68458 Federal Register / Vol. 80, No. 214 / Thursday, November 5, 2015 / Rules and Regulations 

1See 70 FR 36901 (June 27, 2005). 2See 79 FR 7412 (Feb. 7, 2014). 

[FR Doc. 2015–28098 Filed 11–4–15; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R05–OAR–2009–0807; FRL–9936–54– 

Region 5] 

Air Plan Approval; Ohio; Test Methods; 

Error Correction 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is determining that a 

portion of an October 26, 2010, action 

was in error and is making a correction 

pursuant to section 110(k)(6) of the 

Clean Air Act. The October 26, 2010, 

EPA action approved various revisions 

to Ohio regulations in the EPA approved 

state implementation plan (SIP). The 

revisions were intended to consolidate 

air quality standards into a new chapter 

of rules and to adjust the cross 

references accordingly in various related 

Ohio rules. These changes included a 

specific revision to the cross reference 

in the Ohio rule pertaining to methods 

for measurements for comparison with 

the particulate matter air quality 

standards. This final correction action 

removes any misperception that EPA 

approved any revision to the pertinent 

rule other than the revised cross 

reference. This action will therefore 

assure that the codification of the 

October 26, 2010, action is in accord 

with the actual substance of the action. 

DATES: This final rule is effective on 

December 7, 2015. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–R05–OAR–2009–0807. 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 

(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 Environmental Protection Agency, 

Region 5, Air and Radiation Division, 77 

West Jackson Boulevard, Chicago, 

Illinois 60604. This facility is open from 

8:30 a.m. to 4:30 p.m., Monday through 

Friday, excluding Federal holidays. We 

recommend that you telephone John 

Summerhays, Environmental Scientist, 

at (312) 886–6067 before visiting the 

Region 5 office. 

FOR FURTHER INFORMATION CONTACT: John 

Summerhays, Environmental Scientist, 

Attainment Planning and Maintenance 

Section, Air Programs Branch (AR–18J), 

Environmental Protection Agency, 

Region 5, 77 West Jackson Boulevard, 

Chicago, Illinois 60604, (312) 886–6067, 

summerhays.john@epa.gov. 

SUPPLEMENTARY INFORMATION: This 

supplementary information section is 

arranged as follows: 

I. Summary of EPA’s Proposed Rulemaking 

II. Comments and EPA’s Responses 

III. What action is EPA taking? 

IV. Statutory and Executive Order Reviews 

I. Summary of EPA’s Proposed 

Rulemaking 

On June 4, 2003, Ohio submitted a 

variety of revisions to the EPA approved 

version of Ohio Administrative Code 

(OAC) 3745–17 in the state’s SIP, which 

regulates particulate matter and opacity 

from affected sources. While EPA 

subsequently approved many of these 

revisions, EPA published action on June 

27, 2005, proposing to disapprove 

specific submitted revisions in OAC 

3745–17–03(B) that in EPA’s view 

relaxed existing SIP opacity limitations 

without an adequate analysis under 

section 110(l) or section 193 of the 

Clean Air Act.1 Consistent with this 

proposed disapproval, the version of 

OAC 3745–17–03(B) submitted by the 

state on June 4, 2003, was not, and is 

not, an approved provision of the Ohio 

SIP. 

On September 10, 2009, for purposes 

of consolidating its existing SIP rules 

identifying applicable air quality 

standards, and to adjust the cross 

references between rules accordingly, 

Ohio submitted additional revisions to 

several of its existing rules to EPA for 

approval into the SIP. Most notably, 

these rule revisions included a 

modification to the existing cross 

reference in OAC 3745–17–03(A), which 

was necessary because the ambient 

particulate matter measurement method 

identified in this paragraph was for 

purposes of assessing attainment with 

the ambient air quality standards now 

located in OAC 3745–25–02, rather than 

in OAC 3745–17–02. 

On October 26, 2010, at 75 FR 65572, 

EPA published a direct final action 

approving the relevant revisions in the 

September 10, 2009, submission. In the 

preamble and in the codification of the 

October 26, 2010, action, EPA 

erroneously listed the approved SIP 

revisions as including the entirety of 

OAC 3745–17–03, rather than specifying 

more precisely that the approval as it 

pertained to OAC 3745–17–03 applied 

only to the revised cross reference in 

OAC 3745–17–03(A). This error left the 

misimpression that EPA had approved 

other significant substantive revisions in 

OAC 3745–17–03, including those in 

OAC 3745–17–03(B) that EPA had 

previously proposed to disapprove. The 

codification in the October 26, 2010, 

action with respect to OAC 3745–17–03 

should have been explicitly limited to 

OAC 3745–17–03(A), to reflect the EPA 

approval of only the revised cross 

reference. 

EPA subsequently recognized that the 

codification erroneously left the 

misimpression that it had approved 

more of OAC 3745–17–03 than the 

revision of the cross reference in OAC 

3745–17–03(A). On April 3, 2013, at 78 

FR 19990, EPA published action to 

correct the error. EPA took this action 

pursuant to its general rulemaking 

authority under Administrative 

Procedures Act section 553. Two parties 

challenged EPA’s April 3, 2013, action, 

and one of these parties also filed a 

petition for reconsideration of that 

action, objecting that EPA failed to 

correct the error in the October 26, 2010, 

action in accordance with the 

procedures of section 110(k)(6) of the 

Clean Air Act. 

EPA responded to the petition for 

reconsideration by agreeing to take this 

action pursuant to section 110(k)(6), as 

requested by the petitioner. 

Accordingly, EPA published proposed 

rulemaking on February 7, 2014, using 

its authority under section 110(k)(6) to 

correct errors in its rulemaking of 

October 26, 2010.2 Given the 

petitioners’ expressed interest in 

commenting on EPA’s action, EPA 

elected to use its authority under 

section 110(k)(6) for this action because, 

under these circumstances, it would 

provide the best mechanism to correct 

the apparent misunderstandings 

concerning the error in the October 26, 

2010, action. 

EPA’s February 7, 2014, proposal 

provides an extensive description of the 

error in its October 26, 2010, 

rulemaking, provided in subsections 

entitled, ‘‘What was the error in 

description and codification?’’, ‘‘What 

precipitated this error?’’, and ‘‘Why was 

it evident that this was an error?’’ It is 

not necessary to repeat that detailed 

explanation here. EPA proposed to 

correct the error to remove any 

misimpression in its October 26, 2010, 


jstallworth on DSK7TPTVN1PROD with RULES
Federal Register / Vol. 80, No. 214 / Thursday, November 5, 2015 / Rules and Regulations 68459 

3See 79 FR 36277 (June 26, 2014). 

4See letter from Craig W. Butler, Director, Ohio 

EPA, to Susan Hedman, Regional Administrator, 

USEPA Region 5, dated September 5, 2014, 

‘‘request[ing] withdrawal of [Ohio’s] June 4, 2003 

request to incorporate paragraph (B)(1)(b) into 

Ohio’s SIP.’’ 

