASDA, are not required to contain the prevailing wage provision referenced in NAHASDA section 104(b)(1) if the contracts are subject to tribal laws that require payment of not less than prevailing wages. Accordingly, the Committee is revising § 1000.16 to accurately reflect this consensus position. In addition, as requested by the commenter, the Committee is also clarifying that operations and maintenance contracts and work performed by the TDHE and Tribal employees directly are excluded from Davis-Bacon and HUD wage rates under section 104(b)(1) where a Tribal wage provision that requires not less than prevailing wage rates is in existence. In making these changes, the Committee also agrees that the preamble of the November 18, 2011, proposed rule incorrectly describes this change as one that did not reach consensus and, accordingly, corrects that preamble to reflect otherwise.

Issue: Waiver of environmental review procedures; secretarial discretion to approve the waiver (§ 1000.21). Several commenters stated that the proposed regulation permits the Secretary discretion to grant a waiver from the environmental review requirements in certain circumstances, and sets out the criteria to be used by the Secretary in making his determination. The commenters recommended that the waiver be mandatory if the Secretary determines that the recipient's waiver request meets each condition provided by § 1000.21.

Response: The Committee considered these comments and did not reach consensus to change § 1000.21, regarding waiver of environmental compliance. Tribal representatives stated that adopting the comment would provide a level of certainty regarding HUD's treatment of waiver requests and would be more workable for the tribes. HUD stated that section 105 of NAHASDA provides that the Secretary “may” waive environmental requirements upon a showing of the stated criteria delineated by the statute and reiterated that the intent of this section was to simply codify statutory text. While tribal representatives thought otherwise, HUD also asserted that removing Secretarial discretion to review these waiver requests would diminish HUD's ability to ensure that each criterion was met. HUD also stated that it has routinely granted such waiver requests in the past whenever a recipient has demonstrated that each criterion has been met.

Issue: Another commenter stated that HUD changed the preamble discussion of § 1000.21 following Committee consensus by referencing Notice CPD-04-08, regarding the procedures for requesting a waiver of the statutory environmental review requirements, and by adding a footnote that summarizes these procedures. According to the commenter, the inclusion of this language misleadingly implies that there has been sufficient tribal consultation to justify HUD's policies on these issues. The commenter also states that this language attempts to raise the CPD notice almost to the level of a negotiated rule by referencing it in the preamble. The commenter recommended that the wording be removed and full tribal consultation be sought before application of the referenced program notice, or some revised version of that notice.

Response: The Committee considered this comment and concluded that no action on this comment is required. Notice CPD-04-08, which has since been replaced by Notice CPD-11-010, restates the authority of the Secretary to waive environmental requirements and describes the existing procedures that HUD follows when reviewing and approving waiver requests. The Notice was referenced only to describe the process, timing, procedures, and forms used by HUD to process a request to waive environmental requirements. As a result, the Committee decided that no action on this comment is required.

Issue: Utilizing federal supply sources in procurement (§ 1000.26(11)(iv)). Several commenters stated that they welcomed this provision, which permits recipients to use federal supply sources made available by the General Service Administration (GSA). The commenters reported, however, reluctance on the part of GSA to apply the provision and recommended that the failure be remedied.

Response: The Committee notes that the comment offers an observation rather than a recommendation to change the regulatory text. As a result, the Committee agreed that no action on this comment is required. Nevertheless, the Committee agrees with the commenters that use of federal supply sources provided by GSA can be extremely cost effective for tribes, saving thousands of dollars in procurement costs during a period of scarce federal resources. HUD commits to continuing to work with GSA to reduce the difficulties associated with using these sources.

Issue: Applicability of section 3 of the Housing and Urban Development Act of 1968 (§ 1000.42). Several commenters stated that section 101(k) of NAHASDA, as amended, designated as Tribal Preference in Employment and Contracting provides that tribal employment and contract preference laws and regulations apply notwithstanding any other provision of law. The commenters stated that while section 3 of the HUD Act of 1968 requires that low-income residents receive preference in employment and contracts, low-income household members are not always Native American or members of a tribe. The commenters recommended, therefore, that the preamble or the final rule confirm that HUD will not treat the application of tribal preference laws as a violation of section 3, even if they do not contemplate preference for non-Tribal household members.

Another commenter stated that section 3 is an infringement on tribal self-determination and that § 1000.42 of the proposed rule should be eliminated. The commenter stated that application of the section 3 requirement would require that 30 percent of the aggregate number of new hires be section 3 residents and that 10 percent of all contracts be awarded to section 3 businesses. The commenter also stated that tribal education and training programs are federally funded programs for the benefit of Native Americans, and that HUD cannot dictate that this funding be directed to assist non-Indians.

Response: The Committee considered the comment and agreed that § 1000.42 does not require change. As more fully discussed in the preamble to the November 18, 2011, proposed rule, § 1000.42 addresses section 3 of the Housing and Urban Development Act of 1968 (12 U.S.C. 1701u), which requires certain HUD recipients (e.g., recipients of more than $200,000 in HUD housing and community development assistance for a covered project) to provide economic opportunities to low- and very low-income residents. Section 1000.42(c) clarifies that recipients meet the section 3 requirements when they comply with employment and contract preference laws adopted by their tribe in accordance with section 101(k) of NAHASDA.

Issue: Tribal and Indian preferences; potential infringement on Tribal Sovereignty (§§ 1000.48, 1000.50, and 1000.52). One commenter stated that these sections, which provide that a recipient is required to apply Tribal preference in employment and contracting, if the Tribe has enacted Tribal preference laws, and that it must apply Indian preference to the extent that Tribal preference laws have not been enacted, may infringe on tribal sovereignty. According to the commenter, each tribe should be able to determine whether or not to implement Indian or tribal preferences and the extent to which it implements such preferences.

Response: The final rule has not been revised in response to this comment. As stated in the preamble to the proposed rule, these sections implement section 101(k) of NAHASDA, which provides that the employment and contract preference laws of a tribe that receives the benefit of a grant (or portion of a grant) apply to the administration of the grant (or portion of the grant), notwithstanding any other provision of law. More specifically, these sections clarify that a recipient is required to apply tribal preference in employment and contracting if a tribe has enacted tribal preference laws, and that only to the extent that such tribal preference laws have not been enacted, a recipient must instead apply Indian preference, as required under section 7(b) of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450e(b)). In addition, §§ 1000.48(c) and 1000.52(d) clarify that the exemption in NAHASDA section 203(g) for procurements of less than $5,000 from competitive rules and procedures serves to exempt such procurements from Indian preference requirements under section 7(b) of the Indian Self-Determination and Education Assistance Act.

Issue: Program Income; Use for Housing or housing related activities (§§ 1000.10(b), 1000.26, and 1000.64). Several commenters stated that §§ 1000.10(b), 1000.26, and 1000.64 implement changes enacted by the NAHASDA Reauthorization Act of 2002 that provide that income derived from NAHASDA funded activities are not restricted so long as they are used for housing or housing related activities. According to the commenters, this change should have been self-implementing and, as a result, HUD should authorize tribes and TDHEs to recoup any program income that they were forced to expend since 2002 on affordable housing activities, the statutory standard prior to the 2002 change.

Response: The Committee considered these comments and agreed that they raise a valid concern. Notwithstanding, the comments raise issues outside the scope of this rulemaking and can more properly be addressed in a separate rulemaking. As a result, the Committee considered the comments and decided not to revise §§ 1000.10(b), 1000.26, or 1000.64.

Issue: The rule fails to assist recipients to determine “useful life” (§ 1000.142). Several commenters stated that § 1000.142 fails to inform recipients regarding how to determine the useful life of a housing unit. As a result, the useful life of a housing unit will be determined on a case-by-case determination by HUD's approval of the recipient's Indian Housing Plan. The commenters stated that HUD should provide a clear and realistic way to determine a unit's useful life rather than relying on a case-by-case determination. Another commenter agreed that § 1000.142 is not clear. The commenter opined that HUD will likely be required to publish guidance regarding the provision and cautioned that unless the guidance is subject to HUD's tribal consultation policy, such guidance could appear to infringe on tribal self-determination.

Response: The Committee considered these comments and concluded not to change § 1000.142. This provision was a consensus provision agreed to by HUD and the Committee. Moreover, § 1000.142 reflects current practice and remains useful in clarifying that recipients implement the useful life requirement by placing binding commitments on the assisted property that are satisfactory to HUD.

Issue: The requirement that binding commitments are applicable to third parties that are not family members does not make sense (§ 1000.146). Several commenters stated that § 1000.146 does not make practical sense. The commenters stated that the binding commitment is between the recipient and the homebuyer and does not pass to family or household members. As a result, the commenters stated that the family or household member cannot pass the restriction to third party buyers. The commenters recommend that HUD revise this provision by deleting the last sentence of the proposed section.

Response: As discussed in the preamble to the proposed rule, § 1000.146 incorporates section 205(c) of NAHASDA. More specifically, the sentence that the commenters recommend be deleted reflects the intent of the Committee that any subsequent transfer by the family member or household member to a third party that is not a family member or household member be subject to any remaining useful life under a binding commitment. Accordingly, HUD and the Committee determined that a change to the rule was not necessary.

Issue: Difficulty receiving criminal conviction information (§ 1000.150). Several commenters stated that most tribal housing programs and TDHEs remain unable to obtain criminal conviction information on applicants or tenants from law enforcement agencies, including the Bureau of Indian Affairs Police and local non-Indian agencies. The commenters recommended that the authorization to obtain this information be strengthened by regulation or by statutory amendment.

Response: The November 18, 2011, rule proposed to amend only the heading of § 1000.150, to conform it to section 208(a) of NAHASDA, which permits the use of criminal conviction records to screen applicants for employment. Consequently, the Committee agrees that no change to § 1000.150 is required. Nevertheless, the Committee agrees that section 208(a) of NAHASDA provides that the National Crime Information Center, police departments, and other law enforcement agencies are required to provide this information upon request. The Committee also agrees that the preamble to this final rule state that, while § 1000.150 does not explicitly list the “other law enforcement agencies” from which tribes and TDHEs should be able to obtain the criminal conviction records of applicants for employment and adult applicants for housing, the intent of the Committee is that such information be made available from the Bureau of Indian Affairs Police and local non-Indian agencies.

Issue: Response time not sanctioned (§§ 1000.227 and 1000.246). Several commenters stated that, unlike § 1000.114, these provisions covering the granting of waivers relating to local cooperation agreement and taxation exemption requirements, as well as waivers relating to a recipient's IHP submission deadline, do not provide consequences for HUD's failure to act within the prescribed timeframes. The commenters recommended that these sections be revised to provide that HUD's failure to issue a decision within the prescribed timeframe shall result in the waiver request being approved.

Response: The Committee considered these comments and did not reach consensus to change either § 1000.227 or § 1000.246. The deadlines for HUD action reflected in §§ 1000.227 and 1000.246 were the subject of much discussion during the negotiated rulemaking sessions leading to the proposed rule. Tribal representatives opined that establishing consequences for HUD's failure to meet its deadline would expedite the review process and provide certainty for the tribes. HUD asserted that a deadline would eliminate the flexibility it needs to fully review these requests. HUD also asserted the fact that it has delegated decisionmaking authority to the field should expedite HUD decisionmaking, and supports the conclusion that these sections not be revised to result in automatic waivers of program requirements being granted should HUD fail to issue a decision within the prescribed timeframes.

The Committee also reviewed whether to revise § 1000.246(c) to delete the second and third sentences that read, “If the request is denied, IHBG funds may not be spent on the housing units. If IHBG funds have been spent on the housing units prior to the denial, the recipient must reimburse the grant for all IHBG funds expended.” HUD notes that section 101(d) of NAHASDA states that grant amounts may not be used unless the dwelling units are exempt from all real and personal property taxes levied or imposed by the state, tribe, city, county or other political subdivision. Recipients would not, therefore, comply with NAHASDA if they used non-federal assistance to pay any tax imposed on the units. As a result, the Committee did not revise § 1000.246.

Issue: What is the appropriate extent of HUD monitoring (§ 1000.503(a)). One commenter stated that HUD changed one of the risk assessment factors related to a determination of the frequency of HUD monitoring in § 1000.532(a)(4) from “delinquent IPA audits” to “delinquent audits.” The commenter stated that the reference to “delinquent audits” should be changed back to the October 2010 version of the provision which provided, “delinquent Independent Public Accountant (IPA) audits.”

Response: HUD agrees that the reference to “delinquent IPA audits” was changed to “delinquent audits,” after the language was negotiated and consensus reached. HUD stated that the change was intended to clarify the provision since the term “IPA” is not defined in the rule and may lend itself to confusion. To more accurately describe the assessment factors which determine the frequency and level of monitoring recipients, the Committee agrees to revise paragraphs (a)(4), (a)(5) and (a)(6) of § 1000.503 to reference OMB Circular A-133. The parties understood during the negotiated rulemaking sessions leading to the development of the proposed rule that the delinquent audits included in HUD's risk assessment were delinquent OMB Circular A-133 audits. In addition, to reflect existing practice that considers open Inspector General audit findings as a risk assessment factor, the Committee agrees to revise § 1000.503(a)(5) to read, “open OMB Circular A-133 or Inspector General audit findings.”

Issue: Potential ambiguity in § 1000.503(b). One commenter stated that there appears to be a grammatical problem with the wording in the introductory language of § 1000.503(b) that could cause ambiguity. The commenter recommended that the provision be clarified by rewriting the section to read as follows: “(b) If monitoring indicates noncompliance, HUD may undertake additional sampling and review to determine the extent of such noncompliance. The level of HUD monitoring of a recipient once that recipient has been selected for HUD monitoring is as follows * * *”

Response: The Committee agrees that the recommendation offered by the commenter would clarify § 1000.503(b) and accordingly, revises this section. In addition, the Committee agrees to further clarify the wording in §§ 1000.503(b)(2) and (b)(3) to make the provisions easier to comprehend and apply.

Issue: HUD altered the meaning of § 1000.503(d) as negotiated by the Committee. One commenter stated that HUD has changed § 1000.503(d) in a way that alters its meaning as negotiated by the Committee. According to the commenter, the original intent agreed to by the Committee was that HUD would not monitor a recipient that has a self-monitoring agreement, absent the circumstances listed in the regulations. The language incorporated in the proposed rule, however, implies that self-monitoring agreements will include provisions for some form of HUD monitoring, even when the circumstances listed in the proposed rule are not present. The commenter recommended that the final regulation include the wording as originally shown in the October 2010 version of the rule, specifically, that “ONAP will not monitor the recipient within the effective period of such agreement or arrangements, unless ONAP finds reasonable evidence of fraud, a pattern of noncompliance, or the significant unlawful expenditure of IHBG funds.”

Response: Section 1000.503(d) provides that a recipient may request to enter into a self-monitoring agreement with HUD, under which HUD would monitor only the recipient in accordance with the agreement, absent reasonable evidence of fraud, a pattern of noncompliance, or significant unlawful expenditure of IHBG funds. The Committee agrees that as written, § 1000.503(d) represents the intent of the parties, and as a result, does not require change at this final rule stage.

Issue: Failure of HUD to issue timely report not sanctioned (§ 1000.528). Several commenters stated that the proposed regulations require tribes to submit comments to the HUD draft report within specific timeframes, and that failure to meet the prescribed time results in consequences for the tribe. The commenters state that there are no consequences for HUD's failure to issue a report within the regulatory timelines. The commenters recommended that the regulation contain some kind of consequence for HUD, or some kind of enforcement or appeal mechanism if HUD fails to meet its obligations under the timelines.

