I. Background

The OPEN Government Act: Revised definitions contained in the FOIA; changed standards for recovering attorneys fees in FOIA litigation; revised time limits for agencies to act on FOIA requests; provided that search fees would not be charged if an agency fails to comply with time limits if no unusual or exceptional circumstances apply to the processing of the request; required agencies to establish a tracking system enabling requesters to check the status of their requests; added new reporting requirements to agencies' annual FOIA reports; and required agencies to describe the FOIA exemptions relied upon in redacting records that they release to requesters. Many provisions of the OPEN Government Act took effect upon enactment; others (including some related to the amendments to Part 4 in this final rule) were effective as of December 31, 2008.

Twelve CFR part 4, subpart B, sets forth OCC policies regarding the availability of information under the FOIA and procedures for requesters to follow when seeking such information. On April 24, 2009, the OCC published a notice of proposed rulemaking (NPRM)2 to amend part 4 to comport with changes to the FOIA made by the OPEN Government Act, enacted on December 31, 2007. The comment period closed on June 23, 2009. The OCC received no comments on the NPRM and, accordingly, we are adopting the regulatory changes as proposed.

The final rule is substantively identical to the proposal, with minor wording changes to improve technical descriptions.

The OPEN Government Act amended the FOIA by requiring that an agency detail the specific FOIA exemption under which material is deleted from information sought by a FOIA requester. If technically feasible, the agency should indicate the exemption under which the deletion was made at the place in the record where the agency deleted the material, and should indicate the amount of material that has been deleted.3

The OCC is adopting its proposed amendment to 12 CFR 4.12(d) to provide that the OCC will indicate the amount of information deleted, and the exemption pursuant to which the deletion was made, on the released portion of the material, unless doing so would harm an interest protected by an exemption under § 4.12(b). Where technically feasible, the OCC will indicate the amount of information deleted and the exemption relied upon for the deletion at the place where such deletion was made.

The OCC is adopting its proposed revision of 12 CFR 4.15 to provide for the 20-day response period to a FOIA request permitted by the statute and to specify that the 20-day period does not include Saturdays, Sundays, and holidays. The OCC is also amending 12 CFR 4.15 to provide that the 20-day time period may be tolled when the OCC: (1) makes a one-time request for additional information from the requester; or (2) needs to clarify a fee-related issue with the requester. The tolling period would end upon receipt of the requested information or resolution of the fee issue, as the case may be.4

Finally, the OCC is adopting as proposed its amendment to 12 CFR 4.17 to clarify that a requester will not be required to pay any otherwise applicable search or duplication fees, as relevant, if the OCC fails to comply with applicable time limits, if no “unusual” or “exceptional” circumstances, as described in the FOIA and set forth in OCC regulations, apply to the processing of the FOIA request.5

The OCC is adopting as proposed its amendment to the definition of “representative of the news media” in 12 CFR 4.17(a)(8) to comport with the new definition in FOIA, as amended by the OPEN Government Act. The final rule clarifies the circumstances in which a freelance writer will be deemed to be working as a representative of the news media. Consistent with the OPEN Government Act, freelance writers will be regarded as representatives of the news media if they can demonstrate a“solid basis” for expecting publication. The definition further permits the OCC to consider a requester's publication history in assessing whether the requester should be deemed a representative of the news media.

To comply with the OPEN Government Act's requirements, the OCC launched an Internet Web site athttps://appsec.occ.gov/publicaccesslink/in December, 2008, to provide the public the ability to check the status of a FOIA request online using an assigned tracking number. The final rule includes a new § 4.18, which provides the Internet address and explains that a tracking number will be assigned to every FOIA request. The new § 4.18 also addresses how individuals without Internet access can continue to receive status updates about their FOIA requests. To facilitate the operation of the new tracking service, the OCC is also amending 12 CFR 4.15(c) to include a request for an electronic mail address in the requester's contact information, where such information is available and the requester chooses to provide it.

Pursuant to Section 605(b) of the Regulatory Flexibility Act, 5 U.S.C. 605(b) (RFA), the regulatory flexibility analysis otherwise required under Section 604 of the RFA is not required if the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities and publishes its certification and a short, explanatory statement in theFederal Registeralong with its rule. The final rule will not have such an impact on small entities because the changes being proposed affect mainly the OCC and its processing of FOIA requests, and impose no costs on filers of these requests. Pursuant to Section 605(b) of the RFA, the OCC hereby certifies that this proposal will not have a significant economic impact on a substantial number of small entities. Accordingly, a regulatory flexibility analysis is not needed.

The OCC has determined that the final rule is not a significant regulatory action under Executive Order 12866.

In accordance with the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3506), we have reviewed the final rule to assess any information collections. There are no collections of information as defined by the Paperwork Reduction Act.

Section 202 of the Unfunded Mandates Reform Act of 1995, Public Law 104-4 (2 U.S.C. 1532) (Unfunded Mandates Act), requires that an agency prepare a budgetary impact statement before promulgating any rule likely to result in a Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year. If a budgetary impact statement is required, Section 205 of the Unfunded Mandates Act also requires an agency to identify and consider a reasonable number of regulatory alternatives before promulgating a rule. The OCC has determined that this final rule will not result in expenditures by State, local, and tribal governments, or by the private sector, of $100 million or more in any one year. Accordingly, this proposal is not subject to Section 202 of the Unfunded Mandates Act.

On November 9, 2009, the FAA published in theFederal Registera notice of proposed rulemaking to amend Class E airspace for the Dallas-Fort Worth, TX area (74 FR 57617) Docket No. FAA-2009-0926. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received. Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9T signed August 27, 2009, and effective September 15, 2009, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

This action amends Title 14 Code of Federal Regulations (14 CFR) part 71 by amending Class E airspace for the Dallas-Fort Worth, TX area, adding additional controlled airspace extending upward from 700 feet above the surface to accommodate SIAPs at Bridgeport Municipal Airport, Bridgeport, TX. Adjustments to the geographic coordinates will be made in accordance with the FAA's National Aeronautical Charting Office, as well as a name change for McKinney Municipal Airport to Collin County Regional Airport, McKinney, TX. This action is necessary for the safety and management of IFR operations. With the exception of editorial changes and the changes described above, this rule is the same as that proposed in the NPRM.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in subtitle VII, part A, subpart I, section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends controlled airspace in the Dallas-Fort Worth, TX area.

History

On December 29, 2009, the FAA published in theFederal Registera final rule amending Class E airspace in the Altus, OK area (74 FR 68666, Docket No. FAA-2009-0405). Subsequent to publication, an error was discovered in the geographic coordinates for the Altus AFB ILS Runway 17R Localizer. This action corrects the coordinates. Class E airspace designations are published in paragraph 6005, of FAA Order 7400.9T signed August 27, 2009, and effective September 15, 2009, which is incorporated by reference in 14 CFR part 71.1.

In rule FR Doc. E9-30283 published on December 29, 2009, (74 FR 68666) make the following correction:

On page 68667, in the first column, under Altus AFB ILS Runway 17R Localizer, remove “Lat. 34°43′15″ N., long 99°16′26″ W.” and insert “Lat. 34°38′31″ N., long 99°16′26″ W.”

We are adopting an updated EDGAR Filer Manual Volume II. The Filer Manual describes the technical formatting requirements for the preparation and submission of electronic filings through the EDGAR system.1 It also describes the requirements for filing using EDGARLink2 and the Online Forms/XML Web site.

The Filer Manual contains all the technical specifications for filers to submit filings using the EDGAR system. Filers must comply with the applicable provisions of the Filer Manual in order to assure the timely acceptance and processing of filings made in electronic format.3 Filers may consult the Filer Manual in conjunction with our rules governing mandated electronic filing when preparing documents for electronic submission.4

The EDGAR system will be upgraded to Release 10.1 on April 12, 2010 and will introduce the following changes: EDGAR will be upgraded to support the 2010 Mutual Fund Risk/Return Summary Taxonomy, to extend the interactive Data/XBRL validations to all Exhibit 101 attachments regardless of the taxonomy used and to ensure that only one Exhibit 101 document is attached with a submission.

EDGAR will suspend amendments for submission types 13F-HR and 13F-NT if any of these amendments are submitted before the initial filing for the period end date included in the amendment.

Form D validation and processing will be updated to allow filers to indicate if they have solicited sales in foreign countries and to disseminate state and country description in addition to the state and country code.

The EDGARLite templates for Forms TA-1 and TA-2 are being updated to change the OMB expiration date to be “April 30, 2012” and “June 30, 2012” respectively.

The filer manual is also being revised to address minor changes previously made in EDGAR. Those changes are described below:

Along with adoption of the Filer Manual, we are amending Rule 301 of Regulation S-T to provide for the incorporation by reference into the Code of Federal Regulations of today's revisions. This incorporation by reference was approved by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51.

You may obtain paper copies of the updated Filer Manual at the following address: Public Reference Room, U.S. Securities and Exchange Commission, 100 F Street, NE., Room 1520, Washington, DC 20549, on official business days between the hours of 10 a.m. and 3 p.m. We will post electronic format copies on the Commission's Web site; the address for the Filer Manual ishttp://www.sec.gov/info/edgar.shtml.

