[Federal Register Volume 77, Number 76 (Thursday, April 19, 2012)]
[Rules and Regulations]
[Pages 23409-23419]
[FR Doc No: 2012-9442]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 372

[EPA-HQ-OEI-2011-0196; FRL-9660-9]
RIN 2025-AA31

Toxics Release Inventory (TRI) Reporting for Facilities Located
in Indian Country and Clarification of Additional Opportunities
Available to Tribal Governments Under the TRI Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is announcing new opportunities for tribal participation
and engagement in the TRI Program. Under this final rule, TRI reporting
facilities located in Indian country are required to report to the
appropriate tribal government of their relevant area instead of the
State. This rule also improves and clarifies certain opportunities
allowing tribal governments to participate more fully in the TRI
Program. Further, because tribal governmental structures may vary, EPA
is updating its terminology to refer to the principal elected official
of the Tribe as the ``Tribal Chairperson or equivalent elected
official.'' EPA is also amending its definition of ``State'' for
purposes of 40 CFR part 372 to no longer include Indian country, so as
to avoid any confusing overlap in terminology for facilities located in
Indian country. With regard to the procedures for EPA to modify the
list of covered chemicals and TRI reporting facilities, today's rule
clarifies the opportunities available to tribal governments. In
particular, EPA is including within the relevant provision an
opportunity for the Tribal Chairperson or equivalent elected official
to request that EPA apply the TRI reporting requirements to a specific
facility located within the Tribe's Indian country. Secondly, EPA is
clarifying in this rule that the Tribal Chairperson or equivalent
elected official may petition EPA to add or delete a particular
chemical respectively to or from the list of chemicals covered by TRI.
In finalizing the actions described, EPA is helping to increase
awareness of toxic releases within tribal communities, thereby
increasing the understanding of potential human health and ecological
impacts from these hazardous chemicals.

DATES: This final rule is effective April 19, 2012. The requirement of
facilities located in Indian country to report to tribal governments is
applicable beginning with TRI reporting year 2012 (TRI reports due by
July 1, 2013).

ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-HQ-OEI-2011-0196. All documents in the docket are listed on the
www.regulations.gov Web site. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available either electronically through
www.regulations.gov or in hard copy at the OEI Docket, EPA/DC, EPA
West, Room 3334, 1301 Constitution Ave. NW., Washington, DC. The Public
Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding legal holidays. The telephone number for the Public
Reading Room is<PHONE_NUMBER>, and the telephone number for the EPA
Docket Center is<PHONE_NUMBER>.

FOR FURTHER INFORMATION CONTACT: Louise Camalier, Environmental
Analysis Division, Office of Environmental Information (2842T),
Environmental Protection Agency, 1200 Pennsylvania Ave. NW.,
Washington, DC 20460; telephone number:<PHONE_NUMBER>; fax number:
(202) 566-0677; email address<EMAIL_ADDRESS>for specific
information on this notice. For general information on EPCRA Section
313, contact the Superfund, TRI, EPCRA, RMP & Oil Information Center
toll free at<PHONE_NUMBER>,<PHONE_NUMBER> in the Washington, DC
metropolitan area, toll free TDD at<PHONE_NUMBER>, or visit the Web
site at http://www.epa.gov/superfund/contacts/infocenter contacts/infocenter.

SUPPLEMENTARY INFORMATION:

I. General Information

Does this action apply to me?

    You may be affected by this action if you own or operate a facility
located in Indian country (see 40 CFR 372.3 for a definition of Indian
country) with a toxic chemical(s) known by the owner or operator to be
manufactured (including imported), processed, or otherwise used in
excess of an applicable threshold quantity, as referenced in 40 CFR
372.25, 372.27, or 372.28, at its covered facility described in Sec.
372.22. Potentially affected categories and entities may include, but
are not limited to:

----------------------------------------------------------------------------------------------------------------
                      Category                                 Examples of potentially affected entities
----------------------------------------------------------------------------------------------------------------
Industry............................................  Facilities included in the following NAICS manufacturing
                                                       codes (corresponding to SIC codes 20 through 39): 311*,
                                                       312*, 313*, 314*, 315*, 316, 321, 322, 323*, 324, 325*,
                                                       326*, 327, 331, 332, 333, 334*, 335*, 336, 337*, 339*,
                                                       111998*, 211112*, 212324*, 212325*, 212393*, 212399*,
                                                       488390*, 511110, 511120, 511130, 511140*, 511191, 511199,
                                                       512220, 512230*, 519130*, 541712*, or 811490*.
                                                      *Exceptions and/or limitations exist for these NAICS
                                                       codes.
                                                      Facilities included in the following NAICS codes
                                                       (corresponding to SIC codes other than SIC codes 20
                                                       through 39): 212111, 212112, 212113 (correspond to SIC
                                                       12, Coal Mining (except 1241)); or 212221, 212222,
                                                       212231, 212234, 212299 (correspond to SIC 10, Metal
                                                       Mining (except 1011, 1081, and 1094)); or 221111, 221112,
                                                       221113, 221119, 221121, 221122, 221330 (Limited to
                                                       facilities that combust coal and/or oil for the purpose
                                                       of generating power for distribution in commerce)
                                                       (correspond to SIC 4911, 4931, and 4939, Electric
                                                       Utilities); or 424690, 425110, 425120 (Limited to
                                                       facilities previously classified in SIC 5169, Chemicals
                                                       and Allied Products, Not Elsewhere Classified); or 424710
                                                       (corresponds to SIC 5171, Petroleum Bulk Terminals and
                                                       Plants); or 562112 (Limited to facilities primarily
                                                       engaged in solvent recovery services on a contract or fee
                                                       basis (previously classified under SIC 7389, Business
                                                       Services, NEC)); or 562211, 562212, 562213, 562219,
                                                       562920 (Limited to facilities regulated under the
                                                       Resource Conservation and Recovery Act, subtitle C, 42
                                                       U.S.C. 6921 et seq.) (correspond to SIC 4953, Refuse
                                                       Systems).
Federal Government..................................  Federal facilities.
----------------------------------------------------------------------------------------------------------------

     This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be affected by this
action. Some of the entities listed in the table have exemptions and/or
limitations regarding coverage, and other types of entities not listed
in the table could also be affected. To determine whether your facility
would be affected by this action, you should carefully examine the
applicability criteria in part 372 subpart B of Title 40 of the Code of
Federal Regulations.
    Facilities in Indian country are no longer required to report to
the relevant States, although States may still receive this information
once it is available to the public. Tribes with facilities located in
their Indian country will receive the facility reports under this final
rule. This represents a change for affected facilities, States, and
Tribes.
    If you have questions regarding the applicability of this action to
a particular entity, consult the person listed in the preceding  FOR
FURTHER INFORMATION CONTACT section.

II. Introduction

    Since the beginning of the TRI Program in 1986, facilities that
meet TRI reporting requirements have been required to submit annual TRI
reports to EPA and the State in which they are located. In 1990, EPA
finalized regulations in the Federal Register (FR) requiring facilities
in Indian country to submit annual TRI reports to EPA and the
appropriate tribal government (55 FR 30632; July 26, 1990). EPA's
rationale supporting those regulations was fully explained in the
relevant preambles to the proposed and final rules. Id.; 54 FR 12992
(March 29, 1989). These amendments, however, were inadvertently
overwritten by a subsequent rule and left out of the CFR. To correct
this inadvertent omission, EPA is including provisions in the CFR, in
40 CFR 372.30(a), to require each facility located in Indian country to
submit its annual TRI reports to the appropriate Tribe, rather than to
the State in which the facility is geographically located. The
requirement for the facility to report to EPA will remain the same.
    To further encourage tribal engagement and participation in the TRI
program, EPA is also making explicitly clear in the regulations certain
additional opportunities for governments of federally-recognized
Tribes. The first opportunity allows the Tribal Chairperson or
equivalent elected official to request that EPA apply the TRI reporting
requirements to a specific facility located within the Tribe's Indian
country, under the authority of EPCRA Section 313(b)(2). The second
opportunity allows the Tribal Chairperson or equivalent elected
official to petition EPA to add or delete a particular chemical
respectively to or from the list of chemicals covered by TRI, under the
authority of EPCRA Section 313(e)(2). Under this rule, EPA will treat
these request and petitioning opportunities as EPA currently treats
those for Governors of States under EPCRA Sections 313(b)(2) and
(e)(2). After EPA has received a formal request from a Tribe, EPA will
make its final decision on the facility addition based on the criteria
outlined in EPCRA Section 313(b)(2). Under existing authorities, EPA
may also act on its own motion to add a facility without anyone
requesting action. Opportunities for the public to participate in the
TRI program consist of the right to petition the EPA to add or delete a
particular chemical or chemicals to the TRI list of hazardous chemicals
for toxics release reporting. Such public participation opportunities
are not changed by this final rule.