Response: The Committee considered this comment and recognizes that § 1000.528 establishes a timeline for HUD to take action, but does not establish consequences for HUD not taking action within that time period. Tribal representatives stated that establishing consequences for HUD if it fails to meet the timeline would expedite HUD's review of a tribe's draft report and provide additional certainty for the tribes. This section was discussed during the committee meeting leading to the development of this section and there was no consensus to adopt the Tribal position. As a result, the Committee did not change the rule to address this comment.

Issue: Preamble does not accurately describe scope of § 1000.532(a). One commenter stated that HUD's preamble describing the scope of § 1000.532(a) inaccurately describes the scope of this section. The commenter stated that the preamble describes this section as covering “significant noncompliance with major activity of a recipient's IHP” when the proposed section covers any act of substantial noncompliance as defined in § 1000.534, which includes events that are financially significant, whether or not a major activity is involved. The commenter recommended that HUD clarify this language in the final rule.

Response: The Committee considered this comment and agrees that it does not recommend changes to the regulatory text of the final rule. As a result, the Committee agrees that § 1000.532(a) does not require change at this final rule stage. The commenter raises a concern regarding the accuracy of the section of the preamble to the proposed rule that describes § 1000.532(a) (76 FR 71479-71480). HUD and the Committee reviewed this section of the preamble and agree it does not clearly describe § 1000.532(a). Specifically, the preamble to the proposed rule states that § 1000.532(a) applies to “significant noncompliance with a major activity of a recipients IHP.” To clarify, the final rule at § 1000.532 applies to several categories of “substantial noncompliance” as that term is defined in § 1000.534.

Issue: Provision regarding how long the recipient must maintain program records should be clarified (§ 1000.552(b)). Several commenters stated that only smaller tribes will be controlled by this provision and that most tribes and TDHEs are subject to the Single Audit Act and existing § 1000.552(c). The commenters recommended that HUD combine proposed § 1000.552(b) and existing § 1000.552(c) to make one clearly stated and understandable statement.

Response: The Committee considered these comments and agrees not to change § 1000.552(b) to address this comment.

Issue: Procedures to respond to HUD remedial actions are insufficient and do not conform to statute (§§ 1000.528 to 1000.536). Several commenters stated that sections 401 and 405 of NAHASDA require full due process for recipients before any NAHASDA funds can be reduced or recaptured for any reason. Full due process includes adequate and detailed notice, the right of the recipient to respond, a hearing, and a final determination made by a fair and impartial decisionmaker. Furthermore, the commenters stated that NAHASDA does not provide for the recapture of funds spent on eligible affordable housing activities under any circumstances. The commenters stated that the proposed regulations do not sufficiently or clearly address these requirements. They recommended that the Committee propose new regulations that make these due process requirements clear and state that recapture of NAHASDA funds that have already been spent on eligible affordable housing activities is prohibited under all circumstances.

Response: No change has been made to this final rule in response to these comments. As discussed in detail in the preamble to the proposed rule, the Committee could not reach consensus on the recapture of expenditures on affordable housing activities. Because decisionmaking during the negotiated rulemaking process was based on consensus, the absence of consensus on recapture of funds, even after the full consideration of public comments, precluded the Committee from adopting the changes proposed by the commenters.

Issue: Remedial actions in the event of substantial noncompliance; HUD should reconsider opposition to three nonconsensus items (§ 1000.532).

Several commenters urged HUD to reconsider its opposition to the tribal position on three nonconsensus items. Initially, the commenters urged HUD to include in the final rule the Tribes' proposal to impose a 3-year “statute of limitations” on HUD enforcement actions. The commenters stated that such a limitation would provide certainty and stability to tribes and TDHEs in their operations. Second, the commenters urged HUD to incorporate the Tribes' proposal to retain the existing language that would prohibit HUD from recapturing funds that have already been distributed to recipients and expended on affordable housing activities, stating that the recapture of funds is unduly punitive to recipients and would have a potentially adverse impact on low-income tenants and homebuyers who depend on the recipients for ongoing services. Finally, the commenters urged HUD to incorporate the Tribes' proposed language to clarify that the Line of Control Credit System (LOCCS) edit is in fact a “limitation on the availability of payments to programs, projects, or activities not affected by a failure to comply as described under section 401(a)(1) of NAHASDA.” The commenters stated that the justification that HUD put forward to support its position is not borne out by the facts or the law.

Another commenter stated that procedures to be used for noncompliance are extremely important to recipients, and while it did not object to § 1000.532 as proposed, it is important for HUD and tribes to reach consensus concerning procedures to be used when noncompliance that is not “substantial” is involved.

Response: No change has been made to this final rule in response to these comments. HUD and the Committee considered these comments and for the reasons discussed in the preamble to the proposed rule, could not reach consensus on any of these three items. Because decisionmaking during the negotiated rulemaking process was based on consensus, the absence of consensus on these three items, even after the full consideration of public comments, precluded the Committee from adopting the changes proposed by the commenters.

Issue: LOCCS edit is subject to section 401(a)(1) of NAHASDA and should be reconsidered. Several commenters recommended that the rule incorporate the Tribes' proposed language that clarifies that the LOCCS edit is a “limitation on the availability of payments to programs, projects, or activities not affected by a failure to comply,” under section 401(a)(1) of NAHASDA, subject to notice and the opportunity for hearing before terminating, reducing, or limiting the availability of payments. The commenters stated that the justification that HUD put forward during the negotiations to support its position is not borne out by the facts or the law cited by HUD, and that HUD's efforts in other programs to avoid due process requirements when restricting or limiting access to funds have been struck down by the courts. Another commenter disagreed with HUD's position regarding the LOCCS edit and stated that HUD will likely be required to publish guidance regarding the provision. The commenter cautioned that unless the guidance is subject to HUD's tribal consultation policy, such guidance would infringe on tribal self-determination.

Response: As discussed in detail in the preamble to the November 18, 2011, proposed rule, HUD and the Tribes disagree as to whether a “LOCCS edit” is a “limitation on the availability of payments to programs, projects, or activities not affected by a failure to comply,” as described under section 401(a)(1) of NAHASDA. Interested parties are directed to review the preamble to the proposed rule for a full discussion of the position of the parties. Because decisionmaking during the negotiated rulemaking process was based on consensus, the absence of consensus, even after the full consideration of public comments, precluded the Committee from adopting the changes proposed by the commenters.

Issue: Hearing Requirements for Formula Current Assisted Stock (FCAS) overcounts should be reconsidered (§ 1000.532(b)). Several commenters stated that the tribally proposed language that would make some level of inaccuracy in FCAS reporting by the recipient a substantial noncompliance requiring a hearing should be reconsidered. The commenters strongly recommend that the Committee propose new regulations that make the statutory due process requirements clear in the case of overcounts where a recipient would lose a substantial amount of their annual funding.

Response: As discussed in detail in the preamble to the November 18, 2011, proposed rule, HUD and the Tribes disagree on the meaning of section 401(a)(2) of NAHASDA, which addresses the counting of FCAS units. Interested parties are directed to review the preamble to the proposed rule for a full discussion of the position of the parties. The Tribes also recommended the addition of a new subsection to § 1000.534 that would provide that a FCAS overcount, in itself, does not constitute substantial noncompliance. Because decisionmaking during the negotiated rulemaking process was based on consensus, the absence of consensus on FCAS overcounting, even after the full consideration of public comments, precluded the Committee from adopting the changes proposed by the commenters.

Issue: Preamble does not accurately describe hearing requirement for FCAS overcounts. One commenter stated that HUD failed to include a full explanation of the Committee's failure to reach consensus of the FCAS overcount issue in the preamble of the rule. The commenter stated that the October 2010 version of the preamble had the full explanation, including a discussion of whether section 401(a)(2) of NAHASDA, as amended, required a hearing before any grant amount adjustment by HUD. The October 2010 version also addressed the Committee's broader discussions regarding the procedural protections to be applied to both noncompliance and “substantial” noncompliance, and would have ensured that even in cases not involving substantial noncompliance, recipients would have minimum due process protections of notice and an opportunity for some form of hearing. The commenter stated that the failure to include the full discussion of these issues as provided in the October 2010 version downplays the significance of the importance of the issue to recipients. The commenter concluded by recommending that even if HUD persists in omitting the provisions concerning noncompliance that is not substantial, the October 2010 preamble discussion of this issue should be included in the published version of the rules.

Response: As discussed in the response immediately preceding this comment, HUD and the Tribes were unable to reach consensus on this issue. Accordingly, the lack of consensus precluded the Committee from adopting the changes proposed by the commenter.

Under Executive Order 12866 (Regulatory Planning and Review), a determination must be made whether a regulatory action is significant and, therefore, subject to review by the Office of Management and Budget (OMB) in accordance with the requirements of the order. Executive Order 13563 (Improving Regulations and Regulatory Review) directs executive agencies to analyze regulations that are “outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned. Executive Order 13563 also directs that, where relevant, feasible, and consistent with regulatory objectives, and to the extent permitted by law, agencies are to identify and consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public. This final rule was determined not to be a “significant regulatory action” as defined in section 3(f) of Executive Order 12866. The docket file is available for public inspection in the Regulations Division, Office of General Counsel, 451 7th Street SW., Room 10276, Washington, DC 20410-0500. Due to security measures at the HUD Headquarters building, an advance appointment to review the public comments must be scheduled by calling the Regulations Division at 202 402-3055 (this is not a toll-free number). Individuals with speech or hearing impairments may access this number via TTY by calling the Federal Relay Service, toll free, at 1-800-877-8339.

The information collection requirements contained in this rule have been approved by OMB in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520) and assigned OMB Control Number 2577-0218. In accordance with the Paperwork Reduction Act, an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information, unless the collection displays a currently valid OMB control number.

The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ) generally requires an agency to conduct a regulatory flexibility analysis for any rule that is subject to notice and comment rulemaking requirements, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. The requirements of this rule apply to Indian tribal governments and their tribal housing authorities. Tribal governments and their tribal housing authorities are not covered by the definition of “small entities” under the RFA. Accordingly, the undersigned certifies that this rule will not have a significant impact on a substantial number of small entities.

Executive Order 13132 (entitled “Federalism”) prohibits, to the extent practicable and permitted by law, an agency from promulgating a regulation that has federalism implications and either imposes substantial direct compliance costs on state and local governments and is not required by statute, or preempts state law, unless the relevant requirements of section 6 of the Executive Order are met. This rule does not have federalism implications and does not impose substantial direct compliance costs on state and local governments or preempt state law within the meaning of the Executive Order.

Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) (UMRA) establishes requirements for federal agencies to assess the effects of their regulatory actions on state, local, and tribal governments, and on the private sector. This rule will not impose any federal mandate on any state, local, or tribal government, or on the private sector, within the meaning of UMRA.

A Finding of No Significant Impact (FONSI) with respect to the environment was made at the proposed rule stage in accordance with HUD regulations at 24 CFR part 50, which implement section 102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C. 4332(2)(C)). The Finding of No Significant Impact is available for public inspection between the hours of 8 a.m. and 5 p.m. weekdays in the Regulations Division, Office of General Counsel, Department of Housing and Urban Development, 451 7th Street SW., Room 10276, Washington, DC 20410. Due to security measures at the HUD Headquarters building, please schedule an appointment to review the FONSI by calling the Regulations Division at 202-708-3055 (this is not a toll-free number). Individuals with speech or hearing impairments may access this number via TTY by calling the Federal Relay Service, toll free, at 1-800-877-8339.

Accordingly, for the reasons described in the preamble, HUD amends 24 CFR part 1000 as follows:

Electronic and Facsimile Availability

This document and additional information concerning OFAC are available from OFAC's Web site ( www.treasury.gov/ofac ). Certain general information pertaining to OFAC's sanctions programs also is available via facsimile through a 24-hour fax-on-demand service, tel.: 202/622-0077.

The U.S. Government issued the Cuban Assets Control Regulations, 31 CFR part 515 (the “CACR”), on July 8, 1963, under the Trading With the Enemy Act (50 U.S.C. App. 5 et seq. ). Section 515.201 of the CACR prohibits, inter alia, all transfers of credit and all payments in which Cuba or a Cuban national has any interest of any nature whatsoever, direct or indirect, between, by, through, or to any banking institution wheresoever located, with respect to any property subject to the jurisdiction of the United States or by any person subject to the jurisdiction of the United States.

OFAC is amending the CACR to authorize the processing of funds transfers for the operating expenses or other official business of third-country diplomatic or consular missions in Cuba. OFAC also is amending the CACR to authorize certain payments for services rendered by Cuba to United States aircraft.

Third-country diplomatic and consular funds transfers. To ensure that the prohibitions in the CACR do not impede third-country diplomatic or consular activities in Cuba, OFAC is adding new section 515.579 to the CACR. This new section authorizes the processing of funds transfers otherwise prohibited by the CACR for the operating expenses or other official business of third-country diplomatic or consular missions in Cuba.

Services rendered by Cuba to United States aircraft. OFAC is amending section 515.548 of the CACR to add a general license authorizing payments in connection with overflights of Cuba or emergency landings in Cuba by United States aircraft. Prior to this amendment, such payments required the issuance of a specific license.

Because the amendment of the CACR involves a foreign affairs function, the provisions of Executive Order 12866 of September 30, 1993, and the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking, opportunity for public participation, and delay in effective date are inapplicable. Because no notice of proposed rulemaking is required for this rule, the Regulatory Flexibility Act (5 U.S.C. 601-612) does not apply.

The collections of information related to the CACR are contained in 31 CFR part 501 (the “Reporting, Procedures and Penalties Regulations”). Pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), those collections of information have been approved by the Office of Management and Budget under control number 1505-0164. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid control number.

For the reasons set forth in the preamble, the Department of the Treasury's Office of Foreign Assets Control amends 31 CFR part 515 as set forth below:

On June 5, 2012, the Coast Guard published an NPRM entitled Special Local Regulation; Kelley's Island Swim, Lake Erie; Kelley's Island, Lakeside, OH in the Federal Register (77 FR 33130). We did not receive any comments in response to the proposed rule. No public meeting was requested and none was held.

Each year an organized swimming event takes place in Lake Erie in which individuals swim the four miles between Lakeside and Kelley's Island, OH. The Captain of the Port Detroit has determined that swimmers in close proximity to watercraft and in the shipping channel pose extra and unusual hazards to public safety and property. Thus, the Captain of the Port Detroit has determined that establishing a Special Local Regulation around the location of the race's course will help ensure the safety of persons and property at these events and help minimize the associated risks.

To mitigate the dangers presented by a large number of swimmers crossing a shipping channel during a four mile competition, the Captain of the Port Detroit has determined that establishing a Special Local Regulation is necessary. Thus, the Coast Guard is amending 33 CFR part 100 by adding § 100.921 to establish a permanent Special Local Regulation. The affected area encompasses all the waters of Lake Erie between Lakeside, OH and Kelley's Island, OH bound by a line extending from a point on land at the Lakeside dock at positions 41°32′51.96″ N; 082°45′3.15″ W and 41°32′52.21″ N; 082°45′2.19″ W and a line extending to Kelley's Island dock to positions 41°35′24.59″ N; 082°42′16.61″ W and 41°35′24.44″ N; 082°42′16.04″ W (Datum: NAD 83). The precise times and dates of enforcement for this regulated area will be determined annually.

