Comments Invited

This AD is a final rule that involves requirements affecting flight safety, and we did not provide you with notice and an opportunity to provide your comments prior to it becoming effective. However, we invite you to participate in this rulemaking by submitting written comments, data, or views. We also invite comments relating to the economic, environmental, energy, or federalism impacts that resulted from adopting this AD. The most helpful comments reference a specific portion of the AD, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should send only one copy of written comments, or if comments are filed electronically, commenters should submit them only one time. We will file in the docket all comments that we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning this rulemaking during the comment period. We will consider all the comments we receive and may conduct additional rulemaking based on those comments.

We are adopting a new AD for Eurocopter EC 155B, EC155B1, SA-365N1, AS-365N2 and AS 365 N3 helicopters. Eurocopter reported that a technician found cracks on the TRH during an inspection of a Model AS-365 helicopter equipped with a 10-blade TRH. This AD requires repetitive visual inspections of the TRH for a crack. Eurocopter initially required a visual inspection of the TRH every 110 hours, but reduced that requirement to 55 flight hours after cracks were found on a second hub. Eurocopter is investigating the cause of the cracks.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD No. 2011-0144, dated July 26, 2011, to correct this unsafe condition for Eurocopter Model EC 155B, EC155B1, SA-365N1, AS-365N2 and AS 365 N3 helicopters. EASA states that if a TRH crack is not detected and corrected, the tail rotor could jam, leading to a reduction or loss of control of the helicopter. Pending further investigation, the EASA AD requires repetitive inspections of the TRH every 55 flight hours. EASA considers the actions in its AD to be interim measures and expects further AD actions will follow.

These helicopters have been approved by the aviation authority of France and are approved for operation in the United States. Pursuant to our bilateral agreement with France, EASA, its technical representative, has notified us of the unsafe condition described in the EASA AD. We are issuing this AD because we evaluated all information provided by EASA and determined the unsafe condition exists and is likely to exist or develop on other helicopters of these same type designs.

Following the report of cracks found on the TRH of a Model AS-365 helicopter, Eurocopter issued Alert Service Bulletin (ASB) No. EC 155-05A021, Revision 0, dated April 11, 2011, for Model EC 155B and EC155B1 helicopters, and ASB No. AS365-05.00.60, Revision 0, dated April 11, 2011, for Model SA-365N1, AS-365N2 and AS 365 N3 and some military helicopters. After a second report of TRH cracks, the ASBs were revised, dated July 20, 2011, to mandate and reduce the repetitive inspection interval from 110 flight hours to 55 flight hours.

The ASBs call for visually inspecting the TRH for cracks and, if cracks are found, removing the TRH. EASA classified these ASBs as mandatory and issued AD No. 2011-0144 to ensure the continued airworthiness of these helicopters.

This AD requires visually inspecting the TRH for a crack within 55 hours time in service (TIS) and, if a crack exists, removing the TRH from service. This inspection must be repeated at intervals not to exceed 55 hours TIS.

We consider this AD to be an interim action because Eurocopter is investigating the cause of TRH cracks. If a final action is later identified, we might consider additional rulemaking.

We estimate that this AD will affect 34 helicopters of U.S. Registry and that labor costs will average $85 a work-hour. We expect that it will take 1 work-hour to visually inspect the TRH for a crack, and that helicopters will average 5 inspections per year. Thus, we estimate a total annual cost of $425 per helicopter, and $14,450 for the U.S. operator fleet.

Providing an opportunity for public comments prior to adopting these AD requirements would delay implementing the safety actions needed to correct this known unsafe condition. Therefore, we find that the risk to the flying public justifies waiving notice and comment prior to the adoption of this rule, because the required corrective actions must be accomplished within 55 hours TIS, a very short time period based on the average utilization rate of the highest usage helicopter model.

Since an unsafe condition exists that requires the immediate adoption of this AD, we determined that notice and opportunity for public comment before issuing this AD are impractical and contrary to the public interest and that good cause exists for making this amendment effective in less than 30 days.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed, I certify that this AD:

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);

3. Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction; and

4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared an economic evaluation of the estimated costs to comply with this AD and placed it in the AD docket.

Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:

NMFS published a final rule on July 2, 1996 (61 FR 34570) that consolidated several parts of the Code of Federal Regulations (CFR) into a new CFR part 660 containing regulations for implementing management measures for fisheries operating in the exclusive economic zone (EEZ) off West Coast states. This new part 660 included a collection of information associated with recordkeeping and reporting requirements regulations at § 660.404 and § 660.408(o). This collection was previously associated with regulations at § 661.4 and § 661.20, under OMB control number 0648-0222. The 1996 rule stated that OMB approval under control number 0648-0222 had expired and that NMFS was in the process of obtaining OMB approval for the collection of information under the new regulations.

This final rule announces OMB approval and effectiveness of the collection of information associated with regulations at § 660.404 and § 660.408(o). Initial approval of these regulations in their current location in the Code of Federal regulations occurred on April 25, 2001 under OMB control number 048-0433. OMB extended this approval on September 28, 2001, November 29, 2004, April 8, 2008, and July 8, 2011. The current approval expires on July 31, 2014.

This rule makes effective a collection of information requirement subject to the Paperwork Reduction Act. The collection of this information has been approved by the Office of Management and Budget (OMB) under OMB Control Number 0648-433. Based on the management regime specified each year, designated regulatory areas in the commercial ocean salmon fishery off the coasts of Washington, Oregon, and California may be managed by numerical quotas. To accurately assess catches relative to quota attainment during the fishing season, catch data by regulatory area must be collected in a timely manner. The requirements to land salmon within specific time frames and in specific areas may be implemented in the preseason regulations to aid in timely and accurate catch accounting for a regulatory area. State landing systems normally gather the data at the time of landing. If unsafe weather conditions or mechanical problems prevent compliance with landing requirements, fishermen need an alternative to allow for a safe response. Fishermen would be exempt from landing requirements if the appropriate notifications are made to provide the name of the vessel, the port where delivery will be made, the approximate amount of salmon (by species) on board, and the estimated time of arrival. These reports are generally made via at-sea radio, cellular phone transmissions, or other electronic communication. The annual reporting burden to the public is estimated at 10 hours, based on an estimated 15 minutes per response.

Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and opportunity for public comment for this action because notice and comment would be unnecessary and contrary to the public interest. This action simply provides notice of OMB's approval of the reporting requirements at issue, which has already occurred, and renders those requirements effective. Thus this action does not involve any further exercise of agency discretion and no comment received at this time would impact any decision by NOAA or OMB. In addition, the public has had the opportunity to comment on both the substance of the reporting requirements, at the time NOAA adopted them, and on NOAA's requests for extension of OMB's approval. The reporting requirements at issue were detailed in proposed rules on which NOAA accepted public comment. The reporting provisions in 50 CFR 660.404(a) were initially published at 49 FR 32414-01 (August 14, 1984), with comments accepted until September 21, 1984, and published as a final rule at 49 FR 43679-02 (October 31, 1984). Thereporting provisions in 50 CFR 660.408(o) and 50 CFR 660.404 were initially published at 54 FR 11976-01 (March 23, 1989), with comments accepted until April 5, 1989, prior to publication of the final rule at 54 FR 19185-01 (May 4, 1989). NOAA published notice of and requested public comments on its requests for OMB's approval of the information collection and prior to each extension of OMB's approval (e.g.,66 FR 17147, March 29, 2001; 66 FR 28731, May 24, 2001; 69 FR 35331, June 24, 2004; 72 FR 33204, June 15, 2007; 76 FR 329, January 4, 2011). NOAA received no comments on the 2011 request for extension. An additional opportunity for public comment at this point would not be meaningful, and would be duplicative.

Because prior notice and opportunity for public comment are not required for this rule by 5 U.S.C. 553, or any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601et seq.,are inapplicable.

This final rule has been determined to be not significant for purposes of Executive Order 12866.

For the reasons set out in the preamble, 15 CFR part 902 and 50 CFR part 660 are amended as follows:

Background

Section 102.20 of Title 19 of the CBP regulations (19 CFR 102.20) prescribes the tariff shift rules that are used to determine whether a good is considered a good of a NAFTA country (United States, Canada or Mexico). These tariff shift rules also determine whether an imported good is a new or different article of commerce under the UnitedStates-Morocco Free Trade Agreement and the United States-Bahrain Free Trade Agreement. Section 102.21 provides the rules of origin relating to trade in textile and apparel products, other than those that are products of Israel.

Pursuant to section 1205 of the Omnibus Trade and Competitiveness Act of 1988 (codified at 19 U.S.C. 3005), the International Trade Commission (ITC) is required to keep the Harmonized Tariff Schedule of the United States (HTSUS) under continuous review and prepare investigations proposing modifications to the HTSUS to the President. In February 2010, the ITC issued Investigation No. 1205-7, Proposed Modifications to the Harmonized Tariff Schedule of the United States, Publication No. 8771. The modifications proposed in the report were effective on February 3, 2012, pursuant to Presidential Proclamation 8771 which was published in theFederal Registeron January 4, 2012 (77 FR 413).

As a result of the 2012 modifications to the HTSUS, certain tariff provisions have been added or removed, and certain goods have been transferred, for tariff classification purposes, to different or newly-created tariff provisions. The changes to the HTSUS involve product coverage and/or numbering of certain headings and subheadings and are not intended to have any other substantive effect. Accordingly, this document makes technical corrections to §§ 102.20 and 102.21 in order for the regulations to conform the tariff shift rules to the current version of the HTSUS. In addition, this document also corrects typographical errors in certain subheadings of Chapter 90 that occurred when the regulations were updated for the 2007 HTSUS.

The examples set forth below illustrate the need for the technical corrections to §§ 102.20 and 102.21 described above.

Pursuant to 5 U.S.C. 553(b)(B) and (d)(3), CBP has determined that it would be impracticable and contrary to the public interest to delay publication of this rule in final form pending an opportunity for public comment and that there is good cause for this final rule to become effective immediately upon publication. The technical corrections contained in this document merely conform the tariff shift rules in the regulations to the current HTSUS and will facilitate trade by ensuring that country of origin determinations made using the regulations are consistent with the HTSUS.

Because this document is not subject to the notice and public procedure requirements of 5 U.S.C. 553, it is not subject to the provisions of the Regulatory Flexibility Act (5 U.S.C. 601et seq.).

These amendments do not meet the criteria for a “significant regulatory action” as specified in Executive Order 12866.

While the subject matter of this document pertains to the authority of the Secretary of the Treasury to approve regulations relating to certain revenue functions (see 19 CFR Part 0), CBP retains authority pursuant to Treasury Directive 28-01 to sign a document making nonsubstantive technical corrections to a previously issued regulation. For this reason, the CBP Commissioner is the proper official to sign this document.

For the reasons set forth above, part 102 of title 19 of the Code of Federal Regulations (19 CFR part 102) is amended as set forth below:

The Indian Gaming Regulatory Act (IGRA or Act), Public Law 100-497, 25 U.S.C. 2701et seq.,was signed into law on October 17, 1988. The Act established the Commission and set out a comprehensive framework for the regulation of gaming on Indian lands.

The Act gives the Chair the “authority to levy and collect appropriate civil fines, not to exceed $ 25,000 per violation, against the tribal operator of an Indian game or a management contractor engaged in gaming for any violation of any provision of [the Act], any regulation prescribed by the Commission pursuant to [the Act], or tribal regulations, ordinances, or resolutions approved under [the Act].” 25 U.S.C. 2713(a). In addition, IGRA requires that the Commission, by regulation, provide an opportunity for an appeal and a hearing before the Commission on fines levied by the Chair. 25 U.S.C. 2713(a)(2). Tribes and management contractors also have a right to a hearing before the Commission to determine whether a temporary closure order issued by the Chair should be made permanent or dissolved. 25 U.S.C. 2713(b).

Rules for appeal proceedings before the Commission were previously found in three separate parts of this chapter: part 524 governing appeals of ordinance disapprovals; part 539 governing appeals of management contract approvals or disapprovals; and part 577 governing appeals of enforcement actions and actions to void an approved management contract. The purposes of this new subchapter are to consolidate all appellate procedures in one place for clarity and efficiency, and to improve the overall appellate process.

On November 18, 2010, the National Indian Gaming Commission (NIGC or Commission) issued a Notice of Inquiry and Notice of Consultation advising the public that the NIGC was conducting a comprehensive review of its regulations and requesting public comment on which of its regulations were most in need of revision, in what order the Commission should review its regulations, and the process that the NIGC should utilize to make revisions. 75 FR 70680, Nov. 18, 2012. On April 4, 2011, after holding eight consultations and reviewing all comments, the NIGC published a Notice of Regulatory Review Schedule setting out a consultation schedule and process for review. 76 FR 18457, April 4, 2011. Part 519 (Service), part 524 (Appeals), part 539 (Appeals), and part 577 (Appeals before the Commission) were included in this regulatory review. The Commission will address changes to part 519 (Service) in a separate rulemaking action because part 519 sets forth rules for service of actions and decisions by the Chair and therefore does not implicate the appellate review process.

The Commission conducted additional consultations in conjunction with its review of these parts. Tribal consultations were held in every region of the country and were attended bytribal leaders or their representatives. In addition to the tribal consultations, on July 22, 2011, the Commission requested public comment on a Preliminary Draft of new Subchapter H. On January 31, 2012, the Commission published a Notice of Proposed Rulemaking, which proposed to create new Subchapter H (on February 16, 2012, the Commission published a Correction Notice to the NPRM which made several corrections to the preamble and regulatory text).

In response to its Notice of Proposed Rulemaking, published on January 31, 2012, 77 FR 4720 (Correction Notice published on February 16, 2012, 77 FR 9179), the Commission received the following comments:

Comment:Some commenters stated that they generally supported the creation of one subchapter on appeal proceedings, stating that these rules are much more accessible to the parties, provide certainty about the process, and appear to streamline and simplify the process. One of the commenters further stated that while these proposed rules will likely need refinement as they are implemented, they are a vast improvement to the current appeal proceeding rules. Two of the commenters stated that in the past, tribes have been held in limbo waiting for long periods of time for a decision on appeal, but that these rules address that concern by identifying clear timeframes for a decision.

Response:The Commission agrees that consolidating all appellate procedures into one subchapter provides greater clarity and efficiency, and that addressing certain issues that were not addressed in the prior regulations improves the overall appellate process.

Comment:A few commenters were concerned by what they deem to be the Commission's formal, overly rigid, and inflexible approach to hearing and deciding matters on appeal, which may burden the special government-to-government relationship between the Commission and tribes. One commenter was also concerned that the rules emphasize an adversarial appeals process. All three commenters suggested that the rules be re-drafted with a view towards a more informal and collaborative approach that gives due regard and respect for the sovereign authority of tribes, and encourages parties to reach an amicable resolution of a regulatory matter on appeal.

Response:The Commission understands the commenters' concerns that a rigid appeals process could impede a cooperative, government-to-government dialogue. However, the Commission had to consider how best to balance the desire for open, informal dialogue with the need to ensure that each tribe is afforded a fair, efficient, and transparent appellate process. Therefore, the Commission has elected not to adopt the suggested changes. The Commission believes, however, that the amendments improve a fair and efficient appellate process, accessible to all who choose to utilize it. Moreover, the Commission notes that nothing prevents the Commission and a party from reaching a mutually beneficial and amicable settlement of an administrative appeal.

Comment:Some commenters generally stated that the time periods for the filing of various motions and briefs in this subchapter are unreasonably short and should be re-examined for reasonableness, with the Commission taking into consideration the time-consuming, internal decision processes that tribal governments and tribal agencies must follow, as well as the resource constraints in obtaining timely legal services. All three commenters suggested that the filing deadlines be increased, with two commenters providing specific suggestions: (i) Filing deadlines for major decisions, such as whether to file a notice of appeal or motion for reconsideration, should be increased from 30 days to 60 days from the date of the Chair's decision; (ii) filing deadlines for appeal briefs should be increased from 15 days to 45 days after service of the record from the Commission; (iii) all other appellant responses should be increased from 10 days to 20 days after service of the submission; (iv) filing a motion to intervene by a third party should be increased from 10 days to 20 days; and (v) filing a reply brief in opposition to a motion to intervene should be increased from 5 days to 20 days. One commenter further stated that the suggested timeframes will help reduce the expense and inconvenience of processing numerous motions for extensions of time in the future.

Response:In light of these comments, the Commission reviewed the proposed filing deadlines and compared them with those of other federal agencies. In the interest of establishing and maintaining uniformity to the extent feasible with other appeals boards of the Department of the Interior's Office of Hearings and Appeals (OHA), such as the Interior Board of Indian Appeals (IBIA), the Commission modified certain deadlines, but not others, to be consistent with many of the OHA deadlines. Specifically:

(i) The Commission determined that the time period to file a notice of appeal or motion for reconsideration should remain at 30 days. This 30-day time period is consistent with the IBIA's deadline for the filing of notices of appeal.

(ii) The Commission modified the time period to file appeal briefs from 15 days to 30 days after service of the record, except for appeals before a presiding official, which shall remain at 10 days due to the short timeframe for commencing and completing the hearing. This 30-day time period is consistent with the IBIA's deadline for the filing of an appeal brief after the docketing of the appeal.

(iii) The Commission modified the time period to file a response or opposition brief from 10 days to 20 days, except for appeals before a presiding official, which shall remain at 10 days due to the short timeframe for commencing and completing the hearing.

(iv) The Commission determined that the time period to file motions to intervene or for limited participation shall remain at 10 days. The Commission believes that third party motions to intervene or participate should be made early in the appellate process so that the party that filed the appeal and the Commission know who is interested in participating in the appeal and the reasons why they are interested. Further, opposition briefs to such motions will remain at 10 days and reply briefs at 5 days. All parties benefit when the Commission makes a decision on these motions early in the appellate process. Finally, nothing prevents a third party from filing a motion for an extension of time to file either a motion to intervene or to participate, or a brief in opposition thereof.

(v) The Commission modified the time period to file objections to the presiding official's recommended decision from 10 days to 20 days, except that if the subject of the appeal is an order of temporary closure, the time period to file objections to the presiding official's recommended decision shall be 5 days due to the statutory timeframe for issuing decisions on temporary closure orders after the conclusion of the hearing; and

(vi) The Commission determined that the time period to file most reply briefs is modified from 5 or 10 days to 15 days, except for appeals before a presiding official, which shall remain at 5 days due to the short timeframe for commencing and completing thehearing. This 15-day time period is consistent with the IBIA's deadline for the filing of reply briefs.

Comment:A few commenters stated that it is necessary for tribal governments to have knowledge of the facts underlying a decision before filing an appeal so that they can better assess the merits of the appeal in advance to make a fully informed decision of whether to appeal, and to be better equipped to prepare appeal briefs and motions. The commenters suggested that the appellants should have access to the full record prior to filing a notice of appeal in order to make a fully informed decision regarding whether or not to file a notice of appeal. To that end, one commenter recommended the addition of a generally applicable provision under which an appellant may request that the Commission disclose the record that formed the basis for an agency action before filing an appeal.

Response:The Commission disagrees. The Commission believes that it would be inefficient and a burden on agency resources to produce records for parties who have not appealed and may never appeal.

In the Notice of Proposed Rulemaking, the Commission removed theex partecommunication prohibition rule, but nevertheless invited general comments on how to addressex partecommunications.

Comment:Two commenters stated that a prohibition onex partecommunications should not serve as a barrier or impermissible restraint to the special government-to-government relationship between a tribal government and the Commission. Both commenters suggested that the prohibition onex partecommunications should only apply when the appeal proceeding involves both an appellant and an additional adverse party, other than the Chair, before a neutral arbiter. One commenter stated that it would be unreasonable for either the Chair or the tribal appellant to cease communicating with the Commission, and the other further stated that the lines of communication between tribal governments and the Commission should always remain open throughout the appeals process so that there is ample opportunity for the parties to engage in discussions, negotiations, and informal meetings.

Response:As set forth in the Notice of Proposed Rulemaking, the Commission explained that it removed theex partecommunication prohibition rule that appeared in the preliminary draft (circulated to tribes in advance of the NPRM) because several commenters expressed concern regarding the reach and application of the prohibition, as well as concerns that it could stifle otherwise lawful communications between the Commission and the tribes. Therefore, the prohibition is not part of these final rules. The Commission will consider issuing guidance onex partecommunications instead.

Comment:One commenter suggested that, should a prohibitedex partecommunication occur, the Commission should allow for the preservation of the communication on the record and service on adverse parties, as well as an opportunity for the adverse party to respond to the communication on the record.

Response:While an explicit prohibition onex partecommunications is not part of the final rules, the Commission agrees with the commenter that, should a prohibitedex partecommunication occur, the Commission will follow the practice of preserving the communication on the record and serving it on the opposing party, as well as providing an opportunity for the opposing party to respond to the communication on the record.

Comment:Two commenters suggested a clearer and more precise definition of “presiding official” that addresses, at a minimum, the requirement that the presiding official be neutral and free from the direct supervision or control of the Commission, so that appellants are afforded a fair hearing consistent with due process principles.

Response:The Commission agrees with the commenters and has modified the definition accordingly.

Comment:A few commenters stated that the Commission's standard for waiving its rules—“good cause” and “interest of justice”—are unnecessarily high and restrictive, albeit for different reasons. One commenter stated that tribal governments should not be required to show “good cause” if a waiver of the rules is necessary, but instead, the possibility of waiving the rules should always remain open as a viable option for every matter an appeal, and further stated that the Commission should remove the “interest of justice” standard. The second commenter noted that in no case may the time for filing a notice of appeal be extended and sees no principled reason for the Commission to bind itself and future Commissions to these rigid rules. The third commenter stated that the “interest of justice” standard seems inappropriate given the Commission's role as a civil regulatory agency, not a criminal enforcement agency. However, all three commenters suggested that waivers should be granted based on equitable considerations.

Response:In light of these comments, the Commission decided to define more clearly the standard to state “if the ends of justice so require and if to do so does not substantially prejudice any party.” This standard is in accordance with Supreme Court precedent regarding when an executive federal agency, regardless of whether it is a civil regulatory agency or a criminal enforcement agency, may exercise its discretion to relax or waive procedural rules that it adopted for the orderly transaction of business.

Comment:Some commenters were concerned by the Commission's proposal to designate the Chair's decision as a final agency action in the absence of a majority decision by the Commission, as it results in the Chair being both the decision-maker of a matter and the exclusive adjudicator of whether or not his or her decision in that matter was correct. All three commenters stated that such an outcome deprives the appellant of his or her right to have a matter on appeal adjudicated by a fair and neutral decision-maker. Two commenters further stated that this result is contrary to what Congress intended in IGRA, and another commenter stated that such an outcome invites due process challenges. One of the commenters was disappointed by the decision to remove language that would have affirmed the presiding official's recommended decision as final agency action in the absence of a majority decision, and stated that it is patently unfair to favor the Chair's disputed decision over a recommended decision issued by a neutral arbiter. This commenter suggested that the Commission reinstate the provision allowing a presiding official's recommended decision to become a final agency action if the Commission is unable to reach a majority decision. Another commenter suggested that the Commission carefully consider the due process implications and draft this rule appropriately.

Response:IGRA mandates that Commission agency decisions shall be made or adopted by either the Chair orthe Commission as a whole, and not by a presiding official who has not been appointed to serve on the Commission and would not otherwise be accountable for such an agency decision. Therefore, the Commission is statutorily prohibited from making the recommended change.

In addition, the Commission explained in the preamble to the NPRM that it removed the provision allowing the presiding official's recommended decision to become final agency action in the absence of a Commission majority decision because the recommended decision is, by definition, a recommendation. Further, this provision already exists in the rules governing management contracts, and for consistency, the Commission determined to have the same provision apply to all appeals.

Comment:One commenter suggested that the language in § 581.5 should be similar to the provision in § 584.8 of this subchapter with respect to supplementation of the record in proceedings before a presiding official.

Response:Regarding the suggested language change, § 584.8 of this subchapter governs hearings before a presiding official and provides that the parties may make additional submissions to the record after the hearing and before the presiding official closes the record. Presiding officials provide recommended decisions for the Commission's consideration, which the Commission either affirms or reverses, in whole or in part. It is essential that the Commission refrain from setting a closing date for the record similar to the provision in § 584.8 to ensure that the Commission considers all relevant evidence prior to issuing its final decision. The Commission thus declines to make the suggested language change.

Comment:To avoid substantial uncertainty regarding the amount of time available to a potential appellant to submit additional materials while the record is still open, one commenter suggested that this section be revised to provide clarity as to when the record is deemed closed for the Commission to begin their decision-making process.

Response:Regarding the timing of the closing of the record, the Commission states that the record is open until the Commission issues a final agency decision because it is paramount that the Commission, the final arbiter, makes its decision on as complete a record as possible.

Comment:Some commenters had concerns about the “extraordinary circumstances” standard for granting a motion for reconsideration. One commenter stated that the rule implies that motions for reconsideration will be considered rare exceptions rather than the norm. Another commenter stated that such a high and relatively unattainable standard for reconsiderations is contrary to the overall objective of the appeals process, which should be to achieve an amicable resolution of a regulatory issue, and should not be adversarial. One commenter stated that this standard unnecessarily restricts a tribe's ability to work with the Commission in reaching an agreeable solution after a final decision has been issued and another commenter stated that this standard hinders opportunities for the Commission to continue the dialogue with an appellant tribe after a final decision has been issued. All three commenters suggested that the Commission remove the “extraordinary circumstances” standard to ensure that any party can file a motion for reconsideration without limitation as to the circumstances giving rise to the motion.

Response:The Commission agrees in part, and disagrees in part. In federal courts, motions for reconsideration are “disfavored” and are granted only to correct manifest errors in law or fact or to present newly discovered evidence. Other federal executive agencies have also codified these legal standards into their regulations. For example, the U.S. Merit Systems Protection Board will grant a petition for review of an appellate decision only when a party has established that: “(1) [n]ew and material evidence is available that, despite due diligence, was not available when the record closed; or (2) [t]he decision of the judge is based on an erroneous interpretation of statute or regulation.” 5 CFR 1201.115. Therefore, the Commission disagrees that parties should be able to file motions for reconsideration without any limitation.

Nonetheless, in light of the comments received, the Commission has removed the term “extraordinary circumstances” and replaced it with defined legal standards. As noted above, these standards are based on both federal court practice and that of other federal executive agencies. A moving party must meet any one of these three standards for a motion for reconsideration to be sustained.

Further, administrative appeals are a form of litigation and are adversarial. Nothing, however, prevents the Chair and a party from reaching a mutually beneficial settlement of an administrative appeal.

Comment:One commenter stated that the 30-day timeframe for filing a motion for reconsideration may be problematic because the Commission fails to take into account the long-term and ongoing nature of some enforcement matters such as civil fine assessments, the payment of which may be made in installments over time. The commenter suggested that the proposed rule not limit the ability of the tribal government and the Commission to modify that dispute-specific relationship as new facts or arguments come to light, even after the 30-day timeframe has expired.

Response:The Commission considered this comment and concluded that the filing deadline for motions for reconsideration does not affect the imposition and ongoing payments of civil fine assessments. Once a civil fine has been appealed to the Commission, the Commission may, at any time after the appellate process has concluded and the civil fine has become final agency action, exercise its discretion to reconsider the continued payment and/or reduction of civil fine payments if a petition for such action is submitted to the Commission.

Comment:A commenter noted that there is a potential for an overlap between the time a presiding official is designated and the deadline for concluding the hearing in temporary closure order appeals. In the interest of ensuring that the presiding official can conduct a full and fair hearing, the commenter suggested that the timeframe for designating a presiding official should be much shorter for appeals involving temporary closure orders, requiring the Commission to appoint a presiding official within five to seven days after a timely notice of appeal is filed.

Response:Many of the presiding officials participating in Commission appeals are designated by the Department of the Interior's Office of Hearings and Appeals (OHA). When an appeal hearing concerns a temporary closure order, the Commission will request that OHA quickly designate a presiding official so that the appeal hearing may be commenced and concluded within the timeframes set forth in these rules.

Comment:A commenter requested clarification on whether there is any language that allows the parties or theentity that is making the appeal to recommend or object to the selection of the presiding official, and suggested that parties should be given an opportunity to make recommendations or objections on the selection of the presiding official because certain individuals have very limited gaming experience.

Response:The Commission disagrees. Pursuant to other comments, the Commission has modified the definition of “presiding official” to state clearly that a presiding official “shall not be under the direct control or supervision of the Commission, nor subject to influence by the Chair or the Commission.” Similarly, the Commission believes that presiding officials should not be subject to the approval of parties to the appeal, regardless of the extent of their gaming experience.

Comment:A commenter suggested that the Commission allow parties to supplement the record at any time prior to the issuance of the Commission's final decision.

Response:The Commission agrees. Parties may move to supplement the record under § 581.5, which provides that a party may file a motion for leave to submit additional evidence at any time prior to issuance of a final decision by the Commission.

The Commission has added two provisions to proposed § 584.8(c) that shorten filing deadlines in temporary closure order cases to comply with the statutory requirement that the Commission issue decisions in these cases within 60 days of the conclusion of a hearing. Thus, § 584.8(c) now provides that if the subject of the appeal is an order of temporary closure, the record will be kept open for a maximum of 10 days, rather than “a reasonable period of time” as provided for in all other matters. In addition, § 584.8(c) also now provides that in temporary closure order matters, the presiding official shall issue a recommended decision within 20 days after the record closes.

Comment:A few commenters stated that this rule could be construed as limiting the period during which parties to an appeal proceeding may pursue settlement or a consent decree once the “five days before the date scheduled for hearing” deadline has passed. These commenters thus suggested that this section be clarified to expressly allow parties to negotiate the terms of a potential settlement agreement at any time during the appeal proceeding.

Response:This rule is intended to set a time limit for the parties to move jointly to defer a hearing before a presiding official so that the parties may enter negotiations for a settlement. Parties may engage in settlement negotiations at all times; however, if the parties wish to defer a hearing before a presiding official to engage in settlement negotiations, they must do so at least five days before the date scheduled for hearing.

The Commission changed § 585.7 to shorten the time within which it will issue its decision in temporary closure order matters from 60 days to 30 days. The temporary closure of a tribe's casino is a very serious consequence, and the Commission believes that such matters should be resolved expeditiously. In addition, if this timeframe is not shortened, then temporary closure order cases on written submission could take longer than temporary closure order cases that go to a hearing. Therefore, if the subject of the appeal is whether to dissolve or make permanent a temporary closure order, the Commission shall issue its decision within 30 days of the conclusion of briefing by the parties.

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

The rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. The rule does not have an annual effect on the economy of $100 million or more. The rule will not cause a major increase in costs or prices for consumers, individual industries, federal, state, or local government agencies or geographic regions. Nor will the rule have a significant adverse effect on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

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

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

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

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

This proposed rule does not require information collection under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501,et seq.,and is therefore not subject to review by the Office of Management and Budget.

For the reasons stated in the preamble, and under the authority of the Indian Gaming Regulatory Act, 25 U.S.C. 2701-2712, the Commission removes 25 CFR parts 524, 539, and 577, and adds subchapter H, consisting of parts 580 through 585, to 25 CFR chapter III as follows:

In a direct final rule published in theFederal Registeron March 6, 2012, 77 FR 13195, VA amended 38 CFR 17.108 to eliminate copayments for in-home video telehealth. VA published a companion substantially identical proposed rule at 77 FR 13236 on the same date to serve as a proposal for the provisions in the direct final rule in case adverse comments were received. The direct final rule and proposed rule each provided a 30-day comment period that ended on April 5, 2012. No adverse comments were received. Two comments that supported the rulemaking were received from members of the general public.

Under the direct final rule procedures that were described in 77 FR 13195 and 77 FR 13236, the direct final rule became effective on May 7, 2012, because no significant adverse comments were received within the comment period. In a companion document in this issue of theFederal Register, VA is withdrawing the proposed rulemaking, RIN 2900-AO27, published at 77 FR 13236, as unnecessary.

The Secretary of Veterans Affairs, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. John R. Gingrich, Chief of Staff, Department of Veterans Affairs, approved this document on September 18, 2012, for publication.

I. Background

On July 13, 2012 (77 FR 41337), EPA published a notice of proposed rulemaking (NPR) for the State of Delaware. The NPR proposed approval of the Delaware SIP revision that amends Regulation No. 1124, Control of Volatile Organic Compounds, sections 2.0“Definitions,” 12.0“Surface Coating of Plastic Parts,” 19.0“Coating of Metal Furniture,” 20.0“Coating of Large Appliances,” and 22.0“Coating of Miscellaneous Metal Parts,” to incorporate the requirements of EPA's CTGs. CTGs are documents issued by EPA that provide guidance to states concerning what types of controls could constitute RACT for VOC from various sources, including the coating of plastic parts, metal furniture, large appliances, and miscellaneous metal parts. EPA requires all ozone nonattainment areas to update regulations for emission sources covered in an EPA CTG and to submit the regulations to EPA for approval as SIP revisions. These amendments will reduce the VOC content of currently regulated coatings, regulate additional coating categories, require the use of coating application equipment that provides for high transfer efficiency, and require that clean-up solvent emissions be included in regulatory applicability determinations. EPA received no comments on the NPR to approve Delaware's SIP revision. The formal SIP revision was submitted by the State of Delaware on April 1, 2010 and March 9, 2012.

The SIP revision consists of the following revisions to Delaware's Regulation No. 1124: (1) Amendments to section 2.0—Definitions, which adds definitions; (2) amendments to section12.0—Surface Coating of Plastic Parts, which establishes applicability for every owner or operator of any plastic parts or products coating units, adds, revises, and deletes definitions, specifies standards and exemptions, and specifies control devices, test methods, compliance certification, recordkeeping, and reporting requirements; (3) amendments to section 19.0—Coating of Metal Furniture, which establishes applicability to every owner or operator of any metal furniture coating unit, revises a definition, specifies standards and exemptions, and specifies control devices, test methods, compliance certification, recordkeeping, and reporting requirements; (4) amendments to section 20.0—Coating of Large Appliances, which establishesapplicability to every owner or operator of any large appliance coating unit, revises a definition, specifies standards and exemptions, and specifies control devices, test methods, compliance certification, recordkeeping, and reporting requirements; and (5) amendments to section 22.0—Coating of Miscellaneous Metal Parts, which establishes applicability to every owner or operator of any miscellaneous metal parts and products coating unit, adds, revises, and deletes definitions, specifies standards and exemptions, and specifies control devices, test methods, compliance certification, recordkeeping, and reporting requirements. Other specific requirements and the rationale for EPA's proposed action are explained in the NPR and will not be restated here.

EPA is approving as a revision to the Delaware SIP the revisions to 7 DE Administrative Code 1124, sections 2.0, 12.0, 19.0, 20.0, and 22.0 for the control of VOC emissions from plastic parts, metal furniture, large appliances, and miscellaneous metal parts. This SIP revision meets the requirements to implement RACT controls on emission sources.

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

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

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

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

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

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

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

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

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

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

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

The Congressional Review Act, 5 U.S.C. 801et 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 theFederal Register. A major rule cannot take effect until 60 days after it is published in theFederal 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 November 26, 2012. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action.

This action approving Delaware's control of VOCs from plastic parts, metal furniture, large appliances, and miscellaneous metal parts may not be challenged later in proceedings to enforce its requirements. (Seesection 307(b)(2).)

40 CFR part 52 is amended as follows:

Throughout this document, whenever “we,” “us,” or “our” is used, we mean EPA.

On September 1, 2011 (76 FR 54410), EPA published a notice of proposed rulemaking (NPR) for the Commonwealth of Pennsylvania. The NPR proposed approval of Pennsylvania's submittals that provide the infrastructure elements specified in CAA section 110(a)(2)(A), (B), (C), (D), (E), (F), (G), (H), (J), (K), (L), and (M), or portions thereof, necessary to implement, maintain, and enforce the 1997 8-hour ozone and PM2.5NAAQS and the 2006 PM2.5NAAQS. The submittals by the Commonwealth of Pennsylvania dated December 7, 2007 and June 6, 2008 addressed the section 110(a)(2) requirements for the 1997 8-hour ozone NAAQS. The submittals dated December 7, 2007, June 6, 2008, and April 26, 2010 addressed the section 110(a)(2) requirements for the 1997 PM2.5NAAQS. Finally, the submittals dated April 26, 2010 and May 24, 2011 addressed the section 110(a)(2) requirements for the 2006 PM2.5NAAQS.

The submittals referenced in the Background section above address the infrastructure elements specified in CAA section 110(a)(2) as applicable. These submittals provide for the implementation, maintenance, and enforcement of the 1997 8-hour ozone NAAQS, the 1997 PM2.5NAAQS, and the 2006 PM2.5NAAQS. The rationale supporting EPA's proposed actionincluding the scope of infrastructure SIPs in general is explained in the NPR and the technical support document (TSD) accompanying the NPR and will not be restated here. The TSD is available online atwww.regulations.gov,Docket ID Number EPA-R03-OAR-2010-0159. On October 3, 2011, EPA received public comments on its September 1, 2011 NPR from the Clean Air Council and the Sierra Club (referred to herein as Commenter). A summary of the comments submitted and EPA's responses are provided in Section III of this action.

Comment:The Commenter raises concerns relating to Pennsylvania's ambient air monitoring system. According to the Commenter, “The current monitoring system does not account for the Marcellus Shale industry and therefore the ambient air quality monitoring plan is inadequate to monitor, collect and analyze the NAAQS.” The Commenter provides descriptions of one study and one event to support a general concern that “impacts of oil and gas development on air quality are by no means insignificant.” The Commenter does not identify any specific Federally enforceable air quality monitoring requirement with which Pennsylvania's monitoring system fails to comply for either the 1997 ozone NAAQS or for the 1997 or 2006 PM2.5NAAQS.

Response:EPA disagrees with the Commenter concerning the statutory infrastructure requirements for monitoring. The infrastructure requirement at issue is set forth at CAA section 110(a)(2)(B)(i) and requires that, for each NAAQS at issue, Pennsylvania's SIP must “provide for establishment and operation of appropriate devices, methods, systems, and procedures necessary to (i) monitor, compile, and analyze data on ambient air quality * * *” EPA has documented in the TSD and the administrative record supporting the rulemaking that Pennsylvania has met this statutory requirement. In the course of evaluating the submittals, EPA confirmed that the Commonwealth has met the monitoring requirements for the 1997 ozone and 1997 and 2006 PM2.5NAAQS. Pennsylvania has three Federally approved air quality monitoring plans. The Pennsylvania Department of Environmental Protection (PADEP) establishes, operates and maintains a network of ambient air monitors throughout Pennsylvania, excluding Philadelphia and Allegheny Counties. Both Philadelphia Air Management Services (AMS) and the Allegheny County Health Department (ACHD) operate separate air monitoring networks and collect data pursuant to the Federally approved monitoring plans within these areas. Each annual monitoring network plan is made available for public inspection for at least 30 days prior to submission to EPA.See40 CFR 58.10(a)(1). Additionally, as required in 40 CFR 58.10, each state is required to submit an annual network design plan to the EPA Regional Administrator by July 1 of each year. The most recent monitoring plans approved by EPA were submitted by PADEP on August 4, 2011, by AMS on July 1, 2011 and by ACHD on July 1, 2011. EPA approved each of these plans and notified the appropriate entity of the approval on December 6, 2011. These approval letters may be found in the docket supporting this action. The Commenter raises no issue as to whether the regulatory requirements set forth in 40 CFR Part 58, Subpart B have been met or whether the public has had opportunities to submit comments on each annual network plan or modifications to such plans in accordance with 40 CFR 58.14. Rather, the Commenter seems to request EPA to expand the statutory requirement for the infrastructure SIP set forth in CAA section 110(a)(2)(B) to include air quality monitoring criteria for a specific industry that goes beyond the current regulatory requirements for monitoring networks for ozone and PM2.5.EPA continues to believe that the relevant ambient air quality monitoring and data systems in Pennsylvania meet the statutory requirement that a state's SIP must provide for the establishment and operation of appropriate devices, methods, systems and procedures to monitor, compile and analyze data on ambient air quality because the monitoring network meets current regulatory requirements and is consistent with applicable EPA guidance. The Commenter may submit comments and suggestions concerning the monitoring networks in another more appropriate forum by submitting comments on future annual monitoring network plan submissions prepared by PADEP, AMS or ACHD which are open to public comment prior to being submitted to EPA.

Comment:After summarizing the statutory language of CAA section 110(a)(2)(C), the Commenter raises concerns about Pennsylvania's current permitting program and states that, “The current permitting program is inadequate to assure that the NAAQS are achieved because it exempts all engines less than 100 horsepower associated with oil and gas industry.” In support of this general concern, the Commenter cites to 25 Pa. Code section 127.14 (relating to exemptions) and states, “PADEP may determine sources or classes of sources to be exempt from the plan approval and permitting requirements of 25 Pa. Code Chapter 127 (relating to construction, modification, reactivation, and operation of sources).” The Commenter asserts that, “The blanket exemption for oil and gas exploration and production facilities and operation except for gas compressor station engines equal to or greater than 100 HP or gas extraction wells at landfills is inconsistent with the CAA.” The Commenter also raises concerns relating to ozone maintenance plans that were submitted by Pennsylvania in accordance with a separate statutory requirement. The Commenter claims such plans are inadequate due to recent gas and oil activity.

Response:The comments at issue acknowledge that Pennsylvania has a program as described by CAA section 110(a)(2)(C) which is “a program to provide for the * * * regulation of the modification and construction of any stationary source within [Pennsylvania] as necessary to assure that the NAAQS are achieved.” The comments focus on the adequacy of such a program, rather than the existence of such a program. The Commenter's conclusory statements that specific exemptions in Pennsylvania's regulations governing the modification and construction of air contamination sources cause the program to be “inadequate to assure that the NAAQS are achieved” are not supported by any data. The Commenter asserts without any support that, in order to assure that the NAAQS are achieved, Pennsylvania should not exempt gas compressor stations engines less than 100 HP or gas extraction wells at landfills. However, the Commenter has not provided, and EPA is not aware of, any data indicating that, as a direct result of the exemption set forth at 25 Pa. Code section 127.14, there is an area of Pennsylvania that is not achieving any NAAQS at issue (the 1997 PM2.5NAAQS, 1997 ozone NAAQS and the 2006 PM2.5NAAQS). EPA has no data indicating that the emissions from the activities subject to the cited exemption are preventing Pennsylvania from achieving any NAAQS at issue. The Commenter has not provided sufficient information to support a conclusion that the cited exemption is “inconsistent with the CAA.” Furthermore, although the Commenter raises concerns aboutozone maintenance plans, which have been previously approved by EPA, the Commenter does not explain how such SIP approved maintenance plans relate to Pennsylvania's compliance with CAA 110(a)(2)(A) or (C) for the NAAQS at issue. Ozone maintenance plans are approved by EPA pursuant to CAA section 175A. These plans were subject to public notice and comment as part of EPA's approval process. The proper forum to raise concerns relating to such plans would have been during such public comment periods. These maintenance plans are not subject to review and comment during this agency action. EPA disagrees with any assertion that the SIP approved ozone maintenance plans referred to by the Commenter provide adequate justification for finding that Pennsylvania has failed to meet its obligations for the 1997 ozone and PM2.5and 2006 PM2.5NAAQS pursuant to CAA section 110(a)(2)(A) and (C).

Pennsylvania's plan approval requirements for new sources or modifications at existing sources are included in its SIP. On July 30, 1996, EPA approved Pennsylvania's Minor New Source Review (NSR) program into its SIP.See61 FR 39597. The Commonwealth and EPA have relied on the existing state NSR program to assure that new and modified sources do not interfere with attainment and maintenance of the NAAQS. EPA has determined that Pennsylvania's minor NSR program adopted pursuant to CAA section 110(a)(2)(C) regulates emissions of PM2.5and ozone and their precursors. For the 1997 PM2.5,1997 ozone and 2006 PM2.5NAAQS, Pennsylvania's NSR program meets the statutory requirement that a state include in its SIP “a program to provide for the * * * regulation of the modification and construction of any stationary source within [Pennsylvania] as necessary to assure that the NAAQS are achieved.”

In this action, EPA is approving Pennsylvania's infrastructure SIPs for the 1997 PM2.5and ozone NAAQS and the 2006 PM2.5NAAQS with respect to the general requirement in section 110(a)(2)(C) to include a program in the SIP that regulates the modification and construction of any stationary source as necessary to assure that the NAAQS are achieved. Even in those situations where EPA has identified that a state's minor NSR provisions may be contrary to the existing EPA regulations, EPA has repeatedly taken the position that, as part of infrastructure SIP approvals, EPA is not proposing to approve or disapprove a state's existing minor NSR program itself to the extent that it is or may be inconsistent with EPA's regulations governing this program. EPA has indicated that it intends to work with states to reconcile state minor NSR programs with EPA's regulatory provisions for the program. EPA has taken this position because the statutory requirements of CAA 110(a)(2)(C) provide for considerable flexibility in designing minor NSR programs. The SIP provision cited by the Commenter (25 Pa. Code section 127.14) is not inconsistent with EPA's NSR regulatory provisions and is not inconsistent with the statutory requirements of section CAA 110(a)(2)(C). EPA believes that, while assuring reasonable consistency across the country in protecting the NAAQS with respect to new and modified minor sources, Pennsylvania should be given an appropriate level of flexibility to design a program that meets its particular air quality concerns. EPA will continue to monitor Pennsylvania's NSR program to ensure that this program regulates the modification and construction of any stationary source as necessary to assure that the NAAQS are achieved.

Comment:The Commenter expresses concern that “PADEP requires little to no monitoring or reporting for criteria and hazardous air pollutants associated with the drilling, extracting, and processing of natural gas from the Marcellus Shale” and asserts that these alleged monitoring or reporting deficiencies are the result of PADEP's failure to aggregate sources in accordance with requirements in NSR, Prevention of Significant Deterioration (PSD), and Title V of the CAA. The Commenter refers to the September 22, 2009 Memo from Gina McCarthy, Assistant Administrator for the EPA's Office of Air and Radiation, “Withdrawal of Source Determinations for Oil and Gas Industries.” The Commenter states that, as part of the Commenter's review of thirty plan approval files in 2011, it found only three aggregation analyses by PADEP and asserts that PADEP should conduct such analyses on every plan approval application.

Response:The statutory requirement, CAA section 110(a)(2)(F), at issue as cited by the Commenter requires that each SIP for each NAAQS “require, as may be prescribed by the Administrator—(i) the installation, maintenance, and replacement of equipment, and the implementation of other necessary steps, by owners or operators of stationary sources to monitor emissions from such sources, (ii) periodic reports on the nature and amounts of emissions and emissions-related data from such sources, and (iii) correlation of such reports by the State agency with any emissions limitations or standards established pursuant to this chapter, which reports shall be available at reasonable times for public inspection.”SeeCAA section 110(a)(2)(F). EPA disagrees with the Commenter's statements under section 110(a)(2)(F) which are related to source determinations under Pennsylvania's NSR, PSD and Title V programs. The narrow issue raised by the Commenter relates to implementation of Pennsylvania's Federally approved program. The issue raised goes beyond the basic statutory requirements of CAA section 110(a)(2)(F) that, as part of its SIP, the Commonwealth include certain general requirements. Pennsylvania incorporates by reference the Federal PSD regulations and has a SIP approved NSR program. Therefore, EPA believes there is no question that the Commonwealth meets this general statutory requirement. EPA's administrative record, including the TSD for this action, provides sufficient support for the finding that Pennsylvania's SIP for each of the relevant NAAQS meets the statutory requirement set forth at CAA section 110(a)(2)(F).

Comment:The Commenter states that PADEP does not have enough personnel to properly implement its SIP. The Commenter relies upon an undated Clean Water Action report which summarizes the reduction in PADEP's overall budget during the period of 2000 through 2011. The Commenter also relies upon an April 13, 2011 local newspaper article reporting that four Pennsylvania environmental regulators indicated that they “spend as little as 35 minutes reviewing each of the thousands of applications for natural gas well permits * * *”

Response:EPA understands the concern that reductions in a state's budget may impede the state's ability to fulfill its obligations. However, a reduction in a state's budget allocated to environmental protection is by itself an insufficient basis for finding that a state has failed to meet its statutory obligations to “provide (i) necessary assurances that the State * * * will have adequate personnel, funding, and authority under State law to carry out such implementation plan * * *”SeeCAA section 110(a)(2)(E)(i). The administrative record for this action identifies several funding sources including Title V permit fees, federal funds under CAA sections 105 and 103 and funds from the Clean Air Fund and supports a finding that Pennsylvania has provided EPA with such assurances that it has adequate personnel and funding to carry out its SIP. If, in thefuture, EPA determines that the Commonwealth does not have adequate personnel or funding to carry out its SIP, or for any other reason fails to meet any requirement of its approved SIP, then EPA may exercise its authority pursuant to CAA sections 110(a)(2)(E), 179 or 110(k)(5). The action that EPA is taking today does not limit EPA's authority pursuant to those CAA sections.

Comment:The Commenter expresses concern that “PA DEP does not have an adequate plan to deal with the emergency situations associated with Marcellus Shale operations.” The Commenter relies upon an Internet news article and its experience of receiving complaints from citizens living near natural gas operations.

Response:EPA disagrees with the Commenter and believes Pennsylvania has met the requirements of CAA section 110(a)(2)(G). The Commenter raises a general concern regarding general emergency situations, including those situations unrelated to air quality. The TSD and administrative record supporting EPA's action support a finding that Pennsylvania has met its obligations to provide adequate contingency plans to implement authority comparable to that in CAA section 303, as required by CAA section 110(a)(2)(G). The TSD clearly sets forth the relevant statutory and regulatory emergency authority. Furthermore, the TSD sets forth how the Commonwealth followed EPA's September 25, 2009 guidance, entitled “Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) for the 2006 24-Hour Fine Particle (PM2.5)National Ambient Air Quality Standards (NAAQS)” which provides EPA's interpretation of “Prevention of Air Pollution Emergency Episodes” rules at 40 CFR 51.150 and criteria for which states must develop emergency episode contingency plans. The Commenter does not assert that the Commonwealth has not met its statutory and regulatory obligations. Here, the Commenter seeks an expansion of the statutory and regulatory requirements relating specifically to adequate contingency plans for any type of emergency situation. However, the purpose of EPA's action is to determine whether the Commonwealth has met the basic infrastructure requirements of CAA section 110(a)(2) and related regulatory requirements. Therefore, there is no basis for finding that Pennsylvania's SIP fails to meet such requirements. Pennsylvania's SIP contains the requisite general emergency authority to address urgent air quality situations but is not required to have specific contingency plans for all situations and specifically does not require a plan for PM2.5as per EPA guidance.

Comment:The Commenter provides a summary of the requirements of CAA section 110(a)(2)(D)(i)(I) and (II). The remaining portion of the comment focuses upon concerns that emissions from “Marcellus Shale operations” may impact Pennsylvania and states adjacent to or downwind of Pennsylvania due to concerns relating to source determinations and ambient air quality monitoring. The Commenter claims “[t]he proposed SIP fails to take into account the impact that Marcellus Shale operations are having on areas downwind from shale activity.”

Response:This comment appears to address requirements of CAA section 110(a)(2)(D)(i)(I) and (II). As explained in the NPR (76 FR 54410) and the TSD, EPA's action is limited to a determination of whether the Commonwealth has met its obligations pursuant to the portion of 110(a)(2)(D)(i)(II) relating to the part C permit program (or the PSD permit requirements). Therefore, any comment relating to additional requirements of CAA section 110(a)(2)(D)(i)(I) is not relevant to this action. With respect to the PSD requirements of CAA section 110(a)(2)(D)(i)(II), it is EPA's position that this sub-element may be met by a state's confirmation in an infrastructure SIP submission that new major sources and major modifications in the state are subject to PSD requirements consistent with the CAA. Pennsylvania has made this confirmation. Pennsylvania's SIP incorporates by reference all Federally enforceable PSD regulations for the NAAQS at issue.1 For Allegheny County, the PSD requirements have been addressed by an existing Federal Implementation Plan (FIP). The TSD and the administrative record clearly support a finding that Pennsylvania has met its statutory obligations to include adequate provisions prohibiting any source within Pennsylvania from emitting any air pollutant in amounts which will interfere with PSD measures required by any other state. The Commenter does not explain how any emissions from any source in Pennsylvania may interfere with another state's PSD SIP requirements. As explained above, Pennsylvania has met its statutory obligations relating to its PSD Program as required by CAA section 110(a)(2)(D)(i)(II). Many of the CAA 110(a)(2) SIP elements, including section 110(a)(2)(D)(i), relate to the general information and authorities that constitute the “infrastructure” of a state's air quality management program. The CAA 110(a)(2) SIP submissions that EPA is acting upon are not required to address specific industry sources. Rather, these submissions are required to demonstrate the general statutory and regulatory infrastructure a state has to implement to meet the requirements of Subchapter I (Programs and Activities) of the CAA.

Comment:The Commenter generally asserts that EPA cannot fully approve Pennsylvania's infrastructure SIPs for several reasons. First, the Commenter generally asserts that the process was not sufficiently transparent because the NPR did not include all of the relevant information, including references to all relevant rules, EPA's analysis of such rules, and links to all relevant data that may be available on the Internet.

Response:EPA disagrees with the Commenter. The Commenter is interested in transparency and interested in the Agency providing substantially more information in theFederal Register. The Commenter does not assert that the NPR in conjunction with the TSD and other materials in the docket for the proposals were inadequate to promote an appropriate public process on the Commonwealth's infrastructure SIP submittals. EPA believes that the NPR in conjunction with the information provided in the supporting administrative docket were adequate to allow the public an opportunity to review and comment on EPA's proposed action.

The Commenter raises a procedural issue that is separate and distinct from the substantive issue addressed by EPA's proposed rulemaking which is whether the SIP submissions at issue meet the criteria of the portions of CAA section 110(a)(2) addressed in the NPR. The Commenter has not provided EPA with sufficient information supporting a finding that Pennsylvania has failed to meet any of its obligations pursuant to the portions of CAA section 110(a)(2) addressed in EPA's proposed action.

As a general matter, the Commenter seems to interpret the EPA Administrator's goal of transparency as a mandate that all information for any EPA proposed administrative rulemaking must be set forth in the NPR itself, with no reliance on an administrative record. EPA appreciates the Commenter's interest in a “one-stop-shop” for all information (even tangential information) related to itsproposed action. However, the proposed interpretation of “transparent” would be unduly burdensome and contrary to the requirements of the Administrative Procedures Act (APA), 5 U.S.C. 533(b). EPA followed the APA and provided sufficient information to support its proposed administrative action and a public comment period on its proposed action. The documents contained in the docket provided numerous references to specific regulations and the Code of Federal Regulations. The docket also includes EPA's analysis of such rules relevant to this action along with relevant guidance and data. With respect to “links to all relevant data that may be available on the Internet,” EPA does not typically include detailed information when it's otherwise publicly available. With respect to analysis of data, there is no requirement that detailed technical information must be included in the NPR. EPA often includes a TSD as part of its administrative rulemaking actions. By including a TSD, in addition to the NPR, the public may more easily understand the basic action EPA is proposing to take and access more detailed information if desired. By making a TSD available on-line, by request, and as a hardcopy in the paper docket, EPA has made this important underlying technical information available to the public and has eliminated unnecessary costs associated with the overall rulemaking action. EPA's NPR and additional information contained in the docket for public review are in accordance with the APA and fulfill the Administrator's interest in transparency as well as Federal law requirements.

Comment:The Commenter states that the CAA requires that the infrastructure SIPs include an adequate PSD permitting program needed to address CAA section 110(a)(2)(C), (D)(i)(II) and (J) and expresses concern that Pennsylvania's PSD program may not be “approved” if it lacks significant emission rates found in 40 CFR 52.21(b)(23)(i) [2011] and PM2.5increments found in 40 CFR 52.21(c) [2011]. The Commenter states it is not clear whether the Pennsylvania PSD program incorporates by reference the version of the Code of Federal Regulations that existed at the time EPA approved Pennsylvania's PSD program into the SIP or automatically incorporates the current version of the Code of Federal Regulations. The Commenter requests that EPA either clarify that 25 Pa. Code Section 127.83 incorporates the most recent version of 40 CFR 52.21 automatically or, alternatively, the Commenter indicates that EPA cannot approve the Pennsylvania SIP for the 2006 PM2.5NAAQS until the SIP is updated to incorporate the PM2.5increments which were effective December 20, 2010.

Response:EPA believes Pennsylvania has a PSD permitting program sufficient to meet the requirements in CAA section 110(a)(2)(C), (D)(i)(II) and (J). Pennsylvania has met the requirements for the PM2.5NAAQS embodied in the PM2.5NSR Implementation Rule (see73 FR 28321 (May 16, 2008)), as well as the increment requirements of EPA's October 20, 2010 rulemaking (75 FR 64864) by virtue of its incorporation by reference of 40 CFR 52.21 in its entirety. EPA's approval of 25 Pa. Code Section 127.83 on August 21, 1984 (49 FR 33127) explains that Pennsylvania's incorporation by reference of 40 CFR 52.21 does not identify a specific edition of 40 CFR 52.21 and that all future changes thereto would automatically be incorporated by reference. Therefore, Pennsylvania's SIP approved PSD program clearly includes the Federal regulations identified by the Commenter.

Comment:The Commenter states that EPA cannot approve Pennsylvania's SIP with regard to CAA section 110(a)(2)(G). The Commenter states that the NPR and TSD give no indication that Pennsylvania has adopted emergency episode plans. The Commenter references the portion of EPA's September 25, 2009 guidance entitled “Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) for the 2006 24-Hour Fine Particle (PM2.5) National Ambient Air Quality Standard (NAAQS)” which states that states have to establish their own priority action levels and emergency action levels for PM2.5“through their public processes.”

Response:EPA disagrees with the Commenter's view that Pennsylvania's infrastructure SIP submission is not consistent with CAA section 110(a)(2)(G) with respect to the 1997 and 2006 PM2.5NAAQS. As the Commenter noted, EPA has not amended the regulations of 40 CFR 51.151 to include a significant harm level or priority cut point for PM2.5. In the absence of such regulations, EPA issued guidance to states to recommend how they could comply with CAA section 110(a)(2)(G). Also, although the regulations have not changed, a state still needs to meet the statutory requirement, and EPA provided an approach states could use to meet the requirements. The Commenter refers to the September 25, 2009 “Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) for the 2006 24-Hour Fine Particle (PM2.5) National Ambient Air Quality Standard (NAAQS).” This document is part of the docket supporting the proposed action and is the document that indicates the approach a state could take to meet the requirement. This document may be found in hard copy in the paper docket file and in the electronic docket at Document ID Number EPA-RO3-0AR-2010-0159-0008. The Commenter refers to a portion of this guidance, but fails to include other relevant portions of this guidance. The relevant portion of this guidance recommends:

In accordance with this guidance, Pennsylvania submitted a SIP revision addressing the contingency plan portion of CAA section 110(a)(2)(G) for both the 1997 and 2006 PM2.5NAAQS on April 26, 2010. This submittal states in relevant part, “For both the 2006 and 1997 PM2.5NAAQS, no specific emergency episode plans are necessary given that existing monitored levels have not exceeded the level of 140.4 micrograms per cubic meter (ug/m3) identified by EPA in its September 25, 2009 “Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) for the 2006 24-hour Fine Particle (PM2.5) National Ambient Air Quality Standards (NAAQS),pp. 6-7.” This submittal was subject to the appropriate public processes. The transmittal letter states that the “public participation process for this SIP revision included a 30 day written comment period and an opportunity for public hearing * * * The DEP did not receive any comments during the public comment period.” This letter from Pennsylvania is contained in the docket with Document ID Number EPA-RO3-0AR-2010-0159-0003. A copy of the April 26, 2010 SIP submittal and the notices of opportunity for public comments are included as attachments to the electronic copy of the document identified above (EPA-R03-OAR-2010-0159-0003). Pennsylvania's submittals identified in the electronic docket with Docket ID Number EPA-R03-OAR-2010-0159 meet the requirements in the EPA's guidance document that the Commenter references. Based upon such submittals, Pennsylvania has submitted sufficient information to support a finding that the monitored data throughout the Commonwealth of Pennsylvania from 2006 through April 2010 have not exceeded 140.4 ug/m3. Accordingly, EPA has concluded that Pennsylvania's infrastructure SIPs are consistent with the requirements of CAA section 110(a)(2)(G).

Comment:The Commenter seeks EPA's review of Pennsylvania's ambient air quality monitoring data for the limited purpose of determining whether Pennsylvania is accurately asserting that it has not monitored any PM2.5readings above 140.4 ug/m3.

Response:EPA agrees that the Agency as a matter of general practice should review state monitoring data in conjunction with its review of a state's assertions relating to such data. A state is required to certify all air monitoring data on a yearly basis (see40 CFR 58.15) and EPA reviews this data each year. EPA has reviewed Pennsylvania's certified ambient air quality monitoring data and as part of that independent review has determined that Pennsylvania's assertion is correct. Pennsylvania's highest PM2.5reading since 2006 was at Liberty, PA. The sampled value occurred in 2006 and was 100.7 ug/m3. The relevant monitoring data is also accessible to the public at various web sites includinghttp://www.epa.gov/airdata.Based upon its review of Pennsylvania's ambient air quality monitoring data since 2006, EPA has determined that Pennsylvania has correctly indicated that it has not monitored any 24 hour PM2.5readings above 140.4 ug/m3.

Comment:The Commenter raises two issues related to the definitions provided in 25 Pa. Code Section 121.1. The Commenter states that with regard to ozone, the definitions of marginal, serious, and severe ozone nonattainment areas in the SIP approved version of 25 Pa. Code Section 121.1 are based on 1-hour ozone NAAQS rather than the 1997 8-hour ozone NAAQS and that these definitions need to be updated. Also, the Commenter states that there is no definition of PM2.5in 25 Pa. Code Section 121.1 and that Pennsylvania needs one.

Response:EPA agrees that as a general matter the absence or inadequacy of definitions could be relevant to review of a SIP submittal pursuant to CAA section 110(a)(2), however, EPA disagrees that the specific issues raised by the Commenter support a finding that the SIPs at issue fail to meet the applicable 110(a)(2) requirements. EPA has considered the concerns raised by the Commenter and finds that the Commenter has not identified a defect in the SIP approved version of 25 Pa. Code Section 121.1 that, in and of itself, is sufficient to support a finding that Pennsylvania has not met its obligations pursuant to the portions of section 110(a)(2) addressed herein. The SIP submissions at issue which EPA is approving do not directly address and do not modify the definitions set forth in 25 Pa. Code Section 121.1. Therefore, these specific definitions are not directly a part of this rulemaking. Furthermore, the statutory provisions at issue do not expressly set criteria for the state regulatory definition provisions. The Commenter has not explained how the issues raised relating to specific definitions relate to Pennsylvania's compliance with its obligations pursuant to the portions of CAA section 110(a)(2) at issue in this rulemaking. EPA disagrees with the Commenter concerning the ozone classification definitions because these terms are not directly relevant to the issues germane to the infrastructure SIP action. The definitions relating to ozone nonattainment areas may be relevant to Pennsylvania's compliance with CAA section 110(a)(2)(I). However, as indicated in EPA's NPR, the SIP submittals at issue do not pertain to CAA section 110(a)(2)(I) and EPA's action does not pertain to the applicable requirements of CAA Chapter I, part D (relating to nonattainment areas). These requirements, and issues pertaining only to nonattainment areas for a specific NAAQS, are not required to be addressed on the same schedule as issues pertaining to other general requirements of CAA section 110(a)(1) and 110(a)(2). Therefore, this comment is not relevant to EPA's action and EPA does not have any obligation to respond to such comments. EPA disagrees with the Commenter concerning the PM2.5definition issue because the Pennsylvania SIP currently includes a definition of the PM2.5NAAQS. Section 121.1 defines the term NAAQS as National Ambient Air Quality Standards. In accordance with 25 Pa. Code section 131.2, as EPA promulgates new or revised NAAQS, Pennsylvania incorporates the NAAQS by reference. Therefore, the Pennsylvania SIP provides a definition of the PM2.5NAAQS that is consistent with the CAA. As a related matter, Pennsylvania recently revised its nonattainment NSR rules. Section 121.1 contains a specific entry for PM2.5which states “PM 2.5—Particulate matter with an aerodynamic diameter of less than or equal to a nominal 2.5 micrometer body as measured by the applicable reference method or an equivalent method.” These revised rules were subject to public comment and became effective on September 3, 2011. Pennsylvania submitted these NSR revisions including, but not limited to, 25 Pa. Code Section 121.1 to EPA for inclusion into the SIP on September 23, 2011, and EPA approved this revision on July 13, 2012. (See77 FR 41276).

EPA is approving the Commonwealth of Pennsylvania's submittals that provide the infrastructure elements specified in CAA section 110(a)(2)(A), (B), (C), (D), (E), (F), (G), (H), (J), (K), (L), and (M), or portions thereof, necessary to implement, maintain, and enforce the 1997 8-hour ozone and PM2.5NAAQS and the 2006 PM2.5NAAQS. EPA made completeness findings for the 1997 8-hour ozone NAAQS on March 27, 2008 (73 FR 16205) and on October 22, 2008 (73 FR 62902) for the 1997 PM2.5NAAQS. These findings pertained only to whether the submissions were complete, pursuant to CAA section 110(k)(1)(A), and did not constitute EPA approval or disapproval of such submissions. For the geographic area of Allegheny County, the completeness finding of March 27, 2008 (73 FR 16205) noted Pennsylvania's failure to submit a SIP revision addressing the portion of 110(a)(2)(C) relating to the Part C permit programs for the 1997 ozone NAAQS. EPA recognized that such requirement has already been addressed by a FIP that remains in place, and concluded that the finding of incompleteness would not trigger any additional FIP obligation for Pennsylvania. For all other areas of Pennsylvania, except for Allegheny County, EPA found that the Commonwealth had a SIP approved PSD program in place and found that the CAA section 110(a)(2) submittals at issue were complete.

Two elements identified in CAA section 110(a)(2) are not governed by the three year submission deadline of CAA section 110(a)(1) because SIPs incorporating necessary local nonattainment area controls are not due within three years after promulgation of a new or revised NAAQS, but rather are due at the time the nonattainment area plan requirements are due pursuant to CAA section 172. These elements are: (i) Submissions required by section110(a)(2)(C) to the extent that the subsection pertains to a permit program in Part D Title I of the CAA; and (ii) any submissions required by section 110(a)(2)(I) which pertains to the nonattainment planning requirements of Part D Title I of the CAA. This action does not cover these specific elements. This action also does not address the requirements of 110(a)(2)(D)(i)(I) for the 1997 8-hour ozone and PM2.5NAAQS, and the 2006 PM2.5NAAQS.

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

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

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

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

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

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

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

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

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

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

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

The Congressional Review Act, 5 U.S.C. 801et 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 theFederal Register. A major rule cannot take effect until 60 days after it is published in theFederal 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 November 26, 2012. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action.

This action pertaining to Pennsylvania's section 110(a)(2) infrastructure requirements for the 1997 8-hour ozone and PM2.5NAAQS and the 2006 PM2.5NAAQS may not be challenged later in proceedings to enforce its requirements. (Seesection 307(b)(2).)

40 CFR part 52 is amended as follows:

Throughout this document, wherever “we”, “us” or “our” are used, we mean EPA. We are providing the following table of contents for ease of locating information in this proposal.

On June 27, 2012, EPA proposed to approve the proposed state implementation plan (SIP) revision submitted by the Arizona Department of Environmental Quality (ADEQ) on May 29, 2012 to address the Clean Air Act (CAA or “Act”) requirements for areas classified as “moderate” nonattainment for the PM10national ambient air quality standard (NAAQS), in this case, Nogales, Arizona. ADEQ submitted a plan for the Nogales nonattainment area (NA) entitledProposed State Implementation Plan Nogales PM 10 Nonattainment Area,referred to as the “Nogales 2012 Plan” here and in our proposal. See 77 FR 38400; (June 27, 2012). Specifically, under CAA section 110(k)(3), EPA proposed to approve the following elements of the Nogales 2012 Plan:

(1) The 2008 base year and 2011 emissions inventories as meeting the requirements of CAA section 172(c)(3);

(2) The demonstration of attainment but for international emissions as meeting the requirements of CAA section 179B(a)(1);

(3) The implementation of paving projects and capital improvement projects at the Ports of Entry within the Nogales NA prior to the CAA's 1994 attainment deadline as meeting the reasonably available control measure/reasonably available control technology (RACM/RACT) requirements of CAA sections 172(c)(1), 179B(a)(2), and 189(c)(1)(C);

(4) The implementation of paving projects and capital improvement projects at the Ports of Entry to meet the reasonable further progress (RFP) demonstration requirement of CAA sections 172(c)(2) and 179B(a)(2);

(5) The implementation of post-1994 paving projects as meeting the contingency measure requirements of CAA sections 172(c)(9) and 179B(a)(2); and,

(6) The 2011 attainment year motor vehicle emissions budget if revised to include road construction PM10, because, as revised, it is derived from the section 179B demonstration and meets the requirements of CAA section 176(c) and 40 CFR 93, subpart A.

To summarize our proposal, first, we described the 24-hour PM10NAAQS and its application to the Nogales NA andhow this resulted in the designation and classification of the Nogales NA as a moderate PM10nonattainment area under the CAA. Then, we described, in general terms, the CAA planning requirements for moderate PM10nonattainment areas, such as the Nogales NA, and touched briefly upon the 1993 Nogales PM10Plan, which identified emissions sources from Nogales, Mexico as the principal sources of PM10affecting ambient concentrations in Nogales, Arizona. See 77 FR 38401; (June 27, 2012).

Second, we presented Arizona's Nogales 2012 Plan, submitted by ADEQ on May 29, 2012, and described the ADEQ's concurrent request that EPA “parallel process” its review and proposed action on this plan. Then, we provided a brief description of the location and geography of the Nogales NA. The Nogales NA is located within Santa Cruz County in southern Arizona, approximately 60 miles south of Tucson, and covers 76.1 square miles. The southernmost boundary of the Nogales NA and Santa Cruz County is the United States (U.S.)/Mexico border. Adjacent to the U.S./Mexico border, the city of Nogales, Arizona is the largest city and population center in the Nogales NA. Directly across the U.S./Mexico border from Nogales, Arizona is the much larger city of Nogales, Mexico.1 See 77 FR 38401-38402; (June 27, 2012).

Third, we discussed in detail the CAA and statutory requirements for moderate PM10nonattainment areas as applied to the Nogales NA, given the area's air quality is influenced by international sources of PM10emissions from Nogales, Mexico.2 Specifically, in lieu of a demonstration that the area would actually attain the PM10NAAQS, section 179B of the CAA allows Arizona to submit a demonstration that the Nogales NA would have attained the PM10NAAQS but for international transport of PM10from Mexico. Under CAA section 179B, however, other SIP requirements, such as RACM and contingency measures, among other requirements, continue to apply to PM10nonattainment areas even if the area qualifies for relief from the attainment demonstration requirement. See 77 FR 38402-38404; (June 27, 2012).

The primary criterion we applied for determining attainment of the PM10NAAQS but for international emissions was 40 CFR part 50, appendix K. Under 40 CFR part 50, appendix K, a nonattainment area meets the 24-hour PM10NAAQS when the expected number of days per calendar year with a 24-hour average concentration above 150 micrograms per cubic meter (µg/m3) is equal to or less than one. To demonstrate that the Nogales NA has met the PM10standard “but for” emissions from Mexico, Arizona's analysis had to show that no more than three exceedances over its specific three-year analysis period, 2007-2009, based on data completeness and every day sampling, would have occurred on the U.S. side of the border, setting aside contributions from Mexican sources of PM10. See 77 FR 38404; (June 27, 2012).

In the fourth section of our proposal, we reviewed the Nogales 2012 Plan and its constituent parts against the applicable CAA statutory and regulatory requirements.

Emissions Inventories.The 2008 base year and 2011 emissions inventories were reviewed for compliance with the requirements of CAA section 172(c)(3). For the reasons set forth in the proposed rule, we concluded that the inventories are comprehensive, accurate, and current inventories of actual emissions from all sources in the nonattainment area and therefore meet the requirements of section 172(c)(3). See 77 FR 38404-38405; (June 27, 2012).

Section 179B or “But For” Demonstration.Arizona's demonstration of attainment but for international emissions for the Nogales NA was reviewed for compliance with section 179B(a)(1). To summarize briefly Arizona's demonstration, Arizona reviewed local population growth data, Nogales, Mexico and Nogales NA emissions inventories, the ambient PM10data, and local meteorological data, and through its analyses, Arizona found that the Ambos Nogales area's meteorology and topography influence the observed exceedances of PM10NAAQS and there is a definite south-to-north directional component to the ambient air quality data underlying the exceedances of the PM10NAAQS. Finally, daily and hourly analyses of the most recent three years of quality assured and State certified ambient PM10data from 2007-2009 and associated meteorological data showed that no more than two, and likely none, of the 29 exceedances would have occurred in the Nogales NA, but for PM10emissions from Mexico. Based on these two exceedances, data completeness, and every day sampling for the 2007-2009 timeframe, the calculated maximum expected annual exceedance rate is 0.7 exceedances per year. The standard used to demonstrate attainment of the PM10NAAQS, “but for” international emissions, is that the expected number of days per calendar year with a 24-hour average concentration above 150 µg/m3must be equal to or less than one. Therefore, we proposed to determine that Arizona has met this standard and to approve its section 179B analysis and demonstration of attainment but for international emissions for the Nogales NA. See 77 FR 38405-38416; (June 27, 2012).

RACM/RACT.The implementation of paving projects and capital improvement projects at the Ports of Entry within the Nogales NA prior to the CAA's 1994 attainment deadline were reviewed under the RACM/RACT requirements of CAA sections 172(c)(1), 179B(a)(2), and 189(c)(1)(C). Based on that review, we concluded that the implementation of paving projects and capital improvement projects at the Ports of Entry within the Nogales NA prior to the 1994 attainment deadline met the RACM/RACT requirements of CAA sections 172(c)(1), 179B(a)(2), and 189(c)(1)(C). See 77 FR 38416-38417; (June 27, 2012).

Reasonable Further Progress.The implementation of paving projects and capital improvement projects at the Ports of Entry were reviewed under the RFP demonstration requirement of CAA sections 172(c)(2) and 179B(a)(2). Based on that review, we concluded that the implementation of paving projects and capital improvement projects at the Ports of Entry met the RFP demonstration requirement of CAA sections 172(c)(2) and 179B(a)(2). See 77 FR 38417-38418; (June 27, 2012).

Contingency Measures.The implementation of post-1994 paving projects were reviewed under the contingency measure requirements of CAA sections 172(c)(9) and 179B(a)(2). Based on that review, we concluded that the implementation of post-1994 paving projects met the contingency measure requirements of CAA sections 172(c)(9) and 179B(a)(2). See 77 FR 38417-38418; (June 27, 2012).

Motor Vehicle Emissions Budget.Finally, the 2011 attainment year motor vehicle emissions budget (MVEB) was reviewed against the requirements of CAA section 176(c) and of 40 CFR 93, subpart A. Based on that review, we concluded that the MVEB, if it included road construction dust when submitted in its final form, would meet the requirements of CAA section 176(c) andof 40 CFR 93, subpart A. See 77 FR 38418-38419; (June 27, 2012).

Within our proposal, we anticipated the necessity for ADEQ to revise the MVEB to include road construction dust emissions; therefore, we required a second public comment period before Arizona could provide its final submittal containing the revised MVEB. The State's final submittal and the revised MVEB are discussed further in the next section.

We proposed approval of the Nogales 2012 Plan based on the public draft version of the plan submitted to us by ADEQ as an enclosure to a letter requesting EPA to “parallel process” the plan prior to its submittal in final and adopted form as a revision to the Arizona SIP. We indicated in our proposal that, while we could propose action, we would not take final action on the Nogales 2012 Plan until the plan had been fully adopted by ADEQ and submitted formally to EPA for approval as part of the Arizona SIP.3 As discussed in more detail below, on August 24, 2012, ADEQ adopted and submitted theFinal 2012 State Implementation Plan Nogales PM 10 Nonattainment Area,dated August 24, 2012, herein referred to as “Final Nogales 2012 Plan”. This plan is the subject of today's final action.

In our review of the Nogales 2012 Plan, dated May 29, 2012, and in our proposal, we noted the need for Arizona to include road construction dust within the plan's MVEB and notified ADEQ prior to the close of its initial 30-day public comment period on the Nogales 2012 Plan.4 In addition, ADEQ identified the need to revise the MVEB to include vehicle brake and tire wear emissions along with the previously included vehicle exhaust and entrained road dust emissions. Thus, in response to our comments and its own review of the MVEB, ADEQ revised the MVEB in the Nogales 2012 Plan to include road construction dust and vehicle brake and tire wear emissions, and on July 24, 2012 provided for a 30-day public review of this revised MVEB. On August 24, 2012, ADEQ then adopted and submitted the Final Nogales 2012 Plan on which we are taking final action today. The Final Nogales 2012 Plan includes the revised MVEB.

Under EPA's “parallel processing” procedure, EPA proposes rulemaking action on a proposed SIP revision concurrently with the State's public review process. If the State's proposed SIP revision is changed, EPA will evaluate that subsequent change and may publish another notice of proposed rulemaking. If no significant change is made, EPA will propose a final rulemaking on the SIP revision after responding to any submitted comments. Final rulemaking action by EPA will occur only after the final SIP revision has been fully adopted by ADEQ and submitted formally to EPA for approval as part of the Arizona SIP. See 40 CFR part 51, appendix V.

Because we anticipated the need to include road construction dust within the MVEB, noted this need in our proposal, and provided a 30-day public comment period concerning this revision to include road construction dust, we are not re-proposing approval of the revised MVEB included in the Final Nogales 2012 Plan. Prior to its August 24, 2012 submittal of the Final Nogales 2012 Plan, the State provided a 30-day public review and comment period of the revised MVEB including road construction dust and brake and tire wear emissions. In sum, these revisions to the Nogales PM10MVEB have been presented to the public for as many as 60 days and neither we nor ADEQ have received public comment. As submitted by Arizona in the Final Nogales 2012 Plan, the MVEB revisions are discussed below.

We proposed to approve the MVEB for the Nogales NA contingent upon ADEQ's inclusion of road construction PM10in the MVEB. As we noted in the proposed rule, road construction PM10should be included in the MVEB because, as the second largest source of PM10emissions generated within the Nogales NA, road construction PM10is a significant contributor to the overall Nogales NA PM10inventory.5 See 40 CFR 93.122(e). While road construction dust was included within the 2008 and 2011 emissions inventories provided by ADEQ, these emissions were not included in the MVEB for the Nogales 2012 Plan as submitted by ADEQ on May 29, 2012.

As noted above, ADEQ revised the MVEB in the Final Nogales 2012 Plan to include road construction dust (see Table 1 below) and to include brake and tire wear emissions (see discussion in next section of this document).

Because Arizona included road construction dust as we recommended in our proposed approval of the Nogales 2012 Plan, we are taking final action to approve the Nogales NA PM10MVEB at 1,274.3 tons. For our broader discussion of the Nogales 2012 Plan and how the MVEB meets statutory requirements, please see the proposed rule at 77 FR 38418—38419.

In reviewing the mobile source emissions estimates within the 2008 and 2011 emissions inventories for the MVEB in the Final Nogales 2012 Plan, ADEQ discovered that vehicle brake and tire wear emissions were not included in the 2008 and 2011 emissions inventories or the corresponding MVEB presented in the Nogales 2012 Plan, submitted May 29, 2012.6 As a result, the 2008 and 2011 emissions inventories did not include the seven tons per year of PM10emissions attributed to vehicle brake and tire wear. ADEQ revised the Nogales NA emissions inventories and MVEB accordingly for the Final Nogales 2012 Plan and thereby increased the Nogales NA PM10inventory total from 1,524 to 1,531 tons in 2008 and from 1,521 to 1,528 tons in 2011, an increase of less than 0.5 percent across the Nogales NA emissions inventories.

While including brake and tire wear emissions is important for accuracy and compiling the MVEB, the material effect on any subsequent analyses using emissions inventory data in the FinalNogales 2012 Plan is inconsequential. For example, in 2008, adding brake and tire wear emissions to the Nogales NA emissions inventory increases its largest share of the total Ambos Nogales regional emissions inventory by less than 0.1 percent, from 35.97 to 36.07 percent.7 Therefore, it remains accurate for the purposes of analysis to assign to the Nogales NA a maximum of 36 percent of total Ambos Nogales regional PM10emissions; consequently, no revisions are required for the section 179B demonstration and supporting analyses presented within the Final Nogales 2012 Plan.

By revising the Nogales NA emissions inventories for 2008 and 2011 and revising the MVEB resulting from the 2011 emissions inventory, ADEQ has corrected the oversight of not including the brake and tire wear emissions in the previously presented emissions inventories. The MVEB provided in Arizona's Final Nogales 2012 Plan submittal accurately includes all on-road sources of PM10as estimated within the 2011 Nogales NA emissions inventory. Also, the revised 2008 and 2011 emissions inventories for the Nogales NA within the Final Nogales 2012 Plan provide a comprehensive, accurate, and current inventory of actual emissions from all sources within the nonattainment area.

EPA's proposed rule provided a 30-day public comment period. During this period, we received no comments on our proposal. Furthermore, Arizona received no comments during its 30-day comment period presenting the revised MVEB for public review, prior to its submittal of the Final Nogales 2012 Plan.

Under CAA section 110(k), and for the reasons set forth in our June 27, 2012 proposed rule and summarized herein, EPA is approving theFinal 2012 State Implementation Plan Nogales PM 10 Nonattainment Area(“Final Nogales 2012 Plan”), submitted by ADEQ on August 24, 2012, for the Nogales, Arizona “moderate” PM10nonattainment area. Specifically, EPA is approving the following elements of the Final Nogales 2012 Plan:

(1) The 2008 base year and 2011 emissions inventories as meeting the requirements of CAA section 172(c)(3);

(2) The demonstration of attainment but for international emissions as meeting the requirements of CAA section 179B(a)(1);

(3) The implementation of paving projects and capital improvement projects at the Ports of Entry within the Nogales NA prior to the CAA's 1994 attainment deadline as meeting the RACM/RACT requirements of CAA sections 172(c)(1), 179B(a)(2), and 189(c)(1)(C);

(4) The implementation of paving projects and capital improvement projects at the Ports of Entry to meet the RFP demonstration requirement of CAA sections 172(c)(2) and 179B(a)(2);

(5) The implementation of post-1994 paving projects as meeting the contingency measure requirements of CAA sections 172(c)(9) and 179B(a)(2); and,

(6) The 2011 attainment year motor vehicle emissions budget because it is derived from the section 179B demonstration and meets the requirements of CAA section 176(c) and of 40 CFR 93, subpart A.

Even with our approval of Arizona's demonstration that the Nogales NA is attaining the PM10NAAQS but for international transport from Mexico, this final action approving the Final Nogales 2012 Plan does not constitute a redesignation to attainment because we have not determined that the area has met the CAA requirements for redesignation under section 107(d)(3)(E). The classification and designation status in 40 CFR part 81 remains moderate nonattainment for the Nogales NA until such time as EPA determines that Arizona has met the CAA requirements for redesignating the Nogales NA to attainment for the PM10NAAQS.

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

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

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

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

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

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

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

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

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

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

The Congressional Review Act, 5 U.S.C. 801et 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, andthe Comptroller General of the United States prior to publication of the rule in theFederal Register. A major rule cannot take effect until 60 days after it is published in theFederal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 26, 2012. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements (see section 307(b)(2)).

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

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

(i) The initialsAQSmean or refer to Air Quality System.

(ii) The words or initialsActorCAAmean or refer to the Clean Air Act, unless the context indicates otherwise.

(iii) The wordsEPA, we, usorourmean or refer to the United States Environmental Protection Agency.

(iv) The initialsNAAQSmean or refer to the National Ambient Air Quality Standards.

(v) The initialsSIPmean or refer to State Implementation Plan.

(vi) The wordsUtahorStatemean the State of Utah.

On December 10, 1999, the State of Utah submitted a SIP revision to Rule R307-202 Emission Standards: General Burning. This rule contains the following provisions: definitions and exclusions, community waste disposal, general prohibitions, permissible burning—without permit, permissible burning with permit, and special conditions.

The proposed revision is found within the `permissible burning with permit' in section R307-202-5(3)(e)(i). The revision extends the time period during which open burning could be authorized. The current burning period in the rule is from March 30 to May 30, the revision would extend the beginning of the burning period to March 1. This would allow an additional 30 days to the open burning period. The revision to the rule is based on a request from the Washington County Mayors Association to change the beginning date to accommodate areas of the State that were dry enough to burn earlier in the year.

In our analysis of ambient air quality monitoring data, as described in our June 19, 2012 (77 FR 36443) proposed rule, EPA found that the relaxation of the open burning rule could contribute to further degradation of air quality within the State of Utah. Specifically, the analysis demonstrates that further degradation of air quality could occur in Utah's PM2.5nonattainment areas whereviolations of the PM2.5standard have been recorded during periods covered by the State's proposed extension of the open burning period. In the absence of a section 110(l) analysis or demonstration by the State of Utah showing that extending the burning period would not cause a PM2.5violation, EPA cannot determine that this revision would not interfere with attainment and maintenance of the NAAQS.

EPA did not receive comments on our June 19, 2012Federal Registerproposed action regarding the disapproval of Utah's SIP revision to their R307-202 Emission Standards: General Burning rule.

Section 110(l) of the CAA states that a SIP revision cannot be approved if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress toward attainment of the National Ambient Air Quality Standards (NAAQS) or any other applicable requirements of the Act. The revision to Utah's R307-202 Emission Standards: General Burning could relax the existing SIP requirements by extending the open burn window. Because the State has not analyzed the effect of the extension of the open burn window, EPA cannot conclude that the revision would or would not interfere with attainment and maintenance of the NAAQS. As a result, EPA is disapproving the proposed revision pursuant to section 110(l).

EPA is disapproving the SIP revision to R307-202 Emission Standards: General Burning submitted by the State on December 10, 1999. Without a section 110(l) analysis or demonstration, EPA finds that the revision relaxes the control on open burning and could potentially interfere with the attainment and maintenance of the NAAQS.

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve or disapprove state choices, depending on whether they meet the criteria of the Clean Air Act. With this final action EPA is merely disapproving a state law as not meeting Federal requirements, and is not imposing additional requirements beyond those imposed by state law.

Because this disapproval only applies to a date change for Utah's General Burning window, the 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).

This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501et seq.Burden is defined at 5 CFR 1320.3(b). The disapproval only applies to a date change for Utah's General Burning window.

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

EPA's final rule consists of a disapproval of Utah's General Burning rule submission. The revision would extend the General Burning window an extra month, which requires a CAA section 110(l) analysis to show no relaxation of the rule. Since Utah did not submit a section 110(l) analysis for this revision EPA is disapproving the submittal. The disapproval of the SIP, merely disapproves the state law as not meeting federal requirements and does not imposes any additional requirements.

This action 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).

Under Title II of UMRA, 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 by State, local, or Tribal governments or the private sector in any one year. In addition, this final rule does not contain a significant federal intergovernmental mandate as described by section 203 of UMRA nor does it contain any regulatory requirements that might significantly or uniquely affect small governments.

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

This rule will not have substantial direct effects on the State, on the relationship between the national government and the State, 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 section 110(l) of the CAA. Thus, Executive Order 13132 does not apply to this action.

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

Executive Order 13045:Protection of Children from Environmental Health Risks and Safety Risks(62 FR 19885, April 23, 1997), applies to any rule that: (1) Is determined to be economically significant as defined under Executive Order 12866; and (2) concerns an environmental health or safety risk that we have reason to believe may have a disproportionate effect on children. EPA interprets EO 13045 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 is disapproving a possible relaxation to Utah's General Burning rule, it will have a beneficial effect on children's health by not allowing additional 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 EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.

This action does not involved technical standards. Therefore, EPA did not consider the use of any voluntary consensus 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 rule will not have a disproportionately high and adverse human health or environmental effects on minority or low-income populations because it disapproves a possible relaxation of Utah's rule where increases in emissions are possible.

In addition, this final action does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP being disapproved would not apply in Indian country located in the state, and it would not impose substantial direct costs on tribal governments or preempt tribal law.

The Congressional Review Act, 5 U.S.C. 801et 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 theFederal Register. A major rule cannot take effect until 60 days after it is published in theFederal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 26, 2012. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2) of the CAA.)

Regulations governing the bluefish fishery are found at 50 CFR part 648. The regulations require annual specification of a commercial quota that is apportioned among the coastal states from Florida through Maine. The process to set the annual commercial quota and the percent allocated to each state are described in § 648.162.

The final rule implementing Amendment 1 to the Bluefish Fishery Management Plan, which was published on July 26, 2000 (65 FR 45844), provided a mechanism for bluefish quota to be transferred from one state to another. Two or more states, under mutual agreement and with the concurrence of the Administrator, Northeast Region, NMFS (Regional Administrator), can transfer or combine bluefish commercial quota under § 648.162(e). The Regional Administrator is required to consider the criteria in § 648.162(e)(1) in the evaluation of requests for quota transfers or combinations.

North Carolina has agreed to transfer 100,000 lb (45,359 kg) of its 2012 commercial quota to New Hampshire. This transfer was prompted by the diligent efforts of state officials in New Hampshire not to exceed the commercial bluefish quota. The Regional Administrator has determined that the criteria set forth in § 648.162(e)(1) have been met. The revised bluefish quotas for calendar year 2012 are: North Carolina, 3,207,827 lb (1,445,046 kg); and New Hampshire, 142,765 lb (64,757 kg).

This action is taken under 50 CFR part 648 and is exempt from review under Executive Order 12866.