Correction

In theFederal Registerof July 13, 2012, in FR Doc. 2012-16233, the following corrections are made:

5. On page, 41646 in the 57th line of the first column remove “14” after the phrase, “resulting in a total annual burden of” and add in its place “16.”

On page 41627, in the 14th line from the bottom of the first column, it states: “Finally, the Commission has submitted a new collection of information titled ‘Rule 3Ca-1 Stay of Clearing Requirement and Review by the Commission under the Securities Exchange Act of 1934' to OMB for review in accordance with 44 U.S.C. 3507 and 5 CFR 1320.11. OMB has not yet assigned a control number to the new collection of information.” The Commission has submitted the collection of information under Rule 3Ca-1 as part of the collection of information in “Rule 19b-4 Filings with Respect to Proposed Rule Changes by Self-Regulatory Organizations” (OMB Control No. 3235-0045), so a new control number for the information collection request under Rule 3Ca-1 will not be assigned. We provide below a clarification of why the information collection request under Rule 3Ca-1 was submitted under OMB Control No. 3235-0045:

Section 3C of the Exchange Act, as added by Section 763(a) of the Dodd-Frank Act (“Exchange Act Section 3C”) requires each clearing agency that plans to accept a security-based swap (or any group, category, type or class of security-based swaps) for clearing to submit such security-based swap to the Commission (referred to herein as a “Security-Based Swap Submission”) for a determination by the Commission of whether the security-based swap (or any group, category, type or class of security-based swaps) referenced in the submission is required to be cleared.1 The amendments to Rule 19b-4 and Form 19b-4 will require, among other things, that clearing agencies file Security-Based Swap Submissions and any related information electronically with the Commission on Form 19b-4 using the existing Electronic Form 19b-4 Filing System.2

Exchange Act Section 3C also provides that after making a mandatory clearing determination, the Commission, on application of a counterparty to a security-based swap (or group, category, type, or class of security-based swaps), or on its own initiative, may stay the clearing requirement.3 The Commission adopted new Rule 3Ca-1 to establish the procedure by which the Commission may stay the requirement that a security-based swap is subject to mandatory clearing while the clearing of the security-based swap is reviewed.4 The collection of information required by new Rule 3Ca-1 will be used by the Commission to determine whether to grant the stay of the clearing requirement sought by a counterparty and to review whether the clearing requirement will continue to apply to the security-based swap (or group,category, type, or class of security-based swaps) referenced in the application for a stay.5

After reviewing the collection of information requirements for the amendments to Rule 19b-4 and Form 19b-4 and for new Rule 3Ca-1, the Commission believes that the procedures for reviewing Security-Based Swaps Submissions and applications for a stay from a mandatory clearing requirement are so closely connected that the collection of information should be included in a single submission to OMB. Specifically, the number of applications for a stay from a mandatory clearing requirement will, at least in part, be dependent on the number of mandatory clearing determinations the Commission makes pursuant to a Security-Based Swap Submission filed pursuant to Rule 19b-4 and on Form 19b-4.6 In estimating the collection of information requirement related to new Rule 3Ca-1, the Commission drew a comparison between the amount of time it would take for a clearing agency to prepare a Security-Based Swap Submission and the amount of time it would take a counterparty to prepare an application of a stay of a clearing requirement, given that each filing would likely address similar issues related to the clearing of the particular security-based swap.7 In addition, the Commission believes that an application for a stay will take less time to prepare than a new submission, due to the fact that some of the information addressed in the application for a stay will have already been provided with the Security-Based Swap Submission when it was published for notice and comment.8 Accordingly, the Commission believes that the collection of information that is required in connection with a request for a stay under new Rule 3Ca-1 is interrelated to the collection of information under Rule 19b-4 and Form 19b-4 and should not be treated as a separate collection of information. For that reason, the Commission has submitted the collection of information under Rule 3Ca-1 as part of the collection of information in “Rule 19b-4 Filings with Respect to Proposed Rule Changes by Self-Regulatory Organizations” (OMB Control No. 3235-0045).

Before Commissioners: Jon Wellinghoff, Chairman; Philip D. Moeller, John R. Norris, Cheryl A. LaFleur, and Tony T. Clark.

1. The Commission's regulations pertaining to its Continuity of Operations Plan (COOP) were originally developed to address emergency conditions lasting up to 30 days during which Commission headquarters operations are disrupted or communications are unavailable, either of which may prevent the public or the Commission from meeting regulatory or statutory requirements.1 Events such as the power outage and earthquake that affected Commission headquarters operations in 2011 show that the Commission's regulations pertaining to its COOP need to address a wide range of disruptions during which the Commission's headquarters is unable to function, either in whole or in part, in the ordinary manner. Accordingly, this Final Rule revises the Commission's regulations pertaining to its COOP to better address not only longer term and catastrophic events, but also shorter term events such as loss of power or water.

2. The Commission, in this Final Rule, adopts revisions to its COOP regulations. In doing so, however, the Commission emphasizes that its goal in the event of an emergency is to continue operations in as normal a manner as circumstances allow,2 and, where a full or partial suspension of agency operations does occur, to return to full, normal operations as quickly as possible.

3. With this approach in mind, this Final Rule revises the Commission's COOP regulations to allow greater discretion to respond to the varying situations which may disrupt Commission headquarters functions.3 This Final Rule recognizes that Commission headquarters operations may be temporarily disrupted in whole or in part, or communications with Commission headquarters may be temporarily unavailable, in whole or in part, due to a variety of causes and for periods of varying length depending onthe cause. Accordingly, this Final Rule allows for the activation of the COOP and, following such activation, for the suspension of Commission operations, in whole or in part, as appropriate, in a variety of emergency situations, including situations such as loss of power or water.

4. Currently, the COOP can be activated for a period of varying length up to 30 days. This Final Rule explicitly provides that the Chairman (or the Chairman's delegate, pursuant to section 376.205 of the Commission's regulations,4 as appropriate) may activate the COOP, and, following activation of the COOP, suspend Commission operations in whole or in part.5 The Final Rule also explicitly provides that the Chairman (or the Chairman's delegate) may shorten the time during which the COOP is activated to less than 30 days, and the Commission (or the Commission's delegate pursuant to section 376.204 of the Commission's regulations,6 as appropriate) may extend the time during which the COOP is activated to beyond 30 days, and that the Chairman (or the Chairman's delegate) may similarly shorten any suspension of Commission operations, and the Commission (or the Commission's delegate) may similarly extend any suspension of Commission operations. This Final Rule further explicitly provides time for the Commission to transition from the period when the COOP is active, and when Commission operations are suspended in whole or in part, to a return to full Commission functionality and normal operations.7 To aid this transition, this Final Rule not only provides time for such transition but also explicitly provides that the Chairman (or the Chairman's delegate) may deactivate the COOP and may resume Commission operations either simultaneously for all activities, or activity by activity gradually over time, as the Chairman (or the Chairman's delegate) determines to be appropriate, in order to better manage the return to full Commission functionality and normal operations.

5. This Final Rule revises the timing of when filings are due and when the Commission must act, in the event of a suspension of Commission operations. This Final Rule also adds to the existing list of requirements which are suspended during a suspension of Commission operations several matters that were either inadvertently left out of prior Final Rules or were only implicitly covered, including: (1) comments responding to notices of inquiry; (2) responses to deficiency letters; (3) notices of intent to file new applications and applications for new licenses pursuant to section 15 of the Federal Power Act; (4) requests for rehearing of orders or letter orders issued by the Commission or its delegate; and (5) certain submittals by the Electric Reliability Organization.

6. This Final Rule further explicitly provides that administrative law judges and the Commission may reschedule hearings, conferences, and other meetings after the resumption of Commission operations following the suspension of those operations.

7. The Regulatory Flexibility Act of 1980 (RFA)8 generally requires a description and analysis of Final Rules that will have a significant economic impact on a substantial number of small entities. This Final Rule concerns a matter of internal agency procedure and it will not have such an impact. An analysis under the RFA is not required.

8. Office of Management and Budget (OMB) regulations require OMB to approve certain information collection requirements imposed by agency rule.9 This Final Rule contains no new information collections. Therefore, OMB review of this Final Rule is not required.

9. The Commission is required to prepare an Environmental Assessment or an Environmental Impact Statement for any action that may have a significant adverse effect on the human environment. Excluded from this requirement are rules that are clarifying, corrective, or procedural or that do not substantially change the effect of the regulations being amended.10 This rule is procedural in nature and therefore falls within this exception; consequently, no environmental consideration is necessary.

10. In addition to publishing the full text of this document in theFederal Register, the Commission provides all interested persons an opportunity to view and/or print the contents of this document via the Internet through the Commission's Home Page (http://www.ferc.gov) and in the Commission's Public Reference Room during normal business hours (8:30 a.m. to 5:00 p.m. Eastern time) at 888 First Street NE., Room 2A, Washington, DC 20426.

11. From the Commission's Home Page on the Internet, this information is available in eLibrary. The full text of this document is available on eLibrary in PDF and Microsoft Word format for viewing, printing, and/or downloading. To access this document in eLibrary, type the docket number excluding the last three digits (i.e., the subdocket number—e.g., 000, 001, 002, etc.) in the docket number field.

12. User assistance is available for eLibrary and the Commission's Web site during normal business hours. For assistance, please contact Online Support at 1-866-208-3676 (email atFERCOnlineSupport@ferc.gov), or the Public Reference Room at (202) 502-8371, TTY (202) 502-8659 (email atpublic.referenceroom@ferc.gov).

13. The provisions of 5 U.S.C. 801 regarding Congressional review of Final Rules do not apply to this Final Rule because the rule concerns agency procedure and practice and will not substantially affect the rights of non-agency parties.

14. These regulations are effective on July 25, 2012. The Commission finds that notice and public comments are unnecessary because this rule concerns only agency procedure or practice. Therefore the Commission finds good cause to waive the notice period otherwise required before the effective date of a Final Rule.

In consideration of the foregoing, the Commission amends part 376, Chapter I, Title 18, Code of Federal Regulations, to read as follows:

Background

We published a Notice of Proposed Rulemaking (NPRM) in theFederal Registeron September 13, 2011.1 In the NPRM, we proposed to give adjudicators the discretion to proceed to the fifth step of the sequential evaluation process for assessing disability when we have insufficient information about a claimant's past relevant work history to make the findings required for step 4. If an adjudicator finds at step 5 that a claimant may be unable to adjust to other work existing in the national economy, the adjudicator will return to the fourth step to develop the claimant's work history and make a finding about whether the claimant can perform his or her past relevant work. The expedited process does not affect our responsibility under the Social Security Act (Act) and our current regulations to make every reasonable effort to develop claimants' medical evidence.2 The preamble to the NPRM provides a full explanation of the background of this expedited process. You can view the preamble to the NPRM by visitingwww.regulations.govand searching for document “SSA-2010-0060-0001.”

We provided 60 days for the public to comment on the NPRM. We received three comment letters. They came from a member of the disability advocacy community, a regional disability advocacy group, and a national group of Social Security claimants' representatives. You can view the comments by visitingwww.regulations.govand searching for “SSA-2010-0060.” After carefully considering the comments, we are adopting our proposed revisions, with a few minor changes described below, in these final rules.

Because of their length, we have condensed, summarized, and paraphrased the comments and responded to the significant issues raised by the commenters that were within the scope of these rules.

Comment:One commenter expressed concern that adjudicators may incorrectly deny claims if they do not fully develop claimants' past work histories and consider the special medical-vocational profiles.3 To ensure that adjudicators properly consider the special profiles, the commenter recommended that we require adjudicators who do not make findings at step 4 to state that they considered the potential application of the special profiles before they deny claims at step 5.

Response:We agree with the commenter that adjudicators who do not make findings at step 4 using the expedited process must consider the potential application of the special medical-vocational profiles before they deny claims at step 5. To remind our adjudicators to consider the special profiles in this situation, we are including a reference to section 404.15624 in final sections 404.1520(h) and 404.1594(f)(9) and a reference to section 416.9625 in final sections 416.920(h) and 416.994(b)(5)(viii). We are also including a reference to section 404.1562 in final section 404.1545(a)(5)(ii) to be consistent with the reference to section 416.962 we proposed and are adopting in final section 416.945(a)(5)(ii).

However, we are not adopting the suggestion to require adjudicators to state that they considered medical-vocational profiles in this situation because we can address the commenter's concern in ways that we believe will be more effective.

First, we currently have an electronic claims analysis tool in widespread use at the initial level of our administrative review process that reminds adjudicators to consider these profiles before they evaluate claims at step 5. We will insert a similar reminder in this tool so that adjudicators will consider special profiles before determining whether to proceed to step 5 using the expedited process. As we indicated in the NPRM, if adjudicators use theexpedited process, they will still consider whether claimants may be disabled based on the special medical-vocational profiles, the Medical-Vocational Guidelines (Guidelines),6 or an inability to meet the mental demands of unskilled work.7 We also explained that “[i]f any of these rules would indicate that the claimant may be disabled or if the adjudicator has any doubt whether the claimant can perform other work existing in significant numbers in the economy, the adjudicatormustreturn to step 4 to further develop the claimant's vocational information and determine whether the claimant can perform his or her past relevant work.”8 If there is insufficient evidence about a claimant's past relevant work in the record to determine whether a special medical-vocational profile applies, the adjudicator must return to step 4 to further develop the vocational evidence because a special medical-vocational profile may apply.

Second, we plan to conduct training on these final rules for adjudicators at all levels of the disability determination process regarding use of the new expedited process. We will also monitor the use of the expedited process during quality reviews to ensure that we apply the process correctly.

Comment:One commenter doubted whether we could deny claims at step 5 using the expedited process because a step 5 analysis must include consideration of claimants' past work histories. Another commenter stated we should always develop a complete past work history because evidence of past work can influence our finding at step 5 and can inform our assessment of the claimant's residual functional capacity (RFC).9

Response:We disagree with these comments. There are a number of situations in which it would be appropriate to deny a claim without considering a claimant's past work history. For example, if a claimant is 44 years old with a high school education and has the RFC to perform a full range of sedentary work, Rules 201.27, 201.28, and 201.29 of the Medical-Vocational Guidelines (Guidelines) direct that this claimant be found not disabled, regardless of the skill level of his or her past relevant work or the transferability of those skills.10 As we explained in the NPRM, adjudicators will only find that a claimant is not disabled without returning to step 4 when they can find at step 5 that a claimant is not disabled “based solely on age, education, and RFC,regardless of the claimant's skill level and transferability of those skills.” 11

We also disagree with the comment that we need evidence of past work history to determine a claimant's RFC. As our current rules make clear, we determine a claimant's RFCbeforewe go to step 4,12 and we do not assess RFC in the context of a claimant's past work history. Rather, we determine a claimant's RFC based on his or her ability to meet the “physical, mental, sensory, and other requirements of work”13 on a “regular and continuous basis.”14 For example, the physical demands of work include activities such as sitting, standing, and walking.15 We do not assess RFC in the context of a claimant's past work history; therefore, we can use the proposed expedited process regardless of past work history development.

Comment:One commenter questioned our view that the expedited process would not disadvantage any claimant16 and expressed several concerns. The commenter believed that adjudicators would have too much discretion to decide when to use the expedited process because we did not explain what we mean by “insufficient” evidence to make a finding at step 4. The commenter said that by not requiring our adjudicators to make even a “reasonable effort” to obtain additional evidence of past work history, we diminish their duty to develop the record, even if evidence is readily available. The commenter also said that if we adopted the expedited process we would adjudicate claims using different procedures and would incorrectly deny some claims without fully assessing some claimants' abilities to perform their past relevant work. The commenter recognized that making the correct decision “as early in the process as possible is the key to a fair process,” but said that the expedited process might lead us to deny claims incorrectly due to insufficient development of past work.

Response:We disagree with these comments. First, in response to the commenter's concern about the definition of “insufficient,” we explained in the NPRM that we would consider evidence to be insufficient when a claimant does not provide us with enough information about each of his or her jobs within the relevant 15-year period on Form SSA-3368, Disability Report-Adult, (or the Internet version of this form)17 and, when necessary, Form SSA-3369, Work History Report,18 for us to make a finding at step 4.19 Our adjudicators are familiar with the concept of “insufficient evidence” in this context, and we are confident that they understand reference to “insufficient evidence” of a claimant's ability to do his or her past work. We also have not revised these rules to require adjudicators to make a reasonable effort to collect additional work history before going to step 5 in all cases. Imposing such a requirement would delay adjudication in those cases in which the claimant's past relevant work history has no effect on the ultimate finding of disability.

Although use of the expedited process may change whether we deny a claim at step 5 versus step 4, we expect that it will not change the ultimate determination of whether the claimant is disabled. We will only deny a claim at step 5 using the expedited process if the claimant's age, education, and RFC indicate that he or she is not disabled regardless of what an inquiry into past relevant work would reveal. As we noted in the NPRM, our experience using a similar expedient in the ten “prototype” States supports the conclusion that the expedited process does not change our ultimate decision as to whether or not a claimant is disabled.20

We are correcting a cross-reference in §§ 404.1527 and 416.927 to reflect renumbering changes in a final rule published on February 23, 2012 at 77 FR 10651.

We consulted with the Office of Management and Budget (OMB) and determined that these final rules meet the criteria for a significant regulatory action under Executive Order 12866, as supplemented by Executive Order 13563. Thus, OMB reviewed them.

We certify that these final rules will not have a significant economic impact on a substantial number of small entities because they only affect individuals. Therefore, the Regulatory Flexibility Act, as amended, does not require us to prepare a regulatory flexibility analysis.

These final rules do not create any new or affect any existing collections; therefore, they do not require OMB approval under the Paperwork Reduction Act.

For the reasons set out in the preamble, we are amending title 20 of the Code of Federal Regulations part 404 subpart P and part 416 subpart I as set forth below:

Background

As we discussed in the interim final rule, in March 2010 Congress passed the Affordable Care Act, which established an income-related adjustment to Medicare prescription drug coverage premiums.1 The interim final rule added a new subpart C, Income-Related Monthly Adjustments to Medicare Prescription Drug Coverage Premiums, to part 418 of our rules. Subpart C contains the rules that we use to determine when you will be required to pay an income-related monthly adjustment amount in addition to your Medicare prescription drug coverage monthly premium.

The interim final rule also amended our rules on the Medicare Part B (supplementary medical insurance) income-related monthly adjustment amounts to add section 418.1322. This section explains that if we make an income-related monthly adjustment amount determination for you for the effective year for purposes of the Medicare prescription drug coverage program, we will apply the same income-related monthly adjustment amount determination to your Medicare Part B premium for the same effective year.

On December 7, 2010, we published an interim final rule with request for comments in theFederal Registerat 75 FR 75884 and provided a 60-day comment period. We received one comment from a member of the public, comments from one organization, and joint comments from four other organizations. We carefully considered the concerns expressed in these comments, but did not make any changes to the interim final rule. We have summarized the commenters' views and have responded to the significant comments that are within the scope of the interim final rule.

Comment:One commenter stated that the reasoning behind charging higher Medicare premiums is flawed because citizens who have contributed more to the system should have access to the same products and benefits at the same rate as other citizens. The commenter considered the income-related monthly adjustment to be a tax that could only be established by amending the tax code and suggested that a better alternative would be to reduce Medicare premiums and apportion the costs for primary coverage among the multiple health insurance policies that he believes most beneficiaries have.

Response:We have not adopted this comment because the reduction of Federal premium subsidies was legislated by Congress, and our regulations must conform to the provisions of the law.

Comment:One organization suggested that we provide notices to beneficiaries affected by the income-related monthly adjustment as early as possible, for example, by October 31 for premium adjustments beginning the following January. The commenter stated that early notice would give enrollees timeto adjust their finances, raise any disagreements with income determinations, and reduce the number of retroactive adjustments that are required.

Response:We did not adopt this comment. The Internal Revenue Service provides us with modified adjusted gross income data no later than October 15 of each year, as required by law.2 We must then process the data, verify our data processing, print, and mail the notices. For this reason, we cannot provide notice to beneficiaries regarding the income-related monthly adjustment amount as early as October 31. We do strive to mail the notices promptly and believe that delivery before December provides sufficient time for beneficiaries to make suitable preparations.

These notices contain information about beneficiaries' appeal rights and notify the beneficiaries that they have 60 days to file an appeal when they disagree with the determination. Our notices also inform the beneficiaries of their right to request a new initial determination.