The Captain of the Port Detroit will use all appropriate means to notify the public when the Special Local Regulation in this rule will be enforced. Such means may include publication in the Federal Register , Broadcast Notice to Mariners, Local Notice to Mariners, or, upon request, by facsimilie (fax). Also, the Captain of the Port will issue a Broadcast Notice to Mariners notifying the public if enforcement of the affected area in this section is cancelled prematurely.

No comments were received in response to and there are no changes to the rule as proposed by the NPRM published June 5, 2012.

We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on these statutes and executive orders.

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS). We conclude that this rule is not a significant regulatory action because we anticipate that it will have minimal impact on the economy, will not interfere with other agencies, will not adversely alter the budget of any grant or loan recipients, and will not raise any novel legal or policy issues. The regulated area established by this rule will be relatively small and enforced for relatively short time. Also, the regulated area is designed to minimize its impact on navigable waters. Furthermore, this regulated area has been designed to allow vessels to transit the area affected by this regulation, provided vessel operators meet the requirements set forth by this rule. Thus, restrictions on vessel movements within any particular area are expected to be minimal. On the whole, the Coast Guard expects insignificant adverse impact to mariners from the activation of this regulated area.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

This rule will affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit or anchor in the above portion of Lake Erie, Lakeside, OH between 7:00 a.m. and 11:00 a.m. on the dates of the event, which will be determined annually. The special local regulation will not have a significant economic impact on a substantial number of small entities for the following reasons: This rule will be in effect for 4 hours on the day of the event, and vessels wishing to transit through the affected area may do so with caution. The Coast Guard will give notice to the public via a local Notice to Mariners that the regulation is in effect. Additionally, the COTP will suspend enforcement of the special local regulation if the event for which the special local regulation is established ends earlier than the time expected.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If this rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT , above.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between Federal Government and Indian tribes.

This action is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.

This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have have made a preliminary determination that this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2-1, paragraph (34)(h) of the Instruction and during the annual permitting process for this dragon boat racing event an environmental analysis will be conducted to include the effects of this Special Local Regulation.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 100 as follows:

This supplementary information section is arranged as follows:

Michigan submitted a plan to address regional haze on November 5, 2010. This plan was intended to address the requirements in Clean Air Act section 169A, as interpreted in EPA's Regional Haze Rule as codified in Title 40 Code of Federal Regulations (CFR) 51.308. The Regional Haze Rule was promulgated on July 1, 1999 (64 FR 35713), with further significant provisions promulgated on July 6, 2005 (70 FR 39104), that provided guidance related to BART.

On August 6, 2012 (77 FR 46912), EPA proposed action on Michigan's submittal addressing the Regional Haze Rule for the first implementation period, ending in 2018. That action described the nature of the regional haze problem and the statutory and regulatory background for EPA's review of Michigan's regional haze plan. The action also described at length the regional haze requirements, including requirements for mandating BART, consultation with other states in establishing goals representing reasonable further progress in mitigating anthropogenic visibility impairment, and adoption of limitations as necessary to implement a long-term strategy for reducing visibility impairment.

EPA proposed to approve Michigan's identification of five non-electric generating unit (non-EGU) sources as having sufficient impact to warrant being subject to emission limits representing BART. The five non-EGU BART-eligible sources included Lafarge Midwest, Inc.; SMC; Escanaba Paper (referenced in the proposed rulemaking as NewPage Paper Company); Smurfit Stone Container Corp.; and Tilden Mining Company.

Michigan made source-specific determinations of BART for these non-EGU sources. In the August 6, 2012 proposed rulemaking, EPA proposed to approve Michigan's BART requirements for some of the non-EGUs, based on a Federal consent decree requiring new controls for SO 2 and NO X emissions for the Lafarge Midwest plant and based on existing limits at Smurfit Stone. EPA proposed to disapprove Michigan's plan for BART at SMC's facility in Charlevoix (SMC-Charlevoix) and at Escanaba Paper's facility in Escanaba. Specifically, EPA proposed to disapprove the NO X and SO 2 BART determination for the cement kiln and associated equipment at SMC-Charlevoix and the NO X BART determination for Boiler 8 and 9 at Escanaba Paper. Further, EPA proposed a FIP to impose BART NO X and SO 2 limits for the cement kiln and associated equipment for SMC-Charlevoix, and BART NO X limits for Boilers 8 and 9 at Escanaba Paper. EPA proposed no action regarding Tilden Mining, since that facility is a taconite plant that is being addressed in a separate action that also addresses taconite plants in Minnesota.

The publication of EPA's proposed rule initiated a 30-day public comment period that ended on September 5, 2012. During this public comment period, EPA received comments from the United States National Park Service (National Park Service), the State of Michigan Department of Environmental Quality (MDEQ), Lafarge Midwest Inc., Escanaba Paper, SMC, and Cliffs Natural Resources Inc. (Cliffs).

EPA also offered to hold a public hearing, upon request, to provide interested parties the opportunity to provide oral comments on the FIP proposal. As discussed below, one commenter requested a hearing in order to make comments not relevant to the FIP proposal for SMC-Charlevoix or Escanaba Paper. EPA denied this request. As no commenter requested to make oral comments on the proposed FIP, EPA did not hold a public hearing. Following is a summary of the comments submitted and EPA's responses.

Comment: National Park Service commented on EPA's proposed actions regarding BART for electric utilities. National Park Service noted that on June 7, 2012, EPA disapproved Michigan's regional haze plan (and several other states' plans) that relied on the Clean Air Interstate Rule (CAIR) to meet BART for electric utilities, and promulgated FIPs that relied on the Cross State Air Pollution Rule (CSAPR) to meet BART. National Park Service also noted the August 21, 2012, decision by the U.S. Court of Appeals for the District of Columbia to vacate CSAPR and to leave CAIR temporarily in place. “Because EPA previously disapproved the state plans that relied on CAIR to meet BART, it appears that EPA cannot finalize the proposed approval of BART for electric utilities in Michigan.” National Park Service recommended instead that Michigan evaluate BART for those electric utilities.

Response: The rulemaking EPA is finalizing today does not address BART for EGUs in Michigan. As noted in our proposed rulemaking, published on August 6, 2012, EPA had already taken action on BART for EGUs in Michigan and a number of other states in a separate rulemaking, published on June 7, 2012 (77 FR 33642). Thus, the comment is not pertinent to this action.

Comment: National Park Service commented that Michigan's reasonable progress goals based on the air quality modeling for Seney Wilderness Area appear to project that visibility on the 20 percent best days will be poorer in 2018 (7.7 deciviews (dv)) than in the 2000 to 2004 baseline period (7.14 dv).

Response: As discussed in section 5.2 of Michigan's submittal, best-days visibility in 2018 is projected to be modestly worse than visibility in 2000 to 2004. Notwithstanding this modeling result, EPA has several reasons to anticipate that visibility on the best days in 2018 may in fact be better and not worse than baseline best-days visibility. First, as seen in the most recent air quality data, best-days visibility in these areas has been improving, for example improving at Seney from a 2000 to 2004 average of 7.1 deciviews to a 2005 to 2009 average of 6.4 deciviews. (See http://vista.cira.colostate.edu/improve/Publications/Reports/2011/PDF/Appendix_G.pdf , page G-109.) Second, as Michigan noted in its submittal, the projection that visibility on the best days will worsen reflects an uncertain estimate of increasing ammonia emissions. Emissions of the other emitted pollutants important to visibility, especially SO 2 and NO X , have decreased significantly, and are expected to continue to decline. As Michigan noted, an alternate plausible assumption that ammonia emissions are not increasing would be expected to support a finding that visibility on best-visibility days will improve. Third, recent modeling that EPA has done in support of CSAPR showed that visibility on best visibility days at Seney is expected to improve by 2014 even without CAIR or CSAPR. Fourth, oftentimes the air mass on best visibility days in Northern Michigan originates in Canada, for which the emission inventories used in the air quality modeling for the SIP are less reliable. Finally, Michigan noted some unmodeled emission reductions, such as those from BART for non-EGUs, that would be expected to lead to better visibility in 2018 than that shown in its SIP. For these reasons, EPA expects that Michigan's plan will yield visibility on the best 20 percent of days at its Class I areas in 2018 that will be either the same as or better than during the baseline period.

Comment: MDEQ objected to EPA's action proposing a FIP to mandate BART for SMC in Charlevoix and Escanaba Paper in Escanaba to meet regional haze visibility goals and simultaneously proposing disapproval of Michigan's plan for these sources. By doing so, Michigan commented, EPA is circumventing the process laid out in the Clean Air Act by not giving the State the opportunity to correct deficiencies in Michigan's BART SIP revision. Michigan references the August 12, 2012, opinion of the U.S. Court of Appeals for the D.C. Circuit in EME Homer City Generation, L.P. v. EPA (addressing CSAPR), an opinion that, in Michigan's view, concluded that a FIP-first process is not in accordance with the Clean Air Act.

Response: EPA disagrees with this comment. Rather than circumventing the Clean Air Act, EPA is in fact complying with the Clean Air Act's requirements. Under section 110(c)(1) of the Clean Air Act, EPA must promulgate a FIP within 2 years of a finding of failure to submit a required SIP submittal. This requirement for FIP promulgation was triggered by a finding published on January 15, 2009 (74 FR 2392), that Michigan and other states had failed to submit the required regional haze SIP. Michigan submitted its regional haze plan on November 5, 2010. EPA informed Michigan on multiple occasions that it did not expect to be able to approve the State's BART determinations for at least SMC and Escanaba Paper. Since Michigan did not submit a SIP with BART limits that EPA could approve as consistent with the Clean Air Act, EPA is obligated to promulgate FIP limits meeting BART requirements.

This situation is different from the situation addressed by the court in the EME Homer City Generation opinion. In the EME Homer City Generation litigation, a key concern raised by the court was whether EPA had provided states suitable guidance on the pertinent requirement and thus whether the states had a meaningful opportunity to meet the requirement. In this case, EPA promulgated regulations defining the criteria for meeting the BART requirement in 2005, and so there can be no question that Michigan had adequate opportunity to meet the BART requirements, both in its initial submittal and after EPA expressed concern that Michigan's submittal appeared inadequate. Today's action is more than two years later than the State's submittal, so EPA did not apply a “FIP-first process.” The circumstances are very different and therefore EPA does not agree that the EME Homer City Generation opinion is relevant to EPA's proposed rule on August 6, 2012. However, EPA would welcome Michigan's submittal of a SIP to replace the FIP and will work with the State to approve expeditiously a SIP that suitably replaces the requirements EPA is promulgating today.

Comment: Steve Kohl (Partner Warner Norcross & Judd LLP, Bodman Attorney & Associates) commented on behalf of his client, Lafarge Midwest Inc., that there was a typographic error in EPA's proposed approval of MDEQ's BART determination that compliance with the currently applicable Portland Cement—Maximum Achievable Control Technology (MACT) emission standard satisfies BART requirements for particulate matter (PM). EPA's proposal, as published, erroneously cites an emission standard of 0.030 pounds (lb) per ton of dry feed. The correct Portland Cement MACT emission standard is 0.30 lb per ton of dry feed.

Response: EPA acknowledges the typographic error and agrees that the Portland Cement MACT PM emission standard is 0.30 lb per ton of dry feed.

EPA received a set of comments from Escanaba Paper addressing features of the proposed FIP for the Number 8 and Number 9 Boilers at the company's Escanaba facility.

Comment: Escanaba Paper commented that on page 46922 of the preamble and all instances thereafter, all references to NewPage Paper should be corrected and revised to reflect the correct legal entity—Escanaba Paper Company (EPC). The Escanaba Paper Company is the correct legal entity and is consistent with how the mill is identified in various business and Michigan regulatory programs (e.g., the Title V permit is issued to the Escanaba Paper Company).

Response: Per the company's request, EPA has revised all references to identify the company that owns the pertinent facility as Escanaba Paper Company (or, as shorthand in this preamble, Escanaba Paper).

Comment: Page 46922 of the preamble makes mention of the costs associated with controlling emissions on the Number 8 and Number 9 Boilers at Escanaba Paper. Escanaba Paper noted that supplemental and updated information concerning control equipment costs were submitted to both MDEQ and EPA Region 5. Escanaba Paper believes that the supplemental and updated information confirm the conclusion that the addition of control equipment is unwarranted.

Response: EPA notes the supplemental information, which supports EPA's proposed action, which proposed limits that EPA believes can be met without additional control beyond control Escanaba Paper has already installed.

Comment: On page 46924 of the preamble, EPA stated that low NO X burners would achieve 40 percent reduction of emissions on the Number 8 Boiler and then uses this control efficiency to calculate cost effectiveness. Escanaba Paper noted that conversations with low NO X burner vendors did not confirm that an annual 40 percent control efficiency is achievable, thus the cost effectiveness referenced by EPA could be higher.

Response: EPA used estimates of costs and benefits of control to conclude that emission control relative to baseline emissions would be cost effective. Escanaba Paper has implemented controls similar to those that EPA judged to be cost effective, which, in absence of a limit requiring these controls, suggests that Escanaba Paper also finds these controls to be cost effective. Escanaba Paper does not suggest specific alternate cost effectiveness assumptions. EPA believes that low NO X burners can achieve 40 percent control, supporting EPA's cost effectiveness evaluation, but EPA could assume lesser control efficiency and higher costs per ton for a low NO X burner and would still find the limits it proposed to be cost effective.

Comment: On pages 46924 and 46925 of the preamble, EPA Region 5 stated that Escanaba Paper installed a flue gas recirculation system on the Number 8 Boiler to meet MDEQ ozone season NO X limits. Escanaba Paper noted that it can currently meet the ozone season NO X emission limits with or without operation of the flue gas recirculation system on the Number 8 Boiler.

Response: EPA noted that Escanaba Paper had installed a flue gas recirculation system to point out that it gives the company an additional option for meeting the limit that EPA is promulgating for this boiler.

Comment: Escanaba Paper noted that EPA references a “worst-case” annual NO X emission rate of 1,300 tons per year for the Number 8 Boiler. This annualized rate appears to be extrapolated by EPA and is unrepresentative of annual actual emissions. Escanaba Paper cannot verify the basis for this annualized NO X emission rate but notes that current 2011 NO X emissions of 33 tons are more than 1,200 tons less than those referenced by EPA.

EPA guidance for conducting the BART visibility modeling is to use a worst-case, short-term emission rate (i.e., a 24-hour emission rate) for BART applicability determinations but to use annual actual emissions for assessing cost effectiveness. It is inappropriate to interchange these emission rates in these analyses. Further, Escanaba Paper believes that if current, worst-case short-term visibility impairing pollutant emission rates for all of the BART emission units at the mill were evaluated in a visibility modeling analysis, there would be no days that exceed a 0.5 dv level.

Response: EPA agrees that the annualizing of a short-term worst case emission rate does not necessarily yield a realistic estimate of emissions for the facility being addressed here. While EPA is not speculating on the number of days that would exceed 0.5 dv impact at current worst case emission rates, EPA believes that the uncontrolled emissions are sufficiently high and the cost of controls sufficiently reasonable to warrant a determination that controls such as those that Escanaba Paper has added represent BART.

Comment: EPA proposed to limit emissions from the Number 8 Boiler according to a weighted average of fuel specific emission limits, as discussed on page 46925 of the preamble. In lieu of these limits, Escanaba Paper believes that a single emission limit is preferable. Escanaba Paper proposed a NO X emission limit of 0.35 lb of NO X per million British Thermal Units (MMBtu). To support this NO X emission limit for the Number 8 Boiler, Escanaba Paper noted the following:

Response: As recommended by Escanaba Paper, EPA is promulgating a fixed limit of 0.35 lb of NO X per MMBTU, in lieu of the proposed limit based on separate values for oil firing and gas firing (0.26 lb/MMBTU for gas firing and 0.50 lb/MMBTU for oil firing) and calculated as an average weighted according to the heat input for each fuel. While this limit is less restrictive when the company is firing only gas, the limit is more restrictive when the company is firing substantial quantities of oil. Since oil firing tends to result in higher emissions, a fixed limit will provide incentive for the company to fire more natural gas and less oil. Finally, since this limit simply mandates control that is already being implemented, and there is no indication in the record that Escanaba Paper has any incentive to reduce the effectiveness of the existing controls system, EPA believes that the nature of the limit and its precise level in practice will not have a significant effect on actual emissions.

Comment: On page 46925 of the preamble at footnote 2, EPA provided an assessment of NO X emission factors for the Number 8 Boiler for the 2008/2009 and 2010/2011 periods. Escanaba Paper was unable to reproduce the 2008/2009 value cited by EPA.

Response: In this footnote, EPA first cited 30-day average emission factors for 2010 and 2011, and then comments that “Operation in 2008 and 2009, during which the boiler was often oil-fired, yielded emission factors up to about 0.45 [lb]/MMBTU.” As implied, this comment speaks to 30-day average emissions, and indeed the five highest average emission rates during 2008 and 2009 over 30 consecutive calendar days ranged from 0.44 to 0.48 lb/MMBTU. However, since Boiler Number 8 is operated to some degree as a backup to a larger (non-BART) boiler at the facility, it operates somewhat sporadically, so that 30 consecutive calendar days can include a substantial number of non-operating days. Therefore, EPA is expressing the limit in terms of 30 consecutive operating days. Using this method of calculating 30-day averages, the highest value in 2008 to 2009 was 0.36 lb/MMBTU.

Comment: Escanaba Paper commented, “The extrapolation of visibility impacts is not linear. It is not possible to determine what visibility impacts associated with the NO X emissions from the Number 9 Boiler would have occurred from improved combustion monitoring. Escanaba Paper also noted that emissions reported in 2002 and 2004 were likely overstated. Escanaba Paper updated the NO X emission factor for the Number 9 Boiler in 2005 from the previous factors developed in 1992 and 1995.”

Response: While deciviews are a logarithmic scale, a linear approximation is an appropriate means of estimating the impact of modest emission changes. In the analysis for this final rule, EPA has used the updated emissions information for the Number 9 Boiler.

Comment: Contrary to the language in the preamble, Escanaba Paper does not believe that the NO X limits proposed at 40 CFR 52.1183(i)(4) “mandate the continued operation of the overfire air system that the company has installed on Boiler 9.” Escanaba Paper wanted to confirm that there is no applicable requirement being imposed that tracks the operational status of the overfire air system on the Number 9 Boiler.

Response: EPA confirms that no requirement is being imposed that directly mandates or tracks operation of the overfire air system on the Number 9 Boiler. Consistent with EPA's BART guidelines, EPA is setting an emission limit which requires emission control but is not mandating any particular means of meeting this limit. The statement in the preamble merely reflected EPA's expectation that the practical effect of setting the emission limit would be that Escanaba Paper would have to continue operating its overfire air system.

Comment: Escanaba Paper requested clarification as to whether the requirements of 40 CFR 52.1183(i) should apply no later than five years after EPA approves the FIP per the compliance schedule contained in of 40 CFR part 51 Appendix Y or “upon the effective date of the rulemaking promulgating these limits.” (See page 46925 of the preamble of the proposed rule.)

Response: The Clean Air Act requires sources to meet BART limits as expeditiously as practicable. Escanaba Paper does not need to install any control devices to achieve the BART limit established in our FIP, and so EPA believes Escanaba Paper can meet the BART limits immediately. Therefore, “expeditiously as practicable” means immediate compliance for Escanaba Paper. Thus, the codification of these limits provides no delayed compliance date, and therefore the limits apply as soon as this final rule becomes effective.

Comment: The reference to 40 CFR part 60 appendix B, performance specification 2, at 40 CFR 52.1183(i)(2) is not necessary. Escanaba Paper has already conducted the initial start-up of the NO X CEMS on the Number 8 Boiler and thus the reference to performance specification 2 is not appropriate. In fact, performance specification 2 states that it is not for evaluating CEMS performance over a long period as seems to be the intention of this requirement. Escanaba Paper requests clarification or elimination of this specific requirement.

Response: EPA agrees with Escanaba Paper's comment and in the final FIP is not requiring compliance with performance specification 2.

Comment: The reference to 40 CFR part 60 appendix B performance specification 2 at 40 CFR 52.1183(i)(3) should be replaced with a reference to 40 CFR part 60 appendix F. Escanaba Paper requests clarification or modification of this specific requirement.

Response: EPA agrees with Escanaba Paper's comment. Requirements for ongoing quality assurance of continuous emission monitors are specified in 40 CFR part 60 appendix F, not in 40 CFR part 60 appendix B performance specification 2. EPA is promulgating 40 CFR 52.1183(i)(3) with the recommended modification.

Comment: Escanaba Paper requests that the procedures outlined in 40 CFR part 60 appendix F be used to determine the 30-day rolling average. The use of appendix F would also be consistent with the guidance contained in 40 CFR part 51 appendix Y.

Response: 40 CFR part 60 appendix F addresses quality assurance procedures, not procedures for 30-day averaging. Nevertheless, consistent with the apparent intent of this comment, and consistent with the guidance in 40 CFR part 51 appendix Y, EPA is setting the limit for the Number 8 Boiler based on the average of emissions for 30 consecutive boiler operating days, where a day is defined as a boiler operating day if fuel is combusted at any time during the 24-hour period.

Comment: Escanaba Paper requested that the phrasing “Compliance stack test results” be used to replace 40 CFR 52.1183(i)(6)(ii), which as proposed read “All stack test results.” In a separate comment, Escanaba Paper requested that the word “compliance” be inserted after “shall submit reports of any” at 40 CFR 52.1183(i)(6)(v).

Response: The first of these comments requests that Escanaba Paper only be required to keep records of emission tests mandated by EPA or the State for purposes of compliance assessment, and that Escanaba Paper not be required to keep records of tests conducted for the company's own purposes. The second of these comments requests that the company not be required to report the results of such tests to EPA. Consistent with its general practice, EPA in this final rule is requiring the company to keep records of such tests but is not requiring the company to report the results of such tests. If a subsequent compliance test, requested by the State or EPA, shows noncompliance, the retained record of the nonmandated test would provide useful information, for example regarding the duration of noncompliance. (If a subsequent test shows compliance, the State and EPA would have little reason to inquire about nonmandated stack tests.) On the other hand, in the interests of encouraging Escanaba Paper to assess its compliance status whenever it has concerns about its emission rate, the final FIP does not require the company routinely to report results of emission tests that neither the State nor EPA requested, again consistent with its general practice. Thus, EPA has made the requested modification to 40 CFR 52.1183(i)(7)(v), but has not modified 40 CFR 52.1183(i)(6)(ii).

Comment: Escanaba Paper requested that the phrase “or when Boiler 8 is not operating” be inserted after “except for zero and span adjustments and calibration check”. As the applicable requirement is currently written, if the CEMS is not operated because the Boiler Number 8 is not operating, a quarterly report must document this situation.

Response: This final rule reflects the requested modification. EPA does not intend to require Escanaba Paper to document non-operation of its CEMS for times when its boiler is not operating.

Cortney Schmidt, environmental manager at SMC-Charlevoix, submitted comments on the proposed rulemaking on September 4, 2012. These comments elaborated on comments in a separate letter that Mr. Schmidt sent on August 2, 2012. Mr. Schmidt further sent a letter on August 8, 2012, responding to questions from EPA. 1

Comment: SMC found it unfortunate that EPA did not communicate directly with SMC much earlier in the process, because “surprising SMC at the last minute” foreclosed opportunities for “more deliberate, collaborative action.”

Response: EPA submitted comments to Michigan on June 23, 2010, stating, “We disagree with MDEQ's assessment that a selective non-catalytic reduction system is technically infeasible and not cost-effective.” EPA provided more detailed comments, including an assessment of the cost-effectiveness of a selective noncatalytic reduction system (SNCR), to Michigan by email on December 8, 2011. At EPA's request, Michigan forwarded these emailed comments to SMC. Finally, EPA sent comments to Michigan on May 24, 2012, and emailed a copy of the comment letter directly to SMC. Thus, EPA has ensured that SMC was aware of EPA's position and had opportunities to engage in discussions regarding the proposed BART determination for SMC-Charlevoix.

Comment: SMC quoted from three Federal circuit court opinions that, in SMC's view, demonstrate that EPA's proposal to disapprove “the portion of Michigan's SIP related to BART requirements for [SMC-Charlevoix],” and “to substitute EPA's own limits in their place, is impermissible under the Clean Air Act.” Specifically, SMC asserted that the U.S. Court of Appeals for the D.C. Circuit in EME Homer City Generation, LP v. EPA, No. 11-1302 (D.C. Cir. August 21, 2012) and the U.S. Court of Appeals for the Fifth Circuit in Luminant Generation Co. v. EPA, 675 F.3d 917 (5th Cir. 2012) and Texas v. EPA, No. 10-60614 (5th Cir. August 13, 2012) held that if a state plan meets the standards required by the Clean Air Act, EPA cannot force the states to adopt specific control measures.

Response: These decisions address rulemakings that are unrelated to regional haze and circumstances that do not invoke the same relationship between state and federal action. Moreover, these courts acknowledge that EPA has a valid role in assessing whether a state submittal is compliant with the Clean Air Act. EPA proposed to find that Michigan's submittal was not compliant with the Clean Air Act, insofar (in part) as Michigan failed to require BART for SMC-Charlevoix. SMC appears to be arguing that EPA may not disapprove a submittal that meets Clean Air Act requirements to force the State to adopt an alternative measure that EPA prefers, but EPA is not taking such an action here. Nor is EPA using the SIP process to force Michigan to adopt any particular control measure. Instead, EPA is simply fulfilling its responsibility to evaluate the State's submittal and, in the absence of a state submittal meeting applicable requirements, promulgating federal limits to meet these requirements.

Comment: SMC noted EPA's finding that Michigan's SIP “includes a reasonable set of measures that provide its appropriate share of reductions toward achieving reasonable progress goals.” (See 77 FR 46919.) SMC concluded that, because the emissions limits proposed by Michigan allow the State to meet the reasonable progress goals for improving visibility, “EPA cannot * * * require emissions limits for SMC which would go beyond allowing the State to meet those progress goals.” SMC stated that the BART requirements are included within the set of emission limits that EPA may require only as “necessary to make reasonable progress.”

Response: Clean Air Act section 169A(b)(2) provides that the measures that are necessary to provide for reasonable progress necessarily include measures representing BART. The fact that EPA codified BART requirements separately from the requirements for reasonable progress (in 40 CFR 51.308(e) versus 40 CFR 51.308(d)) supports an interpretation that BART requirements must be satisfied irrespective of whether reasonable progress goals are being met.

Another possible reading of section 169A(b)(2) is that a plan that lacks BART measures by definition fails to include all the measures that this section mandates be part of the plan for achieving reasonable progress. That is, under this interpretation, BART is necessarily a reasonable measure, and a plan, such as Michigan's, that fails to require BART cannot be considered to provide for reasonable progress.

In response to this comment, EPA is clarifying that, insofar as Michigan's plan fails to require BART on at least two facilities, Michigan's plan fails to include all reasonable measures. To that extent, Michigan's plan may be considered to fail to provide for reasonable progress, but EPA believes that the plan, in combination with the FIP (in conjunction with BART limits for Tilden Mining, being addressed separately), meets reasonable progress requirements.

Comment: SMC cited six factors listed in the definition of BART at 40 CFR 51.301 that are to be taken into consideration in determining BART. With respect to the first factor, the technology available, SMC believes that “EPA did not properly evaluate the capabilities of technology available for NO X control at Charlevoix.” SMC provided a review of the history of the SMC-Charlevoix kiln system design, including conversion in the late 1970s to a preheater/precalciner design and installation of an indirect firing system.

Response: EPA has considered the design of the SMC-Charlevoix kiln system in evaluating BART for this facility, as discussed more fully below.

Comment: SMC maintained that “the normal variability of NO X formation in cement kilns justifies the 6.5 pounds per ton NO X emission limit contained in Michigan's SIP.” SMC provided a graph of emissions data for 2006 to 2008, and states that the “average of [these] data is 4.56 pounds per ton, but there is a significant standard deviation of 0.64 pounds per ton, leading to a 99.7 [percent] confidence number of 6.47 pounds per ton.”

Response: EPA recognizes the variability in NO X formation at SMC-Charlevoix. EPA addressed this variability in its proposal in part by proposing a limit in the form of a 30-day average. Further discussion of the appropriate limit in the context of this variability is provided below.

The statistic SMC cites as being the 99.7th percentile (the value three standard deviations above the mean) is in fact an even higher percentile, specifically the 99.87th percentile. Although EPA is basing its limits on the 95th percentile baseline emissions, this error is worth noting because EPA is avoiding the same error in estimating the 95th percentile baseline emissions. This error presumably reflects confusion between two statistical values, one being the percent of values within three standard deviations both above and below the mean, and the other being the percent of values between zero and a value that is three standard deviations above the mean. The latter statistic is the appropriate statistic in finding percentiles, since a given percentile is the value that exceeds that percentage of the entire distribution, including values down to zero, not just the portion of the distribution down to another value for example three standard deviations below the mean. In a normal distribution, 49.87 percent of values are between the mean and three standard deviations above the mean, and the same 49.87 percent of values are between three standard deviations below the mean and the mean, for a total of 99.74 percent of values within three standard deviations of the mean. In contrast, in determining percentile values, one must sum the 49.87 percent of values that are below three standard deviations above the mean but above the mean together with the full 50 percent of values that are below the mean. Thus, the value three standard deviations above the mean in a normal distribution is the 99.87th percentile value, not the 99.74th percentile value. For similar reasons, EPA is estimating 95th percentile baseline emissions as the value 1.645 standard deviations above the mean, rather than the value 1.96 standard deviations above the mean that SMC's approach would suggest.

Comment: SMC commented that it “has put in place more modern technology than its competitors, such as Lafarge's Alpena plant.” Elsewhere, SMC cited other plants with higher emission limits which, it claims have “not been upgraded to the same degree as the Charlevoix plant,” and noted that “SMC already outperforms those [limits] with the improvements it already has put in place.”

Response: With the consideration of source-specific factors, as required in determining BART at each facility, dissimilarities among facilities can yield dissimilarities in control requirements. Lafarge's Alpena facility has long wet kilns, a different design with inherently more NO X emissions than SMC-Charlevoix's preheater/pre-calciner kiln. In fact, BART at Lafarge requires similarly effective SNCR there as at SMC-Charlevoix, and BART at Lafarge requires sulfur emission control that is not required at SMC-Charlevoix.

Comment: SMC asserted that “EPA will expect compliance with its emission limit every day, not just `on average' over several years. Therefore, EPA also was incorrect when it derived its proposed NO X emission limit of 2.3 [lb per ton] for the Charlevoix plant by applying a presumed 50 percent reduction against the plant's 4.56 [lb per ton] average, which was achieved over several years. * * * An `average' value means that half of the actual performance is greater than that average. Therefore, any proposed reduction should not be applied to an average performance over several years, but instead must take into consideration the normal standard deviation from that average. This is the same rationale that was recently used by EPA in its agreement with Holcim's Montana Plant. Consequently, in this instance, if there was to be any reduction, it must be applied against the 6.5 [lb per ton] value which represents the 99.7 percent confidence value of SMC's actual performance.”

Response: SMC is noting the variability in emissions at SMC-Charlevoix, observing that a several year period will include many occasions with baseline emissions that are above average, and commenting that any emission limit should be based on those elevated baseline emission conditions. EPA addressed this concern in its proposed rulemaking. EPA proposed a limit that would require an average control of approximately 50 percent. In addition to defining the limit as a 30-day rolling average, EPA's notice of proposed rulemaking describes an examination of the variability of emissions at SMC-Charlevoix and the feasibility of achieving the proposed limit even during periods with greater emissions formation. The proposed rulemaking states, “According to 2006 to 2008 data from the facility, [the proposed limit] would require slightly under 60 percent control from St. Marys Cement's 95th percentile 30-day average emission rate, which the evidence from tests at St. Marys Cement's facility in Dixon, Illinois (SMC-Dixon) indicates is readily achievable, particularly since a limit of 2.30 lb per ton of clinker would only occasionally require this level of control.” 77 FR 46924. Conversely, at the 5th percentile of the 30-day average emission rates, or 3.5 lb per ton, the proposed limit would require only about 35 percent control. In this sense, EPA proposed a limit that would sometimes require about 60 percent control, sometimes require only about 35 percent control, and on average require slightly less than 50 percent control.

Thus, EPA considered the variability of baseline emissions but also considered the variability of control effectiveness in determining its proposed emission limit. Nevertheless, as discussed below, EPA is modifying its view of achievable control efficiencies and is modifying its approach for determining appropriate limits accordingly.

Comment: “Although better performing than other old plants, unique Charlevoix design features increase NO X formation compared to the most modern kiln designs.” SMC discussed the ratio of the kiln length to kiln diameter at SMC-Charlevoix, as well as the need to operate the kiln in an oxidizing atmosphere to minimize the likelihood of formation and buildup of calcium sulfate. SMC concluded that these factors raise the amount of energy needed to produce a kilogram of clinker from about 800 kilocalories to about 930 kilocalories, which raises expected NO X emissions per ton of clinker.

Response: Average NO X emissions at SMC-Charlevoix are about 4.5 lb per ton of clinker. According to the Compilation of Air Pollution Emission Factors (AP-42), average emissions for a representative cement plant of the design of SMC-Charlevoix, i.e., a preheater/precalciner kiln, is 4.2 lb per ton of clinker. Thus, SMC-Charlevoix has very typical NO X emissions for a facility of its type.

While it may be true that NO X emissions at SMC-Charlevoix are slightly higher than those at newer plants, EPA is also setting a higher limit for SMC-Charlevoix than we have set for new cement plants. The new source performance standards for cement plants require NO X emission rates not to exceed 1.5 lb per ton of clinker. Were EPA to require similar rates for SMC-Charlevoix, but allow for the 16 percent increase in heat input noted in the comment, EPA would be imposing an emission limit of 1.74 lb per ton of clinker, rather than the 30-day average limit of 2.8 lb per ton of clinker finalized in this rule.

Comment: “EPA's conclusion that SNCR will allow a 50 percent reduction in NO X emissions from the Charlevoix plant is incorrect because the plant's design is incompatible with effective SNCR use.” SMC argued that the achievement of emission rates as low as 2.3 lb per ton requires kiln design features “(e.g., proper kiln length to diameter dimensions and increased calciner retention time)” that are not present at SMC-Charlevoix. SMC provided a figure identifying temperatures and residence times at various locations within the kiln system, and concludes that “nowhere in the kiln riser or flash calciner regions of the system does the plant reach the optimum temperature profile to support an effective SNCR reaction.” SMC also found that the “residence time at Charlevoix is not adequate for use of SNCR.” SMC provided a graph entitled “SNCR Efficiency based on Residence Time (Lab Trial).” SMC stated that at SMC-Charlevoix, “there is only a 0.11 second retention time between the reagent injection point and the time the system reaches the low end of efficiency point for the SNCR reaction.” SMC further quotes EPA and other work suggesting that “larger plants had lower efficiencies than smaller sized plants.”

SMC stated, “Actual test results demonstrate that SNCR will have only limited success in NO X control at Charlevoix.” SMC presented results of trial urea injections conducted in 2005 to test the NO X reductions that an SNCR system might be expected to achieve. SMC described these tests as demonstrating that urea injection achieved less NO X reduction than expected. SMC provided results in a table that gives average NO X reduction percentages for four sets of tests, each conducted with urea injection at a different location in the kiln system and with a different urea injection rate. The table also gives urea injection rate in terms of the normalized stoichiometric ratio (NSR). 2 “In one test run, [with an NSR equal to 1.07], the reduction was 36.8 percent. * * * However, that was coupled with a significant amount of ammonia slip, based on the theoretical calculations from the NO X present. The time frames for this trial were short, roughly several 10 minute runs to consolidate the average, and thus SMC is not confident that these reductions are sustainable.” SMC provided a photograph that it considers to document excess ammonia (ammonia slip) appearing as a visible detached plume occurring at SMC-Charlevoix.

SMC provided a report from DeNO X Technologies describing the urea trials. SMC quoted from this report: “Typically, NO X reduction at a NSR of 1.0 is 40-60 percent; Charlevoix demonstrated 25-30 percent.” In addition, SMC stated, “DeNO X 's owner noted * * * that he had seen SNCR effectively solve NO X issues in multiple cement plants. However, he commented to SMC that he was amazed that SNCR is not as efficient in SMC's system, and he believed it must be because of Charlevoix's calciner design.”

Response: EPA believes that the tests of SNCR at SMC-Charlevoix do not demonstrate that SNCR would be ineffective in reducing emissions, and in particular do not demonstrate that SMC could not meet the emission limits established in this final action. EPA notes that the tests SMC described were performed with urea rather than with ammonia, which is both more commonly used for this application and significantly more effective.

SMC-Charlevoix's test results were the subject of “SNCR emission control,” published in the August 2006 edition of the journal International Cement Review (the Horton article). 3 The article presents NO X reductions resulting from urea injection at “Plant B,” which are the results found at SMC-Charlevoix. The article also includes contrasting results from testing at “Plant A,” a plant with the same type of design as SMC-Charlevoix, demonstrating that NO X reductions of more than 50 percent could be achieved with ammonia injection at an NSR as low as 0.56 (i.e., the injection of only 0.56 moles of ammonia per mole of NO X ). The article includes a graph showing that use of ammonia achieves higher NO X reductions than urea and has maximum efficiency at lower temperatures than urea. EPA views the 50 percent reduction at Plant A as more representative of the level of emission reduction that a properly designed and operated SNCR at SMC-Charlevoix could achieve. In fact, at the temperatures at SMC-Charlevoix cited by SMC, use of ammonia is expected to provide at least 40 percent more, and possibly greater than twice as much, NO X reduction as is expected from use of urea. Thus, while SMC's concerns may apply to SNCR using urea, EPA believes that SMC can address these concerns by using ammonia.

EPA also believes that the DeNO X Technologies report cited by SMC demonstrates that SMC-Charlevoix can achieve significant NO X emission reductions even using urea. Table 1 presents relevant information derived from the DeNO X Technologies report. During these trials, urea was injected at three locations: (1) After the kiln but before the tertiary air inlet, (2) in a duct after the tertiary air but before the precalciner, and (3) after the first stage of the preheater that is after the precalciner. In Table 1, the reduction per mole of reagent (ammonia equivalent) is computed by dividing the NO X reduction percentage by the NSR.

Throughout this document, wherever “we”, “us” or “our” are used, we mean EPA. We are providing the following outline to aid in locating information in this final rule.

EPA is making a number of determinations with respect to 1997 8-hour ozone nonattainment areas in California. First, pursuant to section 181(b)(2) of the Clean Air Act (CAA), EPA is determining that the Amador and Calaveras Counties (Central Mountain Counties), Chico (Butte County), Kern County (Eastern Kern), Mariposa and Tuolumne Counties (Southern Mountain Counties), Nevada County (Western Nevada County), and Sutter County (Sutter Buttes) 8-hour ozone nonattainment areas in California (herein referred to as the “six CA areas”) attained the 1997 8-hour ozone NAAQS by their respective applicable attainment dates. Second, in connection with these determinations, EPA is also granting, pursuant to section 181(a)(5) and 40 CFR 51.907, applications submitted by the California Air Resources Board (CARB) for extensions to the applicable attainment dates for the Southern Mountain Counties and Western Nevada County nonattainment areas.

The six CA areas have differing applicable attainment dates. For Butte County and Sutter Buttes, EPA is determining that these areas attained the 1997 8-hour ozone standard by their applicable attainment deadline of June 15, 2007, based on complete, quality-assured, and certified ambient air quality monitoring data for 2004-2006. For the Central Mountain Counties and Eastern Kern ozone nonattainment areas, EPA is determining that they attained the 1997 8-hour ozone standard by their applicable attainment deadline of June 15, 2010, based on complete, quality-assured and certified air quality data for 2007-2009. For the Southern Mountain Counties and Western Nevada County, whose original attainment date was June 15, 2010, EPA is granting a one-year attainment date extension until June 15, 2011 and determining that these areas attained the 1997 8-hour ozone NAAQS by that extended attainment date, based on complete, quality-assured data for 2008-2010.

In addition, for all the areas listed above and for Ventura County, 1 EPA is determining, based on complete, quality-assured and certified air quality monitoring data for 2009-2011, that these areas have attained and continue to attain the 1997 8-hour ozone NAAQS. Preliminary data for 2012 indicate that these areas continue to attain the NAAQS. Under the provisions of 40 CFR 51.918, these latter determinations suspend the obligation of the State to submit certain planning requirements related to attainment for as long as the areas continue to attain the standard.

On September 14, 2012, EPA published in the Federal Register a direct final rule (77 FR 56775) that made the same determinations for the same areas addressed in today's final rule. On that same date, we also published a document (77 FR 56797) that was to serve as the proposed rule addressing the same actions as the direct final rule if we were to withdraw the direct final rule in response to receipt of adverse comments.

In our direct final rule, we provided background for these actions by describing the 1997 8-hour ozone NAAQS (0.08 parts per million averaged over an eight-hour time frame), the designations and classifications of the six CA areas and Ventura County with respect to the 1997 8-hour ozone NAAQS (see Table 1 from the direct final rule), and the statutory and regulatory provisions that allow EPA to grant attainment date extensions and that act to suspend attainment-related SIP submittal obligations. In the direct final rule, we also describe the basis upon which we evaluate whether an area has attained the 1997 8-hour ozone standard, and present area-specific monitoring network information and data in support of our conclusions: That two of the six CA areas—the Southern Mountain Counties and Western Nevada County—qualified for one-year extensions of their applicable attainment dates; that the six CA areas attained by their respective attainment dates, that all six CA areas and Ventura County have attained the NAAQS based on the most recent complete three-year monitoring period (2009-2011); and that the most recent available ambient data for 2012 are consistent with continued attainment of the standard. Lastly, we explained how, under 40 CFR 51.918, the determinations of attainment based upon the most recent three-year period (2009-2011) suspend attainment-related SIP submittal obligations for these areas with respect to the 1997 8-hour ozone standard for so long as the areas continue to attain the standard, although the areas remain designated nonattainment until they are redesignated to attainment. Please see the direct final rule for detailed information concerning the subject areas, ozone monitoring networks and data, and our review and evaluation.

In our direct final rule, we indicated that, if we received adverse comments, then we would publish a withdrawal in the Federal Register informing the public that the direct final rule will not take effect. We received such adverse comments and have withdrawn the direct final rule. See 77 FR 66715 (November 7, 2012). In our direct final rule, we stated that EPA would respond to comments received on the proposed rule, but that we would not institute a second comment period. In this final rule and in responding to comments, we continue to rely on the information and analysis that were set forth in the direct final rule.

First, EPA received one anonymous comment that generally supports the proposed actions, while emphasizing the need for continued monitoring for the ozone standard. Second, and with respect only to EPA's proposed determination for the Central Mountain Counties, EPA also received two adverse comment letters from one individual. These were submitted on behalf of the Ione Valley Land, Air, and Water Defense Alliance (“Ione Valley Alliance”), and expressed concern over the proposed determination related to a portion (Amador County) of the Central Mountain Counties area (Amador and Calaveras Counties). See letters, Douglas Carstens, September 10 and October 3, 2012. EPA received no adverse comments with respect to its determinations for any of the other CA areas in its direct final and proposed rulemakings. The general, supportive anonymous comment and the two comments related to Amador County are summarized and addressed below.

Comment 1: The anonymous commenter states that he/she generally agrees with our proposed determinations and the related suspension of the obligation to submit attainment-related SIP planning requirements, but emphasizes the need to continue ambient monitoring to ensure that the standard is maintained and to avoid the return of excessive ozone levels.

Response 1: We agree that continued ambient air monitoring by CARB and the individual air districts (where applicable) in the seven nonattainment areas that are the subject of this action is necessary to ensure that continuing attainment of the 1997 8-hour ozone standard is verified. While our final determinations will suspend certain attainment-related SIP submittal requirements, they will not suspend any monitoring-related requirements and CARB and the local air districts (where applicable) will continue to be required to operate ozone monitoring networks in compliance with EPA monitoring regulations.

Lastly, as described in our direct final rule, the suspension of attainment-related SIP requirements continues only until such time, if any, that EPA (i) redesignates the area to attainment at which time those requirements no longer apply, or (ii) subsequently determines that the area has violated the 1997 8-hour ozone NAAQS. If EPA subsequently determines, after notice-and-comment rulemaking, that any one of the nonattainment areas has violated the 1997 8-hour ozone NAAQ, the basis for the suspension of the requirements for that area, provided by 40 CFR 51.918, would no longer exist, and the violating ozone nonattainment area would thereafter have to address those requirements. See 77 FR 56775, at 56778 (September 14, 2012).

Comment 2: The Ione Valley Alliance objects to our proposed determination of attainment for Amador County and contends that Amador County has not implemented sufficient measures that will ensure that it can maintain attainment status.

Response 2: Amador County is part of a two-county 1997 8-hour ozone nonattainment area that, together with Calaveras County, is referred to as “Central Mountain Counties.” As to the Central Mountain Counties area, we are finalizing our proposed determination of attainment by the applicable attainment date (i.e., June 15, 2010 for this area) based on 2007-2009 data, as well as our separate proposed determination that the area currently attains the standard based on the most recent three-year monitoring period (2009-2011). See pages 56779 and 56780 from our September 14, 2012 direct final rule. We have made these determinations after reviewing the complete, quality-assured data from the ozone monitoring station located in Jackson, California, which is the county seat of Amador County. As shown in Table 3 in the direct final rule (page 56780), the design value based on the data from the Jackson monitoring site was 0.080 ppm during the 2007-2009 period and 0.071 ppm during the 2009-2011 period. These values show levels in the area that are well below the 1997 8-hour ozone NAAQS. 2 Moreover, the preliminary ozone data available for 2012 indicate that the area continues to attain the standard.

