This rule is issued under Marketing Agreement No. 148 and Order No. 932, both as amended (7 CFR part 932), regulating the handling of olives grown in California, 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 Orders 12866, 13563, and 13175.

Under the order, California olive 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 California olives for the entire fiscal year and continue indefinitely until amended, suspended, or terminated. The Committee's fiscal year began on January 1 and ends on December 31.

In an interim rule published in the Federal Register on March 14, 2014, and effective on March 15, 2014, (79 FR 14367, Doc. No. AMS-FV-14-0002, FV14-932-1 IR), § 932.230 was amended by decreasing the assessment rate established for California olives for the 2014 and subsequent fiscal years from $21.16 to $15.21 per ton of assessable olives. Income derived from handler assessments plus funds from the carryover reserve will be adequate to cover budgeted 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 businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and 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 1,000 producers of California olives in the production area and two handlers subject to regulation under the marketing order. Small agricultural producers are defined by the Small Business Administration 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).

In addition, based on information provided by the industry and the California Agricultural Statistics Service, the average grower price for 2013 was approximately $1,057.56 per ton of assessable olives, and total grower deliveries were 79,495 tons. Based on production, producer prices, and the total number of California olive producers, the average annual producer revenue is less than $750,000. In view of the foregoing, the majority of California olive producers may be classified as small entities. Neither of the two California olive handlers 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 2014 and subsequent fiscal years from $21.16 to $15.21 per ton of assessable olives. The Committee unanimously recommended 2014 expenditures of $1,262,460. The quantity of assessable California olives for the 2013-14 season is 79,495 tons. However, the quantity of olives actually assessed is expected to be slightly lower because some of the tonnage may be diverted by handlers to exempt outlets on which assessments are not paid. Income derived from the assessment rate of $15.21 combined with carryover reserve funds should provide assessment income adequate to meet this year's expenses.

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 California olive industry, and all interested persons were invited to attend the meeting and participate in Committee deliberations on all issues. Like all Committee meetings, the December 9, 2013, 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. 0581-0178, Generic Vegetable 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 of the two California olive 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 May 13, 2014. 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-14-0002-0001.

This action also affirms information contained in the interim rule concerning Executive Orders 12866, 12988, 13175, and 13563; 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 (79 FR 14367, March 14, 2014) will tend to effectuate the declared policy of the Act.

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

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

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

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

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866;(2) is not a “significant rule ” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26,1979) ; and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

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

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

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

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

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

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

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

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

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

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

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

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

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

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

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

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

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

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

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

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866;(2) is not a “significant rule ” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26,1979) ; and (3)does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

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

In the Federal Register of April 11, 2014 (79 FR 20095), we amended the color additive regulations in § 73.530 Spirulina extract (21 CFR 73.530) to expand the permitted use of spirulina extract made from the dried biomass of the cyanobacteria A. platensis, as a color additive in confections (including candy and chewing gum), frostings, ice cream and frozen desserts, dessert coatings and toppings, beverage mixes and powders, yogurts, custards, puddings, cottage cheese, gelatin, breadcrumbs, and ready-to-eat cereals (excluding extruded cereals).

We gave interested persons until May 12, 2014, to file objections or requests for a hearing. We received no objections or requests for a hearing on the final rule. Therefore, we find that the effective date of the final rule that published in the Federal Register of April 11, 2014, should be confirmed.

Purpose of Program: The UISFL Program provides grants for planning, developing, and carrying out programs to strengthen and improve undergraduate instruction in international studies and foreign languages.

Final Priority: Applications from Minority-Serving Institutions (MSIs) (as defined in this notice) or community colleges (as defined in this notice), whether as individual applicants or as part of a consortium of institutions of higher education (IHEs) (consortium) or a partnership between nonprofit educational organizations and IHEs (partnership).

An application from a consortium or partnership that has an MSI or community college as the lead applicant will receive more points under this priority than applications where the MSI or community college is a member of a consortium or partnership but not the lead applicant.

A consortium or partnership must undertake activities designed to incorporate foreign languages into the curriculum of the MSI or community college and to improve foreign language and international or area studies instruction on the MSI or community college campus.

For the purpose of this priority:

Community college means an institution that meets the definition in section 312(f) of the Higher Education Act of 1965, as amended (HEA) (20 U.S.C. 1058(f)); or an institution of higher education (as defined in section 101 of the HEA (20 U.S.C. 1001)) that awards degrees and certificates, more than 50 percent of which are not bachelor's degrees (or an equivalent) or master's, professional, or other advanced degrees.

Minority-Serving Institution means an institution that is eligible to receive assistance under sections 316 through 320 of part A of Title III, under part B of Title III, or under Title V of the HEA.

When inviting applications for a competition using one or more priorities, we designate the type of each priority as absolute, competitive preference, or invitational through a notice in the Federal Register . The effect of each type of priority follows:

Absolute priority: Under an absolute priority, we consider only applications that meet the priority (34 CFR 75.105(c)(3)).

Competitive preference priority: Under a competitive preference priority, we give competitive preference to an application by (1) awarding additional points, depending on the extent to which the application meets the priority (34 CFR 75.105(c)(2)(i)); or (2) selecting an application that meets the priority over an application of comparable merit that does not meet the priority (34 CFR 75.105(c)(2)(ii)).

Invitational priority: Under an invitational priority, we are particularly interested in applications that meet the priority. However, we do not give an application that meets the priority a preference over other applications (34 CFR 75.105(c)(1)).

This notice does not preclude us from proposing additional priorities, requirements, definitions, or selection criteria, subject to meeting applicable rulemaking requirements.

Under Executive Order 12866, the Secretary must determine whether this regulatory action is “significant” and, therefore, subject to the requirements of the Executive order and subject to review by OMB. Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action likely to result in a rule that may—

(1) Have an annual effect on the economy of $100 million or more, or adversely affect a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities in a material way (also referred to as an “economically significant” rule);

(2) Create serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3) Materially alter the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or

(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles stated in the Executive order.

This final regulatory action is not a significant regulatory action subject to review by OMB under section 3(f) of Executive Order 12866.

We have also reviewed this final regulatory action under Executive Order 13563, which supplements and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866. To the extent permitted by law, Executive Order 13563 requires that an agency—

(1) Propose or adopt regulations only upon a reasoned determination that their benefits justify their costs (recognizing that some benefits and costs are difficult to quantify);

(2) Tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives and taking into account—among other things and to the extent practicable—the costs of cumulative regulations;

(3) In choosing among alternative regulatory approaches, select those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity);

(4) To the extent feasible, specify performance objectives, rather than the behavior or manner of compliance a regulated entity must adopt; and

(5) Identify and assess available alternatives to direct regulation, including economic incentives—such as user fees or marketable permits—to encourage the desired behavior, or provide information that enables the public to make choices.

Executive Order 13563 also requires an agency “to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.” The Office of Information and Regulatory Affairs of OMB has emphasized that these techniques may include “identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes.”

We are issuing this final priority only on a reasoned determination that its benefits justify its costs. In choosing among alternative regulatory approaches, we selected those approaches that maximize net benefits. Based on the analysis that follows, the Department believes that this regulatory action is consistent with the principles in Executive Order 13563.

We also have determined that this regulatory action does not unduly interfere with State, local, and tribal governments in the exercise of their governmental functions.

In accordance with both Executive orders, the Department has assessed the potential costs and benefits, both quantitative and qualitative, of this regulatory action. The potential costs are those resulting from statutory requirements and those we have determined as necessary for administering the Department's programs and activities.

Intergovernmental Review: This program is subject to Executive Order 12372 and the regulations in 34 CFR part 79. One of the objectives of the Executive order is to foster an intergovernmental partnership and a strengthened federalism. The Executive order relies on processes developed by State and local governments for coordination and review of proposed Federal financial assistance.

This document provides early notification of our specific plans and actions for this program.

Accessible Format: Individuals with disabilities can obtain this document in an accessible format (e.g., braille, large print, audiotape, or compact disc) on request to the program contact person listed under FOR FURTHER INFORMATION CONTACT .

Electronic Access to This Document: The official version of this document is the document published in the Federal Register . Free Internet access to the official edition of the Federal Register and the Code of Federal Regulations is available via the Federal Digital System at: www.gpo.gov/fdsys. At this site you can view this document, as well as all other documents of this Department published in the Federal Register , in text or Adobe Portable Document Format (PDF). To use PDF you must have Adobe Acrobat Reader, which is available free at the site.

You may also access documents of the Department published in the Federal Register by using the article search feature at: www.federalregister.gov. Specifically, through the advanced search feature at this site, you can limit your search to documents published by the Department.

We published a proposed rule on this subject in the Federal Register on August 29, 2013 (78 FR 53383). The proposed rule's comment period ended on October 28, 2013, and resulted in three timely submitted comments, a portion of which were duplicative of each other. After carefully considering the comments, we have decided to adopt the proposed rule unchanged. The comments and our considerations are summarized in this preamble under Consideration of Comments.

The National Park Service (NPS) is responsible for protecting and managing fourteen national cemeteries, which are administered as integral parts of larger NPS historical units. A list of the national cemeteries managed by the NPS may be viewed at http://www.cem.va.gov/cem/cems/doi.asp .

The national cemeteries administered by the NPS have been set aside as resting places for members of the fighting forces of the United States. Many activities and events that may be appropriate in other park areas are inappropriate in a national cemetery because of its protected atmosphere of peace, calm, tranquility, and reverence. The NPS continues to maintain its substantial interest in maintaining this protected atmosphere in its national cemeteries, where individuals can quietly visit, contemplate, and reflect upon the significance of the contributions made to the nation by those who have been interred there.

In Boardley v. Department of the Interior, 605 F.Supp. 2d 8 (D.D.C. 2009), the United States District Court for the District of Columbia noted that the NPS definition of the term demonstration in 36 CFR 2.51(a) and 7.96(g)(1)(i) could pose a problem on the scope of the agency's discretion, insofar as it could be construed to allow NPS officials to restrict speech based on their determination that a person intended to draw a crowd with their conduct. The NPS had not applied, nor intended to apply, its regulations in an impermissible manner. Nevertheless, to address the District Court's concerns in Boardley, the NPS narrowed the definition of demonstration in 36 CFR 2.50, 2.51, and 7.96 (78 FR 14673, March 7, 2013; 78 FR 37713, June 24, 2013).

The NPS desires to maintain consistency in the regulations governing demonstrations and special events in park units, including our national cemeteries. Accordingly, we proposed to amend the terms demonstration and special event in § 12.3 to mirror the language used in 36 CFR 2.51 and 7.96. To avoid the possibility of a decision based on impermissible grounds, the rule revises the § 12.3 definitions of demonstration and special event by eliminating the terms “intent, effect, or likelihood” and replacing them with the term “reasonably likely to draw a crowd or onlookers.” These proposed revisions do not substantively alter the § 12.4 prohibition of special events and demonstrations within national cemeteries.

Comment 1: The first commenter suggests the phrase “that attracts or” be added to the definition before the phrase “is reasonably likely to attract.” The commenter suggests this would help “avoid quarrelsome demonstrator's [sic] efforts to subvert the rule's purpose by arguing what is `reasonably likely'.”

Response: After review, we believe the suggested additional phrase is unnecessary. As explained in the proposed rule preamble, we believe that a “reasonably likely” standard is objective and easily and consistently understood. Further, this same standard has been successfully implemented in NPS regulations governing “demonstrations” in 36 CFR 2.50, 2.51, and 7.96.

Comment 2: The second commenter suggests that “peaceful demonstrations or vigils” should be allowed to occur in national cemeteries if they do not interfere with the NPS interests in maintaining a solemn atmosphere. The comment also suggests that while the NPS's revised definition is a more objective standard, it lacks a necessary mens rea requirement and guidance “as to what is reasonably likely to draw a crowd.”

Response: After review, the NPS respectfully disagrees. As detailed in the proposed rule, the NPS's national cemeteries were established as national shrines in tribute to the gallant dead of our Armed Forces, and are to be protected, managed, and administered as suitable and dignified burial grounds and as significant cultural resources. These national cemeteries are intended to have a protected atmosphere of peace, calm, tranquility, and reverence, where individuals should be able to quietly contemplate and reflect upon the significance of the contributions made to the nation by those interred. Because the NPS has a substantial governmental interest to maintain this protected atmosphere, we have determined that even “peaceful” demonstrations and vigils would have a negative impact on the cemeteries' atmosphere of peace, calm, tranquility, and reverence, and should be prohibited.

Moreover, because the NPS national cemeteries are non-public forums, the NPS need not prove that a “peaceful” demonstration or vigil threatens the cemetery's intended use. The Supreme Court has said that such a determination is not necessary for nonpublic forums, where “[t]he State, no less than a private owner of property, has power to preserve property under its control for the use to which it is lawfully dedicated.” “We have not required that [proof of past disturbances or likelihood of future disturbances] be present to justify the denial of access to a non-public forum on grounds that the proposed use may disrupt the property's intended function.” Perry Education Ass'n v. Perry Local Educators' Ass'n, 460 U.S. at 46, 52 n.12 (1983).

The NPS rule does contain an implicit mens rea requirement, a criminal-intent element that courts generally find necessary for criminal regulations that impact First Amendment activity, and which may be found either in the rule's text, its regulatory history, or presumed by the courts. Finally, for the reasons earlier detailed, we believe that the “reasonably likely” standard is well understood.

Comment 3: The third commenter argues that the verb form definition of the word “conduct” and the phrase “casual park use” are ambiguous, suggests these could be construed to prohibit a mother who “inadvertently lets out a wail of despair” at the grave of her deceased son, and recommends that the word “conduct” be deleted.

Response: After review, we believe that neither the word nor phrase is ambiguous, when one fully considers the NPS's complete two-sentence definition. The NPS notes that the word “conduct” is being used in its noun form, which addresses the manner in which a person behaves, and which the commenter concedes is not ambiguous. As earlier explained, the regulation's “reasonably likely” standard is also well understood. As such, an expression of grief that is uttered by a mother at her son's grave-side would not fall within the definition of a demonstration, especially since the national cemeteries are “where individuals can quietly visit, contemplate, and reflect upon the significance” of the interned. (78 FR 53384, August 29, 2013)

For the reasons detailed here and in the proposed rule, and consistent with First Amendment jurisprudence, the NPS is accordingly finalizing unchanged its proposed revised definitions of the terms demonstrations and special events at 36 CFR 12.3.

Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget will review all significant rules. OIRA has determined that this rule is not significant.

Executive Order 13563 reaffirms the principles of Executive Order 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. Executive Order 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.

This rule will not have a significant economic effect on a substantial number of small entities under the RFA (5 U.S.C. 601 et seq. ).

This rule is not a major rule under 5 U.S.C. 804(2), the SBREFA. This rule:

(a) Does not have an annual effect on the economy of $100 million or more.

(b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions.

(c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

This rule does not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on State, local or tribal governments or the private sector. It addresses public use of national park lands, and imposes no requirements on other agencies or governments. A statement containing the information required by the UMRA (2 U.S.C. 1531 et seq. ) is not required.

This rule does not affect a taking of private property or otherwise have taking implications under Executive Order 12630. A takings implication assessment is not required.

Under the criteria in section 1 of Executive Order 13132, the rule does not have sufficient federalism implications to warrant the preparation of a Federalism summary impact statement. This proposed rule only affects use of NPS administered lands and waters. It has no outside effects on other areas. A Federalism summary impact statement is not required.

This rule complies with the requirements of Executive Order 12988. Specifically, this rule:

(a) Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and

(b) Meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards.

The Department of the Interior strives to strengthen its government-to-government relationship with Indian tribes through a commitment to consultation with Indian tribes and recognition of their right to self-governance and tribal sovereignty. We have evaluated this rule under the Department's consultation policy and under the criteria in Executive Order 13175 and have determined that it has no substantial direct effects on federally recognized Indian tribes and that consultation under the Department's tribal consultation policy is not required.

This rule does not contain information collection requirements, and a submission to the Office of Management and Budget under the PRA is not required.

This rule does not constitute a major Federal action significantly affecting the quality of the human environment. A detailed statement under the NEPA of 1969 is not required because we have determined the rule is categorically excluded under 43 CFR 46.210(i) because it is administrative, legal, and technical in nature. We have also determined that the rule does not involve any of the extraordinary circumstances listed in 43 CFR 46.215 that would require further analysis under the NEPA.

This rule is not a significant energy action under the definition in Executive Order 13211. A Statement of Energy Effects in not required.

Drafting Information: The primary author of this regulation was C. Rose Wilkinson, National Park Service, Regulations and Special Park Uses, Washington, DC.

In consideration of the foregoing, the National Park Service amends 36 CFR Part 12 as follows:

The following modifications and corrections will update five roadless areas due to land exchanges that occurred after the Idaho Roadless Rule was finalized, correct two roadless area mapping errors associated with Forest Plan Special Areas, and correct the list at 36 CFR 294.29 because an area had been inappropriately shown as only located on the Idaho Panhandle National Forest instead of split between the Idaho Panhandle and Kootenai National Forests. The Idaho Roadless Rule authorizes administrative corrections to the maps of lands identified in 36 CFR 294.22(c), including but not limited to, adjustment that remedy clerical errors, typographical errors, mapping errors, or improvements in mapping technology. Pursuant to 36 CFR 294.27(b), the Chief of the Forest Service may issue administrative corrections after a 30-day public notice and opportunity to comment. The Final Rule also authorizes modifications that add to, remove from, or modify the designations and management classifications listed in 36 CFR 294.29 based on changed circumstances or public need. The Chief of the Forest Service may issue modifications after a 45-day public notice and opportunity to comment.

The Forest Service published a proposed rule in the Federal Register on April 19, 2013 (78 FR 23522) for a 45-day public comment period. The Forest Service presented the corrections and modifications to the State of Idaho's Roadless Rule Advisory Commission on April 5, 2012 and the Governor of Idaho has recommended the Forest Service proceed with the modifications.

The Forest Service received two comments on the proposed modifications and corrections.

The first respondent was opposed to the expansion of the five Idaho Roadless Areas. This respondent did not feel the expansion would better the country, state, counties, and cities .

Response: The modifications to the five Idaho Roadless Areas adds 1,464 acres to the existing 9.3 million acres of roadless areas in Idaho. The additions are necessary because of land exchanges that occurred since the Idaho Roadless Rule was finalized. All the acres are either surrounded by existing Idaho Roadless Areas or are adjacent to an existing Idaho Roadless Area. Adding these lands to existing or adjacent roadless areas will result in a consistent management approach. The Idaho Roadless Rule represents a compromise that balances the nationally recognized need for conservation of roadless areas with being more responsive to local communities and citizens.

The second respondent agreed with the modifications and administrative corrections to Big Creek, Pinchot Butte, Roland Point, Wonderful Peak, Salmo-Priest, and Upper Priest Idaho Roadless Areas, but did not agree with two of the five modifications to Grandmother Mountain. Two of the parcels are adjacent to lands classified as Wildland Recreation and lands classified as Backcountry/Restoration. The respondent believes the acquired lands should be classified as Wildland Recreation, not Backcountry/Restoration .

Response: The Forest Service believes the Backcountry/Restoration is the more appropriate management classification for these parcels for two reasons. First, the majority of the parcels border existing Idaho Roadless Areas classified as Backcountry Restoration. A smaller portion of the parcels that border existing Idaho Roadless Areas classified as Wildland Recreation. Second, the respondent is a member of the State of Idaho's Roadless Rule Advisory Commission and supported the Commission's April 23, 2012 letter to the Governor of Idaho supporting the proposed modifications.

The Forest Service is modifying the following Idaho Roadless Areas due to acquisition of lands through land exchanges that occurred since the Idaho Roadless Rule was finalized in the fall of 2008. These modifications will update the maps with correct ownership and management classifications.

Big Creek Idaho Roadless Area #143. Two parcels of land, 158 acres, are added to the Big Creek roadless area and are classified as Backcountry Restoration. These modifications occur in T46N, R2E, section 11; and T47N, R2E, section 35, Boise Meridian and were part of the Spooky Butte Land Exchange.

Grandmother Mountain Idaho Roadless Area #148. Five parcels of land, 1,107 acres, are added to Grandmother Mountain roadless area and are classified as Backcountry Restoration. These modifications occur in T43N, R3E, section 26; and T43N, R4E, sections 5, 7, 17, and 31, Boise Meridian and were part of the Grandmother Mountain Land Exchange and an unnamed land exchange with a single party.

Pinchot Butte Idaho Roadless Area #149. One parcel of land, 80 acres, is added to Pinchot Butte roadless area and is classified as Backcountry Restoration. Bureau of Land Management lands surround this parcel on three sides and are also roadless. These modifications occur in T43N, R4E, section 33, Boise Meridian and were part of the Grandmother Mountain Land Exchange.

Roland Point Idaho Roadless Area #146. One parcel of land, 60 acres, is added to Roland Point roadless area and will be classified as Backcountry Restoration. These modifications occur in T47N, R6E, sections 29, 31, and 32, Boise Meridian and were part of the Lucky Swede Land Exchange.

Wonderful Peak Idaho Roadless Area #152. One parcel of land, 59 acres, is added to Wonderful Peak roadless area and will be classified as Backcountry Restoration. These modifications occur in T47N, R6E, sections 19 and 20, Boise Meridian and were part of the Olson Wondeful Land Exchange.

Salmo-Priest Idaho Roadless Area #981. The Idaho Roadless Rule is modified to correct a mapping error. A small portion (65 acres) of the Salmo- Priest Idaho Roadless Area is changed from a Forest Plan Special Area to Wild Land Recreation. This change reflects the width of the eligible Wild and Scenic River (Hughes Fork) located in this section. These modifications occur in T63N, R5W, sections 5 and 6; T64N, R5W, sections 20, 28 and 29, Boise Meridian.

Upper Priest Idaho Roadless Area #123. The Idaho Roadless Rule is modified to correct a mapping error. A small portion (112 acres) of the Upper Priest Roadless Area is changed from Backcountry/Restoration to a Forest Plan Special Area. This change reflects the width of the eligible Wild and Scenic River (Hughes Fork) located in this section. These proposed modifications occur in T62N, R4W, sections 6, 7 and 8; T62N, R5W, section 1; T63N, R5W, sections 12, 13, 16, 21, 28, 33, and 34, Boise Meridian.

For the reasons set forth in the preamble, the Forest Service amends part 294 of Title 36 of the Code of Federal Regulations as follows:

Throughout this document whenever “we,” “us,” or “our” is used, we mean the EPA. Information is organized as follows:

The EPA is taking final action to partially approve and partially disapprove the Washington Regional Haze SIP submitted on December 22, 2010. In this action, the EPA is approving the following provisions of the Washington SIP: The identification of affected Class I areas and determination of baseline conditions, the natural conditions and uniform rate of progress (URP) for each Class I area; the emission inventories; the sources of visibility impairment in Washington's Class I areas; the State's monitoring strategy; the State's consultation with other states and Federal Land Managers (FLMs); the reasonable progress goals (RPGs); the long-term strategy (LTS); and the commitment to submit the periodic SIP revisions and 5-year Progress Reports.

In today's action, we are also approving the State's BART determinations for the BP Cherry Point Refinery, the Port Townsend Paper Company, the LaFarge North America facility, and Weyerhaeuser's Longview facility, as well as portions of the BART determinations for the Tesoro refinery and the Intalco facility. The EPA is disapproving Washington's NO X BART determination and promulgating a BART Alternative for five emission units at the Tesoro refinery. The EPA is also finalizing a limited approval and limited disapproval of the State's SO 2 BART determination for the potlines at the Intalco facility and promulgating an SO 2 BART Alternative for the potlines, consisting of an annual limit of 80% of base year SO 2 emissions. Finally, the EPA is disapproving the State's BART exemption for the Wenatchee Works and promulgating BART for SO 2 , NO X , and PM emissions at the facility.

The resulting BART FIP for the Tesoro refinery, the Intalco facility, and the Wenatchee Works does not require the purchase or installation of new air pollution control equipment, but rather establishes BART based on existing control technology. Thus, the only additional costs incurred by these facilities will be minimal expenditures for monitoring, reporting, and recordkeeping. The benefit to the environment is the prevention of visibility degradation due to potential future increases in emissions from changes envisioned at the facilities.

This final action is consistent with our proposed actions and meets the requirements of CAA sections 169A and 169B and 40 CFR 51.308.

In the CAA Amendments of 1977, Congress established a program to protect and improve visibility in national parks and wilderness areas. See CAA section 169A. Congress amended the visibility provisions in the CAA in 1990 to focus attention on the problem of regional haze. See CAA section 169B. The EPA promulgated regulations in 1999 to implement sections 169A and 169B of the Act. These regulations require states to develop and implement plans to ensure reasonable progress toward improving visibility in mandatory Class I Federal areas  1 (Class I areas). 64 FR 35714 (July 1, 1999); See also 70 FR 39104 (July 6, 2005).

On behalf of the State of Washington, the Washington State Department of Ecology (Ecology) submitted its Regional Haze State Implementation Plan (Regional Haze SIP or SIP) to the EPA on December 22, 2010. In an action published on December 6, 2012, the EPA approved BART provisions for the TransAlta Centralia Generation, LLC coal-fired power plant. 77 FR 72742.

On December 26, 2012, the EPA proposed to partially approve and partially disapprove the remaining portions of the Washington Regional Haze SIP covering the first implementation period (77 FR 76714). In that action, the EPA proposed to approve the following SIP elements:

We proposed to approve Washington's identification of affected Class I areas in the State. The State calculated the baseline visibility conditions in each Class I area using data from the Interagency Monitoring of Protected Visual Environments (IMPROVE) from monitoring sites representing each Class I area.

We proposed to approve the State's determination of natural conditions and the uniform rate of progress (URP) for each Class I area. Washington used the Western Regional Air Partnership (WRAP) derived natural visibility conditions. In general, the WRAP based their estimates on the EPA guidance document titled, “Guidance for Estimating Natural Visibility Conditions Under the Regional Haze Program” (EPA-45/B-03-0005 September 2003). However, the WRAP incorporated refinements into its estimates that the EPA believes provide results more appropriate for western states than the general EPA default approach.

We proposed to approve the statewide emission inventory of pollutants that are reasonably anticipated to cause or contribute to visibility impairment in the Class I areas. The WRAP, with data supplied by Washington, compiled emission inventories for all major source categories in Washington for the 2002 baseline year and for estimated emissions in 2018. Emission estimates for 2018 were generated from anticipated population growth, growth in industrial activity, and emission reductions from implementation of expected control measures, e.g., implementation of BART emission limitations and reductions in motor vehicle tailpipe emissions.

We proposed to approve the State's identification of the sources of visibility impairment in each Washington Class I areas, which used the approach and modeling tools recommended by the WRAP. These modeling tools were state-of-the-science, and the EPA determined that these tools were appropriately used by WRAP for regional haze planning.

We proposed to approve the State's monitoring strategy. The primary monitoring network for regional haze in Washington is the IMPROVE network. There are currently IMPROVE monitoring sites that represent conditions for all Class I areas in Washington. The State commits to rely on the IMPROVE network for future regional haze implementation periods. Data from the IMPROVE network will be used for preparing the 5-year progress reports and the 10-year SIP revisions.

We proposed to approve the State's consultation with other states and FLMs. Through the WRAP, member states and the Tribes worked extensively with the FLMs from the U.S. Departments of the Interior and Agriculture to develop technical analyses that support the regional haze SIPs for the WRAP states. In addition, the State provided its proposed SIP to the FLMs for comment in March 2010. The State also consulted with the states of Idaho and Oregon, as well as the other WRAP member states and Tribes.

We proposed to approve the State-identified visibility improvement anticipated by 2018 in each of the Class I areas as a result of the BART emission limits established in the SIP. The projected improvement was determined by using the results of the Community Multi-Scale Air Quality (CMAQ) modeling conducted by WRAP. The WRAP CMAQ modeling predicted visibility impairment in each Class I area based on 2018 projected source emission inventories, which included federal and state regulations already in place (“on the books”) and BART emission limitations.

We proposed to approve the State's LTS because it includes the documentation and control measures necessary to achieve the RPGs at all Class I areas affected by the State's sources. The State's LTS included consideration of all anthropogenic sources of visibility impairment, including major and minor stationary sources, mobile sources, and area sources. The anticipated net effect on visibility over the first planning period due to changes in point, area, and mobile source emissions is an improvement in visibility in all Class I areas in Washington.

We proposed to approve the State's commitment to develop and submit a comprehensive Regional Haze SIP revision to the EPA by July 31, 2018, and every ten years thereafter. The State also committed to submit a report to the EPA every five years that evaluates the progress being made towards the RPGs and the need for any additional control measures.

We proposed to approve the majority of the State's BART determinations. The State appropriately identified all BART-eligible sources located in Washington and, with one exception, appropriately identified those BART-eligible sources that are subject to BART. In this action, we are finalizing our approval of these SIP elements as proposed.

In our December 26, 2012 and December 30, 2013 actions, we also proposed to disapprove the following SIP elements and promulgate a FIP to fill any gaps left by our partial disapproval:

We proposed a limited disapproval of the State's SO 2 BART determination for Alcoa's Intalco facility potlines. The State determined that installing new control technology was not cost-effective and that the level of existing control for the potlines was BART. We identified a number of errors with the State's cost analysis that rendered the State's control determination unreasonable. We conducted our own analysis and determined that limestone slurry forced oxidation (LSFO) was SO 2 BART. However, Alcoa asserted that it could not afford LSFO at the Intalco facility and remain a viable business. In response, we conducted an affordability analysis, which included updated information as described in the December 30, 2013 proposal, and proposed to concur that LSFO was not affordable at the Intalco facility. Alcoa offered a BART Alternative of implementing pollution prevention measures, primarily the requirement of 3% or less sulfur in the anode coke, and limiting potline SO 2 emissions to 80% of base year emissions. We included this BART Alternative in our FIP. The BART Alternative makes Washington's pollution prevention requirements federally enforceable and makes the 20% SO 2 reduction from baseline permanent and federally enforceable.

We proposed to disapprove the State's NO X BART determination for five emission units subject to BART at the Tesoro refinery. The State determined that NO X controls were not cost-effective. We determined the State's cost estimates were unreasonably high because the State assumed that controls could not be installed when the facility is shut down for maintenance in the estimated 2017 turnaround cycle and still fall within the five year BART implementation period. Tesoro offered a BART Alternative consisting of exclusive use of low-sulfur refinery gas in several non-BART heaters and boilers in lieu of installing the NO X BART controls. We included this BART Alternative in our proposed FIP.

We initially proposed to approve the State's determination that the Wenatchee Works did not contribute to visibility impairment in any Class I area and was therefore not subject to BART. During the comment period, however, we received adverse comments that the State's determination was based on visibility modeling that relied upon an unapproved and unproven fine-grid modeling protocol. Consequently, we issued a supplemental notice of proposed rulemaking on December 30, 2013, and proposed to disapprove the State's determination that the Wenatchee Works was not subject to BART and also proposed a BART FIP (78 FR 79344). In that notice, we proposed to find that one of the four potlines at the Wenatchee Works, as well as some of the supporting emission units, are subject to BART. After evaluating various control technologies, we proposed to find that the costs of compliance and the anticipated visibility benefits did not warrant new controls at the facility. We therefore proposed that the existing controls at the facility were BART and proposed to adjust some emission limits in the facility's operating permit to reflect the level of emission reductions achievable by those existing controls.

This final action is the result of our initial proposed action, the re-proposal for the Wenatchee Works, and our consideration of all public comments received. This final action is consistent with our proposed actions. However, as explained below in the response to comments we revised 40 CFR 52.2470(d) to correct the list of conditions which are applicable to BP Cherry Point. Additionally, we revised the NO X emission limit and made minor adjustments to the FIP provisions related to the Wenatchee Works. Finally, the compliance dates for the Wenatchee Works and the Tesoro refinery were slightly modified.

We are responding to comments received on both the initial proposal and the re-proposal. However, the re-proposal summarized and responded to some comments received on the initial proposal. 78 FR 79347-79355. Those comments and our responses will not be repeated here. The following are our responses to the remaining comments received on the initial proposal for which we have not yet responded and new comments received on the re-proposal. We are also responding to comments received on the additional information that was provided for public review in the re-proposal.

Comment: One commenter noted that the BART Order 7836 for the BP Cherry Point Refinery included BART emission limits for boilers #6 and #7, despite the fact that these units were constructed in 2007 and are not BART-eligible emission units. These units should not be regulated in the BART Order. Thus, conditions 1.1, 1.3.1, 2.1, 3.1, and 6.1 of the BART Order should not be approved into the Washington SIP.

Response: The EPA agrees that the BP Cherry Point Refinery boilers #6 and #7 are not BART-eligible and thus not subject to BART. Subsequent to the publication of the initial proposal, the State of Washington sent the EPA a letter dated July 31, 2013, requesting that conditions 1.1, 1.3.1, 2.1 3.1 and 6.1 and Finding B.c. be withdrawn from their SIP submittal. These conditions and Finding B.c. will not be incorporated by reference into the SIP.

Comment: Several comments were received on our initial proposal that the EPA should use dispersion modeling to demonstrate the visibility improvement from the proposed BART Alternative for the Tesoro Refinery and compare the results to the visibility improvement from BART.

Response: Based on consideration of the comments, we concluded that additional modeling analysis was appropriate for the BART Alternative demonstration at the Tesoro Refinery. The EPA requested Tesoro provide such a modeling demonstration. The results of that modeling were presented in the December 30, 2013 re-proposal. The modeling protocol and results were posted in the docket for this action and the Federal Docket Management System (FDMS) site on December 30, 2013. The public was notified of its availability. 78 FR 79354-79355. The comments received on the initial proposal and our response regarding the need for dispersion modeling for the Tesoro BART Alternative, as set forth in the re-proposal, will not be reiterated here. The following is our response to the remaining comments received on the initial proposal, as well as new comments received on the re-proposal and the additional information that was provided for public review.

Comment: One commenter inquired whether the EPA evaluated the model input and output files that Tesoro used in modeling for the BART Alternative. Such a review is needed to verify that the proper model settings have been used and that only the emission rates for the listed emission units have been changed from the original modeling.

Response: The EPA reviewed the model input and output files and verified the proper settings were used.

Comment: A commenter questioned why the EPA used the annual average concentration limit for total reduced sulfur (TRS) content of refinery fuel gas rather than the maximum 24-hour rate as required by the BART Guidelines. The justification to use the annual average vs. the 24-hour maximum rate needs to be clearly included in the administrative record. The commenter said that if the justification cannot be made, then the BART Alternative should be rejected and the NO X BART should be required.

Response: As described in our December 30, 2013 proposal, the purpose of visibility modeling is to demonstrate whether the BART Alternative provides greater reasonable progress than BART considering the different atmospheric chemistry between SO 2 and NO X. The modeling described in the BART Guidelines is for determining the maximum potential impact of a source at Class I areas and whether the source is subject to BART. The purpose of the more recent modeling here is to evaluate the relative visibility impacts from the atmospheric formation of visibility impairing aerosols of sulfate and nitrate. The absolute value of emission rates is not of concern, because we are evaluating the ratio of SO 2 to NO X emission rates and the resulting relative visibility impairment.

It should also be noted that the model used the maximum monthly average total reduced sulfur (TRS) emission rate during the time period 2004-2006, not annual emission rates as stated by the commenter. See May 14, 2013 letter from Tesoro to the EPA.

Comment: A commenter suggested that trading SO 2 emissions for NO X emissions does not meet the EPA's guidance on BART alternative programs. The commenter specifically references an EPA, Office of Air Quality Planning and Standards (OAQPS), Q&A document, August 3, 2006, that states, “The regulations, however, do allow States to adopt alternative measures in lieu of BART, so long as the alternative measures provide for greater reasonable progress than would be BART. Inter-pollutant trading is not allowed in a trading program alternative to BART.”

Response: We believe the commenter has misunderstood the Agency's policy. The complete explanation of the policy is in the Federal Register action referenced in the Q&A document cited by the commenter. The Agency allows for inter-pollutant trading as long as it is based on a technically acceptable approach for demonstrating the BART Alternative provides for greater reasonable progress. The Federal Register action for the Regional Haze Rule (40 CFR 51.308) (RHR) explains:

This guidance on BART alternatives is primarily envisioned for large statewide, or region-wide (multi-state) emissions trading programs where emissions could be traded across large, geographically separated areas. 64 FR 35741-35743. The technical difficulties discussed in the above policy statement also are focused on situations where a BART alternative trading program is based on emission reduction equivalency in determining Better-than-BART results. In such a trading program, when SO 2 emissions are traded for NO X emissions, the demonstration that the BART alternative provides greater reasonable progress may be technically difficult, or impossible, due to spatial, temporal, climate and meteorological differences between the sources in the program. In particular, the OAQPS Q&A document refers to a regional trading program. However, in this specific situation for the Tesoro Refinery, the BART Alternative is not a state-wide or regional trading program, but rather trading within the same facility. Therefore, the technical difficulties that may be associated with interpollutant trading in a state-wide or regional trading program are of less concern.

The Tesoro BART Alternative is confined to one facility with emissions of SO 2 and NO X coming from essentially the same location. The CALPUFF model is used to estimate the impacts from all visibility impairing pollutants, including SO 2 and NO X , and is the regulatory tool used to determine whether a BART-eligible source is subject to BART. We believe that the CALPUFF model used in Washington (and other states within EPA Region 10) to demonstrate visibility impacts on Class I areas to evaluate whether sources are subject to BART, is technically adequate to demonstrate whether or not a BART Alternative measure that relies on interpollutant trading results in greater reasonable progress. As described in the Federal Register preamble to the RHR (64 FR 35734), it may be difficult to assess the impacts of different pollutants due to the potential difference in light extinction for a given particle mass and due to seasonal and geographic variations. The CALPUFF model, using the approved modeling protocol, addresses the different light extinction properties of different pollutants. In the Tesoro Refinery case, the emissions from both the BART and the BART Alternative emission units are from the same facility. Thus, the potential concern regarding interpollutant trading of emissions from emission units separated by large distances is not present. Also, because the model includes the three year baseline period, seasonal variation is also not a concern in this instance.

Comment: Several commenters stated that trading between BART and non-BART sources is not allowed.

Response: The preamble to the RHR encourages both BART and non-BART sources to be included in a BART alternative. 64 FR 35743. Specifically, “the regional trading program may include sources not subject to BART. Inclusion of such sources provides for a more economically efficient and robust trading program. The EPA believes the program can include diverse sources, including mobile and area sources, so long as the reductions from these sources can be accurately calculated and tracked.” 64 FR 35743.

Comment: One commenter states that the NO X controls for the five Tesoro Refinery emission units should be imposed as reasonable progress controls if they are not required as BART. The EPA should still require unit-specific NO X controls on the five BART units as reasonable progress controls.

Response: The RHR provides states with the opportunity to establish alternative measures as an alternative to BART. As discussed previously, the RHR provides that a BART alternative measure can include non-BART emission units. This approach can result in a more cost-effective control strategy. Because we are proposing to approve the State's reasonable progress goals as providing sufficient progress for this planning period, we do not believe that any additional reasonable progress controls are necessary on the BART-eligible units at the Tesoro Refinery at this time. However, the State may consider these units for reasonable progress controls in the next regional haze SIP due for submittal to the EPA in 2018.

Comment: A commenter stated that the CAA instructs states to issue SIPs requiring BART, and provides a process for exempting a source from BART. The statute does not authorize the EPA to allow a source to escape its BART obligations other than through the exemption process.

Response: The commenter seems to be saying that by imposing a BART alternative, we are exempting Tesoro from BART. The Tesoro facility and the emission units associated with the BART Alternative are not exempt from BART. Rather, the facility is meeting its BART obligation through a BART Alternative measure as allowed under the RHR. 40 CFR 51.308(e)(2).

Comment: Several commenters suggested the SO 2 emission reductions in the BART Alternative are not surplus reductions. They say the emission reductions were needed to meet other CAA requirements including Prevention of Significant Deterioration (PSD) requirements. They also cite the H 2 S concentration limit that is already part of a Federally enforceable permit. They also say the emission reductions were achieved prior to the SIP submittal.

Response: The RHR requires that emission reductions resulting from the alternative measure must be “surplus to those reductions resulting from measures adopted to meet requirements of the CAA as of the baseline date of the SIP.” 40 CFR 51.308(e)(2)(iv). When promulgating this requirement in 1999, the EPA explained that emission reductions must be “surplus to other Federal requirements as of the baseline date of the SIP, that is, the date of the emissions inventories on which the SIP relies. See 64 FR 35714, 35742; s ee also 70 FR 39143. “[W]hatever the origin of the emission reduction requirement, the relevant question for BART purposes is whether the alternative program makes greater reasonable progress.” The Washington Regional Haze SIP relies on emission inventories in the baseline period 2002-2005. See Washington Regional Haze SIP, chapter 6, section 6.3, included in the docket for this action. Thus, reductions resulting from any measure adopted after 2002 are considered `surplus' under 40 CFR 51.308(e)(2)(iv).

The EPA examined the permitting history for the Tesoro Refinery and confirmed that the emission reductions achieved through the installation and operation in 2007 of the flue gas desulfurization (FGD) system to remove sulfur from the refinery fuel gas (RFG) used to fire several heaters and boilers occurred after the emission inventory baseline and are surplus for the purposes of the alternative measure.

Comment: A commenter noted that the SO 2 reductions resulting from the modifications to the refinery gas system occurred for plant-specific reasons, not to meet a regulatory requirement. These reductions occurred in the past and will not be the result of imposing BART controls on any aspect of plant operations. The commenter requests that the EPA reject the BART Alternative in favor of the EPA BART proposal, which would result in additional reduction of nearly 500 tons of NO X.

Response: As described previously, even if the emission reductions at this facility occurred for plant-specific reasons, the reductions may be considered surplus for purposes of a BART alternative. Additionally, as previously explained, the EPA has determined and confirmed with modeling that the reductions resulting from the now federally enforceable requirement to operate the FGD system result in greater reasonable progress towards meeting natural visibility conditions than the NO X controls that the EPA determined to be BART.

Comment: A commenter cited a letter dated September 16, 2011, from the EPA Region 5 to the State of Wisconsin that describes what emissions are considered surplus. The commenter further explained that the Economic Incentive Program (EIP) defines “surplus reductions to mean emission reductions that are not otherwise relied on in any of several programs, including reductions made to insure compliance with the NAAQS as well as reductions included in the relevant SIP.” Thus the commenter stated that to the extent the SO 2 emissions requirements have been incorporated into the Washington SIP and relied on to meet other applicable requirements, they are not “surplus” under the EIP.

Response: As explained previously, we have determined that the emission reductions are surplus for BART alternative purposes and as such, this action is consistent with the EIP position that consideration (or credits) may only be given for surplus reductions. The SO 2 emission reductions resulting from the combustion of low-sulfur RFG in these heaters and boilers have not been incorporated into the Washington SIP, nor have they been relied on to meet any other applicable requirements of the Act. In our final action on the Wisconsin SIP, we noted that, “In cases like this where a subject is addressed by both the general guidance in the draft Economic Incentive Program Guidance and in program-specific guidance that more directly addresses specific statutory requirements, the EPA gives more weight to the regulatory provisions that are promulgated for the specific statutory requirements, in this case to the provisions of the regional haze rule. As noted above, the regional haze regulations promulgated in 40 CFR 51.308 allow credit for reductions achieved after the baseline date of the SIP (2002), irrespective of any recommendations to the contrary in the draft Economic Incentives Program Guidance.” 77 FR 46592 (January 31, 2008.)

Comment: A commenter requested that the EPA evaluate BART for the Tesoro Refinery flare, Unit X-819, including consideration of flare minimization efforts to reduce emissions from this unit.

Response: BART is an emission limitation based on the five-factor analysis and considers the degree of reduction available through the application of the best system of continuous emission reduction for each pollutant that is emitted by an existing stationary facility. As reflected in our December 26, 2012, proposal, Unit X-819 is subject to BART and we agree with the State's BART determination. We considered the flare requirements of other regulatory air pollution agencies to determine whether there are any available control techniques for reducing emissions from flares. In particular we reviewed the California, Bay Area Air Quality Management District (BAAQMD), Reg. 12, Rule 12, which requires San Francisco Bay Area refineries to prepare a flare management plan (FMP), to reduce the frequency and magnitude of flaring events. The rule provides for no specific control technology. Rather, it requires refineries to minimize the need to flare gases through careful planning of maintenance, start-up, and shutdown of various refinery processes. However, should an upset condition occur, it does not prevent or otherwise restrict flaring. It does not appear that the requirement for a FMP would represent BART.

Additionally, Tesoro and the State evaluated whether adding a second gas compressor to handle excess gas resulting from emergency vents and directed to the RFG system would be cost effective. See SIP, appendix L. Tesoro determined it would cost $21,960/ton of SO 2 removed and reduce emissions by 10 tons/year. We find that it is not cost-effective to require the addition of a second gas compressor at this facility as BART.

As part of the December 26, 2012 proposal, we proposed that Alcoa could not afford limestone slurry forced oxidation (LSFO) as the basis for BART. As explained in the re-proposal, we received comments on the affordability determination, requesting that we update the affordability assessment with current information and expressing concern with the use of information that was not publically available. We responded to these comments in the re-proposal and explained that we obtained updated information and revised the 2012 Affordability Assessment. The Revised Affordability Assessment and supporting documentation was made available to the public for review as part of the re-proposal. We received no further comment on the Revised Affordability Assessment. We believe the updated analysis continues to support our determination that installation and operation of LSFO at the Intalco facility is not affordable.

A number of comments were received regarding our proposed BART determination for the Intalco facility. The comments focused on procedural issues, issues regarding the BART determination and the affordability analysis, and the BART Alternative.

Comment: A commenter asserted that the EPA proposed BART for Intalco fails to comply with the public notice requirements of the CAA because it is impossible for the public to understand and comment on the affordability claim because critical information is not available. The CAA forbids the EPA from promulgating a rule that relies in whole or part on information not included in the docket. The commenter stated that critical information regarding Alcoa's affordability claim had been excluded from the record, specifically Attachment 2 of Alcoa's June 2012 letter, and that the failure to disclose this information means that they are unable to provide meaningful comment on Alcoa's claim that they cannot afford LSFO controls. Finally the commenter claimed that that the EPA has failed to identify any support in the CAA that permits the EPA to ignore the requirements of the CAA for public review and comment.

Response: The EPA recognizes the importance of making information available to the public so that the public can meaningfully comment upon proposed rules and, if they choose, ultimately challenge its rules. This task is somewhat more complicated when, as here, the rulemaking necessarily requires consideration of material claimed as Confidential Business Information (CBI). Nevertheless, the CAA, the EPA's implementing regulations, and other statutes impose stringent procedures for the use and availability of information claimed to be CBI, See, e.g., 42 U.S.C. 7414, 33 U.S.C. 1318(b); 40 CFR 2.204, 2.205, and 2.301. As explained in the BART Guidelines, an economic analysis regarding how the installation of controls may impact the viability of continued plant operation must preserve the confidentiality of sensitive business information.

Alcoa provided information to the EPA to support its claim that the company cannot afford the installation of LSFO. See June 22, 2012 Alcoa letter to the EPA. Alcoa requested that Attachment 2 of the letter be treated as confidential.

Under the CAA and EPA's regulations, a company may assert a business confidentiality claim covering information furnished to the EPA. 40 CFR 2.203(b). Once a claim is asserted, the Agency must consider the information to be confidential and must treat it accordingly either until the EPA determines that the information is not subject to CBI protection or until the EPA determines that release of the information is relevant to a proceeding and in the public interest. 40 CFR 2.205, 2.301(g). The EPA's regulations set forth the specific procedures that the EPA must follow when making a CBI determination. 40 CFR 2.204, 2.205, and 2.301(g). Under the regulations, the EPA must provide the affected businesses with notice and, usually, an opportunity to comment on the impending CBI determination or release, including an opportunity to justify their CBI claims. See, e.g., 40 CFR 2.204(e), 2.209(d), and 2.301(g)(2).

Following the procedures outlined in 40 CFR part 2, the EPA requested that Alcoa substantiate its CBI claim. The company narrowed its CBI claim but informed us that portions of Attachment 2 were still claimed as CBI and provided a version of Attachment 2 with the CBI information redacted. The redacted information consists of six years (2008-2013) of “after tax” cash flow values. After consideration of applicable information, requirements and case law, the EPA completed its CBI determination and found that the redacted information in Attachment 2 constitutes CBI within the meaning of the CBI regulations. The final CBI determination is dated July 10, 2013. Accordingly, the information may not be disclosed to the public at this time.

When the EPA assembled the record for this rulemaking, it physically separated the CBI portion of the record from the rest of the publicly available record. The EPA placed into the public record all information for which no claim of CBI was asserted. Any information or analyses based on CBI, was presented in such a way to avoid disclosing the underlying CBI. In addition, the EPA placed into the public record the Revised Affordability Analysis which included an extensive list of references to other publicly available information relevant to the economic analyses, such as company-specific public financial reports, cost information reported in trade journals and industry conference presentations, and price quotations obtained from vendors.

Subsequent to the proposal and in response to comments, the EPA conducted additional analysis regarding Alcoa's affordability claim. More specifically, the EPA reviewed the recent long term power supply contract between Alcoa and the Bonneville Power Administration (BPA) which established the amount and rate at which electricity would be supplied to the Intalco facility. The EPA also conducted additional investigation to obtain publically available and updated financial information and economic forecasts regarding the aluminum industry. This new and additional information was placed in the docket and made available for public review on December 30, 2013. The docket also contains the June 22, 2011 Alcoa letter with the redacted version of Attachment 2. As is evident by the list of documents in the docket, a considerable amount of information regarding Alcoa's financial condition is included and has been made available for public review.

The publicly available information taken together with the EPA's Affordability Analyses, and the description of our analysis in the prior Federal Register proposals are sufficient to support and explain today's final action. Therefore, for the reasons stated above, the EPA believes that the public record is adequate to allow meaningful review of the EPA's decision regarding Alcoa's claim that they cannot afford LSFO controls.

Comment: Referring to CAA section 110(k)(5), a commenter asserts that before the EPA may promulgate a FIP there must be a finding that the state implementation plan is substantially inadequate to comply with the CAA requirement. The commenter claims that because the Administrator has not made such a finding, has not notified Washington of the inadequacies of the SIP or that the SIP needs to be revised, and has not established a reasonable deadline to revise and submit a revised SIP, the proposed FIP is premature. This action is premature under CAA section 110(k)(5).

Response: The EPA disagrees with this comment. Section 110(k)(5) of the CAA states “[w]henever the Administrator finds that the applicable implementation plan for any area is substantially inadequate to . . . comply with any requirement of [the Act], the Administrator shall require the State to revise the plan as necessary to correct such inadequacies.” This provision requires the EPA to issue what is known as a “SIP call” whenever the EPA finds that a state's existing SIP is substantially inadequate to meet CAA requirements. Importantly, this provision bears no relation to the EPA's authority to review SIP submissions and revisions, which by definition are not incorporated into the state's existing SIP until they have been approved by the EPA. Rather, when the EPA receives a SIP submission or revision from a state, CAA sections 110(k)(3) and 110( l ) provide that the EPA can only approve the SIP if it meets all CAA requirements and would not otherwise interfere with any applicable requirement of the Act. If the EPA determines that a SIP submission or revision does not comply with all applicable CAA requirements, then the EPA must disapprove the SIP in whole or in part. At that time, CAA section 110(c)(1)(B) provides the EPA with the authority “to promulgate a Federal implementation plan at any time within 2 years” of the disapproval. Additionally, the EPA has the authority to promulgate a FIP after finding that a state has failed to make a required SIP submission or revision entirely or that a state has submitted an incomplete SIP. CAA section 110(c)(1)(A). The EPA's obligation to promulgate a FIP does not expire unless the state corrects the deficiency, and the EPA approves the SIP before promulgating a FIP. CAA section 110(c)(1).

Here, Washington's Regional Haze SIP was due on December 17, 2007. On January 15, 2009, the EPA published notice of its finding that Washington and 36 other States, the District of Columbia, and the U.S. Virgin Islands had failed to timely submit their regional haze SIPs. 74 FR 2392 (January 15, 2009). The notice explained that the finding started the “two year clock” for the promulgation by the EPA of a FIP. The notice also explained that the EPA's FIP obligation would expire only if a state submitted a SIP and the EPA approved that SIP before the EPA had promulgated a FIP. At approximately the same time as the notice was signed, the Region 10 Administrator sent a letter to the Department of Ecology informing the Director that Washington had failed to make the required regional haze SIP submission and explaining that within two years, the EPA would need to either fully approve the Washington Regional Haze SIP or promulgate a FIP. EPA sent similar letters to the other states, the District of Colombia, and the U.S. Virgin Islands.

Washington submitted its Regional Haze SIP on December 22, 2010. As we explained in the December 26, 2012 proposal, the EPA could not approve the entire SIP. 78 FR 79344. Thus, the EPA proposed to disapprove in part the Washington Regional Haze SIP and proposed to promulgate a FIP to fill the gaps left by the EPA's partial disapproval. See CAA section 302(y). Thus, based on both the EPA's prior finding of failure to submit and the EPA's partial disapproval of the Washington Regional Haze SIP, the EPA has the authority and obligation to promulgate a FIP. We also note that the EPA's authority to issue a FIP in these circumstances has been upheld recently by both the Eighth and Tenth Circuit Courts of Appeal. North Dakota v. EPA, 730 F.3d 750, 759 (8th Cir. 2013), Oklahoma v. EPA, 723 F.3d 1201, 1222-24 (10th Cir. 2013).

Comment: A commenter stated that the EPA's proposed action of limited approval and limited disapproval does not comport with the CAA or the regulatory requirements of 40 CFR 51, subpart P. More specifically the commenter asserts that: (1) The CAA requires the Administrator to approve a state's implementation plan `in whole' if it meets applicable requirements; (2) Ecology dutifully executed its statutory and regulatory obligations by preparing and submitting a complete SIP, which included the requisite BART determinations, consistent with the CAA and promulgated regulations; (3) the EPA's partial disapproval is unfounded either because the EPA has not shown that Ecology's BART determination is not grounded in its thorough consideration of the five factors or because the EPA abused its statutory discretion with regard to rendering its analysis of the cost of compliance; and (4) it is the State's obligation to determine BART. The EPA does not have the authority to override Ecology's cost estimates and BART determinations.

Response: As explained in our initial proposal, the Washington Regional Haze SIP does not meet all of the applicable CAA requirements. Therefore the EPA proposed a partial approval and partial disapproval. Specifically, the EPA does not agree that the State's BART determinations for the Intalco facility and the Tesoro Refinery are consistent with the EPA's regulations. The EPA agrees that in the first instance, it is State's obligation to determine BART, but contrary to the comment, the EPA does have the authority to disapprove Ecology's cost of compliance estimates and BART determinations when it finds that they are not in compliance with the applicable CAA requirements.

The commenter's claim that the EPA has failed to show that Ecology's BART determination is not grounded in its thorough consideration of the five factors or that it abused its statutory discretion is not supported by the record. As explained in our initial proposal, and further described here, there are deficiencies in the State's cost of compliance calculations for the Intalco facility. As also explained, the State's BART determination for Tesoro is no longer accurate because it was based on the assumption that the retrofit would need to occur before the next scheduled maintenance shutdown period (turnaround) which would significantly increase the cost. This assumption is no longer valid because the retrofit may occur during a scheduled Tesoro turnaround and is now considered cost-effective. Also importantly, Intalco and Tesoro both requested that the EPA consider a BART Alternative. The EPA then found that each BART Alternative would result in greater overall reasonable progress towards attaining the national visibility goal than would requiring BART. We therefore proposed these BART Alternative measures instead of BART.

Comment: A commenter stated that the EPA Region 10 referenced sections of the EPA Air Pollution Control Cost Manual that are irrelevant to SO 2 control technologies but then the EPA Region 10 disregarded an SO 2 -specific example in section 5 of the Control Cost Manual which uses a 15-year equipment lifetime. The commenter further claimed that by using a 30-year equipment lifetime in the cost effectiveness calculations for the LSFO scrubber, the EPA Region 10 ignored agency precedent from the EPA Regions 4 and 8 and that on more than one occasion Region 8 has had sources reanalyze annualized costs for scrubbers using 15-years.

Response: The EPA Air Pollution Control Cost Manual  2 (Cost Manual) states that the actual expected equipment lifetime of an air pollution control device should be used for purposes of cost calculations. Section 1, chapter 2 of the Cost Manual addresses the capital recovery factor (CRF), which is determined using the control equipment lifetime and interest rate. The Cost Manual clearly defines the control equipment lifetime as the entire life of the control. For example, on page 2-19, the Cost Manual states: “For each alternative: calculate a discounting factor each year over the life of the equipment . . .” and on page 2-21: “In essence, annualization involves establishing an annual `payment' sufficient to finance the investment for its entire life, using the formula . . . [CRF] . . . where PMT is the equivalent uniform payment amount over the life of the control, `n', at an interest rate, `i.' ” The variable `n' in the CFR equation used to annualize total capital investment is thus the actual life of the control.

The commenter provided no basis for the 15-year equipment lifetime. Rather the comment simply pointed to examples of different situations or types of control technologies where 15 years was used. The commenter's citation of specific equipment lifetimes within calculations in the Cost Manual implying that these specific lifetimes must always be used for a particular control technology is incorrect. The 15-year equipment lifetime contained within section 5 of the Cost Manual does not preclude the use of a different, better supported time period for the equipment lifetime of packed tower absorbers, the technology addressed in section 5.

In this case, as explained in the proposal, we determined that 30 years is a reasonable and well founded estimate of the expected life of wet FGD systems, such as LSFO. This determination considered among other things standard cost estimating handbooks, 3 published papers, 4 and published EPA reports  5 that report 30 years as a typical life for a scrubber as well as industry reports that identify specific scrubbers in operation since the 1970s and 1980s. 6 Additional support for a 30 year scrubber life can also be found in the EPA Response to Comments for the final Oklahoma Regional Haze FIP. 7

Region 10's use of a 30-year life is not inconsistent with other Agency decisions; the EPA Region 6 used 30 years for SO 2 spray dry scrubbing on energy generation units in the final Oklahoma FIP. The EPA Region 6 research included wet FGD technologies such as LSFO, and indicated that the 30-year lifetime was equally applicable to both wet and spray dry FGD scrubbing. The EPA action on the Oklahoma Regional Haze FIP occurred subsequent to the EPA Region 8 letters cited by the commenter. The Region 4 action cited by the commenter reflects the EPA approval of a case-specific BART determination made by the State of Tennessee, and does not necessarily reflect EPA endorsement of all aspects of the underlying BART analysis conducted by the facility in question.

Combined, the EPA Region 6 research and analysis and the subsequent related work by the EPA Region 10 reflect a current and robust technical basis for both spray dry and wet scrubbing FGD equipment life. We therefore find that use of 30 years as the equipment life for LSFO in the Intalco BART analysis remains appropriate.

Comment: A commenter stated that the EPA Region 10 decision to use the lower of two vendor air pollution control cost quotes is arbitrary and instead we should have used the average of the two quotes. The commenter states that it is inconsistent that the EPA Region 10 would assert that it was improper for Washington to rely on the average of the two quotes when the EPA Region 4 concluded that Tennessee's BART analysis relying on the same average costs was reasonable. The comment also states that the EPA Region 10's use of the lower of the two quotes is inconsistent with an EPA Region 9 action that “relied primarily on the highest of several costestimates. . . .”

Response: As described in the initial proposal and supporting documents, it is appropriate to base the cost of compliance calculation on the lower of the two vendor quotes. While not explicitly stated as a directive in section 1, chapter 2 of the Cost Manual (which discusses general methodology), the Cost Manual includes a discussion indicating support for the use of the most competitive, lowest responsive bid within cost effectiveness calculations. In Section 6, chapter 3, the Cost Manual states that “[s]ignificant savings can be had by soliciting multiple quotes,”  8 and in section 4.2, chapter 1, the Cost Manual suggests that vendor quotes be “compare[d] to other bids.”  9 These sections inherently recognize the practice of competitive bidding in the contracting process with the goal of procuring air pollution control equipment using the most cost effective option. 10 That these statements are made within chapters of the Cost Manual that address specific control technologies does not reduce their applicability to cost effectiveness calculations in general.

The two vendor quotes were from experienced, reliable equipment vendors, and the lower of the two quotes was in fact more robust and detailed.

Using the lowest responsive bid also makes common sense from a contracting perspective. Given multiple responsive bids from well qualified equipment suppliers, it is reasonable to expect that the lower cost supplier is most likely to be chosen to provide the control equipment. The use of the average of multiple bids, as advocated by the commenter, is illogical since the resulting cost does not reflect the actual cost of control equipment from any supplier.

We acknowledge that the EPA Region 4 approved the State's decision regarding the BART analysis for the Alcoa facility in Tennessee. However, Region 4 did not initiate this approach, but rather approved the State's approach. In instances where the EPA is conducting the BART analysis (rather than the EPA reviewing a state's analysis), we are consistent.

Contrary to the comment, the Region 9 and Region 10 approaches regarding cost are consistent. The EPA Region 9 BART cost analysis for the Four Corners Power Plant (FCPP) was based on a combination of cost information submitted from equipment suppliers as well as information based on the Cost Manual. In the course of developing the FCPP FIP, the EPA Region 9 received three bids from the same vendor containing pricing information that was updated as the project proceeded. The second bid submitted was the highest cost bid. The EPA Region 9 used the second bid in their cost analysis because the third bid, which reflected lower costs, was submitted later in the BART analysis process and the overall difference between the three bids was not significant enough to affect the cost effectiveness determination.

The EPA Region 9 statement in the action cited by the commenter  11 was intended to communicate that the EPA Region 9 considered the costs to be conservatively high, which still resulted in the control equipment being determined to be cost effective. This position is stated more explicitly in the technical support document for the FCPP BART FIP developed by the EPA Region 9: “. . . the EPA's revised cost information and our additional analysis that rely on the capital and annual costs are conservatively overestimated.”  12

Additionally, we note that the EPA Region 9 did not accept the bid as submitted, but revised numerous cost elements based on independent research, competing equipment supplier bids for certain control equipment elements, and information contained in the Cost Manual. Therefore, the final cost numbers used in the EPA Region 9's analysis, while based on the highest of the three base vendor bids, were lower than the third vendor bid due to the changes made by the EPA Region 9.

Thus, the EPA Region 9 action in fact relied on the principles of competitive bidding where appropriate, consistent with the EPA Region 10 action.

Comment: A commenter states that the EPA Region 10 cost analysis disregarded the fact that the EPA Region 10's internal economic analysis concluded that the gypsum by-product market is speculative and did not prove there would be a guaranteed market for the gypsum in the future. The commenter also states that the EPA Region 10 ignored relevant market information provided by Alcoa and that this biased the EPA Region 10's control cost estimate in favor of controls being deemed cost effective.

Response: The EPA Region 10 continues to believe it is unreasonable to assume that the gypsum produced by LSFO would require disposal in a landfill given its suitability as a feedstock in many re-use applications and that it is appropriate to eliminate the disposal cost for purposes of the cost effectiveness analysis. The assumption that the by-product gypsum would be reused is consistent with the approach taken in a 2003 technology evaluation conducted by Sargent and Lundy, where a disposal cost of zero was used. 13

Contrary to the comment, the EPA Region 10 did consider all information submitted by Alcoa, including the letter dated June 22, 2012. In this letter, Alcoa outlines technical challenges associated with re-use of the gypsum in various potential applications, but includes no discussion regarding potential resolutions of these technical challenges. The EPA Region 10 found that the financial incentive to avoid disposal costs for a re-usable product would encourage reuse. For example, although moist synthetic gypsum may be inappropriate for use in cement manufacturing, dry synthetic gypsum may be appropriate. In a cost analysis conducted by Sargent and Lundy for the LSFO scrubber built for the coal-fired power plant in Centralia Washington, 14 it was assumed that the gypsum by-product would be re-used, and a gypsum credit of $5/ton was assumed. In fact the gypsum produced by Centralia plant was re-used by local wallboard manufacturers. 15 16

The EPA Region 10 further believes that, were landfill disposal required, the disposal cost assumed in the original Alcoa BART analysis of $145/ton is excessively high. The 1996 Sargent & Lundy report cites landfill disposal costs of only $6/ton, and a more recent Sargent & Lundy paper cites landfill disposal costs of only $12/ton for a similar waste product from dry FGD. 17 A disposal cost several times higher than that cited by Sargent & Lundy would not significantly impact the cost effectiveness determination for LSFO at Intalco.

Thus, while recognizing some gypsum market uncertainty, we conclude that the gypsum disposal costs are properly excluded in the cost effectiveness calculation for LSFO.

Comment: One commenter requested the EPA reject the affordability argument as the affordability claim is unprecedented and the EPA's reliance on affordability in this instance is inconsistent with the EPA's approach to BART determinations across the country. The commenter asserted that because the EPA has proposed and/or finalized BART determinations in other areas that have contributed to power plants shutting down because the electrical generating units (EGUs) were not profitable enough after accounting for the cost of pollution controls (e.g. New York, Oklahoma, Four Corners, Boardman, and TransAlta) that the EPA must explain the different outcome for this BART determination. Intalco is the only BART determination where a company is excused from complying with the law on the grounds that it cannot `afford' the law.

Response: The BART Guidelines explain that, even where a control technology is cost-effective, “there may be cases where the installation of controls would affect the viability of continued plant operations.” 40 CFR part 51, appendix Y, section IV.E.3.1. In these unusual circumstances, the BART Guidelines allow states and the EPA to take into consideration how requiring controls could affect “product prices, the market share, and profitability of the source.” Id. section IV.E.3.2. Nevertheless, only when these effects are “judged to have a severe impact on plant operations” can they play a role in the ultimate control determination. The affordability analysis we conducted for Intalco was therefore proper. As explained in our re-proposal, the results of the analysis demonstrated that requiring controls at the Intalco facility would have a “severe impact” on the facility's ability to continue business operations. The examples cited by the commenter, on the other hand, are inapposite. In those instances, none of the sources submitted affordability analyses to the EPA as part of the BART evaluation process. While the sources may have determined that it was in their financial interest to cease operating certain EGUs rather than install pollution control technology, the EPA has no reason to believe that the sources could not afford the controls in question. Rather, the sources made voluntary business decisions that the benefits of continuing to generate electricity at the affected units were outweighed by a number of factors, which likely included the costs of controls, potential future regulatory requirements, market trends, the availability of alternative generating strategies, etc. The EPA has no evidence to suggest, however, that the costs of controls in those instances were so onerous that the sources simply could not afford them or that the sources' decisions to cease operations were in essence involuntary.

Comment: One commenter requested the EPA's or Ecology's commitment to revisit the BART determination for the Intalco facility every 10 years based on then current information. Two commenters recommended that the EPA explain how the Intalco facility will be reevaluated in the 5-year report or next SIP planning cycle to determine if LSFO does become affordable in the future.

One commenter would like the EPA or Ecology to commit to revisiting the BART determination for Intalco in each round of revised regional haze SIPs (i.e., every 10 years) utilizing the technological and financial information that is current for this source at that time.

Response: BART is a `one time' decision that is not required to be revisited in future planning cycles. However, the source could in the future be subject to an analysis of control to achieve reasonable progress, should a new breakthrough in technology occur and cost effective controls be identified. The RHR explains that “After a state has met the requirements for BART, or implemented an emission trading program, or other alternative measure that achieves more reasonable progress than the installation and operation of BART, BART eligible sources will be subject to the requirements of paragraph (d) of this section in the same manner as other sources.” 40 CFR 51.308(e)(5).

A commitment to revisit whether cost effective controls are available for a particular source in the future is not a required SIP element of this planning cycle and is not required for the EPA to approve the regional haze plan. A stated intention in the State's SIP submittal to revisit controls in the future is not an enforceable requirement. Accordingly the EPA's approval today is not conditioned upon the State's commitment to conduct future control technology reviews on a specific schedule.

Comment: One commenter recommended that the EPA consider the number of Class I areas impacted.

Response: The EPA considered the fact that Intalco had impacts greater than 0.5 deciview (dv) at six Class I areas. Additionally, we took into account Intalco's significant impact of over 1 dv at Olympic National Park. Thus, as explained in the proposal, the EPA considered cumulative visibility impacts, as well as the other BART factors in reaching its BART determination for this facility. See 77 FR 76191.

Comment: A commenter suggested that it was improper to use baseline emissions rather than future (or even current) conditions to assess visibility improvement.

Response: As previously described in our response regarding Tesoro's baseline emissions, the BART Guidelines (40 CFR part 51, appendix Y) provide, “In general, for existing sources subject to BART, you will estimate the anticipated annual emissions based upon actual emissions from a baseline period.” 40 CFR part 51, appendix Y, section IV.D.4.d.1. The baseline period in the Washington SIP submittal for emissions used in the BART analysis is 2002-2005. The BART Alternative analysis correctly used the highest 24-hour emission rate in the baseline period to assess visibility improvement.

Comment: One commenter requested that the EPA clarify that the modeled BART Alternative improvements are not improvements from current conditions.

Response: Intalco has seen dramatic fluctuation in production over the last decade ranging from no production to production at approximately 80% of full operation. Thus, visibility improvement in Class I areas impacted by the Intalco facility will vary based on operating rates. The Intalco facility is currently operating at slightly less than 80% of full operation. As stated in the Federal Register proposal of December 26, 2012, the proposal to limit SO 2 emissions to 80% of baseline, combined with making the other components in the BART Alternative permanent and federally enforceable, will prevent degradation if the Intalco facility increases production above 80%. 77 FR 76193.

Comment: Several commenters suggested that the Alcoa Wenatchee Works was improperly exempted from BART review. This comment is based on Ecology's use of refined air quality dispersion modeling (0.5 km grid) which the commenters believe underestimates visibility impact. The commenters asserted that the use of fine grid modeling inappropriately underestimates the Wenatchee Works impacts at the Alpine Lakes Wilderness Area to a level below the BART threshold thus allowing it to be improperly exempt from BART. Allowing the use of fine grid modeling is contrary to numerous prior statements by the EPA. The commenters requested that the EPA disapprove Washington's BART exemption determination and conduct a BART analysis for the Wenatchee Works.

Response: In response to the comments, the EPA re-evaluated the dispersion modeling that the State used to exempt the Wenatchee Works from BART. On December 30, 2013, we published a proposed rulemaking action where we explained our rationale for proposing to disapprove the State's BART exemption determination, proposing that the facility was subject to BART, and proposing a BART FIP for the Wenatchee Works. 78 FR 79344. The adverse comments on that re-proposal are addressed below.

Comment: A commenter asserts that the EPA failed to address and resolve deficiencies in the Draft “ Modeling Protocol for the Application of the CALPUFF Modeling System Pursuant to the Best Available Retrofit Technology (BART) Regulation” (the draft Three State Protocol) as identified by Alcoa to the EPA in a June 30, 2006 letter to EPA Region 10. The commenter claimed that this failure adversely affected the subject-to-BART modeling activities and improperly determined visibility impairment within the State of Washington.

Response: The major concern raised in the June 30, 2006 letter was that the draft Three State Protocol did not include a provision to allow for site specific protocols that include technical enhancements, such as better resolution and other site specific improvements. The June 30, 2006 letter requested that such enhancements be allowed in the BART exemption modeling and the BART determination modeling. It also stated that the 4 kilometer (km) grid resolution  18 did not replicate on-the-ground terrain features such as valley flow and land/water boundaries. For purposes of this action, a 4 km grid is considered a course grid and a 0.5 km grid is considered to be a fine grid.

The final Three State Protocol provided for site specific protocols. Deviations from and site specific improvements to the Three State Protocol are allowed. The Modeling Protocol for Washington, Oregon, and Idaho: Protocol for the Application of the CALPUFF Modeling System Pursuant to the Best Available Retrofit Technology (BART) Regulation (the final Three State Protocol) states in section 1.1 that:

As stated above, the development of the Three State Protocol was a collaborative effort that included seven government agencies. The Three State Protocol was viewed as guidance and not a prescription of how the modeling must be done in all cases. Consequently, if a BART-eligible source preferred to deviate from the Three State Protocol, such as generate its own predicted mesoscale meteorology simulations or employ a different grid resolution, as in the Wenatchee Works case, the state with jurisdiction would consult with the other six government agencies, including the EPA, before accepting the deviation. The purpose of the consultation is to resolve differing opinions on the deviation, ensure consistency and the integrity of the Three State Protocol, and maintain fairness to the BART-eligible sources. The EPA's endorsement of significant deviations from the Three State Protocol is necessary to effectively evaluate the SIP for technical adequacy in this important case of exempting a source from BART. As described below, the EPA had concerns with the deviation.

In July 2008, the EPA Region 10 communicated to Washington our concerns regarding use of fine grid modeling for the Wenatchee Works. In a July 8, 2008 email message to Ecology we stated, “Nevertheless, R10 is willing to allow the use of new procedures, techniques or options as long as an acceptability demonstration is made in accordance with applicable guidance and is fully vetted by peers.” The email also explained that, “[t]he CALPUFF modeling system has never been evaluated or tested against tracer gas studies/experiments using a fine grid. As a minimum, Ecology and TRC should have submitted a protocol to R10 for acceptance to evaluate and test the sensitivity using a fine grid resolution in CALPUFF Version 5.8.” The State failed to address these concerns.

Comment: A commenter claims that the EPA “cherry picked” statements and portrayed out of context, portions of the EPA's 2009 Modeling Clearinghouse Memorandum and misrepresented its relevance to the Wenatchee Works BART exemption modeling.

Response: The EPA disagrees with the commenter that the Modeling Clearinghouse Memorandum, dated May 15, 2009, was taken out of context to justify the rejection of the Wenatchee Works BART exemption modeling. The memorandum states in part that, “. . . the Otter Tail Protocol presents no scientific evidence to support the claim that 1 km CALMET resolution increases the objective accuracy of the final wind field, especially in areas of relatively modest topographic relief, such as for each of the three proposed domains.” Similarly, the commenter did not present any scientific evidence to support its claim that the proposed 500 meter grid resolution will adequately capture the terrain influenced wind flows (e.g., valley and slope) at its river valley location.

CALMET is a diagnostic meteorological model that produces non-steady-state hourly meteorological data but has limited ability to independently capture the full three-dimensional structure of complex wind flows at the Wenatchee Work's river valley location. Unlike the Otter Tail situation where the benefit may be limited, the EPA believes a network of meteorological monitoring stations (e.g., surface and upper air measurements) at the river valley location would better capture the three-dimensional, non-steady-state meteorology of this site. These data could be used to create a more accurate wind field that could then be used to more accurately predict the visibility impact from the Wenatchee Works.

Comment: A commenter questioned the value of revising the PM emission limitations that are being required of various emission units at the Wenatchee Works. The commenter states that the potential visibility improvement resulting from the reduction in allowable emissions is below the capability of the model to determine. Any potential visibility improvement that may accrue from imposing the SO 2 limit on Potline 5 would far exceed that of the direct PM 2.5 being emitted by these stacks. However another commenter said, “We support retaining the existing particulate matter limit of .005 gr/dscf.”

Response: We acknowledge that tightening the particulate matter emission limits may have little effect on visibility improvement because the existing fabric filters are high efficiency control devices. However, in some instances the existing emission limits are well above the level that a properly operating fabric filter can achieve. BART is defined as an emission limit based on the degree of reduction achievable through the application of the best system of continuous emission reduction. The existing emission limits in some cases are not based on the degree of reduction achievable at this facility. The BART emission limits we are establishing reflect the achievable emission reductions for these units, and result in tighter limits.

Comment: A commenter said that they have been unable to ascertain the source of the emission factor for NO X emissions from Potline 5. Additionally, they wonder about the value of an emission limitation based solely on the potline aluminum production rate and an emission factor. The commenter suggests three options; that the NO X emission limit be removed, the emission factor be substantiated, or the emissions be based on actual monitoring.

Response: The EPA understands that this emission factor has been used by Alcoa to report NO X emissions to the Department of Ecology for years. However, we recognize the lack of substantiation for the emission factor and Alcoa has indicated that they cannot quickly provide the EPA with a basis for the factor. In response to this comment, the EPA has revised the NO X BART emission limit from the proposed 0.95 tons per calendar month to a “test and set” requirement that will require Alcoa to conduct source tests and develop a unit-specific NO X emission factor for Potline 5. That emission factor will then be used to establish a monthly NO X emission limit for Potline 5.

Comment: A commenter states that the EPA erroneously asserts that there are “no” SO 2 emissions associated with Ingot Furnaces No. 1, 2, and 11. The commenter requests that the statement be corrected to indicate there are trivial amounts of SO 2 created during the combustion of natural gas. Should the EPA elect not to withdraw its proposed actions and approve the Washington SIP, the commenter asks that the EPA determine that BART for SO 2 for these furnaces be comparable to the BART limit proposed for NO X , which is a limitation on the type of fuel that may be combusted.

Response: There are trivial amounts of SO 2 emissions from the Ingot furnaces. The total SO 2 emitted from the three Ingot furnaces is 0.014 t/yr. We consider these insignificant, but as requested by the commenter, we will establish a BART requirement for SO 2 . We agree with the commenter that BART for SO 2 would be the continued combustion of natural gas in the Ingot Furnaces. Thus, we are requiring the combustion of natural gas as BART for NO X emissions and are adding a provision that requires the combustion of natural gas as BART for SO 2 emissions as well.

Comment: A commenter suggests that the EPA appears to be inconsistent in the cost analyses produced for limestone scrubbing for SO 2 . The commenter explains that, in what appears to be the final cost analysis (document #501 in the docket), the EPA has included no costs for gypsum disposal, but that documents #503 and #504 in the docket do contain a disposal cost for gypsum. Based on experience with similar useable waste materials the commenter states that the EPA should include a disposal cost for the gypsum produced by the limestone scrubbing system. The commenter has found that even a useful waste like gypsum cannot be disposed of or given away at no cost to the source. At a minimum, the company generating the waste material has to cover the cost of storage and transport to a user.

Response: The commenter appears to be confusing cost analyses conducted by Alcoa (documents #503 and #504) with the EPA's cost analysis (document #501). A detailed response to the comment with regard to the inclusion of gypsum disposal cost in the cost analysis has been provided above addressing a similar comment regarding the SO 2 BART analysis for the Intalco facility.

Comment: A commenter states that the EPA Region 10 ignored agency precedent and other factual information in the development of the Wenatchee Works cost of compliance analysis when it relied on the cost analysis for a similar scrubber at the Intalco facility. The commenter states that the EPA made the same flaws in the Wenatchee analysis that it made in the Intalco analysis specifically: Equipment life, use of vendor quotes, use of unsubstantiated costs, ignoring cost data provided by Alcoa, and using data that underestimate the cost of LSFO.

Response: This comment for the Wenatchee Works is similar to a comment about the Intalco BART analysis addressed above. See our response regarding the cost of compliance calculation for the Intalco facility. The same rationale for our response to the Intalco BART analysis comment applies to this comment regarding the Wenatchee Works.

Comment: A commenter suggests that the process description for the anode bake furnace at the Wenatchee facility is incorrect in the preamble to the December 30, 2013 re-proposal.

Response: The commenter is correct in that the carbon anodes are not used in an electric arc furnace, rather the facility produces aluminum from alumina via an electrochemical reduction process that occurs in “electrolytic reduction cells” commonly known as (pots) using the Hall-Heroult process.

Comment: A commenter said that provisions for alternative fuel use should be included, when a change to fuel use is permitted or required pursuant to governmental dictate.

Response: We understand that Alcoa may change to an alternate fuel in the future. However, we cannot ensure that the requirement for BART is met by simply allowing for the use of an alternative fuel that is permitted or required by the government. If Alcoa choses to change to a fuel other than natural gas, the normal process would be to request the EPA to revise this rule and establish an appropriate BART emission limit for the alternative fuel. We do, however, believe that we can provide for the situation where the use of an alternative fuel may be approved in a Prevention of Significant Deterioration (PSD) permit. It is the EPA's position that a Best Available Control Technology (BACT) emission limit for a pollutant established in a PSD permit will likely be at least as stringent as a BART emission limit for that pollutant. We have added a provision to this rule that would allow a federally-enforceable BACT emission limit for NO X which is established in a PSD permit to supersede the BART emission limit for NO X established in this rule.

Comment: A commenter notes there appears to be a discrepancy between the baseline SO 2 emissions and emissions reduced through LFSO at Potline 5. The proposal states that Potline 5 has a baseline emissions rate of 1000.8 tons of SO 2 per year. However, the supporting BART analysis appears to assume that an LFSO scrubber could reduce emissions by 1955 tons per year which would be greater than the annual baseline emissions.

Response: The EPA does not agree that there is a discrepancy between the SO 2 emission values for Potline 5 in the proposal and in the BART analysis. The 1000.8 tons per year value in the proposal is the baseline SO 2 emission rate which represents the actual annual emissions from the Potline during the baseline period. The 1955 tons per year emission reduction in the BART analysis represents an estimate of the potential emission reduction from the maximum potential to emit from the Potline that could be expected from the application of LFSO.

Comment: A commenter said that the EPA should consider ways to monitor and make more easily enforceable the proposed BART emissions limits. Most of the units at the Wenatchee Works do not have continuous emissions monitoring systems (“CEMS”), and for many of the units, the EPA is proposing limits based on the content of the fuel or emissions per unit of production. For Potline 5, the EPA proposes a BART limit expressed as pounds of SO 2 per ton of aluminum produced, per calendar month. Potline 5 has the highest SO 2 emissions of any BART-eligible unit at the Wenatchee facility, but it does not currently have a CEMS. To gather more accurate data on the unit's actual emissions and to ensure compliance with any emissions limit, the commenter believes that the EPA should require installation of a CEMS and express the emissions limit in terms of SO 2 emitted per month, as a rolling 30-day average.

Response: Emissions from primary aluminum plants have traditionally been regulated with emission standards in the form of pounds of emissions per ton of aluminum produced ( see, e.g., the EPA's New Source Performance Standards for aluminum plants at 40 CFR part 60, subpart S, the EPA's Maximum Achievable Control Technology standards for aluminum plants at 40 CFR part 63, subpart LL, and Ecology's emission limits for aluminum plants at WAC 173-415). The EPA believes that establishing BART emission limits in the same form as the limits for other pollutants set under other programs will both ensure enforceable limits on visibility impairing pollutants as well as provide a consistent set of requirements for the regulated sources. The EPA also believes that for SO 2 emissions, a mass balance approach to demonstrating compliance, rather than CEMS, is appropriate for Potline 5. SO 2 from Potline 5 is emitted both from the gas treatment centers air pollution control units (GTC) and the roof vents. Measuring SO 2 emissions from the roof vents with CEMS is not feasible. In addition, a mass balance approach with frequent monitoring of the sulfur in the anodes adequately accounts for the SO 2 emissions from both the GTC and the roof vents. Similarly, restricting BART-eligible units to a particular fuel (e.g., natural gas) and then monitoring the fuel combusted in the units that have no other SO 2 emission controls also adequately accounts for the SO 2 emissions from those units.

Comment: A commenter said that the EPA merged monitoring and compliance demonstration requirements in 40 CFR 52.2502(c)(1)(i) and created ambiguity that requires further clarification.

Response: We agree with the commenter that the proposed rule merged the monitoring and compliance demonstration requirements for the sulfur limit for incoming coke in a way that was confusing. We have reformatted the provision to more clearly specify how compliance is demonstrated for the sulfur limit for incoming coke and the required monitoring to determine the sulfur content of incoming coke. Note that this SO 2 BART limit for the anode bake furnaces does not affect the SO 2 BACT emission limit in the 1982 EPA PSD permit (PSD-X82-04) for Potlines 1 through 3.

Comment: A commenter notes that the emissions in excess of the various BART limits proposed throughout the final rule must not be exceeded one-hundred twenty days after the final rule is published in the Federal Register . The commenter claims a more appropriate compliance date for these emission limits is the requirement to comply with the BART limits “within 120 days of the final rule becoming effective,” not when the final rule is published in the Federal Register . The EPA should restate the compliance date for the BART requirements affected by this proposed regulation.

Response: We have changed the compliance dates throughout the rule to reflect both the expected effective date of this action as well as to tie the compliance date to the effective date of the final rule. Specifically, the compliance date for the Intalco facility's calendar year SO 2 BART limit is set at January 1, 2015. The compliance date for the NO X `test and set' emission limit is 180 days after the effective date of the final rule. The compliance dates for all other BART emission limits are 120 days after the effective date of this action. The compliance date for the Tesoro refinery was also revised to 120 days after the effective date of this action.

EPA is taking final action to partially approve and partially disapprove Washington's SIP for Regional Haze and to promulgate a FIP for the disapproved elements. The EPA is approving portions of the Washington Regional Haze SIP as meeting the requirements of 40 CFR 51.308 for the first planning period and disapproving other portions. The disapproved portions are corrected with today's promulgation of FIP elements.

As discussed above, promulgation of the FIP BART elements for the Tesoro refinery, the Intalco facility, and the Wenatchee Works does not require the purchase or installation new air pollution control equipment, but rather establishes BART based on existing control technology. Thus, the only additional costs incurred by the owners of these facilities will be minimal expenditures for monitoring, reporting, and recordkeeping. EPA expects that this action will prevent visibility degradation in the Class I areas by limiting potential future increases in emissions from changes at the facilities.

This action finalizes approval of portions of the Washington SIP and a FIP for emission units subject to BART at three facilities. This action is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011). It is therefore not a rule of general applicability.

This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. Burden is defined at 5 CFR 1320.3(b). Because the final FIP applies to just three facilities, the Paperwork Reduction Act does not apply. See 5 CFR 1320(c).

The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions. For purposes of assessing the impacts of today's final rule on small entities, small entity is defined as: (1) A small business as defined by the Small Business Administration's (SBA) regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field. After considering the economic impacts of today's final rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. The FIP that the EPA is finalizing for purposes of the regional haze program consists of imposing Federal controls to meet the BART requirements for three specifically identified facilities. The net result of this FIP action is that the EPA is finalizing emission limits on selected units at only three sources which are not considered small business. The sources in question are two aluminum smelters and a petroleum refinery. The final partial approval of the SIP merely approves state law as meeting Federal requirements and does not impose additional requirements.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and Tribal governments and the private sector. Under section 202 of UMRA, the EPA generally must prepare a written statement, including a cost-benefit analysis, for final rules with “Federal mandates” that may result in expenditures to State, local, and Tribal governments, in the aggregate, or to the private sector, of $100 million or more (adjusted for inflation) in any one year. Before promulgating an EPA rule for which a written statement is needed, section 205 of UMRA generally requires the EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 of UMRA do not apply when they are inconsistent with applicable law. Moreover, section 205 of UMRA allows the EPA to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before the EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including Tribal governments, it must have developed under section 203 of UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of the EPA regulatory actions with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements. Under title II of UMRA, the EPA has determined that this final rule does not contain a Federal mandate that may result in expenditures that exceed the inflation-adjusted UMRA threshold of $100 million ($150 in 2013 when adjusted for inflation) by State, local, or Tribal governments or the private sector in any one year. The private sector expenditures that will result from the FIP, including BART emission limits, are insignificant. The BART emission limits for the Alcoa Intalco Operations and Alcoa Wenatchee Works do not involve installation of new control technology, but rather establish BART emission limits based on the existing control technology. The BART Alternative for the Tesoro refinery involves taking credit for voluntary SO 2 emission reductions in-lieu of installing BART-level NO X control technology on emission units subject to BART. Thus, because the annual expenditures associated with the FIP are less than the inflation-adjusted threshold of $150 million in any one year, this rule is not subject to the requirements of sections 202 or 205 of UMRA. This rule is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments.

Executive Order 13132, Federalism, (64 FR 43255, August 10, 1999) revokes and replaces Executive Orders 12612 (Federalism) and 12875 (Enhancing the Intergovernmental Partnership). Executive Order 13132 requires the EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under Executive Order 13132, the EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by state and local governments, or the EPA consults with state and local officials early in the process of developing the final regulation. The EPA also may not issue a regulation that has federalism implications and that preempts state law unless the Agency consults with state and local officials early in the process of developing the final regulation. This rule will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, because it merely addresses the State not fully meeting its obligation under the CAA to include in its SIP provisions to meet the visibility requirements of part C of title I of the CAA and to prohibit emissions from interfering with other states measures to protect visibility. Thus, Executive Order 13132 does not apply to this action.

Executive Order 13175, entitled Consultation and Coordination With Indian Tribal Governments (65 FR 67249, November 9, 2000), requires the EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” This final rule does not have Tribal implications, as specified in Executive Order 13175 because the SIP and FIP do not have substantial direct effects on Tribal governments. Thus, Executive Order 13175 does not apply to this rule. The EPA nonetheless provided a consultation opportunity to Tribes in Idaho, Oregon and Washington in letters dated January 14, 2011. The EPA received one request for consultation. We followed-up with that Tribe and the Tribe does not think consultation is necessary at this time. On September 20, 2012, EPA provided an additional consultation opportunity to seven Tribes in Washington near the facilities that would be regulated under the FIP. We received no requests for consultation.

The EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the EO has the potential to influence the regulation. This action is not subject to EO 13045 because it implements specific standards established by Congress in statutes. However, to the extent this final rule will limit emissions of NO X and PM, the rule will have a beneficial effect on children's health by reducing air pollution.

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

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104-113, 12(d) (15 U.S.C. 272 note) directs the EPA to use voluntary consensus standards (VCS) in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. VCS are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. NTTAA directs the EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable VCS. The EPA believes that VCS are inapplicable to the partial approval of the SIP that if merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. The FIP portion of this rulemaking involves technical standards. The EPA is using American Society for Testing and Materials (ASTM) Methods and generally accepted test methods previously promulgated by the EPA. Because all of these methods are generally accepted and are widely used by State and local agencies for determining compliance with similar rules, the EPA believes it would be impracticable and potentially confusing to put in place methods that vary from what is already accepted. As a result, the EPA believes it is unnecessary and inappropriate to consider alternative technical standards.

Executive Order 12898 (59 FR 7629, February 16, 1994), establishes Federal executive policy on environmental justice. Its main provision directs Federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. We have determined that this final action will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it increases the level of environmental protection for all affected populations without having any disproportionately high and adverse human health or environmental effects on any population, including any minority or low-income population.

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. Section 804 exempts from section 801 the following types of rules (1) rules of particular applicability; (2) rules relating to agency management or personnel; and (3) rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties. 5 U.S.C. 804(3). The EPA is not required to submit a rule report regarding today's action under section 801 because this is a rule of particular applicability.

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 11, 2014. Pursuant to CAA section 307(d)(1)(B), this action is subject to the requirements of CAA section 307(d) as it promulgates a FIP under CAA section 110(c). 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 CAA section 307(b)(2).

Part 52, chapter I, title 40 of the Code of Federal Regulations is amended as follows:

EPA is approving New York's plan, and the elements therein, as submitted on July 1, 2013, for the control of air emissions from existing sewage sludge incineration (SSI) units throughout the State, except for any existing SSI units located in Indian Nation Land. 1 When EPA developed the New Source Performance Standards (NSPS) (subpart LLLL) for SSI units on March 21, 2011, it concurrently promulgated Emission Guidelines (subpart MMMM) to control air emissions from existing SSI units.

The New York State Department of Environmental Conservation (NYSDEC) developed a plan, as required by sections 111(d) and 129 of the Clean Air Act (CAA), to adopt the Emission Guidelines (EG) into its body of regulations, and EPA is acting today to approve New York's plan.

On March 21, 2011, in accordance with sections 111(d) and 129 of the CAA, EPA promulgated the SSI EG and compliance times for the control of emissions from existing SSI units. See 76 FR 15371. EPA codified these guidelines at 40 CFR part 60, subpart MMMM. They include a model rule at 40 CFR 60.5085 through 62.5250 that States may use to develop their own plans. Under that rule, EPA has defined an “SSI unit,” in part, as any device that combusts sewage sludge for the purpose of reducing the volume of the sewage sludge by removing combustible matter. 40 CFR 60.5250.

On July 1, 2013, 2 New York submitted a plan for implementing and enforcing EPA's EG for existing SSI units. Section 60.5015 of the EG describes all of the required elements that must be included in a state's plan for existing SSI units. New York's State plan includes all of the required elements described in section 60.5015 of the EG. For further details, the reader is referred to EPA's proposal located in EPA's electronic docket at www.regulations.gov.

There were no comments received on EPA's proposed rulemaking (79 FR 16271, March 25, 2014) regarding New York's State plan for existing SSI units. The 30-day public comment period on EPA's proposed approval ended on April 24, 2014.

For the reasons described in this rulemaking and in EPA's proposal, EPA is approving New York's sections 111(d) and 129 plan for existing SSI units.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This rule also does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely approves a state rule implementing a Federal requirement, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it approves a state rule implementing a Federal standard.

In reviewing New York's submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a New York submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a New York submission, to use VCS in place of a New York submission that otherwise satisfies the provisions of the CAA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the Attorney General's “Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order.

This rule for the approval of New York's section 111(d)/129 plan for SSI units does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 11, 2014. 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 approving New York's Section 111(d)/129 plan for existing sewage sludge incineration units may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR part 62 is amended as follows:

I. General Information A. Does this action apply to me?

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Printing Office's e-CFR site at http://www.ecfr.gov/cgi-bin/text-idx?&c=ecfr&tpl=/ecfrbrowse/Title40/40tab_02.tpl.

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2013-0411 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before August 11, 2014. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2013-0411, by one of the following methods:

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

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

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

In the Federal Register of February 4, 2010 (75 FR 5790) (FRL-8807-5), EPA issued a notice pursuant to section 408(d)(3) of FFDCA, 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 9E7632) by IR-4, 500 College Road East, Suite 201 W., Princeton, NJ 08540. The petition requested that 40 CFR 180.608 be amended by establishing tolerances for residues of the insecticide spirodiclofen, (3-(2,4-dichlorophenyl)-2-oxo-1-oxaspiro[4,5]dec-3-en-4-yl 2,2-dimethylbutanoate), in or on bushberry subgroup 13-07B at 4.0 parts per million (ppm). The petition additionally requested to revise the tolerance expression under paragraphs (a)(1) and (a)(2) to read as follows: “(a)(1). Tolerances are established for residues of the insecticide spirodiclofen, including its metabolites and degradates. Compliance with the tolerance levels specified is to be determined by measuring only spirodiclofen (3-(2,4-dichlorophenyl)-2-oxo-1-oxaspiro[4,5]dec-3-en-4-yl 2,2-dimethylbutanoate)”; and “(a)(2). Tolerances are established for residues of the insecticide spirodiclofen, including its metabolites and degradates. Compliance with the tolerance levels specified is to be determined by measuring only the sum of spirodiclofen (3-(2,4-dichlorophenyl)-2-oxo-1-oxaspiro[4,5]dec-3-en-4-yl 2,2-dimethylbutanoate) and its metabolite, 3-(2,4-dichlorophenyl)-4-hydroxy-1-oxaspiro[4,5]dec-3-en-2-one, calculated as the stoichiometric equivalent of spirodiclofen.” That notice referenced a summary of the petition prepared on behalf of IR-4 by Bayer CropScience, the registrant, which is available in the docket, http://www.regulations.gov.

In the Federal Register of March 29, 2011 (76 FR 17374) (FRL-8867-4), EPA issued a notice pursuant to section 408(d)(3) of FFDCA, 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 0E7820) by IR-4, 500 College Rd. East, Suite 201W, Princeton, NJ 08540. The petition requested that 40 CFR 180.608 be amended by establishing tolerances for residues of the insecticide spirodiclofen, (3-(2,4-dichlorophenyl)-2-oxo-1-oxaspiro[4.5]dec-3-en-4-yl 2,2-dimethylbutanoate), in or on sugar apple, cherimoya, atemoya, custard apple, ilama, soursop, biriba, guava, feijoa, jaboticaba, wax jambu, starfruit, passionfruit, persimmon and acerola at 0.45 ppm; and lychee, longan, Spanish lime, rambutan and pulasan at 3.5 ppm. That notice referenced a summary of the petition prepared on behalf of IR-4 by Bayer CropScience, the registrant, which is available in the docket, http://www.regulations.gov.

Finally, in the Federal Register of July 19, 2013 (78 FR 43115) (FRL-9392-9), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 3F8152) by Bayer CropScience, 2 TW Alexander Dr., Research Triangle Park, NC 27709. The petition requested that 40 CFR 180.608 be amended by amending the established tolerance for residues of the insecticide spirodiclofen, 3-(2,4-dichlorophenyl)-2-oxo-1-oxaspiro[4.5]dec-3-en-4-yl 2,2-dimethylbutanoate, in or on citrus, oil from 20 ppm to 35 ppm. That document referenced a summary of the petition prepared by Bayer CropScience, the registrant, which is available in the docket, http://www.regulations.gov. There were no comments received in response to the notice of filing.

IR-4 has since withdrawn PP#s 9E7632 and 0E7820 due to unresolved labeling issues regarding pollinators. However, the EPA has determined that the proposed changes to the tolerance expression under the notice for PP# 9E7632 are appropriate. Additionally, EPA is relying upon the risk assessments supporting those actions in order to amend the citrus, oil tolerance, since the higher citrus, oil level was considered in these assessments. Therefore, risk estimates characterized in the underlying assessments for those actions are considered overestimations of risk, because the uses associated with PP#s 9E7632 and 0E7820 have since been withdrawn; however, those assessments will support the amended citrus, oil tolerance.

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

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

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

Spirodiclofen has a low acute toxicity via the oral, dermal and inhalation routes. It is not an eye or dermal irritant; however, it is a potential skin sensitizer. Following repeated exposures, the primary target organs identified are the adrenal glands in both sexes and testes in males. Increased cytoplasmic vacuolation in the Zona fasciculate of the adrenal cortex was observed in several subchronic and chronic studies in rats, mice and dogs of both sexes. Female rats and dogs appeared to be the more sensitive to adrenal effects, with the dog as the most sensitive species. The effects on the adrenal glands generally coincided with increased adrenal weight. Other organs with histopathology findings reported in male dogs included the testes (vacuolation and hypertrophy/activation of Leydig cells), epididymis (degeneration and/or immaturity of germinal epithelium, oligo- and aspermia), prostate (immaturity signs), and thymus (atrophy). Increased liver weights were also reported in male dogs along with decreases in prostate weights.

The effects reported in chronic dog studies were similar to subchronic studies and occurred at lower administered oral doses of spirodiclofen. As with subchronic studies, histopathology of the adrenal gland revealed an increased incidence of cortical vacuolation in the Zona fasciculata of both sexes. In the testes, increased incidences of Leydig cell vacuolation, slight Leydig cell hypertrophy, and tubular degeneration were observed in males. Other effects reported in chronic studies included decreases in cholesterol and triglycerides, decreased body weights and body-weight gains, increased APh levels and increased vacuolated jejunum enterocytes in rats, and increased incidences of Leydig cell hyperplasia in rats and mice.

There was no evidence of developmental toxicity in the rabbit developmental toxicity study. The rat developmental toxicity study resulted in developmental toxicity (an increased incidence of slight dilatation of the renal pelvis) at the highest dose tested; a dose which did not cause maternal toxicity. In the 2-generation reproductive toxicity study in rats, developmental effects were observed in F 1 males (delayed sexual maturation, decreased testicular spermatid and epididymal sperm counts/oligospermia; and atrophy of the testes, epididymides, prostate, and seminal vesicles) and F 1 females (increased severity of ovarian luteal cell vacuolation/degeneration), but at a higher dose than the systemic effects seen for parents and offspring.

There was no evidence of neurotoxicity in the acute and subchronic neurotoxicity studies for spirodiclofen. In a developmental neurotoxicity (DNT) study, a decrease in retention was observed in the memory phase of the water maze for postnatal day 60 female offspring at all doses. In this DNT study, the morphometric measurements were not performed at the low- and mid-dose; therefore, another DNT study was conducted using identical experimental conditions as the previous study. The results of the second DNT study demonstrated no treatment-related neurotoxicity, but the two DNT studies for spirodiclofen suggest increased susceptibility of offspring. An acceptable immunotoxicity study, which was reviewed by the EPA after the risk assessment was finalized, showed no treatment related systemic or immunotoxic related effects up to the highest dose tested.

Chronic toxicity and carcinogenicity studies showed an increased incidence of uterine adenocarcinoma in female rats, Leydig cell adenoma in male rats, and liver tumors in mice. The EPA has classified spirodiclofen as “likely to be carcinogenic to humans” by the oral route based on evidence of Leydig cell adenomas in male rat testes, uterine adenomas and/or adenocarcinoma in female rats, and liver tumors in mice. Results of genotoxicity testing were negative.

Specific information on the studies received and the nature of the adverse effects caused by spirodiclofen as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found in the document, “Spirodiclofen. Human-Health Risk Assessment for Proposed Uses in/on Sugar Apple, Cherimoya, Atemoya, Custard Apple, Ilama, Soursop, Biriba, Lychee, Longan, Spanish Lime, Rambutan, Pulasan, Guava, Feijoa, Jaboticaba, Wax Jambu, Starfruit, Passionfruit, Persimmon, and Acerola.” At pages 28-30 in docket ID number EPA-HQ-OPP-2013-0411.

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

A summary of the toxicological endpoints for spirodiclofen used for human risk assessment is shown in Table 1 of this unit.

1. Dietary exposure from food and feed uses. In evaluating dietary exposure to spirodiclofen, EPA considered exposure under the petitioned-for tolerances as well as all existing spirodiclofen tolerances in 40 CFR 180.608. EPA assessed dietary exposures from spirodiclofen in food as follows:

i. Acute exposure. Quantitative acute dietary exposure and risk assessments are performed for a food-use pesticide, if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1-day or single exposure. No such effects were identified in the toxicological studies for spirodiclofen; therefore, a quantitative acute dietary exposure assessment is unnecessary.

ii. Chronic exposure. In conducting the chronic dietary exposure assessment EPA used the food consumption data from the United States Department of Agriculture (USDA) 1994-1996 and 1998 Nationwide Continuing Surveys of Food Intake by Individuals (CSFII). As to residue levels in food, EPA utilized average field trial residues; experimentally determined processing factors for citrus fruit, pome fruit and grape; and Dietary Exposure Evaluation Model (DEEM (ver 7.81)) default processing factors for the remaining processed commodities. The assessment also utilized percent crop treated for new uses (PCTn) on hops and blueberry, and percent crop treated (PCT) estimates for several other registered commodities.

iii. Cancer. EPA determines whether quantitative cancer exposure and risk assessments are appropriate for a food-use pesticide based on the weight of the evidence from cancer studies and other relevant data. If quantitative cancer risk assessment is appropriate, Cancer risk may be quantified using a linear or nonlinear approach. If sufficient information on the carcinogenic mode of action is available, a threshold or nonlinear approach is used and a cancer RfD is calculated based on an earlier noncancer key event. If carcinogenic mode of action data are not available, or if the mode of action data determines a mutagenic mode of action, a default linear cancer slope factor approach is utilized. Based on the data summarized in Unit III.A., EPA has concluded that spirodiclofen should be classified as “Likely to be Carcinogenic to Humans” and a linear approach has been used to quantify cancer risk. Cancer risk was quantified using the same food residue estimates as discussed in Unit III.C.1.ii.

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

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

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

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

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

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

The Agency estimated the PCT for existing uses as follows: Almond, 5%; apple, 5%; apricot, 5%; cherry, 2%; grapefruit, 50%; grape, raisin, 10%; grape, table, 30%; grape, wine, 5%; hazelnuts, 2%; lemon, 1%; nectarine, 10%; orange, 10%; peach, 5%; pear, 10%; pecan, 2%; pistachio, 1%; plum/prune, 5%; and walnut, 5%.

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

The Agency estimated the PCT for new uses as follows: Blueberry, 2%; and hops, 92%.

In the Federal Register of May 7, 2008 (73 FR 25533) (FRL-8362-2), the Agency estimated the PCT for the proposed use of spirodiclofen on hops to be 92%. Since spirodiclofen has only been registered on hops since 2008, EPA relied on the previously estimated PCT for hops.

The EPA estimate of the percent PCT for these new uses of spirodiclofen represents the upper bound of use expected during the pesticide's initial five years of registration; that is, the PCT for spirodiclofen is a threshold of use that EPA is reasonably certain will not be exceeded for this registered use site. The PCT recommended for use in the chronic dietary assessment is calculated as the average PCT of the miticide with the highest usage (i.e., the miticides with the greatest PCT) on that crop over the three most recent years of available data. The PCT recommended for use in the chronic dietary assessment is 2% for blueberries and 92% for hops. Comparisons are only made among pesticides of the same pesticide type (i.e., the miticide with the highest usage on the use crop is selected for comparison with a new miticide). The highest miticide PCT included in the estimation may not be the same for each year since different miticides may have the highest usage in different years.

Typically, EPA uses USDA/NASS surveys as the source data because they are publicly available and directly report values for PCT. When a specific use crop is not reported by USDA/NASS, EPA uses proprietary data and calculates the PCT based on reported data on acres treated and acres grown. If no proprietary data are available, EPA may extrapolate PCT for new uses from other crops if the production area and pest spectrum are substantially similar.

A retrospective analysis to validate this approach shows few cases where the PCT for the highest miticides were exceeded (EPA, 2006). Further review of these cases identified factors contributing to the exceptionally high use of a new pesticide. To evaluate whether the PCT for spirodiclofen could be exceeded, EPA considered whether or not there may be unusually high pest pressure, as indicated in emergency exemption requests for spirodiclofen, the pest spectrum of the new pesticide in comparison with the highest miticides, whether or not the highest miticides are well-established for that use and whether or not pest resistance issues with past miticides provide spirodiclofen with significant market potential. Given currently available information, the Agency concludes that it is unlikely that actual PCT for spirodiclofen will exceed the estimated PCT for new uses during the next five years.

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

2. Dietary exposure from drinking water. EPA concluded that the residues of concern in drinking water for purposes of risk assessment are spirodiclofen and its three metabolites (BAJ 2510, BAJ 2740-dihydroxy, and BAJ 2740-ketohydroxy). Therefore, the Agency used screening level water exposure models in the dietary exposure analysis and risk assessment for spirodiclofen and its metabolites in drinking water. These simulation models take into account data on the physical, chemical, and fate/transport characteristics of spirodiclofen and its metabolites. Further information regarding EPA drinking water models used in pesticide exposure assessment can be found at http://www.epa.gov/oppefed1/models/water/index.htm .

Based on the Pesticide Root Zone Model/Exposure Analysis Modeling System (PRZM/EXAMS) and Screening Concentration in Ground Water (SCI-GROW) models, the estimated drinking water concentrations (EDWCs) of spirodiclofen and its metabolites for chronic exposures for non-cancer assessments are estimated to be 4.99 parts per billion (ppb) for surface water and 0.44 ppb for ground water. The EDWCs for chronic exposures for cancer assessments are estimated to be 1.67 ppb for surface water and 0.44 ppb for ground water.

Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For chronic dietary risk assessment, the water concentration of value 4.99 ppb was used to assess the contribution to drinking water. For cancer dietary risk assessment, the water concentration of value 1.67 ppb was used to assess the contribution to drinking water.

3. From non-dietary exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets). Spirodiclofen is not registered for any specific use patterns that would result in residential exposure.

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

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

2. Prenatal and postnatal sensitivity. The spirodiclofen toxicity database is adequate to evaluate the potential increased susceptibility of infants and children, and includes developmental toxicity studies in rat and rabbit, a 2-generation toxicity study in rat, and two rat DNT studies. There is no evidence of increased susceptibility in the rabbit developmental toxicity study or in the 2-generation rat reproductive toxicity study following in utero /pre- and postnatal exposures of spirodiclofen. However, evidence for quantitative susceptibility was observed in a rat developmental toxicity study, where an increased incidence of slight dilatation of the renal pelvis was observed at the highest dose tested (1,000 mg/kg/day) in the absence of maternal toxicity. Additionally, two rat DNT studies are available. The first study demonstrated increased quantitative susceptibility of offspring based on the observed decreased retention in the memory phase of the water maze for postnatal day 60 female offspring at all doses and changes in brain morphometric parameters at the highest dose tested of 135.9 mg/kg/day (including caudate putamen, parietal cortex, hippocampal gyrus, and dentate gyrus); there was no maternal toxicity noted at any dose. EPA requested information concerning the brain morphometric parameters in the low- and mid doses with the petitioner indicating that the brain tissues were not appropriately preserved and analysis was therefore not possible. As a result, a second rat DNT study was submitted which also indicated increased susceptibility in offspring based on decreased pre-weaning body weight and body weight gain in males and females and decreased post-weaning body weights in males. The second rat DNT demonstrated no treatment-related neurotoxicity in the offspring.

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

i. The toxicity database for spirodiclofen is complete. Changes to 40 CFR Part 158 require immunotoxicity testing (OPPTS Guideline 870.7800) for pesticide registration. At the time of the last completed risk assessment for spirodiclofen, which was finalized on November 11, 2011, an immunotoxicity study was a data gap in the toxicity database. However, since the time of the risk assessment, EPA has received and reviewed an acceptable immunotoxicity study for spirodiclofen. Upon review of the study, the Agency has determined that there is no treatment related systemic or immunotoxic related effects. Therefore, the immunotoxicity study does not impact the findings of the 2011 risk assessment. Additionally, EPA has determined a subchronic inhalation toxicity study is not required for spirodiclofen at this time. This approach considered all of the available hazard and exposure information for spirodiclofen, including: (1) Its low acute inhalation toxicity; (2) the lowest short- and intermediate-term MOEs calculated using an oral POD are 6,200 and 1,000 respectively; and (3) its physical and chemical properties, including its low volatility. Therefore, an additional UF is not needed to account for the lack of this study.

ii. Two DNT studies have been submitted and reviewed by the EPA. The Agency has determined that there is no concern for the increased quantitative susceptibility seen in the first DNT study because the results were not reproduced in the second DNT study conducted using identical doses and experimental conditions. The second DNT provided no evidence of neurotoxicity, and concern for the increased quantitative susceptibility (slight changes in body weights) noted in this study is low because there is a well-established NOAEL, only marginal developmental toxicity was noted, and all developmental/functional parameters were comparable to controls. In addition, doses selected for risk assessment of spirodiclofen are much lower than the dose where the effects in the second DNT were noted. Finally, there was no evidence of neurotoxicity or neuropathology in the acute and subchronic neurotoxicity studies. Therefore, there is no need for an additional UF to account for neurotoxicity. Additional information about the two DNT studies can be found at http://www.regulations.gov in the Federal Register of May 7, 2008 ( http://www.epa.gov/fedrgstr/EPA-PEST/2008/May/Day-07/p9826.htm ).

iii. Quantitative susceptibility was noted in the developmental toxicity study in rats. However, EPA determined that the degree of concern is low for the noted effects because the increased incidence of slight renal pelvic dilation was observed only at the highest dose tested, in the absence of statistical significance and dose response. Additionally, renal pelvic dilation was considered to be a developmental delay and not a severe effect for developmental toxicity. The low background incidences in this study may also be idiosyncratic to this strain (Wistar) of rats since renal pelvic dilations are commonly seen at higher incidences in other strains (Sprague-Dawley or Fisher) of rats. Furthermore, there is a well-established NOAEL at which all developmental/functional parameters were comparable to controls, and lower doses are being used for the risk assessment of spirodiclofen. As noted above, concern is low for the increased quantitative susceptibility noted in offspring in the DNT studies. There was no evidence of increased susceptibility in the developmental toxicity study in rabbits or the 2-generation reproduction study in rats. Therefore, there are no residual concerns regarding developmental effects in the young.

iv. There are no residual uncertainties identified in the exposure databases. The chronic and cancer dietary exposure assessments were refined, utilizing average field trial residues; experimentally determined processing factors for citrus fruit, pome fruit, and grape; and DEEM (ver. 7.81) default processing factors for the remaining processed commodities. The assessment also included PCTn estimates for hops and blueberry and PCT data for several additional registered commodities. EPA made conservative (protective) assumptions in the ground water and surface water modeling used to assess exposure to spirodiclofen and its metabolites in drinking water. These assessments will not underestimate the exposure and risks posed by spirodiclofen.

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

1. Acute risk. An acute aggregate risk assessment takes into account acute exposure estimates from dietary consumption of food and drinking water. No adverse effect resulting from a single oral exposure was identified and no acute dietary endpoint was selected. Therefore, spirodiclofen is not expected to pose an acute risk.

2. Chronic risk. Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that chronic exposure to spirodiclofen from food and water will utilize 3.2% of the cPAD for children 1-2 years old, the population group receiving the greatest exposure. There are no residential uses for spirodiclofen.

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

4. Aggregate cancer risk for U.S. population. Using the exposure assumptions described in Unit III.C.1.iii., EPA has concluded the cancer risk from food and water for all existing and proposed spirodiclofen uses will result in a lifetime cancer risk of 3 × 10 −6 . EPA generally considers cancer risks in the range of 10 −6 or less to be negligible. The precision which can be assumed for cancer risk estimates is best described by rounding to the nearest integral order of magnitude on the log scale; for example, risks falling between 3 × 10 −7 and 3 × 10 −6 are expressed as risks in the range of 10 −6 . Considering the precision with which cancer hazard can be estimated, the conservativeness of low-dose linear extrapolation, and the rounding procedure described above in this unit, cancer risk should generally not be assumed to exceed the benchmark level of concern of the range of 10 −6 until the calculated risk exceeds approximately 3 × 10 −6 . This is particularly the case where some conservatism is maintained in the exposure assessment.

For the following reasons, EPA concludes that there are conservatisms in the spirodiclofen exposure assessment. Based on a critical commodity analysis conducted in DEEM-Food Commodity Intake Database (DEEM-FCID) TM , the major contributors to the cancer risk were hops (44% of the total exposure) and water (21% of the total exposure). EPA notes the following conservative assumptions, which were incorporated into the cancer analysis for hops and water:

i. Hops. DEEM-FCID TM assumes that 100% of the residues in hops are transferred to beer during the brewing process (no residues remain in/on the spent hops). Since spirodiclofen has low water solubility, this is a conservative assumption. Additionally, the assessment assumed a PCT estimate of 92% for hops; PCT estimates for new uses are designed to provide a conservative estimate of the actual PCT estimates; and

ii. Drinking water. The water residue estimate assumed 87% of the basin is cropped with 100% of the crops treated at the maximum labeled rate.

Therefore, EPA concludes that the cancer risk estimate provided in this assessment is conservative and actual cancer risk will be lower than the estimate provided in this document.

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

Adequate enforcement methodology, a liquid chromatography/mass spectrometry/mass spectrometry (LC/ MS/MS) method, is available to enforce the tolerance expression.

The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; email address: residuemethods@epa.gov .

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

The Codex has not established a MRL for spirodiclofen in or on citrus oil.

Therefore, a tolerance for residues of spirodiclofen, 3-(2,4-dichlorophenyl)-2-oxo-1-oxaspiro[4.5]dec-3-en-4-yl 2,2-dimethylbutanoate, in or on citrus, oil is amended from 20 ppm to 35 ppm. Additionally, the tolerance expression is amended for spirodiclofen in order to clarify (1) that, as provided in FFDCA section 408(a)(3), the tolerance covers metabolites and degradates of spirodiclofen not specifically mentioned; and (2) that compliance with the specified tolerance levels is to be determined by measuring only spirodiclofen.

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

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

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

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

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq. ), EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Therefore, 40 CFR chapter I is amended as follows:

I. General Information A. Does this action apply to me?

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Printing Office's e-CFR site at http://www.ecfr.gov/cgi-bin/text-idx?&c=ecfr&tpl=/ecfrbrowse/Title40/40tab_02.tpl.

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2012-0903, in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before August 11, 2014. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2012-0903, by one of the following methods:

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

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

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

Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at http://www.epa.gov/dockets.

In the Federal Register of January 16, 2013 (78 FR 3377) (FRL-9375-4), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 2E8114) by Dow AgroSciences, LLC, 9330 Zionsville Road, Indianapolis, IN 46268. The petition requested that 40 CFR part 180 be amended by establishing tolerances for residues of the fungicide tricyclazole, 5-methyl-1,2,4-triazolo[3.4-b] benzothiazole, including its metabolites and degradates, in or on rice at 3.0 parts per million (ppm). That document referenced a summary of the petition prepared by Dow AgroSciences, LLC, the registrant, which is available in the docket, http://www.regulations.gov. There were no comments received in response to the notice of filing.

Tricyclazole is a new active ingredient and is not currently registered or proposed for use in the United States. The only anticipated exposure to tricyclazole residues is from the dietary consumption of imported rice. Therefore, acute and chronic dietary assessments were conducted for tricyclazole residues of concern in food only.

Based upon review of the data supporting the petition, EPA has determined that the parent compound, tricyclazole, is suitable as a residue definition for purposes of both tolerance enforcement and risk assessment in rice. This determination is based on tricyclazole being the only major residue in rice grain and the observation that in samples from field trials with quantifiable levels of the alcohol metabolite, the metabolite is reduced to less than the level of detection upon husking. EPA has not revised the tolerance proposed by Dow in the notice of filing. EPA has added the compliance statement which clarifies that only the parent compound is to be analyzed for enforcement purposes.

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

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

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

In oral rat and dog studies, decreased body weight was the primary effect observed in the database; in oral mouse studies, effects were mainly seen in the liver. In rats, decreased body weight was the only treatment related effect seen in adult animals in the subchronic and chronic studies, with body weight decreases occurring at a lower dose after chronic exposure. Decreased body weight was also seen in adult rats in developmental and reproduction studies. Other effects observed in rats included clinical signs (weakness, cold body, piloerection) in the developmental toxicity study at a dose similar to that in the subchronic study where decreased body weight was noted. Brain weight changes were also observed in rats in the chronic study; however, due to inconsistency in the data the effects were not considered treatment related. In dogs, decreased body weight was the only treatment related effect observed after chronic exposure. In mice, mortality was seen after 90 days, as well as hematological changes (increased WBC, decreased lymphocyte count, increased neutrophil) and liver effects (increased weights, enzymes, and histopathology). However, it is noteworthy to mention that the 90-day subchronic study was considered unacceptable due to numerous deficiencies. Increased mortality was not observed in other toxicity studies in mice. After 10 months, only liver effects (increased weights, microsomal activity, and histopathology) were observed in mice and no treatment related effects were observed after 1 year. However, chronic exposure in mice (cancer mouse study), resulted in liver effects including, increased liver weights and liver histopathology (acidophilic degeneration and fatty change) at doses lower than those producing liver effects in the shorter term mouse studies.

Delayed ossification was observed in fetuses in the rabbit developmental study while decreased body weight was observed in fetuses in the rat developmental study. The effects were seen in the absence of maternal toxicity indicating quantitative susceptibility. In the rat reproduction study, offspring effects included pup death (post-natal day (PND 1-4)), decreases in pup body weight, and an increase in the number of small pups in the presence of less severe maternal toxicity (decreased body weight) indicating qualitative susceptibility. Although susceptibility was observed in the developmental/reproduction studies, the doses and endpoints selected for risk assessment are protective and the degree of concern for the susceptibility observed in the studies is low. The Agency has classified tricyclazole as “Not Likely to be Carcinogenic to Humans.” There were no treatment-related increases in tumors observed in the submitted carcinogenicity studies in rats and/or mice.

Neurotoxicity (acute, subchronic, and developmental) and immunotoxicity studies are not available for tricyclazole. However, EPA, using a weight of the evidence (WOE) approach, concluded that these studies are not required. Dermal toxicity and dermal penetration studies are also not available for tricyclazole. However, these studies are not required to support import tolerances.

Specific information on the studies received and the nature of the adverse effects caused by tricyclazole as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at http://www.regulations.gov on pages 22-28, in the document titled, “Tricyclazole: Human Health Risk Assessment for the Establishment of Tolerances with No U.S. Registration for the New Fungicide in/on Imported Rice” in docket ID number EPA-HQ-OPP-2012-0903.

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

Since the proposed uses of tricyclazole are all non-domestic, there is no potential for drinking water, occupational, and/or residential exposure, and the only anticipated exposure to tricyclazole is dietary exposure through consumption of imported rice. Therefore, endpoints and PODs were only selected for acute and chronic dietary risk assessment.

For acute dietary risk assessment (all populations including females 13-49), the no observed adverse effect level (NOAEL) of 7 milligrams/kilogram/day (mg/kg/day) was selected from a reproduction study in rats. An increased incidence of pup death was seen at the lowest observed adverse effect level (LOAEL) of 26.7 mg/kg/day. Decreased pup weight and small pups were also observed at the LOAEL but were not considered to be single dose effects.

For chronic dietary exposure, a NOAEL of 6.67 mg/kg/day was selected from a cancer study in mice based on liver effects observed at the LOAEL of 21.8 mg/kg/day. For acute and chronic dietary risk assessments, a 100X uncertainty factor was applied (interspecies factor of 10X and intraspecies factor of 10X).

1. Dietary exposure from food and feed uses. In evaluating dietary exposure to tricyclazole, EPA considered exposure under the petitioned-for tolerances. EPA assessed dietary exposures from tricyclazole in food as follows:

i. Acute and chronic exposure. Acute and chronic dietary (food only) exposure assessments were conducted with the Dietary Exposure Evaluation Model (DEEM-FCID), Version 3.16. This software uses 2003-2008 food consumption data from the U.S. Department of Agriculture's (USDA's) National Health and Nutrition Examination Survey, What We Eat in America (NHANES/WWEIA). Conservative acute and chronic exposure analyses were performed for the general U.S. population and population subgroups. Recommended tolerance-level residues were used to estimate dietary exposure. The analyses assumed 100% of imported rice is treated.

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

iii. Anticipated residue and percent crop treated (PCT) information. EPA did not use anticipated residue and/or PCT information in the dietary assessment for tricyclazole. Tolerance level residues and/or 100% CT were assumed for all food commodities.

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

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

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

2. Prenatal and postnatal sensitivity. The toxicological database is complete with regard to pre-and postnatal toxicity. Although there was evidence of quantitative susceptibility in developmental rat and rabbit toxicity studies and qualitative susceptibility in the reproduction study, the degree of concern for the effects observed in the studies is low. There are clear NOAELs/LOAELs for the fetal/pup effects seen and the effects in the developmental and reproduction studies were observed at levels significantly higher than the current PODs selected for risk assessment. Therefore, the acute and chronic dietary risk assessments are protective of potential fetal/offspring effects.

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

i. The toxicity database for tricyclazole is complete with regard to pre- and postnatal toxicity.

ii. The endpoints and doses selected for risk assessment are protective of the increased qualitative susceptibility observed in the reproduction study in rats and the increased quantitative susceptibility seen in the developmental rat and rabbit studies; therefore the degree of concern for the susceptibility is low.

iii. The endpoints and doses selected for risk assessment are also protective of the observed clinical signs in the database and neurotoxicity studies (acute, subchronic, and developmental) are not required; an immunotoxicity study is also not required.

iv. There are no residual uncertainties identified in the exposure databases. The dietary food exposure assessments were performed based on 100% CT and tolerance-level residues. These assessments will not underestimate the exposure and risks posed by tricyclazole.

Three methods have undergone successful independent laboratory validation for use as enforcement analytical methods. The first method is suitable for the analysis of both parent tricyclazole and the alcohol metabolite. It involves acid hydrolysis, extraction of residues into dichloromethane, clean-up by strong cation exchange (SCX) solid-phase extraction, silylation of the alcohol metabolite, and analysis by gas chromatography/mass spectrometry (GC/MS). The validated limit of quantitation (LOQ) is 0.02 ppm for rice grain, polished rice, and rice husks, and 0.05 ppm for rice forage, straw, and processed byproducts. The remaining two methods are multi-residue methods (DFG S19 and modified QuEChERS). DFG S19 uses acetone extraction, clean-up by partitioning and gel-permeation chromatography (GPC), and analysis by GC-MS. The validated LOQ is 0.02 ppm (parent only). The modified QuEChERS method uses acetonitrile/water extraction, clean-up by solid-phase partitioning, and analysis by liquid chromatography/mass spectrometry (LC-MS/MS). The validated LOQ is 0.01 ppm each for the parent compound and the alcohol metabolite.

The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; email address: residuemethods@epa.gov.

In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level. The Codex has not established a MRL for tricyclazole in rice.

EPA has not revised the tolerance levels, added or deleted tolerances, or otherwise modified the petition as proposed in the notice of filing. However, EPA has added the compliance statement which clarifies that the parent compound, tricyclazole, it so be measured for enforcement purposes.

Therefore, a tolerance is established for residues of tricyclazole, 5-methyl-1,2,4-triazolo[3,4-b] benzothiazole, including its metabolites and degradates, in or on rice, grain at 3.0 ppm. Compliance with the tolerance is to be determined by measuring only tricyclazole.

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

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

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

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

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq. ), EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Therefore, 40 CFR chapter I is amended as follows:

I. General Information A. Does this action apply to me?

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

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

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

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2013-0210 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before August 11, 2014. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit a copy of your non-CBI objection or hearing request, identified by docket ID number EPA-HQ-OPP-2013-0210, by one of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the on-line instructions for submitting comments.

• Mail: Office of Pesticide Programs (OPP) Regulatory Public Docket (7502P), Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001.

• Delivery: OPP Regulatory Public Docket (7502P), Environmental Protection Agency, Rm. S-4400, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. Deliveries are only accepted during the Docket Facility's normal hours of operation (8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays). Special arrangements should be made for deliveries of boxed information. The Docket Facility telephone number is (703) 305-5805.

In the Federal Register of August 5, 2009 (74 FR 38935) (FRL-8430-1), EPA issued a final rule, announcing the establishment of a tolerance exemption pursuant to a pesticide petition (PP 9E7534) by The Joint Inerts Task Force (JITF), Cluster Support Team Number 1 (CST1), c/o CropLife America, 1156 15th St. NW., Suite 400, Washington, DC 20005. The petition requested that 40 CFR 180.910, 40 CFR 180.930, 40 CFR 180.940a, and 40 CFR 180.960 be amended by establishing exemptions from the requirement of a tolerance for residues of a group of substances known as AAAs. The exemptions narratively describe the subject chemical as α-alkyl-ω-hydroxypoly (oxypropylene) and/or poly (oxyethylene) polymers where the alkyl chain contains a minimum of six carbons and specify the individual chemicals covered by the exemptions by a listing of CAS Reg. Nos. The current petition seeks to expand these exemptions by adding an additional chemical identified by CAS Reg. No.

In the Federal Register of July 19, 2013 (78 FR 43118) (FRL-9392-9), EPA issued a notice pursuant to section 408 of FFDCA, 21 U.S.C. 346a, announcing the filing of a pesticide petition (IN-10544) by Spring Trading Company, 10805 W. Timberwagon Cir., Spring, TX 77380-4030, on behalf of Akzo Nobel Surface Chemistry, LLC, 525 West Van Buren, Chicago, IL 60607-3823. The petition requested that 40 CFR 180.920, 180.930, and 180.960 be amended by modifying the exemption from the requirement of a tolerance for residues of AAAs by adding residues of additional chemicals of [alpha]-alkyl-[omega]-hydroxypoly (oxypropylene) and/or poly(oxyethylene) polymers where the alkyl chain contains a minimum of six carbons, and alkyl- w -hydroxypoly (oxypropylene) and/or poly (oxyethylene) polymers where the alkyl chain contains a minimum of six carbons, minimum number average molecular weight (in AMU) 1,100 in or on growing crops at no limitation when used as an inert ingredient in pesticide formulations. That notice referenced a summary of the petition prepared by Akzo Nobel Surface Chemistry, the petitioner, which is available in the docket, http://www.regulations.gov. Comments were received on the notice of filing. A public comment noted that the requested 40 CFR sections, 180.920, 180.930, or 180.960 were not all the correct sections for AAAs. The petitioner agreed and resubmitted their request.

In the Federal Register of February 25, 2014 (79 FR 03861) (FRL-9906-77), EPA issued a notice pursuant to section 408 of FFDCA, 21 U.S.C. 346a, announcing the filing of a pesticide petition (IN-10544) by Spring Trading Company, 10805 W. Timberwagon Cir., Spring, TX 77380-4030, on behalf of Akzo Nobel Surface Chemistry, LLC, 525 West Van Buren, Chicago, IL 60607-3823. The petition requested that 40 CFR 180.910, 180.930, 180.940(a) and 180.960 be amended by modifying the exemption from the requirement of a tolerance for residues of AAAs to include CAS Reg. No.: 116810-31-2 when used as an inert ingredient in pesticide formulations applied to growing crops without limitations. That notice referenced a summary of the petition prepared by Akzo Nobel Surface Chemistry, the petitioner, which is available in the docket, http://www.regulations.gov. Comments were received on the notice of filing. EPA's response to these comments is discussed in Unit V.C.

In this petition, Akzo Nobel Surface Chemistry claims that the chemical CAS Reg. No.; 116810-31-2 is covered by the published tolerance exemption for AAAs and that no further data or review is required to amend the existing tolerance exemption to include the additional CAS Reg. No.

Based upon review of the data supporting the petition, EPA has confirmed that the requested CAS Reg. No. is acceptable for consideration under the currently approved descriptor. This limitation is based on the Agency's risk assessment which can be found at http://www.regulations.gov in document IN-10544 requesting to amend the exemption from the requirement of a tolerance for [alpha]-alkyl-[omega]-hydroxypoly (oxypropylene) and/or poly (oxyethylene) polymers where the alkyl chain contains a minimum of six carbons, and a-alkyl-w-hydroxypoly (oxypropylene) and/or poly (oxyethylene) polymers where the alkyl chain contains a minimum of six carbons and a minimum number average molecular weight (in amu) 1,100, under 40 CFR 180.910, 180.930, 180.940(a) or 180.960 in docket ID number EPA-HQ-OPP-2013-0210.

Inert ingredients are all ingredients that are not active ingredients as defined in 40 CFR 153.125 and include, but are not limited to, the following types of ingredients (except when they have a pesticidal efficacy of their own): Solvents such as alcohols and hydrocarbons; surfactants such as polyoxyethylene polymers and fatty acids; carriers such as clay and diatomaceous earth; thickeners such as carrageenan and modified cellulose; wetting, spreading, and dispersing agents; propellants in aerosol dispensers; microencapsulating agents; and emulsifiers. The term “inert” is not intended to imply nontoxicity; the ingredient may or may not be chemically active. Generally, EPA has exempted inert ingredients from the requirement of a tolerance based on the low toxicity of the individual inert ingredients.

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

EPA establishes exemptions from the requirement of a tolerance only in those cases where it can be clearly demonstrated that the risks from aggregate exposure to pesticide chemical residues under reasonably foreseeable circumstances will pose no appreciable risks to human health. In order to determine the risks from aggregate exposure to pesticide inert ingredients, the Agency considers the toxicity of the inert in conjunction with possible exposure to residues of the inert ingredient through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings. If EPA is able to determine that a finite tolerance is not necessary to ensure that there is a reasonable certainty that no harm will result from aggregate exposure to the inert ingredient, an exemption from the requirement of a tolerance may be established.

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

The Agency agrees with the petitioner that CAS Reg. No.: 116810-31-2 is an AAA having molecular structures conforming to the chemical description given in the tolerance exemption expression, i.e., α-alkyl-ω-hydroxypoly (oxypropylene) and/or poly (oxyethylene) polymers where the alkyl chain contains a minimum of six carbons and which do not contain additional structural elements that are not included within the tolerance exemption expression description. In 2009, in establishing the exemption for the AAAs, EPA assessed their safety generally using worst case exposure assumptions. (74 FR 149) (FRL-8430-1). EPA concluded that that assessment showed that exempting the AAAs from the requirement from a tolerance would be safe. Inclusion of additional chemicals described above in the risk assessment for the AAAs would in no way alter that prior risk assessment given the generic findings on toxicity and the worst case exposure assumptions used in that risk assessment. Accordingly, based on the findings in that earlier rule, EPA has determined that there is a reasonable certainty that no harm to any population subgroup, including infants and children, will result from aggregate exposure to AAAs, by including the additional chemicals described above, under reasonably foreseeable circumstances. Therefore, the amendment of an exemption from tolerance under 40 CFR 180.910, 180.930, 180.940, and 180.960, for residues of AAAs to include the chemicals described above is safe under FFDCA section 408.

An analytical method is not required for enforcement purposes since the Agency is establishing an exemption from the requirement of a tolerance without any numerical limitation.

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

The Codex has not established a MRL for AAAs.

One comment was received for a notice of filing from a private citizen who opposed the authorization to sell any pesticide that leaves a residue on food. The Agency understands the commenter's concerns and recognizes that some individuals believe that no residue of pesticides should be allowed. However, under the existing legal framework provided by section 408 of the FFDCA, EPA is authorized to establish pesticide tolerances or exemptions where persons seeking such tolerances or exemptions have demonstrated that the pesticide meets the safety standard imposed by the statute.

Therefore, the exemptions from the requirement of a tolerance under 40 CFR 180.910, 180.930, 180.940a, and 180.960 for AAAs when used as an inert ingredient as a surfactant in pesticide formulations applied to growing crops is amended to add the following CAS No.: 116810-31-2.

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

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

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

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

The Congressional Review Act, 5 U.S.C. 801 et seq., generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of this final rule in the Federal Register . This final rule is not a “major rule” as defined by 5 U.S.C. 804(2).

Therefore, 40 CFR chapter I is amended as follows:

GSA reviewed the transportation management policy regarding international shipments and published a proposed rule in the Federal Register on June 19, 2013 (78 FR 36723).

The Fly America Act, 49 U.S.C. 40118, requires the use of United States air carrier service for all air cargo transportation services funded by the United States (U.S.) Government. One exception to this requirement is transportation provided under a bilateral or multilateral air transport agreement, to which the U.S. Government and the government of a foreign country are parties, and which the Department of Transportation has determined meets the requirements of the Fly America Act.

The U.S. Government has entered into several air transport agreements that allow Federally-funded transportation services for cargo movements to use foreign air carriers under certain circumstances. For example, on April 25 and April 30, 2007, the United States-European Union (EU) Air Transport Agreement (U.S.-EU Agreement) was signed, providing EU air carriers the right to transport cargo, including household goods, on scheduled and charter flights funded by the U.S. Government (excluding transportation funded by the Secretary of Defense or in the Secretary of a military department), between any point in the U.S. and any point in an EU Member State or between any two points outside the U.S. for which a U.S. Government civilian Department, Agency, or instrumentality: (1) Obtains the transportation for itself or in carrying out an arrangement under which payment is made by the U.S. Government or payment is made from amounts provided for use of the U.S. Government; or (2) provides transportation to or for a foreign country or international or other organization without reimbursement.

The U.S. Government and the European Union amended the U.S.-EU Agreement with a Protocol signed on June 24, 2010. In the amended agreement, the U.S. further extended the rights of EU air carriers to transport cargo on scheduled and charter flights funded by the U.S. Government between any point in the United States and any point outside the United States, or between any two points outside the United States. Norway and Iceland joined the U.S.-EU Air transportation agreement as amended by the Protocol on June 21, 2011, granting carriers from those countries the same rights.

The U.S. Government has air transport agreements with Australia, Switzerland, and Japan, which allow carriers from those countries to transport cargo subject to the Fly America Act between their respective home countries and the United States and between two points outside the United States. The provisions in the agreements with Australia and Switzerland became effective on October 1, 2008. The provisions in the agreement with Japan took effect on October 1, 2011.

The U.S. Government previously entered into an agreement with Saudi Arabia regarding Federally-funded transportation services for cargo movements under which Saudi Arabian air carriers are permitted to transport cargo from Saudi Arabia to the United States and from the United States to Saudi Arabia when the transportation is funded by U.S. Government contractors providing services to Federal Government entities.

Accordingly, rather than amend the FMR to include language from agreements, and thereafter amending the FMR each time there is a change in air transport agreements that affect U.S. Government-funded cargo transportation, GSA is issuing this final rule that directs customers to the Department of State Internet-based source of information ( http://www.state.gov/e/eb/tra/ata/index.htm ) relating to such agreements. This approach will allow GSA to provide and quickly update relevant information as new agreements are signed or current agreements are amended without invoking the regulatory process. In the future, if GSA were to determine that further guidance is necessary, GSA may issue FMR Bulletins, or involve the regulatory process, as appropriate.

Additionally, GSA is updating the FMR to include exceptions to the Fly America Act, such as cargo transportation services that are fully reimbursed by a third party, e.g., a foreign government, an international agency, or other organization. As the Federal Government is not expending any of its own funds, such services are not covered by the Fly America Act.

Further, in accordance with 49 U.S.C. 40118(c), GSA is amending regulations under which agencies may expend appropriations for cargo transportation using foreign air carriers when it is deemed necessary. There have been limited circumstances in the past where the use of a foreign air carrier was deemed necessary. For example, when the Government Accountability Office (formerly the General Accounting Office), had responsibility for implementing the Fly America Act, the Comptroller General held that when time requirements could not be met the use of a foreign flag carrier was deemed necessary (See The Honorable Norman Y. Mineta Chairman, Subcommittee on Aviation Committee on Public Works and Transportation, House of Representatives, Comptroller General, B-210293, June 13, 1983).

The use of foreign carriers should be very limited and agency approval should only be granted after a determination that one or more of these circumstances exist: No U.S. flag air carrier can provide the specific air transportation needed; no U.S. flag air carrier can accomplish the agency's mission; no U.S. flag air carrier can meet the time requirements in cases of emergency; there is a lack of or inadequate U.S. flag air carrier aircraft, or to avoid an unreasonable risk to safety when using a U.S. flag air carrier.

Further, this final rule updates FMR section 102-117.135(b) to include the current telephone number, email address, and Web site for the Department of Transportation Maritime Administration (MARAD), Office of Cargo Preference and Domestic Trade. This final rule also identifies the Web site for agencies to go to for information that MARAD requires to be submitted by the shipping Department or Agency when cargo is shipped subject to 46 U.S.C. 55305, the Cargo Preference Act of 1954, as amended.

Finally, GSA is revising the language in FMR section 102-117.15 to state clearly that this part applies to all agencies and wholly-owned Government corporations except as otherwise expressly provided.

In the proposed rule, GSA provided the public a 30-day comment period which ended on July 19, 2013. GSA received five recommendations from the National Air Carrier Association (NACA). NACA represents 16 member carriers who transport cargo and passengers on both scheduled and non-scheduled U.S. domestic and international flights. NACA comments related to the focus of the proposed change; how GSA will monitor and control compliance with the Fly America Act; and questioned how there will be consistency of interpretations by U.S. Government agencies for the exceptions listed.

Comment: There must be a mechanism to ensure U.S. Government agencies arrange flights using foreign flag air carriers only when it is a matter of necessity, on a case-by-case basis, according to the exceptions listed in the amendment.

Response: Regulatory and other guidance already exists that allows agencies to use foreign flag air carriers only when it is a matter of necessity. These include the Comptroller General Decision B-138942, issued March 31, 1981, requiring agency decision and certifications to be attached to the voucher; the Federal Acquisition Regulation (FAR) that governs Federal contracts for civilian agencies in Part 47, Transportation, which contains guidance for the implementation of the Fly America Act (48 CFR 47.403 and 47.404); the Federal Travel Regulation (FTR) which addresses Federal travel and relocation (41 CFR 301-10.141, et seq. ), and agency policy that regulates the use of foreign flag carriers.

Comment: Each of the exceptions is subject to interpretation, but the one referring to “. . . an unreasonable risk to safety” appears to be particularly questionable. Which U.S. Government agency will be responsible to make the determination that the flight is too risky for an U.S. flag carrier? U.S. flag carriers must be included in the risk assessment.

Response: Additional language for clarification regarding “an unreasonable risk to safety” has been incorporated into this final rule. An agency decision must be supported by an advisory alert issued by the Federal Aviation Administration, Department of State, or the Transportation Security Administration.

Comment: There must be proof supplied in every case by agencies arranging flights using foreign flag air carriers.

Response: As identified in the response to the first comment above, regulatory and other guidance already exists for agencies to follow for flights using foreign flag air carriers.

Comment: GSA should announce to the public, in advance, all flights proposed by U.S. Government agencies that would use foreign flag air carriers in accordance with this amendment, including the proof as to why a foreign flag air carrier is proposed to be used. This will allow U.S. air carriers the opportunity to comment, object, and appeal the intent to use a foreign flag carrier. GSA should propose a simple method to announce these flights to the public.

Response: The comments are outside the scope of this rule.

Comment: Note following (3)(v) of this amendment: The use of foreign flag air carriers should be rare. NACA urges GSA to replace this note with: (1) A transparent mechanism to allow advance notice of proposed use of foreign carriers, (2) an appeal process for U.S. flag carriers to object, and (3) a commitment to continue monitoring use of foreign flag air carriers by U.S. Government agencies. Only then will it be possible to ensure strict compliance with all provisions of the Fly America Act.

Response: The proposed amendment “note” text following (3)(v) has been placed into the regulation at section 102-117.135(a), Air Cargo. GSA agrees that the use of foreign-flag air carriers should be rare.

The comments regarding the three steps are outside the scope of this rule. It is each agency's responsibility to procure and manage their foreign air carrier transportation requirements.

This final rule—

• Applies to all agencies and wholly owned Government corporations as defined in 5 U.S.C. 101, et seq., and 31 U.S.C. 9101(3), except as otherwise expressly provided.

• Updates current provisions pertaining to the use of U.S. air carriers for cargo under the provisions of 49 U.S.C. 40118, commonly referred to as the “Fly America Act,” and the 46 U.S.C. 55305, the Cargo Preference Act of 1954, as amended.

• Clarifies the exceptions to the requirement of using U.S. flag air carriers.

• Revises contact information and Web sites for the Department of Transportation, Maritime Administration (MARAD).

Executive Orders (E.O.) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. This is not a significant regulatory action, and therefore, would not be subject to review under Section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule would not be a major rule under 5 U.S.C. 804.

While these revisions are substantive, this final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. This final rule is also exempt from the Regulatory Flexibility Act per 5 U.S.C. 553(a)(2) because it applies to agency management or personnel.

The Paperwork Reduction Act does not apply because the changes to the FMR would not impose recordkeeping or information collection requirements, or the collection of information from offerors, contractors, or members of the public that require the approval of the Office of Management and Budget (OMB) under 44 U.S.C. 3501, et seq.

This final rule is also exempt from Congressional review prescribed under 5 U.S.C. 801 since it relates to agency management or personnel.

For the reasons set forth in the preamble, 41 CFR Part 102-117 is amended as follows:

GSA is amending this regulation to reverse an interim rule first issued on June 6, 2002, in the Federal Register (67 FR 38896) that required all payments to the United States Postal Service (USPS) to be made using commercial payment processes, not the Official Mail Accounting System (OMAS). As a result of agency comments and waiver requests received, it became clear that many agencies were unable to move to commercial payment. Additionally, enhancements in OMAS allowed for accountability to agencies at the program level, which is important for cost containment. This rule allows agencies to pay the USPS using commercial payment processes, their existing OMAS account, or a combination of the two. This approach is consistent with comments received on the proposed rule published in the Federal Register on January 9, 2009 (74 FR 870). In addition, this rule incorporates several changes that GSA drafted in conjunction with the Federal Mail Executive Council.

A proposed rule was published in the Federal Register on May 13, 2013 (FMR Case 2008-102-4 at 78 FR 27908), that received 11 comments. Of these, 9 comments recommended keeping the annual reporting threshold for agencies with mail expenditures of $1 million or more (“large agencies”). GSA concurs with these comments and kept the reporting requirement for large agencies for two reasons. First, the current reporting from large agencies is thought to represent over 95 percent of mail expenditures. This is sufficient for the development of data-driven policy. Second, the reporting requirement would be too burdensome for small agencies and would be costly. Members of the Small Agency Council (SAC) submitted 7 of 9 comments requesting to retain the large agency reporting requirement. SAC members have 6,000 or fewer employees. According to SAC, about 33 percent of the 90 agencies are micro-agencies with less than 100 employees and have mail expenditures under $20,000. Thus, GSA agrees that the proposed, expanded reporting requirement would be too burdensome on small agencies with low mail expenditures.

Three comments were received on commercial payment. As the proposed change was to allow payment to the USPS from either commercial or through OMAS, the request for GSA to continue accepting deviation requests for OMAS is unnecessary. The definition of payment to non-USPS service providers was expanded in response to one comment received that the current definition was too limited.

One commenter requested that GSA retain roles and responsibilities of the mail program and center managers in the regulation. GSA does not adopt this request as the information was duplicative and best used as a guide, as the requestor indicated. Lastly, GSA adopted some editorial comments and has addressed these comments below in the “Changes to the Current FMR” section.

Two comments received were in support of keeping the consolidation of internal and external mail operations, as well as, supporting the sustainability activities in the mail program by incorporating strategies in accordance with Executive Order 13514. GSA appreciates these comments.

This final rule:

1. Removes the agency requirement to pay the USPS using only commercial payment processes and redefines the term “commercial payment process.”

2. Beginning in fiscal year (FY) 2014, revises the annual mail management reporting date from January 15 to October 31.

3. Requires large agencies with expenditures of $1 million or greater to submit an annual mail management report to GSA's Office of Government-wide Policy, Mail Management Policy, through the Simplified Mail Accountability Reporting Tool (SMART).

4. Refers to an FMR bulletin that details the reporting requirements at www.gsa.gov/fmrbulletin.

5. Removes the description of facility and program mail manager responsibilities.

6. Recommends all agencies implement the process of consolidation for internal and external mail.

7. Requires all agencies to expand existing mail security policy to include guidance for employees receiving incoming and sending outgoing official mail at an alternative worksite.

8. Encourages agencies to increase sustainable activities in their mail programs.

9. Makes editorial and technical corrections.

Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

This final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. This rule is also exempt from the Administrative Procedure Act per 5 U.S.C. 553(a)(2) because it applies to agency management or personnel.

The Paperwork Reduction Act does not apply because the changes to the Federal Management Regulation do not impose recordkeeping or information collection requirements, or the collection of information from offerors, contractors, or members of the public which require the approval of the Office of Management and Budget (OMB) under 44 U.S.C. 3501, et seq.

This final rule is exempt from Congressional review under 5 U.S.C. 801 since it relates solely to agency management or personnel.

For the reasons set forth in the preamble, GSA revises 41 CFR part 102-192 to read as follows:

The Secretary of the Interior is responsible for implementing the Native American Graves Protection and Repatriation Act (NAGPRA or Act) (25 U.S.C. 3001 et seq. ), including the issuing of appropriate regulations that interpret the provisions of the Act.

The Act addresses the rights of lineal descendants, Indian tribes, and Native Hawaiian organizations to certain Native American human remains, funerary objects, sacred objects, and objects of cultural patrimony. The Act defines Indian tribe as any tribe, band, nation, or other organized group or community of Indians, including any Alaska Native village (as defined in, or established pursuant to, the Alaska Native Claims Settlement Act) (43 U.S.C. 1601 et seq. ), which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians (25 U.S.C. 3001(7)).

The Department of the Interior (Department) published the initial rule to implement the Act on December 4, 1995 (60 FR 62158). That rule defined Indian tribe to include, in addition to any Alaska Native village, any Alaska Native corporation.

From July 2009 to July 2010, at the request of Congress, the Government Accountability Office (GAO) conducted a performance audit to address the status of NAGPRA implementation among Federal agencies. In its report, “Native American Graves Protection and Repatriation Act: After Almost 20 Years, Key Federal Agencies Still Have Not Fully Complied with the Act” (Report no. GAO-10-768 (July 2010)) the GAO recommended, among other things, that the National NAGPRA Program, in conjunction with the Department's Office of the Solicitor, reassess whether any Alaska Native corporations should be considered as “eligible entities for purposes of carrying out NAGPRA . . .” (GAO Report, at 55).

The recommendation and analysis in the report created significant uncertainty on the part of museums and Federal agencies concerning the status of Alaska Native corporations under NAGPRA. The Department received a number of questions including whether Alaska Native corporations may assert claims for human remains and other cultural items; whether the NAGPRA requirements for consultation with Indian tribes apply to Alaska Native corporations; whether Alaska Native corporations are authorized under the law to bring matters to the NAGPRA Review Committee; and whether Alaska Native Corporations can be recipients of grants authorized by NAGPRA.

To address these questions, and as recommended by GAO, the Department's Office of the Solicitor examined the legal basis for the existing regulatory provision that included Alaska Native corporations as Indian tribes under the Act. The opinion of the Solicitor's Office is posted on the National NAGPRA Program's Web site at http://www.nps.gov/history/nagpra.

The Solicitor's Office found that in the Act, Congress did not adopt the definition of Indian tribe as it is defined in the Indian Self-Determination and Education Assistance Act (ISDEAA) (25 U.S.C. 450b). Although the ISDEAA definition includes Alaska Native corporations, the NAGPRA definition does not. According to the legislative history of NAGPRA, the definition of Indian tribe in the Act was deliberately changed from that in the ISDEAA in order to “delete [ ] land owned by any Alaska Native Corporation from being considered as `tribal land' (136 Cong. Rec. 36,815 (1990)). Accordingly, the Solicitor's Office recommended that the regulatory definition of Indian tribe be changed to conform to the statutory definition.

In response to the Solicitor's Office recommendation, the Department published an interim final rule that removed and reserved paragraph (b)(2) of 43 CFR 10.2 that had contained the regulatory definition of Indian tribe (76 FR 39007, July 5, 2011). The interim final rule also contained a request for comments, and for good cause made the interim final rule effective upon publication in the Federal Register . This good-cause finding was based on the uncertainty caused by the July 2010 GAO NAGPRA report and the need to ensure compliance with the requirements of the Act. Since then, the Department has been using only the statutory definition of Indian tribe to implement the Act.

We received one written comment during the 60-day comment period from one member of the public. The commenter supported the removal of the definition of Indian tribe.