I. Authority and Rulemaking Background

The Energy Policy and Conservation Act of 1975 (EPCA; 42 U.S.C. 6291-6309, as codified), as amended, authorizes DOE to issue a direct final rule (DFR) establishing an energy conservation standard on receipt of a statement submitted jointly by interested persons that are fairly representative of relevant points of view (including representatives of manufacturers of covered products, States, and efficiency advocates) as determined by the Secretary of Energy (Secretary). EPCA further requires that a statement contain recommendations with respect to an energy conservation standard that are in accordance with the provisions of 42 U.S.C. 6295(o). A notice of proposed rulemaking (NOPR) that proposes an identical energy conservation standard must be published simultaneously with the final rule, and DOE must provide a public comment period of at least 110 days on the direct final rule. 42 U.S.C. 6295(p)(4). Not later than 120 days after issuance of the direct final rule, if one or more adverse comments or an alternative joint recommendation are received relating to the direct final rule, the Secretary must determine whether the comments or alternative recommendation may provide a reasonable basis for withdrawal under 42 U.S.C. 6295(o) or other applicable law. If the Secretary makes such a determination, DOE must withdraw the direct final rule and proceed with the simultaneously published NOPR. DOE must publish in theFederal Registerthe reasons why the direct final rule was withdrawn.Id.

During the rulemaking proceeding to consider amending energy conservation standards for residential furnaces and residential central air conditioners and heat pumps, DOE received the “Agreement on Legislative and Regulatory Strategy for Amending Federal Energy Efficiency Standards, Test Procedures, Metrics and Building Code Provisions for Residential Central Air Conditioners, Heat Pumps, Weatherized and Non-Weatherized Furnaces and Related Matters” (the “Joint Petition” or “Consensus Agreement”), a comment submitted by representatives of the American Heating and Refrigeration Institute (AHRI), American Council for an Energy-Efficient Economy (ACEEE), Alliance to Save Energy (ASE), Natural Resources Defense Council (NRDC), Appliance Standard Awareness Project (ASAP), Northeast Energy Efficiency Partnerships (NEEP), Northwest Power and Conservation Council (NPCC), California Energy Commission (CEC), Bard Manufacturing Company Inc., Carrier Residential and Light Commercial Systems, Goodman Global Inc., Lennox Residential, Mitsubishi Electric & Electronics USA, National Comfort Products, Rheem Manufacturing Company, and Trane Residential (collectively, the “Joint Petitioners”). This collective set of comments1 recommends specific energy conservation standards for residential furnaces, central air conditioners, andheat pumps that, in the commenters' view, would satisfy the EPCA requirements at 42 U.S.C. 6295(o). Numerous interested parties, including signatories of the Consensus Agreement, as well as other parties, expressed support for DOE adoption of the Consensus Agreement both at a public hearing and in written comments on the furnaces and central air conditioners rulemakings.

After careful consideration of the Consensus Agreement, the Secretary determined that it was submitted by interested persons who are fairly representative of relevant points of view on this matter. DOE noted in the direct final rule that Congress provided some guidance within the statute itself by specifying that representatives of manufacturers of covered products, States, and efficiency advocates are relevant parties to any consensus recommendation. (42 U.S.C. 6295(p)(4)(A)) As delineated above, the consensus agreement was signed and submitted by a broad cross-section of the manufacturers who produce the subject products, their trade associations, and environmental, energy efficiency, and consumer advocacy organizations. One State entity was a party to the Consensus Agreement, and no State expressed any opposition to the Consensus Agreement from the time of its submission to DOE through the close of the comment period on the direct final rule. Moreover, DOE stated in the direct final rule that it does not interpret the statute as requiring absolute agreement among all interested parties before DOE may proceed with issuance of a direct final rule. By explicit language of the statute, the Secretary has discretion to determine when a joint recommendation for an energy or water conservation standard has met the requirement for representativeness (i.e.,“as determined by the Secretary”). Accordingly, DOE determined that the consensus agreement was made and submitted by interested persons fairly representative of relevant points of view.

Pursuant to 42 U.S.C. 6295(p)(4), the Secretary must also determine whether a jointly submitted recommendation for an energy or water conservation standard is in accordance with 42 U.S.C. 6295(o) or 42 U.S.C. 6313(a)(6)(B), as applicable. As stated in the direct final rule, this determination is exactly the type of analysis DOE conducts whenever it considers potential energy conservation standards pursuant to EPCA. DOE applies the same principles to any consensus recommendations it may receive to satisfy its statutory obligation to ensure that any energy conservation standard that it adopts achieves the maximum improvement in energy efficiency that is technologically feasible and economically justified and will result in significant conservation of energy. Upon review, the Secretary determined that the Consensus Agreement submitted in the instant rulemaking comports with the standard-setting criteria set forth under 42 U.S.C. 6295(o). Accordingly, the Consensus Agreement levels, included as trial standard level (TSL) 4 for both residential furnaces and residential central air conditioners and heat pumps, were adopted as the amended standard levels in the direct final rule.

In sum, as the relevant statutory criteria were satisfied, the Secretary adopted the amended energy conservation standards for residential furnaces and residential central air conditioners and heat pumps set forth in the direct final rule. These standards are set forth in Table I.1 and Table I.2. The standards apply to all products listed in Table I.1 and Table I.2 that are manufactured in, or imported into, the United States on or after May 1, 2013 for non-weatherized gas and oil-fired furnaces and mobile home furnaces and on or after January 1, 2015 for weatherized gas furnaces and central air conditioners and heat pumps. These compliance dates were set forth in the direct final rule published in theFederal Registeron June 27, 2011. 76 FR 37408. For a detailed discussion of DOE's analysis of the benefits and burdens of the amended standards pursuant to the criteria set forth in EPCA, please see the direct final rule. 76 FR 37408 (June 27, 2011).

As required by EPCA, DOE also simultaneously published a NOPR proposing the identical standard levels contained in the direct final rule. As discussed in this section, DOE considered whether any adverse comment received during the 110-day comment period following the direct final rule provided a reasonable basis for withdrawal of the direct final rule and continuation of this rulemaking under the NOPR. As noted in the direct final rule, it is the substance, rather than the quantity, of comments that will ultimately determine whether a direct final rule will be withdrawn. To this end, DOE weighs the substance of any adverse comment(s) received against the anticipated benefits of the Consensus Agreement and the likelihood that further consideration of the comment(s) would change the results of the rulemaking. DOE notes that to the extent an adverse comment had been previously raised and addressed in the rulemaking proceeding, such a submission will not typically provide a basis for withdrawal of a direct final rule.

Discussion

We are publishing in theFederal Registeran amendment adopting Emergency AD 2010-26-52, issued December 10, 2010 (EAD 2010-26-52), which was sent to all known owners and operators of BHT Model 204B, 205A, 205A-1, 205B, 210, 212, 412, 412CF, and 412EP helicopters with certain blades installed. EAD 2010-26-52 supersedes AD 2007-19-53, Amendment 39-15265 (72 FR 65224, November 20, 2007) issued October 31, 2007 (AD 2007-19-53). AD 2007-19-53 required, before further flight, replacing certain blades with airworthy blades. That action was prompted by three reports of blade tip weights being slung from the blades during flights, causing significant vibration. We issued AD 2007-19-53 on a limited number of blades to address this unsafe condition, which could result in the loss of the blade tip weight, loss of a blade, and subsequent loss of control of the helicopter.

Since we issued AD 2007-19-53, another incident occurred in which the blade tip weight separated from a blade during flight, causing vibration. This incident led to the determination that additional blades could be affected and these blade numbers should be added to the applicability section of the AD. We issued superseding EAD 2010-26-52 which retains the same requirements of AD 2007-19-53, but adds new blade P/Ns and S/Ns to the applicability.

We have reviewed the following revised BHT Alert Service Bulletins (ASBs), all dated November 22, 2010 except for ASB No. 204-07-61. Each ASB contains a Rotor Blades Inc. (RBI) letter that adds blade P/Ns and S/Ns to the RBI list.

• No. 204-07-61, Revision A, dated September 19, 2007, for Model 204 helicopters;

• No. 205-07-95, Revision B, for Model 205 helicopters;

• No. 205B-07-46, Revision B, for Model 205B helicopters;

• No. 212-07-125, Revision B, for Model 212 helicopters;

• No. 412CF-07-30, Revision B, for Model 412CF helicopters;

• No. 412-07-123, Revision B, for Model 412 and 412EP helicopters.

We are issuing this AD because we evaluated all relevant information and determined the unsafe condition described previously is likely to exist or develop on other helicopters of the same type designs. We have also determined that Emergency AD 2010-26-52 contained an incorrect Alert Service Bulletin (ASB) number for the Model 412CF helicopters in the preamble discussion. Therefore, we are making a change to this AD to correct the ASB number. We have also made other minor editorial changes to this AD, including reorganizing the Applicability table. We have determined that these changes do not increase the economic burden on any AD operator nor do they increase the scope of the AD.

This AD requires, before further flight, unless already accomplished, replacing any affected blade with an airworthy blade. An airworthy blade is one that has a P/N and S/N not included in the Applicability section of this AD. Affected blades are those having a P/N and S/N as follows:

An unsafe condition exists that requires the immediate adoption of this AD. The short compliance time of before further flight justifies waiving notice and comment prior to adoption of this rule because the unsafe condition described previously is likely to exist or develop on other helicopters of the same type designs. Therefore, we find that notice and opportunity for prior public comment are impracticable and that good cause exists for making this amendment effective in less than 30 days.

This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment. However, we invite you to send any written data, views, or arguments about this AD. Send your comments to an address listed under theADDRESSESsection. Include the docket number FAA-2011-1041 and Directorate Identifier 2010-SW-109-AD at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD because of those comments.

We will post all comments we receive, without change, tohttp://www.regulations.gov,including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this AD.

We estimate that this AD affects 265 helicopters of U.S. registry. We estimate the following costs to comply with this AD:

This cost estimate is based on the assumption that all affected helicopters will be inspected, and 35 helicopters will have a blade replaced. The manufacturer has indicated that some of the costs associated with this AD may be covered under a warranty program, but this AD has not considered this warranty program when calculating total costs on U.S. operators.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that this AD:

(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),

(3) Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction; and

(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR Part 39 as follows:

History

On July 25, 2011, the FAA published in theFederal Registera notice of proposed rulemaking to amend Class E airspace at Fayette, AL (76 FR 44285) Docket No. FAA-2011-0559. Subsequent to publication, the FAA found that the geographic coordinates needed to be adjusted. This action makes that adjustment. 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 7400.9V dated August 9, 2011, and effective September 15, 2011, 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. With the exception of editorial changes, and the changes described above, this rule is the same as that proposed in the NPRM.

This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 amends the Class E airspace extending upward from 700 feet above the surface at Fayette, AL to accommodate the new Standard Instrument Approach Procedures developed for Richard Arthur Field. The Fayette NDB has been decommissioned, and the NDB approach cancelled. The existing Class E airspace extending upward from 700 feet above the surface is being modified for the safety and management of IFR operations. This action also updates the geographic coordinates to be in concert with the FAAs aeronautical database, and notes the airport's name change from Richard Arthur Field Airport to Richard Arthur Field.

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, is non-controversial and unlikely to result in adverse or negative comments. It, therefore, (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 United States Code. Subtitle I, 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 at Richard Arthur Field, Fayette, AL.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:

On July 21, 2011, the FAA published in theFederal Registera notice of proposed rulemaking to amend Class E airspace for Valley City, ND, reconfiguring controlled airspace at Barnes County Municipal Airport (76 FR 43613) Docket No. FAA-2011-0605. 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 7400.9V dated August 9, 2011, and effective September 15, 2011, which is incorporated by reference in 14 CFR part 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 extending upward from 700 feet above the surface for the Valley City, ND area. Decommissioning of the Valley City NDB and cancellation of the NDB approach at Barnes County Municipal Airport has made reconfiguration of the airspace necessary for the safety and management of IFR operations at the airport.

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 at Barnes County Municipal Airport, Valley City, ND.

Airspace, Incorporation by reference, Navigation (air).

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR Part 71 as follows:

On July 21, 2011, the FAA published in theFederal Registera notice of proposed rulemaking to amend Class E airspace for Bryan, OH, reconfiguring controlled airspace at Williams County Airport (76 FR 43614) Docket No. FAA-2011-0606. 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 7400.9V dated August 9, 2011, and effective September 15, 2011, which is incorporated by reference in 14 CFR Part 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 extending upward from 700 feet above the surface for the Bryan, OH, area. Decommissioning of the Bryan NDB and cancellation of the NDB approach at Williams County Airport has made reconfiguration of the airspace necessary for the safety and management of IFR operations at the airport.

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 at Williams County Airport, Bryan, OH.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR Part 71 as follows:

On August 22, 2011, the FAA published in theFederal Registera notice of proposed rulemaking to amend Class E airspace at Jacksonville, NC (76 FR 52291). Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received. Subsequent to publication, the FAA found that the geographic coordinates for Albert J. Ellis Airport needed to be adjusted. This action makes that adjustment. Class E airspace designations are published in paragraphs 6002 and 6005 of FAA Order 7400.9V dated August 9, 2011, and effective September 15, 2011, 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 amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 amends Class E surface area airspace and Class E airspace extending upward from 700 feet above the surface at Jacksonville, NC, to provide the controlled airspace required to accommodate the new Area Navigation (RNAV) Global Positioning System (GPS) Standard Instrument Approach Procedures developed for Albert J. Ellis Airport. This action is necessary for the safety and management of IFR operations at the airport. This action also adjusts the geographic coordinates of the airport to be in concert with the FAAs aeronautical database

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, is non-controversial and unlikely to result in adverse or negative comments. It, therefore, (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 United States Code. Subtitle I, 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 at Albert J. Ellis Airport, Jacksonville, NC.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR Part 71 as follows:

On July 21, 2011, the FAA published in theFederal Registera notice of proposed rulemaking to amend Class E airspace for Evansville, IN, creating controlled airspace at Evansville Regional Airport (76 FR 43615) Docket No. FAA-2011-0429. 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 7400.9V dated August 9, 2011, and effective September 15, 2011, which is incorporated by reference in 14 CFR Part 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 creating additional Class E airspace extending upward from 700 feet above the surface for new standard instrument approach procedures at Evansville Regional Airport, Evansville, IN. This action is necessary for the safety and management of IFR operations at the airport.

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 for Evansville Regional Airport, Evansville, IN.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR Part 71 as follows:

On July 21, 2011, the FAA published in theFederal Registera notice of proposed rulemaking to amend Class E airspace for Sturgis, SD, creating controlled airspace at Sturgis Municipal Airport (76 FR 43612) Docket No. FAA-2011-0430. 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 7400.9V dated August 9, 2011, and effective September 15, 2011, which is incorporated by reference in 14 CFR Part 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 creating additional Class E airspace extending upward from 700 feet above the surface for new standard instrument approach procedures at SturgisMunicipal Airport, Sturgis, SD. This action is necessary for the safety and management of IFR operations at the airport.

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 for Sturgis Municipal Airport, Sturgis, SD.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR Part 71 as follows:

The Entity List provides notice to the public that certain exports, reexports, and transfers (in-country) to parties identified on the Entity List require a license from the Bureau of Industry and Security (BIS), and that availability of license exceptions in such transactions is limited. Persons are placed on the Entity List on the basis of criteria set forth in certain sections of part 744 (Control Policy: End-User and End-Use Based) of the EAR.

The End-User Review Committee (ERC), composed of representatives of the Departments of Commerce (Chair), State, Defense, Energy and, where appropriate, the Treasury, makes all decisions regarding additions to, removals from or changes to the Entity List. The ERC makes all decisions to add an entry to the Entity List by majority vote, and all decisions to remove or modify an entry by unanimous vote.

