
[Federal Register Volume 77, Number 76 (Thursday, April 19, 2012)]
[Rules and Regulations]
[Pages 23409-23419]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-9442]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 372

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


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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

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

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

SUPPLEMENTARY INFORMATION:

I. General Information

Does this action apply to me?

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

[[Page 23410]]



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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

[[Page 23411]]

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

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

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

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

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

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

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

E. How will Tribes receive reports from facilities?

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

[[Page 23412]]

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

[[Page 23413]]

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

[[Page 23414]]

Notification regulations at 40 CFR part 355.

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

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

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

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

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

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

[[Page 23415]]

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

[[Page 23416]]

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

[[Page 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

[[Page 23418]]

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

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A Major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2). This final rule is effective April 19, 2012. The requirement of 
facilities located in Indian country to report to tribal governments is 
effective beginning with reporting year 2012 (reports due by July 1, 
2013).

List of Subjects in 40 CFR Part 372

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

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

    Therefore, 40 CFR part 372 is amended as follows:

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

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

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


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


Sec.  372.3  Definitions.

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

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


Sec.  372.20  Process for modifying covered chemicals and facilities.

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

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


Sec.  372.27  Alternate threshold and certification.

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

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


Sec.  372.30  Reporting requirements and schedule for reporting.

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

[[Page 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