EPA's determinations of attainment for the Amador and Calaveras Counties area are solely based on complete, quality-assured air monitoring data. EPA's review of these data does not involve any evaluation of the sufficiency of the measures adopted for the area to maintain the NAAQS, and it is not dependent on any conclusions regarding those measures. Thus the comments of Ione Valley Alliance are not germane to the action we are taking today, i.e., determinations based solely on air quality data. CAA Section 181(b)(2) expressly provides that a determination that an area has attained by its attainment date is “based on the area's design value (as of the attainment date).” Similarly, EPA's determination that the area continues currently to attain the standard is based entirely on data establishing the area's design value for the most recent three years. The commenter does not challenge these air quality determinations themselves. Moreover, since our determinations of attainment for Central Mountain Counties are based solely on air quality, they do not constitute a redesignation of the area to attainment. In order for EPA to redesignate an area to attainment, EPA must, among other criteria, determine that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the SIP and applicable Federal air pollution control regulations. To approve a redesignation to attainment, EPA must also review and approve a maintenance plan that covers the first ten years beyond redesignation. See CAA sections 107(d)(3)(E)(iii) and (iv) and section 175A. At this time, California has not submitted a redesignation request or maintenance plan for Central Mountain Counties. EPA again notes that, under 40 CFR section 51.918, EPA's determination that the area is currently attaining the standard based on the most recent three years of data will be withdrawn if, after notice-and-comment rulemaking, EPA determines that the area is once again in violation of the standard.

Comment 3: The Ione Valley Alliance contends that EPA's issuing of a blanket attainment ruling without public notice and comment during a formal rulemaking process may inappropriately expose the County to overdevelopment without sufficient oversight to ensure meaningful measures are implemented to maintain attainment status. In support of this contention, Ione Valley Alliance enclosed, with its September 10, 2012 comment letter, a copy of a letter the Alliance sent to the Amador County Air Pollution Control District (APCD) regarding a Public Records Act request and a request for notices related to a specific quarry project, General Plan Amendment and related environmental impact report.

Response 3: EPA has addressed the commenter's claims as to lack of notice and opportunity to comment by withdrawing our direct final rule in response to receipt of adverse comments and by fully responding to the comments in this final rule, which is based on EPA's proposed rule, published the same day (September 14, 2012) as our direct final rule.

Second, as to the concern the commenter expressed regarding the risk of overdevelopment without sufficient oversight, EPA's determinations today, which derive solely from ambient ozone monitoring data, do not in and of themselves affect development in the county. The determination that the area attained the standard by its attainment date fulfills EPA's statutory obligation under section 181(b)(2). Our determination that the area is currently attaining the standard based on the most recent three years of quality-assured monitoring data reflects the reality of recent air quality in the area. It does not redesignate the area to attainment status, or relax control requirements. Pursuant to 40 CFR 51.918, the determination has the effect of suspending only those SIP submittal requirements related to attainment, but the suspension of these requirements lasts only for so long as the area continues to attain the 1997 8-hour ozone NAAQS. As explained generally on page 56778 of the direct final rule with respect to all of the subject areas, if EPA subsequently determines, after notice-and-comment rulemaking, that the Central Mountain Counties area has violated the 1997 8-hour ozone NAAQS, the basis for the suspension of the requirements for that area would no longer exist, and the area would thereafter have to address those requirements.

Lastly, as noted above, the enclosure sent with the September 10th comment letter is a letter to the Amador County APCD containing a Public Records Act Request and a request for notices related to a quarry project and related Environmental Impact Report (EIR) prepared under the State's California Environmental Quality Act (CEQA). The letter to Amador County APCD also asserts that the EIR prepared by Amador County is deficient and cannot be relied upon by the APCD in issuing permits to project-related emissions sources; that the project would violate certain APCD rules and regulations; that the emissions from the project would be significant; that sensitive receptors in the area would be adversely affected; that feasible, less damaging alternatives are available; and that the permit applications therefore must be denied.

The contents of the letter to the Amador County APCD are not germane to today's determinations because today's determinations are based solely on ambient air quality data, and the comments do not challenge the data or EPA's review and evaluation of the data. In addition, EPA's action today does not change the status of Amador County as nonattainment with respect to the 1997 8-hour ozone standard nor would it affect the permit requirements for the quarry project. Rather, our action today simply suspends attainment-related SIP submittal requirements so long as the area continues to monitor attainment of the 1997 8-hour ozone standard.

Comment 4: The Ione Valley Alliance believes that the attainment determination does not change the designation of Amador County and that the status of the area continues to be “nonattainment” until official action is taken to change that designation.

Response 4: We agree that the neither the determination of attainment by the applicable attainment date, nor the determination of attainment based on the most recent three-year period, for the Central Mountain Counties area changes the designation or classification of the area with respect to the 1997 8-hour ozone NAAQS. Central Mountain Counties will remain “moderate” nonattainment for the 1997 8-hour ozone standard until EPA takes final action to approve a maintenance plan for the area and a request to redesignate the area to attainment under CAA section 107(d)(3)(E). No such maintenance plan or redesignation request is pending before EPA at the present time for the Central Mountain Counties 8-hour ozone nonattainment area.

Pursuant to CAA section 181(a)(5) and 40 CFR 51.907, the State has requested, and EPA is approving one-year attainment date extensions, until June 15, 2011, for the Southern Mountain Counties and Western Nevada County nonattainment areas. The effect of granting the attainment date extensions is to extend the 1997 8-hour ozone attainment deadline for the Southern Mountain Counties and Western Nevada County nonattainment areas for an additional year until June 15, 2011 and to enable EPA, pursuant to section 181(b)(2) of the CAA, to determine that the areas attained the 1997 8-hour ozone NAAQS by their extended deadlines.

Pursuant to section 181(b)(2) of the CAA, EPA is determining that the Butte County, Central Mountain Counties, Eastern Kern, Southern Mountain Counties, Sutter Buttes, and Western Nevada County ozone nonattainment areas attained the 1997 8-hour ozone NAAQS by their applicable attainment dates.

These determinations discharge EPA's obligations under section 181(b)(2) with respect to determining whether these areas attained by their respective attainment deadlines, and establish that these areas are not subject to reclassification for failure to attain by these deadlines.

In addition, EPA is separately determining that the six CA areas and Ventura County have attained the standard based upon the most recent three years of data (without reference to their attainment deadlines). Under the provisions of 40 CFR 51.918, these determinations of attainment suspend the obligation for the State to submit certain planning requirements described above; however, they do not constitute redesignations to attainment under section 107(d)(3) of the CAA. The designation status of the six CA areas and Ventura County remains nonattainment for the 1997 8-hour ozone NAAQS until such time as EPA determines that each area meets the CAA requirements for redesignation to attainment, including an approved maintenance plan.

In accordance with 40 CFR 51.918, based on these determinations, the obligation under the CAA for the State of California to submit an attainment demonstration and reasonably available control measures (RACM), reasonable further progress plans (RFP), contingency measures, and any other planning requirements related to attainment of the 1997 8-hour ozone NAAQS for these seven ozone nonattainment areas is suspended for so long as the areas continue to attain the 1997 8-hour ozone NAAQS.

The suspension continues until such time, if any, that EPA (i) redesignates the area to attainment at which time those requirements no longer apply, or (ii) subsequently determines that the area has violated the 1997 8-hour ozone NAAQS. It is separate from, and does not influence or otherwise affect, any future designation determination or requirements for the area based on any new or revised ozone NAAQS. It remains in effect regardless of whether EPA designates the area as a nonattainment area for purposes of any new or revised ozone NAAQS.

If EPA subsequently determines, after notice-and-comment rulemaking, that any one of these nonattainment areas has violated the 1997 8-hour ozone NAAQS, the basis for the suspension of the requirements for that area, provided by 40 CFR 51.918, would no longer exist, and the violating ozone nonattainment area would thereafter have to address those requirements.

Based on the information and rationale presented in the direct final rule and in this notice of final rulemaking and after due consideration of all comments received, EPA is taking final action to make a number of determinations for certain areas in California for the 1997 8-hour ozone NAAQS.

First, pursuant to section 181(b)(2), EPA is determining that six 8-hour ozone nonattainment areas in California [Amador and Calaveras Counties (Central Mountain Counties), Chico (Butte County), Kern County (Eastern Kern), Mariposa and Tuolumne Counties (Southern Mountain Counties), Nevada County (Western Nevada County), and Sutter County (Sutter Buttes)] attained the 1997 8-hour ozone NAAQS by their respective applicable attainment dates based on complete, quality-assured, and certified ambient air quality monitoring data. Second, in conjunction with its determinations for Southern Mountain Counties and Western Nevada County, EPA is determining that these areas qualified for one-year extensions and is granting these extensions under CAA section 181(a)(5) and 40 CFR 51.907.

Specifically, for Butte County and Sutter Buttes, EPA is determining that these areas attained the 1997 8-hour ozone standard by their applicable attainment deadline of June 15, 2007, based on complete, quality-assured, and certified ambient air quality monitoring data for 2004-2006. For the Central Mountain Counties and Eastern Kern ozone nonattainment areas, EPA is determining that they attained the 1997 8-hour ozone standard by their applicable attainment deadline of June 15, 2010, based on complete, quality-assured and certified air quality data for 2007-2009. For the Southern Mountain Counties and Western Nevada County, whose original attainment date was June 15, 2010, EPA is granting a one-year attainment date extension until June 15, 2011 and determining that these areas attained the 1997 8-hour ozone NAAQS by that extended attainment date, based on complete, quality-assured data for 2008-2010.

Third, EPA is separately determining that Central Mountain Counties, Butte County, Eastern Kern, Southern Mountain Counties, Western Nevada County, Sutter Buttes, and Ventura County have each attained the 1997 8-hour ozone standard based on the most recent three years of complete, quality-assured, and certified data for 2009-2011. Preliminary data available for 2012 show that these areas continue to attain the standard. As provided in 40 CFR 51.918, these determinations of attainment suspend the requirements for the State of California to submit, for each of these seven ozone nonattainment areas, an attainment demonstration and associated RACM, RFP plan, contingency measures, and any other planning requirements related to attainment of the 1997 8-hour ozone NAAQS, for as long as the areas continue to attain the 1997 8-hour ozone NAAQS.

These actions make determinations of attainment based on air quality, result in the suspension of certain federal requirements, grant attainment date extensions, and/or would not impose additional requirements beyond those imposed by state law. For that reason, these actions:

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

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

• Are 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. );

• Do 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);

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

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

• Are not significant regulatory actions subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Are 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

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

In addition, these actions do not have Tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP obligations discussed herein do not apply to Indian Tribes and thus 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 CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by February 1, 2013. 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).)

Part 52, Chapter I, Title 40 of the Code of Federal Regulations is amended as follows:

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Printing Office's e-CFR site at http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?&c=ecfr&tpl=/ecfrbrowse/Title40/40tab_02.tpl. To access the OCSPP test guidelines referenced in this document electronically, please go to http://www.epa.gov/ocspp and select “Test Methods and Guidelines.”

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2011-0781 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before February 1, 2013. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2011-0781, by one of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute.

• Mail: OPP Docket, Environmental Protection Agency Docket Center (EPA/DC), (28221T), 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001.

• Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at http://www.epa.gov/dockets/contacts.htm.

In the Federal Register of December 8, 2011 (75 FR 76676) (FRL-9328-8), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 1F7916) by Canyon Group L.L.C., c/o Gowan Company, 370 South Main St., Yuma, AZ 85364. The petition requested that 40 CFR 180.479 be amended by establishing tolerances for residues of the herbicide halosulfuron-methyl, methyl 5-[(4,6-dimethoxy-2-pyrimidinyl)amino]carbonylaminosulfonyl]-3-chloro-1-methyl-1H-pyrazole-4-carboxylate, in or on millet, proso, forage at 7.0 parts per million (ppm); millet, proso, hay at 0.02 ppm; millet, proso, grain at 0.01 ppm; millet, proso, straw at 0.01 ppm; grass, forage, fodder, and hay, group 17, forage at 17 ppm; and grass, forage, fodder, and hay, group 17, hay at 0.90 ppm. That document referenced a summary of the petition prepared by Canyon Group, L.L.C., the registrant, which is available in the docket, http://www.regulations.gov. Comments were received on the notice of filing. EPA's response to these comments is discussed in Unit IV.C.

Based upon review of the data supporting the petition, EPA has revised the proposed tolerance levels, determined that established tolerances for certain livestock commodities should be increased and multiple new livestock commodity tolerances should be established. The reasons for these changes are explained in Unit IV.D.

Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue * * *.”

Consistent with FFDCA section 408(b)(2)(D), and the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for halosulfuron-methyl including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with halosulfuron-methyl follows.

EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.

Halosulfuron-methyl has a low acute toxicity via the oral, dermal, and inhalation routes of exposure. Halosulfuron-methyl is a non-irritant for skin and eyes and is not a dermal sensitizer.

With repeated dosing, halosulfuron-methyl produces non-specific effects, which are frequently characterized by reduced body weight/body weight gain in the test animals. The available data show that the dog is the most sensitive mammalian species. In the dog, decreased body weight was seen in the chronic oral toxicity study and decreased body weight gain was observed in females in the subchronic oral toxicity study. In the rat and mouse, there was a decrease in body weight gains at high dose levels in short- and long-term oral and dermal studies.

In the prenatal developmental toxicity study in rats, increases in resorptions, soft tissue (dilation of the lateral ventricles) and skeletal variations, and decreases in body weights were seen in the fetuses compared to clinical signs and decreases in body weights and food consumption in the maternal animals at similar dose level.

In the rabbit developmental toxicity study, increases in resorptions and post-implantation losses and decrease in mean litter size was seen in the presence of decreases in body weight and food consumption in maternal animals were observed. However, a clear no-observed-adverse-effect-level (NOAEL) for these effects was established in both rat and rabbit developmental toxicity studies.

Halosulfuron-methyl did not produce reproductive effects. No neurotoxic effects were observed in the acute or subchronic neurotoxicity studies. Halosulfuron-methyl is classified as “not likely to be carcinogenic to humans” because in both rat and mouse carcinogenicity studies halosulfuron-methyl does not cause; compound-related increases in tumor incidence. It is negative for mutagenicity in a battery of genotoxicity studies. Specific information on the studies received and the nature of the adverse effects caused by halosulfuron-methyl as well as the NOAEL and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at http://www.regulations.gov in the document Halosulfuron-methyl: “Human Health Risk Assessment for Proposed New Uses on Proso Millet and Crop Group 17 (Grass, Forage, Fodder, and Hay)” at p. 19 in docket ID number EPA-HQ-OPP-2011-0781.

Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern (LOC) to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which the NOAEL and the lowest dose at which adverse effects of concern are identified (the LOAEL). Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see http://www.epa.gov/pesticides/factsheets/riskassess.htm. A summary of the toxicological endpoints for halosulfuron-methyl used for human risk assessment is shown in the following Table.

1. Dietary exposure from food and feed uses. In evaluating dietary exposure to halosulfuron-methyl, EPA considered exposure under the petitioned-for tolerances as well as all existing halosulfuron-methyl tolerances in 40 CFR 180.479. EPA assessed dietary exposures from halosulfuron-methyl in food as follows:

i. Acute exposure. Quantitative acute dietary exposure and risk assessments are performed for a food-use pesticide, if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1-day or single exposure. Such effects were identified for halosulfuron-methyl. In estimating acute dietary exposure, EPA used food consumption information from the U.S. Department of Agriculture (USDA) 1994-1996 and 1998 Nationwide Continuing Surveys of Food Intake by Individuals (CSFII). As to residue levels in food, EPA conducted an unrefined assessment that assumed 100 percent crop treated (PCT), dietary exposure evaluation model (DEEM TM ) 7.81 default concentration factors, and tolerance-level residues for all existing and proposed uses. There was no indication of an adverse effect attributable to a single dose for the general U.S. population. Therefore, an acute dietary assessment was not conducted for the general U.S. population.

ii. Chronic exposure. In conducting the chronic dietary exposure assessment, EPA used the food consumption data from the USDA 1994-1996 and 1998 CSFII. As to residue levels in food, EPA conducted a chronic dietary assessment that utilized the same food residue assumptions as in the acute dietary exposure assessment discussed in Unit III.C.1.i.

iii. Cancer. In both rat and mouse carcinogenicity studies, halosulfuron-methyl does not produce compound related increases in tumor incidence; EPA has concluded that halosulfuron-methyl does not pose a cancer risk to humans. Therefore, a dietary exposure assessment for the purpose of assessing cancer risk is unnecessary.

iv. Anticipated residue and PCT information. EPA did not use anticipated residue and/or PCT information in the dietary assessment for halosulfuron-methyl. Tolerance level residues and/or 100 PCT were assumed for all food commodities.

2. Dietary exposure from drinking water. The Agency used screening level water exposure models in the dietary exposure analysis and risk assessment for halosulfuron-methyl in drinking water. These simulation models take into account data on the physical, chemical, and fate/transport characteristics of halosulfuron-methyl. Further information regarding EPA drinking water models used in pesticide exposure assessment can be found at http://www.epa.gov/oppefed1/models/water/index.htm.

Based on the Tier 1 Rice Model and Screening Concentration in Ground Water (SCI-GROW) models, the estimated drinking water concentrations (EDWCs) of halosulfuron-methyl for acute and chronic exposures are estimated to be 59.2 parts per billion (ppb) for surface water and 0.065 ppb for ground water.

Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For both acute and chronic dietary risk assessments, the water concentration value of 59.2 ppb was used to assess the contribution to drinking water.

3. From non-dietary exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets). Halosulfuron-methyl is currently registered for the following uses that could result in residential exposures: Residential turf. EPA assessed residential exposure using the default assumptions of the 2012 Residential Standard Operating Procedures (SOPs). Residential handler short-term (1-30 days) dermal and inhalation exposures, and residential post-application short-term dermal and incidental oral (hand-to-mouth, object-to-mouth, and soil ingestion) exposures are expected from activities associated with the existing uses. Intermediate-term exposures are not likely because of the intermittent nature of applications by homeowners. Further information regarding EPA standard assumptions and generic inputs for residential exposures may be found at http://www.epa.gov/pesticides/trac/science/trac6a05.pdf.

4. Cumulative effects from substances with a common mechanism of toxicity. Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.” EPA has not found halosulfuron-methyl to share a common mechanism of toxicity with any other substances, and halosulfuron-methyl does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that halosulfuron-methyl does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's Web site at http://www.epa.gov/pesticides/cumulative.

1. In general. Section 408(b)(2)(C) of FFDCA provides that EPA shall apply an additional tenfold (10X) margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database on toxicity and exposure unless EPA determines based on reliable data that a different margin of safety will be safe for infants and children. This additional margin of safety is commonly referred to as the FQPA Safety Factor (SF). In applying this provision, EPA either retains the default value of 10X, or uses a different additional safety factor when reliable data available to EPA support the choice of a different factor.

2. Prenatal and postnatal sensitivity. The pre-natal and postnatal toxicity database for halosulfuron-methyl includes rat and rabbit developmental toxicity studies and a 2-generation reproduction toxicity study in rats. As discussed in Unit III.A, there was qualitative evidence of increased susceptibility of fetuses in the rat and rabbit developmental studies. Fetal effects e.g., increased incidences of soft tissue and skeletal variations, decreased mean fetal body weight and mean litter size in the rat study; increases in resorptions and post-implantation losses and a decrease in mean litter size in the rabbit study, occurred at doses resulting in less severe maternal toxicity e.g., increased incidence of clinical observations, reduced body weight gains, reduced food consumption and food efficiency in the rat study; decreases in body weight and food consumption in the rabbit study. The degree of concern for these effects is low, and there are no residual uncertainties for prenatal toxicity in rats and rabbits for the following reasons: In both studies, there are clear NOAELs/LOAELs for developmental and maternal toxicities; developmental effects were seen in the presence of maternal toxicity; and effects were seen only at the high dose. Additionally, in rats, developmental effects were seen at a dose which is approaching the limit-dose.

3. Conclusion. EPA has determined that reliable data show the safety of infants and children would be adequately protected if the FQPA SF were reduced to 1X. That decision is based on the following findings:

i. The toxicity database for halosulfuron-methyl is complete except for an immunotoxicity study. In accordance with 40 CFR part 158, Toxicology Data Requirements, an immunotoxicity study is required for halosulfuron-methyl. In the absence of specific immunotoxicity studies, EPA has evaluated the available halosulfuron-methyl toxicity data to determine whether an additional uncertainty factor is needed to account for potential immunotoxicity. The toxicology database for halosulfuron-methyl does not show any evidence of biologically relevant effects on the immune system following exposure to this chemical. The overall weight of evidence suggests that this chemical does not directly target the immune system. Based on these considerations, EPA does not believe that conducting immunotoxicity testing will result in a POD lower than those already selected for halosulfuron-methyl risk assessment, and an additional database uncertainty factor is not needed to account for the lack of this study.

ii. There is no indication that halosulfuron-methyl is a neurotoxic chemical and there is no need for a developmental neurotoxicity study or additional UFs to account for neurotoxicity.

iii. Although there is evidence of increased qualitative susceptibility in in utero rats and rabbits in the prenatal developmental studies, the degree of concern for developmental effects is low, and EPA did not identify any residual uncertainties after establishing toxicity endpoints and traditional UFs to be used in the risk assessment of halosulfuron-methyl.

iv. There are no residual uncertainties identified in the exposure databases. The dietary food exposure assessments were performed based on 100 PCT and tolerance-level residues. EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to halosulfuron-methyl in drinking water. EPA used similarly conservative assumptions to assess post application exposure of children as well as incidental oral exposure of toddlers. These assessments will not underestimate the exposure and risks posed by halosulfuron-methyl.

EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the acute PAD (aPAD) and chronic PAD (cPAD). For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate PODs to ensure that an adequate MOE exists.

1. Acute risk. Using the exposure assumptions discussed in this unit for acute exposure, the acute dietary exposure from food and water to halosulfuron-methyl will occupy <1% of the aPAD for females 13-49 years old, the population group receiving the greatest exposure.

2. Chronic risk. Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that chronic exposure to halosulfuron-methyl from food and water will utilize 6% of the cPAD for all infants, the population group receiving the greatest exposure. Based on the explanation in Unit III.C.3., regarding residential use patterns, chronic residential exposure to residues of halosulfuron-methyl is not expected.

3. Short-term risk. Short-term aggregate exposure takes into account short-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Halosulfuron-methyl is currently registered for uses that could result in short-term residential exposure, and the Agency has determined that it is appropriate to aggregate chronic exposure through food and water with short-term residential exposures to halosulfuron-methyl.

Using the exposure assumptions described in this unit for short-term exposures, EPA has concluded the combined short-term food, water, and residential exposures result in aggregate MOEs of 1,800 for adults and 840 for children. For adults, potential pathways of exposure include oral (background) and dermal (post-application primary) routes, while for children, potential pathways of exposure include oral (background) and incidental oral and dermal (primary) routes. Because EPA's level of concern for halosulfuron-methyl is a MOE of 100 or below, these MOEs are not of concern.

4. Intermediate-term risk. Intermediate-term aggregate exposure takes into account intermediate-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level). An intermediate-term adverse effect was identified; however, halosulfuron-methyl is not registered for any use patterns that would result in intermediate-term residential exposure. Intermediate-term risk is assessed based on intermediate-term residential exposure plus chronic dietary exposure. Because there is no intermediate-term residential exposure and chronic dietary exposure has already been assessed under the appropriately protective cPAD (which is at least as protective as the POD used to assess intermediate-term risk), no further assessment of intermediate-term risk is necessary, and EPA relies on the chronic dietary risk assessment for evaluating intermediate-term risk for halosulfuron-methyl.

5. Aggregate cancer risk for U.S. population. Based on the lack of evidence of carcinogenicity in two adequate rodent carcinogenicity studies, halosulfuron-methyl is not expected to pose a cancer risk to humans.

6. Determination of safety. Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population, or to infants and children from aggregate exposure to halosulfuron-methyl residues.

Adequate enforcement methodologies are available to enforce the tolerance expression: A gas chromatography with nitrogen phosphorus detection; GC/NPD method for crop commodities and a gas chromotagraphy with electron capture detection (GC/ECD) method for livestock commodities. The methods may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; email address: residuemethods@epa.gov.

In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level. There are no Maximum Residue Limits (MRLs) established by Codex, Canada, or Mexico for any crop or livestock commodities for halosulfuron-methyl.

An anonymous citizen objected to the presence of any pesticide residues on food. The Agency understands the commenter's concerns and recognizes that some individuals believe that pesticides should be banned completely. However, the existing legal framework provided by section 408 of the FFDCA contemplates that tolerances greater than zero may be set when persons seeking such tolerances or exemptions have demonstrated that the pesticide meets the safety standard imposed by that statute. This citizen's comment appears to be directed at the underlying statute and not EPA's implementation of it; the citizen has made no contention that EPA has acted in violation of the statutory framework.

EPA has revised the requested tolerances by increasing the tolerance values for millet, proso, forage and grass, forage, fodder, and hay, group 17, forage and reducing the tolerance values for millet, proso, hay and grass, forage, fodder, and hay, group 17, hay. Differences in proposed and recommended tolerances may be attributed to the petitioner having used the North American Free Trade Agreement (NAFTA) tolerance calculation procedures for determining the tolerance and EPA's use of the Organization for Economic Cooperation and Development (OECD) tolerance calculation procedures. Recently, EPA has adopted use of the OECD tolerance calculation procedures to increase international harmonization of tolerance levels. For grass hay, the petitioner used values below the level of quantitation (LOQ) in the tolerance calculation whereas EPA used LOQ values. In addition, already established tolerances for cattle, goat, horse, and sheep meat byproducts are being increased and multiple new livestock commodity tolerances are being established. Livestock tolerances are derived from reevaluation of the dairy/beef cattle diet with new feed items (millet and grass).

Therefore, tolerances are established for residues of halosulfuron-methyl, including its metabolites and degradates, as set forth in the regulatory text.

This final rule establishes tolerances under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this final rule has been exempted from review under Executive Order 12866, this final rule is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq. ), nor does it require any special considerations under Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994).

Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ), do not apply.

This final rule directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this final rule. In addition, this final rule does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1501 et seq. ).

This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA) (15 U.S.C. 272 note).

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq. ), 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 . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Therefore, 40 CFR chapter I is amended as follows:

You may be affected by this rule if you are a manufacturer (including importer) of cadmium or cadmium compounds, including as part of an article, that have been, or are reasonably likely to be, incorporated into consumer products.

In addition to this final rule, EPA plans to propose, under a separate notice and comment rulemaking, to require the submission of TSCA section 8(d) health and safety studies from processors and distributors of cadmium or cadmium compounds, including as part of an article, that have been, or are reasonably likely to be, incorporated into consumer products to report certain unpublished health and safety studies to EPA. The proposed rule will be published in a subsequent Federal Register document. As provided in this rule, health and safety studies regarding cadmium or cadmium compounds in articles must be reported, with the exception of studies not subject to reporting as described at § 716.20.

While EPA has broad authority to require submission of health and safety studies on chemical substances, for the purposes of this rule EPA has limited the scope of this rule to those chemical substances within the listed category that have been, or are reasonably likely to be, incorporated into consumer products, based on EPA's determination of what is necessary to carry out the purposes of TSCA. “Consumer product” is defined in § 716.21(a)(9)(iii) of this rule to mean “any product that is sold or made available to consumers for their use in or around a permanent or temporary household or residence, in or around a school, or in or around recreational areas.” This definition is based on the definition of “consumer use” promulgated in 40 CFR 710.43 and the definition of “consumer product” promulgated in 40 CFR 721.3. Potentially affected entities may include but are not limited to:

• Manufacturers of basic inorganic chemicals (except industrial gases, inorganic dyes and pigments, alkalis and chlorine, and carbon black) (NAICS code 325188).

• Manufacturers (including importers) of inorganic dyes and pigments (NAICS code 325131).

• Manufacturers of basic organic chemical products (except aromatic petrochemicals, industrial gases, synthetic organic dyes and pigments, gum and wood chemicals, cyclic crudes and intermediates, and ethyl alcohol) (NAICS code 325199).

• Establishments primarily engaged in the primary production of nonferrous metals by smelting ore and/or the primary refining of nonferrous metals by electrolytic methods or other processes (except copper and aluminum) (NAICS code 331419).

• Establishments engaging in secondary smelting, refining, and alloying of nonferrous metal (except copper and aluminum) (NAICS code 331492).

• Wholesalers of toy and hobby goods, establishments with product line 12812 (NAICS code 42392).

• Discount department stores (NAICS code 452112).

• Warehouse clubs and supercenters (NAICS code 45291).

This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the technical person listed under FOR FURTHER INFORMATION CONTACT .

If you wish to claim information submitted to be CBI, it will be handled in accordance with procedures set forth in 40 CFR part 2, subpart B. If you do not assert a confidentiality claim at the time of submission, the information may be made available to the public by EPA without further notice. See 40 CFR 2.203 (Ref. 1). Do not submit this information to EPA through regulations.gov or by email. Clearly mark the part of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2 and in § 716.55. Pursuant to § 716.55, to assert a claim of confidentiality for information contained in a submitted record, you must submit two copies of the document. One copy must be complete, and you must indicate what information, if any, is claimed as confidential by marking the specific information on each page with a label such as “company confidential,” “proprietary,” or “trade secret” and briefly state the basis of the claim. The second copy must be complete, except that all the information claimed as CBI in the first copy must be deleted. The second copy will be placed in the public docket. Failure to furnish a second copy when information is claimed as CBI in the first copy will be considered a presumptive waiver of confidentiality. EPA will notify the respondent by certified mail that a finding of a presumptive waiver of the claim of confidentiality has been made. The respondent will be given 30 days from the date of receipt of notification to submit the required second copy. If the respondent fails to submit the second copy within the 30 days, EPA will place the first copy in the docket.

EPA has classified cadmium as a Group B1, probable human carcinogen (Ref. 2). Further, EPA has determined acute (short-term) effects of cadmium in humans through inhalation exposure consisting mainly of effects on the lung, such as pulmonary irritation. Chronic (long-term) inhalation or oral exposure to cadmium leads to a build-up of cadmium in the kidneys which can cause kidney disease. Cadmium has been shown to be a developmental toxicant in animals, resulting in fetal malformations and other effects, but no conclusive evidence exists in humans. Animal studies have demonstrated an increase in lung cancer from long-term inhalation exposure to cadmium (Refs. 2-4). Due to the potential health effects of exposure to cadmium or cadmium compounds, EPA and the Consumer Product Safety Commission (CPSC) are concerned about the possible presence and bioavailability of cadmium or cadmium compounds in consumer products generally and especially those consumer products used by or around children (Ref. 5).