III. Background Information and Summary of Final Rule

A. What does this document do and what action does this document
affect?

    This document is primarily intended to fulfill the goals of the
July 26, 1990, action (55 FR 30632), which required facilities located
in Indian country to report to the appropriate tribal government and
the EPA, instead of to the State and EPA. This amendment, however, was
inadvertently omitted from the CFR when it was overwritten by a
subsequent rule. Therefore, EPA is updating 40 CFR 372.30(a) to reflect
the purpose of the 1990 amendment. Secondly, to supplement this action,
this document also clarifies existing TRI reporting regulations and
provides guidance to further enable tribal governments to participate
more fully in the TRI Program.
    Under today's final rule, an owner or operator of a TRI facility in
Indian country will have to submit (to the extent applicable) EPA's
Form R, Form A, and Form R Schedule 1 to the official designated by the
Tribal Chairperson or equivalent elected official of the relevant
Tribe, as well as to EPA. The form(s) will no longer have to be
submitted to the State in which the facility is geographically located.
Under this final rule, facilities will select/provide the name of the
relevant federally-recognized Tribe in the State data field in the
Address block on the TRI forms. To accommodate this, EPA is changing
the description of this data field on the TRI form. In addition, EPA is
modifying the instructions that accompany the forms in the annual TRI
Reporting Forms & Instructions document accessible from the TRI Web
site (http://www.epa.gov/tri).
    Also under today's final rule, EPA is clarifying the request and
petitioning rights available to tribal governments. A

Tribe now has the opportunity to request EPA to require TRI reporting
by a facility in the Indian country of that Tribe. Tribes also now have
the opportunity to petition for the addition or deletion of a chemical
in the same manner as a State, which would apply to all facilities that
manufacture (including import), process, or otherwise use the
particular chemical. The statute--at sections 313(b)(2) and 313(d)--
expressly authorizes the Administrator to apply TRI reporting
requirements to particular facilities and to add or delete chemicals to
or from the list of chemicals subject to TRI reporting. The statute
provides opportunities for Governors of States to request that
particular facilities be subject to TRI reporting or that specific
chemicals be added to or deleted from the TRI reporting list (EPCRA
Section 313(b)(2), (e)(2)). After EPA receives a formal request from a
State Governor or Tribal Chairperson to add a facility, EPA will make
its final decision on the facility addition based on the criteria
outlined in EPCRA Section 313(b)(2). EPA may also act on its own motion
to add a facility without anyone requesting action. EPA believes that
these same opportunities are appropriately available to tribal
governments under the statute and EPA interprets these provisions so
that the Tribal Chairperson or equivalent elected official may
similarly petition EPA. Ultimately, it is EPA that determines whether
TRI reporting requirements will apply to a particular facility or
whether a specific chemical will be added to, or deleted from, the TRI
chemical list.

B. What is the agency's authority for taking this action?

    EPA is finalizing this rule under sections 313, 328, and 329 of
EPCRA, 42 U.S.C. 11023, 11048 and 11049.
    EPCRA Section 313(a) requires that the TRI reporting form be
submitted to EPA and the official(s) of the State designated by the
Governor. Section 329 defines ``State'' to mean ``any State of the
United States, the District of Columbia, the Commonwealth of Puerto
Rico, Guam, American Samoa, the United States Virgin Islands, the
Northern Mariana Islands, and any other territory or possession over
which the United States has jurisdiction.'' The statute has no separate
definition of, or explicit reference to, Indian Tribes or Indian
country. As EPA has explained previously, however, Congress clearly
intended the statute's protections to apply to all persons nationwide,
including in Indian country. See, e.g., 55 FR 30632 (July 26, 1990); 54
FR 12992 (March 29, 1989). In the context of a facility located in
Indian country, EPA interprets section 313(a) as requiring reporting to
EPA and the official designated by the Tribal Chairperson or equivalent
elected official for the relevant area of Indian country. As discussed
in EPA's prior notices, the statutory language, the legislative
history, and principles of federal law relating to Indian Tribes and
Indian country support the application of EPCRA in Indian country and
EPA's reasonable interpretation of section 313(a) requirements. Id.
    This reasonable interpretation of the statute is reinforced by the
broad grant of rulemaking authority from Congress to EPA under EPCRA.
Section 328 provides that the ``Administrator may prescribe such
regulations as may be necessary to carry out this chapter.'' 42 U.S.C.
11048.
    For purposes of regulatory clarity, EPA is expressly including the
reporting requirements for a facility in Indian country in part 372.
Part 372 already contains a definition of Indian country at 40 CFR
372.3. To avoid any confusing overlap, EPA will remove Indian country
from the definition of ``State'' as that term is used in part 372.
    EPA also expressly interprets section 313(b)(2) and (e)(2) in the
context of Indian Tribes. In the case of a facility located in Indian
country, EPA interprets section 313(b)(2) as allowing requests by a
Tribal Chairperson or equivalent elected official that EPA apply TRI
reporting requirements to a facility located in the requesting Tribe's
Indian country. EPA also interprets section 313(e)(2) as allowing
petitions by a Tribal Chairperson or equivalent elected official
requesting that EPA add or delete a chemical to or from the list of
chemicals subject to TRI reporting. EPA's interpretation of each of
these provisions flows from the same reasoning and authority as
discussed above for section 313(a). EPA also notes that in all cases it
is EPA, not a Tribe or State, that makes the final determination
whether a facility or chemical should be subject to the TRI program.
    EPA believes that each of these tribal roles will enhance tribal
participation in the TRI program and the availability of relevant
information to communities within Indian country consistent with
statutory authorities and requirements. EPA notes that pursuant to
EPA's 1990 rulemaking cited above, federally-recognized Indian Tribes
already participate in other important elements of implementation of
EPCRA in Indian country. Today's final rulemaking, among other things,
rectifies the inadvertent omission from the CFR of certain tribal roles
in the TRI program.

C. What is an Indian Tribe, and what kind of land is Indian country?

    As defined at 40 CFR 372.3, ``Indian Tribe'' refers to those Tribes
that are ``federally-recognized by the Secretary of the Interior.'' The
Secretary of the Interior maintains a list of federally-recognized
Indian Tribes, which is published periodically in the Federal Register.
As also set forth at 40 CFR 372.3, ``Indian country'' means Indian
country as defined in 18 U.S.C. 1151, which defines Indian country as
follows: All land within the limits of any Indian reservation under the
jurisdiction of the United States government, notwithstanding the
issuance of any patent, and including rights-of-way running through the
reservation; all dependent Indian communities within the borders of the
United States whether within the original or subsequently acquired
territory thereof, and whether within or without the limits of a State;
and all Indian allotments, the Indian titles to which have not been
extinguished, including rights-of-way running through the same.

D. What is a Tribe's responsibility under this rule?

    Under this final rule and per the intent of the 1990 regulation, a
Tribe's only responsibility will be to receive any TRI reports
submitted by facilities located within its Indian country.

E. How will Tribes receive reports from facilities?

    Under this final rule, Tribes may define how they would like to
receive reports from TRI facilities. If a Tribe provides no specific
guidance as to receipt, owners and operators of TRI facilities would
mail TRI reports to the appropriate tribal government representative.
Tribes will be requested by EPA to provide a mailing address and
contact name to be published on the TRI Web site, so that facilities in
Indian country know where to send their TRI reports. If no specific
contact is provided, EPA will use the Tribal Council or Tribal
Environmental Department as the default contact. As described further
below, tribal governments can also choose to provide electronic options
for report submittal.

