Federal Register Vol. 80, No.34,

In the first stage of its eFiling initiative, the FLRA enabled parties to use eFiling to file requests for Federal Service Impasses Panel assistance in the resolution of negotiation impasses. See 77 FR 5987 (Feb. 7, 2012). The second stage of the FLRA's eFiling initiative provided parties with an option to use eFiling to electronically file 11 types of documents in cases filed with the FLRA's three-member adjudicatory body, the Authority. Parties may now file such documents. See 77 FR 26430 (May 4, 2012). The third stage of the FLRA's eFiling initiative provided parties with the option to use eFiling to electronically file certain documents involved in representation and unfair labor practice proceedings. See 77 FR 37751 (June 25, 2012).

The fourth stage of the FLRA's eFiling initiative is the subject of this Final Rule. In this stage, parties will be able to use the FLRA's eFiling system to file certain documents involved in unfair labor practice proceedings before the FLRA's Office of Administrative Law Judges. This rule modifies the FLRA's existing regulations to allow eFiling of those documents. As the FLRA's eFiling procedures develop, the revisions set forth in this action may be evaluated and revised further.

Sectional analysis of the amendments and revisions to part 2429, Miscellaneous and General Requirements, are as follows:

This section is amended to reflect the addition of eFiling as an authorized means of filing documents with the Office of Administrative Law Judges pursuant to paragraph (f)(15) of this section and corrects the person with whom such documents must be filed by replacing appropriate administrative law judge with Chief Administrative Law Judge.

This section is added to reflect that documents filed with the Office of Administrative Law Judges are now documents that can be filed using eFiling as an alternative to the filing methods discussed in paragraph (e) of this section.

As described above, this amendment updates the regulations to merely expand the Federal Labor Relations Authority's current electronic filing system. This rule pertains to agency organization, procedure, or practice, and it is exempt from prior notice and public comment pursuant to 5 U.S.C. 553(b)(A).

The FLRA is an independent regulatory agency, and as such, is not subject to the requirements of E.O. 12866.

The FLRA is an independent regulatory agency, and as such, is not subject to the requirements of E.O. 13132.

Pursuant to section 605(b) of the Regulatory Flexibility Act, 5 U.S.C. 605(b), the Chairman of the FLRA has determined that this rule, as amended, will not have a significant impact on a substantial number of small entities, because this rule applies only to federal agencies, federal employees, and labor organizations representing those employees.

This rule change will not result in the expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

This action is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996. This rule will not result in an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

The amended regulations contain no additional information collection or record-keeping requirements under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501, et seq.

For the reasons stated in the preamble, the FLRA amends 5 CFR part 2429, as follows:

On October 27, 2014, the Postal Service published a proposed rule (79 FR 63880) to revise the Postal Service's procedures concerning the expansion, relocation, and construction of Post Offices to clarify those procedures, and to require the Postal Service to provide more information to communities and elected officials about certain types of projects earlier in the planning phase. The proposed rule would require the Postal Service to notify communities and officials, and solicit and consider their input, regarding proposals to relocate retail services or add a new retail service facility. As a significant change from the current rule, the proposed rule would require the Postal Service to provide information about the anticipated new location for relocated services or for a new retail service facility when the Postal Service first gives notice of the proposal. The Postal Service established a 30-day comment period and invited comments on the proposed rule. The Postal Service received five responses.

Below is a summary of the comments, in order of the specific sections of the proposed rule to which they relate.

One respondent asserted that there is no substantive reason for changing the current rule and that the Postal Service should retain the current rule. The respondent suggested that defining “customer service facility” is unnecessary.

We disagree with the comment. The Postal Service Office of Inspector General (OIG) specifically recommended that the Postal Service revise its regulations to enhance transparency and public input. Based on past experience, we agreed with the OIG's recommendation. The current rule does not define “customer service facility” and as the Postal Service evolves to adapt to a fast changing marketplace, providing definitions in the new rule will clarify when the new rule applies.

Another respondent commented that the new rule should define “relocation” and the definition should state a maximum permitted distance for relocating retail services.

We expect readers of the new rule will understand “relocation” to have its ordinary dictionary meaning. We also disagree that the new rule should include an arbitrary distance limitation because such a limitation could prevent appropriately accounting for important factors, such as the setting (urban, suburban, or rural), site conditions (public transit availability, location on a one-way street, etc.) and the proximity of other Postal Service retail locations.

One respondent suggested that some causes of relocation added to the “emergency” category in the proposed rule are inconsistent with a definition of “emergency” as a sudden event requiring immediate action. The respondent also expressed concern that expanding the “emergency” category increases the universe of relocations that can occur without community input because the new rule, as proposed, provided for the Postal Service to determine when it is prudent to obtain community input on the long-term location after an emergency relocation. The respondent questioned adding examples of relocations arising from safety concerns without limiting those concerns to some specified level of seriousness, and the respondent urged retaining a 180-day limit for both temporary and emergency relocations.

We appreciate the concerns raised in these comments. The current rule lists “lease termination” as an example of an event that may require an emergency relocation, but the current rule is silent on lease expirations. Nor does the current rule recognize that some lessors reserve a right during the lease term to require the Postal Service to move to a different location, e.g., a substitute space in the lessor's project. However, the Postal Service believes it is prudent to provide in the final rule for soliciting and considering community input regarding relocations arising from such events. While these events may not be completely unexpected like other events listed as “emergencies”, their timing is not always predictable. The Postal Service may not know when a lessor will exercise its right to terminate a lease or its right to require the Postal Service to move to different premises. Similarly, a lease may expire unexpectedly when the Postal Service had believed it would be renewed. Accordingly, the final rule retains the “temporary” and “emergency” categories, but adds a third category, “provisional relocations,” to include relocations made necessary by lease terminations, expirations and lessor-required moves to substitute locations, when the Postal Service has not undertaken the community input process prior to the relocation. However, the final rule requires the Postal Service to undertake the community input process within 180 days following a provisional relocation.

We disagree with the portion of the comment concerning relocations arising from safety concerns. Because a relocation is a significant project, the Postal Service would not undertake a relocation without good cause. We place great importance on the security of the mail and the safety of our customers and personnel. We see no reason to identify arbitrarily a threshold level of risk to persons or the mail.

With regard to applying a 180-day limitation on the duration of a relocation, such a limitation is appropriate for temporary relocations as described in the rule because temporary relocations can be expected to require less than 180 days to fulfill their purposes. In contrast, a 180-day limitation would be arbitrary and imprudent for emergency relocations because the required duration of emergency relocations is not predictable, and the actual required duration may depend on the severity of the event, such as an earthquake. With regard to provisional relocations, the final rule adds a requirement to undertake the community input process within 180 days, which allows time for the Postal Service to tentatively identify potential permanent relocation sites, but assures that provisional relocations will not become permanent without undertaking the community input process.

One respondent urged the Postal Service to revise the new rule to require personal visits to local officials to discuss proposed projects.

The new rule requires the Postal Service to provide local elected officials with a written outline of the Postal Service's proposed project and to offer to discuss the project with the officials. In the Postal Service's experience, not all local officials welcome a personal visit, and a personal visit is not always the best use of scarce resources. Therefore, the new rule permits the Postal Service the flexibility to personally visit officials or to discuss the same information through other forms of communication.

Another comment expressed concern that without a requirement for the Postal Service to notify lessors when the Postal Service proposes to relocate out of a leased facility, the new rule could deprive some lessors of an opportunity for comment on the proposed relocation.

Under the proposed rule, lessors who reside in the community would receive the same notice as the rest of the community, making a separate notice unnecessary. However, the comment raises concern for lessors that are located outside the community and lease a facility to the Postal Service in the community. Those lessors may be unaware of a notice and, therefore, miss an opportunity to comment. The Postal Service values its business relations as well as its community relations, so the final rule incorporates a requirement to notify lessors, except when the lessor itself has terminated or declined to renew a Postal Service lease and therefore is presumed to anticipate a relocation.

One comment pertained to notifying customers in “exceptional circumstances,” e.g., a sparsely populated area without a convenient forum for a public meeting. The proposed rule would have included an option for posting notice in the affected retail service facility in lieu of the current rule's requirement to distribute notification cards to customers. The comment expressed concern that some customers could miss the notice.

While the proposed rule incorporated flexibility for notifications in these exceptional circumstances, we agree that in sparsely populated areas some customers may visit the affected retail service facility only infrequently and miss the notice. Therefore, the final rule requires the Postal Service to mail notice to customers in such exceptional circumstances.

One respondent agreed that the public will benefit from the new rule's requirement for the Postal Service to include the proposed relocation site in the information provided to a community about a proposed relocation, but then asserted that the new rule is a step backwards for community input because it requires the Postal Service to advance the planning process to site selection before presenting the relocation proposal to the community. This respondent also objected to permitting the Postal Service to identify a relocation “area” and asserted that the new rule will not change current Postal Service practice.

We disagree with these comments. Some communities and elected officials, as well as the Office of Inspector General, strongly suggested that communities could not effectively provide input on a proposed relocation decision without an understanding of the proposed new location for the retail services. To address that concern, the new rule requires the Postal Service to identify and discuss the proposed new site(s) or area, or both, for the relocated retail services as part of the discussion of the relocation proposal, which is a significant change from current practice. Necessarily then, under the new rule the Postal Service must tentatively identify a relocation site or area, or both, before presenting the proposal to the community. However, the requirement to identify a potential site and then obtain community input before committing to that site can create a conundrum for the Postal Service in some markets. For example, in some markets, identifying only one proposed site during the community input process could undercut the Postal Service's bargaining position with that site's landlord, which could force the Postal Service to agree to an unfairly high rent. As another example, in markets where landlords are rapidly leasing the available spaces that are suitable for a retail postal facility, a tentatively identified site may no longer be available for lease at the conclusion of the community input process. Accordingly, for proposed relocations and for additions of retail service facilities, the new rule permits the Postal Service to identify more than one site and/or area, which allows the Postal Service to mitigate those identification risks, while also giving the community an opportunity to voice its preference among the proposed sites or areas. The Postal Service then would consider that community input before selecting a specific location.

One comment advocated extending the public comment period, noting that 15 days is not enough time for a public comment period.

We agree that the current rule's 15-day comment period following the public meeting is too brief. Therefore, the new rule provides a 30-day period following the public meeting for the community and their elected officials to appeal the Postal Service's tentative decision proposing to relocate retail services or add a retail service facility and to comment on the proposal.

One respondent objected that the new rule calls for comments on whether the Postal Service proposal is the optimal solution for the “identified need,” asserting that phrase likely means the Postal Service's needs, not the “global needs” of the community or the need for service furthering the “broader public or common good.”

As set forth by Congress in 39 U.S.C. 101, 403 and 404(b), the Postal Service's mission is to provide, on a self-sufficient basis without tax support, universal postal services efficiently and economically. The new rule will help focus comments, and the Postal Service's consideration of the comments, on the matters that are relevant to the Postal Service's mission.

Two comments sought a more elaborate appeal process, with one suggesting the Postal Service create public project files to serve as the basis for appeals and a second respondent arguing that the new rule should require a review of the public's comments and appeals by someone who had no prior involvement in the project and who is insulated from career repercussions.

The purpose of the new rule is to incorporate consideration of community input into Postal Service decisions to relocate retail services or add a retail service facility, not to create an adversarial process pitting community input against Postal Service objectives. The final rule requires the Postal Service to present project information to the community, its local elected officials, and when applicable, a lessor, and solicit and consider their input. Such input presumably will reflect the concerns important to those parties, but it cannot be expected to reflect the operational and business factors the Postal Service must also take into account. Ultimately, it is the Postal Service that is responsible for fulfilling its statutory obligations to provide efficient and economical universal postal services. The final rule provides for the Postal Service to make an informed decision by requiring consideration of community input.

Another comment argued that the new rule should give priority to remaining at the same site or at least in the downtown area.

An arbitrary requirement to give priority to remaining at the same site could thwart a project that would more efficiently and economically provide services to the community. The new rule, like the current rule, focuses on retail services in the community, not at a particular site, in furtherance of the Postal Service's statutory obligation to provide universal service efficiently and economically.

