5350 Federal Register / Vol. 78, No. 17 / Friday, January 25, 2013 / Proposed Rules 

requirement imposed by section 

307(d)(7)(B). Rather, both cases dealt 

with a failure of the government agency 

to follow the notice and comment 

procedures required for rulemaking 

under the Administrative Procedure Act 

(APA). The views of the court on the 

lack of harmless error under those 

specific circumstances addressed that 

violation of the APA, and did not 

provide a more general rule applicable 

to any and all other procedural 

violations or other statutes. Here, EPA 

fully complied with the rulemaking 

procedures required under CAA section 

307(d). There was no ‘‘utter failure’’ to 

conduct notice and comment 

rulemaking procedures. 

As discussed above, EPA was not 

required to but did make the proposed 

rule available to the SAB pursuant to 42 

U.S.C. section 4365(c)(1). Under that 

statute there is no requirement or 

expectation that the SAB will in fact 

voluntarily provide advice and 

comments to EPA and in this case, as 

discussed above, subsequent SAB action 

concerning the MY2017–2025 

rulemaking proposal to control 

greenhouse gases indicates just the 

opposite. The New Jersey and Sugar 

Cane cases thus addressed wholly 

different circumstances, and provide no 

basis to find that the requirement of 

CAA section 307(d)(7)(B) does not apply 

to this rulemaking according to its terms 

or that the test it sets for reconsideration 

has been met. 

Moreover, the D.C. Circuit recently 

held with respect to 42 USC section 

4365(c)(1) itself that a petitioner ‘‘must 

sho[w] that this error was ‘of such 

central relevance to the rule that there 

is a substantial likelihood that the rule 

would have been significantly changed 

if such errors had not been made.’ ’’ This 

was not satisfied when petitioners 

provided no more of a showing than 

alleging that EPA had failed to comply 

with this provision. Coalition for 

Responsible Regulation v. EPA, 684 

F.3d at 124. The Court applied the test 

in section 307(d)(8) without drawing 

any distinction based on the statute that 

was the source of the procedural 

requirement. The same applies under 

section 307(d)(7)(B), and as with section 

307(d)(8), more must be shown than 

simply alleging that EPA failed to 

comply. 

The petitioner’s citation of Small 

Refiners Lead Phase-Down Task Force v. 

EPA, 705 F.2d 506, 522–23 (D.C. Cir. 

1983) also does not support its 

argument. The petition argues that the 

1977 amendments to the Clean Air Act 

were intended to supplement the 

procedural requirements of the 

Administrative Procedure Act, not 

replace them. Petition p. 9. Construing 

section 307(d)(8)’s requirement that a 

procedural error creates a ‘‘substantial 

likelihood that the rule would have 

been significantly changed’’, the court 

stated that ‘‘[a]t a minimum, failure to 

observe the basic APA procedures, if 

reversible error under the APA, is 

reversible error under the Clean Air Act 

as well.’’ The court immediately 

cautioned, however, ‘‘[o]n the other 

hand, section 307(d)(8) sets a restrictive 

tone for our review of procedural errors 

that would not violate the APA’’, citing 

Sierra Club v. Costle (657 F.2d at 391) 

for the proposition that ‘‘the essential 

message of so rigorous a standard for 

procedural reversal is that Congress was 

concerned that EPA’s rulemaking not be 

casually overturned for procedural 

reasons.’’ 705 F.2d at 523. Since the 

APA itself contains a harmless error 

provision (5 USC section 706), requiring 

petitioners to show a likelihood that the 

rule would have changed is not a 

diminution of the APA but a gloss on it. 

Thus, the holding in Small Refiners was 

limited to violations of the notice and 

comment requirements of the APA, and, 

contrary to PLF’s claim, the court did 

not pronounce a general rule 

establishing a different test for any and 

all procedural requirements imposed by 

other statutes. Rather, in discussing 

procedural requirements other than the 

APA, the court indicated that section 

307(d)(8) applied and set a restrictive 

tone for judicial review of such errors. 

More basically, the D.C. Circuit has 

twice held that failure to comply with 

the requirements of section 4365(c)(1) is 

not reversible error where petitioners 

fail to show that the error is of such 

central relevance to the proceeding that 

there is a substantial likelihood that the 

rule would have significantly changed 

but for the (claimed) procedural 

violation. Coalition for Responsible 

Regulation v. EPA, 684 F.3d at 124; API 

v. EPA, 665 F.2d at 1188–89. The fact 

that the procedural requirement at issue 

in those cases stems from a statute other 

than the CAA made no difference and 

did not change the burden on the 

petitioner to prevail on their objection. 

The same applies under section 

307(d)(7)(B). 

Finally, PLF points to Kennecott Corp. 

v. EPA, 684 F.2d 1007 (D.C. Cir. 1982) 

as support for its claim that EPA’s 

alleged failure to comply with this 

statutory provision satisfies the 

requirements of section 307(d)(8). As 

noted above, this same claim was 

recently rejected in Coalition for 

Responsible Regulation v. EPA, 684 F.3d 

at 124. Here, PLF does no more than 

describe the purpose of this provision, 

with no showing of any likelihood of an 

impact or change on the rulemaking. As 

discussed above, all of the indications 

point the other way and indicate no 

such likelihood, even if one assumes a 

procedural error was committed. 

V. Conclusion 

The objections or claims raised in 

PLF’s petition could have been 

presented to EPA during the comment 

period for the rulemaking, and the 

grounds for the objections did not arise 

after the period for public comment but 

within the time specified for judicial 

review. In addition, PLF has failed to 

demonstrate that its objection provides 

substantial support for the argument 

that the promulgated regulation should 

be revised and therefore has failed to 

demonstrate that its objection is of 

central relevance to the outcome of the 

rulemaking. Based on this, EPA is 

denying the request for reconsideration. 

Dated: January 14, 2013. 

Lisa P. Jackson, 

Administrator. 

[FR Doc. 2013–01415 Filed 1–24–13; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 239 and 258 

[EPA–R01–RCRA–2012–0944; FRL–9771–6] 

Adequacy of Massachusetts Municipal 

Solid Waste Landfill Permit Program 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA Region 1 proposes to 

approve Massachusetts’s modification of 

its approved Municipal Solid Waste 

Landfill Program. On March 22, 2004, 

EPA issued final regulations allowing 

research, development, and 

demonstration (RD&D) permits to be 

issued to certain municipal solid waste 

landfills by approved states. On 

December 7, 2012 Massachusetts 

submitted an application to EPA Region 

1 seeking Federal approval of its RD&D 

requirements. 

DATES: Comments on this proposed 

action must be received in writing on or 

before March 26, 2013. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R01– 

RCRA–2012–0944, by one of the 

following methods: 

• www.regulations.gov: Follow the 

on-line instructions for submitting 

comments. 

• Email: Hsieh.juiyu@epa.gov. 

• Fax: (617) 918–0646, to the 

attention of Juiyu Hsieh. 


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Federal Register / Vol. 78, No. 17 / Friday, January 25, 2013 / Proposed Rules 5351 

• Mail: Send written comments to 

Juiyu Hsieh, RCRA Waste Management 

and UST Section, Office of Site 

Remediation and Restoration (OSRR07– 

1), EPA New England—Region 1, 5 Post 

Office Square, Suite 100, Boston, MA 

02109–3912 

• Hand Delivery or Courier: Deliver 

your comments to: Juiyu Hsieh, RCRA 

Waste Management and UST Section, 

Office of Site Restoration and 

Remediation (OSRR07–1), EPA New 

England—Region 1, 5 Post Office 

Square, Suite 100, Boston, MA 02109– 

3912. Such deliveries are only accepted 

during the Office’s normal hours of 

operation. 

For detailed instructions on how to 

submit comments, please see the direct 

final rule which is located in the Rules 

section of this Federal Register. 

FOR FURTHER INFORMATION CONTACT: 

Juiyu Hsieh at (617) 918–1646 or by 

email at hsieh.juiyu@epa.gov. 

SUPPLEMENTARY INFORMATION: In the 

Rules section of this Federal Register, 

EPA is approving Massachusetts’s 

Research Development and 

Demonstration (RD&D) permit program 

through a direct final rule without prior 

proposal because the Agency views this 

as a noncontroversial action and 

anticipates no adverse comments to this 

action. Unless we get written adverse 

comments which oppose this approval 

during the comment period, the direct 

final rule will become effective on the 

date it establishes, and we will not take 

further action on this proposal. If EPA 

receives adverse comments, the direct 

final rule will be withdrawn and all 

public comments received will be 

addressed in a subsequent final rule. 

EPA will not institute a second 

comment period on this action. Any 

parties interested in commenting on this 

action should do so at this time. For 

additional information, see the direct 

rule which is located in the Rules 

section of this Federal Register. 

Dated: January 4, 2013. 

Ira W. Leighton, 

Acting Regional Administrator, EPA New 

England, Region 1. 

[FR Doc. 2013–01440 Filed 1–24–13; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS–R2–ES–2013–0002; 

4500030114] 

RIN 1018–AZ23 

Endangered and Threatened Wildlife 

and Plants; Proposed Designation of 

Critical Habitat for the Zuni Bluehead 

Sucker 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Proposed rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service, propose to designate 

critical habitat for the Zuni bluehead 

sucker. If we finalize this rule as 

proposed, it would extend the Act’s 

protections to this subspecies’ critical 

habitat. The effect of these regulations 

will be to protect the Zuni bluehead 

sucker’s habitat under the Act. 

DATES: We will accept comments 

received or postmarked on or before 

March 26, 2013. Comments submitted 

electronically using the Federal 

eRulemaking Portal (see ADDRESSES

section, below) must be received by 

11:59 p.m. Eastern Time on the closing 

date. We must receive requests for 

public hearings, in writing, at the 

address shown in FOR FURTHER

INFORMATION CONTACT by March 11, 

2013. 

ADDRESSES: You may submit comments 

by one of the following methods: 

(1) Electronically: Go to the Federal 

eRulemaking Portal: http:// 

www.regulations.gov. In the Search box, 

enter FWS–R2–ES–2013–0002, which is 

the docket number for this rulemaking. 

Then, in the Search panel on the left 

side of the screen, under the Document 

Type heading, click on the Proposed 

Rules link to locate this document. You 

may submit a comment by clicking on 

‘‘Comment Now!’’ 

(2) By hard copy: Submit by U.S. mail 

or hand-delivery to: Public Comments 

Processing, Attn: FWS–R2–ES–2013– 

0002; Division of Policy and Directives 

Management; U.S. Fish and Wildlife 

Service; 4401 N. Fairfax Drive, MS 

2042–PDM; Arlington, VA 22203. 

We request that you send comments 

only by the methods described above. 

We will post all comments on http:// 

www.regulations.gov. This generally 

means that we will post any personal 

information you provide us (see the 

Public Comments section below for 

more information). 

The coordinates or plot points or both 

from which the critical habitat maps are 

generated are included in the 

administrative record for this 

rulemaking and are available at http:// 

www.fws.gov/southwest/es/NewMexico/, 

http://www.regulations.gov at Docket 

No. FWS–R2–ES–2013–0002, and at the 

New Mexico Ecological Services Field 

Office (see FOR FURTHER INFORMATION

CONTACT). Any additional tools or 

supporting information that we may 

develop for this rulemaking will also be 

available at the Fish and Wildlife 

Service Web site and Field Office set out 

above, and may also be included in the 

preamble and/or at 

www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: 

Wally ‘‘J’’ Murphy, Field Supervisor, 

U.S. Fish and Wildlife Service, New 

Mexico Ecological Services Field Office, 

2105 Osuna NE., Albuquerque, NM 

87113, by telephone 505–346–2525 or 

by facsimile 505–346–2542. Persons 

who use a telecommunications device 

for the deaf (TDD) may call the Federal 

Information Relay Service (FIRS) at 

800–877–8339. 

SUPPLEMENTARY INFORMATION: 

Executive Summary 

Why we need to publish a rule. Under 

the Act, once a species is determined to 

be an endangered or threatened species 

throughout all or a significant portion of 

its range, we are required to promptly 

publish a proposal in the Federal 

Register and make a determination on 

our proposal within 1 year. 

Additionally, critical habitat shall be 

designated, to the maximum extent 

prudent and determinable, for any 

species determined to be an endangered 

or threatened species under the Act. 

Designations and revisions of critical 

habitat can only be completed by 

issuing a rule. Elsewhere in today’s 

Federal Register, we propose to list the 

Zuni bluehead sucker as an endangered 

species under the Act. 

This rule consists of: A proposed rule 

for designation of critical habitat for the 

Zuni bluehead sucker. The Zuni 

bluehead sucker has been proposed for 

listing under the Act. This rule proposes 

designation of critical habitat necessary 

for the conservation of the species. 

The basis for our action. Under the 

Act, when a species is proposed for 

listing, to the maximum extent prudent 

and determinable, we must designate 

critical habitat for the species. The 

species has been proposed for listing as 

endangered, and therefore, we also 

propose to designate approximately 472 

km (293 mi) of stream habitat as critical 

habitat in Apache County, Arizona, and 


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