F. How does the final rule affect TRI reporting facilities and the
States or Tribes to which they will report?

1. Submission of TRI Reports to Tribal Governments
    As described above, under the rule the owner or operator of a
facility located in Indian country will have to submit the facility's
TRI reports to the relevant tribal government in lieu of the State
government. The requirement to submit the report to EPA will remain
unchanged. In many cases, this means the owner or operator will mail a
copy of the TRI report to the specific tribal government
representative. As noted, tribal governments may also choose to allow
for electronic submittal of TRI reports. If a tribal government becomes
a member of the internet-based TRI Data Exchange, then the owner or
operator of a facility can meet its dual EPA/Tribal reporting
requirements by submitting its TRI report to EPA via TRI Made Easy
(TRI-ME) web, a web-based application that allows facilities to submit
a paperless report. EPA would then automatically transmit the report to
the appropriate Tribe (instead of the State) via the TRI Data Exchange.
    If the facility is located in the Indian country of a Tribe that
does not become a member of the TRI Data Exchange, then the facility
will be required to submit a TRI report to EPA and also separately to
the appropriate Tribe. The approach described above is the same as for
EPA and States for those facilities not located in Indian country.
2. Requests by Tribal Governments for EPA To Add Specific Facilities to
TRI
    Under this final rule, a Tribe has the opportunity to request that
EPA require that a currently non-covered facility located in its Indian
country report the facility's releases and other waste management to
TRI. Under the statute, it is EPA that applies TRI reporting
requirements to particular facilities (EPCRA Section 313(b)(2)).
Section 313(b)(2) provides an opportunity for Governors of States to
request that EPA apply TRI requirements to facilities in their areas.
The addition of certain facilities that would otherwise not be covered
by TRI helps to aid communities and leaders to comprehensively assess
chemical releases to their local environment. EPA interprets this
provision to provide a similar opportunity for the Tribal Chairperson
or equivalent elected official to request that EPA apply TRI reporting
requirements to particular facilities located in the Tribe's Indian
country. This opportunity for Tribes to request that EPA add a facility
located in their Indian country can address situations where a tribal
government becomes aware of a facility that manufactures (including
imports), processes, or otherwise uses a TRI chemical yet does not meet
the full criteria to trigger reporting. This opportunity to add the
facility may help the Tribe better understand chemical risks within
their Indian country.
    This is an opportunity and not a requirement, which means that the
Tribal Chairperson or equivalent elected official is not required to
request the addition of a facility; however, he or she may do so, for
instance, if there is a concern about toxic releases coming from that
facility. After EPA receives a formal request from a Tribe, EPA will
make its final decision on the facility addition based on the criteria
outlined in EPCRA Section 313(b)(2). Under existing authorities, EPA
may also act on its own motion to add a facility without anyone
requesting action.
    EPA's consultation with Tribes consisted of two consultation calls
(February 7 and 28 of 2011), and during these calls EPA facilitated
discussion and received views and comments from Tribes in relation to
the actions described in this rule. Furthermore, EPA officiated two
additional webinars for representatives from the National Tribal Air
Association (NTAA) on March 17 and 30 of 2011, and hosted an electronic
discussion forum (or ``blog'') to collect electronic feedback from
interested parties. Material summarizing these meetings and the blog
can be accessed from the docket for the rule (Docket ID No. EPA-HQ-OEI-
2011-0196).
    During the Agency's consultation with Tribes, EPA received several
positive comments about the proposed clarification to the request
rights for Tribes to add a facility to the TRI. As EPA has heard in
consultation, however, Tribes may also be concerned about facilities
that are not in Indian country but are located nearby, where releases
of chemicals may reach and affect Indian country lands and communities.
Although the opportunity expressly provided by the statute to request
the addition of a facility under EPCRA 313 only extends to a facility
located in the relevant State and, for Tribes under this rule, in the
relevant Indian country, EPA will consider any concerns and information
about facilities outside of the State or Indian country in the exercise
of EPA's discretionary authority, including concerns and information
brought to EPA's attention by a Tribal Chairperson or equivalent
elected official, and/or similarly, by Governors of States. This
possibility is especially relevant in situations where a facility
releases chemicals into or near a State or Indian country boundary or
cross-boundary community, yet it is not located within that Governor's
State or Tribal Chairperson or equivalent elected official's Indian
country. While there is no 180-day time limit as there is for chemical
petitions, and while this final rule does not address these general
request opportunities which are already in existence, EPA, as a matter
of administrative policy, would give such requests from tribal
governments (as well as Governors of States) appropriate priority and
consideration.
    The impact on owners and operators of facilities that EPA includes
within the TRI reporting program pursuant to the authority of EPCRA
Section 313(b)(2) is that they will be required to report to EPA and
the relevant Tribe (for facilities located in Indian country) or State
(for facilities outside of Indian country) under TRI. The impact from
this opportunity on citizens around the requested facility will be
access to additional information on chemicals being managed at the
facility if EPA adds the facility.
3. Petitions by Tribal Governments for EPA To Add Specific Chemicals to
the TRI List or To Delete Specific Chemicals From the TRI List
    Under this final rule, Tribes have the same opportunity as
Governors of States to petition EPA to require that a chemical be added
to or removed from the TRI list of toxic chemicals. Ultimately, it is
EPA that determines whether the chemical will be added to, or deleted
from, the TRI list. If EPA adds a chemical to the list, such action
would affect all facilities releasing the particular substance,
regardless of a facility's location inside or outside of the
petitioning Tribe's Indian country. This type of provision already
applies in the context of petitions by Governors of States (EPCRA
Section 313(e)(2)). EPA interprets the statute to provide similar
opportunities to the Tribal Chairperson or equivalent elected official.
This is an opportunity and not a requirement. In other words, the
Tribal Chairperson or equivalent elected official will not be required
to petition EPA to modify the list of substances managed by TRI;
however, he or she may do so, for instance, if there is a concern about
toxic releases of that substance.
    If EPA receives a petition from a Tribe that requests the addition
of a particular chemical, EPA has 180 days to respond with either the
initiation of a rulemaking to add the chemical to the list or an
explanation of why the petition does not meet the requirements

to add a chemical to the list. The petition would need to be based on
the criteria provided in subparagraph (A), (B), or (C) of EPCRA Section
313(d)(2). As a matter of administrative policy, EPA would place a high
priority on petitions from Tribes to add a chemical. However, if EPA
does not respond within 180 days of receipt of a Tribe's petition to
add a chemical, the chemical would be added to the list pursuant to
EPCRA Section 313(e)(2).
    Within 180 days of receipt of a Tribe's petition to delete a
chemical based on the criteria provided in subparagraph (A), (B), or
(C) of EPCRA Section 313(d)(2), EPA will either initiate a rulemaking
to delete the chemical or explain why EPA denied the petition. Unlike
the analogous process for petitions to add a chemical, however, the
chemical would not be deleted within 180 days if EPA failed to respond.
    Further, any person may petition EPA to add or delete a chemical
based on certain grounds specified under EPCRA Section 313(e)(1).
However, if EPA receives a petition by a private citizen to add a
chemical and EPA fails to respond within 180 days, the chemical would
not necessarily be added. This result distinguishes citizen petitions
to add a chemical from petitions to add a chemical by a Governor of a
State or, as clarified under this final rule, the Tribal Chairperson or
equivalent elected official (compare EPCRA Section 313(e)(1) with EPCRA
Section 313(e)(2)).
    During the Agency's consultation with Tribes, EPA received several
positive comments about this clarification to the petition rights for
Tribes to add a chemical to the TRI reporting list. For more
information, the materials summarizing these meetings and the blog can
be accessed from the docket for this rule (Docket ID No. EPA-HQ-OEI-
2011-0196).
    If EPA adds a chemical(s) to the TRI list (through its own
initiative under Section 313(d) or in response to a petition), the
impact on owners and operators of facilities with the toxic chemical(s)
in question will be that they would be required to evaluate the TRI
reporting requirements with the new chemical and, if appropriate, based
on those requirements, report under TRI to EPA and the relevant State
or, if located in Indian country, the relevant Tribe. The impact from
this action by EPA on Tribes, States, and the general public will be
that they would have access to information on new toxic chemicals being
managed at facilities across the nation. The potential impact from this
action on industry consists of the cost of compliance for facilities
that will have to report for a particular chemical that EPA added.

IV. What comments did EPA receive on this rule for TRI reporting for
facilities in Indian country and what are EPA's responses to those
comments?

    EPA received 10 comments on the Federal Register document ``TRI
Reporting for Facilities Located in Indian Country and Clarification of
Additional Opportunities Available to Tribal Governments under the TRI
Program'' (September 30, 2011; 76 FR 60781). The commenters included
two individuals, two tribal environmental groups, one state agency,
four organizations, and one industry group. The comments from
individuals and tribal environmental groups were supportive of EPA's
intent to clarify opportunities for Tribes regarding participation in
the TRI Program. These commenters supported this rule as it promotes
tribal sovereignty and will better enable Tribes to understand toxic
releases within Indian country. Some of these commenters, while
supporting EPA's action, requested additional actions such as:
Clarifying the procedures for tribal executive officials to submit
requests or petitions; and extending the rule to include ceded
territories used for hunting, fishing, and gathering. Other commenters
expressed concerns regarding EPA's authority to implement this rule,
possible complications in State emergency response activities, and
EPA's assessment of compliance burdens on reporting facilities or
receipt burdens on responsible tribal officials. Many of the comments
and EPA's responses are summarized below. The complete set of comments
and EPA's complete responses can be found in the response to comment
document in the docket for this action.

1. Comments Asserted That EPA Lacks Congressional Authority To
Implement This Rulemaking

    Several commenters stated that section 313(a) of EPCRA requires a
facility owner or operator to submit the reporting form to two
governmental authorities: The EPA Administrator and the appropriate
State official or officials, as designated by the Governor. These
commenters assert that EPA can neither relieve the facility of the
statutory obligation to submit the form to State officials nor require
the facility to submit the form to any authority other than the EPA or
the State. The commenters further assert that section 329(9) of EPCRA,
the definition of ``State,'' does not include Indian Tribes. The
commenters assert that when Congress intends to include Tribes within
the definition of ``State,'' it does so clearly, and the commenters
point to the Clean Air Act, the Safe Drinking Water Act, and the Clean
Water Act as examples of such clear intentions. One commenter also
notes that Congress expressly included a provision that Tribes should
be afforded substantially the same treatment as States for purposes of
the Comprehensive Environmental Response, Compensation, and Liability
Act (CERCLA) of 1980. This commenter argues that the use of this
language in CERCLA and its corresponding absence in EPCRA indicates an
intent to preclude Tribes from being treated similar to States for the
purposes of EPCRA. The commenters argue that EPA does not have the
authority to construe ``an official or officials of the State
designated by the Governor'' to mean ``an official or officials of the
Indian Tribe designated by the Tribal Chairperson or equivalent elected
official of the relevant Indian Tribe.''
    EPA disagrees with the comments and believes that EPCRA provides
EPA ample authority to fill gaps in implementing the statute's
requirements in Indian country by reasonably exercising the Agency's
discretion to establish appropriate tribal roles to receive TRI reports
in Indian country. EPCRA does not explicitly address the role of Tribes
in implementing Title III programs. EPA notes that relevant authorities
in Indian country generally lie with Tribes and the federal government,
and not with States. See, e.g., Alaska v. Native Village of Venetie
Tribal Government, 522 U.S. 520, 527 n.1 (1998). EPA does not interpret
the statute's silence regarding Tribes and Indian country as
demonstrating the requisite clear Congressional intent to extend State
roles into such areas. Further, EPA does not agree with the commenters'
premise that when a statute is silent as to the role of Tribes, EPA is
precluded from exercising its discretion to designate Indian Tribes as
the appropriate implementing entities in Indian country. Rather, EPA
views the statute's silence as reserving to EPA's discretion the
appropriate means to fill implementation gaps in Indian country. In
view of the critical importance of local leadership in Title III
implementation, EPA has exercised its discretion to treat Tribes as the
appropriate entities to receive TRI reports from facilities in their
Indian country. EPA notes that this approach is consistent with
existing tribal roles under EPA's Emergency Planning and

Notification regulations at 40 CFR part 355.

2. Comments Asserted That Tribes Lack Congressional Authority To
Implement the TRI Program

    EPA received comments stating that Tribes do not have the legal
authority to implement EPCRA. The commenters argue that because this
rule involves the regulation of non-members, i.e., non-Indians, that
own land in fee within Indian reservations and the regulation of
facilities adjacent to, but not within, Indian country, express
authorization by Congress is required for Tribes to exercise this legal
authority. One of the comments cites Montana v. United States, 450 U.S.
544 (1981), for the proposition that tribal jurisdiction over non-
members is limited.
    EPA disagrees with the commenters' premise that Tribes are unable
to implement the EPCRA roles included in this rulemaking in Indian
country and notes that this rulemaking does not change the reporting
requirements for facilities adjacent to, but not within, Indian
country. EPA notes that in the prior rulemaking establishing tribal
roles in implementing Title III, the Agency concluded that Tribes are
generally able to exercise sufficient authority to carry out Title III
emergency planning and response activities in Indian country. 55 FR
30632, 306041 (July 26, 1990). See also ``Summary and Response to
Comments Received on Notice of Proposed Rulemaking Under Sections 311
and 312 of the Superfund Amendments and Reauthorization Act of 1986--
March 29, 1989'' (June 20, 1990). EPA continues to believe that Tribes
are the appropriate entities for such functions in Indian country. This
is especially true with regard to the functions at issue in this
rulemaking, which do not include any separate regulatory program
approval or other exercise of regulatory authority by Tribes. Tribes
will simply need to accept the reports filed by covered facilities
pursuant to statutory requirements. EPA is not approving any separate
regulatory or enforcement functions for Tribes, as such functions are
not necessary elements of this program. With regard to the
opportunities for Tribes to petition EPA to add chemicals or facilities
to the TRI program, we note that it is EPA, not Tribes or States, who
ultimately decides which chemicals and facilities will be covered. The
exercise of this federal function by EPA does not entail any exercise
of regulatory authority by Tribes (or States).

3. Comments Requested That Rule Extend to Ceded Territories Used by
Tribes

    Two commenters sought an extension of the rule to include lands
ceded by treaties that may be used by Tribes for hunting, fishing, and
gathering. These commenters also asked that EPA extend this action to
lands ten miles away from any reservation due to the migration of air
emissions.
    EPA recognizes that the problem presented by releases from
facilities in cross-border areas is present in any emergency response
scheme that relies on reporting to local officials. EPCRA recognizes
this issue and encourages cross-boundary cooperation; section 304(b)(1)
requires that emergency notification be given to ``the State emergency
planning commission of any State likely to be affected by the
release.'' With regard to Indian country, EPA understands Indian Tribes
to be within the scope of ``State'' for the purposes of section
304(b)(1) notification. EPA encourages Tribes, State Emergency Response
Commissions (SERCs), and Local Emergency Planning Committees (LEPCs) to
participate in joint planning and cooperative efforts to prepare for
potential emergencies.
    EPA declines to extend the rule as requested by the commenters
because of the local nature of emergency planning. It is important that
one entity be responsible for emergency planning in an area to enable
effective emergency response. EPA encourages joint planning and
cooperative efforts between LEPCs, SERCs, and Tribes to address these
entities' interests in emergency response planning in lands outside
their borders.