5EPA’s October 26, 2010, rulemaking makes no 

reference to OAC 3745–17–07 (containing opacity 

limits). EPA presumes that the commenter intends 

to refer to OAC 3745–17–03, which among other 

provisions has provisions relating to measurement 

of opacity. 

rulemaking that EPA had approved any 

revisions to OAC 3745–17–03 other than 

the cross reference in OAC 3745–17– 

03(A). Specifically, EPA proposed to 

take action pursuant to Clean Air Act 

section 110(k)(6) repromulgating the 

correction published on April 3, 2013. 

EPA solicited comments on this 

proposed error correction, while noting 

that any comments on the technical or 

legal merits of certain substantive 

revisions to OAC 3745–17–03 (e.g., the 

opacity-related provisions in OAC 

3745–17–03(B)) or on the pending 

proposed disapproval of those 

provisions would not be germane to this 

error correction rulemaking. 

EPA intended to correct the error in 

the October 26, 2010, action first and 

then separately to complete the action to 

address the merits of the substantive 

revisions to OAC 3745–17–03 in the 

June 4, 2003, SIP submission that were 

the subject of the June 27, 2005, 

proposed disapproval. To this end, EPA 

published a supplemental proposal on 

June 26, 2014, reopening comment on 

its prior proposed disapproval of 

revisions to OAC 3745–17–03.3

Subsequently, however, Ohio has 

withdrawn the portion of the June 4, 

2003, submission that EPA proposed to 

disapprove.4

Accordingly, since the provisions is 

withdrawn, EPA does not need to 

complete action on the June 4, 2003, SIP 

submission. Significantly, this also 

confirms that the submitted substantive 

revisions to OAC 3745–17–03 are not 

part of the EPA approved SIP and that 

the EPA’s October 26, 2010, action 

could not have revised those elements 

of the existing version of OAC 3745–17– 

03 in the SIP, inadvertently or 

otherwise. Except for an amendment to 

the cross reference to ambient air 

quality standards in OAC 3745–17– 

03(A) (which EPA approved on October 

26, 2010), the version of OAC 3745–17– 

03 in the SIP remains the version 

effective in the state on January 31, 

1998, approved by EPA on October 16, 

2007. 

II. Comments and EPA’s Responses 

EPA received comments on its 

proposed error correction from three 

parties: (i) The Ohio Environmental 

Protection Agency (Ohio EPA); (ii) the 

Ohio Utility Group; and (iii) a group 

including the Ohio Chamber of 

Commerce, Ohio Manufacturers 

Association, and Ohio Chemistry 

Technology Council (Chamber et al.). 

The following are significant adverse 

comments from each commenter and 

EPA’s responses. 

Ohio EPA 

Comment: The commenter asserted 

that: ‘‘On February 7, 2014, U.S. EPA 

proposed, as an error correction, to 

remove from Ohio’s State 

Implementation Plan (SIP) a previously 

approved (October 26, 2010) portion of 

OAC Rule 3745–17–07 regarding 

methods for measurements to determine 

compliance with Ohio’s 20% opacity 

limitation.’’ 5 With this statement, the 

commenter is implying that EPA in fact 

approved substantive revisions to OAC 

3745–17–03 in the October 26, 2010, 

action, rather than merely approved the 

cross reference in OAC 3745–17–03(A). 

The commenter suggested that EPA 

acted on ‘‘the entirety’’ of the revisions 

to OAC 3745–17–03. 

Response: EPA disagrees with the 

commenter’s premise that the Agency 

approved any portion of OAC 3745–17– 

03 other than the revision to the cross 

reference in OAC 3745–17–03(A). EPA’s 

February 17, 2014, proposed action rule 

provides an extensive explanation of the 

error that occurred in the October 26, 

2010, action and the genesis of the error. 

Ohio’s clearly stated purpose in making 

the September 10, 2009, submission was 

to consolidate its existing SIP provisions 

relating to ambient air quality standards 

and to revise certain cross references in 

existing approved SIP rules in order to 

reflect that reorganization. The specific 

SIP revisions at issue in the state’s 

submission were reflected in redline 

and the redlined document identified 

the cross reference in OAC 3745–17– 

03(A) as the only revision relevant to 

OAC 3745–17–03. This indicates that 

approval of any substantive revisions in 

OAC 3745–17–03(B) would have been 

beyond the scope of the rulemaking. 

Moreover, EPA had already proposed to 

disapprove revisions to OAC 3745–17– 

03(B) on June 27, 2005, EPA received 

numerous, substantial comments for 

and against that proposed disapproval, 

and the rulemaking of October 26, 2010, 

provided no evidence of consideration 

of any of these comments. Although the 

commenter described EPA’s proposed 

error correction action as an action to 

‘‘remove . . . a previously approved’’ 

portion of rule, this is simply incorrect. 

EPA did not ‘‘previously approve’’ the 

portions of OAC 3745–17–03 that the 

Agency rulemaking of October 26, 2010, 

did not substantively address. EPA fully 

acknowledged in the February 17, 2014, 

proposal that the error that occurred in 

the October 26, 2010, action was the 

result of misunderstandings and 

miscommunications that it is seeking to 

rectify in this final error correction 

action. EPA is taking this final action in 

order to avoid further confusion on the 

part of regulated entities, regulators, and 

members of the public. 

Comment: The commenter stated that 

it ‘‘firmly believes [that the provision in 

OAC 3745–17–03(B)] is fully 

approvable.’’ The commenter explained 

that it was ‘‘attaching, and reaffirming’’ 

its prior comments on EPA’s proposed 

disapproval of this provision in the June 

27, 2005, action. The commenter further 

requested that ‘‘[c]onsideration should 

be taken to the previous comments 

submitted by Ohio EPA and others 

regarding the approvability of the 

provision at question in this action.’’ 

Response: As explained in the 

February 17, 2014, proposal for this 

action, EPA is focusing this section 

110(k)(6) rulemaking on the specific 

error that occurred in the October 26, 

2010, action. This rulemaking is not 

addressing the substantive merits of any 

portion of OAC 3745–17–03. Instead, 

this rulemaking is addressing whether 

EPA made an error in its October 26, 

2010, rulemaking by including a 

codification that went beyond the scope 

of the rulemaking and whether EPA 

should correct that error by correcting 

the codification to reflect that the only 

portion of OAC 3745–17–03 that was 

addressed in that rulemaking was the 

cross reference in OAC 3745–17–03(A). 

Accordingly, the commenter’s 

resubmission of its prior comments on 

the June 27, 2005, proposed disapproval 

is inappropriate and not germane to this 

action. 

