Federal Register / Vol. 77, No. 228 / Tuesday, November 27, 2012 / Rules and Regulations 70687 

Washington, DC 20420, (202) 632–4603. 

(This is not a toll-free number.) 

SUPPLEMENTARY INFORMATION: On April 

18, 2012, VA published in the Federal 

Register, 77 FR 23128, a direct final rule 

to amend, in 38 CFR part 3, § 3.103(a) 

and (c)(1), and, in 38 CFR part 20, 

§ 20.706 and Appendix A to repeal 

amendments made by RIN 2900–AO06, 

‘‘Rules Governing Hearings Before the 

Agency of Original Jurisdiction and the 

Board of Veterans’ Appeals; 

Clarification,’’ a final rule that had been 

published in the Federal Register on 

August 23, 2011. As discussed in the 

preamble to the direct final rule, RIN 

2900–AO06 altered language upon 

which the United States Court of 

Appeals for Veterans Claims (Veterans 

Court) relied in Bryant v. Shinseki, 23 

Vet. App. 488 (2010), which applied the 

provisions of § 3.103(c)(2) to a Board 

hearing. The Bryant Court held that the 

provisions of § 3.103(c)(2) require a 

‘‘Board hearing officer’’ to ‘‘fully explain 

the issues still outstanding that are 

relevant and material to substantiating 

the claim’’ and to ‘‘suggest that a 

claimant submit evidence on an issue 

material to substantiating the claim 

when the record is missing any 

evidence on that issue or when the 

testimony at the hearing raises an issue 

for which there is no evidence in the 

record.’’ Id. at 496–97. 

VA determined that RIN 2900–AO06 

should have followed the notice-andcomment procedure of 5 U.S.C. 553(b) 

and (c) of the Administrative Procedure 

Act and published the direct final rule 

to return the regulations to the language 

in effect before August 23, 2011. The 

direct final rule provided a 30-day 

comment period that ended on May 18, 

2012. No significant adverse comment 

was received. VA received only one 

comment on May 17, 2012, from the 

National Organization of Veterans’ 

Advocates, Inc. (NOVA). In pertinent 

part, NOVA stated, ‘‘[T]he full, 

retroactive repeal of the invalid 

[amendments made by RIN 2900–AO06] 

should move forward regardless of 

whether the ‘VA receives a significant 

adverse comment by May 18, 2012.’ 

* * * VA has a responsibility to repeal 

the rule as quickly as possible. Doing so 

will help ensure that any veterans 

harmed by the invalid rule will be able 

to obtain appropriate relief.’’ 

Accordingly, under the direct final rule 

procedures that were described in RIN 

2900–AO43, the direct final rule became 

effective on June 18, 2012, because no 

significant adverse comment was 

received within the comment period. 

We take this opportunity to address 

three points made by NOVA in its 

comment. NOVA criticized the direct 

final rule procedure because it was 

‘‘conditional rather than mandatory.’’ 

As we anticipated when we published 

the direct final rule, no significant 

adverse comment was received by VA, 

and the direct final rule became 

effective on June 18, 2012. Accordingly, 

NOVA’s concern about the action being 

conditional is moot. 

NOVA also urged that the ‘‘repeal of 

[the amendments made by RIN 2900– 

AO06 be] retroactive to August 23, 

2011.’’ In the direct final rule, we stated 

that we were ‘‘repealing’’ those 

amendments but provided only an 

effective date—June 18, 2012. We did 

not provide an applicability date. 

Accordingly, in this document we have 

added, in the DATES section above, an 

Applicability Date paragraph, stating, 

‘‘This final rule shall apply to decisions 

issued by the Board on or after August 

23, 2011.’’ 

Finally, NOVA also encouraged VA to 

‘‘clarify that any veteran who suffered 

any harm as a result of the invalid rule 

is now entitled to obtain relief.’’ In this 

regard, appellants have a statutory right 

to appeal a Board decision to the 

Veterans Court within 120 days after the 

date on which the appellant is notified 

of the Board’s decision. See 38 U.S.C. 

7266(a). Additionally, VA regulations 

permit appellants whose claims have 

been denied by the Board to file with 

the Board at any time a motion for 

reconsideration of the decision. See 38 

CFR 20.1001. If the Chairman of the 

Board denies a motion for 

reconsideration, that denial and the 

underlying Board decision may be 

appealed to the Veterans Court if a 

timely appeal was previously filed with 

the Veterans Court with respect to that 

underlying Board decision. See Mayer v. 

Brown, 37 F.3d 618, 620 (Fed. Cir. 

1994), overruled in part by Bailey v. 