Comment:Another comment encouraged us to develop materials to explain what beneficiaries who pay an income-related monthly adjustment can do if they experience a major life-changing event and a significant reduction in income, but have not yet filed a tax return reflecting that change.

Response:We already provide information to beneficiaries concerning the issues the commenter raised. When we send a letter telling a beneficiary that he or she must pay an income-related monthly adjustment, we include comprehensive information about what the beneficiary can do if he or she experiences a major life-changing event with a significant reduction in income. We also make available at our offices and on our web site, publications with information explaining this issue.3 The Centers for Medicare & Medicaid Services (CMS) also provides information on this subject on its Medicare Web site,www.medicare.gov.

Comment:A comment submitted jointly by four organizations proposed a change in regulations to clarify that a beneficiary's appeal of the imposition of an income-related monthly adjustment on Medicare Part B would automatically apply to an income-related monthly adjustment imposed on Medicare prescription drug coverage, and vice versa. In addition, the organizations suggested that if a beneficiary appeals either a Medicare Part B or Medicare prescription drug coverage income-related monthly adjustment initial determination, we should suspend determinations for both parts until the appeals process is complete and there is a final determination. The commenters proposed that joining the appeals and determinations resulting from those appeals would be beneficial in saving time and paperwork.

Response:We agree that 20 CFR 418.1322 and 418.2322 ensure that we apply any income-related monthly adjustment decision made in one program to the other. Under these provisions, if we make a new decision or change a decision on appeal for one program, we will also apply the decision to the other program.

Thus, if a beneficiary has both Medicare Part B and Medicare prescription drug coverage, any changes to an income-related monthly adjustment determination made on appeal will affect both programs and separate appeals are not necessary. In the current income-related monthly adjustment appeal process, we do not suspend the collection of the income-related monthly adjustment while the beneficiary appeals the determination. We make every effort possible to adjudicate the appeal quickly and implement the decision immediately thereafter. If an appeal decision results in an overpayment of premiums, we process refunds without additional action by the beneficiary.

Comment:Another commenter proposed a change in regulations to allow a request for a new initial determination when a beneficiary believes that CMS has provided incorrect Medicare prescription drug coverage information. The commenter stated that beneficiaries not enrolled in a Medicare prescription drug coverage plan are entitled to a workable Social Security Administration (SSA) process to establish that an income-related monthly adjustment does not apply. In addition, the commenter suggested that regulatory language include a requirement that Medicare prescription drug plan sponsors, CMS, and SSA exchange updated enrollment information frequently to decrease the probability that beneficiaries are charged an income-related monthly adjustment inappropriately.

Response:We are not involved in the Medicare prescription drug coverage enrollment process and we cannot determine the absence of coverage without CMS input. Additionally, adding a process to allow a beneficiary to establish the absence of Medicare prescription drug coverage could negatively affect beneficiaries who merely change plans or re-enroll shortly thereafter. The income-related monthly adjustment could be removed and result in the beneficiary owing a lump sum payment when the new plan information is received. CMS provides us with information about participation in Medicare-approved prescription drug coverage, and we refund any incorrectly billed income-related monthly adjustment for prescription drug coverage money as soon as possible.

Comment:The four organizations also suggested that we include the language of the subpart B regulations in the subpart C regulations rather than incorporating the text by cross-references.

Response:We have not adopted the comment. We believe that stating the language one time promotes administrative simplicity. We use cross-references in our regulations in other instances, and we are confident that they do not confuse the reader or make it more difficult to use our regulations. Guidelines issued by the Office of the Federal Register authorize agencies to use cross-references in their rules in appropriate situations, and we believe that the situations in which we have used cross-references in these rules are necessary and appropriate. Moreover, adding the subpart B text to our subpart C rules would make the subpart C regulations more complicated and more difficult to use.

We consulted with the Office of Management and Budget (OMB) and determined that this final rule meets the criteria for a significant regulatory action under Executive Order 12866 as supplemented by Executive Order 13563. Thus, OMB reviewed the final rule.

We certify that this rule will not have a significant economic impact on a substantial number of small entities because it affects individuals only. Therefore, a regulatory flexibility analysis is not required under the Regulatory Flexibility Act, as amended.

These rules do not create any new or affect any existing collections and, therefore, do not require Office of Management and Budget approval under the Paperwork Reduction Act.

Accordingly, the interim final rule amending 20 CFR chapter III, part 418, subpart B and adding subpart C that was published at 75 FR 75884 on December 7, 2010, is adopted as a final rule without change.

Introduction

EEOC enforces the statutes that prohibit workplace discrimination in the federal government. These statutes include: section 717 of Title VII of the Civil Rights Act of 1964, which prohibits discrimination against applicants and employees based on race, color, religion, sex, and national origin; section 501 of the Rehabilitation Act of 1973, which prohibits employment discrimination on the basis of disability; section 15 of the Age Discrimination in Employment Act of 1967, which prohibits employment discrimination on the basis of age; the Equal Pay Act of 1963, which prohibits sex-based wage discrimination; and the Genetic Information Nondiscrimination Act of 2008, which prohibits employment discrimination on the basis of genetic information. EEOC is responsible under these statutes for processing equal employment opportunity (EEO) complaints by Federal employees and applicants.

The EEO complaint process is initiated when a federal employee or job applicant contacts an EEO counselor to allege discrimination. If the allegation is not resolved in counseling, the individual may file a formal EEO complaint with the employing agency and that agency investigates the complaint. At the conclusion of the investigation, the complainant may request a hearing before an EEOC administrative judge or a final decision by the agency. After the hearing or final decision, the complainant may appeal to EEOC. Complainants also have the right to sue the alleged discriminating agency in federal district court if they are not satisfied with the administrative resolution of their complaints.

In 2004, former EEOC Chair Cari M. Dominguez asked Commissioner Stuart J. Ishimaru to lead a workgroup to develop consensus recommendations from the Commissioners for improvements to the EEO complaint process. The Federal Sector Workgroup considered testimony and submissions from the November 12, 2002 Commission meeting on federal sector reform, draft staff proposals for federal sector reform, and numerous submissions from internal and external stakeholders with suggestions for improvements to the federal sector process. The Workgroup determined that it did not have internal consensus for large scale revision of the federal sector EEO complaint process at the time, but that there was agreement on several discrete changes to the existing regulations that would clarify or build on the improvements made by the last major revisions to 29 CFR Part 1614 in 1999. The EEOC plans to accompany this final rule with the issuance of additional guidance in Management Directive 110 and other program changes at EEOC. This final rule is part of an ongoing review by the Commission of the federal sector EEO complaint process in which the Commission is examining recommendations regarding the investigative function, including perceived conflicts of interest in the way investigations are conducted and alternatives to the current investigation process, and the hearings and appellate review process.

A notice of proposed rulemaking (NPRM) was circulated to all agencies for comment pursuant to Executive Order 12067 and subsequently published in theFederal Registeron December 21, 2009. 74 FR 67839 (2009). The notice proposed changes to the Commission's federal sector EEO complaint processing regulations at 29 CFR Part 1614 to implement the recommendations of the Federal Sector Workgroup. It sought public comment on those proposals.

The Commission received thirty-five public comments on the NPRM: fourteen comments from federal agencies; five comments from civil rights groups; five comments from unions and other groups; five comments from attorneys; and six comments from individuals. The Commission has carefully considered all of the comments and has made several changes to the NPRM in response to the comments. The comments on the NPRM and the changes made are discussed more fully below.

The Workgroup considered many recommendations for improvement tothe parts of the federal sector EEO complaint process for which the agencies bear responsibility—counseling, investigations, and final actions. The Workgroup made a number of non-regulatory and regulatory recommendations to improve the agency process. This final rule contains the following changes to the agency EEO complaint process in part 1614.

The final rule adds two new paragraphs to § 1614.102. One paragraph, § 1614.102(e), requires that agency EEO programs comply with part 1614 and the Management Directives and Bulletins issued by EEOC (hereinafter “compliance proposal”) to carry out section 717 of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e-16, and indicates that the Commission will review programs for compliance. The final rule further provides that, as part of EEOC's compliance efforts, the Chair may issue notices to agencies when non-compliance is found, and may publicly identify non-compliant agencies (hereinafter “program review proposal”). With these provisions, the Commission intends to re-emphasize all agencies' obligations to comply with EEOC's “rules, regulations, orders, and instructions,” as required by section 717 of Title VII, 42 U.S.C 2000e-16(b), and to provide some additional mechanisms for reviewing and seeking compliance from agencies that fail to comply with the requirements of Part 1614, Management Directive 110, Management Directive 715, and Management Bulletin 100-1, or any Management Directives or Bulletins that may be issued in the future to carry out section 717 of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C 2000e-16.

The majority of comments, including those submitted by several agencies, supported both proposals, with more than a third of them recommending that EEOC adopt stronger provisions, such as making reports of non-compliance public and providing for sanctions against non-complying agencies. A handful of agencies objected to the compliance proposal, arguing that it is duplicative of Title VII's requirement that agencies comply with EEOC guidance and instructions, and that, if enacted, the compliance proposal will give regulatory effect to EEOC Management Directives and Bulletins without notice and comment, in violation of the Administrative Procedure Act (APA). With respect to the program review proposal, several agencies requested that the regulation specifically provide for agency opportunity to comply or provide an explanation for non-compliance before EEOC issues a notice of non-compliance.

EEOC has slightly modified the proposed language of the NPRM to remove a reference to the Chair identifying non-compliant agencies in the Annual Report on the Federal Workforce, and has replaced it with a more general provision stating that, if the Office of Federal Operation's (OFO) attempts at compliance are not successful, the Chair may publicly identify non-compliant agencies. The compliance proposal derives from section 717(b) of Title VII, 42 U.S.C. 2000e-16(b), which requires an agency to comply with EEOC rules and directives pertaining to federal sector EEO programs (“the Equal Employment Opportunity Commission shall have authority to enforce the provisions of subsection (a) of this paragraph through appropriate remedies * * * and shall issue such rules, regulations, orders and instructions as it deems necessary and appropriate to carry out its responsibilities under this section * * *. The head of each such department, agency, or unit shall comply with such rules, regulations, orders, and instructions * * *).” Similarly, Executive Order 12067 authorizes EEOC to develop rules, policies, and guidelines to administer the federal sector EEO program and requires agencies to comply with those directives. While the compliance proposal, as some agencies noted, reiterates the authority given to EEOC under Title VII, it has been EEOC's experience that not all agencies understand that they are required to comply not only with the rules set forth in 29 CFR part 1614, but also with the compulsory instructions in EEOC's Directives and Bulletins, such as MD-110. Therefore, the compliance proposal is necessary to underscore both EEOC's authority over the federal sector EEO program and an agency's duty to maintain its EEO program consistent with EEOC's mandatory directives.

Agency concerns that the compliance proposal will deny them an opportunity to comment upon orders and procedures that EEOC may issue in the future are misplaced. Under Executive Order 12067, before EEOC issues a new rule, directive, or bulletin about the federal sector EEO program, it must first afford each federal agency an opportunity to comment, advise and consult. As a result, any new rule, directive, or bulletin contemplated by EEOC will go through this interagency coordination process and therefore no EEOC rule, directive, or bulletin, will be issued without agency notice and comment.

With respect to those agency objections that specifically rely on the APA, the National Employment Lawyers Association (NELA), in its comments, argues that “the relationship between the EEOC and federal agencies is not governed by the APA, which allows a challenge to agency action only by a `person suffering legal wrong.' ”See5 U.S.C. 702. Under the APA, a “person” includes entities “other than agencies.” 5 U.S.C. 551(2). Therefore, NELA argues, an agency is not an entity afforded the protection an individual enjoys under the APA. Even assuming that an agency lacks standing under the APA to complain about APA protections, EO 12067 provides agencies the notice and comment protections about which the agencies expressed concerns in their comments. As noted above, agencies will have the opportunity to review and comment upon future EEOC rules, directives, and bulletins before they are issued.

EEOC's intent is to assist agencies in perfecting their EEO programs and to persuade agencies whose EEO programs fall short of EEOC standards to correct any noted deficiencies. There will not be a single process for determining non-compliance. Each situation will depend upon the nature of the alleged non-compliance, how the non-compliance comes to EEOC's attention, and how the agency responds to EEOC's inquiries and attempts to obtain compliance. Therefore, it is not feasible to explain how EEOC will determine in every instance whether an agency is in compliance with 29 CFR part 1614 or the mandatory language in EEOC's Directives and Bulletins. In all instances, however, before the Chair issues an agency a notice of non-compliance, the agency will be given a reasonable opportunity to justify its non-compliance or persuade EEOC that it is in compliance with EEOC's regulation or the mandatory sections of EEOC's Directives and Bulletins. As appropriate, EEOC may also make the Chair's notice of non-compliance public. The program review procedures will be set out in MD-110.

The second new paragraph in § 1614.102 permits EEOC to grant agencies variances from particular provisions of part 1614 to conduct pilot projects for processing complaints in ways other than those prescribed in part 1614. The NPRM provided that pilots would be subject to EEOC approval by vote of the Commissioners and that approval would usually not be grantedfor more than 12 months. The Commission supports pilot projects because they can provide helpful data for future recommendations regarding changes to the federal sector EEO complaint process.

All of the agencies and several other commenters supported the pilot projects proposal. In the NPRM, the Commission specifically requested comments on the proposed 12 month maximum timeframe for pilot projects. Comments on the appropriate timeframe for pilot projects were mixed, with some noting that a year is sufficient, and others arguing that a two year timeframe would be preferable. The majority of commenters on the timeframe recommended that EEOC permit extensions of whatever timeframe is adopted. In addition, several comments suggested that agencies be permitted to keep pilot projects in place until all complaints that have entered the pilot project are fully processed. About a third of the commenters expressed concerns about the pilot project proposal. Some recommended that pilot projects be limited to the investigative stage only. Some suggested that pilot projects should be entirely voluntary with an opt-out feature. Others recommended that EEOC include in the regulation criteria that will ensure the protection of complainants' rights in pilot projects. Finally, some commenters noted that federal employee unions should be involved in the development of agency pilot projects.

We have amended § 1614.102(f) to extend the maximum timeframe for variances from the requirements of part 1614 for pilot projects to 24 months. We believe that the proposed 12 month maximum timeframe was too short for some pilot projects to provide meaningful data for analysis of alternatives to the part 1614 process. We note, however, that the timeframe is a maximum only, not a minimum, and that agencies may develop pilot projects that last less than 24 months as appropriate. We have also added a provision giving the Director of the Office of Federal Operations authority to grant, for good cause shown, requests for extensions of variances for up to 12 months. We note as well that the 24 month maximum timeframe for pilot projects will permit agencies to accept complaints into pilot projects for up to 24 months, and that agencies may conclude processing those complaints in the pilot project for a reasonable period thereafter.

We have also added a sentence to the regulation stating that pilot projects must require that complainants knowingly and voluntarily opt-in to the pilot project. It was always the Commission's intention that complainants must affirmatively choose to participate in pilot projects, and that, if they do not opt-in, their complaints would be processed under the part 1614 process. We note that the Commission plans to issue guidance in its Management Directive 110 on additional criteria that the Commission will consider for pilot projects, e.g., requirements that such projects are not a subterfuge for diminishing complainants' rights, that plans for publicizing the pilot among agency employees should be detailed, that criteria for evaluating the success of the pilot should be adequate, that interim evaluations will be done, that the proposed length of the pilot is justified, and that anticipated start and end dates are reasonable. Guidance will also be included on the timeframes for pilot projects and requests for extensions. Agencies may need to consult or negotiate with their unions about pilot project proposals and, if that is the case, they must do so before submitting proposals to EEOC for approval.

The Commission believes that it is preferable that EEOC provide oversight of pilot projects rather than having agencies secure independent authority to operate pilot projects that deviate from the requirements of part 1614, as has occurred in the past. Commission approval of pilot projects will ensure that agency management does not have unfettered discretion and that pilots will not disadvantage complainants.

The final rule adds a new paragraph to § 1614.108 Investigation of complaints, that requires agencies that have not completed an investigation within the 180-day time limit for investigations (or up to 360 days if the complaint has been amended) to send a notice to the complainant indicating that the investigation is not complete, providing the date by which it will be completed, and explaining that the complainant has the right to request a hearing or file a lawsuit.

The majority of agencies that commented opposed the notice proposal, arguing variously that it is unnecessary, duplicative, and would not add value to the complaint process. A few agencies, however, agreed with the proposal. All other commenters supported the notice proposal, with half of them recommending that it should include stronger provisions, including sanctions against agencies that fail to complete an investigation in 180 days.

The Commission is retaining the notice requirement in the final rule. The Commission believes that it is important that agencies issue a notice to complainants about their rights in the EEO process at the conclusion of the 180-day investigation period so that they can make informed decisions about whether to wait for completion of the investigation, request an immediate hearing, or file a lawsuit. In addition, the Commission believes that requiring such a notice may shorten delays in agency investigations by providing an incentive for agencies to timely complete their investigations. The notice must be in writing, must describe the hearing process and include a simple explanation of discovery and burdens of proof, and must contain an estimated investigation completion date. The Commission further notes that a full range of sanctions are available should an agency not complete its investigation within the required time period. See,Royalv.Dept. of Veterans Affairs,EEOC Request No. 0520080052 (Sept. 25, 2009);Readingv. Dept. of Veterans Affairs,EEOC Appeal No. 07A40125 (October 12, 2006);Talahongva-Adamsv.Dept. of the Interior,EEOC Appeal No. 0120081694 (May 28, 2010). Nor does a complainant waive his right to seek sanctions when an agency fails to complete its investigation within the required timeframe simply because a notice is issued by the agency. Sanctions may be warranted even if the complainant elects not to request a hearing but instead waits for the completion of the investigation, unless a specific extension of time has been sought from, and granted by, the complainant, or for other good cause shown.

In the NPRM, the Commission proposed to amend § 1614.103(b)(6) to comport with the coverage provisions of the Rehabilitation Act and state that part 1614 applies to EEO complaints against the Government Printing Office, except for complaints under the Rehabilitation Act. We received only two comments on the proposal, both favorable. The final rule contains this revision.

EEOC proposed in the NPRM to amend § 1614.107(a)(5) to clarify that complaints alleging discrimination in proposals to take personnel actions or other preliminary steps to taking personnel actions should be dismissed unless the complaint alleges that the proposal or preliminary step is retaliatory. After explaining its rationale for this change, EEOC also discussedalternative language that had been suggested by an agency during the E.O. 12067 interagency coordination. The alternative language provided that complaints alleging discrimination regarding a proposal to take a personnel action, or other preliminary step to taking a personnel action, shall be dismissed “except that with regard to a claim of retaliation, allegations of severe or repeated threats of adverse action may state a claim of a hostile work environment that is not subject to dismissal on such basis.”

The majority of comments supported EEOC's proposal. Non-agency comments were overwhelmingly supportive, and a handful of them specifically rejected the alternative discussed in the preamble. The Leadership Conference on Civil and Human Rights (LCCHR), for example, argued that the alternative has no basis in law and that there is no plausible rationale for requiring a different standard for federal employees. Agency comments were mixed, with some supporting EEOC's proposal, several supporting the alternative, and others simply criticizing EEOC's proposal without mentioning the alternative. The agencies opposing EEOC's proposal generally argued that the change would encourage premature complaints.

EEOC agrees with the comments favoring its proposed change and has retained it in the final rule. The change to § 1614.107(a)(5) is consistent with EEOC policy guidance on retaliation as applied in the private sector.See2 EEOC Compliance Manual § 8-II.D.3 (1998) (“[A]ny adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity” is prohibited retaliation). Moreover, the amendment codifies EEOC appellate decision precedent in the federal sector.See, e.g., Lorina D. Goodwinv.F. Whitten Peters, Secretary, Department of the Air Force,EEOC Appeal Nos. 01991301 & 01A01796, 2000 WL 1616337 (October 18, 2000) (holding that the complainant's challenge of a proposed dismissal as being retaliatory stated a claim because “proposed actions can be considered adverse actions in the reprisal context if they are reasonably likely to deter protected activity”).

