Federal Register / Vol. 77, No. 76 / Thursday, April 19, 2012 / Rules and Regulations 23409 

Where: 

E ̄ o = Hg emission rate for the averaging 

period (lb/GWh). 

Echo = Electrical output-based hourly Hg 

emission rate for unit or stack operating 

hour ‘‘h’’ in the averaging period, from 

Equation A–4 of this section (lb/GWh). 

n = Number of unit or stack operating hours 

in the averaging period in which valid 

data were obtained for all parameters. 

(Note: Do not include non-operating hours 

with zero emission rates in the average). 

* * * * * 

7.2.4 Certification, Recertification, 

and Quality-Assurance Test Reporting. 

Except for daily QA tests of the required 

monitoring systems (i.e., calibration 

error tests and flow monitor interference 

checks), the results of all required 

certification, recertification, and qualityassurance tests described in paragraphs 

7.1.9.1 through 7.1.9.7 of this section 

(except for test results previously 

submitted, e.g., under the ARP) shall be 

submitted electronically, using the 

ECMPS Client Tool, either prior to or 

concurrent with the relevant quarterly 

electronic emissions report. 

* * * * * 

7.2.5.3.4 The results of all daily 

calibration error tests of the Hg CEMS, 

as described in paragraph 7.1.9.1 of this 

section and (if applicable) the results of 

all daily flow monitor interference 

checks. 

* * * * * 

[FR Doc. 2012–8703 Filed 4–18–12; 8:45 am] 

BILLING CODE 6560–50–P 

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. 

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 

(202) 566–1744, and the telephone 

number for the EPA Docket Center is 

(202) 566–1752. 

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: (202) 

566–0503; fax number: (202) 566–0677; 

email address: Camalier.louise@epa.gov, 

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 (800) 424–9346, (703) 412– 

9810 in the Washington, DC 

metropolitan area, toll free TDD at (800) 

553–7672, or visit the Web site at 

http://www.epa.gov/superfund/ 

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 § 372.22. Potentially affected 

categories and entities may include, but 

are not limited to: 


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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 


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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, federallyrecognized 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 federallyrecognized 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. 


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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 


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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 


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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., nonIndians, 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. 


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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 


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23416 Federal Register / Vol. 77, No. 76 / Thursday, April 19, 2012 / Rules and Regulations 

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 


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Federal Register / Vol. 77, No. 76 / Thursday, April 19, 2012 / Rules and Regulations 23417 

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 


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23418 Federal Register / Vol. 77, No. 76 / Thursday, April 19, 2012 / Rules and Regulations 

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, lowincome 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 

■ 1. The authority citation for part 372 

continues to read as follows: 

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

■ 2. In § 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: 

§ 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. 

* * * * * 

■ 3. Add § 372.20 to subpart B to read 

as follows: 

§ 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. 

■ 4. In § 372.27, paragraph (d) is revised 

to read as follows: 

§ 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. 

* * * * * 

■ 5. In § 372.30, paragraph (a) is revised 

to read as follows: 

§ 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 

§ 372.25, § 372.27, or § 372.28 at its 

covered facility described in § 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 


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Federal Register / Vol. 77, No. 76 / Thursday, April 19, 2012 / Rules and Regulations 23419 

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 


srobinson on DSK4SPTVN1PROD with RULES