West, 160 F.3d 1360 (Fed. Cir. 1998) (en 

banc). Also, the Board’s decision may be 

appealed to the Veterans Court if the 

appellant filed the motion for 

reconsideration not later than 120 days 

after being notified of the Board’s 

decision and then appeals to the 

Veterans Court not later than 120 days 

after reconsideration is denied. Rosler v. 

Derwinski, 1 Vet. App. 241, 249 (1991); 

see also Linville v. West, 165 F.3d 1382, 

1385–86 (Fed. Cir. 1999). Additionally, 

the 120-day period to appeal a Board 

decision to the Veterans Court is subject 

to the doctrine of equitable tolling 

within certain parameters. See Bove v. 

Shinseki, 25 Vet. App. 136, 140 (2011). 

These procedures provide adequate 

avenues of relief to any claimants who 

may have been adversely affected by the 

repealed rule. 

Signing Authority 

The Secretary of Veterans Affairs, or 

designee, approved this document and 

authorized the undersigned to sign and 

submit the document to the Office of the 

Federal Register for publication 

electronically as an official document of 

the Department of Veterans Affairs. John 

R. Gingrich, Chief of Staff, Department 

of Veterans Affairs, Department of 

Veterans Affairs, approved this 

document on November 20, 2012, for 

publication. 

Dated: November 20, 2012. 

Robert C. McFetridge, 

Director, Regulation Policy and Management, 

Office of the General Counsel, Department 

of Veterans Affairs. 

[FR Doc. 2012–28621 Filed 11–26–12; 8:45 am] 

BILLING CODE 8320–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R04–OAR–2011–0809; FRL–9754–5] 

Approval and Promulgation of 

Implementation Plans; Florida; Section 

128 and 110(a)(2)(E)(ii) and (G) 

Infrastructure Requirements for the 

1997 8-hour Ozone National Ambient 

Air Quality Standards; Correction 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule, correction. 

SUMMARY: EPA published in the Federal 

Register of July 30, 2012, a final rule 

approving portions of the State 

Implementation Plan (SIP) revision 

submitted by the State of Florida, 

through the Florida Department of 

Environmental Protection (FDEP) on 

May 24, 2012, as demonstrating that the 

State met the SIP requirements of the 

Clean Air Act (CAA or the Act) for the 

1997 8-hour ozone national ambient air 

quality standards (NAAQS). In that final 

rule, EPA approved Florida’s 

infrastructure submission, provided to 

EPA on May 24, 2012, which included 

state statues to be incorporated into the 

SIP to address infrastructure 

requirements regarding state boards and 

emergency powers. While EPA 

discussed in the final rulemaking that it 

was taking action to approve certain 

state statues into the Florida SIP to 

address the state board requirements 

and emergency powers, EPA 

inadvertently did not list these state 

statues in the regulatory text of the July 

30, 2012, final rule. Accordingly, this 

rulemaking corrects that inadvertent 

regulatory text omission. 


wreier-aviles on DSK5TPTVN1PROD with 
70688 Federal Register / Vol. 77, No. 228 / Tuesday, November 27, 2012 / Rules and Regulations 

DATES: Effective November 27, 2012. 

FOR FURTHER INFORMATION CONTACT: 

Nacosta C. Ward, Regulatory 

Development Section, Air Planning 

Branch, Air, Pesticides and Toxics 

Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street SW., 

Atlanta, Georgia 30303–8960. The 

telephone number is (404) 562–9140. 

Ms. Ward can be reached via electronic 

mail at ward.nacosta@epa.gov. 

SUPPLEMENTARY INFORMATION: This 

action corrects an inadvertent omission 

in the regulatory language in a July 30, 

2012, final rulemaking where EPA 

approved certain state statues into the 

Florida SIP to address section 

110(a)(2)(E)(ii) regarding state boards 

and 110(a)(2)(G) regarding emergency 

powers for the 1997 8-hour ozone 

NAAQS. See 77 FR 29581. In the July 

30, 2012, final rule, EPA inadvertently 

did not list these state statues in the 

regulatory text. Accordingly, this 

rulemaking corrects that inadvertent 

regulatory text omission. 

EPA has determined that today’s 

action falls under the ‘‘good cause’’ 

exemption in section 553(b)(3)(B) of the 

Administrative Procedure Act (APA) 

which, upon finding ‘‘good cause,’’ 

authorizes agencies to dispense with 

public participation where public notice 

and comment procedures are 

impracticable, unnecessary, or contrary 

to the public interest. Public notice and 

comment for this action is unnecessary 

because today’s action to correct an 

inadvertent regulatory text omission 

included with EPA’s July 30, 2012, final 

rule is consistent with the substantive 

revisions to the Florida SIP described in 

the May 18, 2012, proposed rule for the 

July 30, 2012, final rule. See 77 FR 

29581. As such, public notice and 

comment has been provided for these 

revisions and additional notice and 

comment procedures are unnecessary. 