The ERC made a determination to add fifteen persons under twenty-five entries to the Entity List on the basis of section 744.11 (License Requirements that Apply to Entities Acting Contrary to the National Security or Foreign Policy Interests of the United States) of the EAR. The twenty-five entries added to the Entity List consist of five new entries in China, seven new entries in Hong Kong, three new entries in Iran, and ten new entries in Singapore. Ten of the entries are for persons with addresses in more than one of the countries (Iran, China, Hong Kong, and Singapore) at issue.

The ERC reviewed the criteria for revising the Entity List (section 744.11(b) of the EAR) in making the determination to add these persons to the Entity List. These criteria establish how to add to the Entity List those entities that, based on specific and articulable facts there is reasonable cause to believe, have been involved, are involved, or pose a significant riskof being or becoming involved in activities that are contrary to the national security or foreign policy interests of the United States, and those acting on behalf of such entities. (section 744.11 of the EAR). Paragraphs (b)(1)-(b)(5) of section 744.11 of the EAR (detailed below) include an illustrative list of activities that could be contrary to the national security or foreign policy interests of the United States. The persons being added to the Entity List under this rule have been determined by the ERC to be involved in activities that could be contrary to the national security or foreign policy interests of the United States.

Examples of the specific activities these persons were involved in that are contrary to the national security or foreign policy interests of the United States pursuant to section 744.11 are, as follows: Eight of the fifteen persons are being added based on evidence that they have engaged in actions that could enhance the military capability of Iran, a country designated by the U.S. Secretary of State as having repeatedly provided support for acts of international terrorism, and of militant insurgents operating in Iraq against the U.S. military. These persons are also added because their overall conduct poses a risk of ongoing EAR violations. These persons are as follows: Corezing International, Hia Soo Gan Benson, Hossein Ahmad Larijani, Lim Kow Seng, Lim Yong Nam, NEL Electronics Pte Ltd, Paya Electronic Complex, and Wong Yuh Lan. These parties participate in a complex and layered network that has engaged in complicated and long-term schemes to divert U.S.-origin items through deceptive actions, including shifting/circuitous routes and false or omitted information on shipping documentation, and to conceal these deceptive activities. The parties, while not all under the same ownership and management, are interrelated and work toward the same objective: Obtaining items that are subject to the Export Administration Regulations (EAR) for shipment to Iran and/or to China without the required Department of Commerce licenses, and obtaining items subject to the International Traffic in Arms Regulations (ITAR), which require licenses to all foreign destinations, for shipment without license. Among other activities, this procurement network arranged for the transhipment of EAR-controlled radio frequency modules from the United States through Singapore to Iran, for use in Improvised Explosive Devices (IED) found in Iraq. The procurement network also obtained ITAR-controlled antennas, designed for use in military radars and aircraft, and exported them to Singapore and Hong Kong. Additionally, the procurement network transhipped a range of U.S.-origin goods, including acrylic polymers and fiberglass tape, through Hong Kong to Iran. In the case of many of the eight individuals, they engaged in the described activities despite information indicating that they had knowledge of U.S. export control laws and regulations.

The remaining seven persons (Action Global, Amaze International, Luo Jie, OEM Hub Co Ltd., Parto System Tehran, Surftech Electronics, and Zhou Zhenyong) are being added based on evidence that they have engaged in actions facilitating the activities of the procurement network, as described in the paragraph above. Specific examples of each of the eight persons' activities are described in the paragraphs below.

Action Global, Amaze International and OEM Hub Co., Ltd., all Hong Kong entities, are being added based on specific information indicating that they serve as front companies for other entities named in this rule, including Corezing International, and therefore pose an imminent risk of violating the EAR. Action Global is also being added on the basis of information indicating that it was involved with the diversion of U.S.- origin items from Hong Kong to Iran.

Luo Jie, a Chinese national and a director of Corezing International, Action Global and Amaze International, is being added on the basis of information indicating that she was specifically involved in the procurement and attempted procurement of U.S. power amplifiers intended for end-users in China, as well as in the diversion of various U.S.-origin goods through Hong Kong to Iran. Luo's involvement in these activities is in contrast to her demonstrated knowledge of U.S. export control laws and regulations.

Parto Systems Tehran, an Iranian freight forwarder, is being added based on information indicating that it was involved in the diversion of U.S.-origin items to Iran. BIS also has information indicating that Parto Systems Tehran is closely associated with Hossein Ahmad Larijani.

Surftech Electronics, a Singapore corporation established by Hia Soo Gan Benson, is co-located with Corezing International. BIS has information indicating that Surftech Electronics sought to purchase certain U.S.-origin items for shipment to Iran, a country designated by the U.S. Secretary of State as having repeatedly provided support for acts of international terrorism. The illustrative criteria included in section 744.11 under paragraph (b)(2) for adding persons to the Entity List includes actions that could enhance the military capability of, or the ability to support terrorism of governments that have been designated by the Secretary of State as having repeatedly provided support for acts of international terrorism.

Zhou Zhenyong, who is believed to be a Chinese national or from Hong Kong and a director of Corezing International, is being added based on information that he was specifically involved in the procurement and attempted procurement of U.S.-origin items, including U.S.-origin munitions items destined for end-users in China and/or Iran, and contrary to the national security or foreign policy interests of the United States. BIS's information indicates that Zhou engaged in these activities despite knowledge of U.S. export control laws and regulations.

This rule implements the decision of the ERC to add fifteen persons under twenty-five entries to the Entity List on the basis of section 744.11 of the EAR. For all of the fifteen persons under twenty-five entries added to the Entity List, the ERC specified a license requirement for all items subject to the EAR and established a license application review policy of a presumption of denial. A BIS license is required to export, reexport or transfer (in-country) any item subject to the EAR to any of the persons listed above and described below in further detail, including any transaction in which any of the listed persons will act as purchaser, intermediate consignee, ultimate consignee, or end-user of the items. This listing of these persons also prohibits the use of license exceptions (seepart 740 of the EAR) for exports, reexports and transfers (in-country) of items subject to the EAR involving such persons.

Specifically, this rule adds the following fifteen persons under twenty-five entries to the Entity List:

(1)Corezing International, (a.k.a. CoreZing Electronics, Corezing International Group Company, Corezing International Pte Ltd, Corezing Technology Pte Ltd and Core Zing),Room 1007, Block C2, Galaxy Century Bldg., CaiTian Rd., FuTian District, Shenzhen, China;andRoom 1702, Tower B, Honesty Building, Humen, Dongguan, Guangdong, China (See alternate addresses under Hong Kong and Singapore);

(2)Lim Yong Nam, (a.k.a. Lin Rongnan, Steven Lim and Yong NamLim),YuJingHuaCheng Huaqiang South Road Futian, Shenzhen, China 518033;andRoom 2613, NanGuangJieJia Building ShenNan Road, FuTian, Shenzhen, China 518033 (See alternate addresses under Singapore);

(3)Luo Jie, (a.k.a. Cherry, Ivy Luo and Jie Luo),Room 1007, Block C2, Galaxy Century Bldg., CaiTian Rd., FuTian District, Shenzhen, China;andRoom 1702, Tower B, Honesty Building, Humen, Dongguan, Guangdong, China (See alternate addresses under Hong Kong);

(4)NEL Electronics, (a.k.a. NEL Electronics Pte Ltd),14K Block 2 YuJingHuaCheng Huaqiang South Road FuTian, Shenzhen, China 518033;andRoom 2613, NanGuangJieJia Building ShenNan Road, FuTian, Shenzhen, China 518033 (See alternate addresses under Singapore); and

(5)Zhou Zhenyong, (a.k.a. Benny Zhou and Zhenyong Zhou),Room 1007, Block C2, Galaxy Century Bldg., CaiTian Rd., FuTian District, Shenzhen, China;andRoom 1702, Tower B, Honesty Building, Humen, Dongguan, Guangdong, China (See alternate addresses under Hong Kong).

(1)Action Global, (a.k.a. Action Global Co., Limited),C/O Win Sino Flat 12, 9/F, PO Hong Centre, 2 Wang Tung Street, Kowloon Bay, KLN, Hong Kong;andFlat/RM 1510A, 15/F Ho King COMM Ctr, 2-16 Fa Yuen Street, Mongkok KL, Hong Kong (See alternate address under Singapore);

(2)Amaze International,Flat/Rm D, 11/F 8 Hart Avenue 8-10 Hart Avenue, Tsim Sha Tsui KL, Hong Kong (See alternate address under Singapore);

(3)Corezing International, (a.k.a. CoreZing Electronics, Corezing International Group Company, Corezing International Pte Ltd, Corezing Technology Pte Ltd and Core Zing),G/F, No. 89, Fuyan Street, Kwun Tong, Hong Kong;andFlat 12, 9F Po Hong Kong, 2 Wang Tung Street, Kowloon Bay, Hong Kong;andFlat/RM B 8/F, Chong Ming Bldg., 72 Cheung Sha Wan Road KL, Hong Kong;andFlat/RM 2309, 23/F, Ho King COMM Center, 2-16 Fa Yuen Street, Mongkok KLN, Hong Kong (See alternate addresses under China and Singapore);

(4)Lim Kow Seng, (a.k.a. Alvin Stanley, Eric Lim, James Wong, Mike Knight and Seng Lim Kow),Flat/Rm 3208 32/F, Central Plaza, 18 Harbour Road, Wanchai, Hong Kong;andFlat/RM 2309, 23/F, Ho King COMM Center, 2-16 Fa Yuen Street, Mongkok KLN, Hong Kong (See alternate addresses under Singapore);

(5)Luo Jie, (a.k.a. Cherry, Ivy Luo and Jie Luo),Flat/RM 1510A, 15/F Ho King COMM Ctr, 2-16 Fa Yuen Street, Mongkok KL, Hong Kong;andC/O Win Sino Flat 12, 9/F, PO Hong Centre, 2 Wang Tung Street, Kowloon Bay, KLN, Hong Kong;andFlat/Rm D, 11/F 8 Hart Avenue, 8-10 Hart Avenue, Tsim Sha Tsui KL, Hong Kong;andG/F, No. 89, Fuyan Street, Kwun Tong, Hong Kong;andFlat 12, 9F Po Hong Kong, 2 Wang Tung Street, Kowloon Bay, Hong Kong;andFlat/RM B 8/F, Chong Ming Bldg., 72 Cheung Sha Wan Road, KL, Hong Kong;andFlat/Rm 3208 32/F Central Plaza, 18 Harbour Road, Wanchai, Hong Kong (See alternate addresses under China);

(6)OEM Hub Co Ltd,Rm 3208 32/F Central Plaza, 18 Harbour Road, Wanchai, Hong Kong;andFlat/RM 2309, 23/F, Ho King COMM Center, 2-16 Fa Yuen Street, Mongkok KLN, Hong Kong; and

(7)Zhou Zhenyong, (a.k.a. Benny Zhou and Zhenyong Zhou),G/F, No. 89, Fuyan Street, Kwun Tong, Hong Kong;andFlat 12, 9F Po Hong Kong 2 Wang Tung Street, Kowloon Bay, Hong Kong;andFlat/RM B 8/F, Chong Ming Bldg., 72 Cheung Sha Wan Road, KL, Hong Kong;andFlat/RM 2309, 23/F, Ho King COMM Center, 2-16 Fa Yuen Street, Mongkok KLN, Hong Kong (See alternate addresses under China).

(1)Hossein Ahmad Larijani,No. 3 Mirza Kochak Ave., Jomhori Street, Tehran, Iran;andNo. 5 Mirzakuchanhan Street, Jomhori Ave., Tehran, Iran;andNo. 5 Mirza Kochak Ave., Jomhori Street, Tehran, Iran;andNo. 5, Near to Flower Shop Mirza KoochakKhan Jangali St, 30-Tir Junction, Jomhori St, Tehran, Iran;andUnit 6, No. 37, Goharshad Alley After 30 Tir Jomhori Street, Tehran, Iran;andForghani Passage, Before 30 Tir, After Havez, Jomhori Ave., Tehran, Iran (See alternate addresses under Singapore);

(2)Parto System Tehran, (a.k.a. Rayan Parto System Tehran and Rayane Parto System Tehran),Unit 7, Floor 4 No. 51 around Golestan Alley End of Shahaneghi Ave., Sheikh Bahaee Str., Molasadra, Tehran, Iran;andNo. 83 Around of Shanr Tash Ave. After Cross of ABAS ABAD North Sohrevadi Str., Tehran, Iran; and

(3)Paya Electronics Complex, (a.k.a. Paya Complex),No. 3 Mirza Kochak Ave. Jomhori Street, Tehran, Iran;andNo. 5 Mirzakuchanhan Street Jomhori Ave., Tehran, Iran;andNo. 5 Mirza Kochak Ave. Jomhori Street, Tehran, Iran;andNo. 5, Near to Flower Shop Mirza Koochak-Khan Jangali St, 30-Tir Junction, Jomhori St., Tehran, Iran;andUnit 6, No. 37 Goharshad Alley After 30 Tir Jomhori Street, Tehran, Iran;andForghani Passage, Before 30 Tir, After Havez, Jomhori Ave., Tehran, Iran.

(1)Action Global, (a.k.a. Action Global Co., Limited),520 Sims Avenue, #02-04, Singapore 387580 (See alternate addresses under Hong Kong);

(2)Amaze International,Block 1057 Eunos Avenue 3, #02-85, Singapore 409848 (See alternate address under Hong Kong);

(3)Corezing International, (a.k.a. CoreZing Electronics, Corezing International Group Company, Corezing International Pte Ltd, Corezing Technology Pte Ltd and Core Zing),2021 Bukit Batok Street 23, #02-212, Singapore 659626;and111 North Bridge Road, #27-01 Peninsula Plaza, Singapore 179098;and50 East Coast Road, #2-70 Roxy Square, Singapore 428769;andBlock 1057 Eunos Avenue 3, #02-85, Singapore 409848 (See alternate addresses under China, and Hong Kong);

(4)Hia Soo Gan Benson, (a.k.a. Benson, Soo Gan Benson Hia and Thomas Yan),Blk 8 Empress Road, #07-05, Singapore 260008;and2021 Bukit Batok Street 23, #02-212, Singapore 659626;and111 North Bridge Road, #27-01 Peninsula Plaza, Singapore 179098;and50 East Coast Road, #2-70 Roxy Square, Singapore 428769;andBlock 1057 Eunos Avenue 3, #02-85, Singapore 409848;

(5)Hossein Ahmad Larijani,24 Semei Street 1, #06-08, Singapore 529946; and 10 Jalan Besar, #11-08 Sim Lim Tower, Singapore 208787 (See alternate addresses under Iran);

(6)Lim Kow Seng, (a.k.a. Alvin Stanley, Eric Lim, James Wong, Mike Knight and Seng Lim Kow),Blk 751 Woodlands Circle, #10-592, Singapore 730751;and520 Sims Avenue, #02-04, Singapore 387580;and2021 Bukit Batok Street 23, #02-212, Singapore 659626;and111 North Bridge Road, #27-01 Peninsula Plaza, Singapore 179098;and50 East Coast Road, #2-70 Roxy Square, Singapore 428769;andBlock 1057 Eunos Avenue 3, #02-85, Singapore 409848 (See alternate addresses under Hong Kong);

(7)Lim Yong Nam, (a.k.a. Lin Rongnan, Steven Lim and Yong Nam Lim),170 Bukit Batok, West Avenue 8, #13-369, Singapore 650170;and158 Kallang Way, #02-505 Kallang Basin, Singapore 349245;and158 Kallang Way #03-511, Singapore 349245;andBlk 1001 Tai Seng Ave. #01-2522, Singapore 534411 (See alternate addresses under China);

(8)NEL Electronics, (a.k.a. NEL Electronics Pte Ltd),158 Kallang Way, #02-505 Kallang Basin, Singapore 349245;and158 Kallang Way, #03-511, Singapore 349245;andBlk 1001 Tai Seng Ave. #01-2522, Singapore 534411 (See alternate addresses under China);

(9)Surftech Electronics,Block 1057 Eunos Avenue 3, #02-85 Singapore 409848; and

(10)Wong Yuh Lan, (a.k.a. Huang Yulan, Jancy Wong and Yuh Lan Wong),Blk 109B Edgedale Plains, #14-115, Singapore 822109;and10 Jalan Besar, #11-08 Sim Lim Tower, Singapore 208787.

Shipments of items removed from eligibility for a License Exception or export or reexport without a license (NLR) as a result of this regulatory action that were on dock for loading, on lighter, laden aboard an exporting or reexporting carrier, or en route aboard a carrier to a port of export or reexport, on October 31, 2011, pursuant to actual orders for export or reexport to a foreign destination, may proceed to that destination under the previous eligibility for a License Exception or export or reexport without a license (NLR) so long as they are exported or reexported before November 15, 2011. Any such items not actually exported or reexported before midnight, on November 15, 2011, require a license in accordance with this rule.

Although the Export Administration Act expired on August 20, 2001, the President, through Executive Order 13222 of August 17, 2001, 3 CFR, 2001 Comp., p. 783 (2002), as extended by the Notice of August 12, 2011, 76 FR 50661 (August 16, 2011), has continued the Export Administration Regulations in effect under the International Emergency Economic Powers Act.

1. Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has been determined to be not significant for purposes of Executive Order 12866.

2. Notwithstanding any other provision of law, no person is required to respond to nor be subject to a penalty for failure to comply with a collection of information, subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501et seq.) (PRA), unless that collection of information displays a currently valid Office of Management and Budget (OMB) Control Number. This regulation involves collections previously approved by the OMB under control numbers 0694-0088, “Multi-Purpose Application,” which carries a burden hour estimate of 43.8 minutes for a manual or electronic submission. Total burden hours associated with the PRA and OMB control number 0694-0088 are not expected to increase as a result of this rule. You may send comments regarding the collection of information associated with this rule, including suggestions for reducing the burden, to Jasmeet K. Seehra, Office of Management and Budget (OMB), by email toJasmeet_K._Seehra@omb.eop.gov,or by fax to (202) 395-7285.

3. This rule does not contain policies with Federalism implications as that term is defined in Executive Order 13132.

4. The provisions of the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking, the opportunity for public participation, and a delay in effective date, are inapplicable because this regulation involves a military or foreign affairs function of the United States. (see5 U.S.C. 553(a)(1)). BIS implements this rule to prevent items from being exported, reexported or transferred (in country) to the persons being added to the Entity List. If this rule were delayed to allow for notice and comment and a delay in effective date, then entities being added to the Entity List by this action would continue to be able to receive items without a license and to conduct activities contrary to the national security or foreign policy interests of the United States. Further, no other law requires that a notice of proposed rulemaking and an opportunity for public comment be given for this rule. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule by 5 U.S.C. 553, or by any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601et seq.,are not applicable.

Accordingly, part 744 of the Export Administration Regulations (15 CFR parts 730-774) is amended as follows:

On December 22, 2010, IDNR submitted a request to EPA to approve revisions to the State's SIP and Title V program to incorporate recent rule amendments adopted by the Iowa Environmental Protection Commission. These amendments establish thresholds for GHG emissions in Iowa's PSD and Title V regulations at the same emissions thresholds and in the same time-frames as those specified by EPA in the “PSD and Title V Greenhouse Gas Tailoring Final Rule” (75 FR 31514), hereafter referred to as the “Tailoring Rule,” ensuring that smaller GHG sources emitting less than these thresholds will not be subject to permitting requirements for GHGs that they emit. The amendments to the SIP clarify the applicable thresholds in the Iowa SIP, address the flaw discussed in the “Limitation of Approval of Prevention of Significant Deterioration Provisions Concerning Greenhouse Gas Emitting-Sources in State Implementation Plans Final Rule,” 75 FR 82536 (December 30, 2010) (the “PSD SIP Narrowing Rule”), and incorporate state rule changes adopted at the state level into the Federally-approved SIP.

On August 11, 2011, EPA published a proposed rulemaking to approve Iowa's SIP revision.See76 FR 49708. EPA did not receive any public comments on this proposal. In this final rule, pursuant to section 110 of the CAA, EPA is approving these revisions into the Iowa SIP.1

This section briefly summarizes EPA's recent GHG-related actions that provide the background for this final action. More detailed discussion of the background is found in the preambles for those actions. In particular, the background is contained in what we call the PSD SIP Narrowing Rule,2 and in the preambles to the actions cited therein.

EPA has recently undertaken a series of actions pertaining to the regulation of GHGs that, although for the most part distinct from one another, establish the overall framework for this final action on the Iowa SIP. Four of these actions include, as they are commonly called, the “Endangerment Finding” and “Cause or Contribute Finding,” which EPA issued in a single final action,3 the “Johnson Memo Reconsideration,”4 the “Light-Duty Vehicle Rule,”5 and the “Tailoring Rule.” Taken together and in conjunction with the CAA, these actions established regulatory requirements for GHGs emitted from new motor vehicles and new motor vehicle engines; determined that such regulations, when they took effect on January 2, 2011, subjected GHGs emitted from stationary sources to PSD requirements; and limited the applicability of PSD requirements to GHG sources on a phased-in basis. EPA took this last action in the Tailoring Rule, which, more specifically, established appropriate GHG emission thresholds for determining the applicability of PSD requirements to GHG-emitting sources.

In many states, such as Iowa, PSD is implemented through the SIP and so in December 2010, EPA promulgated several rules to implement the new GHG PSD SIP program. Recognizing that some states had approved SIP PSD programs that did not apply PSD toGHGs, EPA issued a SIP Call and, for some of these states, a Federal Implementation Plan (FIP).6 Recognizing that other states had approved SIP PSD programs that do apply PSD to GHGs, but that do so for sources that emit as little as 100 or 250 tpy of GHG, and that do not limit PSD applicability to GHGs to the higher thresholds in the Tailoring Rule, EPA issued the PSD SIP Narrowing Rule. Under that rule, EPA withdrew its approval of the affected SIPs to the extent those SIPs covered GHG-emitting sources below the Tailoring Rule thresholds. EPA based its action primarily on the “error correction” provisions of CAA section 110(k)(6).

On July 20, 2010, Iowa provided a letter to EPA, in accordance with a request to all states from EPA in the Tailoring Rule, with confirmation that the State of Iowa has the authority to regulate GHGs in its PSD program. The letter also confirmed Iowa's intent to amend its air quality rules for the PSD program for GHGs to match the thresholds set in the Tailoring Rule. See the docket for this final rulemaking for a copy of Iowa's letter.

In the PSD SIP Narrowing Rule, published on December 30, 2010, EPA withdrew its approval of Iowa's SIP (among other SIPs) to the extent that the SIP applies PSD permitting requirements to GHG emissions from sources emitting at levels below those set in the Tailoring Rule.7 As a result, Iowa's current approved SIP provides the State with authority to regulate GHGs, but only at and above the Tailoring Rule thresholds; and requires new and modified sources to receive a Federal PSD permit based on GHG emissions only if they emit at or above the Tailoring Rule thresholds.

The basis for this SIP revision is that limiting PSD applicability to GHG sources at the higher thresholds in the Tailoring Rule is consistent with the SIP provisions that require assurances of adequate resources, and thereby addresses the flaw in the SIP that led to the PSD SIP Narrowing Rule. Specifically, CAA section 110(a)(2)(E) includes as a requirement for SIP approval that states provide “necessary assurances that the State * * * will have adequate personnel [and] funding * * * to carry out such [SIP].” In the Tailoring Rule, EPA established higher thresholds for PSD applicability to GHG-emitting sources on grounds that the states generally did not have adequate resources to apply PSD to GHG-emitting sources below the Tailoring Rule thresholds,8 and no state, including Iowa, asserted that it did have adequate resources to do so.9 In the PSD SIP Narrowing Rule, EPA found that the affected states, including Iowa, had a flaw in their SIP at the time they submitted their PSD programs, which was that the applicability of the PSD programs was potentially broader than the resources available to them under their SIP.10 Accordingly, for each affected state, including Iowa, EPA concluded that EPA's action in approving the SIP was in error, under CAA section 110(k)(6), and EPA rescinded its approval to the extent the PSD program applies to GHG-emitting sources below the Tailoring Rule thresholds.11 EPA recommended that states adopt a SIP revision to incorporate the Tailoring Rule thresholds, thereby (i) assuring that under state law, only sources at or above the Tailoring Rule thresholds would be subject to PSD; and (ii) avoiding confusion under the Federally approved SIP by clarifying that the SIP applies to only sources at or above the Tailoring Rule thresholds.12

IDNR's December 22, 2010, SIP submission establishes thresholds for determining which stationary sources and modification projects become subject to permitting requirements for GHG emissions under Iowa's PSD program. Specifically, the SIP revision includes changes—which are already effective—to Iowa's Administrative Code, revising the subrule 33.3(1) definition of “regulated New Source Review (NSR) pollutant” to specifically define the term “subject to regulation” for the PSD program, and to define “greenhouse gases (GHGs)” and “tpy CO2equivalent emissions (CO2e).” Additionally, the amendments to subrule 33.3(1) specify the methodology for calculating an emissions increase for GHGs, the applicable thresholds for GHG emissions subject to PSD, and the schedule for when the applicability thresholds take effect.

Iowa is currently a SIP-approved State for the PSD program, and has previously incorporated EPA's 2002 NSR reform revisions for PSD into its SIP.See72 FR 27056 (May 14, 2007).13 The changes to Iowa's PSD program regulations are substantively the same as the Federal provisions amended in EPA's Tailoring Rule.

As part of its review of Iowa's submittal, EPA performed a line-by-line review of Iowa's proposed revision and has determined that it is consistent with the Tailoring Rule.

Pursuant to section 110 of the CAA, EPA is approving Iowa's December 22, 2010 revisions to the Iowa SIP, relating to PSD requirements for GHG-emitting sources. EPA has made the determination that this SIP revision is approvable because it is in accordance with the CAA and EPA regulations regarding PSD permitting for GHGs. The detailed rationale for this action is set forth in the proposed rulemaking referenced above, and in this final rule.

Since EPA is finalizing its approval of Iowa's changes to its air quality regulations to incorporate appropriate thresholds for GHG permitting applicability into Iowa's SIP, then section 52.822(b) of 40 CFR part 52, added in EPA's PSD SIP Narrowing Rule to codify the limitation of its approval of Iowa's PSD SIP to exclude the applicability of PSD to GHG-emitting sources below the Tailoring Rule thresholds, is no longer necessary. In this action, EPA is also amending section 52.822(b) of 40 CFR part 52 to remove this unnecessary regulatory language.

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 the State's law as meeting Federal requirements and does not impose additional requirements beyond those imposed by the State's law. For that reason, this action:

• Is not a “significant regulatory action” under the terms of 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 final rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP program 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 amended 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 December 30, 2011. 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).)

40 CFR part 52 is amended as follows:

1. On May 20, 2010, the Commission published in theFederal Register, the summary of a Report and Order and Second Report and Order, which stated that upon OMB approval, it would publish in theFederal Registera document announcing the effective date. On September 26, 2011 the OMB approved, for a period of three years, the information collection requirements contained in sections 25.202(h)(3), 25.214(d)(2), 27.14(p)(7), 27.53(a)(10), 27.72(b), 27.72(c), 27.73(a), and 27.73(b) of the Commission's rules.1

2. On September 26, 2011, OMB approved the public information collection associated with these rule changes under OMB Control No. 3060-1159.

This is a summary of the Commission'sStructure and Practices of the Video Relay Service Program,Memorandum and Opinion and Order (MO&O) and Order (Order), document FCC 11-155, adopted October 17, 2011, and released October 17, 2011 in CG Docket number 10-51.

The full text of document FCC 11-155 and copies of any subsequently filed documents in this matter will be available for public inspection and copying during regular business hours at the FCC Reference Information Center, Portals II, 445 12th Street SW., Room CY-A257, Washington, DC 20554. Document FCC 11-155 and copies of subsequently filed documents in this matter may also be purchased from the Commission's duplicating contractor, BCPI, Inc., Portals II, 445 12th Street SW., Room CY-B402, Washington, DC 20554. Customers may contact BCPI, Inc. via its Web sitehttp://www.bcpiweb.comor by calling (202) 488-5300. 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 and Governmental Affairs Bureau at (202) 418-0530 (voice) or (202) 418-0432 (TTY). Document FCC 11-155 can also be downloaded in Word or Portable Document Format (PDF) at:http://www.fcc.gov/cgb/dro/trs.html#orders.

In theMO&Oin document FCC 11-155, the Commission addresses three petitions:

Sprint requests that the Commission clarify that communications assistants (CAs) who are trained by the provider, who are stationed at the facilities of the provider and who are directly under the provider's supervision should be deemed to be employees of the provider, in satisfaction of the requirement that video relay service (VRS) providers employ their own CAs, regardless of whether or not they are hired directly by the provider. The Commission denies Sprint's requested clarification. The Commission has consistently distinguished “employees” from “subcontractors” and “contractors” in adopting rules and requirements governing the provision of VRS, and the Commission finds that Sprint's proposed clarification would renderthose recognized distinctions meaningless. An entity seeking certification or already certified by the Commission must ensure that each of its VRS CAs who relays calls for which the entity will seek reimbursement from the Interstate TRS Fund (Fund) is a full or part-time employee of that entity. A CA cannot be an independent contractor or a temporary worker assigned by an agency, on a non-employment basis, to handle VRS calls. The Commission also clarifies that this restriction should not preclude a provider from hiring a CA to handle VRS calls on a temporary or part-time basis so long as the CA is an actual, demonstrable employee, not a contractor or other temporary, non-employed worker, of the provider.

Sprint further requests that the Commission clarify that certified VRS providers will be able to send traffic to other certified VRS providers “when they are unable to immediately handle that traffic due to factors outside of their control,e.g.,a sudden surge in traffic due to an earthquake,” and still be able to bill and receive compensation from the Fund for such traffic under § 64.604(c)(5)(iii)(F)(1-4) of the Commission's rules.

The Commission grants Sprint's request for clarification that certified VRS providers may roll-over VRS traffic to another eligible provider when unable to handle an unexpected and temporary surge in call traffic, and finds this request generally to be consistent with the goals and policies of the Commission's VRS rules. The Commission clarifies that a certified provider may seek reimbursement from the Fund for minutes of use that it routes to another certified VRS provider where exigent circumstances warrant such routing to handle an unexpected and temporary increase in the certified provider's incoming traffic. Exigent circumstances do not include events that result in increases in traffic that, in the ordinary course of business, could reasonably have been anticipated, such as a surge in traffic occurring during a holiday period.

The Commission also reiterates that § 64.604(c)(5)(iii)(N)(1)(iii)of its rules only allows aneligible providerto subcontract for CA services or call center functions with, or otherwise authorize the provision of such services or functions from,another eligible provider.The Commission therefore clarifies that this rule does not apply to non-certified applicants for certification; as such, non-certified applicants for certification may not rely on the ability to subcontract for or otherwise authorize the provision of CA services or call center functions on their behalf after they are certified, to demonstrate theireligibilityfor certification.

Sprint's final request is that the Commission clarify that a VRS provider leasing an automatic call distribution (ACD) platform from a vendor not affiliated with any VRS provider need not locate such ACD on its premises or use its own employees to manage such platform. The Commission grants Sprint's request insofar as it confirms that a VRS provider leasing an ACD platform from a vendor not affiliated with any VRS provider need not locate such ACD on its premises or use its own employees to manage such a platform. However, regardless of the location of the ACD, each provider is responsible for the oversight of all the core operations associated with such ACD platform, and shall be held accountable for compliance with all pertinent Commission rules and policies.

In its petition for reconsideration, Sorenson maintains that the Commission did not adequately justify the burdensomeness of requirements that VRS providers submit, as part of their certification applications and, as applicable, in annual reports regarding their compliance with the TRS rules: (1) “Proofs of purchase or license agreements for all equipment and/or technologies, including hardware and software, used for the applicant's VRS call center functions”; and (2) all written sponsorship agreements relating to iTRS. The Commission grants Sorenson's petition to the extent discussed below.

The Commission modifies the documentation requirements for proofs of purchase, leases, or license agreements for technology and equipment used to support call center functions, to apply only to the technologies and equipment for a representative sampling of five of a provider's domestic call centers, where the provider has more than five such centers. However, the Commission requires applicants to retain proofs of purchase for all technology and equipment used to support call center functions for all of their call centers, and to furnish such documentation to the Commission upon the Commission's request. In addition, the Commission continues to require providers to submit documentation for all technology and equipment used to support call center functions for VRS providers that maintain five or fewer domestic call centers, and for all international call centers regardless of the provider's size. Furthermore, the Commission continues to require all VRS applicants, regardless of size, to describe in their submissions the technology and equipment used to support their call center functions—including, but not limited to, ACD, routing, call setup, mapping, call features, billing for compensation from the TRS Fund, and registration. However, in response to Sorenson's stated concerns, the Commission modifies the requirement that the applicant state whether the technology and equipment for each call center function is owned or leased to pertain only to the maximum of five call centers for which, as described above, the applicant must provide proofs of purchase, license agreements, or leases. Finally, in light of the particular documentation requirements applicable to leased ACD platforms, the Commission will continue to require that VRS applicants provide acomplete copyof all ACD leases or license agreements. The Commission also clarifies that applicants need only to submit a list of all sponsorship arrangements, and to describe on that list any associated written agreements relating to iTRS—applicants need not furnish the actual copies of the arrangements and associated agreements, but must retain copies of all such arrangements and agreements for a period of three years from the date of the application and submit them to the Commission upon request.

In its petition for reconsideration, AT&T generally seeks reconsideration of the requirements that applicants for certification operate their own call centers and employ their own CAs. In addition, AT&T seeks reconsideration of the prohibition against VRS providers subcontracting these core VRS functions to another certified VRS provider. The Commission denies the AT&T Petition, and finds that there is ample evidence in the record that allowing VRS providers that operate without their own facilities to seek reimbursement from the Fund has contributed to the serious fraud that has plagued the VRS program.

In theOrder,the Commission clarifies, on its own motion, its policies and rules regarding on-site visits to the premises of iTRS certification applicants and certified iTRS providers. The Commission clarifies that such visits to both applicants for certification and certified providers may be announced or unannounced. Applicants for certification and certified providers must comply with a request by an authorized representative of the Commission to conduct either announced or unannounced on-site visits. In the case of applicants, the failure to allow complete access to inspect areas of the premises and documents related to the provision of iTRS, and to observe live iTRS calls, at the time of an authorized on-site visit will be cause for application denial. In the case of certified providers subject to an on-site visit to ensure continued compliance with the Commission's rules and requirements, such failure will result in the suspension of payments from the Fund until such access to iTRS-related areas, documents and activities is allowed. In addition, a certified provider's failure to cooperate with an announced or unannounced on-site visit will be deemed a violation of the Commission's rules governing provider audits and thus, may also lead to a Commission proceeding imposing appropriate sanctions, including the suspension or revocation of the provider's certification or forfeiture proceedings.

This document contains new and modified information collection requirements. The Commission notes that pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, the Commission previously sought specific comment on how the Commission might “further reduce the information collection burden for small business concerns with fewer than 25 employees.” In this present document, the Commission has assessed the effects of the modified rules for certification by the Commission of eligibility for payments from the Fund and finds that the modified information collection requirements will not have a significant impact on small business concerns with fewer than 25 employees. The Commission received comments on the information collection requirements contained in theiTRS Certification Order,under OMB Control No. 3060-1150.See, Structure and Practices of the Video Relay Service Program,CG Docket No. 10-51, Second Report and Order, published at 76 FR 47469, August 5, 2011 (iTRS Certification Order).See also,Paperwork Reduction Act Comments of Sorenson Communications, Inc. (filed September 6, 2011). By theMO&O,the Commission addresses OMB's and Sorenson's concerns by revising the language in the rules to require that providers that operate five or more domestic call centers only submit copies of proofs of purchase, leases or license agreements for technology and equipment used to support their call center functions for a representative sampling of five call centers, rather than requiring copies for all call centers. Further, the Commission clarifies that the rule requiring submission of a list of all sponsorship arrangements relating to iTRS only requires that a certification applicant describe on the list associated written agreements relating to iTRS, and does not require the applicant to provide copies of all written agreements. The Commission believes that these two rule modifications significantly alleviate the burdens associated with the subject information collections requirements, and address the concerns Sorenson raised in its PRA comments filed with OMB. Both the Administrative Procedures Act and the Commission's rules require notice of substantive rules issued by the Commission, with limited exceptions, to be made not less than 30 days before such rules goes into effect, absent good cause shown and published with the rule. In this case, the Commission finds good cause to make these rule modifications effective upon publication in theFederal Registerof notice of the approval of the modified rule by OMB under the PRA.

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, if promulgated, have a significant economic impact on a substantial number of small entities.”See5 U.S.C. 605(b). 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). In theMO&O,in response to a VRS provider's petition, the Commission amends its rules to modify the documentation requirements for eligible iTRS providers for proofs of purchase, leases, or license agreements for technology and equipment used to support call center functions, to apply only to the technologies and equipment for a representative sampling of five of a provider's domestic call centers, where the provider has more than five such centers. In addition, the Commission amends its rules to clarify that applicants need only to submit a list of all sponsorship arrangements, and to describe on that list any associated written agreements relating to iTRS—applicants need not furnish the actual copies of the arrangements and associated agreements. The Commission will revise § 64.606(a)(2)(ii)(E) of its rules accordingly.

These amendments result in a significant reduction in costs and other burdens on any iTRS provider, large or small, to comply with these rules. Thus, the discussion of whether there is a significant economic impact on a substantial number of small entities is moot.

Therefore, the Commission certifies that the requirements of theMO&Owill not have a significant adverse economic impact on a substantial number of small entities, because there will be no adverse impact on any entities, large or small.

The Commission will send a copy of theMO&O,including the Final Regulatory Flexibility Certification, to the Chief Counsel for Advocacy of the Small Business Administration, and in a report to Congress pursuant to the Congressional Review Act.

The Commission will send a copy of document FCC 11-155 in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act.See5 U.S.C. 801(a)(1)(A).

Pursuant to the authority contained in sections 1, 4(i), (j) and (o), 225, and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), (j) and (o), 225, and 303(r), and § 1.429 of the Commission's rules, 47 CFR 1.429, document FCC 11-155is adopted.

Sprint's Expedited Petition for Clarificationis granted in partanddenied in part,to the extent provided in FCC 11-155.

Sorenson's Petition for Reconsiderationis granted,to the extent provided in FCC 11-155. AT&T's Petition for Reconsiderationis denied.

Part 64 of the Commission's rulesis amended.

The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, SHALL SEND a copy of document FCC 11-155, including the Final Regulatory Flexibility Certification, to the Chief Counsel for Advocacy of the Small Business Administration.

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 64 as follows:

Having considered the public comments on FRA's January 3, 2011, proposed rule in this rulemaking, FRA is issuing this final rule primarily to help satisfy the requirements of section 420 of the Rail Safety Improvement Act of 2008 (RSIA), Pub. L. 110-432, Div. A, 122 Stat. 4848, October 16, 2008 (amending a provision of the hours of service laws at 49 U.S.C. 21106). See notice of proposed rulemaking (NPRM), 76 FR 64. RSIA requires the Secretary of Transportation (Secretary) to adopt regulations no later than April 1, 2010, establishing minimum standards for “employee sleeping quarters” in the form of “camp cars” that are provided by railroads. 49 U.S.C. 21106(a)(1), (c). Specifically, RSIA instructs the Secretary to prescribe regulations “to implement [49 U.S.C. 21106(a)(1)] to protect the safety and health of any employees and individuals employed to maintain the right of way of a railroad carrier that use camp cars * * *” 49 U.S.C. 21106(c). The statutory term “employee” is defined in 49 U.S.C. 21101(3) to include a train employee, a signal employee, and a dispatching service employee, who as a group are sometimes referred to as “covered-service employees.” As amended through 2008, 49 U.S.C. 21106(a)(1) provides that such camp cars must be—

In addition, RSIA directly requires that railroads using camp cars “fully retrofit or replace such cars in compliance with [49 U.S.C. 20106(a)]” by December 31, 2009. 49 U.S.C. 21106(b). As will be further explained below, FRA interprets 49 U.S.C. 21106(b) as (1) Applying the prohibition in 49 U.S.C. 21106(a)(2) against beginning construction or reconstruction of employee sleeping quarters near switching or humping operations, to camp cars provided by railroads as sleeping quarters for individuals employed to maintain the railroad right of way (MOW workers) and (2) setting a compliance date of December 31, 2009, with respect to such camp cars exclusively for MOW workers.

The Secretary has delegated the responsibility to carry out his responsibilities under RSIA to the Administrator of FRA. 74 FR 26981, 26982 (June 5, 2009), codified at 49 CFR 1.49(oo). See also 49 CFR 1.49(d), delegating the Secretary's authority to carry out the hours of service laws to the Administrator of FRA, and 49 U.S.C. 103.

Subpart E is based extensively on FRA guidelines already in place, which, in turn, were based on the U.S. Department of Labor's Occupational Safety and Health Administration (“OSHA”) standards for sanitation and temporary labor camps at 29 CFR 1910.141 and 1910.142, modified as appropriate for the railroad environment. See FRA's Guidelines for Clean, Safe, and Sanitary Railroad Provided Camp Cars (1990 Guidelines), 55 FR 30892 (July 27, 1990), codified at 49 CFR part 228, app. C. In developing new subpart E, FRA coordinated with the U.S. Department of Labor, as required by the Congressional mandate.

In addition, FRA consulted with officials of the only American railroad currently known to be regularly utilizing camp cars as sleeping quarters, Norfolk Southern Railway Company (NS), to determine what actions it has taken to conform to the statutory requirements that the cars be not only clean, safe, and sanitary and provide an opportunity for rest uninterrupted by noise under the control of the railroad, but also have “indoor toilet facilities, potable water, and other features to protect the health” of employees and MOW workers and not be placed in the immediate vicinity of certain “switching or humping operations” as defined in FRA regulations at 49 CFR 228.101(c)(3). NS assured FRA that all of its camp cars comply with statutory requirements; NS disagrees with FRA's conclusion that camp cars exclusively occupied by MOW workers are subject to 49 U.S.C. 21106(a)(2).

MOW workers have been given protection by limits of how close their sleeping quarters are to switching and humping operations. That protection formerly only applied to train employees, signal employees, and dispatching service employees. In 1976, Congress required that all sleeping quarters, “including crew quarters, camp or bunk cars, and trailers,” provided by a railroad to its “employees” be “clean, safe, and sanitary” and provide an opportunity for rest without interruptions caused by noise under the control of the railroad. Pub. L. 94-348, sec. 4, adding subsection (a)(3) to section 2 of the Hours of Service Act, then codified at 45 U.S.C. 62(a)(3) (1976) and now codified as amended at 49 U.S.C. 21106(a)(1).1 Again, the term “employees” included only those who, in the terminology of the present statute, are called “train employees,” “signal employees,” or “dispatching service employees,” and did not include MOW workers. In the same legislation, Congress prohibited railroads from beginning, on or after July 8, 1976, the construction or reconstruction of sleeping quarters for “employees” “within or in the immediate vicinity (as determined in accordance with rules prescribed by the Secretary) of any area where railroad switching or humping operations are performed.” Pub. L. 94-348, sec. 4, adding subsection (a)(4) to section 2 of the Hours of Service Act, then codified at 45 U.S.C. 62(a)(4) (1976) and now codified as amended at 49 U.S.C. 21106(a)(2).

To carry out the 1976 statutory amendment at section 2(a)(3) of the Hours of Service Act, FRA published interpretative guidance and a statement of policy regarding the provision requiring “clean, safe, and sanitary” sleeping quarters for employees free from railroad-controlled noise that would interrupt rest. Amendment to appendix A to 49 CFR part 228, 43 FR 30803 (July 18, 1978).

To carry out the 1976 amendment at section 2(a)(4) of the Hours of Service Act, FRA published regulations codified at 49 CFR part 228, subpart C (subpart C). 43 FR 31012 (July 19, 1978). As stated in the preamble to those regulations,

Subpart C defines key terms in section 2(a)(4) of the Hours of Service Act, permits railroads to request a determination by FRA that a particular proposed site is not within the “immediate vicinity,” and states the criteria by which FRA will make the determination. See 49 CFR 228.101(a). FRA approval is necessary before a railroad may begin the “construction or reconstruction” of sleeping quarters for employees within the distance of switching or humping operations specified in the regulations. 49 CFR 228.101. The distance triggering the need for approval is one-half mile “as measured from the nearest rail of the nearest trackage where switching or humping operations are performed to the point on the site where the carrier proposes to construct or reconstruct the exterior wall of the structure, or portion of such wall, which is closest to such operations.” 49 CFR 228.101(b). “Switching or humping operations” is defined to include “the classification of placarded railroad cars according to commodity or destination, assembling of placarded cars for train movements * * *” 49 CFR 228.101(c)(3). “Placarded car” is defined to mean “a railroad car required to be placarded by DOT hazardous materials regulations (49 CFR 172.504).” 49 CFR 228.101(c)(4). “Construction” includes the “[p]lacement of a mobile or modular facility,” which includes placement of a camp car. 49 CFR 228.101(c)(1)(iii). On or after July 8, 1976, any railroad placing a camp car occupied by an employee near switching or humping operations must obtain FRA approval before doing so. 49 CFR 228.101(a).

In 1988, Congress redefined “employee” for purpose of section 2(a)(3) of the Hours of Service Act (now codified at 49 U.S.C. 21106(a)(1)) so as to include MOW workers, thereby making all sleeping quarters provided by a railroad to MOW workers subject to the same statutory standard. Pub. L. 100-342, sec. 19(b). It should be noted, however, that the 1988 amendment did not make MOW workers “employees” for purposes of the “location” requirement at section 2(a)(4) of the Hours of Service Act. Consequently, a camp car occupied only by employees or by both employees and MOW workers is subject to subpart C, but a camp car occupied only by MOW workers is not subject to subpart C.

To carry out the 1988 statutory amendment, FRA issued an interpretation in 1990 of the terms “clean,” “safe,” and “sanitary” as applied to railroad-provided camp cars occupied by employees, MOW workers, or both based on standards established by OSHA. 49 CFR part 228, app. C. In FRA's 1990 Guidelines, the agency noted that—

Twenty years after the 1988 statutory amendment, Congress enacted section 420 of RSIA. Congress added requirements that all sleeping quarters provided by railroads to employees or MOW workers have “indoor toilets, potable water, and other features to protect the health of [employees and MOW workers]” (amending 49 U.S.C. 21106(a)(1)); that any railroad that uses camp cars must “fully retrofit or replace” such cars to be in compliance with 49 U.S.C. 21106(a) by December 31, 2009 (see new 49 U.S.C. 21106(b)); and that the Secretary prescribe regulations to implement 49 U.S.C. 21106(a)(1), requiring compliance by December 31, 2010 (see new 49 U.S.C. 21106(c)).

FRA has considered whether Congress intended for railroad-provided camp cars occupied by MOW workers to be subject to the restrictions of 49 U.S.C. 21106(a)(2) on their location. Clearly, by the express text of 49 U.S.C. 21106(c), the regulations mandated by that subsection are intended “to implement subsection (a)(1)” (i.e.,49 U.S.C. 21106(a)(1), and not to implement both 49 U.S.C. 21106(a)(1) and 49 U.S.C. 21106(a)(2)). Just as clearly, Congress did not amend 49 U.S.C. 21106(a)(2) itself, which bars beginning such construction or reconstruction of sleeping quarters for covered-service employees on or after July 8, 1976; Congress did not, for example, add language to subsection (a)(2) to prohibit beginning construction or reconstruction of railroad-provided camp cars used as sleeping quarters for MOW workers, with a new effective date in subsection (a)(2) itself.

In the end, however, FRA concludes that Congress did intend such location restrictions in subsection (a)(2) to apply to camp cars exclusively occupied by MOW workers, based primarily on the language of subsection (b), which reads as follows:

To give subsection (b) meaning, with respect to requiring camp cars to be in compliance with the old mandate of subsection (a)(2), some act must be required that is possible to perform in the future, specifically not later than the December 31, 2009, date stated in subsection (b). FRA reads that extra requirement imposed by subsection (b) to be that camp cars exclusively occupied by MOW workers be subject to subsection (a)(2). With respect to subsection (a)(2), which contains a compliance date about 32 years before the enactment of subsection (a)(2), a new compliance date would be necessary in order to avoid creating an unconstitutional, ex post facto law, and that is what Congress provided with the new statutory deadline for compliance of December 31, 2009. FRA does not read subsection (b) as supplanting the July 8, 1976, effective date of the prohibition in subsection (a)(2) with respect to construction or reconstruction of sleeping quarters occupied by train employees, signal employees, or dispatching service employees. Rather, FRA reads the text of section 21106(b) as a direct, statutory requirement that railroads using camp cars as sleeping quarters see to it that the cars exclusively occupied by MOW workers comply with the statutory requirements of not only subsection (a)(1), but also subsection (a)(2), and to do so by December 31, 2009.

Of course, it could be argued that Congress simply made a technical error in requiring that camp cars comply with all of subsection (a) and that it meant to say “subsection (a)(1),” particularly given that the requirement is to “retrofit or replace” the cars, not to “retrofit or replace and position” the cars. FRA thinks that the legislative history ofsection 420 of RSIA argues against such a strict interpretation. That legislative history indicates that Congress invited FRA to take a new, more protective look at camp cars. The House precursor to section 420 of RSIA would have directly prohibited the use of camp cars entirely by statute, effective one year after the date of enactment. See section 202 of H.R. 2095 as reported by the House Committee on Transportation and Infrastructure in H.R. Rep. No. 110-336 and analysis at p. 39. The Senate precursor to section 420 of RSIA would have authorized FRA to prohibit railroads' use of camp cars as sleeping quarters (i.e.,by regulation or order) “if necessary to protect the health and safety of the employees.” See section 410 of S. 1889 as reported by the Senate Committee on Commerce, Science, and Transportation in S. Rep. No. 110-270. Based on the plain meaning of 49 U.S.C. 21106 and the legislative history of section 420 of RSIA, FRA believes its interpretation applying the location requirement of subsection (a)(2) to camp cars occupied exclusively by MOW workers is both correct and appropriate.

To carry out this statutory interpretation, FRA is proposing an amendment to subpart C. The statutory authority to conduct this aspect of the rulemaking is FRA's authority under 49 U.S.C. 21106(a)(2) to prescribe regulations to implement that statutory provision, which reads (as revised during the 1994 recodification of the rail safety laws effected by Public Law No. 103-272) as follows:

FRA received two sets of comments on the NPRM, one from the Brotherhood of Maintenance of Way Employes Division of the International Brotherhood of Teamsters (BMWED) and one from the Association of American Railroads (AAR). FRA appreciated and carefully considered both of these sets of comments. The final rule differs from the proposed rule in part because of the concerns raised by the commenters. FRA, however, believes that its lacks the authority to address all of the issues raised. Comments are addressed thematically.

BMWED requested a prohibition on the use of railroad-provided camp cars as sleeping quarters for employees and MOW workers within five years of the effective date of the rule. FRA does not believe Congress intended to give FRA such authority. The statutory section requiring FRA to regulate camp cars begins, “A railroad carrier and its officers and agents may provide sleeping quarters * * * for employees, and any individuals employed to maintain the right of way of a railroad carrier * * *” 49 U.S.C. 21106(a)(1). With this language, Congress has expressly given permission to railroads to provide sleeping quarters as long as they meet the applicable statutory or regulatory standard, or both. FRA may not prohibit by regulation what Congress has explicitly permitted by statute.

FRA has also attempted to comply with the statutory language by limiting the applicability section of subpart C. Congress was specifically concerned with sleeping quarters provided to employees by a railroad and camp car sleeping quarters provided to MOW workers by a railroad. As a result, FRA stated that subpart C applies to railroads but not subcontractors or contractors, something BMWED commented on. If a railroad provides a substandard camp car to an employee or MOW worker, however, the railroad will be held liable, whether the camp car was directly provided by the railroad or whether the railroad was leasing a camp car from a contractor. See 49 CFR 228.303(b) and 228.305. FRA is concerned that including contractor-provided sleeping quarters would inadvertently encompass rooms in commercial motels or hotels open to the general public that a railroad provided to its employees. To further clarify FRA's position, however, FRA has modified the language of § 228.303 to expressly state that the requirements of this subpart apply to contractors and subcontractors that provide camp cars.

BMWED also took issue with another matter in which FRA was, in part, trying to comply with the statute. BMWED argued that the temporary labor camps regulations of the Occupational Safety and Health Administration (OSHA) should not be a basis for subpart E. FRA did not extensively rely on temporary labor camp regulations in creating subpart E; however, they did provide the basic framework for the previous camp car guidelines, and FRA found it necessary to use those guidelines in creating this subpart. FRA was also required by section 420 of the RSIA to work in consultation with the Department of Labor in creating these regulations, and FRA found its regulations helpful. FRA does recognize that there are significant differences between temporary labor camps and the current way that NS uses camp cars, but found OSHA's regulations to be helpful, as there are few other Federal regulations regarding employer-provided sleeping quarters. The only other comment in which statutory provisions were at issue came from AAR. As mentioned in the NPRM, NS disagreed with FRA's statutory interpretation that sleeping quarters provided to MOW workers were, like those provided to covered-service employees, restricted on how close they may be to switching and humping operations. AAR stated that it supports NS's interpretation. There is ample discussion regarding FRA's position on this issue stated above and in the NPRM.

For its part, BMWED expressed its support for FRA's interpretation on this issue, but expressed concerns that the rights of MOW workers were not adequately protected. Specifically, BMWED wanted FRA to expressly say that the recognized representatives of the MOW workers be given the same notice when a railroad attempts to obtain permission to begin to construct or reposition a camp car too close to switching and humping operations. Under § 228.103(d), representatives of railroad employees of camp cars must be given such notice. BMWED's request is unnecessary, as the proposed rule states that for the purposes of § 228.103, “employees” “shall be read to include MOW workers.” With this language found in § 228.102(b), FRA is requiring that the same rights and notice given to the employees and their recognized representatives under § 228.103 is given to MOW workers and their recognized representatives.

BMWED recommended that each camp car be equipped “with a portable fire extinguisher(s) meeting the requirements of 29 CFR 1910.157, a fire detection system meeting the requirements of 29 CFR 1910.164, and permanently wired, with battery backup, smoke detector(s) and carbon monoxide detector(s).”

FRA agrees in principle with the desire for these life safety protection items; however, some of the proposed devices are not practical. Requiring smoke detectors and carbon monoxide detectors to be hard-wired may result inadded cost and complexity where simple battery-powered detectors can be used with little difference in protection. Many newer model smoke detectors are equipped with 10-year lithium batteries.

A fire detection system meeting the requirements of 29 CFR 1910.164 is not appropriate. The standard cited by BMWED is a performance specification for systems intended to meet other specific OSHA standards such as those for fuel or flammable materials storage areas. While meeting this OSHA standard is not necessary for camp cars, FRA will add paragraph (c) to § 228.331 as set forth in the regulatory text of this final rule.

BMWED also recommended requiring each camp car to have emergency evacuation instructions and information regarding the nearest hospital and have a weather radio. FRA agrees that camp car occupants need to have access to information in case of weather and medical emergencies, but has decided to address these needs by adding paragraph (d) to § 228.331 as set forth in the regulatory text of this final rule.

AAR objected to FRA's proposed § 228.331, which specified and listed the minimum contents of first aid kits. AAR urged FRA to take a consistent approach to first aid kits. FRA's proposed § 228.331 differed from its regulation on passenger train emergency preparedness at 49 CFR 239.101(a)(6) by adding the requirements of a first aid booklet, aspirin, antibiotic ointment packages, and hydrocortisone ointment packets. FRA agrees that it should be consistent. As a result, FRA has changed the requirements for the first aid kit required by this subpart to conform with those of 49 CFR 239.101(a)(6).

BMWED requested that FRA restrict the locations where camp cars are located to avoid standing water and other potential hazards. Specifically, it requested the following requirements:

BMWED asked FRA to require gender-separated camp car facilities for “sleeping, showering, washing, urination and defecation.” FRA does not believe that this provision is necessary at this time, nor is FRA aware of any problems stemming from a lack of such gender-separated facilities. FRA is, however, concerned about the possibility that a married couple might be working together, and the railroad might want to respect that couple's wish to stay in the same camp car. If FRA learns of problems stemming from the lack of gender-separated facilities, it will take appropriate action.

BMWED also had suggestions on the furnishings provided to camp car occupants. It recommended, among other things, a prohibition against cots, multi-deck bunks (which are built into or against a wall, such as in a Pullman car), and multi-level bunk beds (which are movable). FRA agrees that a prohibition on multi-deck bunks and multi-level bunk beds is a reasonable prohibition, given that falls from multi-deck bunks and multi-level bunk beds are possible and falls from an upper deck would obviously tend to cause more severe injury than falls from an ordinary, single-level bunk or single-level bed. The U.S. Consumer Product Safety Commission determined that multi-level bunks and multi-level bunk beds provided a sufficient hazard so as to require regulations to limit their hazards. See 16 CFR part 1213et seq.FRA also notes that BMWED states that this prohibition would not have any cost, as NS does not currently use multi-level bunks or multi-level bunk beds in its camp cars for employees and MOW workers.

FRA, however, disagrees with BMWED's suggested prohibition on “cots” at this time. FRA realizes that cots can vary widely, and FRA expects any bed or cot provided under § 228.311 to be a unit for sleeping, consisting of a base and mattress. NS, the only railroad that uses camp cars as sleeping quarters for employees or MOW workers, uses beds only and does not use a cot in the sense of a unit used for sleeping made of canvas over a frame that can be folded up and lacking a mattress. If NS or another railroad chooses to use a cot that does not have a mattress in a camp car that it provides as sleeping quarters, FRA will revisit this issue.

BMWED also requested that the lockers provided to the employees and MOW workers be lockable. FRA finds this to be a reasonable request, as the cost of locks should be minimal. Employees and MOW workers live in these camp cars for days or weeks at a time, and being able to secure their valuables could help alleviate stress and anxiety regarding the potential theft.

FRA's proposed § 228.31(b) would have required that beds not be closer than 36 inches laterally, with modular units subject to a 30-inch minimum and double-deck bunks no closer than 48 inches laterally. AAR objected that the provision would be problematic for some in-service camp cars. It mentioned that the width of highway-capable camp cars is limited by existing DOT restrictions. AAR suggested, and FRA adopts, the following change: “Except where partitions are provided, such beds or similar facilities must be spaced not closer than 36 inches laterally (except in rail-mounted modular units, where the beds shall be spaced not closer than 30 inches, and highway trailer units, where the beds shall be spaced not closer than 26 inches) and 30 inches end to end, and must be elevated at least 12 inches from the floor.”

BMWED also commented on cleaning requirements. For example, BMWED suggested that FRA change the requirement in § 228.329(a) from simply stating that a camp car must be kept “clean” to use the phrase “clean, healthful, and sanitary,” and include a short explanation of the division of responsibility between the railroad and camp car occupants. FRA agrees that railroads are responsible for the regular and thorough cleaning of all camp car facilities, and that camp car occupants should use good housekeeping practices. FRA, however, does not believe that this suggestion substantively changes the proposed requirements, and so refrains from altering the proposed language of the regulation itself. FRA believes that the requirements of this subpart ensure that camp cars will be kept clean, healthful, and sanitary.

BMWED also requested that FRA require railroads to provide each occupant with two sets of clean bed linens and also exchange them, upon request, for clean linens when they are soiled. NS has notified FRA that, under the terms of two differing collective bargaining agreements, railroad employees either currently receive reimbursement for providing and laundering linens or are given reimbursement for providing their own linens. FRA will not interfere regarding linens when they are being provided under the terms of a collective bargaining agreement. FRA recognizes, however, that sweat and body fluids can accumulate on linens, posing a health hazard from potential viruses and bacteria growing in them. Health risks are compounded if someone sleeps on the unwashed sheets of another. FRA believes a collective bargaining agreement is the most appropriate method to ensure that occupants have clean sheets, but has added a requirement that clean linens be provided if a provision on the subject of linens in the applicable collective bargaining agreement does not exist.

BMWED asked for a regulatory right for a representative of the employee labor organization to accompany FRA inspectors during a camp car inspection. It points out that OSHA allows for a representative of employee labor organizations to accompany OSHA inspectors. FRA declines to create such a right. FRA prefers to have unannounced inspections. If a camp car occupant has a concern that these regulations are not being adhered to, that employee or an employee's representative may alert FRA. When an individual contacts FRA regarding a railroad's failure to adhere to the law, FRA investigates the complaints and makes every effort to comply with statutory prohibitions and agency policy not to reveal the identity of that individual unless the individual has consented to the release.See49 U.S.C. 20109(i).

In its comment, AAR recommended that FRA modify the definition of “camp car” to explicitly exclude office cars, inspection cars, and specialized maintenance equipment. FRA does not intend to include any cars in this subpart that are not used as sleeping quarters or ancillary to such sleeping quarters. FRA does not consider track geometry cars and similar cars to “house or accommodate” MOW workers in the way that sleeping and dining room cars do. For clarity, however, FRA has amended the definition of “camp car” to make this intent explicit.

In the NPRM, FRA proposed a definition of “MOW worker” as someone who was “an individual employed to maintain the right of way of a railroad,” which is the singular language of the hours of service laws, slightly shortened.See49 U.S.C. 21106(a)(1) (“any individuals employed to maintain the right of way of a railroad carrier”). BMWED suggested that definition be elaborated to say “an individual employed to inspect, install, construct, repair or maintain track, roadbed, bridges, buildings, roadway facilities, roadway maintenance machines, electric traction systems, and right of way of a railroad.” To clarify the scope of the definition, FRA has accepted this change in the definition intact except to add a comma after “repair.” It is not necessary for the individual to be employed by a railroad; the individual may be employed by a contractor or subcontractor to a railroad.

Proposed § 228.311 suggested a minimum amount of 50 square feet of floor space for each occupant of a camp car used for sleeping. BMWED disputed that this amount of space was sufficient, and suggested that more appropriate standards included a minimum of 80 square feet with a maximum occupancy of four people per car. The organization pointed out that the cost of compliance for this standard is essentially zero, as NS already provides this minimum amount of space. FRA agrees that this suggested change is reasonable and will prevent overcrowding.

In addition, for camp cars that are used for general living as well as cooking, BMWED recommended that the minimum square feet per occupant be increased from 90 to 120 square feet. FRA also agrees with this change to help prevent overcrowding. FRA notes that adopting this amendment should present no current cost to any railroad, as NS does not presently use camp cars in which occupants both sleep and cook.

In the NPRM, FRA proposed a minimum of two toilet rooms and two showers in each camp car that provides sleeping facility and an additional toilet room and shower for every one to five more people after ten occupants. The NPRM suggested only two lavatories per camp car. BMWED recommended that if a camp car has more than four occupants, an additional toilet room and shower and lavatory should be required for every one or two more people. For its part, AAR requested requiring a fewer number of showers, lavatories, and toilets when there were fewer than four occupants. FRA sees the value in each of these proposals, and notes that the projected cost of this change from the NPRM is zero, as NS already complies with BMWED's proposal. FRA has lowered the minimum number of these fixtures required when a camp car has fewer than four occupants. The final rule requires one functional lavatory, shower, and toilet per camp car for up to two occupants, and one additional functional lavatory, shower, and toilet if there are three or four occupants in the camp car.

BMWED requested that the minimum lighting for toilet and shower rooms be increased from the 10 foot-candles required in the proposed § 228.309(f)(2) to 30 foot-candles. OSHA standards require only 10 foot-candles for indoor toilets; 30 foot-candles are required for areas, such as offices, where more visually demanding tasks are done. 29 CFR 1926.56(a). Because of the limited size of toilet rooms, FRA does not believe that it is necessary for the requirements for lighting in bathrooms to be increased to the same level as an office.

The NPRM proposed that each car must have equipment so that it can maintain a minimum temperature of 68 degrees Fahrenheit (°F) in cold weather and a maximum temperature of 75 °F in hot weather. § 228.309(g). BMWED requested that the minimum temperature be changed to 70 °F. FRA declines to do so, as it is likely that such a small difference is within the reading error of some thermometers. AAR also objected to FRA's proposed temperature requirement.

AAR requested that FRA prescribe a maximum temperature of 78 °F, as was set forth in appendix C to part 228. AAR stated that it was unaware of any problems with the 78 °F threshold. It also objected to a change proposed by FRA that was different from the guidelines of appendix C and allowed the maximum temperature to be only 20 °F below the ambient temperature. AAR stated thatdifferential cooling systems are limited by what they can achieve relative to the ambient temperature. FRA declines to make these changes.

FRA believes that modern air conditioning equipment on these cars is capable of providing the requisite cooling to offer the workers a respite from warm conditions that could interfere with the ability to get adequate rest. If a temperature of 78 °F is achievable by these systems, it seems unlikely that 75 °F would not be. With respect to the absence of the 20 °F differential from ambient as an alternative cooling standard, FRA believes this could lead to permitting significantly higher allowable temperatures that would have an adverse impact on the workers' ability to get adequate rest, particularly in some of the warmer climates in which these cars operate.

AAR requested that doors for emergency egress not be required at each end, as would be required by the proposed § 228.309(e). FRA agrees that the NPRM language is needlessly specific and agrees to amend that section.

In addition, AAR suggested that FRA modify its proposed requirement of § 228.309(f) for illumination of exit pathways. AAR stated,

In its comment, BMWED stated its opposition to allowing non-potable water to be used for the washing and showering of persons. See proposed §§ 228.319-228.323. It pointed to OSHA's regulation, 29 CFR 1910.141(b)(1)(i), which requires potable water for the washing of the person in places of employment. FRA will follow OSHA's lead in requiring that water used for personal cleansing in the sinks and showers of camp cars be potable. FRA has changed the rule text accordingly.

For its part, AAR objected to the requirement of proposed § 228.323 that a railroad must obtain a certificate of compliance with EPA drinking water regulations every time potable water is drawn from a different local source. AAR stated that this was impractical and is unnecessary. It argued that, most of the time, water for camp cars came from a municipal community water system via spigots on the outside of buildings.

FRA does not agree with AAR's arguments. Its assertions that water drawn from a municipal community water system must be assumed to be potable, even after being conveyed through a portable, removable system of connections, pipes, and tanks, is not credible. In fact, during a visit to a NS camp, the water system was connected to a municipal building through a series of pipes and hoses on the surface of a parking lot. This circumstance could easily lead to a compromised system that could introduce contamination into the water, rendering it non-potable.

FRA agrees that community water sources are regulated and the water is potable when leaving the water supplier. However, FRA has no means of assurance that the water from the taps AAR mentions is in fact of the same quality. Further, the minority of circumstances where the water is not drawn from a community water system source are minimally addressed in the AAR comments. While the materials and systems components used by NS may be made of FDA-approved materials, that does not preclude the introduction of contamination into the system due to improper procedures setting up the connections, nor through damage to the components after they have been set up.

FRA's desire for either a certificate of conformance, or a similar certificate from a laboratory is to ensure that the water entering the camp car system is, at the source, of potable quality. The other testing requirements contained in the section are intended to ensure that once potable water is introduced into the system, it is delivered in that form to the users. The FDA has specific regulations regarding the source quality of potable water for use on “a conveyance engaged in interstate traffic” at 21 CFR 1240.80, 1240.83, and, for treatment once aboard the conveyances, at 21 CFR 1240.90. FRA is simply restating these precepts.

AAR also objected to the requirement of proposed § 228.323(c)(4) that potable water systems be drained and flushed regularly and after any complaint. As discussed above, however, the introduction of contaminants into a water system can occur through any of a number of sources, both through damage to the system connections, as well as through back flow through any of the system's internal outlets. Even under normal circumstances of use, where the water is consumed and refilled on a frequent basis, quarterly disinfection and flushing have been used, under an FDA-approved process, on Amtrak passenger cars for a number of years. By AAR's own admission, camp cars may move on a frequent basis, thus the opportunities for introduction of contaminants into the potable water system exist. The two procedures established by this regulation thus parallel those used to protect Amtrak passengers and crews and should be no more burdensome, and in fact are likely less so, for NS since its fleet and movement frequency are much less.

In addition, BMWED also stated that there was no reason for § 228.319 to allow for only tepid water—as opposed to both hot and cold water—to be provided in lavatories. It stated that the water for sinks came from a plumbing system that provided both hot and cold water. Since this is a reasonable request that apparently can be provided with minimal or no cost to the only railroad actively using camp cars, FRA has changed § 228.319 to require hot and cold water in lavatories.

BMWED also requested that any individual who fills a potable water system as required by this subpart be “properly trained, qualified and designated by the employer.” FRA's proposed § 228.323(b)(5) required only that the person filling the potable watersystem be trained. FRA does not see the value of BMWED's suggestion.

The organization also requested that FRA prohibit the return to service of a camp car whose water system failed a total coliform test until test samples from that system show a satisfactory result. Proposed § 228.323(c)(5) simply states that the system needs to be resampled and then it may be returned to service. The original language of the proposed regulation follows FDA-approved protocols currently used for water systems on conveyances in interstate commerce. The recommended change is not necessary.

BMWED requested in its comment more stringent controls on waste disposal methods to protect the safety and health of occupants. It requested changes to be added to § 228.325(c). FRA agrees with these changes and has adopted them in this final rule.

In the NPRM, FRA asked for comments regarding the amount of time that a railroad should be given to repair significant noncomplying conditions in a camp car under proposed § 228.333, which gave the railroad 72 hours after notice of noncompliance with this subpart from FRA. In response, BMWED recommended the following substitute:

While FRA does not believe a definition of “immediately” is necessary, it otherwise agrees with the recommended changes and has adopted them.

FRA is revising the heading of 49 CFR part 228 to reflect all of its contents more explicitly. The name of the part is being changed from “HOURS OF SERVICE OF RAILROAD EMPLOYEES” to “HOURS OF SERVICE OF RAILROAD EMPLOYEES; RECORDKEEPING AND REPORTING; SLEEPING QUARTERS”.

FRA is tailoring § 228.1, Scope, to reflect the addition of new subpart E, Safety and Health Requirements for Camp Cars Provided by Railroads as Sleeping Quarters, such as by adding new paragraph (c).

FRA also is amending § 228.3, Application. Currently, paragraph (a) of that section says that, except as provided in paragraph (b), part 228 applies to all railroads and contractors and subcontractors of railroads. FRA is revising the section to indicate that although subparts B and D of part 228 apply to railroads and contractors and subcontractors of railroads, subparts C and E of part 228 apply only to railroads. (Subpart A contains no duties that apply to any entity.) In addition, § 228.3 is being amended to clarify that plant railroads are exempt from the requirements of subparts B-E of part 228. The section is also being amended to note that tourist, scenic, historic, and excursion railroads that are not part of the general system are generally excepted from subparts B-E except as provided in § 228.413(d)(2).See76 FR 50360, 50400 (August 12, 2011). Section 228.3 also is being amended to move its existing reference to § 228.401 as the applicability section for subpart F, Substantive Hours of Service Regulations for Train Employees Engaged in Commuter or Intercity Rail Passenger Transportation, from paragraph (b) to paragraph (c).Id.

Finally, FRA is amending § 228.5, Definitions, by adding definitions of four terms. The terms “plant railroad” and “tourist, scenic, historic, or excursion operations that are not part of the general railroad system of transportation” are used in the proposed “application” provisions of subpart A and the new subpart E, and both terms refer to types of operations that have traditionally been excluded from FRA regulations because they are not part of the general railroad system of transportation. (Note, however, that,e.g.,all tourist railroads are subject to the substantive hours of service requirements of subpart F of part 228 as provided in 49 CFR 228.401 and the hours of service recordkeeping and reporting requirements of subpart B as provided in 49 CFR 228.413(d)(2).) There is a more extensive explanation of the general railroad system of transportation in appendix A to 49 CFR part 209, and it is explicitly defined there as “the network of standard gage track over which goods may be transported throughout the nation and passengers may travel between cities and within metropolitan and suburban areas.”

The terms “camp car” and “MOW worker” are used in subparts C and E. “Camp car” is, in § 228.5, defined as a trailer and/or on-track vehicle, including an outfit, camp, bunk car, or modular home mounted on a flatcar, or any other mobile vehicle or mobile structure used to house or accommodate an employee or MOW worker. An office car, inspection car, specialized maintenance equipment, and a wreck train is not included.

The longstanding definition of “camp car” in the guidelines of 49 CFR part 228, app. C is clarified by adding “or any other mobile vehicle or mobile structure” as catch-all language. For example, a recreational vehicle used to accommodate or house an employee or MOW worker is a camp car within the meaning of § 228.5. In addition, the phrase “railroad employees” in the existing definition of camp car is replaced with “an employee or MOW worker.” The term “employee” is already defined in existing § 228.5 and means a train employee, signal employee, or dispatching service employee. The term “MOW worker” is defined as “an individual employed to inspect, install, construct, repair, or maintain track, roadbed, bridges, buildings, roadway facilities, roadway maintenance machines, electric traction systems, and right of way of a railroad.”

FRA is removing and reserving § 228.13, Preemptive effect, for two reasons. First, the section is unnecessary because it is duplicative of statutory law at 49 U.S.C. 20106 and case law. Second, the section is incomplete because it omits reference to the preemptive effect of the hours of service laws (49 U.S.C. ch. 211), (the authority for 49 CFR part 228, subparts C, E, and F). The hours of service laws have beeninterpreted by the Supreme Court as preempting State regulation of the hours of railroad employees.See Hillv.State of Florida ex rel. Watson,325 U.S. 538, 553 (1945).

In addition, FRA is redesignating two provisions in subpart B that are intended to apply to the entire part in order to move them to subpart A, General. In particular, FRA is redesignating § 228.21, Civil penalty, and § 228.23, Criminal penalty, as § 228.6, Penalty.

FRA is changing the heading of subpart C from “Construction of Employee Sleeping Quarters” to “Construction of Railroad-Provided Sleeping Quarters.” “Railroad-Provided” is added to emphasize that the regulations apply only to sleeping quarters that are provided by a railroad, and the word “Employee” is deleted since the amended subpart applies not only to sleeping quarters occupied by an employee but also to sleeping quarters in the form of a camp car that are provided by a railroad to an MOW worker.

In § 228.101, the heading is changed from “Distance requirement; definitions” to “Distance requirement for railroad-provided employee sleeping quarters; definitions used in this subpart.” This revision is intended to reflect that paragraph (a) applies only to sleeping quarters for employees (not for MOW workers). That section reflects the 1976 statutory amendment discussed earlier in the preamble that carries a July 8, 1976, compliance date.

In addition, some typographical errors in paragraph (b) are corrected. Specifically, “Except as determined in accordance with the provisions of this subpart. `The immediate vicinity' ” is replaced with “Except as determined in accordance with the provisions of this subpart, the `immediate vicinity' ” instead.

In new § 228.102, FRA is restating the statutory language at 49 U.S.C. 21106(b) and 21106(a)(2) by saying that a railroad that uses camp cars must comply by December 31, 2009, with the prohibition in 49 U.S.C. 21106(a)(2) with respect to those camp cars that are provided as sleeping quarters exclusively to MOW workers. (Camp cars for train employees, signal employees, or dispatching service employees and camp cars occupied by both covered-service employees and MOW workers are already subject to the July 8, 1976, compliance date in 49 U.S.C. 21106(a)(2) and 49 CFR 228.101.) In other words, under the statute, starting December 31, 2009, a railroad must not begin construction or reconstruction of a camp car provided by the railroad as sleeping quarters exclusively for MOW workers within or in the immediate vicinity of any area where railroad switching or humping is performed. (Of course, compliance with the regulation itself would not be due until the date established in the final rule.) The key terms in new § 228.102 are already defined in the subpart or at § 228.5. In effect, absent FRA's special approval in accordance with subpart C, a railroad may not begin construction or reconstruction of a camp car (including the placement of a camp car) as sleeping quarters solely for MOW workers in or within the distance specified in the regulations at § 228.101(b) (one-half mile from the location where such switching or humping of placarded cars takes place). Procedures on requesting FRA's special approval are found within that subpart and at 49 CFR part 211. Section 228.102 notes that references to “employees” in the sections on procedures in §§ 228.103-228.107 must be read to include MOW workers.

FRA is adding new subpart E entitled, “Safety and Health Requirements for Camp Cars Provided by Railroads as Sleeping Quarters.”

This section is a basic restatement of the legal mandate in section 420 of RSIA that is codified at 49 U.S.C. 21106(c), which requires the issuance of regulations to implement 49 U.S.C. 21106(a)(1) with respect to certain camp cars. Section 21106(a)(1) of title 49 of the U.S. Code provides that sleeping quarters provided by a railroad to its covered-service employees and MOW workers must be—

This section defines the railroads that are covered by the new subpart. All railroads are covered, with the exception of three types of railroad operations. The three listed exceptions are for operations that are not part of the general railroad system of transportation: (1) Railroads that operate exclusively on track that is not part of that system (plant railroads, as that term is defined in § 228.5); (2) tourist, scenic, historic, or excursion railroads that are not part of the general railroad system of transportation, a term also defined in § 228.5 (tourist railroads); and (3) rapid transit operations in an urban area that are not connected to the general railroad system of transportation.See49 CFR part 209, app. A for a discussion of “general railroad system of transportation.” As a matter of policy, FRA almost never exercises its statutory jurisdiction over plant railroads and generally does not exercise its statutory jurisdiction over tourist railroads that operate only off the general system. (But see, e.g.,49 CFR part 228, subpart F, including § 228.401, and the Bridge Safety Standards at 49 CFR part 237). FRA lacks statutory jurisdiction over urban rapid transit operations not connected to the general system.See49 U.S.C. 20102, 20103.

In addition, paragraph (b) explains that even though subpart E of part 228 applies only to railroads, a railroad may not avoid fulfilling the requirements of this subpart by using contractors or subcontractors. If, for example, a railroad uses a contractor to provide dining services for the occupants of a camp car, FRA will still enforce the provisions of § 228.325 against the railroad to ensure that the food service is safe and sanitary.

This section establishes the deadline for compliance. A December 31, 2010, deadline for compliance with the regulations was set by Congress in section 420 of RSIA, but the final rule may not become effective until 60 days after it is published. The compliance date for this rule is December 30, 2011.

This section defines key terms used in subpart E. Many of these definitions were originally set forth in FRA's 1990 Guidelines. In addition, many of these definitions have been taken from standards issued by OSHA.

This section sets forth a series of requirements for camp cars provided by a railroad as sleeping quarters to employees or MOW workers or both. First, the section requires that the camp cars are constructed so as to provide protection from the elements. Second, the section requires that the camp cars provide an opportunity for rest free from interruptions caused by noise under the control of the railroad that provides the camp cars. The limit of 55 dB(A) is based on FRA's longstanding interpretation of an hours of service statutory provision related to sleeping quarters. 49 U.S.C. 21106(a)(1); 49 CFR part 228, app. A and C. It is notable that the 55 dB(A) level is typical of semi-urban and suburban neighborhood outside ambient noise during the evening hours with minimal street traffic. Levels such as these have also been measured in the same neighborhoods on side streets during daylight hours; thus, the 55 dB(A) limit should not be difficult to achieve. Third, this section requires that the camp cars be able to maintain a minimum temperature during cold weather (68 °F) and a maximum temperature during hot weather (75 °F). Fourth, the section requires that camp cars provide an adequate means of egress in the event of an emergency situation. There must be at least two emergency exits. Finally, FRA is also establishing minimum lighting standards, including provisions requiring the interior pathway to an emergency exit not immediately accessible to the occupants to be illuminated at all times for emergency egress purposes, except that illumination of emergency pathways is not required inside sleeping compartments.

This section requires that, to prevent overcrowding, the camp car's occupants have at least 80 square feet each; in a camp car where occupants cook, live, and sleep, a minimum of 120 square feet per occupant must be provided. The section also requires certain types of furniture. This section also creates a limit of four occupants per car.

This section sets forth requirements regarding the safety of all electrical systems in the camp car, including, but not limited to, heating, cooking, ventilation, air conditioning, and water heating equipment. While the NPRM stated that these systems must be installed in accordance with all applicable provisions of the National Fire Protection Association's NFPA 70 (2008), “National Electrical Code” (NEC 2008), approved by the National Fire Protection Association (NFPA) Standards Council on July 26, 2007, with an effective date of August 15, 2007, FRA realizes that this code is not the only industry standard that could be used to ensure safe and working electrical equipment. To allow greater flexibility, FRA has decided to allow railroads to utilize industry-recognized standards other than those set forth in NEC 2008. These may include State-modified NEC Standards, other nationally-recognized standards, or internationally-recognized standards. FRA expects all electrical systems installed to be compliant with whichever industry-recognized standard the railroad utilizes.

This section of the rule does not specify any certain code that must be used for heating, ventilation, and air conditioning (HVAC) systems, but does require that all such systems be safe and working. FRA anticipates that, to ensure that these systems are safe and operable, railroads will require HVAC systems in their camp cars to meet widely-adopted standards, such as those of the standards of the Sheet Metal and Air Conditioning Contractors National Association; the American Society of Heating, Refrigerating, and Air-Conditioning Engineers; and the American National Standards Institute.

This section sets forth requirements related to the prevention and resolution of vermin infestations.

This section represents a substantial revision of the parallel provision in FRA's 1990 Guidelines to reflect a more appropriate number of toilets required. Further, the section requires that there be at least one toilet room located within a camp car that has sleeping facilities for a total of one or two occupants. If the camp car has three or four occupants, then at least two toilet rooms are required. FRA believes that this requirement provides an adequate standard for the minimum number of toilets. A toilet room must have a door that latches, one that is capable of being and staying securely closed, and the toilet room must be sufficient to assure privacy. Certain construction and cleanliness standards are also included in this section.

This section requires every camp car that provides a sleeping facility to have a basin with hot and cold potable running water, soap, and hand-drying equipment or towels. It also requires at least one basin per car with sleeping facilities.

The section mandates a minimum number of showers, construction requirements for the showers, and the provision of showering supplies.

This lengthy section sets forth requirements to ensure that the water provided to the occupants of camp cars is safe. Water uses such as personal oral hygiene, washing of the person, drinking as well as food washing, preparation, and cooking, and cleaning of the cooking utensils, cooking surfaces, and eating surfaces—all require the use of water that is potable. If the water supplied for these uses is provided by means of a system of tanks, lines, and other plumbing, the integrity and cleanliness of such systems need to be maintained.

To facilitate these objectives, FRA has established a series of requirements in this section. Individuals who fill potable water systems servicing a camp car must be trained. The source for water provided to the occupants of a camp car must meet minimum standards put forth by the Environmental Protection Agency under 40 CFR part 141, National Primary Drinking Water Regulations. A railroad must obtain a certificate indicating this fact. Section 228.323 does not require that the water as it flows from any faucet within the camp be certified as potable, but rather that the source of the water itself be potable. A railroad may obtain the certificate even before a camp reaches any given location to avoid interrupting operations. Of course the expected connection must be somewhat imminent: a railroad could not, for example, legally rely on a certification that is six months old. The certificate must be kept with the camp car for the duration of the connection, after which the certificate must be sent to a centralized location, such as the railroad's system headquarters. This location must be the depository for all water certification records for the railroad. Further, equipment and construction employed to provide potable water to a camp car must be approved by the Food and Drug Administration. The water itself must be stored in sanitary containers and bedispensed so that sanitary conditions are maintained. Distribution lines must have adequate pressure for simultaneous use. Potable water systems must be flushed and disinfected regularly, and the steps that are taken to do so must be recorded. Those records must be kept within the camp for the duration of the connection and then sent to a centralized location. Certain procedures must be followed in response to a report of a problem with the taste of the water or a report of a health problem because of the water.

The section prohibits the presence of food and beverages in toilet rooms and toxic material areas, imposes requirements applicable when a central dining operation is provided, and requires that food service facilities and operations will operate hygienically. The limitations of paragraphs (c) and (d) do not apply to food service from nearby restaurants that are subject to State law.

This section addresses the necessity of wastes being disposed to ensure a sanitary environment. Timely removal of all kinds of waste is mandated by § 228.329(a). Camp cars must be equipped with a method to dispose of sewage according to § 228.329(b). Appropriate waste containers for both general waste and food waste are required by § 228.329(c) and (d), respectively.

This section requires that each camp car be kept as clean as is practicable given the type of work performed by the occupants of the car. Railroads and camp car occupants share the obligation to keep the camp car facilities clean and in good care, meaning that railroads are responsible for the regular and thorough cleaning of all camp car facilities, and that camp car occupants should use good housekeeping practices. The section also requires elimination of splinters, unnecessary holes, and other conditions or features that impede cleaning.

This section requires a first aid kit in each camp car with specified contents. This list is based on the requirements for first aid kits in passenger trains set forth in FRA's regulations on passenger train emergency preparedness at 49 CFR 239.101(a)(6). Railroads should add items to the first-aid kit as conditions warrant, for example, increasing the minimum number of bandages for a larger crew than normal or providing additional items if the occupants of the camp car regularly deal with hazardous material. Additional items that railroads may consider providing include ammonia inhalants, aspirin, and a splint.

Each occupied sleeping room in a camp car must be equipped with a functional smoke alarm and carbon monoxide alarm or a combination device that incorporates both types of alarms, and there must be a functional fire extinguisher in each sleeping room of the camp car. The fire extinguisher must be “Type ABC,” a classification put forth by National Fire Protection Association and widely used. In addition, each camp car consist must have an emergency preparedness plan prominently displayed.

As a reflection of FRA's enforcement policy, the section gives a limited amount of time for a railroad to take action after receiving specified notice to repair a camp car that does not comply with these regulations. The section also requires that a railroad provide alternate accommodations when a camp car does not provide the essential services such as proper cooling or heating. In addition, if a camp car is noncompliant with the requirements of this subpart, and the railroad otherwise would have provided meals for occupants, it must provide for alternate arrangement for meals.

This section provides for electronic recordkeeping of records required by this subpart.

Finally, conforming changes are being made to appendix A to part 228, and appendix C to part 228 is being removed. Appendix A is revised (FRA's statement of agency policy and interpretation of the hours of service laws) by removing the paragraph discussing the 1990 Guidelines, codified in appendix C to part 228, and the rationale for establishing those guidelines because appendix C is eliminated and superseded by new 49 CFR part 228, subparts C and E. Appendix C is removed to reflect that the guidelines with respect to camp cars are being revised and converted into regulations at 49 CFR part 228, subparts C and E, which become effective upon the compliance date.

This rule has been evaluated in accordance with existing policies and procedures under Executive Orders 12866 and 13563 as well as and DOT policies and procedures and determined to be non-significant. FRA has prepared and placed in the docket a regulatory evaluation addressing the economic impact of this final rule. Document inspection and copying facilities are available at U.S. Department of Transportation, Docket Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590. Docket material is also available for inspection on the Internet athttp://www.regulations.gov.Photocopies may also be obtained by submitting a written request to the FRA Docket Clerk at the Office of Chief Counsel, RCC-10, Mail Stop 10, Federal Railroad Administration, 1200 New Jersey Avenue, SE., Washington, DC 20590; please refer to Docket No. FRA-2009-0042, Notice No. 2.

To carry out a 2008 Congressional rulemaking mandate, FRA is creating a new Subpart E to title 49 Code of Federal Regulations (CFR) part 228. The new subpart prescribes minimum safety and health requirements for camp cars that railroads provide as sleeping quarters to train employees, signal employees, dispatching service employees, and individuals employed to maintain its right-of-way. The new regulation supplants existing guidelines that interpret previously enacted statutory requirements. The previous guidelines required railroad-provided camp cars to be clean, safe, and sanitary; and afford those employees and individuals an opportunity for rest—free from the interruptions caused by noise under the control of the railroad. In further response to the congressional mandate, the regulations include the additional statutory requirements that camp cars provide indoor toilets, potable water, and other features to protect the health of such workers.

Under separate but related statutory authority, FRA is amending subpart C to 49 CFR part 228, Construction of Employee Sleeping Quarters. In accordance with the RSIA, FRA applies the location restrictions to include camp cars occupied exclusively for individuals employed to maintain the right-of-way.

Finally, FRA is making conforming changes to part 228, clarifying its provision on applicability, removing an existing provision on the preemptive effect of part 228 as unnecessary; and moving, without changing, an existing provision on penalties for violation of part 228 from subpart B to subpart A.

FRA estimates costs and benefits for the final rule. In this case, only one railroad will be affected, NS. Since NS has already taken action to address the safety and health issues in an acceptable manner, this final rule will add only minimal costs. Some new requirements that will add costs are certification of the potable water source, lab tests when necessary, draining and flushing of the water system, and carbon monoxide detectors. As described in the regulatory evaluation, FRA estimates the annual costs of this rule will range between $61,000 and $80,000. The main benefit of this rule is the assurance that current safety and health levels of camp cars will be maintained in the future.

To ensure potential impacts of rules on small entities are properly considered, FRA developed this final rule in accordance with Executive Order 13272 (“Proper Consideration of Small Entities in Agency Rulemaking”) and DOT's procedures and policies to promote compliance with the Regulatory Flexibility Act (5 U.S.C. 601et seq.).

The Regulatory Flexibility Act requires an agency to review regulations to assess their impact on small entities. An agency must conduct a regulatory flexibility analysis unless it determines and certifies that a rule is not expected to have a significant impact on a substantial number of small entities.

As discussed earlier, FRA has initiated this rulemaking as a requirement of the RSIA. FRA is promulgating new regulations in a new Subpart E to part 228, prescribing minimum safety and health requirements for camp cars that a railroad provides as sleeping quarters to any of its train employees, signal employees, dispatching service employees, and individuals employed to maintain its right-of-way. The new regulations supplant existing guidelines that interpret existing statutory requirements, enacted decades earlier, that railroad-provided camp cars be clean, safe, sanitary, and afford those employees and individuals an opportunity for rest free from the interruptions caused by noise under the control of the railroad. In further response to the rulemaking mandate, the new regulations include the additional statutory requirements, enacted in 2008, that camp cars be provided with indoor toilets, potable water, and other features to protect the health of such workers. In developing this final rule, FRA coordinated with the U.S. Department of Labor, as required by the congressional mandate.

Under separate but related statutory authority, FRA is amending subpart C to 49 CFR part 228, Construction of Employee Sleeping Quarters. This subpart contains FRA's longstanding regulations implementing the statutory provision that prohibits railroads, effective July 8, 1976, from beginning the construction or reconstruction of railroad-provided sleeping quarters for train employees, signal employees, and dispatching service employees in an area or in the immediate vicinity of an area where railroad switching or humping of hazardous material occurs. Previously, these regulations affecting the location of sleeping quarters for covered service employees did not apply to sleeping quarters exclusively for individuals employed to maintain the right-of-way of a railroad. In particular, FRA is implementing a 2008 statutory amendment that, on and after December 31, 2009, camp cars provided by a railroad as sleeping quarters exclusively for individuals employed to maintain the right-of-way of a railroad are within the scope of the prohibition against beginning construction or reconstruction of employee sleeping quarters near railroad switching or humping of hazardous material. FRA's existing guidelines with respect to the location of a camp car that is occupied exclusively by individuals employed to maintain a railroad's right-of-way will be replaced with regulatory amendments prohibiting a railroad from positioning such a camp car in the immediate vicinity of the switching or humping of hazardous material.

Finally, the final rule makes conforming changes to Appendix A to part 228 and removes Appendix C to part 228. The rule also clarifies its provision on applicability, removes an existing provision on the preemptive effect of part 228 as unnecessary, and moves, without change, an existing provision on penalties for violation of part 228 from subpart B to subpart A.

Pursuant to the Regulatory Flexibility Act (5 U.S.C. 605(b)), FRA certifies that this final rule would not have a significant impact on a substantial number of small entities.

This rule applies to railroads that provide camp cars to employees or MOW workers as sleeping quarters, contractors and subcontractors of railroads. “Small entity” is defined in 5 U.S.C. 601 as including a small business concern that is independently owned and operated, and is not dominant in its field of operation. The U.S. Small Business Administration (SBA) has authority to regulate issues related to small businesses, and stipulates in its size standards that a small entity in the railroad industry is a for profit “line-haul railroad” that has fewer than 1,500 employees, a “short line railroad” with fewer than 500 employees, or a “commuter rail system” with annual receipts of less than $7 million.See“Size Eligibility Provisions and Standards,” 13 CFR part 121, subpart A.

Federal agencies may adopt their own size standards for small entities in consultation with SBA and in conjunction with public comment. Pursuant to that authority, FRA has published a final statement of agency policy that formally establishes small entities or “small businesses” as being railroads, contractors, and hazardous materials shippers that meet the revenue requirements of a Class III railroad as set forth in 49 CFR § 1201.1-1, which is $20 million or less in inflation-adjusted annual revenues, and commuter railroads or small governmental jurisdictions that serve populations of 50,000 or less.2 The $20 million limit is based on the Surface Transportation Board's revenue threshold for a Class III railroad carrier. Railroad revenue is adjusted for inflation by applying a revenue deflator formula in accordance with 49 CFR § 1201.1-1.

This final rule does not affect any small entities.

There is only one railroad that will be affected by this regulation. It is a Class I railroad that is not a small entity. Consequently, this regulation does not burden a substantial number of small entities.

The factual basis for the certification that this final rule, if promulgated, will not have a significant economic impact on a substantial number of small entities is that no railroads that are considered small entities will be affected by the regulation. This regulation does notdisproportionately place any small railroads that are small entities at a significant competitive disadvantage. There are no small railroads that house employees or MOW workers in camp cars.

Outreach to small entities is not necessary since the final rule does not affect any small entities. FRA requested comments on this assumption in the NPRM and received none.

Pursuant to the Regulatory Flexibility Act, 5 U.S.C. § 605(b), the FRA Administrator certifies that the final rule will not have a significant economic impact on a substantial number of small entities.

Executive Order 13132, “Federalism” (64 FR 43255 (Aug. 10, 1999)), requires FRA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” are defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under Executive Order 13132, the agency may not issue a regulation with federalism implications that imposes substantial direct compliance costs and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, the agency consults with State and local governments, or the agency consults with State and local government officials early in the process of developing the regulation. Where a regulation has federalism implications and preempts State law, the agency seeks to consult with State and local officials in the process of developing the regulation.

This final rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13132. This rule will not have a substantial effect on the States or their political subdivisions; it will not impose any direct compliance costs on State and local governments; and it will not affect the relationships between the Federal government and the States or their political subdivisions, or the distribution of power and responsibilities among the various levels of government. FRA has also determined that this rule will not impose substantial direct compliance costs on State and local governments. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply.

However, this rule may have preemptive effect by operation of law under a provision of the former Federal Railroad Safety Act of 1970, 49 U.S.C. 20106 (Section 20106), and case law interpreting the statutory predecessor of the hours of service laws at 49 U.S.C. ch. 211 (the Hours of Service Act).SeePub. L. 103-272. Section 20106 provides that States may not adopt or continue in effect any law, regulation, or order related to railroad safety or security that covers the subject matter of a regulation prescribed or order issued by the Secretary of Transportation (with respect to railroad safety matters) or the Secretary of Homeland Security (with respect to railroad security matters), except when the State law, regulation, or order qualifies under the “local safety or security hazard” exception to Section 20106. The Hours of Service Act has been interpreted by the Supreme Court as preempting State regulation of the hours of railroad employees.See Hillv.State of Florida ex rel. Watson,325 U.S. 538, 553 (1945).

In sum, FRA has analyzed this rule in accordance with the principles and criteria contained in Executive Order 13132. As explained above, FRA has determined that this rule has no federalism implications, other than the possible preemption of State laws. Accordingly, FRA has determined that preparation of a federalism summary impact statement for this rule is not required.

The Trade Agreement Act of 1979 prohibits Federal agencies from engaging in any standards or related activities that create unnecessary obstacles to the foreign commerce of the United States. Legitimate domestic objectives, such as safety, are not considered unnecessary obstacles. The statute also requires consideration of international standards and where appropriate, that they be the basis for U.S. standards. This rulemaking is purely domestic in nature and is not expected to affect trade opportunities for U.S. firms doing business overseas or for foreign firms doing business in the United States.

The information collection requirements in this final rule have been submitted for approval to the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501et seq.The sections that contain the new information collection requirements and the estimated time to fulfill each requirement are as follows:

All estimates include the time for reviewing instructions; searching existing data sources; gathering or maintaining the needed data; and reviewing the information. Pursuant to 44 U.S.C. 3506(c)(2)(B), FRA solicits comments concerning the following: whether these information collection requirements are necessary for the proper performance of the functions of FRA, including whether the information has practical utility; the accuracy of FRA's estimates of the burden of the information collection requirements; the quality, utility, and clarity of the information to be collected; and whether the burden of collection of information on those who are to respond, including through the use of automated collection techniques or other forms of information technology, may be minimized. For information or a copy of the paperwork package submitted to OMB, contact Mr. Robert Brogan, Information Clearance Officer, Office of Railroad Safety, at (202) 493-6292, or Ms. Kimberly Toone, Office of Information Technology, at (202) 493-6132.

Organizations and individuals desiring to submit comments on the collection of information requirements should direct them to the Office of Management and Budget, Office of Information and Regulatory Affairs, 725 17th St. NW., Washington, DC 20503, attn: FRA Desk Officer. Comments may also be sent via email to OMB at the following address:oira_submission@omb.eop.gov.

OMB is required to make a decision concerning the collection of information requirements contained in this final rule between 30 and 60 days after publication of this document in theFederal Register. Therefore, a comment to OMB is best assured of having its full effect if OMB receives it within 30 days of publication.

FRA is not authorized to impose a penalty on persons for violating information collection requirements which do not display a current OMB control number, if required. FRA intends to obtain current OMB control numbers for any new information collection requirements resulting from this rulemaking action prior to the effective date of the final rule. The OMB control number, when assigned, will be announced by separate notice in theFederal Register.

Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency “shall, unless otherwise prohibited by law, assess the effects of Federal regulatory actions on State, local, and tribal governments, and the private sector (other than to the extent that such regulations incorporate requirements specifically set forth in law).” Section 202 of the Act (2 U.S.C. 1532) further requires that “before promulgating any general notice of proposed rulemaking that is likely to result in the promulgation of any rule that includes any Federal mandate that may result in expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any 1 year, and before promulgating any final rule for which a general notice of proposed rulemaking was published, the agency shall prepare a written statement” detailing the effect on State, local, and tribal governments and the private sector. For the year 2010, this monetary amount of $100,000,000 has been adjusted to $140,800,000 to account for inflation. This final rule will not result in the expenditure of more than $140,800,000 by the public sector in any one year, and thus preparation of such a statement is not required.

FRA has evaluated this rule in accordance with its “Procedures for Considering Environmental Impacts” (FRA's Procedures) (64 FR 28545, May 26, 1999) as required by the National Environmental Policy Act (42 U.S.C. 4321et seq.), other environmental statutes, Executive Orders, and related regulatory requirements. FRA has determined that this rule is not a major FRA action (requiring the preparation of an environmental impact statement or environmental assessment) because it is categorically excluded from detailed environmental review pursuant to section 4(c)(20) of FRA's Procedures.See64 FR 28547, May 26, 1999. Section 4(c)(20) reads as follows:

In accordance with section 4(c) and (e) of FRA's Procedures, the agency has further concluded that no extraordinary circumstances exist with respect to this regulation that might trigger the need for a more detailed environmental review. As a result, FRA finds that this rule is not a major Federal action significantly affecting the quality of the human environment.

Executive Order 13211 requires Federal agencies to prepare a Statement of Energy Effects for any “significant energy action.” 66 FR 28355, May 22, 2001. Under the Executive Order, a “significant energy action” is defined as any action by an agency (normally published in theFederal Register) that promulgates or is expected to lead to the promulgation of a final rule or regulation, including notices of inquiry, advance notices of proposedrulemaking, and notices of proposed rulemaking: (1)(i) That is a significant regulatory action under Executive Order 12866 or any successor order, and (ii) is likely to have a significant adverse effect on the supply, distribution, or use of energy; or (2) that is designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. FRA has evaluated this rule in accordance with Executive Order 13211. FRA has determined that this rule is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Consequently, FRA has determined that this rule is not a “significant energy action” within the meaning of Executive Order 13211.

FRA wishes to inform all potential commenters that anyone is able to search the electronic form of all comments received into any agency docket by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in theFederal Registerpublished on April 11, 2000 (65 FR 19477-78).

For the reasons discussed in the preamble, FRA is amending part 228 of chapter II, subtitle B of title 49, Code of Federal Regulations as follows:

This final rule is accessible via the Internet at the Office of the Federal Register's Web site athttp://www.gpoaccess.gov/fr/index.html.Background information and documents are available at the Pacific Fishery Management Council's Web site athttp://www.pcouncil.org/.

The Pacific Coast Groundfish FMP and its implementing regulations at title 50 in the Code of Federal Regulations (CFR), part 660, subparts C through G, regulate fishing for over 90 species of groundfish off the coasts of Washington, Oregon, and California. Groundfish specifications and management measures are developed by the Pacific Fishery Management Council (Council), and are implemented by NMFS. On November 3, 2010, NMFS published a proposed rule to implement the 2011-2012 harvest specifications and management measures for the Pacific Coast groundfish fishery (75 FR 67810). The final rule to implement the 2011-2012 harvest specifications and management measures for the Pacific Coast Groundfish Fishery was published on May 11, 2011 (76 FR 27508). This final rule was subsequently amended by inseason actions on June 30, 2011 (76 FR 38313). Additional changes to the 2011-2012 specifications and management measures were made in a final rule on May 19, 2011 (76 FR 28897), an interim final rule on June 15, 2011 (76 FR 34910), and in a correcting amendment on September 2, 2011 (76 FR 54713). These specifications and management measures are codified in the CFR (50 CFR part 660, subparts C through G).

Changes to current groundfish management measures implemented by this action were recommended by the Council at its September 12-19, 2011 meeting in San Mateo, California. The Council recommended adjustments to current groundfish management measures to respond to updated fishery information and other inseason management needs. The adjustments to fishery management measures are not expected to result in greater impacts to overfished species than originally projected through the end of 2011. Estimated mortality of overfished and target species are the result of management measures designed to achieve, to the extent possible, but not exceed, ACLs of target species while fostering the rebuilding of overfished stocks by remaining within their rebuilding ACLs.

The Council recommended and NMFS is implementing a modest increase for the open access sablefish fishery trip limits south of 36° N. lat.

There is no formal allocation of sablefish between the limited entry fixed gear and open access sablefish daily trip limit (DTL) fisheries south of 36° N. lat. The Council designed 2011 trip limits for these two commercial groundfish non-trawl fisheries south of 36° N. lat. that were anticipated to allow slightly more overall harvest of sablefish by the limited entry fixed gear fishery. 2011 trip limits were also designed so that, when catches in each sector are combined, total impacts of these two fisheries are anticipated to approach but not exceed the 2011 non-trawl allocation for sablefish south of 36° N. lat.

Catch of sablefish in the limited entry fixed gear sablefish DTL fishery south of 36° N. lat. has been higher than anticipated. Based on the most recent fishery information, if no action is taken and catch remains higher than expected, landings of sablefish in this fishery through the end of the year would be 440 mt. This level of catch would exceed the sablefish harvest target of 373 mt for this fishery by approximately 12 percent. However, catch of sablefish in the open access sablefish DTL fisheries south of 36° N. lat. has been lower than anticipated. Based on the most recent fishery information, if no action is taken and catch remains lower than expected, landings of sablefish through the end of the year would be 203 mt. This level of catch would be approximately 64 percent below the sablefish harvest target for this fishery of 319 mt.

The Council considered several combinations of trip limit changes in the limited entry fixed gear and open access sablefish DTL fisheries south of 36° N. lat. to maintain fishing opportunities through the remainder of 2011 where possible, while keeping catch within the 2011 sablefish ACL for the area south of 36° N. lat.

Since there is no formal allocation between the limited entry fixed gear and open access sablefish DTL fisheries south of 36° N. lat. and since one fishery had a small projected overage and the other had a large projected underage, the Council recommended a modest increase in the open access sablefish DTL fishery trip limits for the end of 2011. With this increase in sablefish trip limits for Period 6 (November-December) for the open access sablefish DTL fishery, and retention of the current trip limits in the limited entry fixed gear sablefish DTL fishery, projected catches in these two fisheries combined is 652 mt, 60 mt below the 2011 non-trawl allocation for sablefish south of 36 N. lat. of 712 mt adjusted for discard mortality.

West Coast Groundfish Observer data indicate that impacts to overfished species in the commercial fixed gear sablefish fisheries south of 36° N. lat. are extremely low. Therefore, increases to trip limits to raise projected impacts closer to the 2011 sablefish non-trawl allocation and the ACL are not anticipated to result in changes to impacts to co-occurring overfished groundfish species.

Therefore, the Council recommended and NMFS is implementing an increase for the open access fishery trip limits south of 36° N. lat. from “300 lb (136 kg) per day, or 1 landing per week of up to 1,200 lb (544 kg), not to exceed 2,400 lb (1089 kg) per 2 months” to “300 lb (136 kg) per day, or 1 landing per week of up to 1,500 lb (680 kg), not to exceed 3,000 lb (1361 kg) per 2 months” beginning in period 6, on November 1, through the end of the year.

The Council recommended and NMFS is implementing trip limit increases for shallow nearshore rockfish in the limited entry fixed gear and open access fishery south of 40°10′ N. lat.

At its September meeting, the Council considered how catches in the nearshore fishery as a whole south of 40°10′ N. lat. have been lower in 2011 than in previous years, and considered modest increases to allow additional harvest opportunities for shallow nearshore rockfish while keeping total catch within the applicable harvest guidelines.

Modest increases to the shallow nearshore rockfish trip limits in the limited entry fixed gear and open access fisheries in Period 6 (November 1 through December 31) are not projected to increase impacts to co-occurring overfished rockfish.

Therefore, the Council recommended and NMFS is implementing trip limit changes for shallow nearshore rockfish in the limited entry fixed gear and open access fishery south of 40°10.00′ N. lat.:from “600 lb (272 kg) per 2 months” south of 40°10.00′ N. lat. in Period 6 (November-December) to “1,000 lb (454 kg) per 2 months” beginning in Period 6, on November 1, through the end of the year.

This final rule makes routine inseason adjustments to groundfish fishery management measures based on the best available information and is taken pursuant to the regulations implementing the Pacific Coast Groundfish FMP.

These actions are taken under the authority of 50 CFR 660.60(c) and are exempt from review under Executive Order 12866.

These inseason adjustments are taken under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), and are in accordance with 50 CFR part 660, subparts C through G, the regulations implementing the FMP. These actions are based on the most recent data available. The aggregate data upon which these actions are based are available for public inspection at the Office of the Administrator, Northwest Region, NMFS, (seeADDRESSES) during business hours.

For the following reasons, NMFS finds good cause to waive prior public notice and comment on the revisions to biennial groundfish management measures under 5 U.S.C. 553(b)(B) because notice and comment would be impracticable and contrary to the public interest. Also, for the same reasons, NMFS finds good cause to waive the 30-day delay in effectiveness pursuant to 5 U.S.C. 553(d)(3), so that this final rule may become effective as quickly as possible.

The recently available data upon which these recommendations were based was provided to the Council, and the Council made its recommendations, at its September 12-19, 2011, meeting in San Mateo, California. The Council recommended that these changes be implemented by November 1, 2011 or as quickly as possible thereafter. There was not sufficient time after that meeting to draft this document and undergo proposed and final rulemaking before these actions need to be in effect. For the actions to be implemented in this final rule, affording the time necessary for prior notice and opportunity for public comment would prevent the Agency from managing fisheries using the best available science to approach, without exceeding, the ACLs for federally managed species in accordance with the FMP and applicable laws. The adjustments to management measures in this document affect commercial fisheries off Washington, Oregon, and California.

Changes to trip limits for sablefish in the open access sablefish DTL fishery south of 36° N. lat. and for shallow nearshore rockfish in the limited entry fixed gear and open access fisheries south of 40° 10′ N. lat. will allow fishermen additional harvest opportunities for sablefish and for species within the shallow nearshore rockfish complex. These changes are necessary to relieve a restriction by allowing additional harvest opportunities, while staying within ACLs. These changes must be implemented in a timely manner, as quickly as possible, so that fishermen are allowed increased opportunities to harvest available healthy stocks while preventing stocks from exceeding their ACLs. These changes are intended to meet the goal of the Pacific Coast Groundfish FMP to achieve maximum biological yield while keeping within the constraints of overfished species rebuilding requirements. It would be contrary to the public interest to wait to implement these changes until after public notice and comment, because that would prevent fishermen from taking these fish at the time they are available, preventing additional harvest in fisheries that are important to coastal communities.