A number of commenters, such as the National Treasury Employees Union (NTEU), point out that it is possible that a supervisor might place an employee on a performance improvement plan or propose an adverse action against an employee with the intent of deterring that employee from filing or proceeding with an EEO complaint. And it is not difficult to imagine that the employee could be deterred. A proposed personnel action is not an empty gesture which an employee can ignore without fear of consequences. For example, when a manager proposes a removal for purported performance deficiencies, any employee not wanting to be fired 30 days later must answer the proposal and attempt to refute the agency's allegations of specific performance deficiencies.See generally5 CFR 432.105. Defending against a proposal can be a daunting task, even if the allegations are untrue. Knowing this, an unscrupulous manager who has been accused of employment discrimination could initiate a trumped-up proposed removal in order to cause the employee to drop the complaint and avoid termination. If this occurs, the manager would have engaged in prohibited retaliation under EEOC guidance and precedent, and under the Supreme Court's holding inBurlington Northern & Santa Fe Railway Co.v.White,548 U.S. 53, 68 (2006) (Title VII's anti-retaliation provision protects individuals from a retaliatory action that a reasonable person would have found “materially adverse,” which in the retaliation context means that the action might have deterred a reasonable person from opposing discrimination or participating in the EEO complaint process). Therefore, EEOC believes it is vitally important that an employee be able to challenge as retaliatory a preliminary step to a personnel action or a proposed action that is reasonably likely to deter that employee from engaging in protected activity.

This revision to the dismissal provision does not change the standard for stating a claim of retaliation under Title VII. Agencies should dismiss retaliation complaints filed by complainants who have not engaged in prior EEO activity or opposed unlawful employment practices. Also, while agencies would no longer be able to dismiss a claim alleging that a proposal or preliminary step was retaliatory under 29 CFR 1614.107(a)(5), they would still evaluate the claim under the failure to state a claim dismissal provision in 29 CFR 1614.107(a)(1). Agencies should dismiss complaints of allegedly retaliatory proposals and other preliminary steps under 29 CFR 1614.107(a)(1) if the alleged retaliatory actions are not materially adverse: that is, if the alleged retaliatory proposal or preliminary step would not dissuade a reasonable worker in the complainant's circumstances from engaging in protected EEO activity.1

Not all preliminary steps or proposals are materially adverse. As noted inBurlington Northern,“[a]n employee's decision to report discriminatory behavior cannot immunize that employee from those petty slights or minor annoyances that often take place at work and that all employees experience.” 548 U.S. at 68;see also2 EEOC Compliance Manual section 8-II.D.3 (1998) (“[P]etty slights and trivial annoyances are not actionable, as they are not likely to deter protected activity.”). Therefore, the challenged preliminary step or proposed action must be likely to deter a reasonable employee from protected activity. Given all the circumstances, a threatened letter of warning may not deter a reasonable complainant from filing a complaint, whereas a proposed suspension may have a deterring effect. “Context matters * * * for an `act that would be immaterial in some situations is material in others.' ”Burlington Northern,548 U.S. at 69 (quotingWashingtonv.Illinois Dept. of Revenue,420 F.3d 658, 661 (7th Cir. 2005)).

The alternative language discussed in the preamble of the NPRM regarding 29 CFR 1614.107(a)(5) limits actionable complaints alleging that a proposal or preliminary step is retaliatory to those containing allegations of “severe or repeated threats of adverse action” that “state a claim of a hostile work environment.” The commenters opposed to the alternative, such as NTEU, Leadership Conference on Civil and Human Rights, and the NAACP Legal Defense & Educational Fund (LDEF), were concerned that the burden of proof necessary to establish a hostile work environment is greater than that necessary to show that a reasonable employee has been deterred from engaging in protected activity, especially in the context of threatened actions. These commenters noted that, under the alternative language, retaliation involving only a single or a few threats would not rise to the pervasive level necessary to establish a hostile environment and thus would be permitted unless the actions are sufficiently severe. They expressed concern that only a threat pertaining toan ultimate employment action, such as a removal, would suffice to establish severity under the alternative standard and thus state an actionable claim for retaliation. Under EEOC's proposal, on the other hand, the inquiry focuses more on the context in which the threat is made and the effect that threat would have on a reasonable employee. It is highly unlikely that a threat to transfer an employee's assigned duties without loss of pay or position, as occurred inBurlington Northern,would rise to the requisite level of pervasiveness or severity under the alternative approach, but it could reasonably deter protected activity and thus state a claim under EEOC's proposal.

The Commission believes the concerns expressed in the comments about the alternative proposal are well founded.Burlington Northernstates that the anti-retaliation provisions of Title VII do not mirror the anti-discrimination provisions and that this difference must be given weight when interpreting the statute. 548 U.S. 53, at 62-63. As discussed inMartinelliv.Penn Millers Ins. Co.,269 Fed.Appx. 226, 230, 2008 WL 723973 (3d Cir. March 18, 2008), afterBurlington Northern,an employee claiming “retaliation by workplace harassment” is “no longer required to show that the harassment was severe or pervasive * * *.”See also Thomasv.Atmos Energy Corp.,223 Fed.Appx. 369, 376 n.2, 2007 WL 866709 (5th Cir. March 21, 2007) (“Burlington Northernset a lower threshold for finding an adverse employment action” and thus the employee need not show that he was retaliated against with respect to an “ultimate employment action” such as a removal). As noted by the LDEF, the alternative language ignores this distinction between the anti-retaliation and anti-discrimination provisions and therefore would require a higher threshold both to state a claim and to prevail on claims of retaliation. Additionally, the alternative does not account for threats or actions not related to the workplace, which also is inconsistent with the Court's ruling inBurlington Northern.548 U.S. 53, at 63.

Adopting the alternative language would impose a higher threshold upon federal employees than exists for employees in the private sector and would therefore permit a federal agency to take actions against its employees that would be retaliatory if committed by a private employer. It also would depart from EEOC's own federal sector precedent regarding retaliation and threatened actions. In short, there is no legitimate reason for requiring that only federal employees be subject to the more stringent “severe or pervasive” standard applicable to hostile work environment claims. The alternative approach would make it harder for federal employees to prove retaliation than their private-sector counterparts and would result in significantly less enforcement of the anti-retaliation protections afforded federal employees.

In the NPRM, the Commission proposed to require that agencies submit appellate records and complaint files to the Commission electronically. The NPRM provided that complainants would be encouraged, but not required, to submit appeals and other documentation electronically. The majority of commenters expressed concerns about the electronic filing proposal. The agencies noted that they are concerned about confidentiality of the records and the security of whatever system EEOC employs, noting that all documents would have to be encrypted. They also expressed concerns about costs and the need to budget for the requirement. A handful of other commenters supported the proposal, while others noted that EEOC needs to study security measures, and that the Commission should ensure that there is no adverse impact on complainants who continue to submit paper documents. Several commenters suggested that EEOC model its electronic filing system on the system used by the Merit Systems Protection Board, which permits electronic filing after a party has registered, but does not require it.

We wish to reassure agencies and the public that EEOC will comply with all federal electronic information security requirements with respect to accepting digital records. EEOC has launched a pilot Web site portal electronic filing system that is available to all agencies. In addition, EEOC currently accepts digital complaint files from a number of agencies. Some agencies place scanned files in a secure location on their own Web sites that EEOC accesses with a password. Other agencies submit password-protected CDs containing digital complaint files to EEOC. We have revised the regulation to require the submission of digital records rather than electronic filing. This will allow agencies and others to use the EEOC's portal (when available) or any of the other means described above to submit digital appeals, complaint files, and other filings. The final rule requires that agencies submit these records in an acceptable format to the Office of Federal Operations, absent a showing of good cause why the agency cannot do so. We do not anticipate that cost will constitute good cause in most cases since the cost of scanning equipment is relatively inexpensive and the staff time required to scan documents will probably be the same or less than the staff time required to make paper photocopies of documents. Complainants will be encouraged, but not required, to submit digital appellate records to the Office of Federal Operations. EEOC will provide more detailed guidance regarding acceptable digital formats and what constitutes a showing of good cause in Management Directive 110.

In the NPRM, the Commission proposed to revise § 1614.403(f) to require that briefs in opposition to appeals be submitted to the Commission and served on the opposing party within 35 days of service of the statement or brief supporting the appeal (as opposed to the existing requirement that they be filed within 30 days of receipt of the statement or brief supporting the appeal.) We requested additional comments on irradiation-based mail delay experience. Nearly all of the agencies that commented reported that they often have significant delays in receiving mail because of the irradiation process. They noted that delays can range from ten days to three or four weeks. If the deadline for filing opposition briefs is tied to service, rather than receipt, of the supporting brief, agencies experiencing irradiation mail delays will have fewer days to prepare and submit opposition briefs. Because of the frequency and length of irradiation delays, the Commission can anticipate many motions for extension or apparently untimely briefs with consequent increase in the number of motions for default, which would unnecessarily burden the parties and Commission staff. Accordingly, we have removed the proposed amendment from this final rule, and the current regulation providing that statements or briefs in opposition must be filed within 30 days of receipt of the statement or brief supporting the appeal will remain in effect.

The final rule amends § 1614.405(b) (redesignated as § 1614.405(c)) to provide that decisions under the section are final for purposes of filing a civil action in federal court, unless a timely request for reconsideration is filed by a party to the case. We received only two comments on this proposal, both favorable.

In the NPRM, the Commission proposed to revise § 1614.504(c) to differentiate the remedies available for breach of settlement agreements and breach of final decisions. We received only a handful of comments on the proposal; most were positive. The final rule retains the provision. For breach of a settlement, the regulation continues to state that the Commission may order compliance or reinstatement of the complaint for further processing from the point processing ceased, whereas for breach of a final decision, the regulation states that compliance is the only remedy. The Commission is making final its proposed editorial changes to §§ 1614.402, 1614.405(a), and 1614.409 to correct errors and omissions.

The Workgroup carefully considered the class complaint process and made a number of recommendations to improve its effectiveness. As a result of those recommendations, in the NPRM the Commission proposed to revise the class complaint regulations to make an administrative judge's decision on the merits of a class complaint a final decision, which the agency can fully implement or appeal in its final action. Currently, the administrative judge issues final decisions on the acceptance of class complaints, and the merits of individual complaints, but only issues recommended findings and conclusions on the merits of class complaints, which the agency may accept, reject, or modify in its final decision. Previously, in a 1999 rulemaking, the Commission changed the administrative judge's recommended decisions on the merits of individual complaints and on the acceptance of class complaints to final decisions that must be fully implemented or appealed by the agency in its final action. With the current change, all administrative judge decisions will be final decisions which the agency can either implement in full or appeal. If the agency does not fully implement the administrative judge's decision, it only has to appeal the parts of the decision that it wishes to contest. For example, if an administrative judge finds that the agency discriminated against the class and awards reinstatement and backpay, and if the agency disagrees with the award of reinstatement, the agency's appeal need only challenge the reinstatement award.

The Commission also proposed in the NPRM to provide for expedited processing of appeals of decisions to accept or dismiss class complaints (certification decisions) to shorten the class certification process. Specifically, the Commission proposed to amend § 1614.405 to provide that decisions on appeals of decisions to accept or dismiss class complaints will be issued within 90 days of receipt of the appeal. We received uniform comments supporting both class complaint process proposals. Therefore, the final rule retains both provisions.

We note that, with respect to the class proposals, several commenters recommended additional changes to the class complaint process involving issues such as: Holding individual complaints in abeyance and subsuming individual complaints, permitting complainants to opt-out of a class complaint, changing the requirement that agencies notify class members of certification before appeal, mandating pre-certification discovery, and ensuring that certified cases are promptly assigned and processed. While these other comments fall outside of the scope of the changes proposed in the NPRM, the Commission will consider them for a future rulemaking. In addition, some of the recommendations for additional changes not proposed in the NPRM are not regulatory, and the Commission will separately consider whether any of them should be implemented independently from the final rule.

The final rule amends § 1614.109(g) to rename the section “Summary Judgment” instead of “Decision without a hearing.” This change is intended to convey more clearly the Commission's policy that the standards of Rule 56 of the Federal Rules of Civil Procedure governing summary judgments apply in the EEOC hearings process, except insofar as Commission decision precedent has held or holds otherwise. This change is not intended, however, to alter existing Commission policy or practice; Commission decisions on the summary judgment process will continue to apply.

The final rule includes an editorial change to § 1614.204(f)(1) to correct the omission of the word “shall.”

The final rule also amends § 1614.302(c)(2) to correct an erroneous cross reference. The section now refers to § 1614.107(a)(4).

Finally, the Commission proposed in the NPRM to revise § 1614.502(c) to change the time frame within which agencies must provide the relief ordered from 60 days to 120 days. The regulation currently requires an agency to pay an administrative complainant who prevails before the EEOC within 60 days of EEOC's final decision. Since 1991, however, complainants have had up to 90 days to file suit in United States district court if they are dissatisfied with EEOC's decision.

Public comments were mixed on this proposal. While a couple of agencies supported it, individual commenters strongly opposed it, recommending that relief be provided immediately, and that remedial orders should be binding regardless of whether suit is filed. Other commenters suggested that EEOC should allow complainants to certify that they will not file suit, and then require agencies to provide relief within 30 or 60 days of certification. The Commission is sympathetic to the commenters' concerns about receiving relief in a timely fashion, but also recognizes that it is difficult in many instances for agencies to provide relief within the current 60 day timeframe. More importantly, the Commission believes that agencies should not be required to provide relief before the expiration of the complainants' 90-day right to file suit period. In the final rule, the Commission is adopting the proposal to extend the timeframe for providing relief to 120 days.

This final rule has been drafted and reviewed in accordance with Executive Order (“E.O.”) 12866, “Regulatory Planning and Review,” as recently reaffirmed and supplemented by E.O. 13563, “Improving Regulation and Regulatory Review.” This final rule is a “significant regulatory action” under E.O. 12866, section 3(f)(1), and accordingly was submitted to the Office of Management and Budget for interagency review. In promulgating this final rule, the Commission has adhered to the regulatory philosophy and applicable principles set forth in E.O. 13563, which directs agencies to propose or adopt a regulation only upon a reasoned determination that its benefits justify its cost (recognizing that some benefits and costs are difficult to quantify); tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives; and select, in choosing among alternative regulatory approaches, those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity).

Based on the information currently available, we anticipate that most of the changes involve no or negligible cost and will benefit the agencies or users of the process by clarifying obligations,correcting cross references, providing earlier appellate review, and providing quicker decisions from EEOC. Most agencies, for example, already comply with Part 1614 and EEOC's Management Directives and Bulletins, as required by section 717(b) of Title VII of the Civil Rights Act of 1964, as amended. Therefore, continued compliance will not require additional expenditures. The compliance proposal may actually reduce costs, e.g., to the extent that the agency's compliance obligation is clarified, it may save the agencies, complainants, and EEOC the time and costs of attempting to secure agency compliance.

With respect to monitoring compliance, EEOC already engages in compliance activities with its Directives and Bulletins. Therefore, no new personnel will need to be hired and EEOC's compliance efforts will not have to be increased. The only new provision is that the EEOC Chair may issue a notice of non-compliance that may be made public. The clarification of an agency's compliance responsibilities and the possibility of a public notice will eliminate some non-compliance and shorten other instances of non-compliance.

The cost that comes with most of the remaining changes is relatively small, and all costs are justified by the expected benefit and would only be borne by the federal government. Requiring an agency to notify the complainant when it will not complete an investigation in the required timeframe will have minimal cost but will provide an incentive for completing investigations timely while protecting the complainant's rights. Electronic filing will reduce costs and time. The cost of pilot projects will depend upon what the individual agency proposes and is likely to be a savings; the benefit of such projects is that potential changes to the process will be tested before they are implemented government-wide.

The Commission certifies under 5 U.S.C. Sec. 605(b), enacted by the Regulatory Flexibility Act (Pub. L. 96-354), that this rule will not have a significant economic impact on a substantial number of small entities, because it applies exclusively to employees and agencies of the federal government. For this reason, a regulatory flexibility analysis is not required.

This final rule will not result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

This regulation contains no information collection requirements subject to review by the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

This action pertains to agency management, personnel and organization and does not substantially affect the rights or obligations of non-agency parties and, accordingly, is not a “rule” as that term is used by the Congressional Review Act (Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA)). Therefore, the reporting requirement of 5 U.S.C. 801 does not apply.

Accordingly, for the reasons set forth in the preamble, the Equal Employment Opportunity Commission hereby amends chapter XIV of title 29 of the Code of Federal Regulations as follows:

The Department of Defense published a proposed rule on April 25, 2011 (76 FR 22849-22854). Comments from two submitters were received and are addressed below:

Comment:One submitter suggested clarifications and changes to the markings specified by sections 223.6(d) and 223.6(e). We made the changes suggested.

Comment:One comment suggested a change to the placement of the required markings for consistency with 32 CFR part 2001.21(b). As 32 CFR part 2001 applies only to classified national security information, we have not changed the placement requirements in the final rule.

Comment:One comment recommended adding a statement regarding parenthetical markings for classified messages. The change was made.

Comment:Suggestions for clarifying the last half of paragraph 223.6(d)(3) were made. Changes were incorporated in the final rule when we agreed they clarified the guidance.

Comment:One comment questioned the scope of the allowable dissemination within the U.S. Government. A change to the dissemination guidance was made.

Comment:One submitter suggested more definitive guidance on identifying information that qualifies for designation as DoD UCNI and that which qualifies for classification. Classification of information regarding protection of DoD special nuclear material, equipment and facilities, is a decision made by an authorized classification authority based on his or her reasoned judgment as to the degree of damage that could be caused by unauthorized disclosure. As such determinations are inherently subjective, risk-managed decisions and, thus, it is not possible to identify a “definitive line where UCNI stops and higher classification starts.” No changes were made as a result of this comment.

Comment:Additional changes were made based on DoD legal and editorial review.

It has been certified that 32 CFR part 223 does not:

(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy; a section of the economy; productivity; competition; jobs; the environment; public health or safety; or State, local, or tribunal governments or communities;

(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another Agency;

(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or

(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order.

It has been certified that 32 CFR part 223 is not economically significant, and 32 CFR part 223 has been reviewed by the Office of Management and Budget as required under the provisions of E.O. 12866.

It has been certified that 32 CFR part 223 does not contain a Federal mandate that may result in the expenditure by State, local, and tribunal governments, in aggregate, or by the private sector, of $100 million or more in any one year.

It has been certified that 32 CFR part 223 is not subject to the Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if promulgated, have a significant economic impact on a substantial number of small entities.

It has been certified that 32 CFR part 223 does not impose reporting or recordkeeping requirements under the Paperwork Reduction Act of 1995.

It has been certified that 32 CFR part 223 does not have federalism implications, as set forth in Executive Order 13132. This rule does not have substantial direct effects on:

(1) The States;

(2) The relationship between the National Government and the States; or

(3) The distribution of power and responsibilities among the various levels of Government.

Table of Acronyms DHSDepartment of Homeland Security FRFederal Register NPRMNotice of Proposed Rulemaking A. Regulatory History and Information

Annually, since 2008, a regulation has been enforced for the “Wilmington YMCA Triathlon”, locally known as the “Beach 2 Battleship”. The event was recently added to 33 CFR 100.501 on January 19, 2012 in 77 FR 2629. Historically no comments or objections have been received for the regulation. Based on tidal predictions the sponsor has requested a change to the effective dates of this rule.

On May 24, 2012 a Notice of Proposed Rule Making (NRPM) was published in 33 FR 30929 reflecting the change to the effective dates. We received no comments on the proposed rule. No public meeting was requested, and none was held.

The YMCA sponsors an annual Triathlon, “Wilmington YMCA Triathlon”, locally known as the “Beach 2 Battleship”, in the Wrightsville Beach area of North Carolina. The Triathlon consists of three events: a running portion, a bike-riding portion, and a swimming portion. The swimming portion of the Triathlon takes place in the waters adjacent to Wrightsville Beach. A special local regulation is effective annually to create a safety zone for the swimming portion of the Triathlon.

The regulation listing annual marine events within the Fifth Coast Guard District and corresponding dates is 33 CFR 100.501. The Table to § 100.501 identifies marine events by Captain of the Port zone. This particular marine event is listed in section (d.) line No. 4 of the table.

The current regulation described in section (d.) line No. 4 of the table indicates the Triathlon should take place this year on October 27, 2012, November 3, 2012 or November 10, 2012, this year. This regulation changes the date for the event to take place on October 20, 2012 for this year only.

The swim portion of the Triathlon, scheduled to take place on Saturday October 20, 2012, will consist of two groups of 950 swimmers entering Banks Channel at the Blockade Runner Hotel and swimming northwest along Motts Channel to Seapath Marine. A fleet of spectator vessels are expected to gather near the event site to view the competition.

To provide for the safety of the participants, spectators and other transiting vessels, the Coast Guard will temporarily restrict vessel traffic in the event area during this event. The regulation at 33 CFR 100.501 would be enforced from 7 a.m. to 11 a.m. on October 20, 2012; vessels may not enter the regulated area unless they receive permission from the Coast Guard Patrol Commander.

We received no comments on the proposed rule. No public meeting was requested, and none was held.

The Coast Guard will temporarily suspend the regulation listed at section (d.) line No. 4 in the Table to § 100.501 and insert this new temporary regulation at the Table to § 100.501 line No. 5 in order to reflect the change of date for this year's event. This change is needed to accommodate the change in date of the annual Triathlon. No other portion of the Table to § 100.501 or other provisions in § 100.501 shall be affected by this regulation.

This safety zone will restrict vessel movement on the specified waters of Wrightsville Channel, Wrightsville Beach, NC. The regulated area will be established in the interest of participant safety during the swim portion of the “Wilmington YMCA Triathlon” and will be enforced from 7 a.m. to 11 a.m. on October 20, 2012. The Coast Guard, at its discretion, when deemed safe will allow the passage of vessels. During the Marine Event no vessel will be allowed to transit the waterway unless the vessel is given permission from the Patrol Commander to transit the regulated segment of the waterway.

Any vessel transiting the regulated area must do so at a no-wake speed during the effective period. Nothing in this rule negates the requirement tooperate at a safe speed as provided in the Navigational Rules and Regulations.

We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders.

We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation is unnecessary. Although this regulation prevents traffic from transiting waters of Wrightsville Channel during the event, the effect of this regulation will not be significant due to the limited duration that the regulated area will be in effect. Extensive advance notification will be made to the maritime community via marine information broadcast and local area newspapers so mariners can adjust their plans accordingly. Additionally, this rulemaking does not change the permanent regulated areas that have been published in 33 CFR 100.501, Table to § 100.501. Vessel traffic will be able to transit the regulated area before and after the races, when the Coast Guard Patrol Commander deems it is safe to do so. Coast Guard vessels enforcing this regulated area can be contacted on marine band radio VHF-FM channel 16 (156.8 MHz).

The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The Coast Guard received no comments from the Small Business Administration on this rule. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which may be small entities: The owners of operators of vessels intending to transit Wrightsville Channel from 7 a.m. to 11 a.m. on October 20, 2012.

This rule will not have a significant economic impact on substantial number of small entities for the following reasons. The regulation will be enforced for only two hours. Although the regulated area will apply to Motts, Banks and Wrightsville Channels, traffic may be allowed to pass through the regulated area with the permission of the Coast Guard Patrol Commander. In the case where the Patrol Commander authorizes passage through the regulated area, vessels shall proceed at the minimum speed necessary to maintain a safe course that minimizes wake near the swim course. The Patrol Commander will allow non-participating vessels to transit the event area once all swimmers are safely clear of navigation channels and vessel traffic areas. Before the enforcement period, we will issue maritime advisories so mariners can adjust their plans accordingly.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in theFOR FURTHER INFORMATION CONTACT, above.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has 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. We have analyzed this rule under that Order and determined that this rule does not have implications for federalism.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in theFOR FURTHER INFORMATION CONTACTsection to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power andresponsibilities between the Federal Government and Indian tribes.

This action is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.

This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves implementation of regulations within 33 CFR Part 100 that apply to organized marine events on the navigable waters of the United States that may have potential for negative impact on the safety or other interest of waterway users and shore side activities in the event area. This special local regulation is necessary to provide for the safety of the general public and event participants from potential hazards associated with movement of vessels near the event area. We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

This rule is categorically excluded from further review under paragraph 34(h) of Figure 2-1 of the Commandant Instruction. A preliminary environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated underADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 100 as follows:

The Coast Guard is providing notice of enforcement of the Special Local Regulation for Olympia Harbor Days Tug Boat Races, Budd Inlet, WA in 33 CFR 100.1309 on September 2, 2012, from 12 p.m. to 8 p.m.

The following area is specified as a race area: All waters of Budd Inlet, WA the width of the navigation channel south of a line connecting the following points: 47°05.530′ N 122°55.844′ W and 47°05.528′ N 122°55.680′ W until reaching the northernmost end of the navigation channel at a line connecting the following points: 47°05.108′ N 122°55.799′ W and 47°05.131′ N 122°55.659′ W then southeasterly until reaching the southernmost entrance of the navigation channel at a line connecting the following points: 47°03.946′ N 122°54.577′ W, 47°04.004′ N 122°54.471′ W.

Under the provisions of 33 CFR 100.1309, the regulated area shall be closed immediately prior to, during and immediately after the event to all persons and vessels not participating inthe event and authorized by the event sponsor.

This notice is issued under authority of 33 CFR 100.1309 and 5 U.S.C. 552 (a). In addition to this notice in theFederal Register, the Coast Guard will provide the maritime community with advance notification of this enforcement period via the Local Notice to Mariners. If the Captain of the Port determines that the regulated area need not be enforced for the full duration stated in this notice, he may use a Broadcast Notice to Mariners to grant general permission to enter the regulated area.

Regulatory Information

On March 21, 2011, we published a notice of proposed rulemaking (NPRM) entitled “Anchorage Regulations; Narragansett Bay and Rhode Island Sound, RI,” in theFederal Register(76 FR 15246). We received nine comments on the proposed rule.

The Secretary of Homeland Security has delegated to the Coast Guard the authority to establish and regulate anchorage grounds in accordance with 33 U.S.C. 471; 1221 through 1236, 2030, 2035, 2071; 33 CFR 1.05-1; and Department of Homeland Security Delegation No. 0170.1. The purpose of this rule is to remove an obsolete and no longer used anchorage in Narragansett Bay from the Code of Federal Regulations (CFR), and formalize and codify an area of Rhode Island Sound that under current informal practice is routinely used by mariners as an anchorage while waiting to enter Narragansett Bay.

This rule removes the Naval explosives anchorage described in 33 CFR 110.145(a)(2)(ii). Naval Station Newport, Rhode Island had indicated to the Coast Guard that this anchorage is obsolete and no longer necessary for naval purposes. Leaving this obsolete anchorage in the CFR and on navigation charts leaves mariners with the mistaken impression that the area is reserved for a special purpose (i.e.,explosives vessel anchoring) when in fact, it is no longer used or needed for that purpose.

The rule also adds a new anchorage to formalize and codify the current practice of commercial vessels that anchor in an area south of Brenton Point, Newport, Rhode Island, while waiting to enter Narragansett Bay. Establishing this anchorage in the CFR, and placing it on navigation charts, will remove ambiguity and clarify for mariners the preferred and safest area in which to anchor offshore when waiting to enter Narragansett Bay.

The new anchorage area would encroach on a Navy Restricted Area (33 CFR 334.78). According to the regulation, anchoring within the Restricted Area is precluded only during periods of mine warfare training. However, mine warfare training is no longer conducted in that area. Thus, the Coast Guard requested that the U.S. Army Corps of Engineers remove the now-defunct area from the Code of Federal Regulations. In a letter received by the Corps of Engineers on May 5, 2011, the U.S. Navy also requested that the Corps of Engineers disestablish the Restricted Area as it is no longer needed. (A copy of the letter from the Commanding Officer, Naval Station Newport, is included in the docket for this rule.) In February 2012 the Corps of Engineers initiated the rulemaking process to remove the Restricted Area from the Code of Federal Regulations.

We received nine comments on the proposed rule. One letter, from the Office of Environmental Policy and Compliance, U.S. Department of the Interior (DOI), stated that DOI had no comment on the proposed rule.

The Coast Guard received no comments opposed to the section of this rule that disestablishes the obsolete naval explosives anchorage in Narragansett Bay.

The other comments were from private citizens, municipalities in the Narragansett Bay area, a Rhode Island state representative, and the Massachusetts Attorney General, among others. These comments expressed a generally consistent theme: Comments requested that the Coast Guard conduct a more thorough environmental impact analysis consistent with the National Environmental Policy Act (NEPA). Specifically, comments requested that the Coast Guard's NEPA analysis discuss the possible adverse impacts to the environment from potential use of the proposed anchorage by tankers that may deliver liquefied natural gas (LNG) to the proposed Weaver's Cove LLC import facility in Mt. Hope Bay, Massachusetts. Several comments requested a public meeting to discuss the NEPA issue vis à vis the Weaver's Cove LNG proposal.

At the time the Coast Guard published its March 2011 NPRM for this rulemaking, Weaver's Cove LLC was seeking approval from the Federal Energy Regulatory Commission (FERC) to build and operate a waterfront LNG facility in Fall River, Massachusetts. On June 20, 2011, Weaver's Cove LLC formally notified FERC that it was withdrawing its proposals. On July 6, 2011, FERC issued documentation vacating its July 15, 2005, authorization to Weaver's Cove for a waterfront facility in Fall River, Massachusetts, and terminating its (FERC's) processing of the Weaver's Cove application for an LNG offload facility in Mt. Hope Bay.These two documents issued by FERC officially terminated the Weaver's Cove proposal. (Copies of the Weaver's Cove letter to FERC of June 20, 2011, and FERC's documentation issued on July 6, 2011, are included in the docket for this rule.) There are no other proposals before FERC to import LNG into Narragansett Bay or Mt. Hope Bay.

Because there are no proposals to import LNG into Narragansett Bay or Mt. Hope Bay, there are no LNG-related impacts to be analyzed. Some comments challenge the Coast Guard's use of and reliance upon its directives while other comments assert the Coast Guard must comply with other federal laws. Responses to those comments immediately follow. Additionally, the methodology used by the Coast Guard to conduct its environmental analysis in compliance with NEPA is discussed in theEnvironmentsection below.

With respect to a public meeting, the Coast Guard believes a public meeting is not necessary because all requests for a public meeting were made in connection with concern about a (now-withdrawn) plan for the creation of an LNG terminal in the Fall River area. Because there is no foreseeable plan for an LNG terminal in the Fall River area, the Coast Guard does not believe that a public meeting would aid this rulemaking. The Coast Guard contacted the Corporation Counsel for the city of Fall River, which was a leading opponent to the Weaver's Cove LNG proposal and had requested a public meeting, and learned that with the withdrawal of the Weaver's Cove LNG proposal, and there being no other LNG proposals pending or anticipated, Fall River believes there is no longer a need for a public meeting to discuss this anchorage regulation.

Even though the LNG-related concerns raised in the comments are no longer relevant, the Coast Guard wishes to clarify that it is incorrect to view the establishment of this anchorage as giving permission for vessels to anchor. Rather, commercial vessels of all kinds already can and do anchor in this area; the act of designating this anchorage is intended simply to reflect current practices for the purpose of promoting safety of navigation.

One comment, expressly adopted by the comments of four others, challenges the Coast Guard's use of categorical exclusion 34(f) in accordance with Section 2.B.2 and Figure 2-1 of the NEPA Implementing Procedures and Policy for Considering Environmental Impacts, Commandant Instruction M164175.1D, and Department of Homeland Security Management Directive 023-01.

We determined that reliance on the Coast Guard-specific categorical exclusion is proper despite the fact that at the time the NPRM was published, Department of Homeland Security Management Directive 023-01 did not contain unique categorical exclusions for the Coast Guard. However, that directive was updated on October 3, 2011, to reflect the Council on Environmental Quality-approved categorical exclusions for the Coast Guard.

The same comment also alleges that the Coast Guard action adding the anchorage is a piece of a larger action in contravention of Department of Homeland Security Management Directive 023-01.

We determined that the proposed action adding the anchorage is not a piece of a larger action. The designation by the Coast Guard of an anchorage that overlaps an obsolete U.S. Navy restricted area is not part of an action by the Army Corps of Engineers to remove the restricted area designation and vice versa. In its determination whether to designate the area as an anchorage, the Coast Guard contacted Commanding Officer, Naval Station Newport to verify that there are no unexploded devices that would pose a hazard to navigation. Commanding Officer, Naval Station Newport, confirmed that there are no unexploded devices and wrote a letter to Chief, Regulatory Division, U.S. Army Corps of Engineers to disestablish the restricted area as it is no longer used by the Navy. Thus, the Army Corps of Engineers' ability to remove the designation is not an integral part of nor required for the establishment of the anchorage area. A copy of Commanding Officer, Naval Station Newport's letter of 5 May 2011 is included in the docket for this rule.

One comment states that the Coast Guard failed to acknowledge the designation of the entire Narragansett Bay as an environmentally sensitive area and that the proposed impact on the entire bay area must be analyzed.

The Coast Guard acknowledges that Narragansett Bay is an environmentally sensitive area designated by the U.S. Environmental Protection Agency under the National Estuary Program. In conducting our Categorical Exclusion Determination, we identified the closest waterway location designated as an environmentally sensitive area. We determined that establishing an anchorage in this area would not affect the designated environmental area because the area is already used as an anchorage and our action is administrative in nature. Therefore, we concluded that if the proposed action did not affect the closest environmentally sensitive area, it would also not affect the other environmentally sensitive areas further from the proposed anchorage.

Four comments claimed that the Coast Guard action establishing the anchorage must undergo a NEPA Environmental Assessment (EA) before mariners would be regularly using the anchorage area.

We determined that we are not required to conduct an EA under this line of reasoning because mariners have historically used the area as an anchorage, and this usage was not the result of a Coast Guard action. The Coast Guard action of placing the existing anchorage area in the public notice and on navigation charts does not alter the current activity at that location. The Coast Guard action simply removes ambiguity and clarifies for mariners the preferred and safest area in which to anchor offshore when waiting to enter Narragansett Bay.

Two comments recommended the U.S. Fish and Wildlife Service determine whether the proposed action establishing the anchorage would have adverse impacts.

We determined that because the U.S. Department of the Interior under which the U.S. Fish and Wildlife Service operates responded that the Department has no comment on the proposed rulemaking, consultation with the U.S. Fish and Wildlife Service was not necessary.

One comment requested that we clearly state the size of the new anchorage. The new Brenton Point anchorage established by this rule is a parallelogram-shaped box approximately 4.98 nautical miles by 1.95 nautical miles, which produces an anchorage of approximately 9.7 square nautical miles. Designing the size and shape of anchorages is a subjective process that considers many factors, including type and number of vessels that may use the anchorage, water depth, bottom topography, nearby vessel traffic patterns, etc. All of those factors were considered in designing the Brenton Point anchorage. The size of this anchorage is considered to be the minimum necessary to safely accommodate the type and number of commercial vessels that may use it, and its size is consistent with or smaller than many other anchorages in the southeastern New England area.

We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analysesbased on 13 of these statutes or executive orders.

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order.

We expect minimal additional cost impacts to the industry because this rule is not imposing fees, permits, or specialized requirements for the maritime industry to utilize this anchorage area. The effect of this rule is not significant as it removes one obsolete anchorage that is no longer used by the U.S. Navy, and documents and codifies another area that is currently used by commercial vessels. This improves safety for vessels using the anchorage grounds, facilitates the transit of deep draft vessels through the area, and improves safety for other vessels transiting in the vicinity of the new anchorage area.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard received no comments from the Small Business Administration on this rule.

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule may affect the following entities, some of which might be small entities: The owners or operators of vessels that have a need to anchor in Narragansett Bay or Rhode Island Sound at the entrance to Narragansett Bay.

This rule will not have a significant economic impact on a substantial number of small entities for the following reasons: This rule only codifies current navigation practices that are already in use by small entities in this area. The anchorage will not affect vessels' schedules or their ability to freely transit within these areas of Narragansett Bay or Rhode Island Sound. The anchorage imposes no monetary expenses on small entities since it does not require them to purchase any new equipment, hire additional crew, or make any other expenditures.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), in the NPRM we offered to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking process.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in theFOR FURTHER INFORMATION CONTACTsection to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a state, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule does not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble.

This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g.,specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.

This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. The evaluation of the impact of LNG vessels on the anchorage is not required because the proposed LNG facility at Weaver's Cove has been withdrawn as documented above, and thus there are no reasonably foreseeable LNG-related impacts that need to be considered.

In accordance with the Coast Guard NEPA implementing Instruction, this rule is categorically excluded from further analysis and documentation under NEPA. Since this rule involves removal of an obsolete anchorage area and establishment of another, Categorical Exclusion (34)(f) under Figure 2-1 of the Instruction applies. The rule is no longer controversial. Public comments and input primarily addressed issues arising from the now-abandoned proposal to create an LNG facility at Weaver's Cove, Fall River, Massachusetts. The Coast Guard has no evidence to suggest that any other criteria noted in DHS D 023-01, Section V.F.12 or COMDTINST 16475.1D Chapter 2 B 2(b) would suggest an inquiry beyond the categorical exclusion. An environmental analysis checklist and a categorical exclusion determination are available in the docket where indicated underADDRESSES.

Anchorage grounds.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 110 as follows:

The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because doing so would be impracticable and contrary to the public interest. The final details for this event were not known to the Coast Guard until there was insufficient time remaining before the event to publish an NPRM. Thus, delaying the effective date of this rule to wait for a comment period to run would be both impracticable and contrary to the public interest because it would inhibit the Coast Guard's ability to protect spectators and vessels from the hazards associated with an air show and associated pyrotechnics, which are discussed further below.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in theFederal Register. For the same reasons discussed in the preceding paragraph, waiting for a 30 day notice period to run would be impracticable and contrary to the public interest.

Between 6:00 p.m. and 9:30 p.m. on July 24, 2012, an air show with associated pyrotechnics will be held over Lake Winnebago in Oshkosh WI. The Captain of the Port, Sector Lake Michigan, has determined that an aircraft executing acrobatic maneuvers with associated pyrotechnics proximate to a gathering of watercraft and personnel pose a significant risk to public safety and property. Such hazards include aircraft malfunctions and subsequent crash, premature and accidental detonations of pyrotechnics, dangerous projectiles, and falling or burning debris.

With the aforementioned hazards in mind, the Captain of the Port, Sector Lake Michigan, has determined that this temporary safety zone is necessary to ensure the safety of spectators and vessels during the air show. This zone will be effective and enforced from 5:45 p.m. until 10:00 p.m. on July 24, 2012. The zone will encompass all waters of Lake Winnebago bounded by a line drawn from 44°00′36″ N, 088°30′50″ W; then north to 44°01′26″ N, 088°30′50″ W; then east to 44°01′26″ N, 088°30′16″ W; then south to 44°00′36″ N, 088°30′16″ W; then west returning to the point of origin (NAD 83). Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port, Sector Lake Michigan, or his designated on-scene representative. The Captain of the Port or his designated on-scene representative may be contacted via VHF Channel 16.

We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS). We conclude that this rule is not a significant regulatory action because we anticipate that it will have minimal impact on the economy, will not interfere with other agencies, will not adversely alter the budget of any grant or loan recipients, and will not raise any novel legal or policy issues. The safety zone created by this rule will be relatively small and enforced for a relatively short time. Also, the safety zone is designed to minimize its impact on navigable waters. Furthermore, the safety zone has been designed to allow vessels to transit around it. Thus, restrictions on vessel movement within that particular area are expected to be minimal. Under certain conditions, moreover, vessels may still transit through the safety zone when permitted by the Captain of the Port.

The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

This rule will affect the following entities, some of which might be small entities: the owners or operators of vessels intending to transit or anchor in a portion of Lake Winnebago, Oshkosh, WI on the evening of July 24, 2012.

This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: This safety zone would be activated, and thus subject to enforcement, for only four hours and fifteen minutes in the evening. Traffic may be allowed to pass through the zone with the permission of the Captain of the Port. The Captain of the Port can be reached via VHF channel 16. Before the activation of the zone, we would issue local Broadcast Notice to Mariners.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in theFOR FURTHER INFORMATION CONTACTsection above.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations tothe Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has 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. We have analyzed this rule under that Order and determined that this rule does not have implications for federalism.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in theFOR FURTHER INTFORMATION CONTACTsection to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

This action is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.

This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves the establishment of a safety zone and, therefore it is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated underADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:

A list of potentially affected entities is provided in theFederal Registerof April 27, 2012 (77 FR 25236) (FRL-9343-4). If you have questions regarding the applicability of this action to a particular entity, consult the technical person listed underFOR FURTHER INFORMATION CONTACT.

In theFederal Registerof April 27, 2012 (77 FR 25236), EPA issued several direct final SNURs, including SNURs for five chemical substances that are the subject of this removal. These direct final rules were issued pursuant to the procedures in 40 CFR part 721 subpart D. In accordance with § 721.160(c)(3)(ii), EPA is removing these rules issued for five chemical substance which were the subject of PMNs P-01-384, P-01-385, P-01-386, P-01-387, and P-01-388 because the Agency received notice of intent to submit adverse comments without sufficient time to respond prior to the effective date of the rule. EPA intends to publish proposed SNURs for these chemical substances under separate notice and comment procedures.

For further information regarding EPA's expedited process for issuing SNURs, interested parties are directed to 40 CFR part 721, subpart D, and theFederal Registerof July 27, 1989 (54 FR 31314). The record for the direct final SNUR for these chemical substances that are being removed was established at EPA-HQ-OPPT-2011-0577. That record includes information considered by the Agency in developing this rule and the notice of intent to submit adverse comments.

To access the electronic docket, please go tohttp://www.regulations.govand follow the online instructions to access docket ID number EPA-HQ-OPPT-2011-0577. Additional information about the Docket Facility is provided underADDRESSESin theFederal Registerof April 27, 2012 (77 FR 25236). If you have questions, consult the technical person listed underFOR FURTHER INFORMATION CONTACT.

This final rule removes existing regulatory requirements and does not contain any new or amended requirements. As such, the Agency has determined that this removal will not have any adverse impacts, economic or otherwise. The statutory and executive order review requirements applicable to the direct final rule were discussed in theFederal Registerof April 27, 2012 (77 FR 25236). Those review requirements do not apply to this action because it is a removal and does not contain any new or amended requirements.

The Congressional Review Act, 5 U.S.C. 801et seq.,generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report to each House of the Congress and the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in theFederal Register. This rule is not a “major rule” as defined by 5 U.S.C. 804(2).

Therefore, 40 CFR parts 9 and 721 are amended as follows:

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to those engaged in the following activities:

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

This listing is not intended to be exhaustive, but rather to provide a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed underFOR FURTHER INFORMATION CONTACT.

You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Printing Office's e-CFR site athttp://ecfr.gpoaccess.gov/cgi/t/text/text-idx?&c=ecfr&tpl=/ecfrbrowse/Title40/40tab_02.tpl.

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2011-0792 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before September 24, 2012. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit a copy of your non-CBI objection or hearing request, identified by docket ID number EPA-HQ-OPP-2011-0792, by one of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov.Follow the online instructions for submitting comments. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute.

• Mail:OPP Docket, Environmental Protection Agency Docket Center (EPA/DC), Mail Code: 28221T, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001.

• Hand Delivery:To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions athttp://www.epa.gov/dockets/contacts.htm.

Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available athttp://www.epa.gov/dockets.

In theFederal Registerof November 9, 2011 (76 FR 69690) (FRL-9325-1), EPA issued a notice pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 1E7919) by Interregional Research Project Number 4 (IR-4), 500 College Road East, Suite 201 W, Princeton, NJ 08540. The petition requested that 40 CFR 180.578 be amended by establishing tolerances for residues of the insecticide acetamiprid,N1-[(6-chloro-3-pyridyl)methyl]-N2-cyano-N1-methylacetamidine, in or on asparagus at 0.8 ppm;Brassica,leafy greens, subgroup 5B at 15 parts per million (ppm); turnip greens at 15 ppm; corn, sweet, kernel plus cob with husks removed at 0.01 ppm; corn, sweet, forage at 10 ppm; corn, sweet, stover at 30 ppm; vegetable, fruiting, group 8-10 at 0.20 ppm; fruit, citrus, group 10-10 at 0.50 ppm; fruit, pome, group 11-10 at 1.0 ppm; andBrassica,head and stem, subgroup 5A at 1.20 ppm. It also requested that upon approval of the aforementioned tolerances, to remove the established tolerances in 40 CFR 180.578 for fruit, citrus, group 10 at 0.50 ppm; fruit, pome, group 11 at 1.0 ppm; vegetable, fruiting, group 8 at 0.20 ppm; and vegetable,Brassica,leafy, group 5 at 1.20 ppm. The fruit, citrus, group 10; fruit, pome, group 11; and vegetable, fruiting, group 8 tolerances will be superseded by the updated crop group tolerances. The vegetable,Brassica,leafy group 5 tolerance will be superseded by theBrassica,leafy greens, subgroup 5B andBrassica,head and stem, subgroup 5A tolerances. Thatnotice referenced a summary of the petition prepared by Nisso America, Inc., the registrant, which is available in the docket,http://www.regulations.gov.One comment was received on the notice of filing. EPA's response to this comment is discussed in Unit IV.C.

Based upon review of the data supporting the petition, EPA is not establishing tolerances for sweet corn and its related commodities. The reason for these changes is explained in Unit IV.D.

Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue * * *.”

Consistent with FFDCA section 408(b)(2)(D), and the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for acetamiprid including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with acetamiprid follows.

EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.

Acetamiprid is moderately toxic in acute lethality studies via the oral route of exposure and is minimally toxic via the dermal and inhalation routes of exposure. It is not an eye or skin irritant, nor is it a dermal sensitizer. Acetamiprid does not appear to have specific target organ toxicity. Generalized toxicity was observed as decreases in body weight, body weight gain, food consumption and food efficiency in all species tested. Generalized liver effects were also observed in mice and rats (hepatocellular vacuolation in rats and hepatocellular hypertrophy in mice and rats); the effects were considered to be adaptive. Other effects observed in the oral studies include amyloidosis of multiple organs in the mouse oncogenicity study, tremors in high dose females in the mouse subchronic study, and microconcretions in the kidney papilla and mammary hyperplasia in the rat chronic/oncogenicity study. No effects were observed in a dermal toxicity study in rabbits.

In the rat developmental study, fetal shortening of the 13th rib was observed in fetuses at the same dose level that produced maternal effects (reduced body weight and body weight gain and increased liver weights). In the developmental rabbit study, no developmental effects were observed in fetuses at doses that reduced maternal body weight and food consumption. In the reproduction study, decreased body weight, body weight gain, and food consumption were observed in parental animals while significant reductions in pup weights were seen in the offspring in both generations. Also observed were reduction in litter size, and viability and weaning indices among F2offspring as well as significant delays in the age to attain vaginal opening and preputial separation. In the developmental neurotoxicity study, parental effects were limited to decreased body weight and body weight gains, while the offspring effects noted were decreased body weights and body weight gains, decreased pre-weaning survival (post-natal days (PNDs) 0-1), and decreased maximum auditory startle response in males on PNDs 20 and 60.

In the acute neurotoxicity study, male and female rats displayed decreased motor activity, tremors, walking and posture abnormalities, dilated pupils, coldness to the touch and decreased grip strength and foot splay at the highest dose tested (HDT). There was a decrease in the auditory startle response in male rats at the HDT in the developmental neurotoxicity study; additionally, tremors were noted in female mice at the HDT in the subchronic feeding study.

In four week immunotoxicity studies performed in both sexes of rats and mice, no effects on the immune system were observed up to the highest dose, although significant reductions in body weight and body weight gain were noted at that dose.

Based on acceptable carcinogenicity studies in rats and mice, EPA has determined that acetamiprid is “not likely to be carcinogenic to humans.” The classification is based on the absence of an increase in the incidence of tumors in a mouse carcinogenicity study; and in a rat chronic/carcinogenicity study, the absence of a dose-response and the lack of a statistically significant increase in the mammary adenocarcinoma incidence by pair-wise comparison of the mid- and high-dose groups with the controls (although the incidence exceeded the historical control data from the same laboratory, it was within the range of values from the supplier). There was no clear evidence of a mutagenic effect. Acetamiprid tested positive as a clastogen in anin vitrostudy but not in anin vivostudy.

Specific information on the studies received and the nature of the adverse effects caused by acetamiprid as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found athttp://www.regulations.govin the document titled “Acetamiprid: Human Health Risk Assessment for New Uses on Asparagus;Brassica,Leafy Greens, Subgroup 5B, and Turnip Greens; and Sweet Corn; and Updated Crop Group Definitions for Fruiting Vegetables, Citrus, and Pome Fruit”, pp. 35-40 in docket ID number EPA-HQ-OPP-2011-0792.

Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or areference dose (RfD)—and a safe margin of exposure (MOE) or aggregate risk index (ARI). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, seehttp://www.epa.gov/pesticides/factsheets/riskassess.htm.

A summary of the toxicological endpoints for acetamiprid used for human risk assessment is shown in the Table of this unit.

1.Dietary exposure from food and feed uses.In evaluating dietary exposure to acetamiprid, EPA considered exposure under the petitioned-for tolerances as well as all existing acetamiprid tolerances in 40 CFR 180.578. EPA assessed dietary exposures from acetamiprid in food as follows:

i.Acute exposure.Quantitative acute dietary exposure and risk assessments are performed for a food-use pesticide, if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1-day or single exposure. Such effects were identified for acetamiprid.

In estimating acute dietary exposure, EPA used food consumption information from the United States Department of Agriculture (USDA) 1994-1996 and 1998 Nationwide Continuing Surveys of Food Intake by Individuals (CSFII). As to residue levels in food, EPA performed the acute analysis based on tolerance level residues and assumed 100 percent crop treated (PCT). Empirical processing factors were used for processed commodities unless such data were not available, in which case dietary exposure evaluation model (DEEM) default processing factors from Version 7.81 were used.

ii.Chronic exposure.In conducting the chronic dietary exposure assessment EPA used the food consumption data from the USDA 1994-1996 and 1998 CSFII. As to residue levels in food, EPA performed the chronic analysis based on tolerance level residues and assumed 100 PCT. Empirical processing factors were used for processed commodities unless such data were not available, in which case DEEM default processing factors from Version 7.81 were used.

iii.Cancer.Based on the data summarized in Unit III.A., EPA has concluded that acetamiprid does not pose a cancer risk to humans. Therefore, a dietary exposure assessment for the purpose of assessing cancer risk is unnecessary.

iv.Anticipated residue and PCT information.EPA did not useanticipated residue and/or PCT information in the dietary assessment for acetamiprid. Tolerance level residues and/or 100 PCT were assumed for all food commodities.

2.Dietary exposure from drinking water.The Agency used screening level water exposure models in the dietary exposure analysis and risk assessment for acetamiprid in drinking water. These simulation models take into account data on the physical, chemical, and fate/transport characteristics of acetamiprid. Further information regarding EPA drinking water models used in pesticide exposure assessment can be found athttp://www.epa.gov/oppefed1/models/water/index.htm.

Based on the First Index Reservoir Screening Tool (FIRST) and Screening Concentration in Ground Water (SCI-GROW) models the estimated drinking water concentrations (EDWCs) of acetamiprid for surface water are estimated to be 95.2 parts per billion (ppb) for acute exposures and 26.6 ppb for chronic exposure. For ground water, the EDWC is 0.035 ppb.

Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For acute dietary risk assessment, the water concentration value of 95.2 ppb was used to assess the contribution to drinking water. For chronic dietary risk assessment, the water concentration of value 26.6 ppb was used to assess the contribution to drinking water.

3.From non-dietary exposure.The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets).

Acetamiprid is currently registered for the following uses that could result in residential exposures: Indoor and outdoor residential settings, including crack and crevice and spray applications. Mattress treatments were also assessed as there is a pending application for this use. EPA assessed residential exposure using the following assumptions: Exposure for adults (from short-term dermal and inhalation exposure) applying crack and crevice and mattress treatments; and postapplication exposure for adults (from short- and intermediate-term dermal and inhalation exposure) and for children 3-6 years old (from short- and intermediate-term dermal, inhalation and hand-to-mouth exposure) following crack and crevice and mattress treatments.

Dermal, oral, and inhalation risks for short- and intermediate-term exposures were combined since the toxicological endpoints and points of departure were the same. However, due to the lack of the required inhalation toxicity study, the Agency has determined that a 10X FQPA factor must be retained as a database uncertainty factor for inhalation exposure only, raising the LOC to 1,000 for inhalation scenarios. As such, the level of concern (LOC) values were different (i.e. dermal and oral LOC = 100, while inhalation LOC = 1,000) and therefore, the respective risk estimates are combined using the aggregate risk index (ARI) approach. This approach reflects risk estimates resulting from exposure via the dermal, inhalation, and oral routes. An ARI of greater than 1 indicates risks that are not of concern.

Further information regarding EPA standard assumptions and generic inputs for residential exposures may be found athttp://www.epa.gov/pesticides/trac/science/trac6a05.pdf.

4.Cumulative effects from substances with a common mechanism of toxicity.Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.”

EPA has not found acetamiprid to share a common mechanism of toxicity with any other substances, and acetamiprid does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that acetamiprid does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's Web site athttp://www.epa.gov/pesticides/cumulative.

1.In general.Section 408(b)(2)(C) of FFDCA provides that EPA shall apply an additional tenfold (10X) margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database on toxicity and exposure unless EPA determines based on reliable data that a different margin of safety will be safe for infants and children. This additional margin of safety is commonly referred to as the FQPA Safety Factor (SF). In applying this provision, EPA either retains the default value of 10X, or uses a different additional safety factor when reliable data available to EPA support the choice of a different factor.

2.Prenatal and postnatal sensitivity.The pre- and postnatal toxicology database for acetamiprid includes rat and rabbit developmental toxicity studies, a 2-generation reproduction toxicity study in rats and a developmental-neurotoxicity study (DNT) study in rats. There was no evidence of quantitative or qualitative susceptibility of rat or rabbit fetuses followingin uteroexposure to acetamiprid in the developmental toxicity studies. However, both the developmental neurotoxicity and 2-generation reproduction studies showed an increase in qualitative susceptibility of pups to acetamiprid. Effects in pups in the reproduction study included delays in preputial separation and vaginal opening, as well as reduced litter size, decreased pup viability and weaning indices; offspring effects observed in the developmental neurotoxicity study included decreased body weight and body weight gains, decreased pup viability and decreased maximum auditory startle response in males. These effects were seen in the presence of less severe maternal toxicity (decreased body weight and body weight gain. No evidence of increased quantitative susceptibility was observed in the studies.

3.Conclusion.EPA has determined that reliable data show the safety of infants and children would be adequately protected if the FQPA SF were reduced to 1X for dermal and oral exposure pathways. However, a 10X SF is being retained as a database uncertainty factor for assessing inhalation exposure and risk only. This decision is based on the following findings:

i. The toxicology data base is complete (with the exception of an inhalation study) and acceptable guideline studies for developmental, reproductive toxicity, neurotoxicity (including DNT) and immunotoxicity are available.

ii. Acetamiprid produced signs of neurotoxicity in the high dose groups in theacute and developmental neurotoxicity studies in rats and the subchronic toxicity study in mice. However, no neurotoxic findings were reported in the subchronic neurotoxicity study in rats. Additionally, there are clear NOAELs identified for the effects observed in the toxicity studies. The doses and endpoints selected for risk assessment are protective and account for all toxicological effects observed in the database.

iii. No quantitative or qualitative evidence of increased susceptibility of fetuses toin uteroexposure to acetamiprid was observed in either the developmental toxicity study in rats or rabbits. Although increased qualitative susceptibility was seen in the reproduction toxicity and the DNT study, the degree of concern for the effects is low. There are clear NOAELs for the offspring effects and regulatory doses were selected to be protective of these effects. No other residual uncertainties were identified with respect to susceptibility. The endpoints and doses selected for acetamiprid are protective of adverse effects in both offspring and adults.

iv. Currently, inhalation exposure is being assessed using hazard informationfrom the developmental neurotoxicity study, which is an oral study. In the absence of an inhalation study, there is uncertainty about potential portal of entry effects occurring via the inhalation route of exposure. Therefore, EPA is recommending a 28-day inhalation study and retaining a 10X FQPA factor as a database uncertainty factor for the inhalation route of exposure only, pending submission of the required study.

v. The exposure databases (dietary food, drinking water, and residential) are complete and the risk assessment for each potential exposure scenario includes all metabolites and/or degradates of concern and does not underestimate the potential risk to infants or children. The dietary exposure assessments were based on tolerance level residues and assumed 100 PCT. Empirical processing factors were used for processed commodities unless such data were not available, in which case DEEM default processing factors from Version 7.81 were used. EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to acetamiprid in drinking water. EPA used similarly conservative assumptions to assess postapplication exposure of children as well as incidental oral exposure of toddlers. These assessments will not underestimate the exposure and risks posed by acetamiprid.

EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the acute PAD (aPAD) and chronic PAD (cPAD). For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate PODs to ensure that an adequate ARI exists.

1.Acute risk.Using the exposure assumptions discussed in this unit for acute exposure, the acute dietary exposure from food and water to acetamiprid will occupy 52% of the aPAD for children 1-2 years old, the population group receiving the greatest exposure.

2.Chronic risk.Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that chronic exposure to acetamiprid from food and water will utilize 33% of the cPAD for children 1-2 years old, the population group receiving the greatest exposure. Based on the explanation in Unit III.C.3., regarding residential use patterns, chronic residential exposure to residues of acetamiprid is not expected.

3.Short- and intermediate-term risk.Short- and intermediate-term aggregate exposure takes into account short- and intermediate-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Acetamiprid is currently registered for uses that could result in short- and intermediate-term residential exposure, and the Agency has determined that it is appropriate to aggregate chronic exposure through food and water with short- and intermediate-term residential exposures to acetamiprid.

Using the exposure assumptions described in this unit for short- and intermediate-term exposures, EPA has concluded the combined short- and intermediate-term food, water, and residential exposures result in aggregate ARIs of 3.41 for adults and 1.45 for children. Because EPA's level of concern for acetamiprid is an ARI of 1 or below, these ARIs are not of concern.

4.Aggregate cancer risk for U.S. population.Based on the lack of evidence of carcinogenicity in two adequate rodent carcinogenicity studies, acetamiprid is not expected to pose a cancer risk to humans.

5.Determination of safety.Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population or to infants and children from aggregate exposure to acetamiprid residues.

Adequate enforcement methodology liquid chromatography/mass spectrometry mass spectrometry (LC/MS/MS), (Method #KP-216R0 and its variant #KP-216R1) is available to enforce the tolerance expression. The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; email address:residuemethods@epa.gov.

In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.

For the specific new use commodities associated with this tolerance petition, the Codex has not established a MRL for acetamiprid.

An anonymous citizen objected to the presence of any pesticide residues on food. The Agency understands the commenter's concerns and recognizes that some individuals believe that pesticides should be banned completely. However, the existing legal framework provided by section 408 of the FFDCA contemplates that tolerances greater than zero may be set when persons seeking such or exemptions have demonstrated that the pesticide meets the safety standard imposed by that statute. This citizen's comment appears to be directed at the underlying statute and not EPA's implementation of it; the citizen has made no contention that the EPA has acted in violation of the statutory framework.

EPA has determined that the available data are insufficient for establishing the proposed tolerances on sweet corn. Five additional field trials are required to support this use.

Therefore, tolerances are established for residues of acetamiprid,N1-[(6-chloro-3-pyridyl)methyl]-N2-cyano-N1-methylacetamidine, in or on asparagus at 0.80 ppm;Brassica,leafy greens, subgroup 5B at 15 ppm; turnip greens at 15 ppm; vegetable, fruiting, group 8-10 at 0.20 ppm; fruit, citrus, group 10-10 at 0.50 ppm; fruit, pome, group 11-10 at 1.0 ppm; andBrassica,head and stem, subgroup 5A at 1.20 ppm.

Also, due to the tolerances established in this unit by this document, the following existing tolerances are removed as unnecessary: Fruit, citrus, group 10; fruit, pome, group 11; vegetable, fruiting, group 8; and vegetable,Brassica,leafy, group 5.

This final rule establishes tolerances under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this final rule has been exempted from review under Executive Order 12866, this final rule is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501et seq.,nor does it require any special considerations under Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994).

Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601et seq.) do not apply.

This final rule directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this final rule. In addition, this final rule does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4).

This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note).

The Congressional Review Act, 5 U.S.C. 801et seq.,generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of this final rule in theFederal Register. This final rule is not a “major rule” as defined by 5 U.S.C. 804(2).

Therefore, 40 CFR chapter I is amended as follows:

EPA Region 2 is publishing this direct final Notice of Deletion of the Fort Dix Landfill (Site), from the National Priorities List (NPL). The NPL constitutes Appendix B of 40 CFR part 300, which is the Oil and Hazardous Substances Pollution Contingency Plan (NCP), which EPA promulgated pursuant to section 105 of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) of 1980, as amended. EPA maintains the NPL as the list of sites that appear to present a significant risk to public health, welfare, or the environment. Sites on the NPL may be the subject of remedial actions financed by the Hazardous Substance Superfund (Fund). As described in 300.425(e)(3) of the NCP, sites deleted from the NPL remain eligible for Fund-financed remedial actions if future conditions warrant such actions.

Because EPA considers this action to be noncontroversial and routine, this action will be effective September 24, 2012 unless EPA receives adverse comments by August 24, 2012. Along with this direct final Notice of Deletion, EPA is co-publishing a Notice of Intent to Delete in the “Proposed Rules” section of theFederal Register. If adverse comments are received within the 30-day public comment period on this deletion action, EPA will publish a timely withdrawal of this direct final Notice of Deletion before the effective date of the deletion, and the deletion will not take effect. EPA will, as appropriate, prepare a response to comments and continue with the deletion process on the basis of the Notice of Intent to Delete and the comments already received. There will be no additional opportunity to comment.

Section II of this document explains the criteria for deleting sites from the NPL. Section III discusses procedures that EPA is using for this action. Section IV discusses the Fort Dix Landfill Superfund Site and demonstrates how it meets the deletion criteria. Section V discusses EPA's action to delete the Site from the NPL unless adverse comments are received during the public comment period.

The NCP establishes the criteria that EPA uses to delete sites from the NPL. In accordance with 40 CFR 300.425(e), sites may be deleted from the NPL where no further response is appropriate. In making such a determination pursuant to 40 CFR 300.425(e), EPA will consider, in consultation with the state, whether any of the following criteria have been met:

i. Responsible parties or other persons have implemented all appropriate response actions required;

ii. All appropriate Fund-financed response under CERCLA has been implemented, and no further response action by responsible parties is appropriate; or

iii. The remedial investigation has shown that the release poses no significant threat to public health or theenvironment and, therefore, the taking of remedial measures is not appropriate.

The following procedures apply to deletion of the Site:

(1) EPA consulted with the state of New Jersey prior to developing this direct final Notice of Deletion and the Notice of Intent to Delete co-published today in the “Proposed Rules” section of theFederal Register.

(2) EPA has provided the state 30 working days for review of this notice and the parallel Notice of Intent to Delete prior to their publication today, and the state, through the New Jersey Department of Environmental Protection, has concurred on the deletion of the site from the NPL.

(3) Concurrently with the publication of this direct final Notice of Deletion, a notice of the availability of the parallel Notice of Intent to Delete is being published in the major local newspaper, the Burlington County Times. The newspaper notice announces the 30-day public comment period concerning the Notice of Intent to Delete the Site from the NPL.

(4) The EPA placed copies of documents supporting the proposed deletion in the deletion docket and made these items available for public inspection and copying at the Site information repositories identified above.

(5) If adverse comments are received within the 30-day public comment period on this deletion action, EPA will publish a timely notice of withdrawal of this direct final Notice of Deletion before its effective date and will prepare a response to comments and continue with the deletion process on the basis of the Notice of Intent to Delete and the comments already received.

Deletion of a site from the NPL does not itself create, alter, or revoke any individual's rights or obligations. Deletion of a site from the NPL does not in any way alter EPA's right to take enforcement actions, as appropriate. The NPL is designed primarily for informational purposes and to assist EPA management. Section 300.425(e)(3) of the NCP states that the deletion of a site from the NPL does not preclude eligibility for future response actions, should future conditions warrant such actions.

The following information provides EPA's rationale for deleting the Site from the NPL:

The Fort Dix Landfill is now named the “Dix Area Sanitary Landfill” due to the formation of the Joint Base McGuire Dix Lakehurst (JBMDL). The Dix Area Sanitary Landfill is located in the southwest section of the JBMDL in Pemberton Township, Burlington County, New Jersey. The landfill covers approximately 126 acres and is located about 2,200 feet from the post boundary. Two streams flow near the landfill: Cannon Run is located on the east side of the landfill, and flows south into the North Branch of Rancocas Creek; and an unnamed stream is located northwest of the landfill, and flows to the west into the North Branch of Rancocas Creek. A swamp that drains into Budd's Run is located to the west of Pipeline Road. The area immediately surrounding the Dix Area Sanitary Landfill consists of a hardwood swamp and densely vegetated hardwood forest. The town of Browns Mills is immediately to the east of the Military Reservation. To the south of the Dix Area Sanitary Landfill are two abandoned farms, approximately 12 homes, several county buildings, the County Hospital, and the Burlington County Juvenile Detention Center and shelter. Pemberton Township municipal buildings, sewage disposal plant, public water supply wells, and several homes are located to the southwest of the landfill. The surficial aquifer consists of a fine to silty sand unit (Cohansey and Kirkwood Formations) that overlies the fine grained silts and clays of the Manasquan, Hornerstown, and Navesink Formations. The Cohansey and Kirkwood Formations form a single unconfined aquifer at the site. Groundwater flow in this aquifer is to the south and southwest. The underlying Manasquan, Hornerstown, and Navesink Formations form a confining layer that limits downward vertical groundwater flow from the landfill site.

The Dix Area Sanitary Landfill began operation in 1950; it was officially closed on July 6, 1984. Prior to landfill development, the area was used for Army training. Between 1950 and 1984, the landfill was used and operated by the Fort Dix Military Reservation. McGuire Air Force Base also used the landfill from 1968 until it was closed. Access to the landfill was not controlled until 1980; therefore, records of disposal practices, waste types, and quantities are incomplete. Wastes that have been reportedly disposed of at the landfill include domestic waste, paints and thinners, demolition debris, ash, and solvents.

An interim New Jersey Pollutant Discharge Elimination System (NJPDES) permit was issued for the Dix Area Sanitary Landfill on May 29, 1984. On July 6, 1984, the Army ceased the disposal of waste at the landfill in compliance with the landfill closure date. The landfill was proposed for inclusion on the NPL on October 15, 1984 (49 FR 40320). On September 16, 1985, the Army entered into an Administrative Consent Order (ACO) with the New Jersey Department of Environmental Protection (NJDEP). The ACO required the Army to conduct a Remedial Investigation/Feasibility Study (RI/FS) and to implement the selected remedial alternative approved by NJDEP and United States Environmental Protection Agency (USEPA). The Dix Area Sanitary Landfill Site was placed on the NPL on July 22, 1987 (52 FR 27620).

On July 19, 1991, the Army entered into an interagency agreement, under Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) Section 120, known as the Federal Facility Agreement (FFA) with USEPA. The FFA superseded the ACO and provided the formal basis for selection of the remedy and the implementation of the Record of Decision (ROD) at the Dix Area Sanitary Landfill Site at JBMDL.

The Remedial Investigation/Feasibility Study (RI/FS) was completed in 1987. The RI/FS included a risk assessment to determine the potential for impact to public health and the environment, which may result if the contamination associated with the Dix Area Sanitary Landfill, was not controlled. In conducting this assessment, the focus was on the human health and environmental effects that could result from exposure to contaminants associated with the landfill in various media (air, surface water, sediment, soil, and groundwater). During the evaluation of site risks, chemicals detected at the site werescreened to select indicator chemicals for the Dix Area Sanitary Landfill site. These chemicals were selected as most representative of site conditions and expected to contribute the greatest risks to human health and the environment. The indicator chemicals for the site include: 1,2-dichloroethane, benzene, vinyl chloride, trichloroethylene, tetrachloroethylene, chlorobenzene, 2-butanone, toluene, trans-1,2-dichloroethylene, bis(2-ethylhexyl)phthalate, 1,4-dichloroethylene, 1,1,1-trichloroethane, ethylbenzene, nickel, mercury, cadmium, zinc, chromium, and manganese. Based on an evaluation of the data obtained during the RI, the ROD summarizes the following remedial objectives:

• To prevent contaminants migrating from the landfill from affecting drinking water supplies of the local population;

• To prevent landfill contaminant migration/exposure via Cannon Run and Budd's Run (swamp) from restricting State-designated downstream surface water uses on the North Branch of Rancocas Creek (i.e., fishing, swimming, and future water supply);

• To protect people who perform military-related or unauthorized recreational activities on the JBMDL property from potentially harmful effects due to landfill contaminants;

• To satisfy all appropriate local, State, and Federal requirements for landfill closure;

• To prevent significant adverse environmental impacts on the surrounding flora and fauna caused by contaminant release from the Dix Area Sanitary Landfill; and

• To satisfy all site-specific Applicable or Relevant and Appropriate Requirements (ARARs) as practicable.

The Record of Decision (ROD), signed on September 24, 1991, consists of the following requirements:

• Installation of a cap on the southern 53 acres of the landfill consisting of vegetative, drainage, and low-permeability layers. Maintenance of 2 ft of existing final cover on the remaining portion of the landfill.

• Installation of a landfill gas venting and air monitoring system to determine if methane gas and VOC emissions require treatment.

• Installation of a chain link fence around the perimeter of the landfill to restrict access.

• Implementation of landfill closure requirements in accordance with New Jersey Closure Requirements, New Jersey Administration Code (NJAC) 7:26-2A et seq., and Resource Conservation and Recovery Act (RCRA) guidance.

• Perform long-term groundwater, surface water, sediment and air monitoring (30 years) pursuant to the New Jersey State closure requirements. Perform a yearly statistical analysis on the chemical analysis results to determine the trend of the overall contamination levels.

• Long-term O&M to provide inspection of and repairs to the landfill cap.

• Implementation of ICs in the form of deed and water restrictions on future uses of the landfill and groundwater in the immediate vicinity of the landfill.

• Development and implementation of a Soil Erosion and Sediment Control Plan in accordance with the Soil Erosion and Sediment Control Act Regulations of 1975—New Jersey Statutes Annotated (NJSA) 4:24-40 et seq., and NJAC 2:90-1.1 et seq.

• Using the data obtained in the monitoring program, review the risk assessment and subsequently revise the risk assessment if the trend shows significant changes in water quality. These reviews and revisions will be performed within three years of commencement of a remedial action and at least every five years thereafter. Any changes in actual exposure scenarios will be addressed in the revised risk assessments. Risk assessments will use USEPA guidance and policy effective at the time of the review.

• Except for monitoring, no groundwater remedy was specified because the contaminant plume could not be defined beyond isolated “hot spots”.

The U.S. Army Corps of Engineers (USACE) acted on behalf of the Army at Fort Dix for both phases of the project and supervised all engineering and construction contracts required for completion of the work. Professional engineering services' for both phases were provided by Law Engineering and Environmental Services, Inc. (Law Environmental).

Phase I encompassed the approximately 126 acre Landfill with a six-foot perimeter chain link fence and provided two feet of soil cover to the northernmost 73 acres, This was completed early in fiscal year (FY) 1992. The contractor for Phases I and II was the George Hanus Co.

Phase II included covering of the southernmost 50 acres with a multilayer impermeable cap. The contract for the construction requirements of Phase II Remedial Action was awarded on June 30, 1994. Construction was completed in FY 97. In September, 1997 Law Environmental provided a Construction Completion Report to USACE. It was prepared and certified by C. Keith Brasher, a Professional Engineer licensed in the State of New Jersey.

The remedial design, work plans, performance standards, construction quality control measures, O&M, and long-term monitoring plans (LTMPs) were submitted to and approved by USEPA and NJDEP. The Army, its design contractor, the USACE, NJDEP, and USEPA reviewed, monitored, and inspected all design and construction activities, and have determined all activities were completed in accordance with the approved documents. USEPA made a final inspection of the completed work on March 28, 1998.

Institutional Controls in the form of Master Plan Amendments that are equivalent to deed restrictions on future uses of the Dix Area Sanitary Landfill have been implemented since the property is under the control and ownership of the Federal government. The Dix Area Master Plan restricts Army use of the Dix Area Sanitary Landfill site including the surrounding impacted areas. In the event the landfill property were no longer under the control and ownership of the Federal Government, implementation of appropriate deed notices or additional remediation to meet non-restricted use standards would be required to ensure the remedy remains protective of human health and the environment. In addition to the Dix Area Master Plan, the site will be enrolled in the NJDEP Classification Exception Area (CEA) program upon deletion from the NPL. The CEA program is established as a groundwater land use control (LUC) that serves to restrict the use of groundwater until regulatory standards have been achieved.

The 1991 ROD including long term monitoring for contaminated groundwater outside the landfill unit boundary. The indicator chemicals for the site include: 1,2-dichloroethane, benzene, vinyl chloride, trichloroethylene, tetrachloroethylene, chlorobenzene, 2-butanone, toluene, trans-1,2-dichloroethylene, bis(2-ethylhexyl)phthalate, 1,4-dichloroethylene, 1,1,1-trichloroethane, ethylbenzene, nickel, mercury, cadmium, zinc, chromium, and manganese. These contaminants were evaluated in groundwater samples and compared to EPA MCLs and state standards, as appropriate. The method used to determine the appropriate groundwater screening criteria is acomparison of the NJDEP groundwater quality standards (NJGWQS) and the USEPA maximum contaminant level (MCL) values. The more stringent of the values is used.

Based on groundwater monitoring conducted to date, nutrient metals are the only analytes exceeding screening criteria and exhibiting increasing concentration trends according to the Mann-Kendall Analysis. These exceedances and increasing trends occur both upgradient and downgradient of the landfill. In reviewing historical analytical data for this site, it has been noted that nutrient metals have been consistently present at concentrations above screening criteria. In an effort to understand the geochemical make-up of the local hydrogeology, several studies were reviewed. Following this review, it was evident that several naturally-occurring characteristics of the local hydrogeology are contributing to the elevated concentrations of nutrient metals in groundwater.

Fresh, uncontaminated groundwater in the Kirkwood-Cohansey aquifer system has naturally-occurring low pH. During the groundwater sampling program, pH levels were measured between 3 and 6 at both upgradient and downgradient locations. In the Kirkwood-Cohansey aquifer, calcium and bicarbonate are usually dominant ions in solution, with smaller amounts of sodium, potassium, magnesium sulfate, manganese and chloride. The surficial aquifer underlying and adjacent to the Dix Area Sanitary Landfill exhibits persistent exceedances of calcium, magnesium, manganese, sodium, and potassium that are attributed to this naturally-occurring condition. In 1988, the USEPA determined that concentrations of iron and manganese present a problem near the water table because the groundwater tends to have a low pH. Elevated concentrations of manganese and iron are also attributed to reductive dissolution by metal reducing bacteria feeding on petroleum contaminants. The reduced form of both iron and manganese are more water soluble than their oxidized counterparts. During the Spring 2010 and Fall 2010 sampling events, water quality data collected indicated a sporadic distribution of anaerobic and aerobic groundwater conditions. The data show both acid leaching and anaerobic degradation of gasoline contamination that is a waste of concern at the landfill, leading to elevated concentrations of manganese and iron. As a result of these evaluations, the Addendum to the 2005 CERCLA Five-Year Review concluded that manganese is naturally occurring and was removed as a COC from the site.

In 1979 and 1982, a series of groundwater monitoring wells were installed around the perimeter of the landfill. Reports indicated volatile organic compounds (VOCs) were detected in many of the groundwater samples taken in 1982. The two major VOCs exceeding the NJDEP groundwater limits were methylene chloride and trichloroethylene. In December 1983, eight additional groundwater monitoring wells were installed to further define groundwater contamination. Eleven additional wells were installed in May 1984 as part of a groundwater investigation performed by the U.S. Army Engineers Waterways Experiment Station. VOCs and heavy metals were detected in the groundwater samples collected from wells located immediately to the south, southeast, and southwest of the landfill. These compounds included methylene chloride, dichloroethane, trichloroethane, trichloroethylene, tetrachloroethylene, methyl ethyl ketone, methyl isobutyl ketone, mercury, cadmium, and other heavy metals. Based on the 2010 five year review recommendations, eight sentinel wells were evaluated and established downgradient of the landfill cap. These groundwater monitoring locations were sampled for eight continuous quarters (September 2009 to July 2011) and groundwater was analyzed for all contaminants of concern (COCs). With the exception of manganese (which was removed as a site COC), the results show no screening criteria exceedances were observed downgradient of the landfill and that COCs are below screening criteria at the landfill unit boundary. After the evaluation of the proposed sentinel wells, JBMDL proposed nine alternative wells, closer to the landfill, that are currently in the LTMP, to make up the sentinel well network. Wells LTM-9, 10, 12, 13, 14, 17, 18, 34 & 36 are now designated as sentinel wells and shall be used for compliance determination.

In general, O&M of the Dix Area Sanitary Landfill consists of the collection and analysis of groundwater, sediment, and surface water samples; routine mowing; limiting erosion; and maintaining site security.

With concurrence from USEPA and NJDEP, the Dix Area Sanitary Landfill gas venting and air monitoring system is no longer sampled and analyzed after it was determined there was no longer a need to monitor for methane gas or VOC emissions. Approval to terminate the air monitoring was received by NJDEP and USEPA in 2000.

The majority of the surface water location samples that exceed analyte concentrations contain nutrient metals that are not COCs for surface water at the Dix Area Sanitary Landfill.

As part of the five-year review process an Ecological Risk Assessment was completed evaluating surface water analytical data up to and including September 2009. With the exception of manganese and mercury, there have been no COC screening criteria exceedances at the landfill in the last three years. The Addendum to the 2005 CERCLA Five-Year Review (Plexus, 2009) concluded that manganese is naturally occurring and was removed as a COC from the program. During the Spring 2010 and Fall 2010 sampling events, mercury exceeded screening criteria at three surface water locations (SW-1, SW-2, and SW-9). All three of these locations are situated northwest of the Dix Area Sanitary Landfill, along Budd's Run and immediately downgradient of the PDO Landfill, where mercury is the main COC. The issue of mercury exceedances along Budd's Run (the body of water that contains these surface water locations) has been addressed in the 2005 CERCLA Five-year Review Addendum. The five year review addendum concluded that the mercury exceedances are attributed to a separate site upgradient of the Dix Area Sanitary Landfill. The results of the ERA illustrate that in September 2009 only one COC (zinc) at SW-2 exceeded ecological screening criteria (ESC). Since this ESC exceedance, the concentration of zinc at SW-2 has reduced in concentration below the ESC.

The majority of the sediment location samples that exceed analyte concentrations contain nutrient metals that are not COCs for sediment at the Dix Area Sanitary Landfill. As part of the five-year review process an Ecological Risk Assessment was completed evaluating sediment analytical data up to and including September 2009. With the exception of chlorobenzene, manganese andmercury, there have been no COC screening criteria exceedances at the landfill in the last three years. Although chlorobenzene exceeds the screening criteria, it does not exceed its respective ecological benchmark. The Addendum to the 2005 CERCLA Five-Year Review (Plexus, 2009) concluded that manganese is naturally occurring and was removed as a COC from the program. Since April 2010 the only sample location that exceeds screening criteria is SD-9. SD-9 is situated northwest of the Dix Area Sanitary Landfill, along Budd's Run and immediately downgradient of the PDO Landfill, where mercury is the main COC. The issue of mercury exceedances along Budd's Run (the body of water associated with this sediment location) has been addressed in the 2005 CERCLA Five-year Review Addendum. The five year review addendum concluded that the mercury exceedance is attributed to a separate site upgradient of the Dix Area Sanitary Landfill.

Low-level pesticide exceedances of dichlorodiphenyldichloroethylene (DDE) and dichlorodiphenyltrichloroethane (DDT) occur at locations SD-5 and SD-6, but do not occur at the landfill boundary. DDE and DDT are ubiquitous to Fort Dix and are not considered COCs for the Dix Area Sanitary Landfill. The results of the ERA illustrate that in September 2009 only one COC (mercury) at SD-9 exceeded ESC. Since this ESC exceedance, the concentration of zinc at SW-2 has reduced in concentration below the ESC. The 2005 CERCLA Five-year Review Addendum concluded that the mercury exceedances at this location are attributed to a separate site upgradient of the Dix Area Sanitary Landfill.

Site inspections are performed by a JB MDL representative every 30 days and after large rain events or episodes of severe weather. The O&M contractor also performs a separate inspection on a quarterly basis. A compilation of these quarterly inspection reports is submitted to the regulatory agencies for review on annual basis. For areas that do not have a landfill cap installed, visual observations are made to ensure run-on and runoff controls are performing as intended. Any exposed waste in these areas is covered with compacted soil.

On the landfill cap, tree and brush growth is not allowed for protection of the cap's liner system. Areas of settlement and damage by burrowing animals are repaired as needed. The sediment and erosion control features are maintained by cleaning debris and accumulated sediment to maintain proper infiltration and prevent clogging of the outlet control structure and emergency spillway. Since the last Five-year Review, there has been evidence of minor burrowing activity; however, the effects of the burrowing activity have not impacted the landfill cap or the protectiveness of the remedy. When located, burrows are routinely destroyed during the inspection process.

NJDEP will assume lead regulatory responsibility for all future O&M, implementation of ICs, and ensuring that the remedy remains protective into the future. Site LUCs will continue under the current NJDEP CEA program for the site. Long Term Monitoring of groundwater, surface water and sediment will continue in accordance with Long-Term Monitoring Plan.

The third five year review was completed September 15, 2100. The technical assessment summary concluded that the remedy is functioning as intended and remains protective of human health and the environment. There were three issues highlighted in the review. Evidence of erosion along the western slope of the landfill was identified. This erosion was stabilized and vegetation cover was restored. A fallen tree along the northern boundary perimeter fence was removed, and the fence was restored. There was a lack of sentinel wells to delineate groundwater COCs. Sentinel wells have been selected or installed.

The next Five-year Review for the Dix Area Sanitary Landfill is required by September 2015.

Public participation activities for this Site have been satisfied as required in CERCLA sections 113(k) and 117, 42 U.S.C. 9613 (k) and 9617. Throughout the removal and remedial process, EPA and the NJDEP have kept the public informed of the activities being conducted at the Site by way of public meetings, progress fact sheets, and the announcement through local newspaper advertisement on the availability of documents such as the RI/FS, Risk Assessment, ROD, Proposed Plan and Five-Year Reviews. Notices associated with these community relations activities were also mailed out to the area residents and other concerned parties on the mailing list for the Site.

The NCP specifies that EPA may delete a site from the NPL if “responsible parties or other persons have implemented all appropriate response actions required ” as stated in 40 CFR 300.425(e)(1)(ii). EPA, with the concurrence from the State of New Jersey, through NJDEP, dated May 3, 2012, believes that this criterion for deletion has been met. Consequently, EPA is deleting this Site from the NPL. Documents supporting this action are available in the Site files.

The Site meets all the site completion requirements as specified in the ROD, and all of the remedial actions at the site have been implemented. The implemented remedy achieves the degree of clean-up and protection specified in the ROD for all pathways of exposure. Continued implementation of the ICs and LTMP will ensure the long-term protectiveness of the remedy. Currently, none of the COCs outlined in the ROD have migrated past the landfill unit boundary as evidenced by groundwater, surface water and sediment data collected.

No further Superfund response is needed to protect human health and the environment.

The EPA, with concurrence of the State of New Jersey through the NJ Department of Environmental Protection, has determined that all appropriate response actions under CERCLA, other than operation, maintenance, monitoring and five-year reviews have been completed. Therefore, EPA is deleting the Site from the NPL.

Because EPA considers this action to be noncontroversial and routine, EPA is taking it without prior publication. This action will be effective September 24, 2012 unless EPA receives adverse comments by August 24, 2012. If adverse comments are received within the 30-day public comment period, EPA will publish a timely withdrawal of this direct final notice of deletion before the effective date of the deletion, and it will not take effect. EPA will prepare a response to comments and continue with the deletion process on the basis of the notice of intent to delete and the comments already received. There will be no additional opportunity to comment.

For the reasons set out in this document, 40 CFR part 300 is amended as follows:

This is a summary of the Commission'sOrder,FCC 12-60, adopted June 13, 2012 and released June 13, 2012. The full text of this document is available for inspection and copying during normal business hours in the FCC Reference Center (Room CY-A257), 445 12th Street SW., Washington, DC 20554. The complete text of this document also may be purchased from the Commission's copy contractor, Best Copy and Printing, Inc., 445 12th Street SW., Room CY-B402, Washington, DC 20554. The full text may also be downloaded at:www.fcc.gov.

1. The Commission operates an equipment authorization program for radiofrequency (RF) devices under part 2 of its rules. This program is one of the primary means that the Commission uses to ensure that the multitude of RF devices used in the United States operates effectively without causing harmful interference and otherwise complies with the rules. RF devices that are subject to the “certification” procedure of the equipment authorization program must be labeled with an FCC identifier (“FCC ID”) that is unique to the device. This FCC ID includes a Commission-issued code identifying the grantee of the certification (“grantee code”). By this action, the Commission modifies §§ 2.925 and 2.926 of the rules to remove the restriction that grantee codes must consist of only three characters. This action will permit the Commission to issue longer grantee codes, thus greatly increasing the supply of available codes and ensuring that it will continue to have new ones to assign to parties that wish to certify new equipment.

2. Authorized equipment must be labeled to show that it complies with the rules prior to being imported into or marketed within the United States. The label for a device subject to certification must include an FCC ID that conforms to a format defined in the rules. The FCC ID consists of two parts: a three-character alphanumeric grantee code assigned by the Commission to the party that applies for equipment authorization, and a one- to 14- character product code selected by the applicant. Once a party obtains a grantee code from the Commission, the party may use the same grantee code, but must use a different product code, each time it applies for a new equipment certification from the Commission or a TCB. The Commission adopted a three-character format for grantee codes in 1979 and codified that format in the rules.

3. Due to the large number of grantee codes that have already been assigned to manufacturers and other parties responsible for equipment compliance, the Office of Engineering and Technology anticipates that the Commission may run out of unassigned grantee codes in the near future. If that were to occur, parties that did not already have a grantee code would not be able to apply for certification of RF equipment. The Commission therefore finds it necessary to modify the rules to increase the supply of grantee codes to accommodate all parties that wish to obtain a grantee code and apply for equipment certification in the future.

4. Specifically, the Commission is eliminating the requirement in § 2.926(c) that grantee codes must consist of three alphanumeric characters, and it is replacing it with a requirement that grantee codes will consist of alphanumeric or other characters in a format specified by the Commission's Office of Engineering and Technology. The Commission is not codifying a particular grantee code format in the rules in order to allow the Office of Engineering and Technology the flexibility to modify the format in the future if necessitated by changing technology or other factors. The Commission also eliminated the text in § 2.925(a)(1) that shows an example of a three character grantee code.

5. While three characters was an adequate code length for grantee codes when the rules were originally adopted and for many years thereafter, the Commission finds that it is now necessary to permit longer codes to allow for a significantly greater number of possible combinations. In particular, the Commission notes that the Office of Engineering and Technology is planning to issue new five-character grantee codes in the format described in Appendix B of theOrder.Using this code length and format, the Commission calculates that there will be approximately 8 million additional grantee codes. The Commission currently assigns approximately 1000 grantee codes per year, so even if the rate of assignment increases substantially in the future, the supply of five-character codes will last for many years. Parties that have been assigned three-character grantee codes may continue to use those codes indefinitely for future applications and for equipment that is already approved. The five-character codes will be assigned only to future applicants for grantee codes once the new rules are effective. The Commission is not changing the requirements for the product code format.

6. The changes adopted in theOrderdo not require prior notice and an opportunity for comment under the Administrative Procedure Act (APA). Section 553(b) of the APA establishes exceptions to the notice-and-comment requirement, and one of those exceptions is for cases in which theCommission finds good cause for concluding that notice and comment are unnecessary. The rule changes adopted in theOrderare minor in nature in that the Commission is changing the format of grantee codes that will be assigned in the future to prospective applicants for equipment certification, but is not changing any other requirements for equipment certification. Further, these changes will not have any effect on parties that have already been assigned three-character codes because they may continue to use them indefinitely. Thus, the Commission concludes that notice and comment are not necessary before changing the rules on grantee code format.

7. The Commission finds that the benefits of the rule changes are significant because the changes will enable it to continue to certify equipment from new parties, thus expanding the range of devices available to consumers. The Commission also finds that the costs of these rule changes are insignificant because it is not appreciably more burdensome for a party to apply for and use a five-character code than a three-character code. There will be no additional burden on parties that already have three-character codes assigned because they may continue to use them indefinitely. Thus, the Commission concludes that the benefits of the rule changes are greater than the costs.

8. The Commission is making the rule changes effective 30 days after date of publication of thisOrderin theFederal Register. The change in grantee code length necessitates a non-substantive change in the electronic FCC Form 731 that is used to apply for equipment certification. This change to the form does not require prior Office of Management and Budget (OMB) approval, but the Commission will provide OMB with a copy of the revised form for their records. The Commission plans to begin assigning grantee codes with the new format no earlier than 30 days after the revised Form 731 is available, and it will issue a public notice announcing the date on which it will begin issuing five-character grantee codes.

9. This document makes non-substantive changes to previously approved information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. It will be submitted to the Office of Management and Budget (OMB) for information purposes.

10. The Commission will send a copy of this Order to Congress and the Government Accountability Office pursuant to the Congressional Review Act,see5 U.S.C. 801(a)(1)(A).

11. Pursuant to the authority contained in sections 4(i), 302, 303(e), 303(f), and 307 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 302a, 303(e), 303(f), and 307 thisorder is hereby adopted.

12. Part 2 of the Commission's rulesis amendedas specified in Appendix A of theOrder,and such rule amendmentsshall be effectiveAugust 24, 2012.

13. The Commission's Consumer and Governmental Affairs Bureau, Reference Information Centershall senda copy of the Order to the Government Accountability Office pursuant to the Congressional Review Act.See5 U.S.C. 801(a)(1)(A).

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 2 to read as follows:

This document announces that, on May 17, 2012, OMB approved, for a period of three years, the information collection requirements relating to the WirelessE911 Phase II Location Accuracy Requirements contained in the Commission'sOrder,FCC 11-107, published at 76 FR 59916, September 28, 2011. The OMB Control Number is 3060-1147. The Commission publishes this notice as an announcement of the effective date of the rules. If you have any comments on the burden estimates listed below, or how the Commission can improve the collections and reduce any burdens caused thereby, please contact Judith B. Herman, Federal Communications Commission, Room 1-B441, 445 12th Street SW., Washington, DC 20554. Please include the OMB Control Number, 3060-1147, in your correspondence. The Commission will also accept your comments via email atPRA@fcc.gov.To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email tofcc504@fcc.govor call the Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), the FCC is notifying the public that it received final OMB approval on May 17, 2012, for the information collection requirements contained in the modifications to the Commission's rules in 47 CFR Part 20. Under 5 CFR part 1320, an agency may not conduct or sponsor a collection of information unless it displays a current, valid OMB Control Number.

No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act that does not display a current, valid OMB Control Number. The OMB Control Number is 3060-1147.

The foregoing notice is required by the Paperwork Reduction Act of 1995, Public Law 104-13, October 1, 1995, and 44 U.S.C. 3507.

The total annual reporting burdens and costs for the respondents are as follows:

OMB Control Number:3060-1147.

OMB Approval Date:May 17, 2012.

OMB Expiration Date:May 31, 2015.

Title:Wireless E911 Phase II Location Accuracy Requirements.

Form Number:N/A.

Respondents:Individuals and households; Business or other for-profit entities; Not-for-profit institutions; Federal Government; and State, Local, or Tribal Government.

Number of Respondents and Responses:4,898 respondents; 9,514 responses.

Estimated Time per Response:5.5867143 hours (average).

Frequency of Response:On-occasion reporting requirements and third party disclosure.

Obligation to Respond:Mandatory. Statutory authority for this information collection is contained in 47 U.S.C. 151, 154 and 332 of the Communications Act of 1934, as amended.

Total Annual Burden:53,152 hours.

Total Annual Cost:N/A.

Nature and Extent of Confidentiality:An assurance of confidentiality is not offered because this information collection does not require the collection of personally identifiable information (PII) from individuals.

Needs and Uses:The Commission adopted and released a Third Report and Order,FCC 11-107,PS Docket No. 07-114, which provides that new Commercial Mobile Radio Service (CMRS) providers, meeting the definition of covered CMRS providers in Section 20.18 and deploying networks subsequent to the effective date of the Third Report and Order that are not an expansion or upgrade of an existing CMRS network, must meet the handset-based location accuracy standard from the start. Consequently, the rule requires new CMRS providers launching new stand-alone networks during the eight-year implementation period for handset-based CMRS wireless licensees to meet the applicable handset-based location accuracy standard in effect of the time of deployment. Therefore, new rule § 20.18(h)(2)(iv) specifies that new CMRS providers must comply with paragraphs (h)(2)(i)-(iii) of § 20.18, which are the location accuracy requirements for handset-based carriers. OMB approved the information collection for those rule paragraphs, which the Second Report and Order adopted, on March 30, 2011, under OMB Control No. 3060-1147. The Commission announced OMB's approval and the effective date in 76 FR 23713, April 28, 2011, of theFederal Register.

As a result, under the new rule section adopted by Third Report and Order, all new CMRS providers, in delivering emergency calls for Enhanced 911 service, must satisfy the handset-based location accuracy standard at either a county-based or Public Safety Answering Point (PSAP)-based geographic level. Thus, in accordance with the new rule and under the paragraph provision of § 20.18(h)(2)(i), new CMRS providers must meet the following initial benchmark for the specified handset-based location accuracy requirements: “[t]wo years from January 18, 2011, 50 meters for 67 percent of calls, and 150 meters for 80 percent of calls, on a per-county or per-PSAP basis.” Similarly, in accordance with the new rule and under the paragraph provisions of § 20.18(h)(2)(i)-(iii), new CMRS providers may exclude up to 15 percent of the counties or PSAP areas they serve due to heavy forestation that limits handset-based technology accuracy in those counties or areas.

Therefore, new CMRS providers will be required to file a list of the specific counties where they are utilizing their respective exclusions. In its September 2010 Second Report and Order, 75 FR 70604, November 18, 2010, the Commission found that permitting this exclusion properly but narrowly accounts for the known technical limitations of handset-based location accuracy technologies, while ensuring that the public safety community and the public at large are sufficiently informed of these limitations.

When they have begun deploying their new networks, the new CMRS providers must submit initial reports, as the Commission will announce after OMB approval of this revised information collection, with a list of the areas that they are permitted to exclude from the handset-based location accuracy requirements. Accordingly, the Commission will specify the procedures for electronic filing into PS Docket No. 07-114, consistent with the current OMB approved information collection for handset-based carriers, and new CMRS providers must send copies of the exclusion reports to the National Emergency Number Association, the Association of Public-Safety Communications Officials-International, and the National Association of State 9-1-1 Administrators.

Further, the rules adopted by the Commission's September 2010 Second Report and Order, 75 FR 70604, November 18, 2010, also require that, two years after January 18, 2011, wireless carriers provide confidence and uncertainty data on a per call basis to PSAPs. Because the new rule adopted by the Third Report and Order considers new CMRS providers as providers covered under the definition of CMR providers pursuant to section 20.18 of the Commission's rules, new CMRS providers will also be subject to the information collection requirement to provide this confidence and uncertainty data.

Additionally, in view of the amended location accuracy requirements and the timeframes and benchmarks for handset-based wireless carriers to comply with them, in its September 2010 Second Report and Order, 75 FR 70604, November 18, 2010, theCommission recognized that the waiver process is suitable to address individual or unique problems, where the Commission can analyze the particular circumstances and the potential impact to public safety. Thus, similarly, the supporting statement for this information collection revision recognizes that new CMRS providers might file waiver requests and, therefore, be subject to a collection and reporting requirement.

The Third Report and Order found that requiring all new CMRS network providers to comply with the Commission's handset-based location accuracy standard is consistent with the regulatory principle of ensuring technological neutrality. Providers deploying new CMRS networks are free to use network-based location techniques, or to combine network and handset-based techniques, to provide 911 location information, provided that they meet the accuracy criteria applicable to handset-based providers. Given the long-term goal of universal support for one location accuracy standard, the Commission believed that such a mandate allows appropriate planning and ensures that new technology will comply with the most stringent location accuracy standard that applies to existing technology.

Section 20.18(h)(2)(iv) requires that providers of new CMRS networks that meet the definition of covered CMRS providers under paragraph (a) of this section must comply with the requirements of paragraphs (h)(2)(i)-(iii) of this section. For this purpose, a “new CMRS network” is a CMRS network that is newly deployed subsequent to the effective date of the Third Report and Order in PS Docket No. 07-114 and that is not an expansion or upgrade of an existing CMRS network.

The information provided by wireless carriers deploying new CMRS networks to report the counties or PSAP service areas where the carriers cannot provide E911 location accuracy at either the county or the PSAP level will furnish the Commission, affected PSAPs, state and local emergency agencies, public safety organizations and other interested stakeholders the supplementary data necessary for public safety awareness of those areas where it is most difficult to measure location accuracy during the benchmark periods for handset-based wireless carriers.

The provision of confidence and uncertainty data to PSAPs by the new CMRS providers and the SSPs responsible for transporting that data between them and PSAPs will enhance the PSAPs' ability to efficiently direct first responders to the correct location of emergencies to achieve the emergency response goals of the nation in responding expeditiously to emergency crisis situations and in ensuring homeland security.

This is a summary of the Commission'sMisuse of Internet Protocol (IP) Relay Service; Telecommunications Relay Services and Speech-to-Speech Services for Individuals with Hearing and Speech Disabilities,First Report and Order (Order), document FCC 12-71, adopted on June 28, 2012 and released on June 29, 2012, in CG Docket Nos. 12-38 and 03-123. The full text of document FCC 12-71 will be available for public inspection and copying via ECFS, and during regular business hours at the FCC Reference Information Center, Portals II, 445 12th Street SW., Room CY-A257, Washington, DC 20554. It also may be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., Portals II, 445 12th Street SW., Room CY-B402, Washington, DC 20554, telephone: (800) 378-3160, fax: (202) 488-5563, or Internet:www.bcpiweb.com.Document FCC 12-71 can also be downloaded in Word or Portable Document Format (PDF) athttp://www.fcc.gov/cgb/dro/trs.html#orders.To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email tofcc504@fcc.govor call the Consumer and Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (TTY).

Document FCC 12-71 does not contain new or modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, it does not contain any new or modified information collection burden for small business concerns with fewer than 25 employees, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198. See 44 U.S.C. 3506(c)(4).

1. In document FCC 12-71, the Commission takes an important step to curb the misuse of IP Relay by prohibiting IP Relay providers from handling non-emergency calls made by new IP Relay registrants prior to taking reasonable measures to verify their registration information. In taking this action, the Commission underscores its ongoing commitment to ensuring that Internet-based telecommunications relay services (iTRS) provide the communication access intended by Congress in section 225 of the Communications Act, while eliminating fraud and abuse in this program.See Structure and Practices of the Video Relay Service Program,CG Docket No. 10-51, Second Report and Order, FCC 11-118; published at 76 FR 47469, August 5, 2011 and at 76 FR 47476, August 5, 2011 (iTRS Certification Order) (defining iTRS to mean all forms of telecommunications relay service (TRS) in which an individual with a hearing or speech disability uses an Internet connection with a communications assistant (CA) to make calls, including Video Relay Service (VRS), IP Relay, and IP captioned telephone service (IP CTS)). VRS uses video over a broadband Internet connection to allow a person who usessign language to communicate with another party through a CA.

2. IP Relay is a form of text-based TRS that uses the Internet to allow individuals with hearing and/or speech disabilities to communicate with other individuals. In 2006, the Commission initiated a rulemaking proceeding to address the misuse of IP Relay and VRS.Telecommunications Relay Services and Speech-to-Speech Services for Individuals with Hearing and Speech Disabilities; Misuse of Internet Protocol (IP) Relay Service and Video Relay Service,CG Docket No. 03-123, Further Notice of Proposed Rulemaking, FCC 06-58; published at 71 FR 31131, 2006 (2006 FNPRM). The Commission took that action in part because of concerns that individuals without a hearing or speech disability were using the anonymity of the IP Relay service to call merchants and place orders using fake, stolen, or otherwise invalid credit cards. The2006 FNPRMsought comment on ways to curb fraudulent calls made via IP Relay, including requirements for user registration and rule changes that would permit relay providers to screen and terminate such calls.

3. Since the2006 FNPRM,the Commission has undertaken a number of measures to combat the misuse of iTRS. Most relevant to the instant proceeding, in June 2008, the Commission adopted a mandatory system requiring IP Relay and VRS users to be assigned ten-digit telephone numbers linked to the North American Numbering Plan and registered with their provider of choice (default provider).Telecommunications Relay Services and Speech-to-Speech Services for Individuals with Hearing and Speech Disabilities; E911 Requirements for IP-Enabled Service Providers,CG Docket No. 03-123, WC Docket No. 05-196, Report and Order and Further Notice of Proposed Rulemaking, FCC 08-151; published at 73 FR 41286, July 18, 2008 and at 73 FR 41307, July 18, 2008 (iTRS Numbering Order I). The Commission explained that such registration and the requirement for each user to provide a “Registered Location” would reduce the misuse of IP Relay. The Commission also sought comment on whether additional steps were needed to curtail illegitimate calls made through this service.

4. In December 2008, the Commission adopted a second iTRS numbering Order in which it directed IP Relay and VRS providers to “implement a reasonable means of verifying registration and eligibility information,” including the consumer's name and mailing address, before issuing a ten-digit telephone number to new or existing users.Telecommunications Relay Services and Speech-to-Speech Services for Individuals with Hearing and Speech Disabilities; E911 Requirements for IP-Enabled Service Providers,CG Docket No. 03-123, WC Docket No. 05-196, Second Report and Order and Order on Reconsideration, FCC 08-275; published at 73 FR 79683, December 30, 2008 (iTRS Numbering Order II). The Commission provided the following examples of what such verification could include: “(1) Sending a postcard to the mailing address provided by the consumer, for return to the default Internet-based TRS provider; (2) in-person or on-camera ID checks during registration; or (3) other verification processes similar to those performed by voice telephone providers and other institutions (such as banks and credit card companies).” The Commission further directed providers to include in their verification procedures a requirement for consumers to self-certify that they have a medically recognized hearing or speech disability necessitating their use of TRS. The Commission expected that “these measures [would] reduce the misuse of Internet-based TRS by those who may take advantage of the anonymity currently afforded users, particularly IP Relay users, without unduly burdening legitimate Internet-based TRS consumers seeking to obtain ten-digit telephone numbers.” The Commission added, however, that “to the extent technically feasible, Internet-based TRS providers must allow newly registered users to place calls immediately,” even before completing the verification of such individuals. In permitting such temporary use of iTRS by new registrants, the Commission responded to comments by a coalition of consumer groups, who were concerned that legitimate IP Relay users would be cut off from service during the transition to the new ten-digit numbering and registration system. In order to enable users to make calls under this “guest user” procedure, providers have been giving users temporary ten-digit numbers and provisioning these numbers to the iTRS Directory. These numbers have been allowed to remain valid for the purpose of making IP Relay calls until such time that the users' identifying information is authenticated or rejected.

5. In October 2009, the Commission issued a Public Notice reminding iTRS providers of their obligation to implement the measures discussed above by November 12, 2009.Consumer & Governmental Affairs Bureau Reminds Video Relay Service (VRS) and Internet Protocol (IP) Relay Service Providers of their Outreach Obligations and Clarifies their Call Handling Obligations for Unregistered Users after the November 12, 2009, Ten-Digit Numbering Registration Deadline,CG Docket No. 03-123, WC Docket No. 05-196, Public Notice, DA 09-2261; 24 FCC Rcd 12877, October 21, 2009 (iTRS Numbering Implementation Public Notice). Because these were new requirements that would have a direct impact on consumer use of the IP Relay program, theiTRS Numbering Implementation Public Noticeagain directed each provider to handle calls from newly registered users immediately, even if the provider had not fully completed the process of verifying the caller's information, assigning the caller a new ten-digit number, and provisioning that number to the iTRS database. TheiTRS Numbering Implementation Public Noticedid not eliminate the requirement for providers to implement a reasonable process for verifying registration information provided by new users.

6. In April 2011, the Commission adopted several additional measures to combat IP Relay fraud and abuse, including a requirement for all TRS providers to submit to Commission-directed audits, a mandate for iTRS providers to retain, for five years, call detail records and other records supporting claims for payment, whistleblower protection rules for provider employees and contractors, and a requirement that a senior executive of a TRS provider certify, under penalty of perjury, to the validity of minutes and data submitted to the TRS Fund administrator.Structure and Practices of the Video Relay Service Program,CG Docket No. 10-51, Report and Order and Further Notice of Proposed Rulemaking, FCC 11-54; published at 76 FR 24393, May 2, 2011 and at 76 FR 24437, May 2, 2011 (VRS Fraud Order). The Commission followed these measures in July 2011 with the adoption of stricter certification rules for iTRS providers, authorization for on-site visits to the premises of applicants for iTRS certification and certified iTRS providers, revised notification requirements for providers to alert the Commission about substantive program changes, and a mandate for providers to certify, under penalty of perjury, as to the accuracy of their certification applications and their annual compliance filings to the Commission.See(iTRS Certification Order).

7. Notwithstanding the various measures noted above, concerns aboutthe continued abuse of the IP Relay system prompted the Consumer & Governmental Affairs Bureau (Bureau) to issue aRefresh Public Noticeon February 13, 2012, to refresh the record initiated by the2006 FNPRMon matters pertaining to IP Relay misuse.Consumer & Governmental Affairs Bureau Seeks to Refresh the Record Regarding Misuse of Internet Protocol Relay Service,CG Docket Nos. 12-38 and 03-123, Public Notice, DA 12-208; published at 77 FR 11997, February 28, 2012 (Refresh Public Notice). Among other things, in theRefresh Public Notice,the Bureau expressed concern that current methods used by iTRS providers to verify registration and eligibility information submitted by IP Relay users may not be “reasonable” as required by the Commission's rules, and that the Commission “may need to impose additional and more specific requirements * * * to curb IP Relay misuse.”

8. Among the issues raised in theRefresh Public Noticewas whether the Commission should continue its procedure adopted iniTRS Numbering Order IIof requiring IP Relay providers to permit newly registered users to place calls prior to the completion of a provider's user verification process, given the potential for misuse of IP Relay by unverified registrants. The Commission now concludes that the record in this proceeding supports the elimination of that procedure. Further, given the record evidence, the Commission now prohibits granting such temporary authorization for any IP Relay calls other than emergency calls to 911 services.

9. Parties responding to theRefresh Public Noticeoverwhelmingly agree that allowing new users to make IP Relay calls pending the provider's verification of the user's registration information contributes significantly to the misuse of IP Relay. Under this procedure, commenters report, large numbers of fraudulent users have easy access to the IP Relay system for extended periods of time before verification is complete and access can be denied. As noted above, this is because in order to make IP Relay calls as a guest user, the user is given a ten-digit number that remains a valid number in the iTRS database until such time that the user's identifying information is authenticated or rejected. The Consumer Groups do not oppose ending temporary authorization for unverified IP Relay non-emergency callers, but advocate that the verification process should be completed within 72 hours.

10. The Commission concludes that a prohibition against temporary authorization of IP Relay users is now necessary in order to curb the fraud and abuse that has resulted from provider misuse of this procedure. Specifically, although there may have been some value in allowing unverified users to make calls for a short period of time during the Commission's transition to the IP Relay registration system, the Commission is concerned that reliance on the guest user procedure has resulted in abuse of the IP Relay program by unauthorized IP Relay users. In addition, the Commission is concerned that unverified users have remained in the iTRS numbering directory—and made repeated IP Relay calls—for extended periods of time, despite the obligation of IP Relay providers to institute procedures to verify the accuracy of registration information.

11. Moreover, any rationale for initially permitting temporary user authorization—i.e.,to prevent the exclusion of users who were already using IP Relay service and were either unfamiliar with the Commission's new registration process or had not yet registered—is greatly diminished because considerable time has passed since the transition period for registering ended on November 12, 2009. Hamilton Relay, Inc. notes that the vast majority of legitimate users have already been registered, and the Commission is less concerned that legitimate users will be cut off from IP Relay service. At the same time, the Commission has significant concerns about the extent to which the IP Relay program has fallen prey to abuse. As noted above, IP Relay abuse has placed unnecessary costs on the TRS Fund and has resulted in businesses rejecting IP Relay calls from legitimate users. In weighing the Consumer Groups' interest in enabling legitimate new users to obtain reasonably prompt access to IP Relay Service against the record evidence of significant problems of misuse caused by the guest user procedure, the Commission believes that on balance, the clear and critical need to ensure the integrity of the IP Relay program by requiring that users are fully verified prior to receiving service outweighs any residual risk of harm from the temporary deferral of service to a small number of new legitimate users. With respect to the Consumer Groups' specific recommendation that the Commission eliminate the guest user procedure only if the Commission requires that the verification process be completed within 72 hours, the Commission believes that on balance, ensuring that users are fully and effectively verified is more critical to restoring the integrity of the IP Relay program than is placing a time limit on the verification process. The Commission also believes that without the option to register guest users, IP Relay providers will have a strong incentive to expeditiously complete their verification processes. Nevertheless, the Commission will continue to review the matter of timing as the Commission considers the adoption of more specific IP Relay verification requirements.

12. The prohibition against temporary authorization of IP Relay users that the Commission now adopts requires that until an IP Relay provider verifies a new IP Relay user in accordance with the Commission's standards as set forth in the Commission's rules and requirements, it will not be permitted to deem such user as “registered” for purposes of § 64.611(b) of the Commission's rules, and will be prohibited from: (1) Handling the user's IP Relay calls other than 911 emergency calls; (2) assigning the user a ten-digit number; or (3) provisioning such number to the iTRS Directory. The Commission further expects default providers to periodically review the ten-digit numbers that they place in the iTRS numbering directory, for the purpose of deleting numbers that have been assigned to users that ultimately are not “registered” or that are otherwise associated with fraudulent calling practices. Such actions will ensure that only verified users have active numbers and prevent ineligible users from using the services of other providers who are unaware of a default provider's ultimate decision to reject user authorization. The Commission's objective is to ensure that the IP Relay program serves only legitimate users. In addition, because there will be fewer calls from fraudulent callers, these actions will benefit legitimate users by reducing the incentive of recipients of IP Relay calls to reject these calls. The Commission notes that this is only one of a series of actions the Commission intends to take in this docket to curb IP Relay fraud and abuse. The Commission's overarching goal is to ensure that providers take the steps needed to curb IP Relay misuse, so that this service can remain a viable and valuable communication tool for Americans who need it.

13. The Administrative Procedure Act (APA) provides that a substantive rule cannot become effective earlier than 30 days after the required publication or service of the rule, except “as otherwise provided by the agency for good causefound and published with the rule.” 5 U.S.C. 553(d).See also47 CFR 1.427(a). As discussed above, the record in this proceeding, including the comments filed by IP Relay providers, has demonstrated the prevalence of misuse of IP Relay and supports the immediate implementation of a measure—the elimination of temporary user authorization for non-emergency calls—that could substantially reduce such misuse. This measure should produce the immediate benefit of reducing payments for illegitimate minutes from the TRS Fund. The Commission further expects that its action will have a minimal adverse impact, if any, on the provision of IP Relay service to legitimate users, given the considerable time that has passed since the transition period for registering ended on November 12, 2009. Rather, the measure the Commission adopts will benefit such users by reducing the incentive of recipients of IP Relay calls to reject calls from legitimate users because there will be fewer calls from fraudulent callers. With respect to the technical feasibility of instituting this measure immediately, the Commission notes that at least one provider has stated from its perspective, that “a prohibition of `guest access' could be implemented on an immediate basis, while another has urged the Commission to `close the loophole immediately.' ” Accordingly, the Commission finds that good cause exists for making these measures effective immediately July 25, 2012.

14. In document FCC 12-71, the Commission takes action intended to immediately curb the misuse of IP Relay by prohibiting providers of IP Relay from providing service (other than handling emergency calls to 911 services) to new registrants until a new user's registration information is verified. It is the Commission's intention to adopt additional measures addressing misuse of IP Relay in future orders.

15. As required by the Regulatory Flexibility Act (RFA), 5 U.S.C. 603, an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the2006 FNPRM.The Commission sought comment on the proposal in the2006 FNPRM,including comment on the IRFA, of the possible significant economic impact on small entities by the policies and rules proposed in the2006 FNPRM.No comments were received on the IRFA. This Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA. 5 U.S.C. 604.

16. Providers of TRS, mandated by Title IV of the Americans with Disabilities Act of 1990 (codified at 47 U.S.C. 225 of the Communications Act), relay telephone calls so that individuals who are deaf, hard of hearing, deaf-blind, or who have speech disabilities can engage in communication by wire or radio with other individuals in a manner that is functionally equivalent to the ability of hearing individuals who do not have speech disabilities to communicate using voice communication services by wire or radio.See47 U.S.C. 225(a)(3). Because IP Relay Service offers consumers anonymity as the call is placed via the Internet, this service has become subject to abuse. Among other things, persons have been using IP Relay to purchase goods from merchants using stolen or fraudulent credit cards. Such misuse is harmful both to the merchant who is defrauded and to legitimate relay users who find that their relay calls are rejected by merchants. The Commission is also concerned that the rapid and steady increase in the size of the Interstate TRS Fund may in part be a result of such misuse of IP Relay.

17. The2006 FNPRMsought comment on ways to prevent the misuse of IP Relay, including among other things, a requirement to register IP Relay users. In June 2008, the Commission adopted a mandatory system in which users of iTRS, including IP Relay, are assigned ten-digit telephone numbers linked to the North American Numbering Plan and iTRS users with disabilities are registered with their provider of choice (default provider). The Commission also required IP Relay providers to handle calls from a newly registered user immediately, even if the provider had not completed the process of verifying the caller's information.

18. In theRefresh Public Notice,the Commission sought comment on whether it should prohibit temporary authorization for a user to place IP Relay calls, other than emergency calls, while verification of the caller is taking place.

19. Document FCC 12-71 is intended to curb the misuse of IP Relay by prohibiting providers of IP Relay from handling non-emergency IP Relay calls for new registrants until their registration information is verified. The Commission's decision today helps ensure that the iTRS program provides the communication services intended by Congress in section 225 of the Communications Act, while eliminating fraud and abuse. No party filing comments in this proceeding responded to the IRFA, and no party filing comments in this proceeding otherwise argued that the policies and rules proposed in this proceeding would have a significant economic impact on a substantial number of small entities.

20. The RFA directs agencies to provide a description of, and where feasible, an estimate of the number of small entities that may be affected by the rules. 5 U.S.C. 604(a)(3). The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” 5 U.S.C. 601(6). In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. 5 U.S.C. 601(3) (incorporating by reference the definition of “small business concern” in the Small Business Act, 15 U.S.C. 632). 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 SBA. 15 U.S.C. 632.

21. As noted above, this document prohibits providers of IP Relay from providing service (other than handling emergency calls to 911) to new registrants until their registration information is verified. As a result, the Commission believes that the entities that may be affected by the proposed rules are only those TRS providers that offer IP Relay. Neither the Commission nor the SBA has developed a definition of “small entity” specifically directed toward IP Relay providers. The closest applicable size standard under the SBA rules is for Wired Telecommunications Carriers, for which the small business size standard is all such firms having 1,500 or fewer employees. 13 CFR 121.201, NAICS Code 517110 (2007). Currently, there are five TRS providers that are authorized by the Commission to offer IP Relay. One or two of these entities may be small businesses under the SBA size standard.

22. Document FCC 12-71 does not impose any new reporting or record keeping requirements. Although this document requires IP Relay providers to refuse IP Relay service to individuals who are not deemed qualified to receive IP Relay service, IP Relay providers are already required to refuse IP Relay service to unqualified individuals. While the new requirements expand the circumstances under which individuals are to be denied IP Relay service initially, they do not impose new compliance requirements on small entities.

23. The RFA requires an agency to describe any significant alternatives, specific to small businesses, that it has considered in reaching its proposed approach, which may include thefollowing four alternatives (among others): “(1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance rather than design standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.” 5 U.S.C. 603(c)(1)-(4).

24. The Commission considers the requirements adopted in this document as a means of achieving the public policy goals of ensuring that TRS can provide functionally equivalent communication access and preventing the misuse of IP Relay. As noted above, although the impact of this document will be for IP Relay providers to refuse IP Relay service to new IP relay users who are not qualified to receive IP Relay service, IP Relay providers are already required to refuse this service to unqualified individuals. Since the new requirements change the application of existing compliance requirements, but do not impose new compliance requirements on small entities, the Commission finds that it has minimized significant economic impact on small entities. The alternatives of either retaining the requirement that providers of IP Relay handle non-emergency IP Relay calls for new registrants prior to verification of registration information or permitting the handling of such calls at the election of the provider, would not curb the misuse of IP Relay by new registrants whose registration information—due to the preexisting guest user procedure—still requires verification.

25. The Commission notes that by reducing the misuse of IP Relay, these new requirements will lessen an adverse economic impact on small businesses. Specifically, the new requirements will protect many small businesses that may be affected by illegitimate IP Relay calls. For instance, small businesses are more vulnerable to illegitimate IP Relay calls involving fraudulent credit card purchases because they often are not aware that the credit cards are being illegally used or are not equipped to verify the credit card numbers. Because these new requirements will prevent unqualified individuals from placing IP Relay calls, these requirements will have the additional effect of reducing the incidence of credit card fraud.

26. There are no Federal rules that may duplicate, overlap, or conflict with the new rules.

27. The Commission will send a copy of document FCC 12-71 in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act. 5 U.S.C. 801(a)(1)(A).

28. Pursuant to sections 1, 4(i) and (j), 225, and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i) and (j), 225, and 303(r), and § 1.427 of the Commission's rules, 47 CFR 1.427, document FCC 12-71is adopted.

These are the technical corrections to the final rule that revised Cost Accounting Standard (CAS) 412, “Composition and Measurement of Pension Cost,” and CAS 413, “Adjustment and Allocation of Pension Cost” for the CAS Pension Harmonization Rule. The final rule was published at 76 FR 81296 on December 27, 2011. Generally, the technical corrections make the following adjustment: (1) Revise the text of the illustrations to make them consistent with the contents in the corresponding Tables, (2) revise the text of the effective date provisions at 9904.412-63 and 9904.413-63 to make them consistent with each other and internally consistent for the CAS Pension Harmonization Rule, and (3) revise an illustration so that it is consistent with the rule. A brief description of each technical correction is as follows:

1. In 9904.412-60.1, in paragraph (b)(2)(i) (CAS Pension Harmonization Rule, Measurement of Pension Costs, Liabilities and Normal Costs), in Table 3—Actuarial Accrued Liabilities and Normal Costs as of January 1, 2017, delete a duplicate reference to Note 2 in the “Notes” column for “Expense Load on Normal Costs;” and in paragraph (c)(3)(ii) (CAS Pension Harmonization Rule, Assignment of Pension Costs, Measurement of Tax-Deductible Limitation on Assignable Pension Cost), after Note 6 to Table 10, correct the amounts of the 9904.412-50(c)(2)(iii) limitation in the text of the illustration so that they are consistent with the corresponding amounts in Table 10—CAS 412-50(c)(2)(iii) Tax-Deductible Limitation as of January 1, 2017.

2. In 9904.412-63(b) Effective date in the first sentence, replace “receipt” with “award” as that is the more common terminology for a contract award, and make the CAS 412 text consistent with the corresponding text at 9904.413-63(b) for a uniform Effective Date for the CAS Pension Harmonization Rule (which is comprised of changes to both CAS 412 and 413).

3. In 9904.412-64.1(c)(1)(i)(B) (Transition Method for the CAS Pension Harmonization Rule, Transition Illustration), correct the text of the illustration so that it is consistent with corresponding amounts in Table 1—Development of Transitional Minimum Actuarial Liability for Fourth Transition Period; and in 9904.412-64.1(c)(1)(i)(C), in Table 1—Development of Transitional Minimum Actuarial Liability for Fourth Transition Period, add a new label “Actuarial Accrued Liability” beneath the label “Minimum Actuarial Liability.”

4. In 9904.413-60(b)(3) (Illustrations, Valuation of the assets of a pension plan) after the first sentence, correct thetext of the illustration so that it is consistent with the rule.

5. In 9904.413-63(b) Effective date in the first sentence, replace “receipt” with “award” as that is the more common terminology for a contract award, and make the CAS 413 text consistent with the corresponding text at 9904.412-63(b) for a uniform Effective Date for the CAS Pension Harmonization Rule (which is comprised of changes to both CAS 412 and 413).

Accordingly, Chapter 99 of Title 48 of the Code of Federal Regulations is corrected by making the following correcting amendments: