On November 15, 2012, the U.S. Office of Personnel Management (OPM) issued a proposed rule (77 FR 68073) to redefine Bollinger, Cape Girardeau, and Perry Counties, MO, from the Southern Missouri wage area to the St. Louis wage area and Mercer County, PA, from the Pittsburgh wage area to the Cleveland wage area. These changes are based on recent consensus recommendations of the Federal Prevailing Rate Advisory Committee to best match the above counties to a nearby FWS survey area.

This final rule makes two additional corrections. It renames the Champaign-Urbana, IL, wage area as the Central Illinois wage area and updates the name of the White Sands Proving Ground in the Albuquerque, NM, and El Paso, TX, wage areas to White Sands Missile Range. These corrections do not affect the pay of any FWS employees.

The proposed rule had a 30-day comment period during which OPM received no comments.

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

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

This interim final rule amends 5 CFR 1201.21(c). Currently, this regulation requires that, when a federal agency issues a decision notice to an employee on a matter that is appealable to MSPB, the federal agency must provide the employee with “[a] copy of the MSPB appeal form * * *” The amendment set forth herein will allow federal agencies to provide employees “[a] copy, or access to a copy, of the MSPB appeal form * * * ” This amendment will make paragraph (c) similar to paragraph (b), which requires a federal agency to provide the employee with “[a] copy, or access to a copy, of the Board's regulations” under the same circumstances.

The initial impetus to amend this regulation arose when MSPB realized that, under our current regulations, federal agencies that furlough their employees as a result of the implementation of government-wide “sequestration” on March 1, 2013, would be required to distribute potentially hundreds of thousands of copies of the 9-page MSPB appeal form to employees along with the furlough notifications. The existing MSPB regulations were not drafted with such a situation in mind. Moreover, widespread access by federal employees to the Internet, electronic mail, and MSPB's electronic filing system, e-Appeal Online ( https://e-appeal.mspb.gov ), ensure, in the vast majority of cases, that the distribution of thousands of paper copies of the MSPB appeal form by federal agencies is unnecessary.

This interim final rule is intended to avoid the costly duplication of hundreds of thousands of paper copies of the MSPB appeal form and to allow federal agencies to make better use of electronic means of making documents available to employees.

The Board is further convinced that this minor amendment to its regulations will not impose any hardship or disadvantage upon employees who receive a decision notice regarding a matter that is appealable to MSPB. A federal agency's obligation under 1201.21(b) and (c) to provide access to MSPB's regulations and the MSPB appeal form must be effective under the circumstances. For example, if a federal agency attempts to satisfy to 1201.21(b) and (c) by providing an employee access to MSPB's regulations and appeal form via the Internet or electronic mail and the employee informs the agency that he or she lacks Internet access, the agency would be required to take other steps to ensure that the employee has actual access to these documents, including providing the employee with a copy of these documents upon the employee's request. Thus, the regulation, as amended, continues to ensure that all employees subject to a final decision appealable to MSPB will have effective access to the MSPB appeal form.

The rulemaking process must normally observe notice-and-comment procedures outlined in the Administrative Procedure Act (APA). However, an exemption from notice and comment rulemaking requirements exists under 5 U.S.C. 553(b)(3)(B) where an “agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” The good cause exception “is to be narrowly construed and only reluctantly countenanced.” Mack Trucks, Inc. v. Environmental Protection Agency, 682 F.3d 87, 93 (D.C. Cir. 2012) (citations omitted).

Regarding the “impracticable” prong, the United States Court of Appeals for the District of Columbia has held that agency action could be sustained on this basis if it addresses an “imminent hazard” to persons or property of the United States, Jifry v. FAA, 370 F.3d 1174, 1179 (D.C. Cir. 2004), or if the rule in question is of “life-saving importance.” Council of the S. Mountains, Inc. v. Donovan, 653 F.2d 573, 581 (D.C. Cir. 1981). The Board does not believe that the circumstances surrounding the publication of this interim final rule render the use of APA notice and comment procedures impracticable.

The “unnecessary” prong of the agency's good cause inquiry is “confined to those situations in which the administrative rule is a routine determination, insignificant in nature and impact, and inconsequential to the industry and to the public.” Mack Trucks, Inc. v. Environmental Protection Agency, 682 F.3d 87, 94 (D.C. Cir. 2012) (citation omitted). As is noted above, the amendment set forth herein will not relieve federal agencies of the responsibility to ensure that employees who receive notice of an action appealable to MSPB have actual and effective access to the MSPB appeal form. Rather, the amendment simply recognizes that a document such as the MSPB appeal form can reliably be made available to employees via the Internet or other means. Moreover, if a federal employee requests that he or she be provided a copy of the document, the agency would be required to provide it. The MSPB therefore finds that the amendment set forth herein is sufficiently routine, insignificant in nature and inconsequential to warrant a finding of good cause to exempt this amendment from the normal APA notice-and-comment procedures.

The public interest prong of the good cause exception is met only in the rare circumstance when ordinary procedures—generally presumed to serve the public interest—would in fact harm that interest. Mack Trucks, 682 F.3d at 95. This exception is therefore invoked when the timing and disclosure requirements of the usual procedures would defeat the purpose of the proposal. Id. Here, the reproduction costs this amendment seeks to avert are significant. If, for example, 800,000 Department of Defense employees are issued furlough notices, we estimate that the cost of giving each employee a paper copy of the MSPB appeal form could be on the order of $720,000 (800,000 employees x 9-page MSPB appeal form x $0.10 per page reproduction costs). Additional costs would be imposed upon other federal agencies. Given that an unprecedented and sizeable number of furlough notices could be issued in the days and weeks to follow, MSPB finds that the purpose of this amendment—saving significant needless expense in a time of severe budgetary constraints—would be defeated if normal notice and comment procedures were utilized. Therefore, the Board concluded that the public interest is served by a determination to exempt this interim final rule from the normal APA notice-and-comment procedures.

Finally, MSPB also elected to make the amendment set forth herein effective immediately upon publication of this interim final rule. Under 5 U.S.C. 553(d)(3), “the required publication or service of a substantive rule shall be made not less than 30 days before its effective date, except * * * as otherwise provided by the agency for good cause found and published with the rule.” For the reasons identified above, MSPB further finds that good cause exists under 5 U.S.C. 553(d)(3) to waive the 30-day publication requirement and implement this amendment immediately.

Accordingly, for the reasons set forth in the preamble, the Board amends 5 CFR part 1201 as follows:

This rule is issued under Marketing Agreement and Order No. 922 (7 CFR part 922), as amended, regulating the handling of apricots grown in designated counties in Washington, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

USDA is issuing this rule in conformance with Executive Order 12866.

Under the order, Washington apricot handlers are subject to assessments, which provide funds to administer the order. Assessment rates issued under the order are intended to be applicable to all assessable Washington apricots for the entire fiscal period, and continue indefinitely until amended, suspended, or terminated. The Committee's fiscal period begins April 1, and ends on March 31.

In an interim rule published in the Federal Register on December 6, 2012, and effective on December 7, 2012, (77 FR 72861, Doc. No. AMS-FV-12-0027, FV12-922-1 IR), § 922.235 was amended by decreasing the assessment rate established for the Committee for the 2012-13 and subsequent fiscal periods from $1.50 to $0.50 per ton of Washington apricots handled under the order. The decrease in the assessment rate reflects a reduction in the manager's salary and the Committee's operating expenditures, and will help reduce industry costs while still providing adequate funding to meet program expenses.

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

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

There are approximately 94 producers of apricots in the production area and approximately 20 handlers subject to regulation under the marketing order. Small agricultural producers are defined by the Small Business Administration (SBA) as those having annual receipts of less than $750,000, and small agricultural service firms are defined as those having annual receipts of less than $7,000,000. (13 CFR 121.201)

The National Agricultural Statistics Service reported that in 2011 the Washington apricot total utilization (including both fresh and processed markets) of 3,900 tons sold for an average of $1,830 per ton. Accordingly, the total farm-gate value in 2011 was approximately $7,132,000. Based on the number of producers in the production area (94), the 2011 average revenue from the sale of apricots is estimated at approximately $75,925 per producer. In addition, based on information from the USDA's Market News Service, 2011 f.o.b. prices for WA No. 1 apricots ranged from $20.00 to $26.00 per 24-pound loose-pack container, and from $22.00 to $30.00 for 2-layer tray-pack containers. Using average price and shipment information provided by the Committee, it is determined that each of the Washington apricot handlers currently ship less than $7,000,000 worth of apricots on an annual basis. Therefore, the majority of producers and handlers of Washington apricots may be classified as small entities.

This rule continues in effect the action that decreased the assessment rate established for the Committee and collected from handlers for the 2012-13 and subsequent fiscal periods from $1.50 to $0.50 per ton of Washington apricots handled under the order. The Committee unanimously recommended 2012-13 expenditures of $4,695 and an assessment rate of $0.50 per ton of Washington apricots. The assessment rate of $0.50 is $1.00 lower than the rate previously in effect. Applying the assessment rate of $0.50 per ton of Washington apricots to the Committee's crop estimate of 6,600 tons should provide approximately $3,300 in assessment income. Thus, income derived from handler assessments, along with funds from the Committee's monetary reserve, will be adequate to cover the budgeted expenses, while maintaining a financial reserve within the limit authorized by the order.

This rule continues in effect the action that decreased the assessment obligation imposed on handlers. Assessments are applied uniformly on all handlers and some of the costs may be passed on to producers. However, decreasing the assessment rate reduces the burden on handlers and may reduce the burden on producers.

In addition, the Committee's meeting was widely publicized throughout the Washington apricot industry. All interested persons were invited to attend the meeting and participate in Committee deliberations on all issues. Like all Committee meetings, the May 24, 2012, meeting was a public meeting, and all entities, both large and small, were able to express views on this issue.

In accordance with the Paperwork Reduction Act of 1995, (44 U.S.C. Chapter 35), the order's information collection requirements have been previously approved by the Office of Management and Budget (OMB) and assigned OMB No. 0581-0189. No changes in those requirements as a result of this action are necessary. Should any changes become necessary, they would be submitted to OMB for approval.

This rule will not impose any additional reporting or recordkeeping requirements on either small or large Washington apricot handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. In addition, USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this rule.

Comments on the interim rule were required to be received on or before February 4, 2013. No comments were received. Therefore, for the reasons given in the interim rule, we are adopting the interim rule as a final rule, without change.

To view the interim rule, go to: http://www.regulations.gov/#!documentDetail;D=AMS-FV-12-0027-0001 .

This action also affirms information contained in the interim rule concerning Executive Orders 12866 and 12988, the Paperwork Reduction Act (44 U.S.C. Chapter 35), and the E-Gov Act (44 U.S.C. 101).

After consideration of all relevant material presented, it is found that finalizing the interim rule, without change, as published in the Federal Register (77 FR 72681, December 6, 2012) will tend to effectuate the declared policy of the Act.

This rule is issued under Marketing Order No. 923, as amended (7 CFR part 923), regulating the handling of sweet cherries grown in designated counties in Washington, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

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

Under the order, Washington sweet cherry handlers are subject to assessments, which provide funds to administer the order. Assessment rates issued under the order are intended to be applicable to all assessable Washington sweet cherries for the entire fiscal period, and continue indefinitely until amended, suspended, or terminated. The Committee's fiscal period begins on April 1, and ends on March 31.

In an interim rule published in the Federal Register on December 6, 2012, and effective on December 7, 2012 (77 FR 72683, Doc. No. AMS-FV-12-0026, FV12-923-1 IR), § 923.236 was amended by decreasing the assessment rate established for Washington sweet cherries for the 2012-2013 and subsequent fiscal periods from $0.40 to $0.18 per ton of sweet cherries handled. The decrease in the per ton assessment rate allows the Committee to reduce its monetary reserve.

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

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

There are 53 handlers of Washington sweet cherries subject to regulation under the order and approximately 1,500 producers in the regulated production area. Small agricultural service firms are defined by the Small Business Administration (13 CFR 121.201) as those having annual receipts of less than $7,000,000, and small agricultural producers are defined as those having annual receipts of less than $750,000.

The National Agricultural Statistics Service prepared a preliminary report for the 2011 shipping season showing that the sweet cherry fresh market utilization of 165,000 tons sold for an average of $2,300 per ton. Based on the number of producers in the production area (1,500), the average producer revenue from the sale of sweet cherries in 2011 can therefore be estimated at approximately $253,000 per year. In addition, the Committee reports that most of the industry's 53 handlers would have each averaged gross receipts of less than $7,500,000 from the sale of fresh sweet cherries last season. Thus, the majority of producers and handlers of Washington sweet cherries may be classified as small entities.

This rule continues in effect the action that decreased the assessment rate established for the Committee and collected from handlers for the 2012-2013 and subsequent fiscal periods from $0.40 to $0.18 per ton of sweet cherries. The Committee also unanimously recommended 2012-2013 expenditures of $64,400. The assessment rate of $0.18 is $0.22 lower than the rate previously in effect. The quantity of assessable sweet cherries for the 2012-2013 fiscal period is estimated at 120,000 tons. Thus, the $0.18 rate should provide $21,600 in assessment income. Income derived from handler assessments, along with interest income and funds from the Committee's authorized reserve, will be adequate to cover budgeted expenses. This action will allow the Committee to reduce its monetary reserve.

This rule continues in effect the action that decreased the assessment obligation imposed on handlers. Assessments are applied uniformly on all handlers, and some of the costs may be passed on to producers. However, decreasing the assessment rate reduces the burden on handlers, and may reduce the burden on producers.

In addition, the Committee's meeting was widely publicized throughout the Washington sweet cherry industry and all interested persons were invited to attend the meeting and participate in Committee deliberations on all issues. Like all Committee meetings, the May 15, 2012, meeting was a public meeting and all entities, both large and small, were able to express views on this issue.

In accordance with the Paperwork Reduction Act of 1995, (44 U.S.C. Chapter 35), the order's information collection requirements have been previously approved by the Office of Management and Budget (OMB) and assigned OMB No. 0581-0189, Generic Fruit Crops. No changes in those requirements as a result of this action are anticipated. Should any changes become necessary, they would be submitted to OMB for approval.

This action imposes no additional reporting or recordkeeping requirements on either small or large Washington sweet cherry handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.

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

Comments on the interim rule were required to be received on or before February 4, 2013. No comments were received. Therefore, for reasons given in the interim rule, we are adopting the interim rule as a final rule, without change.

To view the interim rule, go to: http://www.regulations.gov/#!documentDetail;D=AMS-FV-12-0026-0001 .

This action also affirms information contained in the interim rule concerning Executive Orders 12866 and 12988, and the E-Gov Act (44 U.S.C. 101).

After consideration of all relevant material presented, it is found that finalizing the interim rule, without change, as published in the Federal Register (77 FR 72683, December 6, 2012) will tend to effectuate the declared policy of the Act.

This rule is issued under Marketing Order No. 927, as amended (7 CFR part 927), regulating the handling of pears grown in Oregon and Washington, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

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

Under the order, processed pear handlers are subject to assessments, which provide funds to administer the order. Assessment rates issued under the order are intended to be applicable to all assessable processed pears for the entire fiscal period, and continue indefinitely until amended, suspended, or terminated. The Committee's fiscal period begins on July 1, and ends on June 30.

In an interim rule published in the Federal Register on December 5, 2012, and effective on December 6, 2012 (77 FR 72197, Doc. No. AMS-FV-12-0031, FV12-927-2 IR), § 927.237 was amended by decreasing the assessment rate established for Oregon-Washington processed pears for the 2012-2013 and subsequent fiscal periods from $7.73 to $7.00 per ton of summer/fall processed pears handled. The Committee recommended the assessment rate decrease because the 2012-2013 summer/fall processed pear promotion budget was reduced.

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

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

There are approximately 1,500 producers of processed pears in the regulated production area and approximately 50 handlers of processed pears subject to regulation under the order. Small agricultural producers are defined by the Small Business Administration (SBA) as those having annual receipts of less than $750,000, and small agricultural service firms are defined as those whose annual receipts are less than $7,000,000. (13 CFR 121.201)

According to the Noncitrus Fruits and Nuts 2011 Preliminary Summary issued in March 2012 by the National Agricultural Statistics Service, the total farm-gate value of summer/fall processed pears grown in Oregon and Washington for 2011 was $35,315,000. Based on the number of processed pear producers in Oregon and Washington, the average gross revenue for each producer can be estimated at approximately $23,543. Furthermore, based on Committee records, the Committee has estimated that each of the Oregon-Washington pear handlers currently ship less than $7,000,000 worth of processed pears all on an annual basis. From this information, it is concluded that the majority of producers and handlers of Oregon and Washington processed pears may be classified as small entities.

There are three pear processing plants in the production area, all located in Washington. All three pear processors would be considered large entities under the SBA's definition of small businesses.

This rule continues in effect the action that decreased the assessment rate established for the Committee and collected from handlers for the 2012-2013 and subsequent fiscal periods from $7.73 to $7.00 per ton of processed pears handled. The Committee also unanimously recommended 2012-2013 expenditures of $842,137. The assessment rate of $7.00 is $0.73 lower than the rate previously in effect.

The quantity of assessable summer/fall processed pears for the 2012-2013 fiscal period is estimated at 120,000 tons. Thus, the $7.00 rate should provide $840,000 in assessment income. Income derived from summer/fall processed pear handler assessments, monetary reserve, interest, and other income will be adequate to cover the budgeted expenses. The Committee recommended the assessment rate decrease because the 2012-2013 summer/fall processed pear promotion budget was reduced.

This rule continues in effect the action that decreased the assessment obligation imposed on handlers. Assessments are applied uniformly on all handlers and some of the costs may be passed on to producers. However, decreasing the assessment rate reduces the burden on handlers and may reduce the burden on producers.

In addition, the Committee's meeting was widely publicized throughout the Oregon-Washington pear industry. All interested persons were invited to attend the meeting and participate in Committee deliberations on all issues. Like all Committee meetings, the May 30, 2012, meeting was a public meeting and all entities, both large and small, were able to express views on this issue.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the order's information collection requirements have been previously approved by the Office of Management and Budget (OMB) and assigned OMB No. 0581-0189, Generic Fruit Crops. No changes in those requirements as a result of this action are anticipated. Should any changes become necessary, they would be submitted to OMB for approval.

This action imposes no additional reporting or recordkeeping requirements on either small or large Oregon-Washington processed pear handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.

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

Comments on the interim rule were required to be received on or before February 4, 2013. No comments were received. Therefore, for the reasons given in the interim rule, we are adopting the interim rule as a final rule, without change.

To view the interim rule, go to: http://www.regulations.gov/#!docketDetail;D=AMS-FV-12-0031

This action also affirms information contained in the interim rule concerning Executive Orders 12866 and 12988, and the E-Gov Act (44 U.S.C. 101).

After consideration of all relevant material presented, it is found that finalizing the interim rule, without change, as published in the Federal Register (77 FR 72197, December 5, 2012) will tend to effectuate the declared policy of the Act.

I. Background

Section 8a(6) of the Commodity Exchange Act (“CEA”), 7 U.S.C. 12a(6), authorizes the Commission to communicate to the proper committee of any registered entity the “full facts concerning any transaction or market operation, including the names of parties thereto, which in the judgment of the Commission disrupts or tends to disrupt any market or is otherwise harmful or against the best interests of producers, consumers, or investors, or which is necessary or appropriate to effectuate the purposes of [the CEA].” The term “registered entity” has been defined to include boards of trade designated as contract markets, derivatives clearing organizations, swap execution facilities, swap data repositories, and certain electronic facilities on which a contract determined by the Commission to be a significant price discovery contract is executed or traded. 1

The definition of “registered entity” in the CEA was amended by the Dodd-Frank Act, which was enacted on July 21, 2010. 2 Two new categories of registered entity were established: Swap execution facilities (“SEFs”) and swap data repositories (“SDRs”), which have self-regulatory roles in the swaps markets established in the CEA and its implementing regulations. Additionally, the core principles for derivatives clearing organizations (“DCOs”) were revised to expand the scope of a DCO's self-regulatory responsibilities, in particular with respect to risk management. Commission regulations implementing the core principles require, for example, monitoring by the DCO of the large trader reports of its members, 3 which may necessitate the sharing of information by the Commission to a DCO on a periodic basis.

In order to mitigate market disruptions, ensure the best interests of market participants, and to effectuate any purpose of the CEA as amended, the Commission is revising regulation 140.72 to permit the provision of critical information to all of these registered entities. Presently, the delegation of authority in regulation 140.72 provides certain employees of the Commission with the authority to disclose confidential information only to any contract market, registered futures association, or certain self-regulatory organizations. 4 With this revision of regulation 140.72, the present delegation of authority will be expanded to include all registered entities as defined in the CEA and as permitted by section 8a(6) of the CEA.

The revisions to the Commission's regulations in this rulemaking do not establish any new substantive or legislative rules, but rather relate solely to rules of agency organization, practice, or procedure. Therefore, this rulemaking is excepted from the public notice and comment provisions of the Administrative Procedure Act. 5 Additionally, as the revisions to the Commission's regulations in this rulemaking will not cause any party to undertake efforts to comply with the regulations as revised, the Commission has determined to make this rulemaking effective upon publication in the Federal Register . 6

The Regulatory Flexibility Act requires the Commission to consider whether the regulations it adopts will have a significant economic impact on a substantial number of small entities. 7 The Commission is obligated to conduct a regulatory flexibility analysis for any rule for which the agency publishes a general notice of proposed rulemaking pursuant to section 553(b) of the Administrative Procedure Act. 8 This rulemaking is excepted from the public rulemaking provisions of the Administrative Procedure Act. Accordingly, the Commission is not obligated to conduct a regulatory flexibility analysis for this rulemaking.

The Commission may not conduct or sponsor, and a respondent is not required to respond to, a collection of information contained in a rulemaking unless the information collection displays a currently valid control number issued by the Office of Management and Budget (“OMB”) pursuant to the Paperwork Reduction Act. 9 This rulemaking contains no collection of information that obligates the Commission to obtain a control number from OMB.

For the reasons stated in the preamble, the Commission hereby amends chapter I of title 17 of the Code of Federal Regulations as follows:

The Department of State is amending the International Traffic in Arms Regulations (ITAR) pursuant to the Security Cooperation Act of 2010 (Pub. L. 111-266), with the inclusion of other changes. Title I of the Security Cooperation Act, the Defense Trade Cooperation Treaties Implementation Act of 2010, implements the Treaty Between the Government of the United States of America and the Government of Australia Concerning Defense Trade Cooperation (Treaty Doc. 110-10), and the Treaty Between the Government of the United States of America and the Government of the United Kingdom of Great Britain and Northern Ireland Concerning Defense Trade Cooperation (Treaty Doc. 110-7). The U.S.-UK treaty entered into force on April 13, 2012. ( See “Implementation of the Defense Trade Cooperation Treaty Between the United States and the United Kingdom,” 77 FR 16592, and “Announcement of Entry Into Force of the Defense Trade Cooperation Treaty Between the United States and the United Kingdom,” 77 FR 33089.) This rule amends the ITAR with regard to the U.S.-Australia treaty (the “Treaty”).

ITAR § 120.1 is amended to provide updated authorities and editorial changes. ITAR § 120.33 is added to provide a definition of “Defense Trade Cooperation Treaty between the United States and Australia.” New ITAR § 120.35 defines the Implementing Arrangement pursuant to the Treaty. ITAR § 126.16 is added to create the licensing exemption and provide guidance on its use. Supplement No. 1 to part 126 is amended to identify defense articles that may not be exported and defense services that may not be furnished through the exemption.

In addition, the supplement is amended to make the following corrections and clarifications: the phrase, “defense articles and services related to” is removed from the row regarding USML Category I articles, and the USML citation for armored plates is changed from USML Category XIII(c) to XIII(e).

On November 22, 2011 (76 FR 72246, RIN 1400-AC95), the Department published for public comment a proposed rule to amend the ITAR to implement the Defense Trade Cooperation Treaty between the United States and the United Kingdom and the Defense Trade Cooperation Treaty between the United States and Australia, and to identify, via a supplement, the defense articles that may not be exported and the defense services that may not be furnished through use of the licensing exemptions created by the treaties. The comment period ended December 22, 2011. Fifteen parties filed comments that applied to the Treaty. The Department's evaluation of the comments and recommendations follows.

The majority of commenting parties expressed support for the Treaty's intention of facilitating defense exports with one of the United States' closest allies. However, the commenting parties expressed concern that the exemption is overly complicated and its requirements too burdensome to be truly workable. The Department appreciates these comments and believes the clarifying edits made in this final rule make application of the exemption clearer.

Several commenting parties requested additional guidance for various aspects of the exemption described in ITAR § 126.16. As part of Treaty implementation, the Department's Directorate of Defense Trade Controls (DDTC) has posted Frequently Asked Questions (FAQs) on its Web site ( www.pmddtc.state.gov ). These FAQs address these requests for guidance.

Two commenting parties recommended that the Department add a definition for defense articles to ITAR § 126.16(a)(1) to clarify that ”defense articles” also includes technical data for purposes of the exemption. The Department does not believe this change is necessary as the definition for “defense articles” in ITAR § 120.6 clearly identifies technical data as within its scope. Unless specifically indicated otherwise, the use of the term “defense article” includes technical data.

One commenting party requested clarification of the term “access” as used in ITAR § 126.16(a)(1)(iv), indicating that it is common for U.S. Customs and Border Protection (CBP) to authorize a physical manipulation of a container, which would seemingly result in an intermediate consignee having “access” to an item in the shipment. The Department believes the meaning of “access” is plain, and does not include situations such as this, where there is a directive from a CBP official to open a container for the purpose as stated. Another party requested that the Department place in this section a reference to ITAR § 126.16(k), which discusses intermediate consignees. The Department accepted this recommendation and has revised the section accordingly.

One commenting party expressed concern that the process by which the U.S. Government would obtain records, as provided in ITAR § 126.16(l) and other sections of the exemption, is unclear. These sections are not intended to identify the process by which record requests are made, and therefore were not revised to provide this information. (The records-request process would be the same for ITAR § 126.16(l) as for requests made pursuant to any other section of the ITAR.)

One commenting party noted that ITAR § 126.16(a)(4) seemed to limit transfers just to exports to the United States. The Department has revised this section to clarify that it applies to transfers within the Approved Community.

Two commenting parties requested that the Department change the word “required” to “pursuant to” in ITAR § 126.16(a)(4)(iii). This change was not accepted because the word “required” is a requirement of the Treaty.

In response to the recommendation of two commenting parties, the Department revised ITAR § 126.16(a)(5) regarding the applicability of this exemption to defense articles delivered via the Foreign Military Sales program.

Three commenting parties recommended that the Department include an explanation of the vetting process for the Australian Community in ITAR § 126.16(d). The Department did not accept this recommendation for the rule itself, but notes that the vetting requirements are identified in the Treaty and Implementing Arrangement, which are available on DDTC's Web site.

Three commenting parties requested that the Department provide additional guidance on requesting confirmation of Treaty eligibility for operations, programs, and projects that cannot be publicly identified ( i.e., are classified). For this information, the Department refers inquiries by members of the approved community to both the DDTC Web site and the appropriate defense authority.

One commenting party inquired whether the Department will publish a complete list of U.S. Government contracts that are Treaty eligible. The Department will not do so. The U.S. Department of Defense has updated the Defense Federal Acquisition Regulation Supplement (DFARS) and certain contract clauses, which will identify Treaty eligibility when incorporated into a contract.

Three commenting parties requested that ITAR § 126.16(g)(1) be clarified to indicate whether it applies to marketing to members of the Approved Community, or requested its removal. This provision is part of the Treaty's Exempted Technology List, and therefore cannot be removed. However, the Department revised ITAR § 126.16(g)(1) to indicate that marketing to members of the Australian Community is covered so long as it is for an approved Treaty end-use and meets the other requirements of this section.

One commenting party recommended removal of ITAR § 126.16(g)(4) or, in the alternative, adding the parenthetical “(or foreign equivalent)” after “Milestone B.” The Department cannot remove this paragraph as it is part of the Treaty's Exempted Technology List. The Department also cannot add the parenthetical as there is no equivalent in Australia to “Milestone B.”

One commenting party requested changes to ITAR § 126.16(g)(5) to allow for the export of embedded exempted technologies in certain circumstances. The Department is not, at this time, prepared to broaden this provision to include embedded exempted technologies.

Two commenting parties commented on the complexity of using ITAR § 126.16(h) with a diverse supply chain and requested clarification on the applicability of ITAR § 123.9(e) to this exemption. The Department appreciates the diverse nature of global supply chains, but believes the mechanisms provided in ITAR § 126.16(h) are no more onerous than current retransfer or reexport requirements. Further, as indicated in ITAR § 126.16(h)(5), any retransfer, reexport, or change in end-use under ITAR § 126.16(h) shall be made in accordance with ITAR § 123.9.

In response to the recommendation of two commenting parties, the Department has deleted “any citizen of such countries” from ITAR § 126.16(h)(8).

Ten commenting parties commented on the marking requirements provided in ITAR § 126.16(j). Of most concern was a perception that the requirements of this section made using the exemption overly burdensome and costly. Various suggestions were provided, ranging from removal of the requirement to rewording of certain sections. The majority of these commenting parties requested removal of the requirement in paragraph (j)(2) for exporters to remove Treaty markings. The Department appreciates these comments; however, apart from minor clarifying changes, the marking requirements have not been removed or revised because they are made pursuant to the Treaty and its Implementing Arrangement.

One commenting party requested that the Department revise the text of the statement required by ITAR § 126.16(j)(5) to indicate that the items being exported are USML items and authorized only for export to Australia under the Treaty. The Department accepted this suggestion and revised the text accordingly.

One commenting party requested that registered brokers be included in ITAR § 126.16(k)(1)(ii). Australian intermediate consignees must meet the requirements of this section. If a registered broker meets these requirements, then it may be an intermediate consignee for purposes of this exemption. However, simply being a registered broker does not automatically qualify an entity as an Australian intermediate consignee.

One commenting party recommended changing “all exports” in ITAR § 126.16(l)(1) to “their exports” to acknowledge that the U.S. exporter may not be aware or have record of a reexport/retransfer request submitted by an Australian Community member. The Department accepted this recommendation and has revised the section accordingly.

One commenting party requested clarification of whether ITAR § 126.16(l)(1)(x) referred to the USML category or security classification. The Department revised this section to make clear that it refers to security classification.

The Department accepted the recommendation of one commenting party to remove reference to “defense services” in ITAR § 126.16(l)(2).

Two commenting parties requested that the Department clarify whether ITAR § 126.16(m) required exporters to submit negative reports. Reporting requirements under this section are contingent on meeting the requirements of ITAR § 130.9.

Two commenting parties requested clarification on whether the congressional notification requirement under the Treaty is identical to that required under normal license authorization processes. The Department confirms that the requirement is the same.

Ten commenting parties submitted comments regarding the scope and text of Supplement No. 1 to part 126. In particular, comments indicated concern that the supplement was too broad and possibly excluded too much to make the exemption useful. The Department appreciates these comments, and has made clarifying edits to Supplement No. 1 to the extent possible within the confines of the Treaty, the Implementing Arrangement, and the Exempted Technology List.

For clarification, the Department has added, “prior to movement,” to the text of ITAR § 126.16(j)(1), which is in conformance with the requirements of the Treaty's Implementing Arrangement.

Having thoroughly reviewed and evaluated the written comments and recommended changes, the Department has determined that it will accept, and hereby adopt with the noted changes, the proposed rule, as it pertained to the Treaty, as a final rule, to be effective when the Treaty enters into force.

The Department of State is of the opinion that controlling the import and export of defense articles and services is a foreign affairs function of the United States government and that rules implementing this function are exempt from sections 553 (rulemaking) and 554 (adjudications) of the Administrative Procedure Act (APA). In addition, this rulemaking is implementing the provisions of a treaty between the United States and Australia and related amendments to the Arms Export Control Act. Although the Department is of the opinion that this rule is exempt from the rulemaking provisions of the APA, the Department published this rule with a 30-day provision for public comment and without prejudice to its determination that controlling the import and export of defense services is a foreign affairs function (RIN 1400-AC95). This rule is effective upon the entry into force of the Treaty Between the Government of the United States of America and the Government of Australia Concerning Defense Trade Cooperation (Treaty Doc. 110-10). Once the Treaty is in force, exporters must be able to utilize the Treaty for qualifying exports of defense articles.

Since the Department is of the opinion that this rule is exempt from the provisions of 5 U.S.C. 553, there is no requirement for an analysis under the Regulatory Flexibility Act.

This rulemaking does not involve a mandate that will 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 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.

The Department of State has determined that this rulemaking will not have tribal implications, will not impose substantial direct compliance costs on Indian tribal governments, and will not preempt tribal law. Accordingly, the requirement of Executive Order 13175 does not apply to this rulemaking.

This rulemaking is not a major rule within the meaning of the Small Business Regulatory Enforcement Fairness Act of 1996.

This rulemaking 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 rulemaking does not have sufficient federalism implications to require consultations or warrant the preparation of a federalism summary impact statement. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this rulemaking.

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, distributed impacts, and equity). These executive orders stress the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. The Department has reviewed this regulation to ensure its consistency with the regulatory philosophy and principles set forth in these executive orders. The Department also has determined that this rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866.

The Department of State has reviewed this rulemaking in light of sections 3(a) and 3(b)(2) of Executive Order 12988 to eliminate ambiguity, minimize litigation, establish clear legal standards, and reduce burden.

This rule does not impose any new reporting or recordkeeping requirements subject to the Paperwork Reduction Act, 44 U.S.C. Chapter 35.

Accordingly, for the reasons set forth above, Title 22, Chapter I, Subchapter M, parts 120 and 126 are amended as follows:

The U.S. Army Rock Island Arsenal requested a temporary deviation for the Rock Island Railroad and Highway Drawbridge, across the Upper Mississippi River, mile 482.9, at Rock Island, Illinois to remain in the closed-to-navigation position for a one hour period from 7 p.m. to 8 p.m., June 15, 2013, while a 5K run is held between the cities of Davenport, IA and Rock Island, IL. The Rock Island Railroad and Highway Drawbridge currently operates in accordance with 33 CFR 117.5, which states the general requirement that drawbridges shall open promptly and fully for the passage of vessels when a request to open is given in accordance with the subpart.

There are no alternate routes for vessels transiting this section of the Upper Mississippi River.

The Rock Island Railroad and Highway Drawbridge, in the closed-to-navigation position, provides a vertical clearance of 23.8 feet above normal pool. Navigation on the waterway consists primarily of commercial tows and recreational watercraft. This temporary deviation has been coordinated with waterway users. No objections were received.

In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the effective period of this temporary deviation. This deviation from the operating regulations is authorized under 33 CFR 117.35.

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

Table 1 lists the rules we are approving with the dates that they were adopted by the local air agency and submitted by the California Air Resources Board.

On June 7, 2012 and October 11, 2012, EPA determined that the submittals for BCAQMD Rule 207 and SMAQMD Rule 417 respectively, met the completeness criteria in 40 CFR Part 51 Appendix V, which must be met before formal EPA review.

There are no previous versions of Rules 207 and 417 in the SIP.

VOCs help produce ground-level ozone and smog, which harm human health and the environment. NO X helps produce ground-level ozone, smog and particulate matter, which harm human health and the environment. PM contributes to effects that are harmful to human health and the environment, including premature mortality, aggravation of respiratory and cardiovascular disease, decreased lung function, visibility impairment, and damage to vegetation and ecosystems. Section 110(a) of the CAA requires States to submit regulations that control VOC, NO X , and PM emissions. Rules 207 and 417 are designed to minimize the impacts of smoke and other air pollutants generated during the use of wood burning devices.

BCAQMD Rule 207 includes requirements that (a) Retailers of wood burning devices provide public awareness materials with each wood burning device sold, (b) newly installed wood burning devices be District-approved and inspected upon installation, (c) all newly installed outdoor wood-fired boilers meet certain EPA or equivalent emission standards, (d) no person shall advertise, sell, supply, or transfer ownership of a used wood burning device, unless it has been deemed permanently inoperable or is a District-approved device, and (e) fuel used in wood burning devices include only firewood or other wood/plant-based products. The rule also outlines the criteria for District-approval of wood burning devices and exempts devices deemed of historical significance or those transferred via property sale. EPA's technical support document (TSD) has more information about this rule, including identification of several additional control options that are generally reasonably available.

SMAQMD Rule 417 includes requirements that (a) No person sell, offer for sale, supply, install or transfer a wood burning appliance unless it is a U.S. EPA Phase II wood burning heater, a pellet fueled or masonry heater, or an appliance or fireplace that meets the emission standard set forth in 40 CFR Part 60 Subpart AAA and is approved by the Air Pollution Control Officer (APCO), (b) retailers of wood burning devices provide public awareness materials with each wood burning device sold, (c) no person advertise, sell, supply, or transfer ownership of a used wood burning device, unless it has been deemed permanently inoperable or is an approved device, (d) the burning of materials not intended for use in a fireplace/heater is prohibited, and (e) wood sold within the District as “seasoned” or “dry” must have a moisture content of 20 percent or less by weight. The TSD has more information about this rule, including the basis and conclusion that the rule requires all control measures that are reasonably available.

Generally, SIP rules must be enforceable (see section 110(a) of the Act) and must not relax existing requirements (see sections 110(l) and 193).

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

1. “Issues Relating to VOC Regulation Cutpoints, Deficiencies, and Deviations; Clarification to Appendix D of November 24, 1987 Federal Register Notice,” (Blue Book), notice of availability published in the May 25, 1988 Federal Register .

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

Effective December 14, 2009, EPA designated portions of Chico (Butte County), California and Sacramento, California as nonattainment for the 2006 24-Hour PM 2.5 National Ambient Air Quality Standard (NAAQS). 40 CFR 81.305 (2010); 74 FR 58688, 58705-58706 (November 13, 2009). For nonattainment areas, a State Implementation Plan (SIP) submittal addressing implementation of all Reasonably Available Control Measures (RACM) as expeditiously as practicable, including Reasonably Available Control Technology (RACT) for existing sources was due by December 14, 2012. CAA § 172(b) & (c)(1), 74 FR 58689, September 21, 2012. On October 26, 2012 and October 30, 2012 EPA published proposed determinations that the Sacramento and Chico nonattainment areas had attained the 2006 24-hour PM 2.5 NAAQS based upon complete, quality-assured, and certified ambient air monitoring data showing that these areas had monitored attainment of the 2006 24-hour PM 2.5 NAAQS based on the 2009-2011 monitoring period. See 77 FR 65346 and 77 FR 65651. If EPA finalizes the determinations of attainment, the requirements for these areas to submit an attainment demonstration, together with RACM, a reasonable further progress (RFP) plan, and contingency measures for failure to meet RFP and attainment deadlines would be suspended for so long as the areas continues to attain the 2006 24-hour PM 2.5 NAAQS. For purposes of implementing the 2006 PM 2.5 NAAQS, EPA recommends that states evaluate potential RACM/RACT control measures for sources of direct PM 2.5 (including condensable PM), SO 2 , and NOx in specific nonattainment areas, consistent with the approach to evaluating RACM/RACT provided in EPA's implementing regulations for the 1997 PM 2.5 NAAQS at 40 CFR part 51, subpart Z. See Memorandum from Stephen D. Page, Director, EPA Office of Air Quality Planning and Standards to Regional Air Directors, Regions I-X, “Implementation Guidance for the 2006 24-Hour Fine Particle (PM 2.5 ) National Ambient Air Quality Standards (NAAQS).” If EPA does not finalize the determinations of attainment for the Chico and Sacramento nonattainment areas, the BCAQMD and SMAQMD will need to adopt as RACM/RACT any potential PM 2.5 , SO 2 , or NOx control measures that are reasonably available considering technological and economic feasibility and that would, considered collectively, advance the attainment date by one year or more in the Chico or Sacramento nonattainment area. Id. Because Rules 207 and 417 regulate direct PM 2.5 emissions from residential wood-burning devices, the BCAQMD and SMAQMD should consider whether reasonably available control measures for these emission sources could, in combination with other reasonably available control measures, advance attainment of the 2006 PM 2.5 NAAQS in the area by at least one year. If necessary, in separate rulemakings, EPA will act on the State's RACM demonstration for the 2006 PM 2.5 standard based on an evaluation of the control measures submitted as a whole and their overall potential to advance the applicable attainment date in Chico, California and Sacramento, California. For additional control options for BCAQMD that are generally reasonably available see the Rule 207's TSD's “Additional Recommendations for the Next Rule Revision”.

We believe these rules are consistent with the relevant policy and guidance regarding enforceability, and SIP revisions. The TSDs have more information on our evaluation.

The TSDs describe additional rule revisions that we recommend for the next time the local agencies modify these rules.

As authorized in section 110(k)(3) of the Act, EPA is fully approving the submitted rules because we believe they fulfill all relevant requirements. We do not think anyone will object to this approval, so we are finalizing it without proposing it in advance. However, in the Proposed Rules section of this Federal Register , we are simultaneously proposing approval of the same submitted rule. If we receive adverse comments by May 13, 2013, we will publish a timely withdrawal in the Federal Register to notify the public that the direct final approval will not take effect and we will address the comments in a subsequent final action based on the proposal. If we do not receive timely adverse comments, the direct final approval will be effective without further notice on June 10, 2013. This will incorporate the rule into the federally enforceable SIP.

Please note that if EPA receives adverse comment on an amendment, paragraph, or section of the rules and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rules that are not the subject of an adverse comment.

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by June 10, 2013. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the Proposed Rules section of today's Federal Register , rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. This action may not be challenged later in proceedings to enforce its requirements (see section 307(b)(2)).

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

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

Table 1 lists the rules we are approving with the dates that they were amended by the local air agencies and submitted by the California Air Resources Board (CARB).

On March 13, 2012 and October 11, 2012, EPA determined that the submittal for SBCAPCD Rule 352 and SCAQMD Rule 461 met the completeness criteria in 40 CFR part 51 Appendix V, which must be met before formal EPA review.

We approved an earlier version of SBCAPCD Rule 352 into the SIP on December 20, 2000 (65 FR 79752). We approved an earlier version of SCAQMD Rule 461 into the SIP on April 11, 2006 (71 FR 18216). The SCAQMD adopted revisions to the SIP-approved version on March 7, 2008 but the revision was not submitted to EPA. While we can act on only the most recently submitted version, we have reviewed materials from previous rule revisions.

VOCs help produce ground-level ozone and smog, which harm human health and the environment. NO X helps produce ground-level ozone, smog and particulate matter, which harm human health and the environment. Section 110(a) of the CAA requires States to submit regulations that control VOC and NO X emissions. SBCAPCD Rule 352 limits emissions from gas-fired fan-type central furnaces and small water heaters and SCAQMD Rule 461 controls emissions from the transfer and dispensing of gasoline. EPA's technical support documents (TSD) have more information about these rules.

Generally, SIP rules must be enforceable (see section 110(a) of the Act), must require Reasonably Available Control Technology (RACT) for each category of sources covered by a Control Techniques Guidelines (CTG) document as well as each major source in nonattainment areas (see sections 182(a)(2) and (b)(2)), and must not relax existing requirements (see sections 110(l) and 193). The SCAQMD regulates an ozone nonattainment area (see 40 CFR part 81), so Rule 461 must fulfill RACT. SBCAPCD is designated as unclassifiable/attainment for all National Ambient Air Quality Standards (NAAQS) so that submitted Rule 352 does not have to fulfill RACT requirements.

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

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

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

3. “ Gasoline Vapor Recovery Guidelines ”, EPA Region IX, April 24, 2000.

4. “Technical Guidance—Stage II vapor Recovery Systems for Control of Vehicle Refueling Emissions at Gasoline Dispensing Facilities.” (EPA-450/3-91-022a) November 1991.

5. “EPA's Draft Model Rule, Gasoline Dispensing Facility—Stage II Vapor Recovery, ” August 17, 1992.

We believe these rules are consistent with the relevant policy and guidance regarding enforceability, RACT, and SIP relaxations. The TSDs have more information on our evaluation.

The TSDs describe additional rule revisions that we recommend for the next time the local agencies modify the rules.

As authorized in section 110(k)(3) of the Act, EPA is fully approving the submitted rules because we believe they fulfill all relevant requirements. We do not think anyone will object to this approval, so we are finalizing it without proposing it in advance. However, in the Proposed Rules section of this Federal Register , we are simultaneously proposing approval of the same submitted rules. If we receive adverse comments by May 13, 2013, we will publish a timely withdrawal in the Federal Register to notify the public that the direct final approval will not take effect and we will address the comments in a subsequent final action based on the proposal. If we do not receive timely adverse comments, the direct final approval will be effective without further notice on June 10, 2013. This will incorporate these rules into the federally enforceable SIP.

Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by June 10, 2013. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the Proposed Rules section of today's Federal Register , rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. This action may not be challenged later in proceedings to enforce its requirements (see section 307(b)(2)).

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

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

Table 1 lists the rules we are approving and the rules we are rescinding with the dates that they were adopted by the local air agencies and submitted by the California Air Resources Board (CARB).

Throughout this document wherever “we”, “us” or “our” are used, we mean EPA.

EPA is taking direct final action to approve the LMP submitted by the State of Oregon on January 13, 2012, for the Eugene-Springfield nonattainment area (Eugene-Springfield NAA) and concurrently to redesignate the area to attainment for the PM 10 NAAQS. EPA has reviewed air quality data for the area and determined that the Eugene-Springfield NAA attained the PM 10 NAAQS by the required attainment date, and that monitoring data continue to show attainment. Also in this action, EPA is approving revisions to the State Implementation Plan (SIP) to reflect the redesignation.

“Particulate matter,” also known as particle pollution or PM, is a complex mixture of extremely small particles and liquid droplets. The size of particles is directly linked to their potential for causing health problems. EPA is concerned about particles that are 10 micrometers in diameter or smaller because those are the particles that generally pass through the throat and nose and enter the lungs. Once inhaled, these particles can affect the heart and lungs and cause serious adverse health effects. People with heart or lung diseases, children and older adults are the most likely to be affected by particle pollution exposure. However, even healthy individuals may experience temporary symptoms from exposure to elevated levels of particle pollution.

On July 1, 1987, EPA promulgated a NAAQS for PM 10 (52 FR 24634). EPA established a 24-hour standard of 150 μg/m 3 and an annual standard of 50 μg/m 3 , expressed as an annual arithmetic mean. EPA also promulgated secondary PM 10 standards that were identical to the primary standards. In a rulemaking action dated October 17, 2006, EPA retained the 24-hour PM 10 standard but revoked the annual PM 10 standard (71 FR 61144, effective December 18, 2006).

On August 7, 1987, EPA designated the Eugene-Springfield area as a PM 10 nonattainment area due to measured violations of the 24-hour PM 10 standard (52 FR 29383). The notice announcing the designation, upon enactment of the 1990 CAA Amendments, was published on March 15, 1991, 56 FR 11101. On November 6, 1991, the Eugene-Springfield NAA was subsequently classified as moderate under sections 107(d)(4)(B) and 188(a) of the CAA (56 FR 56694).

After the Eugene-Springfield NAA was designated nonattainment for PM 10 , the Oregon Department of Environmental Quality (ODEQ) and Lane Regional Air Protection Agency (LRAPA) worked with the communities of Eugene and Springfield to develop a plan to bring the area into attainment no later than December 31, 1994. The State submitted the plan to EPA on November 15, 1991, as a moderate PM 10 SIP under section 189(a) of the CAA. The primary control measure submitted by the State was a comprehensive wood burning curtailment program. EPA took final action to approve the State's moderate PM 10 SIP on August 24, 1994, 59 FR 43483.

On January 13, 2012, the State submitted to EPA for approval the Eugene-Springfield PM 10 LMP and requested that EPA redesignate the Eugene-Springfield NAA to attainment for the PM 10 NAAQS. Oregon also submitted revisions to rules in the State's Federally-approved SIP to reflect the redesignation.

Section 110(a)(2) of the CAA requires that each SIP revision be adopted after reasonable notice and public hearing. This must occur prior to the revision being submitted by a State to EPA. The State of Oregon provided notice and an opportunity for public comment from August 26, 2011 through September 26, 2011. A notice of public hearing was published in The Eugene Register-Guard on August 26, 2011 and the Oregon Bulletin, Volume 50, No. 9 on September 1, 2011. The State held a public hearing on September 27, 2011, in Springfield, Oregon. This SIP revision became State effective on December 21, 2011, and was submitted by the Governor's designee to the EPA on January 13, 2012. EPA has evaluated the State's submittal and determined that the State met the requirements for reasonable notice and public hearing under section 110(a)(2) of the CAA.

Nonattainment areas can be redesignated to attainment after the area has measured air quality data showing it has attained the NAAQS and when certain planning requirements are met. Section 107(d)(3)(E) of the CAA, and the General Preamble to Title I provide the criteria for redesignation (57 FR 13498, April 16, 1992). These criteria are further clarified in a policy and guidance memorandum from John Calcagni, Director, Air Quality Management Division, EPA Office of Air Quality Planning and Standards dated September 4, 1992, “Procedures for Processing Requests to Redesignate Areas to Attainment” (Calcagni memo). The criteria for redesignation are:

1. The Administrator has determined that the area has attained the applicable NAAQS;

2. The Administrator has fully approved the applicable SIP for the area under section 110(k) of the CAA;

3. The state containing the area has met all requirements applicable to the area under section 110 and part D of the CAA;

4. The Administrator has determined that the improvement in air quality is due to permanent and enforceable reductions in emissions; and

5. The Administrator has fully approved a maintenance plan for the area as meeting the requirements of section 175A of the CAA.

On August 9, 2001, EPA issued guidance on streamlined maintenance plan provisions for certain moderate PM 10 nonattainment areas seeking redesignation to attainment (Memo from Lydia Wegman, Director, Air Quality Standards and Strategies Division, entitled “Limited Maintenance Plan Option for Moderate PM 10 Nonattainment Areas” (LMP Option memo)). The LMP Option memo contains a statistical demonstration that areas meeting certain air quality criteria will, with a high degree of probability, maintain the standard 10 years into the future. Thus, EPA has already provided the maintenance demonstration for areas meeting the criteria outlined in the LMP Option memo. It follows that future year emission inventories for these areas, and some of the standard analyses to determine transportation conformity with the SIP are no longer necessary.

To qualify for the LMP Option, the area should have attained the PM 10 NAAQS and, based upon the most recent 5 years of air quality data at all monitors in the area, the 24-hour design value should be at or below 98 μg/m 3 . If an area cannot meet this test, it may still be able to qualify for the LMP Option if the average design value (ADV) for the site is less than the site-specific critical design value (CDV). In addition, the area should expect only limited growth in on-road motor vehicle PM 10 emissions (including fugitive dust) and should have passed a motor vehicle regional emissions analysis test. The LMP Option memo also identifies core provisions that must be included the LMP. These provisions include an attainment year emissions inventory, assurance of continued operation of an EPA-approved air quality monitoring network, and contingency provisions.

The transportation conformity rule and the general conformity rule (40 CFR parts 51 and 93) apply to nonattainment areas and maintenance areas covered by an approved maintenance plan. Under either conformity rule, an acceptable method of demonstrating that a Federal action conforms to the applicable SIP is to demonstrate that expected emissions from the planned action are consistent with the emissions budget for the area.

While EPA's LMP Option does not exempt an area from the need to affirm conformity, it explains that the area may demonstrate conformity without submitting an emissions budget. Under the LMP Option, emissions budgets are treated as essentially not constraining for the length of the maintenance period because it is unreasonable to expect that the qualifying areas would experience so much growth in that period that a violation of the PM 10 NAAQS would result. For transportation conformity purposes, EPA would conclude that emissions in these areas need not be capped for the maintenance period and therefore a regional emissions analysis would not be required. Similarly, Federal actions subject to the general conformity rule could be considered to satisfy the “budget test” specified in 40 CFR 93.158 (a)(5)(i)(A) for the same reasons that the budgets are essentially considered to be unlimited.

States must demonstrate that an area has attained the PM 10 NAAQS through analysis of ambient air quality data from an ambient air monitoring network representing peak PM 10 concentrations. The data should be quality-assured and stored in the EPA Air Quality System database. EPA has reviewed air quality data for the area and has determined that the Eugene-Springfield NAA attained the PM 10 NAAQS  1 by the applicable attainment date of December 31, 1994, and continues to attain the PM 10 NAAQS. EPA's analysis is described below.

The 24-hour PM 10 NAAQS is 150 μg/m 3 . An area has attained this 24-hour standard when the average number of expected exceedances per year is less than or equal to one, when averaged over a three-year period (40 CFR 50.6). To make this determination, three consecutive years of complete ambient air quality data must be collected in accordance with Federal requirements (40 CFR part 58 including appendices).

A comprehensive air quality monitoring plan, meeting the requirements of 40 CFR part 58, was submitted by Oregon to EPA on December 27, 1979 (40 CFR 52.1970), and approved by EPA on March 4, 1981 (46 FR 15136). This monitoring plan has been subsequently updated, with the most recent submittal dated July 1, 2011, and approved by EPA on January 6, 2012 (Oregon Air Monitoring Plan Approval Letter, dated January 6, 2012). The monitoring plan describes the PM 10 monitoring network throughout the State, which includes site #41-039-0058-81102-1 (commonly referred to as the “Highway 99 Site” or “Key Bank Site” (Highway 99/Key Bank Site)) in the Eugene-Springfield area. In the submittal, LRAPA states that the Highway 99/Key Bank Site historically measures the highest PM 10 concentrations, and that a review of data from 2000 through 2008 shows that PM 10 concentrations recorded at this site remain well below the 24-hour PM 10 NAAQS. In addition, LRAPA states that the Highway 99/Key Bank Site is operated in compliance with EPA monitoring guidelines set forth in 40 CFR part 58, Ambient Air Quality Surveillance.

Data from the Highway 99/Key Bank Site has been quality assured by ODEQ and submitted to EPA's Air Quality System (AQS), accessible through EPA's AirData Web site at http://www.epa.gov/airdata/ . Based on EPA's review of data in AQS, there have been no exceedances of the 24-hour PM 10 NAAQS in the Eugene-Springfield NAA since 1987. Accordingly, during the three-year period ending with the December 31, 1994, attainment date, no exceedances occurred in the Eugene-Springfield NAA, and the expected exceedance rate for the Eugene-Springfield NAA for 1992-1994 is 0. Therefore, Eugene-Springfield NAA attained the 24-hour PM 10 NAAQS by the required attainment date of December 31, 1994 (PM 10 Design Value Report for Lane County, Oregon, dated April 30, 2012). EPA has also reviewed more recent ambient air quality data for the 24-hour PM 10 NAAQS, and has determined that the Eugene-Springfield area continues to attain the 24-hour PM 10 NAAQS. A summary of EPA's data review and analysis can be found in the docket for this action (Eugene-Springfield PM 10 NAAQS and LMP Determination Memo, dated July 23, 2012).

In order to qualify for redesignation, the SIP for the area must be fully approved under section 110(k) of the CAA, and must satisfy all requirements that apply to the area. As discussed in Section II. B. above, Oregon submitted a moderate PM 10 SIP for the Eugene-Springfield NAA on November 15, 1991. EPA took final action to fully approve the State's moderate PM 10 SIP on August 24, 1994 (59 FR 43483), as satisfying all requirements that apply to the area. Thus the area has a fully approved nonattainment area SIP under section 110(k) of CAA.

Section 107(d)(3)(E) of the CAA requires that a state containing a nonattainment area must meet all applicable requirements under section 110 and Part D of the CAA for an area to be redesignated to attainment. EPA interprets this to mean that the state must meet all requirements that applied to the area prior to, and at the time of, the submission of a complete redesignation request. The following is a summary of how Oregon meets these requirements.

Section 110(a)(2) of the CAA contains general requirements for nonattainment plans. These requirements include, but are not limited to, submittal of a SIP that has been adopted by the state after reasonable notice and public hearing; provisions for establishment and operation of appropriate apparatus, methods, systems and procedures necessary to monitor ambient air quality; implementation of a permit program; provisions for Part C—Prevention of Significant Deterioration (PSD) and Part D—New Source Review (NSR) permit programs; criteria for stationary source emission control measures, monitoring and reporting, provisions for modeling; and provisions for public and local agency participation. See the General Preamble for further explanation of these requirements (57 FR 13498, April 16, 1992). For purposes of redesignation of the Eugene-Springfield PM 10 NAA, EPA has reviewed the Oregon SIP and finds that the State has satisfied all applicable requirements under CAA section 110(a)(2) for the PM 10 NAAQS. EPA's approval of Oregon's SIP for attainment and maintenance of the PM 10 NAAQS under CAA section 110 can be found at 40 CFR 52.1972.

Part D of the CAA contains general requirements applicable to all areas designated nonattainment. The general requirements are followed by a series of subparts specific to each pollutant. All PM 10 nonattainment areas must meet the general provisions of Subpart 1 and the specific PM 10 provisions in Subpart 4, “Additional Provisions for Particulate Matter Nonattainment Areas.” The following paragraphs discuss these requirements as they apply to the Eugene-Springfield NAA.

Section 172(c) contains general requirements for nonattainment area plans. A thorough discussion of these requirements may be found in the General Preamble (57 FR 13538, April 16, 1992). CAA section 172(c)(2) requires nonattainment plans to provide for reasonable further progress (RFP). Section 171(1) of the CAA defines RFP as “such annual incremental reductions in emissions of the relevant air pollutant as are required by this part (part D of title I) or may reasonably be required by the Administrator for the purpose of ensuring attainment of the applicable national ambient air quality standard by the applicable date.” The requirements for reasonable further progress, identification of certain emissions increases and other measures needed for attainment were satisfied with the approved Eugene-Springfield PM 10 SIP (59 FR 43483). In this action, EPA has determined that the Eugene-Springfield NAA attained the 24-hour PM 10 NAAQS by the December 31, 1994, attainment date. Therefore, EPA believes no further showing of RFP or quantitative milestones is necessary.

Section 172(c)(3) of CAA requires a comprehensive, accurate, current inventory of actual emissions from all sources in the Eugene-Springfield PM 10 NAA. Oregon included an emissions inventory for the Eugene-Springfield area for the year 2008 in the submittal. The inventory estimated annual and winter day emissions from point sources, residential wood combustion, road dust, and motor vehicle exhaust, brake and tire wear. The emissions inventory includes an inventory of point sources of PM 10 greater than or equal to 10 tons/year to estimate emissions for 2008. Residential wood combustion emission estimates were developed from a 2009 survey of households in the Eugene-Springfield area, included in the State's submittal. Emissions estimates for road dust and motor vehicle exhaust, brake wear, and tire wear were developed using EPA-approved methods, and vehicle miles traveled estimates were obtained from the local metropolitan planning organization, Lane Council of Governments. EPA reviewed the inventory and associated calculations submitted by Oregon and believes that the 2008 Eugene-Springfield emissions inventory is current, accurate and comprehensive and therefore meets the requirements of section 172(c)(3) of the CAA.

The CAA requires all nonattainment areas to meet several requirements regarding NSR. The State must have an approved major NSR program that meets the requirements of section 172(c)(5). EPA evaluated and initially approved the Oregon major NSR program on August 13, 1982 (47 FR 35191), as being equivalent or more stringent than EPA's regulations on a program basis. EPA subsequently approved revisions to Oregon's major NSR program on January 22, 2003 (68 FR 2891), and most recently approved revisions to the major NSR rules on December 27, 2011 (76 FR 80747). In the Eugene-Springfield NAA, the requirements of the Part D NSR program will be replaced by the State's Maintenance Area NSR requirements upon the effective date of redesignation.

Once an area is redesignated, the state must continue to operate an appropriate air monitoring network in accordance with 40 CFR part 58 to verify attainment status of the area. Oregon submitted a comprehensive air quality monitoring plan, meeting the requirements of 40 CFR part 58 to EPA on December 27, 1979 (40 CFR 52.1970), and EPA approved the plan on March 4, 1981 (46 FR 15136). This monitoring plan has been subsequently updated, with the most recent submittal dated July 1, 2011, and approved by EPA on January 6, 2012 (Oregon Air Monitoring Plan Approval Letter, dated January 6, 2012). As stated in the submittal, ODEQ and LRAPA operate a PM 10 monitoring network which includes site # 41-039-0058-81102-1 (Highway 99/Key Bank Site) in the Eugene-Springfield area. The Highway 99/Key Bank Site is operated in compliance with EPA monitoring guidelines set forth in 40 CFR part 58, Ambient Air Quality Surveillance. In addition, the submittal provides a commitment to continued operation of the PM 10 monitoring network and the Highway 99/Key Bank Site in the Eugene-Springfield area.

The CAA requires that contingency measures take effect if an area fails to meet RFP requirements or fails to attain the NAAQS by the applicable attainment date. Since, as part of this action, EPA has determined the Eugene-Springfield NAA attained the PM 10 NAAQS by the applicable attainment date of December 31, 1994, contingency measures are no longer required under section 172(c)(9) of the CAA. However, contingency provisions are required for maintenance plans under Section 175A. Please see section V. I. for a description of Oregon's maintenance plan contingency provisions.

Section 189(a), (c) and (e) requirements apply to moderate PM 10 nonattainment areas. Any of these requirements which were applicable and due prior to the submission of the redesignation request must be fully approved into the SIP before redesignating the area to attainment. With respect to the Eugene-Springfield NAA, these requirements include:

(a) Provisions to assure that reasonably available control measures were implemented by December 10, 1993 (section 189(a)(1)(C));

(b) either a demonstration that the plan provided for attainment as expeditiously as practicable, but not later than December 31, 1994, or a demonstration that attainment by that date was impracticable (section 189(a)(1)(B));

(c) quantitative milestones which were achieved every 3 years and which demonstrate RFP toward attainment by December 31, 1994 (section 189(c)(1)); and

(d) provisions to assure that the control requirements applicable to major stationary sources of PM 10 also apply to major stationary sources of PM 10 precursors except where the Administrator determined that such sources do not contribute significantly to PM 10 levels which exceed the NAAQS in the area (section 189(e)).

Provisions for reasonably available control measures, attainment demonstration, and RFP milestones were fully approved into the SIP upon EPA approval of the moderate PM 10 SIP for the Eugene-Springfield NAA on August 24, 1994 (59 FR 43483). EPA most recently approved revisions to Oregon's major NSR rules on December 27, 2011 (76 FR 80747). Oregon's major NSR rules include control requirements that apply to major stationary sources of PM 10 and PM 10 precursors in nonattainment areas, maintenance areas, and attainment/unclassifiable areas. For the Eugene-Springfield area, EPA determined that major stationary sources do not contribute significantly to PM 10 levels in excess of the NAAQS. Therefore, in EPA's action to approve the moderate PM 10 SIP for Eugene-Springfield, EPA granted the exclusion from control requirements authorized under section 189(e) for major stationary sources of PM 10 precursors (59 FR 43483).

Section 107(d)(3)(E)(iii) of the CAA provides that a nonattainment area may not be redesignated unless EPA determines that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the SIP. Therefore, a state must be able to reasonably attribute the improvement in air quality to permanent and enforceable emission reductions by demonstrating that air quality improvements are the result of actual enforceable emission reductions. This showing should consider emission rates, production capacities, and other related information. The analysis should assume that sources are operating at permitted levels (or historic peak levels) unless evidence is presented that such an assumption is unrealistic.

Permanent and enforceable control measures in the Eugene-Springfield moderate PM 10 SIP include a mandatory home wood heating curtailment program, and existing controls on local industrial sources. These controls were approved by EPA into the Eugene-Springfield PM 10 SIP, and they are both permanent and Federally enforceable (59 FR 43483). As described in the submittal, the primary control measure relied on is the mandatory home wood heating curtailment program which was fully implemented on November 1, 1991. The program consists of a daily multi-stage advisory issued each winter from November through the end of February. The daily advisory, which is based upon forecast meteorology and air quality, provides a color-coded stage based on air quality conditions. During good air quality conditions, a Green advisory allowing residential wood combustion is issued. If air quality conditions are deteriorating, a Yellow advisory requesting voluntary curtailment of residential wood burning is issued. If PM 10 levels are forecast to be near or exceeding the standard, a Red advisory prohibiting residential wood burning is issued (with an exemption for economic need). Each of the three jurisdictions in the Eugene-Springfield NAA—Lane County, the City of Eugene, and the City of Springfield—enacted ordinances that prohibit the use of solid-fuel space heating devices based on the advisories. The enforcement of these ordinances has been delegated to LRAPA.

EPA believes that areas that qualify for the LMP Option will meet the NAAQS, even under worst case meteorological conditions. Therefore, under the LMP Option, the maintenance demonstration is presumed to be satisfied if an area meets the qualifying criteria. A description of the LMP qualifying criteria and how the Eugene-Springfield area meets these criteria is provided below. By qualifying for the LMP Option, Oregon presumptively demonstrates that the air quality improvements in the Eugene-Springfield area are the result of permanent emission reductions and not a result of either economic trends or meteorology.

In this action, we are approving the LMP in accordance with the principles outlined in the LMP Option memo. Upon the effective date of this action, the area will have a fully approved maintenance plan.

The LMP Option memo outlines the requirements for an area to qualify for the LMP Option. First, the area should be attaining the NAAQS. In this action, EPA has determined that the Eugene-Springfield NAA attained the PM 10 NAAQS by the required attainment date, and continues to be in attainment with the PM 10 NAAQS. Please see section V. A. for a detailed discussion.

Second, the average design value (ADV) for the past 5 years of monitoring data must be at or below the critical design value (CDV). The CDV is a margin of safety value and is the value at which an area has been determined to have a 1 in 10 probability of exceeding the NAAQS. The LMP Option memo provides two methods for review of monitoring data for the purpose of qualifying for the LMP Option. The first method is a comparison of a site's ADV with the CDV of 98 µg/m 3 for the 24 hour PM 10 NAAQS and 40 µg/m 3 for the annual PM 10 NAAQS. A second method that applies to the 24-hour PM 10 NAAQS is the calculation of a site-specific CDV and a comparison of the site-specific CDV with the ADV for the past 5 years of monitoring data. The State's submittal provides a comparison of 5-year ADVs compared to the 24-hour and annual CDVs, as described in the first method for review of monitoring data to qualify for the LMP Option. Oregon's analysis demonstrates that the Eugene-Springfield NAA meets the LMP design value criteria for the period 2004-2008. Using EPA-recommended methodology, Oregon calculated the 24-hour ADV for the area to be 66 µg/m 3 , which is well below the CDV of 98 µg/m 3 . Oregon calculated the annual ADV to be 17 µg/m  3 , which is well below the CDV of 40 µg/m 3 . EPA has reviewed the Oregon calculations and concurs with the State's findings. EPA also calculated average design values using more recent data and found that the Eugene-Springfield area meets the LMP design value criteria for the period 2007-2011. EPA's design value calculations and analysis can be found in the docket for this action (Eugene-Springfield PM 10 NAAQS and LMP Determination Memo, dated July 23, 2012). Therefore, EPA finds that Eugene-Springfield meets the design value criteria outlined in the LMP Option memo.

Third, the area must meet the motor vehicle regional emissions analysis test in attachment B of the LMP Option memo. Using the methodology outlined in attachment B, Oregon submitted an analysis of whether increased emissions from on-road mobile sources would increase PM 10 concentrations in the Eugene-Springfield NAA to levels that would threaten the assumption of maintenance that underlies the LMP policy. Based on monitoring data for the period 2004-2008, Oregon has determined that the Eugene-Springfield NAA passes the motor vehicle regional emissions analysis test. EPA has reviewed the calculations in the State's submittal and concurs with this conclusion.

As described above, the Eugene-Springfield NAA meets the qualification criteria set forth in the LMP Option memo and therefore qualifies for the LMP Option. The LMP Option memo also indicates that once a state selects the LMP Option and it is in effect, the state will be expected to determine, on an annual basis, that the LMP criteria are still being met. If the state determines that the LMP criteria are not being met, it should take action to reduce PM 10 concentrations enough to requalify for the LMP Option. One possible approach the state could take is to implement contingency provisions. Please see Section V. I. for a description of contingency provisions submitted as part of the State's submittal.

As a result of the above analysis, EPA is approving the LMP for the Eugene-Springfield area and the State's request to redesignate the Eugene-Springfield NAA to attainment for PM 10 .

Pursuant to the LMP Option memo, the state's approved attainment plan should include an emissions inventory which can be used to demonstrate attainment of the NAAQS. The inventory should represent emissions during the same five-year period associated with air quality data used to determine whether the area meets the applicability requirements of the LMP Option. The state should review its inventory every three years to ensure emissions growth is incorporated in the inventory if necessary.

Oregon's submittal includes an emissions inventory for the year 2008. After reviewing the 2008 emissions inventory and determining that it is current, accurate and complete, as well as reviewing monitoring data for the years 2004-2008, EPA has determined that the 2008 emissions inventory is representative of the attainment year inventory since the NAAQS was not violated during 2008. In addition, the year 2008 is representative of the level of emissions during the time period used to calculate the average design value since 2008 is one of the years during the five year period used to calculate the design value (2004-2008). The submittal meets EPA guidance, as described above, for purposes of an attainment emissions inventory.

PM 10 monitoring was established in the Eugene-Springfield area in 1984. LRAPA currently maintains a PM 10 monitoring network which includes the Highway 99/Key Bank Site within the Eugene-Springfield area. Oregon and LRAPA's monitoring network was developed and has been maintained in accordance with Federal siting and design criteria in 40 CFR part 58 and in consultation with EPA Region 10. EPA most recently approved Oregon's air monitoring plan, on January 6, 2012 (Oregon Air Monitoring Plan Approval Letter, dated January 6, 2012). In the submittal, LRAPA states that it will continue to monitor for PM 10 in the Eugene-Springfield NAA.

CAA section 175A states that a maintenance plan must include contingency provisions, as necessary, to promptly correct any violation of the NAAQS which may occur after redesignation of the area to attainment. As explained in the LMP Option memo and Calcagni memo, these contingency provisions are considered to be an enforceable part of the SIP. The plan should clearly identify the provisions to be adopted, a schedule and procedures for adoption and implementation, and a specific time limit for action by the state. The maintenance plan should identify the events that would “trigger” the adoption and implementation of a contingency provision, the contingency provision that would be adopted and implemented, and the schedule indicating the time frame by which the state would adopt and implement the provision. The LMP Option memo and Calcagni memo state that EPA will review what constitutes a contingency plan on a case-by-case basis. At a minimum, it must require that the State will implement all measures contained in the Part D nonattainment plan for the area prior to redesignation.

In the submittal, ODEQ and LRAPA have included maintenance plan contingency provisions to ensure the area continues to meet the PM 10 NAAQS. Specifically, ODEQ and LRAPA submitted revised local home wood heating curtailment program requirements for the three jurisdictions in the area, specifically, Eugene, Springfield and Lane County. The local ordinances implementing the program have been strengthened to include a requirement prohibiting solid fuel space heating devices from burning plastics, petroleum by-products, petroleum treated materials, rubber products, animal remains, animal or vegetable matter resulting from the handling, preparation, cooking or service of food, or of any other material which normally emits dense smoke or noxious odors. In addition, during a Green or Yellow advisory, the discharge of emissions from a solid fuel space heating device is now limited to a maximum opacity of 40%, with a 10 minute exemption during every 4-hour period for the building of a new fire. These revised ordinances have been adopted by the local jurisdictions and are currently being implemented in the Eugene-Springfield area. The ordinances each specify “triggers” for implementing provisions, based on forecasted PM 10 levels. In addition to the local home wood heating curtailment program, the LMP references the Oregon “Heat Smart” law. This law has been adopted state-wide and requires the removal and decommissioning of any uncertified woodstove or fireplace insert from a home when it is sold.

The contingency provisions submitted by ODEQ and LRAPA have been adopted by the local jurisdictions, are currently being implemented in the Eugene-Springfield area, and contain triggers based on forecasted PM 10 levels for implementing specific provisions to reduce particulate matter emissions from home wood heating. Therefore, EPA believes the contingency provisions are adequate to meet CAA Section 175A requirements.

Under the LMP Option, emissions budgets are treated as essentially not constraining for the maintenance period because it is unreasonable to expect that qualifying areas would experience so much growth in that period that a NAAQS violation would result. While areas with maintenance plans approved under the LMP Option are not subject to the budget test, the areas remain subject to other transportation conformity requirements of 40 CFR part 93, subpart A. Thus, the metropolitan planning organization (MPO) in the area or the state must document and ensure that:

a. Transportation plans and projects provide for timely implementation of SIP transportation control measures (TCMs) in accordance with 40 CFR 93.113;

b. Transportation plans and projects comply with the fiscal constraint element per 40 CFR 93.108;

c. The MPO's interagency consultation procedures meet applicable requirements of 40 CFR 93.105;

d. Conformity of transportation plans is determined no less frequently than every three years, and conformity of plan amendments and transportation projects is demonstrated in accordance with the timing requirements specified in 40 CFR 93.104;

e. The latest planning assumptions and emissions model are used as set forth in 40 CFR 93.110 and 40 CFR 93.111;

f. Projects do not cause or contribute to any new localized carbon monoxide or particulate matter violations, in accordance with procedures specified in 40 CFR 93.123; and

g. Project sponsors and/or operators provide written commitments as specified in 40 CFR 93.125.

In a letter to LRAPA dated October 3, 1994, EPA determined that the Eugene-Springfield area met the criteria to be exempted from regional emissions analysis for PM 10 (Conformity Letter, dated October 3, 1994). However, project level conformity requirements would continue to apply to the area. With EPA's approval of the LMP, the area continues to be exempt from performing a regional emissions analysis, but must meet project-level conformity analyses as well as the transportation conformity criteria mentioned above.

For Federal actions which are required to address the specific requirements of the general conformity rule, one set of requirements applies particularly to ensuring that emissions from the action will not cause or contribute to new violations of the NAAQS, exacerbate current violations, or delay timely attainment. One way that this requirement can be met is to demonstrate that “the total of direct and indirect emissions from the action (or portion thereof) is determined and documented by the State agency primarily responsible for the applicable SIP to result in a level of emissions which, together with all other emissions in the nonattainment area, would not exceed the emissions budgets specified in the applicable SIP” (40 CFR 93.158(a)(5)(i)(A)).

The decision about whether to include specific allocations of allowable emissions increases to sources is one made by the state and local air quality agencies. These emissions budgets are different than those used in transportation conformity. Emissions budgets in transportation conformity are required to limit and restrain emissions. Emissions budgets in general conformity allow increases in emissions up to specified levels. Oregon has not chosen to include specific emissions allocations for Federal projects that would be subject to the provisions of general conformity.

In the submittal, Oregon included revisions to Oregon Administrative Rules (OAR) and LRAPA rules in the SIP to reflect the redesignation of the Eugene-Springfield area. In this action, EPA is approving changes to OAR Chapter 340, Division 204 Designation of Air Quality Areas, Rule 0030 Designation of Nonattainment Areas and Rule 0040 Designation of Maintenance Areas to remove Eugene-Springfield from the list of PM 10 nonattainment areas and add the area to the list of PM 10 maintenance areas. In addition, EPA is approving minor editorial changes to OAR Chapter 340, Division 204 Designation of Air Quality Areas, Rule 0010 Definitions to consistently refer to the Eugene-Springfield “Urban Growth Boundary” rather than the Eugene-Springfield “Urban Growth Area.” EPA is taking no action on OAR Chapter 340, Division 200 General Air Pollution Procedures and Definitions, Rule 0040 State of Oregon Clean Air Act Implementation Plan because this rule describes the State's procedures for adopting its SIP and incorporates by reference all of the revisions adopted by the Environmental Quality Council for approval into the Oregon SIP (as a matter of state law). This is not what is actually approved by EPA as the Federally-enforceable SIP for Oregon, so we are therefore taking no action on it.

EPA is also approving changes to LRAPA Title 29 Designation of Air Quality Areas, Section 29-0030 Designation of Nonattainment Areas and Section 29-0040 Designation of Maintenance Areas to remove Eugene-Springfield from the list of PM 10 nonattainment areas and add the area to the list of PM 10 maintenance areas. In addition, EPA is approving minor editorial changes to LRAPA Title 29, Designation of Air Quality Areas, Section 29-0010 Definitions to refer to the Eugene-Springfield “Urban Growth Boundary” rather than the Eugene-Springfield “Urban Growth Area.”

Finally, EPA is approving changes to LRAPA Title 32 Emission Standards, Section 32-060 Air Conveying Systems and Section 32-065 Sulfur Content of Fuels to ensure the requirements of these rules continue to apply to the Eugene-Springfield area after redesignation.

EPA is taking direct final action to approve the LMP submitted by the State of Oregon for the Eugene-Springfield NAA and concurrently redesignate the area to attainment for the PM 10 NAAQS. EPA has reviewed air quality data for the area and determined that the Eugene-Springfield NAA attained the PM 10 NAAQS by the required attainment date, and that air monitoring data continue to show attainment. Also in this action, EPA is approving revisions to rules in the State's Federally-approved SIP to reflect the redesignation. EPA is approving this revision to the SIP because it meets the CAA requirements for redesignation.

EPA is publishing this action without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comments. However, in the proposed rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision should adverse comments be filed. This rule will be effective June 10, 2013 without further notice unless the Agency receives adverse comments by May 13, 2013.

If EPA receives such comments, then EPA will publish a timely withdrawal of the direct final rule informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period on this rule. Any parties interested in commenting on this rule should do so at this time. If no such comments are received, the public is advised that this rule will be effective on June 10, 2013 and no further action will be taken on the proposed rule.

Oregon Revised Statute 468.126 prohibits ODEQ from imposing a penalty for violation of an air, water or solid waste permit unless the source has been provided five days' advanced written notice of the violation and has not come into compliance or submitted a compliance schedule within that five day period. By its terms, the statute does not apply to Oregon's Title V program or to any program if application of the notice provision would disqualify the program from Federal delegation. Oregon has previously confirmed that, because application of the notice provision would preclude EPA approval of the Oregon SIP, no advance notice is required for violation of SIP requirements.

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

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

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

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

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

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

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

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

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

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

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and 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 June 10, 2013. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)).

40 CFR part 52 is amended as follows:

This is a synopsis of the Commission's Report and Order, MB Docket No. 13-73, adopted March 15, 2013, and released March 18, 2013. The full text of this document is available for public inspection and copying during normal business hours in the FCC's Reference Information Center at Portals II, CY-A257, 445 12th Street SW., Washington, DC 20554. This document will also be available via ECFS ( http://fjallfoss.fcc.gov/ecfs/ ). This document may be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., 445 12th Street SW., Room CY-B402, Washington, DC 20554, telephone 1-800-478-3160 or via the company's Web site, http://www.bcpiweb.com. 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 & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).

This document does not contain information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any information collection burden “for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4). Provisions of the Regulatory Flexibility Act of 1980 do not apply to this proceeding.

The Commission will send a copy of this Report and Order in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional review Act, see 5 U.S.C. 801(a)(1)(A).

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 73 as follows: