The Farm Credit Administration adopted a final rule that amends its liquidity regulation to strengthen liquidity risk management at Farm Credit System (System) banks, improve the quality of assets in their liquidity reserves, and bolster the ability of System banks to fund their obligation and continue operations during times of economic, financial or market adversity. In accordance with 12 U.S.C. 2252, the effective date of the final rule is 30 days from the date of publication in the Federal Register during which either or both Houses of Congress are in session. Based on the records of the sessions of Congress, the effective date of the regulations is June 12, 2013.

Prior to the enactment of the Housing and Economic Recovery Act of 2008 (HERA), the Federal Housing Enterprises Financial Safety and Soundness Act of 1992 (Safety and Soundness Act) provided the Secretary of the U.S. Department of Housing and Urban Development (HUD) with specific authority to establish, monitor, and enforce housing goals for mortgages purchased by Fannie Mae and Freddie Mac (collectively, the Enterprises). In addition, section 309(m) and (n) of the Federal National Mortgage Association Charter Act and section 307(e) and (f) of the Federal Home Loan Mortgage Corporation Act (collectively, Charter Acts) required that each Enterprise submit information on its housing activities to the Secretary of HUD, the Committee on Financial Services of the House of Representatives, and the Committee on Banking, Housing and Urban Affairs of the Senate.1 See 12 U.S.C. 1723a(m) and (n); 12 U.S.C. 1456(e) and (f).

The Safety and Soundness Act, prior to the HERA amendments, authorized HUD to initiate cease and desist proceedings and impose civil money penalties against an Enterprise for failure to submit or comply with a housing plan or failure to submit information on its housing activities. HUD issued regulations implementing its enforcement authority against the Enterprises for these violations. See 24 CFR part 81, Subpart G.

HERA amended the Safety and Soundness Act in 2008 to create FHFA as an independent agency of the federal government and, among other things, transferred the responsibility to establish, monitor and enforce the housing goals for the Enterprises from HUD to FHFA, and required that each Enterprise submit information on its housing activities to the Director of FHFA instead of to the Secretary of HUD. See Public Law 110-289, 122 Stat. 2654 (2008), codified at 12 U.S.C. 4501 et seq. The Safety and Soundness Act, as amended, requires the Director of FHFA to establish new annual housing goals for mortgages purchased by the Enterprises, effective for 2010 and beyond. FHFA reviews mortgage purchase data provided by each Enterprise in its Annual Housing Activities Report and other mortgage reports, as well as other available data, and determines whether the Enterprise has met the housing goals.

Enterprise compliance with the housing goals is enforced under section 1336 of the Safety and Soundness Act, which provides that if an Enterprise fails to meet a housing goal determined by the Director to be feasible, the Director may, in his or her discretion, require the Enterprise to submit a housing plan describing the specific actions the Enterprise will take to achieve the goal. See 12 U.S.C. 4566.

Section 1336 further provides that if an Enterprise fails to submit an acceptable housing plan or fails to comply with the plan, the Director may initiate cease and desist proceedings or impose civil money penalties against the Enterprise in accordance with sections 1341 and 1345, respectively, of the Safety and Soundness Act, exercise other appropriate enforcement authority, or seek other appropriate actions. See 12 U.S.C. 4566(c)(1) and (c)(7), 4581, 4585. In addition, sections 1341 and 1345 provide that the Director may initiate cease and desist proceedings or impose civil money penalties, respectively, if an Enterprise fails to submit information on its housing activities. Id. Sections 1341 to 1348 of the Safety and Soundness Act set forth the grounds and procedures for the enforcement actions. FHFA's RPP does not currently address enforcement proceedings for these violations. See 12 CFR part 1209.

Section 10C(a) of the Federal Home Loan Bank Act (Bank Act), as amended by HERA (12 U.S.C. 1430c(a)), requires the Director of FHFA to establish housing goals with respect to the purchase of mortgages, if any, by the Banks. Section 10C(a) further states that the goals shall be consistent with the goals established for the Enterprises under sections 1331 through 1334 of the Safety and Soundness Act, taking into consideration the unique mission and ownership structure of the Banks. Section 10C(d) provides that the monitoring and enforcement requirements of section 1336 of the Safety and Soundness Act shall apply to the Banks in the same manner and to the same extent as they apply to the Enterprises. Thus, in accordance with section 1336, if a Bank fails to submit or follow an acceptable housing plan, the Director may initiate cease and desist proceedings or impose civil money penalties against the Bank.

FHFA's Bank housing goals regulation, which implements the statutory housing goals requirements, includes housing plan provisions similar to those in FHFA's Enterprise housing goals regulation, but like the Enterprise housing goals regulation, does not specifically address enforcement actions for failure to submit or follow a housing plan. See 12 CFR part 1281.

On September 6, 2008, the Director of FHFA appointed FHFA as conservator of the Enterprises to maintain the Enterprises in a safe and sound financial condition and to help assure performance of their public mission. The Enterprises remain under conservatorship at this time.

To provide clarity on the rules of practice and procedure that would apply should FHFA initiate enforcement actions under sections 1341 to 1348 of the Safety and Soundness Act, FHFA published a proposed amendment to § 1209.1(c) of the RPP in the Federal Register. See 77 FR 72247 (Dec. 5, 2012). The proposed amendment provided that the rules of practice and procedure for hearings on the record in subpart C therein would apply to any cease and desist or civil money penalty proceedings brought against Fannie Mae, Freddie Mac, or the Banks for failure to submit or follow a housing plan or failure of an Enterprise to submit information on its housing activities, except where such rules are inconsistent with related statutory provisions, in which case the statutory provisions would apply. FHFA noted that the hearing procedures in the Safety and Soundness Act for adjudicating these actions are almost indistinguishable from the statutory procedures for adjudicating other enforcement actions against the Enterprises, the Banks and their entity-affiliated parties under sections 1371 to 1379D. See 12 U.S.C. 4631-4641. Thus, the formal hearing procedures set forth in Subpart C of the RPP are well suited to govern enforcement proceedings under sections 1341 to 1348. FHFA also noted that amending § 1209.1(c) of the RPP would be a simpler and more efficient approach than making conforming amendments to each of the affected sections of the RPP.

FHFA received two comments on the proposed amendment. The commenters were an individual and the Mortgage Partnership Finance Program's Governance Committee of the Banks. Neither comment was applicable to the proposed amendment.

For the reasons discussed in the proposed rulemaking and the lack of opposing comments, FHFA is adopting as final the proposed amendment to § 1209.1(c) of the RPP with no changes.

Section 1313(f) of the Safety and Soundness Act, as amended by HERA, requires the Director, when promulgating regulations relating to the Banks, to consider the differences between the Banks and the Enterprises with respect to the Banks': Cooperative ownership structure; mission of providing liquidity to members; affordable housing and community development mission; capital structure; joint and several liability; and any other differences the Director considers appropriate. See 12 U.S.C. 4513(f). In preparing the proposed rule, the Director considered the differences between the Banks and the Enterprises as they relate to the above factors, and determined that the Banks should not be treated differently from the Enterprises. FHFA requested comment on whether the Banks should be treated differently, particularly as section 10C(d) of the Bank Act provides that the monitoring and enforcement requirements of section 1336 of the Safety and Soundness Act shall apply to the Banks in the same manner and to the same extent as they apply to the Enterprises. FHFA did not receive any comments responding to that request. Accordingly, no changes were made to the final rule as it relates to the Banks.

The final rule does not contain any information collection requirement that requires the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.). Therefore, FHFA has not submitted any materials to OMB for review.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires that a regulation that has a significant economic impact on a substantial number of small entities, small businesses, or small organizations must include an initial regulatory flexibility analysis describing the regulation's impact on small entities. Such an analysis need not be undertaken if the agency has certified that the regulation will not have a significant economic impact on a substantial number of small entities. 5 U.S.C. 605(b). FHFA has considered the impact of the final rule under the Regulatory Flexibility Act.

The General Counsel of FHFA certifies that the final rule is not likely to have a significant economic impact on a substantial number of small entities because the regulation is applicable only to the Enterprises and the Banks, which are not small entities for purposes of the Regulatory Flexibility Act.

For the reasons stated in the SUPPLEMENTARY INFORMATION, the Federal Housing Finance Agency amends part 1209, Subchapter A, Chapter XII of title 12 of the Code of Federal Regulations as follows:

In 1979, the FAA took action to amend VOR Federal airways V-55 (44 FR 43714, July 26, 1979) and V-169 (44 FR 24543, April 26, 1979) by adding airway segments that extended the airways through the Devils Lake East and Devils Lake West Military Operations Areas (MOAs). The amendments extended V-55 westward by adding an airway segment from Grand Forks, ND, to Bismarck, ND, through the existing Devils Lake East MOA and extended V-169 northward by adding an airway segment from Bismarck, ND, to Devils Lake, ND, through the Devils Lake West MOA. At that time, the Devils Lake East MOA existed from 3,500 feet mean sea level (MSL) to 10,000 feet MSL and the Devils Lake West MOA existed from 4,000 feet MSL to 10,000 feet MSL. As part of the amendment actions to V-55 and V-169, the airway descriptions excluded the airspace contained within the associated MOA lateral boundary and altitudes from the affected airway.

In 1980, the FAA circularized a proposal to change the boundary between the Devils Lake East and Devils Lake West MOAs and to raise the ceiling of the Devils Lake East MOA from 10,000 feet MSL to a ceiling of to, but not including, flight level (FL) 180. Within the proposed Devils Lake East MOA, V-55 would be available for non-participating aircraft either at 11,000 feet and above during low level intercept training (3,500 feet MSL to 10,000 feet MSL) or at 9,000 feet MSL and below during Basic Fighter Maneuvers (BFM) training (10,000 feet MSL and above) being conducted by the military. In 1981, the proposed action was approved and the MOAs amended accordingly; unfortunately, no action was taken with respect to the existing exclusionary language contained in the V-55 description under Part 71 when the Devils Lake East MOA was raised.

In 1987, the FAA circularized a similar proposal to raise the ceiling of the Devils Lake West MOA from 10,000 feet MSL to a ceiling of to, but not including, FL 180. The proposed action was approved in the same year and the MOA ceiling was amended accordingly. Again, no action was taken with respect to the existing exclusionary language contained in the V-169 description under Part 71 when the Devils Lake West MOA ceiling was raised.

The FAA notes there are numerous MOAs throughout the National Airspace System (NAS) that have VOR Federal airways charted through them, with no exclusionary language contained in those airway descriptions. In fact, the Devils Lake East MOA has three VOR Federal airways that extend through it, but only V-55 contains exclusionary language relative to the MOA. It is standard procedure for air traffic control (ATC) to re-route instrument flight rules (IFR) aircraft operating on Federal airways when the airway lies within an active MOA and IFR separation from military activity in the MOA cannot be provided by ATC. The guidance describing this procedure is published in FAA Order 7110.65, Air Traffic Control, and the Aeronautical Information Manual for controller and pilot awareness, respectively. Additionally, although pilots operating under visual flight rules (VFR) should exercise extreme caution while flying within a MOA when military activity is being conducted, MOAs are not restrictive to VFR aircraft, which opt to fly the same routing as a VOR Federal airway, at VFR altitudes, through an active MOA. Removing the SUA exclusionary language contained in the V-55 and V-169 legal descriptions, which is redundant to existing ATC procedures does not affect the operational use or services provided by ATC to aircraft operating on the airways.

Accordingly, since this amendment is administrative in nature, having no impact to the operational use or ATC services provided to pilots flying on V-55 and V-169, notice and public procedures under Title 5 U.S.C. 553(b) are unnecessary.

The FAA amends Title 14, Code of Federal Regulations part 71 by amending the legal descriptions of VOR Federal airways V-55 and V-169 in the vicinity of Devils Lake, ND. Specifically, the FAA amends the V-55 description by removing the exclusionary language associated with the Devils Lake East MOA and amends the V-169 description by removing the exclusionary language associated with the Devils Lake West MOA.

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 airways 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 only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does 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 existing VOR Federal airways 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:

On May 21, 2013, the FAA published a final rule in the Federal Register establishing five RNAV routes in the Washington, DC area (78 FR 29615). Subsequent to publication, it was determined that the name of the MORTY, MD WP (which is common to the legal descriptions of RNAV routes T-291 and T-295) needs to be changed due to its proximity to a similar sounding and spelled fix, MORTO. Potential safety concerns were identified due to the possibility for confusion of the points in radio communications and onboard Flight Management System data entry. To resolve this concern, the FAA is changing the name “MORTY, MD” to “BAABS, MD” in the descriptions of T-291 and T-295. This is a name change only. The latitude/longitude coordinates remain the same.

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 routes listed in this document will be published subsequently in the Order.

Accordingly, pursuant to the authority delegated to me, the name “MORTY, MD WP” as published in the Federal Register on May 21, 2013 (78 FR 29615; FR Doc. 2013-11969) for RNAV routes T-291 and T-295, is corrected under the descriptions as follows:

On October 15, 2012, the FAA published in the Federal Register a notice of proposed rulemaking (NPRM) to modify V-537 in Georgia (77 FR 62468). Interested parties were invited to participate in this rulemaking effort by submitting written comments on this proposal to the FAA. No comments were received.

Subsequently, a flight inspection was conducted to evaluate the usability of the proposed amended portion of V-537. That flight inspection found a portion of the originally proposed route amendment to be unsatisfactory. Specifically, a radial from the Macon, GA, VORTAC that had been planned to form an intersection along the route between the Greenville, FL, VORTAC and the Macon, GA, VORTAC, did not pass the expanded service volume validation. After considering other alternatives, the FAA opted to propose terminating V-537 at the Greenville VORTAC and eliminate the segment between Greenville and Macon. The FAA issued a supplemental NPRM (SNPRM) (78 FR 21856, April 12, 2013) to reopen the comment period and solicit comments on the proposed further modification of V-537. No comments were received in response the SNPRM.

The FAA is amending Title 14, Code of Federal Regulations (14 CFR) part 71 to modify VOR Federal airway V-537 due to the scheduled decommissioning of the Moultrie, GA, VOR/DME, which currently forms a point along the route. This action modifies V-537 by eliminating the route segments between the Greenville, FL, VORTAC and the Macon, GA, VORTAC. The modified V-537 extends between Palm Beach, FL, and Greenville, FL.

VOR Federal airways are published in paragraph 6010(a) of FAA Order 7400.9W signed 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 published 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 only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does 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 modifies a VOR Federal airway to enhance the efficiency of the National Airspace System in the southeast United States. Except for editorial changes, this rulemaking is the same as published in the SNPRM.

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

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

The regulatory amendments made by this rule are designed to provide greater flexibility in the design, construction, and management of Section 202/811 mixed-finance developments, to increase such development. The Section 202/811 mixed-finance program, established by interim and final rules issued in 2003 and 2005,1 allows for the participation of the private developer community, leveraging their capital and expertise, to create attractive and affordable supportive housing developments for the elderly or persons with disabilities. In light of the current housing market, with limited private financing for the development of supportive housing, this rule streamlines requirements pertaining to mixed-finance developments to attract private capital for the development of mixed-finance housing. This rule allows for more flexibility in such areas as the drawdown of capital advance funds and noncapital advance funds and removes certain restrictions relating to noncapital advance funds. In addition, this rule would update certain regulations governing all Section 202 and Section 811 developments, which have not been updated since 2005, to conform to changes in law, policy, and practices that affect these developments.

This final rule updates the regulations governing mixed-finance developments for the Section 202 and Section 811 programs. This rule amends several definitions used in the mixed-finance development program, based on changes to these terms made by the Frank Melville Supportive Housing Investment Act of 2010 and the Section 202 Supportive Housing for the Elderly Act of 2010. These changes lessen restrictions with respect to who can be an owner. In addition, this rule removes the restriction on using HUD funds for certain amenities, exempts contracts for sale of land between owner and sponsor from conflict of interest provisions, clarifies what constitutes substantial rehabilitation, requires smoke detectors and alarm devices be installed in any dwelling or facility bedroom or other primary sleeping area, extends the duration of fund reservations for capital advances, provides that HUD's requirements applicable to capital advance units are not applicable to non-202/811 supported units in the project, permits mixed-finance developers to use low-income housing tax credits (LIHTCs) more effectively, permits noncapital advance funds to be disbursed before the drawdown of capital advance funds, and permits the use of funds for paying off bridge or construction financing or repaying or collateralizing bonds.

The regulations established by this final rule are limited in applicability to those Section 202 or Section 811 projects that apply as mixed-finance (Section 202/811 mixed finance projects). Section 202/811 mixed-finance projects are those with private funding to supplement Federal funding. The only new requirement established by this final rule is a requirement that owners provide a smoke detector and alarm in every bedroom or primary sleeping area. Though this requirement is new to the program regulations, the requirement is supportive of the R2-R4 multifamily standards in the International Building Code, the International Residential Code, the International Existing Building Code, and the International Property Maintenance Code, which apply in the vast majority of jurisdictions in the country through state or local adoption. Requiring smoke detectors is a requirement in most local code, and fire detectors are generally required for property insurance. Given the widespread requirement for smoke detectors, whether as a matter of state or local codes or for property insurance, the inclusion of such requirement in this regulation places no additional burden on any developer or owner complying with state or local codes. Additionally, the rule does not dictate a specific technology or product.

The fact that smoke and fire detection equipment generally save lives and protect property in a cost effective way is well supported in the literatures.2 There may be some benefits to tenants and communities with existing projects if the improved clarity from HUD enables a dispute over smoke detector installation or maintenance to be resolved more quickly.

The primary focus of this rule is to expand flexibility in the program by removing previous prohibitions on amenities within Section 202 and Section 811 developments, but not requiring owners to provide such amenities. The amenities are those that are fairly standard in today's apartments and will benefit the residents of program units and make HUD units more attractive and capable of attracting and retaining tenants.

The final rule also removes the previous prohibition on healthcare facilities in mixed-finance Section 202 developments, but not within Section 811 developments, for the reasons discussed later in this preamble. Under the final rule, HUD now permits healthcare facilities in mixed-finance Section 202 developments so long as HUD does not finance the facilities, and the use of the facilities must be voluntary for the residents of the projects.

The removal of the previous prohibitions on amenities and healthcare facilities makes it difficult to predict their impact on future Section 202 and 811 units, as the programs together produce only a few hundred developments a year (193 in 2008, 170 in 2009, and 143 in 2010), the overall economic impact from these potentially small changes in development and unit configuration is expected to be small.