In addition to being outside the scope 

of this error correction action, EPA 

notes that the commenter’s arguments 

also support EPA’s conclusion that the 

October 26, 2010, action was in error to 

the extent that it appeared to approve 

any revision beyond the cross reference 

in OAC 3745–17–03(A). The commenter 

explicitly acknowledged that EPA 

previously received significant 

comments concerning the merits of OAC 

3745–17–03(B), in particular comments 

that in the commenter’s view warrant 

reversal of EPA’s prior proposed 

disapproval. Furthermore, the 

commenter in effect argued that EPA 

has not adequately considered these 

comments. This is fully consistent with 

EPA’s own observation that its October 

26, 2010, rulemaking provided no 


jstallworth on DSK7TPTVN1PROD with RULES
68460 Federal Register / Vol. 80, No. 214 / Thursday, November 5, 2015 / Rules and Regulations 

6See 79 FR 36277 (June 26, 2014). 

7See letter from Craig W. Butler, Director, Ohio 

EPA, to Susan Hedman, Regional Administrator, 

USEPA Region 5, dated September 5, 2014, which 

may be found in the docket for this final action. 

evidence of any consideration of public 

comments concerning OAC 3745–17– 

03(B) whatsoever (again, because this 

provision was outside the scope of that 

rulemaking). Thus, the commenter 

appeared to agree with EPA’s view that 

the October 26, 2010, rulemaking does 

not provide any evidence of the 

consideration of comments regarding 

OAC 3745–17–03(B) that would be 

necessary for any approval or 

disapproval of OAC 3745–17–03(B) to 

be considered lawful. Moreover, the 

commenter did not appear to dispute 

EPA’s view that rulemaking on OAC 

3745–17–03(B) could not be considered 

a lawful and valid part of the October 

26, 2010, rulemaking even if it had been 

intended to be within the scope of the 

rulemaking. As explained in the 

February 17, 2014, proposal for this 

action, EPA had no such intentions and 

the fact that EPA did not address prior 

substantive comments on the merits of 

OAC 3745–17–03(B) should have 

alerted the commenter and other parties 

to this fact. 

Finally, EPA acknowledges the 

commenter’s request that that EPA 

complete its consideration of comments 

on the merits of OAC 3745–17–03(B), 

but such consideration is outside the 

scope of this rulemaking. By separate 

action, EPA intended to address the 

merits of the substantive revisions to 

OAC 3745–17–03 in the June 4, 2003, 

SIP submission that were the subject of 

the June 27, 2005, proposed 

disapproval. To this end, EPA published 

a supplemental proposal on June 26, 

2014, reopening comment on its prior 

proposed disapproval of certain 

substantive revisions to OAC 3745–17– 

03.6 Subsequently, however, Ohio 

withdrew its submittal of revisions to 

OAC 3745–17–03(B).7 This renders 

consideration of comments with respect 

to the withdrawn submission moot, both 

for purposes of the June 27, 2005, 

proposed disapproval and for purposes 

of this error correction action. 

Comment: The commenter objected 

that ‘‘U.S. EPA has made certain 

assertions regarding [OAC 3745–17– 

03(B)] that go beyond the scope of this 

proposed correction. U.S. EPA refers to 

the provision as ‘significant and 

substantive’ and states the ‘unapproved’ 

revisions ‘would allow significantly 

more opacity during certain periods.’ ’’ 

The commenter disputed these 

statements. The commenter asserted its 

belief that ‘‘U.S. EPA has crossed the 

threshold and cannot go forward with 

the package under 110(k), since U.S. 

EPA is now making a technical 

argument as to why the previously 

approved SIP revision is no longer 

acceptable.’’ The commenter also argued 

that ‘‘as a procedural matter, U.S. EPA 

must start over from the beginning and 

outline and address the entire technical 

issue in full and not use the 110(k) 

‘error’ approach.’’ 

Response: The premise of the 

commenter’s arguments is that EPA’s 

February 17, 2014, action in effect 

proposed to finalize EPA’s prior 

proposed disapproval of certain 

portions of OAC 3745–17–03, not 

merely correcting the error that led to 

the misimpression that EPA had already 

approved the revisions in toto. The 

commenter is thereby ignoring EPA’s 

clear statements about the actual scope 

of this error correction. 

As explained in the February 17, 

2014, proposal for this action, EPA is 

focusing this section 110(k)(6) 

rulemaking on the specific error that 

occurred in the October 26, 2010, 

action. EPA provided extensive 

discussion and explanation of the error 

that occurred in the October 26, 2010, 

action and why EPA could not be 

considered to have acted on any 

revisions to OAC 3745–17–03 that were 

outside the scope of that rulemaking. 

EPA explained the significance of OAC 

3745–17–03(B) in the February 17, 2014, 

proposal as a means of explaining why 

EPA considered it important to correct 

the errors in its October 26, 2010, 

rulemaking. EPA noted in passing that 

it had already proposed to disapprove 

certain provisions for reasons that were 

already a matter of public record in the 

Federal Register as a means of 

emphasizing that it could not have 

approved those revisions in the October 

26, 2010, action without an explicit 

discussion and justification for any such 

approval. 

The commenter appears to agree that 

the revisions in OAC 3745–17–03(B) 

that it advocated for EPA to approve are 

significant and substantive. EPA 

statements regarding the significance of 

the error, however, cannot be 

considered to constitute final review of 

the merits of the erroneously addressed 

provisions. The October 26, 2010, action 

clearly did not address the merits of 

OAC 3745–17–03(B), and EPA’s action 

proposing to correct an error related to 

these provisions did not address the 

merits of these provisions either. 

The commenter disagreed in 

particular with EPA’s characterization 

of OAC 3745–17–03(B) in the February 

17, 2014, proposal as allowing 

significantly more opacity during 

certain periods. A more precise 

statement would have been that EPA 

had proposed to disapprove the 

pertinent revisions to OAC 3745–17– 

03(B) in the June 27, 2005, proposal 

based in significant part on the view 

that the revisions would allow 

significantly more opacity during 

certain periods. The commenter, along 

with several other commenters, has 

disputed EPA’s proposed views 

regarding the merits of OAC 3745–17– 

03(B). As explained in detail in the 

February 17, 2014, proposal for this 

error correction, however, EPA did not 

intend, and could not have intended, to 

address the substantive merits of those 

revisions in the October 26, 2010, 

action. Indeed, with Ohio’s withdrawal 

of its request for rulemaking on these 

provisions, EPA will no longer be 

conducting final rulemaking on the 

merits of OAC 3745–17–03(B). 

Nevertheless, the more relevant point is 

that the existence of these disputes as to 

the merits of OAC 3745–17–03(B) 

illustrates the importance of correcting 

any errors that might create the 

misimpression that EPA had completed 

its review of these issues. EPA believes 

that the significance of the provisions in 

OAC 3745–17–03(B) and the 

outstanding questions regarding 

whether those provisions could have 

been approved consistent with CAA 

requirements provide added value to 

correcting any misimpressions regarding 

the status of those provisions, namely 

misimpressions reasserted in these 

comments that EPA had already 

completed rulemaking on these 

provisions. 