One respondent urged the Postal Service to revise the new rule to mirror the procedures under 39 U.S.C. 404(d) that apply to a Postal Service decision to close or consolidate a Post Office. Specifically, the respondent argued for adopting those same requirements for notifying communities, for separate public meetings, and for public comment periods. Another respondent suggested that the new definition, “retail service facility,” does not comport with 39 U.S.C. 404(d). Another comment suggested the “retail service facility” definition should expressly exclude consolidations of postal facilities.

This final rule pertains only to relocations of retail services and additions of retail service facilities. It is separate from the rules that apply to discontinuances of Post Offices, which can have a significantly greater effect on a community. Accordingly, this final rule, including its definitions, does not adopt the requirements for discontinuances under 39 U.S.C. 404(d).

The new rule requires posting notice in the affected postal facility and issuing a news release outlining the proposal to one or more news media serving the community. In the case of a relocation, posting notice in the affected postal facility should be sufficient in most instances to alert the customers who visit the postal facility, and they are the customers who likely would be most affected by the relocation. In contrast, customers who use the USPS® Web site may be unaffected by a relocation because the Web site offers all the retail postal services they would purchase at a physical retail location.

The new rule permits the Postal Service to present the proposal either as part of the agenda of a scheduled community meeting, or at a separate meeting scheduled by the Postal Service. Such flexibility is appropriate to allow the Postal Service to accommodate local officials' preference. Although in our experience presentations at regular community meetings often are well attended, to further ensure community members are aware of the presentation and have an opportunity for input, the new rule bolsters notice and comment period requirements. Where the current rule requires 7 days' advance notice of the meeting, the new rule increases the requirement to 15 days' advance notice, to be published in local news media and posted in the affected facility. Where the current rule requires a 15-day public comment period following the public meeting, the new rule requires a 30-day public comments and appeals period.

Three respondents contended that the new rule should expressly adopt a position that the National Historic Preservation Act requires the Postal Service to engage in the Section 106 consultation process at the time the Postal Service considers relocation.

The Postal Service highly values its historic properties and follows the requirements of Sections 106, 110, and 111 of the National Historic Preservation Act and its implementing regulations. As the new rule states, those requirements are independent of the requirements set forth in the rule for community input regarding relocations and adding retail service facilities. Because the National Historic Preservation Act and its implementing regulations sufficiently express their requirements, there is no need to restate those requirements in the final rule.

To continue operating on a self-funding basis without tax dollars and to fulfill its statutory obligations, the Postal Service must make efficient and economical use of its postal facilities. As a result, the Postal Service will have an ongoing need to relocate retail services and to add retail service facilities to account for factors such as population shifts and growth, and a dynamic marketplace with changing customer needs and evolving technologies and retail servicing options. Accordingly, the Postal Service is publishing this final rule to clarify the rule's application and procedures for relocating retail services and adding retail service facilities. At the same time, this final rule also responds to concerns that communities and their elected officials should have information about the proposed new location for relocated retail postal services in order to comment effectively on a proposal to relocate those services. This final rule provides for additional transparency, clarity, and opportunity for soliciting and considering public input as the Postal Service pursues its mission to efficiently and economically provide universal postal services to the nation.

Accordingly, the Postal Service amends 39 CFR part 241 as set forth below.

Table of Contents I. Background II. What are the changes that EPA is taking final action to approve? III. What are the changes that EPA is taking final action to disapprove? IV. Response to Comments V. What action is EPA taking today? VI. Statutory and Executive Orders Review Definitions

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

(i) The words or initials Act or CAA mean or refer to the Clean Air Act, unless the context indicates otherwise.

(ii) The initials BACT mean or refer to Best Available Control Technology.

(iii) The initials CFR mean or refer to Code of Federal Regulations.

(iv) The words EPA, we, us or our mean or refer to the United States Environmental Protection Agency.

(v) The initials FIP mean or refer to Federal Implementation Plan.

(vi) The initials IBR mean or refer to incorporation by reference.

(vii) The initials IAC mean or refer to the Iowa Administrative Code.

(viii) The initials LAER mean or refer to Lowest Achievable Emissions Rate.

(ix) The initials NAAQS mean or refer to National Ambient Air Quality Standards.

(x) The initials NO X mean or refer to nitrogen oxides.

(xi) The initials NSR mean or refer to New Source Review.

(xii) The initials PM 10 mean or refer to particulate matter with an aerodynamic diameter of less than or equal to 10 micrometers (coarse particulate matter).

(xiii) The initials PSD mean or refer to Prevention of Significant Deterioration.

(xiv) The initials SIP mean or refer to State Implementation Plan.

(xv) The initials SO 2 mean or refer to sulfur dioxide.

(xvi) The words State or Wyoming mean the State of Wyoming, unless the context indicates otherwise.

(xvii) The initials UGRB mean or refer to the Upper Green River Basin.

(xviii) The initials VOC mean or refer to volatile organic compound.

(xix) The initials WAQSR mean or refer to the Wyoming Air Quality Standards and Regulations.

(xx) The initials WDEQ mean or refer to the Wyoming Department of Environmental Quality.

In this final rulemaking, we are taking final action to disapprove the addition of Chapter 6, Section 13, Nonattainment permit requirements, to the WAQSR submitted by the State of Wyoming on May 10, 2011. This new section incorporated by reference 40 Code of Federal Regulations (CFR) section 51.165 in its entirety, with the exception of paragraphs (a) and (a)(1), into Wyoming's Chapter 6 Permitting Requirements.

On March 27, 2008, EPA promulgated a revised National Ambient Air Quality Standard (NAAQS) for ozone with an 8-hour concentration limit of 0.075 parts per million (“8-Hour Ozone NAAQS”), and effective July 20, 2012, EPA designated the Upper Green River Basin area of Wyoming as “nonattainment” for the 8-Hour Ozone NAAQS. For nonattainment areas, states are required to submit SIP revisions, including a nonattainment NSR permitting program for the construction and operation of new or modified major stationary sources located in the nonattainment area. On May 10, 2011, before the formal designation of the Green River Basin Area as nonattainment for the 8-Hour Ozone NAAQS, Wyoming submitted a nonattainment new source review (NSR) permitting program SIP revision to EPA.

Our final disapproval will start a two-year clock under CAA section 110(c)(1) for our obligation to promulgate a federal implementation plan (FIP) to correct the deficiency and the 18-month clock for sanctions, as required by CAA section 179(a)(2). These deadlines will be removed when Wyoming submits and we approve a SIP revision addressing the deficiency.

In this final rulemaking action, we are also taking final action to approve revisions submitted by Wyoming on February 13, 2013, and on February 10, 2014. These revisions to the WAQSR include portions of rulemakings R-20 and R-22(b), respectively, as revisions to Wyoming's SIP. Specifically, Wyoming revised Chapter 3, General Emissions Standards, Section 4, Emission standards for sulfur oxides and Section 9, Incorporation by reference in rulemaking R-20; and then again revised Section 9, Incorporation by reference in rulemaking R-22(b).

With respect to Wyoming's February 13, 2013, and February 10, 2014 submittals, EPA is taking final action to approve revisions to WASQR Chapter 3, General Emissions Standards, Section 4, Emission standards for sulfur oxides, and Section 9, Incorporation by reference. Section 4 covers only sulfur oxide emissions from specific sulfuric acid production processes. These WAQSR changes and additions are consistent with the CAA and EPA regulations.

In our November 4, 2014 proposed action (79 FR 65362), we proposed to approve the following revisions to the WASQR: Chapter 3, General Emissions Standards, section 4, Emission standards for sulfur oxides (in R-20); then subsequently amended (in R-22(b)), section 9, Incorporation by reference.

EPA is taking final action to disapprove the portion of Wyoming's May 10, 2011 submittal that adds a new section to the permitting requirements in WAQSR Chapter 6. The new Chapter 6 Section 13, Nonattainment permit requirements, consists of one sentence: “40 CFR part 51.165 is herein incorporated by reference, in its entirety, with the exception of paragraph (a) and paragraph (a)(1).”

As explained in 79 FR 65362, these changes are not consistent with CAA and EPA regulations. Specifically:

We provided a detailed explanation of the basis of approval and disapproval in our proposed rulemaking (see 79 FR 65362). We invited comment on all aspects of our proposal and provided a 30-day comment period. The comment period ended on December 4, 2014.

We received two comment letters during the public comment period. One comment letter was submitted by Bruce Pendery of the Wyoming Outdoor Council and one was submitted by Todd Parfitt, Director of the Wyoming Department of Environmental Quality.

Comment: The comment was in reference to WAQSR Chapter 6 Section 13, nonattainment NSR permits for major sources locating in nonattainment areas. The comment stated that “. . . the State's proposed SIP revision is deficient because while it establishes requirements for plans it does not establish unambiguous and enforceable emission limits on sources that would be subject to the regulation. These shortcomings fail to meet the regulatory requirement to impose emission requirements for sources and also does not meet the requirements of section 110(a)(2)(A) of the Clean Air Act. In addition, the State's submission does not specify the procedures it will use to reduce emissions from major sources in nonattainment areas, bringing into question the enforceability of offset requirements. This violates section 110(i) of the Clean Air Act.”

Response: For the reasons explained in 79 FR 65362, we agree with the commenter that the addition of the sentence “40 CFR part 51.165 is herein incorporated by reference, in its entirety, with the exception of paragraph (a) and paragraph (a)(1)” in Chapter 6 Section 13, Nonattainment permit requirements, does not meet the requirements of CAA section 110(a)(2)(A) and CAA section 110(i).

Comment: EPA's failure to timely approve Wyoming's plan effectively transferred new source permitting authority in the Upper Green River Basin (UGRB) nonattainment area from Wyoming to Region 8. In the absence of EPA-approved provisions, the Wyoming Department of Environmental Quality (WDEQ) has remained unable to permit new sources in the UGRB area.

Response: We disagree. First, Wyoming has a SIP-approved minor NSR permit program and under that program can issue minor NSR permits within the UGRB, so we presume that the comment is intended to refer only to new major sources and major modifications locating in the UGRB. Second, Wyoming has a SIP-approved Prevention of Significant Deterioration (PSD) program and under that program can issue permits in the UGRB ozone nonattainment area for new major sources of pollutants other than nitrogen oxides (NOX) and volatile organic compounds (VOCs), as ozone precursors, and modifications that are major for pollutants other than NOX or VOCs, as ozone precursors, so we also presume that the comment is intended to refer only to new major sources of NOX and VOCs and modifications that are major with respect to NOX and VOCs in the UGRB nonattainment area.

Given this, EPA Region 8 has not assumed authority to permit new major sources of NOX and VOCs and modifications that are major with respect to NOX and VOCs in the UGRB nonattainment area. For EPA to have that authority, we would have had to issue a FIP under section 110(c)(1) of the CAA, and we have not done so or even proposed to do so; in fact, our proposal notice stated that the disapproval would start the two-year clock for EPA's obligation to promulgate a FIP.

Under 40 CFR 52.21(k), it is expected that the State will issue permits in accordance with Appendix S to 40 CFR part 51 until EPA has approved a SIP submittal meeting the requirements of part D of title I of the CAA (in particular, a SIP submittal meeting the plan requirements that are set out in 40 CFR 51.165 as applicable to ozone nonattainment areas). If WDEQ has not been granted sufficient authority by the Wyoming legislature to issue permits under Appendix S prior to approval of a SIP revision, this would be a serious concern that should be addressed by the legislature, and this concern would exist in the period after designation regardless of how long it would take EPA to approve a nonattainment NSR program into the SIP. However, the comment did not provide any information to cause us to think that WDEQ lacks such authority. Even if it did, section 110(l) does not have an exception that allows EPA to approve a SIP revision that interferes with applicable requirements of the Act solely on the grounds that the State has been granted insufficient authority by its legislature to act in the interim prior to SIP approval.