Since the Filer Manual relates solely to agency procedures or practice, publication for notice and comment is not required under the Administrative Procedure Act (APA).6 It follows that the requirements of the Regulatory Flexibility Act7 do not apply.

The effective date for the updated Filer Manual and the rule amendments is April 8, 2010. In accordance with the APA,8 we find that there is good cause to establish an effective date less than 30 days after publication of these rules. The EDGAR system upgrade to Release 10.1 is scheduled to be available on April 12, 2010. The Commission believes that establishing an effective date less than 30 days after publication of these rules is necessary to coordinate the effectiveness of the updated Filer Manual with the system upgrade.

We are adopting the amendments to Regulation S-T under Sections 6, 7, 8, 10, and 19(a) of the Securities Act of 1933,9 Sections 3, 12, 13, 14, 15, 23, and 35A of the Securities Exchange Act of 1934,10 Section 319 of the Trust Indenture Act of 1939,11 and Sections 8, 30, 31, and 38 of the Investment Company Act of 1940.12

The collection of information contained in these final regulations has been reviewed and approved by the Office of Management and Budget in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) under OMB Control Number 1545-2115.

The collection of information in these final regulations is in § 1.162-24(e). The information will help the IRS determine if a taxpayer may make or revoke an election under section 162(h). The collection of information is required to obtain a benefit. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid control number assigned by the Office of Management and Budget.

The information will be reported on a statement attached to individual tax returns. The time needed to complete and file this statement will varydepending on individual circumstances. The estimated burden for individual taxpayers filing this statement is 30 minutes.

Comments concerning the accuracy of this burden estimate and suggestions for reducing this burden should be sent to the Internal Revenue Service, Attn: IRS Reports Clearance Officer, SE:W:CAR:MP:T:T:SP, Washington, DC 20224, and to the Office of Management and Budget, Attn: Desk Officer for the Department of the Treasury, Office of Information and Regulatory Affairs, Washington, DC 20503.

Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and return information are confidential, as required by 26 U.S.C. 6103.

This document contains final amendments to the Income Tax Regulations, 26 CFR part 1, 26 CFR part 301, and 26 CFR part 602, relating to travel expenses of state legislators while away from home.

On March 31, 2008, a notice of proposed rulemaking (REG-119518-07) was published in theFederal Register(73 FR 16797). Written comments responding to the notice of proposed rulemaking were received. No public hearing was requested or held. After consideration of all the comments, the proposed regulations are adopted as amended by this Treasury decision. The comments and revisions are discussed in the preamble.

Under section 162(a), a state legislator may be entitled to deduct expenses paid or incurred in conducting legislative business (for example, living, transportation, and miscellaneous expenses) while traveling away from home. In addition, section 162(h) allows a state legislator to deduct deemed living expenses, but not other deemed business travel expenses, on specified legislative days. These regulations provide guidance on the special rules for deducting a state legislator's deemed living expenses.

Section 162(h) and the proposed regulations provide that a taxpayer who is a state legislator at any time during the taxable year may make an election under section 162(h) to treat the taxpayer's place of residence within the taxpayer's legislative district as the taxpayer's tax home. In addition, as a result of the election the taxpayer is deemed to be away from home in the pursuit of a trade or business on each legislative day and is deemed to have expended an amount for living expenses on that day. Under the proposed regulations, a legislative day for a taxpayer includes each day (1) The legislature is actually in session, (2) the legislature is not in session for a period not longer than 4 consecutive days, (3) the taxpayer's attendance is formally recorded at a meeting of a committee of the legislature, or (4) the taxpayer's attendance is formally recorded at a session of the legislature that only a limited number of members are expected to attend, such as apro formasession.

Some commentators expressed concerns that the proposed regulations might impose new limits on state legislators' deductions for business travel expenses and suggested that the proposed regulations should not be finalized.

The final regulations do not adopt this comment because the regulations do not impose new limits. The regulations merely clarify the existing section 162(h) special rules for deducting state legislators' deemed living expenses for each legislative day. The regulations do not affect or limit the deduction for actual travel expenses under section 162(a). A taxpayer may continue to deduct actual substantiated travel expenses, whether or not the taxpayer qualifies under the special rule for deducting deemed expenses under section 162(h).

Some commentators objected to Federal regulations defining when a legislature is in session and what constitutes a legislative day for purposes of section 162(h). The commentators expressed concern that the proposed regulations would preempt state law governing the conduct of legislative affairs. The commentators recommended that the regulations not be issued.

The final regulations do not adopt this recommendation. These regulations definein sessionandlegislative daysolely for the purpose of interpreting the special rules of section 162(h), a matter of Federal law.See Morganv.Commissioner,309 U.S. 78, 81 (1940) (“If it is found in a given case that an interest or right created by local law was the object intended to be taxed, the federal law must prevail no matter what name is given to the interest or right by state law.”). These regulations do not preempt or supersede state laws governing the conduct or operation of state legislatures. The regulations merely address what amounts (deemed living expenses) state legislators may deduct under section 162(h).

The proposed regulations provide that a taxpayer is a state legislator for purposes of the regulations beginning on the day the taxpayer is sworn into office and ending on the day following the day on which the taxpayer's term in office ends.

Commentators noted that some state laws treat a legislator-elect as a legislator before the legislator-elect is sworn into office, for example, on the date elected, the date the election results are certified, or on January 1 following the election. A commentator stated that legislators-elect often move to the state capital immediately upon election to conduct legislative business, for example, to participate in the formation of committees and assignments. Commentators suggested that the definition of a state legislator in the final regulations be modified to permit legislators-elect to deduct legislative business expenses under these circumstances.

The final regulations do not adopt this suggestion. Although a legislator-elect who is present in the state capital on business prior to being sworn into office is not eligible to deduct deemed living expenses under section 162(h), the legislator-elect may be traveling away from home and may be entitled to deduct actual business travel expenses under the general rules of section 162(a).

The proposed regulations provide that a committee of the legislature is a group consisting solely of legislators charged with conducting business of the legislature.

Commentators noted that it is common practice in a number of states for legislative committees to have non-legislative members. Commentators suggested that the final regulations modify the definition of a committee of the legislature to include groups tasked with conducting public policy or other legislative business that have legislator and non-legislator members.

In response to these comments, the final regulations define a committee of the legislature as a group that includes one or more legislators and is charged with conducting business of the legislature.

A commentator expressed concern that an effective date for the final regulations that falls in the middle of a taxable year would create confusion about expenses paid or incurred in the part of the year before the effective date. To eliminate confusion, the final regulations apply to expenses paid or incurred, or deemed expended under section 162(h), in taxable years beginning after April 8, 2010, the date of publication of this regulation.

Rev. Rul. 82-33 (1982-1 CB 28) is obsolete as ofApril 8, 2010.

It has been determined that this Treasury decision is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations and, because the regulations do not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f) of the Code, the notice of proposed rulemaking that preceded these final regulations was submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.

The principal author of these regulations is R. Matthew Kelley of the Office of Associate Chief Counsel (Income Tax and Accounting). However, other personnel from the IRS and Treasury Department participated in their development.

In 1984, Congress enacted the Veterans' Dioxinand Radiation Exposure Compensation Standards Act, Public Law 98-542 (hereinafter “1984 statute”), which required VA to prescribe regulations regarding the determination of service connection of disabilities of veterans who were exposed to herbicides containing dioxin during service in the Republic of Vietnam during the Vietnam era or were exposed during service to ionizing radiation from certain nuclear detonations. Section 6 of the statute established the Veterans' Advisory Committee on Environmental Hazards (hereinafter “Advisory Committee”) and charged the Advisory Committee to provide VA with evaluations of pertinent scientific studies relating to possible adverse health effects of exposure to dioxin or ionizing radiation and with recommendations for legislative or administrative action. Section 5(b) of the 1984 statute directed VA to issue regulations establishing guidelines “governing the evaluation of the findings of scientific studies relating to the possible increased risk of adverse health effects of exposure to herbicides containing dioxin or of exposure to ionizing radiation.” Section 5(b) further provided that the referenced evaluations of scientific studies would be made by the Administrator (now Secretary) of Veterans Affairs after receiving the advice of the Advisory Committee established under section 6 of the 1984 statute. Finally, section 5(b) provided that, under the prescribed regulations, VA would make determinations as to whether, and in what circumstances, service connection would be granted for particular diseases based on a finding that a disease is associated with exposure to herbicides containing dioxin or to ionizing radiation.

In August 1985, VA issued 38 CFR 1.17, 3.311a, and 3.311b to implement section 5(b) of the 1984 statute. 50 FR 34,452 (Aug. 26, 1985). Sections 3.311a and 3.311b set forth criteria governing adjudication of claims for service connection of conditions claimed to be associated with exposure to herbicides containing dioxin and to ionizing radiation, respectively. As they do currently, § 1.17(a) stated that VA will periodically publish notices in theFederal Registerevaluating studies pertaining to the health effects of exposure to herbicides containing dioxin or to ionizing radiation, and § 1.17(b) set forth the criteria to be used by VA to evaluate the studies. Section 1.17(c) was added in 1989, 54 FR 40,388 (Oct. 2, 1989), stating that, if VA determines, based on evaluation of scientific or medical studies and after receiving the advice of the Advisory Committee, that there is a “significant statistical association” between any disease and exposure to herbicides containing dioxin or to ionizing radiation, VA will amend 38 CFR 3.311a or 3.311b to provide guidelines for establishing service connection for the disease.