Contrary to the commenter’s 

statement, EPA’s proposed rulemaking 

to correct the errors in its October 26, 

2010, action was not based on a 

technical argument regarding the merits 

of OAC 3745–17–03(B), including any 

technical argument as to whether these 

provisions allow significantly more 

opacity during certain periods. This 

assertion regarding whether the now 

withdrawn revisions to OAC 3745–17– 

03 would allow more opacity (made in 

EPA’s 2005 proposed rulemaking 

addressing the merits of Ohio’s now 

withdrawn SIP revision and contested 

by various commenters) illustrates the 

significance of the error in the October 

26, 2010, action. However, the 

commenter provided no reason why 

characterization of the issue as 

significant and identification of any of 

the unresolved issues that were not 

addressed in the October 26, 2010, 

rulemaking (or elsewhere) should 

preclude EPA from assuring that the 


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Federal Register / Vol. 80, No. 214 / Thursday, November 5, 2015 / Rules and Regulations 68461 

October 26, 2010, rulemaking is 

characterized properly. 

Comment: The commenter objected to 

EPA statements in a separate unrelated 

rulemaking regarding SIP revisions for 

the State of Alabama. The commenter 

referred to EPA statements that the 

commenter characterized as citing ‘‘the 

2005 proposed disapproval of Ohio’s 

revision, in part, as justification for the 

proposed disapproval of Alabama’s 

revision.’’ The commenter further 

asserted that this ‘‘mislead[s] the readers 

of the Alabama proposal that Ohio’s 

proposed disapproval has followed its 

due course, when it has not.’’ The 

commenter requested that ‘‘any action 

taken on the Alabama proposal should 

not be used as justification for 

disapproving Ohio’s provision.’’ 

Response: EPA acknowledges that the 

proposed action concerning the State of 

Alabama mentioned the June 27, 2005, 

proposed disapproval of the Ohio 

submission. The existence of that 

proposal was, and is, a matter of record. 

EPA mentioned the June 27, 2005, 

proposed disapproval merely as means 

of explaining its views on relevant 

issue, not as a basis for a particular final 

action. The commenter did not explain 

why this comment concerning a 

proposed action in another state is 

relevant to the present error correction 

action concerning Ohio, nor does EPA 

consider it germane to this final action. 

In any event, the state has now 

withdrawn the portion of the 

submission that EPA proposed to 

disapprove, so this comment is moot. 

Ohio Utility Group 

Comment: The commenter asserted 

that ‘‘U.S. EPA’s action is not trivial and 

is not a mere ‘correction.’ In support of 

this statement, the commenter recited 

its view of the history of rulemaking on 

OAC 3745–17–03(B), including 

adoption by Ohio and proposed 

disapproval by EPA. The commenter 

observed that EPA received extensive 

comments on the June 27, 2005, 

proposed disapproval, but 

acknowledged that ‘‘U.S. EPA never 

finalized this proposed action and, 

based on a review of the record, U.S. 

EPA never responded to comments 

submitted on this proposed rule.’’ The 

commenter presented a summary of 

arguments in support of the merits of 

the opacity ‘‘exemption’’ in OAC 3745– 

17–03(B) that EPA proposed to 

disapprove in the June 27, 2005, 

proposal, and concluded that ‘‘this 

exemption is technically defensible and 

the data [compiled to formulate the 

exemption] were never rebutted by U.S. 

EPA.’’ 

Response: The commenter did not 

elaborate on its argument that EPA’s 

proposed error correction action ‘‘is not 

trivial’’ or why EPA’s proposed action is 

not consistent with EPA’s authority to 

correct errors under section 110(k)(6). 

To the extent that the commenter is 

arguing that EPA’s authority under 

section 110(k)(6) is limited to correcting 

‘‘trivial’’ errors, EPA disagrees. On its 

face, section 110(k)(6) authorizes EPA to 

correct any error in a rulemaking action 

and does not restrict that authority to 

correction of errors that other parties 

might characterize as ‘‘trivial.’’ By its 

plain terms, EPA’s authority under 

section 110(k)(6) extends broadly to 

‘‘action approving, disapproving, or 

promulgating any plan or plan revision 

(or part thereof), area designation, 

redesignation, classification, or 

reclassification.’’ Similarly, by its plain 

terms EPA’s authority is not limited 

with respect to the nature or seriousness 

of the error, i.e., it is not restricted to 

correction of ‘‘trivial’’ errors. 

EPA and the commenters appear to 

agree on the fact that the revisions to 

OAC 3745–17–03(B) that EPA proposed 

to disapprove are important substantive 

provisions. In EPA’s view, the 

importance of these provisions makes it 

necessary for EPA to clarify the fact that 

the October 26, 2010, rulemaking did 

not make any substantive revision to 

these provisions, and EPA cannot be 

considered to have lawfully acted on the 

revisions provisions without 

considering the comments for and 

against its June 27, 2005, proposal to 

disapprove them. Regardless of whether 

the error was ‘‘trivial’’ or not, EPA has 

concluded that the error warrants 

correction pursuant the authority of 

section 110(k)(6) (or under authorities 

that EPA is not using in this action). 

The commenters’ substantive 

arguments regarding the merits of OAC 

3745–17–03(B) are not germane here, 

because they are not relevant to 

determining whether the codification 

contained in EPA’s October 26, 2010, 

action was an erroneous description of 

that rulemaking action. The only issue 

in this action is EPA’s correction of the 

error. Moreover, now that the state has 

withdrawn the submission seeking 

substantive revisions to OAC 3745–17– 

03(B), these comments are moot. 

Comment: The commenter, in 

describing EPA’s actions, states that 

‘‘[i]n 2010, . . . it appeared that U.S. 

EPA approved [OAC] 3745–17–03 in its 

entirety.’’ 

Response: The commenter evidently 

agrees that EPA had only ‘‘appeared’’ to 

have approved substantive revisions to 

OAC 3745–17–03(B) in the October 26, 

2010, action, because that is how they 

themselves describe what occurred. 

Comment: The commenter made 

several assertions that it believes 

preclude EPA from finalizing this error 

correction. First, the commenter 

‘‘object[ed] to U.S. EPA’s statement that 

a comment period was not required in 

issuing [the correction EPA published 

on April 3, 2013].’’ The commenter 

stated that section 110(k)(6) dictates 

how EPA should make corrections to 

past rulemakings. The commenter also 

noted that section 110(k)(6) in particular 

requires that an error made through 

notice and comment rulemaking can 

only be corrected through notice and 

comment rulemaking. The commenter 

asserted that EPA’s April 3, 2013, action 

to effectuate the correction of the 

October 26, 2010, action was invalid 

because it failed to meet this 

requirement of section 110(k)(6). 

Response: While EPA continues to 

believe that the Administrative 

Procedures Act provides independent 

authority for agencies to issue 

corrections, that authority was not the 

basis of this rulemaking. The 

commenter submitted a petition for 

reconsideration requesting that EPA 

publish notice and solicit comment 

pursuant to its error correction authority 

under Clean Air Act section 110(k)(6). 