4. Comments Asserted That the Rule Could Complicate Emergency Response
Activities in Areas Where Indian Country Status May Be Hard To Identify

    EPA received comments that this action will make TRI data more
difficult to obtain, particularly in Oklahoma, where the status of
lands is often uncertain. The commenters argue that the public and
first responders will need to take steps to evaluate the status of the
land before knowing where to seek relevant reporting information. One
commenter adds that this rule could endanger first responders, LEPCs,
and local residents because they will not be able to easily determine
which hazardous materials are within their communities, or how to
respond to a chemical release because these facilities would only be
required to report to a tribal government, not the Department of
Environmental Quality (DEQ). Additionally, these commenters note that
they find EPA's database unreliable, because the information is no
longer current by the time it becomes public.
    EPA recognizes the need to publish current TRI data and released
the preliminary 2010 data on July 28, 2011, less than one month after
the July 1st reporting deadline. EPA believes that this approach of
releasing the most recent TRI data soon after the reporting deadline
and before the TRI National Analysis has been developed helps
communities to have access to the most recent data as quickly as
possible.
    In addition, EPA believes that in most cases, determining whether
reporting facilities are located within Indian country will be
straightforward, and there should be little or no confusion regarding
such locations. This is especially true for facilities that are covered
by regulatory programs under other federal environmental statutes,
e.g., the Clean Water Act, the Clean Air Act, and the Resource
Conservation and Recovery Act, as the land status of their locations
may already have been considered in determining the applicable
regulatory agency. The EPA recognizes that certain rarer situations may
raise more complex factual scenarios. In such cases, EPA intends to
work with the relevant Tribe, State, and facility to assess the Indian
country status of the particular facility's location. EPA believes that
sufficient information will be available for first responders to
determine the appropriate source for reporting information. EPA does
not believe that this rule will increase risk to first responders and
emergency response personnel. While States and Tribes will be one
resource for TRI data, EPA houses all of the reported toxic release
information from facilities in one comprehensive database which
provides a complete account of facilities and information on their
chemicals. EPA makes TRI release data available to the public less than
one month after the July 1st reporting deadline. During the three-week
period between new report submission and public availability, EPA
encourages emergency response personnel to work with States, Tribes and
EPA to assist in filling any alleged temporary gaps in data
availability. In anticipation of an emergency, EPA also encourages such
collaboration so that emergency response personnel can preemptively
clarify the land status of any facilities of interest that may be in
Indian country.

5. Comments Asserted That EPA's Interpretation of EPCRA To Remove
State's Responsibility To Receive TRI Reports Is Unreasonable

    Two commenters stated that EPA's interpretation of EPCRA is
unreasonable because it removes the state's responsibility for
accepting TRI reports and making them publicly available.
    EPA does not believe that EPCRA designates States as the
responsible entity for accepting TRI reports for facilities in Indian
country. EPA notes that, consistent with applicable principles of
federal Indian law, it is the federal government and Tribes, not the
States, that generally implement programs in Indian country. See, e.g.,
Alaska v. Native Village of Venetie Tribal Government, 522 U.S. 520,
527 n.1. EPA does not interpret the language or legislative history of
Title III as expressing any Congressional intent to extend State
programs into Indian country.

6. Comments Expressed Concerns Regarding Identification of Facilities'
Indian Country Status and Requested a Delay of the Rule's Effective
Date

    One commenter stated that if the proposed rule is finalized,
implementation should be delayed, because EPA and Tribes need time to
develop a way for reporters to determine Indian country in Oklahoma.
    EPA does not believe there is any programmatic benefit to delaying
implementation of this rule or establishing new deadlines. The risks
from chemical accidents are real and current, and EPA encourages the
communities in which these risks exist to move quickly and
expeditiously to begin addressing those risks. In addition, as noted
above, EPA believes that in most cases, determining whether reporting
facilities are located within Indian country will be straightforward.
This is especially true for facilities that are covered by regulatory
programs under other federal environmental statutes, e.g., the Clean
Water Act, the Clean Air Act, and the Resource Conservation and
Recovery Act, as the land status of their locations may already have
been considered in determining the applicable regulatory agency. EPA
also notes that assessments of whether a reporting facility is located
in Indian country can generally be easily verified through consultation
with the Department of the Interior or through reference to readily
available materials. As stated above, EPA recognizes that certain rarer
situations may raise more complex factual scenarios. In such cases, EPA
intends to work with the relevant State, Tribe, and facility to assess
the Indian country status of the particular facility's location. The
EPA notes that it is ultimately a facility's responsibility to
ascertain whether it is required to report to the Tribe or State, in
addition to EPA.

7. Comments Expressed Concern for Potential Gaps in States' TRI
Databases

    One commenter stated that States will not have access to TRI
information in Indian country and will thus have potential data gaps.
    EPA generally makes TRI data available to the public less than one
month after the reporting deadline, thus making any alleged data
availability gaps temporary and short-term in nature. We note that this
concern would also apply to cross-border situations as between States,
which is an issue that exists irrespective of this rulemaking.
Similarly, Tribes have expressed interest in release data for areas
near, but outside of, their Indian country. During the approximate
three-week period between report submission and public availability,
EPA encourages States and Tribes to work together to share TRI data on
facilities of mutual interest.

8. Comments Expressed Concern That Potential Delays in States' Receipt
of TRI Reports for Facilities in Indian Country May Have Adverse
Effects in State Compliance Monitoring

    Two commenters expressed concerns that this action may have adverse
effects on compliance monitoring. One of these commenters stated that
it uses TRI data to compare reported quantities of releases to media-
permitted releases, which has revealed several releases in excess of
permitted releases in the past. This commenter alleged that a delay in
getting updated TRI information would delay this comparison and prolong
potential noncompliance.
    EPA recognizes the need to publish current TRI data, and released
the preliminary 2010 data on July 28, 2011, less than one month after
the July 1st reporting deadline. With regard to compliance monitoring
under federal environmental laws, EPA also notes that it is generally
EPA or the relevant Indian Tribe that implements environmental programs
in Indian country. State programs are generally not approved by EPA for
such areas.

9. Comments Questioned Whether the Economic Analysis Included Indian
Allotments in EPA's Assessment of Burden

    One commenter requested that EPA further consider the impact on
regulated entities and specifically asks whether EPA's Economic
Analysis included TRI facilities on Indian allotments. The commenter
asserted that there will be a cost in determining whether or not a
facility is on an allotment.
    EPA has developed an economic analysis to assess the impact on
facilities located in Indian country. The economic analysis estimates
incremental economic burden for facilities that are required to report
releases to TRI. The term Indian country, as defined in 40 C.F.R.
372.3, includes Indian allotments, so EPA therefore accounted for such
facilities in the universe of those affected by this rule. The Agency's
estimation of burden to a facility included coordination with EPA and
other offices regarding Indian country land status issues. Originally,
EPA estimated the time it would take for a facility to make this
determination would be, on average, about 10 minutes. This 10-minute
assumption considered the fact that most facility reporters are already
aware of their facilities' geographic status relating to Indian
country. In light of this commenter's concern, EPA increased the
average time (over the full universe of facilities) for a facility
reporter to make this determination, including consulting with EPA as
appropriate, to 30 minutes. This increase in reporter burden for
compliance determination is reflected in the final economic analysis
and raises the total first year incremental cost from $377,695 to
$388,161, based on an updated total of 6,985 burden hours. EPA
recognizes that certain rarer situations may raise more complex factual
scenarios. In such cases, EPA intends to work with the relevant State,
Tribe, and facility to assess the Indian country status of the
particular facility's location.

10. Comments Asserted That Implementation of This Rule May Result in
Additional Burden on Tribes Who Receive TRI Reports

    EPA received comment on potential economic impact and
implementation issues for Tribes. This commenter expressed concern for
the increased workload for Tribes and asked that EPA share the
rationale of the cost analysis or conduct a benefits analysis. The
commenter requested that EPA work with Tribes to assist Tribes in
easily managing the data and using the data to educate the community.
The commenter also requested assistance with upgrades to paper or
electronic reporting systems.
    EPA disagrees that the implementation of this rule will result in
additional burden to the Tribes responsible for receiving TRI reports
in

their Indian country. As described by the rule, a Tribe's only
responsibility will be to receive the submitted TRI report(s). Per the
rule, Tribes are not required to manage data, i.e., analyze or
disseminate data, or educate their community, although we do encourage
the use of the TRI data for community right-to-know purposes. Separate
from this rule, EPA already works with tribal communities to help them
better understand the TRI data as well as the software tools with which
individuals can access and analyze the releases on or near their
location. EPA will continue to work with Tribes in this manner, and our
intent through this rule is to increase tribal participation in the TRI
program. Therefore, as Tribes and States now have similar
responsibilities and rights pertaining to TRI report receipt and
chemical petitioning, we expect that Tribes may choose to increase
their focus on the TRI. EPA is prepared to work with interested Tribes
to increase understanding and awareness of the TRI Program.

V. References

    EPA has established an official public docket for this action under
Docket ID No. EPA-HQ-OEI-2011-0196. The public docket includes
information considered by EPA in developing this action, which is
electronically or physically located in the docket. For assistance in
locating any of these documents, please consult the person listed in
the above FOR FURTHER INFORMATION CONTACT section.

VI. Statutory and Executive Order Reviews Associated With This Action

A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review

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

B. Paperwork Reduction Act

    This final rule does not contain any new information collection
requirements that require additional approval by the Office of
Management and Budget (OMB) under the Paperwork Reduction Act (PRA), 44
U.S.C. 3501 et seq. Currently, the facilities subject to the reporting
requirements under EPCRA 313 and the Pollution Prevention Act (PPA)
6607 may use (to the extent applicable) the EPA Toxic Chemical Release
Inventory Form R (EPA Form 9350-1), the EPA Toxic Chemical Release
Inventory Form A (EPA Form 9350-2), and the EPA Toxic Chemical Release
Inventory Form R Schedule 1 (EPA Form 9350-3) for dioxin and dioxin-
like compounds. The Form R must be completed if a facility
manufactures, processes, or otherwise uses any listed chemical above
threshold quantities and meets certain other criteria. For the Form A,
EPA established an alternative threshold for facilities with low annual
reportable amounts of a listed toxic chemical. A facility that meets
the appropriate reporting thresholds, but estimates that the total
annual reportable amount of the chemical does not exceed 500 pounds per
year, can take advantage of an alternative manufacture, process, or
otherwise use threshold of 1 million pounds per year of the chemical,
provided that certain conditions are met, and submit the Form A instead
of the Form R. In addition, respondents may designate the specific
chemical identity of a substance as a trade secret pursuant to EPCRA
section 322 (42 U.S.C. 11042: 40 CFR part 350).
    OMB has approved the reporting burden associated with the EPCRA
Section 313 reporting requirements under OMB Control number 2025-0009
(EPA Information Collection Request (ICR) No. 1363.21). As provided in
5 CFR 1320.5(b) and 1320.6(a), an Agency may not conduct or sponsor,
and a person is not required to respond to, a collection of information
unless it displays a currently valid OMB control number. The OMB
control numbers relevant to EPA's regulations are listed in 40 CFR part
9, 48 CFR chapter 15, and displayed on the information collection
instruments (e.g., forms, instructions).
    EPA estimates the incremental burden for facilities located in
Indian country to send their reports to the Tribe instead of the State
to average, in the first year, approximately $44.64 per facility for
the 47 facilities located in Indian country. EPA estimates an
incremental burden of $18.51 for the remaining 20,857 TRI reporters.
Thus, the total first year incremental cost associated with the rule is
estimated at $388,161 based on 6,985 total burden hours. In subsequent
years, there is no incremental reporting burden, given that the burden
created by the rule is limited to rule familiarization and compliance
determination in which facilities will only engage in the first year.
These estimates include the time needed to become familiar with the new
requirement (rule familiarization) and to determine whether the
facility is located in Indian country (compliance determination). The
actual burden on any facility may be different from this estimate
depending on how much time it takes individual facilities to complete
these activities.

C. Regulatory Flexibility Act (RFA), as Amended by the Small Business
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et
seq.

    The RFA generally requires an agency to prepare a regulatory
flexibility analysis of any rule subject to notice and comment
rulemaking requirements under the Administrative Procedure Act or any
other statute unless the agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
Small entities include small businesses, small organizations, and small
governmental jurisdictions. For purposes of assessing the impacts of
today's rule on small entities, small entity is defined as: (1) A
business that is classified as a ``small business'' by the Small
Business Administration at 13 CFR 121.201; (2) a small governmental
jurisdiction that is a government of a city, county, town, school
district or special district with a population of less than 50,000; and
(3) a small organization that is any not-for-profit enterprise which is
independently owned and operated and is not dominant in its field. All
of the 3,210 potentially affected small entities have cost impacts of
less than 1% in the first year of the rulemaking. Note that facilities
do not incur an increase in reporting burden or costs in subsequent
years of the rulemaking. No small entities are projected to have a cost
impact of 1% or greater. Of the 3,210 estimated cost impacts, there is
a maximum impact of approximately 0.713% and a median impact of
approximately 0.003%. A more detailed analysis of the impacts on small
entities is located in EPA's economic analysis support document,
Economic Analysis of the Toxics Release Inventory (TRI) Reporting for
Facilities Located in Indian Country Final Rule, located in the docket.
    After considering the economic impacts of this rule on small
entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities.

D. Unfunded Mandates Reform Act (UMRA)

    This rule does not contain a Federal mandate that may result in
expenditures of $100 million or more for State, local, and tribal
governments, in the aggregate, or the private sector in any one year.
EPA's economic analysis indicates that the total cost of this rule is
estimated to

be $388,161 in the first year of reporting, and $0 in subsequent years.
Thus, this rule is not subject to the requirements of sections 202 or
205 of UMRA.
    This rule is also not subject to the requirements of section 203 of
UMRA because it contains no regulatory requirements that might
significantly or uniquely affect small governments. Small governments
are not subject to the EPCRA section 313 reporting requirements.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132. This action relates to toxic
chemical reporting under EPCRA section 313, which primarily affects
private sector facilities. Thus, Executive Order 13132 does not apply
to this action.
    In the spirit of Executive Order 13132, and consistent with EPA
policy to promote communications between EPA and State and local
governments, EPA has specifically solicited comment on this action from
State and local officials prior to promulgating this final rule.

F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments

    Under Executive Order 13175 (65 FR 67249, November 9, 2000), EPA
may not issue a regulation that has tribal implications, that imposes
substantial direct compliance costs, and that is not required by
statute, unless the Federal government provides the funds necessary to
pay the direct compliance costs incurred by tribal governments, or EPA
consults with tribal officials early in the process of developing the
proposed regulation and develops a tribal summary impact statement.
    EPA has concluded that this action may have tribal implications, as
specified in Executive Order 13175. However, it will neither impose
substantial direct compliance costs on tribal governments, nor preempt
Tribal law. This action relates to toxic chemical reporting under EPCRA
section 313, which primarily affects private sector facilities;
however, it may have tribal implications due to how the Agency is
changing the current way toxic chemical reporting information is
transmitted and received. EPA consulted with tribal officials early in
the process of developing this regulation to permit them to have
meaningful and timely input into its development. EPA organized and
provided a formal consultation with Tribes to discuss the actions that
may have the potential to affect one or more Tribes or areas of
interest to Tribes. Two consultation calls occurred on February 7 and
28 of 2011, and during these calls EPA facilitated discussion and
received views and comments from Tribes in relation to the actions
proposed, and eventually finalized in this rule. During the Agency's
consultation with Tribes, EPA received several positive comments about
the clarification to the request rights for Tribes to add a facility to
the TRI, as well as the petitioning rights to add or delete a chemical.
Furthermore, EPA officiated two additional webinars for representatives
from the National Tribal Air Association (NTAA) on March 17 and 30 of
2011, and hosted a blog to collect electronic feedback from Tribes and
other interested parties. Additionally, in the spirit of EO 13175, and
consistent with EPA policy to promote communications between EPA and
Indian tribal governments, EPA specifically solicited additional
comment on the proposed action from tribal officials. EPA is finalizing
this regulation in order to better clarify tribal opportunities for
participation in the TRI Program and to enable Tribes to take a more
active role by receiving the facility reports documenting releases
within their Indian country. Through this final rule, EPA is also
providing certain opportunities for Tribal Chairpersons or equivalent
elected officials that are already in place for Governors of States.
EPA has addressed all feedback from its consultation with Tribes in
this rulemaking.

G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks

    EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying
only to those regulatory actions that concern health or safety risks,
such that the analysis required under section 5-501 of the EO has the
potential to influence the regulation. This action is not subject to EO
13045 because it does not establish an environmental standard intended
to mitigate health or safety risks.

H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use

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

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note)
directs EPA to use voluntary consensus standards in its regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures, and business practices) that are developed or adopted by
voluntary consensus standards bodies. NTTAA directs EPA to provide
Congress, through OMB, explanations when the Agency decides not to use
available and applicable voluntary consensus standards.
    This final rulemaking does not involve technical standards.
Therefore, EPA did not consider the use of any voluntary consensus
standards.

