RNAV route Q-1 extends along the U.S. west coast between the Point Reyes, CA, VHF omnidirectional range/tactical air navigation (VORTAC) aid and the ELMAA, WA, waypoint. The FAA is adding two waypoints along to route for air traffic control purposes. In addition, the route description is reformatted for standardization.

This action amends Title 14 Code of Federal Regulations (14 CFR) part 71 by amending the legal description of RNAV route Q-1 to add two waypoints along the route and to standardize the description format. The ELENN, CA, waypoint is inserted between the existing ENVIE, CA, and EBINY, OR, waypoints for traffic flow metering with the Oakland Air Route Traffic Control Center. The TACOS, CA, waypoint is added between the existing ETCHY, CA, and ENVIE, CA, waypoints to provide connectivity with an RNAV arrival to Travis Air Force Base.

In addition, the order of the points as listed in the description of FAA Order 7400.9 is reversed to comply with the standard format that the points be listed from south-to-north. Also, the state names are added to the waypoint and the navigation aid names to comply with the standard format.

Since this action involves only editorial changes to the legal description of RNAV route Q-1, and does not change the dimensions or operating requirements of the affected route, notice and public procedures under 5 U.S.C. 553(b) are unnecessary.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.

This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it revises the legal description of an RNAV route to maintain currency.

United States Area Navigation Routes are published in paragraph 2006 of FAA Order 7400.9W, dated August 8, 2012, and effective September 15, 2012, which is incorporated by reference in 14 CFR 71.1. The RNAV route listed in this document will be published subsequently in the Order.

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1E, Environmental Impacts: Policies and Procedures, paragraph 311a. This airspace action consists of editorial changes only and is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:

History

On July 5, 2012, the FAA published in theFederal Registera notice of proposed rulemaking (NPRM) to establish Class E airspace at La Belle, FL (77 FR 39652) Docket No. FAA-2012-0586. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received. Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9W dated August 8, 2012, and effective September 15, 2012, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 establishes Class E airspace extending upward from 700 feet above the surface at La Belle, FL, to provide the controlled airspace required to accommodate the new RNAV GPS Standard Instrument Approach Procedures developed for La Belle Municipal Airport. This action is necessary for the safety and management of IFR operations at the airport.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore, (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.

This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it establishes controlled airspace at La Belle Municipal Airport, La Belle, FL.

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures,” paragraph 311a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR Part 71 as follows:

This rule removes Part 52 of the Code of Federal Regulations, which relates to the consular role in marriages. The Department is removing Part 52 because it is outdated and duplicative of other federal laws and regulations. For example:

This action is being taken as a final rule pursuant to the “good cause” provision of 5 U.S.C. 553(b). It is the position of the Department that notice and comment are not necessary in light of the fact that Part 52 is obsolete or duplicative of other authorities.

It is hereby certified that the repeal of these regulations will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act, 5 U.S.C. 605(b), because the issues addressed are not of an economic nature. In addition, the repeal of this regulation does not have federalism implications under E.O. 13132.

Section 202 of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1532, generally requires agencies to prepare a statement before proposing any rule that may result in an annual expenditure of $100 million or more by State, local, or tribal governments, or by the private sector. This rule will not result in any such expenditure, nor will it significantly or uniquely affect small governments.

The Department of State has reviewed this rule to ensure its consistency with the regulatory philosophy and principles set forth in Executive Order 12866 and has determined that the benefits of this regulation justify its costs. The Department does not consider this rule to be an economically significant action within the scope of section 3(f)(1) of the Executive Order since it is not likely to have an annual effect on the economy of $100 million or more or to adversely affect in a material way the economy, a sector of the economy, competition, jobs, the environment, public health or safety, or State, local or tribal governments or communities. The Department has considered this rule in light of Executive Order 13563, dated January 18, 2011, and affirms that this regulation is consistent with the guidance therein.

This regulation will not have substantial direct effects on the States, on the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government. Nor will the rule have federalism implications warranting the application of Executive Orders No. 12372 and No. 13132.

The Department has reviewed the regulations in light of sections 3(a) and 3(b)(2) of Executive Order No. 12988 to eliminate ambiguity, minimize litigation, establish clear legal standards, and reduce burden.

The Department has determined that this rulemaking will not have Tribal implications, will not impose substantial direct compliance costs on Indian Tribal governments, and will not pre-empt Tribal law. Accordingly, the requirements of Executive Order 13175 do not apply to this rulemaking.

This rule does not impose information collection requirements under the provisions of the Paperwork Reduction Act, 44 U.S.C. Chapter 35.

The Coast Guard will enforce a segment of the Safety Zone; Brandon Road Lock and Dam to Lake Michigan including Des Plaines River, Chicago Sanitary and Ship Canal, Chicago River, Calumet-Saganashkee Channel, Chicago, IL, listed in 33 CFR 165.930. Specifically, the Coast Guard will enforce this safety zone between Mile Marker 296.1 to Mile Marker 296.7 on all waters of the Chicago Sanitary and Ship Canal. Enforcement will occur from 7:00 a.m. until 11:00 a.m. and 1:00 p.m. until 5:00 p.m. on November 14, 2012.

This enforcement action is necessary because the Captain of the Port, Sector Lake Michigan has determined that the Illinois Department of Natural Resources netting and electro-fishing clearing operation poses risks to life and property. The passage of vessel traffic during the same time as the Operation makes the controlling of vessels through the impacted portion of the Chicago Sanitary and Ship Canal necessary to prevent injury and property loss.

In accordance with the general regulations in § 165.23 of this part, entry into, transiting, mooring, laying up or anchoring within the enforced area of this safety zone by any person or vessel is prohibited unless authorized by the Captain of the Port, Sector Lake Michigan, or his or her designated representative.

This notice is issued under authority of 33 CFR 165.930 and 5 U.S.C. 552(a). In addition to this notice in theFederal Register, the Captain of the Port, Sector Lake Michigan, will also provide notice through other means, which may include, but are not limited to, Broadcast Notice to Mariners, Local Notice to Mariners, local news media, distribution in leaflet form, and on-scene oral notice.

Additionally, the Captain of the Port, Sector Lake Michigan, may notify representatives from the maritime industry through telephonic and email notifications.

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:

This rulemaking addresses submissions from each State (and appropriate State agency) in EPA Region 5: Illinois Environmental Protection Agency (Illinois EPA); Indiana Department of Environmental Management (IDEM); Michigan Department of Environmental Quality (MDEQ); Minnesota Pollution Control Agency (MPCA); Ohio Environmental Protection Agency (Ohio EPA); and Wisconsin Department of Natural Resources Bureau of Air Management (WDNR). Each Region 5 State made SIP submissions on the following dates: Illinois—August 9, 2011, and supplemented on August 25, 2011, and June 27, 2012; Indiana—October 20, 2009, and supplemented on June 25, 2012, and July 12, 2012; Michigan—August 15, 2011, and supplemented on July 9, 2012; Minnesota—May 23, 2011, and supplemented on June 27, 2012; Ohio—September 4, 2009, and supplemented on June 3, 2011, and July 5, 2012; and, Wisconsin—January 24, 2011, and supplemented on March 28, 2011, and June 29, 2012.1

Indiana also made a SIP submission intended to address various EPA requirements for its NSR and PSD programs. IDEM submitted revisions on July 12, 2012, for incorporation into its NSR and PSD program, and also requested that EPA approve these revisions as satisfying any applicable infrastructure SIP requirements for the 2006 PM2.5NAAQS.

Under sections 110(a)(1) and (2) of the CAA, and implementing EPA policy, the States are required to submit infrastructure SIPs to ensure that their SIPs provide for implementation, maintenance, and enforcement of the NAAQS, including the 2006 PM2.5NAAQS. These submissions must contain any revisions needed for meeting the applicable SIP requirements of section 110(a)(2), or certifications that their existing SIPs for particulate matter already met those requirements.

EPA highlighted this statutory requirement in an October 2, 2007, guidance document entitled “Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) for the 1997 8-hour Ozone and PM2.5National Ambient Air Quality Standards” (2007 Memo). On September 25, 2009, EPA issued an additional guidance document pertaining to the 2006 PM2.5NAAQS entitled “Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) for the 2006 24-Hour Fine Particle (PM2.5) National Ambient Air Quality Standards (NAAQS)” (2009 Memo). The SIP submissions referenced in this rulemaking pertain to the applicable requirements of sections 110(a)(1) and (2) of the CAA. The SIP submissions from the six Region 5 States being evaluated here address primarily the 2006 PM2.5NAAQS, with a narrow evaluation of the 1997 8-hour ozone NAAQS; this final rulemaking addresses only these pollutants as well.2

As originally detailed in the proposed rulemaking, the applicable infrastructure SIP requirements are contained in section 110(a)(1) and (2) of the CAA. EPA is finalizing action of each Region 5 State's satisfaction of the applicable requirements of section 110(a)(2)(A) through section 110(a)(2)(M), except for the elements detailed in the following paragraphs.

This rulemaking will not cover four substantive areas that are not integral to acting on a State's infrastructure SIP submission: (i) Existing provisions related to excess emissions during periods of start-up, shutdown, or malfunction at sources, that may be contrary to the CAA and EPA's policies addressing such excess emissions (“SSM”); (ii) existing provisions related to “director's variance” or “director's discretion” that purport to permit revisions to SIP approved emissions limits with limited public process or without requiring further approval by EPA, that may be contrary to the CAA (“director's discretion”); (iii) existing provisions for minor source NSR programs that may be inconsistent with the requirements of the CAA and EPA's regulations that pertain to such programs (“minor source NSR”); and, (iv) existing provisions for PSD programs that may be inconsistent with current requirements of EPA's “Final NSR Improvement Rule,” 67 FR 80186 (December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (“NSR Reform”). Instead, EPA has indicated that it has other authority to address any such existing SIP defects in other rulemakings, as appropriate. A detailed rationale for why these four substantive areas are not part of the scope of infrastructure SIP rulemakings can be found in EPA's July 13, 2011, final rule entitled, “Infrastructure SIP Requirements for the 1997 8-hour Ozone and PM2.5National Ambient Air Quality Standards” in the section entitled, “What is the scope of this final rulemaking?” (see76 FR 41075 at 41076-41079).

In addition to the four substantive areas above, EPA is not acting in this action on portions of section 110(a)(2)(D)(i)(I)—Interstate transport; section 110(a)(2)(E)(ii)—Adequate resources; and section 110(a)(2)(J)—Consultation with government officials,public notifications, PSD, and visibility protection. EPA stated in our proposed rulemaking that we were not proposing to act on the portion of any Region 5 State's submission intended to address the interstate transport requirements of section 110(a)(2)(D)(i)(I) (see77 FR 45992 at 46000), nor were we proposing to approve or disapprove each Region 5 State's satisfaction of the state board requirements of section 110(a)(2)(E)(ii) (see77 FR 45992 at 46002). We have previously finalized our rulemaking for the interstate transport requirements for Indiana and Ohio (seeFR 43175), and we have yet to take action on the section 110(a)(2)(D)(i)(I) portion of the SIP submissions from Illinois, Michigan, Minnesota, and Wisconsin. We will also take action on compliance with section 110(a)(2)(E)(ii) for Illinois, Indiana, Michigan, Minnesota, Ohio, and Wisconsin at a later time. EPA is working with each of the Region 5 States to address these requirements in the most appropriate way.

With respect to the visibility protection requirements of section 110(a)(2)(J), EPA notes that these requirements are different from those in section 110(a)(2)(D)(i)(II) in that the visibility protection requirements of section 110(a)(2)(J) are not “triggered” by the promulgation of a new or updated NAAQS. In other words, the visibility protection requirements of section 110(a)(2)(J) are not germane to infrastructure SIPs for the 2006 PM2.5NAAQS. EPA realizes that our proposed rulemaking may have engendered confusion with respect to section 110(a)(2)(J) (see77 FR 45992 at 46005), and we want to clarify in this final action that the visibility protection requirements of section 110(a)(2)(J) are not germane to the infrastructure SIP for the 2006 PM2.5NAAQS. EPA is also not acting on section 110(a)(2)(I)—Nonattainment Area Plan or Plan Revisions Under Part D, in its entirety. Instead, EPA takes action on part D attainment plans through separate processes.

Furthermore, as a result of the current status of the Cross-State Air Pollution Rule (CSAPR),3 EPA is not finalizing action on portions of the interstate transport requirements for addressing visibility protection of section 110(a)(2)(D)(i)(II) for certain Region 5 States where we had previously proposed approval; the reasoning can be found in the following section.

We are also not finalizing our action on narrow portions of Michigan's infrastructure SIP for section 110(a)(2)(C), section 110(a)(2)(D)(i)(II), and section 110(a)(2)(J), specifically with respect to the applicable requirements obligated by EPA's final rule for the “Implementation of the New Source Review (NSR) Program for Particulate Matter Less than 2.5 Micrometers (PM2.5)” (2008 NSR Rule) (see73 FR 28321) and the “Final Rule to Implement the 8-Hour Ozone National Ambient Air Quality Standard—Phase 2; Final Rule to Implement Certain Aspects of the 1990 Amendments Relating to New Source Review and Prevention of Significant Deterioration as They Apply in Carbon Monoxide, Particulate Matter, and Ozone NAAQS; Final Rule for Reformulated Gasoline” (Phase 2 Rule) (see70 FR 71612). On September 4, 2012, MDEQ submitted a comment letter to EPA that requires more evaluation; the specific issues are described in the following section.

Lastly, as a result of a comment received during the comment period, EPA is not finalizing action on a narrow portion of Indiana's infrastructure SIP for section 110(a)(2)(C), section 110(a)(2)(D)(i)(II), and section 110(a)(2)(J), specifically for the source impact analysis requirements of the State's PSD program as it relates to the 2006 PM2.5NAAQS; the specific issues are described in the following section.

The public comment period for EPA's proposed action to approve most elements and disapprove narrow portions of other elements of submissions from the Region 5 States closed on September 4, 2012. EPA received five comment letters, and a synopsis of the significant individual comments contained in these letters, as well as EPA's response to each comment, is discussed below.

Comment 1:A comment letter was submitted on behalf of the Ohio Utility Group (OUG) and its member companies. While OUG generally supported EPA's proposed actions with respect to Ohio's infrastructure SIP for the 2006 PM2.5NAAQS, the group recommended that EPA withdraw its prior disapproval of the portions of Ohio's infrastructure SIP addressing the interstate transport requirements of section 110(a)(2)(D)(i)(I) (see76 FR 43175). Instead, OUG stated that it was EPA's intent to implement a Federal Implementation Plan (FIP) in Ohio to meet these requirements, and that the finalized CSAPR was published in theFederal Registeron August 8, 2011 (see76 FR 48208), as a FIP that would simultaneously remedy and replace the Clean Air Interstate Rule (CAIR). OUG noted that CSAPR was stayed by the U.S. Court of Appeals for the District of Columbia Circuit pending judicial review on December 31, 2011, and that the court also ordered EPA to continue administering CAIR. OUG further noted that on August 21, 2012, the court vacated and remanded CSAPR back to EPA, and again ordered EPA to continue administering CAIR. Therefore, OUG believes that EPA should withdraw its prior disapproval of Ohio's interstate transport SIP, and propose approval of Ohio's submissions intended to address the requirements of section 110(a)(2)(D)(i)(I), making the emission reductions that have already occurred Federally enforceable. Lastly, OUG stated that when EPA issues a new interstate transport rule, EPA can then make a determination that the emission reductions as a result of Ohio's interstate transport SIP are insufficient and require Ohio to develop an updated SIP.

Response 1:In EPA's August 2, 2012, proposed rulemaking, we stated that we were not proposing to approve or disapprove any provisions intended to address interstate transport requirements of section 110(a)(2)(D)(i)(I) (see76 FR 45992 at 46000); with respect to Ohio, EPA noted that the disapproval of portions of Ohio's infrastructure SIP for the 2006 PM2.5NAAQS intended to address these requirements was finalized on July 20, 2011, and that the State did not have any SIP submission relevant to section 110(a)(2)(D)(i)(I) for the 2006 PM2.5NAAQS pending before the Agency. In other words, OUG's comments are not germane to today's rulemaking.

Comment 2:One commenter noted that although EPA had proposed approval for all Region 5 States (except for Michigan) as meeting the visibility protection requirement of section 110(a)(2)(D)(i)(II), the Region 5 States' visibility SIPs relied on CSAPR to satisfy the requirement of Best Available Retrofit Technology (BART) for electric generating units. Since CSAPR has been vacated with CAIR temporarily in place, the commenter asserts that there exists no current and permanent cross state air pollution rule for EPA and the Region 5 States to rely on to satisfy the visibility protection requirements of section 110(a)(2)(D)(i)(II), which includes BART limits for electric generating units. Therefore, EPA must disapprove the portions of infrastructure SIPs intended to address the visibilityprotection requirements of section 110(a)(2)(D)(i)(II).

Response 2:The 2009 Memo recommends to states that the visibility protection requirements of section 110(a)(2)(D)(i)(II) can be satisfied by an approved SIP addressing reasonably attributable visibility impairment, if required, and an approved SIP addressing regional haze.4 The commenter is correct in stating that if Region 5 States' regional haze plans relied on CSAPR in the context of BART and electric generating units, the visibility protection requirements of section 110(a)(2)(D)(ii) would not be met because CSAPR has been vacated. However, the commenter is incorrect in his characterization of Illinois' regional haze plan. Specifically, Illinois has two sets of provisions in its SIP rules that meet the BART requirement of electric generating units5 without relying on CSAPR (or CAIR). EPA's final approval of Illinois' regional haze plan was published on July 6, 2012, (see76 FR 39943) and affirms that existing provisions in Illinois satisfy the BART requirement.

In today's rulemaking, EPA is not finalizing our proposed approval of the visibility protection requirements of section 110(a)(2)(D)(i)(II) for Indiana, Ohio, Minnesota, and Wisconsin. EPA is also not taking any action on the visibility protection requirements of section 110(a)(2)(D)(i)(II) for Michigan. EPA will take action on these States' SIPs in a separate rulemaking. However, EPA is finalizing approval of Illinois' satisfaction of the visibility protection requirements of section 110(a)(2)(D)(ii) in this rulemaking.

Comment 3:The same commenter stated that the Indiana SIP is insufficient for purposes of the State's PSD program for the 2006 PM2.5NAAQS. The commenter observes that 326 Indiana Administrative Code (IAC) 2-2-5(a)(1) requires an analysis of a new or modified source's emissions demonstrating that the emissions will not cause or contribute to air pollution in violation of any ambient air quality standard, as designated in 326 IAC 1-3. The language contained in 326 IAC 1-3 explicitly references only the 1997 PM2.5NAAQS, and not the 2006 PM2.5NAAQS of 35 micrograms per cubic meter. Therefore, a literal read of Indiana's PSD regulations indicates that a source impact analysis would only need to comply with the 1997 PM2.5NAAQS. The commenter did note that 326 IAC 2-1.1-5 contains language that would prohibit issuance of a registration, permit, modification approval, or operating permit revision if issuance would allow a source to cause or contribute to a violation of the NAAQS. 326 IAC 2-1.1-5 is currently not in the SIP, and the language contained therein has not been submitted by Indiana for incorporation into the SIP.

Response 3:After evaluating the commenter's points, EPA agrees that the State's EPA-approved PSD SIP contained in 326 IAC 2-2-5(a) only requires a source impact analysis for PM2.5to comply with the 1997 PM2.5NAAQS, and not the 2006 PM2.5NAAQS. 326 IAC 2-2-5(a) states that “The owner or operator of the proposed major stationary source or major modification shall demonstrate that allowable emissions increases in conjunction with all other applicable emissions increases or reductions (including secondary emissions) will not cause or contribute to air pollution in violation of any: (1) Ambient air quality standard, as designated in 326 IAC 1-3, in any air quality control region * * *” 326 IAC 1-3-4 contains the ambient air quality standards as they apply in Indiana; the 2006 PM2.5NAAQS as codified in 40 CFR 50.13, has not been incorporated into this section. IDEM has informed EPA that the State is in the process of adopting revisions to its SIP, specifically contained in IAC 326 1-3-4, to incorporate the 2006 PM2.5NAAQS as codified in 40 CFR 50.13. EPA is therefore not finalizing any action on this narrow portion of section 110(a)(2)(C) for Indiana's infrastructure SIP for the 2006 PM2.5NAAQS; we will address the PSD source impact analysis requirements of section 110(a)(2)(C) for the 2006 PM2.5NAAQS in a separate rulemaking. EPA notes that there are also PSD requirements associated with section 110(A)(2)(D)(i)(II) and section 110(a)(2)(J). As a result, we are also not finalizing any action on this narrow portion of section 110(a)(2)(D)(i)(II) and section 110(a)(2)(J) for Indiana's infrastructure SIP for the 2006 PM2.5NAAQS; we will address the same PSD source impact analysis requirements for the 2006 PM2.5NAAQS in the same action for section 110(a)(2)(C).

Comment 4:The same commenter as above also stated that Wisconsin's PSD SIP does not contain the maximum allowable increases in ambient pollutant concentrations (increments) for PM2.5. The final rule for the “Prevention of Significant Deterioration (PSD) for Particulate Matter Less Than 2.5 Micrometers (PM2.5)—Increments, Significant Impact Levels (SILs) and Significant Monitoring Concentration (SMC)” requiring states to incorporate increments into their PSD SIPs was published in theFederal Registeron October 20, 2010 (2010 NSR Rule) (see75 FR 64864). This requirement was also codified in 40 CFR 51.166(c) and 40 CFR 52.21(c). The 2010 NSR Rule required states to submit revisions to their SIPs addressing this required program element by July 20, 2012 (see75 FR 64864 at 64898). Therefore, because Wisconsin had not made revisions to its PSD SIP incorporating the increments by the deadline prescribed by the 2010 NSR Rule, EPA must disapprove the appropriate portions of the infrastructure SIP for the 2006 PM2.5NAAQS. The commenter did state that WDNR has applied the appropriate increments when issuing PSD permits.

Response 4:The commenter asserts that EPA should now disapprove portions of Wisconsin's infrastructure SIP for the 2006 PM2.5NAAQS because, since the date of EPA's proposal, the deadline for the submission of a SIP revision addressing the PM2.5increments has passed. However, pursuant to the 2010 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 Wisconsin infrastructure SIP for the 2006 PM2.5NAAQS in a notice signed on July 20, 2012.6 Therefore, on the date that the proposed rule was signed by the Agency, the PM2.5increments were not required to be included in the Wisconsin SIP in order for Wisconsin to meet the PSD requirements of sections 110(a)(2)(C), (D)(i)(II), and (J) of the CAA.

The commenter's concerns 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 inthe 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), section 110(a)(2)(D)(i)(II), and section 110(a)(2)(J) to require us 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 SIP at the time EPA takes action on the SIP.

However, EPA does not consider it reasonable to interpret section 110(a)(2)(C), section 110(D)(i)(II), and section 110(a)(2)(J) to require us 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 the State's SIP in accordance with the CAA, and EPA intends to address the PM2.5increments in a subsequent rulemaking. EPA appreciates the commenter's point that Wisconsin has been applying the appropriate increments consistent with the requirements codified in 40 CFR 52.21(c), and we will actively work with the State to ensure that these increments are correctly evaluated in permitting decisions. Furthermore, we will work with Wisconsin to ensure that revisions to its SIP incorporating these increments will be wholly consistent with the requirements obligated by the 2010 NSR Rule, as codified in 40 CFR 51.166(c) and 40 CFR 52.21(c).

Comment 5:The same commenter as above agreed with EPA's proposed disapproval of portions of Wisconsin's infrastructure SIP for the 2006 PM2.5NAAQS with respect to the explicit identification and regulation of condensable PM2.5and PM10in its PSD program.7 Wisconsin's existing SIP contained in Wisconsin Administrative Code NR 400.02(123e)—NR 400.02(124) does not contain the explicit references to condensables in PM2.5and PM10emissions, as obligated by the 2008 NSR Rule. Furthermore, revisions to its PSD program submitted by WDNR on May 11, 2011, do not contain the explicit identification or regulation of PM2.5and PM10condensables. However, the commenter notes that WDNR has been including condensable fraction of particulate matter in permits for facilities for many years, as alluded to in NR 415.09. The commenter suggests that EPA clarify that a final disapproval of Wisconsin's infrastructure SIP for the 2006 PM2.5NAAQS with respect to the explicit identification and regulation of PM2.5and PM10condensables does “not negate or otherwise undermine the fact that all limits in all existing permits in Wisconsin already include condensable PM.”

Response 5:EPA appreciates the commenter's point that WDNR has historically considered some condensable PM in its permits. The SIP-approved portions of NR 415.09 include references to condensable particulate matter, as defined in NR 439.02(4). NR 439 contains the requirements for reporting, recordkeeping, testing, inspection, and determination of compliance for air contaminant sources and their owners and operators. Specifically, NR 439.02(4) defines “condensible[sic] particulate matter” as “any material, except uncombined water, that may not be collected in the front half of the particulate emission sampling train but which exists as a solid or liquid at standard conditions.” EPA agrees that WDNR has the authority to regulate some condensables, and also agrees with the commenter that a final disapproval of portions of Wisconsin's infrastructure SIP for the 2006 PM2.5NAAQS with respect to the explicit identification and regulation of PM2.5and PM10condensables does not negate that WDNR has considered some condensable particulate matter in its permits. However, at this point in time, the State has not revised its SIP to contain the required explicit references to condensables that are necessary for purposes of the PSD program, and to make that requirement a Federally enforceable part of the State's SIP. EPA will continue to work with the State to develop SIP revisions that account for PM2.5and PM10condensables in applicability determinations and permitting emissions limits, consistent with the 2008 NSR Rule. In the interim, we expect the State to correctly account for these condensables in applicability determinations and permitting emissions limits.

Comment 6:MDEQ submitted a comment letter to EPA affirming that the State is adopting revisions to its rules that would be wholly consistent with the required infrastructure SIP requirements obligated by the 2008 NSR Rule and the Phase 2 Rule. MDEQ stated that the necessary revisions would be submitted to EPA imminently for incorporation into the SIP, specifically before the end of 2012, and also included the draft rules reflecting the appropriate revisions. The State urged EPA to issue a conditional approval for the relevant portions of its infrastructure SIP for the 2006 PM2.5NAAQS in lieu of finalizing a narrow disapproval.

Response 6:EPA appreciates MDEQ's efforts in adopting revisions to its SIP to be wholly consistent with the required infrastructure SIP requirements obligated by the 2008 NSR Rule and the Phase 2 Rule. In our proposed rulemaking addressing the relevant requirements, EPA noted that the State is in the process of adopting required revisions to its regulations to: Address pollutants responsible for the secondary formation of PM2.5, i.e., precursors;8 account for condensables in PM2.5and PM10applicability determinations and emission limits in NSR permits; and, explicitly identify oxides of nitrogen (NOX) as a precursor to ozone (seeFR 77 45995 at 45996-45998). EPA believes that MDEQ's specific commitments, including the revisions in progress specific to the applicable requirements of the 2008 NSR Rule and the Phase 2 Rule, as well as the time frame noted, i.e., prior to the end of 2012, require more evaluation. Therefore, in today's rulemaking, EPA is not finalizing our proposed disapproval of portions of Michigan's infrastructure SIP for the 2006 PM2.5NAAQS with respect to the PSD requirements contained in section110(a)(2)(C), section 110(a)(2)(D)(i)(II), and section 110(a)(2)(J) to: Identify the precursors to PM2.5consistent with the requirements of the 2008 NSR Rule; account for PM2.5and PM10condensables in applicability determinations and emissions limits for permits consistent with the 2008 NSR Rule; and, identify NOXas a precursor to ozone consistent with the Phase 2 Rule. EPA will address Michigan's satisfaction of these requirements in a separate rulemaking. In the interim, however, EPA expects Michigan to adhere to the requirements of the 2008 NSR Rule with respect to the treatment and identification of PM2.5precursors and the accounting for PM2.5and PM10condensables in applicability determinations and permitting emissions limits in its PSD program. We also expect Michigan to treat and explicitly identify NOXas a precursor to ozone for PSD permitting, consistent with the requirements of the Phase 2 Rule.

Comment 7:Ohio EPA submitted a comment letter to EPA disagreeing with our proposed disapproval of portions of its infrastructure SIP for the 2006 PM2.5NAAQS intended to address the relevant requirements obligated by the 2008 NSR Rule and the Phase 2 Rule. Ohio EPA observes that EPA proposed a narrow disapproval of portions of its infrastructure SIP intended to meet the PSD requirements of section 110(a)(2)(C): Identifying PM2.5precursors; identifying PM2.5and PM10condensables in the PSD program; and, identifying NOXas a precursor to ozone. Ohio notes that our proposed rulemaking states that “the infrastructure SIP requirements are designed to ensure that the structural components of each State's air quality management program are adequate to meet the State's responsibilities under the CAA.” Ohio also notes that under section 110(a)(2)(C), states are required to “include a program” for the regulation of the modification and construction of any stationary source to assure that NAAQS are achieved, including a permit program as required under parts C and D. Citing Ohio Revised Code (ORC) 3704.03, the State argues that the director of Ohio EPA has the authority to implement Ohio's NSR program contained in Ohio Administrative Code (OAC) 3745-31. Specifically, OAC 3745-31-01 defines “regulated NSR pollutant” as including any pollutant for which a national ambient air quality standard has been promulgated and any constituents or precursors for such pollutants identified by the administrator. Therefore, under this authority, Ohio EPA has been applying its PSD program in accordance with the 2008 NSR Rule and the Phase 2 Rule, and as a result—Ohio EPA meets the requirement of section 110(a)(2)(C) to “include a program” that meets parts C and D. Ohio EPA asserts that EPA must approve these elements of Ohio's SIP because the State has met the infrastructure SIP requirements for including a program that assures the PM2.5NAAQS is addressed in Ohio's permit program, even absent Ohio submitting revisions to its PSD regulations as mandated by the 2008 NSR Rule and Phase 2 Rule.

Response 8:While it is true that Ohio EPA has included a program under parts C and D of the CAA in its SIP, and that EPA has approved various aspects of the State's PSD program in the past,9 EPA explained in our proposed rulemaking that the 2008 NSR Rule and Phase 2 Rule now obligate states to make explicit regulatory changes in order to clarify and remove any ambiguity concerning the requirements to specifically identify PM2.5precursors, to properly account for PM2.5and PM10condensables, and to treat NOXas a precursor to ozone in permitting contexts. EPA recognizes that Ohio currently has some authority to treat SO2and NOXas presumed precursors to PM2.5, and in a similar manner, to treat NOXas a precursor to ozone in permitting decisions. Our proposed rulemaking also recognized that Ohio EPA is in the process of adopting revisions to its PSD program to be wholly consistent with the applicable infrastructure SIP requirements obligated by the 2008 NSR Rule and Phase 2 Rule (seeFR 77 45995 at 45996-45998). EPA's regulations as codified in 40 CFR 51.166(b)(49)(i) and 40 CFR 52.21(b)(50)(i) for PM2.5precursors, and 40 CFR 51.166(b)(49)(vi) and 40 CFR 52.21(b)(50)(vi) for PM2.5and PM10condensables, required states to make specific revisions by May 16, 2011 (see73 FR 28321 at 28341). Because Ohio has not yet made these required revisions, however, EPA is finalizing a disapproval of these narrow portions of Ohio's infrastructure SIP for the 2006 PM2.5NAAQS. Likewise, the changes obligated by the Phase 2 Rule to explicitly identify NOXas a precursor to ozone and codified in 40 CFR 51.166(b)(1)(ii), 40 CFR 51.166(b)(2)(ii), 40 CFR 51.166(b)(23)(i), 40 CFR 51.166(49)(i), and footnote 1 to 40 CFR 51.166(i)(5)(i)(e) required states to submit specific revisions to EPA by June 15, 2007 (see70 FR 71612 at 71683). Because Ohio has not yet made these required revisions, EPA is finalizing a disapproval of this narrow portion of Ohio's infrastructure SIP for the 2006 PM2.5NAAQS.10 EPA will work actively with the State to ensure that the necessary SIP revisions are completed as expeditiously as possible. In the interim, we expect the State to adhere to the requirements of the 2008 NSR Rule with respect to the treatment and identification of PM2.5precursors and the accounting for PM2.5and PM10condensables applicability determinations and permitting emissions limits in its PSD program. We also expect Ohio to treat and explicitly identify NOXas a precursor to ozone for PSD permitting consistent with the requirements of the Phase 2 Rule.

Comment 9:WDNR submitted a comment letter to EPA disagreeing with our proposed disapproval of portions of its infrastructure SIP for the 2006 PM2.5NAAQS intended to address the relevant requirements obligated by the 2008 NSR Rule. WDNR states that EPA proposed a narrow disapproval of portions of its infrastructure SIP intended to meet the PSD requirements of section 110(a)(2)(C): Identifying PM2.5precursors; and, identifying PM2.5and PM10condensables in the PSD program.

Wisconsin notes that our proposed rulemaking states that “the infrastructure SIP requirements are designed to ensure that the structural components of each State's air quality management program are adequate to meet the State's responsibilities under the CAA.” Wisconsin also notes that under section 110(a)(2)(C), states are required to “include a program” for the regulation of the modification and construction of any stationary source to assure that NAAQS are achieved, including a permit program as required under parts C and D of CAA section 110(A)(2). Wisconsin argues that its infrastructure SIP submissions have clearly stated that WDNR has the resources and authorities necessary to implement and satisfy the requirements of section 110(a)(1) and (2) of the CAA for PM2.5and PM10.

Citing the definition of “regulated NSR air contaminant” in Wisconsin Administrative Code NR 405.02(25i) as including “any contaminant for which a national ambient air quality standard has been promulgated and anyconstituents or precursors for the air contaminant identified by the administrator,” the State asserts that it has been applying the PSD program in accordance with the explicit identification of precursor(s) to PM2.5and ozone, consistent with the 2008 NSR Rule and Phase 2 Rule. Furthermore, the State observes that all permits issued by WDNR address these requirements as codified by EPA, or through EPA guidance under the authority provided in Wisconsin State Statute and Wisconsin Administrative Code. WDNR therefore contends that it has met the requirements of section 110(a)(2)(C) to include a program that meets part C and D.

WDNR also notes that it has been accounting for condensable particulate matter in its PSD permitting program since the beginning of the program; particulate matter and particulate matter emissions have been defined to include condensables since 1989 and have been a part of the approved SIP since 1993. Wisconsin asserts that EPA must approve these elements of Wisconsin's infrastructure SIP, because WDNR has met the applicable requirements.

Response 9:While it is true that WDNR has included a program required under parts C and D of the CAA in its SIP, and EPA has approved various aspects of the State's PSD program in the past,11 EPA explained in our proposed rulemaking that the 2008 NSR Rule and Phase 2 Rule now obligate states to make explicit regulatory changes in order to clarify and remove any ambiguity concerning the requirements to explicitly identify PM2.5precursors, to properly account for PM2.5and PM10condensables, and to treat NOXas a precursor to ozone in permitting contexts.12 Our proposed rulemaking referenced Wisconsin's definition of “regulated NSR air contaminant” as providing generic language to define what constitutes a regulated NSR pollutant; however, the State's current rules do not contain provisions that would directly account for PM2.5and its precursors in NSR permitting. EPA's regulations as codified in 40 CFR 51.166(b)(49)(i) and 40 CFR 52.21(b)(50)(i) for PM2.5precursors, required states to make specific revisions by May 16, 2011. Because Wisconsin has not yet made these required revisions, EPA is finalizing a disapproval of this narrow portion of Wisconsin's infrastructure SIP for the 2006 PM2.5NAAQS with respect to the explicit identification of PM2.5precursors. With respect to accounting for particulate matter condensables in its PSD permitting program, EPA recognizes that Wisconsin Administrative Code NR 439 contains the requirements for reporting, recordkeeping, testing, inspection, and determination of compliance for air contaminant sources and their owners and operators. Of note, NR 439.02(4) defines “condensible [sic] particulate matter” as “any material, except uncombined water, that may not be collected in the front half of the particulate emission sampling train but which exists as a solid or liquid at standard conditions.” However, Wisconsin's current SIP does not contain the explicit language to account for PM2.5and PM10condensables in applicability determinations and permitting decisions, as required by 40 CFR 51.166(b)(49)(vi) and 40 CFR 52.21(b)(50)(vi), and to date, the State has not made a submission with such revisions. As a result of EPA's own regulations and the May 16, 2011 deadline for submitting revisions consistent with the 2008 NSR Rule, we are finalizing the disapproval of this narrow portion of Wisconsin's infrastructure SIP for the 2006 PM2.5NAAQS with respect to the explicit regulation of PM2.5and PM10condensables in permits. EPA will work actively with the State to ensure that the necessary SIP revisions are completed as expeditiously as possible. We will work with Wisconsin to rectify these issues promptly, and in the interim, we expect the State to adhere to the requirements of the 2008 NSR Rule with respect to the treatment and identification of PM2.5precursors and the accounting for PM2.5and PM10condensables in applicability determinations and permitting emissions limits in its PSD program. Although not germane to this action, we also expect Wisconsin to treat and explicitly identify NOXas a precursor to ozone for PSD permitting consistent with the requirements of the Phase 2 Rule.

For the reasons discussed in the proposed rulemaking, EPA is taking final action to approve most elements and disapprove narrow portions of other elements of submissions from the EPA Region 5 States certifying that the current SIPs are sufficient to meet the required infrastructure elements under sections 110(a)(1) and (2) for the 2006 PM2.5NAAQS. EPA is also taking final action to approve portions of a submission from Indiana intended to meet EPA's requirements for the NSR and PSD programs in that State. Specifically, they are: (i) 326 IAC 2-1.1-1(2); (ii) 326 IAC 2-1.1-1(10); (iii) 326 IAC 2-2-1(dd)(1); (iv) 326 IAC 2-2-1(ff)(7); (v) 326 IAC 2-2-1(ss)(1); (vi) 326 IAC 2-2-1(ww)(1)(F); (vii) 326 IAC 2-2-1(ww)(1)(G); and, (viii) 326 IAC 2-2-4(b)(2)(vi). As detailed in our proposed rulemaking, these revisions are wholly consistent with the infrastructure SIP requirements associated with the 2008 NSR Rule and the Phase 2 Rule.

Due to the current status of CSAPR, EPA is not finalizing our previously proposed approval for the interstate transport requirements addressing visibility protection of section 110(a)(2)(D)(i)(II) for Indiana, Ohio, Minnesota, and Wisconsin for the 2006 PM2.5NAAQS. EPA is also not taking any action on Michigan's satisfaction of these requirements. As explained in the comments and responses section, EPA is finalizing our previously proposed approval of Illinois' infrastructure SIP for the interstate transport requirements addressing visibility protection of section 110(a)(2)(D)(i)(II).

As a result of a comment letter submitted by the State of Michigan, EPA is not finalizing our previously proposed disapproval of narrow portions of section 110(a)(2)(C), section 110(a)(2)(D)(i)(II), and section 110(a)(2)(J) for the State. Instead, EPA will address Michigan's satisfaction of the applicable PSD requirements obligated by the 2008 NSR Rule and the Phase 2 Rule in a separate rulemaking. Lastly, as a result of a comment received during the public comment period, EPA is not finalizing its proposed approval of the submission from Indiana with respect to one narrow issue that relates to section 110(a)(2)(C), (D)(i)(II), and (J). Specifically, EPA will address the PSD source impact analysis requirements for the 2006 PM2.5NAAQS in the State of Indiana in a later action.

EPA's final actions for each Region 5 State's satisfaction of infrastructure SIP requirements, by element of section 110(a)(2) are contained in the table below.

As originallydescribed in the proposed rulemaking, EPA is finalizing disapproval of the infrastructure SIP submissions from Illinois and Minnesota with respect to certain PSD requirements including: (i) The explicit identification of SO2and NOXas PM2.5precursors consistent with the requirements of the 2008 NSR Rule; (ii) the regulation of PM2.5and PM10condensables consistent with the requirements of the 2008 NSR Rule; (iii) the explicit identification of NOXas a precursor to ozone consistent with the Phase 2 Rule; and, (iv) permitting of GHG emitting sources at the Federal Tailoring Rule thresholds.

EPA is also finalizing the disapproval of the infrastructure SIP submissions from Illinois and Minnesota with respect to the requirements of section 110(a)(2)(D)(ii) related to interstate pollution abatement. Specifically, this section requires states with PSD programs have provisions requiring a new or modified source to notify neighboring states of the potential impacts from the source, consistent with the requirements of section 126(a).

However, Illinois and Minnesota have no further obligations as a result of this disapproval because Federally promulgated rules, promulgated at 40 CFR 52.21 are in effect in each of these States. EPA has delegated the authority to Illinois and Minnesota to administer these rules, which include provisions related to PSD and interstate pollution abatement. This final disapproval for Illinois and Minnesota for these infrastructure SIP requirements will not result in sanctions under section 179(a), nor will it obligate EPA to promulgate a FIP within two years of final action if the States do not submit revisions to their PSD SIPs addressing these deficiencies. Instead, Illinois and Minnesota are already subject to the Federally promulgated PSD regulations, and both States administer these regulations via EPA's delegated authority.

The grounds for EPA's final disapproval of portions of the infrastructure SIP submittals from Ohio and Wisconsin are very narrow, and pertain only to these specific deficiencies in the States' SIPs described in the relevant sections of the proposed rulemaking, as well as in the responses to comments section of today's rulemaking.

As previously discussed, EPA believes that Ohio has been actively preparing necessary revisions to its PSD program, consistent with the requirements of the Phase 2 Rule and the 2008 NSR Rule. We will work with the State to rectify these issues promptly. In addition, EPA will work with WDNR to account for the explicit identification of precursors to PM2.5, as well as PM2.5and PM10condensables, in its PSD program.14

Under section 179(a) of the CAA, final disapproval of a submission that addresses a requirement of a Part D Plan (section 171-section 193 of the CAA), or is required in response to a finding of substantial inadequacy as described in section 110(k)(5) starts a sanction clock. The provisions in the submissions we are disapproving were not submitted by Ohio or Wisconsin to meet either of those requirements. Therefore, no sanctions under section 179 will be triggered.

The full or partial disapproval of a SIP revision triggers the requirement under section 110(c) that EPA promulgate a FIP no later than two years from the date of the disapproval unless the State corrects the deficiency, and the Administrator approves the plan or plan revision before the Administratorpromulgates such FIP. As detailed in the proposed rulemaking, EPA anticipates that Ohio EPA will make submissions rectifying each of the deficiencies that are the basis for the disapprovals in this action. Further, EPA anticipates acting on the anticipated submissions from the State within the two year time frame prior to our FIP obligation on these very narrow issues. In the interim, EPA expects Ohio to treat and explicitly identify NOXas a precursor to ozone for PSD permitting consistent with the requirements of the Phase 2 Rule. EPA also expects the State to adhere to the requirements of the 2008 NSR Rule with respect to the treatment and identification of PM2.5precursors and the accounting for PM2.5and PM10condensables in applicability determinations and permitting emissions limits in its PSD program.

EPA will actively work with Wisconsin to incorporate changes to its PSD program that explicitly identify PM2.5precursors and account for PM2.5and PM10condensables in applicability determinations and permitting emissions limits, consistent with the 2008 NSR Rule. In the interim, EPA expects WDNR to adhere to the associated requirements of the 2008 NSR Rule in its PSD program, specifically with respect to the explicit identification of PM2.5precursors, and the accounting for PM2.5and PM10condensables in applicability determinations and permitting emissions limits.

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

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

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

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

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

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

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

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

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

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

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

40 CFR part 52 is amended as follows:

On August 23, 2012 (77 FR 50966), EPA published a notice of proposed rulemaking (NPR) for the State of Maryland. The NPR proposed approval of the attainment demonstration portion of Maryland's attainment plan for the 1997 8-hour ozone NAAQS for the Philadelphia Area. The formal SIP revision (#07-05) was submitted by Maryland on June 4, 2007.

The SIP revision consists of the attainment demonstration portion of the attainment plan submitted by Maryland as a SIP revision on June 4, 2007 to demonstrate attainment of the 1997 8-hour ozone NAAQS for the Philadelphia Area by the applicable attainment date of June 2011. EPA previously approved other portions of the Maryland attainment plan submitted on June 4, 2007.See75 FR 33172 (June 11, 2010). EPA has determined that the weight of evidence analysis that Maryland used to support the attainment demonstration provides sufficient evidence that the Philadelphia Area would attain the 1997 8-hour ozone NAAQS by the applicable attainment date of June 2011. Specific requirements of the attainment demonstration and the rationale for EPA's proposed action to approve the attainment demonstration are explained in the NPR and in the technical support document (TSD) for the NPR and will not be restated here. No public comments were received on the NPR.

Separately, EPA conducted a process to find adequate the motor vehicle emission budgets (MVEBs) for Cecil County which are associated with the Maryland attainment demonstration for the Philadelphia Area. A notice was posted on EPA's Web site for a 30-day public comment period on the adequacy determination for the 2009 MVEBs associated with the attainment demonstration for Cecil County. No comments were received during the public comment period. Therefore, EPA finds adequate the MVEBs for transportation conformity purposes for Cecil County, Maryland.

EPA is approving the attainment demonstration portion of the attainment plan for the 1997 8-hour ozone NAAQS which was submitted by Maryland on June 4, 2007. EPA has determined that Maryland's SIP revision demonstrates attainment of the 1997 8-hour ozone NAAQS for the Philadelphia Area by the applicable attainment date. EPA has determined that the SIP revision meets the applicable requirements of the CAA. EPA is also approving and finding adequate the 2009 MVEBs associated with the attainment demonstration for Cecil County, Maryland.

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

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 28, 2012. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action pertaining to the Maryland attainment demonstration for the 1997 8-hour ozone NAAQS for the Philadelphia Area may not be challenged later in proceedings to enforce its requirements. (Seesection 307(b)(2).)

40 CFR part 52 is amended as follows:

On August 6, 2012 (77 FR 46672), EPA published a notice of proposed rulemaking (NPR) for the Commonwealth of Virginia. The NPR proposed approval of the Virginia SIP revision that updates the 2009 and 2015 MVEBs in the Fredericksburg Area by replacing the previously approved MVEBs with budgets developed using MOVES2010a. By EPA's finalizing the proposed approval, the newly submitted MOVES2010a MVEBs will replace the existing, MOBILE6.2-based budgets in Virginia's SIP and must then be used in future transportation conformity analyses for the Fredericksburg Area according to the transportation conformity rule.See40 CFR 93.118. The previously approved budgets will no longer be applicable for transportation conformity purposes. Additionally, with the approval of the MOVES2010a-based MVEBs, the regional transportation conformity grace period for not using MOVES2010a for the pollutants included in these budgets will end for the Fredericksburg Area on the effective date of this final approval. See 75 FR 9411, 9414 (March 2, 2010) forbackground on MOVES2010a and Section II.C for details. EPA received no comments on the NPR to approve Virginia's SIP revision.

On September 26, 2011, the Commonwealth of Virginia through VADEQ submitted a SIP revision with MVEBs based on MOVES2010a for the years 2009 and 2015 to help ensure that the Fredericksburg Area can demonstrate transportation conformity using MOVES2010a MVEBs once the grace period expires as discussed in more detail in the NPR.

States that revise their existing SIPs to include MVEBs based on MOVES2010a must show that the SIP continues to meet applicable requirements with the new level of motor vehicle emissions contained in the budgets. EPA has determined that the Fredericksburg Area maintenance plan continues to serve its intended purpose with the MOVES2010a-based MVEBs and that the budgets meet the adequacy criteria in the conformity rule at 40 CFR 93.118(e)(4).

EPA is approving the MOVES2010a-based MVEBs submitted by Virginia for use in determining transportation conformity in the Fredericksburg Area because the submitted budgets will continue to keep emissions below the attainment level and maintain air quality and continue to demonstrate maintenance of the 1997 8-hour ozone NAAQS. On the effective date of this rulemaking, the submitted MOVES2010a-based MVEBs will replace the existing, MOBILE6.2-based budgets in the Fredericksburg 8-Hour Ozone Maintenance Plan and will be used in future transportation conformity analyses for the Fredericksburg Area. The previously approved MOBILE6.2-based budgets will no longer be applicable for transportation conformity purposes. The following table compares the nitrogen oxide (NOX) MVEBs developed using MOBILE6.2 to the inventories developed using MOVES2010a.

In 1995, Virginia adopted legislation that provides, subject to certain conditions, for an environmental assessment (audit) “privilege” for voluntary compliance evaluations performed by a regulated entity. The legislation further addresses the relative burden of proof for parties either asserting the privilege or seeking disclosure of documents for which the privilege is claimed. Virginia's legislation also provides, subject to certain conditions, for a penalty waiver for violations of environmental laws when a regulated entity discovers such violations pursuant to a voluntary compliance evaluation and voluntarily discloses such violations to the Commonwealth and takes prompt and appropriate measures to remedy the violations. Virginia's Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-1198, provides a privilege that protects from disclosure documents and information about the content of those documents that are the product of a voluntary environmental assessment. The Privilege Law does not extend to documents or information that: (1) Are generated or developed before the commencement of a voluntary environmental assessment; (2) are prepared independently of the assessment process; (3) demonstrate a clear, imminent and substantial danger to the public health or environment; or (4) are required by law.

On January 12, 1998, the Commonwealth of Virginia Office of the Attorney General provided a legal opinion that states that the Privilege law, Va. Code Sec. 10.1-1198, precludes granting a privilege to documents and information “required by law,” including documents and information “required by Federal law to maintain program delegation, authorization or approval,” since Virginia must “enforce Federally authorized environmental programs in a manner that is no less stringent than their Federal counterparts* * *.” The opinion concludes that “[r]egarding § 10.1-1198, therefore, documents or other information needed for civil or criminal enforcement under one of these programs could not be privileged because such documents and information are essential to pursuing enforcement in a manner required by Federal law to maintain program delegation, authorization or approval.”

Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that “[t]o the extent consistent with requirements imposed by Federal law,” any person making a voluntary disclosure of information to a state agency regarding a violation of an environmental statute, regulation, permit, or administrative order is granted immunity from administrative or civil penalty. The Attorney General's January 12, 1998 opinion states that the quoted language renders this statute inapplicable to enforcement of any Federally authorized programs, since “no immunity could be afforded from administrative, civil, or criminal penalties because granting such immunity would not be consistent with Federal law, which is one of the criteria for immunity.”

Therefore, EPA has determined that Virginia's Privilege and Immunity statutes will not preclude Virginia from enforcing its program consistent with the Federal requirements. In any event, because EPA has also determined that a state audit privilege and immunity law can affect only state enforcement and cannot have any impact on Federal enforcement authorities, EPA may at any time invoke its authority under the CAA, including, for example, sections 113, 167, 205, 211 or 213, to enforce the requirements or prohibitions of the state plan, independently of any state enforcement effort. In addition, citizen enforcement under section 304 of the CAA is likewise unaffected by this, or any, state audit privilege or immunity law.

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

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 28, 2012. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action approving Virginia's 2009 and 2015 MVEBs in the Fredericksburg 8-Hour Area using MOVES2010a may not be challenged later in proceedings to enforce its requirements. (Seesection 307(b)(2).)

40 CFR Part 52 is amended as follows:

Throughout this document, whenever “we,” “us,” or “our” is used, we mean EPA. On June 6, 2012, the West Virginia Department of Environmental Protection (WVDEP) submitted a formal revision to its SIP pertaining to amendments of Legislative Rule, 45 CSR 8—Ambient Air Quality Standards. The SIP revision consists of a change in the effective date of the incorporation by reference of the NAAQS and their monitoring reference and equivalent methods. EPA had approved a previous revision of Legislative Rule 45 CSR 8 on September 12, 2012 (77 FR 56125).

This SIP revision is part of an annual submission by WVDEP to update their incorporation by reference of the National Primary and Secondary Ambient Air Quality Standards which are found at 40 CFR Part 50. The SIP revision also updates the incorporation by reference of the Ambient Air Monitoring Reference and Equivalent Methods which are found at 40 CFR Part 53. The amendments to the legislative rule include changes to section 45-8-1 (General) in which the filing and effective dates are changed to reflect the update of the legislative rule. They also include changes to section 45-8-3 (Adoption of Standards) in which the effective dates for the incorporation by reference of the National Primary and Secondary Ambient Air Quality Standards and the Ambient Air Monitoring Reference and Equivalent Methods are also changed to reflect the update of the legislative rule. The filing and effective dates of the legislative rule were updated and changed to May 1, 2012 and June 1, 2012 respectively. The effective date of the incorporation by reference of 40 CFR Part 50 and 40 CFR Part 53 changed from June 16, 2011 to June 1, 2012.

EPA is approving the amendments to Legislative Rule, 45 CSR 8—Ambient Air Quality Standards, into the West Virginia SIP. EPA is publishing this rule without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comment. However, in the “Proposed Rules” section of today'sFederal Register, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on December 28, 2012 without further notice unless EPA receives adverse comment by November 28, 2012. If EPA receives adverse comment, EPA willpublish a timely withdrawal in theFederal Registerinforming the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

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

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 28, 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. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today'sFederal Register, rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking.

This action pertaining to the amendments of Legislative Rule 45 CSR 8 may not be challenged later in proceedings to enforce its requirements. (Seesection 307(b)(2).)

40 CFR Part 52 is amended as follows:

In FR Doc. 2012-19079 of August 31, 2012 (77 FR 53258) (hereinafter referred to as the FY 2013 IPPS/LTCH PPS final rule), there were technical and typographical errors that are identified and corrected in the Correction of Errors section of this correcting document. We note that in the October 3, 2012Federal Register(77 FR 60315), we corrected a number of the errors in the FY 2013 IPPS/LTCH PPS final rule including an error in the table regarding the final performance standards for the FY 2015 Hospital Value-Based Purchasing (HVBP) program. (For more detailed information, see sections II.A. and IV.A.11. of the October 3, 2012 correcting document).

On pages 53601 and 53602, we have determined that there were also errors in the achievement thresholds and benchmark values presented in the Clinical Process of Care measures section of the final performance standards for the FY 2015 HVBP Program table. The omission of the label for the HF-1 measure resulted in the performance standards for all subsequent measures being shifted up one line each. The table now reflects the corrections for all finalized Clinical Process of Care measures.

On page 53695, we made typographical errors in the charge inflation factor for the FY 2013 IPPS outlier threshold.

We ordinarily publish a notice of proposed rulemaking in theFederal Registerto provide a period for public comment before the provisions of a rule take effect in accordance with section 553(b) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). However, we can waive this notice and comment procedure if the Secretary finds, for good cause, that the notice and comment process is impracticable, unnecessary, or contrary to the public interest, and incorporates a statement of the finding and the reasons therefore in the notice.

Section 553(d) of the APA ordinarily requires a 30-day delay in effective date of final rules after the date of their publication in the. This 30-day delay in effective date can be waived, however, if an agency finds for good cause that the delay is impracticable, unnecessary, or contrary to the public interest, and the agency incorporates a statement of the findings and its reasons in the rule issued.

In our view, this correcting document does not constitute a rule that would be subject to the APA notice and comment or delayed effective date requirements. This correcting document corrects technical and typographical errors in the preamble and addendum, but does not make substantive changes to the policies or payment methodologies thatwere adopted in the final rule. As a result, this correcting document is intended to ensure that the preamble and addendum, accurately reflects the policies adopted in that final rule.

In addition, even if this were a rule to which the notice and comment and delayed effective date requirements applied, we find that there is good cause to waive such requirements. Undertaking further notice and comment procedures to incorporate the corrections in this document into the final rule or delaying the effective date would be contrary to the public interest. Furthermore, such procedures would be unnecessary, as we are not altering the policies that were already subject to comment and finalized in our final rule. Therefore, we believe we have good cause to waive the notice and comment and effective date requirements.

In FR Doc. 2012-19079 of August 31, 2012 (77 FR 53258), make the following corrections:

1. On pages 53601 and 53602, the table entitled “FINAL PERFORMANCE STANDARDS FOR THE FY 2015 HOSPITAL VBP PROGRAM CLINICAL PROCESS OF CARE, OUTCOME, AND EFFICIENCY DOMAINS,” the entries for the clinical process of care measures are corrected as follows:

1. On page 53695, third column, first paragraph, line 2, the figures “8.94 percent (1.0866203)” are corrected to read “8.66 percent (1.0866203)”.

NASA published a proposed rule in theFederal Registerat 76 FR 30301 on May 25, 2011. NASA's Federal Acquisition Regulation Supplement (NFS) currently contains an inaccurate prohibition on anchor tenancy contracts. The prohibition is included in the NFS based on The Space Act, as amended by NASA's FY 1992 Appropriations Act (42 U.S.C. 2459d). The NFS states no appropriated funds may be used to enter into contracts, grants, or other agreements for more than 1 year if the primary effect is to provide a guaranteed customer base for or establish an anchor tenancy in new commercial space hardware or services unless an appropriations Act specifies the new commercial space hardware or services to be developed/used or the contract, grant, or agreement is specified in an appropriations Act. However, subsequent to the prohibition, as part of NASA's FY 1993 Authorization Act, 15 U.S.C. 5806 was added to the Commercial Space Competitiveness Act (CSCA). The latter statute includes limited authority for NASA to enter into multi-year anchor tenancy contracts for the purchase of a good or service if the Agency receives an appropriation that (1) authorizes a multi-year anchor tenancy contract and (2) specifies the commercial space product or service to be developed or used. Furthermore, the NASA Administrator would be required to make a determination that addresses the following six criteria:

(1) The good or service meets the mission requirements of NASA;

(2) The commercially procured good or service is cost effective;

(3) The good or service is procured through a competitive process;

(4) Existing or potential customers for the good or service other than the United States Government have been specified identified;

(5) The long-term viability of the venture is not dependent upon a continued Government market or other nonreimbursable Government support; and

(6) Private capital is at risk in the venture.

The purpose of this final rule is to reconcile the NFS with the statutory authority for Anchor Tenancy contracts.

The due date for public comments in response to the proposed rule was July 25, 2011. NASA received general comments in support of the rule from one respondent. The respondent expressed support for NASA's rule, and noted that it reflects efforts aimed at achieving goals set forth in the Administration's 2010 National Space Policy to support growth in the commercial space sector.

During the comment period, NASA recognized a need to clarify the rule. Consequently, minor changes have been made to the proposed rule in this final rule, as follows: The discussion of statutory authority has been consolidated and simplified; it is now discussed only in paragraph (a). The final rule identifies what is meant by an anchor tenancy whereas anchor tenancy was previously described in the background of theFederal RegisterNotice for the proposed rule.

This is not a significant regulatory action and, therefore, was not subject to review under Section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. In accordance with Executive Order 13563, Improving Regulation and Regulatory Review, dated January 18, 2011, NASA determined that this rule is not excessively burdensome to the public, and is consistent with the administrative nature of rule. This is not a major rule under 5 U.S.C. 804.

The final rule is not expected to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq. because it does not impose any new requirements on small entities. The rule clarifies NASA's authority to enter into Anchor Tenancy contracts, under limited conditions.

The Paperwork Reduction Act (Pub. L. 104-13) is not applicable because the NFS changes do not impose information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.

Accordingly, 48 CFR part 1812 is amended as follows:

To view comments, go tohttp://www.regulations.gov,FMCSA-2012-0156. If you do not have access to the internet, you may also view the docket online by visiting the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act notice regarding our public dockets in the January 17, 2008, issue of theFederal Register(73 FR 3316).

On August 27, 2012, FMCSA published a DFR to amend the definition of “gross combination weight rating” (GCWR) in 49 CFR parts 383 and 390. The DFR provided that the rule would be effective October 26, 2012, if no adverse comments were received by September 26, 2012. In view of three adverse comments submitted to the docket, FMCSA withdraws the DFR through this notice.

Commenter John F. Nowak stated that the definition of GCWR should not be amended until the National Highway Traffic Safety Administration (NHTSA) changes its regulations to require manufacturers to include a vehicle's GCWR in addition to its gross vehicle weight rating (GVWR) on the certification label. He argued that it was difficult at this time for drivers, motor carriers, and law enforcement officers to obtain GCWR information quickly. Mr. Nowak claimed that currently only the second half of the existing definition of GCWR is readily available for use by carrier and enforcement personnel. This commenter went on to say that because FMCSA must be aware of the difficulty in obtaining the manufacturer's GCWR for any particular vehicle, the second sentence of the existing definition must be retained.

Currently, the definitions in 49 CFR 383.5 and 390.5 both defineGross combination weight rating (GCWR)as the value specified by the manufacturer as the loaded weight of a combination (articulated) vehicle. In the absence of a value specified by the manufacturer, GCWR will be determined by adding the GVWR1 of the power unit and the total weight of the towed unit and any load thereon.

Mr. Nowak agrees with FMCSA that the definition of GCWR should ultimately be changed to reflect NHTSA's definition of that term. Prior to this change, however, he suggests that the FMCSA place the responsibility for obtaining GCWR information on law enforcement officers and refrain from taking adverse action against drivers or carriers for failure to have this information.

Commenter Bryce Baker indicates that manufacturers do not list the GCWR on the vehicle. Even if such a value is available from the manufacturer, he states, the time needed to obtain the information would make enforcement fruitless. Although commenter David S. McQueen also opposes the change included in the DFR, his position seems to be based on a misunderstanding of the GCWR definition used by the National Highway Traffic Safety Administration.

FMCSA Response:The comments submitted by these three individuals qualify as adverse. Therefore, under 49 CFR 389.39(d), FMCSA withdraws the direct final rule of August 27, 2012 (77 FR 51706).

Regulations governing the Atlantic herring fishery are found at 50 CFR part 648. The regulations require annual specification of the overfishing limit, acceptable biological catch (ABC), annual catch limit (ACL), optimum yield (OY), domestic harvest and processing, U.S. at-sea processing, border transfer and sub-ACLs for each management area. The 2012 Domestic Annual Harvest was set as 91,200 metric tons (mt); the sub-ACL allocated to Area 1A for the 2012 fishing year (FY) was 26,546 mt and no herring catch was set aside for research in the 2010-2012 specifications (75 FR 48874, August 12, 2010). Due to an over-harvest in Area 1A in 2010, the FY 2012 sub-ACL in Area 1A was revised to 24,668 mt on February 24, 2012 (77 FR 10978, February 24, 2012). An additional 295 mt of the Area 1A sub-ACL is set aside for fixed gear fisheries west of Cutler, ME, until November 1, 2012, reducing the Area 1A sub-ACL to 24,373 mt. Due to the variability of Canadian catch in the New Brunswick weir fishery, a 3,000 mt portion of the 9,000 mt buffer between ABC and OY (the buffer to account for Canadian catch) is allocatedto Area 1A, provided New Brunswick weir landings are lower than the amount specified in the buffer.

The NMFS Regional Administrator is required to monitor the fishery landings in the New Brunswick weir fishery each year. If the New Brunswick weir fishery landings through October 15 are less than 9,000 mt, then 3,000 mt of the weir fishery allocation is required to be added to the Area 1A sub-ACL in November of the same year. When such a determination is made, NMFS is required to publish a notification in theFederal Registerto adjust the Area 1A sub-ACL for the remainder of the FY.

The Regional Administrator has determined, based on the best available information, that the New Brunswick weir fishery landings for FY 2012 through October 15, 2012, were 409 mt. Therefore, effective November 1, 2012, 3,000 mt will be allocated to the Area 1A sub-ACL, increasing the FY 2012 Area 1A sub-ACL from 24,373 mt to 27,373 mt. Because any increase to a sub-ACL also increases the stock-wide ACL, this allocation increases the 2012 stock-wide ACL from 91,200 mt to 94,200 mt. Additionally, the allocation of 3,000 mt to Area 1A will be taken into consideration when NMFS projects that catch will reach 95 percent of the Area 1A sub-ACL.

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

The Assistant Administrator for Fisheries, NOAA (AA), finds good cause pursuant to 5 U.S.C. 553(b)(B) to waive prior notice and the opportunity for public comment because it is impracticable and contrary to the public interest. This action increases the sub-ACL for Area 1A by 3,000 mt (from 24,373 mt to 27,373 mt) through December 31, 2012. The regulations at § 648.201(f) require such action to help mitigate some of the negative economic effects associated with the reduction in the Area 1A sub-ACL in the 2010-2012 specifications process (40 percent less than in 2009). The herring fishery extends from January 1 to December 31. Data indicate the New Brunswick weir fishery landed 409 mt through October 15, 2012. There is a limited amount of time between October 15 (when the New Brunswick weir fishery slows for the year) and the end of the U.S. herring fishing year on December 31. If implementation of this Area 1A sub-ACL increase is delayed to solicit prior public comment, the increase may not be effective prior to the end of the 2012 fishing year and the 3,000 mt allocation would not be available for harvest. Additionally, the availability of herring in Area 1A is seasonal. As the end of the fishing year approaches, herring can disperse or move out of Area 1A, and/or the approach of winter weather can hinder fishery access to herring in Area 1A. The best available information indicates that current catch is close to 95 percent of the Area 1A sub-ACL. If implementation of this increase is delayed to solicit prior public comment, herring may no longer be available to the fishery for harvest in Area 1A, thereby undermining the intended economic benefits associated with this action. NMFS further finds, pursuant to 5 U.S.C 553(d)(3), good cause to waive the 30-day delayed effectiveness period for the reasons stated above.