EPA granted that request, and this 

action is the final step of the requested 

error correction rulemaking. The 

commenter objected to the procedure 

EPA used to correct the error in the 

April 3, 2013, rulemaking, but that 

rulemaking is being replaced by this 

rulemaking under section 110(k)(6). 

Thus, comments concerning the 

procedure EPA should or should not 

have followed with respect to the April 

3, 2013, rulemaking are not relevant and 

in fact are made moot by this action. In 

short, EPA is correcting the error by the 

procedure that the commenter 

advocated. 

Comment: The commenter also 

objected that EPA did not have ‘‘good 

cause’’ (in its April 3, 2013, rulemaking) 

under the Administrative Procedures 

Act section 553(b) to make corrections 

without undergoing notice and 

comment. The commenter asserted its 

view that notice and comment (for 

EPA’s April 3, 2013, action) was ‘‘not 

impracticable, unnecessary or contrary 

to the public interest.’’ In other words, 

the commenter disagreed with EPA’s 

determination that there was a good 

cause exception to the normal 

requirements for notice and comment, 

given the nature of error at issue. 

Response: EPA disagrees with the 

commenter’s conclusion that correction 

of what was essentially a typographical 


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error requires full notice and comment 

rulemaking in all cases. Nevertheless, 

EPA notes that this comment suggests 

that the commenter acknowledged that 

Administrative Procedures Act section 

553(b) authorizes corrections, even 

without notice and opportunity for 

comment, so long as EPA adequately 

justifies the decision not to undergo 

notice and opportunity for comment. In 

any case, EPA concludes that this 

rulemaking does not invoke that 

authority to forego notice and comment 

for good cause, and this action makes 

moot the rulemaking (published April 3, 

2013) that did invoke that authority. 

Comment: The commenter also 

objected to EPA’s description of the 

error in the October 26, 2010, action as 

essentially a typographical error. The 

commenter claimed that ‘‘[t]he Utilities 

did not submit comments [at the time of 

EPA’s October 26, 2010, rulemaking] 

because U.S. EPA approved Ohio Adm. 

Code 3745–17–03 in its entirety as the 

notice indicated. Had the Utilities 

understood that these rules were 

selective to subpart (A), the Utilities 

may have submitted comments on this 

proposal.’’ 

Response: As an initial matter, EPA 

notes that the commenter’s claim 

supports the Agency’s view that the 

error in the October 26, 2010, action 

engendered confusion and 

misunderstanding among some affected 

parties. The commenter speculates that 

had EPA’s October 26, 2010, rulemaking 

used preamble language and a 

codification that more clearly identified 

that the only revision to OAC 3745–17– 

03 that EPA was approving was the 

cross reference in OAC 3745–17–03(A), 

it might have commented. Presumably 

those comments would have urged EPA 

to approve portions of OAC 3745–17–03 

that were outside the scope and purpose 

of the applicable state submission, 

which with respect to OAC 3745–17–03 

only requested the revision of the cross 

reference in OAC 3745–17–03(A). In 

such a hypothetical situation, EPA 

presumably would have responded to 

those comments by explaining that it 

was not approving any revision to OAC 

3745–17–03 beyond the cross reference 

in OAC 3745–17–03(A) and that 

comments beyond that narrow issue 

were beyond the scope of the October 

26, 2010, rulemaking. 

In any case, the commenter has now 

had the opportunity to comment on the 

very issue that it speculated it would 

have commented on under the 2010 

conditions it hypothesized. The 

proposed rulemaking for this error 

correction action proposed to find that 

rulemaking on portions of OAC 3745– 

17–03 other than OAC 3745–17–03(A) 

in the 2010 air quality standards 

rulemaking would have been outside 

the scope of that rulemaking. Thus, EPA 

solicited comment on precisely the 

issue that the commenter speculated it 

would have commented on in its 

hypothesized 2010 circumstances, i.e., 

whether or not rulemaking on OAC 

3745–17–03(B) would have been an 

appropriate part of the 2010 rulemaking 

on Ohio’s air quality standards 

submittal. Of note is that in the actual, 

present circumstances, the commenter 

had the benefit of express EPA 

statements in the February 7, 2014, 

proposal, stating that any action in 

response to Ohio’s submittal of 

September 10, 2009, on portions of OAC 

3745–17–03 other than OAC 3745–17– 

03(A) would be outside the scope of the 

rulemaking because it would not be 

pertinent to the SIP revision request that 

EPA was considering. 

Finally, EPA notes that the 

commenter did in fact comment, to urge 

approval of revisions in OAC 3745–17– 

03(B), without contesting EPA’s view 

that these provisions are outside the 

scope of the relevant state submission 

and EPA’s rulemaking thereon. As 

explained in the proposal for this 

action, those revisions were not at issue 

in its October 26, 2010, rulemaking and 

are not at issue in this error correction. 

EPA regrets the inconvenience to all 

parties that arose from the error in its 

October 26, 2010, rulemaking. However, 

the point here is that it is unnecessary 

to speculate on how the commenter 

would have commented on the October 

26, 2010, rulemaking had that 

rulemaking more clearly stated that the 

only revision to OAC 3745–17–03 under 

consideration was the revision to the 

cross reference in OAC 3745–17–03(A). 

The commenter has now had the 

opportunity to comment on the 

applicable issues, and EPA is addressing 

its comments here. 

Comment: The commenter also 

objected to EPA’s statements in the 

proposal for this action that it is 

correcting what is essentially a 

typographical error. The commenter 

asserted that this ‘‘correction is not 

trivial.’’ 

Response: The commenter did not 

explain its substantive grounds for 

objecting to EPA’s proposed error 

correction. The commenter omits any 

rationale for why the significance of the 

provisions of OAC 3745–17–03(B) 

would justify labeling the mistaken 

codification in EPA’s October 26, 2010, 

rulemaking as anything other than an 

error or why, regardless of label, the 

misleading codification does not 

warrant correction. For example, the 

commenter implies that a significance 

criterion applies in judging whether a 

statement is in error, as if an action with 

significant ramifications cannot be in 

error or that errors cannot have 

significant consequences. However, the 

commenter offered no rationale for why 

the misstatements in the October 26, 

2010, rulemaking, whatever the 

significance of those misstatements, 

should not be considered to be in error. 

EPA’s proposed rulemaking provides 

extensive discussion of why EPA 

believes that the codification in its 

October 26, 2010, action was in error, 

including multiple reasons that 

demonstrate that EPA did not intend 

and could not have intended to approve 

provisions in OAC 3745–17–03 that 

were beyond the stated purpose of 

Ohio’s submission, which with respect 

to OAC 3745–17–03 was only to revise 

the cross reference in OAC 3745–17– 

03(A). Conspicuously absent from the 

commenter’s comments is any specific 

argument contesting EPA’s rationale for 

this error correction, be it to question 

EPA’s interpretation of Ohio’s 

September 10, 2009, submission, to 

dispute that EPA did not intend and 

could not have intended to take action 

on OAC 3745–17–03(B), or to challenge 

EPA’s assertion that in any case there 

has been no legally valid action on OAC 

3745–17–03(B) because EPA has not 

addressed pertinent comments on its 

prior proposed disapproval of that 

separate revision (including comments 

that the commenter itself attests to 

making). 

Comment: The commenter states, ‘‘the 

Utilities disagree with U.S. EPA’s 

assertion that its ‘correction’ does not 

allow substantive comments on Ohio 

Adm. Code 3745–17–03.’’ The 

commenter further asserted that ‘‘U.S. 

EPA’s action is essentially making 

Ohio’s SIP more stringent than it was 

when it approved Ohio Adm. Code 

3745–17–03 in 2010. . . . [Therefore,] 

the Utilities believe that substantive 

comments on Ohio Adm. Code 3745– 

17–03 are proper and should be 

considered by U.S. EPA.’’ 

Response: These comments 

misrepresent EPA’s assertion, 

mischaracterize EPA’s action, and 

provide no rationale for EPA to change 

its views on relevant matters. EPA’s 

proposed rulemaking states: ‘‘any 

substantive revisions to OAC 3745–17– 

03, including any revisions to OAC 

3745–17–03(B)(1), are not at issue in 

this rulemaking. Only comments 

regarding EPA’s correction of the error 

in the October 26, 2010, action are 

germane to this rulemaking under 

section 110(k)(6).’’ The commenter may 

elect to make comments that are not 

germane, and the commenter has 


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exercised its right to do so, though the 

commenter has not challenged EPA’s 

proposed rationale as to the scope of 

comments that should be considered 

germane. For example, even if EPA’s 

action could be misconstrued as a 

substantive revision to the approved SIP 

(which it is not), and whether the newer 

version of OAC 3745–17–03(B) is less 

stringent than the older version (as the 

commenter contended in these 

comments) or not (as the commenter 

contended in its attached comments 

from 2005), the commenter does not 

explain why this asserted change in 

stringency justifies predicating EPA’s 

action to correct an error on the 

substantive merits of erroneously 

codified provisions. Therefore, EPA 

concludes that comments as to the 

substantive merits of OAC 3745–17– 

03(B) are not germane to this action, 

which only addresses the error that 

occurred in the October 26, 2010, action 

pertaining to Ohio EPA’s submission 

regarding its air quality standards rules. 

Similarly, the commenter 

mischaracterized EPA’s proposed error 

action, asserting that EPA is hereby 

removing an approval of portions of 

OAC 3745–17–03 that, it asserted, EPA 

approved in the October 26, 2010, 

action. The proposed rulemaking 

explained at length that EPA cannot 

have approved any portion of 3745–17– 

03 in 2010 other than the cross reference 

in OAC 3745–17–03(A), and so the 

action EPA proposed clarifies the 

approved SIP without changing the 

substance of what has actually been 

approved. Again, the commenter 

provided no rationale for adopting its 

views as to the nature of EPA’s 

proposed action rather than the views 

EPA proposed. 

Chamber et al. 

Comment: The commenter provided 

an extensive description of provisions 

in OAC 3745–17–03(B). The commenter 

also provided a history of this provision, 

including Ohio’s submission of the 

provision to EPA in June 2003, EPA’s 

proposal to disapprove the provision in 

June 2005, the (erroneous) appearance 

of EPA approving the provision on 

October 26, 2010, the EPA correction of 

this appearance on April 3, 2013, 

without reference to correction 

authority in Clean Air Act section 

110(k)(6), a petition for EPA to 

reconsider this correction, and EPA’s 

proposal published on February 7, 2014, 

to make this correction under the 

authority of Clean Air Act section 

110(k)(6). 

Response: EPA generally agrees with 

the commenters recitation of the facts, 

but does not agree with the implication 

that ‘‘appearing’’ to approve the revision 

means that it was in fact approved. 

Moreover, this portion of these 

comments provides background 

information and does not urge any 

changes to EPA’s views underlying the 

relevant proposed action, and so no 

detailed review of this portion of these 

comments is warranted. Any history of 

the provisions of OAC 3745–17–03(B) 

should also note that Ohio (subsequent 

to these comments) has withdrawn its 

submission that sought approval of the 

provision. 

Comment: The commenter stated that 

it ‘‘submit[ted] these comments for two 

reasons. First, we would like to briefly 

address EPA’s comment that the COMS 

provision is ‘significant and substantive’ 

and ‘would allow significantly more 

opacity during certain periods.’ This 

appears to be a reference to [text in 

EPA’s June 2005 proposed rulemaking 

(at 70 FR 36903), quoted in the 

comment].’’ 

The commenter raised several 

objections to these EPA statements. The 

commenter asserted that the scenario 

EPA discussed in the June 2005 

proposed disapproval, intended as an 

example case in which the revised 

version of OAC 3745–17–03(B) 

‘‘allow[s] excess opacity on occasions 

that excess opacity is currently 

prohibited,’’ to reflect an unlikely 

pattern of operation that would not be 

expected to be identified as a violation 

using the reference method (Method 9) 

of the unrevised rule. ‘‘In summary, the 

alternative of continuous instrumental 

monitoring of in-stack opacity in lieu of 

periodic Method 9 visible emission 

observations may be ‘significant and 

substantive’ in terms of imposing more 

stringent performance obligations, but it 

certainly [is] not a ‘significant and 

substantive’ relaxation of the 

performance obligation where Method 9 

is the SIP reference test for opacity.’’ 

Response: The commenter is correct 

that the pertinent statement in the 

February 7, 2014, proposed rulemaking 

reflects the views expressed in the cited 

statement in EPA’s June 27, 2005, 

proposed rulemaking. The commenter 

also observed that EPA has not 

completed rulemaking pursuant to this 

June 2005 proposed disapproval. EPA’s 

purpose for making these statements in 

the proposal for this error correction 

was to provide context and to explain 

the significance of the error, not to take 

a substantive position. To be clear, in 

the June 2005 proposal, EPA proposed 

to find that the revised version of OAC 

3745–17–03(B) would have allowed 

significantly more opacity during 

certain periods and that the state had 

failed to provide a section 110(l) or 

section 193 analysis to justify the 

resulting relaxation; subsequently, EPA 

received comments disputing that 

finding, and EPA has not yet taken final 

action on that proposal. 

Because Ohio has withdrawn its June 

2003 submission, however, EPA will be 

conducting no further rulemaking on 

that submission. Therefore, it is no 

longer germane to any ongoing 

rulemaking whether Ohio’s June 2003 

submission would have tightened or 

relaxed the stringency of Ohio’s existing 

SIP. In any case, the desirability of 

clarifying the status of OAC 3745–17– 

03(B) is not contingent on any final 

judgment regarding the effect of 

previously submitted revisions to OAC 

3745–17–03(B) on allowable opacity. In 

its February 7, 2014, proposal, EPA 

sought merely to explain why the error 

in its October 26, 2010, final rule 

warranted correction. Comments from 

the Ohio Utilities Group discussed 

above suggest that the provisions of 

OAC 3745–17–03(B), and the associated 

relaxation of requirements, are too 

important to be the subject of an error 

correction. These comments from the 

Chamber et al. argue that the provisions 

of OAC 3745–17–03(B) are not a 

‘‘significant and substantive’’ relaxation 

of the opacity-related requirements and 

in fact may be a ‘‘significant and 

substantive’’ tightening of performance 

obligations. Regardless of these 

conflicting comments, three parties have 

concluded that the status of OAC 3745– 

17–03(B) is sufficiently important to 

comment on rulemaking proposing to 

clarify the status of this rule. Even aside 

from questions regarding the substantive 

consequences of revisions to OAC 3745– 

17–03(B), EPA seeks clarity regarding 

which rules have been approved into 

the SIP, especially for rules that prompt 

significant substantive interest. 

Consequently, EPA has concluded that 

it is important to clarify the scope of 

EPA’s rulemaking on Ohio’s submittal 

addressing air quality standards and to 

correct the errors in the October 26, 

2010, action that created a 

misimpression that EPA had approved 

OAC 3745–17–03(B)as a part of the SIP. 

Comment: The commenter also asked 

that EPA complete its rulemaking action 

on the June 2003 SIP revision that EPA 

addressed in the June 2005 proposed 

disapproval. 

Response: Ohio has withdrawn the 

pertinent elements of its June 2003 SIP 

revision submission. Thus, no portion of 

this submission remains pending. 

III. What action is EPA taking? 

Pursuant to section 110(k)(6), EPA is 

determining that its October 26, 2010, 

rulemaking was in error to the extent 


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that it appeared to approve revisions to 

OAC 3745–17–03 beyond the revision to 

the cross reference in OAC 3745–17– 

03(A). Through this action, EPA is 

clarifying that in the October 26, 2010, 

action, the Agency did not approve any 

revisions to OAC 3745–17–03 except for 

the specific revision to the cross 

reference in OAC 3745–17–03(A) 

requested by the state. But for that 

change, the currently applicable version 

of OAC 3745–17–03 in the Ohio SIP is 

the version effective in the state on 

January 31, 1998, approved by EPA on 

October 16, 2007. The currently 

applicable version of OAC 3745–17–03 

in the Ohio SIP does not contain any 

revisions addressed in EPA’s proposed 

approval and disapproval on June 27, 

2005. This action establishes that the 

codification of EPA’s October 26, 2010, 

action, in relevant part at 40 CFR 

52.1870(c)(151)(i)(A), is clarified 

pursuant to the authority of Clean Air 

Act section 110(k)(6) to codify the 

approval of only the revised cross 

reference in OAC 3745–17–03(A) and 

not of any other portions of OAC 3745– 

17–03. In particular, EPA in that action 

did not approve any revisions related to 

OAC 3745–17–03(B). 

On April 3, 2013, EPA used its 

authority under section 553 of the 

Administrative Procedures Act to 

amend the erroneous codification in its 

October 26, 2010, rulemaking without 

notice and comment rulemaking. In that 

rulemaking, EPA corrected the 

erroneous statements and the 

misleading codification to reflect more 

clearly that EPA had only approved the 

one narrow revision requested by the 

state in OAC 3745–17–03, i.e., the 

revision of the cross reference in OAC 

3745–17–03(A). Thus, effective April 3, 

2013, the Code of Federal Regulations 

has properly reflected the corrected 

codification. In response to a petition 

for reconsideration, EPA today is 

replacing that prior correction with an 

error correction pursuant to section 

110(k)(6). Nevertheless, during the 

pendency of the current rulemaking 

pursuant to section 110(k)(6), EPA opted 

not to stay or revoke the correction 

action of April 3, 2013, to avoid 

exacerbating the misimpressions caused 

by the October 26, 2010, error. 

Therefore, the status quo is that the 

Code of Federal Regulations already 

reflects the corrected codification. 

Ordinarily, a rulemaking establishing 

a corrected codification would include 

not just a preamble but would also 

include a codification section, in which 

the Office of the Federal Register is 

instructed to amend the applicable 

sections of the Code of Federal 

Regulations. However, this action 

involves circumstances in which the 

pertinent section of the Code of Federal 

Regulations already correctly reflects 

the EPA approved version of OAC 

3745–17–03, as a result of action taken 

April 3, 2013. Conceptually, this action 

replaces the pertinent revisions to the 

Code of Federal Regulations 

promulgated on April 3, 2013, with 

identical revisions pursuant to this 

action. In practical terms, the net effect 

of this action is no change in the Code 

of Federal Regulations. It is 

inappropriate to provide a null set of 

instructions, to instruct the Office of the 

Federal Register to make no changes to 

the Code of Federal Regulations. 

Therefore, this action includes no 

instructions to the Office of the Federal 

Register, no requested revisions to the 

Code of Federal Regulations, and indeed 

no codification section. As a result, the 

Office of the Federal Register’s records 

will show the pertinent revisions as 

being made April 3, 2013. Nevertheless, 

this action should be viewed as 

replacing those corrections, 

promulgated under the authority of 

Administrative Procedures Act section 

553, with identical corrections, 

promulgated under the authority of 

Clean Air Action section 110(k)(6). 

IV. Statutory and Executive Order 

Reviews 

Under the Clean Air Act, the 

Administrator is required to approve a 

SIP submission that complies with the 

provisions of the Clean Air Act and 

applicable Federal regulations. 42 

U.S.C. 7410(k); 40 CFR 52.02(a). Thus, 

in reviewing SIP submissions, EPA’s 

role is to approve state choices, 

provided that they meet the criteria of 

the Clean Air Act. This action merely 

corrects an error in EPA’s prior action 

and does not impose additional 

requirements beyond those imposed by 

state law. For that reason, this action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Public Law 104–4); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the CAA; and 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this rule does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the state, and EPA notes that 

it will not impose substantial direct 

costs on tribal governments or preempt 

tribal law. 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. EPA will submit a 

report containing this action and other 

required information to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication of the rule in 

the Federal Register. A major rule 

cannot take effect until 60 days after it 

is published in the Federal Register. 

This action is not a ‘‘major rule’’ as 

defined by 5 U.S.C. 804(2). 

Under section 307(b)(1) of the Clean 

Air Act, petitions for judicial review of 

this action must be filed in the United 

States Court of Appeals for the 

appropriate circuit by January 4, 2016. 

Filing a petition for reconsideration by 

the Administrator of this final rule does 

not affect the finality of this action for 

the purposes of judicial review nor does 

it extend the time within which a 

petition for judicial review may be filed, 

and shall not postpone the effectiveness 

of such rule or action. This action may 

not be challenged later in proceedings to 

enforce its requirements. (See section 

307(b)(2)). 


jstallworth on DSK7TPTVN1PROD with RULES
Federal Register / Vol. 80, No. 214 / Thursday, November 5, 2015 / Rules and Regulations 68465 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Incorporation by 

reference, Intergovernmental relations, 

Particulate matter, Reporting and 

recordkeeping requirements. 

Dated: October 22, 2015. 

Susan Hedman, 

Regional Administrator, Region 5. 

[FR Doc. 2015–28095 Filed 11–4–15; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF THE INTERIOR 

Office of the Secretary of the Interior 

43 CFR Part 10 

[NPS–WASO–NAGPRA–19087; 

PPWOCRADN0–PCU00RP14.R50000] 

RIN 1024–AE00 

Disposition of Unclaimed Human 

Remains, Funerary Objects, Sacred 

Objects, or Objects of Cultural 

Patrimony 

AGENCY: Office of the Secretary, Interior. 

ACTION: Final rule. 

SUMMARY: This final rule provides 

procedures for the disposition of 

unclaimed human remains, funerary 

objects, sacred objects, or objects of 

cultural patrimony excavated or 

discovered on, and removed from, 

Federal lands after November 16, 1990. 

It implements section 3(b) of the Native 

American Graves Protection and 

Repatriation Act. 

DATES: The rule is effective December 7, 

2015. 

FOR FURTHER INFORMATION CONTACT: 

Melanie O’Brien, Manager, National 

NAGPRA Program, National Park 

Service, 1849 C Street NW., 

Washington, DC 20240, telephone (202) 

354–2204, email melanie_o’brien@

nps.gov. 

SUPPLEMENTARY INFORMATION: 

Background 

The Secretary of the Interior 

(Secretary) is responsible for 

implementation of the Native American 

Graves Protection and Repatriation Act 

(NAGPRA or Act) (25 U.S.C. 3001 et 

seq.), including the issuance of 

appropriate regulations implementing 

and interpreting its provisions. 

NAGPRA addresses the rights of lineal 

descendants, Indian tribes, and Native 

Hawaiian organizations in certain 

human remains, funerary objects, sacred 

objects, and objects of cultural 

patrimony, for which the Act uses the 

broader term ‘‘cultural items’’ (25 U.S.C. 

3001(3)). Pursuant to Section 13 of 

NAGPRA (25 U.S.C. 3011), the 

Department of the Interior (Department) 

published the initial rules to implement 

NAGPRA in 1995 (60 FR 62158, 

December 4, 1995); those rules are now 

codified at 43 CFR part 10. 

Subsequently, the Department 

published additional rules concerning: 

• Civil penalties (68 FR 16354, April 

3, 2003); 

• Future applicability (72 FR 13189, 

March 21, 2007); and 

• Disposition of culturally 

unidentifiable human remains (75 FR 

12378, March 15, 2010). 

Section 3(b) of the Act (25 U.S.C. 3002 

(b)) explicitly directs the Secretary to 

publish regulations for the disposition 

of unclaimed cultural items excavated 

or discovered on, and removed from, 

Federal lands after November 16, 1990. 

When we published the NAGPRA 

regulations on December 4, 1995, we 

reserved 43 CFR 10.7 for this purpose. 

This rule is limited to Federal lands, 

as NAGPRA provides that ownership or 

control of any cultural item excavated or 

discovered on, and removed from, tribal 

land after November 16, 1990, is in 

either a known lineal descendant (for 

human remains and associated funerary 

objects) or in the Indian tribe from 

whose tribal land the cultural items 

were removed, and does not require the 

lineal descendant or the Indian tribe to 

make a claim for the cultural items. 

Consultation regarding a proposed 

rule for § 10.7 began in 2005. On three 

separate occasions, we consulted with 

representatives of Indian tribes, Native 

Hawaiian organizations, museums, and 

scientific organizations. We also 

consulted with the Native American 

Graves Protection and Repatriation 

Review Committee (Review Committee) 

during its scheduled meetings in 

Albuquerque, NM (November 2005); 

Washington, DC (April 2007); Phoenix, 

AZ (October 2007); and Washington, DC 

(November 2010). 

We published a proposed rule on 

October 29, 2013 (78 FR 64436). Public 

comment was invited for a 60-day 

period, ending December 30, 2013. The 

proposed rule also was posted on the 

National Park Service’s National 

NAGPRA Program Web site. The Review 

Committee commented on the record on 

the proposed rule at a public meeting on 

November 6, 2013. 

Summary of and Responses to 

Comments on the Proposed Rule 

During the comment period, we 

received 27 written comments on the 

proposed rule, contained in 20 separate 

submissions from 5 Indian tribes, 1 

Indian organization, 1 non-federally 

recognized Indian group, 1 Native 

Hawaiian organization, 1 museum, 1 

scientific organization, 3 Federal 

entities, 6 individual members of the 

public, and 1 anonymous commenter. 

All relevant comments on the proposed 

rule were considered during the final 

rulemaking. 

Final Rule 43 CFR 10.2 Definition of 

‘‘Unclaimed Cultural Items’’ 

Comment 1: Four commenters stated 

that the definition of unclaimed cultural 

items should include the phrase ‘‘as 

used in § 10.7 of this part.’’ 

Our Response: The term ‘‘unclaimed 

cultural items’’ is used only in § 10.7 

and therefore the specific reference is 

not needed. 

Comment 2: Three commenters stated 

that the definition of unclaimed cultural 

items should be expanded and the 

difference between the categories of 

unclaimed cultural items be clarified. 

One of these commenters added that the 

definition should provide a timeframe 

that structures how long cultural items 

must be held by the Federal agency 

prior to being classified as unclaimed. 

Our Response: We agree. In the final 

rule, we have revised the definition of 

unclaimed cultural items and clarified 

the difference between the categories. 

We have included a timeframe. 

Comment 3: Four commenters stated 

that the definition of unclaimed cultural 

items imposes an inappropriate time 

limit on Indian tribes and Native 

Hawaiian organizations to make claims 

for cultural items. One of these 

commenters added that the definition 

assumes Federal agencies have been 

proactive and have provided notice to 

all potential claimants. 

Our Response: A potential claimant 

may make a claim for unclaimed 

cultural items at any time prior to 

transfer or reinterment under this rule. 

While the rule establishes a timeframe 

for cultural items to become unclaimed, 

there is no timeline imposed for Federal 

agencies to transfer or to reinter cultural 

items. We feel the timeframes 

established by the definitions in this 

final rule strike an appropriate balance 

between assuring Federal agencies that 

the NAGPRA process will end at a 

certain time and granting non-claimant 

Indian tribes and Native Hawaiian 

organizations an opportunity to request 

the transfer of these cultural items. 

Comment 4: One commenter stated 

that the definition of ‘‘disposition’’ in 

§ 10.2(g)(5) should be changed to 

include disposition of unclaimed 

cultural items. 


jstallworth on DSK7TPTVN1PROD with RULES