In addition, EPA can identify no 

particular reason why the public would 

be interested in being notified of the 

correction, or in having the opportunity 

to comment on the correction prior to 

this action being finalized, since this 

correction action does not change the 

meaning of EPA’s analysis or action to 

approve certain state statues as 

addressing the state board and 

emergency episode requirements for 

1997 8-hour ozone NAAQS into the 

Florida SIP. EPA also finds that there is 

good cause under APA section 553(d)(3) 

for this correction to become effective 

on the date of publication of this action. 

Section 553(d)(3) of the APA 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.’’ 5 U.S.C. 

553(d)(3). The purpose of the 30-day 

waiting period prescribed in APA 

section 553(d)(3) is to give affected 

parties a reasonable time to adjust their 

behavior and prepare before the final 

rule takes effect. Today’s rule, however, 

does not create any new regulatory 

requirements such that affected parties 

would need time to prepare before the 

rule takes effect. Rather, today’s action 

merely corrects an inadvertent omission 

for the regulatory text of a prior 

rulemaking by listing these state statues 

in the regulatory text for the Florida SIP. 

For these reasons, EPA finds good cause 

under APA section 553(d)(3) for this 

correction to become effective on the 

date of publication of this action. 

Statutory and Executive Order Reviews 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993), this action is 

not a ‘‘significant regulatory action’’ and 

therefore is not subject to review by the 

Office of Management and Budget. For 

this reason, this action is also not 

subject to Executive Order 13211, 

‘‘Actions Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use’’ (66 FR 28355, May 

22, 2001). This action merely corrects an 

inadvertent omission for the regulatory 

text of EPA’s July 30, 2012, final rule to 

approve certain state statues as 

addressing the state board and 

emergency episode requirements for 

1997 8-hour ozone NAAQS into the 

Florida SIP, and imposes no additional 

requirements beyond those imposed by 

state law. Accordingly, the 

Administrator certifies that this rule 

will not have a significant economic 

impact on a substantial number of small 

entities under the Regulatory Flexibility 

Act (5 U.S.C. 601 et seq.). Because this 

rule merely corrects an inadvertent 

omission for the regulatory text of EPA’s 

July 30, 2012, final rule to approve 

certain state statues as addressing the 

state board and emergency episode 

requirements for 1997 8-hour ozone 

NAAQS into the Florida SIP, and does 

not impose any additional enforceable 

duty beyond that required by state law, 

it 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). 

This rule also does not have tribal 

implications because it will not have a 

substantial direct effect on one or more 

Indian tribes, on the relationship 

between the Federal Government and 

Indian tribes, or on the distribution of 

power and responsibilities between the 

Federal Government and Indian tribes, 

as specified by Executive Order 13175 

(65 FR 67249, November 9, 2000). This 

rule also does not have Federalism 

implications because it does not have 

substantial direct effects on the states, 

on the relationship between the national 

government and the states, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132 (64 FR 43255, 

August 10, 1999). This rule merely 

corrects an inadvertent omission for the 

regulatory text of EPA’s July 30, 2012, 

final rule to approve certain state statues 

as addressing the state board and 

emergency episode requirements for 

1997 8-hour ozone NAAQS into the 

Florida SIP, and does not alter the 

relationship or the distribution of power 

and responsibilities established in the 

CAA. This rule also is not subject to 

Executive Order 13045 ‘‘Protection of 

Children from Environmental Health 

Risks and Safety Risks’’ (62 FR 19885, 

April 23, 1997), because it is not 

economically significant. In addition, 

this rule does not involve technical 

standards, thus the requirements of 

section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) do not 

apply. This rule also does not impose an 

information collection burden under the 

provisions of the Paperwork Reduction 

Act of 1995 (44 U.S.C. 3501 et seq.). 

The Congressional Review Act, 5 

U.S.C. section 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 January 28, 2013. 

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 


wreier-aviles on DSK5TPTVN1PROD with 
Federal Register / Vol. 77, No. 228 / Tuesday, November 27, 2012 / Rules and Regulations 70689 

of such rule or action. This action may 

not be challenged later in proceedings to 

enforce its requirements. See CAA 

section 307(b)(2). 

Dated: November 14, 2012. 

A. Stanley Meiburg, 

Acting Regional Administrator, Region 4. 

40 CFR part 52 is amended as follows: 

PART 52—[APPROVAL AND 

PROMULGATION OF 

IMPLEMENTATION PLANS] 

■ 1. The authority citation for part 52 

continues to read as follows: 

Authority: 42 U.S.C. 7401 et seq. 

Subpart K—Florida 

■ 2. Section 52.520(c), is amended by 

adding in numerical order a new entry 

for ‘‘State Statutes,’’ at the end of the 

table to read as follows: 

§ 52.520 Identification of plan. 

* * * * * 

(c) * * * 

EPA-APPROVED FLORIDA REGULATIONS

State citation 

(Section) Title/subject State effective date EPA approval date Explanation 

*******

State Statutes 

112.3143(4) ............................. Voting Conflict ........................ 4/19/2012 7/30/2012 77 FR 44485 ......... To satisfy the requirements of 

sections 128 and 

110(a)(2)(E)(ii). 

112.3144 ................................. Full and Public Disclosure of 

Financial Interests.

4/19/2012 7/30/2012 77 FR 44485 ......... To satisfy the requirements of 

sections 128 and 

110(a)(2)(E)(ii). 

403.131 ................................... Injunctive relief, remedies ...... 4/19/2012 7/30/2012 77 FR 44485 ......... To satisfy the requirements of 

section 110(a)(2)(G). 

120.569 ................................... Decisions which affect substantial interests.4/19/2012 7/30/2012 77 FR 44485 ......... To satisfy the requirements of 

section 110(a)(2)(G). 

* * * * * 

[FR Doc. 2012–28589 Filed 11–26–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R04–OAR–2009–0786; FRL–9752–5] 

Approval and Promulgation of 

Implementation Plans; Tennessee; 

Regional Haze State Implementation 

Plan; Best Available Retrofit 

Technology Requirements for Eastman 

Chemical Company 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is finalizing approval of 

the Best Available Retrofit Technology 

(BART) requirements for the Eastman 

Chemical Company (Eastman) that were 

provided in a revision to the Tennessee 

State Implementation Plan (SIP) 

submitted by the State of Tennessee, 

through the Tennessee Department 

Environment and Conservation (TDEC), 

on April 4, 2008, as later modified and 

supplemented on May 14, 2012, and 

May 25, 2012. EPA previously proposed 

action on the BART requirements for 

Eastman in association with action on 

Tennessee’s April 4, 2008, regional haze 

SIP revision. On April 24, 2012, EPA 

took final action on all aspects of the 

April 4, 2008, SIP revision to address 

regional haze in the State’s and other 

states’ Class I areas except for the BART 

requirements for Eastman. The May 14, 

2012, SIP revision (as clarified in a May 

25, 2012, SIP revision) changed the 

compliance date for the Eastman BART 

determination included in Tennessee’s 

April 4, 2008, SIP revision and provided 

a BART alternative determination 

option for Eastman. EPA is finalizing 

approval of the BART requirements for 

Eastman, as provided in Tennessee’s 

April 4, 2008, May 14, 2012, and May 

25, 2012, SIP revisions because these 

SIP revisions are consistent with the 

regional haze provisions of the Clean 

Air Act (CAA) and EPA’s regulations. 

DATES: Effective Date: This rule will be 

effective December 27, 2012. 

ADDRESSES: EPA has established a 

docket for this action under Docket 

Identification No. EPA–R04–OAR– 

2009–0786. 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, i.e., Confidential Business 

Information 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 Regulatory Development Section, 

Air Planning Branch, Air, Pesticides and 

Toxics Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street SW., 

Atlanta, Georgia 30303–8960. EPA 

requests that if at all possible, you 

contact the person listed in the FOR

FURTHER INFORMATION CONTACT section 

for further information. The Regional 

Office’s official hours of business are 

Monday through Friday, 8:30 a.m. to 

4:30 a.m., excluding Federal holidays. 

FOR FURTHER INFORMATION CONTACT: 

Michele Notarianni, Regulatory 

Development Section, Air Planning 

Branch, Air, Pesticides and Toxics 

Management Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street SW., 

Atlanta, Georgia 30303–8960. Michele 

Notarianni can be reached at telephone 

number (404) 562–9031 and by 

electronic mail at 

notarianni.michele@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. What is the background for this final 

action? 

II. What is the update to the response to 

comments received on EPA’s June 9, 

2011, proposal related to Eastman? 

III. What is the response to comments 

received on EPA’s August 27, 2012, 

proposal related to Eastman? 

IV. Final Action 

V. Statutory and Executive Order Reviews 


wreier-aviles on DSK5TPTVN1PROD with