A more detailed discussion of the costs and benefits of this rule is provided in section VI of this preamble.

The Section 202 and Section 811 programs were established to allow very low-income elderly persons and persons with disabilities the opportunity to live with dignity by providing affordable rental housing offering a range of supportive services to meet the needs of these populations. The American Homeownership and Economic Opportunity Act of 2000 (Pub. L. 106-569, 114 Stat. 2944, approved December 27, 2000) (AHEO Act) amended the authorizing statutes for the Section 202 program (Section 202 of the Housing Act of 1959 (12 U.S.C. 1701q)) and the Section 811 program (Section 811 of the Cranston-Gonzalez National Affordable Housing Act of 1990 (42 U.S.C. 8013)) to allow for the participation of for-profit limited partnerships in the ownership of Section 202 and Section 811 supportive housing, which helped facilitate the use of low-income housing tax credits and mixed-finance methods to infuse private capital into Section 202 and Section 811 developments. HUD's regulations governing Section 202/811 mixed-finance development are found in 24 CFR part 891, subpart F. The Section 202 Supportive Housing for the Elderly Act of 2010 (Pub. L. 111-372) (Section 202 Act of 2010) and the Frank Melville Supportive Housing Investment Act of 2010 (Pub. L. 111-374) (Melville Act) were both signed into law on January 4, 2011 (collectively, the Acts), and amended the authorizing statutes for Section 202 and Section 811, respectively.

On March 28, 2012 (77 FR 18723), HUD published a proposed rule primarily to streamline the requirements for mixed-finance Section 202 and Section 811 developments, and provide more flexibility for program participants. Current economic conditions have reduced the availability of private financing for the development of supportive housing. To attract needed private capital, HUD determined that amendments to the Section 202 and Section 811 program regulations were necessary to further streamline the mixed-finance development process for Section 202 and 811 housing. While the existing regulations applicable to mixed-finance developments have facilitated the creation of approximately 1,017 mixed-finance units, they also, in certain circumstances, limit project sponsors from accessing private sector capital and expertise. The changes proposed in March 2012, as summarized below, and made final by this rule, provide mixed-finance owners with more options, better facilitate the use of low-income housing tax credits, and attract other private funding, and, thereby, promote the construction of supportive housing developments that include additional, non-Section 202/811 supported units for the elderly and persons with disabilities.

The Section 202 Act of 2010 and the Melville Act amended the authorizing statutes for Section 202 and Section 811, respectively, and made important reforms to the Section 202 and Section 811 programs. While the majority of the reforms made by these Acts do not directly affect the Section 202/811 mixed-finance development program, HUD is taking the opportunity to update the definitions of “private nonprofit organizations” to conform to the Acts, as these definitions directly impact the mixed-finance program. The Section 202 Act of 2010 and the Melville Act provide a much-needed foundation for practical improvements to the Section 202 and Section 811 programs.3 The regulatory amendments in this rule build upon the Acts from the 111th Congress to further modernize the operation of Section 202 and Section 811 in the mixed-finance context.

The March 28, 2012, rule proposed to amend both the general section of regulations governing the Section 202 and Section 811 programs, and the sections in part 891 specifically governing the mixed-finance program. Key changes to the program regulations proposed by the March 28, 2012, rule included the following:

• Establishing, in the case of a nonprofit organization sponsoring multiple developments, the criteria for transferring the responsibilities of a single-entity nonprofit owner of an individual development to the governing board of the sponsor that is the sponsoring organization of multiple developments;

• Revising, consistent with the Section 202 Act of 2010, the definition of “private nonprofit organization” to include for-profit limited partnerships of which the sole general partner is a for-profit corporation or a limited liability company that is wholly owned and controlled by one or more nonprofit organizations;

• Requiring that a corporation be “owned and controlled” by a nonprofit organization in the definition of “private nonprofit organization,” consistent with the Melville Act's removal of the term “wholly owned” from the definition;

• Allowing an owner or sponsor of a Section 202 development to be an “instrumentality of a public body”;

• Including, as a qualification, an owner be a single-asset entity, and replacing the term “single-purpose” with “single-asset,” defined as an entity in which the mortgaged property is the only asset of the owner and has no more than one owner;

• Defining “substantial rehabilitation” as improvements to a property that is in a deteriorated or substandard condition that endangers the health, safety, or well-being of the residents, but would not include cosmetic improvements and must meet certain criteria;

• Requiring smoke detectors and alarm devices be installed in any dwelling or facility bedroom or other primary sleeping area;

• Providing that restrictions on prohibited facilities in Section 202 mixed-finance developments only apply to the capital advance-funded portion, and not to the entire development;

• Exempting, from the conflict of interest provisions, contracts for the sale of land between an owner and the sponsor or the sponsor's nonprofit affiliate;

• Providing that the requirements of paragraph (b) of § 891.130 regarding identity of interest do not apply in the mixed-finance context, while maintaining the applicability of the conflict of interest provisions in paragraph (a) of § 891.130;

• Extending the duration of availability of fund reservations for capital advances to 24 months in all cases, with the option of extending this period to 36 months;

• Providing that requirements applicable to capital advance units are not applicable to non-202/811 supported units in the project, and clarifying that the transfer of physical or financial assets of a Section 202 or Section 811 development is not permitted unless HUD determines that the transfer is part of a transaction that will ensure “the continued operation of the capital advance units” for at least 40 years in a manner that will provide low-income housing for the elderly or persons with disabilities;

• Permitting noncapital advance funds to be disbursed before the drawdown of capital advance funds to increase the developer's flexibility in financing the project; and

• Permitting the use of funds for paying off bridge or construction financing or repaying or collateralizing bonds.

The following changes were made to the proposed rule at this final rule stage:

• Removal of the definitions of “substantial rehabilitation” and “repairs, renovations, and improvements”, which also means the removal of the $6500 threshold and the minimum useful life of 55 years;

• Re-adding the definition of “rehabilitation” that was originally in part 891, and adding that an improvement of an existing structure requires 15 percent or more of the estimated development cost to rehabilitate the project for a useful life of 40 years. The useful life period commences upon execution of the capital advance agreement.

• Allowing as eligible units two-bedroom resident units, so long as a portion of the units are financed by other sources. Resident units may be two-bedroom units if the square footage in excess of the one-bedroom size limits is treated as excess amenities.

This final rule follows publication of the March 28, 2012, proposed rule and takes into consideration public comments received on that proposed rule. The public comment period closed on May 29, 2012. HUD received five public comments (one comment submitted on behalf of multiple organizations) in response to the proposed rule. Comments were submitted by a housing corporation, a housing finance agency, nonprofit organizations, and an association of aging services organization, an affordable housing management organization, a community development support organization, and private individuals. None of the commenters opposed the rule. Overall the commenters were supportive of the changes proposed by the March 28, 2012, rule.

One commenter welcomed HUD to make any other changes that would make easier the process of creating low-income housing for seniors and persons with disabilities, as the need for such housing grows rapidly. Another commenter stated that the rule brought the requirements of the Section 202 and 811 programs into greater conformance with other programs, which would facilitate coordination among programs.

Another commenter stated that the most significant of the changes from the proposed rule were the revisions relating to the drawdown of capital grant funds in mixed-finance situations. The commenter said that greater flexibility in the scheduling of drawdown of noncapital advance funds would be very helpful. The commenter also stated that the ability to apply Section 202 capital advance funds to repay bridge financing would solve a serious problem with the existing regulations, which the commenter stated conflicted with requirements of the Internal Revenue Service. The commenter stated that the existing regulations required virtually every mixed-finance project utilizing LIHTC equity to apply for and obtain a HUD waiver in order to utilize tax-exempt bond proceeds in the manner required by the Internal Revenue Code. The commenter stated that the proposed change would save substantial time and expense, and reduce uncertainty in the development process.

Another commenter supported the proposed change to the funding reservation deadline, stating that HUD recognized the complexity of assembling all the resources needed to construct a Section 202 or Section 811 project, which makes it very difficult to meet the current 18-month funding reservation deadline, and thus resulted in a very high frequency of requests to HUD for time extensions. The commenter explained that creating and processing extension requests is not a good use of time for either developer staff or HUD staff, and the extension of the basic term to 24 months (with the possibility of extensions to 36 months) is much more realistic.

Another commenter praised the removal of the ban on individual unit balconies and decks, trash compactors, washers, and dryers in units that are funded with a HUD capital grant. This commenter stated that HUD recognized that in today's market these amenities cannot reasonably be regarded as excessive, and instead are essential to assure long-term marketability and economic viability of these properties.

However, the commenters, although supportive of the changes, did raise a few issues about specific amendments offered by the March 2012 rule, and these issues and HUD's responses follow.

Comment: Conflict of interest. Two comments addressed the conflict of interest changes under 24 CFR 891.130. One commenter stated that if a sponsoring organization of multiple developments is now able to assume responsibilities for financial compliance and administrative responsibilities for the single-entity, nonprofit owner, the sponsor should also be able to serve as property manager for the project. This commenter said that this kind of situation should not be considered a conflict of interest under § 891.130, and should not be subject to the limitation that no more than two persons salaried by the sponsor or management affiliate thereof serve as nonvoting directors. The commenter explained that effective property management is the key to a compliant project, and a sponsor with multiple projects needs the ability to serve in this capacity without restriction in order to manage its portfolio. This commenter stated that since HUD approves property management fees, there should be no concerns of undue financial benefit to the sponsor. This commenter asked how a sponsor can exercise the role envisioned by the Melville Act if the sponsor cannot have more than two nonvoting members on the owner board when it elects to manage its own Section 202 portfolio of properties.

Another commenter applauded HUD for the proposed amendment to § 891.130 to establish that the sale of land between related parties is not necessarily deemed to constitute a conflict of interest, stating that this change will be particularly helpful because very often the land for a new project is most efficiently obtained by purchasing excess real estate from an affiliated nonprofit entity.

HUD Response. The change to 24 CFR 891.205 allows HUD to determine the criteria for transferring the responsibilities of a single-entity, nonprofit owner of an individual development to the governing board of the sponsoring organization. The act of transferring responsibilities to the governing board of the sponsor does not require those board members to also replace or become board members of the owner entity. Therefore, property management responsibilities may be performed by the sponsor without adding more than two nonvoting members to the owner board of directors and causing a conflict of interest. As stated, the criteria for transferring responsibilities of an owner will be determined by HUD through subsequent guidance. HUD will consider allowing more than two persons salaried by the sponsor or management affiliate to serve as nonvoting directors on the owner's board of directors.

Comment: Definition of private nonprofit organization. Two commenters expressed concerns with the changes to the definition of “private nonprofit organization”. One commenter explained that according to the proposed rule, the Section 202 Act of 2010 changed the definition to allow for ownership of projects by limited partnerships of which the sole general partner is a for-profit corporation or a limited liability company that is wholly owned and controlled by one or more nonprofit organizations. This commenter further explained that the proposed rule states that the Melville Act did not extend the definition to include limited liability companies and, therefore, does not appear to provide for a limited liability company to be the general partner. This commenter stated that while the Melville Act did not explicitly extend this definition, neither did it prohibit liability companies from acting as the general partner of a limited partnership owner. This commenter pointed out that the intent of the Melville Act as well as these regulations is to facilitate use of LIHTCs, and no obvious purpose is served by distinguishing between the allowable ownership structures for Section 811 and Section 202 projects.

In addition, this commenter stated that by allowing use of a limited liability corporation (LLC), HUD would facilitate nonprofit corporations with experience in developing housing and providing supportive services to persons with disabilities to join with other nonprofit developers with experience in LIHTCs to cosponsor and develop such projects, without incorporating new nonprofit corporations to act as the general partner. The commenter stated that, in California, this would save significant time and cost that would otherwise be spent in securing tax exempt status for the new nonprofit corporation and recognition by the state of the eligibility of the new nonprofit sponsor to receive real estate tax exemptions for the proposed project. This commenter explained that eliminating this step would therefore assist such sponsors in meeting the stringent deadlines imposed by the California Tax Credit Allocation Committee for start of construction of projects that are allocated 9 percent tax credits. This commenter requested that HUD adopt the same language for Section 811 projects as for Section 202 projects in these regulations, to allow for use of a limited liability company or LLC that is wholly owned and controlled by one or more nonprofit organizations as the general partner in a mixed-finance development.

Another commenter stated that the preamble to the proposed rule creates potential ambiguity regarding the definition of “private nonprofit organization”. This commenter explained that the preamble stated: “An additional change made by the Section 202 Act of 2010 is that the definition will now include for-profit limited partnerships of which the sole general partner is a for-profit corporation or a limited liability company that is wholly owned and controlled by one or more nonprofit organizations.” The commenter found that it is possible to interpret this sentence as saying that any for-profit corporation (and not just a corporation controlled by nonprofit entities) can be the general partner of a mixed-finance owner. This commenter explained that while the regulation itself is clear on this point, it would be helpful if the preamble to the final rule eliminates the possible ambiguity.

HUD Response. The proposed rule incorporates the latest statutory changes to the Section 811 program. The Melville Act of 2010 did not add for-profit limited liability companies as an eligible general partner. A technical correction to the Melville Act is under HUD consideration.

With respect to the comment about the potential ambiguity of the definition of “nonprofit organization,” HUD agrees that additional clarity would be helpful. HUD clarifies that the additional change made by the Section 202 Act of 2010 means that the definition of “nonprofit organization” will now include for-profit limited partnerships, of which the sole general partner is a for-profit corporation or a limited liability company, and that are both wholly owned and controlled by one or more nonprofit organizations.

Comment: Definitions of repairs and substantial rehabilitation. One commenter stated that under HUD's rule, when funding both “repairs, replacements, and improvements” and “substantial rehabilitation,” the property is required to achieve a 55-year useful life, and that an exception to this standard is allowed when rehabilitation is limited to substantially replacing two or more major building components. The commenter stated that it did not understand the programmatic significance of designating rehabilitation as either “repairs, replacements and improvements” or “substantial rehabilitation.” The commenter stated that if there is no significance in terms of eligibility, financing terms and conditions, or useful life, the definition section could be simplified by eliminating these two definitions. The commenter suggested that the two definitions could be replaced by simply imposing a useful life requirement when rehabilitation of any amount is performed, with the proposed exception of the limited replacement of two or more major building components.

Another commenter found the definition of “substantial rehabilitation” to be very long, somewhat confusing, and inconsistent with the widely used and more streamlined definition contained in section 5.12 of the Multifamily Accelerated Processing (MAP) Guide. This commenter stated that in the Section 202 context, HUD has recently used the MAP Guide definition of substantial rehabilitation in Notice H2012-84 , relating to the refinancing of Section 202 direct loans. This commenter offered that another definition was not needed given that the term “substantial rehabilitation” is used only in the subparts of part 891, relating to the old Direct Loan program, which is no longer being funded. The commenter stated if a definition of “substantial rehabilitation” is needed for current Section 202/811 construction, then HUD should use the definition currently contained in the MAP Guide and apply the definition consistently throughout all of HUD's programs.

HUD Response. HUD has revised the final rule by eliminating the definitions of “substantial rehabilitation” and “repairs, renovations, and improvements.” Therefore, a $6500 threshold no longer applies. The definition of “rehabilitation” will remain in part 891 and will mirror the previous language, except that an improvement of an existing structure requires 15 percent or more of the estimated development cost to rehabilitate the project for a useful life of 40 years. HUD agrees with the commenters that 55 years was an over investment. HUD concluded that it was reasonable to tie the useful life to the term of the capital advance. See § 891.170, entitled “Repayment of capital advance.”

Comment: Minimum investment and useful life requirements. HUD specifically solicited public comment on the minimum investment of $6500 and the minimum useful life of 55 years under the definitions of “repairs, replacements and improvements” and “substantial rehabilitation” (77 FR 18725). Two commenters had concerns about these specific requirements. One commenter recommended reducing the 55-year useful life requirement to 40 years for both “repairs, replacements and improvements” and “substantial rehabilitation.” The commenter stated that while a 55-year useful life is a laudable goal, it does not conform to other common standards of useful life of residential rental property, such as the income tax code. The commenter also stated that a 55-year useful life standard creates incentives to over-invest in properties to drive up per-unit development costs to achieve the longer useful life.

Another commenter stated that if the MAP Guide definition is not adopted in the final rule, then the concept of rehabilitating “to a useful life of 55 years” is disproportionately high for a $6500 threshold. The commenter stated that any required useful life should not exceed the term of the capital advance. The commenter suggested that HUD should clarify the date at which the useful life period begins and state whether the “useful life” requirement pertains only to the $6500 per-dwelling-unit standard, or also applies to the 15 percent-of-estimated-replacement cost standard. Lastly, the commenter agreed that as suggested by the Federal Register notice, the long-standing $6500/unit minimum for “substantial rehabilitation” needed to be updated periodically for inflation.

HUD Response. For the reasons provided in the response to the preceding comment, HUD has removed the $6500 threshold and the useful life minimum of 55 years from the final rule.

Comment: Definition of single asset entity. One commenter suggested that HUD revise the definition of “single asset entity” to read: “Single-asset entity, for the purpose of this subpart, means an entity in which the mortgaged property is the only asset of the owner, and the entity is the only owner of the property.”

HUD Response. HUD accepts this comment and has revised the definition accordingly under § 891.105.

Comment: Health-related facilities. One commenter approved of the proposed change to § 891.813, stating that the change would allow, for mixed-finance project, non-202 funds to be used for health-related facilities, such as infirmaries and nursing stations. This commenter stated that this change is a helpful step, and furthers HUD's goal of assuring that Section 202 projects can serve frail seniors. This commenter requested that HUD recognize the needs of the market and of the clientele, as well as be in line with HUD's evolving policies, and urged HUD to be more open and allow Section 202 costs of construction to cover designs in accordance with “universal design” guidelines, to assure that seniors can continue to function comfortably in their homes as they age. In addition, the commenter stated that HUD should be more open to allowing two-bedroom units to be financed by the Section 202 program, to accommodate low-income frail residents who require live-in caretakers.

HUD Response. The most current Section 202 guidelines encourage the use of universal design and consider it as an eligible cost. Universal design is the design of the living environment to be usable by all people regardless of ability, without the need for adaptation or specialized design. Universal design recognizes the need for living spaces to be barrier-free and provide easy mobility and independence for people with a broad variety of physical needs. Universal design is distinct from Federal accessibility requirements under the Fair Housing Act, Section 504 of the Rehabilitation Act of 1973, and titles II and III of the Americans with Disabilities Act, as applicable. All applicable Federal accessibility requirements must be met in projects promoting universal design.

HUD will not allow two-bedroom units to be financed by the Section 202 program. However, as part of this final rule, HUD will allow two-bedroom resident units, so long as a portion of the units are financed by other sources. Under § 891.210, resident units may be two-bedroom units provided that the square footage in excess of the one-bedroom size limits are treated as excess amenities as specified in § 891.120.

The changes made to the program regulations governing Section 202/Section 811 mixed-finance developments are largely directed to expanding flexibility in the program. The only change in the final rule that represents a new requirement for program participants is that owners must provide a smoke detector and alarm in every bedroom or primary sleeping area. Though this constitutes a new requirement added to the program regulations, it is not a new requirement for the majority of owners because smoke detectors placed in every bedroom or primary sleeping area is already required by most local codes.5

Apart from establishing this requirement, the changes made by this final rule are directed to removing prohibitions and providing more flexibility to owners and investors. The rule removes some previous prohibitions on providing certain amenities within Section 202 and Section 811 developments. The final rule allows the program to fund units that contain dishwashers, trash compactors, washers and dryers, and units that have patios or balconies attached. The final rule also removes the previous prohibition on having healthcare facilities in mixed-finance Section 202 developments, but not in Section 811 developments. With respect to Section 811 developments, as stated in the proposed rule, “HUD recognizes the importance of maintaining the restrictions on prohibited facilities for Section 811 developments for both capital advance and non-capital advance portions of the project. HUD is committed to preventing the isolation of persons with disabilities that might occur should medical facilities be contained in Section 811 developments.” (See 77 FR 18725, third column.)

HUD's previous regulations had a blanket prohibition against medical facilities, as a safeguard against the institutionalization of the elderly and disabled populations. While, through this final rule, HUD removes the prohibition on certain amenities and having healthcare facilities in Section 202 developments, HUD does put in place of these prohibitions a requirement to include these amenities or healthcare facilities. Where healthcare facilities are located in Section 202 developments, use of the facilities must be voluntary for the residents of the projects. Consequently, removing the prohibition on these amenities and facilities is unlikely to increase costs to the program, especially since there is no requirement to provide these amenities or facilities. With respect to amenities, the amenities are those that are fairly standard in today's apartments and will benefit the residents of program units and make HUD units more capable of retaining tenants, thereby reducing vacancies.

While providing the amenities is not expected to increase program cost, HUD submits that one benefit may be that the wider range of allowable amenities may combat any discrimination against subsidized housing by reducing the potential for program-participating units and their occupants to be singled out as subsidized units within a mixed-finance development. The voluntary nature of these changes made by this final rule makes it difficult to predict their impact on future Section 202/811 mixed-finance units, as the programs together produce only a few hundred developments a year (193 in 2008, 170 in 2009, and 143 in 2010). The overall economic impact from these potentially only small changes in development and unit configuration is expected to be small.

The final rule also provides benefits from improving government processes. For example, extending the time of availability of capital advance funds from 18 to 24 months should limit the number of waivers HUD needs to process as developers regularly exceed the 18-month timeline. In 2010, HUD processed 49 such waivers in what is described as a time consuming, case specific process, which was 33 percent of the waivers the program office processed that year.

The remaining changes in the final rule are definitional and offer participants greater flexibility and clarity within the program at no obvious cost to the program or participants.

Executive Order 13563 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 rule, consistent with Executive Order 13563, lessens restrictions in the Section 202 and Section 811 programs, including the removal of some previous prohibitions on amenities and healthcare facilities, broadens participation through the expansion of the definition of “private nonprofit organization,” and streamlines and improves program operations to attract additional private capital and expertise from the private developer community. As provided in the discussion in section VI of this preamble, the regulatory changes provide significantly more flexibility to participants in the development of Sections 202/811 mixed-finance developments.

The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. In the mixed-finance context, this final rule amends HUD's Section 202 and 811 program regulations governing capital advances, for-profit limited partnerships, and mixed-finance development methods to facilitate the development and availability of housing for the elderly and persons with disabilities. These regulatory amendments do not impose any additional regulatory burdens on entities participating in these programs. As has been discussed in the preamble to this final rule, these amendments reduce regulatory burden and increase flexibility in mixed-financed developments in order to attract private capital and expertise to the construction of supportive housing for the elderly and persons with disabilities. These regulatory changes would also streamline the use of low-income tax credits, as well as the obtaining of funding from other sources. National, regional, and local developers utilize the mixed-finance program and will save time and gain efficiency from no longer having to request regulatory waivers.

Accordingly, the undersigned certifies that this final rule will not have a significant economic impact on a substantial number of small entities.

A Finding of No Significant Impact 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)). That finding remains applicable to this final rule and 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 20410-0500. Due to security measures at the HUD Headquarters building, please schedule an appointment to review the finding by calling the Regulations Division at 202-708-3055 (this is not a toll-free number).

Executive Order 13132 (entitled “Federalism”) prohibits an agency from publishing any rule that has federalism implications if the rule either: (1) Imposes substantial direct compliance costs on state and local governments and is not required by statute, or (2) the rule preempts state law, unless the agency meets the consultation and funding requirements of section 6 of the Executive Order. This rule will not have federalism implications and would 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 does not impose any Federal mandates on any state, local, or tribal governments, or on the private sector, within the meaning of UMRA.

The Catalogue of Federal Domestic Assistance Number for the principal Federal Housing Administration single-family mortgage insurance program is 14.117.

Accordingly, for the reasons discussed in the preamble, HUD amends 24 CFR part 891 as follows:

The Indian Gaming Regulatory Act (IGRA or the Act), Public Law 100-497, 25 U.S.C. 2701 et seq., was signed into law on October 17, 1988. The Act established the Commission and set out a comprehensive framework for the regulation of gaming on Indian lands. While the Act requires the Commission to “monitor class II gaming conducted on Indian lands on a continuing basis,” 25 U.S.C. 2706(b)(1), any Indian tribe which operates a Class II gaming facility and meets certain other conditions may petition the Commission for a certificate of self-regulation. 25 U.S.C. 2710(c). The Act authorizes the Commission to “promulgate such regulations and guidelines as it deems appropriate to implement” IGRA. 25 U.S.C. 2706(b)(10).

On April 4, 2013, the Commission published a final rule amending its regulations for the review and approval of petitions seeking the issuance of a certificate for tribal self-regulation of Class II gaming. 78 FR 20236, April 4, 2013. After publication, the Commission discovered that the deadline contained in 25 CFR 518.7(c)(5) for tribes to respond to the Office of Self Regulation's recommendation and report, and the deadline contained in 25 CFR 518.7(d) for the Commission to issue preliminary findings to said recommendation and report, could potentially fall on the same day, thus preventing the Commission from fully considering the tribal response before it has to issue its preliminary findings. Therefore, the Commission is revising its regulations to provide that its preliminary findings will be issued 45 days after receipt of the recommendation and report, so that the Commission has sufficient time to review and consider adequately a tribe's response to said recommendation and report. This revision is consistent with how the Commission envisioned tribes obtaining a certificate of self-regulation and ensures that all tribal submissions will be fully considered before the Commission issues a decision.

Additionally, the Commission has discovered that the final rule published on April 4, 2013, contained: An incorrect section heading in the part's table of contents; incorrectly referenced a specific section in one of its rules; and that the reference to IGRA contained in § 518.10(a) should read “25 U.S.C. 2710(b)(2)(C).” Therefore, the Commission is also revising its regulations to correct the table of contents, and to correct the referencing errors in § 518.8(b) and § 518.10(a).

Under the Administrative Procedure Act, a notice of proposed rulemaking is not required when an agency, for good cause, finds that notice and public comments are impracticable, unnecessary, or contrary to the public interest. Here, because this rule is not yet in effect and will not be so until September 1, 2013, and because the revisions herein are technical in nature and intended to correct inadvertent errors, the Commission is publishing a technical amendment.

This rule will not have a significant economic effect on a substantial number of small entities as defined by the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. Indian tribes are not considered to be small entities for purposes of the Regulatory Flexibility Act.

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule does not have an annual effect on the economy of $100 million or more. This rule will not cause a major increase in costs or prices for consumers, individual industries, federal, state, or local government agencies or geographic regions, and does not have a significant adverse effect on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

The Commission, as an independent regulatory agency, is exempt from compliance with the Unfunded Mandates Reform Act, 2 U.S.C. 1502(1); 2 U.S.C. 658(1).

In accordance with Executive Order 12630, the Commission has determined that this proposed rule does not have significant takings implications. A takings implication assessment is not required.

In accordance with Executive Order 12988, the Commission has determined that the rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Executive Order.

The Commission has determined that this rule does not constitute a major federal action significantly affecting the quality of the human environment and that no detailed statement is required pursuant to the National Environmental Policy Act of 1969, 42 U.S.C. 4321, et seq.

The information collection requirements contained in this rule were previously approved by the Office of Management and Budget as required by the Paperwork Reduction Act, 44 U.S.C. 3501, et seq., and assigned OMB Control Number 3141-0008. The OMB control number expires on October 31, 2013.

For the reasons set forth in the Preamble, the Commission is amending 25 CFR part 518 as follows:

The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.”

Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable. The Coast Guard did not receive necessary information from the event sponsors until recently. As a result, the Coast Guard does not have sufficient time to publish an NPRM and to receive public comments prior to the fireworks displays. Any delay in the effective date of this rule would be contrary to the public interest because immediate action is needed to minimize potential danger to the public during the fireworks displays.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this temporary rule effective less than 30 days after publication in the Federal Register. For the same reasons discussed in the preceding paragraph, waiting for a 30 day notice period to run would be impracticable and contrary to the public interest.

The legal basis for the rule is the Coast Guard's authority to establish regulated navigation areas and other limited access areas: 33 U.S.C. 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.

Multiple fireworks displays are planned for Fourth of July celebrations throughout the Captain of the Port Charleston Zone. The fireworks will explode over navigable waters of the United States. The Coast Guard is establishing two temporary safety zones for Fourth of July Fireworks Displays on navigable waters of the United States within the Captain of the Port Charleston Zone. The two safety zones will be enforced from 9 p.m. until 10:30 p.m. on July 4, 2013.

The purpose of the rule is to protect the public from the hazards associated with launching fireworks over navigable waters of the United States.

The first safety zone is in Murrells Inlet, South Carolina. The safety zone encompasses all waters within a 500 foot radius around Veterans Pier, from which the fireworks will be launched, located on the Atlantic Intracoastal Waterway.

The second safety zone is in North Myrtle Beach, South Carolina. The safety zone encompasses all waters within a 600 foot radius around Cherry Grove Pier, from which the fireworks will be launched, located on the Atlantic Ocean.

Persons and vessels are prohibited from entering, transiting through, anchoring in, or remaining within any of the safety zones unless authorized by the Captain of the Port Charleston or a designated representative. Persons and vessels desiring to enter, transit through, anchor in, or remain within any of the safety zones may contact the Captain of the Port Charleston via telephone at (843) 740-7050, or a designated representative via VHF radio on channel 16, to request authorization. If authorization to enter, transit through, anchor in, or remain within any of the safety zones is granted by the Captain of the Port Charleston or a designated representative, all persons and vessels receiving such authorization must comply with the instructions of the Captain of the Port Charleston or a designated representative. The Coast Guard will provide notice of the safety zones by Broadcast Notice to Mariners, Marine Safety Information Bulletins, and on-scene designated representatives.

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, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders. The economic impact of this rule is not significant for the following reasons: (1) Each safety zones will be enforced for a maximum of 1.5 hours; (2) vessel traffic in the areas is expected to be minimal during the enforcement periods; (3) although persons and vessels will not be able to enter, transit through, anchor in, or remain within any of the safety zones without authorization from the Captain of the Port Charleston or a designated representative, they may operate in the surrounding areas during the enforcement periods; (4) persons and vessels may still enter, transit through, anchor in, or remain within the safety zones if authorized by the Captain of the Port Charleston or a designated representative; and (5) the Coast Guard will provide advance notification of the safety zones to the local maritime community by Broadcast Notice to Mariners and Marine Safety Information Bulletins.

The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. 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 may affect the following entities, some of which may be small entities: the owners or operators of vessels intending to enter, transit through, anchor in, or remain within any of the safety zones described in this rule during the respective enforcement periods. For the reasons discussed in the Regulatory Planning and Review section above, this rule will not have a significant economic impact on a substantial number of small entities.

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 the 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 will not call for a 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 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. We have analyzed this rule under that Order and determined that this rule does not have implications for federalism.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

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 the 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 determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. This rule involves establishing two temporary safety zones that will be enforced for no more than 1.5 hours. An environmental analysis checklist and a categorical exclusion determination are available in the docket where indicated under ADDRESSES.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:

Section 175A of the Clean Air Act (CAA) contains four subsections (i.e., 175A(a)-(d)) pertaining to maintenance plans. Section 175A(a) establishes requirements for the maintenance plans associated with initial SIP redesignation requests. North Carolina previously addressed the 175A(a) requirements for the CO NAAQS and the State's redesignation requests and associated maintenance plans were ultimately approved by EPA for all three of North Carolina's CO areas as a result. See 59 FR 48399 and 60 FR 39258.

Section 175A(b) requires states to submit an update to the maintenance plan eight years following the original redesignation to attainment. For the section 175A(b) update, the state must outline methods for maintaining the pertinent NAAQS for ten years after the expiration of the ten-year period as referred to in subsection (a) (i.e., North Carolina's maintenance plan updates must outline methods for maintaining the CO NAAQS through 2015). NC DENR satisfied the requirements for the second maintenance plans for all of its CO maintenance areas, and EPA subsequently approved NC DENR's second maintenance plan for each of the State's CO maintenance areas. See 71 FR 14817, March 24, 2006. Although North Carolina has previously satisfied the requirements for the 175A(b) maintenance plan updates for all of its CO areas, the State has elected to convert these maintenance plans to limited maintenance plans.1 A summary of EPA's analysis for this revision is provided below.

Finally, with respect to the remaining sub-sections of section 175A, EPA notes that sub-section (c) does not apply to this rulemaking, given that EPA has previously redesignated the Charlotte, Raleigh/Durham, and Winston-Salem areas to attainment for CO. Section 175A(d), which includes the contingency provisions requirements associated with maintenance plans, is relevant to today's revision and is addressed in section A4, below.

EPA's interpretation of section 175A of the CAA, as it pertains to limited maintenance plans for CO, is contained in the October 6, 1995, Memorandum from Joseph W. Praise to the Air Branch Chiefs, Regions I-X, entitled “Limited Maintenance Plan Option for Nonclassifiable CO Nonattainment Areas.” See the docket for today's rulemaking for a copy of this memorandum. North Carolina addressed the five major elements of that policy, as follows:

The state is required to develop an attainment emissions inventory to identify a level of emissions in the area which is sufficient to attain the CO NAAQS. This inventory should be consistent with EPA's most recent guidance on emission inventories for nonattainment areas available at the time the SIP is developed and should include the emissions during the time period associated with the monitoring data showing attainment. It should be based on actual “typical CO season day” emissions for all source classifications (i.e., stationary point and area sources and nonroad and onroad mobile sources) for the attainment year. In its August 2, 2012, submittal, NC DENR provided a comprehensive CO emissions inventory for nonroad mobile, onroad mobile, point, and area sources for the Charlotte, Raleigh-Durham, and Winston-Salem CO Maintenance Areas.

NC DENR collected or developed the point source emissions inventory from stationary sources that have the potential to emit more than five tons per year of CO emissions from a single facility and are required to have an operating permit. The stationary area source inventory is estimated on a county level and consisted of those sources whose emissions are relatively small, but due to the large number of sources, the collective emissions could be significant. North Carolina estimated the stationary area source emissions by multiplying an emission factor by some known indicator of collective activity (such as fuel usage, number of households, or population). For on-road mobile source emissions, NC DENR used EPA's Motor Vehicle Emission Simulator (MOVES) model version 2010a (MOVES2010a), released in August 2010, for estimating vehicle emissions.

Nonroad mobile sources are pieces of equipment that can move but do not use roadways (e.g. lawn mowers, construction equipment, railroad locomotives, and aircraft). The emissions from this category are calculated at the county level using EPA's NONROAD2008s nonroad mobile model, with the exception of railroad locomotives and aircraft engines. The railroad locomotives and aircraft engines are estimated by taking an activity and multiplying by an emission factor.

Table 1 displays the 2010 attainment year emissions inventory as required for the limited maintenance plans. Appendix B of North Carolina's SIP submittal provides detailed discussions regarding the development of emissions for the four emission source classifications, and is provided in the docket for today's rulemaking.

In the October 6, 1995, Memorandum, EPA stated that the maintenance demonstration requirement is considered to be satisfied for nonclassifiable areas if the monitoring data shows that the area is meeting the air quality criteria for limited maintenance areas (i.e., 85 percent of the eight hour CO NAAQS, or 7.65 parts per million (ppm)). EPA determined in this same memorandum that there is no requirement to protect emissions over the maintenance period. Instead, EPA believes that if the area begins the maintenance period at, or below, 7.65 ppm (85 percent of the 8-hour CO NAAQS), the applicability of prevention of significant deterioration requirements, control measures already in the SIP, and other federal measures should provide adequate assurance of maintenance throughout the maintenance period. Monitoring data from 2008-2011 shows all three areas below the 8-hour CO NAAQS values. See Table 2 below. All monitoring levels are well below the 85 percent threshold of 7.65 ppm and therefore the State has satisfied the maintenance demonstration requirement for a limited maintenance plan for each of its CO maintenance areas.

Once an area has been redesignated, the state should continue to operate an appropriate air quality monitoring network, in accordance with 40 CFR part 58, to verify the attainment status of the area. This is particularly important for areas using a limited maintenance plan because there will be no cap on emissions. In accordance with 40 CFR part 58, NC DENR commits to continue monitoring CO at the existing regulatory monitors in the three CO maintenance areas to ensure that CO concentrations remain well below the 7.65 ppm threshold for limited maintenance plans. The State's monitoring plan for 2012 can be found at the following site: http://www.ncair.org/monitor/monitoring_plan/new_plan/2012_NCDAQ_Network_Plan.pdf. EPA has determined that the State has satisfied the monitoring network and verification of continued attainment requirements for the limited maintenance plans.

Section 175A(d) of the CAA requires that a maintenance plan include contingency provisions, as necessary, to promptly correct any violation of the NAAQS that occurs after redesignation of an area. The October 6, 1995, Memorandum further requires that the contingency provisions identify the measures to be adopted, a schedule and procedure for adoption and implementation, and a specific time limit for action by the state.

In its August 2, 2012, submittal, NC DENR committed to the same contingency measures that EPA previously approved on March 24, 2006 (71 FR 14817) and a subsequent clarification on June 19, 2007 (72 FR 33692). The State pre-adopted an oxygenated fuels program with minimum oxygen content by weight of 2.7 for Charlotte, Raleigh-Durham, and Winston-Salem maintenance areas as a contingency measure for the CO maintenance plan. The oxygenated fuel program is required under the CAA for the Raleigh-Durham and Winston-Salem areas as a required control measure prior to the attainment redesignation. Charlotte was placed under the oxygenated fuel program for effective area-wide CO emission reduction and to ease State implementation efforts. The contingency measure triggering date will be no more than 60 days after an ambient air quality violation is monitored. NC DENR will commence an analysis and regulation development process during this time. The State will consider the following control measures:

a. Amending the oxygenated fuels program by adopting oxygenate content of 2.0 percent to 2.7 percent by weight, or activate of the 2.7 percent by eight pre-adopted contingency measure, or 2.7 percent to 3.1 percent by weight;

b. expanding coverage of oxygenated fuels to include counties where a strong commuting pattern into the core maintenance area exists;

c. alternative fuel vehicle programs to include compressed natural gas and electric vehicles; and,

d. employee commute options programs.

The transportation conformity rule of November 24, 1993 (58 FR 62188), and the general conformity rule of November 30, 1993 (58 FR 63214), apply to nonattainment areas and maintenance areas operating under the maintenance plans. Under either rule, one means of demonstrating conformity of federal actions is to indicate that expected emissions from planned actions are consistent with the emissions budget for the area.

EPA's October 6, 1995, Memorandum states that emissions budgets in limited maintenance plan areas may be treated as essentially not constraining for the length of the maintenance period because it is unreasonable to expect that such an area will experience so much growth in that period that a violation of the CO NAAQS would result. In other words, EPA concluded that, for these areas, emissions need not be capped for the maintenance period.

In accordance with the transportation conformity rule, approval of a limited maintenance plan only removes the requirement to conduct a regional emissions analysis as part of the conformity determination. The requirement to demonstrate conformity per the requirements in Table 1 of 40 CFR 93.109 still applies. Additionally, federally funded projects are still subject to project level transportation conformity analysis requirements. However, no regional modeling analysis would be required.

Transportation partners should note this approval of these limited maintenance plans in future transportation conformity determinations. Additionally, while the approvals of these limited maintenance plans waives the requirements for a regional emissions analysis for the CO NAAQS, as mentioned above, it does not waive other conformity requirements for the CO standard for the Charlotte, Raleigh-Durham and Winston-Salem areas, and it does not waive transportation conformity requirement for other pollutants/precursors for which these areas may be designated nonattainment or redesigned to attainment with a full maintenance plan.

On February 22, 2013 (78 FR 12267), EPA published a direct final rule approving North Carolina's August 2, 2012, SIP submission for a limited maintenance plan update for CO, showing continued attainment of the 8-hour CO NAAQS for the Charlotte, Raleigh/Durham and Winston-Salem Areas. EPA published an accompanying proposed approval in the event that comments were received such that the direct final rule needed to be withdrawn. Specifically, in the direct final rule, EPA stated that if adverse comments were received by March 25, 2013, the rule would be withdrawn and not take effect, but that the proposed rule would still remain in effect and that an additional public comment period would not be instituted if EPA could sufficiently address any comments received on the direct final rulemaking. On March 25, 2013, EPA received comments from a single commenter. The comments could be interpreted as adverse and, therefore, EPA withdrew the direct final rule. A summary of the comments received and EPA's response is provided below.

Comment: The commenter stated “were studies conducted to establish the criteria for labeling as a maintenance area? Is there something geographic and standard about this area.”

Response: This comment is outside of the scope of today's action. Nonetheless, EPA notes that the process to designate a maintenance area under the CO NAAQS involves an evaluation of specific criteria to determine whether an area is in compliance or out of compliance with the CO NAAQS. If an area is determined to be out of compliance, EPA then determines an appropriate boundary for the area and designates the area as a “nonattainment” area. The designation process for CO areas was completed in the early 1990's. The Charlotte, Raleigh/Durham and Winston-Salem Areas were all designated as nonattainment for the CO NAAQS. Once an area is designated nonattainment, an area can be redesignated to “attainment” (i.e., meaning that the area is in compliance of the NAAQS), if it meets the criteria of section 107(d)(3)(E) of the CAA. All three of the North Carolina areas were redesignated to “attainment” for the CO NAAQS and are thus considered “maintenance” areas. See 59 FR 48399 and 60 FR 39258.

Comment: The commenter questioned whether the emissions parameters are “constricting the water vapor potential” and whether the emissions tolerances are “excessive considering most dealerships are manufacturing cars that use alternative energies and have done so for approximately 10 years now[?]”

Response: The on-road mobile source emissions inventory in North Carolina's limited maintenance plans for the Charlotte, Raleigh/Durham and Winston-Salem Areas were developed according to EPA guidelines and with the MOVES emissions model. The MOVES model can be used to estimate exhaust and evaporative emissions as well as brake and tire wear emissions from all types of on-road vehicles. The MOVES model incorporates substantial new emissions test data and accounts for changes in vehicle technology and regulations as well as improved understanding of in-use emission levels and the factors that influence them. NC DENR appropriately utilized the MOVES model to estimate the on-road mobile source emissions for the limited maintenance plan for all applicable vehicles and technologies, for the Charlotte, Raleigh/Durham and Winston-Salem Areas.

EPA is approving the aforementioned changes to the State of North Carolina SIP, because they are consistent with the CAA, and EPA's policy related to limited maintenance plans.

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

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 19, 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. Parties with objections to this direct final rule are encouraged to file any comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. This action may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).

40 CFR part 52 is amended as follows:

Under CAA section 110(a)(1), states are required to submit plans called state implementation plans (SIPs) that provide for the implementation, maintenance and enforcement of each NAAQS and are referred to as infrastructure SIPs. 42 U.S.C. 7410(a)(1). On July 18, 1997, EPA promulgated new and revised NAAQS for 8-hour ozone (62 FR 38856) and PM2.5 (62 FR 38652). EPA strengthened the 24-hour PM2.5 NAAQS on October 17, 2006 (71 FR 61144). The 14 elements required to be addressed in infrastructure SIPs are as follows: (1) Emission limits and other control measures; (2) ambient air quality monitoring/data system; (3) program for enforcement of control measures; (4) interstate transport; (5) adequate resources; (6) stationary source monitoring system; (7) emergency power; (8) future SIP revisions; (9) consultation with government officials; (10) public notification; (11) prevention of significant deterioration (PSD) and visibility protection; (12) air quality modeling/data; (13) permitting fees; and (14) consultation/participation by affected local entities.

EPA is acting on three New York SIP submittals, dated December 13, 2007, October 2, 2008 and March 15, 2010, which address the section 110 infrastructure requirements for the three NAAQS: The 1997 8-hour ozone NAAQS, the 1997 annual and 24-hour PM2.5 NAAQS, and the 2006 24-hour PM2.5 NAAQS. This action does not address the requirements of section 110(a)(2)(D)(i) for the 1997 ozone and 1997 PM2.5 NAAQS, since they were addressed in previous rulemakings. See January 24, 2008 (73 FR 4109). Additionally, this action does not address the requirements of section 110(a)(2)(D)(i)(I) for the 2006 PM2.5 NAAQS, which also was addressed in a previous EPA rulemaking. See July 20, 2011 (76 FR 43153). Two elements identified in section 110(a)(2) are not governed by the three year submission deadline of section 110(a)(1) because SIPs incorporating necessary local nonattainment area controls are not due within three years after promulgation of a new or revised NAAQS, but rather due at the time that the nonattainment area plan requirements are due pursuant to section 172. See 77 FR 46352, 46354 (August 3, 2012) (footnote 3); 77 FR 60307, 60308 (October 3, 2012) (footnote 1). These requirements are: (1) Submissions required by section 110(a)(2)(C) to the extent that subsection refers to a permit program as required in part D Title I of the CAA, and (2) submissions required by section 110(a)(2)(I) which pertain to the nonattainment planning requirements of part D, Title I of the CAA. As a result, this action does not address the above infrastructure elements related to section 110(a)(2)(C) or 110(a)(2)(I).

EPA proposed action on the three SIP revisions on April 30, 2013 (78 FR 25236) and no comments were received on the proposal. The reader is referred to the April 30, 2013 proposed rulemaking for a detailed discussion of New York's submittals and EPA's review and proposed actions.

In a letter dated May 23, 2013, New York made a supplemental submittal that addresses the following 110(a)(2) sub-elements: E(ii) (conflict of interest provisions) and E(iii) (delegations).

EPA is approving New York's submittals as fully meeting the infrastructure requirements for the 1997 8-hour ozone and the 1997 and 2006 PM2.5 NAAQS for the following section 110(a)(2) elements and sub-elements: (A), (B), (C), (D)(i)(II) prongs 3 and 4, (D)(ii), (E)(i), (F), (G), (H), (J), (K), (L), and (M). With this approval action, EPA's action on October 22, 2008 (73 FR 62902) for New York has been satisfied.

New York made a supplemental submittal on May 23, 2013 which corrects the deficiencies, relevant to sub-elements E(ii) and E(iii), that were identified in the April 30, 2013 proposed rulemaking action. New York's supplemental submittal includes: New York Public Officer's Law (POL) section 73-a, “Financial disclosure;” Title 19 of the New York Codes of Rules and Regulations (19 NYCRR) Part 937, “Access To Publicly Available Records;” a list identifying entities that received delegated responsibilities for implementing and enforcing portions of the New York SIP; and, a copy of the “delegation order.” On April 30, 2013, EPA proposed to conditionally approve New York's infrastructure SIP in fulfilling the requirements of section 110(a)(2)(E)(ii) and E(iii) for 1997 8-hour ozone and PM2.5 NAAQS, provided the State committed to submit: POL section 73-a and 19 NYCRR Part 937 for approval as part of the SIP; a list of the county or local governments or entities that have been delegated responsibilities to implement or enforce portions of the SIP; and, copies of the delegation orders or memoranda of understanding between the State and the county or local governments or entities. However, EPA also proposed in the April 30, 2013 action, that in the alternative, should New York submit the required information before we take final rulemaking action, EPA will fully approve section 110(a)(2)(E)(ii) and E(iii). Therefore, since New York submitted the required information, EPA is approving New York's submittals for the 1997 8-hour ozone and 1997 and 2006 PM2.5 NAAQS for the following 110(a)(2) sub-elements: E(ii) (state boards and conflict of interest provisions) and E(iii) (delegations). EPA is also approving POL section 73-a (2)(a)(i) and (ii) and 19 NYCRR Subpart 937.1(a) into the New York SIP for the limited purpose of satisfying Clean Air Act Section 128(a)(2).

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

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 19, 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:

Throughout this document, wherever “we,” “us,” or “our” are used, it is intended to refer to the EPA.

On October 5, 2011, June 8, 2012, and November 28, 2012, the State of Oregon submitted revisions to the EPA for approval into the Oregon SIP. The submitted revisions relate to Oregon's Heat Smart program in Oregon Administrative Rules (OAR) Chapter 340, Division 262 (OAR 340-262), the enforcement procedures and civil penalties rules (OAR 340-012), and contain minor revisions and clarifications to general air pollution definitions (OAR 340-200), rules for stationary source notification requirements (OAR 340-210), and requirements for fuel burning (OAR 340-228). In a proposed rule published on February 11, 2013 (78 FR 9651), the EPA proposed to approve these revisions to the Oregon SIP. An explanation of the Clean Air Act (CAA) requirements and implementing regulations related to these SIP revisions and the EPA's reasons for approving the SIP revisions were provided in the notice of proposed rulemaking on February 11, 2013, and will not be restated here. The public comment period for this proposed rule ended on March 13, 2013.

The EPA received two comments on the proposed rule. The first commenter requested clarification on the scope of the definition of solid fuel burning devices at OAR 340-262-0450. Specifically, the commenter requested and received confirmation from the EPA that barbeques and campfires were not included in the definition of solid fuel burning devices at OAR-340-262-0450. The second commenter supported the approval of the Oregon Heat Smart program rules and their contribution to reduced emissions and improved air quality. We agree with this comment and no response was necessary. Both comments are available in the docket.

The EPA is approving the October 5, 2011, June 8, 2012, and November 28, 2012 SIP submittals from the State of Oregon as meeting the requirements of the CAA. Specifically, the EPA is approving revisions to OAR 340-012, OAR 340-200, OAR 340-210, OAR 340-228 and OAR 340-262 because the revisions are consistent with CAA requirements. In addition, the EPA approves the removal from the SIP of the regulations previously codified at OAR 340-262-0010 to OAR 340-262-0330 because the citations for these regulations have been renumbered.

With regard to OAR 340-012, the EPA is approving the revisions to OAR 340-012, subject to the following qualifications. The EPA's authority to approve SIP revisions extends to provisions related to attainment and maintenance of the NAAQS and carrying out other specific requirements of Section 110 of the CAA. Therefore, the EPA is approving the revisions to OAR 340-012 only to the extent they relate to enforcement of requirements contained in the Federally-approved Oregon SIP. Additionally, the EPA is not incorporating these rules by reference into the Code of Federal Regulations because the EPA relies on its own independent enforcement procedures and penalty provisions in bringing enforcement actions and assessing penalties under the CAA.

The submittals contain an amendment to OAR 340-200-0040, which describes the State's procedures for adopting its Clean Air Act Implementation Plan and references all of the state air regulations that have been adopted by the Environmental Quality Commission for approval into the SIP (as a matter of state law), whether or not they have yet been submitted to or approved by the EPA. We are proposing no action on the revisions to OAR 340-200-0040 in the SIP submittal because it is unnecessary to take action on a provision addressing State SIP adoption procedures and because the Federally-approved SIP consists only of regulations and other requirements that have been submitted by ODEQ and approved by the EPA.

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

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

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

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

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

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

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

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

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

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

Throughout this document whenever “we,” “us,” or “our” is used, we refer to EPA. This section provides additional information by addressing the following:

On April 17, 2013, EPA proposed to approve four Kansas SIP submissions (78 FR 22827). EPA received the first submission on January 8, 2008, addressing the infrastructure SIP requirements relating to the 1997 PM2.5 NAAQS. EPA received the second submission on April 12, 2010, addressing the infrastructure SIP requirements relating to the 2006 PM2.5 NAAQS. As originally detailed in the proposed rulemaking, EPA had previously approved section 110(a)(2)(D)(i)(I) and (II)—Interstate and international transport requirements of Kansas' January 8, 2008, SIP submission for the 1997 PM2.5 NAAQS (72 FR 10606, May 8, 2007); and EPA disapproved section 110(a)(2)(D)(i)(I)—Interstate and international transport requirements of Kansas' April 12, 2010, SIP submission for the 2006 PM2.5 NAAQS (76 FR 43143, July 20, 2011). Therefore, we did not propose to act on those portions in the April 17, 2013, proposed rule since they had already been acted upon by EPA. With this final action, we will have acted on both the January 8, 2008, and the April 10, 2010, submissions in their entirety, excluding those provisions that are not within the scope of today's rulemaking as identified in section IV of the April 17, 2013, proposed action for both the 1997 and 2006 PM2.5 infrastructure SIP submissions.

The third submission was received by EPA on March 1, 2013. This submission revises the Kansas rule found at Kansas Administrative Regulations (KAR) 29-19-350 “Prevention of Significant Deterioration of Air Quality” to incorporate by reference Federal rule changes through July 1, 2011. These changes implement elements of the Prevention of Significant Deterioration (PSD) regulations relating to EPA's 2008 NSR PM2.5 Implementation Rule (73 FR 28321, May 16, 2008) and certain elements of the “Prevention of Significant Deterioration (PSD) for Particulate Matter Less Than 2.5 Micrometers (PM2.5)—Increments, Significant Impact Levels (SILs) and Significant Monitoring Concentration (SMC)” rule (75 FR 64864, October 20, 2010). On April 2, 2013, Kansas amended and clarified its submission so that it no longer included specific provisions affected by the January 22, 2013, U.S. Court of Appeals for the District of Columbia court decision which vacated and remanded the provisions concerning implementation of the PM2.5 SILs and vacated the provisions adding the PM2.5 SMC that were promulgated as part of the October 20, 2010, PM2.5 PSD Rule (Sierra Club v. EPA, No. 10-1413 (filed December 17, 2010)). In addition, this rule amendment defers the application of PSD permitting requirements to carbon dioxide emissions from bioenergy and other biogenic stationary sources.

The fourth submission was received by EPA on March 19, 2013. This submission addresses the conflict of interest provisions in section 128 of the CAA as it relates to element E of the infrastructure SIP. In the proposed rulemaking, EPA proposed to “parallel process” the SIP revision relating to these conflict of interest provisions. Under this procedure, EPA proposed rulemaking action concurrently with the State of Kansas' procedures for approving a SIP submission and amending its regulations. Because Kansas did not receive any comments during its public comment period and therefore the regulation revision adopted by Kansas is identical to the draft regulation which EPA described in the proposal, in today's action EPA is finalizing approval of the conflict of interest provisions.

In summary, EPA is taking final action today to approve these four SIP submissions from Kansas. The first two submissions address the requirements of CAA sections 110(a)(1) and (2) as applicable to the 1997 and 2006 NAAQS for PM2.5. With this final action, we will have acted on both the 1997 and 2006 submissions in their entirety excluding those provisions that are not within the scope of the rulemaking. EPA is also taking final action to approve two additional SIP submissions from Kansas, one addressing the Prevention of Significant Deterioration (PSD) program in Kansas as it relates to PM2.5, unless otherwise noted in EPA's proposed action on April 17, 2013 (78 FR 22827), and another SIP revision addressing the requirements of section 128 of the CAA, both of which support the requirements associated with infrastructure SIPs.

The public comment period on EPA's proposed rule opened April 17, 2013, the date of its publication in the Federal Register, and closed on May 17, 2013. During this period, EPA received one comment from a citizen, and one from the Kansas Department of Health and Environment (KDHE). The letters are available in the docket to today's final rule. The citizen comment was in support of EPA's action, and we appreciate the support for this rulemaking. No changes were made to this final action based on this comment. Today's final action includes EPA's response to KDHE's comment.

Comment: KDHE commented that EPA retract certain language in the proposed rulemaking for today's final action. The proposed rulemaking stated at 78 FR 22838: “As described under element C in section V of this rulemaking, states had an obligation to address condensable PM emissions as a part of the 2008 PM2.5 NSR implementation rule. In Kansas' March 1, 2013, SIP submission, Kansas incorporated by reference EPA's definition for regulated NSR pollutant (formerly at 40 CFR 51.166(b)(49)(vi)), including the term `particulate matter emissions,' as inadvertently promulgated in the 2008 NSR Rule. EPA is, however, proposing to approve into the Kansas SIP the requirement that condensable PM be accounted for in applicability determinations and in establishing emissions limitations for PM2.5 and PM10 because it is more stringent than the Federal requirement. Kansas can choose to initiate further rulemaking to ensure consistency with Federal requirements.” KDHE contends that its March 1, 2013, PSD SIP submission was intended to align the state's PSD rules with the Federal rules and therefore is not more stringent than Federal requirements.

Response: After evaluating KDHE's comment, EPA agrees that KDHE's March 1, 2013, submission did not include provisions that are more stringent than the Federal requirements.

Based upon review of the State's infrastructure SIP submissions for the 1997 and 2006 PM2.5 NAAQS, and relevant statutory and regulatory authorities and provisions referenced in those submissions or referenced in Kansas' SIP, EPA believes that Kansas has the infrastructure to address all applicable required elements of sections 110(a)(1) and (2) (except otherwise noted) to ensure that the 1997 and 2006 PM2.5 NAAQS are implemented in the state. Therefore, EPA is taking final action to approve Kansas' infrastructure SIP submissions for the 1997 and 2006 NAAQS for PM2.5 for the following section 110(a)(2) elements and sub-elements: (A), (B), (C), (D)(i)(II) (prongs 3 and 4), D(ii), (E), (F), (G), (H), (J), (K), (L), and (M). In addition, EPA is approving two SIP submissions, one addressing the Prevention of Significant Deterioration (PSD) program in Kansas as it relates to PM2.5, and another SIP revision addressing the requirements of section 128 of the CAA, both of which support the requirements associated with infrastructure SIPs.

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

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

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

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

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

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

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

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

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

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

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

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 August 19, 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).)

Chapter I, title 40 of the Code of Federal Regulations is amended as follows:

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

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

On April 17, 2008, EPA determined that the submittal for SDAPCD Rule 67.0 met the completeness criteria in 40 CFR part 51 Appendix V, which must be met before formal EPA review.

We approved an earlier version of Rule 67.0 into the SIP on March 27, 1997 (62 FR 14639). The SDAPCD adopted revisions to the SIP-approved version on December 12, 2001 and CARB submitted them to us on March 7, 2008. While we can act on only the most recently submitted version, we have reviewed materials provided with previous submittals.

VOCs help produce ground-level ozone and smog, which harm human health and the environment. Section 110(a) of the CAA requires States to submit regulations that control VOC emissions. SDAPCD Rule 67.0 adds several new coating categories and lowers existing VOC limits. EPA's technical support document (TSD) has more information about this rule.

Generally, SIP rules must be enforceable (see section 110(a) of the Act), must require Reasonably Available Control Technology (RACT) for each category of sources covered by a Control Techniques Guidelines (CTG) document as well as each VOC major stationary source in ozone nonattainment areas classified as moderate or above (see sections 182(b)(2)), and must not relax existing requirements (see sections 110(l) and 193). Because SDAPCD Rule 67.0 covers an area source and not a stationary source and does not have a CTG, it does not need to require RACT controls.

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

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

2. “Issues Relating to VOC Regulation Cutpoints, Deficiencies, and Deviations,” EPA, May 25, 1988 (the Bluebook).

3. “Guidance Document for Correcting Common VOC & Other Rule Deficiencies,” EPA Region 9, August 21, 2001 (the Little Bluebook).

4. “Suggested Control Measure for Architectural Coatings,” CARB, October 2007.

We believe this rule is consistent with the relevant policy and guidance regarding enforceability, stringency, and SIP relaxations. The TSD has more information on our evaluation.

The TSD describes additional rule revisions that we recommend for the next time the local agency modifies the rule.

As authorized in section 110(k)(3) of the Act, EPA is fully approving the submitted rule because we believe it fulfills all relevant requirements. We do not think anyone will object to this approval, so we are finalizing it without proposing it in advance. However, in the Proposed Rules section of this Federal Register, we are simultaneously proposing approval of the same submitted rule. If we receive adverse comments by July 22, 2013, we will publish a timely withdrawal in the Federal Register to notify the public that the direct final approval will not take effect and we will address the comments in a subsequent final action based on the proposal. If we do not receive timely adverse comments, the direct final approval will be effective without further notice on August 19, 2013. This will incorporate the rule into the federally enforceable SIP.

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 19, 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. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the Proposed Rules section of today's Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. This action may not be challenged later in proceedings to enforce its requirements (see section 307(b)(2)).

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

Today's action corrects inadvertent errors in EPA's June 16, 1999, final rulemaking. Specifically, this correcting amendment clarifies that EPA's June 16, 1999, action approved the State's implementation plan revision that repealed F.A.C. rules 62-297.411 (DEP Method 1), 62-297.412 (DEP Method 2), 62-297.413 (DEP Method 3), 62-297.415 (DEP Method 5), 62-297.416 (DEP Method 5A), 62-297.417 (DEP Method 6) and, 62-297.423 (EPA Method 12-Determination of Inorganic Lead Emissions from Stationary Emission Units). The June 16, 1999, final rule approved the removal of the test method rules from the SIP. These rules were repealed because they were obsolete. Another rule change provided for the incorporation of the federally approved American Society for Testing and Materials (ASTM) methods. However, EPA's regulatory text did not properly indicate that the rules were repealed. This action corrects these inadvertent errors.

EPA has determined that today's actions fall under the “good cause” exemption in section 553(b)(3)(B) of the Administrative Procedure Act (APA) which, upon finding “good cause,” authorizes agencies to dispense with public participation where public notice and comment procedures are impracticable, unnecessary, or contrary to the public interest. Public notice and comment for this action is unnecessary because today's action to correct inadvertent regulatory text errors included with EPA's June 16, 1999, final rule are consistent with the substantive revisions to the Florida SIP described in the direct final rule addressing the miscellaneous revisions and the recodification of F.A.C. to make the SIP less complex and correct typographical errors. In addition, EPA can identify no particular reason why the public would be interested in being notified of the correction, or in having the opportunity to comment on the correction prior to this action being finalized, since this correction action does not change the meaning of EPA's analysis or action addressing the recodification and miscellaneous revisions to the Florida SIP. EPA also finds that there is good cause under APA section 553(d)(3) for this correction to become effective on the date of publication of this action. Section 553(d)(3) of the APA allows an effective date less than 30 days after publication “as otherwise provided by the agency for good cause found and published with the rule.” 5 U.S.C. 553(d)(3). The purpose of the 30-day waiting period prescribed in APA section 553(d)(3) is to give affected parties a reasonable time to adjust their behavior and prepare before the final rule takes effect. Today's rule, however, does not create any new regulatory requirements such that affected parties would need time to prepare before the rule takes effect. Rather, today's action merely corrects inadvertent errors in the regulatory text of EPA's prior rulemaking for the Florida SIP. For these reasons, EPA finds good cause under APA section 553(d)(3) for this correction to become effective on the date of publication of this action.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely corrects an inadvertent omission in the regulatory text of EPA's June 16, 1999, final rule addressing the recodification of the Florida SIP, and miscellaneous changes and imposes no additional requirements beyond those already imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule merely corrects an inadvertent omission in the regulatory text of EPA's June 16, 1999, final rules addressing miscellaneous revisions and the recodification of F.A.C. to make the SIP less complex and to correct typographical errors, and does not impose any additional enforceable duty beyond that already required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4).

This rule also does not have tribal implications because it will 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 the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This rule also does not have Federalism implications because it does not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This rule merely corrects inadvertent errors in the regulatory text of EPA's June 16, 1999, final rule by removing certain repealed rules from the regulatory text, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant. In addition, this rule does not involve technical standards, thus the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule also does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

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

40 CFR part 52 is corrected by making the following correcting amendments:

The information in this preamble is organized as follows:

The regulated category and entities potentially affected by this final action include:

This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this final rule. To determine whether your facility is regulated by this action, you should carefully examine the applicability criteria in 40 CFR 63.640 of subpart CC (National Emission Standards for Hazardous Air Pollutants From Petroleum Refineries). If you have any questions regarding the applicability of this action to a particular entity, contact the person listed in the preceding FOR FURTHER INFORMATION CONTACT section.

In addition to being available in the docket, an electronic copy of this final action is available on the Worldwide Web (WWW) through the Technology Transfer Network (TTN). Following signature, a copy of this final action will be posted on the TTN's policy and guidance page for newly proposed or promulgated rules at http://www.epa.gov/ttn/oarpg/. The TTN provides information and technology exchange in various areas of air pollution control.

The EPA has created a redline document comparing the existing regulatory text of 40 CFR Part 63, subpart CC and the final amendments to aid the public's ability to understand the changes to the regulatory text. This document has been placed in the docket for this rulemaking (Docket ID No. EPA-HQ-OAR-2003-0146).

Under section 307(b)(1) of the Clean Air Act (CAA), judicial review of this final rule is available only by filing a petition for review in the United States Court of Appeals for the District of Columbia Circuit by August 19, 2013. Under section 307(d)(7)(B) of the CAA, the requirements established by these final rules may not be challenged separately in any civil or criminal proceedings brought by the EPA to enforce these requirements.

Section 307(d)(7)(B) of the CAA further provides that “[o]nly an objection to a rule or procedure which was raised with reasonable specificity during the period for public comment (including any public hearing) may be raised during judicial review.” This section also provides a mechanism for us to convene a proceeding for reconsideration, “[i]f the person raising an objection can demonstrate to the EPA that it was impracticable to raise such objection within [the period for public comment] or if the grounds for such objection arose after the period for public comment (but within the time specified for judicial review) and if such objection is of central relevance to the outcome of the rule.” Any person seeking to make such a demonstration to us should submit a Petition for Reconsideration to the Office of the Administrator, U.S. EPA, Room 3000, Ariel Rios Building, 1200 Pennsylvania Ave. NW., Washington, DC 20460, with a copy to both the person(s) listed in the preceding FOR FURTHER INFORMATION CONTACT section, and the Associate General Counsel for the Air and Radiation Law Office, Office of General Counsel (Mail Code 2344A), U.S. EPA, 1200 Pennsylvania Ave. NW., Washington, DC 20460.

This action finalizes amendments that were proposed on January 6, 2012, to address reconsideration issues related to the maximum achievable control technology standards (MACT) for heat exchange systems we promulgated on October 28, 2009. This action also finalizes additional amendments intended to clarify rule provisions and to provide additional flexibility.

We are finalizing three significant revisions to the standards for heat exchange systems that were promulgated on October 28, 2009. First, we are revising the regulations to include an alternative monitoring option for heat exchange systems that would allow owners and operators at existing sources to monitor quarterly using a leak action level defined as a total strippable hydrocarbon concentration (as methane) in the stripping gas of 3.1 parts per million by volume (ppmv); the current regulations (40 CFR 63.654) provide only one monitoring option, which requires monitoring monthly at a leak action level defined as a total strippable hydrocarbon concentration (as methane) in the stripping gas of 6.2 ppmv. We performed modeling of the monitoring alternative and the modeling indicates that quarterly monitoring at the lower leak action level provides equivalent emission reductions to monthly monitoring at the higher leak action level in the existing regulations. These amendments also include specific recordkeeping and reporting requirements for owners and operators electing to use the alternative monitoring frequency.

The second significant amendment is the revision to the definition of heat exchange system to improve clarity regarding applicability of the monitoring and repair provisions for individual heat exchangers within the heat exchange system.

The third significant revision is an amendment to the monitoring requirements for once-through cooling systems to allow monitoring at an aggregated location for once-through cooling water heat exchange systems, provided that the combined cooling water flow rate at the monitoring location does not exceed 40,000 gallons per minute.

These final amendments do not include the proposed cross-referencing of the Uniform Standards for Heat Exchange Systems (40 CFR Part 65, subpart L). These final amendments also do not include the use of direct water sampling methods that were proposed as alternatives to using the “Air Stripping Method (Modified El Paso Method) for Determination of Volatile Organic Compound Emissions from Water Sources” (Modified El Paso Method), Revision Number One, dated January 2003, Sampling Procedures Manual, Appendix P: Cooling Tower Monitoring, January 31, 2003 (incorporated by reference—see § 63.14) within the Uniform Standards for Heat Exchange Systems. The EPA concluded that the alternative as proposed was not feasible for petroleum refineries and that alternatives suggested during the comment period were not equivalent.

The actions we are taking will have no cost, environmental, energy or economic impacts beyond those impacts presented in the October 2009 final rule for heat exchange systems at petroleum refineries and may result in a cost savings for refiners who select the proposed alternative monitoring frequency. For sources that choose the quarterly monitoring alternative, the cost is projected to be less than the cost of the monthly monitoring requirement in the October 2009 final rule, while achieving the same environmental impacts. Similarly, sources that choose to monitor at an aggregated location, for the small number of refineries that operate once-through systems, will have reduced monitoring costs. The clarifications and other changes we are proposing in response to reconsideration are cost-neutral.

Section 112 of the CAA establishes a regulatory process to address emissions of hazardous air pollutants (HAP) from stationary sources. After the EPA has identified categories of sources emitting one or more of the HAP listed in section 112(b) of the CAA, section 112(d) calls for us to promulgate national emission standards for hazardous air pollutants (NESHAP) for those sources. For “major sources” that emit or have the potential to emit any single HAP at a rate of 10 tons or more per year or any combination of HAP at a rate of 25 tons or more per year, these technology-based standards must reflect the maximum reductions of HAP achievable (after considering cost, energy requirements and non-air quality health and environmental impacts) and are commonly referred to as MACT standards.

For MACT standards, the statute specifies certain minimum stringency requirements, which are referred to as floor requirements. See CAA section 112(d)(3). Specifically, for new sources, the MACT floor cannot be less stringent than the emission control that is achieved in practice by the best-controlled similar source. The MACT standards for existing sources can be less stringent than standards for new sources, but they cannot be less stringent than the average emission limitation achieved by the best-performing 12 percent of existing sources in the category or subcategory (or the best-performing five sources for categories or subcategories with fewer than 30 sources). In developing MACT, we must also consider control options that are more stringent than the floor. We may establish standards more stringent than the floor based on the consideration of the cost of achieving the emissions reductions, any non-air quality health and environmental impacts and energy requirements.

We published the first set of MACT standards for petroleum refineries (40 CFR Part 63, subpart CC) on August 18, 1995 (60 FR 43620). These standards are commonly referred to as the “Refinery MACT 1” standards because certain process vents were excluded from this source category and subsequently regulated under a second MACT standard specific to these petroleum refinery process vents (40 CFR Part 63, subpart UUU, referred to as “Refinery MACT 2”).

We issued an initial proposed rule to include requirements for heat exchange systems for the petroleum refineries subject to the Refinery MACT 1 on September 4, 2007, and held a public hearing in Houston, Texas, on November 27, 2007. In response to public comments on the initial proposal, we collected additional information and revised our analysis of the MACT floor. Based on the results of these additional analyses, we issued a supplemental proposal on November 10, 2008, that proposed a new MACT floor for heat exchange systems. A public hearing for the supplemental proposal was held in Research Triangle Park, North Carolina, on November 25, 2008. We took final action to establish standards for heat exchange systems in the Refinery MACT 1 standards (40 CFR Part 63, subpart CC) on October 28, 2009.

On December 23, 2009, the American Petroleum Institute (API) requested an administrative reconsideration under CAA section 307(d)(7)(B) of certain provisions of 40 CFR Part 63, subpart CC that they had identified in an April 7, 2009, letter to the EPA. On January 6, 2012, we issued a proposed rule addressing the issues in the reconsideration petition and proposed amendments to 40 CFR Part 63, subpart CC. As part of the January 6, 2012, proposal, we also proposed Uniform Standards for Heat Exchange Systems (40 CFR Part 65, subpart L), which included the same substantive provisions for heat exchange systems that were in the October 2009 Refinery MACT 1 final standards (40 CFR Part 63, subpart CC). We proposed to remove from the Refinery MACT 1 standards most of the substantive provisions addressing heat exchange systems and to cross-reference the Uniform Standards from Refinery MACT 1.

As described in section II.B. of this preamble, we proposed, on January 6, 2012, Uniform Standards for Heat Exchange Systems as 40 CFR Part 65, subpart L and amendments to Refinery MACT 1 (40 CFR Part 63, subpart CC). We are not finalizing the Uniform Standards for Heat Exchange Systems at this time because we are still evaluating comments received on the March 26, 2012, proposed Uniform Standards for storage vessels, equipment leaks and closed vent system and control devices (see 77 FR 17898). We believe it is appropriate to consider all the comments received on the Uniform Standards proposed rules together, particularly since some of the comments received on the March 26, 2012, proposal relate to the overall concept and implementation of Uniform Standards across multiple industry categories. We are retaining in Refinery MACT 1 the substantive requirements for heat exchange systems. However, we are revising Refinery MACT 1 to incorporate many of the substantive changes in the work practice standards for heat exchange systems at petroleum refineries included in the Uniform Standards as part of the January 6, 2012, proposal.

First, we are amending the definition of “heat exchange system” based on the proposed clarification of the definition and the public comments received. As proposed, we are replacing “series of devices” with “collection of devices.” In response to comments, we also are amending the definition of “heat exchange system” to improve clarity regarding the applicability of the monitoring and repair requirements for individual heat exchangers within the heat exchange system. Specifically, we are revising the definition of “heat exchange system” to focus on heat exchangers (and not sample coolers) that are in organic HAP service and that are associated with a petroleum refinery process unit. Therefore, we are finalizing the definition of “heat exchange system” to mean a device or collection of devices used to transfer heat from process fluids to water without intentional direct contact of the process fluid with the water (i.e., non-contact heat exchanger) and to transport and/or cool the water in a closed-loop recirculation system (cooling tower system) or a once-through system (e.g., river or pond water). For closed-loop recirculation systems, the heat exchange system consists of a cooling tower, all petroleum refinery process unit heat exchangers that are in organic HAP service (as defined in this subpart) serviced by that cooling tower, and all water lines to and from these petroleum refinery process unit heat exchangers. For once-through systems, the heat exchange system consists of all heat exchangers that are in organic HAP service (as defined in this subpart) servicing an individual petroleum refinery process unit and all water lines to and from these heat exchangers. Sample coolers or pump seal coolers are not considered heat exchangers for the purpose of this definition and are not part of the heat exchange system. Intentional direct contact with process fluids results in the formation of a wastewater.

In the January 2012 proposal, we included clarifications of the sampling requirements and leak action level for once-through heat exchange systems when determining strippable hydrocarbon concentrations for the inlet water stream. We are finalizing these clarifications as proposed. After considering public comments, we are also revising the sampling requirement for once-through systems to allow monitoring at an aggregated location for once-through heat exchange systems, provided that the combined cooling water flow rate at the monitoring location does not exceed 40,000 gallons per minute.

In the January 2012 proposal, we also proposed a direct water sampling and analysis option as an alternative to using the “Air Stripping Method (Modified El Paso Method) for Determination of Volatile Organic Compound Emissions from Water Sources” (Modified El Paso Method), Revision Number One, dated January 2003, Sampling Procedures Manual, Appendix P: Cooling Tower Monitoring, January 31, 2003 (incorporated by reference—see § 63.14), as well as amendments to the recordkeeping and reporting requirements when this alternative is elected. After considering public comments, we are not revising Refinery MACT 1 to include this alternative.

In the January 2012 proposal, we included an alternative monitoring frequency for heat exchange systems at existing sources. This monitoring frequency is quarterly using a leak action level defined as a total strippable hydrocarbon concentration (as methane) in the stripping gas of 3.1 ppmv; the only monitoring frequency in existing Refinery MACT 1 is monthly at a leak action level defined as a total strippable hydrocarbon concentration (as methane) in the stripping gas of 6.2 ppmv. We are revising Refinery MACT 1 to include the alternative monitoring frequency, as proposed.

We proposed a clarification that the water flow rate could be determined based on direct measurement, pump curves, heat balance calculations or other engineering methods. We are finalizing this clarification as proposed. We also proposed clarifications to the applicability dates for heat exchange systems at new sources. We are finalizing these clarifications as proposed.

The proposed Uniform Standards at 40 CFR 65.610(b) contained three exemptions: one based on pressure differential, one based on not being “in regulated material service,” and one based on size (targeted to exclude sample coolers). As previously noted, we are not finalizing the Uniform Standards or the cross-references to those Uniform Standards from Refinery MACT 1. The corresponding section in Refinery MACT 1 (40 CFR 63.654, Subpart CC) that we are finalizing in today's action contains only two exemptions: one based on pressure differential and one for intervening fluid. The exemptions for “in HAP service” and small heat exchangers are not needed based on the revised definition of “heat exchange system.” These heat exchangers are not part of the affected heat exchange system as that term is defined in these final amendments.

We are finalizing several technical and clarifying corrections in response to issues identified by public commenters. One of these amendments is in response to a commenter's request for clarity on how delay of repair emissions are to be calculated and for confirmation that the emissions should be estimated for the period of time that the delay of repair occurred. The October 2009 standards required the calculation of emissions projected for the “expected duration of delay” using the monitored leak concentration. As the heat exchange system for which repair is delayed must be monitored monthly, we interpret the rule to require a monthly estimate of the emissions projected for the duration of the delay of repair. However, the reporting requirement is an estimate of the emissions that occur as a result of delayed repairs over the reporting period. As such, the owner or operator must actually calculate the emissions projected over each monitoring interval and sum these estimates for the period covered by the semi-annual report. Therefore, in order to better align the calculation, recordkeeping and reporting requirements, we have revised the requirement to develop a monthly emission estimate for “the duration of the expected delay of repair” to require calculation of emissions projected for “each monitoring interval.” We also revised the recordkeeping requirements to keep records of these “monitoring interval” emission estimates, which can be directly used to develop the emission estimates required in the semi-annual reports. We are also clarifying that the delay begins on the date the leak would have had to be repaired had the repair not been delayed. We are revising the recordkeeping requirement for the “identification of all heat exchangers at the facility” to instead require records for “identification of all petroleum refinery process unit heat exchangers at the facility” commensurate with our revision of the definition of “heat exchange system” and our desire to focus the Refinery MACT 1 heat exchange system requirements on heat exchangers associated with petroleum refinery process units. Finally, we are specifying that records related to the heat exchanger provisions be retained for 5 years, consistent with retention requirements for other emissions sources.

Today's final rule also addresses 10 reconsideration issues raised by the API. The API requested an administrative reconsideration under CAA section 307(d)(7)(B) of certain provisions of 40 CFR part 63, subpart CC that they had identified in an April 7, 2009, letter to the EPA. As described in detail in the January 6, 2012, proposal (see 77 FR 964), we denied API's request for six of the reconsideration issues either because they were irrelevant after the subsequent withdrawal of the amendments to the Refinery MACT 1 storage vessel requirements or because the issues could have been raised during the public comment period. We granted reconsideration on the following issues: (1) The use of the promulgation date to describe the applicability for new sources in 40 CFR 63.640(h)(1); (2) the definition of “heat exchange system” in 40 CFR 63.641 as it relates to once-through heat exchange systems and refinery process units; (3) the monitoring procedures for once-through heat exchange systems in 40 CFR 63.654(c); and (4) the determination of the cooling water flow rate in 40 CFR 63.654(g). This final action reflects our reconsideration of issues raised in API's request for reconsideration.

On January 6, 2012, we proposed Uniform Standards for Heat Exchange Systems (40 CFR part 65, subpart L). We also proposed to remove most of the substantive requirements for heat exchange systems from Refinery MACT 1, to include them in the Uniform Standards, and to cross-reference the Uniform Standards from Refinery MACT 1. We received numerous comments on the creation of Uniform Standards for Heat Exchange Systems and the proposed cross-referencing to the Uniform Standards within Refinery MACT 1 (40 CFR part 63, subpart CC). We are not taking final action to create Uniform Standards for Heat Exchange Systems at this time. We will address the comments that focused on the creation of the Uniform Standards in the context of future Uniform Standards regulatory actions. Section IV.B of this preamble addresses the comments regarding the substance of requirements that we proposed to include in the Uniform Standards but that we are now finalizing as part of Refinery MACT 1, or requirements proposed in the Uniform Standards that we have decided not to finalize as they would apply to heat exchange systems at refineries.

Comment: One commenter supported the proposed change to the definition of “heat exchange system” that clarifies that heat exchangers need not be piped in series.

Response: We appreciate support of this clarification.

Comment: One commenter stated that including the cooling tower in the definition of “heat exchange system” means there can be only one heat exchange system per cooling tower, and this unduly complicates the rule (because the rule has to discuss requirements for individual exchangers and groups of exchangers as well as the heat exchange system). The commenter also suggested that the definition be limited to heat exchangers that serve petroleum refining process units to clarify that heat exchangers outside of the affected source are not subject to the Refinery MACT 1 requirements, which would be clearer than relying on the affected source description in 40 CFR 63.640 to limit applicability. Another commenter stated that monitoring provisions in 40 CFR 63.654(a) should focus on heat exchangers that service refinery process units because there is no legal basis for applying the rule to heat exchangers that service non-refinery processes even if they share a cooling tower.

Response: We disagree that including the cooling tower in the definition of heat exchange system creates confusion. Even if the cooling tower were not part of the heat exchange system, the regulatory language would still have to discuss heat exchangers, groups of heat exchangers and heat exchange systems to allow both centralized and separate monitoring of heat exchangers (or groups of heat exchangers). The flexibility provided in the monitoring locations, not the inclusion of the cooling tower, appears to be the primary source of complexity in the rule. As we allow monitoring of the cooling water at the cooling tower, it is logical that the cooling tower be part of the heat exchange system. Furthermore, the cooling tower is a central and essential part of a closed-loop heat exchange system for the system to operate properly. It is easily identifiable for permitting and enforcement personnel and it is the location at which most refineries are expected to perform the required monitoring. The cooling tower is also the location at which the strippable hydrocarbons are emitted.

With respect to limiting the definition to heat exchangers that serve petroleum refining process units, we find that this comment has merit. Because Refinery MACT 1 is a NESHAP, in this final action, we intentionally limited repairs to heat exchangers that are “in organic HAP service.” The rule as finalized in 2009 also limited applicability by defining as part of the affected source “all heat exchange systems associated with refinery process units and which are in organic HAP service” in 40 CFR 63.640(c)(8). While we expect most heat exchange systems at petroleum refineries to process cooling water from heat exchangers associated only with refinery process units, we recognize that there may be other process units at a refinery, particularly ethylene units and units subject to the National Emission Standards for Organic Hazardous Air Pollutants from the Synthetic Organic Chemical Manufacturing Industry (40 CFR part 63, subpart F) (“HON”).

We generally prefer not to include applicability criteria in emission source definitions, but recognizing the complexity of the current construct, we considered whether revising the definition of heat exchange system might increase the clarity of the monitoring and repair requirements for specific heat exchangers within the heat exchange system. Specifically, we considered defining a closed-loop heat exchange system as “a cooling tower, all petroleum refinery process unit heat exchangers serviced by that cooling tower that are in organic HAP service, as defined in this subpart, and all water lines to and from these petroleum refinery process unit heat exchangers.” The qualifications in this definition provide clarity that the repair requirements in 40 CFR 63.654 apply only to refinery process unit heat exchangers that are in organic HAP service; other heat exchangers that might be serviced by a common cooling tower are not part of the “heat exchange system.” A similar revision for once-through systems would be “all heat exchangers that are in organic HAP service, as defined in this subpart, servicing an individual petroleum refinery process unit and all water lines to and from these heat exchangers.” Considering the broad definition of “petroleum refinery process unit” and the existing exclusions in 40 CFR 63.640(g), we are finalizing these revisions to the definition of heat exchange system because we believe that these revisions clarify the intent of the requirements within Refinery MACT 1 as finalized in October 2009 and limit the applicability of the repair requirements to individual heat exchangers servicing refinery process units.

Comment: Two commenters suggested that all sample coolers and pump seal coolers should be specifically exempted from the monitoring requirements and/or that the threshold in 40 CFR 65.610(b)(3) should be raised from 10 gallons per minute to 50 gallons per minute. The commenters stated that it was burdensome to have to evaluate the flow rate for every sample cooler at the refinery in order to assess the monitoring applicability and that sample coolers were not considered in the EPA analysis of heat exchange systems.

Response: In the January 2012 proposal, we included an exemption for very small heat exchange systems (those with water flow rates less than 10 gallons per minute). This exemption was specifically targeted to exempt sample coolers and pump seal coolers because we did not consider these coolers significant sources of emissions and did not include them in our MACT floor and impacts analysis for the October 2009 final rule. We considered providing a higher flow exclusion to individual heat exchangers, but this would still require the refinery owners and operators to identify and assess the flow rates of each sample cooler. After reviewing the options, we have concluded that adding language to specifically exclude sample coolers and pump seal coolers from the definition of heat exchange system provides the clearest means to ensure that the regulations do not unintentionally capture these “coolers” that were not considered part of a “heat exchange system” in our original analysis and that we did not intend to be monitored under the Refinery MACT 1 regulations. See the new regulatory definition at 40 CFR 63.641 for heat exchange system.

Comment: One commenter suggested that the EPA define the term “strippable hydrocarbons” to mean the hydrocarbons measured by any of the methods specified in 40 CFR 65.610(a)(3).

Response: We considered providing a specific definition of “strippable hydrocarbons” in these final amendments, but the suggested definition is unnecessary since we are not finalizing the use of water methods as an alternative monitoring method for petroleum refineries. The monitoring method required by the regulations, the Modified El Paso Method, provides the best definition of strippable hydrocarbons as it relates to potential emissions from heat exchange systems.

Comment: One commenter supported the proposed revisions clarifying the construction date criteria for defining a new source for the purpose of the heat exchange provisions.

Response: We appreciate support of this clarification.

Comment: One commenter recommended deleting the provision that limits once-through heat exchange systems to a single process unit because the MACT floor analysis does not support this approach. Although the process unit restriction is currently in 40 CFR 63.641, the commenter noted that this language was not in the September 4, 2007, proposal or the November 10, 2008, supplemental proposal and, therefore, has not been subject to public comment until now. The commenter stated that, if the process unit restriction is maintained, the EPA should limit the rule to monitoring systems with a flow greater than 5,000 gallons per minute because the EPA's analysis shows control for smaller systems is not cost effective. The commenter also suggested that the EPA's analysis did not consider monitoring once-through systems individually.

Response: Although the original MACT floor and impacts analysis (see the technical memorandum titled, “Cooling Towers: Control Alternatives and Impact Estimates,” Docket Item No. EPA-HQ-OAR-2003-0146-0143) referred to “cooling towers” rather than “heat exchange systems,” we believe the analysis adequately considered all heat exchange systems at all petroleum refineries. We projected the nationwide total number of “cooling towers” to be 520 using information from the Texas Commission on Environmental Quality (TCEQ) for 50 petroleum refineries and extrapolating (considering capacity) to all U.S. petroleum refineries. Based on this analysis, every refinery was projected to have several “cooling towers” or “heat exchange systems” in our MACT floor and impacts analysis, and we assumed that refineries with once-through cooling systems would have a similar number of heat exchange systems (per refining capacity) as refineries with closed-loop (cooling tower) systems. We conducted analyses to determine how the number of cooling towers or heat exchange systems would affect our MACT floor calculations if there were more than our estimated 520. Because the monitoring and repair requirements for many of the best-performing heat exchange systems were identical, we determined that the MACT floor requirements for existing sources would be the same even if there were as many as 666 affected “cooling towers” or “heat exchange systems” (see the technical memorandum titled, “Revised Impacts for Heat Exchange Systems at Petroleum Refineries,” Docket Item No. EPA-HQ-OAR-2003-0146-0230).

To further verify our MACT floor calculations, we reviewed the information collected during the detailed information collection request (ICR) for petroleum refineries (see Docket Item Nos. EPA-HQ-OAR-2010-0682-0061 through 0069). The definition for heat exchange system in the ICR was identical to the definition in Refinery MACT 1 (with once-though systems limited to individual process units). Based on the ICR responses, there are 525 heat exchange systems that are in organic HAP service and that do not qualify for the exemption from monitoring based on higher water-side pressures; only 21 of these 525 are once-through heat exchange systems. We note that there are 50 additional closed-loop heat exchange systems for which respondents did not answer these “applicability” questions, so we project that the total number of affected heat exchange systems is somewhat more than 525 but less than 575. Therefore, our estimate of 520 affected heat exchange systems (including once-through systems) was reasonably accurate, and the existing source MACT floor monitoring requirements would not be impacted had we used the upper range estimate from the ICR data. As such, we disagree that our MACT floor analysis is inconsistent with the restriction of once-through systems to a single process unit.

With respect to the suggestion that we limit the monitoring of closed-loop heat exchange systems to only those with flows of 5,000 gallons per minute or more, we note that closed-loop heat exchange systems that have flow rates less than 5,000 gallons per minute are common at refineries. These smaller heat exchange systems were included in our MACT floor and impacts analysis, and we did not subcategorize these heat exchange systems by size. The assertion that monitoring these smaller heat exchange systems is not cost effective is not relevant; we do not consider costs in developing the MACT floor requirements. We only consider costs when evaluating alternatives beyond the MACT floor. As described previously, we believe we adequately considered the total number of affected heat exchange systems (including once-through and small heat exchange systems) when establishing the MACT floor requirements for existing sources.

We noted in the January 2012 proposal that: “A once-through heat exchange system could include all heat exchangers at the entire facility. The potential to aggregate all cooling water at a facility (as opposed to a single process unit) prior to sampling for a once-through system would greatly reduce the effectiveness of the leak monitoring methods and would allow HAP or VOC leaks to remain undetected, based solely on the dilution effect from the vast quantity of water processed at the facility.” (See 77 FR 967). We specifically requested comment on how we might allow some aggregation across units but not allow dilution across all units at the plant. The commenter did not provide any suggestions on this point, but rather suggested that if aggregation were not allowed, once-through heat exchange systems with flow less than 5,000 gallons per minute should be excluded.

For closed-loop heat exchange systems, there are physical limitations on the cooling tower that limit the number of units that can be serviced by the cooling tower. Again, our analysis suggested there would be several heat exchange systems per refinery compared to a single heat exchange system for once-through systems. On the other hand, we recognize that the definition of “heat exchange system” in the October 2009 final rule limits aggregation for refineries operating once-through systems more than refineries that operate closed-loop systems. Therefore, we evaluated several ways to afford some aggregation for once-through heat exchange systems so that these systems would be more comparable to the “cooling tower” heat exchange systems identified in the MACT floor memorandum (Docket Item No. EPA-HQ-OAR-2003-0146-0143). We identified no appropriate way to allow some, but constrained aggregation across process units within the definition of heat exchange system. Therefore, we are not modifying the definition of “heat exchange system” as it relates to once-through systems (i.e., a once-through heat exchange system is still limited to the heat exchangers associated with a single refinery process unit). As an alternative, we evaluated allowing monitoring for once-through cooling systems at locations that include cooling water from several heat exchange systems. Based on the responses from the detailed ICR, approximately 90 percent of all cooling towers (i.e., closed-loop heat exchange systems) at petroleum refineries have flow rates of 40,000 gallons per minute or less. As such, we consider that this 90th percentile value provides a reasonable proxy of the upper level of aggregation provided to facilities with closed-loop heat exchange systems. By allowing once-through heat exchange systems to monitor at locations that include cooling water from several heat exchange systems, provided that the combined cooling water flow rate at the monitoring location does not exceed 40,000 gallons per minute, we are providing a means to aggregate across process units in a manner similar to that afforded to closed-loop heat exchange systems, which is the assumption made in our MACT floor and impacts analyses. As this level of aggregation is similar to that for closed-loop heat exchange systems, we expect that this provision will achieve the same emission reductions at the same costs as projected for our model closed-loop heat exchange systems. We also note that this approach is preferable to the suggested exemption for all once-through heat exchange systems below 5,000 gallons per minute because it achieves greater emission reductions at similar costs. Therefore, we have amended the monitoring location for once-through heat exchange systems to allow monitoring at a point where discharges from multiple heat exchange systems are combined, provided that the combined cooling water flow rate at the monitoring location does not exceed 40,000 gallons per minute.