After VA issued those regulations, Congress enacted the Agent Orange Act of 1991, Public Law 102-4, which established an entirely new process for evaluating the health effects of exposure to herbicides containing dioxin and for establishing presumptions of service connection for diseases associated with such exposure. Section 3 of the Agent Orange Act directed VA to enter into an agreement with the National Academy of Sciences for periodic reviews of the scientific evidence concerning the health effects of exposure to herbicides. Section 2 of the Agent Orange Act, codified at 38 U.S.C. 1116, provides that, after receiving a report from the National Academy, VA must determine whether a presumption of service connection is warranted for any disease discussed in that report. The statute provides that VA will find a presumption to be warranted if there is a “positive association” between herbicide exposure and the disease, meaning that the credible evidence for an association is equal to or outweighs the credible evidence against an association. 38 U.S.C. 1116(b). The statute further specifies the criteria VA must use in evaluating scientific studies for purposes of that determination. 38 U.S.C. 1116(b)(2). The Agent Orange Act also directs VA to issue regulations establishing presumptions of service connection, when warranted, and to publish notices in theFederal Registerexplaining the basis for any decision not to establish a presumption. 38 U.S.C. 1116(c).

Section 10 of the Agent Orange Act amended the 1984 statute to remove all references to herbicides containing dioxin. As a result, the provisions of the 1984 statute regarding recommendations by the Advisory Committee, VA's evaluation of scientific studies, and VA determinations with respect to specific diseases, are obsolete with regard to matters involving herbicide exposure, which are now governed by the comprehensive statutory scheme of the Agent Orange Act.

In 1994, VA removed 38 CFR 3.311a, the dioxin regulation issued under the 1984 statute, 59 FR 5105 (Feb. 3, 1994), on the ground that it had been superseded by regulations implementing the Agent Orange Act of 1991. 58 FR 50,528, 50,529 (1993). However, VA did not amend 38 CFR 1.17 at that time to remove the portions of § 1.17 that pertain to determinations concerning exposure to herbicides containing dioxin. We are therefore amending § 1.17 now to remove the obsolete provisions of that rule relating to herbicides containing dioxin. As explained above, the provisions of § 1.17 relating to herbicides containing dioxin were based on provisions of the 1984 statute that have since been repealed. The Agent Orange Act of 1991 has supplanted the procedures described in § 1.17 with different procedures in 38 U.S.C. 1116 governing VA's receipt and review of scientific evidence, determinations with respect to diseases, issuance of regulations, and publication of notices in theFederal Register. Accordingly, all of the references to herbicides containing dioxin in § 1.17 are outdated and have no further effect. We are therefore removing them as obsolete.

Nothing in this rule is intended to limit or alter VA's duty under the Agent Orange Act of 1991, codified at 38 U.S.C. 1116, to review scientific and medical evidence concerning the health effects of herbicide exposure and to publish notices in theFederal Registerof VA's determinations on such matters.

These amendments merely reflect statutory changes and remove provisions that have become obsolete. Accordingly, this final rule is exempt from the prior notice-and-comment and delayed-effective-date requirements of 5 U.S.C. 553.

The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in an expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any year. This amendment would have no such effect on State, local, and tribal governments, or on the private sector.

This document contains no collections of information under the Paperwork Reduction Act (44 U.S.C. 3501-3521).

Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potentialeconomic, environmental, public health and safety, and other advantages; distributive impacts; and equity). The Executive Order classifies as a “significant regulatory action,” requiring review by the Office of Management and Budget (OMB), unless OMB waives such review, as any regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

VA has examined the economic, interagency, budgetary, legal, and policy implications of this final rule and has concluded that it is not a significant regulatory action under Executive Order 12866.

The initial and final regulatory flexibility analyses requirements of section 603 and 604 of the Regulatory Flexibility Act, 5 U.S.C. 601-612, are not applicable to this rule because a notice of proposed rulemaking is not required for this rule. Even so, the Secretary of Veterans Affairs hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act. Therefore, this final rule is also exempt pursuant to 5 U.S.C. 605(b) from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.

The Catalog of Federal Domestic Assistance numbers and titles for the programs affected by this document are 64.109, Veterans Compensation for Service-Connected Disability; and 64.110, Veterans Dependency and Indemnity Compensation for Service-Connected Death.

In a document published in theFederal Registeron July 10, 2009 (74 FR 33192), VA proposed to amend its regulations at 38 CFR part 59 concerning grants to States for the construction or acquisition of State home facilities.

Section 8134(a)(2) of title 38, U.S.C., mandates that VA prescribe for each State the maximum number of nursing home and domiciliary beds for which grants may be furnished. Section 8134(a)(4) requires that, not less often than every four years, VA must review and, as necessary, revise the regulations concerning the maximum number of State home beds designated for each State. In 2001, VA established the maximum number of State home beds for each State based on the projected demand for such beds in 2009, as required under section 8134(a)(2). VA now believes that Congress intended VA to recalculate the maximum number of beds for each State based on the projected demand for care ten years in the future and that this method would be consistent with the statutory requirement for establishing maximum State home bed numbers. Accordingly, VA proposed to revise the maximum number of nursing home and domiciliary beds for each State, for which grants may be furnished, based on the projected demand from veterans who, in 2020, are 65 years of age or older and reside in that State.

To compute the maximum number of beds for each State, we first estimated that there would be a total population of 8,672,045 veterans 65 years of age or older residing in all the States, projected to the year 2020. We then estimated that there would be a total demand of 55,299 State home beds nationwide in 2009. We then allocated the 55,299 beds based on the percentage of veterans who in2020 are projected to reside in each State.

VA provided a 60-day comment period that ended September 8, 2009. VA received no comments. Based on the rationale set forth in the proposed rule and in this document, we are adopting the proposed rule as a final rule without change.

The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any year. This final rule would have no such effect on State, local, and tribal governments, or on the private sector.

This document contains no provisions constituting a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521).

Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). The Executive Order classifies a “significant regulatory action,” requiring review by the Office of Management and Budget (OMB) unless OMB waives such review, as any regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

The economic, interagency, budgetary, legal, and policy implications of this rule have been examined and it has been determined to be a significant regulatory action under the Executive Order because it may raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

The Secretary of Veterans Affairs hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. The rule will affect grants to States and will not directly affect small entities. Therefore, pursuant to 5 U.S.C. 605(b), this final rule is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.

The Catalog of Federal Domestic Assistance program number and title for this rule is as follows: 64.005, Grants to States for Construction of State Home Facilities.

The Postal Service is replacing the standards applicable to the Standard Mail Incentive Program that ended on September 30, 2009 with new standards describing the 2010 Standard Mail Incentive Program. The 2010 Standard Mail Incentive Program implements a volume incentive program for qualified high-volume mailers of Standard Mail, or Nonprofit Standard Mail, letters and flats, with volume mailed between July 1, 2010 and September 30, 2010, above their individual threshold level. The threshold level for this program will be set at five percent (5%) above the volume demonstrated by the participant mailer during the same period in 2009. This program encourages mailers to generate new volume and demonstrates the commitment of the Postal Service to the future health of the mailing industry.

To participate, mailers must be the permit holder (i.e.owner) of a permit imprint advance deposit account(s) or the owner of qualifying mail volume entered through the permit imprint advance deposit account of a mail service provider. Qualifying mailers must be able to demonstrate volume of at least three-hundred and fifty thousand (350,000) Standard Mail letters and/or flats, within the program qualification period of July 1, 2009 to September 30, 2009, mailed through a permit imprint advance deposit account, precanceled stamp permit, postage meter permit, or by a combination of these methods. Applicants may also qualify for the program with volume mailed through an account(s) owned by a mail service provider, when adequate documentation is provided that specifies the applicant is the owner of the mail.

The 2010 Standard Mail Incentive Program encourages mailers to generate new mail volume. As a deterrent to mailers shifting previously planned volume into the program to obtain incentive credits, the mailing activity of participating mail owners will be monitored in the calendar months prior to and following the end of the program as follows:

• For the 2010 Standard Mail Incentive Program, each participant's June 2010 and October 2010 expected volume will be defined as five percent (5%) over the total volume of Standard Mail letters and/or flats recorded for the participant in June 2009 and October 2009 respectively.

• Each participant'sactualJune 2010 and October 2010 volumes will be compared to their respective June 2010 and October 2010 expected volumes.

Participants demonstrating a shortfall with volume to either their June 2010 or October 2010 expected volumes will have that shortfall deducted from the number of mailpieces eligible for an incentive credit within the program regardless of any surplus demonstrated in the expected volume threshold of the other month.

Those mailers identified by the Postal Service as being eligible to participate in the program will be sent an invitation letter on or before May 1, 2010. This invitation letter will direct interested mailers to apply for the program online athttp://www.usps.com/summersale.Mailers wishing to participate in the program, who believe they meet the eligibility standards under DMM 709.2.2 (of this final rule) and were not notified by letter, may request a review of their eligibility by contacting the USPS atsummersale@usps.govno later than May 15, 2010. Any mailer wishing to participate in the program must initially apply athttp://www.usps.com/summersaleno later than May 28, 2010.

Mailers completing the online application process will receive an electronic response from the USPS that includes:

• An individual volume threshold report.

• A certification letter.

• A threshold inquiry form.

The individual threshold report displays the applicant's July 1, 2009 to September 30, 2009 Standard Mail letters and flats volume mailing history, by permit number, and the applicant's USPS-calculated threshold. The report also includes the applicant's June 2009 and October 2009 mailing histories and the USPS-calculated expected June 2010 and October 2010 volumes. Applicants agreeing with the volume histories and USPS calculations can sign the provided certification letter and return a copy via e-mail tosummersale@usps.gov,or mail hardcopy to Summer Sale Program Office, 475 L'Enfant Plaza, SW., RM 5410, Washington, DC 20260-5410, to be fully registered for the program. To simplify the review process, by identifying potential permit issues prior to scheduling contact with a USPS representative, applicants not agreeing with any portion of their volume histories must complete the threshold inquiry form and return it, via e-mail tosummersale@usps.gov,or mail hardcopy to Summer Sale Program Office, 475 L'Enfant Plaza, SW., RM 5410, Washington, DC 20260-5410, no later than June 30, 2010. Applicantsdisputing USPS volume histories or calculations will be required to provide supporting evidence as appropriate.

In addition to Standard Mail volume prepared and entered directly by the mailer (applicant), applicants are also eligible to participate in the program with qualifying volume prepared by a mail service provider when entered through a permit owned by the applicant. Mail volume through a mail service provider's permit may also qualify for the program if adequate documentation, such as PS Form 3602,Postage Statement—Standard Mail,identifies the mail as being prepared on behalf of the applicant and demonstrates the applicant's prior mailing activity. Mail service providers are not eligible for the 2010 Standard Mail Incentive Program.

Approved program participants, demonstrating an increase in their total Standard Mail letters and flats volume above their threshold level, will qualify for a credit to a single designated permit imprint advance deposit account or Centralized Account Payment System (CAPS) account, following the close of the October 2010 mailing activity review period. The total postage attributable to Standard Mail letters and flats within the program period will be identified for each participant and divided by the total number of recorded pieces, to generate the average price per piece. Participants receive a credit in the amount of thirty percent (30%) of the average price per piece for the total number of mailpieces of the incremental volume, above their threshold level, recorded during the program period.

Additionally, as part of the program administration, the Postal Service will require each program participant to certify the data used to calculate their program threshold level and their June 2010 and October 2010 expected volumes. This certification requirement will be similar to what is currently used on a PS Form 3602,Postage Statement—Standard Mail.The certification requirement for this initiative is designed to ensure that the data used by the Postal Service to calculate the threshold level and applicable June 2010 and October 2010 expected volumes for each qualifying mailer is accurate.

In accordance with the Postal Accountability and Enhancement Act, on February 26, 2010, the Postal Service filed a Notice with the Postal Regulatory Commission (PRC) regarding the 2010 Standard Mail Incentive Program. Regulatory review may take up to 45 days from that date.

The Postal Service adopts the following changes toMailing Standards of the United States Postal Service,Domestic Mail Manual (DMM), incorporated by reference in the Code of Federal Regulations. See 39 CFR 111.1.

I. Background

On January 15, 2010 (75 FR 2452), EPA published a notice of proposed rulemaking (NPR) for the State of Delaware. The NPR proposed approval of the 15 percent RFP plan, the RFP plan's 2008 MVEBs, the 2002 base year emissions inventory, contingency measures, and the RACM analysis for the Delaware portion of the Philadelphia 1997 8-hour ozone moderate nonattainment area. The formal SIP revision was submitted by the Delaware Department of Natural Resources and Environmental Control on June 13, 2007.

The SIP revision addresses emissions inventory, RACM, contingency measures and the RFP requirements for the 1997 8-hour ozone NAAQS for the Delaware portion of the Philadelphia moderate nonattainment area. The SIP revision also establishes MVEBs for 2008. Other requirements of the SIP revision and the rationale for EPA's proposed action are explained in the NPR and will not be restated here. No public comments were received on the NPR.

EPA is approving the Delaware SIP revision that meets the RFP requirements of the CAA for the Delaware portion of the Philadelphia 1997 8-hour ozone moderate nonattainment area. EPA is also approving the RFP plan's MVEBs, the 2002 base year emissions inventory, contingency measures, and RACM analysis associated with the SIP revision. The SIP revision satisfies the requirements for the 1997 8-hour ozone NAAQS nonattainment areas classified as moderate and demonstrates further progress in reducing ozone precursors.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the 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 CAA. Accordingly, this action merely approves state law as meeting Federal requirements 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. 3501et 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. 601et seq.);

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• 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. 801et 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 theFederal Register.A major rule cannot take effect until 60 days after it is published in theFederal Register.This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by June 7, 2010. 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 pertaining to the Delaware's RFP Plan, 2002 base year emissions inventory, contingency measures, RACM analysis, and transportation conformity budgets, may not be challenged later in proceedings to enforce its requirements. (Seesection 307(b)(2).)

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:

Wisconsin requested a revision to its SIP on September 11, 2009. The request is to update the particulate matter ambient air quality standards. The particulate matter standards were revised to match the 2006 Federal standards. On October 17, 2006, EPA revised its particulate matter ambient air quality standards, strengthening the 24-hour fine particulate (PM2.5) standard and retaining the annual PM2.5standard. EPA also revoked the annual standard for coarse particulate matter (PM10) because available evidence did not suggest a link between long term PM10exposure and health problems. The 24-hour PM10standard remains in place.

Wisconsin revised chapters NR 404 and 484 of the Wisconsin Administration Code. Wisconsin added the definition of PM2.5and the PM2.5ambient air quality standards to its rules to be consistent with current Federal standards. Wisconsin also removed the annual PM10standard.

The revisions made by Wisconsin are in accordance with the current Federal PM2.5and PM10standards. EPA strengthened the particulate matter ambient air quality standards in 2006 to reflect the latest scientific data for protecting human health, and Wisconsin has adopted the same standards to keep its ambient air quality standards current with the Federal standards.

This action incorporates the Federal PM2.5and PM10ambient air quality standards into the Wisconsin SIP, including the more stringent standard for 24-hour PM2.5standard. The current Federal standards are effective and enforceable nationwide. The revisions add clarity for Wisconsin sources and stakeholders, as it updates the PM10standards and adds the PM2.5standards to the state rules.

Particulate matter interferes with lung function when inhaled. Exposure to particulates can cause heart and lung disease. Particulate matter also aggravates asthma. Airborne particulate is the main source of haze that causes a reduction in visibility. Particulate matter is also deposited on the ground and in the water, changing nutrient and chemical balances.

EPA is approving revisions to the Wisconsin SIP. Wisconsin revised chapters NR 404 and 484 of the Wisconsin Administration Code. In chapter NR 404, the state removed the annual PM10standard, added the definition of PM2.5, and added the 2006 PM2.5standards. Wisconsin incorporated by reference the Code of Federal Regulations (CFR) monitoring requirements into chapter NR 484 that correspond to the chapter NR 404 revisions. Specifically, Wisconsin incorporated 40 CFR part 50 appendices K, L, and M and 40 CFR part 53 by reference into chapter NR 484.

We are publishing this action without prior proposal because we view this asa noncontroversial amendment and anticipate no adverse comments. However, in the proposed rules section of thisFederal Registerpublication, we are publishing a separate document that will serve as the proposal to approve the state plan if relevant adverse written comments are filed. This rule will be effective June 7, 2010 without further notice unless we receive relevant adverse written comments by May 10, 2010. If we receive such comments, we will withdraw this action before the effective date by publishing a subsequent document that will withdraw the final action. All public comments received will then be addressed in a subsequent final rule based on the proposed action. EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time. If we do not receive any comments, this action will be effective June 7, 2010.

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the 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. Accordingly, this action merely approves state law as meeting Federal requirements 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. 3501et 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. 601et seq.);

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• 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 Clean Air Act; 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. 801et 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 theFederal Register.A major rule cannot take effect until 60 days after it is published in theFederal 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 June 7, 2010. 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. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today'sFederal Register,rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. This action may not be challenged later in proceedings to enforce its requirements. (Seesection 307(b)(2).)

Throughout this document wherever “we,” “us,” or “our” is used, we mean the EPA.

We are approving a submission from the State of New Mexico demonstrating that New Mexico has adequately addressed one of the required elements of the CAA section 110(a)(2)(D)(i), the element that prohibits air pollutant emissions from sources within a state from significantly contributing to nonattainment of the relevant NAAQS in any other state. We have determined that emissions from sources in New Mexico do not significantly contribute to nonattainment of the 1997 ozone standards or of the 1997 PM2.5standards in any other state. The remaining threeelements of section 110(a)(2)(D) are SIPs addressing: (i) Interference with the maintenance of the NAAQS in any other state; (ii) interference with measures required to prevent significant deterioration of air quality in any other state; and (iii) interference with measures required to protect visibility in any other state. The aforementioned 3 elements will be evaluated and addressed in future rulemakings.

EPA is publishing this rule without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comments. However, in the proposed rules section of thisFederal Registerpublication, we are publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are received. This rule will be effective on June 7, 2010 without further notice unless we receive adverse comment by May 10, 2010. If we receive adverse comments, we will publish a timely withdrawal in theFederal Registerinforming the public that the rule will not take effect. We will address all public comments in a subsequent final rule based on the proposed rule. We will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. Please note that if we receive adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, we may adopt as final those provisions of the rule that are not the subject of an adverse comment.

Section 110(a) of the CAA requires each state to develop a plan that provides for the implementation, maintenance, and enforcement of the national ambient air quality standards (NAAQS). EPA establishes NAAQS under section 109 of the CAA. Currently, the NAAQS address six criteria pollutants: Carbon monoxide, nitrogen dioxide, ozone, lead, particulate matter, and sulfur dioxide.

The plan developed by a state is referred to as the state implementation plan (SIP). The content of the SIP is specified in section 110 of the CAA, other provisions of the CAA, and applicable regulations. SIPs can be extensive, containing state regulations or other enforceable measures and various types of supporting information, such as emissions inventories, monitoring networks, and modeling demonstrations.

A primary purpose of the SIP is to provide the air pollution regulations, control strategies, and other means or techniques developed by the state to ensure that the ambient air within that state meets the NAAQS. However, another important aspect of the SIP is to ensure that emissions from within the state do not have certain prohibited impacts upon the ambient air in other states through interstate transport of pollutants. This SIP requirement is specified in section 110(a)(2)(D). Pursuant to that provision, each state's SIP must contain provisions adequate to prevent, among other things, emissions that significantly contribute to violations of the NAAQS in any other state.

States are required to update or revise SIPs under certain circumstances. One such circumstance is EPA's promulgation of a new or revised NAAQS. Each state must submit these revisions to EPA for approval and incorporation into the federally-enforceable SIP.

On July 18, 1997, EPA promulgated new standards for 8-hour ozone and fine particulate matter (PM2.5). This action is being taken in response to the July 18, 1997 revision to the 8-hour ozone standards and PM2.5standards. This action does not address the requirements for the 2006 PM2.5standards or the 2008 8-hour ozone standards; those standards will be addressed in a later action.

Section 110(a)(1) of the CAA requires states to submit SIPs to address a new or revised NAAQS within 3 years after promulgation of such standards, or within such shorter period as EPA may prescribe. Section 110(a)(2) lists the elements that such new SIPs must address, as applicable, including section 110(a)(2)(D)(i) which pertains to interstate transport of certain emissions. On August 15, 2006, EPA issued its “Guidance for State Implementation Plan (SIP) Submission to Meet Current Outstanding Obligations Under Section 110(a)(2)(D)(i) for the 8-Hour Ozone and PM2.5National Ambient Air Quality Standards” (“Guidance”) for SIP submissions that states should use to address the requirements of section 110(a)(2)(D)(i). EPA developed this guidance to make recommendations to states for making submissions to meet the requirements of section 110(a)(2)(D) for the 1997 8-hour ozone standards and 1997 PM2.5standards.

On September 17, 2007, we received a SIP revision from the State of New Mexico to address the requirements of section 110(a)(2)(D)(i) for both the 1997 8-hour ozone standards and 1997 PM2.5standards. This SIP submittal follows EPA's Guidance. As identified in the Guidance, the “good neighbor” provisions in section 110(a)(2)(D)(i) require each State to submit a SIP that prohibits emissions that adversely affect another state in the ways contemplated in the statute. Section 110(a)(2)(D)(i) contains four distinct requirements related to the impacts of interstate transport; however, in this rulemaking EPA is addressing only the requirement that pertains to preventing sources in the state from emitting pollutants in amounts which will contribute significantly to nonattainment of the 1997 8-hour ozone standards and 1997 PM2.5standards in any other state. In its submission, the State of New Mexico indicated that its current SIP is adequate to prevent such significant contribution to nonattainment in any other state, and thus no additional emissions controls are necessary at this time to alleviate interstate transport.

In accordance with EPA's Guidance, the State of New Mexico has made a SIP submission addressing interstate transport for the 1997 8-hour ozone standards and 1997 PM2.5standards. The State has made a showing that emissions from New Mexico do not significantly contribute to violations of either NAAQS in other states by two different means. For PM2.5the State has relied primarily upon technical analysis performed by EPA in connection with another regional rulemaking that addresses interstate transport. For ozone, the State has relied primarily on additional modeling to address the extent of interstate transport. We believe that the submission adequately establishes that emissions from New Mexico do not significantly contribute to violations of either NAAQS in other states, for the reasons explained below.

To support a determination of no “significant contribution” for the 1997 PM2.5standards, the state has relied on EPA's Clean Air Interstate Rule (CAIR)1 analysis. This approach is consistent with EPA's Guidance to states for this SIP submission. In CAIR, EPA evaluated which states significantly contribute to violations of the 1997 8-hour ozone standards and 1997 PM2.5standards in other states. Based upon its analysis, EPA did not include New Mexico in the CAIR region. In the CAIR preamble, EPA provided its rationale for the exclusionof the western states, including New Mexico, from further consideration of transport for 8-hour ozone and PM2.5and the requirements of CAIR.

The “Technical Support Document for the Interstate Air Quality Rule Air Quality Modeling Analysis”, January 2004 (available athttp://www.epa.gov/cair/technical.html) contains documentation of the modeling used to support CAIR. This modeling included an analysis of the maximum impact of emissions from States without CAIR controls applied on areas projected in PM2.5nonattainment in 2010. A maximum impact level of 0.15 µg/m3was considered significant for this analysis (Note:In the final CAIR EPA changed the maximum impact level for this significance test to 0.20 µg/m3). EPA's modeling indicated that the maximum impact from emissions from sources in New Mexico on any projected nonattainment area in another state was 0.03 µg/m3. This value is 20% of the significant impact level that EPA used in the CAIR proposal, and therefore EPA determined that emissions from the state of New Mexico do not significantly contribute to pollutant levels in any area projected to be nonattainment of the PM2.5standard in that analysis.

CAIR was remanded by the U.S. Court of Appeals for the District of Columbia, and EPA is currently in the process of developing a replacement rule to address interstate transport for the 1997 8-hour ozone and 1997 PM2.5standards. We do not believe that the CAIR remand affects New Mexico's reliance on EPA's CAIR analysis for the purpose of evaluating New Mexico's PM2.5impacts on other states. Specifically, EPA's modeling was conducted without including the impact of any CAIR controls, and thus the evaluation is not impacted by any uncertainty in the implementation of CAIR controls due to the remand. Also, despite remand of the CAIR rules, EPA's reliance on the maximum impact level of 0.20 µg/m3as the cutoff for the inclusion of a state in the CAIR region was upheld by the court. Therefore, with respect to the 1997 PM2.5standards, we believe that New Mexico's submission adequately establishes that sources in that state are not significantly contributing to violations of that NAAQS in any other state.

To support a determination of no “significant contribution” for the 8-hour ozone NAAQS, New Mexico could not rely upon EPA's CAIR analysis because western states including New Mexico were not included in the area modeled for ozone. Instead, New Mexico provided an additional modeling analysis of the impact of emissions from the state on projected 8-hour ozone nonattainment in downwind states. We note that modeling is not necessarily required to support this type of SIP submission, but this approach is consistent with EPA's Guidance to states for this SIP submission.

The modeling relied upon by the state is described in greater detail in its technical support document in the submission, and is available athttp://www.regulations.gov,Docket No.EPA-R06-OAR-2007-0993. We note that EPA assisted the state with this analysis, including the development of the modeling demonstration. In order to develop a model scenario that could evaluate New Mexico's impacts, the state and EPA determined that it was appropriate to rely on data developed by the Central Regional Air Planning Association (CENRAP). Modeling was conducted using a 2002 third quarter CENRAP modeling dataset that included New Mexico in the modeling domain. While a more recent dataset might be assumed to be more appropriate to support this action, a 2010 dataset was not available from CENRAP. However, we believe that the use of the 2002 dataset is adequate to evaluate the degree of contribution of New Mexico emissions sources to violations of the 1997 8-hour ozone standards. Because the analysis is based on year 2002 emissions, we believe it is a conservative estimate of potential transport impacts in 2010, as New Mexico's emissions have been decreasing since 2002 due to various recent federal control programs (including On-Road and Nonroad reductions). This trend is confirmed by available 2005 inventory. In other words, if data from 2002 establish that there is no significant contribution to violations of the 1997 8-hour ozone standards in other states, then New Mexico sources would have even lower impacts currently and consequently no significant contribution.

In the Guidance, we recommended a number of ways that states might elect to evaluate whether or not there is significant contribution, and we suggested that states might consider assessing the potential for contribution using assumptions similar to those used by EPA in CAIR. The state's analysis considered three factors comparable to those used by EPA as screening criteria in determining significance for states in CAIR: (a) The magnitude of the contribution, (b) the frequency of the contribution, and (c) the relative amount of contribution. The additional modeling yielded consistent results showing New Mexico emissions do not contribute significantly to 8-hour ozone nonattainment in any of the areas analyzed. New Mexico's highest overall contribution to total nonattainment for any nonattainment area at the time of the modeling was for Dallas/Fort Worth. New Mexico's highest impact on the Dallas/Fort Worth area was a daily average contribution of 0.4%, with a contribution average of 0.4 ppb. By EPA's own metrics (as established in CAIR and upheld by the court), these impacts are considered to be small and infrequent and well below screening criteria established at 1% and 2 ppb, respectively. Moreover, not a single metric of the three contribution factors was found to be above the significance threshold established by EPA for any of the downwind counties. For more details please see the document titled “Modeling Data and Report for New Mexico from EPA Regions 6 and 7” that is included in the docket materials for this action.

At the time the modeling was performed, Denver's air quality was meeting the standard. (The 2004-2006 8-Hour Ozone Design Value (DV) was 81 ppb). Therefore the state did not evaluate New Mexico's ozone impacts on Denver. Denver had a very high ozone season in 2007 that temporarily pushed the area into nonattainment. The preliminary 2007-2009 DV (awaiting final data validation) is 82 ppb so the area appears to now be back in attainment. The preliminary 2007-2009 DV is based upon 4th High values of 90 ppb in 2007, 79 ppb in 2008, and 79 ppb in 2009 (preliminary). With the last two 4th Highs of 79 ppb, Denver would have to monitor a 4th High value of 97 ppb in 2010 to go back into nonattainment for the period 2008-2010. Denver has not had a 4th High value of more than 92 ppb in the last 15 years, so it is unlikely that Denver will be in nonattainment at the end of the 2010 ozone season for the 84 ppb standard. Since based on preliminary 2007-2009 data, Denver is attaining the standard, New Mexico's emissions should not be considered as contributing to nonattainment in Denver.

With respect to the 1997 8-hour ozone standards, we believe that New Mexico's submission adequately establishes that sources in that state are not significantly contributing to violations of that NAAQS in any other state. As noted previously, EPA will be acting on the other elements of Section 110(a)(2)(D)(i) in separate rulemakings.

We are approving revisions to the New Mexico SIP which adequately demonstrates that air pollutant emissions from sources within NewMexico do not add significantly to nonattainment of the relevant NAAQAS on any other state.

Based on the information provided by NMED in the technical demonstration, it has sufficiently been demonstrated that emissions from New Mexico do not significantly contribute to downwind nonattainment. Thus, EPA concludes that the New Mexico SIP complies with CAA section 110(a)(2)(D)(i)(I).

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the 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. Accordingly, this action merely approves state law as meeting Federal requirements 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. 3501et 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. 601et seq.);

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• 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 Clean Air Act; 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. 801et 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 theFederal Register.A major rule cannot take effect until 60 days after it is published in theFederal 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 June 7, 2010. 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).)

This is a synopsis of the Commission's Order in WC Docket No. 05-337 and CC Docket No. 80-286, FCC 10-44, adopted March 17, 2010, and released March 18, 2010. The complete text of this document is available for inspection and copying during normal business hours in the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. The document may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone (800) 378-3160 or (202) 863-2893, facsimile (202) 863-2898, or via the Internet athttp://www.bcpiweb.com.It is also available on the Commission's Web site athttp://www.fcc.gov.

People with Disabilities: To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an e-mail tofcc504@fcc.govor call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).

1. In the Report and Order, we address an inequitable asymmetry in the Commission's current rules governing the receipt of universal service high-cost local switching support (LSS) by small incumbent local exchange carriers (LECs). Under the current rules, which were adopted by the Commission at a time when incumbent LEC lines had largely only increased over time, the amount of LSS that an incumbent LEC may receive decreases when its line counts increase above a particular threshold, but does not increase when its line counts decrease below that same threshold. Since the adoption of these rules, incumbent LEC lines have begun to decrease, and, as a result of the one-way rule, many small LECs that have lost lines receive less support than other LECs with a similar number of lines that face nearly identical circumstances. By modifying our rules to permit incumbent LECs that lose lines to receive additional LSS when they cross a threshold, we will provide LSS to all small LECs on the same basis. We emphasize that nothing in the Report and Order is intended to address the long-term role of LSS in the Commission's high-cost universal service policies, which we are considering as part of comprehensive universal service reform. We also dismiss the petition for reconsideration filed by the Coalition for Equity in Switching Support in the jurisdictional separations freeze proceeding. The issues raised in that petition are essentially the same as those raised in its petition for clarification. This decision and theCoalition Petition Order and LSS NPRMwholly address those issues, and therefore we dismiss the petition for reconsideration as moot.

2. We conclude that our rules should be modified to permit an incumbent LEC's DEM weighting factor to increase as well as decrease when its line counts cross one of the thresholds provided in our rules. As described, we find that amending the rules will ensure that similarly situated incumbent LECs will be treated similarly under our rules. Although this will increase the total amount of high-cost universal service support disbursed, we find that the increase will not have a significant effect on the overall size of the universal service fund. We emphasize that this relatively minor change to existing rules is not intended to reflect or prejudge our consideration of LSS as part of any comprehensive universal service reform.

3. Based on the record in this proceeding, we find no basis for continuing to provide different amounts of LSS to otherwise similarly situated incumbent LECs solely because one incumbent LEC had previously exceeded a threshold in our rules but the other had not. The LSS mechanism's existence and design are based on the relative inability of small incumbent LECs to achieve economies of scale in switching costs. A small incumbent LEC that has lost a significant number of lines, causing it to cross a DEM weighting threshold, suffers the same lack of economies of scale. We find that such a carrier should, by the logic underpinning the LSS mechanism, receive support in the same manner as a small incumbent LEC with a line count that never crossed a threshold. There is no evidence that the Commission, at the time it adopted the LSS rules, considered the possibility that small incumbent LECs would lose lines and the effect of line loss on LSS. Indeed, as the Coalition has noted, at that time incumbent LEC lines had grown, almost without exception, for more than 50 years.

4. The Coalition has provided evidence that failing to provide the higher level of LSS has caused or threatens to cause small incumbent LEC some hardship. Many affected carriers reportedly crossed above an access line threshold initially because their subscribers took second lines to access dial-up Internet service, and decreased below the threshold as the carriers deployed, and those same customers adopted, advanced services. We find that our current rules that reduce a carrier's LSS when line counts increase without a corresponding increase in LSS when line counts decrease have caused hardship for some small incumbent LEC and may affect the provision or affordability of service to customers.

5. We also find that amending our rules as proposed would not create undue growth in universal service support that would threaten the fund. The National Exchange Carrier Association (NECA), which collects cost and line count data for many of the carriers that could be affected by theDEM weighting one-way rule, estimates that changing the one-way rule would increase LSS by approximately $27 million per year. The Coalition estimates that the increase would be only $19 million, based on support estimates for 2009. Using NECA's larger estimate would create an increase of approximately 0.3 percent to the total universal service fund, and about 0.6 percent to the high-cost portion of the fund. Although we do not take lightly any increase to the amount of universal service support disbursed, we find that this change will not have a significant impact on the overall size of the fund.

6. CTIA argues that the Commission should not adopt these rule changes because modern switching technology is less expensive and more scalable than traditional circuit switches. We do not take any position on the substance of these arguments, but note that, to the extent they apply, they apply broadly to the entire LSS mechanism and not merely to the rule changes we adopt here. For that reason, we find that CTIA's arguments would be better raised and addressed in a comprehensive universal service reform proceeding. CTIA also argues that the current record fails to address how the proposed change to LSS addresses the principle of affordability in section 254 of the Act. As discussed above, commenters have provided evidence that the rule changes will have minimal effect on the overall size of the universal service fund. Moreover, as stated above, there is record evidence indicating that the current rule has caused some carriers hardship and may impact the provision or affordability of service to customers. In addition, absent these rule changes, similarly situated incumbent LECs will continue to receive disparate amounts of LSS. Therefore, we find that adoption of the rule changes comports with the requirements of the Act that consumers in high-cost areas have access to reasonably comparable services at reasonably comparable rates to those available to consumers in other areas of the country.

7. We conclude that the rule changes we adopt in this report and order should be implemented for the full 2010 LSS funding year. Several parties ask that we make the rule changes effective for 2008 and 2009 because true-ups for those years have yet to occur. We decline to do so. Generally, rules adopted by administrative agencies may be applied prospectively only. The 2008 and 2009 funding years have ended. While it is true that 2008 and 2009 LSS true-ups have yet to be performed, that does not change the fact that the funding periods have passed, and thus, application of the new methodology to those years would be improper retroactive rulemaking. The Coalition's argument that the Commission has made similar changes to future support based on data from earlier periods in the high-cost loop support mechanism is inapplicable in the LSS context. Under the high-cost loop support mechanism, support payments are made based on historical data. For example, 2010 high-cost loop support is calculated based on 2008 cost and loop data. Thus, a similar type of rule change to the high-cost loop support mechanism would necessarily incorporate past year data due to the different calculation and data method used. That is not the case with LSS, which uses projected data for the current funding period. Accordingly, we decline to apply these rule changes to prior LSS funding years. Consistent with comments made by CTIA, however, we modify our proposed rules to make the implementation period explicit in the text of the rules. Additionally, to ensure that ETCs receive disbursements for the current support year as soon as possible under the new rules, we find good cause for the Report and Order to be effective April 8, 2010. Similarly, we grant incumbent LECs that are affected by these rule changes a waiver of the October 1, 2009 deadline by which incumbent LECs must file their 2010 projected data with USAC pursuant to section 54.301(b) of the Commission's rules, and by which states must certify that affected ETCs' support will be used only for the provision, maintenance and upgrading of facilities and services for which the support is intended, if the certifications were not previously filed. Such incumbent LECs and states must file their projected data and certifications with USAC within 60 days of the effective date of this report and order.

8. Finally, we dismiss the Coalition's petition for reconsideration of the2009 Separations Freeze Extension Orderas moot. Specifically, the Coalition asked the Commission to reconsider its decision not to modify the one-way rule when it extended the separations freeze to June 30, 2010. We find that the issues raised in the Coalition's separations reconsideration petition are essentially the same as those raised in its petition for clarification and are wholly addressed in theCoalition Petition Order and LSS NPRMand in this report and order.

9. This document does not contain proposed information collection(s) subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any new or modified “information collection burden for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198,see44 U.S.C. 3506(c)(4).

10. The Regulatory Flexibility Act of 1980, as amended (RFA) requires that a regulatory flexibility analysis be prepared for rulemaking proceedings, unless the agency certifies that “the rule will not have a significant economic impact on a substantial number of small entities.” The RFA generally defines “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A small business concern is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA).

11. In this document, the Commission modifies its LSS rules. Pursuant to the “one-way rule,” a small incumbent LEC receives less LSS when the number of access lines it served increased above certain thresholds, but does not receive more LSS when the number of access lines it served decreased below the same thresholds. In this document, the Commission changes its rules to provide LSS based on the incumbent LEC's current period line counts without regard for whether the LEC's lines had ever exceeded a line-count threshold. This rule change can only provide an incumbent LEC with more universal service support and the administrative burdens associated with complying with the Commission's rules will not change. Therefore, we certify that the requirements of this report and order will not have a significant economic impact on a substantial number of small entities. The Commission will send a copy of the report and order, including a copy of this final certification, in a report to Congress pursuant to the Small Business Regulatory Enforcement Fairness Act of 1996. In addition, this document and this certification will be sent to the Chief Counsel for Advocacyof the Small Business Administration, and will be published in theFederal Register.

12. The Commission will send a copy of the Report and Order in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act.

This is a summary of the Media Bureau'sOrderin MM Docket No. 99-325, adopted January 27, 2010, and released January 29, 2010.

In theFirst Report and Orderin MM Docket No. 99-325 (See67 FR 78193, December 12, 2002), the Commission adopted rules permitting terrestrial radio stations to begin hybrid digital operations, i.e. the simultaneous transmission of analog and digital signals, using the in band-on channel (IBOC) DAB system developed by iBiquity Digital Corporation (iBiquity). As adopted, the IBOC DAB system permitted an FM station to operate with digital effective radiated power (ERP) equal to one percent (1%) of its analog ERP.

In 2007, after over four years of real-world hybrid digital operation by over 1,100 FM stations, it was apparent to both FM station licensees and the IBOC system developer that the coverage from an FM station's hybrid digital facilities was significantly less than the coverage from its analog facilities, and that this digital coverage shortfall was a direct result of the very low FM digital ERP permitted. Several FM station licensees and the IBOC system developer undertook an experimental field test program to determine the FM digital ERP required for hybrid digital coverage to replicate analog coverage. Based on their results, in June 2008, a group of FM stations licensees and FM transmission equipment manufacturers (Joint Parties) submitted a technical report of these studies prepared by iBiquity, and asked the Commission to increase maximum permissible FM digital ERP to ten percent (10%) of analog ERP for nearly all FM stations. The Joint Parties also requested that the Commission establish procedures toinvestigate and resolve allegations of harmful interference from increased power digital operations. Shortly thereafter, National Public Radio (NPR) submitted a technical study disputing the results of the iBiquity study and opposing an unqualified increase in FM digital ERP based on its prediction of substantial interference to authorized analog FM operations. The Commission sought public comment on issues and technical studies related to the proposed FM digital ERP increase by Public Notice DA 08-2340 on October 23, 2008, and Public Notice DA 09-1127 on May 22, 2009 (See74 FR 27985, June 12, 2009). Over 60 parties filed comments in response to each of these notices. In November 2009, NPR filed an additional technical study. Based on the results of that study, NPR reached an agreement with iBiquity on an increase in FM Digital ERP acceptable to both parties. NPR and iBiquity jointly filed this agreement, along with their proposal requesting that the Commission permit a blanket increase in FM Digital ERP to four percent (4%) of analog ERP for all FM stations except those with licensed facilities exceeding their allowable class maximum, and permit FM stations meeting certain criteria to increase digital ERP up to a maximum of 10% of analog ERP. Additionally, they requested that the Commission adopt specific procedures and requirements to address and resolve complaints of interference to licensed full-service analog FM stations resulting from increased FM digital ERP operation, and asked that the Commission reserve the right to revisit the FM digital ERP increase issue should harmful interference be widespread.

Based on seven years of hybrid digital operation by over 1,500 FM stations that were free of well-documented interference complaints, and review and analysis of detailed technical studies and voluminous public comments submitted to the Commission, the Media Bureau concluded that it is necessary and prudent to increase maximum permissible FM digital ERP to improve FM digital coverage, and to eliminate regulatory impediments to FM digital radio's ability to realize its full potential and deliver its promised benefits. Specifically, thisOrdertakes the following actions:

1. Increases maximum permissible hybrid FM digital ERP to 10% of authorized analog power.

2. Permits most FM stations to immediately commence operation with FM digital ERP equal to 4% of authorized analog power without prior approval from the Commission.

3. Establishes application procedures for FM stations desiring to increase FM digital ERP to more than 4% of authorized analog ERP.

4. Establishes interference remediation procedures that require the Media Bureau to review and resolve eachbona fideinterference complaint within 90 days of Bureau receipt of the complaint, and details required tiered digital ERP reductions for the alleged interfering digital station should the Bureau fail to act in the allowable 90-day period.

5. Reserves the right of the Commission to revisit the issue of FM digital ERP levels if harmful and significant interference results to existing analog FM operations.

The full text of this document and all related documents are available for public inspection and copying during regular business hours in the Commission's Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554, and may also be purchased from the Commission's copy contractor, BCPI, Inc., Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554. Customers may contact BCPI, Inc. via their Web site,http://www.bcpi.com,or by telephone at 1-800-378-3160. Additionally, all documents are available for download using the Commission's Electronic Comment Filing System athttp://fjallfoss.fcc.gov/ecfs/. This document is available in alternative formats (computer diskette, large print, audio record and Braille). Persons with disabilities who need documents in these formats may contact Brian Millin at (202) 418-7426 (voice), (202) 418-7365 (TTY), or via e-mail atBrian.Millin@fcc.gov.

Final Paperwork Reduction Act Analysis.ThisOrderadopts a new or revised information collection requirement(s) subject to the Paperwork Reduction Act of 1995 (“PRA”), Public Law 104-13 (44 U.S.C. 3501-3520). The requirement will be submitted to the Office of Management and Budget (OMB) for review under section 3507 of the PRA. The Commission published a separate notice in theFederal Registerinviting comment on the new or revised information collection requirement(s) adopted in this document (See75 FR 10266, March 5, 2010). The requirement(s) will not go into effect until OMB has approved it and the Commission has published a notice announcing the effective date of the information collection requirement(s). In addition, we note that pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), we previously sought specific comment on how the Commission might “further reduce the information collection burden for small business concerns with fewer than 25 employees.” We find that the modified information collection requirements must apply fully to small entities (as well as to others) to ensure compliance with our FM rules, as described in the Report and Order.

Final Regulatory Flexibility Act Analysis.As required by the Regulatory Flexibility Act (RFA),1 as amended, an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the FM Digital Power Increase and Associated Technical Studies Notice of Proposed Rules in this proceeding (See74 FR 27985, June 12, 2009). The Commission sought written public comment on the proposals in the Notice of Proposed Rules section, including comment on the IRFA. The Commission received no comments specifically on the IRFA. This Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA.

Need For and Objectives of the Proposed Rules. The Commission's current rules limit the maximum permissible digital effective radiated power for FM stations (FM Digital ERP) to 1 percent of a station's authorized analog effective radiated power (Analog ERP) (20 decibels below carrier (−20 dBc)). Operating pursuant to that limitation, many stations have observed deficiencies in their digital signal coverage as compared to the coverage of their analog signal, particularly with regard to portable and indoor listening. A group consisting of 18 broadcasters that operate over 1200 commercial and noncommercial educational (NCE) FM radio stations throughout the United States and the 4 largest manufacturers of broadcast transmission equipment, collectively identifying themselves as the “Joint Parties,” filed with the Commission a request that the maximum permissible FM Digital ERP be increased to 10 percent of a station's authorized Analog ERP (−10 dBc) to allow stations to improve their digital coverage (Joint Parties' Request). Filed concurrently with and in support of the Joint Parties' Request was a technical report on the proposed increase, prepared by iBiquity Digital Corporation (“iBiquity”). National Public Radio(NPR) subsequently submitted its Corporation for Public Broadcasting (CPB)-supported research on FM digital radio coverage and interference at higher power levels and expressed its opposition to the Joint Parties' Request, citing interference concerns. The Media Bureau (Bureau) issued a public notice seeking comment on the Joint Parties' Request and the iBiquity and NPR technical studies.2

NPR subsequently announced that it would complete additional studies on FM DAB at higher power levels, which it stated would be released in September 2009. The Bureau thereafter issued a second public notice in which it specifically asked whether an increase in maximum authorized FM digital operating power is warranted, and whether it should defer consideration of a power increase until completion of and comment on the further NPR studies.3 In response, the majority of commenters stated that improvements to FM digital coverage are necessary for the successful consumer adoption of FM DAB technology. Some commenters stated, however, that the Bureau should delay any increase until completion of and comment on the further NPR studies, in order to ensure that higher-powered digital operation does not cause unacceptable interference to first adjacent analog stations.

On November 4, 2009, NPR submitted the results of its additional FM Digital ERP increase studies, “Report to the FCC on the Advanced IBOC Coverage and Compatibility Study” (AICCS Project Report), to the Commission. Based on its AICCS Project Report findings, NPR concluded that a blanket 6 dB increase in FM Digital ERP (from −20 dBc to −14 dBc) was acceptable for most FM stations, and that using a formula it developed based on its testing, certain FM stations could increase FM Digital ERP up to a maximum of 10 dB (from −20 dBc to −10 dBc).

Based on the results of the AICCS Project Report and the five years of generally interference-free FM hybrid digital operations by approximately 1500 stations, theOrderadopts rule changes to allow eligible authorized FM stations to commence operation of FM digital facilities with operating power up to −14 dBc upon notice to the Commission (licensees of a super-powered FM station4 must file an informal request for any increase in the station's FM Digital ERP). The rule changes will further allow licensees to submit an application to the Media Bureau, in the form of an informal request, for any increase in FM Digital ERP beyond 6 dB. Licensees submitting such a request must use a simplified method set forth in theOrderto determine the proponent station's maximum permissible FM Digital ERP. In situations where the simplified method is not applicable due to unusual terrain or other environmental or technical considerations or when it produces anomalous FM Digital ERP results, the Bureau will accept applications for FM Digital ERP in excess of −14 dBc. Such an application must be accompanied by a detailed showing containing a complete explanation of the prediction methodology used as well as data, maps and sample calculations. The Media Bureau will evaluate these applications on a case-by-case basis. Finally, theOrderimplements interference mitigation and remediation procedures to resolve promptly allegations of digital interference to an authorized FM analog facility resulting from an FM Digital ERP power increase undertaken pursuant to the procedures adopted in theOrder.Specifically, if an analog FM station is receiving verifiable listener complaints of interference within its protected contour from FM digital facilities operating with FM Digital ERP in excess of −20 dBc, the licensee of the affected analog FM station must contact the licensee of the station operating the FM digital facilities. Stations are required to work cooperatively to confirm the instances of interference. If the stations fail to reach agreement on appropriate interference remediation measures, the licensee of the affected analog FM station may file an interference complaint with the Bureau.

The rule changes adopted in theOrderbalance the pressing need for improved FM digital coverage with the continued need to limit interference to first-adjacent analog stations. The rules will allow an FM station's digital signal to more closely approximate the coverage of their analog signal, improving service to listeners, and provide a detailed mechanism for resolving interference complaints, thus providing regulatory certainty as this relatively new service continues to develop.

Summary of Significant Issues Raised by Public Comments in Response to the IRFA.In the IRFA, the Bureau sought comment regarding how small entities would be affected if the Commission were to adopt an increase in maximum digital operating power, whether such adoption could result in the disparate treatment of small entities with limited financial and/or technical resources, and any information on alternative approaches to alleviate any potential burdens on small entities. The Commission received no comments specifically in response to the IRFA.

Description and Estimate of the Number of Small Entities to Which the Proposed Rules Will Apply. The RFA directs the Commission to provide a description of and, where feasible, an estimate of the number of small entities that will be affected by the proposed rules.5 The RFA generally defines the term “small entity” as encompassing the terms “small business,” “small organization,” and “small governmental entity.”6 In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act.7 A small business concern is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA).8 The proposed rules and policies potentially will apply to all FM radio broadcasting licensees and potential licensees.

The SBA defines a radio broadcasting station that has $7 million or less in annual receipts as a small business.9 A radio broadcasting station is an establishment primarily engaged in broadcasting aural programs by radio to the public.10 Included in this industry are commercial, religious, educational, and other radio stations.11 Radio broadcasting stations which primarily are engaged in radio broadcasting and which produce radio program materialsare similarly included.12 According to Commission staff review of the BIA Financial Network, Inc. Media Access Radio Analyzer Database as of February 19, 2009, about 10,600 (96 percent) of 11,050 commercial radio stations in the United States have revenues of $7 million or less. We note that many radio stations are affiliated with much larger corporations having much higher revenue. Our estimate, therefore, likely overstates the number of small entities that might be affected by our action.

Description of Projected Reporting, Recordkeeping and Other Compliance Requirements.The increase of FM Digital ERP as authorized in theOrderis at the option of the licensee. As noted above, a broadcast licensee may opt not to increase its power and will thus incur no costs. To the extent that a licensee chooses to increase its digital operating power, the associated burdens and costs depend on the nature of the increase. The rule changes will allow eligible authorized FM stations to commence operation of FM digital facilities with operating power up to −14 dBc upon notice to the Commission. The rule changes will further allow licensees to submit an application to the Media Bureau, in the form of an informal request, for any increase in FM Digital ERP beyond 6 dB (or, in the case of super-powered stations, any increase in its Digital ERP). Licensees submitting such a request must use a simplified method set forth in theOrderto determine the proponent station's maximum permissible FM Digital ERP. In situations where the simplified method is not applicable due to unusual terrain or other environmental or technical considerations or when it produces anomalous FM Digital ERP results, the Bureau will accept applications for FM Digital ERP in excess of −14 dBc on a case-by-case basis when accompanied by a detailed showing containing a complete explanation of the prediction methodology used as well as data, maps and sample calculations.

Steps Taken to Minimize Significant Impact on Small Entities, and Significant Alternatives Considered. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.13

In theOrder,we take actions that may affect FM stations that are small entities by providing them the opportunity to operate at higher digital power levels. Prior to the instant rule changes, broadcasting in digital was optional for FM stations, and it will remain optional for FM stations following the rule changes. As a result, FM radio stations of all sizes may choose to take no action in response to the rule changes. In addition, FM radio stations already broadcasting in digital will not be required to take any action under the new rule if they continue operation at one percent of their Analog ERP levels, the maximum FM Digital ERP previously authorized, because the authorized increases in FM Digital ERP adopted in theOrderare voluntary. In other words, small entities may continue to operate as authorized prior to today's rule changes if they lack, for instance, the resources to make investments in equipment necessary to implement a digital power increase. We acknowledge that an argument could be made by smaller entities that they could face an unacceptable disproportionate burden because of a comparative lack of capital and other resources. This argument suggests that the adopted rule changes places smaller entities at a resultant disadvantage in relation to larger entities. However, we reject such an argument because allowing such voluntary upgrades will ultimately provide: (1) Improved digital coverage; (2) the advancement of digital radio technology; (3) increased listenership; (4) greater regulatory certainty; (5) flexibility to licensees in the timing and scope of the rollout of their digital radio services; and (6) the facilitation of informed decisions regarding equipment purchases that will best serve licensees' needs. Allowing licensees to voluntarily increase their Digital ERP will, in the long run, prove to impose a lesser burden on smaller entities than alternative measures, such as making digital power increases compulsory or prohibiting increases altogether. In light of these considerations, the Bureau has determined that the rule changes will not have a significant disproportionate impact on small entities.

Report to Congress.The Commission will send a copy of thisOrder,including the FRFA, in a report to be sent to Congress and the Government Accountability Office pursuant to the SBREFA.14

The authority for the actions taken in thisOrderis contained in sections 1, 4(i), 301, 302, 303, 307, 308, 309, 319, and 324 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 301, 302, 303, 307, 308, 309, 319, and 324, as well as the authority delegated to the Media Bureau by the Commission in theSecond Report and Order ( See72 FR 45670, August 15, 2007) in this proceeding.