The statutory framework generally referred to as the Bank Secrecy Act (BSA) authorizes the Secretary of the Treasury to require financial institutions to keep records and file reports that the Secretary determines have a high degree of usefulness in criminal, tax, or regulatory investigations or proceedings.1 The Annunzio-Wylie Anti-Money Laundering Act of 1992 (Pub. L. 102-550) (Annunzio-Wylie) amended the BSA to authorize the Treasury and the Board jointly to prescribe regulations to require banks and nonbank financial institutions to maintain records regarding domestic and international funds transfers and transmittals of funds if the Secretary and the Board determine that the maintenance of records has a high degree of usefulness in the criminal, tax, or regulatory investigations or proceedings.2

On January 3, 1995, the Secretary and the Board jointly issued a rule that requires banks and nonbank financial institutions to collect and retain certain information on funds transfers and transmittals of funds (“recordkeeping rule”).3 To minimize potential confusion by affected entities regarding the scope of the joint recordkeeping rule and the rule's interaction with other anti-money laundering regulations, the substantive requirements of the recordkeeping rule were codified in 31 CFR part 103 with other BSA regulations. At the same time, the Board separately adopted the recordkeeping rule's requirements by adding existing subpart B to Regulation S. Subpart B incorporates the recordkeeping rule's requirements by cross-referencing the jointly prescribed requirements then located in 31 CFR part 103, rather than restating the requirements in full.4

In October 2010, FinCEN moved the BSA regulations, including those implementing the recordkeeping rule, from 31 CFR part 103 to new Chapter X of Title 31 of the CFR.5 Within the new Chapter X, FinCEN reorganized the BSA regulations by financial industry to make it easier to find regulatory requirements. With respect to the cross-references in Regulation S, 31 CFR 103.11 was redesignated as 31 CFR 1010.100, 31 CFR 103.33(e) was redesignated as 31 CFR 1020.410(a), and 31 CFR 103.33(f) was redesignated as 31 CFR 1010.410(e).6

The Board is amending the cross-references in subpart B of its Regulation S to conform the references to the reorganized BSA regulations. These amendments do not have any effect on the substantive requirements imposed by Regulation S.

In accordance with section 553(b) the Administrative Procedures Act (APA) (5 U.S.C. 553(b)), the Board finds, for good cause, that providing an opportunity for public comment is unnecessary. The amendments are solely technical amendments that revise citations to conform to a previous reorganization of BSA regulations in the CFR.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3506; 5 CFR part 1320 Appendix A.1), the Board has reviewed the final rule under authority delegated to the Board by the Office of Management and Budget. The technical amendments to Regulation S will revise the cross-references to conform to a previous reorganization of BSA regulations in the CFR. The amendments do not change any substantive requirements of the regulation or currently approved information collections. Therefore, no additional paperwork burden will be imposed as a result of this rulemaking.

For the reasons set forth in the preamble, the Board is amending 12 CFR part 219 as follows:

A list of the 18 FCA Board policy statements is set forth below. FCA Board policy statements may be viewed online atwww.fca.gov/handbook.nsf.

On November 7, 2011, the FCA Board adopted Policy Statement FCA-PS-81 on, “Ethics, Independence, Arm's-Length Role, Ex Parte Communications and Open Government.” It was published in theFederal Registeron November 17, 2011 (76 FR 71343).

On September 17, 2012, the FCA Board reaffirmed, and made technical updates only, to FCA-PS-62 on, “Equal Employment Opportunity and Diversity.” The text of the policy statement is set forth below in its entirety. The FCA will continue to publish new or revised policy statements in their full text.

Effective Date:17-SEPT-12

Effect on Previous Action:Updates FCA-PS-62 [BM-13-JUL-06-03] (71 FR 46481, 8/14/2006) 7-13-06; amended by NV-11-15 (08-JUL-11); amended by NV-12-16 (07-SEPT-12).

Source of Authority:Title VII of the Civil Rights Act of 1964, as amended (42 U.S.C. 2000eet seq.); Age Discrimination in Employment Act (29 U.S.C. 621et seq.); Rehabilitation Act of 1973, as amended (29 U.S.C. 721et seq.); Equal Pay Act of 1974 (29 U.S.C. 206(d)); Civil Service Reform Act of 1978 (5 U.S.C. 3112); Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 (NO FEAR Act) (5 U.S.C. 2301); Genetic Information Nondiscrimination Act of 2008 (42 U.S.C. 2000ffet seq.); section 5.9 of the Farm Credit Act of 1971, as amended (12 U.S.C. 2243); Executive Order 11478 (Equal Employment Opportunity in the Federal Government), as amended by Executive Orders 13087 and 13152 to include prohibitions on discrimination based on sexual orientation and status as a parent; Executive Order 13166 (Improving Access to Services for Persons with Limited English Proficiency); 29 CFR part 1614; Equal Employment Opportunity Commission Management Directives.

The Farm Credit Administration (FCA or Agency) Board reaffirms its commitment to Equal Employment Opportunity (EEO) and Diversity (EEOD) and its belief that all FCA employees should be treated with dignity and respect. The Board also provides guidance to Agency management and staff for deciding and taking action in these critical areas.

Unquestionably, the employees who comprise the FCA are its most important resource. The Board fully recognizes that the Agency draws its strength from the dedication, experience, and diversity of its employees. The Board is firmly committed to taking whatever steps are needed to protect the rights of its staff and to carrying out programs that foster the development of each employee's potential. We believe an investment in efforts that strongly promote EEOD will prevent the conflict and the high costs of correction for taking no, or inadequate, action in these areas. The Farm Credit Administration (FCA) Board Adopts the Following Policy Statement:

It is the policy of the FCA to prohibit discrimination in Agency policies, program practices, and operations. Employees, applicants for employment, and members of the public who seek to take part in FCA programs, activities, and services will be treated fairly. The Chairman and Chief Executive Officer (CEO) is ultimately responsible for ensuring that FCA meets all EEOD requirements and initiatives in accordance with laws and regulations,to maintain a workplace that is free from discrimination and that values all employees. FCA, under the appropriate laws and regulations, will:

• Ensure equal employment opportunity based on merit and qualification, without discrimination because of race, color, religion, sex, age, national origin, disability, sexual orientation, status as a parent, genetic information, or participation in discrimination or harassment complaint proceedings;

• Provide for the prompt and fair consideration of complaints of discrimination;

• Make reasonable accommodations for qualified applicants for employment and employees with physical or mental disabilities under law;

• Provide an environment free from harassment to all employees;

• Create and maintain an organizational culture that recognizes, values, and supports employee and public diversity and inclusion;

• Develop objectives within the Agency's operation and strategic planning process to meet the goals of EEOD and this policy;

• Implement affirmative programs to carry out this policy within the Agency; and

• To the extent practicable, seek to encourage the Farm Credit System to continue its efforts to promote and increase diversity.

The FCA intends to be a model employer. That is, as far as possible, FCA will build and maintain a workforce that reflects the rich diversity of individual differences evident throughout this Nation. The Board views individual differences as complementary and believes these differences enrich our organization. When individual differences are respected, recognized, and valued, diversity becomes a powerful force that can contribute to achieving superior results. Therefore, we will create, maintain, and continuously improve on an organizational culture that fully recognizes, values, and supports employee diversity. The Board is committed to promoting and supporting an inclusive environment that provides to all employees, individually and collectively, the chance to work to their full potential in the pursuit of the Agency's mission. We will provide everyone the opportunity to develop to his or her fullest potential. When a barrier to someone achieving this goal exists, we will strive to remove this barrier.

The Board reaffirms its commitment to ensuring FCA conducts all of its employment practices in a nondiscriminatory manner. The Board expects full cooperation and support from everyone associated with recruitment, selection, development, and promotion to ensure such actions are free of discrimination. All employees will be evaluated on their EEOD achievements as part of their overall job performance. Though staff commitment is important, the role of supervisors is paramount to success. Agency supervisors must be coaches and are responsible for helping all employees develop their talents and give their best efforts in contributing to the mission of the FCA.

It is the policy of the FCA to provide a work environment free from unlawful discrimination in any form, and to protect all employees from any form of harassment, either physical or verbal. The FCA will not tolerate harassment in the workplace for any reason. The FCA also will not tolerate retaliation against any employee for reporting harassment or for aiding in any inquiry about reporting harassment.

A disabled veteran is defined as someone who is entitled to compensation under the laws administered by the Veterans Administration or someone who was discharged or released from active duty because of a service-connected disability.

The FCA is committed to increasing the representation of disabled veterans within its organization. Our Nation owes a debt to those veterans who served their country, especially those who were disabled because of service. To honor these disabled veterans, the FCA shall place emphasis on making vacancies known to and providing opportunities for employing disabled veterans.

NASA published FR Doc. 2012-23649 in theFederal Registerof October 4, 2012 (77 FR 60619) removing regulations that are obsolete and no longer in use. In the rule under the heading “Part 1204—Administrative Authority and Policy” an incorrect amendatory instruction is being corrected.

In theFederal Registerof September 27, 2012, in FR Doc. 2012-23691, on page 59303, the second column, remove “8 CFR 1003.104” from the fourth line of footnote 74 (continued) and add “17 CFR 14.8” in its place.

The Federal Civil Penalties Inflation Adjustment Act of 1990 (FCPIAA), as amended by the Debt Collection Improvement Act of 1996 (DCIA),1 requires the head of each Federal agency to adjust by regulation, at least once every four years, the maximum amount of CMPs provided by law within the jurisdiction of that agency by the cost of living adjustment defined in the FCPIAA, as amended.2 Because one of the purposes of the inflation adjustments includes maintaining the deterrent effect of CMPs and promoting compliance with the law, the Commission monitors the impact of inflation on its CMP maximums and adjusts them as needed to implement the requirements and purposes of the FCPIAA.3

On July 21, 2010, President Obama signed the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act) into law.4 Section 753 of the Dodd-Frank Act set maximum CMPs for Sections 6(c) and 6(d) of the CEA, 7 U.S.C. 9, 13b. Section 753 of the Dodd-Frank Act is effective August 15, 2011, the effective date for the Commission's rules implementing this section.5

The inflation adjustment requirement applies to any penalty, fine or other sanction that is for a specific monetary amount as provided by Federal law; or has a maximum amount provided for by Federal law; and is assessed or enforced by an agency pursuant to Federal law; and is assessed or enforced pursuant to an administrative proceeding or a civil action in the Federal courts. [28 U.S.C. 2461 note.] The CEA provides for CMPs that meet the above definition and are, therefore, subject to the inflation adjustment in the following instances: Sections 6(c), 6(d), 6b, and 6c of the CEA.6

Section 6(c) of the CEA, as amended by Section 753(a) of the Dodd-Frank Act, sets the maximum CMP that may be imposed by the Commission in an administrative proceeding on “any person (other than a registered entity)” for: (1) Each violation of Section 6(c) of the CEA “or any other provisions of [the] Act or of the rules, regulations, or orders of the Commission thereunder” to the greater of $140,000 or triple the monetary gain to the violator; and (2) any “manipulation or attempted manipulation in violation of” Section 6(c) or 9(a)(2) of the CEA to the greater of $1,000,000 or triple the monetary gain to the violator.7

Section 6(d) of the CEA, as amended by Section 753(b) of the Dodd-Frank Act, sets the maximum CMP that may be imposed by the Commission in an administrative proceeding on “any person (other than a registered entity8 )” for violations of the CEA “or any other provisions of [the CEA] or of the rules, regulations, or orders of the Commission thereunder” to “the greater of $140,000 or triple the monetary gain” to the violator.9

Section 6b of the CEA provides that the Commission in an administrative proceeding may impose a CMP on: (1) any registered entity for not enforcing or has not enforced its rules of government made a condition of its designation or registration” as set forth in the CEA, or (2) “any registered entity, or any director, officer, agent, or employee of any registered entity,” for violations of the CEA “or any rules, regulations, or orders of the Commission thereunder.”10 For each violation for which a CMP is assessed pursuant toSection 6b, Rule 143.8(a)(3) sets the current maximum penalty at: the greater of $1,000,000 or triple the monetary gain to such person for manipulation or attempted manipulation in violation of Section 6(c), 6(d), or 9(a)(2) of the CEA; and the greater of $675,000 or triple the monetary gain to such person for all other violations.11

Section 6c of the CEA provides that Commission may bring an action in the “proper district court of the United States or the proper United States court of any territory or other place subject to the jurisdiction of the United States” and the court may impose on a CMP on “any registered entity or other person” found by the court to have committed any violation of any provision of the CEA “or any rule, regulation, or order thereunder, or is restraining trading in any commodity for future delivery or any swap.”12 For each violation for which a CMP is assessed pursuant to Section 6c(d), Rule 143.8(a)(2) sets the current maximum penalty at: the greater of $1,000,000 or triple the monetary gain to such person for manipulation or attempted manipulation in violation of Section 6(c), 6(d), or 9(a)(2) of the CEA; and the greater of $140,000 or triple the monetary gain to such person for all other violations.13

The formula for determining the cost-of-living adjustment, first defined by the FCPIAA, and amended by the DCIA, consists of a four-step process.

The first step entails determining the inflation adjustment factor. This is done by calculating the percentage increase by which the Consumer Price Index for all-urban consumers published by the Department of Labor (CPI)14 for the month of June of the calendar year preceding the adjustment exceeds the CPI for the month of June of the calendar year in which the amount of such CMP was last set or adjusted pursuant to law. The CMPs for Sections 6(c) and 6(d) of the CEA were last set by the Dodd-Frank Act, effective in the calendar year 2011. The CMPs for Sections 6b and 6c of the CEA were last set by Commission Rule, effective in the calendar year 2008.15 Accordingly, the inflation adjustment factor for Sections 6(c) and 6(d) of the CEA equals the CPI for June 2011 (i.e.,June of the year preceding this year) divided by that index for June 2011, and the inflation adjustment factor for Sections 6b and 6c of the CEA equals the CPI for June 2011 divided by that index for June 2008.16

Second, the inflation adjustment factors are then multiplied by the current maximum CMPs to calculate the raw inflation increase. Third, this raw inflation increase is then rounded according to the guidelines set forth by the FCPIAA to calculate the final inflation increase.17 Fourth, the final inflation increase is added to the current CMP maximum to obtain the new CMP maximum penalty.

In Commission actions pursuant to Sections 6(c) or (d) of the CEA, the amount set for the maximum CMP for manipulation or attempted manipulation violations is $1,000,000, and the amount set for the maximum CMP for all other violations is $140,000. Applying the CPI adjustment methodology, no adjustment to these CMP amounts is required.18

In Commission actions pursuant to Section 6b of the CEA, the amount set for the CMP for manipulation and attempted manipulation violations is $1,000,000 (or triple the monetary gain) and the amount set for the CMP for all other violations is $675,000 (or triple the monetary gain). Applying the CPI adjustment methodology, these CMP amounts must be increased by $25,000 each, and the new CMP maximums are $1,025,000 (or triple the monetary gain) for manipulation and attempted manipulation violations, and $700,000 (or triple the monetary gain) for all other violations.19

In Commission actions pursuant to Section 6c of the CEA, the amount set for the CMP for manipulation and attempted manipulation violations is $1,000,000 (or triple the monetary gain) and the amount set for the CMP for all other violations is $140,000 (or triple the monetary gain). Applying the CPI adjustment methodology, the CMP amount for manipulation and attempted manipulation violations must be increased by $25,000 to $1,025,000 (or triple the monetary gain), while the CMP amount for all other violations remains unchanged at $140,000 (or triple the monetary gain).20

The FCPIAA provides that “any increase under [FCPIAA] in a CMP shall apply only to violations which occur after the date the increase takes effect.”21 Thus, the new CMP amounts may be applied only to violations of the CEA that occur after the effective date of this amendment, October 23, 2012.

The notice and comment procedures of 5 U.S.C. 553 do not apply to this rulemaking because the Commission is acting herein pursuant to statutory language which mandates that the Commission act in a nondiscretionary matter.Lake Carriers' Ass'nv.E.P.A.,652 F.3d 1, 10 (DC Cir. 2011).22

The rules of practice in proceedings relative to administrative offsets initiated against former employees of the Postal Service are set forth in 39 CFR part 966. The Postal Service is concurrently revising its regulations pertaining to collecting debts from former employees contained in the Postal Service Employment and Labor Relations Manual (ELM). These ELM revisions conform existing Postal Service regulations to the requirements of the Debt Collection Act. The revisions in this document will bring 39 CFR part 966 into accord with the Postal Service's revised regulations for collecting debts from former employees by administrative offset. In addition, minor changes will be made to eliminate outdated provisions and conform these rules to the existing practice of the Judicial Officer.

The Postal Service published these proposed changes to 39 CFR part 966 on September 4, 2012 (77 FR 53830-34). No comments were received. The final version of the rule is, accordingly unmodified, with the exception of minor changes to § 966.9, intended to be clarifying only.

Changes to § 966.2(a) cross reference the Postal Service's new ELM provisions pertaining to administrative offsets and also clarify that such offsets are taken pursuant to the statutory authority of 31 U.S.C. 3716. Changes to § 966.2(b) clarify that the regulations contained in 39 CFR part 966 are intended to be consistent with the Federal Claims Collection Standards promulgated jointly by the Department of Justice and the Treasury, found at 31 CFR parts 900-904.

Changes to § 966.3 update the definitions of part 966 to refer to the Postal Service Accounting Service Center (ASC) or successor installation instead of the area Postmaster/Installation head. The definition of “reconsideration” in paragraph (i) is thus revised to refer to action taken by the ASC. These changes accurately reflect the Postal Service's current practices for collecting debts from former employees, as collections from former employees are normally handled through the ASC. Definitions are also updated to include the Federal Claims Collection Standards, referenced elsewhere in the revised regulations. Changes to paragraph (j) are non-substantive and provide the parties with useful contact information.

Changes to § 966.4 revise the procedures for filing a petition for a hearing under part 966. These revisions align these regulations with the Postal Service's revised ELM regulations pertaining to collecting debts from former employees by administrative offset, the Postal Service's current debt collection procedures, and current practice before the Judicial Officer.Paragraphs (a)(2) and (3) are revised to cross reference and incorporate the Postal Service's ELM provisions, as well as the relevant section of the Debt Collection Act, that detail the notice and due process rights former Postal Service employees are afforded prior to the collection of a debt by administrative offset. Changes to these paragraphs clarify that a former employee may petition for review under part 966 either after receiving the required notice and requesting and receiving a reconsideration determination from the ASC, or after requesting reconsideration but not receiving a determination within 60 days from the request. Changes to paragraph (b) detail those situations whereby the Postal Service may take an administrative offset without affording an opportunity for pre-deprivation review to the former employee. In accordance with the Judicial Officer's current practice and applicable law, these changes further clarify that where prior notice and an opportunity for review are omitted and the circumstances outlined in revised paragraphs (b)(2), (3) and/or (4) do not apply, the former employee may submit a petition for review under part 966 following the offset. Changes to paragraph (c) clarify the procedural time limits for filing a petition for review under revised part 966. In conformance with revisions made elsewhere to part 966, “Accounting Service Center” is substituted for “Postmaster/Installation Head” in paragraph (d)(4). The remaining revisions to paragraph (d) are intended to modernize requirements for the content of hearing petitions.

In § 966.6, paragraph (a) is revised to reflect the Recorder's correct hours, delete the requirement that parties submit documents in triplicate, and clarify that parties should serve papers directly with each other unless otherwise directed by the Hearing Official. Paragraph (c) explicitly requires that parties discuss extensions of time with the opposing party, as is the current practice. Paragraph (d) clarifies that the General Counsel may delegate cases to a designee and establishes a notice of appearance requirement in order to reduce the possibility of misdirected orders. In addition, paragraph (d) is revised to allow for non-attorney representatives. In current practice, former employees are often represented by non-attorneys.

Section 966.7 is revised to simplify the answer's content, eliminate the need for the Postal Service's representative to provide certain information prematurely, and require that the answer clearly explain the basis and calculation of the debt at issue.

Changes to § 966.8(a)(3), (6), and (7) conform the regulations to the existing practice of the Judicial Officer. Changes to § 966.8(a)(9) similarly reflect the Judicial Officer's existing practice and provide notice to parties that time extensions will not be automatically granted.

Changes to § 966.9 update the regulation to reflect the existing practice of the Judicial Officer pertaining to hearing transcripts, as well as the Hearing Official's ability, in case of a party's unexcused absence, to continue with a hearing at the Hearing Official's discretion. This section is also revised to clarify current practice pertaining to when a Hearing Official may conduct a hearing, as opposed to a decision on the record.

Section 966.11 is revised to provide that the Initial Decision of the presiding Administrative Judge may become the final determination of the Postal Service without any further order by the Judicial Officer, so long as no appeal has been filed and the Judicial Officer has not decided to review the decision on his or her own motion.

Formerly, § 966.12 detailed only circumstances under which the Petitioner could be found in default and administrative offset could thus be initiated. As revised, § 966.12 provides for circumstances under which either party may be found in default. This change is in accordance with existing practice and decisions of the Judicial Officer.

Section 966.13 is revised to reflect more accurately the definition of “ex parte” discussions in the context of proceedings brought under part 966.

Sections 966.5 and 966.10, dealing respectively with the effect of filing a petition, and the initial decision of the Hearing Official, are retained without change.

These revised rules will begin to govern proceedings under part 966 docketed on or after November 26, 2012.

For the reasons stated in the preamble, the Postal Service amends 39 CFR part 966 as set forth below:

The information in this Supplementary Information section of this preamble is organized as follows:

Entities affected by this rule include sources in all industry groups. The majority of sources potentially affected are expected to be in the following groups that emit PM:

Entities affected by this rule also include state, local and tribal reviewing authorities responsible for implementing Clean Air Act (CAA or Act) stationary source permitting programs.

In addition to being available in the docket, an electronic copy of this final rule will also be available on the World Wide Web. Following signature by the EPA Administrator, a copy of this final rule will be posted in the regulations and standards section of our NSR home page located athttp://www.epa.gov/nsr.

The purpose of this rulemaking is to revise the definition of “regulated NSR pollutant” to correct an inadvertent error contained in the regulations for PSD at 40 CFR 51.166 and 52.21, and in the EPA's Emission Offset Interpretative Ruling at 40 CFR part 51 Appendix S. This error was introduced in the revised definition of “regulated NSR pollutant” in the 2008 rule titled, “Implementation of the New Source Review (NSR) Program for Particulate Matter Less Than 2.5 Micrometers (PM2.5).”See73 FR 28321 (May 16, 2008). The revised definition required that particulate matter emissions, PM10emissions and PM2.5emissions—representing three separate size ranges or indicators of particles—must include “gaseous emissions from a source or activity which condense to form particulate matter at ambient temperatures,”i.e.,condensable particulate matter (condensable PM).Seeexisting 40 CFR 51.166(b)(49)(vi), part 51 Appendix S, and 52.21(b)(50)(vi). This final action removes an unintended new requirement on state and local agencies and the regulated community that “particulate matter emissions” must include the condensable PM fraction in all cases. As described in more detail in section IV of this preamble, in the 2008 rule we did not intend that the term “particulate matter emissions” be listed with “PM2.5emissions” and “PM10emissions” to include the condensable PM fraction of primary PM. Historically, for “particulate matter emissions” often only the filterable fraction had been considered for NSR purposes, consistent with the applicable New Source Performance Standards (NSPS) for PM and the corresponding compliance test method.

This final action ensures that our originally-intended approach for regulating the three indicators for emissions of particulate matter under the PSD program is codified. Thus, “PM10emissions” and “PM2.5emissions” are regulated as criteria pollutants (that is, under the portion of the definition of “regulated NSR pollutant” that refers to “[a]ny pollutant for which a national ambient air quality standard has been promulgated * * *”), and are required to include the condensable PM fraction emitted by a source.See40 CFR 51.166(b)(49)(i) and 52.21(b)(50)(i). By contrast, “particulate matter emissions” is regulated as a non-criteria pollutant under the portion of the definition that refers to “[a]ny pollutant that is subject to any standard promulgated under section 111 of the Act,” where the condensable PM fraction generally is not required to be included in measurements to determine compliance with standards of performance for PM.See40 CFR 51.166(b)(49)(ii) and 52.21(b)(50)(ii).

Sections 108 and 109 of the CAA govern the establishment and revision of the NAAQS. Section 108 directs the Administrator to identify and list each air pollutant that “in his judgment, cause[s] or contribute[s] to air pollution which may reasonably be anticipated to endanger public health and welfare” and “the presence of which in the ambient air results from numerous or diverse mobile or stationary sources” and to issue air quality criteria for those pollutants that are listed. CAA section 108(a)(1)(A), (B). Section 109 directs the Administrator to propose and promulgate primary and secondary NAAQS for pollutants listed under section 108 to protect public health and welfare, respectively. Section 109 also requires review of the NAAQS at 5-year intervals.

“Particulate matter” is a term used to define an air pollutant that consists of a mixture of solid particles and liquid droplets found in the ambient air. Particulate matter occurs in many sizes and shapes and can be made up of hundreds of different chemicals. As explained further in the discussion that follows, the EPA has regulated several size ranges of particles under the CAA, referred to as indicators of particles, which has required that test methods be developed to measure the appropriate size particles that occur in the ambient air or that are being emitted directly from a source. In some cases, the EPA regulates certain species of particles as separate “air pollutants.” For example, lead, beryllium, fluorides and sulfuric acid mist are constituents of particulate matter that are also regulated separately under New Source Performance Standards (40 CFR part 60) and/or National Emissions Standards for Hazardous Air Pollutants (40 CFR parts 61, 63 or 65).

Particles as measured in the ambient air consist of both primary and secondary particles. Primary particles are emitted directly from sources, and may include gaseous emissions, which, when emitted from the stack of a source, condense under ambient conditions to form particles. Primary particles directly emitted by a source as a solid or liquid at the stack and captured on the filter of a test train are referred to as the “filterable” PM fraction. The gaseous emissions that form particles upon condensing under ambient conditions soon after release from the stack are referred to as “condensable PM.” Other types of particles, known as secondary particles, are formed from precursors, such as SO2and NOX, at a distance from their point of release as a result of complex reactions in the atmosphere.

Initially, the EPA established NAAQS for PM on April 30, 1971, under sections 108 and 109 of the Act.See36 FR 8186. Compliance with the original PM NAAQS was based on the measurement of particles in the ambientair using an indicator of particles measuring up to a nominal size of 25 to 45 micrometers (µm). The EPA used the indicator name “total suspended particulate” or “TSP” to define the particle size range that was being measured. Total suspended particulate remained the indicator for the PM NAAQS until 1987 when the EPA revised the NAAQS in part by replacing the TSP indicator for both the primary and secondary standards with a new indicator that includes only those particles with an aerodynamic diameter less than or equal to a nominal 10 µm (PM10).

On July 18, 1997, the EPA made significant revisions to the PM NAAQS in several respects. While the EPA determined that the PM NAAQS should continue to focus on particles less than or equal to 10 µm in diameter, the EPA also determined that the fine and coarse fractions of PM10should be considered separately. Accordingly, on July 18, 1997, the EPA added a new indicator for fine particles with a nominal mean aerodynamic diameter less than or equal to 2.5 µm (PM2.5), and continued to use PM10as the indicator for purposes of regulating the coarse fraction of PM10.See62 FR 38652.

In the next periodic review, the EPA concluded, on October 17, 2006, that it was necessary to revise the primary and secondary NAAQS for PM to provide increased protection of public health and welfare.See71 FR 61144. The EPA retained the two separate indicators—PM10and PM2.5—for determining compliance with the revised NAAQS for PM, so both continue to be regarded as pollutants for which a NAAQS has been promulgated.

Section 110 of the Act requires that state and local air pollution control agencies develop and submit plans, known as state implementation plans or SIPs (that provide for the attainment, maintenance and enforcement of the NAAQS), for approval by the EPA. An essential component of each SIP is the emissions reduction strategy, including emissions limitations and other control measures (as set forth in SIPs and in individual source permits) designed to control the emissions of pollutants that contribute to the air quality against which the NAAQS are measured. For many years, most control measures for PM were generally focused on primary PM—specifically, the filterable PM fraction. Accordingly, the early EPA test methods for quantifying amounts of PM emitted by sources generally were based on the collection of the filterable PM fraction.

In support of state obligations to develop emissions reduction strategies, section 111 of the Act requires the EPA to adopt standards of performance that focus on sources that cause or contribute significantly to “air pollution which may reasonably be anticipated to endanger public health and welfare.” Such standards, referred to as NSPS, are emissions standards that are intended to reflect the degree of air pollution emission limitation attainable through the application of the best system of emission reduction (taking into account the cost of achieving such reduction and any non-air quality health and energy requirements) that the Administrator determines has been adequately demonstrated. Accordingly, the EPA historically has developed NSPS (and corresponding compliance test methods) under 40 CFR part 60 to provide standards of performance that address, among other pollutants, the control of PM.

When the EPA promulgated the first set of NSPS for PM in 1971, only the filterable PM fraction was regulated. The EPA simultaneously promulgated a test method, known as Method 5, as the NSPS compliance test method to measure the filterable fraction of PM. Once available, Method 5 was often also used for permitting purposes to quantify the in-stack emissions of PM that represented the particles in the atmosphere expressed in terms of the ambient indicator, TSP—the original indicator for the PM NAAQS. Thus, the filterable PM collected by Method 5 or other similar source test methods was sometimes referred to as “TSP emissions,” even though it was recognized that Method 5 actually collected particles that exceeded the TSP size range (25-45 µm), and did not include the condensable PM fraction. Today, Method 5 continues to serve as the performance testing procedure for most NSPS for PM.

As a result of the promulgation of the PM10NAAQS in 1987, the annual source emissions reporting of “particulate matter emissions” (required under 40 CFR 51.322 and 51.323) ended with the state reporting of calendar year 1987 emissions, and the required reporting of PM10emissions began with state reporting of calendar year 1988 emissions. In the absence of a standard reference test method for measuring PM10emissions, states were instructed to choose an appropriate method of determining PM10emissions for each source. On April 17, 1990, the EPA promulgated Method 201A to provide the states with a standard means of measuring filterable PM10emissions contained in the stack. In the preamble of the promulgated Method 201A, the EPA noted that condensable PM forms very fine particles in the PM10size range and is considered a portion of total PM10emissions. The EPA announced its intent to propose Method 202 as a test method to measure the condensable portion. On October 12, 1990, the EPA proposed Method 202 to provide states with a means of measuring condensable PM from stationary sources.See55 FR 41546. The test method for condensable PM, known as Method 202, was promulgated on December 17, 1991, in Appendix M of 40 CFR part 51. With the new focus on the PM10indicator the EPA also began to emphasize the relevance of condensable PM,1 and encouraged states to consider the condensable PM fraction as part of PM10emissions where it was considered to be a significant contributor to an area's PM10nonattainment status. However, there were only a few nonattainment areas where control of the condensable PM portion was actually required in order to achieve attainment of the NAAQS.

Even before the EPA introduced the PM2.5indicator for the PM NAAQS in 1997, the agency published information on PM2.5emissions in its National Emission Inventory Database (NEI).2 With the assistance of information gained through speciation analyses of PM2.5, the EPA recognized that condensable PM could be a substantial portion of the total PM2.5emitted by certain source categories. Beginning with the 1999 NEI, the EPA began including the condensable PM fraction of the total PM2.5emitted by certain source categories, and encouraged states to consider the condensable PM fraction for the development of emissions inventories for PM2.5SIPs.3 The EPA also provided condensable PM emission factors for various source categories in AP-42 so that those state and local air control agencies having the responsibility to report emission inventories would have the tools neededto estimate and report those emissions to the EPA.

In 2002, the EPA issued a rule known as the Consolidated Emissions Reporting Rule (CERR), which, among other things, established requirements for the reporting to the EPA of PM2.5emissions. In conjunction with the new reporting requirements, the EPA added definitions of “primary PM,” “primary PM10,” and “primary PM2.5,” all of which included both the filterable and condensable PM fraction.See67 FR 39602 (June 10, 2002). The CERR required states to report emissions of primary PM10and primary PM2.5,and listed as optional the reporting of emissions of primary PM. However, when the EPA amended those rules in 2008, it dropped the definition of “primary PM” and the listing of “primary PM” as an optional pollutant, eliminating the requirement for reporting “PM” (as opposed to PM10and PM2.5).See73 FR 76539 (December 17, 2008).

In November 2005, the EPA proposed requirements that states must fulfill in developing their implementation plans for the attainment of PM2.5NAAQS.See70 FR 65984 (November 1, 2005). With the historical emphasis on controlling the filterable PM fraction, it became apparent that in many cases it would be necessary to take a closer look at the control of the condensable PM fraction in order to attain the PM2.5NAAQS in some areas.4 The preamble to the 2005 proposed rule highlighted the importance in certain cases of controlling the condensable PM fraction to help ensure the attainment of the new NAAQS. It was acknowledged at that time that most stationary source test methods specified in state rules did not provide for the measurement of condensable PM. As such, it was found that most source test methods referenced in SIPs provided a measurement of only the filterable fraction of PM. The EPA further noted that “these filterable particulate matter test methods are either identical or very similar to one of the ten federal test methods published in Appendix A of 40 CFR Part 60 and used to determine compliance with New Source Performance Standards (NSPS).”Id.at 66049. The EPA indicated that states needing to adopt local control measures for primary PM2.5in nonattainment areas would need to revise their stationary source test methods to focus on the PM2.5indicator, including the condensable PM fraction.5

On March 25, 2009, the EPA proposed to modify existing Method 201A to allow for measurement of filterable PM2.5. In fact, the proposed modification offered the ability to measure filterable PM10, filterable PM2.5, or both filterable PM10and filterable PM2.5from stationary sources. At the same time, the EPA proposed amendments to Method 202 to improve the precision of the method for measuring condensable PM and to provide for more accurate overall quantification of primary emissions of PM10and PM2.5to the ambient air. Method 202 contained several optional procedures that were intended to accommodate the various test methods used by state and local regulatory entities at the time Method 202 was being developed. The inclusion of the optional procedures ultimately proved problematic in that each of them resulted in a different emissions value. To address this issue, the EPA explored the influence of the optional procedures to identify the ones that would result in biased or imprecise measurements. In December 2010, the EPA promulgated an improved Method 202 with limited options that would produce more consistent measures of emissions.

The NSR program is a statutorily-based preconstruction permitting program that applies when a stationary source of air pollution proposes to construct or undergo modification. The NSR program consists of three different preconstruction permit programs: PSD, nonattainment NSR and minor NSR. We often refer to the PSD and nonattainment NSR programs together as the major NSR program because those permit programs regulate the construction of new major stationary sources and major modifications to existing major stationary sources.

The nonattainment NSR program applies in advance of construction to new major stationary sources and major modifications of sources of a pollutant that locate in an area that is designated “nonattainment” for that pollutant. As such, the nonattainment NSR program applies only with respect to pollutants for which the EPA has promulgated NAAQS (commonly described as “criteria pollutants”). On the other hand, the PSD program is a statutorily-based preconstruction review and permitting program that applies to new or modified major stationary sources proposing to locate in an area meeting any NAAQS (“attainment” areas) and areas for which there is insufficient information to classify them as either attainment or nonattainment (“unclassifiable” areas) for at least one pollutant. Like the nonattainment NSR program, the applicability of the PSD program to a major stationary source or major modification must be determined in advance of construction and is on a pollutant-specific basis. However, unlike the nonattainment NSR program, the PSD requirements may apply to any “air pollutant” that is “subject to regulation” under the Act.6 Thus, the PSD program is not restricted to criteria pollutants.7 Once a major source is determined to be subject to the PSD program (PSD source) for a particular air pollutant, among other requirements, it must undertake a series of analyses to demonstrate that it will use the best available control technology (BACT) to minimize the emissions of each regulated pollutant and that the emissions of the source will not cause or contribute to a violation of any applicable NAAQS or any applicable maximum allowable increase in a pollutant concentration (PSD increment).

Consistent with the original NAAQS and PSD increments for PM, the PSD program established pollutant applicability requirements for PM on the basis of the TSP indicator. Accordingly, the PSD regulations defined a “significant” increase in emissions of PM as 25 tons per year (tpy). When the EPA revised the PM NAAQS in 1987, establishing a new PM10indicator, two indicators for particles were recognized as being regulated under the Act because the statutory PSD increments for PM were still expressed in terms of TSP. The addition of the new PM10indicator also necessitated a distinction between those emissions of PM that should be used to determine a source's compliance withthe new PM10NAAQS and those emissions of PM that should be used to determine a source's compliance with the existing TSP-based increments. Hence, in 1987, the EPA adopted the term “particulate matter emissions” to represent the indicator of emissions of PM that roughly corresponds to the ambient indicator, TSP, and adopted the term “PM10emissions” to represent the indicator of emissions of PM that corresponds to the ambient indicator, PM10.See52 FR 24672 (July 1, 1987). Accordingly, the original significant emissions rate of 25 tpy was retained and applied to the newly-defined term “particulate matter emissions” (associated with the ambient TSP indicator), and simultaneously a significant emissions rate of 15 tpy was defined with regard to “PM10emissions.”See40 CFR 51.166(b)(23)(i) and 52.21(b)(23)(i).

In 1993, as authorized by the CAA Amendments of 1990, the EPA adopted increments for PM that were expressed in terms of ambient concentrations of PM10, and substituted those increments for the original statutory increments for PM based on the TSP indicator.See58 FR 31622 (June 3, 1993). As a result, both the NAAQS for PM and the PSD increments for PM were henceforth measured by the PM10indicator and, once states revised their SIPs to incorporate the new PM10NAAQS and PM10increments, the TSP (ambient) indicator was no longer considered a regulated indicator of particles. However, because the NSPS for PM commonly measured performance standard compliance based on emissions of PM in a manner that was roughly associated with the original ambient TSP indicator, the EPA stated in the preamble to the 1993 final rule promulgating new PSD increments based on PM10that the agency would continue to regulate “particulate matter emissions” (25 tpy significant emissions rate) separately from “PM10emissions” (15 tpy significant emissions rate) for purposes of PSD applicability determinations.Id.at 31629.

In October 1997, following the promulgation of revised NAAQS for PM, which included the addition of NAAQS defined by the PM2.5indicator, the EPA issued a guidance memorandum titled “Interim Implementation for the New Source Review Requirements for PM2.5” (John Seitz, EPA, October 27, 1997).8 In this guidance, the EPA set forth what is referred to as the 1997 PM10Surrogate Policy, in which it was explained that sources could continue to use implementation of a PM10program as a surrogate for meeting the PM2.5NSR requirements until certain technical difficulties were resolved. Those technical difficulties included the lack of necessary tools to calculate PM2.5emissions and related precursors from individual stationary sources, the lack of adequate modeling techniques to project ambient PM2.5impacts, and the lack of PM2.5ambient monitoring sites. Accordingly, sources applying for PSD permits could rely on a demonstration of compliance with regard to the PM10requirements as an interim measure to satisfy the CAA requirements for meeting BACT and ambient air quality standards for the new PM2.5indicator. In 2005, following the promulgation of nonattainment area designations for PM2.5, the EPA issued guidance extending the 1997 PM10Surrogate Policy to the issuance of major source permits in PM2.5nonattainment areas. (“Implementation of New Source Review Requirements in PM2.5Nonattainment Areas,” April 5, 2005.)

In 2008, the EPA issued a final rule setting forth certain new requirements for PM2.5in its NSR and PSD regulations.See“Implementation of the New Source Review (NSR) Program for Particulate Matter Less Than 2.5 Micrometers (PM2.5),” 73 FR 28321 (May 16, 2008). Specifically, the EPA identified the major source threshold and significant emissions rate for PM2.5to reflect the indicator for the PM NAAQS promulgated in 1997.See40 CFR 51.166(b)(23)(i) and 52.21(b)(23)(i). The 2008 rule also announced the end of the use of the EPA's 1997 PM10Surrogate Policy under the federal PSD program at 40 CFR 52.21 and the nonattainment NSR program (including the Emission Offset Rule at 40 CFR part 51 Appendix S) upon the effective date of the final rule (July 15, 2008).See73 FR at 28340-28343. However, the rule provided a grandfathering provision, under the federal PSD program, for PSD permit applications that were determined to be complete before July 15, 2008, but had not yet received a PSD permit by that date, enabling those applications to continue to be reviewed under the 1997 PM10Surrogate Policy in lieu of the new PM2.5requirements. Later, in a final rule issued on May 18, 2011, which became effective on July 18, 2011, the EPA announced the repeal of that PSD grandfather provision.See76 FR 28646. The EPA continued to allow the use of the surrogate policy9 for PSD permits issued under SIP-approved PSD programs until May 16, 2011—the due date for revising SIPs to incorporate the new PM2.5PSD requirements promulgated in the 2008 rule.See76 FR at 28659 (declining to adopt a proposal to end the policy earlier).

Hence, PM is currently being regulated under the PSD program as three separate regulated pollutants. Those include PM10and PM2.5—both of which are indicators reflecting the way the NAAQS for PM are currently measured—and “particulate matter emissions,” which is a term used in the PSD regulations to signify the indicator of PM that is measured and regulated under various NSPS for PM (40 CFR part 60).10 All three of the indicators for PM are considered separately as regulated NSR pollutants subject to review under the PSD program, which means that proposed new and modified sources must treat each indicator of PM as a separate regulated pollutant for applicability determinations, and must then apply the PSD requirements, as appropriate, independently for each indicator of PM.

The 2008 rule also added a provision to the definition of “regulated NSR pollutant” in the PSD regulations and the Emission Offset Interpretative Ruling that required the inclusion of the condensable PM fraction for all three emissions-based indicators of PM. Accordingly, the determination of the potential emissions (for permit applicability determinations), and the setting of emissions limitations and in-stack pollutant measurements (for source compliance purposes) would involve the inclusion of the condensable fraction of PM for each of the three PM indicators. However, the EPA also announced in the 2008 rule that it would not require states to implement the requirement to account for condensable PM in establishing enforceable emissions limits for either PM10or PM2.5in permits until the completion of a transition period that would end on January 1, 2011.See73 FR at 28335. The EPA explained that the transition period would allow the agency time to assess concerns raised about uncertainties associated with the measurement of direct PM2.5,including condensable PM, and to conduct a notice and comment rulemaking to codify new or revised test methods.Thus, while the definition of “regulated NSR pollutant” required the inclusion of condensable PM in all three indicators for emissions of PM, the transition policy effectively delayed its implementation until January 1, 2011, unless an existing permit condition or SIP expressly required that the condensable PM fraction be included in the measurement of PM10emissions or PM2.5emissions. Also, states were required to submit to the EPA by May 16, 2011, SIP revisions addressing the new, revised definition of “regulated NSR pollutant” and other new PM2.5NSR requirements promulgated in the 2008 rule.

This final rule corrects an inadvertent error that established a general requirement under the definition of “regulated NSR pollutant” to account for the condensable PM fraction in applicability determinations and in establishing emissions limitations with regard to “particulate matter emissions.” The change that has been made affects three sets of NSR regulations, including the PSD regulations at 40 CFR 51.166 and 52.21, and the Emission Offset Interpretative Ruling at 40 CFR part 51 Appendix S.

It is important to note that the change being finalized under this action does not mean that we are totally exempting the inclusion of the condensable PM fraction as part of “particulate matter emissions.” As we described in the proposal, it may be necessary for PSD sources to count the condensable PM fraction with regard to “particulate matter emissions” in certain cases. The first case is for a source that is subject to an NSPS for which the condensable PM fraction must be included in the determination of compliance with the standard of performance for PM.11 The second case is where the applicable SIP already requires that the condensable PM fraction be included in the measurement of “particulate matter emissions.” Finally, the third case is where a source that emits “particulate matter emissions” is not subject to an NSPS, but is required by the reviewing authority to include the condensable PM fraction.See77 FR 15661. Accordingly, the EPA proposed to add new regulatory language at 40 CFR 51.166(b)(49)(ii) and 52.21(b)(50)(ii) to address these particular situations. (However, as pointed out by a commenter, we omitted language referencing an approved SIP (case 2) in the proposed regulatory language.)

In this final rule, based on public comments and additional considerations we have since identified, we are not adopting the proposed clarifying text in 40 CFR 51.166(b)(49)(ii) and 52.21(b)(50)(ii). In the proposal, the EPA explained that the revisions to these subsections were intended to assure that the condensable PM fraction of “particulate matter emissions” was counted in those cases where either the applicable NSPS requires that the condensable PM fraction be included in the determination of compliance with the standard of performance for PM or the applicable SIP already requires the inclusion of the condensable PM fraction. The EPA does not believe that the proposed revisions to subparagraph (ii) are necessary to include the condensable fraction of “particulate matter emissions” where it would be consistent with the applicable NSPS. Federal regulations at 40 CFR 51.100(pp) already define “particulate matter emissions” to be measured according to “the applicable reference methods, or an equivalent or alternative method, specified in this chapter, or by a test method specified in an approved State implementation plan.” We believe that definition is appropriately applied under both part 51 and part 52 of our regulations, even though part 52 does not presently contain such any definition of the term “particulate matter emissions,” and thus is not directly applicable. Thus, the condensable fraction of particulate matter emissions should be counted where appropriate, consistent with the part 51 definition.

In addition, public comments discussed later in this preamble raised questions about the proposed regulatory language that provided the option, when an NSPS was not applicable to a source, for a reviewing authority to determine on a case-by-case basis whether to include condensables in “particular matter emissions.” Comments have persuaded the EPA that this case-by-case approach is not needed and that if a source is not covered by an NSPS, the condensable PM fraction need not be included in “particulate matter emission” unless the state elects to implement such a requirement through its SIP.

Furthermore, we have recognized that the regulatory text that we proposed (which is not specific to “particulate matter emissions”) may have a broader effect on the definition and measurement of other regulated NSR pollutants that extends beyond the intentions outlined in the proposal. Accordingly, in order to allow for further evaluation of the possible implications of the proposed regulatory text, the EPA is not finalizing the proposed revisions to subparagraph (ii) at this point.

For these reasons, we are retaining the existing regulatory language in these subparts of the PSD regulations without change. However, we will continue to evaluate the need for the proposed changes to 40 CFR 51.166(b)(49)(ii) and 52.21(b)(50)(ii).

The proposed revisions to these paragraphs of the regulations were a secondary component of the proposed rule. The primary objective of our decision to revise the definition of “regulated NSR pollutant” is to correct an inadvertent error, and thus ensuring that we do not impose a new requirement on state/local agencies and the regulated community that has little if any effect on preventing significant air quality deterioration or on efforts to attain the primary and secondary PM NAAQS. That is, the PSD regulations will not require the inclusion of condensable PM in measurements of “particulate matter emissions,” except where either the applicable NSPS compliance test includes the condensable PM fraction or the applicable implementation plan requires the condensable PM fraction to be counted. Proposed new or modified stationary sources of PM typically will be subjected to the PSD requirements on the basis of their potential to emit significant amounts of PM10or PM2.5and will be required to install controls for their emissions of PM10and/or PM2.5, both of which must consider the condensable PM fraction.

The EPA provided a 60-day review and comment period on this rulemaking, which closed on May 15, 2012. A total of seven comment letters (six industry comment letters and one state agency comment letter) were received on the proposed amendment to correct the definition of “regulated NSR pollutant” by removing the unilateral requirement that condensable PM beincluded in measurements of “particulate matter emissions.” All of the commenters supported the EPA's proposed correction. Although the commenters supported the EPA's proposal with regard to the way that “particulate matter emissions” should be measured, some commenters also requested that the EPA make additional revisions or clarify certain aspects of the proposal in the final rule preamble and regulation language. The following subsections provide a summary of those requests.

Comment:A state agency commenter claims that the EPA's discussion of PM and the various indicators of PM is confusing in several ways. First, the state agency commenter notes that the EPA uses the general term “particulate matter” in the Integrated Science Assessment or ISA (previously called the Air Quality Criteria Document) to describe the criteria pollutant, while also using various indicators—TSP, PM10and PM2.5—based on particle size to establish NAAQS. The state then explained that “[w]e have always understood that each of the indicators used for PM included all applicable size distributions. Therefore, PMTSPincludes PM10and PM2.5and PM10includes PM2.5. Therefore, we found the preamble justification confusing when EPA refers to PM without reference to particle size.”

Response:Any reference to “PM” alone was intended to generally describe the generic pollutant without regard to the specific indicator being regulated by either the NAAQS or an emissions test method. The term “particulate matter” or “PM” is used generically to describe a broad range of particles. PM is a pollutant that is defined more specifically for regulatory purposes by the method in which it is collected, either under in-stack or ambient conditions. As explained earlier in this preamble, for NSR purposes, the EPA regulates three indicators of emissions of PM—“particulate matter emissions,” “PM10emissions” and “PM2.5emissions,” and two indicators of ambient PM—PM10and PM2.5. The term “total suspended particulate” or “TSP” was originally used by the EPA as an indicator of ambient concentrations of PM by which compliance with the original NAAQS for PM was measured. The term “particulate matter emissions” represents the indicator of emissions of PM that roughly corresponds with the ambient indicator “TSP.” Since the EPA revoked the TSP-based NAAQS, but continues to regulate “particulate matter emissions” as an emissions indicator associated with various NSPS for PM, “particulate matter emissions” is referred to as a non-criteria emissions indicator of PM. Accordingly, when we intend to refer to a specific regulated form of PM, the preamble uses the appropriate term—“particulate matter emissions,” “PM10emissions,” or “PM2.5emissions”—to establish the form of PM to be regulated for NSR applicability determinations and emissions setting purposes.

Comment:The same state agency commenter claims that “EPA proposes to regulate only the filterable portion of PM under Method 5 and retain PM10and PM2.5as indicators for the PM criteria pollutant.” The state then indicated that “[t]he definition of direct emissions for PM10and PM2.5includes both filterable and condensable PM emissions.” Thus, the state agency commenter claims that it was unclear how the EPA's final rule would affect permit applicability determinations, “since the state implementation plan (SIP) includes condensable emissions for total PM.” In conjunction with this uncertainty, the state commenter asks whether it is the EPA's intent “to limit the emissions for PM to only the fraction larger than PM10or PM2.5? Or, is EPA's intent to limit the emissions for PM to only the filterable fraction larger than PM10or PM2.5, but include the filterable and condensable emissions for PM10and PM2.5?” The state agency commenter requests that the EPA confirm its understanding that “no source impact analysis under PSD is required for PM because EPA considers PM—as PMTSP—to be a non-criteria pollutant indicator similar to sulfuric acid mist.” Thus, the state agency commenter understood that it would evaluate impacts under the state's minor NSR program, and only require a control technology review under PSD for the filterable fraction of particulate matter emissions.

Response:The final rule sets forth minimum PSD program requirements at 40 CFR 51.166 for an approvable SIP. Under those requirements, the measurement of “particulate matter emissions” generally includes only the filterable portion, unless the applicable NSPS or SIP requires that the condensable PM fraction be counted as well. Hence, as in the case of the state commenter, where a SIP requires the inclusion of condensable PM emissions in the measurement of “total PM” (the term that the state commenter appears to use in lieu of the EPA's term “particulate matter emissions”), the final rule does not preclude the state from requiring a source to determine its applicability, and enforceable emissions limits, for “particulate matter emissions” based on both the filterable and the condensable PM fractions. In any case, it was not the EPA's intent to limit the measurement of “particulate matter emissions” to the fraction (or filterable fraction) larger than PM10and PM2.5. Clearly, Method 5 measures particles that include the filterable PM10and PM2.5, but includes larger particles as well.

To address “particulate matter emissions,” we generally agree with the commenter's understanding that one of the primary concerns under the PSD program is to ensure that a new major stationary source that emits significant amounts of “particulate matter emissions” or a major modification that results in a significant net emissions increase of “particulate matter emissions” must undergo a control technology review for that emissions indicator of PM. However, there is a source impact assessment component in the PSD requirements that cannot simply be relegated to a minor NSR review requirement with regard to “particulate matter emissions.” While there are no air quality standards (NAAQS or increments) associated with “particulate matter emissions,” section 165(e)(3)(B) of the CAA requires an analysis of the ambient air quality, climate, meteorology, terrain, soils and vegetation, and visibility “for each pollutant regulated under this Act” that will be emitted by the proposed PSD project. This requirement, referred to as the “Additional Impact Analysis” at 40 CFR 51.166(o) and 40 CFR 52.21(o), could potentially require certain analyses with regard to “particulate matter emissions” as part of the PSD preconstruction review process.

Comment:The state agency commenter and an industry commenter both had recommendations for excluding “particulate matter emissions” from the major source applicability requirements. The state agency commenter's recommendation addresses major modifications, while the industry commenter recommends an exclusion from major source applicability altogether. The state agency commenter recommends that, because the concern with “particulate matter emissions” rests with NSPS applicability and control technology review, the EPA should “remove the major modification significant emission rate (25 tpy) for PM from the PSD major modification portion of the PSD rules, and rely on the state's minor NSR program to conduct the technology review under the NSPS program. * * *” The industry commenterbelieves that there is no reason to include “particulate matter emissions” in any major NSR applicability determinations, regardless of whether the term includes condensable PM or not, because (1) particles larger than 10 μm are not a significant driver of health effects; and (2) applicability thresholds for PM10and PM2.5are already in place and are generally more protective standards than the “particulate matter emissions” standards. Thus, the industry commenter recommends that the definition of “regulated NSR pollutant” be further modified to eliminate “particulate matter emissions” as a third indicator of PM for NSR purposes.

Response:With regard to the comments that “particulate matter emissions” should be excluded from major source applicability determinations, we note that the statutory PSD requirements mandate preconstruction review for each pollutant regulated under the CAA. For example, section 165(a)(4) requires best available control technology for “each pollutant subject to regulation under this Act. * * * ” Thus, the EPA's PSD regulations require that both criteria and non-criteria pollutants undergo PSD review under the applicable provisions. The term “particulate matter emissions” represents an indicator of emissions of PM, different from the current indicators of PM that define the PM NAAQS, that is regulated under various NSPS to determine compliance with regard to PM based on Test Method 5. For this reason, the EPA believes that it is necessary to consider “particulate matter emissions” to be a separate pollutant subject to regulation under the CAA and, thus, subject to PSD.See, e.g.,58 FR 31622 at 31629 (June 3, 1993).

Comment:Two industry commenters request that the EPA clarify that, consistent with prior rulemaking, it intends to limit the interpretation of existing limits—and associated compliance demonstration requirements—to filterable PM. The commenters point to several instances when the EPA stated the importance of implementing any new or revised emissions limits and test methods that account for condensable emissions in a prospective manner and clearly differentiated from existing NSR permit requirements in order to avoid confusion over a source's compliance status relative to existing PM emissions limits that did not include the condensable portion. (Commenters cited similar EPA statements made in two separateFederal Registernotices,i.e.,72 FR 20586 (April 25, 2007) at 20654 and 73 FR 28321 (May 16, 2008) at 28335.)

Response:The EPA's position with regard to the enforcement of permits, as explained in the preamble to the 2008 rule, was and continues to be that the provisions requiring the inclusion of the condensable PM fraction should be implemented prospectively and not retroactively after the January 1, 2011, default end date for the condensable PM transition period. In the preamble to the 2008 rule, we indicated with regard to the potential for retroactive enforcement that the EPA “will not revisit applicability determinations made in good faith prior to the end of the transition period, insofar as the quantity of condensable PM emissions are concerned, unless the applicable implementation plan clearly required consideration of condensable PM.”See73 FR at 28335. We also stated that “EPA will interpret PM emissions limitations in existing permits or permits issued during the transition period as not requiring quantification of condensable PM2.5for compliance purposes unless such a requirement was clearly specified in the permit conditions or the applicable implementation plan.” Id. 28335. Thus, we believe our position is clear that it is not our intention to apply the requirement to include the condensable PM fraction to applicability determinations and emissions limitations in permits that occurred prior to the January 1, 2011, end of the condensable PM transition period, unless such determinations and emissions limitations already address the condensable PM fraction. We do, however, intend to apply the requirement prospectively, such that when existing sources undergo modifications involving increases in PM10emissions and PM2.5emissions, the source will be required to consider the condensable fraction of PM10and PM2.5emissions in determining the applicability of PSD to the proposed project, and establishing enforceable emissions limits and compliance tests.

Comment:Several industry commenters support the EPA's proposal to define PM consistent with an applicable NSPS. One of the commenters recommends that the final regulation be amended to clarify that the definition and measurement of PM10and PM2.5, when used in the context of NSR and PSD reviews and analyses, also be tied to the underlying and governing NSPS requirements of the source being considered. Specifically, the commenter states that the final regulation should be amended to state that PM2.5and PM10should not include the condensable fraction of PM for any source where the applicable NSPS does not include the condensable fraction of PM in the definition or measurement of the PM standard.

Response:The main purpose of this rule is to remove the general requirement that “particulate matter emissions” include the condensable PM fraction and to make the measurement of “particulate matter emissions” generally consistent with the method prescribed by the applicable NSPS (except where a SIP would be more stringent). We do not agree with the recommendation by the commenters that the final PSD regulations should not require “PM2.5emissions” and “PM10emissions” to include the condensable PM fraction when the applicable NSPS does not include the condensable fraction. There may be more than one basis upon which a pollutant is regulated under the Clean Air Act, and hence defined as a regulated NSR pollutant. Both PM2.5and PM10are indicators of PM for which the EPA has promulgated health- and welfare-based NAAQS and thus each is a regulated NSR pollutant independent of the scope of any applicable NSPS for a source. Furthermore, it is important that a source seeking a PSD permit demonstrate that its proposed emissions increases will not cause or contribute to a violation of any NAAQS or increment, as is clearly required by the CAA and PSD regulations. As such, it is important to consider the condensable PM fraction in each case when setting enforceable emissions limits and compliance tests for PSD sources. The fact that a particular NSPS may not include the condensable fraction to determine compliance with a particular performance-based standard does not alter that fact. The standards of performance for new sources established under section 111 of the CAA reflect emission limits achievable at the time of promulgation with the best adequately demonstrated technological system of continuous emission reduction considering the cost of achieving such emission reductions and any non-air quality health, environmental and energy impacts. Thus, if the consideration of the condensable fraction of PM10and PM2.5emissions would not be indicative of the efficiency of a control device used by the industry at the time of promulgation, then it would not be necessary or appropriate to includemeasurement of the condensable PM fraction as part of the NSPS.12

On the other hand, SIPs, including the NSR permitting requirements, approved under section 110 of the Act, must provide for the attainment and maintenance of NAAQS designed to protect public health and welfare. If the enforceable limits in a PSD permit for PM10and PM2.5do not include the condensable PM fraction, simply because the applicable NSPS does not include it, the source's demonstration of compliance with the NAAQS and increments for PM10and PM2.5would be incomplete and subject to challenge. Similarly, for nonattainment NSR, it is important to consider the condensable PM fraction so that all PM10and PM2.5emissions increases can be considered for applicability determinations and for determining required offsets.

Thus, the final rule retains the general requirement to include the condensable fraction of PM10and PM2.5emissions in each case for purposes of NSR permitting under the EPA's regulations at 40 CFR 51.166(b)(49)(i), 40 CFR 52.21(b)(50)(i), 40 CFR 51.165(a)(1)(xxxvii), and 40 CFR part 51 Appendix S. Because of these provisions, the definition of “PM10emissions” in section 51.100(rr) of the EPA's regulations should not be construed to limit PM10emissions to only the fraction covered by an applicable test method in an NSPS or SIP. Section 51.100(rr) defines “PM10emissions” as measured under the chapter of the Code of Federal Regulations where this provision is located or an approved SIP. The more specific definitions of the term “regulated NSR pollutant” referenced above are part of the same chapter and thus applicable under the general definition of “PM10emissions” in section 51.100(rr). Therefore, the specific definitions in the NSR regulations control in this instance to require inclusion of the condensable fraction of PM10emissions in all cases under the NSR program.

In the preamble to the notice of proposed rulemaking (NPRM), we indicated that when a proposed source or modification emits a pollutant that is regulated under section 111 of the CAA, but the source itself is not subject to an NSPS for that pollutant, the reviewing authority will determine the applicable test method to be used to determine the source's compliance,e.g.,with regard to the possible inclusion of condensable PM in the measurement of “particulate matter emissions.”See77 FR at 15661 and 15663 (proposed regulatory text at 40 CFR 51.166(b)(49)(ii) providing that “[f]or sources not currently regulated by an applicable NSPS, measurement of such pollutant shall be determined by the reviewing authority”).

Comment:Two industry commenters opine that reviewing authorities should not be allowed to define PM as requiring consideration of condensable PM where the SIP does not already require it of a particular source category. One of the industry commenters suggest that the EPA replace the reference to the “reviewing authority” in proposed 40 CFR 51.166(b)(49)(ii) and 52.21(b)(50)(ii) with a reference to the “applicable state implementation plan.” The commenter states that the proposed language suggests that, for a non-NSPS source, a permitting authority could specify a measurement method that is inconsistent with the SIP.

Response:The EPA believes that states should follow the requirements set forth in their EPA-approved SIP and that it would be inappropriate to make decisions on individual permits that are inconsistent with the applicable SIP provisions. Thus, where a SIP provides that only the filterable fraction of “particulate matter emissions” be counted, individual sources should not be selectively required to count the condensable PM fraction as well. We do not believe, however, that explicit language needs to be included in the regulatory text as recommended by the commenters. As explained earlier in this preamble, we have decided to take no final action at this time with regard to revising subparagraph (ii) of the definition “regulated NSR pollutant.” Accordingly, this final action does not revise the PSD regulations to include the proposed language or any clarification of it. As explained earlier, the definition of “particulate matter emissions” at 40 CFR 51.100(pp) provides that states can rely on a test method contained in “an approved State implementation plan” to determine the measurement of that pollutant. In the absence of specific language in the definition of “regulated NSR pollutant,” this definition provides sufficient criteria for the reviewing authority to determine the applicable method under federal law for measuring “particulate matter emissions,” and should address the commenters' concerns about the reviewing authority using a method inconsistent with the SIP in circumstances where the reviewing authority is implementing the approved SIP.

Comment:One state agency commenter provides that the actual proposed rule language (40 CFR 51.166(b)(49)(ii) and 52.21(b)(50)(ii)) only accounts for two of three stated cases cited by the EPA where condensable PM could be included in the measurement of “particulate matter emissions,” and omits the EPA-cited case where the applicable SIP already requires that the condensable PM fraction be included in the measurement of “particulate matter emissions.” The commenter suggests that the EPA reconsider and specifically list the SIP requirement case (where condensable PM should still be counted) in the final rule language to avoid confusion in regulatory intent.

Response:The commenter is correct in identifying the omission of the cited regulatory language in the proposal. For reasons discussed above, we are not adopting the proposed revisions to sections 51.166(b)(49)(ii) and 52.21(b)(50)(ii) at this time. In light of the definition of “particulate matter emission” in section 51.100(pp), we do not believe that a direct reference to the SIP needs to be included in sections 51.166(b)(49)(ii) and 52.21(b)(50)(ii). Accordingly, it should be clear that a state may choose to adopt a requirement for a test method that includes the condensable PM fraction as part of “particulate matter emissions,” for PSD applicability and permit enforcement purposes. It should also be noted that such requirement in a state's SIP will not similarly affect PSD sources in other states or SIP jurisdictions.13

Comment:Two industry commenters express concerns that the discussion in the March 16, 2012, proposal preamble regarding the history of the EPA's regulation of PM under the NSR program, failed to include a description of several key policy decisions, including the 1997 PM10SurrogatePolicy, the Grandfather Policy for PM2.5(for pending permits under the federal PSD program) and the condensable PM Transition Policy. These commenters indicate that there are continued concerns regarding the EPA's PM regulations that have created uncertainty and hardship for the regulated community, and specifically requests that the EPA include a discussion of these policies in the final rule preamble for accuracy purposes.

Response:This preamble includes a limited discussion about each of these special policies for implementing the PM program in section III.C of this preamble (New Source Review Program for PM). In addition, we have included references to earlier actions that provide greater details of the respective policies. Thus, we do not believe that it is necessary to provide more lengthy descriptions of the individual policies herein.

Several commenters raise concerns of either a policy or technical nature unrelated to the actions associated with this final rule. For example, two industry commenters state that EPA Method 201A cannot be used to accurately measure filterable PM10and PM2.5from emissions units that use wet controls. Another commenter recommends that the EPA continue work toward development of a methodology known as the air dilution test methodology. A commenter recommends that the EPA accelerate its progress toward promulgating complete and appropriate modeling and monitoring methods necessary to provide the required technical support for effective and equitable implementation of PM2.5major NSR permitting. Finally, one commenter requests that the EPA review guidance documents to the states to assure that the EPA is giving them correct and clear direction regarding the need to test certified stationary engines. The details of these comments can be reviewed in the docket where all of the individual sets of comments received for this rulemaking have been posted. The EPA believes that these comments generally pertain to broader PM2.5issues but are not relevant to this limited action to revise the definition of “regulated NSR pollutant” as it applies to condensable PM emissions. As such, the issues described above are more appropriately addressed in forums other than this final rule.

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

This action does not impose an information collection burden under the provisions of thePaperwork Reduction Act,44 U.S.C. 3501et seq.Burden is defined at 5 CFR 1320.3(b). This final action removes an unintended requirement to include condensable PM when quantifying “particulate matter emissions” from proposed new major stationary sources and major modifications subject to the PSD program. The change will eliminate an unintended burden.

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 this rule on small entities, “small entity” is defined as: (1) A small business as defined by the Small Business Administration's 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 this final rule on small entities, which removes an unintended requirement to include condensable PM when quantifying “particulate matter emissions” from proposed new major stationary sources and major modifications, I certify that this action will not have a significant economic impact on a substantial number of small entities. This final rule will not impose any requirements on small entities because small entities are not subject to the requirements of this rule.

This final action contains no federal mandates under the provisions of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531-1538 for state, local or tribal governments or the private sector. The action does not impose any enforceable duty on any state, local or tribal governments or the private sector. This action removes an unintended requirement to include condensable PM when quantifying “particulate matter emissions” from proposed new major stationary sources and major modifications. Thus, this action is not subject to the requirements of sections 202 or 205 of UMRA.

This final action is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments. As noted above, this final action removes an unintended requirement to include condensable PM when quantifying “particulate matter emissions” from proposed new major stationary sources and major modifications.

This final action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This final action removes the unintended requirement to include condensable PM when quantifying “particulate matter emissions” from proposed new major stationary sources and major modifications. The requirement being removed was inadvertently included in the 2008 rule for implementation of the PM2.5NSR program. Thus, Executive Order 13132 does not apply to this rule. Nevertheless, in the spirit of Executive Order 13132, and consistent with EPA policy to promote communications between EPA and state and local governments, EPA specifically solicited comment on the proposed action from state and local officials.

This action does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). This final action removes theunintended requirement to include condensable PM when quantifying “particulate matter emissions” from proposed new major stationary sources and major modification. The removed requirement was inadvertently included in the 2008 rule for implementation of the PM2.5NSR program.

The Act provides for states to develop plans to regulate emissions of air pollutants within their jurisdictions. The Tribal Air Rule (TAR) under the Act gives tribes the opportunity to develop and implement Act programs to attain and maintain the PM2.5NAAQS, but leaves to the discretion of the tribes the decision of whether to develop these programs and which programs, or appropriate elements of a program, they will adopt. Thus, Executive Order 13175 does not apply to this action.

This final action is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997) because it is not economically significant as defined in Executive Order 12866, and because the agency does not believe the environmental health or safety risks addressed by this action to eliminate an unintended requirement present a disproportionate risk to children. The removal of this requirement will not affect one of the basic requirements of the PSD program; that new and modified major sources must demonstrate that any new emissions do not cause or contribute to air quality in violation of the NAAQS.

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

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, 12(d) (15 U.S.C. 272 note) directs the EPA to use voluntary consensus standards 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. The NTTAA directs the EPA to provide Congress, through OMB, explanations when the agency decides not to use available and applicable voluntary consensus standards.

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

Executive Order 12898 (59 FR 7629, Feb. 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.

The EPA has determined that this final rule action to remove an inadvertent error that was introduced in a 2008 rulemaking will not have adverse human health or environmental effects on minority or low-income populations because it does not appreciably affect the level of protection provided to human health or the environment.

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. The EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in 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). This rule will be effective on December 24, 2012.

Under CAA section 307(b)(1), judicial review of this final rule is available only by filing a petition for review in the United States Court of Appeals for the District of Columbia Circuit by December 24, 2012. Under CAA section 307(d)(7)(B), only an objection to this final rule that was raised with reasonable specificity during the period for public comment (including any public hearing) can be raised during judicial review. This section also provides a mechanism for the EPA to convene a proceeding for reconsideration “[i]f the person raising an objection can demonstrate to the Administrator that it was impracticable to raise such objection within [the period for public comment] or if the grounds for such objection arose after the period for public comment (but within the time specified for judicial review) and if such objection is of central relevance to the outcome of the rule[.]” Any person seeking to make such a demonstration to us should submit a Petition for Reconsideration to the Office of the Administrator, Environmental Protection Agency, Room 3000, Ariel Rios Building, 1200 Pennsylvania Ave. NW., Washington, DC 20004, with a copy to the person listed in the precedingFOR FURTHER INFORMATION CONTACTsection, and the Associate General Counsel for the Air and Radiation Law Office, Office of General Counsel (Mail Code 2344A), Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20004. Note, under CAA section 307(b)(2), the requirements established by this final rule may not be challenged separately in any civil or criminal proceedings brought by the EPA to enforce these requirements.

The statutory authority for this final action is provided by sections 101, 160, 163, 165, 166, 301 and 307(d) of the Act as amended (42 U.S.C. 7401, 7470, 7473, 7475, 7476, 7601 and 7607(d)).

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

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

On April 30, 2004, EPA promulgated regulations (69 FR 23858) that included requirements for implementing Major NSR for the 1997 eight-hour ozone NAAQS. On May 25, 2005, the TCEQ adopted SIP revisions to implement these requirements and submitted them to EPA on June 10, 2005. The EPA disapproved these regulations on September 15, 2010 (75 FR 56424) because the State's regulations did not meet the requirements of the Act, Federal regulations, and were not consistent with EPA policy. On March 11, 2011, TCEQ resubmitted the revisions adopted May 25, 2005, and submitted further revisions, adopted February 9, 2011, to address EPA's September 15, 2010, disapproval. Sections I.B and I.D of this preamble include further details on TCEQ's submission.

On December 31, 2002 (67 FR 80186), EPA promulgated its NSR Reform Program. On November 7, 2003 (68 FR 63021), EPA promulgated a final action on its reconsideration of the December 31, 2002, NSR Reform Program's rules. On January 11, 2006, TCEQ adopted its regulations for NSR Reform and on February 1, 2006, submitted these regulations to EPA for SIP approval. EPA disapproved these regulations on September 15, 2010 (75 FR 56424) because the State's regulations did not meet the requirements of the Act, Federal regulations, and were not consistent with EPA policy. On March 11, 2011, TCEQ resubmitted the revisions adopted January 11, 2006, and submitted further revisions, adopted February 9, 2011, to address the grounds for EPA's September 15, 2010, disapproval. On February 22, 2012, TCEQ proposed additional revisions to these regulations and requested that EPA parallel process these revisions with the revisions submitted March 11, 2011, based upon the revisions that TCEQ proposed February 22, 2012. The TCEQ adopted these proposed revisions on July 25, 2012, and submitted them to EPA on August, 29, 2012. Finally, TCEQ submitted a letter dated May 3, 2012, toEPA to meet its Federal NSR Reform Program demonstration requirements that provides its interpretation of certain NSR Reform rules to further clarify and ensure implementation consistent with the Federal NSR Reform Program. Sections I.B and I.D of this preamble include further details of what TCEQ submitted.

On March 11, 2011, the TCEQ submitted the following revisions to the Texas SIP:

• New Source Review for Eight-Hour Ozone Standard; Rule Project Number 2005-009-116-AI, adopted May 25, 2005. These revisions were originally submitted on June 10, 2005. EPA disapproved these SIP revisions on September 15, 2010, 75 FR 56424. The revisions submitted March 11, 2011, included the resubmittal of the 2005 revisions in order to reinstate before us for a new action, the rules that we disapproved in 2010.

• Federal New Source Review Permit Rules Reform; Rule Project Number 2006-010-116-PR, adopted January 11, 2006. These revisions were originally submitted on February 1, 2006. EPA disapproved these SIP revisions on September 15, 2010, 75 FR 56424. The revisions submitted March 11, 2011, included the resubmittal of the 2006 revisions in order to reinstate before us for a new action, the rules that we disapproved in 2010.

• New Source One-Hour Ozone Major Source Thresholds and Emission Offsets; Rule Project Number 2008-030-116-PR, were adopted February 9, 2011, and submitted March 11, 2011.

• New Source Review (NSR) Reform; Rule Project Number 2010-008-116-PR, were adopted February 9, 2011, and submitted March 11, 2011.

• NSR Reform Revisions; Rule Project Number 2012-015-116-AI, were adopted July 25, 2012, and submitted August 29, 2012; which include revisions proposed February 22, 2012, for parallel processing.

• A letter dated May 3, 2012, which requested that EPA parallel process the revisions proposed February 22, 2012, and further included a demonstration showing that certain of its submitted rules are at least as stringent as the Federal NSR Reform Program.

Additional information on the submitted SIP revisions is included in the proposed rulemaking for this final rule and in the Technical Support Document (TSD) which is located in the docket.1

On June 20, 2012, EPA proposed to approve these revisions (77 FR 36964). We established a public comment period and requested that interested parties submit comments on the proposal for a period of 30 days (until July 20, 2012). We received comments from one industry group and three citizens. We address these comments in section II of this preamble.

As discussed above, we reviewed the rules that TCEQ submitted in two submittals dated March 11, 2011, and August 29, 2012. We proposed to approve the latter submittal, as proposed by TCEQ on February 22, 2012, using our parallel processing authority. TCEQ adopted the latter submittal on July 25, 2012, without change from its proposal.

In summary, we are approving the following revisions that TCEQ submitted to ensure that the rules are consistent with Federal requirements and approvable by EPA:

TCEQ also provided a clarification letter to EPA on May 3, 2012, which includes:

• A written demonstration for how the definition of “plantwide applicability limit” provides that emission limits in its PAL Permits meets the Federal requirements for being enforceable as a practical matter.

• A written demonstration that monitoring data must meet minimum legal requirements for admissibility in a judicial proceeding to enforce the PAL.

• A written clarification that the Texas rules provides for the PAL limit to be enforced on a 12-month rolling average, and thatfor compliance purposes,the emission calculations must include emissions from startups, shutdowns, and malfunctions, including outlining that their rules require regulated entities, regardless of whether they have a PAL permit, to record (and in some cases report) emissions events, which include unscheduled maintenance, startup, and shutdown (MSS) activity emissions, with additional clarification that emissions from malfunctions are unauthorized emissions as defined in 30 TAC 101.1(107); therefore, they are unauthorized (non-compliant) emissions.

TCEQ also addressed EPA's concerns about several non-PAL aspects of the major NSR SIP requirements including:

• Explicitly limiting the definition of “Facility” to an emissions unit by adding the clarification language that the use of “facility” by adding “or emissions unit” to the terms “facility” or “facilities.”

• Revising the definitions of “baseline emissions” and “projected actual emissions” to require the inclusion of emissions resulting from startups and shutdowns.

• Revisions to clarify that startup and shutdown emissions reported under Chapter 101 be included in the calculation of baseline actual emissions but only to the extent that they have been authorized or are being authorized to ensure thatnon-compliant emissions are excludedfrom baseline actual emissions.

• Amending the definition of “projected actual emissions” by replacing the phrase “unauthorized emissions from startup and shutdown activities” with “emissions from planned maintenance, startup, or shutdown activities,'' which were historically unauthorized and subject to reporting under Chapter 101 to ensure that this definition is compatible with the definition of “baseline actual emissions.”

We are taking final action to approve these revisions for the reasons discussed in the EPA's June 20, 2012, proposal, and in our response to comments discussed in section II. Please refer to the proposal and the TSD for the additional information on the basis for this final action.

We received comments from the Texas Industry Project (TIP) and from three citizens. These comments and our responses are summarized below.

Comment.We received a comment from TIP requesting that EPA confirm that its interpretation of proposed revisions to 30 TAC 116.186(b)(9) and associated Federal PAL provisions that PAL permits will not be invalidated because of monitoring malfunctions and other downtime. The commenter stated that each of these provisions states that “[f]ailure to use a monitoring system that meets the requirements of this section renders the PAL permit invalid” as stated at 37Tex. Reg.1661, 1674 (March 9, 2012); and in the Federal rules at 40 CFR 51.165(f)(12)(i)(D) and 51.166(w)(12)(i)(d). This would be consistent with TCEQ's interpretation, which is: “[T]he phrase `failure to use' in EPA's rule means failure to install or operate the prescribed monitoring device or system to operate under a PAL permit, rather than an inadvertent malfunction or maintenance downtime of the monitoring device or system.” See 37Tex. Reg.at 1663. This also appears to be consistent with EPA's interpretation. See 75 FR 56424, at 56438 (September 15, 2010) (indicating EPA's intent to require State PAL programs to provide for “invalidating the PAL if there is no compliance with the required monitoring”). This interpretation is also consistent with other PAL provisions that acknowledge the possibility of monitoring malfunctions or other downtime. For example, the “monitoring system” can rely on emissions factors. See 40 CFR 51.165(f)(12)(ii)(D) and 51.166(w)(12)(ii)(d); and 30 TAC 116.186(c)(3)(D). The rules also require recording and reporting maximum emissions “during any period of time that there is no monitoring data,” unless another method is specified in the permit. See 40 CFR 51.165(f)(12)(vii) and 51.166(w)(12)(vii); and 30 TAC 116.186(b)(8). As another example, the rules call for periodic reporting of “deviations or monitoring malfunctions.” See 40 CFR 51.165(f)(14)(i)(E) and 51.166(w)(14)(i)(e); and 30 TAC 116.186(b)(4)(C)(v).

Response.EPA confirms that the requirements in 30 TAC 116.116(b)(9) do not require PAL permits to be invalidated because of monitoring malfunctions or maintenance performed in accordance with applicable Federal regulations and with appropriate backup and provision for substitute data. EPA's December 31, 2002, NSR Reform rulemaking provides:

TCEQ outlined in its July 25, 2012, adoption, the following:

Comment.TIP commented that it supports EPA's proposed approval of each applicable Texas regulation because these regulations comply with the Federal Clean Air Act and are important components of Texas's stationary source permitting program. TIP further agrees with EPA's analysis that the Texas PAL rules are environmentally protective because they “will generally be established at a level that is lower than the allowable emissions established in the pre-existing permit” and “create[] [an] incentive for an owner or operator to create room for growth.” See 77 FR 36964, at 36979.

Response.EPA acknowledges the above comment.

EPA received three comments from citizens on this proposed rule. Each of these comments relates to the proposedNew Source Performance Standard (NSPS) for Greenhouse Gases which is outside the scope of this action.

Under section 110(k)(3) and parts C and D of the Act and for the reasons stated above, EPA approves the following revisions to the Texas SIP:

• Revisions to 30 TAC 116.12—Nonattainment and Prevention of Significant Deterioration Review Definitions—adopted May 25, 2005, submitted June 10, 2005, and resubmitted March 11, 2011; revisions adopted January 11, 2006, submitted February 1, 2006, and resubmitted March 11, 2011; two revisions adopted February 9, 2011, submitted March 11, 2011; revisions adopted July 25, 2012, and submitted August 29, 2012; and the letter from TCEQ to EPA dated May 3, 2012, which clarifies TCEQ's interpretation of 30 TAC 116.12(22).

• Revisions to 30 TAC 116.115—General and Special Conditions—adopted February 9, 2011, and submitted March 11, 2011.

• New 30 TAC 116.127—Actual to Projected Actual and Emission Exclusion Test for Emissions—adopted January 11, 2006, submitted February 1, 2006 (as 30 TAC 116.121) and resubmitted March 11, 2011; and revisions adopted February 9, 2011, and submitted March 11, 2011, which redesignated this section to 30 TAC 116.127.

• Revisions to 30 TAC 116.150—New Major Source or Major Modification in Ozone Nonattainment Area—adopted May 25, 2005, submitted June 10, 2005, and resubmitted March 11, 2011; revisions adopted January 11, 2006, submitted February 1, 2006, and resubmitted March 11, 2011; and revisions adopted July 25, 2012, and submitted August 29, 2012.

• Revisions to 30 TAC 116.151—New Major Source or Major Modification in Nonattainment Areas Other Than Ozone—adopted January 11, 2006, submitted February 1, 2006, and resubmitted March 11, 2011 (without further revision); and revisions adopted July 25, 2012, and submitted August 29, 2012.

• New 30 TAC 116.180—Applicability—adopted January 11, 2006, submitted February 1, 2006, and resubmitted March 11, 2011; revisions adopted February 9, 2011, and submitted March 11, 2011; and revisions adopted July 25, 2012, and submitted August 29, 2012.

• New 30 TAC 116.182—Plant-Wide Applicability Permit—adopted January 11, 2006, submitted February 1, 2006, and resubmitted March 11, 2011; and revisions adopted February 9, 2011, and submitted March 11, 2011.

• New 30 TAC 116.184—Application Review Schedule—adopted January 11, 2006, submitted February 1, 2006, and resubmitted March 11, 2011 (without further revision).

• New 30 TAC 116.186—General and Specific Conditions—adopted January 11, 2006, submitted February 1, 2006, and resubmitted March 11, 2011; revisions adopted February 9, 2011, and submitted March 11, 2011; revisions adopted July 25, 2012, and submitted August 29, 2012; and the letter from TCEQ to EPA dated May 3, 2012, which clarifies TCEQ's interpretation of 30 TAC 116.186.

• New 30 TAC 116.188—Plant-Wide Applicability Limit—adopted January 11, 2006, submitted February 1, 2006, and resubmitted March 11, 2011; and revisions adopted February 9, 2011, and submitted March 11, 2011.

• New 30 TAC 116.190—Federal Nonattainment and Prevention of Significant Deterioration Review—adopted January 11, 2006, submitted February 1, 2006, and resubmitted March 11, 2011; and revisions adopted February 9, 2011, and submitted March 11, 2011.

• New 30 TAC 116.192—Amendments and Alterations—adopted January 11, 2006, submitted February 1, 2006, and resubmitted March 11, 2011; and revisions adopted February 9, 2011, and submitted March 11, 2011.

• New 30 TAC 116.196—Renewal of a Plant-Wide Applicability Limit Permit—adopted January 11, 2006, submitted February 1, 2006; and resubmitted March 11, 2011 (without further revision).

• New 30 TAC 116.198—Expiration or Voidance—adopted January 11, 2006, submitted February 1, 2006, and resubmitted March 11, 2011 (without further revision).

EPA is also amending the second table under 40 CFR 52.2270(e) entitled “EPA Approved Nonregulatory and Quasi-Regulatory Measures in the SIP” to include TCEQ's May 3, 2012, “Letter of explanation and interpretation of the Texas SIP for NSR Reform.”

Finally, EPA is amending 40 CFR 52.2273(d) to remove the references to rules that were disapproved September 15, 2010, and which are now approved in this action.

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 that they meet the criteria of the Clean Air Act. Accordingly, this notice merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this final action:

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

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

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

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

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

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

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

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

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

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and 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 mustsubmit 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 in 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 December 24, 2012.

Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for 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:

Table of Contents I. Background II. This Action III. EPA's Response to Comments IV. Final Action V. Statutory and Executive Order Reviews I. Background

Upon promulgation of a new or revised NAAQS, sections 110(a)(1) and (2) of the CAA require states to address basic SIP requirements, including emissions inventories, monitoring, and modeling to assure attainment and maintenance for that new NAAQS. On July 18, 1997 (62 FR 36852), EPA promulgated a new annual PM2.5NAAQS and on October 17, 2006 (71 FR 61144), EPA promulgated a new 24-hour NAAQS. On June 15, 2012, EPA proposed to approve Georgia's July 23, 2008, and October 21, 2009, infrastructure submissions for the 1997 annual and 2006 24-hour PM2.5NAAQS.See77 FR 35909. A summary of the background for today's final action is provided below. See EPA's June 15, 2012, proposed rulemaking at 77 FR 35909 for more detail.

Section 110(a) of the CAA requires states to submit SIPs to provide for the implementation, maintenance, and enforcement of a new or revised NAAQS within three years following the promulgation of such NAAQS, or within such shorter period as EPA may prescribe. Section 110(a) imposes the obligation upon states to make a SIPsubmission to EPA for a new or revised NAAQS, but the contents of that submission may vary depending upon the facts and circumstances. The data and analytical tools available at the time the state develops and submits the SIP for a new or revised NAAQS affects the content of the submission. The contents of such SIP submissions may also vary depending upon what provisions the state's existing SIP already contains. In the case of the 1997 annual and 2006 24-hour PM2.5NAAQS, states typically have met the basic program elements required in section 110(a)(2) through earlier SIP submissions in connection with previous PM NAAQS.

More specifically, section 110(a)(1) provides the procedural and timing requirements for SIPs. Section 110(a)(2) lists specific elements that states must meet for “infrastructure” SIP requirements related to a newly established or revised NAAQS. As already mentioned, these requirements include SIP infrastructure elements such as modeling, monitoring, and emissions inventories that are designed to assure attainment and maintenance of the NAAQS. The requirements that are the subject of this final rulemaking are listed below1 and in EPA's October 2, 2007, memorandum entitled “Guidance on SIP Elements Required Under Section 110(a)(1) and (2) for the 1997 8-Hour Ozone and PM2.5National Ambient Air Quality Standards.”

• 110(a)(2)(A): Emission limits and other control measures.

• 110(a)(2)(B): Ambient air quality monitoring/data system.

• 110(a)(2)(C): Program for enforcement of control measures.2

• 110(a)(2)(D): Interstate transport.3

• 110(a)(2)(E): Adequate resources.

• 110(a)(2)(F): Stationary source monitoring system.

• 110(a)(2)(G): Emergency power.

• 110(a)(2)(H): Future SIP revisions.

• 110(a)(2)(I): Areas designated nonattainment and meet the applicable requirements of part D.4

• 110(a)(2)(J): Consultation with government officials; public notification; and prevention of significant deterioration (PSD) and visibility protection.

• 110(a)(2)(K): Air quality modeling/data.

• 110(a)(2)(L): Permitting fees.

• 110(a)(2)(M): Consultation/participation by affected local entities.

EPA is taking final action to approve Georgia's infrastructure submissions as demonstrating that the State meets the applicable requirements of sections 110(a)(1) and (2) of the CAA for the 1997 annual and 2006 24-hour PM2.5NAAQS, except for the elements noted above on which EPA is not taking action. Section 110(a) of the CAA requires that each state adopt and submit a SIP for the implementation, maintenance, and enforcement of each NAAQS promulgated by the EPA, which is commonly referred to as an “infrastructure” SIP. EPD certified that the Georgia SIP contains provisions that ensure the 1997 annual and 2006 24-hour PM2.5NAAQS are implemented, enforced, and maintained in Georgia. Additionally, EPA is now clarifying an inadvertent error made in the proposed rule.

In the proposal, EPA inadvertently stated that Georgia had met each of its 105 grant commitments for fiscal year 2011. Georgia did not complete one of its 63 grant commitments from fiscal year 2011—its commitment to develop and submit a National Emissions Inventory Quality Assurance Project Plan (QAPP). Nonetheless, as was explained in the proposed rule, EPA has determined that Georgia has provided necessary assurances that its SIP contains the adequate infrastructure requirements to address these types of issues as they arise, consistent with the obligation in CAA Section 110(a)(2)(E)(i). Further, EPA has a process to ensure such issues are addressed and EPA is currently working with Georgia to ensure that the State meets all of its commitments, including the outstanding 2011 grant commitment.

EPA received adverse comments on its June 15, 2012, proposed approval of portions of Georgia's July 23, 2008, and on October 21, 2009, infrastructure submissions (hereafter “Georgia's infrastructure submissions”). Today's final action includes a response to adverse comments.

EPA received one set of comments on the June 15, 2012, proposed rulemaking to approve Georgia's infrastructure submissions as meeting the requirements of sections 110(a)(1) and (2) of the CAA for the 1997 annual and 2006 24-hour PM2.5NAAQS. A summary of the comments and EPA's response are provided below.

Comment 1:The Commenter contends that Georgia's SIP does not contain the requisite enforceable limits for PM2.5, and therefore, EPA cannot approve the State's infrastructure SIP submission with respect to section 110(a)(2)(A). The Commenter cites two primary reasons supporting this contention.

First, the Commenter contends that Georgia's SIP does not currently provide adequate enforceable limitations for PM2.5emissions from existing stationary sources. In support of this proposition, the Commenter notes a number of existing Georgia SIP provisions that address emissions of particulate matter generally or PM10,but not PM2.5.The Commenter further asserts that in the title V context, the State has concluded that at the time of the evaluation of the permit application, the source did not need to address PM2.5emissions. Similarly, the Commenter states that existing stationary sources permitted prior to January 1, 2011, do not adequately control condensable PM2.5,and implies that this should be addressed in the context of acting on the State's infrastructure submittal. Finally, the Commenter contends that even in the case of a source permitted after January 1, 2011, the State has not required specific limitations on condensable PM and thus fails to control direct PM2.5emissions at that source in a way that is relevant to action on the State's infrastructure SIP. The Commenter appears to be suggesting that this example evinces a SIP deficiency germane to EPA's determination respecting the sufficiency of the State's infrastructure SIP for purposes of section 110(a)(2)(A).

Second, the Commenter argues that EPA should not approve the State's infrastructure submittal because it contained references to several regional cap and trade rules as measures that would impose emissions limitations on PM2.5precursors within the State. The Commenter raised three objections: (1) The Commenter argued that the Nitrogen Oxide (NOX) SIP Call, CleanAir Interstate Rule (CAIR), and Cross State Air Pollution Rule (CSAPR) cannot be considered enforceable emissions limitations because of their status; (2) the Commenter argued that cap and trade programs cannot be considered permanent and enforceable because they allow sources to purchase allowances or used banked credits rather than reducing emissions; and (3) the Commenter argued that the D.C. Circuit has held that regional cap and trade programs cannot “satisfy an area-specific statutory mandate.”5

Response 1:EPA disagrees with the Commenter's contention that the State's infrastructure SIP submission is not approvable with respect to section 110(a)(2)(A) because it does not contain adequate enforceable emissions limitations on PM2.5and PM2.5precursors.

With respect to the Commenter's specific concerns about the adequacy of emissions limitations at stationary sources, the Commenter is incorrect with respect both to the scope of what is germane to an action on an infrastructure SIP and with respect to when certain regulatory requirements for stationary sources became operative. This comment pertains to EPA's action on an infrastructure SIP, which must meet the general structural requirements described in section 110(a)(2)(A). Section 110(a)(2)(A) of the CAA states that each implementation plan submitted by a State under the Act shall be adopted by the State after reasonable notice and public hearing. Each such plan shall include enforceable emission limitations and other control measures, means, or techniques (including economic incentives such as fees, marketable permits, and auctions of emissions rights), as well as schedules and timetables for compliance, as may be necessary or appropriate to meet the applicable requirements of the Act.

The Commenter seems to believe that in the context of an infrastructure SIP submission, section 110(a)(2)(A) explicitly requires that a State adopt all possible new enforceable emission limits, control measures and other means developed specifically for attaining and maintaining the new NAAQS within the State. EPA does not believe that this is a reasonable interpretation of the provision with respect to infrastructure SIP submissions. Rather, EPA believes that different requirements for SIPs become due at different times depending on the precise applicable requirements in the CAA. For example, some State regulations are required pursuant to CAA section 172(b), as part of an attainment demonstration for areas designated as nonattainment for the standard. The timing of such an attainment demonstration would be after promulgation of a NAAQS, after completion of designations, and after the development of the applicable nonattainment plans. The Commenter seems to believe that EPA should disapprove a State's infrastructure SIP if the State has not already developed all the substantive emissions limitations that may ultimately be required for all purposes, such as attainment and maintenance of the NAAQS as part of an attainment plan for a designated nonattainment area.

In particular, the Commenter focuses upon the adequacy of emissions limitations for specific stationary sources in Georgia that arose in permit actions—Plant Bowen's title V Permit and Plant Washington's PSD permit—to support its argument that Georgia's SIP does not require adequate enforceable emissions limitations for PM2.5for existing sources. As described above, for purposes of approving Georgia's infrastructure submittal as it relates to section 110(a)(2)(A), EPA's evaluation is limited to whether the State has adopted, as necessary and appropriate, enforceable emission limitations and other control measures to meet applicable structural requirements of the CAA. Today's action does not involve case specific evaluations of specific permits. In this action, EPA is not evaluating whether or not the State has correctly imposed emissions limitations on each stationary source for purposes of meeting requirements for PSD permits or embodied in title V permits. Moreover, EPA notes that the Commenter is also incorrect with respect to its allegations concerning the appropriate treatment of condensables in emissions limits for stationary sources. In the implementation regulations for the PM2.5NAAQS, EPA separately authorized States to elect not to address condensable emissions in their air pollution programs until January 1, 2011.6 Thus, the State was not required to address condensables in stationary source permits identified in the comment. For example, the Commenter is incorrect with respect to the PSD permit for Plant Washington because the permit for this source was issued on April 8, 2010, prior to January 1, 2011, and thus the permit was not required to address condensables.7 The State's compliance with what EPA authorized with respect to condensables is not grounds for disapproval of the State's infrastructure SIP submission.

For purposes of section 110(a)(2)(A), and for purposes of an infrastructure SIP submission, EPA believes that the proper inquiry is whether the State has met the basic structural SIP requirements appropriate at the point in time EPA is acting upon it. As stated in EPA's proposed approval for this rule, to meet section 110(a)(2)(A), Georgia submitted a list of existing emission reduction measures in the SIP that control PM2.5emissions. These include all the required measures previously adopted for the control of PM2.5and PM2.5precursor pollutants. The Commenter identifies a number of ways in which it believes that Georgia's SIP fails to meet such current requirements, but EPA concludes that the Commenter has not identified any deficiency that justifies disapproval of the infrastructure SIP submission in this action.

With respect to the Commenter's concern about the identification of cap and trade programs within the State's infrastructure SIP submission, the Commenter is also incorrect with respect to the scope of what is germane to section 110(a)(2)(A), and with respect to its assertions about such cap and trade programs in general.

The Commenter asserts that emissions limitations of sulfur dioxide and NOXfrom the NOXSIP Call, CAIR, and CSAPR are not “enforceable emissions limitations” because of the legal status of each of those rules. The Commenter asserts that the NOXSIP call “effectively no longer exists,” that CAIR “has been remanded and effectively no longer exists,” and that at the time of the comment, CSAPR had been stayed and was subject to litigation. The Commenter also asserts that reductions from such cap and trade rules cannot beconsidered permanent and enforceable merely because they allow for the purchase and transfer of allowances or the use of banked credits. Finally the Commenter claims that the D.C. Circuit Court of Appeals recently held that EPA cannot allow use of cap and trade programs to satisfy an area-specific statutory mandate.

EPA disagrees with the Commenter's position that emissions reductions associated with the NOXSIP Call cannot be considered to be permanent and enforceable. The Commenter's first argument—that the reductions are not permanent and enforceable because the NOXSIP Call has been replaced—is based on a misunderstanding of the relationship between CAIR and the NOXSIP Call. While the CAIR ozone-season NOXtrading program replaced the ozone-season NOXtrading program developed in the NOXSIP Call (70 FR 25290), nothing in CAIR relieved states of their NOXSIP Call obligations. In fact, in the preamble to CAIR, EPA emphasized that the states and certain units covered by the NOXSIP Call but not CAIR must still satisfy the requirements of the NOXSIP Call. EPA provided guidance regarding how such states could meet these obligations.8 In no way did EPA suggest that states could disregard their NOXSIP Call obligations.See70 FR 25290. For NOXSIP Call states, the CAIR NOXozone program provides a way to continue to meet the NOXSIP Call obligations for electric generating units (EGUs) and large non-electric generating units (non-EGUs). In addition, the antibacksliding provisions of 40 CFR 51.905(f) specifically provide that the provisions of the NOXSIP Call, including statewide NOXemission budgets, continue to apply. In sum, the requirements of the NOXSIP Call remain in force. They are permanent and enforceable as are state regulations developed to implement the requirements of the NOXSIP Call. Similarly, EPA disagrees with the Commenter's characterization of the status of CAIR and CSAPR. When the court stayed CSAPR as noted by the Commenter, it ordered EPA to continue to administer CAIR. When the court issued its opinion to vacate and remand CSAPR, it also ordered EPA to continue to administer CAIR pending development of a valid replacement. Thus, at this juncture, CAIR remains in place and EPA is continuing to implement and enforce it. Consequently, all SIP provisions implementing CAIR also remain enforceable at this time under the court opinion.

EPA also disagrees with the Commenter's second argument—that the reductions associated with the NOXSIP Call, CAIR, or CSAPR could not be considered permanent and enforceable merely because they are trading programs. There is no support for the Commenter's argument that states cannot rely on such programs as a valid component of their SIPs to achieve necessary reductions of emissions simply because the mechanism used to achieve the reductions is an emissions trading program. As a general matter, trading programs establish mandatory caps on emissions and permanently reduce the total emissions allowed by sources subject to the programs. The emission caps and associated controls are enforced through the associated SIP rules or Federal Implementation Plans (FIPs). Any purchase of allowances and increase in emissions by a utility necessitates a corresponding sale of allowances and reductions in emissions by another utility. Given the regional nature of PM2.5, the emission reductions will have an air quality benefit that will compensate, at least in part, for the impact of any emission increase.

In addition, the case cited by the Commenter,NRDCv.EPA,571 F.3d 1245 (D.C. Cir. 2009), does not support the Commenter's position. That case addressed EPA's determination that the “reasonably available control technology” (RACT) requirement for nonattainment areas was satisfied by the NOXSIP Call trading program. The court held that because EPA had not demonstrated that the trading program would result in sufficient reductions within nonattainment areas to meet the RACT requirement, its determination that the program satisfied the RACT requirement (a specific nonattainment area requirement) was not supported.Id,1256-58. The court explicitly noted that EPA might be able to reinstate the provision providing that compliance with the NOXSIP Call satisfies NOXRACT for EGUs for particular nonattainment areas if, upon conducting a technical analysis, it could demonstrate that the NOXSIP Call results in greater emission reductions in a nonattainment area than would be achieved if RACT level controls were installed on the affected sources within the nonattainment area.Idat 1258. Thus, EPA disagrees with the Commenter's assertion that the case stands for the proposition that cap and trade programs can never satisfy a statutory mandate for area-specific emissions controls. Moreover, EPA's action on a state's infrastructure SIP does not entail an evaluation of whether that state has met the more specific nonattainment area requirements for RACT that may become relevant in later actions on a SIP submission designed by the state to meet nonattainment area requirements. For purposes of evaluating a state's infrastructure SIP submission, EPA is limiting its review to ensuring that the State meets basic structural SIP requirements. In the event that a state has to develop a SIP submission to meet nonattainment area requirements, the state and EPA will at that time evaluate whether the submission meets the separate statutory requirements for nonattainment areas.

Comment 2:The Commenter contends that Georgia's Ambient Air Quality Monitoring Program is incomplete because it does not meet the federal reporting requirements and utilizes spatial scales which could lead to misrepresentations of PM2.5concentrations. The Commenter explains that Georgia fails to incorporate any micro and middle spatial scales for PM2.5, leading to potentially inaccurate reporting of PM2.5concentrations. For this reason, the Commenter states that EPA cannot make the determination that Georgia's air quality monitoring and data systems related to the 1997 annual and 2006 24-hour PM2.5NAAQS are adequate. The Commenter explains that Georgia only utilizes the neighborhood spatial scale for monitoring PM2.5, with the exception of a PM2.5background site. The Commenter cites to 40 CFR Part 58, Appendix D (4.7.1(c)) for the proposition that there are circumstances where a more specific spatial scale is necessary to accurately represent the PM2.5concentrations. Specifically, the Commenter explains that microscale is appropriate for “areas such as downtown street canyons and traffic corridors where the general public would be exposed to maximum concentrations from mobile sources.” The Commenter makes certain statements about Atlanta, including traffic and asthma issues, and concludes that microscale would be appropriate for Atlanta. The Commenter concludes by stating that Georgia should explore whether such downtown, high maximum concentration areas occur and accordingly utilize the appropriate spatial scales.

Response 2:EPA disagrees with the Commenter's assessment that Georgia's Ambient Air Quality Monitoring Program is incomplete. Pursuant to CAA section 110(a)(2)(B), each SIP shall “provide for establishment and operation of appropriate devices,methods, systems, and procedures necessary to (i) monitor, compile, and analyze data on ambient air quality, and (ii) upon request, make such data available to the Administrator.” Among other requirements that EPA evaluates to determine if the infrastructure SIP submission meets the applicable section 110(a)(2)(B) requirements, the Agency considers whether the state has submitted the most recent annual monitoring plan, and whether EPA has approved that monitoring plan as meeting the applicable regulatory requirements and consistent with applicable guidance. The latter approval addressed whether the state monitors air quality for the relevant pollutant at appropriate locations throughout the state using EPA approved federal reference method or equivalent monitors, and whether it submits data to EPA's Air Quality System (AQS) in a timely manner.

As noted in EPA's proposed rule for this action, Georgia's Rules 391-3-1-.02(3), “Sampling,” and 391-3-1-.02(6), “Source Monitoring,” along with the Georgia Network Description and Ambient Air Monitoring Network Plan provide for an ambient air quality monitoring system in the State. Annually, EPA approves the ambient air monitoring network plan for the state agencies including EPD. Prior to submission to EPA for approval, the State makes the annual monitoring plan available for public inspection and comment in its own administrative process. In August 2011, Georgia submitted its monitoring network plan to EPA, and on October 21, 2011, EPA approved Georgia's monitoring network plan.

With regard to the Commenter's statements pertaining to the adequacy of monitoring in the Atlanta area, today's action does not involve specific evaluation for the Atlanta Area; but rather, Georgia's compliance with section 110(a)(2)(B) of the CAA for monitoring requirements statewide. As explained above, Georgia's infrastructure SIP submission complies with section 110(a)(2)(B) because it demonstrates that the State has met current monitoring requirements for this NAAQS and is thus approvable. The Commenter's concerns about the adequacy of monitoring in the Atlanta area in the future should be raised in the appropriate context, such as during the State's development of monitoring systems. For purposes of today's final action on Georgia's infrastructure submission, EPA has concluded that Georgia's monitoring program is adequate and thus consistent with the requirements of section 110(a)(2)(B) for this type of submission.

Comment 3:The Commenter claims that Georgia's SIP does not contain required provisions for PM2.5PSD increments promulgated in an October 20, 2010, EPA rule. The Commenter asserts that states are required to include these increments in their SIPs prior to EPA approval of their infrastructure SIP and cites 40 CFR 51.166(c) and EPA's 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),” for support. Further, the Commenter states that this “lack of inclusion renders Georgia's SIP inadequate to address PSD permitting, and, thus, the EPA cannot determine that `Georgia's SIP and practices are adequate for program enforcement of control measures including review of proposed new sources related to the 1997 and 2006 24-hour PM2.5NAAQS.'”

Response 3:EPA does not agree with the Commenter's assertion that the lack of inclusion of the updated PM2.5increments renders Georgia's SIP inadequate to address PSD permitting. Pursuant to the 2010 PM2.5New Source Review (NSR) Rule and CAA section 166(b), states were not required to submit a revised SIP addressing the PM2.5increments until July 20, 2012. The Agency proposed action on the Georgia infrastructure SIP in a notice signed on June 1, 2012.9 Therefore, on the date that the proposed rule was signed by the Agency, the PM2.5increments were not required to be included in the Georgia SIP in order for the State to meet the PSD requirements of sections 110(a)(2)(C) and (J) of the Act.

The Commenter's concerns here relate to the timing of Agency action on collateral, yet related, SIP submissions. These concerns highlight an important overarching question that the EPA has to confront when assessing the various infrastructure SIP submittals addressed in the proposed rule: how to proceed when the timing and sequencing of multiple related SIP submissions impact the ability of the State and the Agency to address certain substantive issues in the infrastructure SIP submission in a reasonable fashion.

It is appropriate for EPA to take into consideration the timing and sequence of related SIP submissions as part of determining what it is reasonable to expect a state to have addressed in an infrastructure SIP submission for a NAAQS at the time when the EPA acts on such submission. EPA has historically interpreted section 110(a)(2)(C) and section 110(a)(2)(J) as requiring EPA to assess a state's infrastructure SIP submission with respect to the then-applicable and federally enforceable PSD regulations required to be included in a state's implementation plan at the time EPA takes action on the SIP. However, EPA does not consider it reasonable to interpret section 110(a)(2)(C) and section 110(a)(2)(J) as requiring EPA to propose to disapprove a state's infrastructure SIP submissions because the state had not yet, at the time of proposal, made a submission that was not yet due for the 2010 PM2.5NSR Rule. To adopt a different approach by which EPA could not act on an infrastructure SIP, or at least could not approve an infrastructure SIP, whenever there was any impending revision to the SIP required by another collateral rulemaking action would result in regulatory gridlock and make it impracticable or impossible for EPA to act on infrastructure SIPs if EPA is in the process of revising collateral PSD regulations. EPA believes that such an outcome would be an unreasonable reading of the statutory process for the infrastructure SIPs contemplated in section 110(a)(1) and (2).

EPA acknowledges that it is important that these additional PSD program revisions be evaluated and approved into a state's implementation plan in accordance with the CAA, and the EPA intends to address the PM2.5increments in a subsequent rulemaking.

EPA also notes that major sources in Georgia are subject to the PM2.5increments pursuant to the version of the regulation, GA Rule 391-3-1-.02(7)—Prevention of Significant Deterioration of Air Quality, currently in effect in Georgia. Because the regulations relating to PM2.5increments are currently effective and enforceable as a matter of State law, as of August 9, 2012, EPA in the interim believes that proposed major sources in Georgia are being required as a matter of State law to comply with the PSD requirements like PM2.5increments and thus that these sources are not being treated differently under State law than similar sources in other States that have adopted and submitted SIP revisions to include the increments. Thus, EPA does not believe that approving the State's infrastructure SIP submissions at this time will lead to major sources in Georgia being treated differently thansimilar sources in the other States as a factual matter. If the Commenter determines that sources are not being evaluated in accordance with applicable State law requirements during the interim before EPA acts on a later SIP submission, those concerns can be addressed in the State's permitting process.

Comment 4:The Commenter states that Georgia must provide assurances that the State will have adequate personnel, funding, and authority to carry out the SIP. The Commenter notes that EPD receives money from federal grants, and from permitting fees and that EPD also receives a significant portion of its funding from the State of Georgia. The Commenter explains that, in recent years, the EPD's funds from the State of Georgia have significantly declined and the Commenter believes that continued cuts in EPD's budget cast doubt on EPD's ability to adequately administer its air program. Further, the Commenter states that Georgia does not seem to be completing all of the requirements of its federal grants, putting those grants in jeopardy.

Response 4:EPA does not agree with the Commenter's contention that Georgia does not have adequate personnel and funding to carry out its implementation plan. Section 110(a)(2)(E)(i) requires that each implementation plan provide necessary assurances that the State will have adequate personnel, funding, and authority under state law to carry out its implementation plan. EPA does not believe, and the Commenter has not demonstrated, that the State funding levels described in the comment contravene Georgia's assurances that the State has adequate personnel and funding to carry out its implementation plan. Georgia's infrastructure SIP submission indicated that the State believes that it has sufficient resources to meet its obligations. At this juncture, EPA does not see evidence that the State's resources are in fact inadequate.

As the Commenter notes, Georgia did not finalize one of its sixty-three 2011 grant commitments.10 Notwithstanding this fact, and as was explained in the proposed rule, EPA has determined that Georgia has provided necessary assurances that its SIP contains the adequate infrastructure requirements to address these types of issues as they arise, consistent with the obligation in CAA Section 110(a)(2)(E)(i). EPA has a process to ensure issues such as this are addressed and the Agency is currently working with Georgia to ensure that the State meets all of its commitments, including the outstanding 2011 grant commitment reference by Commenter. The fact that a process is in place to resolve the outstanding commitment supports EPA's approval of Georgia's infrastructure SIP.

As already described, EPD has addressed the elements of the CAA 110(a)(1) and (2) SIP requirements pursuant to EPA's October 2, 2007, guidance to ensure that 1997 annual and 2006 24-hour PM2.5NAAQS are implemented, enforced, and maintained in Georgia. EPA is taking final action to approve Georgia's July 23, 2008, and October 21, 2009, submissions, with noted exceptions for 1997 annual and 2006 24-hour PM2.5NAAQS because these submissions are consistent with section 110 of the CAA. Today's action is not approving any specific rule, but rather making a determination that Georgia's already approved SIP meets certain CAA requirements. In addition, EPA is today clarifying the inadvertent error contained in the proposal approval for this rule as described above.

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

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

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

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 December 24, 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 toenforce its requirements.Seesection 307(b)(2).

40 CFR part 52 is amended as follows:

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

On February 28, 2012 (77 FR 11992), EPA proposed a limited approval and limited disapproval of the following rule that was submitted for incorporation into the California SIP.

We proposed a limited approval because we determined that this rule improves the SIP and is largely consistent with the relevant CAA requirements. We simultaneously proposed a limited disapproval because the following provision conflicts with section 110 and part D of the Act and prevents full approval of the SIP revision. Section D.3 exempts the Southern California Gas Company General Electric Model Frame 3 turbine located in Kelso, California from testing requirements. This undermines enforceability of the rule which contradicts CAA requirements for enforceability.

Our proposed action contains more information on the basis for this rulemaking and on our evaluation of the submittal.

EPA's proposed action provided a 30-day public comment period. During this period, we received no comments.

No comments were submitted that change our assessment of the rule as described in our proposed action. Therefore, as authorized in sections 110(k)(3) and 301(a) of the Act, EPA is finalizing a limited approval of the submitted rule. This action incorporates the submitted rule into the California SIP, including those provisions identified as deficient. As authorized under section 110(k)(3), EPA is simultaneously finalizing a limited disapproval of the rule. Neither sanctions nor a Federal Implementation Plan (FIP) will be imposed following this final limited disapproval as explained in our proposed action.

Note that the submitted rule has been adopted by the MDAQMD, and EPA's final limited disapproval does not prevent the local agency from enforcing it. The limited disapproval also does not prevent any portion of the rule from being incorporated by reference into the federally enforceable SIP as discussed in a July 9, 1992 EPA memo found at:http://www.epa.gov/nsr/ttnnsr01/gen/pdf/memo-s.pdf.

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

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

The Regulatory Flexibility Act (RFA) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions.

This rule will not have a significant impact on a substantial number of small entities because SIP approvals and limited approvals/limited disapprovals under section 110 and subchapter I, part D of the Clean Air Act do not create any new requirements but simply approve requirements that the State is already imposing. Therefore, because this limited approval/limited disapproval action does not create any new requirements, I certify that this action will not have a significant economic impact on a substantial number of small entities.

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

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

EPA has determined that the limited approval/limited disapproval action promulgated does not include a Federal mandate that may result in estimated costs of $100 million or more to either State, local, or tribal governments in the aggregate, or to the private sector. This Federal action approves pre-existing requirements under State or local law, and imposes no new requirements. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, result from this action.

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

This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, because it merely approves a State rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.

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

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

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

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

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

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

EPA lacks the discretionary authority to address environmental justice in this rulemaking.

The Congressional Review Act, 5 U.S.C. section 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 rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the UnitedStates 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. section 804(2). This rule will be effective on November 26, 2012.

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 December 24, 2012. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements (see section 307(b)(2)).

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

On October 29, 2009 (74 FR 56008), the EPA issued the final CMAS rule. On February 12, 2010, the American Chemistry Council and the Society of Chemical Manufacturers and Affiliates (collectively referred to as “Petitioners”) sought reconsideration of certain provisions in the final rule. On June 15, 2010, the EPA notified Petitioners that the EPA intended to initiate the reconsideration process.

On January 30, 2012 (77 FR 4522), the EPA published a proposed rule reconsidering certain aspects of the final CMAS rule, including provisions that, if finalized, would revise the applicability of the final rule. The compliance date for the final CMAS rule is October 29, 2012, and it was EPA's expectation that the reconsideration would be finalized in advance of that date. However, the EPA is still in the process of finalizing the reconsideration action. For this reason, a short stay of the final rule is appropriate to allow the EPA the time necessary to complete the reconsideration action.

Pursuant to Clean Air Act section 307(d)(7)(B), the EPA is staying for 60 days the provisions of 40 CFR part 63, subpart VVVVVV.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and, therefore, is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4), or require prior consultation with state officials as specified by Executive Order 12875 (58 FR 58093, October 28, 1993), or involve special consideration of environmental justice related issues as required by Executive Order 12898 (59 FR 7629, February 16, 1994). Because this action is not subject to notice-and-comment requirements under the Administrative Procedure Act or any other statute, it is not subject to the regulatory flexibility provisions of the Regulatory Flexibility Act (5 U.S.C. 601,et seq.). This action also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the federal government and Indian tribes or on the distribution of power and responsibilities between the federal government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have federalism implications because it does not have substantial direct effects on the states, on the relationship between the national government and the states or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). The requirements of section 12(d) of theNational Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501,et seq.). The EPA's compliance with these statutes and Executive Orders for the underlying rule is discussed in the October 29, 2009,Federal Registerdocument.

The Congressional Review Act, 5 U.S.C. 801,et seq.,as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The EPA will submit a report containing this notice and other required information to the United States Senate, the United States House of Representatives and the Comptroller General of the United States prior to publication of the rule in theFederal Register. The stay of the provisions in 40 CFR part 63, subpart VVVVVV is not a “major rule” as defined by 5 U.S.C. 804(2).

For the reasons stated in the preamble, title 40, chapter I, part 63 of the Code of Federal Regulations is amended as follows:

Regulations governing the black sea bass fishery are found at 50 CFR part 648. The regulations require annual specification of a recreational harvest limit (RHL) for the Atlantic coast from Cape Hatteras, North Carolina, through Maine. The process to set the annual RHL is described in § 648.142.

The initial total RHL for black sea bass for the 2012 fishing year is 1.86 million lb (844 mt) (76 FR 82189, December 30, 2011). The 2012 RHL was reduced to 1.32 million lb (599 mt) after deduction of research set-aside and discards.

The Administrator, Northeast Region, NMFS (Regional Administrator), monitors the recreational harvest limit and determines when the recreational harvest limit has been met or exceeded. NMFS is required to publish notification in theFederal Registeradvising and notifying recreational vessels that, effective upon a specific date, the recreational harvest limit has been harvested. The Regional Administrator has determined based upon data from the Marine Recreational Fishing Statistical Survey and the Marine Recreational Information Program that the 2012 recreational black sea bass quota has been exceeded.

Effective 0001 hours, November 1, 2012, no one may fish for or possess black sea bass in Federal waters for the remainder of the 2012 calendar year, unless issued a commercial moratorium permit and fishing commercially. This closure also applies to vessels issued a Federal party/charter permit fishing in state waters.

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