Comment: Several commenters stated that the EPA should retain the exemption for heat exchange systems that have an intervening cooling fluid that contains less than 5 percent by weight of HAP.

Response: This exemption was included in the October 2009 final standards for refinery heat exchange systems and it was our intent to retain this existing exemption for petroleum refineries. However, when the heat exchange system Uniform Standards were proposed, we inadvertently omitted a cross-reference to this exemption from Refinery MACT 1. As noted previously, we are not promulgating the Uniform Standards or the cross-references to the Uniform Standards from Refinery MACT 1. The provision to exempt heat exchange systems that use an intervening fluid that is less than 5 percent by weight HAP is retained as a part of Refinery MACT 1.

Comment: One commenter suggested that the introductory paragraph in 40 CFR 65.610(b) should specify that engineering judgment may be used to determine whether any of the exemption criteria are met.

Response: As noted in section III of this preamble, heat exchangers may be excluded from a “heat exchange system” based on differential pressure or the presence and content of an intervening fluid. We did not specify that engineering judgment can be used for the differential pressure exemption, either in the October 2009 final rule or the January 2012 proposed amendments. We expect that direct pressure measurements of the process fluids and cooling water lines will be made in a representative location at which the pressure exclusion can be documented. With respect to the intervening fluid exemption, we intended that the same requirements used to determine “in organic HAP service” would apply to the intervening fluid. We revised the description of this exemption to specify that the provisions of 40 CFR 63.180(d) of subpart H should be used; 40 CFR 63.180(d) allows the use of “good engineering judgment” under most circumstances.

Comment: One commenter suggested that the compliance date be reset to be at least 1 year after the promulgation date of the final amendments to provide time for the refineries to develop procedures for complying with the proposed options and any other changes made in response to public comments.

Response: Petroleum refinery owners and operators have been on notice of the October 29, 2012, compliance date since promulgation of the heat exchange standards in October 2009. Refinery owners and operators that follow the requirements in the October 2009 final rule will be in compliance with these final amendments. If a facility elects to change to quarterly monitoring at the lower leak definition, there are provisions in the final amendments for how this change can be made. Therefore, there is no need to reset the compliance date.

Comment: Several commenters requested that a leak be determined based on the difference between inlet and outlet concentrations. One commenter specifically noted that the EPA should reconsider this approach, which is used in the Hazardous Organic NESHAP (“HON”; 40 CFR part 63 subpart F), for refinery heat exchange systems. The commenter disputed the EPA claims that accumulating hydrocarbons in the cooling water are evidence of a leak and that small leaks are cost effective to repair, stating the build-up of organic chemicals can be caused by the use of chemical additives for corrosion or biological growth prevention and these heavy compounds are not stripped in the cooling tower as completely as they are in the Modified El Paso Method stripping column.

Response: The rule does not provide for the use of inlet and outlet sampling for closed-loop heat exchange systems because the MACT floor requirements for heat exchange systems were based on existing monitoring of the cooling water return line only. If the rule allowed the use of a concentration differential, it would be less stringent than the MACT floor because the MACT floor monitoring was not based on a differential concentration, but the direct concentration in the cooling water return line. Although we expect that the strippable hydrocarbons measured by the Modified El Paso Method will be largely removed (i.e., released to the air) in the cooling tower so that the cooling water inlet to the heat exchangers will have limited concentrations of strippable hydrocarbons, it is unlikely that this concentration would be exactly zero. Therefore, using a concentration differential produces a concentration that has been adjusted to account for hydrocarbons still in the water after the cooling tower, and is lower and therefore less likely to trigger the leak definition. We did not allow this option for closed-loop heat exchangers. The rule does provide for the use of inlet and outlet sampling for once-through heat exchange systems. While we have taken the position that once-through heat exchange systems have a similar emission potential as closed-loop systems, we acknowledge that these systems are different in operation and that contaminants may be present in the pond, river or other source of once-through cooling water that is beyond the control of the refinery owner or operator and that will not be “pre-stripped” in a cooling tower. Therefore, we conclude that it is reasonable and necessary to allow a concentration differential to be used to determine a leak for once-through heat exchange systems.

Comment: One commenter noted that the requirements in 40 CFR 65.610(e) are unnecessarily burdensome because they require a source to monitor all heat exchangers to find a leak and they appear to require continued monthly testing of all heat exchangers even if the leak is not from an exchanger that is subject to the repair requirements. This commenter also recommended simply requiring the leaking exchanger to be identified by the most expeditious process and then requiring repair only if the leaking exchanger is in service associated with a referencing subpart.

Response: The cited provisions do not require monitoring of all affected heat exchangers to find a leak. The refinery owner or operator can use any method they choose to identify the leaking heat exchanger. If the identified leaking heat exchanger is not in HAP service, then the refinery owner or operator has two options: (1) fix the leak and continue to monitor in the main cooling tower return line or (2) demonstrate that all heat exchangers within the heat exchange system that are subject to the monitoring and repair provisions are not leaking by monitoring each heat exchanger or group of heat exchangers subject to the repair provisions. Thus, the option of monitoring each heat exchanger or group of heat exchangers is not required to identify the leaking heat exchanger; rather, this monitoring option is provided only for the case in which the refinery owner or operator elects not to fix a leak that was identified through monitoring of the cooling tower return line on the grounds that the leaking heat exchanger is not subject to the repair provisions in Refinery MACT 1.

Comment: One commenter suggested that the monitoring frequency/leak definition alternatives for existing sources should be allowed on an individual or group of heat exchangers basis as well as on a heat exchange system basis.

Response: The rule allows monitoring at the individual heat exchanger (or group of heat exchangers) level or at the heat exchange system level (i.e., monitoring at the cooling tower). However, in order to allow this flexibility for either aggregate or individual monitoring to be performed without any notification to the EPA, all heat exchangers that are part of a heat exchange system must use the same monitoring frequency and leak definition. We considered allowing the suggested alternative for individual heat exchangers within a heat exchange system, but concluded that it would likely result in uncertainty regarding what compliance monitoring, reporting and recordkeeping requirements would be required for individual heat exchangers. As the affected facility is the heat exchange system, we consider it appropriate that the same monitoring frequency and leak definition be used for all monitoring locations within one heat exchange system. The final rule clearly allows (in 40 CFR 63.654(c)(4)) the owner or operator of existing sources to use the alternative quarterly monitoring option for some heat exchange systems and the monthly monitoring option for others but all heat exchangers or groups of heat exchangers within a single heat exchange system must use the same monitoring frequency and leak definition.

Comment: Two commenters noted that section 5.1.1.4 of the Modified El Paso Method specifies that samples must be drawn from a location prior to the risers. The commenter requested clarification that monitoring may instead be conducted either prior to the risers or in any individual riser because the concentration of hydrocarbons is distributed equally to each riser and the system has no openings to the atmosphere prior to discharge into the cooling tower cells. They also noted that refineries often monitor in a riser and changes needed to enable monitoring prior to the riser would require a significant capital expenditure.

Response: The final amendments describe monitoring locations specific for Refinery MACT 1 and then separately describes the allowed monitoring methods. Reference to the Modified El Paso Method is confined to the monitoring method section of Refinery MACT 1, and the Modified El Paso Method's restriction on sampling in the riser is not applicable. Nonetheless, we have provided specific clarifications in the monitoring location section that monitoring in the cooling tower riser (prior to exposure to the atmosphere) is allowed.

Comment: One commenter stated that, in addition to a flame ionization detector, the EPA should allow use of other detectors, such as a photo ionization detector or mass spectrometry and online gas chromatograph (GC) capable of equivalent sensitivity for target compounds when using the Modified El Paso Method.

Response: We specifically require the stripping gas concentration to be determined in ppmv as methane. While a refinery owner or operator may elect to use a GC and other analyzers to speciate the compounds present in the cooling water in order to identify the specific heat exchangers or group of heat exchangers responsible for the leak, the leak itself must be determined using a flame ionization detector calibrated with methane following the procedures in section 6.1 of the Modified El Paso Method. As discussed in further detail in the following comment and response, we find that speciated analysis of target compounds in the stripping gas is likely to result in incomplete characterization of the total hydrocarbon concentration and could be less stringent than the MACT floor determined for petroleum refinery heat exchange systems. We have further clarified this requirement in these final amendments by specifically referencing section 6.1 of the Modified El Paso Method. However, this requirement does not preclude the refinery owner or operator from conducting additional analysis of the stripping gas as a means to identify the leaking heat exchanger.

Comment: Several commenters requested that the rule allow additional measurement methods in order to characterize the compounds that could leak into the cooling water. The measurement methods suggested include EPA Method 624 of Appendix A to 40 CFR part 136 and SW-846 Methods 8270 and 8315. Commenters also stated that characterizing all volatile compounds (or even all volatile organic HAP) is often impossible due to the high number of compounds that may be in a process stream, and it is not necessary, as detection of key compounds from the process is all that is needed to identify a leak. One commenter suggested that this rule should be like the TCEQ's rule that requires characterization of compounds with boiling points less than 140 degrees Fahrenheit (°F). This commenter recommended allowing any measurement method that is sensitive to at least 90 percent of the species with boiling points less than 140 °F, and allowing subtraction of compounds with boiling points greater than 140 °F from the “total strippable hydrocarbon” concentration. Several commenters recommended including a general procedure for monitoring surrogate species or indicator species rather than requiring full speciation. For example, one commenter requested that the rule allow the analysis to focus on one compound that the method easily detects and then estimate the total strippable hydrocarbon concentration assuming the ratio of that compound to all organic compounds in the cooling water is the same as in the process fluid.

Response: We acknowledge the difficulty characterizing all compounds in a petroleum refinery process stream. While we considered including additional test methods, the inclusion of additional test methods did not appear to address the primary issue regarding the ability to fully characterize the compounds that could leak into the cooling water. We disagree that the characterization of compounds should be limited to compounds with boiling points less than 140 °F. Hexane, benzene and toluene all have boiling points above 140 °F; these compounds are expected to be emitted from heat exchange systems and are expected to be detectable using the Modified El Paso Method. The Modified El Paso Method was designed to have high (99 percent or higher) recovery of compounds with boiling points below 140 °F and avoids potential losses of highly volatile compounds associated with direct water sampling methods. For this reason, while the Modified El Paso Method is required to be used by the TCEQ for cooling tower sampling when pollutants have boiling points below 140 °F, it is incorrect to conclude that the Modified El Paso Method will not measure any compounds with boiling points greater than 140 °F.

Since the data used to establish the MACT floor were based on the Modified El Paso Method, in order to be at least as stringent as the MACT floor, any alternative monitoring option provided in the rule must be as effective as the El Paso Method in detecting the HAP that are indicative of a leak. Limiting the direct water method analysis only to compounds with boiling points less than 140 °F would be less stringent than the Modified El Paso Method and thus we disagree with the commenter that direct water methods should be provided as an option.

In the proposed Heat Exchanger Uniform Standards, we proposed to allow the use of a water method that would identify all leaked compounds as an alternative monitoring method. Our intent was for this approach to be used where a heat exchanger cooled a process fluid that contained a very limited number of compounds. We expected that very few, if any, petroleum refinery heat exchange systems would choose to use the water methods for most heat exchangers, given the requirement to fully characterize all compounds that could leak into the cooling water.

The proposed water methods were expected to be at least as stringent as the Modified El Paso Method because the requirement to fully characterize the pollutants that could leak into the wastewater would include all compounds, even those that may not be effectively stripped in the stripping column (or cooling tower). Options to limit the full characterization requirement call into question the ability of the water methods to be as stringent as the total strippable hydrocarbon analysis using the Modified El Paso Method.

In light of the complexity of most petroleum refinery process streams, we are concerned that there may be a leak that exceeds 40 parts per billion by weight (ppbw) total strippable hydrocarbons in the water-phase as determined by back-calculation from the Modified El Paso Method results, but because of the number of different compounds present in the petroleum refinery stream (often on the order of 50 to 100 different compounds), the concentrations of the individual compounds could all be below the analytical detection limit (typically about 5 to 10 ppbw in the cooling water). In such a case, the water methods, even with low detection limits, may not provide a suitable alternative to the Modified El Paso Method for refinery heat exchange systems.

To further evaluate our concerns regarding the use of water measurement methods for refinery heat exchange systems, we reviewed the source test data received in response to the cooling water testing required as part of the detailed information collection request for petroleum refineries. We compared the stripping column gas sampling results with those from the direct water methods (see the memorandum titled, “Evaluation of the Refinery ICR Cooling Water Analysis Results” in Docket ID No. EPA-HQ-OAR-2003-0146). We found that the analytical methods for chemical species (in both stripping gas analysis and water samples) greatly underestimated the overall concentrations of hydrocarbons, primarily because these analyses were conducted using a specific target analyte list. As the water methods (or gas-phase speciated analysis methods) generally include a specific list of target analytes, we now expect that these methods could lead to less effective leak identification.

We considered the alternative of monitoring a specific compound and extrapolating that compound concentration to determine a total strippable hydrocarbon concentration, but we determined that this approach generally would be more complicated and burdensome than direct Modified El Paso monitoring, given the complexity of petroleum refinery process fluids and the likelihood that several different heat exchangers (with process fluids of differing compositions) may be serviced by a single cooling tower (i.e., heat exchange system). We see no easy way to specify “a general procedure for monitoring surrogate species or indicator species” while ensuring equivalency with the Modified El Paso Method. One would need to use the Modified El Paso Method to develop the extrapolation factor for each process fluid that could potentially leak into the cooling water and to verify that the method used provides adequate detection limits. This would be difficult to do and complex, considering the potential variation in compounds and concentrations across process streams.

Given the complexity of most petroleum refinery process streams, we were unable to identify from the currently available water methods a method that would be suitable for determining the total strippable hydrocarbon concentration with the accuracy and sensitivity needed to be comparable to the Modified El Paso Method. Therefore, we are not finalizing any alternative water methods for monitoring petroleum refinery heat exchange systems.

Comment: Several commenters requested that the rule allow measurement of surrogates. One commenter requested inclusion of the full spectrum of monitoring methods currently listed in the HON, the National Emission Standards For Ethylene Manufacturing Process Units: Heat Exchange Systems And Waste Operations (40 CFR part 63, subpart XX) (“Ethylene NESHAP”), and the online monitoring for ethylene and propylene that is allowed in TCEQ HRVOC Rule (TAC Title 30 Part I Chapter 115 Div. 2 § 115.764). One commenter noted that the proposed methods would require most facilities to use offsite test resources, but other methods, particularly if surrogates can be measured, would allow sites to conduct analyses themselves and respond more quickly to any leaks.

Response: We disagree with the comments suggesting all measurement methods provided in the HON, the Ethylene NESHAP or the TCEQ rules should be allowed. The leak definition for petroleum refineries is lower than specified in those rules. In our revised impacts analysis for the proposed amendments(see the technical memorandum titled, “Revised Impacts for Heat Exchange Systems at Petroleum Refineries,” Docket Item No. EPA-HQ-OAR-2003-0146-0230), the leak detection level was generally the most important parameter influencing the effectiveness of the heat exchange system monitoring program. We evaluated a series of “surrogate” methods when evaluating different heat exchange system monitoring alternatives for the October 2009 final rule and concluded that these surrogate methods were not as effective as identifying leaks as the Modified El Paso Method.

We acknowledge that the proposed water method alternatives would often require the use of external laboratories; however, as discussed previously, we are not finalizing the proposed water method alternatives. The Modified El Paso Method, on the other hand, is performed on-site. The method is relatively simple and can be operated by refinery personnel or outside contractors to provide immediate leak monitoring results, so it has the same advantages of the “surrogate” methods while also being able to detect small leaks.

Comment: One commenter requested that sources be allowed up to 7 calendar days for re-monitoring a heat exchange system to verify repair when a repaired heat exchanger is returned to service either after the end of the 45-day normal repair window (as long as the heat exchanger was taken out of service before the end of that 45-day window) or after an allowed delay of repair period. The commenter noted that if the heat exchanger is taken out of service as the means of repair and then brought back into service after the 45-day window, then additional time is needed to start up, line-out, and retest that heat exchanger.

Response: In the January 2012 proposal, we proposed to clarify that under the existing MACT standard, “repair” includes verification that the actions taken to repair the leak were effective through re-monitoring of the heat exchange system. We consider the 45-day repair window for a typical repair as well as the additional time provided for a delayed repair to be adequate considering the time necessary to re-monitor the heat exchange system. We expect that repairs will be made as expeditiously as possible and that the actions will be taken with sufficient time to confirm the repairs within the 45-day repair window. Refinery MACT 1 specifically allows the use of removing a heat exchanger from service as a means to effect repair in 40 CFR 63.654(d)(5). The heat exchange system would need to be re-monitored within the 45-day window to verify that the removal of the heat exchanger effectively reduced the total hydrocarbons in the cooling water to below the leak threshold levels. In this case, the removal of the heat exchanger from service would accomplish the repair and the owner or operator could revert back to their chosen monitoring frequency.

The rule is silent on a special monitoring event for the case in which the removed heat exchanger is subsequently placed back into service. This case is similar to the case where a new heat exchanger (or group of heat exchangers) is added to an existing heat exchange system. We interpret the rule to require only the routine heat exchange system monitoring with no special monitoring event required when adding these “new” heat exchangers to the heat exchange system. We anticipate that any “new” or “repaired” heat exchanger would be properly pressure tested prior to being placed in service. As such, these heat exchangers would be unlikely to leak, so the routine monitoring frequency is considered sufficient. We also note that, if an owner or operator removes a heat exchanger from service as a means to effect a repair, but then returns the same heat exchanger to service without any modification or repair, that owner or operator could be subject to potential enforcement actions for not complying with the operating and maintenance requirement “. . . to maintain any affected source . . . in a manner consistent with safety and good air pollution control practices for minimizing emissions” as required in the General Provisions at 40 CFR 63.6(e).

Comment: One commenter suggested allowing delay of repair until the next scheduled process shutdown if the source opts to strip hydrocarbon from the cooling water and either recover it (as fuel or for process use) or collect and convey it to combustion control.

Response: Provided that the stripped gases are properly captured and controlled, the current provisions would not exclude these actions as a means of compliance. The rule only lists those repair actions that are most likely to occur but we explicitly indicate that the list of repair actions is not all inclusive. If the actions described by the commenter reduce the concentration of strippable hydrocarbons to below the applicable leak action levels while preventing the release of those hydrocarbons to the atmosphere, we consider that these actions qualify under 40 CFR 63.654(d) as a repair, in which case the delay of repair would not be needed.

If the actions described by the commenter do not reduce the strippable hydrocarbon concentration to below the leak action level, the existing delay of repair provisions, if applicable, can be used to continue operating until the next scheduled shutdown. In this case, the actions described by the commenter could be used to help prevent an exceedance of the delay of repair action level and thereby maintain the delayed repair. However, if the leak ever exceeds the delay of repair action level, the owner or operator could not use these actions merely to reduce the strippable concentration to below the delay of repair action level. Once the delay of repair threshold is exceeded, the owner or operator of the affected heat exchange system must repair the source within 30 days by reducing the strippable hydrocarbon concentration to below the leak action level.

Comment: One commenter requested confirmation that the guidelines given in TCEQ's Sampling Procedures Manual, Appendix P, paragraph 7.2 should be used for determining the molecular weight to use in equation 7.1 of the Modified El Paso Method when determining potential emissions during a delayed repair.

Response: The TCEQ's Sampling Procedures Manual, Appendix P, is the Modified El Paso Method that is incorporated by reference in the heat exchange system provisions of Refinery MACT 1. In 40 CFR 63.654(g)(4), we specifically indicate that the stripping air concentration must be converted to a water concentration using Equation 7-1 of the Modified El Paso Method. Paragraph 7.2 of the Modified El Paso Method specifically notes that “[f]or total VOC based on the portable FID analyzer procedure in Section 6.1, calculate total VOC concentration in the water and emission rate based on the molecular weight of methane . . .” We specifically require the use of the stripping gas concentration to be determined using flame ionization detector (FID), as noted in section 6.1 of the Modified El Paso Method, calibrated with methane (“as methane”). Therefore, the molecular weight of methane (16 grams per mole) should be used when determining the equivalent water concentration using Equation 7-1 of the Modified El Paso Method when calculating the potential strippable hydrocarbon emissions for a delayed repair. We have clarified this requirement in these final standards.

Comment: One commenter requested clarification that the requirement to record water flow rates applies only to monitoring events in which a leak is detected and the equipment is placed on delay of repair because this is the only occasion in which flow rates are needed. Another commenter stated that records of water flow and emissions estimates should be required only if the rule allows delay of repair based on a demonstration that the emissions caused by delaying repair are less than the emissions caused by a process unit shutdown, if needed, to effect the repair because this is the only situation where water flow and emissions are relevant. If these requirements are not deleted, one of the commenters stated that the EPA should clarify that the recordkeeping requirement is an estimate of “potential strippable hydrocarbon emissions” instead of “potential emissions” because the latter might be misinterpreted to mean organic HAP emissions, which are only a fraction of the hydrocarbon emissions. In addition, a commenter stated that the EPA should clarify that reporting of “an estimate of total strippable hydrocarbon emissions for each delayed repair over the reporting period” covers only the time period from the date by which repair would have had to be completed if it were not delayed until the repair was completed.

Response: The October 2009 final rule requires a record of the cooling water flow rate for each monitoring event. However, the commenter correctly notes that the requirement in 40 CFR 63.654(g)(4)(ii) to determine the flow rate of cooling water only applies during periods in which repair is delayed. As such, we agree with the commenter that the regulations should not require records of the cooling water flow rate for all cooling towers or heat exchangers because the flow rate only needs to be determined for heat exchange systems for which repair is delayed. Therefore, we are moving the requirement to keep a record of the cooling water flow rate to the paragraph that is limited to delayed repairs, which is 40 CFR 63.655(i)(4)(v) in today's final rule.

We disagree that recordkeeping and reporting of flow rate and potential emissions should only be required where emission caused by delay of repair are demonstrated to be less than they otherwise would be during a shutdown. Stakeholders including the public should be made aware of the potential air emissions releases that may occur based on the decision to delay repair.

We agree that the phase “potential strippable hydrocarbon emissions” more accurately describes the delay of repair emission estimate than the phrase “potential emissions” and we are clarifying the language as suggested by the commenter. Specifically, we are revising “potential emissions” to instead read “potential strippable hydrocarbon emissions” in the heat exchange system requirements at 40 CFR 63.654(g)(4), the reporting requirements at 40 CFR 63.655(g)(9)(v) and the recordkeeping requirements at 40 CFR 63.655(i)(4)(v) in today's final rule.

As described previously in section III of this preamble, today's final rule requires that these emission estimates be determined for each monitoring interval instead of over the “expected duration of the delay.” To address the commenter's concern, we are specifying in 40 CFR 63.654(g)(4)(iii) that “The duration of the delay of repair monitoring interval is the time period starting at midnight of the day of the previous monitoring event or midnight of the day the repair would have had to be completed if the repair had not been delayed, whichever is later, . . .” Given this clarification in the start of the delay of repair interval and the coordination between the emission estimate methodology and reporting requirements, we do not believe that additional language is needed in 40 CFR 63.655(g)(9)(v) to further clarify that the delay of repair starts at the end of the 45-day period provided to complete a repair under normal circumstances.

Comment: One commenter requested clarification of the term “original date” in the reporting requirements in 40 CFR 63.655(g)(9)(v) for delayed repair.

Response: We are clarifying this regulatory provision by revising the phrase “original date” to instead say “date when the delay of repair began.” As noted in the clarified language regarding the calculation of potential emissions during a delayed repair, the date the delay of repair began is equivalent to the day the repair would have had to be completed if the repair had not been delayed.

Comment: One commenter stated that the proposed requirements to identify the “measured or estimated average annual regulated material concentration of process fluid or intervening cooling fluid processed in each heat exchanger” will be a very burdensome and unnecessary ongoing requirement rather than one-time requirement as specified in 40 CFR 63.655(i)(4)(i).

Response: We agree that we should retain this as a one-time requirement. We did not intend to make this an ongoing requirement. The revised language cited by the commenter was part of the proposed Uniform Standards, which we proposed to cross-reference from Refinery MACT 1 but are not finalizing in this action. We are not revising the “one-time” requirement as specified in 40 CFR 63.655(i)(4)(i).

Comment: One commenter suggested deleting paragraphs (b) and (c) in 40 CFR 65.620 (i.e., reporting the number of heat exchange systems in regulated material service found to be leaking and the summary of the monitoring data that indicate a leak) because they duplicate the information required by paragraph (d) (i.e., reporting the date a leak was identified, the date the source of the leak was identified and the date of repair) or are unnecessary. Alternatively, the commenter suggested that the EPA should at least revise 40 CFR 65.620(b) to require reporting of the number of leaking heat exchangers rather than heat exchange systems, and revise 40 CFR 65.620(c) to clarify what monitoring data to report and eliminate the redundancy.

Response: The comments refer to the reporting and recordkeeping provisions that we proposed to codify as part of the Uniform Standards, which we are not finalizing in this action. The similar provisions in Refinery MACT 1, which we are retaining rather than cross-referencing the Uniform Standards, as proposed, are the reporting provisions in 40 CFR 63.655(g)(9)(ii) through (iv). We disagree with the commenter that there is undue overlap in these provisions. The number of heat exchange systems at the plant site found to be leaking (40 CFR 63.655(g)(9)(ii)) provides a useful summary to the report review. Analogous to the number of fugitive components found to be leaking over a semiannual period, which is also required to be reported under Refinery MACT 1, this information is an indicator of both leak program effectiveness and the refinery's operating and maintenance practices. While one could count each entry in the list of leaking heat exchange systems required in 40 CFR 63.655(g)(9)(iii), we do not consider this duplicative of the list. We do agree that the “summary of monitoring data” could be more clearly delineated. To address this concern, we have revised the provisions in 40 CFR 63.655(g)(9)(iii) to specifically list the desired reporting elements. We also consolidated some of the reporting elements from 40 CFR 63.655(g)(9)(iv) into 40 CFR 63.655(g)(9)(iii) and revised 40 CFR 63.655(g)(9)(iv) to focus on reporting elements for leaks that were repaired during the reporting period. These reporting requirements are now more clear and distinct with no duplication.

Comment: One commenter noted that it would be burdensome to identify, characterize or include pump seal coolers and sample coolers in the heat exchanger inventory and applicability determination. The commenter stated that there is no need for this requirement because those that are once-through coolers should be presumed to meet the low flow exemption criteria and those that are part of a recirculating system with large heat exchangers would be effectively regulated by monitoring of the cooling tower return lines.

Response: We never intended to require monitoring of sample coolers and pump seal coolers. As discussed previously, sample coolers and pump seal coolers are specifically excluded from the definition of heat exchange system in today's final rule, so these coolers do not have to be identified as part of the heat exchange system recordkeeping provisions.

These final amendments will have no cost, environmental, energy or economic impacts beyond those impacts presented in the October 2009 final rule for heat exchange systems at petroleum refineries. If the owner or operator of an existing petroleum refinery elects the quarterly monitoring alternative at the lower leak definition or if the owner or operator of a once-through system can aggregate flows across process unit boundaries, we anticipate that the facility will realize a net cost savings compared to the costs estimated for the October 2009 final rule. All other amendments are projected to be cost-neutral.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is a “significant regulatory action” because it may raise novel legal or policy issues. Accordingly, the EPA submitted this action to the Office of Management and Budget (OMB) for review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011), and any changes made in response to OMB recommendations have been documented in the docket for this action.

This action does not impose any new information collection burden. The final amendments are clarifications and technical corrections that do not affect the estimated burden of the existing rule. Therefore, we have not revised the information collection request for the existing rule. However, OMB has previously approved the information collection requirements contained in the existing rule (40 CFR Part 63, subpart CC) under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501, et seq., and has assigned OMB control number 2060-0340. The OMB control numbers for the EPA's regulations are listed in 40 CFR Part 9.

The Regulatory Flexibility Act generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities (SISNOSE). Small entities include small businesses, small organizations and small governmental jurisdictions.

For the purposes of assessing the impacts of this final rule on small entities, small entity is defined as: (1) A small business that meets the Small Business Administration size standards for small businesses at 13 CFR 121.201 (a firm having no more than 1,500 employees); (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.

After considering the economic impacts of this final rule on small entities, I certify that this action will not have a SISNOSE. In determining whether a rule has a SISNOSE, the impact of concern is any significant adverse economic impact on small entities, since the primary purpose of the regulatory flexibility analyses is to identify and address regulatory alternatives “which minimize any significant economic impact of the rule on small entities.” 5 U.S.C. 603 and 604. Thus, an agency may certify that a rule will not have a SISNOSE if the rule relieves regulatory burden, or otherwise has a positive economic effect on all of the small entities subject to the rule.

Based on our economic impact analysis, the amendments will have no direct cost impacts (or they will result in a nationwide net cost savings). No small entities are expected to incur annualized costs as a result of the final amendments; therefore, no adverse economic impacts are expected for any small or large entity. Thus, the costs associated with the final amendments will not result in any “significant” adverse economic impact for any small entity. We have, therefore, concluded that today's final rule will relieve regulatory burden for all affected small entities.

This 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 to the private sector in any one year. As discussed earlier in this preamble, these amendments are cost neutral and may result in net cost savings for the private sector. Thus, this rule is not subject to the requirements of sections 202 or 205 of the Unfunded Mandates Reform Act (UMRA).

This rule is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments. The final amendments contain no requirements that apply to such governments, and impose no obligations upon them.

This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. These final amendments do not add new control and performance demonstration requirements. They do not modify existing responsibilities or create new responsibilities among EPA Regional offices, states or local enforcement agencies. Thus, Executive Order 13132 does not apply to this action. In the spirit of Executive Order 13132, and consistent with EPA policy to promote communications between the EPA and state and local governments, the EPA specifically solicited comment on the proposed amendments from state and local officials.

This action does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). The final amendments will not have substantial direct effects on tribal governments, on the relationship between the federal government and Indian tribes, or on the distribution of power and responsibilities between the federal government and Indian tribes, as specified in Executive Order 13175. The final amendments impose no requirements on tribal governments. Thus, Executive Order 13175 does not apply to this action.

The EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the Order has the potential to influence the regulation. This action is not subject to Executive Order 13045 because it is based solely on technology performance.

This action is not a “significant energy action” as defined in Executive Order 13211 (66 FR 28355, May 22, 2001) because it is not likely to have a significant adverse effect on the supply, distribution or use of energy. Further, we have concluded that the final amendments are not likely to have any adverse energy effects because they are cost neutral and may result in cost savings if the quarterly monitoring option is elected.

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

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

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

The EPA has determined that this final rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. The final amendments do not relax the control measures on regulated sources, and, therefore, do not change the level of environmental protection.

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. The EPA will submit a report containing this final rule and other required information to the United States Senate, the United States House of Representatives and the Comptroller General of the United States prior to publication of the final rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2). This final rule will be effective on June 20, 2013.

For the reasons stated in the preamble, the Environmental Protection Agency amends title 40, chapter I, of the Code of Federal Regulations as follows:

NMFS manages the reef fish fishery of the Gulf, which includes greater amberjack, under the Fishery Management Plan for the Reef Fish Resources of the Gulf (FMP). The Gulf of Mexico Fishery Management Council (Council) prepared the FMP and NMFS implements the FMP under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622. All greater amberjack weights discussed in this temporary rule are in round weight.

The commercial annual catch limit (ACL) for Gulf greater amberjack is 481,000 lb (218,178 kg), as specified in 50 CFR 622.41(a)(1), and the commercial ACT (equivalent to the commercial quota) is 409,000 lb (185,519 kg), as specified in 50 CFR 622.39(a)(1)(v). However, due to an overage of the commercial ACL in 2012, NMFS implemented AMs to reduce the commercial ACT and ACL in 2013. The commercial ACT (commercial quota) was reduced to 338,157 lb (153,385 kg) for 2013 and the commercial ACL was reduced to 410,157 lb (186,044 kg) for 2013 through a temporary rule (78 FR 13284, February 27, 2013).

Under 50 CFR 622.41(a)(1)(i), NMFS is required to close the commercial sector for greater amberjack when the commercial ACT (commercial quota) is reached, or is projected to be reached, by filing a notification to that effect with the Office of the Federal Register. NMFS has determined the adjusted 2013 commercial ACT (commercial quota) will be reached by July 1, 2013. Accordingly, the commercial sector for Gulf greater amberjack is closed effective 12:01 a.m., local time, July 1, 2013, until 12:01 a.m., local time, January 1, 2014.

The operator of a vessel with a valid commercial vessel permit for Gulf reef fish having greater amberjack aboard must have landed, bartered, traded, or sold such greater amberjack prior to 12:01 a.m., local time, July 1, 2013. A person aboard a vessel that has a Federal commercial vessel permit for Gulf reef fish and commercial quantities of Gulf reef fish, may not possess Gulf reef fish caught under a bag limit, as specified in 50 CFR 622.38(a)(2). During the commercial closure, the bag limit specified in 50 CFR 622.38(b)(1), applies to all harvest or possession of greater amberjack in or from the Gulf EEZ, including the bag limit that may be retained by the captain or crew of a vessel operating as a charter vessel or headboat. The bag limit for such captain and crew is zero. During the commercial closure, the possession limits specified in 50 CFR 622.38(c), apply to all harvest or possession of greater amberjack in or from the Gulf EEZ. However, from June 1 through July 31 each year, the recreational sector for greater amberjack is also closed, as specified in 50 CFR 622.34(c), and during this recreational closure, the bag and possession limit for greater amberjack in or from the Gulf EEZ is zero. During the commercial closure, the sale or purchase of greater amberjack taken from the EEZ is prohibited. The prohibition on sale or purchase does not apply to the sale or purchase of greater amberjack that were harvested, landed ashore, and sold prior to 12:01 a.m., local time, July 1, 2013, and were held in cold storage by a dealer or processor.

The 2014 commercial ACT (commercial quota) for greater amberjack will return to 409,000 lb (185,519 kg), as specified at 50 CFR 622.39(a)(1)(v), and the commercial ACL for greater amberjack will return to 481,000 lb (218,178 kg), as specified in 50 CFR 622.41(a)(1)(iii), unless AMs are implemented due to a commercial ACL overage, or the Council takes subsequent regulatory action to adjust the commercial ACT (commercial quota) and commercial ACL.

The Regional Administrator, Southeast Region, NMFS, has determined this temporary rule is necessary for the conservation and management of the Gulf greater amberjack component of the Gulf reef fish fishery and is consistent with the Magnuson-Stevens Act, the FMP, and other applicable laws.

This action is taken under 50 CFR 622.41(a)(1) and is exempt from review under Executive Order 12866.

These measures are exempt from the procedures of the Regulatory Flexibility Act because the temporary rule is issued without opportunity for prior notice and comment.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, (AA), finds that the need to immediately implement this action to close the commercial sector for greater amberjack constitutes good cause to waive the requirements to provide prior notice and opportunity for public comment pursuant to the authority set forth in 5 U.S.C. 553(b)(B), as such procedures would be unnecessary and contrary to the public interest. Such procedures would be unnecessary because the rule itself has been subject to notice and comment, and all that remains is to notify the public of the closure.

Additionally, prior notice and opportunity for public comment would be contrary to the public interest. Given the ability of the commercial sector to rapidly harvest fishery resources, there is a need to immediately implement the closure for the remainder of the 2013 fishing year. Taking time to provide prior notice and opportunity for public comment creates a higher likelihood of the reduced commercial ACT (commercial quota) and commercial ACL being exceeded.

For the aforementioned reasons, the AA also finds good cause to waive the 30-day delay in the effectiveness of this action under 5 U.S.C. 553(d)(3).