Finally, the comment did not identify any owners or operators that have been unable to construct a new major source or major modification in the UGRB nonattainment area due to WDEQ's alleged lack of authority to issue permits. Nor did any owners or operators comment on our proposed disapproval. We also note that in order to meet nonattainment NSR requirements in the Sheridan coarse particulate matter (PM10) nonattainment area, Wyoming has had a construction ban in place and approved into the SIP for over twenty years (See WAQSR, Chapter 6, Section 2(c)(ii)(B)). While the facts and circumstances of the UGRB ozone nonattainment area may be different than those of the Sheridan PM10 nonattainment area, the comment does not explain why the State has a concern in the UGRB that it does not in Sheridan.

Comment: EPA's disapproval of Wyoming's plan is arbitrary and capricious. It is arbitrary and capricious for an agency to respond to the same situation in a different way without any rational explanation. “Here, the Region 8 Administrator proposes to disapprove Wyoming's plan for including language that was already approved, and has been proposed to be approved, by the administrator of Regions 7 and 10.”

The commenter references: Approval and Promulgation of Implementation Plans; Idaho, 79 FR 11711 (March 3, 2014) (approving portions of Idaho's plan that incorporated 40 CFR 51.165 by reference, without excluding any of the language referring to “the plan”); Approval and Promulgation of Implementation Plans; Iowa, 79 FR 27763 (May 15, 2014) (approving portions of Iowa's SIP revisions that incorporate language from 40 CFR 51.165, including the phrase “plan shall provide” three times and the phrase “the plan shall require” five times); Approval and Promulgation of Implementation Plans; Alaska Nonattainment New Source Review, 79 FR 65366 (November 4, 2014) (proposing to approve Alaska's SIP revisions that incorporate portions of 40 CFR 51.165 by reference, including the phrase “plan shall provide that” two times and the phrase “all plans shall use” one time). The commenter states that the Region 7 Administrator approved Iowa's plan as a direct final rule because “the Agency views [it] as a noncontroversial revision amendment.

The commenter states EPA may not declare that its own regulations, when incorporated by states in Region 7 and 10, are approvable for use in a SIP, but, when incorporated by a state in Region 8, are ambiguous, and therefore, do not contain enforceable emission limitations. The commenter concludes that EPA should approve Wyoming's submittal in accordance with these previous actions.

Response: We disagree that Wyoming's submittal is approvable and with the commenter's contention that disapproval of Wyoming's submittal is inconsistent with EPA's approval of other SIP submissions. With respect to approval of the submittal, we noted in our proposal that, under section 110(l), EPA cannot approve any SIP revision that would interfere with any applicable requirement of the CAA. The comment does not dispute this basis for disapproval. We also noted in our proposal that certain provisions incorporated by Wyoming fail to specify procedures for determining the location of offsets and therefore violate section 110(i) of the CAA, because the provisions as incorporated would allow Wyoming to define and modify those procedures without going through the SIP revision process. The comment does not dispute this basis for disapproval, either. Furthermore, we noted that the State's incorporation by reference of language stating “the plan may provide” failed to create an enforceable obligation and also created ambiguity as to whether the SIP would actually include the provisions, thus violating the requirements in 110(a)(2)(A) regarding enforceability and the requirement in 110(a)(2)(C) to have a nonattainment NSR permit program as specified in part D of Title I, specifically sections 172(c)(5) and 173. The comment does not dispute the ambiguity of the language stating “the plan may provide.” Finally, we stated that the violation of sections 110(a)(2) (specifically 110(a)(2)(A) and (C)) and 110(i)) would interfere with applicable requirements of the Act and therefore we could not approve the submittal. The comment does not dispute that 110(a)(2)(A), 110(a)(2)(C), and 110(i) are applicable requirements and that approval of Wyoming's submittal would interfere with those requirements with respect to the language regarding the permissible location of offsets and the optional provisions prefaced by “the plan may provide.” Therefore, even if we agreed that our approval of other SIP submittals was inconsistent with our disapproval of Wyoming's submittal—which we do not—the deficiencies identified above would not allow us to approve the Wyoming submittal.

Second, EPA notes that we take numerous actions every year on SIP submittals, each of which by itself can be voluminous and contain many technical and legal issues. On occasion, it is possible that EPA may have approved portions of SIP submittals that do not meet all the requirements of the Act because EPA did not notice that a particular issue was implicated by the SIP submittal.1 That this unfortunately and occasionally happens does not require that EPA must subsequently approve all SIP submittals that contain the same issue. To the contrary, section 110(l) contains no exception that allows EPA to approve a SIP revision that interferes with applicable requirements of the CAA merely because in some other action EPA has failed to notice a similar issue with a similar SIP revision. Thus, even if the comment has characterized the other notices correctly—which EPA does not agree it has—, EPA cannot approve Wyoming's SIP revision on the basis of those actions. If Wyoming is concerned about EPA's approval of those submittals, the State could have commented on those EPA actions or petitioned EPA to address any alleged errors in EPA's approval. However, it is not a remedy to the alleged inconsistencies to violate 110(l) and approve a SIP revision that interferes with applicable requirements of the Act. In other words, the comment's request that we approve the Wyoming submittal in fact requests that EPA take an action that is arbitrary and capricious.

Generally speaking, EPA's requirements for SIPs with respect to construction of new and modified sources, including the Part D nonattainment NSR permit program, are contained in 40 CFR part 51, subpart I, and specifically, in 40 CFR 51.160 through 51.166. The requirements for SIPs for nonattainment areas are found in 51.165, but this section does not stand alone and is part of a series of sections that together, comprise the requirements for approvable SIP provisions (e.g., 51.161 spells out the requirements for public notice and comment; 51.164 the requirements for stack heights and dispersion techniques). The provisions of subpart I are not written in the form of an implementable permitting rule which applies to the owner or operator of sources who wish to construct or modify, but rather they are requirements that a state must meet in order to get its permitting rules approved as part of the SIP. In contrast to the requirements for nonattainment NSR, there are both SIP PSD requirements in 40 CFR 51.166 and a federal PSD program in 40 CFR 52.21, the latter being a permitting rule with enforceable source obligations that meets the requirements of 40 CFR 51.166. For a variety of reasons, many states incorporate 40 CFR 52.21 into state rules as the state PSD program. However, EPA does not have a similar implementable nonattainment NSR permitting rule that can be directly incorporated by reference into state rules. As a result, some states have incorporated by reference all or parts of 40 CFR 51.165 into state rules for purposes of nonattainment NSR, but such states generally integrate the portions of 51.165 into the states' existing permit program in such a way that there is a nonattainment NSR permitting program with enforceable provisions. In particular, the permit programs for Alaska, Idaho, and Iowa cited by the commenter take this approach, as we detail below.

In the case of Wyoming's submittal, the submittal fails to integrate the incorporation by reference of 51.165 into the State's permit program. Under Wyoming's SIP, the general construction permit program (i.e. minor NSR and certain procedures and requirements that are common to minor NSR and PSD) is set forth in WAQSR, Chapter 6, Section 2, and the PSD program is set forth in WAQSR, Chapter 6, Section 4. Notably, Wyoming's submittal containing the incorporation by reference of 51.165 did not even modify Section 2. Thus, there is no indication in Wyoming's permit program in Section 2 that any permit should be governed by the federal rules in 40 CFR 51.165. This creates several specific issues that we next discuss, but the overarching problem is that Wyoming's permit program fails, because it lacks any connection to Section 13, to impose nonattainment NSR requirements in the UGRB.

First, WAQSR, Chapter 6, Section 2(c)(v) provides that approval to construct cannot be granted until the permit applicant demonstrates that the facility will employ best available control technology (BACT). This conflicts with the requirement for nonattainment NSR that the facility be subject to the lowest achievable emission rate (LAER), which is determined by a different and generally speaking more stringent standard than BACT. Section 2 does not contain any provision stating that LAER instead of BACT should apply in the UGRB as to ozone precursor emissions. Thus, the submittal's incorporation by reference of 51.165 without corresponding updates to Section 2 fails to impose an enforceable obligation to meet the LAER requirement.

Second, in the case of the Sheridan PM10 nonattainment area, which was designated after the 1990 CAA Amendments, the State met nonattainment NSR requirements by imposing a construction ban on new major sources of PM10 and modifications that are major with respect to PM10. See 59 FR 60902 (Nov. 29, 1994). This is imposed in the SIP and integrated into the permit program through Section 2(c)(ii)(B), which contains the details of the construction ban. In contrast, Section 2 is devoid of any mention that different requirements should apply in the UGRB. This creates two conflicts. First, there is no enforceable obligation in the permit program to satisfy nonattainment NSR requirements in the UGRB. In fact, under Section 2 the only requirements that apply in the UGRB are minor NSR or PSD, depending on applicability. Second, even if the State's incorporation by reference of 51.165 could be understood to create a permit program, 51.165 contains generally applicable requirements that on their face apply in all nonattainment areas and are not limited to the UGRB. Thus there would be two conflicting sets of requirements in the Sheridan PM10 nonattainment area: One a construction ban and the other a permission to construct if certain requirements (LAER, offsets, etc.) are met.

Third, Chapter 6, Section 2(k) sets forth certain categories of sources that are entirely exempt from the obligation to get approval for construction. However, Section 2(k) correctly recognizes that the PSD program does not allow for source category-based exemptions and therefore states that, notwithstanding these exemptions: “any facility which is a major emitting facility pursuant to the definition in Chapter 6, Section 4 [i.e. PSD] shall comply with the requirements of both Chapter 6, Sections 2 and 4.” There is no corresponding provision for the incorporation by reference of 51.165 in Section 13. However, like PSD, the nonattainment NSR program does not allow for source category-based exemptions. Furthermore, Chapter 6, Section 2(k) states that any facility which is major under a state's definition must comply with the PSD program. There is no mention that certain facilities in the UGRB must comply with the provisions of Section 13.

The nonattainment NSR programs cited by the commenter do not contain the same approvability issues in Wyoming's May 10, 2011 SIP submittal discussed above. In 79 FR 65366 (November 4, 2014), EPA Region 10 proposed to approve the Alaska Part D nonattainment NSR rules based on a finding that the Alaska nonattainment NSR rules in 18 AAC 50, Article 3, Section 311 “Nonattainment area major stationary source permits” and 18 AAC 50.040(i) (incorporating by reference text from 40 CFR 51.165) met the requirements of the CAA and EPA's regulations for SIP nonattainment NSR rules. 79 FR 65366. EPA Region 10 noted that 18 AAC 50.311 had previously been approved into the Alaska SIP on August 14, 2007 (72 FR45378) and had not been revised since that time. EPA further explained that the primary changes proposed for approval in the SIP revision were updating the effective dates of the federal regulations previously adopted by reference in the Alaska SIP for purposes of Alaska's Part D nonattainment NSR program.

Unlike the Wyoming rule, which simply incorporates by reference the planning requirements of 40 CFR 51.165 and does not link the federal permitting requirements directly to Wyoming's existing state permitting rules, Alaska has adopted a complete state permitting rule that includes provisions that are specifically applicable to sources locating in nonattainment areas, including state provisions specifying the permissible location of offsets (see 18 AAC 50.311).2 This provision makes clear that no source may commence construction of a major stationary source, a major modification, or a “PAL” major modification of a nonattainment pollutant in a nonattainment area without obtaining a construction permit from the Alaska Department of Environmental Conservation. 18 AAC 50.311 also specifies what must be included in an application for a Part D nonattainment NSR permit, such as a demonstration that emissions of the nonattainment pollutant will be controlled to a rate that represents the LAER, and documentation that proposed emission offsets will be sufficient, enforceable, and occur by the time the new or modified source begins operation. Finally, that provision also specifies that the permit can only be issued if the applicant demonstrates to the Alaska Department of Environmental Conservation that the permitting requirements of 40 CFR 51.165 that have been incorporated by reference in Alaska's rules will be met. The Alaska incorporation by reference provision at 18 AAC 50.040(i) explicitly states that it is adopting the text of the identified provisions of 40 CFR 51.165 “setting out provisions that a state implementation plan shall or may contain.” This makes clear that the incorporated provisions of 40 CFR 51.165, including those specifying that a “state plan may contain . . .”, are requirements of Alaska's Part D nonattainment NSR permitting program.