EPA is issuing a final TSCA section 8(d) rule under procedures in the Health and Safety Data Reporting rule, 40 CFR part 716, to require manufacturers (including importers) of cadmium or cadmium compounds, including as part of an article, that have been, or are reasonably likely to be, incorporated into consumer products to submit certain unpublished health and safety studies to EPA.

EPA has reviewed CPSC's recalls of cadmium-contaminated children's products. Most of the recalled products were produced abroad and imported from other countries (Ref. 6). Based in part on this information, EPA expects to capture health and safety studies conducted by importers of such products through this final rule. These parties are located primarily in the United States and may be subject to CPSC certification requirements and, depending on the product, may be conducting testing using Standard Consumer Safety Specification for Toy Safety, ASTM International (ASTM) F-963 (Ref. 7).

The regulatory text of this final rule lists the category cadmium and cadmium compounds. The regulatory text also lists the data reporting requirements imposed by this amendment to the TSCA section 8(d) model rule.

Section 8(d) of TSCA authorizes EPA to require “any person who manufactures, processes, or distributes in commerce or who proposes to manufacture, process, or distribute in commerce, any chemical substance or mixture” to submit lists of health and safety studies conducted or initiated by or for such person with respect to such substance or mixture at any time, known to such person, or reasonably ascertainable by such person; and copies of any study contained on a list submitted pursuant to section (8)(d)(1) of TSCA or otherwise known by such person. Under TSCA section 3(7), import is included in the definition of “manufacture.”

The term health and safety study should be interpreted broadly and is defined in § 716.3.

Since the TSCA section 8(d) model rule is codified in 40 CFR part 716, EPA uses this TSCA section 8(d) model rule to quickly gather information on chemical substances. The TSCA section 8(d) model rule requires past, current, and prospective manufacturers (including importers) and (if specified by EPA in a particular rule or notice under TSCA section 8(d)) processors to submit to EPA copies and lists of health and safety studies on the listed chemical substances that they manufacture, import, or process. These studies provide EPA with useful information and have provided significant support for EPA's decisionmaking under TSCA sections 4, 5, 6, 8, and 9.

The TSCA section 8(d) model rule provides for the addition of TSCA section 4(e) Priority Testing List chemical substances or categories of chemical substances. EPA s amending the TSCA section 8(d) model rule by adding the recommended category of chemical substances consistent with § 716.105(b) and (c). In doing so, EPA must provide a 14-day period, which starts upon publication of the amendments to the TSCA section 8(d) model rule in the Federal Register , for persons to submit information showing why a chemical substance, mixture, or category of chemical substances should be withdrawn from the amendment. The amendment adding these chemical substances to the TSCA section 8(d) model rule is effective 30 days after date of publication in the Federal Register . If the EPA Administrator withdraws a chemical substance from the amendment, then no later than 30 days after the date of publication of the amendment in the Federal Register , a Federal Register document announcing this decision will publish.

EPA is publishing this action as a final rule pursuant to the procedures set forth in § 716.105(b) and (c). EPA finds that there is “good cause” under the Administrative Procedure Act (APA) (5 U.S.C. 553(b)(3)(B)) to make these amendments without prior notice and comment. EPA believes notice and an opportunity for comment on this action are unnecessary. TSCA directs the ITC to add chemical substances to the Priority Testing List for which EPA should give priority consideration. EPA also lacks the authority to remove a chemical substance from the Priority Testing List once it has been added by the ITC. As explained earlier in this preamble, pursuant to § 716.105(b) and (c), once the ITC adds a chemical substance to the Priority Testing List, EPA adds that chemical substance to the list of chemical substances subject to the TSCA section 8(d) model rule reporting requirements, unless the ITC designated and recommended more than 50 chemical substances or categories of chemical substances in a calendar year or EPA withdraws the chemical substance from the TSCA section 8(d) model rule for good cause. EPA promulgated this procedure in 1985 after having solicited public comment on the need for and mechanics of this procedure (Ref. 8). Because that rule established the procedure for adding ITC chemical substances to the TSCA section 8(d) model rule, it is unnecessary to request comment on the procedure in this action. Finally, § 716.105(b) and (c) do provide EPA with the discretion to withdraw a chemical substance from the TSCA section 8(d) model rule for good cause, including if a party submits to EPA information showing good cause that a chemical substance should be removed from the TSCA section 8(d) model rule.

EPA is adding the category of cadmium and cadmium compounds to the TSCA section 8(d) model rule as requested by the ITC in the 69th ITC Report (Ref. 9). This final rule requires manufacturers (including importers) of cadmium or cadmium compounds, including as part of an article, that have been, or are reasonably likely to be, incorporated into consumer products to report certain unpublished health and safety studies to EPA.

This final rule, issued pursuant to TSCA section 8(d) and its regulations, requires manufacturers (including importers) of cadmium or cadmium compounds, including as part of an article, that have been, or are reasonably likely to be, incorporated into consumer products to report certain unpublished health and safety studies to EPA. Listed in this unit are the reporting requirements for the chemical substances being added by this action to the TSCA section 8(d) model rule.

The following types of persons need to report:

1. Persons who, in the 10 years preceding the date a chemical substance is listed at § 716.120, either have proposed to manufacture or import or have manufactured or imported the listed substance must submit to EPA, during the 60-day reporting period specified in § 716.65 and according to the reporting schedule set forth at § 716.60, a copy of each health and safety study which is in their possession at the time the chemical substance is listed.

2. Persons who, at the time the chemical substance is listed, propose to manufacture or import, or are manufacturing or importing the listed chemical substance must submit to EPA during the 60-day reporting period specified in § 716.65 and according to the reporting schedule set forth at § 716.60:

i. A copy of each health and safety study which is in their possession at the time the chemical substance is listed.

ii. A list of the health and safety studies known to them but not in their possession at the time the chemical substance is listed.

iii. A list of the health and safety studies that are ongoing at the time the chemical substance is listed and are being conducted by or for them.

iv. A list of the health and safety studies that are initiated after the date the chemical substance is listed and will be conducted by or for them.

v. A list of unpublished studies which have been sent to a Federal agency with no claims of confidentiality or copies of each such study.

vi. A copy of each health and safety study that was previously listed as ongoing or subsequently initiated (i.e., listed in accordance with reporting requirements described at Unit III.B.2.iii. and iv. respectively) when complete—regardless of completion date.

3. Persons who, after the time the substance is listed, propose to manufacture or import the listed chemical substance must submit to EPA during the reporting period specified in § 716.65 and according to the reporting schedule set forth at § 716.60:

i. A copy of each health and safety study which is in their possession at the time they propose to manufacture or import the listed chemical substance.

ii. A list of the health and safety studies known to them but not in their possession at the time they propose to manufacture or import the listed chemical substance.

iii. A list of the health and safety studies that are ongoing at the time they propose to manufacture or import the listed chemical substance, and are being conducted by or for them.

iv. A list of the health and safety studies that are initiated after the time they propose to manufacture or import the listed chemical substance, and will be conducted by or for them.

v. A list of unpublished studies which have been sent to a Federal agency with no claims of confidentiality or copies of each such study.

vi. A copy of each health and safety study that was previously listed as ongoing or subsequently initiated (i.e., listed in accordance with reporting requirements described in Unit III.B.3.iii. and iv. respectively) when complete—regardless of the completion date.

Generally, the reporting described in Unit III.B. is required by March 4, 2013. Any person who manufactures or imports, or who proposes to manufacture or import, the listed chemical substance as described in Unit III.B. from January 2, 2013 to March 4, 2013 must inform EPA by submitting a list of any studies initiated during the period from January 2, 2013 to March 4, 2013 within 30 days of their initiation, but in no case later than April 2, 2013. In addition, if any such person has submitted lists of studies that were ongoing or initiated during the period from January 2, 2013 to March 4, 2013 to EPA, such person must submit a copy of each study within 30 days after its completion, regardless of the study's completion date. See §§ 716.60 and 716.65.

Detailed requirements for reporting unpublished health and safety studies are published in 40 CFR part 716. Also found there are explanations of the reporting exemptions.

Pursuant to § 716.20(b)(5), the types of health, and/or environmental effects studies that need to be reported and the chemical substance grade/purity requirements that need to be met or exceeded in individual studies for cadmium and cadmium compounds are as follows:

1. For the category “cadmium and cadmium compounds” (defined as compounds including any unique chemical substance that contains cadmium as part of that chemical's structure), reporting would extend to all unpublished health and safety studies generally reportable under §§ 716.10 and 716.20, for example but not limited to those that:

i. Relate to the cadmium content (either from cadmium or cadmium compounds) of consumer products (including the specific cadmium compound (defined in Unit III.A.) used in the products such as surface coatings and filler), data related to the product formulations, and function of the cadmium (e.g., stabilizer, colorant, etc.) in the products.

ii. Relate to the assessment of consumer exposure to cadmium from such products (including studies of bioavailability, description of the consumer use (e.g., paints used on plastics), physical form of the product containing cadmium, method of consumer product application (e.g., spray applied, etc.), number of potentially exposed consumers).

iii. Include data on cadmium migration from products (e.g., conducted using acid extraction or saline solution tests).

iv. Include bio-monitoring data on cadmium presence in tissues.

v. Focus on route, duration, and frequency of exposure to cadmium in products.

vi. Provide toxicity data on cadmium or cadmium compounds including in vitro, in vivo, epidemiological, computational, or other studies on effects of exposure to or use of the cadmium-containing product, material, or component.

vii. Discuss the function or use of cadmium or cadmium compounds in a product, material or component including typical concentration.

viii. Include data conducted in compliance with ASTM certification standards and studies focusing on the effects of the cadmium or cadmium compounds in consumer products on the health and safety of children.

2. With regard to purity, studies showing any measurable content of cadmium or cadmium compounds must be submitted.

EPA's economic analysis for the addition of cadmium and cadmium compounds to the Health and Safety Data Reporting rule is entitled “TSCA Section 8(d): Economic Impact Analysis for the Addition of Manufacturers and Importers of Consumer Products Containing Cadmium and Cadmium Compounds From the Sixty-Ninth Report of the TSCA Interagency Testing Committee to the Health and Safety Data Reporting Rule” (Ref. 10), and can be found in the docket for this rule.

EPA has estimated that 1,384 firms are subject to the rule and that 28 firms will have relevant studies to submit to EPA. EPA believes firms that are subject to the rule will need to perform various activities in order to comply with its requirements. The estimated cost of this TSCA section 8(d) rule to firms is approximately $481,000.

The estimated cost of this TSCA section 8(d) rule to the Federal Government is approximately the time of 300 hours. That will amount to a cost to the Federal Government of approximately $23,500.

As specified in § 716.105(c), EPA may remove a chemical substance or category of chemical substances from this final rule for good cause prior to the effective date of this final rule. Any person who believes that the reporting required by this final rule is not warranted for a chemical substance, or the category of chemical substances listed in this final rule may submit to EPA reasons for that belief. You must submit your request to EPA on or before December 17, 2012 and in accordance with the instructions provided in § 716.105(c) and (d), which are briefly summarized here. In addition, to ensure proper receipt by EPA, you should identify docket ID number EPA-HQ-OPPT-2011-0363 on your request and must submit that request in accordance with the instructions in § 716.105(c) and (d). If the Assistant Administrator, Office of Chemical Safety and Pollution Prevention, withdraws a chemical substance or the category of chemical substances from this TSCA section 8(d) amendment, in accordance with § 716.105(c), a Federal Register document announcing this decision will be published no later than January 2, 2013.

The docket for this final rule has been established under docket ID number EPA-HQ-OPPT-2011-0363. The docket is available for review as specified in ADDRESSES . The following is a listing of the documents referenced in this preamble that have been placed in the docket for this final rule:

Under Executive Order 12866 (58 FR 51735, October 4, 1993), entitled “Regulatory Planning and Review,” this action is not a “significant regulatory action” and was therefore not reviewed by the Office of Management and Budget (OMB) under Executive Orders 12866 and 13563, entitled “Improving Regulation and Regulatory Review” (76 FR 3821, January 21, 2011).

The information collection requirements contained in TSCA section 8(d) model rules have already been approved by OMB under the provisions of the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq., and OMB control number 2070-0004 (EPA ICR No. 0575). The collection activities in this final rule are captured by the existing approval and do not require additional review and/or approval by OMB.

EPA estimates that the information collection activities related to health and safety data reporting for the category of cadmium and cadmium compounds in this final rule will result in a total public reporting burden of 7,019 hours. Of that total, an estimated 2,768 hours are estimated to be spent performing an initial review of the final rule. The remaining hours are associated with the actual required reporting activities (Ref. 10). As defined by PRA and 5 CFR 1320.3(b), “burden” means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to: Review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements which have subsequently changed; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.

Under PRA, an agency may not conduct or sponsor, and a person is not required to respond to, an information collection request unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations, including its regulations implementing TSCA section 8(d) at 40 CFR part 716, are listed in the table in 40 CFR part 9 and included on the related collection instrument. This listing of the OMB control numbers and their subsequent codification in the CFR satisfies the display requirements of PRA and OMB's implementing regulations at 5 CFR part 1320.

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. 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 although the rule is subject to the APA, the Agency has invoked the “good cause” exemption under 5 U.S.C. 553(b)(3)(B), therefore it is not subject to the notice and comment requirement.

Pursuant to Title II of the Unfunded Mandates Reform Act, 2 U.S.C. 1531-1538, EPA has determined that this final rule does not contain 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 1 year. In addition, EPA has determined that this final rule will not significantly or uniquely affect small governments. Accordingly, the final rule is not subject to the requirements of UMRA sections 202, 203, 204, or 205.

Under Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), EPA has determined that this final rule does not have federalism implications because 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 the Executive Order. The rule establishes reporting requirements that apply to manufacturers (including importers) of a category of cadmium and cadmium compounds. The requirements of this final rule are not expected to apply to States and localities and would not affect State and local governments.

This action will not have tribal implications as specified in Executive Order 13175, entitled “Consultation and Coordination With Indian Tribal Governments” (65 FR 67249, November 9, 2000). EPA has determined that this final rule will not have tribal implications because it will not have substantial direct effects on tribal governments, on the relationship between the Federal Government and the Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified in the Executive Order. EPA has no information to indicate that any tribal government manufactures or imports the chemical substances covered by this action.

This action is not subject to Executive Order 13045, entitled “Protection of Children From Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because this action is not an economically significant regulatory action as defined by Executive Order 12866. However, cadmium and cadmium compounds are used in toys that are intended for use by children, and thus presents a disproportionate risk to children. The agency adequately considered children's health issues during rule development.

This action is not a “significant energy action” as defined in Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply Distribution” (66 FR 28355, May 22, 2001), because this action is not an economically significant regulatory action as defined by Executive Order 12866, and it is not likely to have a significant adverse effect on the supply, distribution, or use of energy.

Because this action will not involve any technical standards, section 12(d) of the National Technology Transfer and Advancement Act, 15 U.S.C. 272 note, does not apply to this action.

This action does not entail special considerations of environmental justice related issues as delineated by Executive Order 12898, entitled “Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994). This action is expected to have a positive impact on children in low-income and minority communities by increasing the amount of cadmium health and safety data available to EPA and consumers.

Pursuant to the Congressional Review Act, 5 U.S.C. 801 et seq., 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 . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Therefore, 40 CFR chapter I is amended as follows: