The U.S. Office of Personnel Management (OPM) is issuing an interim rule to abolish the Washington, DC, Federal Wage System (FWS) special wage schedule for printing and lithographic positions. The Department of Defense (DOD) recommended that we abolish this special wage schedule because Federal employment in printing and lithographic occupations in the Washington, DC, wage area has declined sharply in recent years, from 235 employees in 2004 to 24 today. Of the 24 remaining employees, there are 20 nonsupervisory (XP), 2 leaders (XL), and 2 supervisors (XS) employed by 10 agencies, and DOD expects the decline to continue.

None of the 24 employees benefit from being paid from the special printing schedule compared to what they would be paid under the regular wage schedule for the Washington, DC, wage area. OPM regulations provide that special printing schedules must have three step rates. Section 532.279(g) of title 5, Code of Federal Regulations, provides that no step 3 rate on a special printing schedule may be less than the maximum rate of the corresponding grade on the regular wage schedule for the wage area. This means that each step 3 printing survey rate is compared to the step 5 regular schedule rate, and the higher rate for each grade is selected for the special printing schedule. The step 3 rates for the first 10 XP and XL grades and all XS grades in the special printing schedule are equal to the step 5 rates in the Washington, DC, regular wage schedule. Although the remaining grades in the XP and XL schedules are higher than the Washington, DC, regular wage schedule step 5 rates, there are no employees in these remaining grades.

Printing and lithographic employees will convert to the Washington, DC, FWS regular wage schedule on a grade-by-grade basis. Each employee's new rate of pay will be set at the step-rate for the applicable grade of the regular wage schedule that equals the employee's existing rate of pay. If an employee's existing rate of pay falls between two steps on the regular schedule, the new rate will be set at the higher of the two steps. If an employee's existing rate of pay is higher than the highest rate for his or her grade on the regular schedule, the employee will, if otherwise eligible, be entitled to pay retention.

The Federal Prevailing Rate Advisory Committee, the national labor-management committee that advises OPM on FWS pay matters, reviewed and concurred by consensus with this change.

Since the special wage schedule for printing and lithographic occupations in the Washington, DC, wage area was the sole special printing schedule remaining, this interim rule removes section 532.279 from title 5, Code of Federal Regulations.

Pursuant to 5 U.S.C. 553(b)(3)(B), I find that good cause exists to waive the general notice of proposed rulemaking. Also pursuant to 5 U.S.C. 553(d)(3), I find that good cause exists for making this rule effective in less than 30 days. The notice of proposed rulemaking is being waived and the regulation is being made effective in less than 30 days because notice and comment on this matter is unnecessary. Federal employment in printing and lithographic occupations in the Washington, DC, wage area has declined sharply in recent years and is expected to continue to decline until there are no printing and lithographic employees left in the wage area; no affected employees will lose pay as result of converting to the FWS regular wage schedule; and, requiring DOD to conduct a full-scale wage survey for the diminishing number of employees in printing and lithographic positions in the Washington, DC, wage area in August 7, 2012, would be an unnecessary expenditure of resources.

I certify that these regulations would not have a significant economic impact on a substantial number of small entities because they would affect only Federal agencies and employees.

Accordingly, the U.S. Office of Personnel Management amends 5 CFR part 532 as follows:

This final rule amends procedures for designating counties as disaster areas. Some USDA programs past and present, administered by FSA have eligibility criteria that include whether losses occurred within a disaster area. For example, the Secretary of Agriculture is authorized to make emergency loans available (7 U.S.C. 1961) to farmers whose operations have been substantially affected by a natural disaster in a designated disaster county. Disaster designations have been used to qualify producers in those counties for other programs, such as certain crop disaster payment programs under past legislation and it is possible that future legislation will also tie program eligibility to Secretarial designations. The authority to make those designations and administer the designation system has been delegated to FSA. Until now, FSA regulations regarding the disaster designation process were in 7 CFR part 1945.

On November 14, 2011, FSA published a proposed rule to amend the disaster designation regulations to provide for changes in the designation process (76 FR 70368-70374). In general, that rule proposed to simplify the disaster designation process and to delegate the authority for designation to the State level of FSA. It also proposed to move the disaster designation regulations from 7 CFR part 1945 to 7 CFR part 759. The latter (part 759) is in a part of the CFR where there are general regulations that apply to multiple programs administered by FSA. We received 18 comments during the 60-day comment period. Commenters included individuals, State agencies, universities, FSA employees, and producer associations. Almost all of the comments supported the rule. Some supporting comments asked for minor clarifications or changes. The comments opposing the rule included suggestions that are beyond FSA's authority, such as a suggestion requiring State agencies to participate in our disaster designation process. In response to comments, we are removing a proposed definition because it is not actually used in the other parts of the regulations, and we are clarifying the Secretary's delegation authority in several respects with minor changes to those in the proposed rule. For example, some references to the eligibility of contiguous counties are amended to refer to the separate regulations that apply to the disaster assistance programs. The delegation authority change clarifies that the delegation authority for disaster declarations may be delegated to the State level of FSA but that such a delegation is not automatic, or assumed, but is discretionary and will require specific delegation action. That is a change from the proposed rule, which proposed a delegation to the FSA State level as the default procedure. There were also a few comments asking for clarification of internal FSA procedures. We will provide clarification on internal FSA procedures in the handbooks, because we believe that in this instance that is the appropriate location for the level of detail about internal procedures reflected in the comments. FSA handbooks are available to the public.

This document first discusses the disaster designation process as specified in this rule, and then discusses our responses to the comments received. Except for the changes in response to comments noted above (removing a definition not used, changing delegation of authority from a default process to an optional process, and clarifying contiguous county applicability), the disaster designation process specified in this rule is the same as in the proposed rule.

There are four types of disaster determinations that can affect the administration of benefits by FSA:

(1) USDA Secretarial disaster designations,

(2) Presidential major disaster and Presidential emergency declarations,

(3) FSA Administrator's Physical Loss Notifications, and

(4) Quarantine designations by the Secretary under the Plant Protection Act or animal quarantine laws as defined in section 2509 of the Food, Agriculture, Conservation and Trade Act of 1990 (referenced in 7 CFR part 761, which includes a definition of “quarantine” in accordance with 7 U.S.C. 1961).

FSA administers the making of USDA Secretarial disaster designations. Those declarations specify:

(1) The specific disaster that resulted in the designation,

(2) The incidence period (dates) of that disaster, and

(3) The specific counties that are included in the designation.

Of the four types of disaster determinations listed above, the USDA Secretarial disaster designation is the one that most often impacts FSA programs. Previously, its process was the most complicated of the four. This rule simplifies the process of making those determinations.

This rule reduces the number of steps in the process. Before, the process required actions by the Secretary of Agriculture, a State Governor or Indian Tribal Council, FSA National office, the FSA State Executive Director (SED), FSA county offices, the County Emergency Board (CEB), and the State Emergency Board (SEB). This process specified in this rule will in the most complex case only require action by the Secretary (or the Secretary's designee), the CEB, the SEB, and the SED. In the case of a severe drought, it will only require action by the Secretary (or the Secretary's designee). While the Secretary retains the authority to make any and all determinations, this rule provides procedures for that responsibility to be delegated to FSA at the State level. If the Secretary chooses, the SED will be delegated authority to make the designation on behalf of the Secretary, based on a recommendation from the SEB. (The SED is the chairperson of the SEB.) The Secretary retains the authority and flexibility to determine which SEDs will be delegated authority and when.

The rule eliminates the requirement that a request from a State Governor or Indian Tribal Council is needed before a disaster designation can be made. Under this rule, an Indian Tribal Council or Governor may still initiate a request for designation to the County Emergency Board (CEB), SEB, or Secretary, but that request would no longer be required to initiate the process. In response to a request by a Governor or Tribal Council for information about pending potential disaster designations with respect to a specific disaster, the Secretary will advise the Governor or Indian Tribal Council(s) of any designation requests that are under review in their State or Tribal region. This rule also eliminates the requirement for FSA National office review of the information submitted by the SEB to justify a disaster designation for a county. However, the FSA National office will perform spot check reviews.

This rule provides for a nearly automatic designation of any county in which drought conditions as reported in the U.S. Drought Monitor ( http://www.droughtmonitor.unl.edu ) meet the drought intensity value of at least D2 (Drought—Severe) for 8 consecutive weeks in any portion of the county. Further, any county that has a portion of its area in a drought intensity value of D3 (Drought—Extreme) or higher at any time during the growing season of the affected crops would be considered a disaster area.

This rule also revises the definition of “natural disaster” to be consistent with other existing FSA regulations that use that term.

In addition to the substantive changes to the disaster designation process, this rule implements the provisions specified in the proposed rule that reorganize the disaster designation regulations. This rule moves the disaster designation regulations from 7 CFR part 1945 to 7 CFR part 759. This rule also makes the clarifying changes that were in the proposed rule, including changes to remove internal FSA processes that are not needed in the rule, but are instead made in the handbook, where they more properly belong. A conforming change is made to amend 7 CFR part 762, “Guaranteed Farm Loans,” to remove a reference to 7 CFR part 1945 and replace it with a reference to new part 759.

The following provides a summary of public comments received on the proposed rule and FSA's response, including changes we are making in response to the comments.

Comment: Removing the list of examples of unusual and adverse weather conditions from the definition of “natural disaster” could lead to potential program abuse and fraud. It would allow nearly any simple event like a spring rain during hay cutting to be considered a natural disaster. Therefore, that change should not be made. The definition and list of examples should not be modified or removed.

Response: The definition of “natural disaster” in this rule adequately describes a disaster as an unusual or severe weather condition or other natural phenomena that causes severe losses. The definition in this rule is consistent with other FSA regulations that use that term. A list of examples could be problematic if it was interpreted to mean that only those disaster conditions listed were possible eligible disaster situations. In those cases where the designation is not automatic (that is, not based on officially-published drought data), the rule provides an ample opportunity for review. No change is made in response to this comment.

Comment: The definition of CEB should be amended to specify that local Cooperative Extension agents or educators who have responsibilities for reporting the occurrence of a disaster, assessing the extent of a disaster, and for requesting approval in declaring a county a disaster are included as members of the CEB. Similarly, the term SEB should likewise be amended to include Cooperative Extension agents having program responsibilities at the State level.

Response: The CEB and SEB do consider input from State and local experts on local disaster conditions. Extension agents can and do attend meetings and provide input. However, USDA does not have the authority to require Extension agents or other local non-federal partners to participate or attend as members of the CEB or SEB. Even if they were willing to participate, the determination must remain within USDA and it has been deemed best to limit the CEB and SEB membership accordingly. This will also assure consistency in the makeup of the CEBs and the SEBs. No change is made in response to this comment.

Comment: FSA should include State government agriculture and emergency management agency representatives on the SEB. They must receive communications about disaster designations, and must be allowed to provide input on the approval process.

Response: FSA agrees that State level persons who are engaged in work related to identifying and reporting disasters and other State or local government work can provide valuable information and input that a CEB or SEB may consider in making a CEB or SEB recommendation. Such representatives are invited to attend and provide input. However, as with the previous comments, FSA believe that the actual boards should be comprised of USDA staff only. This is particularly with respect to nonfederal persons as the designation is a federal function. Also, it is relevant to note that the boards are not outside advisory boards and therefore not subject to the special procedures that can apply to such organizations.

Comment: The definition of contiguous county should be amended to specify how rivers, lakes, and other bodies of water are viewed. For example, if counties are separated by a large body of water (Lake Michigan), are the counties on each side of the lake contiguous?

Response: The definition of “contiguous county” already provides for the inclusion of a county whose boundary touches a “primary county.” The rule makes no distinction for boundaries that touch in water, and is not defining county boundaries in a different way than those boundaries are legally defined by States and local jurisdictions. In the past, counties on each side and separated by a wide body of water, such as Lake Michigan or the Pacific Ocean, have not been viewed as contiguous by USDA because the legal boundaries of those counties are not contiguous. No change in the definition is necessary.

Comment: The definition of “production losses (severe)” needs to be clarified because it is unclear whether production losses include physical losses. If the intention is to limit production losses to only losses of production, the definition should state that physical losses are not included. There is a difference between physical and production losses resulting from natural disaster.

Response: In the context of the rule “physical losses” means losses to a building or to stored goods and the like. Production losses—losses of growing crops—as defined in this rule do not include physical losses. The definition of “production losses (severe)” is clear that a loss of at least 30 percent or more of at least one crop (not property or things included in the rule's definition of physical losses) is a severe production loss for purposes of the rule. FSA does not believe that either the definition of production losses (severe) or the definition of severe physical losses require further amendment or clarification.

Comment: The definition for “normal year's dollar value” is unnecessary as the term is not used in the rule. Additionally, the definition is in conflict with other FSA regulations.

Response: In response to this comment, the proposed definition has been removed and is not in this final rule.

Comment: Of the methods in § 759.5 for declaring a disaster (automatic process for drought, SEB recommendation, production losses of at least 30 percent, and Secretarial discretion for exceptions), only that in paragraph (b) (regarding recommendations by CEBs and SEBs), seems to require review by the FSA Deputy Administrator for Farm Programs. If the intent is not to use the method in paragraph (b) most of the time, but always use the other more lenient methods whenever possible, then there is no point in having that method, so paragraph (b) should be removed.

Response: The CEB and SEB criteria requires the finding of a 30 percent production loss and will likely be the most used option. By nature, those recommendations require review of some kind and therefore the rule provides for review by the Deputy Administrator. However, the rule allows for delegation of that review to the SED. Any SED disaster designation action may be reviewed by the Deputy Administrator for Farm Programs (DAFP) as appropriate. The special discretion for special cases where production losses are not at least 30 percent or where the automatic drought criteria are not met is intended for special cases only. We think that the review provisions are necessary and appropriate to assure as much consistency as possible. No change is made in response to this comment.

Comment: USDA should notify Governors and State personnel when it receives a request for a designation from a CEB. It is important for Governors and States to have real time knowledge of agricultural disaster information and to ensure effective coordination and sharing of information. FSA should also notify Governors and State personnel when a disaster declaration is about to be made, before the general publication notification is made by USDA.

Response: FSA will provide that notice when requested once the disaster has occurred with respect to designations for that particular disaster. Because of the streamlined procedures and the desire for a quick determination where such a determination is warranted and possible, FSA does not anticipate that every Governor and State personnel will ask for pre-notification. FSA will amend internal operating guidelines and handbooks to provide procedures for responding to requests for information about pending disaster designations from interested parties, including Governors and Tribal Councils. The procedure will be in the handbooks and internal guidelines rather than in the rule.

Comment: The CEB does not meet regularly and in most cases the FSA County Executive Director (CED) compiles the information necessary for supporting designation requests. Recommend making CEB interchangeable with the CED.

Response: FSA recognizes the valuable contribution by the CED in obtaining the information that will be used by a CEB or SEB to recommend the disaster designation. However, the CEB is comprised of representatives of several USDA agencies, including but not limited to FSA, that have responsibilities for reporting disasters and assessing the resulting damage caused. It provides a valuable coordination function between USDA agencies. CEB will meet as needed to promptly implement the procedures in this rule. No change is made to the rule in response to this comment.

Comment: The regulation does not specify how information required by the CEB and SEB is collected and documented. There should be more specifics about what is required. For example, GIS maps should be required for all disaster designation requests, not just for drought.

Response: The proposed rule provides procedure for the nearly automatic designations based on the Drought Monitor as well as the reliance upon the Loss Assessment Report (LAR) for those designation requests not meeting the automatic designation criteria. Information from which a LAR can be developed or produced can come from various sources. FSA does not intend to restrict or mandate the sources of information that may be considered by a CEB or SEB in assessing losses. However, FSA will issue internal operating guidelines that will provide instructions regarding necessary information and documentation that will be necessary to support recommendations. In the case of drought, the process will be nearly automatic, based on documentation provided by the Drought Monitor itself. We say “nearly” automatic because of the function that will be performed by FSA to identify eligible counties from the official reports and to prepare the notice. No change is made to the rule in response to this comment, but the subject matter will be addressed in FSA handbooks.

Comment: The streamlined automatic designation process for drought could create designations for multiple counties in times of regional disasters. That could be confusing and cause disaster designations when one is not appropriate because the entire county was not impacted.

Response: A disaster declaration is not the only eligibility requirement for FSA disaster assistance programs that depend on a declaration. Most also require some threshold of documented losses. While it is possible that a drought will not impact an entire county that has been declared a disaster, in that case the producers in the county who were not impacted will be unlikely to meet the other criteria for benefit eligibility. The rules for designating a county as a disaster area when requirements are met based on information that may only be applicable to part of the county are not being modified by this rule. Generally, there is no requirement that the peril or perils that cause a county to be designated a disaster area have impacted all or most of a county. The authorizing legislation for FSA programs that rely on disaster designations consistently refer to county level disaster declarations, with no provisions to make designations for smaller areas. Furthermore, even if a more discrete declaration were permitted, attempting to identify specific affected locations within a county would be time-consuming, uncertain, and would slow the process of making aid available without a justifiable and substantial countervailing benefit. Individual producers must still establish their loss and must establish that it is related to the disaster. No change is made in response to this comment.

Comment: In the case of drought, the regulation should specify that when large areas of a State are impacted, counties affected should be combined as much as possible. The regulations should permit the SED to combine declarations, even if that means a 30- to 60-day delay until the data from the additional counties are known. That would make the disaster response process easier for States.

Response: The current regulations permit a disaster declaration that includes multiple counties. That is not changing with this rule. However, in the case of a drought, the Secretary will designate that area a disaster area when the drought intensity threshold is met, without waiting to see if nearby counties reach the severe or extreme drought threshold. We see no persuasive point in delaying the process to see if other counties qualify. No change is made in response to this comment.

Comment: The Drought Monitor is a valid tool; however, the problem is defining the line location for the drought area as it relates to a whole county. There may be instances where the Drought Monitor may accurately show that a small percent of a county has suffered due to drought; however, based on that data, an entire county may get the designation (based on drought). Recommend the CEB or CED determine if drought monitor conditions are reflective of conditions for the county and not just for the location of the monitor.

Response: As specified in § 759.5(a) of this rule, a loss assessment report (LAR) developed by the CEB is not required for disaster designation in the case of severe drought. Also, as noted above, a disaster declaration is not the only eligibility requirement for most FSA disaster assistance programs, and the authorizing legislation for FSA programs that rely on disaster designations consistently refer to county level disaster declarations, with no provisions to make designations for smaller areas. No change is made in response to this comment.

Comment: The rule is unclear how an individual farmer, State Governor, Indian tribal council, or local governing body will initiate a request for designation.

Response: Anyone can contact the Secretary or FSA and request a designation using any means, including a phone call, letter, or email, to report production losses or drought conditions to the CEB, as specified in this rule in § 759.5. Time and prudent considerations may govern how that contact is made. In any case, we do not believe that it is necessary to specify the method of contact in the rule itself to allow flexibility.

Comment: If anyone can request a disaster designation, this could greatly increase the workload for local staff. Recommend keeping the requirement for a request by the Governor or Indian Tribal Council.

Response: The benefits to producers of allowing anyone to report losses, facilitating a more expedited disaster designation process, outweigh any perceived or alleged increases in workload.

Comment: The new process will be more objective for drought. In the past, it was possible that some people could try to use undue influence to force the CEB to request a disaster even though conditions may not warrant a county-wide declaration process. What is being done to ensure that will not happen with the new process?

Response: The general drought authority will rely on published reports. Where the CEB is involved in the process, there will be review of the disaster recommendation by the SEB and by the Secretary's designee. We believe that the provisions for review are sufficient and persons concerned about any disaster declaration are always free to make that feeling known to generate greater review in particular cases. No change is made in response to this comment.

Comment: Governors or Indian tribal councils should have to seek designations. State governments and Indian tribal councils should not be removed from the process. A State may not want a designation approved. The drought might not be as severe as the Drought Monitor makes it seem, and a disaster declaration could scare away tourists.

Response: USDA has the responsibility to designate disasters using consistent criteria for the entire nation, so that producers in all States and counties have an opportunity to be eligible for disaster assistance if they suffered losses in a disaster area. No change is made in response to this comment.

Comment: The proposed designation process could compromise the integrity of the designation process by removing safeguards realized with a National review of designation requests. By removing the FSA National office review by impartial reviewers, politically appointed SEDs will be under increasing pressure to approve disaster designations, perhaps wrongly.

Response: The FSA National office will still be responsible for oversight and spot check of the process as needed and we believe that the opportunity for review in the regulations is sufficient. Also, as indicated, problems with individual determination can always be raised to generate additional review. In this rule, § 759.5 specifies that if the Secretary so chooses, authority may be delegated to make the designation at the State level, but that delegation is not automatic. At the State level, the SED may act based on a recommendation from the SEB. Such delegations may be limited to particular disasters. Section 759.6 has also been changed from the proposed rule to remove proposed language referring to a disaster designation made by the SED to reflect that there must be a specific delegation as no SED is empowered by the regulations themselves to make the designation.

Comment: Keep the old more complex process. Simplifying the process will result in more fraud, increasing the total government deficit.

Response: As noted above, the FSA National office will conduct spot checks of disaster designations to ensure program integrity. The revised process is expected to result in faster disaster designations, but not more eligible disaster designations, as the rule does not materially change the conditions under which a designation could be made.

Comment: Need clarification on the discretionary exceptions from the definition of production losses 7 CFR 1945.6(c)(3)(iii)(C). Are they being removed? The previous definition allowed a disaster declaration if production losses have not met the 30 percent loss threshold, but other conditions exist, including producers unable to get financing. According to the table in the preamble to the proposed rule, and the proposed new definition of production losses, it looks like the discretionary exceptions for production losses are removed from the definition section. Does that mean that the lack of getting a lender to finance is no longer included in the definition of production losses, and that we will be unable to obtain a disaster declaration based on financial hardship?

Response: This rule does not remove the provisions allowing the Secretary discretionary authority to declare a disaster even if the 30 percent production loss threshold has not been met. The discretionary exception provisions have been moved, not removed. The discretionary authority disaster designation process is specified in § 759.5, rather than in the definitions section. It includes the number of farmers unable to obtain emergency financing as one of the factors the Secretary may consider in determining whether to use this discretionary authority. This rule does not modify EM procedures or policies. No change is made in response to this comment.

Comment: The current designation process enables a Governor to best manage an agricultural disaster, including taking the necessary steps within the State in determining how and where the State is best served by seeking Federal relief through a disaster designation. Do not take the Governors out of the process. If each county has to independently advocate relief, the larger counties with more resources will be able to more vigorously and expeditiously make disaster designation requests, at the expense of more rural counties. This would not be fair, and would disable the Governor's ability to prioritize statewide needs.

Response: The simplified and streamlined process does not remove authority of Governors to seek designations for any of the counties located in their respective State. The proposed rule also does not prohibit a Governor from taking any State level action in response to whatever concerns or needs that might arise following an emergency. In fact, the expedited designation process should be able to assist all localities with a faster disaster designation process. Local emergency response resources and their distribution are outside the scope of this rule. FSA will designate counties based on factual information about disaster conditions in counties large and small. No change is made in response to this comment.

Comment: What if the same disaster causes both production and physical losses? Does the rule mean that both a Secretarial declaration and an Administrator's declaration of physical loss would be required in that case? If so, that seems more complicated, not less complicated, than the current procedure.

Response: As specified in this rule in § 759.6, the Administrator's declaration of physical loss process is used when only physical losses occur. When both production and physical losses occur, the Secretarial disaster designation process is used. No change is made in response to this comment.

Comment: Eliminate the Presidential, Secretarial, and Administrator designations processes for the FSA EM and the FSA Supplemental Revenue Assistance Payments (SURE) Program. The current process is complicated and time consuming. Proposed rule is unclear if there will be any reduction of paperwork or other time requirements on county FSA offices. The rule does not appear to have very many benefits for individual producers.

Response: USDA does not have authority to modify the disaster designation eligibility requirements for the SURE (should it be reauthorized) or EM program because these requirements are specified in authorizing laws. The streamlined process of processing requests for designations should benefit producers by providing disaster benefits more quickly. No change is made in response to this comment.

Comment: USDA should consider increasing the maximum income levels for benefit eligibility to allow farmers and ranchers in high cost areas to take advantage of more FSA program benefits.

Response: USDA does not have authority to change the adjusted gross income provisions that apply to FSA program benefit eligibility to the extent that they are mandated by law and in other instances use of those provisions may help target benefits to those whose need is the greatest. In any event, this comment and issue are outside the scope of this rule. No change is made in response to this comment.

Comment: Benefits for adjoining counties should be discontinued to help reduce potential fraud or less than credible claims. Disaster designations should only apply to the county and not other adjoining areas.

Response: The proposed rule was meant to address only the process by which designations are made and hence this comment goes beyond the scope of this rule. The program specific rules include contiguous counties when specifically authorized for that program by law. However, some additional language has been added to clarify that the rules about contiguous counties should be resolved by the regulations particular to each program. That said, the designation regulations have traditionally carried provisions dealing with that issue specifically for the EM program and this rule continues that practice. As some point we will consider moving the substantive EM provisions to the EM regulations themselves. The EM regulations are found in 7 CFR part 764. The EM regulations require a disaster as a predicate for an EM loan and under the general definitions in 7 CFR part 761 a “disaster” requires an FSA designation. This rule specifies that the FSA designation will include not only those that involve a Secretarial designation under these rules but the EM Program will also consider as designated counties eligible to trigger EM loans those counties that are the subject of the other kinds of disaster determinations noted above. The provisions addressing EM qualifications appear in 7 CFR 759.6 of the regulations adopted in this rule. To avoid confusion, 7 CFR part 759 as clarified in this rule will specify that unless otherwise indicated in the regulations for the actual benefit program, or in 7 CFR 759.6, for purpose of administering disaster assistance only the primary county will be considered the disaster county. That is, producers in the contiguous county will only be able to qualify for disaster assistance if the disaster assistance regulations or, in the case of EM, 7 CFR 759.6, provide for such eligibility. This is consistent with long-standing practice, and provisions in authorizing laws, and involves no change in policy.

Comment: The more timely designations may place an even greater burden on local governments who have limited staff to help with disaster response and the recovery process.

Response: This rule does not require any specific action by a local government to assist with USDA's disaster designation process. In fact, it removes the requirement for a request for disaster designation by the Governor or Tribal Council. The more rapid designation of disasters should help identify where response is most urgently needed, allowing local governments to focus resources on where it is needed the most. No change is made in response to this comment.

This rule also removes the abbreviation for NASS, the USDA National Agricultural Statistics Service, which only appeared in a definition in the proposed rule that is not included in this final rule.

The administrative procedure provisions in 5 U.S.C. 553(d) require that a substantive rule be published “not less than 30 days before its effective date.” As specified in 5 U.S.C. 553(d), exceptions to the 30-day post publication effective period include: (1) A substantive rule which grants or recognizes an exemption or relieves a restriction; (2) interpretative rules and statements of policy; and (3) as otherwise provided by the agency for good cause found and published with the rule. Here, however, the substance of this final rule was published in the proposed rule that was published more than 30 days prior to the publication of this final rule. Moreover, even if that should not be deemed to suffice, FSA finds that all of the exceptions apply. In fact, the rule relieves restrictions that the Secretary had placed on USDA's own internal processes, policy, and rules in order to expedite and make more efficient timely designations. Also, this rule makes substantive changes only with respect to USDA's own operations and thus involves matters of agency policy not of regulations in the normal sense. This rule accordingly involves, in terms of its changes, an agency statement of policy. Further, this rule will, with no negative countervailing considerations, provide a benefit to the public by providing more timely disaster relief. For that reason, any delay in implementing this rule is in the opinion of the agency, contrary to the public interest. Accordingly, this rule is made effective immediately upon filing for public inspection.

Executive Order 12866, “Regulatory Planning and Review,” and Executive Order 13563, “Improving Regulation and Regulatory Review,” direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasized the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility.

The Office of Management and Budget (OMB) designated this rule as not significant under Executive Order 12866 and, therefore, OMB has not reviewed this final rule.

The Regulatory Flexibility Act (5 U.S.C. 601-612), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to the notice and comment rulemaking requirements under the Administrative Procedure Act (5 U.S.C. 553) or any other statute, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. FSA has determined that this rule will not have a significant impact on a substantial number of small entities. New provisions of this rule will not impact a substantial number of small entities to a greater extent than large entities. FSA anticipates that the rule will not require submission of any additional information by the public. It is expected to be revenue neutral, neither increasing nor decreasing benefits for producers as a whole. Therefore, FSA certifies that this rule will not have a significant economic impact on a substantial number of small entities.

FSA has determined that these changes would not constitute a major Federal action that would significantly affect the quality of the human environment. Therefore, in accordance with the provisions of the National Environmental Policy Act (NEPA), 42 U.S.C. 4321-4347, the regulations of the Council on Environmental Quality (40 CFR parts 1500-1508), and FSA regulations for compliance with NEPA (7 CFR part 799), no environmental assessment or environmental impact statement will be prepared.

Executive Order 12372, “Intergovernmental Review of Federal Programs,” requires consultation with State and local officials. The objectives of the Executive Order are to foster an intergovernmental partnership and a strengthened Federalism, by relying on State and local processes for State and local government coordination and review of proposed Federal Financial assistance and direct Federal development. This rule neither provides Federal financial assistance or direct Federal development; it does not provide either grants or cooperative agreements. Therefore, this rule is not subject to Executive Order 12372.

This rule has been reviewed in accordance with Executive Order 12988, “Civil Justice Reform.” This rule preempts State and local laws, regulations, or policies that are in conflict with the provisions of this rule. The rule will not have retroactive effect.

This rule has been reviewed under Executive Order 13132, “Federalism.” As this rule does not require any action by any State, the policies contained in this rule do not have any substantial direct effect on States, the relationship between the Federal government and the States, or the distribution of power and responsibilities among the various levels of government. Nor does this final rule impose substantial direct compliance costs on State and local governments. Therefore, consultation with the States is not required.

This rule has been reviewed for compliance with Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments.” This Executive Order imposes requirements on the development of regulatory policies that have Tribal implications or preempt Tribal laws. The USDA Office of Tribal Relations has concluded that the policies contained in this rule do not, to our knowledge conflict with any Tribal law and therefore does not preempt Tribal law. Were there a conflict, the provisions of the regulations would prevail as far as administering the federal programs that are affected by the rule.

Before publishing the proposed rule, FSA consulted with the USDA Office of Tribal Relations and has concluded that this rule will not, to our knowledge, have a substantial direct effect on Indian tribes and no formal Tribal consultation under E.O. 13175 is required. FSA will conduct an informational forum (telephone call or webinar) to answer questions about this rule from all interested Indian Tribes soon after this rule has been published.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA, Pub. L. 104-4) requires Federal agencies to assess the effects of their regulatory actions on State, local, and Tribal governments or the private sector. Agencies generally must prepare a written statement, including a cost benefit analysis, for proposed and final rules with Federal mandates that may result in expenditures of $100 million or more in any 1 year for State, local, or Tribal governments, in the aggregate, or to the private sector. UMRA generally requires agencies to consider alternatives and adopt the more cost effective or least burdensome alternative that achieves the objectives of the rule. This final rule contains no Federal mandates, as defined under title II of the UMRA, for State, local, and Tribal governments or the private sector. Thus, this proposed rule does not trigger the requirements of sections 202 and 205 of UMRA.

The amendments in this final rule require no revision to the information collection that was previously approved by OMB under control number 0560-0170. Although this rule streamlines the disaster designation process, including removing the requirement for a State Governor or Indian Tribal Council to initiate a request for a Secretarial disaster designation, it does not prohibit that action and may therefore not result in a reduction in burden hours. Any change in burden hours will be documented in the next information collection request.

FSA 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.

These changes affect the following FSA program listed in the Catalog of Federal Domestic Assistance:

10.404—Emergency Loans

For the reasons discussed above, FSA adds 7 CFR part 759, amends 7 CFR part 762, and under the authority of 7 U.S.C. 1989, removes 7 CFR part 1945 as follows:

This rule has been determined to be not significant for purposes of Executive Order 12866 and has not been reviewed by the Office of Management and Budget (OMB).

The programs described by this rule are listed in the Catalog of Federal Domestic Assistance Programs under number(s) 10.405 Farm Labor Housing Loans and Grants, 10.410 Very Low to Moderate Income Housing Loans, 10.411 Rural Housing Site Loans and Self-Help Housing Land Development Loans, 10.415 Rural Rental Housing Loans, 10.417 Very Low-Income Housing Repair Loans and Grants, 10.420 Rural Self-Help Housing Technical Assistance, 10.427 Rural Rental Assistance Payments, 10.433 Rural Housing Preservation Grants, 10.444 Direct Housing-Natural Disaster Loans and Grants, 10.446 Rural Community Development Initiative, 10.447 The Rural Development Multi-Family Housing Revitalization Demonstration Program, 10.448 Rural Development Multi-Family Housing Voucher Demonstration Program, 10.759 Part 1774 Special Evaluation Assistance for Rural Communities and Household Programs (SEARCH), 10.760 Water and Waste Disposal Systems for Rural Communities, 10.761 Technical Assistance and Training Grants, 10.762 Solid Waste Management Grants, 10.763 Emergency Community Water Assistance Grants, 10.766 Community Facilities Loans and Grants, 10.770 Water and Waste Disposal Loans and Grants (section 306C), 10.780 Community Facilities Loans and Grants, 10.781 Water and Waste Disposal Systems for Rural Communities—ARRA, 10.788 Very low to Moderate Income Housing Loans—Direct, 10.864 Grant Program to Establish a Fund for Financing Water and Wastewater Projects.

The U.S. Department of Agriculture (USDA) prohibits discrimination in all its programs and activities on the basis of race, color, national origin, age, disability, and where applicable, sex, marital status, familial status, parental status, religion, sexual orientation, genetic information, political beliefs, reprisal, or because of all or part of an individual's income is derived from any public assistance program. (Not all prohibited bases apply to all programs.) Persons with disabilities who require alternative means for communication of program information (Braille, large print, audiotape, etc.) should contact USDA's TARGET Center at (202) 720-2600 (voice and TDD). To file a complaint or discrimination, write USDA, Director, Office of Civil Rights, 1400 Independence Avenue SW., Washington, DC 20250-9419, or call (800) 795-3272 (voice) or (202) 720-6382 (TDD). USDA is an equal opportunity provider, employer, and lender.

No major civil rights impact is likely to result from the announcement of this Notice. It will not have a negative civil rights impact on very-low income, low-income, moderate income and minority poplulations.

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

The program is subject to the provisions of Executive Order 12372, which requires intergovernmental consultation with State and local officials. Consultation will be completed at the time of the action performed.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. The Agency has determined that this rule meets the applicable standards provided in section 3 of the Executive Order. Additionally, (1) all State and local laws and regulations that are in conflict with this rule will be preempted; (2) no retroactive effect will be given to the rule; and (3) administrative appeal procedures, if any, must be exhausted before litigation against the Department or its Agencies may be initiated, in accordance with the regulations of the National Appeals Division of USDA at 7 CFR part 11.

The policies contained in this rule do not have any substantial direct effect on States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Nor does this final rule impose substantial direct compliance costs on State and local Governments. Therefore, consultation with States is not required.

Under section 605(b) of the Regulatory Flexibility Act, 5 U.S.C. 605(b), the Agency certifies that this rule will not have a significant economic impact on a substantial number of small entities. The Agency made this determination based on the fact that this regulation only impacts those who choose to participate in the program. Small entity applicants will not be impacted to a greater extent than large entity applicants.

This rule contains no Federal mandates (under the regulatory provisions of Title II of the Unfunded Mandates Reform Act of 1995) for State, local, and tribal Governments or the private sector. Thus, this rule is not subject to the requirements of sections 202 and 205 of the Unfunded Mandates Reform Act of 1995.

This executive order imposes requirements on Rural Development in the development of regulatory policies that have tribal implications or preempt tribal laws. Rural Development has determined that the final rule does not have a substantial direct effect on one or more Indian tribe(s) or on either the relationship or the distribution of powers and responsibilities between the Federal Government and Indian tribes. Thus, this final rule is not subject to the requirements of Executive Order 13175. If a tribe determines that this rule has implications of which Rural Development is not aware and would like to engage with Rural Development on this rule, please contact Rural Development's Native American Coordinator at AIAN@wdc.usda.gov.

This rule contains no new reporting or recordkeeping burdens under OMB control number 0575-0158 that would require approval under the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35).

Rural Development 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 citizens to access Government information and services electronically.

Section 335(a), of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Pub. L. 111-203, July 21, 2010) (“Act”) increased the standard maximum deposit insurance amount to $250,000 under the Federal Deposit Insurance Act (12 U.S.C. 1821(a)(1)(E)). This change is also reflected in FDIC's regulations at 12 CFR 330.1(o). The change made under the Act was in response to the instability of the financial markets. The permanent increase from $100,000 to $250,000 took a measure of insecurity out of the market. Rural Development funds, disbursed to a financial institution on behalf of a Rural Development borrower, are now protected up to $250,000. Similar to what is currently stated in 7 CFR 1902.6 and 1902.7, anything above the FDIC maximum insured amount will be required to be secured by pledging collateral.

The Agency is revising 7 CFR 1902.6(d) and 1902.7(a), to reflect the FDIC's change in the standard maximum deposit insurance amount. Accordingly, the Agency is revising the above referenced regulations in this final rule to change the reference from $100,000 to a more general reference of the maximum amount insurable by the Federal government. By making this change, Rural Development's regulations will remain consistent with the FDIC regulations even if the FDIC limit is revised again or the authority for deposit insurance is transferred to another Federal government entity.

For the reasons set forth in the preamble, chapter XVIII, title 7, of the Code of Federal Regulations is amended as follows:

The FOIA requires each Federal agency covered by the Act to specify a schedule of fees applicable to processing of requests for agency records. 5 U.S.C. 552(a)(4)(i). On June 1, 2012 the Board published for comment in the Federal Register its Proposed FOIA Fee Schedule, 77 FR 32433. No comments were received in response to that notice, and the Board is now establishing the Fee Schedule.

Pursuant to 10 CFR 1703.107(b)(6) of the Board's regulations, the Board's General Manager will update the FOIA Fee Schedule once every 12 months. The previous Fee Schedule Update went into effect on July 29, 2011. 76 FR 43819.

Accordingly, the Board issues the following schedule of updated fees for services performed in response to FOIA requests:

History

On April 23, 2012, the FAA published in the Federal Register a notice of proposed rulemaking (NPRM) to modify controlled airspace at Plentywood, MT (77 FR 24159). 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 it was brought to the attention of the FAA a minor adjustment to the geographic coordinates of the airport needed to be made.

Class E airspace designations are published in paragraph 6005, of FAA Order 7400.9V dated August 9, 2011, and effective September 15, 2011, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in that Order.

This action amends Title 14 Code of Federal Regulations (14 CFR) Part 71 by modifying Class E airspace extending upward from 700 feet above the surface at Plentywood Sher-Wood Airport, Plentywood, MT. Controlled airspace is necessary to accommodate IFR aircraft using RNAV (GPS) standard instrument approach procedures at the airport. This action is necessary for the safety and management of IFR operations. The geographic coordinates of the airport are adjusted to coincide with the FAA's aeronautical database.

The FAA has determined this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, Section 106 discusses 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 modifies controlled airspace at Plentywood Sher-Wood Airport, Plentywood, MT.

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:

Background

On July 14, 2011, the Commission exercised its exemptive authority under CEA section 4(c)  1 and its authority under section 712(f) of the Dodd-Frank Act by issuing the July 14 Order that addressed the potential that the final, joint CFTC-SEC rulemakings further defining the terms in sections 712(d)  2 and 721(c)  3 would not be in effect as of July 16, 2011 ( i.e., the general effective date set forth in section 754 of the Dodd-Frank Act). 4 In so doing, the Commission sought to address concerns that had been raised about the applicability of various regulatory requirements to certain agreements, contracts, and transactions after July 16, 2011, and thereby ensure that current practices would not be unduly disrupted during the transition to the new regulatory regime. 5 The July 14 Order provided that the relief granted thereunder would expire no later than December 31, 2011. 6

On December 23, 2011, the Commission published in the Federal Register a final order (the “First Amended July 14 Order”) amending the July 14 Order in two ways. 7 First, the Commission extended the potential latest expiry date from December 31, 2011 to July 16, 2012 or, depending on the nature of the relief, such other compliance date as may be determined by the Commission, to address the potential that, as of December 31, 2011, the aforementioned joint CFTC-SEC joint rulemakings would not be effective. Second, the Commission included within the relief set forth in the First Amended July 14 Order any agreement, contract or transaction that fully meets the conditions in part 35 as in effect prior to December 31, 2011. This amendment addressed the fact that such transactions, which were not included within the scope of the original July 14 Order because the exemptive rules in part 35 covered them at that time, required temporary relief because part 35 would not be available as of December 31, 2011. 8 In so doing, the Commission clarified that new part 35 and the exemptive relief issued in the First Amended July 14 Order, and any interaction of the two, do not operate to expand the pre-Dodd-Frank Act scope of transactions eligible to be transacted on either an ECM or EBOT to include transactions in agricultural commodities.

On May 16, 2012, the Commission published in the Federal Register a Notice of Proposed Amendment (“Notice”) that would further amend the First Amended July 14 Order in the following four ways. First, in light of the final, joint CFTC-SEC rulemaking further defining the entities terms in sections 712(d), including “swap dealer,” “major swap participant,” and “eligible contract participant,” issued on April 18, 2012, 9 the Notice proposed to remove references to those terms. Second, the Notice proposed to extend the latest potential expiry date from July 16, 2012 to December 31, 2012 or, depending on the nature of the relief, such other compliance date as may be determined by the Commission. The Notice stated that the extension would ensure that market practices will not be unduly disrupted during the transition to the new regulatory regime.

Third, the Notice proposed to further amend the First Amended July 14 Order to provide that agricultural swaps, whether entered into bilaterally, on a DCM, or a SEF, may be cleared in the same manner that any other swap may be cleared and without the need for the Commission to issue any further exemption under section 4(c) of the CEA. The Notice stated that this amendment is intended to harmonize the First Amended July 14 Order and the final rules amending part 35 of the Commission's regulations, to the extent that the July 14 Order, as amended, maintained the pre-Dodd-Frank Act part 35 prohibition against the clearing of agricultural swaps. The Notice clarified that while the proposed Second Amended July 14 Order would remove the clearing prohibition for agricultural swaps, it would not permit agricultural swaps to be entered into or executed on an ECM or EBOT.

The Commission noted that ECMs and EBOTs both operate some form of trading facility without any self-regulatory responsibilities. The Commission stated its general belief that any form of exchange trading in agricultural swaps should only be permitted in a self-regulated environment. In other words, unlike exempt and excluded commodities, which were generally allowed to be transacted on a trading facility ( i.e., platform-traded) in an unregulated environment under the CEA prior to the Dodd-Frank Act  10 and now during the transition to the Dodd-Frank Act regulatory regime, agricultural swaps, which were not allowed to be platform-traded on an ECM or EBOT under the CEA prior to Dodd-Frank Act, may not be platform-traded during the transition to the Dodd-Frank Act regulatory regime. Accordingly, under the Notice and in conjunction with 17 CFR part 35, as effective on and after December 31, 2011, the Notice stated that agricultural swaps may only be entered into or executed bilaterally, on a DCM, 11 or on a SEF. 12

In connection with swaps executed on a DCM (whether agricultural swaps or otherwise), the Commission clarified that a DCM may list such swaps for trading under the DCM's rules related to futures contracts without exemptive relief. 13 As required for futures, a DCM must submit such swaps to the Commission under either § 40.2 (listing products for trading by certification)  14 or § 40.3 (voluntary submission of new products for Commission review and approval)  15 of the Commission's regulations. Swaps that are traded on a DCM are required to be cleared by a DCO. 16 In order for a DCO to be able to clear a swap listed for trading on a DCM, the DCO must be eligible to clear such swap pursuant to § 39.5(a)(1) or (2), 17 and must submit the swap to the Commission pursuant to § 39.5(b). 18

Fourth, the Notice proposed to further amend the First Amended July 14 Order to remove any reference to the ECM/EBOT Grandfather Order, which expires on July 16, 2012. 19 The Notice stated that after July 16, 2012, ECMs and EBOTs, as well as markets that rely on pre-Dodd-Frank CEA section 2(d)(2) (“2(d)(2) Markets”), would only be able to rely on the Second Amended July 14 Order, as proposed therein. The Notice proposed that the relief for ECMs and EBOTs, as well as for 2(d)(2) Markets, granted under the proposed Second Amended July 14 Order shall expire upon the effective date of the DCM or SEF final rules, whichever is later, unless the ECM or EBOT, or 2(d)(2) Markets, files a DCM or SEF application on or before the effective date of the DCM or SEF final rules, in which case the relief shall remain in place during the pendency of the application. The Notice clarified that for these purposes, an application will be considered no longer pending upon the application being approved, provisionally approved, 20 withdrawn, or denied.

The Commission sought comment on all aspects of the Notice.

The Commission received five comments that related to the Notice. 21 While generally supportive of the Notice, the comments raised two issues for the Commission's consideration in this final order: (1) The expiry date applicable to ECMs currently operating pursuant to grandfather relief authorized by section 723(c)(l)-(2) of the Dodd-Frank Act and their market participants and clearing organizations; and (2) the effectiveness of CEA section 2(e) in light of the further definition of the term “eligible contract participant” (“ECP”). In addition, one commenter specifically supported the Commission's proposal to permit the clearing of agricultural swaps without further exemption. 22 The Coalition of Physical Energy Companies also supported the Proposed Amendment and believed that the Commission should undertake its implementation of the Dodd-Frank Act in a deliberative manner that carefully establishes necessary regulations and avoids inadvertent impacts and over-broad application of the statute. 23

The comments and Commission determinations regarding the two substantive issues raised by commenters are discussed in the sections that follow.

While supportive of the Notice, CME Group, on behalf of its four DCMs, requested that the Commission clarify one ambiguity it perceived with the Notice—that is, the provision of the Notice stating that the relief proposed shall expire on the earlier of (1) December 31, 2012 or (2) “the effective date of the DCM or SEF final rules, whichever is later,” unless the ECM or EBOT files a DCM or SEF application “on or before the effective date of the DCM or SEF final rules, in which case the relief shall remain in place during the pendency of the application.”  24 According to CME Group, the second part of the proposed expiration date is ambiguous because it fails to specify which of the numerous rule proposals concerning SEFs and DCMs must be finalized before relief will terminate. 25

CME Group stated that one way to remove this perceived ambiguity would be for the Commission to list each rulemaking that must take effect before the relief will terminate. CME Group also stated that, at a minimum, the ECM and EBOT relief should remain in place until at least the effective date of CFTC implementing rules concerning: (1) All DCM and SEF core principles and (2) block trade size requirements for swaps. Alternatively, CME Group stated that the Commission could address the concern by stating in a final order that the relief remains in effect until a future date the Commission will specify in a future order that will provide at least 60 days notice to market participants and other affected parties. 26

Nodal Exchange, which is currently operating as an ECM, sought assurance that the proposed relief would remain in place if an ECM applies to be a DCM after the effective date of the DCM rules, yet still on or before the effective date of the SEF rules. 27 To that end, Nodal Exchange offered a change to the operative language of the draft order. Specifically, Nodal Exchange recommended that the phrase at the end of Section (3) of the proposed order be modified to include a second “whichever is later” clause, as emphasized below:

Nodal Exchange explained that this change is necessary because it must file a DCM or SEF registration application on or before the effective date of the DCM or SEF final rules, but to date, the final rules for DCMs that defer implementation of Core Principle 9 and the proposed rules for SEFs would significantly impact Nodal Exchange such that a determination of which registration will be most appropriate is not possible until both the DCM and SEF final rules are published. 28 Before submitting the appropriate application, Nodal Exchange stated that it will need to assess (1) how the final regulations implement DCM Core Principle 9 and (2) the finalized rules for SEFs, especially with regard to how the Commission addresses the SEF rules regarding “pre-trade price transparency.”  29

The Commission has determined to amend the draft order to include a “whichever is later” clause in provision (b) of section 3 of the Second Amended July 14 Order. That qualifying provision will read as follows: “or (ii) the effective date of the designated contract market (“DCM”) or swap execution facility (“SEF”) final rules, whichever is later, unless the ECM, EBOT, or 2(d)(2) Market files a DCM or SEF registration application on or before the effective date of the DCM or SEF final rules, whichever is later, in which case the relief shall remain in place during the pendency of the application.”  30 To be clear, the phrase “DCM or SEF final rules” in that provision refers to the following rulemakings: (1) Core Principles and Other Requirements for Designated Contract Markets;  31 (2) Core Principles and Other Requirements for Swap Execution Facilities;  32 and (3) a rulemaking on DCM Core Principle 9. 33 The Commission believes that these changes and clarifications are necessary and in the public interest because finalization of the aforementioned rules is integral to the business decision of whether entities currently operating as ECMs, EBOTs, or 2(d)(2) Markets will transition to DCM or SEF status.

According to Fifth Third Bank, compliance with the Dodd-Frank Act requirements should not become mandatory until the CFTC and SEC provide further guidance as to the meaning of the “revised definition of ECP.”  34 Fifth Third Bank stated that section 2(e) of the CEA, as amended by the Dodd-Frank Act, which makes it unlawful for non-ECPs to enter into over-the-counter swaps, together with the rescission of the Commission's 1989 Policy Statement Concerning Swap Transactions, represent a major change in the rules under which banks have been operating for many years. 35 Fifth Third Bank contended that banks (and other swap counterparties) will need to know how to determine whether or not a person is an ECP with a considerable degree of certainty well before the mandatory compliance date for CEA section 2(e) so that they can (1) prepare compliance procedures, questionnaires, and other forms, and (2) train their personnel how to determine whether a person is or is not an ECP. Fifth Third Bank expressed particular concern regarding how to interpret the phrase “amounts invested on a discretionary basis” in the context of CEA section 1a(18)(A)(xi). 36 For these reasons, Fifth Third Bank stated that the proposed Second Amended July 14 Order should not assume that the term “ECP” has been adequately defined. In its view, compliance with CEA section 2(e) should not become mandatory until at least 60 days after the CFTC and SEC have provided further guidance regarding the meaning of the term “ECP.”  37

Similarly, citing some of the same issues as Fifth Third Bank, the American Bankers Association urged the Commission to amend the proposed order to provide for a continuation of the existing temporary exemption “solely with respect to Section 2(e) until the later of (i) the Proposed Revised Effective Date, or (ii) no less than 60 days after a substantive rule or interpretive guidance on Section 2(e) becomes effective for such purpose (issued either by the Commission or jointly with the SEC).”  38

On April 18, 2012, the Commission and the SEC adopted final rules jointly further defining, among other terms, “eligible contract participant.”  39 In those rules, the Commissions provided both new categories of ECPs, including a new category based in part on the line of business element of the Commission's Policy Statement Concerning Swap Transactions, 40 and interpretations regarding the further definition of the term “ECP.” The Commission and the SEC also delayed compliance with certain aspects of the ECP definition until December 31, 2012. 41

While the Commissions or their staff may, from time to time, issue additional guidance regarding the definition of the term “ECP,” the Commission and the SEC jointly have further defined the term “eligible contract participant,” fulfilling their mandate under Dodd-Frank Act section 712(d)(1) to jointly further define the term “ECP.” In light of the foregoing, the Commission declines requests to modify this final order to delay the effectiveness of section 2(e) beyond the relief already provided.

Nevertheless, because the Commission and the SEC may issue additional guidance concerning, among other issues of concern to commenters, the term “amounts invested on a discretionary basis” in the context of CEA section 1a(18)(A)(xi) after the effective date of section 2(e), the Commission provides the following guidance as to how it intends to exercise its enforcement discretion with respect to certain unintentional violations of section 2(e) by swap counterparties who are making good faith efforts to comply with section 2(e). 42 More specifically, where a person finds that it has entered into a swap with a counterparty that the Commission and SEC later further define or interpret as not an ECP, absent other material factors, the Commission will not bring an enforcement action for violation of section 2(e) if the person has implemented and followed reasonably designed policies and procedures to verify the ECP status of a swap counterparty  43 and, notwithstanding good faith compliance with such policies and procedures, 44 the person enters into a swap with a non-ECP counterparty.

One example of a fact pattern that the Commission does not believe would exhibit good faith compliance would be treating as an ECP an individual who has total assets, excluding personal property (which the Commission does not expect to treat as “assets invested on a discretionary basis”), that are less than the relevant CEA section 1a(18)(A)(xi) dollar threshold. Conversely, if the individual swap counterparty could be an ECP if the Commission and the SEC further define or interpret some or all of the individual's assets, other than personal property, to be “assets invested on a discretionary basis,” absent other material factors, the CFTC would not expect to bring an enforcement action against the counterparty for entering into a swap in contravention of CEA section 2(e). Of course, once the Commission and the SEC further define or interpret a counterparty to be a non-ECP, CEA section 2(e) would prohibit entering into new swaps with such ineligible counterparties. This compliance guidance does not apply to any aspect of the ECP definition that was: (1) Not amended by the Dodd-Frank Act; (2) covered by a regulation promulgated in the Final ECP Definition Release; or (3) the subject of an interpretation or other guidance set forth in the Final ECP Definition Release.

The Paperwork Reduction Act (“PRA”) 45 imposes certain requirements on Federal agencies (including the Commission) in connection with conducting or sponsoring any collection of information as defined by the PRA. These amendments to the July 14 Order will not require a new collection of information from any persons or entities that will be subject to the final order.

Section 15(a) of the CEA 46 requires the Commission to consider the costs and benefits of its action before issuing an order under the CEA. CEA section 15(a) further specifies that costs and benefits shall be evaluated in light of five broad areas of market and public concern: (1) Protection of market participants and the public; (2) efficiency, competitiveness, and financial integrity of futures markets; (3) price discovery; (4) sound risk management practices; and (5) other public interest considerations. The Commission considers the costs and benefits resulting from its discretionary determinations with respect to the section 15(a) factors.

The Commission requested comments on the consideration of costs and benefits of the proposed amendments discussed in the Notice. One commenter, the American Bankers Association, stated that the Commission's consideration of costs and benefits in the July 14 Order did not take into account the costs that would result if CEA section 2(e) were made effective in the absence of further interpretive or regulatory guidance from the Commission. 47 American Bankers Association states that these costs include the chilling effect on legitimate hedging activity and reduced credit availability, particularly for end users. American Bankers Association further stated that this chilling effect would be compounded by another major concern of its member banks—whether swaps could potentially be subject to challenges for invalidity under state laws. According to the American Bankers Association, a significant benefit of providing temporary relief under section 2(e) in the manner suggested would be the legal certainty this would create under state law for swaps that currently qualify for the line of business provision, and the provision of such temporary relief would be consistent with the Commission's goal of striving to “ensure that current practices will not be unduly disrupted during the transition to the new regulatory regime,” and allow additional time for its member banks to find solutions to their CEA section 2(e) concerns. 48

As stated above, the rules further defining the term “ECP” were finalized by the Commissions on April 18, 2012. In those rules, the Commissions considered the costs and benefits of the further definitions and guidance regarding the same, including the costs and benefits of legal certainty. Further, the American Bankers Association comment regarding the costs and benefits of the amendments to CEA section 2(e) made by the Dodd-Frank Act are beyond the scope of this final order, which is limited to amending the temporary exemptive relief first granted by the Commission in the July 14 Order.

Regarding benefits, this final order continues the primary benefit described in the July 14 Order, which is to facilitate an orderly transition to the comprehensive regulatory framework for swaps regulation set out in Title VII of the Dodd-Frank Act. More specifically, this final order temporarily extends the time market participants and the public have to comply with certain provisions of the CEA that reference one or more of the terms to be further defined, and provides guidance with respect to the same in response to various comments. Accordingly, as this final order is an amendment to the July 14 Order, the Commission's consideration of costs and benefits, as set forth in the July 14 Order, may be incorporated here by reference.

The Second Amended July 14 Order shall read as follows:

The Commission, to provide for the orderly implementation of the requirements of Title VII of the Dodd-Frank Act, pursuant to sections 4(c) and 4c(b) of the CEA and section 712(f) of the Dodd-Frank Act, hereby issues this Order consistent with the determinations set forth above, which are incorporated in this final Order, as amended, by reference, and:

(1) Exempts, subject to the conditions set forth in paragraph (4), all agreements, contracts, and transactions, and any person or entity offering, entering into, or rendering advice or rendering other services with respect to, any such agreement, contract, or transaction, from the provisions of the CEA, as added or amended by the Dodd-Frank Act, that reference one or more of the terms regarding instruments subject to further definition under sections 712(d) and 721(c) of the Dodd-Frank Act, which provisions are listed in Category 2 of the Appendix to this Order; provided, however, that the foregoing exemption:

a. Applies only with respect to those requirements or portions of such provisions that specifically relate to such referenced terms; and

b. With respect to any such provision of the CEA, shall expire upon the earlier of: (i) the effective date of the applicable final rule further defining the relevant term referenced in the provision; or (ii) December 31, 2012.

(2) Agricultural Commodity Swaps. Exempts, subject to the conditions set forth in paragraph (4), all agreements, contracts, and transactions in an agricultural commodity, and any person or entity offering, entering into, or rendering advice or rendering other services with respect to, any such agreement, contract, or transaction, from the provisions of the CEA, if the agreement, contract, or transaction complies with part 35 of the Commission's regulations as in effect prior to December 31, 2011, including any agreement, contract, or transaction that complies with such provisions then in effect notwithstanding that:

a. The agreement, contract, or transaction may be part of a fungible class of agreements that are standardized as to their material economic terms; and/or

b. The creditworthiness of any party having an actual or potential obligation under the agreement, contract, or transaction would not be a material consideration in entering into or determining the terms of the agreement, contract, or transaction i.e., the agreement, contract, or transaction may be cleared.

This exemption shall expire upon the earlier of (i) December 31, 2012; or (ii) such other compliance date as may be determined by the Commission.

(3) Exempt and Excluded Commodity Swaps. Exempts, subject to the conditions set forth in paragraph (4), all agreements, contracts, and transactions, and any person or entity offering, entering into, or rendering advice or rendering other services with respect to, any such agreement, contract, or transaction, from the provisions of the CEA, if the agreement, contract, or transaction complies with part 35 of the Commission's regulations as in effect prior to December 31, 2011, including any agreement, contract, or transaction in an exempt or excluded (but not agricultural) commodity that complies with such provisions then in effect notwithstanding that:

a. The agreement, contract, or transaction may be executed on a multilateral transaction execution facility;

b. The agreement, contract, or transaction may be cleared;

c. Persons offering or entering into the agreement, contract or transaction may not be eligible swap participants, provided that all parties are eligible contract participants as defined in the CEA prior to the date of enactment of the Dodd-Frank Act;

d. The agreement, contract, or transaction may be part of a fungible class of agreements that are standardized as to their material economic terms; and/or

e. No more than one of the parties to the agreement, contract, or transaction is entering into the agreement, contract, or transaction in conjunction with its line of business, but is neither an eligible contract participant nor an eligible swap participant, and the agreement, contract, or transaction was not and is not marketed to the public;

Provided, however, that:

a. Such agreements, contracts, and transactions in exempt or excluded commodities (and persons offering, entering into, or rendering advice or rendering other services with respect to, any such agreement, contract, or transaction) fall within the scope of any of the CEA sections 2(d), 2(e), 2(g), 2(h), and 5d provisions or the line of business provision as in effect prior to July 16, 2011; and

b. This exemption shall expire upon the earlier of: (i) December 31, 2012; or (ii) such other compliance date as may be determined by the Commission; except that, for agreements, contracts, and transactions executed on an exempt commercial market (“ECM”), exempt board of trade (“EBOT”), or pursuant to CEA section 2(d)(2) as in effect prior to July 16, 2011 (“2(d)(2) Market”), this exemption shall expire upon the earlier of (i) December 31, 2012; or (ii) the effective date of the designated contract market (“DCM”) or swap execution facility (“SEF”) final rules, whichever is later, unless the ECM, EBOT, or 2(d)(2) Market files a DCM or SEF registration application on or before the effective date of the DCM or SEF final rules, whichever is later, in which case the relief shall remain in place during the pendency of the application. For these purposes, an application will be considered no longer pending when the application has been approved, provisionally approved, withdrawn, or denied.

(4) Provided that the foregoing exemptions in paragraphs (1), (2), and (3) above shall not:

a. Limit in any way the Commission's authority with respect to any person, entity, or transaction pursuant to CEA sections 2(a)(1)(B), 4b, 4o, 6(c), 6(d), 6c, 8(a), 9(a)(2), or 13, or the regulations of the Commission promulgated pursuant to such authorities, including regulations pursuant to CEA section 4c(b) proscribing fraud;

b. Apply to any provision of the Dodd-Frank Act or the CEA that became effective prior to July 16, 2011;

c. Affect any effective or compliance date set forth in any rulemaking issued by the Commission to implement provisions of the Dodd-Frank Act;

d. Limit in any way the Commission's authority under section 712(f) of the Dodd-Frank Act to issue rules, orders, or exemptions prior to the effective date of any provision of the Dodd-Frank Act and the CEA, in order to prepare for the effective date of such provision, provided that such rule, order, or exemption shall not become effective prior to the effective date of the provision; and

e. Affect the applicability of any provision of the CEA to futures contracts or options on futures contracts, or to cash markets.

Background

Pursuant to the provisions of the 1970 UNESCO Convention, codified into U.S. law as the Convention on Cultural Property Implementation Act (hereafter, the Cultural Property Implementation Act or the Act) (Pub. L. 97-446, 19 U.S.C. 2601 et seq. ), signatory nations (State Parties) may enter into bilateral or multilateral agreements to impose import restrictions on eligible archaeological and ethnological materials under procedures and requirements prescribed by the Act. Under the Act and applicable CBP regulations (19 CFR 12.104g), the restrictions are effective for no more than five years beginning on the date on which the agreement enters into force with respect to the United States (19 U.S.C. 2602(b)). This period may be extended for additional periods, each such period not to exceed five years, where it is determined that the factors justifying the initial agreement still pertain and no cause for suspension of the agreement exists (19 U.S.C. 2602(e); 19 CFR 12.104g(a)).

In certain limited circumstances, the Cultural Property Implementation Act authorizes the imposition of restrictions on an emergency basis upon the request of a State Party (19 U.S.C. 2603(c)(1)). Under the Act and applicable CBP regulations (19 CFR 12.104g(b)), emergency restrictions are effective for no more than five years from the date of the State Party's request and may be extended for three years where it is determined that the emergency condition continues to apply with respect to the covered materials (19 U.S.C. 2603(c)(3)).

On April 12, 1999, under the authority of the Cultural Property Implementation Act, the former U.S. Customs Service published Treasury Decision (T.D.) 99-35 in the Federal Register (64 FR 17529) imposing emergency import restrictions on certain Byzantine ecclesiastical and ritual ethnological materials from Cyprus and accordingly amending 19 CFR 12.104g(b) pertaining to emergency import restrictions. These restrictions were effective for a period of 5 years from September 4, 1998, the date the Republic of Cyprus made the request for emergency protection. On August 29, 2003, these restrictions were extended, by publication of CBP Dec. 03-25 in the Federal Register (68 FR 51903), for an additional 3-year period, to September 4, 2006.

In a separate action, on July 16, 2002, the United States entered into a bilateral Agreement with the Republic of Cyprus concerning the imposition of import restrictions on certain archaeological materials of Cyprus representing the Pre-Classical and Classical periods of its cultural heritage (the 2002 Agreement). 1 On July 19, 2002, the former United States Customs Service published T.D. 02-37 in the Federal Register (67 FR 47447), which amended 19 CFR 12.104g(a) to reflect the imposition of these restrictions and included a list designating the types of archaeological materials covered by the restrictions. These restrictions were to be effective through July 16, 2007.

On August 17, 2006, the Republic of Cyprus and the United States amended the 2002 Agreement (covering the Pre-Classical and Classical archaeological materials) to include the list of Byzantine ecclesiastical and ritual ethnological materials that had been (and, at that time, were still) protected pursuant to the emergency action described above. The amendment of the 2002 Agreement to cover both the subject archaeological materials and the subject ethnological materials was reflected in CBP Dec. 06-22, which was published in the Federal Register (71 FR 51724) on August 31, 2006. CBP Dec. 06-22 contains the list of Byzantine ecclesiastical and ritual ethnological materials from Cyprus previously protected pursuant to emergency action and announced that import restrictions, as of August 31, 2006, were imposed on this cultural property pursuant to the amended Agreement (19 U.S.C. 2603(c)(4)). Thus, as of that date, the restrictions covering both the archaeological materials and the ethnological materials described in CBP Dec. 06-22 were set to be effective through July 16, 2007. (The amended Agreement was subsequently extended by the Parties, effective on July 16, 2007.)

On July 13, 2007, CBP published CBP Dec. 07-52 in the Federal Register (72 FR 38470) which further extended the import restrictions to July 16, 2012. The Designated List was published with the Decision.

On October 18, 2011, the Department of State received a request by the Republic of Cyprus to extend the amended Agreement and to extend the historical timeframe to protect ecclesiastical and ritual ethnological materials of the Post-Byzantine period, c. 1500 A.D. to 1850 A.D. On June 15, 2012, after the Department of State proposed to so extend the amended Agreement and reviewed the findings and recommendations of the Cultural Property Advisory Committee, the Assistant Secretary for Educational and Cultural Affairs, State Department, determined that the cultural heritage of Cyprus continues to be in jeopardy from pillage of certain archaeological objects and certain ethnological materials and made the necessary determination to extend the import restrictions for an additional five-year period to July 16, 2017. Diplomatic notes have been exchanged reflecting the extension of the restrictions, as described in this document and as applicable to the revised Designated List set forth in this document, for a five-year period.

Thus, CBP is amending 19 CFR 12.104g(a) accordingly. Importation of such materials from Cyprus will be restricted through that date unless the conditions set forth in 19 U.S.C. 2606 and 19 CFR 12.104c are met.

In this document, the Designated List of articles that was published in CBP Dec. 07-52 is also amended to extend the historical timeframe of the restricted ecclesiastical and ritual ethnological materials to include the Post-Byzantine period, c. 1500 A.D. to 1850 A.D. In addition, the section of the Designated List pertaining to the covered ethnological materials has been revised to clarify coverage of certain mosaics of stone and wall hangings (specifically, to include images of Saints among images of Christ, Archangels, and the Apostles). The articles described in the Designated List set forth below are protected pursuant to the amended Agreement. It is noted that there are no revisions to the section of the Designated List pertaining to covered archaeological objects. It is reprinted as a convenience.

The Designated List of Pre-Classical and Classical Period Archaeological Objects and Ecclesiastical and Ritual Ethnological Materials, and accompanying image database, may also be found at the following Internet Web site address: http://exchanges.state.gov/heritage/culprop/pefact/html, under “III. Categories of Objects Subject to Import Restriction,” by clicking on “ Designated List ” and on “ Cyprus Section of the Image Database. ”

1. Neolithic and Chalcolithic (c. 7500-2300 B.C.)—Bowls and jars, including spouted vessels. Varieties include Combed ware, Black Lustrous ware, Red Lustrous ware, and Red-on-White painted ware. Approximately 10-24 cm in height.

2. Early Bronze Age (c. 2300-1850 B.C.)—Forms are hand-made and include bowls, jugs, juglets, jars, and specialized forms, such as askoi, pyxides, gourd-shape, multiple-body vessels, and vessels with figurines attached. Cut-away spouts, multiple spouts, basket handles, and round bases commonly occur. Incised, punctured, molded, and applied ornament, as well as polishing and slip, are included in the range of decorative techniques. Approximately 13-60 cm in height.

3. Middle Bronze Age (c. 1850-1550 B.C.)—Forms are hand-made and include bowls, jugs, juglets, jars, zoomorphic askoi, bottles, amphorae, and amphoriskoi. Some have multiple spouts and basket or ribbon handles. Decorative techniques include red and brown paint, incised or applied decoration, and polishing. Varieties include Red Polished ware, White Painted ware, Black Slip ware, Red Slip ware, and Red-on-Black ware. Approximately 4-25 cm in height.

4. Late Bronze Age (c. 1550-1050 B.C.)—Forms include bowls, jars, jugs and juglets, tankards, rhyta, bottles, kraters, alabastra, stemmed cups, cups, stirrup jars, amphorae, and amphoriskoi. A wide variety of spouts, handles, and bases are common. Zoomorphic vessels also occur. Decorative techniques include painted design in red or brown, polishing, and punctured or incised decoration. Varieties include White Slip, Base Ring ware, White Shaved ware, Red Lustrous ware, Bichrome Wheel-made ware, and Proto-White Painted ware. Some examples of local or imported Mycenaean Late Helladic III have also been found. Approximately 5-50 cm in height.

5. Cypro-Geometric I-III (c. 1050-750 B.C.)—Forms include bowls, jugs, juglets, jars, cups, skyphoi, amphorae, amphoriskos, and tripods. A variety of spouts, handles and base forms are used. Decorative techniques include paint in dark brown and red, ribbing, polish, and applied projections. Varieties include White Painted I-II wares, Black Slip I-II wares, Bichrome II-III wares, and Black-on-Red ware. Approximately 7-30 cm in height.

6. Cypro-Archaic I-II (c. 750-475 B.C.)—Forms include bowls, plates, jugs and juglets, cups, kraters, amphoriskoi, oinochoai, and amphorae. Many of the forms are painted with bands, lines, concentric circles, and other geometric and floral patterns. Animal designs occur in the Free Field style. Molded decoration in the form of female figurines may also be applied. Red and dark brown paint is used on Bichrome ware. Black paint on a red polished surface is common on Black-on-Red ware. Other varieties include Bichrome Red, Polychromem Red, and Plain White. Approximately 12-45 cm in height.

7. Cypro-Classical I-II (c. 475-325 B.C.)—Forms include bowls, shallow dishes, jugs and juglets, oinochoai, and amphorae. The use of painted decoration in red and brown, as well as blue/green and black continues. Some vessels have molded female figurines applied. Decorative designs include floral and geometric patterns. Burnishing also occurs. Varieties include Polychrome Red, Black-on-Red, Polychrome Red, Stroke Burnished, and White Painted wares. Approximately 6-40 cm in height.

8. Hellenistic (c. 325 B.C.-50 B.C.)—Forms include bowls, dishes, cups, unguentaria, jugs and juglets, pyxides, and amphorae. Most of the ceramic vessels of the period are undecorated. Those that are decorated use red, brown, or white paint in simple geometric patterns. Ribbing is also a common decorative technique. Some floral patterns are also used. Varieties include Glazed Painted ware and Glazed ware. Imports include Megarian bowls. Approximately 5-25 cm in height.

9. Roman (c. 50 B.C.-330 A.D.)—Forms include bowls, dishes, cups, jugs and juglets, unguentaria, amphorae, and cooking pots. Decorativetechniques include incision, embossing, molded decoration, grooved decoration, and paint. Varieties include Terra Sigillata and Glazed and Green Glazed wares. Approximately 5-55 cm in height.

(a) Neolithic to Late Bronze Age (c. 7500-1050 B.C.)—Figurines are small, hand-made, and schematic in form. Most represent female figures, often standing and sometimes seated and giving birth or cradling an infant. Features and attributes are marked with incisions or paint. Figurines occur in Red-on-White ware, Red Polished ware, Red-Drab Polished ware, and Base Ring ware. Approximately 10-25 cm in height.

(b) Cypro-Geometric to Cypro-Archaic (c. 1050-475 B.C.)—Figurines show a greater diversity of form than earlier figurines. Female figurines are still common, but forms also include male horse-and-rider figurines; warrior figures; animals such as birds, bulls and pigs; tubular figurines; boat models; and human masks. In the Cypro-Archaic period, terra cotta models illustrate a variety of daily activities, including the process of making pottery and grinding grain. Other examples include musicians and men in chariots. Approximately 7-19 cm in height.

(c) Cypro-Classical to Roman (c. 475 B.C.-330 A.D.)—Figurines mirror the classical tradition of Greece and Roman. Types include draped women, nude youths, and winged figures. Approximately 9-20 cm in height.

2. Large Scale Terracotta Figurines—Dating to the Cypro-Archaic period (c. 750-475 B.C.), full figures about half life-size, are commonly found in sanctuaries. Illustrated examples include the head of a woman decorated with rosettes and a bearded male with spiral-decorated helmet. Approximately 50-150 cm in height.

3. Funerary Statuettes—Dating to the Cypro-Classical period (c. 475-325 B.C.), these illustrate both male and female figures draped, often seated, as expressions of mourning. Approximately 25-50 cm in height.

Writing on clay is restricted to the Late Bronze Age (c. 1550-1050 B.C.). These occur on clay tablets, weights, and clay balls. Approximately 2-7 cm in height.

Ground stone vessels occur from the Neolithic to the Hellenistic period (c. 7500-50 B.C.). Early vessels are from local hard stone. Most are bowl-shaped; some are trough-shaped with spouts and handles. Neolithic vessels often have incised or perforated decoration. Late Bronze Age vessels include amphoriskoi and kraters with handles. Sometimes these have incised decoration. Alabaster was also used for stone vessels in the Late Bronze Age and Hellenistic period. In the latter period, stone vessels are produced in the same shapes as ceramic vessels: amphorae, unguentaria, etc. Approximately 10-30 cm in height.

1. Neolithic to Chalcolithic (c. 7500-2300 B.C.)—Forms include small scale human heads, fiddle-shaped human figures, steatopygous female figures, cruciform idols with incised decoration, and animal figures. Andesite and limestone are commonly used in these periods. Approximately 5-30 cm in height.

2. Cypro-Classical (c. 475-325 B.C.)—Small scale to life-size human figures, whole and fragments, in limestone and marble, are similar to the Classical tradition in local styles. Examples include the limestone head of a youth in Neo-Cypriote style, votive female figures in Proto-Cypriot style, a kouros in Archaic Greek style, statues and statuettes representing Classical gods such as Zeus and Aphrodite, as well as portrait heads of the Greek and Roman periods. Approximately 10-200 cm in height.

Sculpted stone building elements occur from the 5th century B.C. through the 3rd century A.D. These include columns and column capitals, relief decoration, chancel panels, window frames, revetments, offering tables, coats of arms, and gargoyles.

Dating from the Neolithic (7500 B.C.) through 3rd century A.D., conical seals, scarabs, cylinder seals, and bread stamps are incised with geometric decoration, pictoral scenes, and inscriptions. Approximately 2-12 cm in height.

Dating to the Chalcolithic period, these pendants are made of picrolite and are oval or rectangular in form. Approximately 4-5 cm in length.

Inscribed stone materials date from the 6th century B.C. through the 3rd century A.D. During the Cypro-Classical period, funerary stelae, and votive plaques were inscribed. From the 1st to the 3rd century A.D. funerary plaques, mosaic floors, and building plaques were inscribed.

Funerary stelae date from the 6th century B.C. to the end of the Hellenistic period (c. 50 B.C.). Marble and other stone sculptural monuments have relief decoration of animals or human figures seated or standing. Stone coffins also have relief decoration. Approximately 50-155 cm in height.

Floor mosaics date as early as the 4th century B.C. in domestic and public contexts and continue to be produced through the 3rd century A.D. Examples include the mosaics at Nea Paphos, Kourion, and Kouklia.

1. Vessels—Dating from the Bronze Age (c. 2300 B.C.) through the 3rd century A.D., bronze vessel forms include bowls, cups, amphorae, jugs, juglets, pyxides, dippers, lamp stands, dishes, and plates. Approximately 4-30 cm in height.

2. Bronze Stands—Dating from the Late Bronze Age (c. 1550 B.C.) through the end of the Classical period (c. 325 B.C.), are bronze stands with animal decoration.

3. Sculpture—Dating from the Late Bronze Age (c. 1550) to the end of the Hellenistic period (c. 50 B.C.), small figural sculpture includes human forms with attached attributes such as spears or goblets, animal figures, animal- and vessel-shaped weights, and Classical representations of gods and mythological figures. Approximately 5-25 cm in height.

4. Personal Objects—Dating from the Early Bronze Age (c. 2300 B.C.) to the end of the Roman period (330 A.D.), forms include toggle pins, straight pins, fibulae, and mirrors.

1. Vessels—Dating from the Bronze Age (c. 2300 B.C.) through the end of the Roman period (330 A.D.), forms include bowls, dishes, coffee services, and ceremonial objects such as incense burners. These are often decorated with molded or incised geometric motifs or figural scenes.

2. Jewelry—Dating from the Cypro-Geometric period (c. 1050 B.C.) through the end of the Roman period (330 A.D.), forms include fibulae, rings, bracelets, and spoons.

Gold jewelry has been found on Cyprus from the Early Bronze Age (c. 2300 B.C.) through the end of the Roman period (330 A.D.). Items include hair ornaments, bands, frontlets, pectorals, earrings, necklaces, rings, pendants, plaques, beads, and bracelets.

Coins of Cypriot types made of gold, silver, and bronze including but not limited to:

1. Issues of the ancient kingdoms of Amathus, Kition, Kourion, Idalion, Lapethos, Marion, Paphos, Soli, and Salamis dating from the end of the 6th century B.C. to 332 B.C.

2. Issues of the Hellenistic period, such as those of Paphos, Salamis, and Kition from 332 B.C. to c. 30 B.C.

3. Provincial and local issues of the Roman period from c. 30 B.C. to 235 A.D. Often these have a bust or head on one side and the image of a temple (the Temple of Aphrodite at Palaipaphos) or statue (statue of Zeus Salaminios) on the other.

Ceremonial objects include crosses, censers (incense burners), rings, and buckles for ecclesiastical garments. The objects may be decorated with engraved or modeled designs or Greek inscriptions. Crosses, rings and buckles are often set with semi-precious stones.

Lead objects date to the Byzantine period and include ampulla (small bottle-shaped forms) used in religious observance.

Ceremonial vessels and objects used in ritual and as components of church treasure. Ceremonial objects include censers (incense burners), book covers, liturgical crosses, archbishop's crowns, buckles, and chests. These are often decorated with molded or incised geometric motifs or scenes from the Bible, and encrusted with semi-precious or precious stones. The gems themselves may be engraved with religious figures or inscriptions. Church treasure may include all of the above, as well as rings, earrings, and necklaces (some decorated with ecclesiastical themes) and other implements (e.g., spoons).

Artifacts made of wood are primarily those intended for ritual or ecclesiastical use during the Byzantine period. These include painted icons, painted wood screens (iconostases), carved doors, crosses, painted wooded beams from churches or monasteries, thrones, chests and musical instruments. Religious figures (Christ, the Apostles, the Virgin, and others) predominate in the painted and carved figural decoration. Ecclesiastical furniture and architectural elements may also be decorated with geometric or floral designs.

Ecclesiastical and ritual objects of ivory and bone boxes, plaques, pendants, candelabra, stamp rings, crosses. Carved and engraved decoration includes religious figures, scenes from the Bible, and floral and geometric designs.

Ecclesiastical objects such as lamps and ritual vessels.

Ecclesiastical garments and other ritual textiles from the Byzantine period. Robes, vestments and altar clothes are often of a fine fabric and richly embroidered in silver and gold. Embroidered designs include religious motifs and floral and geometric designs.

Dating to the Byzantine period, wall mosaics are found in ecclesiastical buildings. These generally portray images of Christ, Archangels, the Apostles, and Saints in scenes of Biblical events. Surrounding panels may contain animal, floral, or geometric designs.

Floor mosaics from ecclesiastical contexts. Examples include the mosaics at Nea Paphos, Kourion, Kouklia, Chrysopolitissa Basilica and Campanopetra Basilica. Floor mosaics may have animal, floral, geometric designs, or inscriptions.

Wall paintings from the Byzantine period religious structures (churches, monasteries, chapels, etc.) Like the mosaics, wall paintings generally portray images of Christ, Archangels, the Apostles, and Saints in scenes of Biblical events. Surrounding paintings may contain animal, floral, or geometric designs.

This amendment involves a foreign affairs function of the United States and is, therefore, being made without notice or public procedure (5 U.S.C. 553(a)(1)). For the same reasons, a delayed effective date is not required.

Because no notice of proposed rulemaking is required, the provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) do not apply.

Because this rule involves a foreign affairs function of the United States, it is not subject to Executive Order 12866.

This regulation is being issued in accordance with 19 CFR 0.1(a)(1).

For the reasons set forth above, part 12 of Title 19 of the Code of Federal Regulations (19 CFR part 12), is amended as set forth below:

PBGC's regulation on Benefits Payable in Terminated Single-Employer Plans (29 CFR part 4022) prescribes actuarial assumptions—including interest assumptions—for paying plan benefits under terminating single-employer plans covered by title IV of the Employee Retirement Income Security Act of 1974. The interest assumptions in the regulation are also published on PBGC's Web site ( http://www.pbgc.gov ).

PBGC uses the interest assumptions in Appendix B to Part 4022 to determine whether a benefit is payable as a lump sum and to determine the amount to pay. Appendix C to Part 4022 contains interest assumptions for private-sector pension practitioners to refer to if they wish to use lump-sum interest rates determined using PBGC's historical methodology. Currently, the rates in Appendices B and C of the benefit payment regulation are the same.

The interest assumptions are intended to reflect current conditions in the financial and annuity markets. Assumptions under the benefit payments regulation are updated monthly. This final rule updates the benefit payments interest assumptions for August 2012. 1

The August 2012 interest assumptions under the benefit payments regulation will be 1.00 percent for the period during which a benefit is in pay status and 4.00 percent during any years preceding the benefit's placement in pay status. In comparison with the interest assumptions in effect for July 2012, these interest assumptions are unchanged.

PBGC has determined that notice and public comment on this amendment are impracticable and contrary to the public interest. This finding is based on the need to determine and issue new interest assumptions promptly so that the assumptions can reflect current market conditions as accurately as possible.

Because of the need to provide immediate guidance for the payment of benefits under plans with valuation dates during August 2012, PBGC finds that good cause exists for making the assumptions set forth in this amendment effective less than 30 days after publication.

PBGC has determined that this action is not a “significant regulatory action” under the criteria set forth in Executive Order 12866.

Because no general notice of proposed rulemaking is required for this amendment, the Regulatory Flexibility Act of 1980 does not apply. See 5 U.S.C. 601(2).

In consideration of the foregoing, 29 CFR part 4022 is amended as follows:

The Newburgh Beacon Swim is an annual recurring event that has a permanent safety zone found at 33 CFR 165.160. The effective date for the permanent safety zone is the last weekend in July with a rain date as the first weekend in August each year.

The Coast Guard is issuing this final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because delaying this event would be contrary to the public interest.

The Newburgh Beacon Swim event will occur this year on July 21, 2012. On May 24, 2012, the sponsor of the event advised the Coast Guard that due to optimal tide, current, and weather conditions needed to promote the safety of the swim participants, they were changing the date of the event from the last weekend in July (with a rain date as the first weekend in August) to July 21, 2012, thereby rendering the permanent safety zone set forth in 33 CFR 165.160 inapplicable for this year's event.

Any delay in the effective date of this rule would be contrary to the public interest because immediate action is needed to provide for the safety of life on the navigable waters from the hazards of swimming in the Hudson River, particularly in the vicinity of the shipping channel. The safety zone is necessary to provide for the safety of event participants, spectator crafts, and other vessels operating near the event area. For the safety concerns noted, it is in the public interest to have this regulation in effect during this event. In addition, any change to the date of the event could potentially cause economic hardship on the marine event sponsor and negatively impact other activities being held in conjunction with these events ( e.g., the “Hudson River Day Celebration”) by potentially causing numerous event participant cancellations.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds for the reasons stated above that good cause exists for making this rule effective less than 30 days after publication in the Federal Register .

The legal basis for this rule is 33 U.S.C. 1231; 46 U.S.C Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Public Law 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.

The Coast Guard received an application to hold the annual Newburgh Beacon Swim on the waters of the Hudson River in the vicinity of Newburgh, NY. With this application, the event sponsor requested that the event be permitted to take place on Saturday, July 21, 2012 rather than the usual last weekend in July. The deviation from the permanent regulation was requested to avoid unsafe tide and current conditions expected to occur during the last weekend in July and to have the event in conjunction with the “Hudson River Day Celebration.”

The Coast Guard is establishing a temporary safety zone on the waters of the Hudson River in the vicinity of Newburgh, NY for the annual Newburgh Beacon Swim event. This temporary rule will restrict vessels from a portion of the Hudson River during the swim event on Saturday, July 21, 2012.

We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders.

We expect the economic impact of this rule to be very minimal. Although this regulation may have some impact on the public, the potential impact will be minimized for the following reasons. Vessels will only be restricted from the safety zone for a short duration of time. Before activating the zone, we will notify mariners by appropriate means including but not limited to Local Notice to Mariners and Broadcast Notice to Mariners. Additionally, the Coast Guard promulgated a permanent safety zone found in 33 CFR Part 165 for the event area in the past and no adverse comments or notice of any negative impact caused by the safety zone were received.

The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

(1) This rule would affect the following entities, some of which might be small entities: The owners or operators of vessels intending to transit or anchor in a portion of the Hudson River during the effective period.

(2) This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons. This safety zone will be enforced for only 2 hours. Vessel traffic can pass safely through the safety zone with permission from the COTP or a designated representative. Before activating the zone, we will notify mariners by appropriate means including but not limited to Local Notice to Mariners and Broadcast Notice to Mariners.

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

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

This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and determined that this rule does not have implications for federalism.

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves the establishment of a temporary safety zone. This rule is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES . We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

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

This rulemaking amends 38 CFR part 0 to establish VA regulations regarding VA's core values for its employees and the desired characteristics for the organization. These regulations set into place internal guidelines to which VA expects its employees to adhere in their interactions with each other and with veterans, their families, and their caretakers. The Core Values and Characteristics are the product of a 2-year collaborative and comprehensive development process, which was motivated by a desire to unite the entire VA workforce under one set of guiding principles. VA recognizes that every single worker plays a critical role in supporting the overall strategic vision and mission of the agency and also contributes to its professional reputation as an organization. Beginning in 2009, participating representatives from the many different VA organizations provided considerable input into the creation of the Core Values and Characteristics. VA also considered input from its workforce through surveys, feedback, and discussion. Based on these activities, and the recommendations of the different panels and groups, the Secretary of Veterans Affairs approved the guidelines, and on June 20, 2011, he announced them to the entire agency.

The Core Values define VA employees and describe how VA may be distinguished from other organizations. They define VA's culture and underscore its commitment to veterans. These Core Values are: Integrity, Commitment, Advocacy, Respect, and Excellence. The Values represent VA's beliefs and provide a baseline for the standards of behavior expected of all VA employees. Together, the first letters of the Core Values spell “I CARE,” a motto which should be adopted by every member of the VA workforce.

The Core Characteristics define what VA stands for and how it would like to be recognized as an organization. They help guide the execution of VA's mission, shape its strategy, and influence resource allocation and other key decisions made within VA. These Characteristics are: Trustworthy, Accessible, Quality, Innovative, Agile, and Integrated. They are a common set of principles around which VA's actions are organized and describe the traits all VA organizations should possess and demonstrate. The VA Characteristics are relevant today, but also forward-looking. They identify the qualities needed to successfully accomplish VA's current missions and also support the ongoing transformation to a 21st Century organization.

The adoption of these Core Values and Characteristics will not only reaffirm practices already used by many VA employees, but it will also establish one set of guidelines applicable across the entire VA workforce. They are not entirely new concepts, and they are in large part derived from many values VA has demonstrated throughout its existence. Codifying these principles will ensure they receive the proper emphasis at all levels within VA, are clearly understood by the workforce, and, most importantly, become an enduring part of the VA culture. The “I CARE” logo will be prominently displayed in all VA facilities, as the agency wishes to use these principles to send a strong signal to veterans, family members, and other beneficiaries that the agency takes pride in what it does and cares deeply about its mission. The Core Values and Characteristics demonstrate that VA is a “people-centric” organization.

In order to maintain these Core Values and Characteristics over time, VA may periodically review whether the guidelines are achieving their intended purpose and remain relevant in the current environment. VA is open to revising the Core Values and Characteristics to adapt them to changing times, as necessary. They are not linked to any particular person or group, so although people come and go within VA all the time, the Core Values and Characteristics are meant to endure. There are no immediate plans to change existing formal processes for evaluating employees based on the Core Values and Characteristics. However, in Fiscal Year 2012, VA will be implementing a formalized program to recognize the VA personnel and organizations which best exemplify the Core Values and Characteristics.

The current title of part 0, “Standards of ethical conduct and related responsibilities,” is being broadened to include the concept of “values” in the title. That addition reflects the inclusion of VA's Core Values and Characteristics as principles that are separate and distinct from the standards of ethical conduct for federal employees.

This document contains no provisions constituting a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521).

The Secretary hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. This final rule does not affect any small entities. Therefore, pursuant to 5 U.S.C. 605(b), this final rule is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.

Executive Order 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 12866 (Regulatory Planning and Review) defines a “significant regulatory action,” requiring review by the Office of Management and Budget (OMB) unless OMB waives such review, as “any regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order.”

The economic, interagency, budgetary, legal, and policy implications of this final rule have been examined and it has been determined not to be a significant regulatory action under Executive Order 12866.

The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any given year. This final rule will have no such effect on State, local, and tribal governments, or on the private sector.

This final rule establishes internal guidelines relating to agency practice or procedure and sets forth general statements of agency policy. Accordingly, this rule is exempt from the prior notice-and-comment and delayed-effective-date requirements of 5 U.S.C. 553. See 5 U.S.C. 553(b)(A) and (d)(2).

There are no Catalog of Federal Domestic Assistance program numbers for this rule.

The Secretary of Veterans Affairs, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. John R. Gingrich, Chief of Staff, Department of Veterans Affairs, approved this document on July 5, 2012, for publication.

For the reasons set out in the preamble, 38 CFR part 0 is amended as follows:

Throughout this document, whenever “we,” “us,” or “our” is used, we mean EPA. On March 29, 2012 (77 FR 18987), EPA published a notice of proposed rulemaking (NPR) for the Commonwealth of Pennsylvania. The NPR proposed approval of a SIP revision pertaining to Pennsylvania's nonattainment New Source Review (NSR) program which incorporates preconstruction permitting regulations for fine particulate matter (PM 2.5 ) into the Pennsylvania SIP. The formal SIP revision was submitted by Pennsylvania on September 23, 2011.

The purpose of this SIP is to incorporate the nonattainment preconstruction permitting requirements for PM 2.5 that are set forth in the federal rules, “Implementation of the New Source Review (NSR) Program for Particulate Matter Less than 2.5 Micrometers (PM 2.5 )” (NSR PM 2.5 Rule), which was published on May 16, 2008 (73 FR 28321).

The SIP revision submitted by Pennsylvania consists of amendments to the general provisions of 25 Pa. Code Chapter 121 and major nonattainment NSR permitting regulations of 25 Pa. Code Chapter 127. The amendments establish the major source thresholds, significant emission rates and offset ratios for PM 2.5 and its precursors. They also establish nitrogen oxides (NO X ) and sulfur dioxide (SO 2 ) as precursors to PM 2.5 , and establish procedures for interpollutant trading for offsets, pursuant to the NSR PM 2.5 Rule. Clarifying amendments for Chapter 127 and minor editorial changes also are made. The amendments submitted by Pennsylvania for approval into the SIP became effective on September 3, 2011.

Other specific requirements of the regulations and the rationale for EPA's proposed action are explained in the NPR and will not be restated here. One public comment was received on the NPR. The comment did not directly relate to the SIP revision so no response to the comment is necessary.

EPA is approving the September 23, 2011 SIP revision to incorporate federal preconstruction permitting requirements for PM 2.5 and its precursors in nonattainment areas along with clarifying amendments, at 25 Pa. Code Section 121.1 and 25 Pa. Code Chapter 127, subchapter E, as a revision to the Pennsylvania SIP.

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

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 11, 2012. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed and shall not postpone the effectiveness of such rule or action. This action pertaining to NSR requirements for PM 2.5 may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR part 52 is amended as follows:

I. Background

Throughout this document, whenever “we,” “us,” or “our” is used, we mean EPA. On May 14, 2012 (77 FR 28338), EPA published a notice of proposed rulemaking (NPR) for the State of Maryland. The formal SIP revision (MDE SIP Number 11-08) was submitted by the Maryland Department of the Environment on October 17, 2011. EPA proposed to approve the Maryland SIP revision for the requirements of RACT for NO X and VOCs set forth in the CAA with respect to the 1997 8-hour ozone standard.

Maryland's SIP revision contains the requirements of RACT set forth in the CAA under the 1997 8-hour ozone NAAQS. Maryland's SIP revision satisfies the 1997 8-hour ozone standard RACT requirements through (1) certification that previously adopted RACT controls in Maryland's SIP that were approved by EPA under the 1-hour ozone NAAQS are based on the currently available technically and economically feasible controls and continue to represent RACT for the 8-hour implementation purpose; (2) a negative declaration demonstrating that no facilities exist in Maryland for the applicable CTG categories; and (3) adoption of new or more stringent RACT determinations. Other specific requirements of the CAA and EPA's review and rationale for our proposed action are explained in the NPR and will not be restated here. No public comments were received on the NPR.

EPA is approving a revision to the Maryland SIP submitted by the State of Maryland, through the Maryland Department of the Environment, on October 17, 2011 that addresses the 1997 8-hour ozone NAAQS. EPA has determined that Maryland has met the requirements of RACT for NO X and VOCs set forth in the CAA with respect to the 1997 8-hour ozone standard.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely proposes to approve 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 action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 11, 2012. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action.

This action, pertaining to Maryland's RACT provisions for NO X and VOCs with respect to the 1997 8-hour ozone may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

Therefore, 40 CFR part 52 is amended as follows:

I. Background

Throughout this document, whenever “we,” “us,” or “our” is used, we mean EPA. On January 26, 2012, EPA published a notice of proposed rulemaking (NPR) for Pennsylvania (77 FR 3984). The NPR proposed limited approval of Pennsylvania's RH SIP. The formal SIP revision was submitted by the Pennsylvania Department of Environmental Protection (PADEP) on December 20, 2010. This revision also meets the requirements of CAA section 110(a)(2)(D)(i)(II) and (a)(2)(J), relating to visibility protection for the 1997 8-hour ozone NAAQS and the 1997 and 2006 PM 2.5 NAAQS.

The SIP revision includes a long term strategy with enforceable measures ensuring reasonable progress towards meeting the reasonable progress goals for the first planning period through 2018. Pennsylvania's RH SIP contains the emission reductions needed to achieve Pennsylvania's share of emission reductions for the Class I areas they impact. The specific requirements of the CAA and EPA's Regional Haze Rule (64 FR 35714, July 1, 1999) and the rationale for EPA's proposed action are explained in the NPR and are not restated here. EPA received several adverse comments and one letter of support on the January 26, 2012 NPR. One of those adverse comments requested a change to PADEP's best available retrofit technology (BART) determination for GenOn Energy's Cheswick Generating Station. Pennsylvania can revise this determination in a future SIP revision to address comments raised by GenOn Energy. A summary of the comments submitted and EPA's responses are provided in section III of this document.

Comment: EPA proposed approval of Pennsylvania's RH SIP on January 26, 2012 with a docket that includes most of the RH SIP submission from PADEP except Appendix Z, which is the comment and response document.

Response: PADEP did not submit an Appendix Z, nor was it referenced in the rulemaking. The PADEP comment and response document is Appendix AA and can be found in the EPA docket for this action, docket No. EPA-R03-OAR-2012-0002.

Comment: The commenter stated that Pennsylvania has 15 BART-eligible electric generating units (EGUs) that include 28 individual units that are among the largest uncontrolled sources for nitrogen oxides (NO X ) and sulfur dioxide (SO 2 ). The commenter claimed PADEP did not conduct any five-step determinations for BART at these EGUs for NO X and SO 2. It relied upon the pending “cross state air pollution rule (CSAPR) Better than BART” determination.

Response: In today's action, EPA is finalizing a limited approval of Pennsylvania's RH SIP based on its reliance on the Clean Air Interstate Rule (CAIR). EPA did not propose to find that participation in the Transport Rule 1 is an alternative to BART in this action. EPA addressed these comments concerning the Transport Rule as a BART alternative in a final action that was published on June 7, 2012 (77 FR 33642). EPA's response to these comments can be found in Docket ID No. EPA-HQ-OAR-2011-0729 at www.regulations.gov.

Comment: The commenter stated that BART determinations must consider filterable PM 10, PM 2.5 and condensable PM. The commenter stated that the PADEP BART determinations are expressed in total PM, but the cost analyses were conducted based on filterable PM 10 . The commenter requested EPA to disapprove PADEP's determinations and adopt a FIP that establishes BART limits for filterable PM 10 , PM 2.5 and condensable PM because PADEP set BART limits for filterable PM 10 and filterable PM.

Response: EPA disagrees with the commenter that the PM BART limits should be disapproved. The controls on the facilities considered by PADEP for the emission limits in the BART determinations are effective in reducing filterable and condensable particulates. Separate emission limits for each are not required for BART.

Comment: The commenter claimed PADEP's BART determinations and EPA's proposed approval of these determinations are fundamentally flawed, arbitrary, and unlawful. The commenter stated that source-specific process design information is required to make BART determinations which PADEP did not provide. One commenter stated PADEP's BART determinations were fundamentally flawed for steps one through four of the BART determination process. The commenter stated the flaw in step one was that PADEP did not address all available technologies for each BART determination. The commenter stated the flaw in step two was that PADEP did not appropriately interpret technical feasibility of control options in accordance with the Guidelines for BART Determinations under the Regional Haze Rule at Appendix Y to 40 CFR part 51 (hereafter the BART Rule). See 70 FR 39104 (July 6, 2005). The commenter stated the flaw in step three was that PADEP did not rank the control effectiveness for all EGU and most non-EGU BART determinations. The commenter stated the flaw in step four was that PADEP eliminated technologies based on non-air quality environmental impacts that are common throughout the industry.

Response: Congress crafted the CAA to provide for states to take the lead in developing implementation plans but balanced that decision by requiring EPA to review the plans to determine whether a SIP meets the requirements of the CAA. In undertaking such a review, EPA does not usurp a state's authority but ensures that such authority is reasonably exercised. BART determinations under the regional haze program are the responsibility of the states, which have the freedom to determine the weight and significance of the statutorily required five-factors in a BART determination. EPA then reviews a state's determination as included in its regional haze plan. Pennsylvania performed the required BART determinations for its BART-eligible sources. In Appendix J of its RH SIP submittal, Pennsylvania considered the required five-factors and explained its conclusions for each specific source. As identified in Appendix J, Pennsylvania performed its BART determinations evaluating the five-factors required. Appendix J describes the steps Pennsylvania took in evaluating BART and provides a basis for Pennsylvania's BART determinations based on those five- factors. The modeling of source impacts and technology reviews for specific source categories can be found in Pennsylvania's Appendices I, P and Q respectively, which support Pennsylvania's BART determinations found in Appendix J. EPA determined that PADEP did address all available technologies and appropriately determined technical feasibility of those technologies. The ranking of control technologies is not a requirement of step three (evaluating the control effectiveness) in BART determinations. The evaluation of non-air quality impacts as part of step four of the BART determination should be made based on a consideration of the specific circumstances of that source, so the same technology may have a different degree of impact dependent on the source. EPA determined that PADEP did address step four for the BART determinations in accordance with the BART Rule.

Comment: The commenter stated that the PM limit for EGUs is invalid for BART. Pennsylvania used an outdated 0.1 pound per million British thermal unit (lb/MMBtu) limit for filterable PM. The proposed BART limit is much higher than accepted as BART (or as best available control technology known as BACT), and much higher than levels currently being achieved at many other similar facilities.

Response: EPA disagrees that the PM BART limits are invalid. While BACT is similar to BART, BACT has a four factor analysis of environmental impact, energy consumption, economic impact, and other costs. BART determinations however involve a five factor analysis of all technologies available for retrofit, consideration of current control technologies, cost of compliance of controls, remaining useful life of the facility, energy and non air-quality environmental impacts, and visibility impacts. BART is not a required top-down evaluation like BACT. As stated in the BART Rule, the states should retain the discretion to evaluate control options in whatever order they choose, so long as the state explains its analysis of the CAA factors. PADEP did address each of the five factors in its BART determination summaries in Appendix J of the PADEP December 20, 2010 RH SIP submittal. Because BART and BACT involve different evaluations, EPA believes it is reasonable to have different outcomes and different limits for each review. The specific BACT limits cited by the commenter cannot automatically be considered valid for BART.

Comment: BART guidelines provide that maximum available control technology (MACT) for hazardous air pollutants (HAPs) should be taken into account for determining BART as stated in 40 CFR part 51, appendix Y, Section IV.C. The commenter stated that Pennsylvania EGUs are subject to EPA's Mercury and Air Toxics Standards (MATS Rule) which was published on February 16, 2012 (77 FR 9304). The commenter stated that EPA must take these requirements into account in approving any BART determination because all statutory factors should be included. The commenter stated that PADEP's BART determinations for PM limits of 0.1 lb/MMBtu cannot be approved because those limits are much higher than the 0.03 lb/MMBtu limit in the final MATS Rule as a surrogate limit for non-mercury metal HAPs.

Response: EPA agrees that we do require all statutory factors to be included in the BART determinations that are applicable at the time the determinations are done. EPA cannot require BART determinations to predict future requirements and to include those as BART. When EPA issues new rules, the states must adopt them as appropriate. The final MATS Rule was promulgated after the proposed limited approval of the PM BART determinations in the Pennsylvania RH SIP on January 26, 2012.

Comment: The commenter stated that EPA claimed it included all BART-eligible sources in the CSAPR Better-than-BART analysis, but the analysis omitted the BART-eligible oil-fired EGUs as identified by PADEP. These facilities in Pennsylvania are Trigen/Edison Station Units 3 and 4; Trigen/Schuylkill Station Unit 26; Eddystone Units 3 and 4; and Martins Creek Units 3 and 4. EPA's CSAPR Better-than-BART analysis compared projected EGU emissions at the presumptive EGU BART limits to projected emissions under CSAPR. EPA then modeled these scenarios against the 2014 baseline that excludes both BART and CSAPR. The visibility benefits from this modeling were then averaged across all Class I areas. The commenter stated that EPA claims this analysis shows that CSAPR will result in more emissions reductions than BART and cites to 76 FR 82225. The commenter claimed that CSAPR will not achieve greater reasonable progress toward the national visibility goal than source-specific BART for EGUs in Pennsylvania. Even if CSAPR could lawfully substitute for BART, the commenter claimed the instant rulemaking would have to include separate NO X and SO 2 BART determinations for Pennsylvania EGUs because CSAPR does not in fact perform better than BART.

Response: These comments are beyond the scope of this rulemaking. EPA's response to comments concerning the “CSAPR is Better-than-BART” action can be found in Docket ID No. EPA-HQ-OAR-2011-0729 at www.regulations.gov.

Comment: The commenter stated that PADEP evaluated step five of the BART determinations in a piecemeal fashion, considering the visibility impact to each Class I area separately and determined controls based on the most highly impacted Class I area. PADEP's approach resulted in significantly underestimating visibility improvements compared to implementing BART for PA sources. Most of the BART-eligible sources are clustered in the southwest corner of the state, near four Class I areas. Most of the remaining BART-eligible sources are clustered in the southeast region of the state, near Brigantine Class I area, with Montour in the middle of the state. The federal land managers (FLMs) made similar comments on the draft Pennsylvania RH SIP. PADEP responded that the BART Rule does not require a “cumulative” impact analysis and stated that EPA has provided no guidance on this issue. The commenter disagreed and stated that the BART Rule is clear that multiple sources and Class I areas are to be considered. The commenter cited to 70 FR 39161-62. The commenter claimed EPA recommended that Nebraska Department of Environmental Quality (NDEQ) consider calculating the visibility improvement at multiple Class I areas.

Response: EPA disagrees with this comment in general. The BART Rule pages referred to by the commenter address determining whether a facility is BART-eligible and not the applicable approach defined later in the guidelines for BART-subject sources. EPA agrees with PADEP that the BART Rule does not require a “cumulative” impact analysis as part of the BART determination for a specific source. The guidelines do give the option to evaluate cumulative impacts to multiple Class I areas which EPA does recommend but does not require the state to do. As noted by the language used by EPA to NDEQ, we recommend consideration of the cumulative approach.

Comment: The commenter stated that the PADEP source-specific analyses in Appendix J rejected every single control option as not cost effective using one or both of the following two measures: dollar per ton or dollar per deciview. However, no significance thresholds were established for either. The FLMs also commented on this issue during the PADEP review process. PADEP's response to the FLMs was that it did not establish or use “bright line thresholds for cost or for visibility improvement in making BART determinations” in Appendix AA of the Pennsylvania RH SIP submittal. The commenter noted that based on determinations in other states, the acceptable cost effectiveness value ranges from $5,000 per ton to $10,000 per ton. The commenter claimed that many of PADEP's “no control” determinations fall well below this range.

Response: EPA's BART guidelines in the BART Rule do not require Pennsylvania to develop a specific threshold, but rather to evaluate each BART determination on a case-by-case basis for each source. EPA has not established a specific cost threshold that makes a particular control option BART based on just a dollars per ton number. All five factors must be compared to determine the level of control that is BART on a case-by-case basis. As discussed in the NPR, EPA finds the BART determinations from PADEP reasonable.

Comment: The commenter stated that EPA unreasonably relies on CSAPR for BART and that EPA failed to adequately review Pennsylvania's BART determinations.

Response: For BART determinations of sources other than EGUs, EPA reviewed PADEP's BART determinations in the December 20, 2010 Pennsylvania RH SIP submittal and approves the conclusions as the determinations are reasonable. Comments related to CSAPR as an alternative to BART for EGUs are beyond the scope of this rulemaking. EPA addressed similar comments concerning the Transport Rule as a BART alternative in a final action that was signed on May 30, 2012 (77 FR 33642, June 7, 2012). The EPA's response to these comments can be found in Docket ID No. EPA-HQ-OAR-2011-0729 at www.regulations.gov.

Comment: The commenter stated that EPA's proposed SO 2 reductions from Pennsylvania sources as substitute measures addressing Pennsylvania's failure to adopt the Mid-Atlantic/Northeast Visibility Union (MANE-VU) low sulfur fuel oil strategy are largely reliant upon the Portland Generating Station SO 2 reductions from the federally enforceable order from EPA responding to the CAA section 126 petition from the State of New Jersey. The commenter also states that this order has been appealed in the federal Court of Appeals and should not be relied upon due to its uncertainty.

Response: EPA disagrees with the commenter. The rule issued in response to the CAA section 126 petition from the State of New Jersey for the Portland Generating Station is federally enforceable and can be relied upon because it has not been stayed, nor has it been revoked at this time. The reductions can be relied upon for reasonable progress at this time because it is a federally enforceable measure. If these reductions do not occur, then PADEP may have to address them in the five year look back by submitting a SIP revision.

Comment: The commenter stated that Pennsylvania's failure to adopt the low-sulfur fuel oil strategy that was included in New Jersey's reasonable progress goals cannot be supplemented by SO 2 emission reductions without modeling the impacts as required by 40 CFR 51.308(d)(3)(iii).

Response: EPA disagrees with the commenter. 40 CFR 51.308(d)(3)(iii) provides that a state “must document the technical basis, including modeling, monitoring and emissions information, on which the State is relying to determine its apportionment of emission reduction obligations necessary for achieving reasonable progress in each mandatory Class I Federal area it affects. The State may meet this requirement by relying on technical analyses developed by the RPO and approved by all State participants. The State must identify the baseline emissions inventory on which its strategies are based.” 40 CFR 51.308(d)(3)(iii). EPA did identify the baseline emissions for the measures substituted to address the SO 2 reductions that would have come from Pennsylvania's low-sulfur fuel oil strategy, and the modeling impact of the MANE-VU rule was done by the regional planning organization (RPO). The low-sulfur fuel oil strategy was an area source rule and the substituted emission reductions are from specific sources that are located closer to the Brigantine Class I area. Thus, the substitution of SO 2 reductions does meet the requirements in 40 CFR 51.308(d)(3)(iii).

Comment: The commenter stated that both the EPA proposed action for CSAPR Better-than-BART and EPA's proposed action on Pennsylvania's RH SIP stated that EPA was taking action on long-term strategy in a separate notice. The commenter stated that neither rulemaking acted on the long-term strategy for Pennsylvania which is untenable according to the commenter.

Response: The commenter has made an incorrect assumption. The EPA stated in the proposed action for CSAPR Better-than-BART that we proposed a limited disapproval of the regional haze SIPs that have been submitted by several states including Pennsylvania and that these states “fully consistent with the EPA's regulations at the time, relied on CAIR requirements to satisfy the BART requirement and the requirement for a long-term strategy sufficient to achieve the state-adopted reasonable progress goals” (76 FR 82221). We further stated that “CAIR and CAIR FIP requirements, however, will only remain in force to address emissions through the 2011 control period and thus CAIR cannot be relied upon in a SIP as a substitute for BART or as part of a long-term control strategy.” Id. EPA proposed and finalized a limited disapproval for the Pennsylvania RH SIP for the long-term strategy due to reliance on CAIR. The other long-term strategy measures are covered under the limited approval proposed for Pennsylvania's RH SIP in 77 FR 3988. Therefore, all long-term control strategies beyond reliance on CAIR are included in the limited approval previously proposed, and now finalized, by this action. The final limited disapproval and FIP was published on June 7, 2012, addressing the deficiencies of the long-term strategy insofar as it relied on CAIR (77 FR 33642).

Comment: The commenter requested a conditional approval of Pennsylvania's RH SIP requiring the implementation of the lower-sulfur fuel strategy since it was relied upon for establishing the reasonable progress goals for MANE-VU Class I areas. Multiple commenters also stated that EPA's substitution of emission reductions is not permitted under the Regional Haze Rule for reasonable progress goals for visibility.

Response: EPA does not agree that a conditional approval is appropriate for the Pennsylvania RH SIP given our determination that the plan meets the relevant applicable requirements. As set forth in a prior response, EPA disagrees that substitution of emission reductions is not permitted for reasonable progress goals.

Comment: The commenter stated that EPA should have disapproved Pennsylvania's RH SIP due to PADEP's failure to implement a proposed low-sulfur fuel oil strategy. The commenter stated that EPA should have demanded the additional 5,702 tons of SO 2 emission reductions from Pennsylvania instead of saying that EPA does not anticipate the difference will interfere with the ability of other states to achieve reasonable progress goals.

Response: EPA disagrees with the commenter. Disapproving the entire Pennsylvania RH SIP would have slowed implementation of other controls listed in the RH SIP. As explained in the NPR, we anticipate that the Pennsylvania RH SIP will ensure sufficient emission reductions to meet its share needed for nearby states to achieve their reasonable progress goals. If it is determined that the shortfall of SO 2 emission reductions impedes the achievement of reasonable progress, then at the time of the five year periodic review PADEP may need to submit a SIP revision requiring those additional reductions.

Comment: One commenter stated that the PADEP BART determination for GenOn Energy's Cheswick Generating Station included emission limits including PM which were inconsistent with the plant's current permits. The commenter requested EPA to require PADEP to revise the BART determination.

Response: EPA evaluated the BART determination and agrees with PADEP's determination of the appropriate BART limit based on current controls. In setting the BART limits, PADEP appears to have set emission limits for the facility that are far more stringent than intended. If Pennsylvania submits a revised BART determination for the Cheswick Generating Station, EPA commits to act expeditiously on the revised SIP submittal.

Comment: Two commenters stated that PADEP did not address reasonable progress requirements for addressing MANE-VU's modeled exceedance of the uniform rate of progress (URP) at Dolly Sods Class I area.

Response: Reasonable progress goals are set by the Class I area state. West Virginia did not request any reductions from Pennsylvania to meet the URP as modeled by Visibility Improvement State and Tribal Association of the Southeast (VISTAS). The discrepancies in modeling between the two RPOs were addressed in Pennsylvania's RH SIP submittal. The requirement for the state consultation process was met, and Pennsylvania fulfilled what was requested by West Virginia.

Comment: The commenter stated that Pennsylvania's modeling for the RH SIP submittal did not address the significant growth in emissions from Marcellus Shale natural gas drilling operations and therefore does not support reasonable progress.

Response: EPA disagrees with the commenter because reasonable progress goals are set by the Class I area and are evaluated during the 5 year periodic review. In addition, CAA section 169A(g)(1) requires states to take into consideration a number of factors for reasonable progress. States have flexibility in how to take into consideration these statutory factors and any other factors that are determined to be relevant. As previously explained herein and in the NPR, we anticipate that the Pennsylvania RH SIP will ensure sufficient emission reductions for reasonable progress goals. During the five year periodic review, any significant changes in projected emissions can be addressed.

EPA is finalizing its limited approval of the revision to the Pennsylvania SIP submitted on December 20, 2010 that addresses regional haze for the first implementation period in Pennsylvania. EPA is issuing a limited approval of the Pennsylvania SIP because overall the SIP will be stronger and more protective of the environment with the implementation of those measures by Pennsylvania and because the SIP will be stronger with federal approval and enforceability of Pennsylvania's RH SIP than it would without those measures being included in the Pennsylvania SIP. EPA has already finalized the limited disapproval of Pennsylvania's RH SIP in a separate rulemaking (77 FR 33642, June 7, 2012). EPA is also approving this revision as meeting the applicable visibility related requirements of CAA section 110(a)(2) including, but not limited to, section 110(a)(2)(D)(i)(II) and (a)(2)(J), relating to visibility protection for the 1997 8-hour ozone NAAQS and the 1997 and 2006 PM 2.5 NAAQS.

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

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 11, 2012. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action finalizing the limited approval of the Pennsylvania Regional Haze SIP may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2) of the CAA.

40 CFR part 52 is amended as follows:

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to those engaged in the following activities:

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

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

You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Printing Office's e-CFR site at http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?&c=ecfr&tpl=/ecfrbrowse/Title40/40tab_02.tpl.

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2011-0398 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before September 11, 2012. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any confidential business information (CBI) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit a copy of your non-CBI objection or hearing request, identified by docket ID number EPA-HQ-OPP-2011-0398, by one of the following methods:

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

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

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

In the Federal Register of July 20, 2011 (76 FR 43231) (FRL-8880-1), EPA issued a notice pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 1E7851) by Interregional Research Project Number 4 (IR-4), 500 College Road East, Suite 201W, Princeton, NJ 08540. The petition requested that 40 CFR 180.507 be amended by:

• Establishing tolerances for residues of the fungicide azoxystrobin, (methyl (E)-2-[2-[6-(2-cyanophenoxy)pyrimidin-4-yloxy]phenyl]-3-methoxyacrylate) and the Z isomer of azoxystrobin, (methyl (Z)-2-[2-[6-(2-cyanophenoxy)pyrimidin-4-yloxy]pheny1]-3-methoxyacrylate) in or on onion, bulb subgroup 3-07A at 1.0 parts per million (ppm); onion, green subgroup 3-07B, at 7.5 ppm; caneberry subgroup 13-07A, at 5.0 ppm; bushberry subgroup 13-07B, at 3.0 ppm; small fruit vine climbing subgroup, except fuzzy kiwifruit, 13-07F, at 1.0 ppm; low growing berry subgroup 13-07G, except cranberry, at 10.0 ppm; vegetable, fruiting, subgroup 8-10A, at 0.2 ppm; vegetable, fruiting, subgroups 8-10B, at 2.0 ppm; fruit, citrus, group 10-10, at 10.0 ppm; rapeseed subgroup 20A, at 1.0 ppm; sunflower subgroup 20B, at 0.5 ppm; cottonseed subgroup 20C, at 0.6 ppm; wasabi, at 50.0 ppm; and dragon fruit, at 2.0 ppm;

• Changing the tolerance for vegetable, tuberous and corm, subgroup 1C from 0.03 ppm to 6.0 ppm; and

• Upon approval of the tolerances above, by removing the established tolerances for onion, bulb at 1.0 ppm; onion, green at 7.5 ppm; caneberry subgroup 13-A at 5.0 ppm; bushberry subgroup 13B at 3.0 ppm; Juneberry at 3.0 ppm; lingonberry at 3.0 ppm; salal at 3.0 ppm; grape at 1.0 ppm; strawberry at 10.0 ppm; tomato at 0.2 ppm; vegetable, fruiting, group 8 except tomato at 2.0 ppm; fruit, citrus, group 10 at 10.0 ppm; canola, seed at 1.0 ppm; cotton, undelinted seed at 0.6 ppm; crambe, seed at 0.5 ppm; flax, seed at 0.5 ppm; mustard, field, seed at 0.5 ppm; mustard, Indian, seed at 0.5 ppm; mustard, seed at 0.5 ppm; rapeseed, Indian at 0.5 ppm; rapeseed, seed at 0.5 ppm; safflower, seed at 0.5 ppm; sunflower, seed at 0.5 ppm; potato at 0.03 ppm.

In the Federal Register of November 9, 2011 (76 FR 69690) (FRL-9325-1), EPA issued a notice pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 1F7891) by Syngenta Crop Protection, LLC., P.O. Box 18300, Greensboro, NC 27419-8300. The petition requested that 40 CFR 180.507 be amended by establishing a tolerance for residues of the fungicide azoxystrobin, (methyl (E)-2-[2-[6-(2-cyanophenoxy)pyrimidin-4-yloxy]phenyl]-3-methoxyacrylate) and the Z isomer of azoxystrobin, (methyl (Z)-2-[2-[6-(2-cyanophenoxy)pyrimidin-4-yloxy]phenyl]-3-methoxyacrylate) in or on sugarcane at 0.2 ppm.

The notices referenced summaries of the petitions prepared by Syngenta, the registrant, which are available in the docket, http://www.regulations.gov. There were no comments received in response to these notices of filing.

Based upon review of the data supporting the petition, EPA has modified the levels at which tolerances are being established for various commodities. The reason for these changes is explained in Unit IV.C.

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

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

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

Azoxystrobin has low acute toxicity via the oral, dermal and inhalation routes of exposure. It is not an eye or skin irritant and is not a skin sensitizer. Dietary administration of azoxystrobin to rats resulted in decreased body weights, decreased food intake and utilization, increased diarrhea and other clinical toxicity observations (increased urinary incontinence, hunched postures and distended abdomens). In addition, liver effects characterized by increased liver weights, increases in alkaline phosphatase and gama glutamyltransferase, decreases in albumin, gross and histological lesions in the liver and bile ducts, were seen in rats. In dogs, effects on liver/biliary function were found after oral administration.

In the acute neurotoxicity study in rats, increased incidence of diarrhea was observed at all dose levels tested including the lowest-observed-adverse-effect-level (LOAEL). Decreased body weight/weight gain and food utilization was noted in the rat subchronic neurotoxicity study. There were no consistent indications of treatment-related neurotoxicity in either the acute or subchronic neurotoxicity studies.

In the rat developmental toxicity study, diarrhea, urinary incontinence and salivation were observed in maternal animals; in the rabbit developmental toxicity study, maternal animals exhibited decreased body weight gain. No adverse treatment-related developmental effects were seen in either study. In the rat reproduction study, offspring and parental effects (decreased body weights and increased adjusted liver weights) were observed at the same dose.

There was no evidence of carcinogenicity in rats and mice at acceptable dose levels. As a result, EPA has classified azoxystrobin as “not likely to be carcinogenic to humans.” Azoxystrobin induced a weak mutagenic response in the mouse lymphoma assay, but the activity expressed in vitro is not expected to be expressed in whole animals.

Specific information on the studies received and the nature of the adverse effects caused by azoxystrobin as well as the no-observed-adverse-effect-level (NOAEL) and the LOAEL from the toxicity studies can be found at http://www.regulations.gov in docket ID number EPA-HQ-OPP-2011-0398 on pages 38-40 of the document titled “Azoxystrobin: Human Health Risk Assessment for Proposed Uses on Dragon Fruit, Wasabi, and Tuberous and Corm Vegetables (Subgroup 1C), and from the Revisions to Various Crop Groups (Onion Subgroups 3-07 A, B; Fruiting Vegetable Subgroups 8-10 A, B; Small Fruit and Berry Subgroups 13-07 A, B, F, G, Oilseeds Subgroups A, B, C; and Citrus Fruit Group 10-10).”

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

A summary of the toxicological endpoints for azoxystrobin used for human risk assessment is shown in the following Table.

1. Dietary exposure from food and feed uses. In evaluating dietary exposure to azoxystrobin, EPA considered exposure under the petitioned-for tolerances as well as all existing azoxystrobin tolerances in 40 CFR 180.507. EPA assessed dietary exposures from azoxystrobin in food as follows:

i. Acute exposure. Quantitative acute dietary exposure and risk assessments are performed for a food-use pesticide, if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1-day or single exposure.

Such effects were identified for azoxystrobin. In estimating acute dietary exposure, EPA used food consumption information from the U.S. Department of Agriculture (USDA) 1994-1996 and 1998 Nationwide Continuing Surveys of Food Intake by Individuals (CSFII). As to residue levels in food, the acute dietary assessment used tolerance levels for all commodities, except citrus fruits where the highest residue from crop field trials was used, and 100 percent crop treated (PCT) for all commodities. Default processing factors were assumed except for where tolerances were established for processed commodities.

ii. Chronic exposure. In conducting the chronic dietary exposure assessment EPA used the food consumption data from the USDA 1994-1996 and 1998 CSFII. As to residue levels in food, the chronic dietary analysis for azoxystrobin was conducted using tolerance levels and average PCT estimates when available. Default processing factors were assumed except for where tolerances were established for processed commodities.

iii. Cancer. Based on the data summarized in Unit III.A., EPA has concluded that azoxystrobin does not pose a cancer risk to humans. Therefore, a dietary exposure assessment for the purpose of assessing cancer risk is unnecessary.

iv. Anticipated residue and percent crop treated (PCT) information. Section 408(b)(2)(E) of FFDCA authorizes EPA to use available data and information on the anticipated residue levels of pesticide residues in food and the actual levels of pesticide residues that have been measured in food. If EPA relies on such information, EPA must require pursuant to FFDCA section 408(f)(1) that data be provided 5 years after the tolerance is established, modified, or left in effect, demonstrating that the levels in food are not above the levels anticipated. For the present action, EPA will issue such data call-ins as are required by FFDCA section 408(b)(2)(E) and authorized under FFDCA section 408(f)(1). Data will be required to be submitted no later than 5 years from the date of issuance of these tolerances.

Section 408(b)(2)(F) of FFDCA states that the Agency may use data on the actual percent of food treated for assessing chronic dietary risk only if:

• Condition a: The data used are reliable and provide a valid basis to show what percentage of the food derived from such crop is likely to contain the pesticide residue.

• Condition b: The exposure estimate does not underestimate exposure for any significant subpopulation group.

• Condition c: Data are available on pesticide use and food consumption in a particular area, the exposure estimate does not understate exposure for the population in such area.

In addition, the Agency must provide for periodic evaluation of any estimates used. To provide for the periodic evaluation of the estimate of PCT as required by FFDCA section 408(b)(2)(F), EPA may require registrants to submit data on PCT.

The Agency estimated the PCT for existing uses as follows:

Almonds, 25%; apricots, 10%; artichokes, 25%; asparagus, 2.5%; green beans, 10%; blackberries, 5%; blueberries, 10%; broccoli, 5%; cabbage, 10%; cantaloupes, 10%; carrots, 10%; cauliflower, 2.5%; celery, 10%; cherries, 5%; corn, 2.5%; cotton, 5%; cucumbers, 20%; dry beans/peas, 1%; garlic, 60%; grapefruit, 20%; grapes, 5%; hazelnuts (filberts), 5%; lettuce, 2.5%; onions, 10%; oranges, 5%; peaches, 5%; peanuts, 15%; green peas, 2.5%; pecans, 2.5%; peppers, 15%; pistachios, 15%; potatoes, 35%; prunes, 2.5%; pumpkins, 20%; raspberries, 5%; rice, 35%; soybeans, 2.5%; spinach, 10%; squash, 15%; strawberries, 30%; sugar beets, 5%; sweet corn, 10%; tangerines, 15%; tomatoes, 15%; walnuts, 1%; watermelon, 20%; wheat, 2.5%.

In most cases, EPA uses available data from USDA/National Agricultural Statistics Service (NASS), proprietary market surveys, and the National Pesticide Use Database for the chemical/crop combination for the most recent 6-7 years. EPA uses an average PCT for chronic dietary risk analysis. The average PCT figure for each existing use is derived by combining available public and private market survey data for that use, averaging across all observations, and rounding to the nearest 5%, except for those situations in which the average PCT is less than 1%. In those cases, 1% is used as the average PCT and 2.5% is used as the maximum PCT. EPA uses a maximum PCT for acute dietary risk analysis. The maximum PCT figure is the highest observed maximum value reported within the recent 6 years of available public and private market survey data for the existing use and rounded up to the nearest multiple of 5%.

The Agency believes that the three conditions discussed in Unit III.C.1.iv. have been met. With respect to Condition a, PCT estimates are derived from Federal and private market survey data, which are reliable and have a valid basis. The Agency is reasonably certain that the percentage of the food treated is not likely to be an underestimation. As to Conditions b and c, regional consumption information and consumption information for significant subpopulations is taken into account through EPA's computer-based model for evaluating the exposure of significant subpopulations including several regional groups. Use of this consumption information in EPA's risk assessment process ensures that EPA's exposure estimate does not understate exposure for any significant subpopulation group and allows the Agency to be reasonably certain that no regional population is exposed to residue levels higher than those estimated by the Agency. Other than the data available through national food consumption surveys, EPA does not have available reliable information on the regional consumption of food to which azoxystrobin may be applied in a particular area.

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

Based on the First Index Reservoir Screening Tool (FIRST), Screening Concentration in Ground Water (SCI-GROW), the Pesticide Root Zone Model (PRZM) and the Exposure Analysis Modeling System (EXAMS) models, the estimated drinking water concentrations (EDWCs) of azoxystrobin for acute exposures are estimated to be 173 parts per billion (ppb) and 33 ppb for chronic exposures. For ground water, the estimated drinking water concentration is 3.1 ppb.

Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For acute dietary risk assessment, the water concentration value of 173 ppb was used to assess the contribution to drinking water. For chronic dietary risk assessment, the water concentration of value 33 ppb was used to assess the contribution to drinking water.

3. From non-dietary exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets).

Azoxystrobin is currently registered for the following uses that could result in residential exposures: Outdoor residential (lawns, ornamentals, flower gardens, vegetables, fruit and nut trees, berries and vines) and recreational (golf courses, parks and athletic fields) sites. Additionally, it is registered for use on indoor carpets/other surfaces by non-commercial applicators, and in treated paints (preservative incorporation). EPA assessed residential exposure using the new 2012 updated residential standard operating procedures (SOPs) that are now used in all human health assessments. For residential handler exposure, the Agency assumed that most residential use will result in short-term (1 to 30 days) dermal and inhalation exposures. The worst-case scenario used was painting with an airless sprayer. Residential handlers are assumed to be wearing short-sleeved shirts, short pants, shoes and socks during application of azoxystrobin. Because there was no dermal endpoint chosen for azoxystrobin, residential handler risk from exposure to azoxystrobin was assessed for the inhalation route only.

The Agency assumed that post-application exposure in residential settings is expected to be short-term in duration only. No dermal endpoint was chosen for azoxystrobin; therefore, a dermal post-application risk assessment was not conducted. Residential post-application inhalation exposure in outdoor settings is considered negligible; however, residential post-application inhalation exposure has been assessed. The scenarios evaluated were short-term post-application inhalation (indoor), short-term incidental oral ingestion from treated indoor surfaces (hand-to-mouth vinyl/hard surfaces and carpet/textile surfaces), and short-term incidental oral ingestion from treated turf (hand-to-mouth, mouthing grass, and soil ingestion).

Further information regarding EPA standard assumptions and generic inputs for residential exposures may be found at http://www.epa.gov/pesticides/science/residential-exposure-sop.html.

4. Cumulative effects from substances with a common mechanism of toxicity. Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.”

EPA has not found azoxystrobin to share a common mechanism of toxicity with any other substances, and azoxystrobin does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that azoxystrobin does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's Web site at http://www.epa.gov/pesticides/cumulative .

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

2. Prenatal and postnatal sensitivity. The prenatal and postnatal toxicity database for azoxystrobin is complete and includes prenatal developmental toxicity studies in rats and rabbits and a 2-generation reproduction study in rats. In these studies, offspring toxicity was observed at equivalent or higher doses than those resulting in parental toxicity; thus, there is no evidence of increased susceptibility and there are no residual uncertainties with regard to prenatal and/or postnatal toxicity.

3. Conclusion. EPA has determined that reliable data show that it would be safe for infants and children to reduce the FQPA safety factor to 1X for short-term, intermediate term, and chronic risk assessment. This determination is based on the following considerations:

i. The toxicity database for azoxystrobin is complete except for immunotoxicity testing. Changes to 40 CFR part 158 make immunotoxicity testing (OPPTS Guideline 870.7800) required for pesticide registration; however, the existing data are sufficient for endpoint selection for exposure/risk assessment scenarios, and for evaluation of the requirements under the FQPA. There are no indications in the available studies that organs associated with immune function, such as the thymus and spleen, are affected by azoxystrobin and azoxystrobin does not belong to a class of chemicals (e.g., the organotins, heavy metals, or halogenated aromatic hydrocarbons) that would be expected to be immunotoxic. Based on the above considerations in this unit, EPA does not believe that conducting the immunotoxicity study will result in a dose less than the point of departure already used in this risk assessment, and an additional database uncertainty factor (UF) for potential immunotoxicity does not need to be applied.

ii. Clinical signs noted in the acute and subchronic neurotoxicity studies were not considered treatment related because of a lack of dose-response, inconsistency of observations at different time points, variability of pretreatment values and/or small magnitude of response. There is no need for a developmental neurotoxicity study or additional UFs to account for neurotoxicity.

iii. There is no evidence that azoxystrobin results in increased susceptibility to in utero rats or rabbits in the prenatal developmental studies or in young rats in the 2-generation reproduction study.

iv. The acute dietary exposure assessment was performed based on tolerance-level residues for all crops except citrus, and the chronic dietary exposure assessment was performed based on tolerance level residues for all crops. The acute dietary assessment incorporated 100 PCT information, and the chronic dietary exposure assessment was somewhat refined using PCT information for selected crops. EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to azoxystrobin in drinking water. EPA used similarly conservative assumptions to assess post-application exposure of children as well as incidental oral exposure of toddlers. These assessments will not underestimate the exposure and risks posed by azoxystrobin.

Despite these considerations supporting removal of the FQPA SF, EPA has retained the FQPA SF, reduced to 3X, in assessing acute dietary risk. An additional safety factor is needed for acute risk assessment to account for the use of a LOAEL from the acute neurotoxicity study in rats in deriving the acute reference dose used for assessing acute dietary exposure for all populations including infants and children. To account for the use of a LOAEL from the acute neurotoxicity study in rats, the Agency believes that a 3X FQPA SF (as opposed to a 10X) will be adequate to extrapolate a NOAEL in assessing acute risk and that no additional safety factor is needed for short-term, intermediate-term, and chronic risk assessment based on the following considerations:

• The effect seen (transient diarrhea seen in the rat) is of a nature that is relatively insignificant;

• The diarrhea was only seen in studies involving gavage dosing in the rat but not in repeat dosing through dietary administration in rats and mice, and not through gavage dosing in rabbits; and

• The very high dose level needed to reach the acute oral lethal dose (LD 50 ) (>5,000 milligrams/kilogram (mg/kg)), and the overall low toxicity of azoxystrobin.

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

1. Acute risk. Using the exposure assumptions discussed in this unit for acute exposure, the acute dietary exposure from food and water to azoxystrobin will occupy 42% of the aPAD for children 1 to 2 years old, the population group receiving the greatest exposure.

2. Chronic risk. Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that chronic exposure to azoxystrobin from food and water will utilize 16% of the cPAD for children 1 to 2 years old, the population group receiving the greatest exposure. Based on the explanation in Unit III.C.3., regarding residential use patterns, chronic residential exposure to residues of azoxystrobin is not expected.

3. Short-term risk. Short-term aggregate exposure takes into account short-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level).

Azoxystrobin is currently registered for uses that could result in short-term residential exposure, and the Agency has determined that it is appropriate to aggregate chronic exposure through food and water with short-term residential exposures to azoxystrobin.

Using the exposure assumptions described in this unit for short-term exposures, EPA has concluded the combined short-term food, water, and residential exposures result in aggregate MOEs of 460 for adult males, 470 for females 13 to 49 years old and 200 for children 1 to 2 years old. Because EPA's level of concern for azoxystrobin is a MOE of 100 or below, these MOEs are not of concern.

4. Intermediate-term risk. Intermediate-term aggregate exposure takes into account intermediate-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level).

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

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

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

Adequate enforcement methodologies are available to enforce the tolerance expression and have been submitted to FDA for inclusion in the Pesticide Analytical Manual (PAM) Volume II: A gas chromatography method with nitrogen-phosphorus detection (GC/NPD), RAM 243/04, for the enforcement of tolerances for residues of azoxystrobin and its Z-isomer in crop commodities; and a GC/NPD method, RAM 255/01, for the enforcement of tolerances of azoxystrobin in livestock commodities. The methods may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; email address: residuemethods@epa.gov .

In making its tolerance decisions, EPA seeks to harmonize tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.

The following tolerances being established by this document are in harmony with the equivalent Codex MRLs are harmonized (Codex commodities in brackets): Caneberry subgroup 13-07A (berries and other small fruits, except cranberry, grapes and strawberry); berry, low growing, subgroup 13-07G, except cranberry (strawberries); sunflower subgroup 20B (sunflower seed); bushberry, subgroup 13-07B (berries and other small fruits, except cranberry, grapes and strawberry); cottonseed, subgroup 20C (cotton seed); fruit, citrus, group 10-10 (citrus fruits); fruit, small vine climbing, except fuzzy kiwifruit, 13-07F (grape); and pepper/eggplant subgroup 8-10B (fruiting vegetables other than cucurbits except mushrooms and sweet corn). The following tolerances could not be harmonized with Codex MRLs: Berry, low growing subgroup 13-07G, except cranberry (berries and other small fruits, except cranberry, grapes and strawberry); dragon fruit (mango); onion, bulb and green subgroups 3-07A & B (bulb vegetables); tomato subgroup 8-10A (fruiting vegetables other than cucurbits except mushrooms and sweet corn); vegetable, tuberous and corm subgroup 1C (root and tuber vegetables); and wasabi fresh and dry (herbs, fresh and dry). The disharmony is caused by various issues, including different Codex classification for crop grouping, different calculation procedures for establishing MRLs, different use patterns, and different data sets. There are no Codex MRLs) for residues of azoxystrobin and its Z-isomer for sugarcane.

Several of the tolerances have been revised from what was proposed in the initial petition. EPA is increasing the proposed crop group tolerances for bushberry, subgroup 13-07B; cottonseed subgroup 20C; citrus fruit, group 10-10; fruit, small vine climbing, except fuzzy kiwifruit subgroup 13-07F, and pepper/eggplant subgroup 8-10B to harmonize the numerical portion of the tolerance with the Codex MRL. Also, based on the Organization for Economic Cooperation and Development (OECD) calculation procedures for the current post-harvest potato use data, EPA increased the requested tolerance for vegetable, tuberous and corm, subgroup 1C from 6.0 ppm to 8.0 ppm. It should be noted that there is an existing tolerance on potato at 0.03 ppm that is based on foliar use. The substantial increase from 0.03 ppm to 8.0 ppm results from the post-harvest use, as opposed to the previous foliar-only use.

EPA is also revising some of the commodity definitions in the tolerance table to be consistent with EPA's preferred terms for food and feed.

Therefore, tolerances are established for residues of azoxystrobin, (methyl (E)-2-[2-[6-(2-cyanophenoxy)pyrimidin-4-yloxy]phenyl]-3-methoxyacrylate) and the Z isomer of azoxystrobin, (methyl (Z)-2-[2-[6-(2-cyanophenoxy)pyrimidin-4-yloxy]phenyl]-3-methoxyacrylate) in or on onion, bulb, subgroup 3-07A at 1.0 ppm; onion, green, subgroup 3-07B at 7.5 ppm; tomato subgroup 8-10A at 0.2 ppm; pepper/eggplant subgroup 8-10B at 3.0 ppm; fruit, citrus, group 10-10 at 15.0 ppm; caneberry subgroup 13-07A at 5.0 ppm; bushberry subgroup 13-07B at 5.0 ppm; fruit, small vine climbing, except fuzzy kiwifruit, subgroup 13-07F at 2.0 ppm; berry, low growing, subgroup 13-07G, except cranberry at 10.0 ppm; rapeseed subgroup 20A at 1.0 ppm; sunflower subgroup 20B at 0.5 ppm; cottonseed subgroup 20C at 0.7 ppm; wasabi, fresh at 50 ppm; wasabi, dry at 260 ppm; dragon fruit at 2.0 ppm; vegetable, tuberous and corm, subgroup 1C at 8.0 ppm, and sugarcane, cane at 0.2 ppm.

And lastly, due to the tolerances established above by this document, the following existing tolerances are removed as unnecessary: Onion, bulb; onion, green; caneberry subgroup 13A; bushberry subgroup 13B; Juneberry; lingonberry; salal; grape; strawberry; tomato; vegetable, fruiting, group 8 except tomato; fruit, citrus, group 10; canola, seed; cotton, undelinted seed; crambe, seed; flax, seed; mustard, field, seed; mustard, Indian, seed; mustard, seed; rapeseed, Indian; rapeseed, seed; safflower, seed; sunflower, seed; potato; okra.

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

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

This final rule directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this final rule. In addition, this final rule does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4).

This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note).

The Congressional Review Act, 5 U.S.C. 801 et seq., generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report 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 this final rule in the Federal Register . This final rule is not a “major rule” as defined by U.S.C. 804(2).

Therefore, 40 CFR chapter I is amended as follows:

States which have received Final authorization from the EPA under RCRA section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste program that is equivalent to, consistent with, and no less stringent than the Federal hazardous waste program. As the Federal program changes, the States must change their programs and ask the EPA to authorize the changes. Changes to State hazardous waste programs may be necessary when Federal or State statutory or regulatory authority is modified or when certain other changes occur. Most commonly, States must change their programs because of changes to the EPA's regulations in 40 Code of Federal Regulations (CFR) parts 124, 260 through 268, 270, 273 and 279. States can also initiate their own changes to their hazardous waste program and these changes must then be authorized.

We conclude that Louisiana's revisions to its authorized program meet all of the statutory and regulatory requirements established by RCRA. We found that the State-initiated changes make Louisiana's rules more clear or conform more closely to the Federal equivalents and are so minor in nature that a formal application is unnecessary. Therefore, we grant Louisiana final authorization to operate its hazardous waste program with the changes described in the table at Section G below. Louisiana has responsibility for permitting Treatment, Storage, and Disposal Facilities (TSDFs) within its borders (except in Indian Country) and for carrying out all authorized aspects of the RCRA program, subject to the limitations of the Hazardous and Solid Waste Amendments of 1984 (HSWA). New Federal requirements and prohibitions imposed by Federal regulations that EPA promulgates under the authority of HSWA take effect in authorized States before they are authorized for the requirements. Thus, the EPA will implement those requirements and prohibitions in Louisiana, including issuing permits, until the State is granted authorization to do so.

The effect of this decision is that a facility in Louisiana subject to RCRA will now have to comply with the authorized State requirements instead of the equivalent Federal requirements in order to comply with RCRA. Louisiana has enforcement responsibilities under its State hazardous waste program for violations of such program, but the EPA retains its authority under RCRA sections 3007, 3008, 3013, and 7003, which include, among others, authority to:

• Do inspections, and require monitoring, tests, analyses, or reports;

• Enforce RCRA requirements and suspend or revoke permits; and

• Take enforcement actions regardless of whether the State has taken its own actions.

This action does not impose additional requirements on the regulated community because the statutes and regulations for which Louisiana is being authorized by this direct final action are already effective and are not changed by this action.

The EPA did not publish a proposal before this rule because we view this as a routine program change and do not expect comments that oppose this approval. We are providing an opportunity for public comment now. In addition to this rule, in the Proposed Rules section of this Federal Register we are publishing a separate document that proposes to authorize the State program changes.

If the EPA receives comments that oppose this authorization or the incorporation-by-reference of the State program, we will withdraw this rule by publishing a timely document in the Federal Register before the rule becomes effective. The EPA will base any further decision on the authorization of the State program changes, or the incorporation-by-reference, on the proposal mentioned in the previous paragraph. We will then address all public comments in a later final rule. If you want to comment on this authorization and incorporation-by-reference, you must do so at this time. If we receive comments that oppose only the authorization of a particular change to the State hazardous waste program or the incorporation-by-reference of the State program, we may withdraw only that part of this rule, but the authorization of the program changes or the incorporation-by-reference of the State program that the comments do not oppose will become effective on the date specified above. The Federal Register withdrawal document will specify which part of the authorization or incorporation-by-reference of the State program will become effective and which part is being withdrawn.

The State of Louisiana initially received final authorization on January 24, 1985, effective February 7, 1985 (see 50 FR 3348), to implement its Base Hazardous Waste Management Program. Louisiana received authorization for revisions to its program effective January 29, 1990 (54 FR 48889), October 25, 1991 (56 FR 41958) as corrected October 15, 1991 (56 FR 51762); January 23, 1995 (59 FR 55368) as corrected April 11, 1995 (60 FR 18360); March 8, 1995 (59 FR 66200); January 2, 1996 (60 FR 53704 and 60 FR 53707); June 11, 1996 (61 FR 13777), March 16, 1998 (62 FR 67572), December 22, 1998 (63 FR 56830), October 25, 1999 (64 FR 46302), November 1, 1999 (64 FR 48099), April 28, 2000 (65 FR 10411), March 5, 2001 (66 FR 23), February 9, 2004 (68 FR 68526), August 9, 2005 (70 FR 33852), January 12, 2007 (71 FR 66118), October 15, 2007 (72 FR 45905), July 20, 2009 (74 FR 23645), October 4, 2010 (75 FR 47223), and August 23, 2011 (76 FR 37021).

The State has made amendments to the provisions listed in the following table. These amendments clarify the State's regulations and make the State's regulations more internally consistent. The State's laws and regulations, as amended by these provisions, provide authority which remains equivalent to and no less stringent than the Federal laws and regulations. These State-initiated changes satisfy the requirements of 40 CFR 271.21(a). We are granting Louisiana final authorization to carry out the following provisions of the State's program in lieu of the Federal program. These provisions are analogous to the indicated RCRA statutory provisions or RCRA regulations found at 40 CFR as of July 1, 2008. The Louisiana provisions are from the Louisiana Administrative Code (LAC), Title 33, Part V effective December 31, 2009 (except as noted below).

This authorization does not affect the status of State permits and those permits issued by the EPA because no new substantive requirements are a part of these revisions.

Louisiana is not authorized to carry out its Hazardous Waste Program in Indian Country within the State. This authority remains with EPA. Therefore, this action has no effect in Indian Country.

The following technical corrections are made to the May 20, 2009 Louisiana authorization Federal Register document. The corrections being made address additions or corrections to the list of citations for checklist entries that was included in the published Federal Register document and are presented in order of the checklist number, followed by a brief description of the correction being made.

1. For Checklist 208, the following corrections should be made:

a. The citation “100.B.6-7” is corrected to read “110.B.5-7”.

b. The citation “100.C.3.aa” is corrected to read “110.C.3.aa”

c. The citation “4727.A.c.i-v” is corrected to read “4727.A.3.c.i-v”.

2. For Checklist 214, the following corrections should be made:

a. The citation “2245.C.1.b.” is corrected to read “2245.C.2”.

b. The citation “2515.E.2” is corrected to read “2515.D.”.

c. The citation “4903.B.b.i-iv” is corrected to read “4903.B.3.b.i-iv”.

d. The citation “4901.D.1.a.iii(d)” is corrected to read “4909.D.1.a.iii(d)”.

e. The citation “4901.Table 7” is corrected to read “4909.Table 7”.

Codification is the process of placing a State's statutes and regulations that comprise the State's authorized hazardous waste management program into the Code of Federal Regulations (CFR). Section 3006(b) of RCRA, as amended, allows the Environmental Protection Agency (EPA) to authorize State hazardous waste management programs to operate in lieu of the Federal hazardous waste management regulatory program. The EPA codifies its authorization of State programs in 40 CFR part 272 and incorporates by reference State statutes and regulations that the EPA will enforce under sections 3007 and 3008 of RCRA and any other applicable statutory provisions.

The incorporation by reference of State authorized programs in the CFR should substantially enhance the public's ability to discern the current status of the authorized State program and State requirements that can be Federally enforced. This effort provides clear notice to the public of the scope of the authorized program in each State.

The EPA incorporated by reference Louisiana's then authorized hazardous waste management program effective March 16, 1998 (62 FR 67578), and October 4, 2010 (75 FR 47223).

In this document, the EPA is revising Subpart T of 40 CFR part 272 to include the authorization revision actions effective July 20, 2009 (74 FR 23645) and August 23, 2011 (76 FR 37021.

The purpose of this Federal Register document is to codify Louisiana's base hazardous waste management program and its revisions to that program. The EPA provided notices and opportunity for comments on the Agency's decisions to authorize the Louisiana program, and the EPA is not now reopening the decisions, nor requesting comments, on the Louisiana authorizations as published in the Federal Register notices specified in Section I.F of this document.

This document incorporates by reference Louisiana's hazardous waste statutes and regulations and clarifies which of these provisions are included in the authorized and Federally enforceable program. By codifying Louisiana's authorized program and by amending the Code of Federal Regulations, the public will be more easily able to discern the status of Federally approved requirements of the Louisiana hazardous waste management program.

The EPA is incorporating by reference the Louisiana authorized hazardous waste management program in subpart T of 40 CFR part 272. Section 272.951 incorporates by reference Louisiana's authorized hazardous waste statutes and regulations. Section 272.951 also references the statutory provisions (including procedural and enforcement provisions) which provide the legal basis for the State's implementation of the hazardous waste management program, the Memorandum of Agreement, the Attorney General's Statements and the Program Description, which are approved as part of the hazardous waste management program under Subtitle C of RCRA.

The EPA retains its authority under statutory provisions, including but not limited to, RCRA sections 3007, 3008, 3013 and 7003, and other applicable statutory and regulatory provisions to undertake inspections and enforcement actions and to issue orders in authorized States. With respect to these actions, the EPA will rely on Federal sanctions, Federal inspection authorities, and Federal procedures rather than any authorized State analogues to these provisions. Therefore, the EPA is not incorporating by reference such particular, approved Louisiana procedural and enforcement authorities. Section 272.951(c)(2) of 40 CFR lists the statutory provisions which provide the legal basis for the State's implementation of the hazardous waste management program, as well as those procedural and enforcement authorities that are part of the State's approved program, but these are not incorporated by reference.

The public needs to be aware that some provisions of Louisiana's hazardous waste management program are not part of the Federally authorized State program. These non-authorized provisions include:

(1) Provisions that are not part of the RCRA subtitle C program because they are “broader in scope” than RCRA subtitle C (see 40 CFR 271.1(i));

(2) Federal rules adopted by Louisiana but for which the State is not authorized;

(3) Unauthorized amendments to authorized State provisions; and

(4) Other new unauthorized State requirements.

State provisions that are “broader in scope” than the Federal program are not part of the RCRA authorized program and the EPA will not enforce them. Therefore, they are not incorporated by reference in 40 CFR part 272. For reference and clarity, 40 CFR 272.951(c)(3) lists the Louisiana regulatory provisions which are “broader in scope” than the Federal program and which are not part of the authorized program being incorporated by reference. “Broader in scope” provisions cannot be enforced by the EPA; the State, however, may enforce such provisions under State law.

Additionally, Louisiana's hazardous waste regulations include amendments which have not been authorized by the EPA. Since the EPA cannot enforce a State's requirements which have not been reviewed and authorized in accordance with RCRA section 3006 and 40 CFR part 271, it is important to be precise in delineating the scope of a State's authorized hazardous waste program. Regulatory provisions that have not been authorized by the EPA include amendments to previously authorized State regulations as well as certain Federal rules and new State requirements.

Federal rules Louisiana has adopted but is not authorized for include those published in the Federal Register on August 8, 1986 (51 FR 28664); December 1, 1987 (52 FR 45788); and April 12, 1996 (61 FR 16290). In those instances where Louisiana has made unauthorized amendments to previously authorized sections of State code, the EPA is identifying in 40 CFR 272.951(c)(4) any regulations which, while adopted by the State and incorporated by reference, include language not authorized by the EPA. Those unauthorized portions of the State regulations are not Federally enforceable. Thus, notwithstanding the language in Louisiana hazardous waste regulations incorporated by reference at 40 CFR 272.951(c)(1), the EPA will only enforce those portions of the State regulations that are actually authorized by the EPA. For the convenience of the regulated community, the actual State regulatory text authorized by the EPA for the citations listed at 272.951(c)(4) (i.e., without the unauthorized amendments) is compiled as a separate document, Addendum to the EPA Approved Louisiana Regulatory Requirements Applicable to the Hazardous Waste Management Program, August 2011. This document is available from EPA Region 6, Sixth Floor, 1445 Ross Avenue, Dallas, Texas 75202-2733, Phone number: (214) 665-8533, and also Louisiana Department of Environmental Quality, 602 N. Fifth Street, Baton Rouge, Louisiana 70884-2178, phone number (225) 219-3559.

State regulations that are not incorporated by reference in this rule at 40 CFR 272.951(c)(1), or that are not listed in 40 CFR 272.951(c)(2) (“legal basis for the State's implementation of the hazardous waste management program”), 40 CFR 272.951(c)(3) (“broader in scope”) or 40 CFR 272.951(c)(4) (“unauthorized state amendments”), are considered new unauthorized State requirements. These requirements are not Federally enforceable.

With respect to any requirement pursuant to the Hazardous and Solid Waste Amendments of 1984 (HSWA) for which the State has not yet been authorized, the EPA will continue to enforce the Federal HSWA standards until the State is authorized for these provisions.

The EPA is not amending 40 CFR part 272 to include HSWA requirements and prohibitions that are implemented by the EPA. Section 3006(g) of RCRA provides that any HSWA requirement or prohibition (including implementing regulations) takes effect in authorized and not authorized States at the same time. A HSWA requirement or prohibition supersedes any less stringent or inconsistent State provision which may have been previously authorized by the EPA (50 FR 28702, July 15, 1985). The EPA has the authority to implement HSWA requirements in all States, including authorized States, until the States become authorized for such requirement or prohibition. Authorized States are required to revise their programs to adopt the HSWA requirements and prohibitions, and then to seek authorization for those revisions pursuant to 40 CFR part 271.

Instead of amending the 40 CFR part 272 every time a new HSWA provision takes effect under the authority of RCRA section 3006(g), the EPA will wait until the State receives authorization for its analog to the new HSWA provision before amending the State's 40 CFR part 272 incorporation by reference. Until then, persons wanting to know whether a HSWA requirement or prohibition is in effect should refer to 40 CFR 271.1(j), as amended, which lists each such provision.

Some existing State requirements may be similar to the HSWA requirement implemented by the EPA. However, until the EPA authorizes those State requirements, the EPA can only enforce the HSWA requirements and not the State analogs. The EPA will not codify those State requirements until the State receives authorization for those requirements.

The Office of Management and Budget (OMB) has exempted this action from the requirements of Executive Order 12866 (58 FR 51735, October 4, 1993), and therefore this action is not subject to review by OMB. This rule incorporates by reference Louisiana's authorized hazardous waste management regulations and imposes no additional requirements beyond those imposed by State law. Accordingly, I certify that this action will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule merely incorporates by reference certain existing State hazardous waste management program requirements which the EPA already approved under 40 CFR part 271, and with which regulated entities must already comply, 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 action 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 (64 FR 43255, August 10, 1999), because it merely incorporates by reference existing authorized State hazardous waste management program requirements without altering the relationship or the distribution of power and responsibilities established by RCRA. This action also does not have Tribal implications within the meaning of Executive Order 13175 (65 FR 67249, November 6, 2000).

This action also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant and it does not make decisions based on environmental health or safety risks. 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.

The requirements being codified are the result of Louisiana's voluntary participation in the EPA's State program authorization process under RCRA Subtitle C. 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. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, the EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. The EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. 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 amended by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The EPA will submit a report containing this document 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 in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2). This action will be effective September 11, 2012.

For the reasons set forth in the preamble, under the authority at 42 U.S.C. 6912(a), 6926, and 6974(b), EPA is granting final authorization under part 271 to the State of Louisiana for revisions to its hazardous waste program under the Resource Conservation and Recovery Act and is amending 40 CFR part 272 as follows.

Here are the contents of today's preamble.

Entities that would be affected by this final rule are those organizations and facilities subject to section 312 of the Emergency Planning and Community Right-to-Know Act (EPCRA) and its implementing regulations found in 40 CFR part 370. To determine whether your facility is affected by this action, you should carefully examine the applicability provisions at 40 CFR part 370. If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding FOR FURTHER INFORMATION CONTACT section.

This final rule is being issued under the Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA), which was enacted as Title III of the Superfund Amendments and Reauthorization Act of 1986 (Pub. L. 99-499), (SARA). The Agency also relies on EPCRA section 328 for general rulemaking authority, as well as CAA section 112(r).

Title III of SARA (EPCRA) establishes authorities for emergency planning and preparedness, emergency release notification reporting, community right-to-know reporting, and toxic chemical release reporting. It is intended to encourage State and local planning and preparedness for releases of extremely hazardous substances (EHSs) and to provide the public, local governments, fire departments, and other emergency response officials with information concerning potential chemical hazards and risks present in their communities. The implementing regulations for emergency planning, emergency release notification, and the chemicals subject to these regulations are codified in 40 CFR part 355. The implementing regulations for community right-to-know reporting (or hazardous chemical reporting) are codified in 40 CFR part 370.

Under the emergency planning provisions of EPCRA section 302, codified in 40 CFR part 355, a facility is required to provide a one-time notification to the State Emergency Response Commission (SERC) and the local emergency planning committee (LEPC) if the facility has any EHSs present at the site in excess of its threshold planning quantity (TPQ). EHSs and their TPQs are listed in 40 CFR part 355, Appendix A and B. The emergency planning notification occurred approximately seven months after the law was passed for facilities that existed at that time. Any new facilities that became subject to the notification requirement after that date are required to comply as provided in 40 CFR part 355. Facilities that are currently covered by these regulations are required to report only changes occurring at the facility that may be relevant to emergency planning. LEPCs use this information obtained from facilities to develop emergency response plans, as required under EPCRA section 303. Section 303 also requires LEPCs to review these plans annually and to adjust them accordingly for changes that have occurred in their community.

On the other hand, the reporting requirements under the community right-to-know provisions of EPCRA sections 311 and 312 are on-going obligations. These requirements apply to owners and operators of facilities that are required to prepare or have available a material safety data sheet (MSDS) for a hazardous chemical defined under the Occupational Safety and Health Act (OSHA) Hazard Communication Standard (HCS). If the hazardous chemical is present at or above the reporting thresholds specified in 40 CFR part 370, the facility owner or operator is required to submit a MSDS or a list that contains the hazardous chemical under EPCRA section 311. Under EPCRA section 312, if a hazardous chemical is present at or above the reporting threshold specified in 40 CFR part 370, the facility owner or operator is required to submit an emergency and hazardous chemical inventory form (Tier I or Tier II) to the SERC, LEPC and the local fire department by March 1 annually.

As required by EPCRA section 312(g), EPA published two emergency and hazardous chemical inventory reporting forms, Tier I and Tier II. The Tier I inventory form requires facilities to report minimum information on the general types and locations of hazardous chemicals present at the facility. The Tier II inventory form requires facilities to report specific information on the amounts and locations of hazardous chemicals present at the facility. The information required under Tier I and Tier II inventory forms can be found in 40 CFR 370.41 and 370.42. Although the forms and their instructions were removed from the code of federal regulations on November 3, 2008 (73 FR 65452), these inventory forms have been and will continue to be available on the EPA Web site at www.epa.gov/emergencies.

EPCRA section 312(a)(2) states that the owner or operator of a facility shall submit the Tier I inventory form annually by March 1 to the SERC, LEPC and the local fire department with jurisdiction over the facility. However, section 312(e) states that, upon request by their SERC, LEPC or the fire department with jurisdiction over the facility, the owner or operator of a facility shall submit the Tier II inventory form. Currently, all states require facilities to submit the federal Tier II inventory form or the state equivalent to the Tier II inventory reporting form. The Tier I inventory form is no longer accepted by any State.

In addition to the information obtained under EPCRA section 302, LEPCs use the information provided on the facility's annual Tier II inventory form to update the emergency response plan for their community. States were always given the flexibility to implement EPCRA, as appropriate, for their community to meet the goals of EPCRA, which is to prepare for and respond to releases of EHSs and to provide the public with information on potential chemical risks in their communities. This flexibility includes adding more chemicals, setting lower reporting thresholds and creating a reporting form or format that includes more information than the federal reporting requirements. Some States developed their own inventory reporting form, including electronic reporting and certification. Other States use the federal Tier II form or Tier 2 Submit, the electronic reporting software developed by EPA.

Although EPCRA lacks an explicit reference to Indian tribes or to the implementation of EPCRA on Indian lands, EPA published a final rule on July 26, 1990 (55 FR 30632) to designate Indian Tribes as the implementing authority for Title III on all lands within “Indian Country.” Accordingly, the chief executive officer of the Tribe is responsible for the functions of the State governor under EPCRA section 301, including the appointment of an emergency response commission for the Tribe. This tribal commission is responsible for carrying out the duties of the SERC, including designation of local emergency planning districts and the appointment of an emergency planning committee for each district. The district emergency planning committee will carry out the same functions as a LEPC in the local emergency planning districts designated by a SERC. Also, for facilities located within Indian country, the fire department run by the Tribe will be the fire department designated to receive section 311 and 312 reports. Any tribe may enter into a cooperative agreement with the state(s) within which its lands are located to allow the State to carry out EPCRA statutory requirements. Indian tribes may also enter into cooperative agreements with each other to achieve a workable EPCRA program.

As required under EPCRA section 312(g), EPA published the Tier I and Tier II inventory forms, which were revised in July 1990. EPA then published a proposed rule on June 8, 1998 (63 FR 31268) to streamline the EPCRA reporting requirements for facilities and to provide flexibility to state and local agencies to implement EPCRA as needed for their community. During the comment period of the 1998 rule, several state and local agencies suggested that EPA add some additional data elements to the Tier I and Tier II inventory forms which would improve emergency planning and response.

EPA also received suggestions from members of the National Association of SARA Title III Program Officials (NASTTPO) on improving the Tier II inventory form. NASTTPO members include SERCs, Tribal Emergency Response Commissions (TERCs), LEPCs and other emergency management and response officials. NASTTPO holds meetings twice a year at which EPA participates and provides regulatory and policy updates on EPCRA and other preparedness and prevention activities. During these meetings, these officials raised concern about the lack of certain information on the Tier II inventory form which hinders effective emergency planning and response. Some of the states already require some of this information on their state equivalent Tier II inventory form, but other states that use the federal Tier II inventory form requested that EPA include these data elements.

Based on these comments and requests, EPA proposed on August 8, 2011 (76 FR 48093) to add some new data elements to the facility identification and contact information sections of the Tier I and Tier II inventory forms, as well as to revise some existing data elements to the chemical reporting section of the Tier II inventory form. The comment period closed on October 7, 2011. EPA received 28 comments. 1

This final rule revises the Tier I and Tier II inventory forms by adding some mandatory data elements and some optional data elements in the facility identification and contact information sections of both forms. 2 This final rule is also revising some existing data elements in the chemical reporting section of the Tier II inventory form. Specifically:

• EPA proposed to add the facility phone number, latitude and longitude, number of full-time employees, and the facility identification numbers assigned under the toxic release inventory (TRI) program and the risk management program. This final rule is requiring facilities to report the latitude and longitude and the identification numbers assigned under TRI and the risk management program. Also, the Tier I and II inventory forms will require facilities to indicate if the location where the hazardous chemicals are stored is manned or unmanned. In addition, instead of requiring facilities to report the number of full-time employees, EPA is requiring facilities to report the maximum number of occupants that may be present at the facility at any one time. Finally, EPA decided not to require the facility phone number on the Tier I and Tier II inventory forms, but will include it as an optional data element on the revised inventory forms.

• EPA proposed to add contact information for the facility's parent company, facility emergency coordinator and contact information for the contents of the Tier I and Tier II inventory forms. In addition, EPA proposed to add the email addresses for the owner or operator of the facility and the emergency contact(s). This final rule is requiring facilities to provide contact information for the facility emergency coordinator, Tier I and Tier II contact information, as well as the email addresses of the owner or operator and emergency contact(s). In addition, facilities are required to provide facility emergency coordinator contact information for facilities subject to EPCRA section 302. However, after reviewing the comments, EPA decided not to require the parent company contact information on the Tier I and Tier II forms, but will include it as an optional data element on the revised inventory forms.

• This final rule is adding data elements to indicate if the facility is subject to EPCRA section 302 and if the facility is subject to Clean Air Act (CAA) section 112(r), also known as the Risk Management Program. Page one of the revised Tier II inventory form would also include the table of range codes and amounts for reporting maximum amount and average daily amount. 3

• This final rule is adding separate data fields for reporting pure chemical and mixtures in the chemical reporting section of the Tier II inventory form, as proposed. In addition, this final rule requires facilities to provide a description for the storage types and conditions rather than reporting codes, as proposed.

• Finally, as suggested by some commenters, this final rule revises the Tier II inventory form for facilities to report any additional State or local reporting requirements or to voluntarily report hazardous chemicals below the reporting thresholds.

EPA received comments from various organizations, including industry, NASTTPO, as well as other state and local agencies. This section provides a summary of major comments received and EPA's responses, as well as EPA's final decision on the data elements proposed. A detailed summary of the comments and EPA's responses are in the Response to Comments document, a copy of which is in the docket for this rulemaking.

State and local agencies, members of NASTTPO, and a number of industry representatives supported most of the changes proposed to the Tier I and Tier II inventory forms. One commenter from industry stated that the proposed changes are valuable to emergency responders, but not overly burdensome to the regulated community. This commenter also applauded EPA's effort to simplify and align the Tier I and Tier II inventory forms to stakeholder input. Some commenters from industry also provided suggestions for finalizing some of the data elements. Members of NASTTPO stated that they are in favor of the proposed changes since the new data elements will provide valuable information to communities, emergency planners, emergency responders and LEPCs. These officials also stated that the burden associated with these changes appears to be trivial, and, in fact, making these changes will reduce the burden on facilities and LEPCs in collecting information.

EPA's Response: EPA agrees with these comments.

As stated earlier in this preamble, the comments and suggestions received were for the Tier II inventory form since the Tier I inventory form is no longer accepted by any State. EPA received a few suggestions for finalizing some of the data elements on the Tier II inventory form.

One commenter stated that the current form contains a check box for optional reporting. However, the proposed revision does not include this check box. The optional reporting check box allows a facility to inform emergency response agencies of chemicals which are on site, yet are below the applicable reporting threshold. The commenter further stated that their facility has utilized this check box on multiple submissions and that is their company's policy—that is, to mitigate exposing a first responder to an uninformed chemical risk. The commenter, therefore, requested that EPA keep the optional reporting check box to the Tier II inventory form.

Another commenter stated that if the Agency concludes to add new data elements to the Tier II inventory form, the Agency should allow a minimum of one full reporting cycle before requiring the new information to allow sufficient time for entities to make necessary changes to any internal databases and to gather the information required.

EPA's Response: The optional box located on the right hand side of the storage codes and locations column on the Tier II inventory form is for facilities to indicate if the information on a specific hazardous chemical is identical to that submitted last year. The form did not include an optional box to indicate if chemicals reported on-site are below the applicable reporting threshold as stated by the commenter. For facilities that wish to provide information voluntarily on hazardous chemicals below the reporting thresholds or to provide additional state or local requirements, the Agency is adding data fields in the chemical reporting section of the revised Tier II inventory form. However, facilities will not be required to fill in these data fields, but it is being provided if facilities voluntarily want to include this information. The revised Tier II inventory form also will continue to provide the optional box for facilities to indicate if the information is identical to the information submitted last year.

The Agency also agrees with the commenter that regulated facilities need sufficient time to comply with any new requirements to the Tier II inventory form. State and local agencies also requested sufficient time to modify the State reporting format. Therefore, the Agency has decided to require facilities to comply with the new requirements on the Tier II inventory form starting reporting year 2013, which is due by or on March 1, 2014 to the SERC, LEPC and the fire department with jurisdiction over the facility. Your State may have more stringent requirements for reporting and for submission of the Tier II inventory form or the State reporting form or format. EPA suggests facilities contact their State for reporting requirements for that State.

One commenter stated that some aspects of the proposed rule would exceed EPA's statutory authority under EPCRA sections 311 and 312 and create unnecessary burden. Another commenter stated that the Agency's proposed rule impermissibly blurs the legal distinctions between EPCRA section 302, EPCRA sections 311 and 312, and CAA section 112(r).

EPA's Response: The Agency disagrees with these comments. That is, adding the two check boxes for a facility to indicate whether it is subject to EPCRA section 302 or CAA section 112(r) is reasonable, authorized under EPCRA sections 302 and 328, as well as CAA section 112(r), and consistent with the purpose of EPCRA. As mentioned earlier in this preamble, LEPCs use the information reported on the Tier II inventory form to develop or update their emergency plan. If LEPCs could obtain this information annually, they would be able to include these facilities in their emergency plan. A basic tenet of EPCRA is to provide emergency response officials with sufficient information to carry out their duties, and the Agency believes that these two additional data elements will help such officials maintain the most effective and up-to-date emergency plans. Congress clearly remarked on the need for reporting when it adopted EPCRA:

The emergency planning notification requirement under EPCRA section 302 for EHSs present on-site is a one-time notification which was required for facilities in existence in 1987. Any facilities that became subject to this requirement after that date have been required to provide notification to the SERC and LEPC within 60 days (section 302(c)). Some facilities may not have been aware of this requirement, and therefore, providing continued awareness of this requirement would help emergency response planners.

Because of the one-time notification under EPCRA section 302, LEPCs currently depend on the information reported on the Tier II inventory form to develop or update emergency response plans or better coordinate the response plans between the facility and the community. Although section 303(d)(3) gives LEPCs the authority to request any information necessary to develop or implement their emergency response plans, these entities may not have enough resources to contact every facility in their community annually to update their plan. The new data element requesting if a facility is subject to the emergency planning notification under section 302 would alert LEPCs of the need to include facilities that are not included in their existing emergency response plan. Otherwise, LEPCs would need to contact each facility in their community annually, to update their plan as stated in EPCRA section 303(a).

Since LEPCs have limited resources (and the burden on the regulated community in providing this information on the Tier II inventory form is minimal), EPA believes that the LEPCs resources would be better spent in developing or updating the emergency response plans, rather than to contact each facility to determine if these facilities should be included in the community emergency response plan. Therefore, EPA believes that this data element should be included on the Tier II inventory form.

EPA also believes that the data element requesting if a facility is subject to the chemical accident prevention provisions under CAA section 112(r), also known as the Risk Management Program, is necessary. Some of the facilities regulated under EPCRA sections 311 and 312 are also subject to the provisions under CAA section 112(r), codified in 40 CFR part 68. All facilities regulated under CAA section 112(r) are required to coordinate their emergency response actions with the local emergency planning and response organizations (40 CFR 68.12). Some of these facilities are required to develop and implement an emergency response program for their facilities, which includes developing a plan for their employees to respond to any emergency at their facilities. These facilities are also required to coordinate their emergency response plan with the community emergency response plan developed under EPCRA section 303. This requirement would assist in ensuring that the facility and community planning efforts are coordinated, which will improve both plans, thereby facilitating effective response actions when releases occur. It is important for LEPCs, who are responsible for developing and implementing the emergency response plan for their community, to know which facilities have their own response program to respond to their emergencies or if LEPCs have to take additional measures to respond to any accidental releases.

These two data elements would provide LEPCs with the information they need to effectively plan or respond to emergencies without using any additional resources to survey each facility in their community as to whether they are subject to CAA section 112(r) or EPCRA section 302. Rather, they would use the information reported on the Tier II inventory form to contact these facilities for any additional information necessary to develop or update their emergency response plan required under EPCRA section 303(d)(3).

As already noted, EPA had proposed to add new data elements to the Tier I and Tier II inventory forms. That is, in addition to the information currently required on the Tier I and Tier II inventory forms under the facility identification section, EPA proposed to add a few additional data elements that would provide more complete information on the facilities to the public and to the State and local agencies responsible for emergency planning and response. Specifically, EPA proposed to add the following data elements to the facility identification section of the Tier I and Tier II inventory forms: Facility phone number, latitude and longitude, number of full-time employees, and facility ID numbers provided under the TRI and the Risk Management Program, as well as to indicate if the facility is subject to EPCRA section 302 or CAA section 112(r). In addition to proposing the number of full-time employees, EPA requested comments on whether the form should require the number of occupants instead of the number of full-time employees.

In the facility contact information section of the Tier I and Tier II inventory forms, EPA proposed to add contact information for the facility's parent company, facility emergency coordinator, and for the person responsible for completing the information on the Tier I and Tier II inventory forms. In addition, although the forms already require owner or operator and emergency contact information, EPA proposed to add email addresses of these individuals.

For the chemical reporting section of the Tier I and Tier II inventory forms, EPA proposed to revise the range codes and the ranges (in pounds) for reporting maximum amount and average daily amount.

EPA also proposed to revise some existing data elements on the Tier II inventory form to include separate data fields for reporting pure chemicals and mixtures. Instead of reporting a code for storage types and conditions, EPA also proposed to delete the codes from the instructions to the Tier II inventory form and instead require facilities to provide a description for various types of storage and conditions.

EPA received comments from industry, NASTTPO and State and local agencies. EPA received support for most of the data elements from various organizations. While some commenters from industry opposed some of the data elements, at the same time, they offered suggestions for finalizing them. With respect to comments from members of NASTTPO, they strongly supported the addition of these data elements since these agencies are responsible for emergency planning and response and they will be using the information reported on the Tier II inventory forms. These state and local officials stated that since the Tier II inventory forms have become the default emergency planning information collection device used by most communities and LEPCs, the additional changes proposed are excellent and will be very useful in emergency planning. Some commenters stated that the Tier2 Submit software is already collecting most of the information that EPA has proposed. 5

The following is a discussion of comments on the specific data elements and EPA's responses and final decision.

Comment: EPA received one comment opposing the addition of latitude and longitude, but the same commenter made suggestions for finalizing these data elements. In particular, the commenter argued that EPA proposed to add these data elements to the Tier I and Tier II inventory forms without articulating a rationale for doing so. The commenter also stated that the Tier II inventory form has long been used without this information, so it is unclear why EPA is requiring such information in addition to a street address of the facility. However, the same commenter stated that it is reasonable to require this information from facilities that do not have a proper street address, for which latitude and longitude are necessary to locate the facility.

EPA's Response: Since promulgation of the final rule published on October 15, 1987 (52 FR 38344), the instructions to the Tier I and Tier II inventory forms suggested that facilities that do not have a street address to report other identifiers, such as the latitude and longitude to describe the physical location of the facility. State and local agencies have informed EPA that they often get some Tier II inventory forms with P.O. Box address or the address of the corporate office instead of the actual location of the facility. These agencies also informed EPA that some of the locations where hazardous chemicals are stored are unmanned or in rural areas. During an emergency, accurate information about the location of the facility is important to emergency responders so that these officials can respond in a timely manner and exercise evacuation and/or shelter-in place procedures. Latitude and longitude are also important for developing emergency response plans.

As stated by the members of NASTTPO, Tier II inventory forms have become the default emergency planning information collection device used by most communities. Therefore, EPA believes that this information is important for emergency planning and response and is being added to the Tier I and Tier II inventory forms.

In the proposed rule, EPA proposed to require that facilities report the number of full-time employees, but also requested comment on whether to require the number of occupants (as opposed to the number of full-time employees) on the Tier I and Tier II inventory forms. EPA received several comments opposing the addition of number of full-time employees, but offered some suggestions for number of occupants.

Comment: Commenters from the retail industry stated that they have part-time and full-time employees, as well as employees that work on weekends, holidays etc. Commenters from the utility and telecommunication industry stated that their substations or cell towers may be unmanned. Thus, these commenters stated that the number of full-time employees does not accurately represent the number of people that may be occupied at a facility at any given time since some facilities may be manned or unmanned, and may include full-time and part-time employees. Many of the facilities may also have contractors or vendors present on-site. Other commenters argued that requiring the number of full-time employees on the Tier II inventory form is not authorized by EPCRA sections 311 and 312 and that EPA has not explained its basis for collecting this information on the Tier II inventory form.

EPA's Response: EPA recognizes the commenters concerns on the Agency's proposal to require the number of full-time employees to be reported on the Tier I and Tier II inventory forms. The Agency proposed this data element so that LEPCs and other emergency response officials would get an idea of how many persons may be present at a facility at any one time for planning and response. EPA now realizes that the number of full-time employees at a facility may not benefit local emergency response or planning officials since it does not represent the number of people on-site at any time during an emergency. Nevertheless, it is important for emergency responders to know how many people may be present at a facility at any one time in order to respond during an emergency situation.

Therefore, the Agency is requiring facilities to estimate the maximum number of people that may be present at the facility at any one time rather than reporting number of full-time employees. LEPCs would be able to use this information to plan for evacuation or shelter-in place as they develop or update their emergency plan. (See next section for further discussion of this issue.)

Comment: One commenter stated that requiring facilities to list the number of occupants at a facility would be extremely problematic as the number of occupants may change on a daily basis. This requirement would be overly burdensome and may actually hinder emergency response efforts since this information would provide an inaccurate picture of the number of occupants in the facility on any given day.

EPA's Response: The Agency disagrees that requiring facilities to list the number of occupants would be problematic or burdensome. To plan for proper evacuation or shelter-in place, it is important for LEPCs and other emergency responders to have this information. Facilities, such as convention centers, theaters, stadium or other large gathering places would already know the maximum number of occupants that may be present at any one time. If such facilities are required to comply with section 312, they would be able to provide this information on their Tier II inventory form without any added burden.

Other facilities subject to EPCRA section 312 would need to estimate the maximum number of people that may be present at any one time, including employees, contractors, vendors etc. Facilities should also include persons that may be present for training or other events that facilities may host so that LEPCs and emergency response officials may be better prepared. In addition, if facilities submit a site plan with their inventory form, it would be helpful for state and local agencies (but not required) if facilities identify the buildings or locations where large numbers of people may gather for training or other events.

Therefore, EPA is adding the data element requiring facilities to estimate the maximum number of occupants that may be present at a facility at any given time rather than requiring facilities to report the number of full-time employees at a facility.

Comment: Another commenter requested that EPA clarify that if a building or complex is occupied by more than one entity, the Agency should only require reporting with regard to that portion of the building or complex that the reporting party controls, since there are many instances where a business occupies only a portion of a building and does not have access to or control over other portions of a building to provide the total number of employees or occupants. The Tier II submitter would be able to respond only regarding its own employees or occupants not all those that might be working in the building.

EPA's Response: The requirements of EPCRA sections 311 and 312 and its implementing regulations (40 CFR part 370) apply to the owner or operator of a facility that must prepare or have available a MSDS for each “hazardous chemical” as required by the Occupational Safety and Health Act (OSHA) of 1970.

The term “facility” is defined in EPCRA section 329 as “ all buildings, equipment, structures, and other stationary items which are located on a single site or on contiguous or adjacent sites and which are owned or operated by the same person (or by any person which controls, is controlled by, or under common control with, such person). ”

Although a building may be occupied by more than one tenant, each tenant may only be required to have an MSDS for the hazardous chemicals that are in its site. Therefore, the tenant is only required to report information related to its site, including the number of occupants and other information required on the Tier II inventory form.

In addition to the mailing address of the facility currently required on the Tier I and Tier II inventory forms, EPA proposed to require that the facility's phone number be provided on the Tier I and Tier II inventory forms. A number of commenters opposed adding this data element.

Comment: One commenter argued that facilities only subject to EPCRA sections 311 and 312 should not be required to provide a telephone number of the facility or the data field should be marked “optional” since certain locations, such as a cell tower with a hut at its base with back-up power equipment may not be staffed at all times or may not be equipped with a telephone. Another commenter stated that the Agency should clarify what is meant by the data element “facility phone number” since manned facilities may have many phone numbers.

EPA's Response: EPA recognizes that some locations, such as a cell tower where hazardous chemicals may be stored could be unstaffed and therefore may not have a telephone number for that site. In addition, the Tier I and Tier II inventory forms already require the phone numbers of the owner or operator of the facility and emergency contacts, which should be sufficient to LEPCs and other officials to get in touch with the appropriate person(s) at a facility. For these reasons, EPA agrees with the commenter and is adding this data element as an “optional” element. For facilities that may want to provide the facility phone number, EPA suggests facilities provide the phone number for the main switchboard operator or any other number that State and local agencies or the public may want to use to obtain general information about the facility.

To assist LEPCs to better coordinate their emergency plan and response procedures, EPA proposed data elements to indicate if the facility is subject to emergency planning notification under EPCRA section 302 or the provisions under CAA section 112(r), also known as the Risk Management Program.

Comment: One commenter stated that EPCRA sections 311 and 312 do not authorize requiring a facility to report whether it is subject to EPCRA section 302 or CAA section 112(r). The same commenter argued that if the Agency has such legal authority, we would not object to this proposed new data element, so long as the form makes unavoidably clear on its face which data elements are required only from a facility subject to one of those provisions.

EPA's Response: The Agency understands that not all facilities subject to EPCRA section 312 would also be subject to EPCRA section 302 and CAA section 112(r). As stated by members of NASTTPO, Tier II inventory forms have become the default for information used by LEPCs for emergency planning. Since facilities subject to EPCRA section 302 and CAA section 112(r) are required to participate or coordinate emergency planning and response, as explained in section III.C of this action, it is important for LEPCs to know which facilities are subject to the requirements under these two programs so LEPCs can obtain the additional information necessary for developing or updating their emergency plan annually. Thus, consistent with the Agency's response in section III.C of this Final Rule above, the Agency is adding these data elements to the Tier I and Tier II inventory forms. Facilities may check the “yes” box to indicate the facility is subject to these provisions or “no” if the facility is not.

Comment: Members of NASTTPO supported this data element stating that of all the proposed changes, this one addresses the most critical concern. Continued awareness of facilities' EPCRA section 302 reporting obligation is necessary to ensure better coordination and planning.

Two commenters opposed this proposed data element. One commenter stated that it is not necessary to expand the Tier II inventory form to include the two proposed additional questions regarding whether the facility is subject to EPCRA section 302 and CAA section 112(r). The other commenter stated that the regulated community is already aware of the requirements under EPCRA section 302.

EPA's Response: We disagree with those commenters who opposed including these data elements on the Tier II inventory form. EPCRA section 302 is a one-time notification requirement that occurred in 1987 for facilities that were in existence at that time. Any facilities that became subject to this requirement since that time should have provided notification to the SERC and LEPC within 60 days. While EPA understands the regulated community may be aware of this reporting requirement and that most facilities may have provided this notification, nevertheless, it was a one-time notification, and facilities may have overlooked their reporting obligation under EPCRA section 303(d)(2), which is to notify LEPCs of any changes that may have occurred after the initial notification, which may include, but not be limited to, changes in facility personnel designated as emergency coordinator, emergency contacts, as well as other changes at the facility. Some facilities may not even be aware of this requirement. Requesting this information on the Tier II inventory form annually would alert facilities of this reporting obligation. If LEPCs obtain this information annually from all facilities required to comply under sections 302 and 303, it would ensure that all facilities are included in the emergency plan, which LEPCs are required to update annually.

Comment: Members of NASTTPO supported this requirement, but suggested that EPA inform facilities that submitting a Tier II inventory form does not itself constitute compliance with the requirement under CAA section 112(r) to coordinate emergency response with LEPCs and local response agencies.

EPA's Response: The Agency agrees that submitting a Tier II inventory form indicating that the facility is subject to the provisions under CAA section 112(r) does not itself replace the requirement for facilities to coordinate emergency response actions with LEPCs. Facilities covered by CAA section 112(r) requirements must coordinate their emergency response program with their LEPCs, as discussed below, and as required by 40 CFR 68.12. Just submitting a Tier II inventory form would not substitute the requirement under 40 CFR 68.12.

As stated in section III.C of this action, some of the facilities regulated under EPCRA sections 311 and 312 are also subject to the chemical accident prevention provisions under CAA section 112(r), also known as the Risk Management Program codified in 40 CFR part 68. All facilities regulated under CAA section 112(r) are required to coordinate their emergency response actions with the local emergency planning and response organizations (40 CFR 68.12). Some of these facilities are required to develop and implement an emergency response program for their facilities, which includes developing a plan for their employees to respond to any emergency at their facility. These facilities are also required to coordinate their emergency response plan with the community emergency response plan developed under EPCRA section 303. This requirement would ensure that the facility and community planning efforts are coordinated, which will improve both plans, thereby facilitating effective response actions when releases occur.

For the reasons stated, EPA is adding these two data elements to the Tier I and Tier II inventory forms.

EPA requested comments as to whether facilities should provide the identification numbers assigned under the TRI and Risk Management Program.

Comment: One commenter stated that the addition of these data elements provide very little information to emergency responders, although it is not too much burden on facilities. The commenter also stated that the TRI report is a release inventory, not information on specific chemicals present on-site, so it would be difficult for an emergency responder to match specific chemicals reported under the TRI program with those reported on the Tier II inventory form. Another commenter stated that if EPA determines that it is necessary to add this data element, the regulated community would prefer to report the identification number assigned under the Risk Management Program.

Three commenters opposed adding these identification numbers to the Tier II inventory form stating that these data elements are already available to the public since they are already collected under these two programs.

EPA's Response: EPA receives reports submitted under CAA section 112(r) (also known as the Risk Management Program) and information submitted under the TRI program. However, the Agency does not receive the Tier II inventory form filed under EPCRA section 312. Therefore, the Agency would not be able to provide access to all three reports to State and local agencies so that these agencies can make them available to the public. State and local agencies that receive the Tier II inventory form requested that EPA require these two data elements so they can obtain additional information about these facilities or cross-reference information reported under these programs. These agencies informed us that some facilities are not consistent in their reports year-after-year. For example, a facility may report its name as “Smith Inc.” one year and then the following year, it may report “Smith and Sons,” or “Smith Company.” Providing the identification numbers assigned by EPA under these two programs on the Tier II inventory form would help these agencies better respond to public inquiries.

EPA also believes that State and local officials may find it helpful to compare information reported for chemicals that are listed under all three programs. For example, TRI and the Tier II inventory form require facilities to report the maximum amount of a chemical present on-site at any one time during a reporting year and the Risk Management Program requires the quantity of chemical in a process. There are some chemicals common to all three programs. Therefore, EPA is requiring facilities to provide their TRI facility identification number if the facility is subject to reporting under that program. With respect to the Risk Management Program under CAA section 112(r), some facilities regulated under EPCRA sections 311 and 312 are also subject to the provisions under CAA section 112(r), codified in 40 CFR part 68. All facilities regulated under CAA section 112(r) are required to coordinate their emergency response actions with local emergency planning and response organizations (40 CFR 68.12). Some of these facilities are required to develop and implement an emergency response program for their facilities, which includes developing a plan for their employees to respond to any emergency at their facility. These facilities are also required to coordinate their emergency response plan with the community emergency response plan developed under EPCRA section 303. This would ensure that the facility and community planning efforts are coordinated, which will improve both plans, thereby facilitating effective response actions when releases occur.

It is important for LEPCs who are responsible for developing and implementing emergency response plans for their community to know which facilities have their own response program to respond to their emergencies or if LEPCs have to take additional measures to respond to any accidental releases. The Risk Management Program identification number is vital to emergency planning and response since facilities covered under this program should be coordinating their response plan with the LEPCs. This number would better identify the facility and these agencies can then cross-reference the information reported on the Tier II inventory form and Risk Management Program. Thus, EPA is finalizing this data element as proposed.

EPA proposed to add the facility's parent company contact information to the Tier I and Tier II inventory forms. 6

Comment: Members of NASTTPO supported EPA's proposal to include parent company contact information to the Tier II inventory form. However, nine commenters opposed EPA's proposal to require parent company contact information on the Tier I and Tier II inventory forms. Two commenters stated that the parent company corporate headquarters or subsidiary company contact is often distant both geographically and organizationally from the facility's operations and as such will likely have no knowledge about the specifics of hazardous chemical usage at a unique company location. Other commenters who also disagreed with including this data element on the Tier I and Tier II inventory forms argued that providing information on other facility personnel, such as emergency contacts and the owner or operator will be sufficient for state and local officials to obtain the information needed about hazardous chemicals at the facility.

EPA's Response: EPA recognizes the concerns raised by commenters that the parent company of some facilities may not be aware of the day-to-day operations at a particular location. EPA also realizes that some parent companies may be located outside the U.S. and therefore, the parent company contact information would not be useful for emergency planning or response. Therefore, EPA is not requiring this information to be included on the Tier I or Tier II inventory forms. However, if facilities wish to provide this information, EPA is adding parent company contact information as an “optional” data element to both forms.

EPA proposed to add the facility's parent company email address to the Tier I and Tier II inventory forms.

Comment: One commenter stated that in a large corporation, the email address of company executives or upper level management is of little value in the event of an emergency as these individuals are not able to provide the level of detail needed to assist emergency responders. The commenter suggested that the addition of the email address of the facility emergency coordinator and the addition of the name, title, email address and phone number of the person knowledgeable of the information reported on the Tier II inventory form provides the best contact information in the event of an emergency.

EPA's Response: The Agency proposed this data element assuming that corporate headquarters or parent company executives should be informed of any activities involving planning or public meetings with the community via email since it is one of the modern ways of communication. However, based on the comments received regarding parent company contact information in section III. D. 7 of this final rule, EPA is not requiring this information be included, but is adding it as an “optional” data element on both forms.

EPCRA section 303(d)(1) requires facilities subject to EPCRA section 302 emergency planning notification requirements to designate an individual to participate in the emergency planning process as the facility emergency coordinator. State and local agencies informed EPA that facilities often forget to notify them of personnel changes that occur at the facility. Therefore, EPA proposed this data element so LEPCs would obtain this information annually.

Comment: Members of NASTTPO supported this proposal stating that EPA has identified a critical gap and that the proposal is excellent. One commenter from industry stated that the facility emergency coordinator is already included on the Tier2 Submit software used in various states.

EPA's Response: EPA agrees with the commenter that the Tier2 Submit software used in various states may already include this data element since states are given the flexibility to implement the EPCRA program as needed for their community. This means that, many states have expanded their right-to-know regulations to include additional chemicals, lower reporting thresholds, and additional data elements beyond those required on the federal Tier II inventory form. Some of the states have their own electronic reporting format and others use Tier2 Submit. Every year, EPA receives requests from some states that use Tier2 Submit to add some state required data elements, which may include most or all of the data elements that were proposed. So it is possible that the states that use Tier2 Submit already require facilities to report facility emergency coordinator contact information. However, EPA proposed this data element for states that follow the federal reporting requirements. Because State and local agencies have identified the absence of this data on the Tier II inventory form as a critical gap, EPA is finalizing this provision and will require that emergency coordinator contact information be required on the Tier II inventory form.

Comment: Four commenters opposed EPA's proposal to require the contact information for the facility emergency coordinator be included on the Tier II inventory form. These commenters argued that the Tier II inventory form already requires facilities to report an emergency contact and a 24-hour emergency phone number so it is not clear why this data element is being added as another new requirement. Another commenter stated that adding the facility's emergency coordinator contact information to the Tier I and Tier II inventory forms is unnecessary since emergency planning agencies may already get in touch with the designated emergency contact. Furthermore, it was argued that EPA provides no reason as to why facilities should report the contact information for both facility emergency coordinator and an emergency contact. Again, this adds a new burden for facilities. Another commenter objects to requiring this information on the Tier II inventory form unless the form clearly shows that the information is required only for facilities subject to EPCRA section 302.

EPA's Response: EPA disagrees with these commenters. The Agency believes that it is important for LEPCs and SERCs to obtain updated information on the facility emergency coordinator annually. Under EPCRA section 303(d)(1), facilities are required to provide the name of an individual who will participate in the emergency planning process as a facility emergency coordinator. It is possible that personnel changes may occur at facilities and since this is not an annual requirement, facilities may overlook informing their LEPC of this change. In addition, providing the contact information for the facility emergency coordinator and for the emergency contact is necessary since it is possible that some facilities may designate two individuals to carry out these two functions, as opposed to designating the same person for these two positions. Thus, providing this information annually or updating the Tier II inventory form annually would ensure better coordination for emergency planning, and would not impose a significant burden on the facility given such information is readily available to the facility. EPA encourages facilities to provide facility emergency coordinator information of an individual closest to the location where hazardous chemicals are stored.

Finally, EPA realizes that only some facilities subject to the sections 311 and 312 reporting requirements may be subject to the section 302 emergency planning notification. Therefore, EPA is requiring facilities to provide the facility emergency coordinator contact information on the Tier II inventory form only if the facility is also subject to EPCRA section 302.

State and local agencies informed EPA that they often find it difficult to get in touch with the right individual for information contained on the Tier II inventory form. Therefore, EPA proposed that facilities provide contact information of the individual responsible for completing the Tier II inventory form.

Comment: One commenter stated that requiring this information would be reasonable and arguably within the implicit authority of EPCRA sections 311 and 312. Members of NASTTPO also supported this proposed data element stating that EPA has again identified a critical gap and addressed it with this proposal. However, one commenter opposed this proposed data element stating that the facility owner or operator is already required to sign the certification on the Tier II inventory form and would know how to handle LEPC inquiries.

EPA's Response: Although the owner or operator of the facility is responsible for signing the certification on the Tier II inventory form, the Agency believes the person responsible for completing the form is likely to have knowledge of the specific details on the hazardous chemicals reported on the Tier II inventory form. Tier II contact information is very important for emergency planning and response since the information reported on the Tier II inventory form is used by LEPCs for updating the emergency plan. Therefore, EPA is adding this data element, as proposed.

In addition to the information already required for the owner or operator and the emergency contact(s), EPA proposed to require facilities to also provide email addresses for these two individuals.

Comment: One commenter agrees with EPA's proposal to require an email address of the Tier II information contact. However, this commenter disagreed with EPA that facilities should also provide the email addresses for emergency contacts. The commenter stated that email is not an appropriate form of communication during an emergency situation and that in non-emergency situations, the person selected as an emergency contact may not be authorized to speak for the reporting entity.

EPA's Response: The Agency believes that any number of ways to communicate with facility personnel (i.e. phone, email, mailing address etc.) is necessary to ensure proper coordination of emergency planning and response procedures. Under EPCRA section 303, LEPCs are required to develop an emergency plan and update it annually. Among others, the plan is required to include methods and procedures to be followed by facility owners and operators, as well as local emergency and medical personnel to respond to any releases (section 303(c)(2)). Providing an email address for the owner or operator and of the emergency contact(s) would be beneficial to LEPCs to communicate via email on the methods and procedures to respond to releases. Also, LEPCs may want to inform via email the facility owners and operators in their community if the LEPCs are planning to conduct exercises or hold public meetings so facility owners and/or operators, emergency contacts and the facility emergency coordinator may participate in these activities. Sending this email to each person listed on the Tier II inventory form is appropriate since it is possible that one or two persons may not be available at the scheduled time. EPA also believes that these data elements do not pose significant regulatory burden since the burden to report may be incurred only the first year that the rule would be effective. In subsequent years, facilities may only need to update the information annually if any changes occur. Thus, EPA is adding these data elements to the Tier I and Tier II inventory forms.

The information requirements to the Tier I and Tier II inventory forms currently list range codes for reporting the maximum amount and average daily amount of hazardous chemicals present at the site in the preceding calendar year. Since sections 312 (d)(1) and (2) specifically state that an estimate in ranges for the maximum amount and average daily amount should be reported on the Tier I and II inventory forms, the regulations would still require facilities to report in ranges. However, the range codes currently listed in the regulations are very broad. Such information is not as useful as specific quantity information for effective emergency response planning. In order for the States, local agencies and emergency response officials to have information on the maximum amount and average daily amount that are closer to the actual amounts present at the facility, EPA proposed to narrow the ranges.

Comment: One commenter from industry and the members of NASTTPO supported the proposed ranges for reporting maximum amount and average daily amount. Members of NASTTPO stated that this will bring much needed clarity and eliminate a source of confusion in the completion and use of the forms. The commenter from industry stated that they do not object to narrowing the ranges for reporting maximum amount and average daily amount of hazardous chemicals since narrowing the ranges may give state and local emergency agencies a more detailed picture of the chemicals at a facility. In addition, the commenter stated that the proposed changes accomplishes the goal of the proposed rule, which is to provide useful information to emergency planning agencies with little or no added burden.

Two commenters, however, suggested that instead of revising the ranges or the range codes, EPA should require facilities to report the actual number of pounds for both maximum amount and average daily amount.

EPA's Response: As stated in the proposed rule, EPCRA section 312(d)(1) and (2) specifically states that the maximum amount and average daily amount should be reported in ranges. Since the statute requires these amounts to be reported as ranges, the Agency proposed to narrow the ranges so the amount reported would be closer to the amount present on-site. State and local agencies expressed concerns that the intervals between the current maximum and minimum values are too wide.

Comment: Three commenters opposed the proposed ranges for reporting maximum amount and average daily amount. One of the commenters stated that the Agency's reasoning for the existing range codes remains valid today and should not be changed unless new information in the record supports that the Agency's initial reasoning is now invalid. Two of the commenters also argued that consistency of chemical weight ranges among regulatory programs, TRI and the section 312 Tier II inventory form provides the regulated community, emergency responders and the public with a uniform standard of measurement. One of the commenters also argued that the existing ranges adequately balances the trade-off between the protection of confidential information and the provision of useful data.

EPA's Response: The actual amount of a hazardous chemical present at a facility is the most useful information that LEPCs could have for effective planning and for response. However, the statute specifically states that only ranges should be required on the Tier I and Tier II inventory forms. The Agency believes that the ranges proposed for reporting maximum amount and average daily amount are more useful for LEPCs than the existing ranges, which are too broad. The reporting threshold for EHSs is 500 pounds or the TPQ whichever is less. Some of the EHSs have TPQs set as low as 1, 10, 100, 500 and 1,000 pounds. Emergency planning for these chemicals are more crucial than those with higher TPQs (i.e. 10,000 pounds). EPA believes it is necessary to narrow the ranges so that LEPCs would obtain information on the amount of EHSs that have low TPQs in a range most likely closer to the actual amount present at the facility.

With respect to maintaining consistency with the TRI program, reporting under EPCRA section 313 serves a different purpose than hazardous chemical inventory reporting under EPCRA section 312, which is used for emergency planning and response. Only some of the information required under both programs is common and these would be useful to state and local agencies. However, the amount required on the TRI report is mainly for releases of toxic chemicals, whereas the amount reported on Tier II is storage of hazardous chemicals. Thus, it is not necessary or appropriate to have the same range values under both of these programs.

Facilities are required to report specific information about hazardous chemicals on the Tier II inventory form. State and local agencies informed EPA that they often get Tier II inventory forms for mixtures not consistent with their section 311 MSDS or list reporting. Thus, in response to concerns raised by stakeholders, EPA proposed to revise some existing data elements under the chemical reporting section of the Tier II inventory form.

In particular, EPA proposed separate data fields for reporting pure chemicals and mixtures to make reporting easier for facilities and for State and local agencies to obtain consistent information on chemicals reported under EPCRA sections 311 and 312. In addition, EPA proposed to delete the codes for reporting storage types and conditions from the Tier II inventory form instructions, but instead require facilities to provide an accurate description of the storage types and conditions for each hazardous chemical reported. The reason EPA proposed this change was to provide emergency responders with information readily available rather than to search for instructions to determine what each code represents.

One commenter from industry supported the proposed clarification on the reporting of mixtures. The commenter also stated that the listing of actual container types, rather than the use of codes, are positive changes that will move the program toward the ease of use for emergency responders.

EPA received requests from certain sectors of the regulated community to provide clear instructions for reporting mixtures on the Tier II inventory form. In addition, State and local agencies informed EPA that they often get Tier II inventory forms that are not consistent with the facility's MSDS or list reporting under section 311 for mixtures. On November 3, 2008 (73 FR 65452), EPA provided clarification on how to determine if a reporting threshold has been met for mixtures that contain EHSs and non-EHSs as their components. In that rule, EPA also reiterated the flexibility provided in EPCRA section 312 that facilities may either report the component or the total mixture.

EPA proposed separate data fields for reporting pure chemicals and mixtures so that the regulated community would be consistent in reporting mixtures with their section 311 reporting. The Tier II inventory form requires facilities to report the maximum amount and average daily amount, as well as the storage types and conditions. However, the Tier II inventory form prior to the proposed rule did not specify if the maximum amount or the average daily amount present on-site is referring to the component or the mixture since facilities have the option to report the component or the mixture. In order to make reporting easier for facilities and make the Tier II inventory form more user friendly, EPA proposed separate data fields for reporting pure chemicals and mixtures. If facilities are reporting a mixture by its components or the total mixture itself, separate data fields were proposed to specify the maximum amount and average daily amount for EHSs, non-EHSs, as well as the mixture itself. EPA is now finalizing these changes as proposed.

Comment: Three commenters raised questions concerning EPA's adding separate data fields for pure chemicals and mixtures. One comment requested that EPA clarify if product name, trade or other chemical information should be provided for the mixture. Another comment was concerned that the proposed reporting section for mixtures shows a data field for reporting all non-EHSs in the mixtures, which facilities are not required to do, and could be confusing for those facilities that are reporting mixtures.

EPA's Response: EPA decided to propose separate data fields for mixtures and pure chemicals since certain sectors of the regulated community requested that EPA clarify the reporting of mixtures after publication of the final rule on November 3, 2008 (73 FR 65452) in which EPA sought to clarify the reporting of mixtures, as well as other reporting requirements. The instructions to the Tier II inventory form would specify facilities to report “mixture name,” “product name” or “chemical name” as it appears on the MSDS, whether the hazardous chemical reported is pure or a mixture.

As stated in 40 CFR 370.14, facilities have the flexibility for reporting non-EHSs in mixtures, and the inclusion of the data field for non-EHSs is for the convenience of the owner or operator of the facility. However, EPA is only requiring facilities to aggregate the amount of EHSs in mixtures and in pure form and then report the EHSs in mixtures.

Comment: Two commenters suggested that EPA develop a standard reporting format to address lead-acid batteries. The commenters stated that the reporting of batteries would be consistent if the facilities report the total battery weight with a percentage EHS.

EPA's Response: EPA is not developing a standard reporting format to address lead-acid batteries at this time. However, EPA wants to suggest how facilities could report batteries on the Tier II inventory form. Although separate data fields are provided for reporting pure chemicals and mixtures, it is best for emergency responders to obtain information on hazardous chemicals consistent with a facility's MSDS reporting under section 311. Thus, if the facility has an MSDS for batteries that require reporting on the Tier II form, EPA suggests the facility report batteries in the data field marked “mixture or product name” and then report the name and the amount of the EHS present.

Prior to the proposed rule, the instructions to the Tier II inventory form specified codes for reporting storage types and conditions. State and local agencies requested that EPA remove the codes and require facilities to provide a description for the various types of storage and conditions so that in an emergency local agencies and responders won't have to search for instructions to the Tier II inventory form to find out what each code represents.

Comment: Four commenters supported, but also provided suggestions on this specific proposal. One of the commenters stated that this revised data element will ease the recordkeeping requirements for facilities, while still providing useful information for emergency planning agencies. Another commenter stated that instead of eliminating the use of storage codes, the option should be provided to use the codes and a description for the container types. The commenter stated that this would provide the reporting facility with the ability to use familiar storage codes with the option to provide more description if a code does not fully describe the container type. Another commenter requested that a pick list be provided for storage types and conditions.

EPA's Response: The Tier2 Submit software already includes a “pick list” for storage types and conditions and the option to provide a description not listed in the “pick list.” The Agency agrees with State and local agencies that at a time when an emergency is occurring, it is more appropriate for an accurate description of the various types of storage and conditions for each hazardous chemical present at a facility be described on the Tier II inventory form. The instructions to the Tier II inventory form would include some examples of common types of storage and conditions.

Comment: One commenter opposed the elimination of reporting codes for storage type and conditions. The commenter stated that the proposed elimination of codes opens these data elements for personal and possibly incorrect interpretation, whereas currently the data is standardized via the code system. Otherwise, a user must craft language naming storage types, temperature and pressure conditions that they may understand, but nonetheless may likely be differently described by another entity. The commenter also stated that the facility files over 550 annual EPCRA Tier II inventory forms and uses Tier2 Submit software as allowed by state reporting requirements. The facility is concerned that the elimination of reporting codes for storage type and temperature and pressure conditions would necessitate physical data entry for these three fields on each annual filing. Such a laborious effort is both time consuming and subject to human data entry error. The current use of reporting codes eliminates the possibility of key stroke data entry errors.

EPA's Response: The elimination of codes for storage types, as well as temperature and pressure, was requested by state and local agencies. In an emergency situation, it would be easier for these agencies and other emergency responders to have the information readily available rather than to search for instructions to the Tier II inventory form to determine what each code represents. It is not possible to list a code for every storage type or condition that maybe available. Therefore, the Agency believes it would be more accurate if the facility describes the storage type(s) and conditions for the hazardous chemicals present on-site.

The commenter mentioned that the facility files over 550 Tier II inventory reports. The federal electronic reporting format, Tier2 Submit software, includes a pick list for some of the common storage types and conditions. The instructions to the Tier II inventory form will be revised to include some examples of common storage types and conditions. Nevertheless, facilities are encouraged to report the chemical information section of the Tier II inventory form as accurately as possible for each location of the facility rather than filing one form making multiple copies of the form to represent each location. Since storage locations, amounts, as well as storage types may vary from location to location, reporting accurate information for each location is important for emergency planning and response.

EPA received several comments with suggestions on including additional data fields on the Tier II inventory form. One commenter stated that there needs to be a space on the Tier II inventory form for reporting additional LEPC or State requirements. Many LEPCs have established a lower threshold for specific chemicals presenting unique risks to those communities so there should be a convenient spot on the Tier II inventory form for this information. The commenter also stated that the right hand edge of the current form is a spot for facilities to note that they are voluntarily submitting information that would not be otherwise reported and that this portion should remain unchanged. Additionally, a commenter suggested that the Agency not adopt these changes prior to the next reporting cycle unless the Tier2 Submit software will be revised to incorporate the changes made to the Tier II inventory form.

EPA's Response: For states that use Tier2 Submit, EPA currently modifies the system annually to incorporate state-specific fields that are required under the state regulations. The optional boxes provided on the bottom of the current federal Tier I and II inventory forms are for any optional attachments that facilities may be including with their inventory form, such as the facility site plan, list of site coordinate abbreviations, description of dikes, etc. These boxes appear on the first page of the proposed Tier II inventory form and remain unchanged on the Tier I and Tier II inventory forms.

Optional boxes provided on the right hand side of the storage code and location columns of the current Tier II inventory form are for facilities to indicate if all of the information on a specific hazardous chemical is identical to that submitted last year. Prior to the proposed rule, the federal Tier II inventory form did not have an optional box to indicate if chemicals reported on-site are below the applicable reporting threshold as stated by the commenter. However, as requested by the commenter, EPA is adding data fields for facilities that wish to provide information on a voluntary basis on hazardous chemicals not required, such as those below the reporting thresholds.

As stated in section III.B. of this action, the Agency has decided to require facilities to comply with the new requirements on the Tier II inventory form starting reporting year 2013, which is due by or on March 1, 2014. Tier2 Submit will be modified accordingly.

This action is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011).

The information collection requirements in this rule have been submitted for approval to the Office of Management and Budget (OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The information collection requirements are not enforceable until OMB approves them.

The Information Collection Request (ICR) document prepared by EPA has been assigned EPA ICR number 2436.02. This action may impose only minimal reporting burden on facilities since the data elements finalized on the Tier I and Tier II inventory forms are readily available to the facility. The data elements finalized in this action are general information regarding the location of the facility and contact information for certain personnel, such as emergency contact, person responsible for the information reported on the Tier I and Tier II inventory forms, etc. State and local agencies requested that EPA add the new data elements since the additional information would be useful to develop or modify their emergency response plans. New data elements, such as the facility emergency coordinator needs to be updated annually for LEPCs to coordinate emergency plans for the community. Although facilities are required to notify LEPCs of any changes under EPCRA section 303 (d)(2), such as personnel changes for facility emergency coordinator, emergency contacts, etc, LEPCs informed EPA that some facilities overlook this reporting requirement.

As suggested by few members of the regulated community, some of the data elements added to the Tier I and Tier II inventory forms are listed as optional data elements. The burden imposed for reporting the new data elements will only occur in the first year that the rule becomes effective. In subsequent years, only changes at the facility need to be updated.

EPA also revised some data elements in the chemical reporting section of the Tier II inventory form as requested by state and local officials, as well as a few small entities to make reporting easier for facilities and make the form more user-friendly for state and local officials.

The Office of Management and Budget (OMB) has previously approved the information collection requirements contained in regulations at 40 CFR part 370, which includes information requirements for the Tier I and Tier II inventory forms, under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and has assigned OMB control number 2050-0072. EPA ICR number 1352.11. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9. Burden is defined at 5 CFR 1320.3(b).

EPA estimates that there are 390,000 facilities that may be subject to reporting the new data elements finalized in this action. EPA estimates the same unit burden for small, medium and large facilities since the time required to report the new data elements that EPA is finalizing will be the same for all facilities.

All states require facilities to submit the federal Tier II inventory form or the state developed reporting form or format equivalent to the Tier II inventory form instead of the Tier I inventory form. The new data elements that the Agency is finalizing are readily available to facilities. Thus, EPA estimates that it will take approximately 15 minutes (0.25 hours) for technical staff at each facility to record the new data elements on the Tier II inventory form. Total burden for manufacturers to report the new data elements on the Tier II inventory form is estimated to be 30,000 hours, while the total burden for non-manufacturers to report the new data elements on the Tier II inventory form is estimated to be 67,500 hours. The new data elements that EPA is finalizing may not change yearly for any facilities. Approximately 40 states require facilities to submit their inventory form electronically. For these facilities, any changes that may occur for any of the new data elements can be revised with little or no burden. Therefore, the burden associated with this ICR is not expected to incur after the initial reporting year. However, since the new data elements required on the Tier II inventory form are crucial for effective emergency planning and response, EPA assumes that facilities would take 15 minutes (0.25 hours) to review and update the information annually, if necessary.

EPA also estimates that facilities would take approximately 45 minutes (0.75 hours) to get familiar with the new reporting requirements on the Tier II inventory form. The total one-time burden for manufacturers to get familiar with the changes on the Tier II inventory form is estimated to be 90,000 hours and for non-manufacturers, the total one-time burden is estimated to be 202,500 hours. The Agency does not expect this burden to extend beyond the first effective date of the rule.

As of reporting year 2010, approximately 20 states have their own electronic reporting tool for submitting the hazardous chemical inventory. Based on the federal cost and hours to make changes to the Tier2 Submit, EPA estimates that each state would spend approximately 200 hours to add new data elements and revise the existing data elements to their existing software at a cost of $50,000. The costs include initial analysis, design, programming, alpha and beta testing, and field deployment. Data management burden for State and local agencies is not estimated in this ICR since the new data elements will be part of the inventory form that these entities currently receive annually.

The total one-time burden for facilities for rule familiarization is 292,500 hours at a cost of $15,456,375. The annual burden for facilities to report new data elements and for making revisions in subsequent years is estimated to be 97,500 hours at a cost of $5,152,125. The total burden for the 20 states that need to modify their reporting software is 4,000 hours at a cost of $1,000,000.

An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations are listed in 40 CFR part 9. When this ICR is approved by OMB, the Agency will publish a technical amendment to 40 CFR part 9 in the Federal Register to display the OMB control number for the approved information collection requirements contained in this final rule.

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

For purposes of assessing the impacts of today's final rule on small entities, a small entity is defined as: (1) A small business as defined by the Small Business Administration's (SBA) regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.

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

The additional data elements on the Tier I and Tier II inventory forms that we are finalizing in this action have been requested by State and local agencies in an effort to develop or modify their community emergency response plans. Although some small entities may be affected by this final action, the new data elements required will be reported only in the first year that the rule becomes effective. In subsequent years, only changes would need to be updated. The data elements we are revising in the chemical reporting section of the Tier II inventory form would make the forms more user-friendly, and thus, will make reporting easier for facilities, especially small businesses and will also make the forms more user-friendly for state and local officials.

This action contains no Federal mandates under the provisions of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1532-1538 for State, local, or tribal governments or the private sector. This action does not impose any new requirements on State, local or tribal governments. The data elements that we are finalizing in this action would be helpful, to State, local and tribal governments to develop or modify their community emergency response plans. In addition, the data elements revised in the chemical reporting section of the Tier II inventory form would make the form more user-friendly. State and local agencies requested EPA to add most of the data elements that EPA is finalizing in this action. Therefore, this action is not subject to the requirements of sections 202 or 205 of the UMRA.

This action is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments.

This action does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. The data elements that we are finalizing in this action would be helpful to State, local and tribal governments to develop or modify their community emergency response plans. In addition, the data elements revised in the chemical reporting section of the Tier II inventory form would make the form more user-friendly. State and local agencies requested that EPA add most of the data elements that EPA is finalizing in this action.

This rule does not impose any requirements on state or local governments. Thus, Executive Order 13132 does not apply to this action.

This action does not have tribal implications, as specified in Executive Order 13175, (65 FR 67249, November 9, 2000). The data elements that we are finalizing on the Tier I and Tier II inventory forms would be helpful for tribal governments to develop or modify their community emergency response plans. In addition, the data elements revised on the Tier II form would make the form more user-friendly. This action also does not impose any new requirements on tribal governments. Thus, Executive Order 13175 does not apply to this action.

This action is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997) because it is not economically significant as defined in Executive Order 12866 and because the Agency does not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. The additional information that we are requiring on the Tier I and Tier II inventory forms will be useful to State and local officials to assist them in preparing the community in an emergency situation.

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

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

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

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

EPA has determined that this final rule does not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. The additional information that we are requiring on the Tier I and Tier II inventory forms will be useful to State and local officials to assist them in preparing the community in an emergency situation.

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).

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

In this document, the FBI finalizes a regulation proposed on September 7, 2011 (76 FR 55332), regarding the FBI APW Seal Program. In this regulation, the FBI extends access to the APW Seal to all United States copyright holders, subject to specific conditions of use.

The FBI APW Seal is a modified image of the FBI's Official Seal with the words “FBI Anti-Piracy Warning” superimposed on it. The APW Seal was designed to graphically enhance the impact of language warning users of copyrighted media about the potential consequences of intellectual property crime, and the FBI's role in investigating such crime. It serves as a vivid and widely recognizable reminder of the FBI's authority and mission with respect to the protection of intellectual property rights.

Beginning in December 2003, the FBI implemented a pilot program in which the FBI entered into separate Memoranda of Understanding with each of five entertainment and software industry associations. Members of these associations were able to request approval to use the APW Seal from the association, and the association administered the process and record-keeping. Largely as a result of this program, the APW Seal and its anti-piracy message have reached a large segment of the public. Unfortunately, the pilot program also had the effect of excluding non-members of these five associations from being able to use the APW Seal on their works.

In order to enhance the availability, use, and effectiveness of the APW Seal on lawful, copyright-protected works, this rule establishes a regulation governing the use of the APW Seal. The image of the APW Seal will be made available on the FBI's Web site, and it may be downloaded for use on eligible works as specified in the text of the regulation below. There will be no fee associated with using the APW Seal. This regulation will be a significant improvement over the current program, which has tended to limit the use of the APW Seal and requires each user to enter into a written agreement governing the use. Once this regulation is effective, the FBI will work with the participating associations to terminate the pilot program.

All public comments were considered in preparing this final rule. Of the forty-five comments received, most expressed general agreement with the proposed rule. Twenty-four comments specifically noted the benefits of expanding the use of the APW Seal beyond the five associations participating in the pilot program. Many of these spoke favorably about eliminating the financial and administrative obstacles to use of the APW Seal under the pilot program. Four comments noted the benefits of speed and ease of access offered by the proposed on-line process for obtaining the APW Seal.

The comments received from self-identified copyright holders expressed strong support for the proposed rule. For example, two comments from organizations in the spectator sports and independent film industries highlighted the direct negative impact that copyright piracy has on each industry. These comments noted that the “perishable nature” of live sporting events and the need to justify income projections in order to secure financing for independent films leaves these industries vulnerable to the financial consequences of piracy. These comments support the FBI's belief that increased availability of the APW Seal will assist copyright holders in educating users and protecting their works from piracy.

Six comments expressed opposition to the proposed rule, noting various concerns either with the effectiveness of the APW Seal program in deterring piracy generally, or with the new direction outlined in the proposed rule. These included assertions that the APW Seal and accompanying warning do not effectively deter piracy of intellectual property and are a waste of FBI resources; that the lack of positive control over who downloads the APW Seal could lead to increased misuse of the APW Seal and undermine the effectiveness of the anti-piracy message and the FBI's reputation; and that the APW Seal program and other United States Government efforts to combat copyright piracy are merely the product of pressure from the entertainment industry.

The FBI responds to these comments with three points. First, the FBI believes that the APW Seal and accompanying warnings convey important messages to the public and are a significant component of its efforts to deter and to investigate federal crimes involving the piracy of intellectual property. Allowing use by copyright holders who are not members of industry associations will enhance those efforts. Second, although broader access may make unauthorized use more likely, this concern is overshadowed by the value of increasing public awareness of these prohibitions and the FBI's role in investigating related criminal activity. Finally, although the FBI works closely with industry groups to combat piracy, it was the volume of requests to use the APW Seal from outside the entertainment industry associations participating in the pilot program, and the costs of negotiating agreements with individual copyright holders, that in large part spurred the revisions to the program reflected by this regulation.

One comment asserted that the Anti-Counterfeiting Trade Agreement (ACTA) is unconstitutional, while expressing support for the proposed rule. The assertion regarding ACTA is not relevant to the present rulemaking, which is being promulgated pursuant to the Department's statutory and regulatory authority concerning use of the official insignia of the FBI and the United States Department of Justice.

Several comments sought clarification or suggested changes to the proposed rule. One comment suggested that the language in paragraph (e)(1) that the “APW Seal may only be used on works subject to protection as intellectual property,” is a vague standard and may lead to confusion as to whether a work must be registered with the United States Copyright Office prior to the owner using the APW Seal. Two additional comments evidenced confusion as to whether the APW Seal is available for use on unregistered works, while another comment recommended that the APW Seal be limited to “officially copyrighted” works. The FBI assumes this comment referred to “registered” works. One additional comment suggested that the references to particular United States Code sections, such as are at paragraph (e)(1), are confusing and make it difficult to determine exactly who may use the APW Seal.

The FBI intends that the APW Seal be available for use on works protected under federal criminal statutes prohibiting piracy of copyrighted material. Registration is not necessary for such protection, as provided in Title 17, United States Code, Section 408(a). The FBI revised paragraph (e)(1) to clarify that the APW Seal is available for use only on copyrighted works, as opposed to other types of intellectual property.

One comment suggested that the phrase “other applicable law” should be clarified in paragraph (d)(2). As indicated in paragraph (c), use of the APW Seal, except as authorized by this regulation, would likely violate Title 18, United States Code, Section 701, which provides criminal sanctions for unauthorized uses of approved agency insignia. Additionally, Title 18, United States Code, Section 709 prohibits certain unauthorized uses of the name and initials of the FBI that suggest FBI endorsement, approval, or authorization. This prohibition could well be implicated in an unauthorized use of the APW Seal. Because the FBI cannot predict all of the other possible circumstances of misuse and the statutes that they might implicate, the FBI believes the current wording of paragraph (d)(2) is appropriate.

One comment expressed confusion as to the purpose of paragraph (e)(4), which encourages use of copy protection and anti-circumvention techniques. Paragraph (e)(3) requires users to obtain the Seal from the FBI's public Web site so that the FBI has an opportunity to provide additional notice of the conditions of use, and other pertinent information, before the image is downloaded. Use of copy protection and anti-circumvention techniques is encouraged to help prevent unauthorized copying and use of the APW Seal by individuals who may not be aware of the limitations in this regulation.

One comment indicated confusion as to the intent and effect of paragraph (f)(2)'s prohibition on use of the APW Seal on works that cannot lawfully be distributed by United States mail. The comment suggested that this paragraph would allow the APW Seal to be used on, for example, child pornography distributed through FedEx, UPS, or other non-United States Postal Service carriers. The language used in paragraph (f)(2) was intended to prohibit use of the APW Seal on types of works, such as child pornography, that cannot lawfully be distributed in or affecting interstate commerce under federal law. The prohibition does not depend on whether the work is actually distributed, or the actual means of distribution. To more closely track the language used in the federal statutes governing such works, such as Title 18, United Sates Code, Section 2252A, the FBI has revised paragraph (f)(2) to read: “whose production, sale, public presentation, or distribution by mail or in or affecting interstate commerce would violate the laws of the United States.”

One comment suggested that paragraph (f)(4)(B) of the proposed rule is confusing, and offered alternative language. The comment stated that, as written, paragraph (f)(4)(B) “falsely suggests that a lawful user of the [APW] Seal is not entitled to protection of the law.” The FBI disagrees. This paragraph prohibits use of the APW Seal in a manner suggesting that the FBI has made a determination as to the work's eligibility for copyright protection. The APW Seal does not indicate that the FBI has made such a determination regarding the work and to indicate otherwise would be misleading. The language is sufficiently clear.

One comment recommended changing “may” to “shall” throughout the proposed rule for clarity. To reduce any ambiguity, the FBI has reviewed the regulatory language and changed “may” to “shall” and “may not” to “shall not” as appropriate. In addition, the FBI has rewritten paragraph (d)(1) as “* * * subject to the terms and conditions set forth in this section” (emphasis added) to clarify that use of the APW Seal is governed by the terms and conditions in the entire section, 41 CFR 128-1.5009, rather than only what is contained in paragraph (d). Additionally, the reference to the United States Code in paragraph (e)(1) was reformatted for consistency with paragraphs (c) and (d)(2).

Two other comments questioned how the APW Seal would help detect violations of law, as stated in paragraph (a) of the proposed rule. The FBI believes that by increasing public awareness about criminal copyright violations and the FBI's investigative role, the APW Seal may not only help deter potential violators, but may increase the likelihood that individuals with information related to such violations will report that information so it can be investigated.

One comment recommended that the FBI keep the original authorized warning language used in the pilot program, which specified the applicable fines and potential prison sentences, in lieu of the authorized warning language in the proposed rule at paragraph (e)(2)(i). Although the FBI has not changed the authorized warning language from the proposed rule to the final rule, alternative authorized warning language specifying potential fines and prison sentences will be made available on the FBI's Web site pursuant to paragraph (e)(2). This will allow the FBI to more easily update the authorized warning language if the specific penalties are changed in the applicable statutes.

One comment expressed concern that statements in the Regulatory Certifications section of the proposed rule pertaining to the Unfunded Mandates Reform Act of 1995 (UMRA), the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), and Executive Order 12866, section 3(f) asserting that the rule will have less than $100 million in economic impact were unsubstantiated by any data provided. In response, the FBI notes that, as was discussed in the notice of proposed rulemaking and above in this final rule, since December 2003 the FBI has conducted an APW Seal pilot program with five entertainment and software industry associations. Nothing that has come to the FBI's attention in the over eight years of the APW Seal pilot program suggests that this rule would have an economic impact of anywhere close to $100 million. Further, as also noted above, there will be no fee associated with using the APW Seal.

The comment also expressed concern that by designating this rule as not being a “significant” regulatory action the Department made a determination on a budgetary or economic issue in a manner that precluded evaluation by the Office of Management and Budget (OMB) under that Executive Order. The FBI responds that, pursuant to Executive Order 12866 section 6(a)(3)(A) and before publication it provided OMB with summaries both of the proposed and of the final rule on this subject. The summaries were reviewed by OMB and OMB concurred with the Department's assertion that this rule is not a “significant” regulatory action. It is the Department's experience that if OMB has any uncertainty regarding the correctness of an agency's assertion that a rulemaking is “non-significant,” OMB will either request an informal full text copy of the rule or will designate the rule as “significant,” thus initiating a formal review pursuant to Executive Order 12866. The phrasing of the Executive Order 12866/Executive Order 13563 certification in this rulemaking that “accordingly this rule has not been reviewed by the Office of Management and Budget” indicates that OMB has not conducted a formal review.

Thirteen comments expressed a general concern that greater accessibility will lead to, or at least facilitate, an increase in misuse of the APW Seal. These comments suggest that the proposed system of making the APW Seal available on the FBI's Web site will be more difficult to police than the pilot program. Ten comments expressed varying degrees of concern as to the possibility that widespread use of the APW Seal may “dilute” the value of the image and the FBI's message. While the FBI recognizes these potential effects of the new rule, they are outweighed by the expected benefits of increasing the presence of the anti-piracy message across the board to include copyrighted works that may have been ineligible under the pilot program. Additionally, the APW Seal will remain protected by criminal statutes, to include Title 18, United States Code, Sections 701 and 709.

Two comments noted that despite the text of the regulation, the public may perceive the APW Seal as the FBI's endorsement of a particular work or product, and believe that the work is entitled to protection. Paragraph (f)(4)(ii) specifically provides that the APW Seal shall not be used in any manner “indicating that the FBI has determined that a particular work or portion thereof is entitled to protection of the law.” The FBI does not review specific works to determine whether they are entitled to copyright protection. To further clarify this point, the FBI plans to include information on its public Web site ( http://www.fbi.gov ) to assist in educating individual users of the APW Seal, and the public at large.

Six comments recommended that the FBI establish a system to verify that users have a legitimate copyright interest in the work on which they seek to place the APW Seal. The FBI does not have the resources to establish such a system and does not consider such a system necessary to achieve the purposes of this regulation. Accordingly, the FBI declines to incorporate this recommendation into the final rule.

Three comments suggested that FBI and Interpol anti-piracy warnings should be “skippable” prior to movies or other material. Nothing in this regulation requires users of the APW Seal to prevent viewers from skipping past these warnings, nor is the industry prohibited from continuing the practice.

Two comments suggested that the FBI charge fees of some or all users of the APW Seal. Charging fees would deter use of the APW Seal. Another comment recommended making use of the APW Seal mandatory on copyright-protected works to assist in identification of counterfeits. The FBI does not have authority to mandate use of the APW Seal.

Two comments also suggested that rather than allow individual copyright owners to use the APW Seal, the FBI should continue to work through industry associations. One of these two comments also suggested that the APW Seal should indicate that the user is part of an association that works closely with the FBI to stop piracy. The APW Seal is not intended to indicate that the FBI works more closely with one group than another.

Two comments pointed out potential problems with applying the APW Seal to certain media, such as photographs or Web sites. One of these comments suggested that copyright owners who choose not to use the APW Seal will be disadvantaged compared to owners of works that more readily lend themselves to application of the APW Seal. Two comments suggested that widespread use of the APW Seal, as will be allowed under this regulation, may lead to a public belief that any work not bearing the APW Seal is not protected by copyright law. Use of the APW Seal in no way affects the protection that a work is entitled to under the law. The FBI believes that the value of the APW Seal outweighs the risk of possible confusion, but intends to clarify this matter on its public Web site.

Five comments also expressed a concern that the broader accessibility of the APW Seal may have a “chilling effect” on fair use, as some copyright holders may attempt to use the APW Seal to discourage uses of their copyrighted work that would otherwise be permissible under the fair use doctrine. The FBI fully recognizes that fair use, which is authorized under Title 17, United States Code, Section 107, does not constitute infringement, much less a federal crime. The warning language does not suggest otherwise. The FBI intends to address this matter on its public Web site.

Four comments noted generally that the APW Seal is a “passive warning” and not a sufficiently effective means to deter intellectual property piracy. Another comment suggested the FBI's warning should be modified to prevent “ad burnout” by using a graphic to show the negative impact of the piracy problem. The APW Seal program is part of a much larger government-wide effort to combat intellectual property piracy. Due to the nature of the program and the crime itself, it is difficult to measure the effectiveness of the APW Seal program at preventing piracy. Based on feedback from the pilot program and the volume of requests to use the APW Seal, however, the FBI believes that continuing the APW Seal program as expanded in this regulation is a worthwhile effort.

Four comments offered suggestions in regard to making, allowing, or preventing modifications to the appearance of the APW Seal related to size and color, banning other text on the same page or screen as the APW Seal, or a requirement for a border or other division to separate the image from any user-provided content. Two of these comments suggested the FBI adopt a requirement for a border or minimum space around the APW Seal in order to more clearly separate it from other information on the same page or screen. The FBI agrees that this requirement would assist in limiting confusion as to the FBI's message. Accordingly, the FBI has modified paragraph (e)(2) to require a border any time the APW Seal is used on anything other than a blank screen or page, such as on media packaging. The FBI would not consider enlargement or reduction in size of the image downloaded to be a prohibited alteration of the image under this regulation. The FBI declines to adopt the recommendations on this topic related to other alterations as such flexibility could detract from the impact of the APW Seal in evoking the FBI's involvement in enforcement of anti-piracy laws.

Two comments recommended that the FBI implement some form of click-through informational pages or a pop-up notifying the user attempting to download the APW Seal of the conditions of use, and the possible penalties for unauthorized use. Another comment recommended that the APW Seal be more accessible on the FBI's Web site than the current APW Seal informational page, requiring fewer clicks to reach. The FBI will take these recommendations into account in designing the APW Seal program pages and download procedure.

One comment suggested that the FBI disallow use of the “authorized warning language” alone, which may be found at paragraph (e)(2)(i) of the rule, now that the APW Seal itself is available to all copyright holders. The FBI recognizes that some copyright-protected works may not lend themselves well to application of the APW Seal, and so will continue to allow use of the warning language alone for those users who find it more suitable to their needs.

One comment expressed an opinion that inclusion of the APW Seal on a copyrighted work should not establish per se the willful intent element of criminal copyright infringement (Reference Title 17, United States Code, Section 506(a)(1)). The evidentiary value of the use of the APW Seal or other warning in a particular case is not a matter to be determined via regulation by the FBI.

Several comments made recommendations regarding the role of the APW Seal in the FBI's overall law enforcement efforts relating to piracy of intellectual property. One comment suggested that the FBI should consider a comprehensive “brand marketing strategy” for the APW Seal, including guidance on how to use the APW Seal and how to report suspected piracy. Additionally, this comment suggested that the FBI work closely with industry associations and focus on enforcement. This comment, as well as one additional comment, suggested the FBI develop a system for reporting misuse of the APW Seal. Finally, one comment recommended that the FBI clarify that purchasing a counterfeit product is illegal and explain the ramifications of supporting the counterfeiting industry.

As noted previously, the APW Seal program is one aspect of a larger anti-piracy effort. The FBI, both independently and through its partnership with other federal agencies and the National Intellectual Property Rights Coordination Center (“IPR Center”), is currently working to increase public awareness of the issues related to copyright piracy and other intellectual property theft. The FBI works closely with industry associations to maximize the impact of enforcement efforts, and will continue to do so as long as it is beneficial to the FBI's mission with regard to intellectual property crime. More information about these efforts, the negative impacts of piracy and of supporting the counterfeiting industry, and how to report suspected piracy or IP theft is available on the FBI and IPR Center Web sites ( http://www.iprcenter.gov ).

The Assistant Attorney General for Administration, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this final rule and, by approving it, certifies that this rule will not have a significant economic impact on a substantial number of small entities. Subject to the terms and conditions set forth, this rule allows copyright holders to use the APW Seal on copyrighted works to help detect and deter criminal violations of United States intellectual property laws by educating the public about the existence of these laws and the authority of the FBI to enforce them.

This regulation has been drafted and reviewed in accordance with Executive Order 12866, “Regulatory Planning and Review” section 1(b), Principles of Regulation and in accordance with Executive Order 13563, “Improving Regulation and Regulatory Review” section 1(b), General Principles of Regulation.

The Department of Justice has determined that this rule is not a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review, and accordingly this rule has not been reviewed by OMB.

Further, both Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. The Department has assessed the costs and benefits of this regulation and believes that the regulatory approach selected maximizes net benefits.

This final rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988.

This final 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. Therefore, in accordance with Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

This final 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, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

This final rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996. This final rule will not result in an annual effect on the United States economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets. Subject to the terms and conditions set forth, this rule merely allows copyright holders to use the APW Seal on copyrighted works to help detect and deter criminal violations of United States intellectual property laws by educating the public about the existence of these laws and the authority of the FBI to enforce them.

Accordingly, for the reasons set forth in the preamble, part 128-1 of chapter 128 of Title 41 of the Code of Federal Regulations is amended as follows:

The NFIP enables property owners to purchase Federal flood insurance that is not otherwise generally available from private insurers. In return, communities agree to adopt and administer local floodplain management measures aimed at protecting lives and new construction from future flooding. Section 1315 of the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits the sale of NFIP flood insurance unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed in this document no longer meet that statutory requirement for compliance with program regulations, 44 CFR part 59. Accordingly, the communities will be suspended on the effective date in the third column. As of that date, flood insurance will no longer be available in the community. We recognize that some of these communities may adopt and submit the required documentation of legally enforceable floodplain management measures after this rule is published but prior to the actual suspension date. These communities will not be suspended and will continue to be eligible for the sale of NFIP flood insurance. A notice withdrawing the suspension of such communities will be published in the Federal Register .

In addition, FEMA publishes a Flood Insurance Rate Map (FIRM) that identifies the Special Flood Hazard Areas (SFHAs) in these communities. The date of the FIRM, if one has been published, is indicated in the fourth column of the table. No direct Federal financial assistance (except assistance pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act not in connection with a flood) may be provided for construction or acquisition of buildings in identified SFHAs for communities not participating in the NFIP and identified for more than a year on FEMA's initial FIRM for the community as having flood-prone areas (section 202(a) of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4106(a), as amended). This prohibition against certain types of Federal assistance becomes effective for the communities listed on the date shown in the last column. The Administrator finds that notice and public comment procedures under 5 U.S.C. 553(b), are impracticable and unnecessary because communities listed in this final rule have been adequately notified.

Each community receives 6-month, 90-day, and 30-day notification letters addressed to the Chief Executive Officer stating that the community will be suspended unless the required floodplain management measures are met prior to the effective suspension date. Since these notifications were made, this final rule may take effect within less than 30 days.

National Environmental Policy Act. This rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Considerations. No environmental impact assessment has been prepared.

Regulatory Flexibility Act. The Administrator has determined that this rule is exempt from the requirements of the Regulatory Flexibility Act because the National Flood Insurance Act of 1968, as amended, Section 1315, 42 U.S.C. 4022, prohibits flood insurance coverage unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed no longer comply with the statutory requirements, and after the effective date, flood insurance will no longer be available in the communities unless remedial action takes place.

Regulatory Classification. This final rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

Executive Order 13132, Federalism. This rule involves no policies that have federalism implications under Executive Order 13132.

Executive Order 12988, Civil Justice Reform. This rule meets the applicable standards of Executive Order 12988.

Paperwork Reduction Act. This rule does not involve any collection of information for purposes of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

Accordingly, 44 CFR part 64 is amended as follows:

The Federal Emergency Management Agency (FEMA) makes the final determinations listed below for the modified BFEs for each community listed. These modified elevations have been published in newspapers of local circulation and ninety (90) days have elapsed since that publication. The Deputy Associate Administrator for Mitigation has resolved any appeals resulting from this notification.

This final rule is issued in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR part 67. FEMA has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR part 60.

Interested lessees and owners of real property are encouraged to review the proof Flood Insurance Study and FIRM available at the address cited below for each community. The BFEs and modified BFEs are made final in the communities listed below. Elevations at selected locations in each community are shown.

National Environmental Policy Act. This final rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. An environmental impact assessment has not been prepared.

Regulatory Flexibility Act. As flood elevation determinations are not within the scope of the Regulatory Flexibility Act, 5 U.S.C. 601-612, a regulatory flexibility analysis is not required.

Regulatory Classification. This final rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

Executive Order 13132, Federalism. This final rule involves no policies that have federalism implications under Executive Order 13132.

Executive Order 12988, Civil Justice Reform. This final rule meets the applicable standards of Executive Order 12988.

Accordingly, 44 CFR part 67 is amended as follows:

This document announces that, on July 22, 2009, OMB approved, for a period of three years, the information collection requirements relating to the Commercial Mobile Alert System rules contained in the Commission's Second Report and Order, FCC 08-164, published at 73 FR 47550, August 14, 2008. The OMB Control Number is 3060-1126. The Commission publishes this document as an announcement of the effective date of the rules. If you have any comments on the burden estimates listed below, or how the Commission can improve the collections and reduce any burdens caused thereby, please contact Judith Boley Herman, Federal Communications Commission, Room 1-B441, 445 12th Street SW., Washington, DC 20554. Please include the OMB Control Number, 3060-1126, in your correspondence. The Commission will also accept your comments via email at PRA@fcc.gov.

To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to fcc504@fcc.gov or call the Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), the FCC is notifying the public that it received final OMB approval on July 22, 2009, for the information collection requirements contained in the modifications to the Commission's rules in 47 CFR part 10.

Under 5 CFR part 1320, an agency may not conduct or sponsor a collection of information unless it displays a current, valid OMB Control Number.

No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act that does not display a current, valid OMB Control Number. The OMB Control Number is 3060-1126.

The foregoing notice is required by the Paperwork Reduction Act of 1995, Public Law 104-13, October 1, 1995, and 44 U.S.C. 3507.

The total annual reporting burdens and costs for the respondents are as follows:

OMB Control Number: 3060-1126.

OMB Approval Date: July 22, 2009.

Expiration Date: July 31, 2012.

Title: Section 10.350, Testing Requirements for the Commercial Mobile Alert System (CMAS).

Form No.: Not applicable.

Respondents: Business or other for-profit entities; Not for profit institutions.

Number of Respondents and Responses: 146 respondents; 1,752 responses.

Estimated Time per Response: 2.5 seconds.

Frequency of Response: Monthly and on occasion reporting requirements and recordkeeping requirement.

Obligation to Respond: Required to obtain or retain benefits. Statutory authority for this information collection is contained in 47 U.S.C. 151, 154(i), 154(j), 154(o), 218, 219, 230, 256, 301, 302(a), 303(f), 303(g), 303(j), 303(r), 403, 621(b)(3), and 621(d).

Total Annual Burden: 2 hours.

Total Annual Cost: N/A.

Nature and Extent of Confidentiality: There is no need for confidentiality with this collection of information.

Needs and Uses: The Commission requested OMB approval of a new information collection in order to obtain the full three-year clearance from them. The approval was received from OMB on July 22, 2009. The Commission's estimates for public burden are described above.

As required by the Warning, Alert, and Response Network (WARN) Act, Public Law 109-347, the Federal Communications Commission adopted final rules to establish a Commercial Mobile Alert System (CMAS), under which the Commercial Mobile Service (CMS) providers may elect to transmit emergency alerts to the public, see Second Report and Order and Further Notice of Proposed Rulemaking, FCC 08-164, 23 FCC Rcd. In order to ensure that the CMAS operates efficiently and effectively, the Commission requires participating CMS providers to receive required monthly test messages initiated by the Federal Alert Gateway Administrator, to test their infrastructure and internal CMAS delivery systems by distributing the monthly message to their CMAS coverage area, and to log the results of the tests. The Commission also requires periodic testing of the interface between the Federal Alert Gateway and each CMS Provider Gateway to ensure the availability and viability of both gateway functions. The CMS Provider Gateways must send an acknowledgement to the Federal Alert Gateway upon receipt of these interface test messages.

The Commission, the Federal Alert Gateway and participating CMS providers will use this information to ensure the continued functioning of the CMAS, thus complying with the WARN Act and the Commission's obligation to promote the safety of life and property through the use of wire and radio communications.

NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

The 2012 TAC of Pacific ocean perch in the Western Regulatory Area of the GOA is 2,102 metric tons (mt) as established by the final 2012 and 2013 harvest specifications for groundfish of the GOA (77 FR 15194, March 14, 2012).

In accordance with § 679.20(d)(2), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the 2012 TAC of Pacific ocean perch in the Western Regulatory Area of the GOA has been reached. Therefore, NMFS is requiring that Pacific ocean perch caught in the Western Regulatory Area of the GOA be treated as prohibited species in accordance with § 679.21(b).

This action responds to the best available information recently obtained from the fishery. The Acting Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay prohibiting the retention of Pacific ocean perch in the Western Regulatory Area of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of July 9, 2012.

The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

This action is required by § 679.20 and § 679.21 and is exempt from review under Executive Order 12866.

NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

The Magnuson-Stevens Act requires that conservation and management measures prevent overfishing. The 2012 Pacific ocean perch overfishing level in the Western Regulatory Area of the GOA is 2,423 metric tons (mt) and the acceptable biological catch (ABC) is 2,102 mt as established by the final 2012 and 2013 harvest specifications for groundfish in the GOA (77 FR 15194, March 14, 2012). NMFS closed directed fishing for Pacific ocean perch on July 2, 2012 (77 FR 39649, July 5, 2012) and prohibited retention of Pacific ocean perch on July 10, 2012 (publication in FR pending).

As of July 9, 2012, approximately 2,428 mt of Pacific ocean perch has been harvested in the Western Regulatory Area of the GOA. Vessels targeting various rockfish species have had significant incidental catch of Pacific ocean perch and have taken the majority of Pacific ocean perch in the Western Regulatory Area of the GOA in 2012. Directed fishing for all rockfish species categories is closed in the Western Regulatory Area of the GOA. However, substantial fishing effort is being directed at fisheries currently open to directed fishing in the Western Regulatory Area of the GOA, including arrowtooth flounder, flathead sole, rex sole, deep-water flatfish, and shallow-water flatfish. If vessels are allowed to continue directed fishing for arrowtooth flounder, flathead sole, rex sole, deep-water flatfish, or shallow-water flatfish in the Western Regulatory Area of the GOA, further incidental catch of Pacific ocean perch would occur. “Deep-water flatfish means” Dover sole, Greenland turbot, Kamchatka flounder, and deepsea sole. “Shallow-water flatfish” means flatfish not including “deep- water flatfish,” flathead sole, rex sole, or arrowtooth flounder.

The Regional Administrator has determined, in accordance with § 679.20(d)(3), that prohibiting directed fishing for arrowtooth flounder, flathead sole, rex sole, deep-water flatfish, and shallow-water flatfish in the Western Regulatory Area of the GOA is necessary to prevent further incidental catch of Pacific ocean perch.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion, would delay prohibiting directed fishing for arrowtooth flounder, flathead sole, rex sole, deep-water flatfish, and shallow-water flatfish in the Western Regulatory Area of the GOA and allow further incidental catch of Pacific ocean perch to occur in these fisheries. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of July 9, 2012.

The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

This action is required by § 679.20 and is exempt from review under Executive Order 12866.