Because Alaska's reliance on 40 CFR 51.165 as part of its Part D nonattainment NSR program is part of an overall construction permitting program that imposes additional requirements on new and modified major sources located in nonattainment areas, and because Alaska's incorporation by reference of text from 40 CFR 51.165 is clear with respect to the intent of Alaska to adopt the permitting requirements as Alaska law applicable to sources locating in nonattainment areas, the Alaska program does not contain the issues identified above for Wyoming's incorporation by reference of 40 CFR 51.165.

Idaho's SIP approved Part D nonattainment NSR rules currently incorporate by reference 40 CFR 51.165 (as well as all of 40 CFR part 51, subpart I) into IDAPA 58.01.01.107.03.3 As was the case in 79 FR 11711 (March 3, 2014), Idaho annually updates its adoption by reference of these EPA rules and EPA Region 10 has proposed to approve the State's July 1, 2013, update to this incorporation by reference.

Idaho has adopted a complete state permitting rule that includes provisions that are specifically applicable to sources locating in nonattainment areas, including state provisions specifying the permissible location of offsets (see IDAPA 58.01.01.200 through 228 and specifically 204 (PERMIT REQUIREMENTS FOR NEW MAJOR FACILITIES OR MAJOR MODIFICATIONS IN NONATTAINMENT AREAS). These provisions make clear that no source may commence construction of a new major facility or a major modification in a nonattainment area without obtaining a construction permit from the Idaho Department of Environmental Quality. IDAPA 58.01.01.204 also points to IDAPA 58.01.01.202 for application requirements and to IDAPA 58.01.01.209 for administrative processing requirements. In addition, IDAPA 58.01.01.204 clearly states that “The intent of Section 204 is to incorporate the federal nonattainment NSR rule requirements.” IDAPA 58.01.01.204 then goes on in subsection .01 to specify exactly which provisions from 40 CFR 51.165 are incorporated by reference for the purposes of Section 204. The effect of the statement of intent and the identification of specific provisions makes clear that these provisions of 40 CFR 51.165 are requirements of Idaho's Part D nonattainment NSR permitting program.

Because Idaho's reliance on 40 CFR 51.165 as part of its Part D nonattainment NSR program is part of an overall construction permitting program that imposes additional requirements on new and modified major sources located in nonattainment areas, and because Idaho's incorporation by reference of specific provisions from 40 CFR 51.165 at IDAPA 58.01.01.204 is clear with respect to the intent of Idaho to adopt the permitting requirements as state law applicable to sources locating in nonattainment areas, the Idaho program does not contain the issues identified above for Wyoming's incorporation by reference of 40 CFR 51.165.

Iowa's SIP approved Part D nonattainment NSR rules were previously adopted by rule into Iowa Administrative Code (IAC) 567-22.5(455B). In an effort to streamline administrative rules and make them more user-friendly, Iowa consolidated the nonattainment NSR provisions into IAC 567.31 (Chapter 31, Nonattainment Areas) in its submittal acted on by EPA in 79 FR 27763 (May 15, 2014). In that submittal, the provisions of the previous approved rule were retained by the Iowa Department of Natural Resources, and were simply relocated to Chapter 31. The relocated rules for the most part mirror language in 40 CFR 51.165, with some modifications by the State. In fact, the public notice for Iowa's rulemaking states: “The federal regulations include many instructions to the states that could be confusing for businesses if the federal regulations were adopted by directly referencing the federal regulations.”

Iowa has adopted a complete state permitting rule that includes provisions that are specifically applicable to sources locating in nonattainment areas. Specifically, IAC 567-22.5(455B) (as revised in 79 FR 27763) and 567-31.1(455B) clearly state that no source may commence construction of a new major facility or a major modification in a nonattainment area without obtaining a construction permit from the Iowa Department of Natural Resources. IAC 567-22.1(1)(455B) (Permits Required for New or Existing Stationary Sources) also requires compliance with 567-22.5(455B) and IAC 567-31.3(455B) for permits prior to construction in nonattainment areas, and IAC 567-20.1 (Scope of Title—Definitions—Forms—Rules of Practice) is linked to requirements for areas designated as nonattainment.

Because Iowa's language mirroring that in 40 CFR 51.165 is part of an overall construction permitting program that imposes additional requirements on new and modified major sources located in nonattainment areas, the Iowa program does not contain the issues identified above for Wyoming's incorporation by reference of 40 CFR 51.165.

EPA has reviewed the SIPs cited by the commenter. While some of them may have instances of language that are problematic, none of them appear to have the same approvability flaws that we have identified with Wyoming's submittal.4 In particular, none of them fail to create an enforceable nonattainment NSR permitting program that we have described here. And in any case, under section 110(k)(3) we must either approve or disapprove Wyoming's submittal, and under section 110(l) we cannot approve it. Therefore we must disapprove.

Comment: EPA's proposed action depends on a strained interpretation of the CAA. The commenter states that once a state submits its SIP to EPA, EPA's reviewing authority is limited to determining whether the SIP includes the requirements specified in Section 110(a)(2), and that EPA may not substitute its own judgment for that of the state. The commenter states that EPA proposes to find that Wyoming's plan is not enforceable because Wyoming's incorporation by reference of federal regulations includes language such as “the plan shall provide” and “the plan shall require”. The commenter states that EPA claims that this imbues Wyoming's plan with such ambiguity that it fails to create enforceable obligations for sources in contravention of the “enforceable emissions limitations” requirement of Section 110(a)(2)(A), and that this is a strained and illogical interpretation of carefully drafted federal regulations that were meant to provide specific guidance to states in issuing permits in nonattainment areas. According to the commenter, any member of the regulated community who sees that Wyoming's regulations fully incorporate the federal regulations will understand that their operations are subject to the limits and restrictions imposed by the federal regulations.

Response: We disagree. First, the commenter incorrectly characterizes 40 CFR 51.165 as “federal regulations that were meant to provide specific guidance to States in issuing permits in nonattainment areas.” Instead, 40 CFR 51.165 contains the minimum requirements (not “guidance”) for states to meet in plan provisions (not “in issuing permits”) for nonattainment areas. See 40 CFR 51.165(a). To use the commenter's words, 51.165 is “carefully drafted” to define these minimum requirements while allowing state plans to vary from them so long as the minimum requirements are met. For example, 51.165(a)(1) provides that states may vary from the specific definitions in 51.165(a)(1) if the state demonstrates that the replacement definitions will be at least as stringent as all respects.

We also disagree that the distinction between the minimum plan requirements for a permitting program and the permitting program itself is “illogical.” The actual program that a state adopts may meet the minimum plan requirements in any number of ways. Wyoming should be familiar with this distinction: As discussed above, the State chose to impose a construction ban in the Sheridan PM10 nonattainment area instead of creating a full nonattainment NSR permit program. And for the State's PSD program, the State properly did not incorporate by reference 51.166, but instead adopted language from federal rules. See WAQSR, Chapter 6, Section 4.

The commenter inaccurately describes phrases such as “the plan shall provide” or “the plan shall require” as “isolated.” In fact, virtually every source obligation in 51.165(b) is prefaced by such a phrase. These are not “isolated” instances; they are ubiquitous.

We also disagree that it is “strained” to be concerned with the enforceability of the language that was incorporated. Faced with a lawsuit for violation of nonattainment NSR requirements, an owner or operator would naturally defend themselves by pointing out that the language literally does not impose requirements on owners and operators; instead it imposes requirements on state plans. While perhaps that defense would not always be successful, we do not think that Congress intended “enforceable” in section 110(a)(2)(A) to mean “potentially enforceable depending on whether a court will agree with the plaintiff's theory that the provision should not be read to mean what it literally says.” In other words, SIP provisions should not unnecessarily create defenses that make enforceability a matter of chance. Furthermore, we note that violations of nonattainment NSR program requirements can expose owners and operators to civil and criminal penalties. In such cases, courts have applied higher standards and resolved ambiguities in favor of defendants. With respect to the comment's unsupported argument that any member of the regulated community would necessarily understand the state's intent to impose obligations on owners and operators, our response is first, that the literal language of the rule as incorporated does not support that intent. Second, the failure to integrate nonattainment NSR requirements into the permitting program, as detailed above, could create confusion.

Finally, we are not “substituting our judgment for that of the state.” The State has not provided any binding interpretation of the provisions that would render them enforceable. If that were possible to do and the State had done so, this interpretation could have been incorporated into the plan and potentially resolved at least some of the issues. In response to the comment regarding our limited review authority, we reiterate: “The EPA may not approve any plan revision `if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress . . . or any other applicable requirement of [the Clean Air Act].' ” Oklahoma v. EPA, 723 F.3d 1201, 1207 (10th Cir. 2013) (quoting section 110(l) of the Act). We note that the commenter is also mistaken in asserting that EPA is limited to review for compliance specifically with section 110(a)(2) of the Act 5 —instead under 110(l) EPA must ensure compliance with all applicable requirements of the Act. In addition, the SIP revision interferes with sections 110(a)(2)(A) and 110(a)(2)(C).

Comment: The commenter states that EPA should not threaten the State of Wyoming with the loss of tens of millions of dollars in highway funding. According to the commenter, this is an extreme response to a disagreement over the proper method of incorporation by reference of federal regulations. The commenter states that, in response to its earlier commitment in a settlement, EPA now threatens Wyoming with highway sanctions. The commenter then details a number of serious concerns with highways.

Response: We disagree that starting the sanctions clock is inappropriate. We noted in our proposal that, under section 179(a) of the CAA, our proposed disapproval would, if finalized, trigger the sanctions clock. The conditions that trigger the sanctions clock are set out in sections 179(a)(1) through (4). In this case, finalizing our disapproval creates the condition in 179(a)(2): Disapproval under section 110(k) of a submission for an area designated nonattainment (in this case the UGRB) based on the submission's failure to meet one or more of the elements required by the Act that are applicable to the area (in this case, nonattainment NSR provisions identified above). When this condition is met, 179(a) requires the Administrator to apply one of the sanctions in 179(b) (highway and offset sanctions) unless the deficiency has been corrected within 18 months, and to apply the other sanction in 179(b) if the deficiency is not corrected within the following six months. EPA's approach to the sequencing of sanctions is set forth in the Order of Sanctions Rule. See 40 CFR 52.31. Despite its tone, the comment does not dispute this point about the nondiscretionary operation of the Act and therefore provides no relevant reason that the sanctions clock should not be started by our disapproval. With respect to the comment's concerns with the state highways, we recognize those as serious. However, Congress decided that certain means of highway funding should be contingent on avoiding the circumstances in section 179(a), which Wyoming can do by developing an approvable submittal.

We also disagree with the comment's characterization of EPA's action. First, the comment inaccurately characterizes EPA as “threatening” highway sanctions. As explained above, section 179(a) of the Act requires that the sanctions clock start after EPA's disapproval of a required element of a nonattainment plan. As a simple matter of proper notice to the public, EPA had the responsibility in our proposal to inform the public of this potential consequence of our proposed disapproval. There was no “threat” involved in stating the basic nondiscretionary operation of the CAA. The comment also without any basis characterizes EPA's action as a “departure from EPA's more measured response throughout the country when disagreements have arisen in the past.” The comment did not identify any actions where EPA disapproved a required nonattainment plan element and failed to start the sanctions clock, and in any case the Act requires that the clock be started.

In general, EPA would prefer to work with states to develop approvable submittals instead of disapproving flawed submittals and (in the case of nonattainment plans) triggering clocks for sanctions and FIP obligations. In this case, we were subject to a court-ordered deadline to finalize action on the submittal. We are still happy to work with the State to develop an approvable submittal, and we note that, under the Order of Sanctions Rule, in certain circumstances EPA can stay sanctions if the State has done so even before EPA takes final action on the approvable submittal. See 40 CFR 52.31(d).

We have fully considered the comments we received, and have concluded that no changes from our proposed rule are warranted. As discussed in our proposal and this notice, our action is based on an evaluation of Wyoming's rules against the requirements of CAA sections 110(a)(2)(C), 110(a)(2)(A), 110(i), 110(l), 172(c)(5), 172(c)(7), 173, regulations at 40 CFR 51.165, and other requirements discussed in section III of this action.

As described in our proposed rulemaking, and in Section II of this notice, EPA is approving the SIP revisions submitted by Wyoming on February 13, 2013 and February 10, 2014.

As described in our proposed rulemaking, and in Section III of this notice, EPA is disapproving the portion of the SIP revisions submitted by Wyoming on May 10, 2011 that adds Chapter 6, Section 13 to the Wyoming SIP.

We are sensitive to the concerns expressed in the State's comments. We also understand the State's goals in promulgating Chapter 6, Section 13, to have a SIP-approved permit program for sources located in nonattainment areas. We intend to work with the State to develop revised rules that are consistent with the State goals and consistent with the CAA and implementing regulations.

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

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 21, 2015. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See CAA section 307(b)(2).)

40 CFR part 52 is amended as follows:

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

The Illinois EPA submitted a revision to the Illinois SIP to EPA for approval on June 10, 2014. The SIP revision updates the definition of VOM or VOC at 35 IAC Part 211, Subpart B, Section 211.7150(a).

The Illinois Pollution Control Board held a public hearing on the proposed SIP revision on October 31, 2013. The Board received no comments.

EPA is approving an Illinois SIP revision that updates the definition of VOM or VOC at 35 IAC Part 211, Subpart B, Section 211.7150(a) to add (difluoromethoxy) (difluoro)methane (CHF2OCHF2 or HFE-134), bis(difluoromethoxy) (difluoro)methane (CHF2OCF2OCHF2 or HFE-236cal2), 1-(difluoromethoxy)-2-[(difluoromethoxy) ((difluoro)methoxy]-1,1,2,2-tetrafluoroethane (CHF2OCF2OCF2CF2OCHF2 or HFE-43-10pccc), 1,2-bis(difluoromethoxy)-1,1,2,2-tetrafluoroethane (CHF2OCF2CF2OCHF2 or HFE-338pcc13), and trans 1-chloro-3,3,3-trifluoroprop-1-ene (CF3CHCHCl) to the list of excluded compounds at 35 IAC 211.7150(a). Illinois took this action based on EPA's 2013 rulemakings in which EPA determined these compounds have a negligible contribution to tropospheric ozone formation and thus should be excluded from the definition of VOC codified at 40 CFR 51.100(s). (See 78 FR 9823 (February 12, 2013) and 78 FR 53029 (August 28, 2013)). This action also approves minor administrative changes in alphabetization of compound names and correction of compound condensed structural formulas to 35 IAC 211.7150(a) that refer to compounds previously approved as excluded from the definition of VOM in the Illinois SIP.

In 2005, EPA received a petition asking EPA to exempt HCF2OCF2H (HFE-134), HCF2OCF2OCF2H (HFE-236cal2), HCF2OCF2CF2OCF2H (HFE-338pcc13), HCF2OCF2OCF2CF2OCF2H (H-Galden 1040x or H-Galden ZT 130 (or 150 or 180)) from the definition of VOC.1 Based on the level of reactivity of these chemical compounds, EPA concluded that these compounds make negligible contributions to tropospheric ozone formation (78 FR 9823, February 12, 2013). Therefore on February 12, 2013, EPA amended 40 CFR 51.100(s)(1) to exclude these compounds from the definition of VOC for purposes of preparing SIPs to attain the national ambient air quality standard for ozone under title I of the Clean Air Act (78 FR 9823). EPA's action became effective March 14, 2013. Illinois EPA's SIP revision is consistent with EPA's action amending the definition of VOC at 40 CFR 51.100(s).

In 2011, EPA received a petition asking EPA to exempt trans 1-chloro-3,3,3-trifluoroprop-1-ene from the definition of VOC. Based on the level of reactivity of this chemical compound, EPA concluded that this compound makes a negligible contribution to tropospheric ozone formation (78 FR 53029, August 28, 2013). Therefore on August 28, 2013, EPA amended 40 CFR 51.100(s)(1) to exclude this compound from the definition of VOC for purposes of preparing SIPs to attain the national ambient air quality standard for ozone under title I of the Clean Air Act (78 FR 53029). EPA's action became effective September 27, 2013. Illinois EPA's SIP revision is consistent with EPA's action amending the definition of VOC at 40 CFR 51.100(s).

EPA is approving a revision to the Illinois SIP which is consistent with EPA's 2013 actions revising the definition of VOC. The Illinois SIP revision adds (difluoromethoxy) (difluoro)methane (CHF2OCHF2 or HFE-134), bis(difluoromethoxy) (difluoro)methane (CHF2OCF2OCHF2 or HFE-236cal2), 1-(difluoromethoxy)-2-[(difluoromethoxy) ((difluoro)methoxy]-1,1,2,2-tetrafluoroethane (CHF2OCF2OCF2CF2OCHF2 or HFE-43-10pccc), 1,2-bis(difluoromethoxy)-1,1,2,2-tetrafluoroethane (CHF2OCF2CF2OCHF2 or HFE-338pcc13), and trans 1-chloro-3,3,3-trifluoroprop-1-ene (CF3CHCHCl) to the list of chemical compounds considered exempt from the definition of VOM or VOC at 35 IAC 211.7150(a).

We are publishing this action without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comments. However, in the proposed rules section of this Federal Register publication, we are publishing a separate document that will serve as the proposal to approve the state plan if relevant adverse written comments are filed. This rule will be effective April 21, 2015 without further notice unless we receive relevant adverse written comments by March 23, 2015. If we receive such comments, we will withdraw this action before the effective date by publishing a subsequent document that will withdraw the final action. All public comments received will then be addressed in a subsequent final rule based on the proposed action. EPA will not institute a second comment period. Any parties interested in commenting on this action should 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. If we do not receive any comments, this action will be effective April 21, 2015.

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

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

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

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

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

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

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

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

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

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

This rule is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175, nor will it impose substantial direct costs on tribal governments or preempt tribal law.

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 21, 2015. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR part 52 is amended as follows:

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

On March 12, 2008 EPA revised the eight-hour ozone NAAQS from 0.08 parts per million (ppm) to 0.075 ppm. (73 FR 16436, March 27, 2008). On July 12, 2012 EPA designated nonattainment areas for the 2008 ozone NAAQS (2008 ozone nonattainment areas) (77 FR 30088, May 21, 2012). The DFW and HGB areas were designated as nonattainment areas for the 2008 ozone NAAQS. Id. The DFW area consists of Collin, Dallas, Denton, Ellis, Johnson, Kaufman, Parker, Rockwall, Tarrant and Wise counties. The HGB area consists of Brazoria, Chambers, Fort Bend, Galveston, Harris, Liberty, Montgomery and Waller counties.

CAA sections 172(c)(3) and 182(a)(1) require states to develop and submit as a SIP revision an emissions inventory for all areas designated as nonattainment for the ozone NAAQS. 42 U.S.C. 172(c) and 182(a). An emissions inventory is an estimation of actual emissions of air pollutants in an area. Ground-level ozone, O3, is a gas that is formed by the reaction of volatile organic compounds (VOCs) and oxides of nitrogen (NOX) in the atmosphere in the presence of sunlight. These precursor emissions are emitted by many types of pollution sources, including power plants and industrial emissions sources, on-road and off-road motor vehicles and engines, and smaller sources, collectively referred to as area sources. The EIs provide data for a variety of air quality planning tasks including establishing baseline emission levels, calculating federally required emission reduction targets, emission inputs into air quality simulation models, and tracking emissions over time. The total EI of VOC and NOX for an area are summarized from the estimates developed for five general categories of emissions sources: Point, area, on-road mobile, non-road mobile, and biogenic. EPA's proposed 2008 ozone standard SIP requirements rule suggested that states use 2011 as a base year to address EI requirements (78 FR 34178, 34190, June 6, 2013).

Texas adopted a SIP revision addressing the emissions inventory requirements for the DFW and HGB areas on July 2, 2014 and submitted it to EPA on July 16, 2014. Tables 1 and 2 are the DFW and HGB emissions inventories in the SIP revision.

The primary CAA requirements pertaining to the SIP revision submitted by Texas are found in CAA sections 110(l), 172(c)(3) and 182(a)(1). 42 U.S.C. 110(l), 172(c)(3), and 182(a). CAA section 110(l) requires that a SIP revision submitted to EPA be adopted after reasonable notice and public hearing. Section 110(l) also requires that EPA not approve a SIP revision if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress, or any other applicable requirement of the CAA. CAA sections 172(c)(3) and 182(a) requires a SIP revision that contains a comprehensive, accurate, current inventory of actual emissions from all sources.

EPA has reviewed the revision for the consistency with the requirements of EPA regulations. A summary of EPA's analysis is provided below. For a full discussion of our evaluation, please see our Technical Support Document (TSD).

CAA sections 172 (c)(3) and 182(a)(1) require a current inventory of actual emissions from all sources of relevant pollutants in the nonattainment areas. EPA Air Emissions Reporting regulations call for states to provide an emissions inventory from all sources every 3 years and required a complete inventory for 2011 (40 CFR 51.30). Additionally, in proposed rulemaking for the 2008 ozone standard we proposed that the states use 2011 as the base year for EI for the reasonable further progress emissions reduction SIP requirement (June 6, 2013, 78 FR 34178, 34190). Texas has developed a 2011 base year emissions inventory for the DFW and HGB nonattainment areas. The 2011 base year emissions includes all point, area, non-road mobile, and on-road mobile source emissions. EPA is approving the emission inventory for DFW and HGB because it contains a comprehensive, accurate, current inventory of actual emissions from all sources in accordance with CAA sections 172(c)(3) and 182(a). Additionally we find that (1) Texas adopted the EI for DFW and HGB after reasonable notice and public hearing and (2) approval would not interfere with any applicable requirement concerning attainment and reasonable further progress or any other applicable requirement of the CAA in accordance with CAA Section 110(1). A technical support document (TSD) was prepared which details our evaluation. Our TSD may be accessed online at www.regulations.gov, Docket No. EPA-R06-OAR-2014-0554.

We are approving a Texas SIP revision submitted to address the emissions inventory requirements for the DFW and HGB 2008 ozone nonattainment areas. The inventories we are approving are listed in Tables 1 and 2 above.

EPA is publishing this rule without prior proposal because we view this as a non-controversial amendment and anticipate no adverse comments. However, in the proposed rules section of this Federal Register publication, we are publishing a separate document that will serve as the proposal to approve the SIP revision if relevant adverse comments are received. This rule will be effective on April 21, 2015 without further notice unless we receive relevant adverse comment by March 23, 2015. If we receive relevant adverse comments, we will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. We will address all public comments in a subsequent final rule based on the proposed rule. We will not institute a second comment period on this action. Any parties interested in commenting must do so now. Please note that if we receive relevant adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, we 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 Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

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

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

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

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

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

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

• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the 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, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 21, 2015. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR part 52 is amended as follows:

Throughout this document whenever “we,” “us,” or “our” is used, we refer to EPA. This section provides additional information by addressing the following:

On July 18, 1997, EPA promulgated a revised 8-hour O3 NAAQS of 0.08 parts per million (ppm) (62 FR 38856). EPA published a final rule designating and classifying areas under the 8-hour O3 NAAQS on April 30, 2004 (69 FR 23857). In that rulemaking, the St. Louis area was designated as nonattainment for the 1997 8-hour O3 standard and classified as a moderate nonattainment area under subpart 2 of the CAA.

On November 3, 2011, Missouri requested redesignation of the Missouri portion of the St. Louis area to attainment of the 1997 8-hour O3 standard, and requested approval of the Missouri SIP revision containing a maintenance plan for the Missouri portion of the St. Louis area. Missouri submitted a supplement to this request on April 29, 2014.

On June 9, 2011 (76 FR 33647), EPA issued a final rulemaking determining that the entire St. Louis MO-IL area attained the 1997 8-hour O3 NAAQS based on three years of complete, quality assured O3 data for the period of 2008-2010.

On December 31, 2014(79 FR 78755), EPA published a notice of proposed rulemaking (NPR) proposing to approve Missouri's request to redesignate the Missouri portion of the St. Louis area to attainment of the 1997 8-hour O3 standard, and also proposing to approve Missouri's maintenance plan for the area. The proposed rulemaking provides a detailed discussion and sets forth the basis for determining that Missouri's redesignation request meets the CAA requirements for redesignation to attainment for the 1997 8-hour O3 NAAQS.

The primary background for this action is contained in EPA's December 31, 2014, proposal to approve Missouri's redesignation request, and in EPA's June 9, 2011, final rulemaking determining that the area has attained the 1997 8-hour O3 standard based on complete, quality assured monitoring data for 2008-2010. In these rulemakings, we noted that under EPA regulations at 40 CFR 50.10 and 40 CFR part 50, appendix I provides that the 8-hour O3 standard is attained when the three-year average of the annual fourth-highest daily maximum 8-hour average O3 concentration is less than or equal to 0.08 ppm, when rounded at all monitoring sites in the area. See 69 FR 23857 (April 30, 2004). To support the redesignation of the area to attainment of the NAAQS, the O3 data must be complete for the three attainment years. The data completeness requirement is met when the average percent of days with valid ambient monitoring data is greater than ninety percent, and no single year has less than seventy five percent data completeness. See 40 CFR part 50, appendix I, 2.3(d). Under the CAA, EPA may redesignate a nonattainment area to attainment if sufficient, complete, quality assured data are available to determine that the area has attained the standard and if it meets the other CAA redesignation requirements in section 107(d)(3)(E).

On November 3, 2011, EPA received a SIP revision from the State of Missouri requesting redesignation of the Missouri portion of the St. Louis MO-IL area to attainment for the 1997 8-hour O3 standard, and approval of the area's maintenance plan. Missouri submitted a supplemental revision on April 29, 2014. The maintenance plan is designed to keep the Missouri portion of the St. Louis area in attainment of the 1997 8-hour O3 standard through 2025. A more detailed rationale for EPA's proposed action to approve the SIP submissions are explained in the NPR and will not be restated here. The comment period on EPA's proposed rule opened December 31, 2014, the date of its publication in the Federal Register, and closed on January 30, 2015. No public comments were received on the NPR.

EPA is approving a request from the State of Missouri to redesignate the Missouri portion of the St. Louis, MO-IL area to attainment of the 1997 8-hour O3 standard. In addition, EPA is approving as a revision to the Missouri SIP, the State's plan for maintaining the 1997 8-hour O3 standard through 2025 in the area.

In accordance with 5 U.S.C. 553(d), EPA finds there is good cause for this action to become effective immediately upon publication. This is because a delayed effective date is unnecessary due to the nature of a redesignation to attainment, which relieves the area from certain CAA requirements that would otherwise apply to it. The immediate effective date for this action is authorized under both 5 U.S.C. 553(d)(1), which provides that rulemaking actions may become effective less than 30 days after publication if the rule “grants or recognizes an exemption or relieves a restriction,” and section 553(d)(3), which allows an effective date less than 30 days after publication “as otherwise provided by the agency for good cause found and published with the rule.” The purpose of the 30-day waiting period prescribed in section 553(d) is to give affected parties a reasonable time to adjust their behavior and prepare before the final rule takes effect. This rule, however, does not create any new regulatory requirements such that affected parties would need time to prepare before the rule takes effect. Rather, this rule relieves the state of various requirements for this nonattainment area. For these reasons, EPA finds good cause under 5 U.S.C. 553(d)(3) for this action to become effective on the date of publication of this action.

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

• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

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

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

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

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

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

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

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

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

The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

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

For the reasons stated in the preamble, the Environmental Protection Agency amends 40 CFR parts 52 and 81 as set forth below:

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

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

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2013-0670 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before April 21, 2015. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2013-0670, by one of the following methods:

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

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

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

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

In the Federal Register of October 25, 2013 (78 FR 63938) (FRL-9901-96), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 3F8197) by BASF Corporation, 26 Davis Drive, P.O. Box 13528, Research Triangle Park, NC 27709-3528. The petition requested that 40 CFR 180.464 be amended by establishing tolerances for residues of the herbicide dimethenamid (1(RS)-2-chloro-N-[(1-methyl-2-methoxy)ethyl]-N-(2,4-dimethylthien-3-yl)acetamide) in or on cottonseed, subgroup 20C at 0.01 parts per million (ppm); cotton, gin byproducts at 1.5 ppm; and cotton, seed, refined oil at 0.02 ppm. Compliance with the tolerance levels is to be determined by measuring only parent. Tolerances would apply to either dimethenamid-P (a 90:10 mixture of S- and R-isomers, a mixture enriched in S-isomer) or dimethenamid (a 50:50 racemic mixture of S- and R-isomers). The enforcement method is not enantiomer specific. That document referenced a summary of the petition prepared by BASF Corporation, the registrant, which is available in the docket, http://www.regulations.gov. There were no comments received in response to the notice of filing.

Based upon review of the data supporting the petition, EPA has determined that a separate tolerance in cotton, seed, and refined oil is not needed. The reason for these changes are explained in Unit IV.C.

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

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

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

The existing toxicological database is comprised of studies conducted with both dimethenamid, which is a racemic mixture of S- and R-isomers (50:50, S:R), and dimethenamid-P, which is mixture of S- and R-isomers enriched in the S-isomer (90:10, S:R). Both sets of data for dimethenamid and dimethenamid-P show similar toxicity and together are adequate for risk assessment. Because of the similarity of the two mixtures, EPA relies on data for both to assess the hazard of each mixture.

The primary target organ is the liver. The toxicity in 90-day feeding studies in rats showed decreased body weights, increased cholesterol and changes in liver weights along with histopathology showing microscopic effects (centrilobular hypertrophy, periportal eosinophilic inclusions and necrosis) in the liver. Chronic studies in the rat, mouse, and dog showed decreases in body weight and food efficiency as accompanying effects over time. At higher dose levels, liver pathology (hepatic lesions, bile duct hyperplasia, and tumors), stomach hyperplasia, and some indications of kidney effects were noted. Two 21-day dermal toxicity studies in rabbits were conducted and in one of those studies minor skin irritation was observed at all doses tested and a decrease in body weight (bw) gain was also seen at the lowest effect level.

The acute neurotoxicity study resulted in effects such as partially closed eyelids, lacrimation, and slight salivation at the highest dose tested of (600 milligrams/kilograms/body weight (mg/kg/bw)). There were no treatment-related or toxicologically significant findings during the gross examination of rats or in the microscopic examination of neurological tissues. In the subchronic neurotoxicity study, there were no clinical signs seen and no adverse effects seen up to 323/390 mg/kg/bw day. Systemic effects seen were renal pelvic dilation in males (considered incidental) and a trend of higher liver weights in females was found at the lowest dose tested and were not considered adverse nor were they corroborated with any other guideline studies submitted. There were no liver histopathology or clinical chemistry measurements in the subchronic neurotoxicity study; however, the adversity of this finding is supported by the observation of multiple liver effects (increased cholesterol, increased total serum protein, increased liver weights, and enlarged centrilobular hepatocytes) in the 90-day rat study at doses of 98/119 (Male/Female) milligrams/kilograms/day (mg/kg/day) and above. There was no neurotoxicity observed at higher doses nor in other guideline studies.

Developmental toxicity studies show increased post-implantation loss and minor skeletal variations in the rat, and late resorptions and minor skeletal variations in the rabbit at the highest dose tested (lowest observed adverse effect level: LOAEL, 425 mg/kg/day). In the rabbit, the developmental effects occurred at the same dose as maternal toxicity (LOAEL, 150 mg/kg/day), whereas in the rat, the developmental toxicity occurred at much higher doses than in the dams (LOAEL, 215 mg/kg/day). The chosen no observed adverse effect level (NOAEL) of 75 mg/kg/day is considered protective for effects seen in both studies. The reproduction study resulted in decreases in body weight in both pups and parental animals at the same dose levels. The only other effects noted at the LOAEL of 150 mg/kg/day were increases in liver weights in both male and female parental animals.

A review of the immunotoxicity study resulted in no immunotoxicity effects at the limit dose of 1,167 milligrams/kilograms (mg/kg), although increased absolute and relative liver weights were seen at this dose level. Dimethenamid-P is classified as group “C” possible human carcinogen, based on weak evidence for carcinogenicity.

The agency concluded that quantification of cancer risk using a non-linear approach would adequately account for all chronic toxicity (including carcinogenicity) that could result from exposure to dimethenamid based on the following weight of evidence considerations:

1. No statistically significant increase in liver tumors (only an increasing trend for liver tumors in one sex (male) and one species (rat)).

2. No evidence of carcinogenicity in male or female mice.

3. Equivocal evidence for mutagenicity.

4. The POD of 5 mg/kg/day used for human health risk assessment is 15-fold lower than the dose (75 mg/kg/day) that caused the liver tumors and thus considered protective for cancer.

Specific information on the studies received and the nature of the adverse effects caused as well as the NOAEL and the LOAEL from the toxicity studies can be found at http://www.regulations.gov in document titled, “Dimethenamid/Dimethenamid-P. Human Health Risk Assessment for Proposed New Use on Cottonseed Subgroup 20C.,” on pg. 42-48, in docket ID number EPA-HQ-OPP-2013-0670.

Once a pesticide's toxicological profile is determined, EPA identifies toxicological POD and levels of concern (LOC) to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which the NOAEL and the LOAEL are identified. Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see http://www.epa.gov/pesticides/factsheets/riskassess.htm. A summary of the toxicological endpoints for Dimethenamid/Dimethenamid-P used for human risk assessment is shown in Table 1 of this unit.

1. Dietary exposure from food and feed uses. In evaluating dietary exposure to dimethenamid-P and/or dimethenamid, EPA considered exposure under the petitioned-for tolerances as well as all existing dimethenamid tolerances in 40 CFR 180.464 which are established for either of the herbicides dimethenamid-P (an enriched S-isomer with 90:10 mixture of the S- and R-isomers) or dimethenamid (a 50:50 racemic mixture of the S- and R-isomers). Therefore, EPA assessed dietary exposures from dimethenamid-P and/or dimethenamid in food as follows:

i. Acute exposure. Quantitative acute dietary exposure and risk assessments are performed for a food-use pesticide, if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1-day or single exposure. Such effects were identified for dimethenamid and dimethenamid-P. In estimating acute dietary exposure, EPA used food consumption information from the United States Department of Agriculture (USDA) 2003-2008 Nationwide Continuing Surveys of Food Intake by Individuals (CSFII). The acute dietary analysis was conducted for dimethenamid and/or dimethenamid-P assuming tolerance level residues, default processing factors, and 100% crop treated (CT) information.

ii. Chronic exposure. In conducting the chronic dietary exposure assessment EPA used the food consumption data from the USDA 2003-2008 CSFII. The chronic dietary exposure assessment was conducted for dimethenamid and/or dimethenamid-P assuming tolerance level residues, default processing factors, and 100% CT information.

iii. Cancer. As discussed in Unit III.A, EPA has concluded that cancer dietary risk concerns due to long-term consumption of dimethenamid residues are adequately addressed by the chronic dietary exposure analysis using the reference dose; therefore, a separate cancer dietary exposure analysis was not performed.

iv. Anticipated residue and percent crop treated (PCT) information. Tolerance level residues and 100% CT were assumed for all food commodities.

2. Dietary exposure from drinking water. The Agency used screening level water exposure models in the dietary exposure analysis and risk assessment for dimethenamid-P and/or dimethenamid in drinking water. These simulation models take into account data on the physical, chemical, and fate/transport characteristics of dimethenamid-P and/or dimethenamid. Further information regarding EPA drinking water models used in pesticide exposure assessment can be found at http://www.epa.gov/oppefed1/models/water/index.htm.

Based on the Surface Water Concentration Calculator (SWCC) and the Pesticide Root Zone Model for Ground Water (PRZM-GW), estimated drinking water concentrations (EDWCs) were calculated for the parent compound plus its ethanesulfonic acid and oxanilic acid degradates, which are residues of concern in drinking water as follows: For acute exposures, EDWCs are estimated to be 73 parts per billion (ppb) for surface water and 153 ppb for ground water; for chronic exposures, EDWCs for non-cancer assessments are estimated to be 27 ppb for surface water and 140 ppb for ground water.

Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model.

Because there was little difference between the maximum EDWCs for acute and chronic exposures, the maximum water concentration value of 153 ppb was used to assess the contribution to drinking water for both the acute and chronic dietary risk assessments.

3. From non-dietary exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets). Although there are no currently registered uses of dimethenamid that could result in residential exposures, dimethenamid-P is currently registered for the following uses that could result in residential exposures: Turf grass, ornamentals, and tree plantations. Only short-term residential exposures to dimethenamid-P are expected based on the 2012 Residential Standard Operating Procedures (SOPs). Potential exposure/risk scenarios identified for residential handlers include:

• Mixing/loading/applying liquid formulations to lawns/turf with a hose-end and/or backpack sprayer, and a manually-pressurized hand wand.

• Mixing/loading/applying liquid formulations to garden/trees with a sprinkler can and a hose-end sprayer.

• Mixing/loading/applying granular formulations to lawns/turf with a push-type rotary sprayer and a belly grinder.

• Mixing/loading/applying granular formulations to garden/trees with a shaker can/cup, a spoon or by hand dispersal.

The scenarios, routes of exposure, and lifestages of potential post-application exposure include:

• Physical activities on turf: Adults (dermal) and children 1 to <2 years old (dermal and incidental oral).

• Mowing: Adults (dermal) and children 11 to <16 years old (dermal).

• Golfing: Adults (dermal), children 11 to <16 years old (dermal), and children 6 to <11 years old (dermal).

• Contact with Treated Gardens and Trees: Adults (dermal) and children 6 to <11 years old (dermal). The values used for aggregate assessment are based on the worst-case residential exposure estimates via the inhalation (adult male) and oral (child 1 < 2 years old) routes.

Further information regarding EPA standard assumptions and generic inputs for residential exposures may be found at http://www.epa.gov/pesticides/trac/science/trac6a05.pdf.

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

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

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

2. Prenatal and postnatal sensitivity. There is no concern for increased qualitative and/or quantitative susceptibility following in utero (rats and rabbits) and pre-and post-natal exposure (rats). The NOAEL and LOAEL values for the fetal/pup effects observed in the developmental study and effects seen in the reproduction studies occurred at the same doses or higher than those which caused maternal toxicity. The rabbit developmental study was used as an acute dietary endpoint for females 13-49 years of age. The POD selected for risk assessment are protective of effects seen in these guideline studies. Therefore, the acute and chronic dietary risk assessments are protective of potential fetal/offspring effects.

3. Conclusion. EPA has determined that reliable data show that it would be safe for infants and children to reduce the FQPA SF to 1X. That decision is based on the following findings:

i. The toxicity database for dimethenamid and dimethenamid-P is complete.

ii. There is no indication that dimethenamid or dimethenamid-P is a neurotoxic chemical and there is no need for a developmental neurotoxicity study or additional UFs to account for neurotoxicity.

iii. There is no evidence that dimethenamid or dimethenamid-P results in increased susceptibility in utero in rat or rabbit prenatal developmental studies or in young rats in the 2-generation reproduction study.

iv. There are no residual uncertainties identified in the exposure databases. The dietary food exposure assessments were performed based on 100% CT and tolerance-level residues which results in very high-end estimates of dietary exposure. The dietary drinking water assessment, which included parent plus its ethanesulfonic acid and oxanilic acid degradates, utilizes values generated by model and associated modeling parameters which are designed to provide health protective, high-end estimates of water concentrations. These assessments will not underestimate the exposure and risks posed by dimethenamid-P and/or dimethenamid residues of concern.

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

1. Acute risk. Using the exposure assumptions discussed in this unit for acute exposure, the acute dietary exposure from food and water to dimethenamid-P and/or dimethenamid residues of concern will occupy 1.3% of the aPAD for infants <1 year of age, the population group receiving the greatest exposure.

2. Chronic risk. Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that chronic exposure to dimethenamid-P and dimethenamid residues of concern from food and water will utilize 17% of the cPAD for infants <1 year of age, the population group receiving the greatest exposure.

3. Short-term risk. Short-term aggregate exposure takes into account short-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Dimethenamid-P is currently registered for uses that could result in short-term residential exposure, and the Agency has determined that it is appropriate to aggregate chronic exposure through food and water with short-term residential exposures to dimethenamid-P.

Dermal and inhalation exposures to handlers were not aggregated because the toxicity endpoints for these exposure routes are not based on common toxicity effects in/of the liver. Dermal effects (bw gain) were considered to be non-specific. EPA aggregated the worst-case residential exposure estimates via the inhalation (adult male) and oral (child 1 < 2 years old) routes.

Using the exposure assumptions described in this unit for short-term exposures, EPA has concluded the combined short-term food, water, and residential exposures result in an aggregate MOEs of 2,200 for adults and 1,100 for children 1-2 years old. Because EPA's LOC for dimethenamid-P is a MOE of 100 or below, these MOEs are not of concern.

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

5. Aggregate cancer risk for U.S. population. As indicated in Unit III.A., EPA has concluded that the chronic RfD would be protective of any cancer effects. Based on the results of the chronic aggregate risk assessment, EPA concludes there is no risk of concern for cancer effects from exposure to dimethenamid and dimethenamid-P.

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

An adequate enforcement method is available for determining residues of dimethenamid in plant commodities. The Gas Chromatography/Nitrogen-Phosphorus Detector (GC/NPD) method (AM-0884-0193-1) has been validated by the Agency and submitted for publication in the Food and Drug Administration (FDA) Pesticide Analytical Manual (PAM), Volume II. The limit of quantitation (LOQ; determined as the lowest level of method validation, LLMV) is 0.01 ppm. This method is not enantiomer specific.

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

The Codex has not established a MRL for dimethenamid or dimethenamid-P in/on members of cottonseed subgroup 20C and cotton, gin byproducts.

A separate tolerance in cotton, seed, refined oil is not needed since the exaggerated rate processing study demonstrates that the petitioned-for tolerance in/on cottonseed subgroup 20C (0.01 ppm) will be adequate to cover potential residues of dimethenamid in refined oil.

Therefore, tolerances are established for residues of the herbicide dimethenamid, 1(RS)-2-chloro-N-[(1-methyl-2-methoxy) ethyl]-N-(2, 4-dimethylthien-3-yl) acetamide, applied as either the 90:10 or 50:50 S:R isomers, in or on cottonseed subgroup 20C at 0.01 ppm and cotton, gin byproducts at 1.5 ppm.

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

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

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

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

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

Therefore, 40 CFR chapter I is amended as follows:

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

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

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

Under FFDCA section 408(g), 21 U.S.C. 346a(g), any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2013-0574 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before April 21, 2015. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2013-0574, by one of the following methods:

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

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

• Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at http://www.epa.gov/dockets/contacts.html. Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at http://www.epa.gov/dockets.

In the Federal Register of September 12, 2013 (78 FR 56185) (FRL-9399-7), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide tolerance petition (PP 3F8177) by IAB, S.L. (Investigaciones y Aplicaciones Biotecnologicas S.L.), Avda, Paret del Patriarca 11-B, Ap. 30, 46113 Moncada (Valencia) Spain. The petition requested that 40 CFR part 180 be amended by establishing an exemption from the requirement of a tolerance for residues of Bacillus subtilis strain IAB/BS03. That document referenced a summary of the petition prepared by the petitioner IAB, S.L., at http://www.regulations.gov which was not available in the docket due to an administrative error.

In the Federal Register of December 3, 2014 (79 FR 71713) (FRL-9919-58), EPA reopened the comment period on this petition (PP 3F8177) for 30 days to allow comments on the petition. Two comments received in response to the notice of filing. EPA's response is located in Unit III. D.

Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the exemption is “safe.” Section 408(c)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Pursuant to FFDCA section 408(c)(2)(B), in establishing or maintaining in effect an exemption from the requirement of a tolerance, EPA must take into account the factors set forth in FFDCA section 408(b)(2)(C), which require EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance or tolerance exemption, and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .” Additionally, FFDCA section 408(b)(2)(D) requires that the Agency consider “available information concerning the cumulative effects of (a particular pesticide's) . . . residues and other substances that have a common mechanism of toxicity.”

Consistent with FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure to Bacillus subtilis strain IAB/BS03. EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. A full explanation of the data upon which EPA relied and a summary of its risk assessment based on that data can be found within October 15, 2014 document entitled “Federal Food, Drug, and Cosmetic Act (FFDCA) Considerations for Bacillus subtilis strain IAB/BS03.” This document, as well as other relevant information, is available in the docket for this action as described under ADDRESSES.

Based upon that evaluation, EPA concludes that there is a reasonable certainty that no harm will result to the U.S. population, including infants and children, from aggregate exposure to residues of Bacillus subtilis strain IAB/BS03. Therefore, EPA is establishing an exemption from the requirement of a tolerance for residues of Bacillus subtilis strain IAB/BS03 in or on all food commodities when used in accordance with label directions and good agricultural practices.

An analytical method is not required for enforcement purposes for the reasons contained in the document entitled, “Federal Food, Drug, and Cosmetic Act (FFDCA) Considerations for Bacillus subtilis strain IAB/BS03” and because the Agency is establishing an exemption from the requirement of a tolerance without any numerical limitation.

In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), which is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party.

The Codex has not established a MRL for Bacillus subtilis strain IAB/BS03.

Two general comments were filed opposing the establishment of any tolerance or exemption. The Agency recognizes that some individuals believe that no residue of pesticides should be allowed on foods; however, under the existing legal framework provided by section 408 of the Federal Food, Drug and Cosmetic Act (FFDCA), EPA is authorized to establish pesticide tolerances or exemptions where persons seeking such tolerances or exemptions have demonstrated that the pesticide meets the safety standard imposed by the statute. Based on the available information, EPA has determined that the use of Bacillus subtilis strain IAB/BS03 is safe.

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

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

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

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

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

Therefore, 40 CFR chapter I is amended as follows:

On August 6, 2014 [79 FR 46012], PHMSA in consultation with the Federal Aviation Administration (FAA) published a final rule under Docket No. PHMSA-2009-0095 (HM-224F) modifying requirements governing the transportation of lithium cells and batteries. The final rule revised hazard communication and packaging provisions for lithium batteries to harmonize the Hazardous Materials Regulations (HMR; CFR parts 171-180) with applicable provisions of the United Nations (UN) Model Regulations, the International Civil Aviation Organization's Technical Instructions for the Safe Transport of Dangerous Goods by Air (ICAO Technical Instructions) and the International Maritime Dangerous Goods (IMDG) Code. In the August 6, 2014 final rule, PHMSA authorized a mandatory compliance date of February 6, 2015 (six months after publication in the Federal Register) for shippers to incorporate the new requirements into standard operating procedures and complete training of affected personnel.

The Retail Industry Leaders Association, the Food Marketing Institute, the National Retail Federation, and the Rechargeable Battery Association submitted a joint request for an extension of six months to the current mandatory compliance date. These groups contend that the six month transitional period adopted in the final rule did not provide sufficient time to comply with the new requirements and has proven extremely challenging for the retail industry to implement in particular for surface transportation. The request notes that “generally, the new regulations require that domestic ground shipments of products with lithium batteries adhere to shipping standards previously only required for international air and sea transportation”. The groups further note that the detailed information necessary for compliance, such as the specific number of lithium cells or batteries contained in a package and whether a package contains lithium ion or lithium metal cells or batteries, as required by § 173.185(c)(3), does not currently exist in any format that the retail sector can access and utilize. In addition the requestors state that tens of thousands of consumer products may be impacted by the rule, and estimate that to date, the necessary information has been obtained from retail suppliers for less than 25% of the affected products. Furthermore, they relate that since August 2014, retail businesses and their suppliers have been working diligently to develop information technology (IT) systems and business processes to identify consumer products impacted by the regulation. Systematic solutions are being developed but will take additional time to implement. They estimate that a minimum of six additional months is necessary to identify all affected products and build the IT infrastructure necessary to effectively implement the regulations. Finally, the commenters point out that the new provisions require the developing, tracking, and implementing of training programs for hundreds of thousands of employees to enable them to execute the nuanced marking and labeling requirements of the final rule.

PHMSA appreciates the additional information submitted and has reviewed the information in conjunction with the information considered during the rulemaking process. Based on this review, PHMSA believes the additional arguments and justification provided by the commenters have merit and that an extension of the mandatory compliance date for modes of transportation other than aircraft is warranted. PHMSA recognizes that the primary focus of the HM-224F final rulemaking as outlined in published notices preceding the final rule was to align the requirements of the HMR for air transportation of lithium batteries with those of the ICAO Technical Instructions. PHMSA believes that maintaining the February 6, 2015 compliance date for air transport is appropriate and important for aviation safety and is therefore maintaining the February 6, 2015 effective date for offering, acceptance, and transportation by aircraft. Therefore, in consultation with the FAA and consistent with the information set forth in the joint request, this extension does not apply to transportation by aircraft. In the event an air carrier becomes aware of a non-compliant shipment offered to it, the air carrier should report the incident to the FAA in addition to taking specific actions required by the regulations as to that shipment. For questions regarding reporting of such incidents, carriers may contact the nearest FAA Regional or Field Security Office by telephone or electronically.

In summary, in response to commenters' requests PHMSA is extending the mandatory compliance date for the final rule published under Docket No. HM-224F on August 6, 2014, until August 7, 2015 for all modes other than transportation by aircraft to allow additional time to implement the requirements of the rule. The mandatory compliance date of February 6, 2015 remains in effect with respect to offering, acceptance and transportation by aircraft.

On September 10, 2012, we published a final rule to remove the gray wolf in Wyoming from the Federal List of Endangered and Threatened Wildlife (77 FR 55530; “2012 delisting rule”). Additional background information on the gray wolf in Wyoming and on this decision, including previous Federal actions, can be found in our 2012 delisting rule.

Lawsuits challenging our 2012 delisting rule were filed. On September 23, 2014, the U.S. District Court for the District of Columbia vacated and set aside our 2012 delisting rule (Defenders of Wildlife et al. v. Salazar, et al., and The Humane Society of the United States, et al., v. U.S. Fish and Wildlife Service, et al., 1:12-cv-01833-ABJ) and reinstated our April 2, 2009 (74 FR 15123), final rule to govern management of gray wolves in Wyoming pursuant to the Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1531 et seq.).

The decision reinstates Federal protections that were in place prior to our 2012 delisting rule. Therefore, gray wolves in Wyoming are once again classified as an experimental population (59 FR 60252, November 22, 1994; 70 FR 1286, January 6, 2005; 73 FR 4720, January 28, 2008; 50 CFR 17.84(i) and (n)). Thus, take of wolves may be authorized only by one of these experimental population rules or by a permit obtained under section 10 of the ESA.

As a result of the court's decision, all of Wyoming except the Wind River Indian Reservation again operates under the 1994 nonessential experimental population rule (50 CFR 17.84(i)). The rule allows significant management flexibility, but does not allow the State to assume authority for wolf management. Thus, at present, the Service will continue to be the lead management agency for wolves throughout most of Wyoming. The Wind River Indian Reservation can again operate under the 2005 nonessential experimental population rule, as amended in 2008 (50 CFR 17.84(n)). Under the 2005 rule, States and Tribal entities can assume management authority over wolves if they obtain approved management plans from the Service and comply with all other applicable procedures. We notified all State, Federal, and Tribal partners of the court's September 23, 2014, decision and its impact shortly after the court issued its order. The Service and the State of Wyoming also took steps, such as press releases and agency Web site postings, to ensure the public was aware of the court's order.

On December 28, 2011, we published a final rule to remove the gray wolf in the western Great Lakes from the Federal List of Endangered and Threatened Wildlife (76 FR 81666; “2011 delisting rule”). Additional background information on the gray wolf in the western Great Lakes and on this decision, including previous Federal actions, can be found in our 2011 delisting rule.

A lawsuit challenging the 2011 delisting rule was filed on February 12, 2013. On December 19, 2014, the U.S. District Court for the District of Columbia vacated and set aside our 2011 delisting rule (The Humane Society of the United States, et al., v. Jewell, 2014 U.S. Dist. LEXIS 175846 (D.D.C. Dec. 19, 2014) and reinstated the rule in effect prior to the 2011 delisting rule, namely, the rule regarding Reclassification of the Gray Wolf in the United States and Mexico, with Determination of Critical Habitat in Michigan and Minnesota (43 FR 9607; Mar. 9, 1978).

The decision reinstates Federal protections that were in place prior to our 2011 delisting rule. Therefore, wolves in all of Wisconsin and Michigan, the eastern half of North Dakota and South Dakota, the northern half of Iowa, the northern portions of Illinois and Indiana, and the northwestern portion of Ohio are once again classified as endangered, and wolves in Minnesota are once again classified as threatened. The decision also reinstates the formerly designated critical habitat at 50 CFR 17.95(a) for gray wolves in Minnesota and Michigan and the regulations promulgated under section 4(d) of the ESA at 50 CFR 17.40(d) for the gray wolf in Minnesota. Thus, take of wolves in those areas may be authorized only by the section 4(d) rule for wolves in Minnesota or by a permit obtained under section 10 of the ESA.

To comply with the September 23, 2014, court order, we must reinstate our:

• April 2, 2009, rule (74 FR 15123), and

• Section 10(j) rules (59 FR 60252, November 22, 1994; 70 FR 1286, January 6, 2005; 73 FR 4720, January 28, 2008; 50 CFR 17.84(i) and (n)).

To comply with the December 19, 2014, court order, we must reinstate our:

• March 9, 1978, rule (43 FR 9607),

• Critical habitat designation for gray wolves in Minnesota and Michigan, and

• Section 4(d) rule for gray wolves in Minnesota.

Therefore, the Director has determined, pursuant to 5 U.S.C. 553(b), that prior notice and opportunity for public comment are impractical and unnecessary.

Per the September 23, 2014 court order, any and all gray wolves in Wyoming are listed as a nonessential experimental population under section 10(j) of the ESA (50 CFR 17.84(i) and (n)). These regulations are the same as those in the regulations that were removed per our 2012 delisting rule (77 FR 55530). Although not required by the court, for consistency, we are placing the reinstated regulations at the specific paragraph designations they previously occupied in the Code of Federal Regulations prior to our issuance of the 2012 delisting rule. In order to accommodate this placement, we are moving regulations governing the Topeka shiner (Notropis topeka =tristis) nonessential experimental population that were placed in § 17.84(n) via a final rule that published July 17, 2013 (78 FR 42702); these regulations will now be located at § 17.84(d). This is purely an organizational action and has no effect on the implementation of any of the regulations.

Per the December 19, 2014, court order, any and all gray wolves in all of Wisconsin and Michigan, the eastern half of North Dakota and South Dakota, the northern half of Iowa, the northern portions of Illinois and Indiana, and the northwestern portion of Ohio are listed as an endangered species under the ESA. Any and all wolves in Minnesota are listed as a threatened species under the ESA. The reinstated regulations at 50 CFR 17.95 designate critical habitat for gray wolves in Minnesota and Michigan, and the reinstated regulations at 50 CFR 17.40(d) govern the regulation of gray wolves in Minnesota. The provisions of these regulations are the same as those in the regulations that were removed per our 2011 delisting rule (76 FR 81666). Although not required by the court, for consistency, we are placing the reinstated regulations at the specific paragraph designations they previously occupied in the Code of Federal Regulations prior to our issuance of the 2011 delisting rule. In order to accommodate this placement, we are moving regulations promulgated under section 4(d) of the ESA for the straight-horned markhor (Capra falconeri megaceros) that were placed at § 17.40(d) via a final rule that published October 7, 2014 (79 FR 60365); these regulations will now be located at § 17.40(n). This is purely an organizational action and has no effect on the implementation of any of the regulations.

Because of previous rulemaking actions pertaining to gray wolves, the result of this recent court action is that gray wolves in all of Wisconsin, Michigan, North Dakota, South Dakota, Iowa, Illinois, Indiana, and Ohio are hereby listed as endangered (50 CFR 17.11(h)). Wolves in Minnesota are listed as threatened (50 CFR 17.11(h)).

This rule does not affect the status of gray wolves in Montana, Idaho, the eastern third of Washington and Oregon, and north-central Utah. Wolves in these areas retain their delisted status and will continue to be managed by the States.

This rule does not affect the gray wolf's Appendix II status under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES).

Accordingly, we amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:

The fishery for coastal migratory pelagic fish (king mackerel, Spanish mackerel, and cobia) is managed under the Fishery Management Plan for the Coastal Migratory Pelagic Resources of the Gulf of Mexico and South Atlantic (FMP). The FMP was prepared by the Gulf of Mexico and South Atlantic Fishery Management Councils (Councils) and is implemented under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.

Framework Amendment 1 to the FMP (79 FR 69058, November 20, 2014) increased the commercial annual catch limit (equal to the commercial quota) to 3.33 million lb (1.51 million kg) for the Atlantic migratory group of Spanish mackerel. The Atlantic EEZ is divided into a northern and southern zone for management purposes of Atlantic migratory group Spanish mackerel. The southern zone for Atlantic migratory group Spanish mackerel extends from 30°42′45.6″ N. lat., which is a line directly east from the Georgia/Florida boundary, to 25°20.4′ N. lat., which is a line directly east from the Miami-Dade/Monroe County, Florida, boundary. The northern and southern zones will have their own quotas as of March 1, 2015, the beginning of the next fishing year, with implementation of Amendment 20B to the FMP (80 FR 4216, January, 27, 2015).

For the southern zone, seasonally variable trip limits are based on an adjusted commercial quota of 3.08 million lb (1.40 million kg). The adjusted commercial quota is calculated to allow continued harvest in the southern zone at a set rate for the remainder of the current fishing year, February 28, 2015, in accordance with 50 CFR 622.385(b)(2). As specified at 50 CFR 622.385(b)(1)(ii)(B), beginning December 1, annually, the trip limit is unlimited on weekdays and limited to 1,500 lb (680 kg) of Spanish mackerel per day on weekends. As specified at 50 CFR 622.385(b)(1)(ii)(C), after 75 percent of the adjusted commercial quota of Atlantic migratory group Spanish mackerel is taken until 100 percent of the adjusted commercial quota is taken, Spanish mackerel in or from the EEZ in the southern zone may not be possessed on board or landed from a permitted vessel in amounts exceeding 1,500 lb (680 kg) per day.

NMFS has determined that 75 percent of the adjusted commercial quota for Atlantic group Spanish mackerel has been harvested. Accordingly, the 1,500-lb (680-kg) per day commercial trip limit applies to Spanish mackerel in or from the EEZ in the southern zone effective 6 a.m., local time, February 20, 2015, until 12:01 a.m., local time, March 1, 2015, unless changed by subsequent notification in the Federal Register.

The Regional Administrator, Southeast Region, NMFS, has determined this temporary rule is necessary for the conservation and management of Atlantic migratory group Spanish mackerel and is consistent with the Magnuson-Stevens Act and other applicable laws.

This action is taken under 50 CFR 622.385(b)(1)(ii)(C) and is exempt from review under Executive Order 12866.

These measures are exempt from the procedures of the Regulatory Flexibility Act because the temporary rule is issued without opportunity for prior notice and comment.

Pursuant to 5 U.S.C. 553(b)(B), the Assistant Administrator for Fisheries, NOAA, (AA), finds good cause to waive the requirements to provide prior notice and the opportunity for public comment on this temporary rule. Such procedures are unnecessary because the rule itself has already been subject to notice and comment, and all that remains is to notify the public of the trip limit reduction.

Allowing prior notice and opportunity for public comment is contrary to the public interest because of the need to immediately implement this action to protect the Atlantic migratory group Spanish mackerel resource because the capacity of the commercial fleet allows for rapid harvest of the quota. Prior notice and opportunity for public comment would require time and could potentially result in a harvest well in excess of the established quota.

For the aforementioned reasons, the AA also finds good cause to waive the 30-day delay in effectiveness of this action under 5 U.S.C. 553(d)(3).