J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations

    EO 12898 (59 FR 7629, Feb. 16, 1994) establishes Federal executive
policy on environmental justice. Its main provision directs Federal
agencies, to the greatest extent practicable and permitted by law, to
make environmental justice part of their mission by identifying and
addressing, as appropriate, disproportionately high and adverse human
health or environmental effects of their programs, policies, and
activities on minority populations and low-income populations in the
United States. EPA has determined that this final rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it does not
affect the level of protection provided to human health or the
environment. This final rule provides opportunities to request the
addition of chemicals and facilities to the EPCRA section 313 reporting
requirements. By adding chemicals to the list of toxic chemicals
subject to reporting under section 313 of EPCRA, EPA would be providing
communities across the United States (including minority populations
and low-income populations) with access to data which they may use to
seek lower exposures and consequently, reductions in chemical risks for
themselves and their children. This information can also be used by
government agencies and others to identify potential problems, set
priorities, and take appropriate steps to

reduce any potential risks to human health and the environment.
Therefore, the informational benefits of this final rule will have a
positive effect on the human health and environmental impacts of
minority populations, low-income populations, and children.

K. Congressional Review Act

    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). This final rule is effective April 19, 2012. The requirement of
facilities located in Indian country to report to tribal governments is
effective beginning with reporting year 2012 (reports due by July 1,
2013).

List of Subjects in 40 CFR Part 372

    Environmental protection, Community right-to-know, Reporting and
recordkeeping requirements, Tribes, and Indian country.

    Dated: April 11, 2012.
Lisa P. Jackson,
Administrator.

    Therefore, 40 CFR part 372 is amended as follows:

PART 372--TOXIC CHEMICAL RELEASE REPORTING: COMMUNITY RIGHT-TO-KNOW

0
1. The authority citation for part 372 continues to read as follows:

    Authority:  42 U.S.C. 11023 and 11048.

0
2. In Sec.  372.3, the definition of ``Chief Executive Officer of the
tribe'' is removed, the definition of ``State'' is revised, and the
definition ``Tribal Chairperson or equivalent elected official'' is
added in alphabetical order to read as follows:

Sec.  372.3  Definitions.

* * * * *
    State means any State of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the
United States Virgin Islands, the Commonwealth of the Northern Mariana
Islands, and any other territory or possession over which the United
States has jurisdiction.
* * * * *
    Tribal Chairperson or equivalent elected official means the person
who is recognized by the Bureau of Indian Affairs as the chief elected
administrative officer of the Tribe.
* * * * *

0
3. Add Sec.  372.20 to subpart B to read as follows:

Sec.  372.20  Process for modifying covered chemicals and facilities.

    (a) Request to add a facility to the TRI list of covered
facilities.
    (b) The Administrator, on his own motion or at the request of a
Governor of a State (with regard to facilities located in that State)
or a Tribal Chairperson or equivalent elected official (with regard to
facilities located in the Indian country of that Tribe), may apply the
requirements of section 313 of Title III to the owners and operators of
any particular facility that manufactures, processes, or otherwise uses
a toxic chemical listed under subsection (c) of section 313 of Title
III if the Administrator determines that such action is warranted on
the basis of toxicity of the toxic chemical, proximity to other
facilities that release the toxic chemical or to population centers,
the history of releases of such chemical at such facility, or such
other factors as the Administrator deems appropriate.
    (c) Petition to add or delete a chemical from TRI list of covered
chemicals.
    (d) In general. (1) Any person may petition the Administrator to
add or delete a chemical to or from the list described in subsection
(c) of section 313 of Title III on the basis of the criteria in
subparagraph (A) or (B) of subsection (d)(2) and (d)(3) of section 313
of Title III. Within 180 days after receipt of a petition, the
Administrator shall take one of the following actions:
    (i) Initiate a rulemaking to add or delete the chemical to or from
the list, in accordance with subsection (d)(2) or (d)(3) of section 313
of Title III.
    (ii) Publish an explanation of why the petition is denied.
    (2) State and Tribal petitions. A State Governor, or a Tribal
Chairperson or equivalent elected official, may petition the
Administrator to add or delete a chemical to or from the list described
in subsection (c) of section 313 of Title III on the basis of the
criteria in subparagraph (A), (B), or (C) of subsection (d)(2) of
section 313 of Title III. In the case of such a petition from a State
Governor, or a Tribal Chairperson or equivalent elected official, to
delete a chemical, the petition shall be treated in the same manner as
a petition received under paragraph (d)(1) of this section. In the case
of such a petition from a State Governor, or a Tribal Chairperson or
equivalent elected official, to add a chemical, the chemical will be
added to the list within 180 days after receipt of the petition, unless
the Administrator:
    (i) Initiates a rulemaking to add the chemical to the list, in
accordance with subsection (d)(2) of section 313 of Title III, or
    (ii) Publishes an explanation of why the Administrator believes the
petition does not meet the requirement of subsection (d)(2) of section
313 of Title III for adding a chemical to the list.

0
4. In Sec.  372.27, paragraph (d) is revised to read as follows:

Sec.  372.27  Alternate threshold and certification.

* * * * *
    (d) Each certification statement under this section for activities
involving a toxic chemical that occurred during a calendar year at a
facility must be submitted to EPA and to the State in which the
facility is located on or before July 1 of the next year. If the
covered facility is located in Indian country, the facility shall
submit the certification statement as described above to EPA and to the
official designated by the Tribal Chairperson or equivalent elected
official of the relevant Indian Tribe, instead of to the State.
* * * * *

0
5. In Sec.  372.30, paragraph (a) is revised to read as follows:

Sec.  372.30  Reporting requirements and schedule for reporting.

    (a) For each toxic chemical known by the owner or operator to be
manufactured (including imported), processed, or otherwise used in
excess of an applicable threshold quantity in Sec.  372.25, Sec.
372.27, or Sec.  372.28 at its covered facility described in Sec.
372.22 for a calendar year, the owner or operator must submit to EPA
and to the State in which the facility is located a completed EPA Form
R (EPA Form 9350-1), EPA Form A (EPA Form 9350-2), and, for the dioxin
and dioxin-like compounds category, EPA Form R Schedule 1 (EPA Form
9350-3) in accordance with the instructions referred to in subpart E of
this part. If the covered facility is located in Indian country, the
facility shall submit (to the extent applicable) a completed EPA Form
R, Form A, and Form R Schedule 1 as described above to EPA and to the
official designated by

the Tribal Chairperson or equivalent elected official of the relevant
Indian Tribe, instead of to the State.
* * * * *
[FR Doc. 2012-9442 Filed 4-18-12; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register Volume 85, Number 89 (Thursday, May 7, 2020)]
[Proposed Rules]
[Pages 27186-27187]
[FR Doc No: 2020-09586]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 71

[Docket No. FAA-2020-0351; Airspace Docket No. 18-AAL-3]
RIN 2120-AA66

Proposed Amendment of Class E Airspace; McGrath, AK

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: This action proposes to amend Class E airspace, designated a
surface area, at Mc Grath Airport, McGrath, AK. To properly size the
area, it should be reduced from a 7.6-mile radius to a 5.6-mile radius
of the airport. This action also proposes to properly size Class E
airspace extending upward from 700 feet above the surface. The
extension north of the airport should increase in size to contain
arriving and departing IFR aircraft. The extension to the southeast of
the airport is not required and should be removed. Additionally, this
action proposes to properly size Class E airspace extending upward from
1,200 feet above the surface. The area should be reduced from a 74-mile
radius to a 45-mile radius of the airport. Lastly, this action proposes
numerous administrative corrections to the airspace legal descriptions.
This action would ensure the safety and management of IFR operations at
the airport.

DATES: Comments must be received on or before June 22, 2020.

ADDRESSES: Send comments on this proposal to the U.S. Department of
Transportation, Docket Operations, 1200 New Jersey Avenue SE, West
Building Ground Floor, Room W12-140, Washington, DC 20590; telephone:
1-800-647-5527, or<PHONE_NUMBER>. You must identify FAA Docket No.
FAA-2020-0351; Airspace Docket No. 18-AAL-3, at the beginning of your
comments. You may also submit comments through the internet at https://www.regulations.gov.
    FAA Order 7400.11D, Airspace Designations and Reporting Points, and
subsequent amendments can be viewed online at https://www.faa.gov/air_traffic/publications/. For further information, you can contact the
Airspace Policy Group, Federal Aviation Administration, 800
Independence Avenue SW, Washington, DC 20591; telephone: (202) 267-
8783. The Order is also available for inspection at the National
Archives and Records Administration (NARA). For information on the
availability of FAA Order 7400.11D at NARA, email<EMAIL_ADDRESS>or go to  https://www.archives.gov/federal-register/cfr/ibr-locations.html.

FOR FURTHER INFORMATION CONTACT: Matthew Van Der Wal, Federal Aviation
Administration, Western Service Center, Operations Support Group, 2200
S 216th Street, Des Moines, WA 98198; telephone<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

Authority for This Rulemaking

    The FAA's authority to issue rules regarding aviation safety is
found in Title 49 of the United States Code. Subtitle I, Section 106
describes the authority of the FAA Administrator. Subtitle VII,
Aviation Programs, describes in more detail the scope of the agency's
authority. This rulemaking is promulgated under the authority described
in Subtitle VII, Part A, Subpart I, Section 40103. Under that section,
the FAA is charged with prescribing regulations to assign the use of
airspace necessary to ensure the safety of aircraft and the efficient
use of airspace. This regulation is within the scope of that authority,
as it would amend the Class E airspace at Mc Grath Airport, McGrath, AK
to support instrument flight rules (IFR) operations at the airport.

Comments Invited

    Interested parties are invited to participate in this proposed
rulemaking by submitting such written data, views, or arguments, as
they may desire. Comments that provide the factual basis supporting the
views and suggestions presented are particularly helpful in developing
reasoned regulatory decisions on the proposal. Comments are
specifically invited on the overall regulatory, aeronautical, economic,
environmental, and energy-related aspects of the proposal.
Communications should identify both docket numbers and be submitted in
triplicate to the address listed above. Persons wishing the FAA to
acknowledge receipt of their comments on this notice must submit with
those comments a self-addressed, stamped postcard on which the
following statement is made: ``Comments to Docket No. FAA-2020-0351;
Airspace Docket No. 18-AAL-3''. The postcard will be date/time stamped
and returned to the commenter.
    All communications received before the specified closing date for
comments will be considered before taking action on the proposed rule.
The proposal contained in this notice may be changed in light of the
comments received. A report summarizing each substantive public contact
with FAA personnel concerned with this rulemaking will be filed in the
docket.

Availability of NPRMs

    An electronic copy of this document may be downloaded through the
internet at https://www.regulations.gov. Recently published rulemaking
documents can also be accessed through the FAA's web page at  https://www.faa.gov/air_traffic/publications/airspace_amendments/.
    You may review the public docket containing the proposal, any
comments received, and any final disposition in person in the Dockets
Office (see the ADDRESSES section for the address and phone number)
between 9:00 a.m. and 5:00 p.m., Monday through Friday, except federal
holidays. An informal docket may also be examined during normal
business hours at the Northwest Mountain Regional Office of the Federal
Aviation Administration, Air Traffic Organization, Western Service
Center, Operations Support Group, 2200 S 216th Street, Des Moines, WA
98198.

Availability and Summary of Documents for Incorporation by Reference

    This document proposes to amend FAA Order 7400.11D, Airspace

Designations and Reporting Points, dated August 8, 2019, and effective
September 15, 2019. FAA Order 7400.11D is publicly available as listed
in the ADDRESSES section of this document. FAA Order 7400.11D lists
Class A, B, C, D, and E airspace areas, air traffic service routes, and
reporting points.

The Proposal

    The FAA is proposing an amendment to Title 14 Code of Federal
Regulations (14 CFR) Part 71 by amending the Class E airspace,
designated a surface area, at Mc Grath Airport, McGrath, AK. This area
is designed to contain arriving IFR aircraft descending below 1,000
feet above the surface and IFR departures until reaching 700 feet above
the surface. The area is larger than required and should be reduced
from a 7.6-mile radius of the airport to a 5.6-mile radius of the
airport. This area is described as follows: That airspace extending
upward from the surface within a 5.6-mile radius of the Mc Grath
Airport.
    This action also proposes to amend Class E airspace extending
upward from 700 feet above the surface. This area is designed to
contain arriving IFR aircraft descending below 1,500 feet above the
surface and departing IFR aircraft until reaching 1,200 feet above the
surface. The extension to the north of the airport should increase in
size to properly contain IFR aircraft. The extension to the southeast
of the airport is not required and should be removed. This area is
described as follows: That airspace extending upward from 700 feet
above the surface within an 8.1-mile radius of the airport, and within
8 miles east and 4 miles west of the 001[deg] bearing from the airport,
extending from 8.1-mile radius to 15.7 miles north of the Mc Grath
Airport.
    Additionally, this action proposes to amend Class E airspace
extending upward from 1,200 feet above the surface. This airspace is
designed to contain IFR aircraft while transitioning to/from the
terminal and en route environments. The area is larger than required
and should be reduced from a 74-mile radius to a 45-mile radius of the
airport. This area is described as follows: That airspace extending
upward from 1,200 feet above the surface within a 45-mile radius of the
Mc Grath Airport.
    Lastly, this action proposes several administrative corrections to
the airspace legal descriptions. The airport name on the second line of
the text header does not match the FAA database. McGrath should be
removed from the airport name and it should read: ``Mc Grath Airport,
AK''. The airport's geographic coordinates do not match the FAA
database and should be updated to lat. 62[deg]57'10'' N, long.
155[deg]36'25'' W. The Class E surface airspace should be full time;
the following two sentences do not accurately represent the time of use
and should be removed: ``This Class E airspace area is effective during
specific dates and times established in advance by a Notice to Airmen.
The effective date and time will thereafter be continuously published
in the Airport/Facility Directory.''
    Class E2 and E5 airspace designations are published in paragraphs
6002 and 6005, respectively, of FAA Order 7400.11D, dated August 8,
2019, and effective September 15, 2019, which is incorporated by
reference in 14 CFR 71.1. The Class E airspace designations listed in
this document will be published subsequently in the Order.
    FAA Order 7400.11, Airspace Designations and Reporting Points, is
published yearly and effective on September 15.

Regulatory Notices and Analyses

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

Environmental Review

    This proposal will be subject to an environmental analysis in
accordance with FAA Order 1050.1F, ``Environmental Impacts: Policies
and Procedures'' prior to any FAA final regulatory action.

List of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (air).

The Proposed Amendment

    Accordingly, pursuant to the authority delegated to me, the Federal
Aviation Administration proposes to amend 14 CFR part 71 as follows:

PART 71--DESIGNATION OF CLASS A, B, C, D, AND E AIRSPACE AREAS; AIR
TRAFFIC SERVICE ROUTES; AND REPORTING POINTS

0
1. The authority citation for 14 CFR part 71 continues to read as
follows:

    Authority: 49 U.S.C. 106(f), 106(g), 40103, 40113, 40120; E.O.
10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.

Sec.  71.1  [Amended]

0
2. The incorporation by reference in 14 CFR 71.1 of FAA Order 7400.11D,
Airspace Designations and Reporting Points, dated August 8, 2019, and
effective September 15, 2019, is amended as follows:

Paragraph 6002 Class E Airspace Areas Designated as a Surface Area.

* * * * *

AAL AK E2 McGrath, AK [Amended]

Mc Grath Airport, AK
    (Lat. 62[deg]57'10'' N, long. 155[deg]36'25'' W)

    That airspace extending upward from the surface within a 5.6-
mile radius of Mc Grath Airport.

Paragraph 6005 Class E Airspace Areas Extending Upward From 700
Feet or More Above the Surface of the Earth.

* * * * *

AAL AK E5 McGrath, AK [Amended]

Mc Grath Airport, AK
    (Lat. 62[deg]57'10'' N, long. 155[deg]36'25'' W)

    That airspace extending upward from 700 feet above the surface
within an 8.1-mile radius of the airport and within 8 miles east and
4 miles east of the 001[deg] bearing from the airport, extending
from the 8.1-mile radius to 15.7 miles north of the airport; and
that airspace extending upward from 1,200 feet above the surface
within a 45-mile radius of Mc Grath Airport.

    Issued in Seattle, Washington, on April 30, 2020.
Shawn M. Kozica,
Group Manager, Operations Support Group, Western Service Center.
[FR Doc. 2020-09586 Filed 5-6-20; 8:45 am]
 BILLING CODE 4910-13-P