The Foreign Agricultural Service, under a delegation of authority from the Secretary of Agriculture, administers the Dairy Tariff-Rate Import Quota Licensing Regulation codified at 7 CFR 6.20-6.37 that provides for the issuance of licenses to import certain dairy articles under tariff-rate quotas (TRQs) as set forth in the Harmonized Tariff Schedule of the United States. These dairy articles may only be entered into the United States at the low-tier tariff by or for the account of a person or firm to whom such licenses have been issued and only in accordance with the terms and conditions of the regulation.

Licenses are issued on a calendar year basis, and each license authorizes the license holder to import a specified quantity and type of dairy article from a specified country of origin. The Import Policies and Export Reporting Division, Foreign Agricultural Service, U.S. Department of Agriculture, issues these licenses and, in conjunction with U.S. Customs and Border Protection, U.S. Department of Homeland Security, monitors their use.

The regulation at 7 CFR 6.34(a) states: “Whenever a historical license (Appendix 1) is not issued to an applicant pursuant to the provisions of § 6.23, is permanently surrendered or is revoked by the Licensing Authority, the amount of such license will be transferred to Appendix 2.” Section 6.34(b) provides that the cumulative annual transfers will be published in the Federal Register . Accordingly, this document sets forth the revised Appendices for the 2013 tariff-rate quota year.

Accordingly, 7 CFR part 6 is amended as follows:

This rule is issued under Marketing Order and Agreement No. 930, as amended (7 CFR part 930), regulating the handling of tart cherries grown in the States of Michigan, New York, Pennsylvania, Oregon, Utah, Washington, and Wisconsin, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

The Department of Agriculture (USDA) is issuing this rule in conformance with Executive Order 12866.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have retroactive effect.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed no later than 20 days after the date of the entry of the ruling.

This rule changes the deadline for submitting the handler reserve plan from November 1 to October 1 and extends the deadline for redeeming or transferring grower diversion certificates issued by the Board from November 1 to June 30 of a given crop year. These changes will provide the industry with a more complete and timely picture of the available supply earlier in the season and will provide handlers more time and flexibility in meeting their obligations under volume regulation. The Board unanimously approved these changes at its March 21, 2013, meeting.

Sections 930.58 and 930.59 of the order provide authority for grower and handler diversion, respectively. In particular, § 930.59(c) requires that handlers notify the Board of their intent to divert cherries. These sections also provide authority for the Board to establish rules and regulations to administer these provisions, with the approval of the Secretary.

Section 930.159 of the rules and regulations establishes requirements for handler diversion. This section currently states, in part, that handlers intending to divert cherries or cherry products under a volume regulation must notify the Board and submit their plan for complying with that season's restriction obligation by November 1.

Section 930.158 of the order's rules and regulations establishes requirements for using grower diversion certificates. This section currently provides that handlers redeem grower diversion certificates with the Board by November 1 of the crop year, as the certificates will not be valid after that date.

Section 930.58 of the order was recently amended to exempt cherries diverted in the orchard (grower diversion) from inclusion in a handler's total volume calculation. When a volume regulation is issued, handlers are obligated to keep a percentage of their total volume in reserve or account for the restricted volume with diversion certificates. These certificates can be earned through export sales, new market or new product sales, or through grower diversion. Before the amendment, the volume of cherries represented by a grower diversion certificate was added to the handler's total volume. Following the amendment, handlers can redeem grower diversion certificates without adding tonnage to their total volume.

Amendments to an order often require conforming changes or adjustments to the administrative rules and regulations. The Board created a committee to review the order's diversion and reporting regulations and present any recommended changes to the Board. This rule implements the two recommended changes: Changing the due date for the handler reserve plan to October 1, and allowing the transfer and redemption of grower diversion certificates through the end of the crop year, June 30.

Separating grower diversion certificates from a handler's total volume simplified the completion of the reserve plan. Consequently, the Board believes handlers will be able to complete their reserve plan for restricted tart cherries at an earlier date. As a result, the Board recommended that the deadline for submitting handler reserve plans be changed from November 1 to October 1 of each season. The reserve plan is submitted in combination with a handler's final pack report. The Board consolidates this data and uses it to issue reports on the final volume processed and available inventory. This date change will provide the industry a more complete and timely picture of the available supply earlier in the season. This information is important to the industry, especially when considering the release of additional reserves when a volume regulation is in effect.

Originally, the deadline to redeem grower diversion certificates was tied to the handler reserve plan as handlers needed to account for grower diversion when calculating their total volume. As such, current regulations establish a due date of November 1 for grower diversion certificates, while other diversion certificates can be transferred throughout the season. With the amendment to the order, grower diversion certificates no longer need to be linked to when the handler reserve plan is due. To bring consistency to the use of diversion certificates, the Board recommended allowing handlers to transfer and redeem grower diversion certificates through the end of the season, June 30. This change also provides handlers additional time and flexibility in meeting restriction obligations.

In addition to adjusting the deadline for submitting the handler reserve plan and extending the deadline for redeeming grower diversion certificates, this rule also makes a minor wording change to § 930.158 to facilitate the change in date.

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS) has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.

There are approximately 600 producers of tart cherries in the regulated area and approximately 40 handlers of tart cherries who are subject to regulation under the order. Small agricultural producers are defined by the Small Business Administration (SBA) as those having annual receipts of less than $750,000 and small agricultural service firms have been defined as those having annual receipts of less than $7,000,000 (13 CFR 121.201).

According to data from the National Agricultural Statistics Service and the Board, the average annual grower price for tart cherries during the 2012-13 season was $0.54 per pound, and total shipments were around 85 million pounds. Therefore, average receipts for tart cherry producers were around $76,200, well below the SBA threshold for small producers. In 2013, The Food Institute estimated an f.o.b. price of $0.84 per pound for frozen tart cherries, which make up the majority of processed tart cherries. Using this data, average annual handler receipts were about $1.8 million, also below the SBA threshold for small agricultural service firms. Assuming a normal distribution, the majority of producers and handlers of tart cherries may be classified as small entities.

This rule modifies § 930.159, changing the deadline for submitting the handler reserve plan from November 1 to October 1. This rule also modifies § 930.158 to extend the deadline for redeeming or transferring grower diversion certificates issued by the Board from November 1 to June 30 of a given crop year. These changes are authorized under §§ 930.59 and 930.58, respectively. These changes will provide the industry with a more complete and timely picture of the available supply earlier in the season. In addition, the new deadline for transferring grower diversion certificates will allow handlers more time and flexibility in meeting their obligations under volume regulation.

It is not anticipated that this rule will generate any additional costs for growers or handlers. This action is intended to adjust regulations to reflect recent amendments to the order and to allow the order to function more efficiently. These changes are expected to benefit the industry by providing a clear picture of available supply earlier in the season, and by allowing handlers more time to utilize grower diversion certificates to meet their restriction under volume regulation. These changes should impact all entities positively, regardless of size.

Regarding alternatives to this action, the Board considered not making any changes to the regulations regarding the handler reserve plan or grower diversion certificates. However, the Board unanimously supported an earlier date for the handler reserve plan as all handlers are aware of the restriction well in advance and it would provide timely information regarding the season. Additionally, the Board determined that changing the deadline for redeeming grower diversion certificates was in line with the industry's objective to have consistency among the application of diversion credits. As such, these alternatives were rejected.

In accordance with the Paperwork Reduction Act of 1995, (44 U.S.C. Chapter 35), the order's information collection requirements have been previously approved by the Office of Management and Budget (OMB) and assigned OMB No. 0581-0177, (Tart Cherries Grown in the States of Michigan, New York, Pennsylvania, Oregon, Utah, Washington, and Wisconsin). No changes in those requirements as a result of this action are necessary. Should any changes become necessary, they would be submitted to OMB for approval.

This rule will require changes to Cherry Industry Administrative Board Form 4, “Handler Reserve Plan and Final Pack Report”. However, these changes are minor and the currently approved burden for the form remains the same. The revised form has been submitted to OMB for approval.

This rule will not impose any additional reporting or recordkeeping requirements on either small or large tart cherry handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.

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

In addition, USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this rule.

Further, the Board's meeting was widely publicized throughout the tart cherry industry and all interested persons were invited to attend the videoconference meeting at regional locations or call in to participate in the Board's deliberations. Like all Board meetings, the March 21, 2013, meeting was a public meeting and all entities, both large and small, were able to express their views on these issues. Finally, interested persons are invited to submit comments on this interim rule, including the regulatory and informational impacts of this action on small businesses.

A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: www.ams.usda.gov/MarketingOrdersSmallBusinessGuide . Any questions about the compliance guide should be sent to Jeffrey Smutny at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

This rule invites comments on changes to handler reporting and grower diversion requirements prescribed under the order. Any comments received will be considered prior to finalization of this rule.

After consideration of all relevant material presented, including the Board's recommendation, and other information, it is found that this interim rule, as hereinafter set forth, will tend to effectuate the declared policy of the Act.

Pursuant to 5 U.S.C. 553, it is also found and determined upon good cause that it is impracticable, unnecessary, and contrary to the public interest to give preliminary notice prior to putting this rule into effect and that good cause exists for not postponing the effective date of this rule until 30 days after publication in the Federal Register because: (1) The order amendments prompting these changes were implemented on June 7, 2012; (2) the Board unanimously recommended these changes at a public meeting and interested parties had an opportunity to provide input; (3) this change relaxes the date for utilizing grower diversion certificates; (4) handlers begin to make plans regarding diversion requirements in July; and (5) this rule provides a 60-day comment period and any comments received will be considered prior to finalization of this rule.

For the reasons set forth in the preamble, 7 CFR part 930 is amended as follows:

On April 9, 2013, the FAA published in the Federal Register a notice of proposed rulemaking (NPRM) to amend Class D and Class E airspace, and establish Class E airspace at Oceana Naval Air Station, (NAS), VA, (78 FR 21084). Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received. Subsequent to publication the FAA found that the geographic coordinates of the NALF Fentress were transposed. This action makes the correction.

Class E airspace designations are published in paragraphs 5000, 6002, and 6004, respectively of FAA Order 7400.9W dated August 8, 2012, and effective September 15, 2012, which is incorporated by reference in 14 CFR Part 71.1. The Class D and Class E airspace designations listed in this document will be published subsequently in the Order.

This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 amends the hours of operation for Class D airspace and Class E airspace designated as an extension to Class D surface airspace at Oceana NAS (Apollo Soucek Field), VA, as the air traffic control tower is transitioning from a full time facility to part time, and requires a Notice to Airmen notification. This action also establishes Class E airspace extending upward from the surface at Oceana NAS (Apollo Soucek Field), VA. The geographic coordinates of Oceana NAS (Apollo Soucek Field) and NALF Fentress are adjusted to coincide with the FAAs aeronautical database.

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, is non-controversial and unlikely to result in adverse or negative comments. It, therefore, (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. 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 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 and establishes controlled airspace at Oceana NAS (Apollo Soucek Field), Oceana, VA.

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:

In administrative proceedings instituted by the Commission to enforce the federal securities laws, the Commission, in the exercise of its discretion, seeks to distribute amounts collected as disgorgement, prejudgment interest, and penalties to investor victims. The federal securities laws authorize the Commission in administrative proceedings to establish disgorgement and other funds to accomplish this goal. See, e.g., Section 308(a) of the Sarbanes-Oxley Act of 2002, 15 U.S.C. 7261; Sections 21B(e) and 21C(e) of the Securities Exchange Act (“Exchange Act”), 15 U.S.C. 78u-2(e) and 78u-3(e). According to the Commission's regulations, the “Commission or [a] hearing officer shall have discretion to appoint any person, including a Commission employee, as administrator of a plan of disgorgement or a Fair Fund plan and to delegate to that person responsibility for administering the plan.” Rule 1105(a), 17 CFR 201.1105(a). To improve the efficiency of the Commission's distribution processes, and to centralize certain distribution-related functions within the Division of Enforcement, the Commission is formally delegating to the Director of the Division of Enforcement the authority to appoint certain persons as plan administrators if the person to be appointed is included in the Commission's approved pool of qualified administrators. 1 The Commission is also delegating to the Director, when the Director appoints an administrator pursuant to this delegation, the authority to set the amount of, or waive for good cause shown, the administrator's bond required by Rule 1105(c), 17 CFR 201.1105(c), of the Commission's rules on Fair Fund and Disgorgement Plans.

If the Division Director deems it appropriate, a recommendation to appoint an administrator from the qualified pool or to set the amount of, or waive for good cause shown, any administrator's bond may be submitted to the Commission for review.

Administrative Law Matters:

The Commission finds, in accordance with the Administrative Procedure Act (“APA”) 5 U.S.C. 553(b)(3)(A), that this amendment relates solely to agency organization, procedure, or practice, and does not relate to a substantive rule. Accordingly, the provisions of the APA regarding notice of rulemaking, opportunity for public comment, and publication of the amendment prior to its effective date are not applicable. For the same reason, and because this amendment does not substantively affect the rights or obligations of non-agency parties, the provisions of the Small Business Regulatory Enforcement Fairness Act, 5 U.S.C. 804(3)(C), are not applicable. Additionally, the provisions of the Regulatory Flexibility Act, which apply only when notice and comment are required by the APA or other law, 5 U.S.C. 603, are not applicable. Further, because this amendment imposes no new burdens on private persons, the Commission does not believe that the amendment will have any anti-competitive effects for purposes of Section 23(a)(2) of the Exchange Act, 15 U.S.C. 78w(a)(2). Finally, this amendment does not contain any collection of information requirements as defined by the Paperwork Reduction Act of 1980, as amended. Accordingly, the amendment is effective [insert date of Federal Register publication].

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

On January 28, 2013, we published an NPRM that proposed replacing the term “mental retardation” with “intellectual disability” in our listings that we use to evaluate claims involving mental disorders in adults and children under titles II and XVI of the Social Security Act (Act) and in other appropriate sections of our rules. 1 We are finalizing the proposed rule without change.

The term “intellectual disability” is gradually replacing the term “mental retardation” nationwide. Advocates for individuals with intellectual disability have rightfully asserted that the term “mental retardation” has negative connotations, has become offensive to many people, and often results in misunderstandings about the nature of the disorder and those who have it.

In October 2010, Congress passed Rosa's Law, which changed references to “mental retardation” in specified Federal laws to “intellectual disability,” and references to “a mentally retarded individual” to “an individual with an intellectual disability.”  2 Rosa's Law also required the Federal agencies that administer the affected laws to make conforming amendments to their regulations. Rosa's Law did not specifically include titles II and XVI of the Act within its scope, and therefore, did not require any changes in our existing regulations. However, consistent with the concerns expressed by Congress when it enacted Rosa's Law, and in response to numerous inquiries from advocate organizations, we are revising our rules to use the term “intellectual disability” in the name of our current listings and in our other regulations. In so doing, we join other agencies that responded to the spirit of the law, even though Rosa's Law did not require them to change their terminology. 3

In the NPRM, we provided the public a 30-day comment period, which ended on February 27, 2013. We received 76 comments. Seventy-one commenters enthusiastically supported our proposal to replace the term “mentally retarded” with intellectual disability or another term, while only five opposed the change. The comments came from national advocacy and disability rights groups, professional organizations, disability examiners, parents, and members of the public. We summarized and paraphrased the significant comments in our responses below. We carefully considered all of the comments. However, we did not make any changes to the final rule.

Comment: Seventy-one commenters enthusiastically supported replacing the term “mentally retarded” and 66 commenters supported the use of the term “intellectual disability.” Organizations including The Arc, The Consortium for Citizens with Disabilities, The National Disability Rights Network, American Association on Intellectual and Developmental Disabilities, and National Association of State Directors of Special Education, Inc., commented in support of our proposed changes.

Almost all commenters noted the negative connotations and offensive nature of term “mental retardation.” Often, commenters referred to the word “retarded” as “the R-word.” Several provided personal stories about the effect the words “retarded” and “mental retardation” have had on a loved one with a disability and expressed their gratitude for our proposing to remove the term from the listings. One organization observed that the “change in terminology is consistent with the widely expressed desire of people with intellectual disability for the use of modern, respectful language.” Another organization stated, “We appreciate SSA's commitment to eliminate outdated terminology and the negative stereotypes that they perpetuate for people with disabilities.” One commenter, a graduate student in vocational rehabilitation, observed how “'labeling' an individual can hinder them from participating in the community . . . Let's give this population the respect and dignity they deserve.”

Most commenters also supported our proposed adoption of the term “intellectual disability.” One organization noted how our adoption of “intellectual disability” would “align SSA's medical listings and other rules with terminology used by many federal agencies under Rosa's Law. This change is long overdue and [they] are glad SSA is taking this important step which will help fight stigma in this country.” Another organization observed how “people will be able to file a claim for Social Security benefits based on having an ‘intellectual disability,' rather than being forced to identify themselves with a label that many find offensive and degrading.” In supporting the change, one individual commenter stated that “ ‘intellectual disability' is much more respectful than `mental retardation.’ ” Another commented, “It is critical that SSA treat applicants respectfully, and using the term ‘intellectual disability' is the respectful terminology.”

Response: We are glad that the overwhelming majority of commenters favored our proposed change and we decided to finalize the proposed rule without change.

Comment: Three commenters, all parents of adult children with profound intellectual and developmental disabilities, asked that we not replace “mental retardation” with the term “intellectual disability.” They regard “mental retardation” as the medical term that best describes their children's conditions. The commenters expressed concern about the “imprecise and vague” nature of the term “intellectual disability.” They fear that the loss of the term “mental retardation” could contribute to a lessening of public awareness and concern for individuals like their children and possibly the elimination of the public institutional service support systems that their children require. A fourth commenter said that while the change in terminology may make people feel good, the new term is not as descriptive as the current terminology.

Response: We did not adopt this suggestion. While we appreciate the concerns expressed in these comments, the term we use to describe a medical disorder does not affect the actual medical definition of the disorder or available programs or services. The American Psychiatric Association (APA) is responsible for naming, defining, and describing mental disorders.

In the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), the APA replaced “mental retardation” with “intellectual disability (intellectual developmental disorder).”  4 The APA included the parenthetical name “(intellectual developmental disorder)” to indicate that the diagnosed deficits in cognitive capacity begin in the developmental period. The authors of the DSM-5 explain that these revisions bring the DSM-5 into alignment with terminology used by the World Health Organization's (WHO) International Classification of Diseases, other professional disciplines and organizations, such as the American Association on Intellectual and Developmental Disabilities, and the U.S. Department of Education. 5

Comment: Three individual commenters, for different reasons, offered alternatives to “intellectual disability.” One preferred “developmental disability,” because it is “a much more recognized and acceptable term over `intellectual disability.’ ” Another wanted us to “make the right change,” and asked, “What is wrong with calling it what it is, `developmental disability,’ ” which the commenter said, “fits a lot better than either mental retardation, or intellectual disability.” Another commenter said that, “ ‘intellectual disability' is really no better than `mental retardation' because it highlights a defect in intellect or IQ. Perhaps a different choice of words—such as `cognitively impaired'—would be more appropriate.”

Response: We did not adopt these suggestions. While there are several terms that could effectively replace “mental retardation” in our current listings and related regulations, we believe that it is appropriate to use the term adopted by other Federal agencies in response to a Federal statute.

Comment: One commenter observed that there are “many gradations” in the type or severity of intellectual disabilities, which the term “intellectual disability” could encompass. The commenter was concerned that blanket use of the new term by various entities could result in its becoming a “catch-all term” in the way that “mental retardation” became a pejorative term. He suggested that we include an explanation about the breadth of conditions encompassed by the new term in a definitions section.

Response: We did not adopt this suggestion. In conjunction with publication of this final rule revising the name of current listings 12.05 and 112.05 and related regulations, we are notifying our regional offices and state disability determination services regarding the change in terminology. As explained in the NPRM, however, the change does not affect how we evaluate a claim based on “intellectual disability” under listing 12.05 or 112.05, nor any of our other current listings or rules pertaining to other mental disorders.

Comment: One commenter suggested that the change in terminology from “mental retardation” to “intellectual disability” could generate confusion among adjudicators, including possible misinterpretation and misapplication of other listings. Another commenter expressed concern that the “prominent use of the term `disability' in a body system listing” could prompt some people to assume or infer that we would find a person disabled under program rules “simply because the term `disability' is used . . . to describe, or designate, an alleged condition.” A third commenter expressed concern that, given our legal definition of “disabled,” the term “intellectual disability” is prone to confuse the lay reader, since “ ‘intellectually disabled' persons might not qualify for disability benefits because of the manner in which SSA defines disability.” This commenter suggested that we use a qualifying term “to distinguish between ordinary intellectual disability and intellectual disability grave enough to warrant disability benefits.” He suggested that a term such as “SSA-qualified intellectual disability” would facilitate greater lay understanding of the difference between the terms.

Response: We did not adopt these suggestions. The final rule will apply to only the name of listings 12.05 and 112.05 and will not affect how we interpret or apply any other listings. We will fully train our adjudicators on the effect of this name change.

As we noted in the NPRM, unlike other agencies, we are bound by a legal definition of the word “disability.” The Act and our regulations define “disability” in specific terms and outline the requirements that an individual must meet in order to establish entitlement or eligibility to receive disability benefits. 6 An individual may have a medically determinable intellectual impairment, such as intellectual disability, but not be “under a disability” within the meaning of the Act. The name of any disorder, whether mental or physical, in no way directs our findings regarding disability. We advise all claimants that they will not be found “disabled” for the purposes of our programs until we determine that their impairments satisfy all of the statutory and regulatory requirements for establishing disability.

Comment: One commenter, although appreciating SSA's effort to use non-offensive terms, expressed the view that doing so is a waste of agency resources because of the “euphemism treadmill.” He noted that the terms “mental retardation” and “mentally retarded” were created in the mid-20th century to replace other terms that had become offensive. By the end of the century, however, the new terms were also used in derogatory ways. The commenter predicted that the current change to “intellectual disability” is “merely another attempt to create a term without a prejudicial history . . . and that this term will . . . eventually be used as a pejorative and require more agency resources to change again.” He recommended keeping the current wording.

Response: We did not adopt this suggestion. Speculation about the future use of the term “intellectual disability” or the subjective value of this change will not dictate our policy. The term “intellectual disability” is gradually replacing the term “mental retardation” in both the public and private sectors, and we believe it incumbent upon us to make this change in order to ensure that our listings and other rules reflect current terminology.

We consulted with the Office of Management and Budget (OMB) and determined that this final rule does not meet the criteria for a significant regulatory action under Executive Order 12866, as supplemented by Executive Order 13563.

We certify that this final rule will not have a significant economic impact on a substantial number of small entities because it affects individuals only. Therefore, the Regulatory Flexibility Act, as amended, does not require us to prepare a regulatory flexibility analysis.

While this rule will not impose new public reporting burdens, it will require changes to existing OMB-approved information collections that contain the language referenced in this rule. We will make changes to the affected information collections via separate non-substantive change requests.

For the reasons set out in the preamble, we amend 20 CFR chapter III as follows:

This document contains final regulations that amend the Income Tax Regulations (26 CFR part 1) under section 274(e)(3) of the Internal Revenue Code (Code). The regulations provide rules for the exception under section 274(e)(3) to the section 274(a) and (n) deduction limitations for certain expenditures paid or incurred under reimbursement or other expense allowance arrangements. The final regulations clarify the definition of reimbursement or other expense allowance arrangements for purposes of section 274(a) and (n) and how the deduction limitations apply to reimbursement arrangements between more than two parties.

On August 1, 2012, a notice of proposed rulemaking (REG-137589-07) was published in the Federal Register (77 FR 45520). One written comment responding to the notice of proposed rulemaking was received. No public hearing was requested or held. After consideration of the comment, the regulations are adopted without substantive change by this Treasury decision.

The proposed regulations would amend regulations that apply the section 274(e)(3) exception to reimbursement and other expense allowance arrangements involving employees. The proposed regulations clarify that these rules apply to reimbursement or other expense allowance arrangements between payors and employees. Under the proposed regulations, a payor may be an employer, an agent of the employer, or a third party.

The commentator suggested that the change in terminology is confusing and that the final regulations either should retain the term employer or further define the terms.

The regulations use the term payor to clarify that the rules relating to reimbursement and other expense allowance arrangements with employees do not require determining who is the common law employer. The rules require, instead, identifying the party that bears the expense. Thus, the regulations are not limited to employers but encompass any party that reimburses an employee's expenses under a reimbursement or other expense allowance arrangement. Accordingly, the final regulations do not adopt this comment.

The proposed regulations provide that, for a reimbursement or other expense allowance arrangement involving persons that are not employees (an independent contractor and a client or customer), the parties may expressly identify the party subject to the section 274(a) and (n) limitations. If the agreement does not specify a party, the limitations apply to the client if the independent contractor accounts to the client for (substantiates) the expenses, and to the independent contractor if the independent contractor does not account to the client. The commentator suggested that the language of section 274(e)(3) does not permit the parties to choose which party is subject to the limitations.

Section 274(e)(3)(B) provides that taxpayers may identify the party subject to the section 274(a) and (n) limitations by accounting or not accounting for expenses and therefore contemplates identification of the party subject to the limitations. The final regulations provide a rule that gives taxpayers the flexibility contemplated under section 274(e) and is easily administrable for the IRS. Accordingly, the final regulations do not adopt this comment.

These regulations apply to expenses paid or incurred in taxable years beginning after August 1, 2013. Taxpayers may apply these regulations to expenses paid or incurred in taxable years beginning on or before August 1, 2013 for which the period of limitation on credit or refund under section 6511 has not expired.

It has been determined that this Treasury decision is not a significant regulatory action as defined in Executive Order 12866, as supplemented by Executive Order 13563. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations and, because the regulations do not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f) of the Code, the notice of proposed rulemaking that preceded these final regulations was submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business, and no comments were received.

The principal author of these final regulations is Patrick Clinton of the Office of Associate Chief Counsel (Income Tax & Accounting). However, other personnel from the IRS and Treasury Department participated in their development.

Accordingly, 26 CFR part 1 is amended as follows:

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

On January 29, 2010 (75 FR 4745), under the Clean Air Act (CAA or “Act”), we proposed three actions in connection with the permitting rules for the San Joaquin Valley Unified Air Pollution Control District (“District”) portion of the California State Implementation Plan (SIP). 1 Herein, we refer to our January 29, 2010 proposed rule as the “proposed rule.” As discussed further below, we have already finalized the second and third actions included in our proposed rule, and are taking action today to finalize the first action.

First, in our proposed rule, we proposed to correct an error in our May 2004 final rule approving Rules 2020 (“Exemptions”) and 2201 (“New and Modified Stationary Source Review Rule”), as amended by the District in December 2002, that establish the requirements and exemptions for review of new or modified stationary sources (“new source review” or “NSR”). Herein, we refer to District Rules 2020 and 2201 as the “District's NSR rules.” In our proposed rule, we explained how our error arose from the failure, in light of information available at the time, to recognize that the District did not have the authority under state law to implement the District's NSR rules with respect to permitting of minor agricultural sources with actual emissions less than 50% of the applicable “major source” thresholds and with respect to the imposition of emissions offset requirements for minor agricultural sources.

In addition to the error correction described above, our January 2010 proposed rule also proposed two other actions: (a) a limited approval and limited disapproval of the District's NSR rules, as further amended in 2007 and 2008 and a full approval of amended District Rule 2530 (“Federally Enforceable Potential to Emit”); and (b) rescission of certain obsolete permitting requirements from the District portion of the California SIP.

On May 11, 2010 (75 FR 26102), we finalized the proposed action on the 2007 and 2008 amendments to the District's NSR rules, 2 District Rule 2530, and the proposed rescission of obsolete permitting requirements, but we deferred final action on the proposed error correction pending receipt from the California Attorney General of an interpretation of the District's legal authority with respect to agricultural sources under state law.

In our proposed rule, we provided a detailed background discussion regarding the District's NSR rules and related EPA SIP actions. See pages 4746-4747 of our proposed rule. In the following paragraphs, we provide a summary of this information. For more details, please see our proposed rule.

EPA originally approved the District's NSR rules as part of the California SIP in 2001. 3 See 66 FR 37587 (July 19, 2001). EPA's 2001 action was a limited approval and limited disapproval reflecting our conclusion that the rules could not be fully approved as meeting all applicable requirements because, among other reasons, District Rule 2020 exempted all agricultural sources from District permitting requirements. 66 FR at 37590. At that time, District Rule 2020, citing California Health & Safety Code (CH&SC) section 42310(e), included a permitting exclusion for “any equipment used in agricultural operations in the growing of crops or the raising of fowl or animals,” except for certain orchard and citrus grove heaters in the southern portion of the District. Our limited disapproval stated that the District could not exempt major stationary sources or major modifications at existing major sources from NSR requirements and be found to meet applicable CAA requirements. 4

To correct this deficiency, in December 2002, the District amended their NSR rules to eliminate the agricultural permitting exemption in its entirety, and, later that same month, the California Air Resources Board (CARB) submitted the District's amended NSR rules to EPA as a revision to the California SIP. Shortly thereafter, EPA proposed approval of the amended District NSR rules, see 68 FR 7330 (February 13, 2003), even though we recognized that “California Health & Safety Code 42310(e) continues to preclude the District, as well as all other districts in California, from permitting agricultural sources under either title I or title V of the CAA.” See 68 FR 7330, at 7335. We did so in light of a proposed “SIP Call” that we issued on the same day as we proposed approval of the amended District NSR rules. See 68 FR 7327 (February 13, 2003). The SIP Call was based on our finding that the California SIP was substantially inadequate by failing to provide the necessary assurances under CAA section 110(a)(2)(E) that the State had the legal authority to carry out its NSR permitting obligations under the CAA with respect to major agricultural sources. EPA finalized the SIP Call in mid-2003, and thereby required California to submit the necessary assurances of authority to support an affirmative finding by EPA under CAA section 110(a)(2)(E). 68 FR 37746 (June 25, 2003).

Later in 2003, the California legislature enacted Senate Bill (SB) 700, which the Governor of California signed on September 22, 2003. SB 700 removed the wholesale exemption from permitting for agricultural sources provided under CH&SC section 42310(e) and subjected major agricultural sources to permit requirements. SB 700, however, retained a limited exemption for new source permitting at certain minor agricultural sources, and limited the ability of districts to require minor agricultural sources to obtain offsets. 5 California notified EPA of the legislature's action by letter dated November 3, 2003 and enclosed a copy of SB 700. 6

On May 17, 2004, EPA took final action approving the District's NSR rules, as amended by the District and submitted by CARB in 2002. See 69 FR 27837 (May 17, 2004). These rules, as approved by EPA, did not on their face exempt any agricultural sources from permitting or limit the applicability of offset requirements. EPA's final approval stated that the District had removed its exemption for agricultural sources and that the state had also “removed a similar blanket exemption, thereby providing the District with authority to require air permits for agricultural sources, including federally required NSR permits.” See 69 FR 27837, at 27838. EPA's final approval cited SB 700 in a footnote, but did not note the limited scope of authority for permitting and offset requirements under SB 700, which allowed permitting of only certain minor agricultural sources and continued the exemption for other minor agricultural sources.

In our proposed rule, under CAA section 110(k)(6), we found that (1) our May 2004 final full approval of District's NSR rules was in error in that our approval of the rules should have ensured that the authority in those rules was consistent with the authority granted by SB 700 and that (2) the District did not, as of May 2004, have the authority under SB 700 to require permits for new or modified minor agricultural sources with actual emissions less than 50 percent of the major source threshold or to require new minor agricultural sources or minor modifications to agricultural sources to obtain emission reduction offsets, notwithstanding the absence of explicit exemptions in the District's NSR rules. Moreover, we noted in our proposed rule that California submitted a copy of SB 700 in November 2003, and thus we had information indicating that the District did not have the authority to implement the NSR rules to the extent that the language of the District's rule appeared to allow (i.e., to require permits and offsets from all new or modified agricultural sources, including those exempt under SB 700) prior to the time we took final action. In our proposed rule, we explained that we should have limited our approval of the District's NSR rules in May 2004 to conform with SB 700, and promulgated language in 40 CFR part 52 codifying that limitation on our approval.

To correct this error, we proposed to limit our approval of the District's NSR rules to exclude applicability to agricultural sources exempt from new source permitting under SB 700 (i.e., minor sources with actual emissions less than 50 percent of the major source threshold). We also proposed to limit our approval to require offsets only for major agricultural sources, because at the time of our 2010 proposed action, we believed that the District had not found emissions reductions from agricultural sources to meet the criteria for real, permanent, quantifiable, and enforceable emissions reductions and thus had not lifted the restriction otherwise provided in SB 700 (and codified in CH&SC section 42301.18(c)) on the imposition of the emissions offset requirement on new minor agricultural sources or minor modifications of agricultural sources.

For more information about our proposed determination of error and our proposed correction, please see pages 4747-4748 of our proposed rule.

In response to our proposed rule, several comments were submitted that objected to our proposed error correction action and the interpretation of state law upon which it was based, and raised significant questions as to the extent of District authority with respect to agricultural sources under state law. Specifically, the commenters who objected to our proposed correction cited “savings” clauses in state law that they contend ratified the District's NSR rules that contain no permitting or offsets exemptions for agricultural sources notwithstanding other provisions in state law that would otherwise limit District authority over those sources.

To ensure our final action would be informed by the State's interpretation of the relevant provisions of state law, we requested that CARB provide us with a legal interpretation from the California Attorney General of the extent of District authority with respect to agricultural sources under state law. 7 More specifically, we requested that CARB provide us a legal interpretation from the California Attorney General of SB 700 as it applies to the District NSR rules adopted in December 2002 and approved by EPA in May 2004. By letters dated November 14, 2012 and March 18, 2013, the California Attorney General's Office has now provided us the requested interpretation of state law. 8

Our proposed rule (75 FR 4745) provided for a 30-day comment period. During that period, we received adverse comments from three groups: (1) Greenberg-Glusker law firm, on behalf of Dairy Cares, a coalition of California's dairy producer and processor associations (referred to herein as “Dairy Cares”), by letter dated March 1, 2010; (2) Earthjustice, by letter dated March 1, 2010; and (3) the Center on Race, Poverty & the Environment, on behalf of the Association of Irritated Residents and other community and environmental groups (referred to herein as “AIR”), by letter dated March 1, 2010. AIR joins in the comments from Earthjustice, but also adds comments of its own.

All three comment letters cited above included comments on one or more aspects of our proposed rule (e.g., on our proposed limited approval and limited disapproval of the District's NSR rules, as further amended in 2007 and 2008) in addition to comments on the proposed error correction. With respect to the comments germane to the other aspects of our proposed rule, we provided responses in our final action published on May 11, 2010 (75 FR 26102) and do not reopen those issues through today's final action. 9 Rather, in the following paragraphs, we summarize the significant comments that relate to the proposed error correction that we are taking final action on today, and provide our responses.

Earthjustice Comment #1: EPA has incorrectly interpreted State law in proposing the error correction, and EPA should ask the State to provide the necessary assurances that the District has the authority under State law to permit all sources covered by Rule 2201.

Response to Earthjustice Comment #1: EPA requested that the California Attorney General provide an interpretation of SB 700 as applied to the District's NSR rules, as amended by the District in December 2002, and as noted above, the California Attorney General's Office has responded to EPA's request in the form of two letters, one dated November 14, 2012 and one dated March 18, 2013. EPA has taken the State's interpretation into account in responding to comments on our proposed error correction and in taking today's final action.

Earthjustice Comment #2: The District's authority to permit agricultural sources under the Clean Air Act is not limited to sources above 50 percent of any applicable major source threshold. EPA reads CH&SC section 42301.16(a) as only authorizing permits for major agricultural sources. Nothing in section 42301.16(a) refers to “major” sources or limits the CAA provisions referenced to “major source” requirements. To the contrary, the language refers to permits required for “any” source and instead of referring only to part D of Title I, as EPA suggests, refers to all of Title I beginning with section 101 of the Act. EPA's interpretation cannot be reconciled with the plain language of the CH&SC.

Response to Earthjustice Comment #2: Earthjustice is correct that our proposed error correction is predicated in part on the interpretation that CH&SC section 42301.16(a) refers to “major sources” as defined under the CAA, i.e., sources that emit or have the potential to emit at or above the major source threshold, notwithstanding the fact that an explicit reference to “major sources” is not found in CH&SC section 42301.16(a). See footnote #7 on page 4747 in the proposed rule.

CH&SC section 42301.16(a) provides: “In addition to complying with the requirements of this chapter, a permit system established by a district pursuant to Section 42300 shall ensure that any agricultural source that is required to obtain a permit pursuant to Title I . . . or Title V . . . of the federal Clean Air Act is required by district regulation to obtain a permit in a manner that is consistent with the federal requirements.” In proposing the error correction, we interpreted the reference to permits required under Title I as meaning permits for major sources covered under parts C or D of Title I, and not minor sources. This is because, under the relevant SIP content provisions under Title I [section 110(a)(2)(C)], while SIPs must provide for the “regulation of the modification and construction of any stationary source,” i.e., including minor sources, the only explicit permitting requirement is for a “permit program as required in part C and D” of Title I. Thus, under Title I, a permit program is only explicitly required for sources covered under parts C and D, and the sources covered under parts C and D are major sources.

Moreover, a State must identify the types and sizes of minor stationary sources which will be subject to review [see 40 CFR 51.160(e)]. As such, States are authorized to exempt certain minor stationary sources from such review. No such exemptions are allowed for review of new or modified major sources. Thus, permits for “major sources” can be considered to be “required” in a way that permits for minor sources are not.

In addition, our interpretation of CH&SC section 42301.16(a) is consistent with the fact that the California legislature adopted SB 700 in part in an effort to avoid sanctions that were set in motion by EPA's final determination that the California SIP was “substantially inadequate” because State law did not provide the legal authority allowing State and local permitting agencies to meet the permitting obligations under parts C and D of title I with respect to major agricultural sources. Lastly, we note that our interpretation of CH&SC section 42301.16(a) is consistent with California's interpretation. See the memorandum from James N. Goldstene, Executive Director, CARB, to Air Pollution Control Officers, dated September 3, 2008; and the letter from Robert W. Byrne, Acting Senior Assistant Attorney General, to Jared Blumenfeld, dated November 14, 2012. For the reasons given above, therefore, we continue to interpret CH&SC section 423016(a) as referring to major sources under Titles I and V of the CAA.

Earthjustice Comment #3: Even if one were to accept EPA's interpretation of CH&SC section 42301.16(a) as being limited to title I part D requirements, permitting of minor agricultural sources in the District would still be authorized because Rule 2201 relies on non-major source permitting to fulfill the requirements of part D. The District has chosen not to impose Part D requirements on major sources and has claimed instead (with EPA's approval) that its permitting of non-major sources can be credited to show that in the aggregate Rule 2201 is “equivalent” to the program required under part D for major sources. By relying on credit from its permitting of non-major sources to meet federal NSR requirements, the District has eliminated any lines between what portion of Rule 2201 is meant to comply with major source permit requirements and what part is not derived from or in satisfaction of the part D major source provisions. The same is true for agricultural sources. It is only by permitting both major and minor sources that the District can claim to satisfy part D. Having allowed this demonstration of compliance with major source requirements “in the aggregate,” EPA cannot now claim that the permitting of certain non-major source is not authorized under Title I.

Response to Earthjustice Comment #3: Earthjustice is correct that EPA has approved an equivalency tracking system that the District uses to assess overall equivalency of its NSR program with CAA nonattainment NSR (i.e., part D) requirements on an annual basis. 69 FR 27837 (May 17, 2004). The requirements for the tracking system are set forth in District Rule 2201, section 7.0 (“Annual Offset Equivalency Demonstration and Pre-Baseline ERC Cap Tracking System”). The goal of the tracking system is to show that, notwithstanding certain differences between the District and Federal NSR program, the District's NSR rules would require offsets that are, in the aggregate, equivalent to offsets required under the Federal program. 68 FR 7330, at 7332 (February 13, 2003).

To make the equivalency demonstration, the District can use, among other sources of emissions reductions, emission reductions used to meet offset requirements imposed on minor sources. However, the fact that the District can rely, and has relied, on minor source offsets to demonstrate equivalency does not mean that permits for new or modified minor agricultural sources are required under part D of Title I and therefore subject to District permitting authority under CH&SC section 42301.16(a). The District has demonstrated equivalency each year since the tracking system was approved and has never relied on offsets from new minor agricultural sources or minor modifications of agricultural sources to do so. Thus, we disagree with Earthjustice's contention that the District's reliance on minor source (non-agricultural source) offsets to demonstrate equivalency of the District's NSR program with Federal NSR requirements makes all minor source permits, including minor source permits for agricultural sources, required under part D of Title I and thus “required” for the purposes of CH&SC section 42301.16(a).

Earthjustice Comment #4: EPA's interpretation of State law regarding District permitting authority over agricultural sources fails to reconcile and give meaning to CH&SC section 39011.5. Under paragraphs (b) and (c) of CH&SC section 39011.5, the authority to permit any agricultural source under the terms of Rule 2201 as it was revised in December 2002 is expressly preserved and made applicable to agricultural sources. There is no dispute that, under the terms of Rule 2201, the District had jurisdiction over the permitting of all agricultural sources on January 1, 2003, and there is no dispute that Rule 2201 was adopted and submitted for EPA approval to satisfy the requirements of the CAA. Nothing in the language of CH&SC section 39011.5(b) and (c) suggests that the permitting authority conferred by these preserved regulations is subject to the limitations in CH&SC section 42301.16(c)  10 or elsewhere. To the contrary, the CH&SC uses broad language making “any” existing district regulation applicable to agricultural sources and ensuring that “nothing” limits existing district authority. If the District truly lacked authority to regulate sources with actual emission less than 50 percent of a major source threshold, there would be no need for these sections preserving the authority of existing regulations. State law could have been silent and allowed the permitting of these sources only to the extent authorized by SB 700. The only way to reconcile these provisions is to limit the effect of CH&SC section 42301.16(c) to future regulation (i.e., post enactment of SB 700) of these sources.

Response to Earthjustice Comment #4: We disagree with the contention that, under the terms of Rule 2201, the District had jurisdiction over the permitting of all agricultural sources on January 1, 2003. At that time, State law excluded all agricultural sources from District permitting authority. The absence of an exemption in Rule 2201 as adopted by the District in December 2002 did not imbue the District with authority otherwise denied under State law. In the following paragraphs, we explain how our interpretation of District permitting authority over agricultural sources can be reconciled with CH&SC section 39011.5. We also find further support for our view in the California Attorney General office's interpretation of the relevant sections of SB 700.

CH&SC section 39011.5(a) defines “agricultural source of pollution” and “agricultural source” for the purposes of Division 26 (“Air Resources”) of the CH&SC. As noted in our proposed rule (75 FR at 4752), California law defines “agricultural source” as a source of air pollution or group of sources used in the production of crops or the raising of fowl or animals located on contiguous property under common ownership or control that is a confined animal facility (e.g., barn, corral, coop); is an internal combustion engine used in the production of crops or the raising of fowl or animals (e.g., irrigation pumps, but excluding nonroad vehicles such as tractors); or is a title V source or is a source that is otherwise subject to regulation by a district or the federal Clean Air Act. See CH&SC section 39011.5(a). As such, agricultural sources include both combustion sources (such as, internal combustion engines and boilers) and non-combustion sources [e.g., confined animal facilities and on- and off-field vehicular activity (e.g., tilling and harvesting)]. Among the non-combustion agricultural sources, some by their nature generate fugitive emissions such as tilling, harvesting, and vehicle travel over unpaved farm roads.

CH&SC section 39011.5(b) provides that: “Any district rule or regulation affecting stationary sources on agricultural operations adopted on or before January 1, 2004, is applicable to an agricultural source.” In proposing the error correction, we were aware of CH&SC section 39011.5(b) but did not interpret that statutory provision as conferring authority to the District to require permits for all new or modified agricultural sources on January 1, 2004 (i.e., the effective date of SB 700).

Under our interpretation, the savings clause in CH&SC section 39011.5(b) preserves general prohibitory and permitting rules affecting agricultural sources and adopted prior to the effective date of SB 700 (i.e., January 1, 2004) but does not authorize the application of District permitting requirements inconsistent with the limited exemptions set forth in other sections of SB 700 [specifically, CH&SC section 42301.16(c) and 42301.18(c)]. That is, CH&SC section 39011.5(b) simply preserves District rules affecting agricultural sources that were adopted prior to SB 700 and avoids the need to re-adopt such rules after the effective date of SB 700. Under this view, CH&SC section 39011.5(b) preserved the ability of the District to administer its NSR rules and apply them to agricultural sources consistent with SB 700 upon the effective date of SB 700 notwithstanding the fact that the NSR rules were adopted prior to the effective date of SB 700 and thus could not be applied to agricultural sources (because of the preclusion from District permitting for agricultural sources in then-current CH&SC section 42310(e)) at the time the District adopted them.

The California Attorney General's office shares this view:

CH&SC section 39011.5(c) provides in relevant part: “Nothing in this section limits the authority of a district to regulate a source, including, but not limited to, a stationary source that is an agricultural source, over which it otherwise has jurisdiction pursuant to this division, or pursuant to the federal Clean Air Act (42 U.S.C. Sec. 7401 et seq.) or any rules or regulations adopted pursuant to that act that were in effect on or before January 1, 2003, or . . . .”

Similar to CH&SC section 39011.5(b), EPA did not view CH&SC section 39011.5(c) as validating the application of District permitting requirements to all new or modified agricultural sources inconsistent with the limited exemptions found in other sections of SB 700 [specifically, CH&SC section 42301.16(c) and 42301.18(c)]. Under our view, the phrase “nothing in this section” limits the reach of CH&SC section 39011.5(c) to the other provisions in CH&SC section 39011.5, i.e., the definition of “agricultural source” in CH&SC section 39011.5(a) and the savings clause in CH&SC section 39011.5(b), discussed above. As such, we view CH&SC section 39011.5(c) as ensuring that the definition of “agricultural source” and the savings clause in paragraph (b) does not inadvertently limit the authority of districts to regulate sources, including agricultural sources, over which the districts otherwise have jurisdiction pursuant to rules adopted before January 1, 2003, and does not inform our interpretation of other sections of SB 700, such as CH&SC section 42301.16(c) and 42301.18(c). Thus, CH&SC 39011.5(c) in no way undermines our determination in the proposed rule that the District's authority to permit agricultural sources and to impose emissions offset requirements on such sources was limited under State law notwithstanding the absence of such limiting language in the District's NSR rules as adopted in December 2002 and approved by EPA in May 2004.

The California Attorney General's office agrees that CH&SC section 39011.5(c) does not authorize NSR rules that conflict with other sections of SB 700 that expressly address the NSR permitting process. The California Attorney General's office explains:

Thus, we continue to read the savings clauses of CH&SC section 39011.5(b) and (c) as not validating the application of District permitting requirements to all new or modified agricultural sources inconsistent with the limited exemptions found in other sections of SB 700, and as consistent with our finding in the proposed rule that the absence of the limited exemptions in SB 700 for agricultural sources in the District's NSR rules resulted in a mismatch between the SIP and the District's authority under State law when we approved the District's NSR rules in May 2004.

Earthjustice Comment #5: There is no requirement that the District make specific findings before requiring offsets from agricultural sources. First, EPA's interpretation of CH&SC section 42301.18(c) has no basis in the language of that section. There is nothing in CH&SC section 42301.18(c) that requires some “finding” by the District before imposing offsets. Second, EPA's interpretation is inconsistent with CARB's explanation that the issue in CH&SC 42301.18(c) is “whether the emissions reductions meet the generic criteria that the U.S. EPA and the ARB and air district have, since 1976, required of sources in order for the reductions to `count' for purposes of attaining ambient standards” and “[t]he existence of a District rule allowing such offsets to be generated is not germane. . . .”  13

Response to Earthjustice Comment #5: We start with the words of CH&SC section 42301.18(c): “A district may not require an agricultural source to obtain emissions offsets for criteria pollutants for that source if emissions reductions from that source would not meet the criteria for real, permanent, quantifiable, and enforceable emission reductions.” Earthjustice is correct that EPA did read CH&SC section 42301.18(c) as exempting new minor agricultural sources or minor modifications of existing agricultural sources from the emissions offset requirement pending a determination on the part of the District. Based on that understanding, EPA proposed to limit the Agency's prior approval in such a way as to give effect to the absence of such a determination during the period in which the relevant version of District's NSR rules were in effect as part of the SIP, i.e., mid-2004 through mid-2010.

In response to this comment, we reviewed again the language of CH&SC section 42301.18(c) and acknowledge that it does not specify any particular process for determining when the criteria, that would authorize imposition by a District of the emission offset requirement for a new or modified minor agricultural source, have been met for the given minor agricultural source. We also reviewed the CARB reference cited above in Earthjustice Comment #5, and agree that it does not support EPA's understanding that a determination by the District is a prerequisite to the District's authority to impose the emissions offset requirement to new or modified minor agricultural sources under CH&SC section 42301.18(c), to the extent that the “determination” consists of a regulatory protocol or District rule allowing such offsets to be generated. In the CARB reference cited by Earthjustice, CARB writes:

However, whether emissions reductions from a given agricultural source meet the relevant criteria is not self-evident or self-implementing. Some determination is necessary. For instance, the District is the agency responsible for allowing the emissions reductions from a given agricultural source to be banked or used for the purpose of offsetting emissions increases from new or modified stationary sources that are subject to the offset requirement under an approved NSR program. If the District allowed emission reductions to be banked or used for offsetting emission increases, then the District would thereby be determining that the emissions reductions are “real, permanent, quantifiable, and enforceable” since those are the basic criteria for judging the creditability of emission reductions for use as NSR offsets. The District's authority to impose the offset requirement on new or modified minor agricultural sources would vest as to those agricultural sources for which it has allowed banking or use of emission reductions for NSR offset purposes. Thus, while no protocol or District rule specifically directed at agricultural sources need be adopted for the offset authority to vest, some determination is necessary. Because no such determination was made during the relevant period between the effective date of EPA's 2004 approval of the previous version of District NSR rules and the effective date of EPA's 2010 approval of District NSR rules that align such rules with SB 700, EPA continues to believe that limiting its approval to exempt new minor agricultural sources and minor modifications to existing agricultural sources from the offset requirement is warranted.

EPA's position is supported by the California Attorney General's Office. In its March 2013 letter, the California Attorney General's Office writes: “It is our understanding that currently emissions reductions from minor agricultural sources do not meet the criteria for real, permanent, quantifiable and enforceable emission reductions. On these facts, the plain language of [CH&SC section 42301.18(c)] serves to suspend the duty of a minor agricultural source to offset emissions from that source.”  14 If emission reductions from minor agricultural sources do not meet the criteria in March 2013, then they certainly did not meet the criteria during the relevant period affected by today's error correction action (mid-2004 through mid-2010).

The California Attorney General's Office, in its March 2013 letter, maintains that its reading of CH&SC section 42301.18(c) is consistent with CARB's letter to the California Air Pollution Control Officers, dated September 3, 2008, which was included as an attachment to the California Attorney General office's letter, dated March 18, 2013, and which provides the following guidance with respect to CH&SC section 42301.18(c):

During the relevant time period, EPA approved several District rules affecting agricultural sources, and several District air quality plans that reflect emissions reductions from implementation of those rules. For example, EPA approved District Rule 4550 (“Conservation Management Practices”) and its associated List of Conservation Management Practices at 71 FR 7683 (February 14, 2006), District Rule 4570 (“Confined Animal Facilities”) at 75 FR 2079 (January 14, 2010), the 2003 San Joaquin Valley PM 10 Plan at 69 FR 30006 (May 26, 2004), the 2004 San Joaquin Valley Extreme Ozone Attainment Demonstration Plan at 75 FR 10420 (March 8, 2010), and the 2007 San Joaquin Valley PM 10 Maintenance Plan and Redesignation Request at 73 FR 66759 (November 12, 2008).

However, the use of the conjunction “or” by CARB in its discussion of CH&SC section 42301.18(c), quoted above, means that, under CARB's interpretation, even if SIP credit were approved for prohibitory rules or control measures, new or modified minor agricultural sources could not be required to provide emissions offsets if they are unable to generate emission reductions that would qualify as offsets. Thus, we find that CARB's interpretation of CH&SC section 42301.18(c) supports EPA's limitation on its May 2004 approval to exempt new minor agricultural sources and minor modifications of existing agricultural sources from the emissions offset requirement because, under that provision of State law, the District did not have the authority to require such sources to provide emissions offsets because such sources were unable to generate emissions reductions that qualify as offsets during the relevant time period.

Earthjustice Comment #6: EPA's use of section 110(k)(6) to correct this error is unlawful. EPA cannot use section 110(k)(6) to achieve a result that EPA could not have achieved if it had acted “correctly” at the outset. EPA can point to no authority that allows EPA to adopt such a limitation when acting on this or any other SIP approval. To the contrary, such attempts to rewrite the rule submitted to EPA for approval violate well-established prohibitions against piecemeal approval of rule submittals. See Bethlehem Steel Corp. v. Gorsuch, 742 F.2d 1028 (7th Cir. 1984).

Section 110(k)(6) does not allow EPA to revise the rule itself, only the action used to approve the rule. The “actions” on a SIP submittal are outlined in section 110(k)(3) and include full and partial approval or disapproval. First, there should be little question that EPA could not have partially approved the District's NSR rules as submitted in 2002. The other option theoretically available to EPA at the time of the 2004 action was the “limited approval/limited disapproval,” but EPA guidance cautions against use of that option to approve any rule that is unenforceable for all situations. 16 None of the options available to EPA when acting on a SIP submittal allow EPA to do what it is proposing to do here. EPA cannot “limit” the approval by rewriting the applicability of the rule as submitted. Section 110(k)(6) does not create new options for EPA to act on SIP submittals and cannot be used to circumvent the limitations on EPA actions provided by the plain language of section 110(k)(3).

Response to Earthjustice Comment #6: First of all, we agree that we cannot use section 110(k)(6) to revise the District's NSR rules that we previously approved, but we are not doing so in this action. Our action to limit our approval would in no way change the language of the District NSR rules that we approved in May 2004. Instead, it would revise the scope of our approval in such a way as to align our approval with the limits of District permitting authority under State law at the time we initially approved the rules and thus does not conflict with the decision in Bethlehem Steel.

In doing so, our action amounts to a revision to the approved California SIP that was applicable between June 2004 and June 2010. 17 EPA is not changing the District rule component of the SIP. We believe that our action finalized today is the appropriate revision to make to the California SIP under CAA section 110(k)(6) to address the error that we made in our May 2004 final action.

Second, we agree that there are significant obstacles to correcting our May 2004 action on the District's NSR rules by revising the action from a full approval to a “partial approval/partial disapproval” or “limited approval/limited disapproval.” For instance, a “partial approval/partial disapproval” action is problematic in this instance because, as a general matter, NSR rules are not separable. Correcting our action from a full approval action to a “limited approval/limited disapproval” action is problematic in that it would incorporate the entire rule into the California SIP, and thus would not remedy the problem of the mismatch between the District NSR rules in the SIP and the District's authority with respect to agricultural sources under SB 700.

We disagree, however, that we could not have limited our approval in May 2004 under section 110(k)(3) in the same manner as we are doing today, but in any event, for today's action, we are relying on section 110(k)(6), not on section 110(k)(3). We believe that the action we proposed to limit our previous approval and that we are finalizing today is authorized under the broad discretionary language of CAA section 110(k)(6):

With this action, EPA is determining that its action approving the District's NSR rules in May 2004 was “in error” due to the mismatch between the facial applicability in the NSR rules of the permitting and emission offset requirements to minor agricultural sources and the limits on District authority under State law applicable at the time of our SIP approval. Given the mismatch between the exclusions and exemptions apparent from the words of the District NSR rules and the limits under State law, EPA was in error in fully approving the NSR rules because the SIP and SIP revisions must be supported by necessary assurances by the State that, in this context, the District will have adequate authority under State law to carry out such SIP or SIP revisions and the State of California could not have provided such necessary assurances in May 2004 with respect to minor agricultural sources because of the limits on District authority at the time manifest in SB 700. See CAA section 110(a)(2)(E) and our January 29, 2010 proposed rule at pages 4747-4748.

EPA is further determining that the appropriate action EPA can take—in light of the broad discretion conferred by the phrase, “revise such action as appropriate,” —is to limit our previous approval of the District's NSR rules, as it relates to agricultural sources, (1) to the extent that the permit requirements apply to agricultural sources with potential emissions at or above a major source applicability threshold and to agricultural sources with actual emissions at or above 50 percent of a major source applicability threshold; and (2) to the extent that the offset requirements apply to major agricultural sources and major modifications of such sources. We have also conducted this limiting of our prior approval through notice-and-comment rulemaking, which is the same manner as EPA conducted the prior approval.

In limiting our previous approval in this manner, we are taking an approach analogous to the one EPA took with respect to the Agency's previous SIP approvals of certain State programs for the Prevention of Significant Determination (PSD) to the extent those programs applied PSD to greenhouse gas (GHG) emitting sources below the thresholds in the final “Tailoring Rule” published at 75 FR 31514 on June 3, 2010. See our final rule, “Limitation of Approval of Prevention of Significant Deterioration Provisions Concerning Greenhouse Gas Emitting-Sources in State Implementation Plans,” referred to as the PSD SIP “Narrowing Rule,” at 75 FR 82536 (December 30, 2010). In the case of the previous approvals of State PSD programs, EPA determined that its action approving the PSD SIP provisions was “in error” due to the mismatch between the PSD applicability provisions and the state's “necessary assurances” under CAA section 110(a)(2)(E) of adequate resources and further determined that the “appropriate action” to correct the error was to narrow its approval of the PSD programs to the extent they applied PSD to GHG-emitting sources below the Tailoring Rule threshold.

Here, in this action, EPA is determining that its action approving the District's NSR rules was “in error” due to the mismatch between the applicability provisions of the District NSR rules and the state's “necessary assurance” under CAA section 110(a)(2)(E) of adequate legal authority and is further determining that the “appropriate action” to correct the error is to limit its previous approval of the District's NSR rules in May 2004 to align the permitting applicability and offset requirement in the approved SIP to the authority granted the District under State law. EPA's PSD SIP “Narrowing Rule” contains a detailed discussion (see pages 82543-82545) justifying the reliance on CAA section 110(k)(6) to narrow previous SIP approvals and we incorporate that discussion herein.

Lastly, Earthjustice would agree that EPA could have disapproved the District's NSR rules as submitted in December 2002, and thus would agree that we could now, under section 110(k)(6), change our former “approval” to “disapproval,” but such an action would have the deleterious effect of removing the December 2002 version of the NSR rules from the SIP entirely notwithstanding the significant strengthening they represented relative to the then-existing SIP District NSR rules approved in 2001 (66 FR 37587, July 19, 2001) that included a blanket exemption for agricultural sources. Our action to limit our approval is narrowly tailored to retain the strengthening aspects of the December 2002 version of the NSR rules while still addressing the mismatch between the language of the NSR rules and the District's authority under State law. Our purpose in doing so is to align the SIP approved by EPA in May 2004 with the intent of both EPA and the State of California to address the deficiencies in the District's NSR rules, including the previous blanket exemption for agricultural sources as it applied to major agricultural sources. The mismatch created in the applicable California SIP between the NSR rules and the authority vested in the District under State law with respect to minor agricultural sources was inadvertent, and section 110(k)(6) provides EPA with the broad discretionary authority to take action to fix the problem caused by the Agency's previous erroneous SIP action.

CRP&E Comment #1: The proposed rule conflicts with Safe Air for Everyone v. EPA, 488 F.3d 1088 (9th Cir. 2007) (“Safe Air”). The SIP means exactly that which the December 2002 version of District's NSR rules say it means, and EPA made no statement of administrative intent that would contradict that plain meaning. As such, the purported exemption in SB 700 cannot, as a matter of law, be part of the EPA-approved SIP.

Response to CRP&E Comment #1: We agree that we cannot simply interpret the California SIP to include statutory limitations not manifest in the SIP itself nor manifest in EPA's expressed intent or understanding at the time we conducted rulemaking to approve the December 2002 version of the District's NSR rules. However, agreement on this point simply highlights the need for EPA to take the action it is finalizing today. We have conducted this error correction action through a notice-and-comment rulemaking and have made our administrative intent manifest through that process. Also, we want to make clear that we are not changing the language of the District's NSR rules that we approved in May 2004. Instead, our action will revise the scope of our approval in such a way as to align our approval with the limits of District permitting authority under State law at the time we approved the rules. In doing so, our action amounts to a revision to the California SIP applicable between June 2004 and June 2010. EPA is not changing the District rule component of the SIP. We believe that our action finalized today is the appropriate revision to make to the California SIP under CAA section 110(k)(6) to address the error that we made in our May 2004 final action.

CRP&E Comment #2: EPA lacks the power to amend the SIP to conform to EPA's interpretation of the District's state law permitting authority. Nothing in the CAA authorizes EPA to substantively amend a SIP or SIP revision, so EPA cannot accomplish that through a “correction” under section 110(k)(6).

Response to CRP&E Comment #2: Please see EPA's Response to Earthjustice Comment #6.

CRP&E Comment #3: Even if EPA could make an end-around Safe Air and could amend the SIP, SB 700 itself gives the District the authority to implement and enforce the December 2002 version of the District's NSR rules. EPA rationalizes its correction on the ground that the District lacked statutory authority to implement and enforce the December 2002 version of the District's NSR rules. EPA, however, fails to recognize the authority given to the District by CH&SC sections 39011.5(b) and (c).

Response to CRP&E Comment #3: Please see EPA's Response to Earthjustice Comment #4.

Dairy Cares Comment #1: Dairy Cares agrees that EPA erred in failing to expressly acknowledge the limitations imposed on the District's authority pursuant to SB 700, because the SB 700 exemptions plainly limited the District's permitting authority over agricultural sources and agrees that EPA's SIP correction is appropriate under section 110(k)(6) of the CAA. Dairy Cares, however, believes that because EPA's 2004 SIP action implicitly and necessarily included all of the expansion and limitation of District authority contained in SB 700, including the exemptions, the SIP, as it currently exists, should be read to include the exemptions.

Response to Dairy Cares Comment #1: EPA notes that the argument that limitations on authority under State law implicitly and necessarily determine the applicability of rules and regulations approved by EPA as part of a SIP, even if those statutory limitations are not also approved as part of the SIP, is not supported by case law. In Safe Air for Everyone v. EPA (488 F.3d 1088 (9th Cir. 2007), the Ninth Circuit held that “SIPs are interpreted based on their plain meaning when such a meaning is apparent, not absurd, and not contradicted by the manifest intent of EPA, as expressed in the promulgating documents available to the public.” Id. at 1100. In this instance, the absence of limited exemptions for minor agricultural sources with respect to permitting and offsets in the version of the District's NSR rules approved in 2004 is plain, not absurd, nor contradicted by EPA in taking the action in 2004 to approve the rules. Moreover, SB 700 itself is not approved into the California SIP. Thus, we continue to believe that is appropriate to correct our previous approval of the District's NSR rules to reconcile that approval with the limitations on District authority that were established by the California legislature in SB 700.

After due consideration of the comments submitted on our proposed action, and in light of California's interpretation of SB 700 as it applies to the District's NSR rules, we are taking final action under CAA section 110(k)(6) to correct our erroneous approval in May 2004 of San Joaquin Valley District NSR rules, Rule 2020 (“Exemptions”) and Rule 2210 (“New and Modified Stationary Source Review Rule”), as amended by the District in December 2002. In doing so, we are determining that such previous approval was in error for the purposes of CAA section 110(k)(6) because we failed to recognize that the State could not provide the necessary assurances under CAA section 110(a)(2)(E) that the District had the authority to implement its amended NSR rules as those rules applied to agricultural sources given that the District's NSR rules, as adopted in 2002, did not reflect the qualified permitting and emissions offset exemptions provided in SB 700 with respect to minor agricultural sources.

To correct this error, we are revising our previous action by limiting our previous approval, as it relates to agricultural sources, to the extent that the permit requirements apply (1) to agricultural sources with potential emissions at or above a major source applicability threshold and (2) to agricultural sources with actual emissions at or above 50 percent of a major source applicability threshold. We are also limiting our previous approval, as it relates to agricultural sources, to the extent that the emission offset requirements apply to major agricultural sources and major modifications of such sources.

To codify the new limitation on our previous approval, we are adding a new section to 40 CFR part 52 (“Approval and promulgation of implementation plans”), subpart F (“California”). The new section is 40 CFR 52.245 (“New Source Review Rules”).

The Office of Management and Budget (OMB) has exempted this regulatory action from Executive Order 12866, entitled “Regulatory Planning and Review.”

This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. Burden is defined at 5 CFR 1320.3(b).

The Regulatory Flexibility Act (RFA) 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. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions.

This rule will not have a significant impact on a substantial number of small entities because error correction actions under section 110(k)(6) of the Clean Air Act do not create any new requirements but simply approve requirements that the State is already imposing. Therefore, because this error correction action does not create any new requirements, I certify that this action will not have a significant economic impact on a substantial number of small entities.

Moreover, due to the nature of the Federal-State relationship under the Clean Air Act, preparation of flexibility analysis would constitute Federal inquiry into the economic reasonableness of State action. The Clean Air Act forbids EPA to base its actions concerning SIPs on such grounds. Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

Under section 202 of the Unfunded Mandates Reform Act of 1995 (“Unfunded Mandates Act”), signed into law on March 22, 1995, EPA must prepare a budgetary impact statement to accompany any proposed or final rule that includes a Federal mandate that may result in estimated costs to State, local, or tribal governments in the aggregate; or to the private sector, of $100 million or more. Under section 205, EPA must select the most cost-effective and least burdensome alternative that achieves the objectives of the rule and is consistent with statutory requirements. Section 203 requires EPA to establish a plan for informing and advising any small governments that may be significantly or uniquely impacted by the rule.

EPA has determined that the error correction action promulgated today does not include a Federal mandate that may result in estimated costs of $100 million or more to either State, local, or tribal governments in the aggregate, or to the private sector. This Federal action aligns requirements under Federal law with those under state and local law, and imposes no new requirements. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, result from this action.

Executive Order 13132, Federalism, (64 FR 43255, August 10, 1999) revokes and replaces Executive Orders 12612 (Federalism) and 12875 (Enhancing the Intergovernmental Partnership). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that 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.” Under Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that has federalism implications and that preempts State law unless the Agency consults with State and local officials early in the process of developing the proposed regulation.

This rule 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, because it merely corrects an error in a previous EPA rulemaking, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” This rule does not have tribal implications, as specified in Executive Order 13175. It will not have substantial direct effects on tribal governments, 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. Thus, Executive Order 13175 does not apply to this rule.

EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the Executive Order has the potential to influence the regulation. This rule is not subject to Executive Order 13045, because it corrects a previous EPA approval of a State rule implementing a Federal standard.

This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866.

Section 12 of the National Technology Transfer and Advancement Act (NTTAA) of 1995 requires Federal agencies to evaluate existing technical standards when developing a new regulation. To comply with NTTAA, EPA must consider and use “voluntary consensus standards” (VCS) if available and applicable when developing programs and policies unless doing so would be inconsistent with applicable law or otherwise impractical.

The EPA believes that VCS are inapplicable to this action. Today's action does not require the public to perform activities conducive to the use of VCS.

The Congressional Review Act, 5 U.S.C. section 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. section 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 September 30, 2013. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. 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. Information is organized as follows:

On March 21, 2013, the EPA proposed to approve the September 25, 2008, December 23, 2010, August 17, 2011, and December 19, 2011 SIP submittals from the State of Oregon to demonstrate that the SIP meets the requirements of CAA sections 110(a)(1) and (2) for the NAAQS promulgated for fine particulate matter (PM 2.5 ) on July 18, 1997, and October 17, 2006, and for ozone on March 12, 2008 (78 FR 17304). In our March 21, 2013, notice of proposed rulemaking (NPR), we proposed to approve the SIP submittals and to find that the Federally-approved provisions currently in the Oregon SIP meet the following CAA section 110(a)(2) infrastructure elements for the 1997 PM 2.5 , 2006 PM 2.5 , and 2008 ozone NAAQS: (A), (B), (C), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M). We also proposed to find that the Federally-approved provisions currently in the Oregon SIP meet the requirements of CAA section 110(a)(2)(D)(i)(II) as it applies to prevention of significant deterioration for the 2008 ozone NAAQS, and CAA section 110(a)(2)(D)(i)(II) as it applies to visibility for the 2006 PM 2.5 and 2008 ozone NAAQS. An explanation of the CAA requirements and implementing regulations that are met by these SIP submittals, a detailed explanation of the submittals, and the EPA's reasons for approving the submittals and making the above-described findings were provided in the NPR, and will not be restated here. The public comment period for this proposed rule ended on April 22, 2013. The EPA received one comment on the NPR.

Comment: The commenter stated that “the Oregon SIP does not currently contain emission limits and other provisions which ensure that Oregon will attain and maintain the 2006 PM 2.5 NAAQS,” and should be disapproved. In support of this conclusion, the commenter described the potential impact of future PM 2.5 emissions from Coyote Island Terminal, LLC's proposed Morrow Pacific Project in Oregon. The commenter included an air quality modeling analysis of the Morrow Pacific Project's potential future ambient PM 2.5 impacts, commissioned by the commenter's client. The analysis predicted that the Morrow Pacific Project will emit PM 2.5 in quantities that will cause violations of the 2006 PM 2.5 NAAQS. The commenter concluded that “if the Oregon Department of Environmental Quality issues an air pollution permit to the Coyote Island terminal, it will demonstrate that the Oregon SIP currently lacks emission limits and other measures to ensure attainment and maintenance of the 2006 PM 2.5 NAAQS.” The commenter further stated that “[s]hould the Oregon Department of Environmental Quality deny the air pollution permit for the Coyote Island coal terminal, then these comments would no longer be applicable.” The commenter did not identify any particular regulatory deficiencies in the Oregon SIP. The commenter's conclusion that the Oregon SIP should be disapproved is contingent upon the outcome of a future permitting decision.

Response: CAA section 110(a)(2)(A) requires that a SIP “include enforceable emission limitations and other control measures, means, or techniques . . . as well as schedules and timetables for compliance, as may be necessary or appropriate to meet the applicable requirements of this chapter.” The EPA notes that the commenter did not identify a specific absence of “enforceable emission limitations or other control measures” necessary to ensure attainment of the PM 2.5 NAAQS. Rather, the commenter's conclusion that the Oregon infrastructure SIP for PM 2.5 is deficient is contingent upon a particular decision being made under the existing SIP-approved regulations that the commenter anticipates will be applied in the case of the proposed Morrow Pacific Project, if that project is issued an air quality permit in the future.

The EPA disagrees with the commenter's conclusion that the Oregon SIP must, or can be disapproved contingent upon a particular, potential, future permitting decision. Rather, our analysis of the Oregon SIP as discussed in the NPR, set forth the EPA's basis for concluding that the current Federally-approved Oregon SIP meets the requirements of CAA section 110(a)(2)(A) for purposes of the 2006 PM 2.5 NAAQS. In our analysis we stated that the State of Oregon generally regulates emissions of PM 2.5 and PM 2.5 precursors through its SIP-approved New Source Review (NSR) permitting programs, in addition to other rules and control programs. The EPA most recently approved revisions to the State's major and minor NSR permitting programs on December 27, 2011 (76 FR 80747), to regulate direct PM 2.5 emissions, in addition to nitrogen oxides (NO X ) and sulfur dioxide (SO 2 ) as precursors to PM 2.5 . In addition to the State's NSR permitting regulations, the State's approved SIP contains rules that establish various controls on emissions of particulate matter, NO X , and SO 2 . These regulations address operational and work practice standards, fuel burning equipment and fuel sulfur content, grain loading, specific industry sectors, motor vehicle pollution, industrial emission management, residential wood heating, field burning, and banking of emission reduction credits.

As described above, the comment focused on the Coyote Island Terminal, LLC's proposed Morrow Pacific Project, asserting that if permitted, the source would, in the future, emit PM 2.5 in quantities that would violate the 2006 PM 2.5 NAAQS. Because the source in question is a new source which has not yet been permitted and is not currently operating, the comment does not provide a basis for finding that the SIP lacks emission limitations and other control measures necessary to support a disapproval of the State's infrastructure SIP submission.

The EPA finds that Oregon's SIP contains “emission limits and other control measures” that are appropriate to ensure attainment of the 2006 PM 2.5 NAAQS. Under the provisions of Oregon's Federally-approved SIP, owners and operators of new and modified major sources must satisfy the requirements of Oregon's Federally-approved major NSR program set forth at Oregon Administrative Rules (OAR) 340-224 “Major New Source Review.” Oregon's major NSR program includes requirements for new and modified major sources located in attainment and unclassifiable areas (OAR 340-224-0070) and nonattainment areas (OAR 340-224-0050). Oregon's minor NSR program set forth at OAR 340-216 “Air Contaminant Discharge Permits” includes requirements for minor sources located in attainment, unclassifiable, and nonattainment areas and requires that increases in emissions from any new or modified source not cause or contribute to violations of ambient standards or applicable PSD increments. Oregon's Federally-approved major and minor NSR permitting programs regulate and control emissions from new and modified sources of regulated pollutants, including PM 2.5 and NO X and SO 2 as precursors.

The commenter's conclusion that “if the Oregon Department of Environmental Quality issues an air pollution permit to the Coyote Island terminal, it will demonstrate that the Oregon SIP currently lacks emission limits and other measures to ensure attainment and maintenance of the 2006 PM 2.5 NAAQS” fails to account for the State's Federally-approved NSR permitting programs and the requirements that owners and operators must satisfy prior to obtaining a permit. A finding related to the legal adequacy of this SIP cannot be based solely on the outcome of this particular potential permitting action, as the commenter proffers.

The EPA believes the current, Federally-approved Oregon SIP includes enforceable emission limitations and other control measures, means, or techniques to attain and maintain the 2006 PM 2.5 NAAQS, and therefore, is taking final action to find that the Oregon SIP meets the requirements of CAA section 110(a)(2)(A) for the 2006 PM 2.5 NAAQS.

The EPA has determined that the September 25, 2008, December 23, 2010, August 17, 2011, and December 19, 2011, SIP submittals from the State of Oregon are consistent with the requirements of section 110 of the CAA. Therefore, the EPA is approving the SIP submittals from the State of Oregon to demonstrate that the SIP meets the infrastructure requirements of the CAA for the NAAQS promulgated for PM 2.5 on July 18, 1997, and October 17, 2006, and for ozone on March 12, 2008. The EPA is finding that the Federally-approved provisions currently in the Oregon SIP meet the following CAA section 110(a)(2) infrastructure elements for the 1997 PM 2.5 , 2006 PM 2.5 , and the 2008 ozone NAAQS: (A), (B), (C), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M). The EPA is also finding that the Federally-approved provisions currently in the Oregon SIP meet the requirements of CAA section 110(a)(2)(D)(i)(II) as it applies to prevention of significant deterioration for the 2008 ozone NAAQS, and CAA section 110(a)(2)(D)(i)(II) as it applies to visibility for the 2006 PM 2.5 and 2008 ozone NAAQS. This action is being taken under section 110 of the CAA.

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 proposed action merely approves the state's law as meeting Federal requirements and does not impose additional requirements beyond those imposed by the state's 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 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).

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 Oregon, and the 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 September 30, 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)).

40 CFR part 52 is amended as follows:

The SIP is a living document which a state revises as necessary to address its unique air pollution problems. Therefore, EPA, from time to time, must take action on SIP revisions containing new and/or revised regulations as being part of the SIP. On May 22, 1997 (62 FR 27968), EPA revised the procedures for incorporating by reference Federally-approved SIPs, as a result of consultations between EPA and the Office of the Federal Register (OFR). The description of the revised SIP document, IBR procedures and “Identification of plan” format are discussed in further detail in the May 22, 1997 Federal Register document. On February 25, 2005 (70 FR 9450), EPA published a document in the Federal Register beginning the new IBR procedure for Pennsylvania, including Philadelphia and Allegheny Counties. On January 3, 2007 (72 FR 200), March 25, 2009 (74 FR 13014), and July 5, 2011 (76 FR 38992), EPA published updates to the IBR material for Pennsylvania.

Since the publication of the last IBR update, EPA has approved the following regulatory changes to the following regulations and sections for Pennsylvania and Allegheny County:

1. Additions of the following regulations or sections in 25 PA Code, article III:

a. Chapter 123 (Standards for Contaminants, Particulate Matter Emissions), section 123.14 (Outdoor wood-fired boilers).

b. Chapter 126 (Standard for Motor Fuels), subchapter D (Motor Vehicle Emissions Control Program), section 126.451 (Responsibilities of the Department).

c. Chapter 127 (Construction, Modification, Reactivation, and Operation of Sources), subchapter B (Plan Approval Requirements), section 127.12d (Completeness determination).

d. Chapter 127, subchapter E (New Source Review), sections 127.201a, 127.203a, and 127.218.

e. Chapter 129 (Standards for Sources, Sources of VOCs), sections 129.52a, 129.52b, and 129.52c.

f. Chapter 129 (Standards for Sources, Control of Emissions from Glass Melting Furnaces), sections 129.301 through 129.310 inclusive.

g. Chapter 130 (Standards for Products), subchapter D (Adhesives, Sealants, Primers, and Solvents), sections 130.701 through 130.708 inclusive.

h. Chapter 145 (Interstate Pollution Transport Reduction), subchapter C (Emissions of NOx from Cement Manufacturing), sections 145.144, 145.145, and 145.146.

2. Addition of Title 35 (Health and Safety) of the Pennsylvania Statute (Pa. Cons. Stat. Ann.), Chapter 23B (Diesel-Powered Motor Vehicle Idling Act), sections 4601 through 4610 inclusive.

3. Additions of the following regulations or sections in Allegheny County Article XXI:

a. Part B (Permits Generally), Section 2102.07 (Prevention of Significant Deterioration).

b. Part E (Source Emission and Operating Standards), subpart 8 (Additional Miscellaneous VOC Sources), section 2105.88 (Consumer Products).

c. Part E, subpart 10 (NO X Sources), section 2105.101 (Control of NO X Emissions from Glass Melting Furnaces).

1. Revisions to the following regulations or sections in 25 PA Code, Article III:

a. Chapter 121 (General Provisions), section 121.1 (Definitions).

b. Chapter 126, subchapter D, sections 126.401, 126.411, 126.412, 126.413, 126.421 through 126.425 inclusive, 126.431, 126.432, and 126.441.

c. Chapter 127, subchapter B, sections 127.12b, 127.13, 127.44, 127.45, and 127.48.

d. Chapter 127, subchapter E, sections 127.201 through 127.215 inclusive and 127.217.

e. Chapter 129, Sources of VOCs, sections 129.51, 129.52, and 129.66.

f. Chapter 145, subchapter C, sections 145.142 and 145.143.

2. Revision to Allegheny County Article XXI, part B, section 2102.06 (Major Sources Locating In or Impacting a Nonattainment Area).

In 25 PA Code Article III, section 126.402 (NLEV scope and applicability) of chapter 126, subchapter D has been removed.

In this action, EPA is announcing the update to the IBR material as of April 1, 2013. EPA is also correcting typographical errors and omissions found in the table for paragraph 52.2020(c)(2), specifically adding a title entry for Part E, subpart 8 (Additional Miscellaneous VOC Sources) and removing the word “Section” in the “Article XX or XXI citation” column for entries 2105.88 and 2105.101. In the table for paragraph 52.2020(d)(1), EPA is revising the title heading in the second column from “Permit No.” to “Permit Number.” EPA has determined that the actual entries found in the table of paragraph 52.2020(d)(1) are correct in the Code of Federal Regulations (CFR) and need no additional editing at this time. EPA has further determined that the entries found in the tables of paragraphs 52.2020(c)(1), (c)(3), (d)(2) through (d)(4), (e)(1), and (e)(2) are correct in the CFR and need no additional editing at this time.

EPA has determined that today's rule falls under the “good cause” exemption in section 553(b)(3)(B) of the Administrative Procedures Act (APA) which, upon finding “good cause,” authorizes agencies to dispense with public participation and section 553(d)(3) which allows an agency to make a rule effective immediately (thereby avoiding the 30-day delayed effective date otherwise provided for in the APA). Today's rule simply codifies provisions which are already in effect as a matter of law in Federal and approved State programs. Under section 553 of the APA, an agency may find good cause where procedures are “impractical, unnecessary, or contrary to the public interest.” Public comment is “unnecessary” and “contrary to the public interest” since the codification only reflects existing law. Immediate notice in the CFR benefits the public by removing outdated citations and incorrect table entries.

Under the Clean Air Act (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 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 rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . This rule is not a “major rule” as defined by 5 U.S.C. 804(2).

EPA has also determined that the provisions of section 307(b)(1) of the CAA pertaining to petitions for judicial review are not applicable to this action. Prior EPA rulemaking actions for each individual component of the Pennsylvania SIP compilations had previously afforded interested parties the opportunity to file a petition for judicial review in the United States Court of Appeals for the appropriate circuit within 60 days of such rulemaking action. Thus, EPA sees no need in this action to reopen the 60-day period for filing such petitions for judicial review for this “Identification of plan” update action for Pennsylvania.

40 CFR Part 52 is amended as follows:

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:

On May 15, 2013, at 78 FR 28547, EPA proposed to approve a SIP revision from Wisconsin exempting certain sources of air pollution from the requirement to obtain a construction permit. Sources with actual emissions of under 10 tons per year (tpy) of each criteria pollutant, particulate matter of 10 micrometers or less, sulfur dioxide, nitrogen oxides, carbon monoxide and volatile organic compounds, and less than 0.5 tpy of lead, and that are not subject to Federal air pollution requirements for hazardous air pollutants under section 111 or 112 of the Clean Air Act (Act) will be eligible for the exemption. The revisions will also exempt construction or modification projects that emit less than 1,666 pounds of criteria pollutants per month, averaged over a 12 consecutive month period, and less than 10 pounds of lead per month, averaged over a 12 consecutive month period from construction permitting requirements. EPA believes that the revisions to Wisconsin's SIP meet Federal requirements and will not interfere with attainment or reasonable further progress. As set forth in the proposed rule, this SIP revision satisfies the anti-backsliding provisions of section 110(l) of the Act.

EPA provided a 30-day review and comment period. The comment period closed on June 14, 2013. EPA received one comment supporting EPA's approval of these revisions. EPA received no adverse comments.

EPA is approving Wisconsin's April 23, 2008, SIP submittal and March 25, 2013 supplement to the submittal. Specifically, EPA is approving the following revisions to WDNR's SIP: (1) Renumber and create NR 406.02(1) and 406.04(4)(h); (2) create NR 406.04(1)(zh), NR 406.04(1q), NR 406.04(4)(i), NR 407.03(1m), and NR 410.03(1)(f); and (3) amend NR 410.03(1)(d). Wisconsin's submittal originally contained revisions to NR 407, which pertain to operation permit requirements. However, in the March 25, 2013, supplement to the submittal, Wisconsin withdrew the NR 407 revisions from the submittal.

Under the 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 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 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 Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 30, 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).)

40 CFR part 52 is amended as follows:

For the purpose of this document, we are giving meaning to certain words or initials as follows:

(i) The words or initials Act or CAA mean or refer to the Clean Air Act, unless the context indicates otherwise.

(ii) The words EPA, we, us or our mean or refer to the United States Environmental Protection Agency.

(iii) The initials SIP mean or refer to State Implementation Plan.

(iv) The words Colorado and State mean the State of Colorado.

1. Submitting CBI. Do not submit this information to EPA through http://regulations.gov or email. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

2. Tips for Preparing Your Comments. When submitting comments, remember to:

a. Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register date and page number).

b. Follow directions—The agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.

c. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.

d. Describe any assumptions and provide any technical information and/or data that you used.

e. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.

f. Provide specific examples to illustrate your concerns, and suggest alternatives.

g. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.

h. Make sure to submit your comments by the comment period deadline identified.

Under the CAA Amendments of 1990, the Colorado Springs area was designated as nonattainment and classified as a “moderate” CO area, with a design value of less than or equal to 12.7 parts per million (ppm) (56 FR 56694, November 6, 1991). On August 19, 1998, the Governor of Colorado submitted to EPA a request to redesignate the Colorado Springs CO nonattainment area to attainment for the CO NAAQS. Along with this request, the Governor submitted a CAA section 175A(a) maintenance plan which demonstrated that the area would maintain the CO NAAQS for the first 10 years following EPA's approval of the redesignation request. On October 1, 1998, the Governor submitted revisions to Colorado Air Quality Control Commission (AQCC) Regulation No. 13, “Oxygenated Fuels Program.” EPA approved the State's redesignation request, the CAA section 175A(a) 10-year maintenance plan, and the revisions to AQCC Regulation No. 13 on August 25, 1999 (64 FR 46279).

On May 10, 2000, the Governor of Colorado submitted a revised Colorado Springs CO maintenance plan to EPA which changed the attainment year from 1993 to 1990, provided a revised projected emissions inventory out to 2010, and demonstrated maintenance of the CO NAAQS in the Colorado Springs area through 2010. The Governor also submitted a transportation conformity motor vehicle emission budget (MVEB) for 2010, and revisions to AQCC Regulation No. 13, “Oxygenated Fuels Program,” which allowed for the removal of the oxygenated fuels program in Colorado Springs. We approved all of these changes into the SIP on December 22, 2000 (65 FR 80779).

On April 12, 2004, the Governor of Colorado submitted to us a revised maintenance plan which demonstrated maintenance of the CO NAAQS in the Colorado Springs area through 2015 and revised the 2010 transportation conformity MVEB. The Governor also submitted revisions to AQCC Regulation No. 11, “Motor Vehicle Emissions Inspection Program,” which allowed for the removal of the basic inspection/maintenance program in El Paso County, including the Colorado Springs area. We approved all of these changes into the SIP on September 7, 2004 (see 69 FR 54019).

Eight years after an area is redesignated to attainment, CAA section 175A(b) requires the state to submit a subsequent maintenance plan to EPA, covering a second 10-year period. 1 This second 10-year maintenance plan must demonstrate continued maintenance of the applicable NAAQS during this second 10-year period. To fulfill this requirement of the Act, the Governor of Colorado's designee submitted the second 10-year Colorado Springs CO maintenance plan (hereafter, “revised Colorado Springs Maintenance Plan”) to us on March 31, 2010. With this action, we are approving the revised Colorado Springs Maintenance Plan.

The 8-hour CO NAAQS—9.0 ppm—is attained when such value is not exceeded more than once a year. 40 CFR 50.8(a)(1). The Colorado Springs area has attained the 8-hour CO NAAQS from 1990 to the present. 2 In October 1995, EPA issued guidance that provided nonclassifiable CO nonattainment areas the option of using a less rigorous “limited maintenance plan” (LMP) option to demonstrate continued attainment and maintenance of the CO NAAQS. 3 According to this guidance, areas that can demonstrate design values at or below 7.65 ppm (85% of exceedance levels of the CO 8-hour NAAQS) for eight consecutive quarters qualify to use an LMP. For the revised Colorado Springs Maintenance Plan, the State used EPA's LMP option to demonstrate continued maintenance of the CO NAAQS in the Colorado Springs area through 2020. We have determined that the Colorado Springs area qualifies for the LMP option for this plan revision because the area's maximum design value for the most recent eight consecutive quarters with certified data at the time the State adopted the plan (years 2007 and 2008) was 2.3 ppm. 4

Section 110(a)(2) of the CAA requires that a state provide reasonable notice and public hearing before adopting a SIP revision and submitting it to us.

The AQCC held a public hearing for the revised Colorado Springs Maintenance Plan on December 17, 2009. The AQCC adopted the revised Colorado Springs Maintenance Plan directly after the hearing. The Governor's designee submitted the revised plan to EPA on March 31, 2010.

We have evaluated the SIP revision and have determined that the State met the requirements for reasonable notice and public hearing under section 110(a)(2) of the CAA. On September 30, 2010, by operation of law under CAA section 110(k)(1)(B), the SIP revision was deemed to have met the minimum “completeness” criteria found in 40 CFR part 51, appendix V.

The following are the key elements of a LMP for CO: Emission Inventory, Maintenance Demonstration, Monitoring Network/Verification of Continued Attainment, Contingency Plan, and Conformity Determinations. Below, we describe our evaluation of each of these elements for the revised Colorado Springs Maintenance Plan.

The revised Colorado Springs CO Maintenance Plan contains an emission inventory for the base year 2007. The emission inventory is a list, by source category, of the air contaminants directly emitted into the Colorado Springs CO maintenance area on a typical winter day in 2007. 5 The data in the emission inventory were developed using EPA-approved emissions modeling methods. The State provided a more detailed description of the 2007 inventory in its Technical Support Document (TSD) and the supplemental TSD for the revised Colorado Springs Maintenance Plan. 6 Included in this inventory are aircraft, commercial cooking, fuel combustion, highway vehicle exhaust, non-road mobile sources, railroads, structure fires, woodburning, and non-oil-and-gas point sources. The revised maintenance plan and TSD contain detailed emission inventory information that was prepared in accordance with EPA guidance and is acceptable to us. 7

EPA considers the maintenance demonstration requirement to be satisfied for areas that qualify for and are using the LMP option. As mentioned above, a maintenance area is qualified to use the LMP option if that area's maximum 8-hour CO design value for eight consecutive quarters does not exceed 7.65 ppm (85% of the CO NAAQS). EPA maintains that if an area begins the maintenance period with a design value no greater than 7.65 ppm, the applicability of prevention of significant deterioration requirements, the control measures already in the SIP, and federal measures should provide adequate assurance of maintenance over the 10-year maintenance period. Therefore, EPA does not require areas using the LMP option to project emissions over the maintenance period. Because CO design values in the Colorado Springs area are consistently well below the LMP threshold (See Table 1 below), the State has adequately demonstrated that the Colorado Springs area will maintain the CO NAAQS into the future.

In the revised Colorado Springs Maintenance Plan, the State commits to continuing operation of an air quality monitoring network in accordance with 40 CFR Part 58 to verify continued attainment of the CO NAAQS. The State also commits to conducting an annual review of the air quality surveillance system in accordance with 40 CFR 58.10. Additionally, the plan indicates that if measured mobile source parameters change significantly over time, the State will perform appropriate studies to determine whether additional and/or re-sited monitors are necessary. We are approving these commitments as satisfying the relevant requirements.

Section 175A(d) of the CAA requires that a maintenance plan include contingency provisions to promptly correct any violation of the NAAQS that occurs after redesignation of an area. To meet this requirement, the State has indentified appropriate contingency measures along with a schedule for the development and implementation of such measures.

As stated in the revised Colorado Springs Maintenance Plan, the contingency measures will be triggered by a violation of the CO NAAQS. No more than 60 days after notification from the Colorado Air Pollution Control Division (APCD) that a violation of the CO NAAQS has occurred, the Pikes Peak Area Council of Governments (PPACG), in conjunction with the APCD, AQCC, and local governments will initiate a process to begin evaluating potential contingency measures. The PPACG will present recommendations within 120 days of notification, and the recommended contingency measures will be presented to the AQCC within 180 days of notification. The AQCC will then hold a public hearing to consider the recommended contingency measures along with any other contingency measures the AQCC believes may be appropriate to effectively address the violation. The necessary contingency measures will be adopted and implemented within one year after a violation occurs.

The potential contingency measures that are identified in the revised Colorado Springs CO maintenance plan include, but are not limited to: (1) A basic vehicle inspection and maintenance program, as such program existed in AQCC Regulation Number 11 before December 18, 2003; (2) a 2.7% oxygenated gasoline program, as such program existed in AQCC Regulation Number 13 before February 17, 2000; (3) re-establishing nonattainment new source review permitting for stationary sources; and (4) wood burning restrictions.

We find that the contingency measures provided in the revised Colorado Springs Maintenance Plan are sufficient and meet the requirements of section 175A(d) of the CAA.

Transportation conformity is required by section 176(c) of the CAA. Conformity to a SIP means that transportation activities will not produce new air quality violations, worsen existing violations, or delay timely attainment of the NAAQS (CAA 176(c)(1)(B)). EPA's conformity rule at 40 CFR part 93 requires that transportation plans, programs and projects conform to SIPs and establish the criteria and procedures for determining whether or not they conform. To effectuate its purpose, the conformity rule requires a demonstration that emissions from the Regional Transportation Plan (RTP) and the Transportation Improvement Program (TIP) are consistent with the motor vehicle emissions budget (MVEB) contained in the control strategy SIP revision or maintenance plan (40 CFR 93.101, 93.118, and 93.124). A MVEB is defined as the level of mobile source emissions of a pollutant relied upon in the attainment or maintenance demonstration to attain or maintain compliance with the NAAQS in the nonattainment or maintenance area. 8

Under the LMP guidance, emissions budgets generally are treated as not constraining for the length of the maintenance period. While EPA's LMP guidance does not exempt an area from the need to affirm conformity, it explains that the area may demonstrate conformity without submitting a MVEB. According to the LMP guidance, it is unreasonable to expect that an LMP area will experience so much growth in that period that a violation of the CO NAAQS would result. 9 However, under our conformity regulations, consistency with existing MVEBs must be demonstrated as long as those MVEBs are within the timeframe of the transportation plan. See 40 CFR 93.118(b)(2)(i) and (d)(2). 10

The CO maintenance plan for Colorado Springs that we approved in 2004 (69 FR 54019) contains MVEBs applicable only through 2010. As 2010 is no longer within the timeframe of the transportation plan, there is no longer a need to demonstrate conformity with the 2010 MVEB for the Colorado Springs CO maintenance area. For the reasons described in our LMP guidance, all actions that would require conformity determinations for the Colorado Springs CO maintenance area under our conformity rule provisions are considered to have already satisfied the regional emissions analysis and “budget test” requirements in 40 CFR 93.118 because of our approval of the Colorado Springs CO LMP.

However, since LMP areas are still maintenance areas, certain aspects of transportation conformity determinations still will be required for transportation plans, programs and projects. Specifically, for such determinations, RTPs, TIPs and transportation projects still will have to demonstrate that they are fiscally constrained (40 CFR 93.108) and meet the criteria for consultation and Transportation Control Measure (TCM) implementation in the conformity rule provisions (40 CFR 93.112 and 40 CFR 93.113, respectively). In addition, projects in LMP areas still will be required to meet the applicable criteria for CO hot spot analyses to satisfy “project level” conformity determinations (40 CFR 93.116 and 40 CFR 93.123), which must also incorporate the latest planning assumptions and models available (40 CFR 93.110 and 40 CFR 93.111, respectively).

Our approval of the revised Colorado Springs Maintenance Plan affects future CO RTP and TIP conformity determinations prepared by PPACG, the Colorado Department of Transportation, the Federal Highway Administration, and the Federal Transit Administration.

We are approving the revised Colorado Springs Maintenance Plan submitted on March 31, 2010. This maintenance plan meets the applicable CAA requirements, and we have determined it is sufficient to provide for maintenance of the CO NAAQS over the course of the second 10-year maintenance period out to 2020.

We are publishing this rule without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comments. However, in the Proposed Rules section of today's Federal Register publication, we are publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective September 30, 2013 without further notice unless we receive adverse comments by September 3, 2013. If we receive adverse comments, we will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. We will address all public comments in a subsequent final rule based on the proposed rule. We will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. Please note that if we receive adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, we may adopt as final those provisions of the rule that are not the subject of an adverse comment.

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 approves state law as meeting Federal requirements and imposes no additional requirements beyond those 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 approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that 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 (Pub. L. 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 action 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 action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. 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 approves a state rule implementing a Federal standard.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. 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 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).

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 September 30, 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 Clean Air Act section 307(b)(2).)

40 CFR part 52 is amended to read as follows:

This final rule reflects the administrative action of changing the street address of the New Mexico/Oklahoma/Texas/Kansas State Office of the BLM. Both the postal mailing address (P.O. Box 27115, Santa Fe, NM 87502-0115) and the phone number (505-954-2000) remain the same. This rule changes the street address for the personal filing of documents relating to public lands in New Mexico, Oklahoma, Texas, and Kansas, but makes no other changes in filing requirements. The BLM has determined that the rule has no substantive impact on the public, imposes no costs, and merely updates a list of addresses included in the Code of Federal Regulations for the convenience of the public. The Department of the Interior, therefore, for good cause finds that under 5 U.S.C. 553(b)(B) and 553(d)(3) notice and public comment procedures are unnecessary and that the rule may take effect immediately.

This final rule is an administrative action to change the address for one BLM State Office. This rule was not subject to review by the Office of Management and Budget under Executive Order 12866. The rule imposes no costs, and merely updates a list of addresses included in the Code of Federal Regulations for the convenience of the public.

The BLM has found that the final rule is of a procedural nature and thus is categorically excluded from environmental review under Section 102(2)(C) of the Environmental Protection Act of 1969 (NEPA), 42 U.S.C. 4332(2)(C), pursuant to 43 CFR 46.210(i). In addition, the final rule does not present any of the 12 extraordinary circumstances listed at 43 CFR 46.215. Pursuant to the Council on Environmental Quality regulations (40 CFR 1508.4) and the environmental regulations, policies, and procedures of the Department of the Interior, the term “categorical exclusions” means a category of actions which do not individually or cumulatively have a significant effect on the human environment and that have been found to have no such effect in procedures adopted by a Federal agency and for which neither an environmental assessment nor an environmental impact statement is required.

Congress enacted the Regulatory Flexibility Act of 1980 (5 U.S.C. 601, et seq. ) to ensure that Government regulations do not unnecessarily or disproportionately burden small entities. This final rule is a purely administrative regulatory action having no effect upon the public or the environment and it has been determined that the rule will not have a significant effect on the economy or small entities.

This final rule is a purely administrative regulatory action having no effects upon the public or the economy. This is not a major rule under the Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 804(2)). The rule will not have an annual effect on the economy of $100 million or more. The rule will not cause a major increase in costs of prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. The rule will not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based enterprises to complete with foreign-based enterprises.

The BLM has determined that this final rule is not significant under the Unfunded Mandates Reform Act of 1995 because the rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year. Further, the final rule will not significantly or uniquely affect small governments. It does not require action by any non-Federal government entity. Therefore, the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq. ), is not required.

As required by Executive Order 12630, the Department of the Interior has determined that the rule would not cause a taking of private property. No private property rights would be affected by a rule that merely reports an address change for the New Mexico/Oklahoma/Texas/Kansas State Office. The Department therefore certifies that this final rule does not represent a governmental action capable of interference with constitutionally protected property rights.

In accordance with Executive Order 13132, the BLM finds that the rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. The final rule does not have substantial direct effects on the States, on the relationship between the national governments and the States, or the distribution of power and the responsibilities among the various levels of government. This final rule does not preempt State law.

This final rule is a purely administrative regulatory action having no effects upon the public and will not unduly burden the judicial system and meets the requirements of Sections 3(a) and 3(b)(2) of the Executive Order.

In accordance with the Executive Order 13175, the BLM finds that the rule does not include policies that have tribal implications. This final rule is purely an administrative action having no effects upon the public or the environment, imposing no costs, and merely updating the BLM, New Mexico/Oklahoma/Texas/Kansas State Office address included in the Code of Federal Regulations.

In accordance with Executive Order 13211, the BLM has determined that the final rule will not have substantial direct effects on the energy supply, distribution or use, including a shortfall in supply or price increase. This final rule is a purely administrative action and has no implications under Executive Order 13211.

The Paperwork Reduction Act does not apply because the rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.

For the reasons discussed in the preamble, the Bureau of Land Management amends 43 CFR part 1820 as follows: