I. Background II. Regulatory Amendments III. Regulatory Procedures I. Background Why Is NCUA issuing this rule?

The Dodd-Frank Act, among other things, transferred rulemaking authority for many consumer protection regulations from the Federal Reserve Board (FRB) to the Consumer Financial Protection Bureau (CFPB).1 This transfer required that these regulations be renumbered, which in turn made certain citations in NCUA's regulations inaccurate. The Dodd-Frank Act also transferred rulemaking authority related to the Alternative Mortgage Transaction Parity Act (AMTPA)2 for state-chartered credit unions from NCUA to the CFPB.3

In addition, the Board is taking this opportunity to make amendments, unrelated to the Dodd-Frank Act, based on its rolling, three-year review of NCUA's regulations. The Board reviews one-third of its regulations each year to “update, clarify and simplify existing regulations and eliminate redundant and unnecessary provisions.”4 Through this process, NCUA has identified an incorrect citation in Appendix B to part 707 and outdated or unnecessary requirements in NCUA's security and records preservation program requirements in parts 748 and 749.

Accordingly, this rule updates citation references to former FRB rules in parts 701, 707, and 714, and removes the reference to AMPTA in § 701.21(a). The rule also makes technical amendments to parts 707, 748, and 749. The Board is issuing these amendments as a final rule because they are technical in nature and some changes are statutorily mandated by the Dodd-Frank Act.

This rule updates citations to CFPB regulations in parts 701, 707, and 714. Specifically, in part 701, the Board is amending citations to Regulation B.5 Similarly, the Board is amending citations in part 707 and in the appendices to part 707 to Regulations E, Z, and DD.6 In part 707, the Board is clarifying references to the FRB's Regulation D,7 as the Dodd-Frank Act created a separate Regulation D under the purview of the CFPB.8 Finally, in part 714, the Board is amending the citation to Regulation M.9

This rule removes the reference to AMTPA in section 701.21(a) as required by section 1083 of the Dodd-Frank Act.10 This reference authorized state-chartered credit unions to follow NCUA's lending regulations for alternative mortgage transactions. Based on the Dodd-Frank Act amendments, state-chartered credit unions must now follow the CFPB's Regulation D for alternative mortgage transactions.11 Accordingly, the Board is removing the reference to AMTPA in § 701.21(a).

The rule amends an incorrect citation to the FRB's Regulation D in the note to sample form B-5.

Part 748 requires a federally insured credit union to develop a written security program and also sets forth Bank Secrecy Act compliance programs and procedures. In 2001, the Board amended part 748 and issued Appendix A to part 748, Guidelines for Safeguarding Member Information, to fulfill a requirement in section 501(b) of the Gramm-Leach-Bliley Act (GLBA).12 The GLBA directed financial institution regulators, including NCUA, and several other government agencies to consult and coordinate with each other to prescribe consistent and comparable regulations to establish standards for financial institutions relating to certain administrative, technical, and physical safeguards of member records and information.13

Included in the 2001 amendments was section III(G) of Appendix A to part 748, which set forth the schedule for implementing Appendix A. All of the dates in the schedule expired at least six years ago. Accordingly, the Board is removing that section of Appendix A to part 748 as the implementation schedule is no longer necessary or helpful to credit unions.

Part 749 sets out the procedures that federally insured credit unions must follow for records preservation and retention. Section E(1)(c) of Appendix A to part 749 states that credit unions should permanently retain all current manuals, circular letters, and other official instructions of a permanentcharacter received from NCUA and other governmental agencies. This requirement has become outdated. All publications noted in this section are maintained electronically on NCUA's Web site and other governmental agencies' Web sites or are otherwise available to credit unions. Accordingly, the Board is removing this section, which will help reduce the burden and cost on credit unions for the storage and retention of these items.

Generally, the Administrative Procedure Act (APA) requires a Federal agency to provide the public with notice and the opportunity to comment on agency rulemakings. The amendments in this rule are non-substantive and technical. They make minor changes, some of which are statutorily required by the Dodd-Frank Act. The APA permits an agency to forego the notice and comment period under certain circumstances, such as when a rulemaking is technical and non-substantive. NCUA finds good cause that notice and public comment are unnecessary under section 553(b)(3)(B) of the APA.14 NCUA also finds good cause to dispense with the 30-day delayed effective date requirement under section 553(d)(3) of the APA.15 The rule will, therefore, be effective immediately upon publication.

The Regulatory Flexibility Act requires NCUA to prepare an analysis on any significant economic impact any regulation may have on a substantial number of small entities (primarily those under $10 million in assets).16 NCUA has determined that these technical amendments will not have a significant economic impact on a substantial number of small credit unions.

The Paperwork Reduction Act of 1995 (PRA) applies to rulemakings in which an agency by rule creates a new paperwork burden on regulated entities or modifies an existing burden.17 For purposes of the PRA, a paperwork burden may take the form of either a reporting or a recordkeeping requirement, both referred to as information collections. These technical corrections do not impose any paperwork burden.

Executive Order 13132 encourages independent regulatory agencies to consider the impact of their actions on state and local interests. NCUA, an independent regulatory agency as defined in 44 U.S.C. 3502(5), voluntarily complies with the Executive Order to adhere to fundamental federalism principles. This rule would not have a substantial direct effect on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government because it simply makes technical corrections to existing regulations. NCUA has determined this rule does not constitute a policy that has federalism implications for purposes of the Executive Order.

NCUA has determined that this rule would not affect family well-being within the meaning of section 654 of the Treasury and General Government Appropriations Act of 1999.18

The Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA) provides generally for congressional review of agency rules. A reporting requirement is triggered in instances where NCUA issues a final rule as defined by section 551 of the APA.19 The Office of Management and Budget has determined that this rule is not a “major rule” within the meaning of SBREFA.

For the reasons stated above, NCUA amends 12 CFR parts 701, 707, 714, 748, and 749 as follows:

Discussion

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2012-0185-E, dated September 12, 2012 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

This product has been approved by EASA, and is approved for operation in the United States. Pursuant to our bilateral agreement with the European Community, EASA has notified us of the unsafe condition described in the MCAI and service information referenced above. We are issuing this AD because we evaluated all information provided by EASA and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design. This AD requires initial and repetitive general inspections and UIs of LPC fan blades for cracks. If any fan blade is found cracked, this AD requires replacement of the LPC fan blade set and the LPC fan disc.

No domestic operators use this product. Therefore, we find that notice and opportunity for prior public comment are unnecessary and that good cause exists for making this amendment effective in less than 30 days.

This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment. However, we invite you to send any written data, views, or arguments about this AD. Send your comments to an address listed under theADDRESSESsection. Include the docket number FAA-2012-1056 and Directorate Identifier 2012-NE-32-AD at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD because of those comments.

We will post all comments we receive, without change, tohttp://www.regulations.gov,including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this AD. Using the search function of the Web site, anyone can find and read the comments in any of our dockets, including, if provided, the name of the individual who sent the comment (or signed the comment on behalf of an association, business, labor union, etc.). You may review the DOT's complete Privacy Act Statement in theFederal Registerpublished on April 11, 2000 (65 FR 19477-78).

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

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

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

For the reasons discussed above, I certify this AD:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and

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

We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket.

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

This AD is a final rule that involves requirements affecting flight safety, and we did not provide you with notice and an opportunity to provide your comments prior to it becoming effective. However, we invite you to participate in this rulemaking by submitting written comments, data, or views. We also invite comments relating to the economic, environmental, energy, or federalism impacts that resulted from adopting this AD. The most helpful comments reference a specific portion of the AD, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should send only one copy of written comments, or if comments are filed electronically, commenters should submit them only one time. We will file in the docket all comments that we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning this rulemaking during the comment period. We will consider all the comments we receive and may conduct additional rulemaking based on those comments.

We are adopting a new AD for Sikorsky Model S-70, S-70A and S-70C helicopters. This AD requires reducing or establishing life limits for the main rotor blade, tail rotor blade, planetary carrier assembly, tail rotor servo, elastomeric sleeve bearing, main landing gear shock strut piston cylinder, crossfeed valve, oil cooler axial fan ball bearing assembly, dowel pins, main rotor hub, and right tie rod attach bolt. This AD is prompted by the need to reduce life limits on the specified parts. This determination is based on a review of analysis by the U.S. Army of certain parts installed on the military Model UH-60 helicopters, which shows that the life limits of those parts need to be reduced. The Sikorsky Model S-70, S-70A and S-70C helicopters are restricted category helicopters derived from the military Model UH-60 helicopter. The actions are intended toestablish life limits for certain parts to prevent fatigue failure of a part and subsequent loss of control of the helicopter.

We are issuing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other helicopters of these same type designs.

This AD requires, before further flight, establishing or reducing life limits for certain parts and removing from service each part that has reached its life limit.

We estimate that this AD will affect nine helicopters of U.S. Registry. We estimate that operators may incur the following costs in order to comply with this AD.

It will take about 4.7 work hours at $85 per work hour to replace each part plus the required costs per helicopter as follows:

• $70,000 for the main rotor blade,

• $30,000 for the tail rotor blade,

• $490 for the elastomeric sleeve bearing,

• $233 for the right tie rod attach bolt,

• $40,000 for the main rotor hub,

• $12,000 for the main landing gear shock strut piston system,

• $44,000 for the tail rotor servo,

• $200 for the crossfeed breakaway valve,

• $59,000 for the main module planetary carrier assembly, and

• $3,700 for the dowel pins (11 total).

Since a part must be replaced before further flight if it has reached its life limit and some of the parts may have exceeded or be close to reaching the life limit, this AD must be issued immediately.

Since an unsafe condition exists that requires the immediate adoption of this AD, we determined that notice and opportunity for public comment before issuing this AD are impracticable and that good cause exists for making this amendment effective in less than 30 days.

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

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

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

For the reasons discussed, I certify that this AD:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);

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

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

We prepared an economic evaluation of the estimated costs to comply with this AD and placed it in the AD docket.

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

The FAA's authority to issue rules on aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.

This rulemaking is promulgated under the authority described in Subtitle VII, PartA,Subpart III, section 44701(a)(1), section 44703(b)(1)(D), and section 44711(a)(2). In section 44701(a)(1), the FAA is charged with prescribing regulations and minimum standards in the interest of safety for the manner of servicing of aircraft appliances. In section 44703(b)(1)(D), the FAA is charged with specifying the capacity in which the holder of a certificate may serve as an airman with respect to an aircraft. Section 44711(a)(2) prohibits any person from serving in any capacity as an airman with respect to a civil aircraft or aircraft appliance used, or intended for use, in air commerce without an airman certificate authorizing the airman to serve in the capacity for which the certificate was issued. This regulation is within the scope of the cited authority.

This final rule allows all pilots operating aircraft equipped with certificated avionics equipment as described herein to perform updates of aeronautical databases. In 1996, the FAA updated the regulations defining preventive maintenance to include updating the navigation database of self-contained, front-panel or pedestal-mounted navigation equipment. This allowed the holder of a pilot certificate issued under part 61 to perform the database upload on any aircraft owned or operated by that pilot not used under parts 121, 129, or 135 (hereafter refered to as “restricted operations”). The safetyrecord established by pilots performing those database updates, the evolution of installed avionics equipment, and the expansion of database use in avionics equipment installed in all classes of certificated aircraft have prompted changes put into effect by this final rule.

In both the 1996 final rule and the NPRM issued for this final rule, the term “navigation database” was used. To create harmonization with existing guidance (i.e., Advisory Circular AC 20-153, Paragraph 7—Definitions), the term “navigation database” is changed to “aeronautical database” in the discussion of this final rule.

This final rule recognizes the installed avionics equipment, the media upon which databases are stored, and the means by which databases are uploaded to the avionics equipment have evolved, and they will continue to do so. Accordingly, language such as “* * * self-contained, front-panel or pedestal-mounted navigation equipment * * *” used in the 1996 final rule has been eliminated and replaced by conditions which will enable a pilot or operator to determine which equipment may have aeronautical databases updated by a pilot.

The navigation equipment most prevalent in 1996 can, for the sake of discussion, be divided into two categories.

Large transport category aircraft were typically equipped with Flight Management Systems that were comprised of a Control Display Unit on the flight deck and a Flight Management Computer in the electronics bay. These systems were typically updated using a portable dataloader which was connected to the system via a remote connector. These systems required the trained skills and knowledge of authorized maintenance personnel to perform the update.

Some avionics manufacturers had also been manufacturing systems that performed similar functions as those installed on the large transport aircraft, but those systems were small, self-contained units typically installed on the front panel or pedestal in the flight deck of smaller transport category and general aviation aircraft. These systems stored their database on removable media, such as a Secure Digital (SD) card, rather than in resident memory. The database update was accomplished by removing the SD card with the old database and replacing it with the SD card containing the new database.

On May 1, 1996, the FAA issued regulations (61 FR 19498) categorizing pilot-performed updates of navigation databases as preventive maintenance. Pilots operating aircraft under parts 121, 129, and 135 by regulation are not permitted to perform preventive maintenance, and therefore, those pilots could not update navigation databases. The FAA determined at that time that navigation database updates presented some risk when performed by a pilot on a part 121, 129, or 135 aircraft because they were typically equipped with more sophisticated equipment that required special tools (a portable dataloader) and skills to update. However, as a result of pilot-performed updates, pilots of aircraft used in non-restricted operations received the benefit of having the most current aeronautical data available at all times. Much like this final rule, the 1996 final rule was the FAA's first step toward bringing the regulations up to date with technology.

Since implementation of the 1996 final rule, the FAA regularly receives petitions for exemption from parts 121, 129, and 135 operators requesting relief from the requirement for authorized personnel to perform database updates. The FAA has considered the history of successful and easily-performed, incident-free pilot updates of databases established on aircraft used in non-restricted operations. As a result, the FAA has determined that safety-based reasons no longer exist to justify the requirements for authorized maintenance personnel to perform database updates on aircraft based upon a regulatory operating part rather than by the design of the installed avionics equipment.

Since implementation of the 1996 final rule, installed avionics equipment has continued to evolve. Manufacturers developed systems for large transport category aircraft that make use of a permanently-installed dataloader as part of the certificated system. These systems eliminate the need for use of special tools (portable dataloaders) to initiate a database update.

Similar systems, and the self-contained systems discussed above, have come into prevalent use on smaller aircraft, from general aviation aircraft to business jets. Under current regulations, a pilot operating such an aircraft under part 91 may update databases, while a pilot of the same type of aircraft with the same installed avionics equipment operated under parts 121, 129, or 135 cannot update databases.

At this time, newly-manufactured aircraft—such as the Boeing 787, Airbus A380, and others—are equipped with technology such as the Gatelink system which enables wireless updating of systems and databases. The current regulation does not accommodate such advances in technology; this final rule does. While the FAA recognizes the need to allow for future technologies, the FAA also recognizes its inability at this time to predict what those technologies may be. As such, certification of future systems must include evaluation of the methods, means, and materials required for performing aeronautical database updates. Such equipment must be designed and certified in a manner that allows clear determination by a pilot or operator of whether or not the system can be updated by a pilot under this final rule, or must be updated by authorized maintenance personnel.

The current requirement for authorized personnel to perform updates, as it applies to avionics equipment described in this final rule, can no longer be justified based on safety concerns. It imposes unnecessary operating costs and operational inefficiencies on certificate holders conducting operations under parts 121, 129, and 135. To comply with operating regulations, such as those under part 91.503, these operators must ensure the required database is current. Updates are performed within a prescribed cycle to ensure currency, which is not always possible if the database expires when the aircraft is away from the home base or at a station where authorized maintenance personnel are not available. Operational costs are increased for the certificate holder whenever an aeronautical database expires while the aircraft is en route. If the aircraft is en route and located where authorized personnel are not available to perform the update, the operator has three options: (1) Operate the aircraft with an expired database, (2) reroute the aircraft to an authorized repair station, or (3) transport an authorized mechanic to the aircraft's location. Each of these options imposes additional operational costs in terms of operational restrictions, manpower and fuel consumption.

If the aircraft is operated with an expired database, the pilot must adhere to operational restrictions, which automatically prohibits the use of certain routes within the National Airspace System, resulting in the use of a less direct route to the destination. If the aircraft is rerouted to a repair station, or authorized personnel are transported to the aircraft's location, the operator must absorb the costs of additional fuel consumption, and valuable time can be lost locating mechanics and transporting them to the aircraft. This is particularly true foroperations conducted in remote areas where traveling greater distances to repair stations would be required. Exercising any one of the above-noted options increases the pilot's workload by requiring the selection of alternate routes appropriate for an expired database. Air traffic controller workloads are also increased when the aircraft is re-routed because certain routes are only available to aircraft using the current database for any given period. At a minimum, the operator must facilitate the transport of authorized personnel to the location of the aircraft. Eliminating the requirement for approved personnel will increase operational efficiency for certificate holders and contribute to reduced air traffic control and pilot workloads.

The stated problem is that the regulations have fallen behind technology and fail to address the pervasive use of installed avionics dependent upon aeronautical databases. This final rule acknowledges the evolution of technology by removing the task of pilot-performed updates of databases in certain installed avionics from the preventive maintenance regulations and by allowing pilot-performed updates of databases in accordance with new regulatory requirements. Differences between this final rule and its NPRM are the result of the recommendations made by commenters in response to the NPRM, which are discussed in greater detail below.

A benefit from the final rule will be a reduction in the FAA's issuance of grants of exemption to parts 121, 129, and 135 certificate holders seeking relief from the requirement for authorized maintenance personnel to perform the updating task. The FAA's workload has been impacted by the regular receipt of petitions for exemption requesting that pilots be allowed to perform updates. The increased workload has impacted the FAA's ability to more efficiently process petitions for exemption. Delaying the issuance of a justified exemption, where safety is not compromised, forces eligible certificate holders to continue paying for unnecessary services by authorized personnel and bear the resulting operational inefficiencies and increased costs. This final rule resolves these issues by eliminating the requirement for parts 121, 129, and 135 operators to use authorized personnel to update databases in the avionics equipment described herein.

The FAA proposed to amend the part 43 maintenance regulations in the NPRM (76 FR 64859, October 19, 2011), by removing the task of updating databases used in self-contained, front-panel or pedestal-mounted navigational equipment from the preventive maintenance category. The primary intended effect of the proposal was to enable regular use of the most current and accurate navigational data by allowing pilots using navigation units to perform database updates as they became due. Specific regulatory text was included to restrict the type of equipment eligible for pilot-performed updates, including requirements for the pilot to receive appropriate training and to verify the upload status to determine if minimum equipment list (MEL) restrictions need to be followed.

The final rule represents a departure from the NPRM in terms of the description of the equipment eligible for pilot-performed updates. In addition, the regulatory text has been modified from the originally-proposed text to permit pilot-performed updates on all certificated aircraft upon compliance with the certificate holder's procedures or the manufacturer's instructions. The changes from those proposed in the NPRM arose directly from suggestions made by commenters in response to the NPRM.

The comment period for the NPRM closed on December 19, 2011. We received comments from 52 commenters raising a total of seven substantive issues. Commenters to the NPRM represented aviation associations, manufacturers of avionics equipment, aircraft operators, owners, and other individuals. The commenters, in general, expressed support for the proposed rule change. Some commenters supplied alternative recommendations, as discussed more fully in the “Discussion of the Final Rule” below.

The FAA received comments regarding the following proposals:

• Relocation of the requirement from 14 CFR part 43 to other CFR parts (since performing the updates would no longer be preventive maintenance);

• Recordkeeping requirements;

• Training for pilots;

• Technological advancements in data-transfer mechanisms and methods;

• Limitation on types of media that could be used for storing data;

• Inconsistent references to terrain databases; and

• Possible labor-management issues.

The final rule is consistent with the NPRM to the extent that they both authorize pilot-performed updates on all certificated aircraft operating under parts 121, 129, and 135.

Performing database updates on avionics systems that require tools or special equipment to accomplish the data transfer continues to be maintenance and requires that approved personnel perform the update.

Upon issuance of this rule, all pilots operating appropriately-equipped aircraft will be permitted to perform database updates in accordance with the certificate holder's or manufacturer's instructions. To comply with the requirements of 14 CFR 43.3(k)(iv) and (v), the certificate holder will be required to revise the existing procedures for updating the database in its manual. This information will replace or augment the operator's existing database updating procedures. Pilot-owners of general aviation aircraft will be required to include the manufacturer's instructions in their pilot's handbook or flight manual.

Requirements and procedures for performing database updates are established by the aircraft or avionics manufacturer in coordination with the FAA at the time of certification for its use on the aircraft. If a manufacturer designs a system that an aircraft owner or operator would determine meets the criteria for pilot-performed updates of databases under the conditions of the rule but, due to system criticality or other factors, that system should only be updated by authorized maintenance personnel, the manufacturer must specify that requirement in its instructions for continued airworthiness (ICA). The ICAs that include these procedures will be accepted by the FAA.

Under the final rule, if performing an update would require special access to installed equipment, or use of tools or special equipment, then the task must still be performed by authorized personnel under the provisions of part 43 as maintenance, and all pertinent maintenance regulations would apply. Operators may continue to use authorized maintenance personnel or facilities to perform the database updates even if the avionics meet the criteria of this rule.

Commenters, including Garmin International (“Garmin”) and the Aircraft Electronics Association (AEA), stated that the proposal to remove database updates from the preventive maintenance category, without placing them in another category, would haveresulted in database updates becoming maintenance tasks. The commenters asserted that doing so would place more burdens on operators.

We considered the commenters' concerns and determined that the problem they identify can be resolved by drafting § 43.3(k) differently. We have removed paragraph (c)(32) of Appendix A to part 43, which pertains to updating navigation databases of certain equipment installed on aircraft operated under non-restricted operating regulations. Updating aeronautical databases will not be regulated as maintenance on specified equipment in accordance with the requirements set forth under the new paragraph (k) in § 43.3. Updating databases of other installed avionics has been, and will continue to be, conducted as maintenance under part 43.

An anonymous commenter recommended that regulations relating to updating databases should be placed under the applicable operating parts (i.e., parts 121, 129, and 135) as preflight duties and should also require pilot training. In general, we rejected these recommendations because specified avionics systems are approved for use on all certificated aircraft regardless of the regulations under which the aircraft is operated. The intended effect of this rule change is to regulate pilot-performed database updates by installed avionics equipment type, rather than by the operating regulations under which flights are conducted.

Several commenters, including Garmin, the Aircraft Electronics Association (AEA), NetJets, and the Aircraft Owners and Pilots Association (AOPA), stated that a definition for databases approved for pilot-performed updates would, in effect, create a barrier to the use of newer technology and would restrict the selection of databases approved for use during pilot-performed updates to those approved under the 1996 final rule, namely navigation and communication. AOPA suggested that the FAA should write the rule to accommodate later developments in database capabilities. These commenters recommended we adopt the definition of “aeronautical database” contained in AC 20-153A. Along the same lines, one commenter recommended that the FAA should define “[air traffic control] ATC navigational software data” because today many databases include active terrain and obstacle information.

We agree. To address this concern, aeronautical information service databases will be authorized for use at the time of certification in accordance with guidance provided in AC 20-153A. The rule will not limit database use based on subject-matter descriptions, unlike the 1996 final rule, which specifically addressed ATC navigational software, thereby limiting database use to that single subject matter.

Universal Avionics, Honeywell International, Inc. (“Honeywell”), and Garmin stated that the description used in the NPRM for approved nav-systems would exclude the use of newer systems and data-transfer mechanisms such as those employing wireless technology. In the NPRM, we used the term “nav-systems” to describe aeronautical information avionics devices that are self-contained, front instrument panel-mounted ATC navigational software database systems.

The FAA agrees with these commenters. It is our intention for this rule to be equipment based and allow accommodation of emerging technology. Therefore, we have changed the description of the avionics devices that will be eligible for pilot-performed updates. The NPRM used the same description provided in the 1996 final rule, basically, “self-contained, front instrument panel-mounted and pedestal-mounted ATC navigational system databases—excluding those of automatic flight control systems, transponders, and microwave frequency distance measuring equipment (DME), and any updates that affect system operating software—that require no disassembly.” In this final rule, we are approving pilot-performed updates of installed avionics if the equipment is approved by the Administrator and does not require the use of tools or special equipment. Data-transfer mechanisms, database storage media, and usable subject databases will be determined by the FAA and manufacturer at the time the device is certificated for use on the aircraft.

These same commenters and some other commenters, expressed concern about system integrity in terms of how data would be protected with the newer avionics. This rule does not address the manufacture of avionics equipment or the development of usable databases, and, as such, protection of data integrity goes beyond the scope of this rule. Nonetheless, we note that new technologies approved for use on aircraft will be developed with attention to data integrity. Current technology uses databases which are developed in accordance with standards developed by Aeronautical Radio, Inc. (ARINC), which has been the world standard since 1975. These standards have proven effective in preserving data integrity. Moreover, protection for the integrity of the system and data will continue to be addressed under existing regulations by applicable design, production, installation, and certification approvals. In all cases, the FAA will work with the manufacturer to ensure the highest level of integrity for aeronautical data and data-transfer mechanisms.

Another individual commenter stated that the phrase used in the NPRM “files that are `non-corruptible' upon loading,” is very confusing. We agree, the phrase “files that are non-corruptible, upon loading” is confusing and we have omitted this language from the final rule. To address the same issue with greater clarity, the final rule requires that to be eligible for pilot-performed updating, written procedures must be provided to the pilot performing the updates. Those procedures will identify the status verification function as defined by the system manufacturer.

One individual commenter asked when updates can be installed and/or used. The commenter stated that whether disks are mailed to the user or downloaded, they are available about 10 days before the due dates. In this matter, the pilot-operator performs the update in accordance with the manufacturer's instructions, which should address any limitations, or contact the manufacturer if the instructions do not address the point to inquire whether loading the updated database prior to the effective date would negatively impact system performance.

Several commenters, including AOPA and NetJets, were concerned about the requirement for the pilot to record each update in a maintenance logbook. AOPA expressed concern that the NPRM proposed a requirement that would create a second recordkeeping requirement and that the return to service maintenance entry required by § 43.7 would need to be completed by “qualified personnel.” NetJets recommended that the FAA specifically state in the final rule preamble that no aircraft maintenance entries or signatures are required when pilots perform aeronautical database updates. We have considered the comments and agree that it is unnecessary for the pilot to make a record of the update. Recordkeeping requirements for the pilot have been eliminated. The current regulations do not require pilot-owners to record each update in a maintenance logbook, and the absence of such a requirement has not been problematic.

Honeywell and NetJets suggested that the FAA focus on the device used to provide aeronautical information services instead of how the device is installed (i.e., “self-contained, front-instrument panel-mounted and pedestal-mounted”). The commenters were not as concerned with how the device was installed as with how the device received data uploads. This point was captured by one commenter who stated, “[A]lthough most of the systems have cards that are accessible from the `front' of the unit, they [can] also have [a] system that updates by accessing data stored on a `medium' read by a Data Transfer Unit (DTU), and DTUs can be installed almost anywhere in the aircraft [sic].”

We agree. Data-transfer mechanism designs are constantly evolving. In 1996, floppy disks inserted in portable dataloaders externally connected to the processor were commonly used to update databases. Today, floppy disks are still used in those installed systems that have not been replaced, but floppy disks are not used by currently-produced systems. Instead, we see the pervasive use of permanently installed data-transfer mechanisms. These mechanisms can include a slot for an SD card, an installed dataloader, or even wireless technology. Pilots will not be permitted to update databases of installed avionics that use portable dataloaders such as those used with the older navigational systems installed on large transport category aircraft.

We have extended the rule to allow all certificated data-transfer mechanisms, but we specifically exclude means of data transfer that require physical connection to installed equipment such as portable dataloaders and laptops.

The National Air Transportation Association (NATA) stated, “When the FAA proposes new regulations affecting air carrier aircraft that require actions by authorized maintenance personnel, the agency does not consider as a benefit the fact that certificated mechanics and repair stations will get more work. Therefore doing the opposite, considering, as a cost, the loss of business when the FAA deems a requirement is no longer applicable or necessary, should not occur either.”

The FAA concurs. The FAA merely noted that the rule could affect certain parties. The FAA did not state that such effects are a cost of the rule and did not ascribe any such cost to the final rule. It bears noting that this rule is permissive; thus, certificate holders are not required to approve pilot-performed updates on their operations.

The Air Line Pilots Association (ALPA) submitted the only direct objection to this rulemaking for labor-management reasons. The objections are set forth below followed by our response.

ALPA stated that because of the high level of safety achieved by commercial aviation, airline travel in the U.S. and Canada has been accomplished by the use of highly trained professionals and technical specialists performing their respective tasks in a coordinated and disciplined fashion. ALPA contends that the proposal would make airline pilots responsible for certain additional aircraft maintenance and maintenance recordation functions that should continue to be properly performed by maintenance and ground support personnel.

We agree that this final rule will give operators the option to impose the additional responsibility to perform the update on pilots. However, the pilot-performed updates are allowed only on avionics equipment where the process of updating is simplified to a point where it can be performed quickly and easily. Significantly, database uploads that require the special skills or training or the use of tools or special equipment will continue to be a maintenance task that authorized personnel must perform.

In addition, as discussed below, we have removed all recordkeeping requirements for pilots who perform these updates. We do not agree with implicit concern that allowing pilot-performed updates in any way diminishes safety. As we discussed earlier, at the certification level continuing measures will be taken to ensure that safety will not be compromised. Also, as stated earlier, the FAA has not received any incident reports stating that a pilot's failure to make a maintenance logbook entry for performing the database update has had any impact on aviation safety.

ALPA also contends that the philosophical shift in airline operational tasks and definitions of employee roles, which this rulemaking represents, would give rise to a number of issues that would negatively impact airline pilots and justify rejection. ALPA stated airline operations depend on quick turn-arounds for on-time departures. Giving pilots an additional task in the form of updating navigational systems while they endeavor to achieve an on-time departure would create additional time pressure and could result in greater risks of errors in all cockpit duties.

We note the final rule is permissive in nature. Operators have the option to require that maintenance personnel perform the database updates. However, we again emphasize that pilot-performed updates on applicable avionics equipment is a very simple task that will take only a couple minutes to perform, as the system is largely automated.

ALPA also states that pilots would assume a new and additional responsibility for which no training is approved, including: (1) Obtaining the storage media from someone within the company in a timely fashion, (2) safeguarding the media while in their possession so that it is not lost, stolen, or damaged, (3) properly loading the updates into the nav-system, (4) recording the updates in maintenance logs and/or other documents, and (5) returning the storage media to the appropriate individual within the company when the update is completed, as required.

Whether training is required will be a determination made by the FAA, the operator, and the manufacturer. In any case, minimal training will be necessary because of the nature of the equipment, and the pilot's current familiarity with the system. Media-storage issues have not changed and will continue to be the certificate holder's responsibility as the subscriber to the database service, and thus, the operator would be responsible for providing the updates to the pilot. Protection of the data would not require special skills or action because data is stored on media similar to an SD card or flash drive. Further, post-update security is not an issue because the data on the storage media would have no useable value. Finally, we have eliminated the proposal to have recordkeeping requirements. We therefore believe the concerns raised by ALPA have all been addressed.

ALPA states that provisions in current collective-bargaining agreements could make the assumption of the responsibility for updating aeronautical data impossible for pilots at a particular carrier, as updating may not be included within the scope of pilots' responsibilities. At a minimum, this proposal could result in labor-management contention.

We do not believe the FAA's role is to intervene between management, labor, and collective-bargaining units on issues arising from a permissive rulemaking. Should issues arise related to compliance or concerning FAA expectations with this final rule, we would provide guidance or legal interpretation upon request.

Changes to Federal regulations must undergo several economic analyses. First, Executive Orders 12866 and 13563 direct that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulationjustify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354) requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (Pub. L. 96-39) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. In developing U.S. standards, this Trade Act requires agencies to consider international standards and, where appropriate, that they be the basis of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a federal mandate likely to result in the expenditure by state, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more annually (adjusted for inflation with base year of 1995). This portion of the preamble summarizes the FAA's analysis of the economic impacts of this rule.

In conducting these analyses, the FAA determined that this rule: (1) Has benefits that justify its costs, (2) is not an economically “significant regulatory action” as defined in section 3(f) of Executive Order 12866, (3) is not “significant” as defined in DOT's Regulatory Policies and Procedures, (4) will not have a significant economic impact on a substantial number of small entities, (5) will not create unnecessary obstacles to the foreign commerce of the United States, and (6) will not impose an unfunded mandate on state, local, or tribal governments, or on the private sector by exceeding the threshold identified above.

Department of Transportation Order DOT 2100.5 prescribes policies and procedures for simplification, analysis, and review of regulations. If the expected cost impact is so minimal that a proposed or final rule does not warrant a full evaluation, this order allows that a statement to that effect and the basis for it to be included in the preamble if a full regulatory evaluation of the cost and benefits is not prepared. Such a determination has been made on this rule for the following reasons:

The rule is permissive in nature and will provide relief to all operators of certificated aircraft who elect to allow pilot-performed updates, rather than to pay for services of an authorized repair station or mechanic. The rule eliminates the requirement that only repair stations and authorized mechanics can perform database updates and allows pilots to perform the update on avionics equipment approved by the Administrator and described herein. Allowing pilots to perform the updates will save the operator the expense of either making a positioning flight to a repair station or transporting an authorized mechanic to the aircraft to perform the update. Public comments on the proposed rule supported this change and there were no contrary comments to the economic analysis in the Regulatory Evaluation.

Using the cost information supplied by commenters, who provided the only available data for assessing the impact of this rule, the FAA has determined that this rule is not a “significant regulatory action” as defined in section 3(f) of Executive Order 12866, and this rule is not “significant” as defined in DOT's Regulatory Policies and Procedures.

The two benefits from this rule will arise from increased safety and reduced operational costs. The primary safety benefit is that affected aircraft operators will no longer be forced to occasionally operate aircraft without the most current aeronautical database when the database expires and authorized personnel are not available to perform the update. A corollary safety benefit is a reduction in workloads for pilots and air traffic controllers, which accrues a benefit to the aircraft operator and to air traffic control. As previously discussed, the use of avionics systems contributes to increased safety in four respects: (1) By providing the pilot with accurate aeronautical information; (2) by increasing access to airports under less than optimal flight conditions; (3) by increasing workforce efficiency for both the aircraft pilot and air traffic control; and (4) by generating more efficient use of the airspace system.

Avionics systems databases are generally updated every 28 days, although some are updated as often as every 14 days. The current regulations allow only pilots of aircraft operated under non-restricted operating regulations to perform the database update; all other operators (i.e. those operating under parts 121, 129 and 135) must have an authorized repair station or mechanic perform the update. This requirement creates a problem for operations conducted under part 121, 129, 135 and other restricted operators if the database expires when the aircraft is en route or at a remote location and authorized personnel are not available to perform the update. If the database expires, the aircraft operator/pilot has one of three choices: (1) Fly the aircraft to a location where authorized personnel are available; (2) fly authorized personnel to the aircraft; or (3) operate the aircraft under MEL restrictions, which limits the pilot's options in terms of routes flown and airport accessibility. Each of the three options results in added operational costs in terms of man-hours and additional and increased fuel costs. Reducing the number of unnecessary aircraft operations conducted due to an expired database eliminates increased pilot and ATC workloads associated with re-vectoring flights or transporting authorized personnel to perform updates.

One commenter reported that its airplanes averaged 1.25 operations a year per aircraft under MEL because the aeronautical database upload had to be deferred until the aircraft could reach a repair station. Another commenter reported that its fleet of 12 aircraft had to operate between 10 and 15 times a year flying under MEL because certificated maintenance personnel were unavailable at the remote location where the aircraft was when the aeronautical database needed to be updated.

Pilots of non-restricted operations have been performing database updates on these types of avionics systems since 1996 and the FAA knows of no accidents or incidents attributable to errors by these pilots from performing these updates. Today, aircraft operated under all parts of the regulations are regularly equipped with avionics systems whose database update procedures are similar to those used by pilots who perform database updates on aircraft in non-restricted operations. The ease of pilot-performed updates combined with the absence of any accidents or incidents provides ample evidence that all pilots flying aircraft equipped with appropriate avionics devices should be permitted to perform updates. Consequently, allowing pilots of restricted operations to perform updates will reduce the numbers of route-restricted flights required by reason of an expired database.

The second benefit will be cost savings to the operators. Allowing their pilots to update aeronautical databases eliminates the costs associated with paying authorized personnel to perform the task and the costs of a positioning flight to a repair station, or transporting a certificated mechanic to the aircraft to install the update. In practice, the costs of having authorized personnel perform database updates are minimal because the task would be performed concurrent with a number or other tasks as part of a maintenance service. Even when done specifically to update the database, thecost is relatively small. This conclusion is supported by reports received from commenters stating that the rule would generate such cost savings. However, only one commenter provided an estimate of the cost of a positioning flight, which was an average of $7,700 from the components of crew costs, fuel costs, and lost revenue. In a clarifying comment to the FAA, that commenter reported that during 2011 its airplanes incurred $514,333 in direct crew costs and fuel costs for positioning flights solely to update aeronautical databases. This commenter also reported that its 600 aircraft made 218 of these positioning flights, which is an average of about 0.36 positioning flights per year per aircraft. Thus, its reported average cost per positioning flight was about $2,360.

In the Initial Regulatory Evaluation for the proposed rule, the FAA estimated that the cost of a single positioning flight ranges between $1,000 and $2,500 and that the cost to transport a certified mechanic to an aircraft is similar. The FAA has determined that its initial estimate was reasonable. However, the FAA cannot use one commenter's statement to quantify a total societal cost-savings from this rule for two reasons. The first reason is that this operator's experiences may not be typical of all the operators that will be affected by the rule. The second reason is that the FAA does not know the number of existing aircraft or the numbers of future aircraft that will have aeronautical database systems that will be affected by the rule. Nevertheless, given the number of commenters who did state that they would receive cost savings from the rule, the FAA concludes that the rule will result in reduced man-hours and fuel costs by reducing the numbers of positioning flights required solely to update the databases.

A third benefit is that the final rule, which will allow all pilots operating appropriately equipped aircraft to perform database updates, which will also pave the way for future technologies. Certification regulations make approval of new devices contingent upon conforming to established criteria for approved equipment, which imparts flexibility allowing the use of newer devices.

In the Initial Regulatory Evaluation, the FAA determined that the proposed rule would impose minimal costs because it would allow a pilot to upload the current database; a task that currently imposes an additional cost on the operator who must have the update performed by a certificated mechanic or in a repair station. The comments received in response to this issue support the FAA's determination.

This rule affects all operators of certificated aircraft equipped with installed avionics that: (1) Have a pilot accessible data transfer mechanism permanently installed on the flight deck; (2) can be updated without the use of tools, and (3) is programmed to provide a data load status. This rule will also affect maintenance personnel and repair stations that parts 121, 129, and 135 operators were previously required to pay for updating databases.

The primary sources of information were the commenters, which included part 135 operators, part 121 operators, aircraft electronics manufacturers, an aircraft electronics association representative, a pilot union, and several individuals.

The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA) establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objectives of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the businesses, organizations, and governmental jurisdictions subject to regulation. To achieve this principle, agencies are required to solicit and consider flexible regulatory proposals and to explain the rationale for their actions to assure that such proposals are given serious consideration.” The RFA covers a wide range of small entities, including small businesses, not-for-profit organizations, and small governmental jurisdictions.

Agencies must perform a review to determine whether a final rule will have a significant economic impact on a substantial number of small entities. If the agency determines that it will, the agency must prepare an initial regulatory flexibility analysis as described in the RFA. However, if an agency determines that a final rule will not have a significant economic impact on a substantial number of small entities, section 605(b) of the RFA provides that the head of the agency may so certify and a regulatory flexibility analysis is not required. The certification must include a statement providing the factual basis for this determination, and the reasoning should be clear.

The net economic impact of this rule will provide regulatory cost relief. As this rule will reduce costs for some small entities, the acting FAA Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities.

The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal agencies from establishing standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Pursuant to these Acts, the establishment of standards is not considered an unnecessary obstacle to the foreign commerce of the United States, so long as the standard has a legitimate domestic objective, such as protection of safety, and does not operate in a manner that excludes imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. We assessed the potential effect of this rule and determined that it will not constitute an obstacle to the foreign commerce of the United States, and, thus, is consistent with the Trade Assessments Act.

Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (adjusted annually for inflation with the base year 1995) in any one year by state, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.” The FAA currently uses an inflation-adjusted value of $143.1 million in lieu of $100 million. This rule does not contain such a mandate; therefore, the requirements of Title II do not apply.

The Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3507(d)) requires that the FAA consider the impact of paperwork and other information collection burdens imposed on the public. We have determined that there is no information collection burden associated with this final rule.

In keeping with U.S. obligations under the Convention on International Civil Aviation, it is FAA policy tocomply with International Civil Aviation Organization (ICAO) Standards and Recommended Practices to the maximum extent practicable. The FAA has reviewed the corresponding ICAO Standards and Recommended Practices and has identified no differences with these regulations.

Executive Order 13609, Promoting International Regulatory Cooperation, promotes international regulatory cooperation to meet shared challenges involving health, safety, labor, security, environmental, and other issues and to reduce, eliminate, or prevent unnecessary differences in regulatory requirements. The FAA has analyzed this action under the policies and agency responsibilities of Executive Order 13609, and has determined that this action would have no effect on international regulatory cooperation.

FAA Order 1050.1E identifies FAA actions that are categorically excluded from preparation of an environmental assessment or environmental impact statement under the National Environmental Policy Act in the absence of extraordinary circumstances. The FAA has determined this final rulemaking action qualifies for the categorical exclusion identified in paragraph 312(f) of the Order and involves no extraordinary circumstances.

Section 1205 of the FAA Reauthorization Act of 1996 (110 Stat. 3213) requires the Administrator, when modifying regulations in 14 CFR in a manner affecting intrastate aviation in Alaska, to consider the extent to which Alaska is not served by transportation modes other than aviation, and to establish appropriate regulatory distinctions.

The final rule would also provide an incremental benefit to aircraft providing air transportation to remote parts of Alaska by relieving pilots from having to fly with operational restrictions when the database expires.

See the “Regulatory Evaluation” discussion in the “Regulatory Notices and Analyses” section elsewhere in this preamble.

The FAA analyzed this final rule under the principles and criteria of Executive Order 13132, Federalism. We determined that this action will not have a substantial direct effect on the States, or the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government and, therefore, will not have federalism implications.

The FAA has analyzed this final rule under Executive Order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use (May 18, 2001). We have determined that it is not a “significant regulatory action” under the executive order because it is not a “significant regulatory action” under Executive Order 12866, and it is not likely to have a significant adverse effect on the supply, distribution, or use of energy.

An electronic copy of a rulemaking document my be obtained by using the Internet—

1. Search the Federal eRulemaking Portal (http://www.regulations.gov);

2. Visit the FAA's Regulations and Policies Web page athttp://www.faa.gov/regulations_policies/or

3. Access the Government Printing Office's Web page athttp://www.gpoaccess.gov/fr/index.html.

Copies may also be obtained by sending a request (identified by notice, amendment, or docket number of this rulemaking) to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue SW., Washington, DC 20591, or by calling (202) 267-9680.

Comments received may be viewed by going tohttp://www.regulations.govand following the online instructions to search the docket number for this action. Anyone is able to search the electronic form of all comments received into any of the FAA's dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.).

The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 requires FAA to comply with small entity requests for information or advice about compliance with statutes and regulations within its jurisdiction. A small entity with questions regarding this document, may contact its local FAA official, or the person listed under theFOR FURTHER INFORMATION CONTACTheading at the beginning of the preamble. To find out more about SBREFA on the Internet, visithttp://www.faa.gov/regulations_policies/rulemaking/sbre_act/.

In consideration of the foregoing, the Federal Aviation Administration amends chapter 1 of Title 14, Code of Federal Regulations, as follows:

Background

The Entity List (Supplement No. 4 to Part 744) notifies the public about entities that have engaged in activities that could result in an increased risk of the diversion of exported, reexported or transferred (in-country) items to weapons of mass destruction (WMD) programs. Since its initial publication, grounds for inclusion on the Entity List have expanded to include activities sanctioned by the State Department and activities contrary to U.S. national security or foreign policy interests, including terrorism and export control violations involving abuse of human rights. Certain exports, reexports, and transfers (in-country) to entities identified on the Entity List require licenses from BIS and are usually subject to a policy of denial. The availability of license exceptions in such transactions is very limited. The license review policy for each entity is identified in the license review policy column on the Entity List and the availability of license exceptions is noted in theFederal Registernotices adding persons to the Entity List. BIS places entities on the Entity List based on certain sections of part 744 (Control Policy: End-User and End-Use Based) of the EAR.

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

This rule implements the decision of the ERC to add two persons to the Entity List on the basis of § 744.11 (License requirements that apply to entities acting contrary to the national security or foreign policy interests of the United States) of the EAR. The two entries added to the Entity List consist of two entries in Pakistan.

The ERC reviewed § 744.11(b) (Criteria for revising the Entity List) in making the determination to add these two persons to the Entity List. Under that paragraph, persons for whom there is reasonable cause to believe, based on specific and articulable facts, that they have been involved, are involved, or pose a significant risk of being or becoming involved in, activities that are contrary to the national security or foreign policy interests of the United States and those acting on behalf of such persons may be added to the Entity List pursuant to § 744.11. Paragraphs (b)(1)-(b)(5) of § 744.11 include an illustrative list of activities that could be contrary to the national security or foreign policy interests of the United States.

The two persons being added under Pakistan, Mohammad Azam and Azam Electronics, are believed to have been involved in activities described under paragraphs (b)(1) and (b)(2) of § 744.11. Mohammad Azam owns and directs Azam Electronics in Chaman, Pakistan. There are entities operating in Chaman, Pakistan, that support violent extremist organizations that use Improvised Explosive Devices (IEDs) in Pakistan and Afghanistan to further their terrorist-related objectives. Electronic components sourced from Azam Electronics are used as triggering devices in IEDs that are being used in Afghanistan and Pakistan.

For the two persons added to the Entity List and the one modified entry described below, the ERC specified a license requirement for all items subject to the EAR, and established a license application review policy of a presumption of denial. The license requirement applies to any transaction in which items are to be exported, reexported, or transferred (in-country) to such persons or in which such persons act as purchaser, intermediate consignee, ultimate consignee, or end-user. In addition, no license exceptions are available for exports, reexports, or transfers (in-country) to those persons being added to the Entity List.

This final rule adds the following two persons to the Entity List:

On the basis of a decision made by the ERC, in addition to the two Pakistani additions described above, this rule amends one entry currently on the Entity List under the U.A.E. The amendments provide one additional alias and one alternate address for this listed person, as follows:

On November 14, 1994, by Executive Order 12938, the President declared a national emergency with respect to the unusual and extraordinary threat to the national security, foreign policy, and economy of the United States posed by the proliferation of nuclear, biological, and chemical weapons (weapons of mass destruction) and the means of delivering such weapons. The authority for authority for parts 730, 734, 736, 742, 744 and 745 of the Export Administration Regulations (15 CFR parts 730-774) rests in part on that executive order and the annual notices continuing the international emergency declared therein. This rule revises the authority citations paragraph to part 744 of the EAR (15 CFR part 730) to include citations to the President's Notice of November 1, 2012—Continuation of the National Emergency With Respect to Weapons of Mass Destruction (77 FR 66513, November 5, 2012), which is the most recent such annual notice.

Shipments of items removed from eligibility for a License Exception or export or reexport without a license (NLR) as a result of this regulatory action that were en route aboard a carrier to a port of export or reexport, on November 29, 2012, pursuant to actual orders for export or reexport to a foreign destination, may proceed to that destination under the previous eligibility for a License Exception or export or reexport without a license (NLR).

Although the Export Administration Act expired on August 20, 2001, the President, through Executive Order 13222 of August 17, 2001, 3 CFR, 2001 Comp., p. 783 (2002), as extended by the Notice of August 15, 2012, 77 FR 49699 (August 16, 2012), has continued the Export Administration Regulations in effect under the International Emergency Economic Powers Act. BIS continues to carry out the provisions of the Export Administration Act, as appropriate and to the extent permitted by law, pursuant to Executive Order 13222.

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

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

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

4. The provisions of the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking, the opportunity for public comment and a delay in effective date are inapplicable because this regulation involves a military or foreign affairs function of the United States. (See5 U.S.C. 553(a)(1)). BIS implements this rule to protect U.S. national security or foreign policy interests by preventing items from being exported, reexported, or transferred (in country) to the persons being added to the Entity List. If this rule were delayed to allow for notice and comment and a delay in effective date, then entities being added to the Entity List by this action would continue to be able to receive items without a license and to conduct activities contrary to the national security or foreign policy interests of the United States. In addition, because these parties may receive notice of the U.S. Government's intention to place these entities on the Entity List once a final rule was published, it would create an incentive for these persons to either accelerate receiving items subject to the EAR to conduct activities that are contrary to the national security or foreign policy interests of the United States, and/or to take steps to set up additional aliases, change addresses, and other measures to try to limit the impact of the listing on the Entity List once a final rule was published. Further, no other law requires that a notice of proposed rulemaking and an opportunity for public comment be given for this rule. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule by 5 U.S.C. 553, or by any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601et seq.,are not applicable. Accordingly, no regulatory flexibility analysis is required and none has been prepared.

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

I. Background

Section 203.37a(b)(2) of HUD's regulations (24 CFR 203.37a(b)(2)) establishes FHA's rule on recent resalesof single family properties; this regulatory section provides that FHA will not insure a mortgage for a single family property if the contract of sale is executed within 90 days of the acquisition of the property by the seller. The acquisition date is the date that seller has the power, under the law of the state in which the property is located, to transfer title to a buyer. Section 203.37a(c) lists the sales transactions that are exempt from this rule. The exempt transactions include sales by HUD of real estate-owned (REO) properties under HUD's regulations in 24 CFR part 291, sales by other federal agencies of REO properties, sales of properties by nonprofit organizations that have been approved to purchase and resell HUD REO properties, and sales by state- and federally-charted financial institutions and government sponsored enterprises (GSEs).

“Property flipping” refers to the practice in which a property recently acquired is resold for a considerable profit with an artificially inflated value, often as the result of a lender's collusion with an appraiser. Most property flipping occurs within a matter of days after acquisition, and usually with only minor cosmetic improvements, if any, to the property. In an effort to preclude this predatory lending practice with respect to mortgages insured by FHA, HUD issued a final rule on May 1, 2003 (68 FR 23370) that provides in 24 CFR 203.37a that FHA will not insure a mortgage if the contract of sale for the purchase of the property that secures the mortgage is executed within 90 days of the prior acquisition by the seller, and the seller does not come under any of the exemptions to this 90-day period specified in § 203.37a(c).

In a final rule published on June 7, 2006 (71 FR 33138), HUD expanded the exemptions to the 90-day time restrictions contained in § 203.37a(c) to include transactions such as sales of single family properties by GSEs, state- and federally-chartered financial institutions, nonprofit organizations approved to purchase HUD REO single family properties at a discount with resale restrictions, local and state governments and their instrumentalities, and, upon announcement by HUD through issuance of a notice, sales of properties in areas designated by the President as federal disaster areas.

The downturn in the housing market over the past several years led to a rapid rise of homeowners defaulting on mortgages, and consequently an increase in vacant foreclosed homes. Federal, state, and local governments initiated a variety of measures to avoid foreclosures. Although these efforts to keep families in their homes have helped to improve the condition of the housing market, the foreclosure rate remains unacceptably high. Not only do foreclosures affect the families that lost their homes, but they affect neighborhoods and communities. While HUD continues its efforts to help homeowners remain in their homes, through the waiver of its regulation on property flipping, HUD seeks to help stabilize neighborhoods and communities.

HUD first granted temporary waiver of its regulation on anti-property flipping through notice published in theFederal Registeron May 21, 2010, at 75 FR 28633. The May 2010 notice waived HUD's regulations through December 31, 2011. Through notice of waiver extension published in theFederal Registeron December 28, 2011, at 76 FR 81363, HUD extended the waiver through December 31, 2012. Through this notice of waiver extension published in today's edition of theFederal Register, HUD announces the extension of the waiver through December 31, 2014. HUD is cognizant of concerns expressed by industry, state and local jurisdictions, and other interested parties that they receive sufficient advance notice by HUD of any planned extension of the waiver, which they advise was not the case in the extension of waiver through the end of calendar year 2012. For this reason, HUD is providing notice of the extension of the waiver through December 31, 2014, well in advance of December 31, 2012.

Since the waiver was made available, HUD believes that it has made a significant contribution to neighborhood stabilization. While the waiver remains available for the purpose of stimulating rehabilitation of foreclosed and abandoned homes for two more calendar years, the waiver continues to remain applicable to all properties being resold within the 90-day period after prior acquisition. The waiver is not limited to the resale of foreclosed properties.

To be eligible for the waiver of the Property Flipping Rule, an FHA-approved mortgagee must ensure that the mortgage meets the following conditions:

1. All transactions must be arms-length, with no identity of interest between the buyer and seller or other parties participating in the sales transaction. Some ways that the lender may ensure that there is no inappropriate collusion or agreement between parties, are to assess and determine the following:

a. The seller holds title to the property;

b. Limited liability companies, corporations, or trusts that are serving as sellers were established and are operated in accordance with applicable state and federal law;

c. No pattern of previous flipping activity exists for the subject property as evidenced by multiple title transfers within a 12 month time frame (chain of title information for the subject property can be found in the appraisal report);

d. The property was marketed openly and fairly, through a multiple listing service (MLS), auction, for sale by owner offering, or developer marketing (any sales contracts that refer to an “assignment of contract of sale,” which represents a special arrangement between seller and buyer may be a red flag).

2. In cases in which the sales price of the property is greater than 20 percent above the seller's acquisition cost, the mortgage is eligible for the waiver only if the mortgagee:

a. Justifies the increase in value by retaining in the loan file a second appraisal and/or supporting documentation, which verifies that the seller has completed sufficient legitimate renovation, repair, and rehabilitation work on the subject property to substantiate the increase in value or, in cases where no such work is performed, the appraiser provides appropriate explanation of the increase in property value since the prior title transfer; and

b. Orders a property inspection and provides the inspection report to the purchaser before closing. The mortgagee may charge the borrower for this inspection. The use of FHA-approved inspectors or 203(k) consultants is not required. The inspector must have no interest in the property or relationship with the seller, and must not receive compensation for the inspection for any party other than the mortgagee. Additionally, the inspector may not: Compensate anyone for the referral of the inspection; receive any compensation for referring or recommending contractors to perform any repairs recommended by the inspection; or be involved with performing any repairs recommended by the inspection. At a minimum, the inspection must include:

i. The property structure, including the foundation, floor, ceiling, walls and roof;

ii. The exterior, including siding, doors, windows, appurtenant structuressuch as decks and balconies, walkways and driveways;

iii. The roofing, plumbing systems, electrical systems, heating and air conditioning systems;

iv. All interiors; and

v. All insulation and ventilation systems, as well as fireplaces and solid fuel-burning appliances.

3. Only forward mortgages are eligible for the waiver. Mortgages insured under HUD's HECM program are ineligible for the waiver.

The seller's acquisition cost is the purchase price which the seller paid for the property, and the following costs (if paid by the seller):

• Closing costs, plus

• Prepaid costs, including commissions.

The seller's acquisition cost does not include the cost of repairs that the seller makes to the property.

If the resale price of the property is greater than 20 percent above the seller's acquisition cost, the mortgage will be eligible for FHA insurance only if the mortgagee justifies the increase in value. The mortgagee must verify that the seller has completed sufficient legitimate renovation, repair, or rehabilitation work on the subject property to substantiate the increase in value by retaining supporting documentation in the loan file or by providing a second appraisal.

• If the mortgagee uses a second appraisal:

○ An FHA roster appraiser must perform the appraisal in compliance with all FHA appraisal reporting requirements.

○ The mortgagee may not use an appraisal done for a conventional loan even if it was completed by an FHA roster appraiser.

○ The mortgagee may not charge the cost of the second appraisal to the homebuyer.

If the mortgagee has ordered a second appraisal to document the increase in value, the mortgagee must not use this appraisal for case processing and must not enter it into FHA Connection.

If the resale price of the property is greater than 20 percent above the seller's acquisition cost, the mortgage will be eligible for FHA insurance only if the mortgagee obtains a property inspection and provides the inspection report to the buyer before closing. The borrower, lender, or mortgage broker (if one is involved in the transaction) may order the property inspection. The lender or mortgage broker may charge the borrower for this inspection.

If the inspection report notes that repairs are required because of structural or “health and safety” issues, those repairs must be completed prior to closing. After completion of repairs to address structural or “health and safety” issues, the inspector must conduct a final inspection to determine if the repairs have been completed satisfactorily and eliminated the structural or “health and safety” issues. The borrower, lender, or mortgage broker may order the final inspection.

The information collection requirements applicable to this waiver have been submitted to the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520) and assigned OMB Control No. 2502-0059. In accordance with the Paperwork Reduction Act, an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information, unless the collection displays a currently valid OMB control number.

The waiver that is the subject of this notice remains effective beyond December 31, 2012, through December 31, 2014, for all sales contracts executed on or after February 1, 2010, the availability date provided by the issuance of the waiver in January 2010, unless extended or withdrawn by HUD.

By notice, HUD shall notify the public of any extension or withdrawal of this waiver. If as a result of this waiver, there is a significant increase in defaults on FHA-insured mortgages and an increase in mortgage insurance claims that are attributable to mortgages insured as a result of exercise of this waiver authority, HUD may withdraw this waiver immediately.

Background

Section 115 of the Copyright Act provides that “[w]hen phonorecords of a nondramatic musical work have been distributed to the public in the United States under the authority of the copyright owner, any other person * * * may, by complying with the provisions of this section, obtain a compulsory license to make and distribute phonorecords of the work.” 17 U.S.C. 115(a)(1).

Included among the conditions that must be met to use the Section 115 compulsory license is the requirement that a person who wishes to obtain a compulsory license “shall, before or within thirty days after making, and before distributing any phonorecords of the work, serve notice of intention to do so on the copyright owner. If theregistration or other public records of the Copyright Office (“Copyright Office” or “Office”) do not identify the copyright owner and include an address at which notice can be served, it shall be sufficient to file the notice of intention in the Copyright Office. The notice shall comply, in form, content, and manner of service, with requirements that the Register of Copyrights shall prescribe by regulation.” 17 U.S.C. 115(b)(1).

In 2004, the Copyright Office amended 37 CFR 201.18, the regulations governing Notices of Intention to obtain a Section 115 compulsory license (“Notices”), in order to make the license more functional. 69 FR 34578 (June 22, 2004). Among the 2004 amendments to 37 CFR 201.18 was a provision that allowed that a Notice “may designate any number of nondramatic musical works, provided that the copyright owner of each designated work or, in the case of any work having more than one copyright owner, any one of the copyright owners is the same and that the information required under paragraphs (d)(1)(i) through (iv) of this section does not vary [i.e.,name and contact information of licensee; name and contact information of primary entity making and distributing phonorecords, and information concerning yearly accounting periods]. For purposes of this section, a Notice which lists multiple works shall be considered a composite filing of multiple Notices and fees shall be paid accordingly if filed in the Copyright Office under paragraph (f) of this section (i.e.,a separate fee, in the amount set forth in § 201.3(e)(1), shall be paid for each work listed in the Notice).” 37 CFR 201.18(a)(4). The 2004 amendments also allowed licensees to serve Notices directly on copyright owners or designated agents by means of an electronic transmission when the copyright owner or designated agent has a written public policy that it can accommodate such submissions. 37 CFR 201.18(a)(7).

Earlier in the 2004 rulemaking process the Office also considered whether to allow a licensee to file a Notice in the Office in an electronic format. The Office determined that it was not prepared to accept electronically filed Notices because it did not have in place the systems that would accommodate such filings. However, the Office anticipated that such filings would be accepted in the future. The Office did provide that in the case where the licensee intends to license a high volume of nondramatic musical works under Section 115 and would endure significant hardships if required to submit the Notices under the standard practices, the licensee may contact the Licensing Division of the Copyright Office to inquire whether special arrangements could be made for submission of the Notice electronically. 69 FR 11566, 11570 (March 11, 2004).

The Office is aware of a growing need for an electronic filing system for filing Section 115 Notices with the Copyright Office because of the large number of works being used under the compulsory license where service of the Notice cannot be made effectively on the copyright owner. To meet this need, the Office is now preparing to accept specific types of electronically filed Notices addressing multiple nondramatic musical works. Hence, the Office is amending its regulations in § 201.18 by providing for use of an online system for submission of Notices covering multiple nondramatic musical works.

In its Notice of Proposed Rulemaking published in May 2012, the Copyright Office proposed a number of changes to the regulations governing the filing of Section 115 Notices. 77 FR 31237 (May 25, 2012). First, the Office proposed to clarify its rules for submission of Notices in paper form that contain multiple titles of nondramatic musical works. The proposal noted that, while in practice the Office does accept and process Notices with multiple titles in the case where no copyright owner of any of the works can be identified, the regulations do not specifically contemplate this situation. Thus, the Office proposed to amend its regulations to clarify that a Notice filed in a paper format may list multiple works in a single Notice when any of the following circumstances apply: In the case where no copyright owner can be identified from the Copyright Office records for any of the works listed in the Notice; in the case where the copyright owner of each work listed in the Notice is the same and the records of the Copyright Office do not include an address at which notice can be served; or for works having more than one copyright owner, in the case where the works listed in the Notice share a common copyright owner and the records of the Copyright Office do not include an address at which notice can be served on any of the copyright owners for the subject works. The Office proposed to maintain these distinctions for the paper filings at this time because they provide more concise information to the public reviewing the Notices and facilitates the recordkeeping process for the Office.

The Office also proposed to amend the regulations so that Notices addressing multiple nondramatic musical works may be submitted electronically as XML files, regardless of whether the copyright owner of each designated work is the same, provided that the Notice does not include a nondramatic musical work when the identity and address of at least one of its copyright owners may be found in the public record of the Copyright Office. Fees for such electronic Notices, the Office proposed, would have to be paid through a Copyright Office deposit account (pursuant to § 201.6(b) of the Copyright Office regulations), at least during the introductory period of the online filing process. Use of a deposit account will allow the Office to make any necessary fee payments immediately and it avoids the need to solve the technological and security issues associated with providing a credit card payment in this first iteration of the system.

Further to the question of the processing of electronic Section 115 Notices, the Copyright Office proposed not to require an electronic signature during the initial rollout of the filing process, though it did note plans to add an electronic signature requirement in later versions of the system. Under the initial rollout, because the fee for Notice must be paid through a deposit account, the online system will be able to use the deposit account information to reasonably verify and authenticate the identity of the person submitting and validating Notices.

The Copyright Office, in its May 25, 2012 notice of proposed rulemaking also proposed two additional amendments. The first of these would clarify that the Office does not examine Notices for legal sufficiency, would encourage filers to take care to comply with all the statutory and regulatory requirements pertaining to such Notices, and would note that the Office will notify a prospective licensee when a Notice is not accompanied by payment of the required fee. The second additional amendment would add a Privacy Act Advisory Statement in § 201.18, which would fulfill the Office's obligation to notify the public that Notices with personally identifying information filed with the Office become public records.

The Office received two comments in response to its notice of proposed rulemaking. One, from Attorney Chris Garvey, supported the proposal to permit the electronic submission of section 115 Notices. The other, from Public Knowledge (“PK”), also supported the electronic filing proposal, along with making further suggestions. PK proposed that electronically filedNotices should be permitted for single nondramatic musical works, and that the Office should “hasten to build the capacity to authenticate licensees and receive payment information without deposit accounts.” This latter measure, PK maintained, would result in long-term reduced transaction costs. PK also suggested that the Office “implement a searchable, electronic Notice database for public use” in order to minimize transaction costs between copyright owners and licensees, and avoid the hourly fee that the Copyright Office charges for searches of non-public-facing records.

The Office is in agreement with PK in its goal of further improving the functionality of the Office's electronic system “to simplify the Section 115 process for licensees, copyright owners, and the Office itself.” The Office believes that the amendments detailed above are an interim step towardsmeeting this goal. The Office also notes that of the three PK proposals, one is already encompassed in the amendments and the other two will be instituted as part of the upgrades to the Office's technical infrastructure.

Regarding the ability of a person to electronically file a Notice for a single nondramatic musical work, the text of the amendments to § 201.18(a)(4) states that such a Notice “may designate multiple nondramatic musical works.” The use of the word “may” indicates that multiple works need not be designated, and that an electronic Notice may be filed for a single work as well. However, a person who files an electronic Section 115 Notice during this initial rollout phase must be enrolled in the Office's deposit account program. In order to accommodate a filer of a Notice identifying only one or a few titles who does not have a deposit account, the Office intends in the future to upgrade the online filing system to require an electronic signature and to accept additional payment options such as credit card payments. At the moment, however, the focus is on offering a mechanism for filing Notices with large numbers of titles in a manner that can easily be administered by the Office at this time.

Regarding PK's desire for a public database of Section 115 Notices, the Office acknowledges that while the search capability of the electronically filed Notices will not be directly available to the public for technical reasons, this will only be the case during the initial rollout of the service, and that future upgrades to the system will include a searchable database.

This Final Rule makes one change to the proposed amendments not suggested by the commenters. In new § 201.18(a)(4)(iii), the phrase “in electronic format” in the first sentence is replaced with “through its electronic filing system.” This change merely clarifies the subject of the subsection.

While the Office is amending its regulations to accept electronic filing of the Section 115 Notices of Intent to Obtain a Compulsory License, it needs to fully test the system before making it available to the public for actual, valid submissions of Notices. Thus, members of the public are invited to participate in a Beta test of the proposed electronic system. Parties wishing to participate in Beta testing should contact Tracie Coleman in the Licensing Division of the Copyright Office at 202-707-3600,tmau@loc.gov.The Beta testing will require participants to upload “test” Notices to the Beta version of the electronic system to ensure proper functionality. “Test” Notices uploaded during the Beta testing phase will not require the submission of a filing fee, and they will not have any legal effect or otherwise be considered valid for licensing purposes. The Beta testing will be limited to selected participants until system testing is complete. Testing is expected to be completed by the time the rule becomes effective.

In consideration of the foregoing, the Copyright Office amends 37 CFR part 201 as follows:

Section 118 of the Copyright Act, title 17 of the United States Code, establishes a statutory license for the use of certain copyrighted works in connection with noncommercial television and radio broadcasting. Chapter 8 of the Copyright Act requires the Copyright Royalty Judges (“Judges”) to conduct proceedings every five years, beginning in 2006, to determine the rates and terms for the section 118 license. 17 U.S.C. 804(b)(6). Accordingly, the Judges conducted a proceeding to determine the rates and terms for the license period 2008-2012 and published final regulations on November 30, 2007. 72 FR 67646.

On January 5, 2011, the Judges published in theFederal Registera notice commencing the proceeding to determine the rates and terms for the 2013-2017 license period and requesting submission of petitions to participate from interested parties. 76 FR 591. Petitions to Participate were received from: The American Society of Authors, Composers and Publishers (“ASCAP”); SESAC, Inc.; Broadcast Music, Inc. (“BMI”); Educational Media Foundation (“EMF”); Music Reports, Inc. (“MRI”); National Public Radio, the Public Broadcasting Service, and noncommercial radio and television stations eligible to receive funding from the Corporation for Public Broadcasting jointly (“NPR/PBS/CPB”); National Religious Broadcasters Noncommercial Music License Committee (“NRBNMLC”); the Church Music Publishers' Association; the National Music Publishers' Association, Inc. and the Harry Fox Agency, jointly (“NMPA/HFA”); the Catholic Radio Association (“CRA”); and the American Council on Education (“ACE”). The Judges set the timetable for the three-month negotiation period, see 17 U.S.C. 803(b)(3), and directed the participants to submit their written direct statements no later than October 30, 2011. The Judges received written direct statements from CRA, BMI, ASCAP, and MRI,1 as well as several notifications of settlement and proposed rates and terms for the Judges to adopt.

There are two ways that copyright owners and public broadcasting entities2 may negotiate rates and terms under the section 118 statutory license. First, copyright owners may negotiate rates and terms with specific public broadcasting entities for the use of all of the copyright owners' works covered by the license. Section 118(b)(2) provides that such license agreements “shall be given effect in lieu of any determination by the * * * Copyright Royalty Judges,” provided that copies of the agreement are submitted to the Judges “within 30 days of execution.” 17 U.S.C. 118(b)(2). The Judges received several agreementsin this category; no further action is required with respect to these agreements.

Second, copyright owners and public broadcasting entities may negotiate rates and terms for categories of copyrighted works and uses that would be binding on all owners and entities and submit them to the Judges for approval. Section 801(b)(7)(A) provides that in such event:

The Judges received comments from Common Frequency; OpenSky Radio Corp.; The Prometheus Radio Project; Wimberley Valley Radio; WKNC-FM; and PBS and NPR, jointly. Each comment, except the PBS/NPR comment,4 opposed certain of the proposed rates as not reasonable as applied to them.5 The Judges' ability to reject an agreement on the reasonableness of the rates and terms proposed therein is constrained by statute. Specifically, section 801(b)(7)(A)(ii) precludes the Judges from declining to adopt proposed rates and terms on the grounds of reasonableness unless a participant to the proceeding objects. None of the entities objecting to the proposed rates and terms submitted a timely filed petition to participate in this proceeding, and therefore none qualifies as a participant to the proceeding. Therefore, having received no objections to the reasonableness of the proposed rates and terms from aparticipant to this proceeding,the Copyright Royalty Judges are adopting final regulations, as published on April 25, 2012, and June 26, 2012, which set the rates and terms for the section 118 statutory license for the period 2013-2017.6

For the reasons set forth in the preamble, the Copyright Royalty Judges amend Part 381 to Chapter III of title 37 of the Code of Federal Regulations as follows:

Throughout this document, “we,” “us” and “our” refer to EPA.

On April 30, 2012 (77 FR 25384), EPA proposed to approve the following rule into the California SIP.

We proposed to approve this rule because we determined that it complied with the relevant CAA requirements. Our proposed action contains more information on the rule and our evaluation.

EPA's proposed action provided a 30-day public comment period. We received comments from the following parties.

1. Dan Belliveau, NohBell Corporation; letter dated and received May 30, 2012.

2. Steven Colome, EcoPAS; email dated and received May 31, 2012. While these comments were received after the public comment period, EPA elected to add these comments to the docket and respond to the issues raised.

The comments and our responses are summarized below.

a.Comment:The commenters generally described their respective technologies and results to date to capture and control VOC emissions from the wine fermentation process. Both commenters stated that they believe their technologies represent reasonably available control technology (RACT) and believed this information should be considered in EPA's determination on RACT.

Response:EPA defines RACT as the “lowest emissions limitation that a particular source is capable of meeting by the application of control technology that is reasonably available consideringtechnological and economic feasibility.” 44 FR 53761 (September 17, 1979). EPA generally considers controls that are commonly used by a significant number of sources to be reasonably available and technologically and economically feasible. RACT differs from requirements for the more stringent lowest achievable emission rate (LAER) controls required for new and modified major sources in nonattainment areas. LAER is defined in CAA Section 171(3) and 40 CFR 51.165(a)(1)(xiii) as “the most stringent emissions limitation which is contained in the implementation plan of any State for such class or category of source, unless the owner or operator of the proposed source demonstrate that such limitations are not achievable; or * * * the most stringent emissions limit which is achieved in practice by such class or category of stationary sources.”

Information provided by the commenters would help demonstrate that these two new and emerging technologies are technically feasible on wine tanks of a certain size. However, in order to meet EPA's criteria for RACT, the use of these technologies must be demonstrated in practice by a larger number of sources and at a broader range of tank capacities. In addition, we note that the commenters' current1 cost effectiveness estimates are higher than what is generally accepted for VOC RACT level controls. Therefore, while these new and emerging technologies have not been demonstrated to represent RACT at this time, they should be considered for sources where LAER is required by new source review regulations.

In addition, what constitutes RACT can change over time as technologies once considered beyond RACT become more economically feasible and demonstrated in practice more widely. As a result, SJVUAPCD should reevaluate these technologies when subsequent RACT demonstrations are required, such as in 2014, when SJVUAPCD may need to submit a RACT SIP analysis for the 2008 8-hour ozone standard.

We also note that new and modified major sources in SJVUAPCD must demonstrate LAER in the permitting context, which California calls best available control technology (BACT). The initial steps in a BACT analysis are to identify all available technologies and eliminate those that are not technically feasible. Therefore, SJVUAPCD must consider these new technologies in all future required California BACT determinations for permitting wine fermentation tanks. EPA forwarded these comment letters to SJVUAPCD for consideration in their future BACT analyses.

b.Comment:EcoPAS stated that EPA's final approval of this version of Rule 4694 would remove the fermentation emission provisions of Rule 4694 from the SIP.

Response:Currently, there is no version of Rule 4694 approved in the SIP. Therefore, EPA approval of the amended submittal of Rule 4694 would not remove any provisions from the SIP.

We believe the commenter is specifically concerned with SJVUAPCD's deletion of the fermentation provisions (e.g., sections 5.1, 6.1, 6.2, 6.3, 6.5, 6.6, 7.0, and other supporting sections) in its amended submittal of Rule 4694. In EPA's Technical Support Document (TSD) which accompanied our proposed approval of Rule 4694, we described our concerns with the alternative compliance provisions, which only affected the fermentation provisions. Because of EPA's concerns, the District elected to withdraw from consideration for SIP approval the wine fermentation provisions, although the fermentation provisions remain in effect at the local level. The appropriate forum to raise the commenter's concerns would have been the District's process for amending the submittal of Rule 4694. EPA is only acting on SJVUAPCD's current SIP submittal. As discussed in our TSD, EPA's approval of Rule 4694 without the fermentation provisions does not relax any SIP requirements or commitments.

No comments were submitted that change our assessment of the rule as described in our proposed action. Therefore, as authorized in section 110(k)(3) of the Act, EPA is fully approving this rule into the California SIP.

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves State law as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);

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

• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and

• Does not provide EPA with the discretionary authority to address disproportionate human health or environmental effects with practical, appropriate, and legally permissible methods under Executive Order 12898 (59 FR 7629, February 16, 1994).

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller Generalof the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in theFederal Register. A major rule cannot take effect until 60 days after it is published in theFederal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by January 28, 2013. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements (see section 307(b)(2)).

Part 52, Chapter I, Title 40 of the Code of Federal Regulations is amended as follows:

Regional haze is visibility impairment that is produced by a multitude of sources and activities which are located across a broad geographic area and emit fine particles (e.g., sulfates, nitrates, organic carbon, elemental carbon, and soil dust), and their precursors (e.g., sulfur dioxide (SO2), nitrogen oxides (NOX), and in some cases, ammonia (NH3) and volatile organic compounds (VOC)). Fine particle precursors react in the atmosphere to form fine particulate matter (PM2.5) which impairs visibility by scattering and absorbing light. Visibility impairment reduces the clarity, color, and visible distance that one can see. PM2.5can also cause serious health effects and mortality in humans and contributes to environmental effects such as acid deposition and eutrophication.

In section 169A of the 1977 Amendments to the CAA, Congress created a program for protecting visibility in the nation's national parks and wilderness areas. This section of the CAA establishes as a national goal the “prevention of any future, and the remedying of any existing, impairment of visibility in mandatory Class I areas which impairment results from manmade air pollution.” On December 2, 1980, the EPA promulgated regulations to address visibility impairment in Class I areas that is “reasonably attributable” to a single source or small group of sources, i.e., “reasonably attributable visibility impairment.”See45 FR 80084. These regulations represented the first phase in addressing visibility impairment. The EPA deferred action on regional haze that emanates from a variety of sources until monitoring, modeling, and scientific knowledge about the relationships between pollutants and visibility impairment were improved.

Congress added section 169B to the CAA in 1990 to address regional haze issues. The EPA promulgated a rule to address regional haze on July 1, 1999 (64 FR 35713), the Regional Haze Rule (RHR). The RHR revised the existing visibility regulations to integrate into the regulation provisions addressing regional haze impairment and established a comprehensive visibility protection program for Class I areas. The requirements for regional haze, found at 40 CFR 51.308 and 51.309, are included in the EPA's visibility protection regulations at 40 CFR 51.300-309. The requirement to submit a regional haze SIP applies to all 50 states, the District of Columbia, and the Virgin Islands. 40 CFR 51.308(b) requires states to submit the first implementation plan addressing regional haze visibility impairment no later than December 17, 2007.

On March 19, 2010, and August 31, 2010, FDEP submitted and subsequently amended a SIP to address regional haze due to emissions from sources in the State's and other states' Class I areas. On May 25, 2012, the EPA published an action proposing a limited approval of Florida's regional haze SIP to address the first implementation period.1 See77 FR 31240. The EPA's May 25, 2012, proposed rulemaking covered Florida's March 19, 2010, and August 31, 2010, regional haze SIP submittals as well as the State's April 13, 2012, draft regional haze SIP that was submitted for parallel processing, and subsequently re-submitted in final form on September 17, 2012. In a draft regional haze SIP provided on July 31, 2012, Florida addressed 18 reasonable progress units and 11 facilities with BART-eligible electric generating units (EGUs) subject to the Clean Air Interstate Rule (CAIR) (a total of 20 EGUs) that were not covered by Florida's April 13, 2012, draft regional haze SIP.2 It also amended the SIP to remove Florida's reliance on CAIR to satisfy BART and reasonable progress requirements for the State's affected EGUs.

Florida's September 17, 2012, final regional haze SIP consolidated its draft April 13, 2012, and July 31, 2012, regional haze SIP submittals into a single package. The EPA has not yet proposed action on Florida's July 31, 2012, draft regional haze SIP as finalized on September 17, 2012. Because of the interdependence between the various elements of Florida's regional haze SIP, the EPA has elected to: (1) Take final action on the BART determinations addressed in the May 25, 2012, proposed action; and (2) defer final action on the remaining elements of the SIP addressed in the Agency's May 25, 2012, proposed action until it has taken action on the BART and reasonable progress determinations for the facilities included in Florida's draft July 31, 2012, regional haze SIP. As such, today's final action fully approves all of the BART determinations addressed in the EPA's May 25, 2012, proposed action. The EPA will propose action on the remaining facilities addressed in Florida's July 31, 2012, draft regional haze SIP (as finalized in the September 17, 2012, final regional haze SIP) and take final action on the entire remaining elements of Florida's regional haze plan in actions subsequent to today's final rulemaking.

The EPA is finalizing a full approval of the BART determinations addressed in the Agency's May 25, 2012, proposed rulemaking action on a draft regional haze SIP submitted by the State of Florida on April 13, 2012, to the EPA for parallel processing. Florida re-submitted this draft regional haze SIP in final form on September 17, 2012.3

Specifically, the BART determinations addressed by this action are: Tampa Electric Company—Big Bend Station (Units 1, 2, 3); City of Tallahassee—Purdom Generating Station (Unit 7); FP&L—Port Everglades Power Plant (Units 3, 4); CEMEX; White Springs Agricultural Chemical—SR/SC Complex; City of Gainesville—Deerhaven Generating Station (Unit 3); City of Vero Beach—City of Vero Beach Municipal Utilities (Units 2, 3, 4); FP&L—Putnam Power Plant (Units 3, 4, 5, 6, 7, 8, 9, 10); Lake Worth Utilities—Tom G. Smith (Units 6, 9); City of Tallahassee—Arvah B. HopkinsGenerating Station (Unit 4); FP&L—Riviera Power Plant (Unit 4); Florida Power Corp.—Bartow Plant (Unit 3); Lakeland Electric—Charles Larsen Memorial Power Plant (Unit 4); Ft. Pierce Utilities Authority—H D King Power Plant (Units 7, 8); FP&L—Cape Canaveral Power Plant (Units 1, 2); Atlantic Sugar Association—Atlantic Sugar Mill; Buckeye Florida—Perry; ExxonMobil Production—St. Regis Treating Facility and Jay Gas Plant; IFF Chemical Holdings, Inc.; IMC Phosphates Company—South Pierce; International Paper Company—Pensacola Mill; Mosaic—Bartow; Mosaic—Green Bay Plant; Osceola Farms; Sugar Cane Growers Co-Op; U.S. Sugar Corp.—Clewiston Mill and Refinery; Solutia Inc., Sterling Fibers, Inc.; U.S. Sugar Corp.—Bryant Mill; IMC Phosphates Company—Port Sutton Terminal; Georgia Pacific-Palatka; Smurfit-Stone-Fernandina Beach; Smurfit-Stone-Panama City; Mosaic-New Wales; Mosaic-Riverview; and CF Industries.

On May 25, 2012, the EPA proposed a limited approval of the March 19, 2010, August 31, 2010, and draft April 13, 2012, regional haze SIP submittals to implement the regional haze requirements for Florida on the basis that these submissions, as a whole, strengthen the Florida SIP. In today's action, the EPA has elected to finalize approval of only those BART determinations identified above and to defer final action on the remaining elements of the regional haze SIP addressed in the Agency's May 25, 2012, proposed action. The EPA will take final action on those remaining elements once it has taken action on the BART and reasonable progress determinations for the facilities included in Florida's July 31, 2012, draft regional haze SIP as incorporated into its September 17, 2012, final regional haze SIP.

The EPA received adverse comments on its May 25, 2012, proposed action on Florida's regional haze SIP. See section III of this rulemaking for a summary of the comments received on the EPA's May 25, 2012, proposed action that relate to the BART determinations being acted upon today and the Agency's responses to these comments. Detailed background information and the EPA's rationale for the proposed action is provided in the EPA's May 25, 2012, proposed rulemaking.See77 FR 31240.

The EPA's May 25, 2012, proposed action was contingent upon Florida providing a final regional haze SIP that was substantively the same as the draft proposed for approval by the EPA in the proposed rulemaking.See77 FR 31242. Florida provided its final regional haze SIP on September 17, 2012. While there are minor differences between the provisions covered by the April 13, 2012, draft regional haze SIP and those same provisions addressed in the final September 17, 2012, regional haze SIP, the EPA has determined that these differences do not warrant re-proposal of this action.

The EPA received two sets of comments on its May 25, 2012, proposed rulemaking on Florida's regional haze SIP described above. Specifically, the comments were received from the Sierra Club and National Parks Conservation Association (collectively) and from the Florida Electric Power Coordinating Group Environment Committee. Full sets of the comments provided by all of the aforementioned entities (hereinafter referred to as “the Commenter”) are provided in the docket for today's final action. A summary of the comment that relates to the approvability of the BART determinations subject to today's final action and the EPA's response is provided below. The remaining comments will be addressed in a subsequent final action on the remaining elements of Florida's regional haze SIP.

Comment 1:The Commenter believes that the EPA must clarify its proposed decisions on Florida's BART determinations. The Commenter notes that the proposal “includes BART proposals for the five sources listed in Table 8 as `Facilities With Unit(s) With a Complete BART Analysis,' ” but it does not believe that the EPA clearly states that it is proposing to approve or disapprove the State's BART disposition for each of these sources. If the EPA is approving them, the Commenter states that it must include them as part of the enforceable conditions of the regional haze SIP.

Response 1:The EPA specifically addressed each of the proposed BART determinations for the five sources identified by the Commenter in five subsections under the portion of the notice addressing BART (section V.C.6), and in a subsection entitled “EPA Assessment” (section V.C.6.vi), stated that “EPA proposes to agree with Florida's analyses and conclusions for the five BART-subject sources described above. The EPA has reviewed the State's analyses and believes that they were conducted in a manner that is consistent with the EPA's BART Guidelines and the EPA'sAir Pollution Control Cost Manual(http://www.epa.gov/ttncatc1/products.html#cccinfo).” This is a clear statement of the EPA's intent to approve these BART determinations. Regarding the emissions limits and conditions for these five BART determinations that were adopted by Florida and have been incorporated into the facilities' federally enforceable title V operating permits, the EPA has incorporated these limits and conditions into the SIP in 40 CFR 52.520 as part of this final action.

The EPA is finalizing a full approval of the BART determinations addressed in the Agency's May 25, 2012, proposed rulemaking action on a draft regional haze SIP submitted by the State of Florida on April 13, 2012, to the EPA for parallel processing. Florida submitted this draft regional haze SIP in final form on September 17, 2012. The EPA is taking this approach because these BART determinations meet the regional haze requirements of the CAA and RHR and because Florida's SIP will be stronger and more protective of the environment with the implementation of these measures. The EPA has elected to defer final action on the remaining elements of the regional haze SIP addressed in the Agency's May 25, 2012, proposed action because of the interdependence between the various elements of Florida's regional haze SIP. The EPA will take final action on the remaining elements once it has taken action on the BART and reasonable progress determinations for the facilities included in Florida's July 31, 2012, draft regional haze SIP, as incorporated into its September 17, 2012, final regional haze SIP. As mentioned above, Florida's September 17, 2012, regional haze SIP addresses 18 reasonable progress units and 11 facilities with BART-eligible EGUs subject to CAIR (a total of 20 EGUs) that were not covered by Florida's April 13, 2012, draft regional haze SIP. The EPA will also take action at a later date to address the Agency's December 30, 2011, proposed limited disapproval of the Florida regional haze plan.

The EPA is finalizing a full approval of the BART determinations addressed in the Agency's May 25, 2012, proposed rulemaking action on a draft regional haze SIP submitted by the State of Florida on April 13, 2012, to the EPA for parallel processing. Florida re-submitted this regional haze SIP in final form on September 17, 2012. Specifically, this action addresses only the aforementioned BART determinations included in the draft regional haze SIPsubmitted to the EPA for parallel processing on April 13, 2012 (as re-submitted in final form on September 17, 2012), as meeting some of the applicable regional haze requirements as set forth in sections 169A and 169B of the CAA and in 40 CFR 51.300-308.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501et seq.);

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601et seq.);

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

• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and

• Does not provide the EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

The Congressional Review Act, 5 U.S.C. 801et seq.,as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in theFederal Register. A major rule cannot take effect until 60 days after it is published in theFederal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by January 28, 2013. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements.Seesection 307(b)(2).

40 CFR part 52 is amended as follows:

On June 25, 2012, PADEP submitted to EPA a revision to the Allegheny County portion of the Pennsylvania SIP. The SIP revision seeks to add Section 2105.88—Consumer Products from ACHD's Rules and Regulations, Article XXI, Air Pollution Control to incorporate by reference 25Pa. Codesections 130.201-130.471 (Consumer Products) of PADEP's Air Pollution Control Act. This regulation controls the volatile organic compound (VOC) content of consumer products for sale in the Commonwealth of Pennsylvania in order to reduce VOC levels.

On December 8, 2004 (69 FR 70895), EPA approved into the Pennsylvania SIP 25Pa. CodeChapter 130, Subchapter B, that included VOC content limits for consumer products. On October 18, 2010 (75 FR 63717), EPA approved a revision to the Pennsylvania SIP that amended 25Pa. CodeChapter 130, Subchapter B in order to add and revise VOC content limits of consumer products. In addition, the approved SIP revision added and amended definitions in order to provide clarity. ACHD is incorporating by reference the same provisions in 25Pa. Codesections 130.201-130.471 in order to regulate consumer products in Allegheny County. Further details of the Commonwealth of Pennsylvania's regulation for consumer products can be found in Docket ID No. EPA-R03-OAR-2010-0319 atwww.regulations.gov.

The Pennsylvania SIP revision adds section 2105.88 from ACHD Rules and Regulations, Article XXI, Air Pollution Control to incorporate by reference Pennsylvania's regulation for consumer products promulgated under the Air Pollution Control Act at 25Pa. Codesections 130.201-130.471. The incorporation by reference provides that section 2105.88 shall be applied consistent with the provisions of Pennsylvania's regulation for consumer products. Any additions, revisions, or deletions to the consumer products regulation by Pennsylvania shall be incorporated into section 2105.88 and are effective on the date established by Pennsylvania regulations. The addition of section 2105.88 to ACHD Rules and Regulations provides ACHD the authority to request information on VOC levels in consumer products that are listed in 25Pa. Codesections 130.201-130.471 for sale in Allegheny County to ensure that products do not exceed accepted VOC levels, establishes that all information on consumer products sought under section 2105.88 shall besubject to ACHD's preexisting confidentiality regulations, and establishes that all consumer products seeking a variance from section 2105.88 must submit all variance requests to PADEP.

EPA is approving the Pennsylvania SIP revision that incorporates by reference Pennsylvania's consumer products regulations into ACHD Rules and Regulations, Article XXI, Air Pollution Control. EPA's review of the SIP revision submitted by PADEP on June 25, 2012 indicates it will strengthen the SIP requirements, result in reductions of VOC, and meet all applicable Federal regulations and the CAA. EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comment. However, in the “Proposed Rules” section of today'sFederal Register, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on January 28, 2013 without further notice unless EPA receives adverse comment by December 31, 2012. If EPA receives adverse comment, EPA will publish a timely withdrawal in theFederal Registerinforming the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501et seq.);

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601et seq.);

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

• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

The Congressional Review Act, 5 U.S.C. 801et seq.,as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in theFederal Register. A major rule cannot take effect until 60 days after it is published in theFederal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by January 28, 2013. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action approving the incorporation by reference of Pennsylvania's consumer products regulations into ACHD Rules and Regulations, Article XXI, Air Pollution Control may not be challenged later in proceedings to enforce its requirements. (Seesection 307(b)(2).)

40 CFR part 52 is amended as follows:

On June 25, 2012, PADEP submitted to EPA a revision to the AlleghenyCounty portion of the Pennsylvania SIP. The SIP revision seeks to add Section 2105.101 (Control of NOXEmissions from Glass Melting Furnaces) to ACHD's Rules and Regulations, Article XXI, Air Pollution Control to incorporate by reference 25Pa. CodeSections 129.301 through 129.310 (Control of NOXEmissions from Glass Melting Furnaces) and related definitions at 25Pa. CodeSection 121.1 of PADEP's Air Pollution Control Act. This regulation controls NOXemissions from glass melting furnaces. The reduction of NOXemissions also reduces visibility impairment and acid deposition.

On August 22, 2011 (76 FR 52283), EPA approved into the Pennsylvania SIP 25Pa. CodeChapter 129, Sections 129.301 through 129.310 that included NOXcontent limits from glass melting furnaces and approved related amended definitions at 25Pa. CodeSection 121.1. ACHD is incorporating by reference the same provisions in 25Pa. CodeSections 121.1 and 129.301 through 129.310 in order to regulate NOXemissions from glass melting furnaces in Allegheny County. Further details of Pennsylvania's regulation for the control of NOXemissions from glass melting furnaces can be found in Docket ID No. EPA-R03-OAR-2011-0286 atwww.regulations.gov.

The Pennsylvania SIP revision adds Section 2105.101 to ACHD Rules and Regulations, Article XXI, Air Pollution Control to incorporate by reference Pennsylvania's control of NOXfrom glass melting furnaces promulgated under the Air Pollution Control Act at 25Pa. CodeSections 129.301 through 129.310 and related definitions at 25Pa. CodeSection 121.1. The incorporation by reference provides that Section 2105.101 shall be applied consistent with the provisions of Pennsylvania's control of NOXemissions from glass melting furnaces. Any additions, revisions, or deletions to the glass melting furnaces regulation by Pennsylvania shall be incorporated into Section 2105.101 and are effective on the date established by Pennsylvania regulation. By incorporating this regulation, ACHD removes any uncertainty regarding enforceability of NOXlimits on glass melting furnaces in Allegheny County by ACHD. Included in the Air Pollution Control Act at 25Pa. CodeSections 129.301 through 129.310 are explicit references to the authority of local air agencies including Allegheny County to regulate NOXlevels from glass melting furnaces. By incorporating this regulation, an additional copy verifying ACHD's authority will be found in Article XXI.

EPA is approving the Pennsylvania SIP revision that incorporates by reference Pennsylvania's control of NOXemissions from glass melting furnaces into ACHD Rules and Regulations, Article XXI, Air Pollution Control. EPA's review of the SIP revision submitted by PADEP on June 25, 2012 indicates it will strengthen the SIP requirements, result in reductions of NOXemissions, and meet all applicable Federal regulations and the CAA. EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comment. However, in the “Proposed Rules” section of today'sFederal Register, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on January 28, 2013 without further notice unless EPA receives adverse comment by December 31, 2012. If EPA receives adverse comment, EPA will publish a timely withdrawal in theFederal Registerinforming the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501et seq.);

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601et seq.);

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

• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

The Congressional Review Act, 5 U.S.C. 801et seq.,as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in theFederal Register. A major rule cannot take effect until 60 days after it is published in theFederal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United StatesCourt of Appeals for the appropriate circuit by January 28, 2013. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action approving the incorporation by reference of Pennsylvania's control of NOXemissions from glass melting furnaces into ACHD Rules and Regulations, Article XXI, Air Pollution Control may not be challenged later in proceedings to enforce its requirements. (Seesection 307(b)(2).)

40 CFR part 52 is amended as follows:

Definitions

For the purpose of this document, we are giving meaning to certain words or initials as follows:

i. The words or initialsActorCAAmean or refer to the Clean Air Act, unless the context indicates otherwise.

ii. The wordsEPA, we, usorourmean or refer to the United States Environmental Protection Agency.

iii. The initialsSIPmean or refer to State Implementation Plan.

iv. The initialsRHandRHRmean or refer to Regional Haze and Regional Haze Rule.

v. The initialsBCand the wordsAlbuquerqueandBernalillo Countymean the City of Albuquerque-Bernalillo County, New Mexico

vi. The initialsAQCBmean or refer to the Albuquerque/Bernalillo County Air Quality Control Board.

vii. The initialsBARTmean or refer to Best Available Retrofit Technology.

viii. The initialsOCmean or refer to organic carbon.

ix. The initialsECmean or refer to elemental carbon.

x. The initialsVOCmean or refer to volatile organic compounds.

xi. The initialsEGUsmean or refer to Electric Generating Units.

xii. The initialsNO Xmean or refer to nitrogen oxides.

xiii. The initialsSO 2mean or refer to sulfur dioxide.

xiv. The initialsPM 10mean or refer to particulate matter with an aerodynamic diameter of less than 10 micrometers.

xv. The initialsPM 2.5mean or refer to particulate matter with an aerodynamic of less than 2.5 micrometers.

xvi. The initialRPGsmean or refer to reasonable progress goals.

xvii. The initialsRPOsmean or refer to regional planning organizations.

xviii. The initialsWRAPmean or refer to the Western Regional Air Partnership.

xix. The initialsGCVTCmean or refer to the Grand Canyon Visibility Transport Commission.

The CAA requires each state to develop plans, referred to as SIPs, to meet various air quality requirements. A state must submit its SIPs and SIP revisions to us for approval. The Albuquerque/Bernalillo County Air Quality Control Board (AQCB) is the federally delegated air quality authority for the City of Albuquerque and Bernalillo County, New Mexico (BC). The AQCB is authorized to administer and enforce the CAA and the New Mexico Air Quality Control Act, and to require local air pollution sources to comply with air quality standards. The AQCB has submitted a Section 309 regional haze SIP for its geographic area of New Mexico under the New Mexico Air Quality Control Act (section 74-2-4). The BC RH SIP is a necessary component of the regional haze plan for the entire State of New Mexico and is also necessary to ensure the requirements of Section 110(a)(2)(D)(i) of the CAA are satisfied for the entire State of New Mexico. Once approved, a SIP is enforceable by EPA and citizens under the CAA, also known as being federally enforceable. This action involves the requirement that states have SIPs that address regional haze and address the requirement that emissions from a state do not interfere with measures of other states to protect visibility.

In 1990, Congress added section 169B to the CAA to address regional haze issues, and we promulgated regulations addressing regional haze in 1999. 64 FR 35714 (July 1, 1999), codified at 40 CFR part 51, subpart P. The requirements for regional haze, found at 40 CFR 51.308 and 51.309, are included in our visibility protection regulations at 40 CFR 51.300-309. The requirement to submit a regional haze SIP applies to all 50 states, the District of Columbia and the Virgin Islands. States were required to submit a SIP addressing regional haze visibility impairment no later than December 17, 2007. 40 CFR 51.308(b).

The AQCB submitted the BC RH SIP to EPA on July 28, 2011, and it adds to earlier RH SIP planning components that were submitted on December 26, 2003.

On July 18, 1997, we promulgated new NAAQS for 8-hour ozone and for PM2.5. 62 FR 38652. Section 110(a)(1) of the CAA requires states to submit SIPs to address a new or revised NAAQS within 3 years after promulgation of such standards, or within such shorter period as we may prescribe. Section 110(a)(2)(D)(i)(II) of the Act requires that states have a SIP, or submit a SIP revision, containing provisions “prohibiting any source or other type of emission activity within the state from emitting any air pollutant in amounts which will * * * interfere with measures required to be included in the applicable implementation plan for any other State under part C [of the CAA] * * * to protect visibility.” Because of the impacts on visibility from the interstate transport of pollutants, we interpret the “good neighbor” provisions of section 110 of the Act described above as requiring states to include in their SIPs either measures to prohibit emissions that would interfere with the reasonable progress goals set to protect Class I areas in other states, or a demonstration that emissions from BC sources and activities will not have the prohibited impacts on other states' existing SIPs.

The EPA received a SIP revision adopted by AQCB on September 12, 2007 to address the interstate transport provisions of CAA 110(a)(2)(D)(i) for the 1997 ozone and PM2.5NAAQS.

In a lawsuit in the U.S. District Court for the District of Columbia, environmental groups sued us for our failure to timely take action with respect to the regional haze requirements of the CAA and our regulations. In particular, the lawsuit alleged that we had failed to promulgate federal implementation plans (FIPs) for these requirements within the two-year period allowed by CAA section 110(c) or, in the alternative, fully approve SIPs addressing these requirements.

As a result of this lawsuit, we entered into a consent decree. The consent decree requires that we sign a notice of final rulemaking addressing the regional haze requirements for Bernalillo County by November 15, 2012. We are meeting that requirement with the signing of this notice of final rulemaking.

We signed our notice of proposed rulemaking on April 12, 2012, and it was published in theFederal Registeron April 25, 2012 (77 FR 24768). In that notice, we provided a detailed description of the various regional haze requirements and interstate transport and visibility requirements. We are not repeating that description here; instead, the reader should refer to our notice of proposed rulemaking for further detail. In our proposal, we proposed to approve BC SIP revisions submitted on July 28, 2011 addressing the regional haze requirements for the mandatory Class I areas under 40 CFR 51.309. We proposed to find that all reviewed components of the SIP meet the requirements of 40 CFR 51.309. We also proposed to approve a portion of the BC SIP revision submitted on July 30, 2007, for the purpose of addressing the “good neighbor” provisions of the CAA section 110(a)(2)(D)(i) for the 1997 8-hour ozone NAAQS and the PM2.5NAAQS. This proposal proposed to approve the portion of the SIP submittal that addresses the CAA requirement concerning non-interference with programs to protect visibility in other states.

We requested comments on all aspects of our proposed action and provided a thirty-day comment period, with the comment period closing on May 25, 2012. We received comments on our proposed rule that supported our proposed action and that were critical of our proposed action. In this action, we are responding to the comments we have received, taking final rulemaking action, and explaining the bases for our action.

In this action, EPA is approving City of Albuquerque—Bernalillo County, New Mexico SIP revisions submitted on July 28, 2011 addressing the regional haze requirements for the mandatory Class I areas under 40 CFR 51.309. We find that all reviewed components of the SIP meet the requirements of 40 CFR 51.309. In conjunction with this approval, we are also approving the following related rules: 20.11.46 NMAC,Sulfur Dioxide Emission Inventory Requirements; Western Backstop Sulfur Dioxide Trading Program(submitted after initial adoption on December 26, 2003, with revisions submitted on September 10, 2008, and May 24, 2011) and 20.11.21 NMAC,Open Burning(submitted after initial adoption on December 26, 2003, with revisions submitted on July 28, 2011).

We are approving a portion of the SIP revision submitted by the City of Albuquerque—Bernalillo County, New Mexico on July 30, 2007, for the purpose of addressing the “good neighbor” provisions of the CAA section 110(a)(2)(D)(i) for the 1997 8-hour ozone NAAQS and the PM2.5NAAQS.1 We are approving the portion of the SIP submittal that addresses the CAA requirement concerning non-interference with programs to protect visibility in other states.

We have fully considered all significant comments on our proposal and have concluded that no changes from our proposal are warranted. Our action is based on an evaluation of BC's regional haze SIP submittal against the regional haze requirements at 40 CFR 51.300-51.309 and CAA sections 169A and 169B. A detailed explanation of how the Albuquerque SIP submittal meets these requirements is contained in the proposal. All general SIP requirements contained in CAA section 110, other provisions of the CAA, and our regulations applicable to this action were also evaluated. The purpose of this action is to ensure compliance with these requirements. Our authority for action on BC's SIP submittal is based on CAA section 110(k).

We are approving BC's regional haze SIP provisions because they meet the relevant regional haze requirements. Most of the adverse comments we received concerning our proposed approval of the regional haze SIP pertained to our proposed approval of the SO2backstop trading program.

EPA has proposed to approve the SO2backstop trading program components of the RH SIPs for all participating States and has done so through four separate proposals: For the Bernalillo County proposal see 77 FR 24768 (April 25, 2012); For the Utah proposal see 77 FR 28825 (May 15, 2012); for the Wyoming proposal see 77 FR 30953 (May 24, 2012); finally, for the New Mexico proposal see 77 FR 36043 (June 15, 2012). National conservation organizations paired with organizations local to each state have together submitted very similar, if not identical, comments on various aspects of EPA's proposed approval of these common program components. These comment letters may be found in the docket for each proposal and are dated as follows: May 25, 2012 for Bernalillo County; July 16, 2012 for Utah; July 23, 2012 for Wyoming; and July 16, 2012 for New Mexico. Each of the comment letters has attached a consultant's report dated May 25, 2012, and titled: “Evaluation of Whether the SO2Backstop Trading Program Proposed by the States of New Mexico, Utah and Wyoming and Albuquerque-Bernalillo County Will Result in Lower SO2Emissions than Source-Specific BART.” In this section, we address and respond to those comments we identified as being consistently submitted and specifically directed to the component of the published proposals dealing with the submitted SO2backstop trading program. For our organizational purposes, any additional or unique comments found in the conservation organization letter that is applicable to this proposal (i.e., for the City of Albuquerque -Bernalillo County) will be addressed in the next section where we also address all other comments received.

Comment:The language of the Clean Air Act appears to require BART. The commenter acknowledges that prior case law affirms EPA's regulatory basis for having “better than BART” alternative measures, but nevertheless asserts that it violates Congress' mandate for an alternative trading program to rely on emissions reductions from non-BART sources and excuse EGUs from compliance with BART.

Response:The Clean Air Act requires BART “as may be necessary to make reasonable progress toward meeting the national goal” of remedying existing impairment and preventing future impairment at mandatory Class I areas. See CAA Section 169A(b)(2). In 1999, EPA issued regulations allowing for alternatives to BART based on a reading of the CAA that focused on the overarching goal of the statute of achieving progress. EPA's regulations provided states with the option of implementing an emissions trading program or other alternative measure inlieu of BART so long as the alternative would result in greater reasonable progress than BART. We note that this interpretation of CAA Section 169A(B)(2) was determined to be reasonable by the D.C. Circuit inCenter for Energy and Economic Developmentv.EPA, 398 F.3d 653, 659-660 (D.C. Cir. 2005) in a challenge to the backstop market trading program under Section 309, and again found to reasonable by the D.C. Circuit inUtility Air Regulatory Groupv.EPA,471 F.3d 1333, 1340 (D.C. Cir. 2006) (“* * * [W]e have already held inCEEDthat EPA may leave states free to implement BART-alternatives so long as those alternatives also ensure reasonable progress.”). Our regulations for alternatives to BART, including the provisions for a backstop trading program under Section 309, are therefore consistent with the Clean Air Act and not in issue in this action approving a SIP submitted under those regulations. We have reviewed the submitted 309 trading program SIPs to determine whether each has the required backstop trading program (see 40 CFR 51.309(d)(4)(v)), and whether the features of the program satisfy the requirements for trading programs as alternatives to BART (see 40 CFR 51.308(e)(2)). Our regulations make clear that any market trading program as an alternative to BART contemplates market participation from a broader list of sources than merely those sources that are subject to BART. See 40 CFR 51.308(e)(2)(i)(B).

Comment:The submitted 309 Trading Program is defective because only 3 of 9 Transport States remain in the program. The Grand Canyon Visibility Transport Commission Report clearly stated that the program must be “comprehensive.” The program fails to include the other Western States that account for the majority of sulfate contribution in the Class I areas of participating States, and therefore Class I areas on the Colorado Plateau will see little or no visibility benefit. Non-participation by other Transport Region States compounds the program's deficiencies.

Response:We disagree that the 309 trading program is defective because only 3 States remain in the program. EPA's regulations do not require a minimum number of Transport Region States to participate in the 309 trading program, and there is no reason to believe that the limited participation by the 9 Transport States will limit the effectiveness of the program in the 3 States that have submitted 309 SIPs. The commenter's argument is not supported by the regional haze regulations and is demonstrably inconsistent with the resource commitments of the Transport Region States that have worked for many years in the WRAP to develop and submit SIPs to satisfy 40 CFR 51.309. At the outset, our regulations affirm that “certain States * * * may choose” to comply with the 40 CFR 51.309 requirements and conversely that “[a]ny Transport Region State [may] elect not to submit an implementation plan” to meet the optional requirements. 40 CFR 51.309(a); see also 40 CFR 51.309(f). We have also previously observed how the WRAP, in the course of developing its technical analyses as the framework for a trading program, “understood that some States and Tribes may choose not to participate in the optional program provided by 40 CFR 51.309.” 68 FR 33769 (June 5, 2003). Only five of nine Transport Region States initially opted to participate in the backstop trading program in 2003, and of those initial participants only Oregon and Arizona later elected not to submit 309 SIPs.

We disagree with the commenter's assertion that Class I areas on the Colorado Plateau will see little or no visibility benefit. Non-participating States must account for sulfate contributions to visibility impairment at Class I areas by addressing all requirements that apply under 40 CFR 51.308. To the extent Wyoming, New Mexico and Utah sources “do not account for the majority of sulfate contribution” at the 16 class I areas on Colorado Plateau, there is no legal requirement that they account for SO2emissions originating from sources outside these participating States. Aside from this, the modeling results detailed in the proposed rulemaking show projected visibility improvement for the 20 percent worst days in 2018 and no degradation in visibility conditions on the 20 percent best days at all 16 of the mandatory Class I areas under the submitted 309 plan.

Finally, we do not agree with the commenter's characterization of the Grand Canyon Visibility Transport Commission Report, which used the term “comprehensive” only in stating the following:

It is apparent that the Grand Canyon Visibility Transport Commission recommended comprehensive source coverage to optimize the market trading program. This does not necessitate or even necessarily correlate with geographic comprehensiveness as contemplated by the comment. We note that the submitted backstop trading program does in fact comprehensively include “many source categories,” as may also be expected for any intrastate trading program that any state could choose to develop and submit under 40 CFR 51.308(e)(2). As was stated in our proposal, section 51.309 does not require the participation of a certain number of States to validate its effectiveness.

Comment:The submitted 309 trading program is defective because the pollutant reductions from participating States have little visibility benefit in each other's Class I areas. The States that have submitted 309 SIPs are “largely non-contiguous” in terms of their physical borders and their air shed impacts. Sulfate emissions from each of the participating States have little effect on Class I areas in other participating States.

Response:We disagree. The 309 program was designed to address visibility impairment for the sixteen Class I areas on the Colorado Plateau. New Mexico, Wyoming and Utah are identified as Transport Region States because the Grand Canyon Visibility Transport Commission had determined they could impact the Colorado Plateau class I areas. The submitted trading program has been designed by these Transport Region States to satisfy their requirements under 40 CFR 51.309 to address visibility impairment at the sixteen Class I areas. The strategies in these plans are directed toward a designated clean-air corridor that is defined by the placement of the 16 Class I areas, not the placement of state borders. “Air sheds” that do not relate to haze at these Class I areas or that relate to other Class I areas are similarly not relevant to whether the requirements for an approvable 309 trading program are met. As applicable, any Transport Region State implementing the provisions of Section 309 must also separately demonstrate reasonable progress for any additional mandatory Class I Federal areas other than the 16 Class I areas located within the state. See 40 CFR 51.309(g). More broadly, the State must submit a long-term strategy to address these additional Class I areas as well as those Class I areas located outside the state which may be affected by emissions from the State. 40 CFR 51.309(g) and51.308(d)(2). In developing long-term strategies, the Transport Region States may take full credit for visibility improvements that would be achieved through implementation of the strategies required by 51.309(d). A state's satisfaction of the requirements of 51.309(d), and specifically the requirement for a backstop trading program, is evaluated independently from whether a state has satisfied the requirements of 51.309(g). In neither case, however, does the approvability inquiry center on the location or contiguousness of state borders.

Comment:The emission benchmark used in the submitted 309 trading program is inaccurate. The “better-than-BART” demonstration needs to analyze BART for each source subject to BART in order to evaluate the alternative program. The submitted 309 trading program has no BART analysis. The “better-than-BART” demonstration does not comply with the regional haze regulations when it relies on the presumptive SO2emission rate of 0.15 lb/MMBtu for most coal-fired EGUs. The presumptive SO2limits are inappropriate because EPA has elsewhere asserted that “presumptive limits represented control capabilities at the time the BART Rule was promulgated, and that [EPA] expected that scrubber technology would continue to improve and control costs would continue to decline.” 77 Fed. Reg. 14614 (March 12, 2012).

Response:We disagree that the submitted 309 trading program requires an analysis that determines BART for each source subject to BART. Source specific BART determinations are not required to support the better-than-BART demonstration when the “alternative measure has been designed to meet a requirement other than BART.” See 40 CFR 51.308(e)(2)(i)(C). The requirements of Section 309 are meant to implement the recommendations of the Grand Canyon Visibility Transport Commission and are regulatory requirements “other than BART” that are part of a long-term strategy to achieve reasonable progress. As such, in its analysis, the State may assume emission reductions “for similar types of sources within a source category based on both source-specific and category-wide information, as appropriate.” See id. The 309 States used this approach in developing their emission benchmark, and we view it to be consistent with what we have previously stated regarding the establishment of a BART benchmark. Specifically, we have explained that States designing alternative programs to meet requirements other than BART “may use simplifying assumptions in establishing a BART benchmark based on an analysis of what BART is likely to be for similar types of sources within a source category.” 71 FR 60619 (Oct. 13, 2006).

We also previously stated that “we believe that the presumptions for EGUs in the BART guidelines should be used for comparisons to a trading program or other alternative measure, unless the State determines that such presumptions are not appropriate.” Id. Our reasoning for this has also long been clear. While EPA recognizes that a case-by-case BART analysis may result in emission limits more stringent than the presumptive limits, the presumptive limits are reasonable and appropriate for use in assessingregionalemissions reductions for the better than BART demonstration. See 71 FR 60619 (“the presumptions represent a reasonable estimate of a stringent case BART because they would be applied across the board to a wide variety of units with varying impacts on visibility, at power plants of varying size and distance from Class I areas”). EPA's expectation that scrubber technology would continue to improve and that control costs would continue to decline is a basis for not regarding presumptive limits as a default or safe harbor BART determination when the BART Guidelines otherwise call for a complete, case-by-case analysis. We believe it was reasonable for the developers of the submitted trading program to use the presumptive limits for EGUs in establishing the emission benchmark, particularly since the methodology used to establish the emission benchmark was established near in time to our promulgation of the presumptive limits as well as our guidance that they should be used. We do not think the assumptions used at the time the trading program was developed, including the use of presumptive limits, were unreasonable. Moreover, the commenter has not demonstrated how the use of presumptive limits as a simplifying assumption at that time, or even now, would be flawed merely because EPA expects that scrubber technology and costs will continue to improve.

Comment:The presumptive SO2emission rate overstates actual emissions from sources that were included in the BART benchmark calculation. In addition, States in the Grand Canyon Visibility Transport Region have established or proposed significantly more stringent BART limits for SO2.Using actual SO2emission data for EGUs, SO2emissions would be 130,601 tpy, not the benchmark of 141,859 tpy submitted in the 309 trading program. Using a combination of actual emissions and unit-specific BART determinations, the SO2emissions would be lower still at 123,529 tpy. Finally, the same data EPA relied on to support its determination that reductions under the Cross State Air Pollution Rule are “better-than-BART” would translate to SO2emissions of 124,740 tpy. These analyses show the BART benchmark is higher than actual SO2emissions reductions achievable through BART. It follows that the submitted 309 trading program is flawed because it cannot be deemed to achieve “greater reasonable progress” than BART.

Response:The BART benchmark calculation does not overstate emissions because it was not intended to assess actual emissions at BART subject sources nor was it intended to assess the control capabilities of later installed controls. Instead, the presumptive SO2emission rate served as a necessary simplifying assumption. When the States worked to develop the 309 trading program, they could not be expected to anticipate the future elements of case-by-case BART determinations made by other States (or EPA, in the case of a BART determination through any federal implementation plan), nor could they be expected to anticipate the details of later-installed SO2controls or the future application of enforceable emission limits to those controls. The emissions projections by the WRAP incorporated the best available information at the time from the states, and utilized the appropriate methods and models to provide a prediction of emissions from all source categories in this planning period. In developing a profile of planning period emissions to support each state's reasonable progress goals, as well as the submitted trading program, it was recognized that the final control decisions by all of the states were not yet complete, including decisions as they may pertain to emissions from BART eligible sources. Therefore, we believe it is appropriate that the analysis and demonstration is based on data that was available to the States at the time they worked to construct the SO2trading program. The States did make appropriate adjustments based on information that was available to them at the time. Notably, the WRAP appropriately adjusted its use of the presumptive limits in the case of Huntington Units 1 and 2 in Utah, because those units were already subject to federally enforceable SO2emission rates that were lower than thepresumptive rate. The use of actual emissions data after the 2006 baseline is not relevant to the demonstration that has been submitted.

Comment:SO2emissions under the 309 trading program would be equivalent to the SO2emissions if presumptive BART were applied to each BART-subject source. Because the reductions are equivalent, the submitted 309 trading program does not show, by “the clear weight of the evidence,” that the alternative measure will result in greater reasonable progress than would be achieved by requiring BART. In view of the reductions being equivalent, it is not proper for EPA to rely on “non-quantitative factors” in finding that the SO2emissions trading program achieves greater reasonable progress.

Response:We recognize that the 2018 SO2milestone equals the BART benchmark and that the benchmark generally utilized the presumptive limits for EGUs, as was deemed appropriate by the States who worked together to develop the trading program. If the SO2milestone is exceeded, the trading program will be activated. We note, moreover, that the 2018 milestone constitutes an emissions cap on sulfur dioxide emissions that will persist after 2018.3 Under this framework, sources that would otherwise be subject to the trading program have incentives to make independent reductions to avoid activation of the trading program. We cannot discount that the 2003 309 SIP submittal may have already influenced sources to upgrade their plants before any case-by-case BART determination under Section 308 may have required it. In addition, the trading program was designed to encourage early reductions by providing extra allocations for sources that made reductions prior to the program trigger year. Permitting authorities that would otherwise permit increases in SO2emissions for new sources would be equally conscious of the potential impacts on the achievement of the milestone. We note that the most recent emission report for the year 2010 shows a 35% reduction in emissions from 2003. The 309 trading program is designed as a backstop such that sources would work to accomplish emission reductions through 2018 that would be superior to the milestone and the BART benchmark. If instead the backstop trading program is triggered, the sources subject to the program would be expected to make any reductions necessary to achieve the emission levels consistent with each source's allocation. We do not believe that the “clear weight of the evidence” determination referenced in 40 CFR 51.308(e)(2)(E)—in short, a determination that the alternative measure of the 309 trading program achieves greater reasonable progress than BART—should be understood to prohibit setting the SO2milestone to equal the BART benchmark. Our determination that the 2018 SO2milestone and other design features of the 309 SIP will achieve greater reasonable progress than would be achieved through BART is based on our understanding of how the SIP will promote and sustain emission reductions of SO2as measured against a milestone. Sources will be actively mindful of the participating states' emissions inventory and operating to avoid exceeding the milestone, not trying to maximize their emissions to be equivalent to the milestone, as this comment suggests.

Comment:In proposing to find that the SO2trading program achieves greater reasonable progress than BART, EPA's reliance on the following features of the 309 trading program is flawed: Non-BART emission reductions, a cap on new growth, and a mass-based cap on emissions. The reliance on non-BART emission reductions is “a hollow promise” because there is no evidence that the trading program will be triggered for other particular emission sources, and if the program is never triggered there will be no emission reductions from smaller non-BART sources. The reliance on a cap on future source emissions is also faulty because there is no evidence the trading program will be triggered, and thus the cap may never be implemented. Existing programs that apply to new sources will already ensure that SO2emissions from new sources are reduced to the maximum extent. EPA's discussion of the advantages of a mass-based cap is unsupported and cannot be justified. EPA wrongly states that a mass-based cap based on actual emissions is more stringent than BART. There should not be a meaningful gap between actual and allowable emissions under a proper BART determination. A mass-based cap does not effectively limit emissions when operating at lower loads and, as an annual cap, does not have restrictive compliance averaging. EPA's argument implies that BART limits do not apply during startup, shutdown or malfunction events, which is not correct. The established mass-based cap would allow sources to operate their SO2controls less efficiently, because some BART-subject EGUs already operate with lower emissions than the presumptive SO2emission rate of 0.15 lb/MMBtu and because some EGUs were assumed to be operating at 85% capacity when their capacity factor (and consequently their S02emissions in tpy) was lower.

Response:We disagree that it is flawed to assess the benefits found in the distinguishing features of the trading program. The backstop trading program is not specifically designed so that itwillbe activated. Instead sources that are covered by the program are on notice that it will be triggered if the regulatory milestones are not achieved. Therefore, the backstop trading program would be expected to garner reductions to avoid its activation. It also remains true that if the trading program is activated, all sources subject to the program, including smaller non-BART sources would be expected to secure emission reductions as may be necessary to meet their emission allocation under the program

We also disagree that the features of the 2018 milestone as a cap on future source emissions and as a mass-based cap has no significance. As detailed in our proposal, the submitted SIP is consistent with the requirement that the 2018 milestone does indeed continue as an emission cap for SO2unless the milestones are replaced by a different program approved by EPA as meeting the BART and reasonable progress requirements under 51.308. Future visibility impairment is prevented by capping emissions growth from those sources not eligible under the BART requirements, BART sources, and from entirely new sources in the region. The benefits of a milestone are therefore functionally distinct from the control efficiency improvements that could be gained at a limited number of BART subject sources. While BART-subject sources may not be operating at 85% capacity today, we believe the WRAP's use of the capacity assumption in consideration of projected future energy demands in 2018 was reasonable for purposes of the submitted demonstration. While BART requires BART subject sources to operate SO2controls efficiently, this does not mean that an alternative to BART thereby allows, encourage, or causes sources to operate their controls less efficiently. On the contrary, we find that the SIP, consistent with the well-considered 309 program requirements, functions to the contrary. Sources will be operating their controls in consideration of the milestone and they also remain subject to any other existing or futurerequirements for operation of SO2controls.

We also disagree with the commenter's contention that existing programs are equivalent in effect to the emissions cap. EPA's new source review programs are designed to permit, not cap, source growth, so long as the national ambient air quality standards and other applicable requirements can be achieved. Moreover, we have not argued that BART does not apply at all times or that emission reductions under the cap are meant to function as emission limitations are made to meet the definition of BART (40 CFR 51.301). The better-than-BART demonstration is not, as the comment would have it, based on issues of compliance averaging or how a BART limit operates in practice at an individual facility. Instead, it is based on whether the submitted SIP follows the regulatory requirements for the demonstration and evidences comparatively superior visibility improvements for the Class I areas it is designed to address.

Comment:The submitted 309 SIP will not achieve greater reasonable progress than would the requirement for BART on individual sources. The BART program “if adequately implemented” will promote greater reasonable progress, and EPA should require BART on all eligible air pollution sources in the state. EPA's proposed approval of the 309 trading program is “particularly problematic” where the BART sources cause or contribute to impairment at Class I areas which are not on the Uniform Rate of Progress glide-path towards achieving natural conditions. EPA should require revisions to provide for greater SO2reductions in the 309 program, or it should require BART reductions on all sources subject to BART for SO2.

Response:We disagree with the issues discussed in this comment. As discussed in other comments, we have found that the state's SIP submitted under the 309 program will achieve greater reasonable progress than source-by-source BART. As the regulations housed within section 51.309 make clear, States have an opportunity to submit regional haze SIPs that provide an alternative to source-by-source BART requirements. Therefore, the commenter's assertion that we should require BART on all eligible air pollution sources in the state is fundamentally misplaced. The commenter's use of the Uniform Rate of Progress (URP) as a test that should apparently be applied to the adequacy of the 309 trading program as a BART alternative is also misplaced, as there is no requirement in the regional haze rule to do so.

Comment:The 309 trading program must be disapproved because it does not provide for “steady and continuing emissions reductions through 2018” as required by 40 CFR 51.309(d)(4)(ii). The program establishes its reductions through milestones that are set at three year intervals. It would be arbitrary and capricious to conclude these reductions are “steady” or “continuous.”

Response:We disagree and find that the reductions required at each milestone demonstrate steady and continuing emissions reductions. The milestones do this by requiring regular decreases. These decreases occur in intervals ranging from one to three years and include administrative evaluation periods with the possibility of downward adjustments of the milestone, if warranted. The interval under which “steady and continuing emissions reductions through 2018” must occur is not defined in the regional haze rule. We find the milestone schedule and the remainder of the trading program submitted by City of Albuquerque-Bernalillo County does in fact reasonably provide for “steady and continuing emissions reductions through 2018.”

Comment:The WRAP attempts to justify the SO2trading program because SO2emissions have decreased in the three Transport Region states relying on the alternative program by 33% between 1990-2000. The justification fails because the reductions were made prior to the regional haze rule. The reliance on reductions that predate the regional haze rule violates the requirement of 40 CFR 51.308(e)(2)(iv) that BART alternatives provide emission reductions that are “surplus” to those resulting from programs implemented to meet other Clean Air Act Requirements.

Response:We did not focus on the WRAP's discussion of early emission reductions in our proposal. However, we do not agree with this comment. The WRAP's statements regarding past air quality improvements are not contrary to the requirement that reductions under a trading program be surplus. Instead, the WRAP was noting that forward-planning sources had already pursued emission reductions that could be partially credited to the design of the 309 SIP. We note that the most recent emission report for the year 2010 shows a 35% reduction in emissions from 2003. Sources that make early reductions prior to the program trigger year may acquire extra allocations should the program be triggered. This is an additional characteristic feature of the backstop trading program that suggests benefits that would be realized even without triggering of the program itself. The surplus emission reduction requirement for the trading program is not in issue, because the existence of surplus reductions is studied against other reductions that are realized “as of baseline date of the SIP.” The 1990-2000 period plainly falls earlier than the baseline date of the SIP, so we disagree that the WRAP's discussion of that period was problematic or violative of 40 CFR 51.308(e)(2)(iv), regarding surplus reductions.

Comment:EPA must correct discrepancies between the data presented in the 309 SIP submittals.4 There are discrepancies in what has been presented as the results of WRAP photochemical modeling. The New Mexico RH SIP proposal by EPA shows, for example, that the 20% worst days at Grand Canyon National Park have visibility impairment of 11.1 deciviews, while the other EPA proposals show 11.3 deciviews. The discrepancy appears to be due to the submittals being based on different modeling scenarios developed by the WRAP. EPA must explain and correct the discrepancies and “re-notice” a new proposed rule containing the correct information.

Response:We agree that there are discrepancies in the numbers in Table 1 of the proposal notices. The third column of the table below shows the modeling results presented in Table 1 of the Albuquerque, Wyoming and Utah proposals. The modeling results in the New Mexico proposal Table 1 are shown in the fourth column. The discrepancies come from the State's using different preliminary reasonable progress cases developed by the WRAP. The Wyoming, Utah and Albuquerque proposed notices incorrectly identify the Preliminary Reasonable Progress case as the PRP18b emission inventory instead of correctly identifying the presented data as modeled visibility based on the “prp18a” emission inventory. The PRP18a emission inventory is a predicted 2018 emission inventory with all known and expected controls as of March 2007. The preliminary reasonable progress case (“PRP18b”) used by New Mexico is the more updated version produced by the WRAP with all known and expected controls as of March 2009. Thus, we are correcting Table 1, column 5 in theWyoming, Utah and Albuquerque of our proposed notices to include model results from the PRP18b emission inventory, consistent with the New Mexico proposed notice and the fourth column in the table below. We are also correcting the description of the Preliminary Reasonable Progress Case (referred to as the PRP18b emission inventory and modeled projections) to reflect that this emission inventory includes all controls “on the books” as of March 2009.

Section 309 requires Transport Region States to include a projection of the improvement in visibility expected through the year 2018 for the most impaired and least impaired days for each of the 16 Class I areas on the Colorado Plateau. 40 CFR 51.309(d)(2). As explained in the preamble to the 1999 regional haze regulations, EPA included this requirement to ensure that the public would be informed on the relationship between chosen emissions control measures and their effect on visibility. 64 FR at 35751. Given the purpose of this requirement, we do not consider the discrepancies noted above to be significant and are not re-noticing our proposed rulemaking as the discrepancies do not change our proposed conclusion that SIP submitted by City of Albuquerque—Bernalillo County contains reasonable projections of the visibility improvements expected at the 16 Class I areas at issue. The PRP18a modeling results show projected visibility improvement for the 20 percent worst days from the baseline period to 2018. The PRP18b modeling results show either the same or additional visibility improvement on the 20 percent worst days beyond the PRP18a modeling results. We also note there are two discrepancies in New Mexico's Table 1, column four compared to the other participating States' notices. The 2018 base case visibility projection in the New Mexico proposed notice for Black Canyon of the Gunnison National Park Wilderness and Weminuche Wilderness should be corrected to read 10.1 deciview rather than 10.0. Notwithstanding the discrepancies described above, we believe that the BC SIP adequately projects the improvement in visibility for purposes of Section 309.

Comment:The regional haze regulations at 40 CFR 51.308(e)(2)(i)(B) require that “each BART-eligible source in the State must be subject to the requirements of the alternative program, [and] have a federally enforceable emission limitation determined by the State and approved by EPA as meeting BART * * *” The sole coal-fired electric generating units (“EGUs”) that are subject to BART in New Mexico are the four units at the San Juan Generating Station (“SJGS”). While the BC RH SIP lists SJGS as a BART eligible source, it fails to identify a federally enforceable emission limitation for SO2that is determined to be BART by the State and has been approved by EPA as meeting BART. As such, the BC RH SIP fails to comply with 40 CFR 51.308(e)(2)(i)(B).

Response:This comment presents a flawed reading of our regulations by inserting the word “and” where it does not, in fact, appear in the language of 40 CFR 51.308(e)(2)(i)(B). 40 CFR 51.308(e)(2)(i)(B) requires that “each BART-eligible source in the State must be subject to the requirements of the alternative program, have a federally enforceable emission limitation determined by the State and approved by EPA as meeting BART in accordance with section 302(c) or paragraph (e)(1) of this section, or otherwise addressed under paragraphs (e)(1) or (e)(4) of this section.” This section of the rule requires that each BART-eligible source be covered by the alternative program or satisfy the BART requirements by either participation in a “Transport Rule Federal Implementation Plan” under paragraph (e)(4) or by determining BART for the source under paragraph (e)(1). Because there are no BART-eligible sources in Bernalillo County, the requirement to make BART determinations does not apply. As was detailed in the proposal, the alternative program satisfies the requirements of 40 CFR 51.308(e)(2)(i)(B), because all BART-eligible sources are covered by the alternative program. We also note the alternative program goes further to additionally cover point sources that have actual emissions of SO2greater than 100 tons per year (sources meeting the requirements of 20.2.81.101. NMAC).

Comment:The BC RH SIP also fails to comply with 40 CFR 51.309(g), which requires that SIPs address impacts to Class I areas not located on the Colorado plateau. 40 CFR 51.309(g). States are required to submit air quality modeling or other reliable evidence revealing visibility impacts and establishing that reasonable progress goals will be met. In December 2010 and February 2011, EPA informed Bernalillo County that its SIP failed to comply with 40 CFR 51.309(g)(1) and (2) because it did not submit evidence showing BernalilloCounty's effects on visibility in Class I areas in New Mexico, such as Gila Wilderness and Carlsbad Cavern. EPA Docket EPA-R06-OAR-2008-0702-0011 at pages 110-111 and 126-127. EPA determined that SO2emissions in New Mexico were projected to increase from 4,966 tpy in 2002 to 14,073 tpy by 2018 with nearly 30% of the 2018 emissions coming from Bernalillo County. Id. EPA also determined that a significant increase in NOXemissions from Bernalillo County was projected to occur over this same time period. Id. EPA asked Bernalillo County to conduct visibility modeling to determine its impacts to Class I areas and to explain how reasonable progress goals would be met in light of significant emissions increases. Id.

The commenters state that they were unable to identify any visibility modeling or other analysis conducted by Bernalillo County to address EPA's concerns. The commenters request an opportunity to review any visibility modeling or related analysis and that EPA reject the BC RH SIP until these issues are fully addressed.

Response:The letters referred to by the commenter state that the analysis with regard to the requirements of 40 CFR 51.309(g)(1) and (2) in BC's draft SIP revision shared with EPA in 2010 may be incomplete. Specifically, the qualitative analysis provided in “Appendix 2007-H” and “Addendum to Appendix 2007-H” addressed the impact of BC's emissions on nearby Class I areas, but did not include information on the inaccuracy and over-prediction in the 2018 WRAP emission projections for NOXand SO2emissions in BC, or the effect of an accurate emission inventory with respect to modeled visibility degradation at Gila Wilderness and Carlsbad Caverns.

With respect to the above mentioned modeled degradation at Gila Wilderness, an error in data retrieval affected initial results for modeled visibility conditions at Gila Wilderness in 2002 and indicated that visibility would degrade from 2002 to 2018. This error was corrected and the updated submitted data indicates a predicted improvement in visibility conditions on the 20% worst days and no degradation of visibility on the 20% best days.5 For Carlsbad Caverns, NMED provided modeling data that demonstrates that significant projected growth in emissions by 2018 from Mexico are responsible for the degradation in visibility conditions on the 20% best days at this Class I area (Section 11.3.3 of the NM RH 309(g) SIP submittal). WRAP visibility modeling results with Mexico emissions held constant from 2002 to 2018 show a slight improvement in visibility conditions at Carlsbad Caverns on the 20% best days. Therefore, the initial modeled visibility degradation at both Gila Wilderness and Carlsbad Caverns was addressed without a need to further evaluate the impact of over-estimated NOXand SO2emissions in BC.

Furthermore, BC provided additional information in Appendix2010-B of the BC RH SIP6 that included an evaluation of emission inventory trends for 2002, 2005, and 2008 for NOXand SO2emissions for Bernalillo County. The analysis in the BC RH SIP submittal identifies some inaccuracies in the emission inventories used by the WRAP to model the 2002 baseline and the 2018 future case. The 2002 and 2018 emission projections are higher than expected when compared to the reduction in SO2emissions observed in the actual emissions inventories for 2002, 2005 and 2008. Table 5 of our proposed approval of the BC RH SIP (77 FR 24790) shows a comparison of emission data from Bernalillo County and a trend of decreasing emissions compared to emissions included in the WRAP estimates and photochemical modeling, projecting a large increase of both NOx and SO2. Based on the information provided in BC RH SIP submittal, we agree with the determination that visibility impacts at the nearby Class I areas due to area and mobile emission sources in Bernalillo County are overestimated in the WRAP 2002 and 2018 visibility modeling. The emission trends for 2002 through 2008 (BC RH SIP submittal Appendix 2010-B) indicate that emissions of NOXand SO2within Bernalillo County are declining and therefore visibility impairment due to these emissions are also anticipated to decrease from their current low levels presented in Appendix 2007-H and in the addendum to Appendix 2007-H of the BC RH SIP. We find that BC adequately evaluated the Class I areas that may be impacted by sources of air pollution within Bernalillo County and BC adequately determined and demonstrated that, at this time, it is improbable that sources located within the county cause or contribute to visibility impairment in a Class I area located outside of the county. The BC RH SIP submittal therefore complies with 40 CFR 51.309(g)(1) and (2).

Comment:Section 51.308(d)(1)(vi) states, “[t]he State may not adopt a reasonable progress goal that represents less visibility improvement than is expected to result from implementation of other requirements of the CAA during the applicable planning period. 40 CFR 51.308(d)(1)(vi). Since the BC RH SIP's reasonable progress goals would result in less visibility improvement than would be achieved through application of BART, the BC RH SIP's reasonable progress goals must be revised to reflect reductions achievable through BART.

Response:There are no Class I areas within Bernalillo County, therefore BC is not required to nor did they adopt reasonable progress goals for any Class I area. BC is required to address the apportionment of visibility impact from the emissions generated by sources within Bernalillo County at Class I areas outside of the county borders. As discussed above, we find that BC adequately evaluated the Class I areas that may be impacted by sources of air pollution within Bernalillo County and BC adequately determined and demonstrated that, at this time, it is improbable that sources located within the county cause or contribute to visibility impairment in a Class I area located outside of the county.

In addition, no sources in Bernalillo County satisfy the definition for BART-eligible sources at 40 CFR 51.301. Therefore, no visibility improvement is anticipated due to the application of BART within Bernalillo County. We note, that BC is participating in the SO2emission milestone and backstop trading program. This program applies to all SO2point sources over 100 tons per year and requires that emissions in the participating States and BC remain below the established milestone or result in the triggering of the 309 backstop trading program. The milestone caps these sources at actual emissions, and the program also provides for a cap on new source growth. The milestone schedule and the trading program submitted by BC and the participating states provide for steady and continuing emissions reductions through 2018.

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meetthe criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501et seq.);

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601et seq.);

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

• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

The Congressional Review Act, 5 U.S.C. 801et seq.,as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in theFederal Register. A major rule cannot take effect until 60 days after it is published in theFederal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by January 28, 2013. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR part 52 is amended to read as follows:

Throughout this document, “we,” “us” and “our” refer to EPA.

On June 21, 2012 (77 FR 37359), EPA proposed to approve the following rules into the California SIP.

We proposed to approve these rules because we determined that they complied with the relevant CAA requirements. Our proposed action contains more information on the rules and our evaluation.

EPA's proposed action provided a 30-day public comment period. During this period, we received two comments from the following parties.

1. Dan Noble and Paul Ryan, Association of Compost Producers and Inland Empire Disposal Association (ACP/IEDA); letter dated July 23, 2012 and received July 23, 2012.

2. Caroll Mortensen, Department of Resources Recycling and Recovery (CalRecycle); letter dated July 14, 2012 and received July 17, 2012.

The comments and our responses are summarized below.

Comment #1:ACP/IEDA recommend that prior to the development of food waste emission factors for composting, that harmonized, consistent, and uniform food waste definitions be developed and implemented in regulations across air quality, water quality, and integrated waste management agencies in the State of California.

Response #1:This comment does not address the basis or conclusion of EPA's proposed action. However, EPA supports the current efforts of CalRecycle and the California State Water Resources Control Board to define “food waste” in a consistent manner to reduce inconsistencies between various state permitting and regulatory programs. More information can be found athttp://www.calrecycle.ca.gov/laws/Rulemaking/Compost/default.htm.

Comment #2:ACP/IEDA recommend that federal, State, and local agencies develop and incorporate standard food waste emission factors in rules and regulations to more accurately characterize both reactive and non-reactive ozone forming volatile organic compound (VOC) emissions from greenwaste composting that contains food material.

Response #2:No response is needed as the comment does not address the basis or conclusion of EPA's proposed action. However, we believe that additional research that would better characterize VOC emissions from food waste would be helpful.

Comment #3:In general, ACP/IEDA supports the EPA recommendations to further improve both SCAQMD and SJVUAPCD rules.

Response #3:No response needed.

Comment #4:CalRecycle, in general, supports EPA's proposed action on the SCAQMD and SJVUAPCD composting rules.

Response #4:No response needed.

Comment #5:CalRecycle requests that EPA allow and direct air quality regulators to provide more flexibility when considering new regulations on low-reactivity sources of VOCs, such as composting, especially when those sources have other environmental benefits. CalRecycle explains this recommendation further and includes citation to a supportive UC Davis study.

Response #5:This comment does not address the basis or conclusion of EPA's proposed action. However, we agree that well-managed composting may provide environmental benefits, including diverting material from landfills that could produce methane.1 Using compost can also help regenerate poor soils, clean up contaminated soils, and prevent erosion and silting on embankments parallel to creeks, lakes and rivers. Using compost can also reduce the need for fertilizer and pesticides.

We also note that EPA's interim guidance on the controls of VOC in ozone state implementation plans (70 FR 54046, September 13, 2005) already encourages states with persistent ozone nonattainment problems to consider recent scientific information on VOC reactivity and how it may be incorporated into the development of ozone control measures. EPA also believes that mass-based VOC regulations continue to provide significant ozone reduction benefits and should not be discounted unless and until they are replaced by programs that achieve the same or greater benefits.

Comment #6:CalRecycle recommends that the EPA clarify and support the creation of offsets for the implementation of mitigation measures, such as aerated static piles and anaerobic digesters, that may reduce VOCs beyond what is required by existing rules.

Response #6:This comment does not address the basis or conclusion of EPA's proposed action. However, EPA is working with our state and local partners to ensure that Clean Air Act permitting requirements, including offset requirements, are appropriately applied to the composting industry.

Comment #7:CalRecycle requests that EPA consider VOC reactivity when evaluating and updating ozone emission inventories.

Response #7:The comment does not address the basis or conclusion of EPA's proposed action. Also see the response to Comment #5.

Comment #8:CalRecycle recommends that the EPA support research to test emissions from green materials directly applied to farmland. It considers direct land application to be a likely outlet for organic materials if composting is restricted or made more expensive by air quality rules. The commenter notes that CalRecycle and the UC Davis School of Civil and Environmental Engineering submitted a research proposal for this concept to EPA in 2011.

Response #8:The comment does not address the basis or conclusion of EPA's proposed action. However, EPA believes that additional research would be helpful. We think it is important to better quantify the environmental impacts of composting, especially VOC emission factors related to food waste. We also think it is important to better quantify the environmental benefits of composting, including being able to better describe how VOC emissions from composting compare with VOC emissions of other management options, such as direct application to land or landfilling. EPA does not have research funding readily available for these purposes, but we can participate in discussions with organizations that may have funding to help prioritize research needs.

Comment #9:CalRecycle recommends that the EPA support research to quantify water savings associated with compost use.

Response #9:The comment does not address the basis or conclusion of EPA's proposed action. However, as stated inour response to comment #8, we encourage research that would allow better quantification of the environmental benefits of composting.

No comments were submitted that change our assessment of the rules as described in our proposed action. Therefore, as authorized in section 110(k)(3) of the Act, EPA is fully approving these rules into the California SIP.

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves State law as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501et seq.);

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601et seq.);

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

• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and

• Does not provide EPA with the discretionary authority to address disproportionate human health or environmental effects with practical, appropriate, and legally permissible methods under Executive Order 12898 (59 FR 7629, February 16, 1994).

The Congressional Review Act, 5 U.S.C. 801et seq.,as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in theFederal Register. A major rule cannot take effect until 60 days after it is published in theFederal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by January 28, 2013. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements (see section 307(b)(2)).

Part 52, chapter I, title 40 of the Code of Federal Regulations is amended as follows:

This is a summary of the Commission's Report and Order, FCC 12-129, adopted on October 17, 2012, and released on October 17, 2012, in CG Docket No. 12-129. Document FCC 12-129 and the rules adopted therein shall become effective no less than six months after publication of a Public Notice in theFederal Registerannouncing the effective date of the rules once the PSAP Do-Not-Call registry becomes operational and by which affected parties must begin compliance. The full text of document FCC 12-129 and copies of any subsequently filed documents in this matter 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. They may also 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: (202) 488-5300, fax: (202) 488-5563, or Internet:www.bcpiweb.com.This document can also be downloaded in Word or Portable Document Format (“PDF”) athttp://www.fcc.gov/document/fcc-initiates-proceeding-create-public-safety-do-not-call-registry.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).

The Commission will send a copy of document FCC 12-129 to Congress and the Government Accountability Office pursuant to the Congressional Review Act,see5 U.S.C. 801(a)(1)(A).

Document FCC 12-129 contains new information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, will invite the general public to comment on the information collection requirements contained in document FCC 12-129 as required by the PRA of 1995, Public Law 104-13 in a separate notice that will be published in theFederal Register. In addition, the Commission notes that pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, 44 U.S.C. 3506(c)(4), it previously sought specific comment on how it might further reduce the information collection burden for small business concerns with fewer than 25 employees. In document FCC 12-129, the Commission has assessed the potential effects of the policy changes with regard to information collection burdens on small business concerns, and finds these requirements will implement the statutory mandate to create a PSAP do-not-call registry and prohibit the use of autodialers to contact those numbers in a way that minimizes regulatory compliance burdens. In addition, the Commission has described the impacts that might affect small businesses, which includes most businesses with fewer than 25 employees, in the Final Regulatory Flexibility Analysis.

The rules adopted in document FCC 12-129 establish recordkeeping requirements for a large variety of entities, including small business entities. First, each PSAP may designate a representative who shall be required to file a certification with the administrator of the PSAP registry that they are authorized to place numbers onto that registry. The designated PSAP representative shall provide contact information including the PSAP represented, name, title, address, telephone number and email address. Verified PSAPs shall be permitted to upload to the registry any PSAP telephone associated with the provision of emergency services or communications with other public safety agencies. On an annual basis, designated PSAP representatives shall access the registry, review their numbers and remove any ineligible numbers from the registry. Second, an operator of automatic dialing equipment (OADE) is prohibited from contacting any number on the PSAP registry. Each OADE must register for access to the PSAP registry by providing contact information which includes name, business address, contact person, telephone number, email, and all outbound telephone numbers used to place autodialed calls. All such contact information must be updated within 30 days of any change. In addition, the OADE must certify that it is accessing the registry solely to prevent autodialed calls to numbers on the registry. An OADE must access and employ a version of the PSAP registry obtained from the registry administrator no more than 31 days prior to the date any call is made, and maintain record documenting this process. No person or entity may sell, rent, lease, purchase, share, or use the PSAP registry for any purpose expect to comply with our rules prohibiting contact with numbers on the registry. In order to ensure that all interested parties will be provided with reasonable notice once the PSAP registry becomes operational, the rules adopted herein will not become effective until a Public Notice is published which sets an effective date of no less than six months after publication of the Public Notice.

1.Numbers and Registration.The Commission concludes that PSAPs should be given substantial discretion to designate the numbers to include on the PSAP Do-Not-Call registry so long as such numbers are associated with the provision of emergency services or communications with other public safety agencies. These numbers may include, for example, numbers associated with administrative lines that may be used in some cases for overflowemergency calls. In addition, the Commission concludes that secondary PSAPs should also be permitted to place numbers on the registry, because, as the record shows, secondary PSAPs are vulnerable to autodialed calls in the same way as primary PSAPs.

2. Section 6507(b)(1) of the Tax Relief Act states that “verified [PSAP] administrators or managers” will be permitted to add numbers to the registry. The Commission concludes that PSAPs may designate a representative who shall be required to file with the Commission or the designated administrator of the registry a certification, under penalty of law, that he/she is authorized and eligible to add numbers to the registry on behalf of that PSAP. As part of that certification, the representative shall provide contact information, including the PSAP name, contact person, title, address, telephone number, and email address. The Commission or administrator of the PSAP registry may require a follow-up response from a valid PSAP email address or some other means of confirmation to be specified by the Commission or administrator of the registry. Each verified PSAP shall then be assigned a unique identification number or password which shall be required to be entered every time the PSAP requests that numbers be placed onto the registry. The Commission emphasizes that only PSAP numbers submitted by a verified PSAP shall be allowed on the registry and shall remain on the registry until such numbers are removed by the PSAP or it is determined during the statutorily-required verification process that such numbers are no longer eligible for inclusion.

3.Verification that numbers should remain on the registry.Section 6507(b)(2) of the Tax Relief Act requires that the Commission “provide a process for verifying, no less frequently than once every 7 years, that registered numbers should continue to appear upon the registry.” The Commission concludes that, to give PSAPs flexibility and promote accuracy of the registry, PSAPs should be permitted to remove numbers from the registry at any time. In order to minimize PSAPs' compliance burdens while ensuring an accurate registry, we require that PSAPs access and review their registered numbers on an annual basis. To aid PSAPs in this process, the Commission directs the designated administrator of the registry to send an annual notification to each PSAP that has placed numbers on the registry reminding PSAPs of their continuing obligation to verify their registered numbers. PSAP representatives may request removal of numbers by providing the unique identification number or password assigned to the PSAP for purposes of placing numbers onto the registry.

4. Section 6507(b)(3) of the Tax Relief Act requires the Commission to “provide a process for granting and tracking access to the registry by the operators of automatic dialing equipment.” Consistent with this statutory mandate, the Commission finds that registry access should be restricted to OADEs for the limited purpose of ensuring compliance with the prohibition on contacting PSAP numbers in the registry. The only information that OADEs need to comply with section 6507 of the Tax Relief Act is the list of registered telephone numbers. The Commission concludes that any person or entity who uses an “automatic telephone dialing system,” as defined in section 227(a)(1) of the Communications Act, to make calls qualifies as an operator of “automatic dialing” or “robocall” equipment for purposes of the Tax Relief Act.

5. The Commission require that any OADE that accesses the PSAP registry provide to the Commission or the designated administrator of the registry a certification, under penalty of law, that it is accessing the registry solely to determine whether any telephone numbers to which it intends to place autodialed calls are listed on such registry for the purpose of complying with section 6507 of the Tax Relief Act. The first time an OADE accesses the registry, the OADE will be required to establish a profile and provide identifying information about its organization that will include the operator's name and all alternative names under which the registrant operates, a business address, a contact person, the contact person's telephone number, the OADE's email address, and all telephone numbers used to place autodialed calls, including both originating numbers and numbers that are displayed on caller ID.

6. The Commission requires that all such contact information be updated within 30 days of the date on which any change occurs. The Commission or administrator will assign every OADE granted access to the PSAP registry a unique identification number or password, which must be submitted each time that database is accessed. The Commission or the administrator will use this unique identifier to grant and track access to the secure database of registered PSAP numbers.

7. In the PSAP Do-Not-Call NPRM, the Commission sought comment on how often OADEs should be required to access the registry of PSAP numbers and update their calling lists to avoid calling registered PSAP numbers. The Commission noted that the TCPA rules require telemarketers to “employ a version of the national do-not-call registry obtained from the administrator of the registry no more than 31 days prior to the date any call is made, and maintain records documenting this process.” The Commission adopts this proposed timeframe for accessing the PSAP registry. The Commission retains the flexibility to revisit this finding and delegate authority to the Consumer and Governmental Affairs Bureau to modify this requirement as necessary.

8. Section 6507(b)(4) of the Tax Relief Act requires the Commission to “protect the list of registered numbers from disclosure or dissemination by parties granted access to the registry.” The Commission adopts a rule that prohibits parties from selling, renting, leasing, purchasing, sharing, or using the PSAP registry, or any part thereof, for any purpose except compliance with this section and any state or Federal law enacted to prevent autodialed calls to telephone numbers in the registry. The Commission limits access to the registry to OADEs and require that each OADE certify, under penalty of law, that it will access the registry solely to prevent autodialed calls to numbers on the registry.

9.Limiting registry access to OADEs.Some OADEs are marketers that make autodialed calls on behalf of other entities,e.g.,the sellers of products, goods, or services. Section 6507(b)(3) of the Tax Relief Act requires the Commission to “provide a process for granting and tracking access to the registry by the operators of automatic dialing equipment,” but does not contemplate access by such third parties who are not OADEs. In light of the statute's goal of protecting registered PSAP numbers, the Commission finds that access to the registered numbers should be limited to OADEs that have complied with the authorized process to obtain access to that information.

10. Section 6507(b)(5) of the Tax Relief Act directs the Commission toissue regulations prohibiting “the use of automatic dialing or `robocall' equipment to establish contact with registered numbers.” The Commission prohibits OADEs from contacting any PSAP number on the PSAP Do-Not-Call registry other than for an emergency purpose. Further, the Commission agrees with commenters who support its proposal that the prohibition should include the use of an autodialer to make text message calls in addition to voice calls to numbers on the PSAP registry.

11.Use of autodialers for emergency calls.Commenters note that government-operated emergency notification systems and specialized personal emergency response services use automated dialing systems to route calls to the appropriate PSAP when a need for public safety services has been verified. These systems are used by government and personal emergency response entities to convey emergency information, for example, the location of an automobile accident. The record confirms that these emergency calls have contributed to significant improvements in public safety as well as in emergency response efforts, and the Commission therefore believes they should be exempted from the prohibition on autodialer-initiated calls to PSAP numbers.

12. The Commission agrees with commenters that these emergency calls should not be prohibited under our new rules and note that no commenter opposes this conclusion. Section 6507(b)(5) of the Tax Relief Act requires the Commission to establish rules prohibiting autodialed calls to registered PSAP numbers. In contrast to analogous sections of the TCPA, however, the Tax Relief Act does not prohibit such autodialed calls directly. Instead, the Tax Relief Act gives the Commission discretion to define the precise scope of the prohibition. In defining the scope, the Commission is informed by public safety objectives underlying section 6507 of the Tax Relief Act. In addition, section 6003 of the Tax Relief Act directs the Commission to implement and enforce section 6507 of the Tax Relief Act as though it were part of the Communications Act. Therefore, the Commission interpretation is also informed by the principles of the Communications Act, which includes promoting “the safety of life and property through the use of wire and radio communication services.” Moreover, the Commission believes it is consistent with the intent of section 6507 of the Tax Relief Act and in the public interest to recognize an exception for autodialed emergency purpose calls which promote public safety. Stated differently, the Commission believes that banning autodialed emergency calls to PSAPs would be inconsistent with section 6507 of the Tax Relief Act's goal of improving PSAPs' ability to respond to emergencies.

13. For purposes of the PSAP registry, the Commission adopts the existing definition in its rules, as set forth in the TCPA context, and defines an “emergency purpose” as a “call made necessary in any situation affecting the health or safety of consumers.”

14.Definitions.As noted above, the Tax Relief Act does not define “automatic dialing” or “robocall” equipment. The Commission believes, however, that these terms are equivalent to “automatic telephone dialing system” as defined in the TCPA and commonly referred to as “robocalling” equipment. Specifically, the TCPA defines “automatic telephone dialing system” as equipment “which has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator; and to dial such numbers.” The Commission has emphasized that this definition covers any equipment that has the specified capacity to generate numbers and dial them without human intervention whether or not the numbers called actually are randomly or sequentially generated or come from a calling list. The Commission adopts the TCPA's definition of automatic telephone dialing system and the Commission's relevant interpretations of that term, for purposes of defining “automatic dialing” and “robocall” equipment as used in the Tax Relief Act.

15.Monetary penalties.Section 6507(c) of the Tax Relief Act directs the Commission to establish specific monetary penalties for disclosure or dissemination of registered numbers by parties granted access to the registry and for the use of automatic dialing or “robocall” equipment to establish contact with registered numbers. For disclosure or dissemination of registered numbers, section 6507(c)(1) of the Tax Relief Act requires the Commission to establish monetary penalties that are “not less than $100,000 per incident nor more than $1,000,000 per incident.” For use of automatic dialing equipment to contact numbers on the registry, section 6507(c)(2) of the Tax Relief Act requires the Commission to establish monetary penalties that are “not less than $10,000 per call nor more than $100,000 per call.” Because Congress has specifically prescribed the monetary penalties associated with violations of section 6507 of the Tax Relief Act and related regulations, the Commission codifies these penalties in its rules. Therefore, the Commission amends § 1.80 of the Commission's rules governing forfeiture proceedings and forfeiture amounts to incorporate these prescribed amounts.

16. Section 6507(c)(3) of the Tax Relief Act requires the Commission to set amounts within these ranges depending “upon whether the conduct leading to the violation was negligent, grossly negligent, reckless, or willful, and depending on whether the violation was a first or subsequent offence.” Because the Tax Relief Act does not define these terms, the Commission finds it reasonable, to the extent that the it has defined such terms in an enforcement context, to use those definitions for purposes of the Tax Relief Act. For example, section 503(b)(1) of the Communications Act authorizes the Commission to impose forfeitures for “willful” violations. Section 312(f)(1) of the Communications Act defines “willful” as the “conscious and deliberate commission or omission of [any] act, irrespective of any intent to violate” the law. The legislative history to section 312(f)(1) of the Communications Act clarifies that this definition of willful applies to both sections 312 and 503(b) of the Communications Act, and the Commission has so interpreted the term in the section 503(b) context. In addition, section 503(b)(2)(E) of the Communications Act and § 1.80(b)(6) of the Commission's rules set forth the factors to be considered when determining the amount of forfeiture penalties. Specifically, these provisions require that the Commission “take into account the nature, circumstances, extent and gravity of the violation and, with respect to the violator, the degree of culpability, any history of prior offenses, ability to pay, and such other matters as justice may require.” The Commission believes these provisions are broad enough to encompass the factors necessary to distinguish between negligent, grossly negligent, reckless or willful conduct, as used in the Tax Relief Act, without the need for further clarification on this point in its rules. The Commission will determine the nature of the violation on a case-by-case basis, consistent with Commission precedent.

17.Process for imposing monetary penalties.The Commission concludes that section 6507(c) of the Tax Relief Act is ambiguous on the question of whether the Commission must issue a citation to a non-regulatee violator before it may impose a monetary forfeiture for violation of section 6507 of the Tax Relief Act. On one hand, section6003 of the Tax Relief Act indicates that the enforcement provisions in Title V of the Communications Act, which include a citation requirement in some instances, should generally be applied in addressing violations of section 6507. At the same time, though, section 6507 of the Tax Relief Act addresses the appropriate monetary penalty for a first offence, which does not appear to contemplate the issuance of a citation. In light of this ambiguity, the Commission look to the legislative history and policies underlying the citation requirement and conclude that the most reasonable construction of these statutory provisions is to interpret section 6507(c)(3)'s “first offence” language to apply only where section 503 of the Communications Act permits a monetary penalty for a first offence (i.e.,where the violator is a Commission regulatee). As the Commission previously has concluded, “the legislative history indicates that the initial warning approach of section 503(b)(5) of the Communications Act was included in the amendments to protect those persons who might not reasonably know they were engaging in an activity regulated by the Commission.” The Commission note that entities subject to enforcement for violations of the PSAP Do-Not-Call requirements include not only those entities governed by comparable Do-Not-Call requirements under the TCPA (which is also enforced subject to section 503(b)(5) of the Communications Act's citation requirement), but also other entities not subject to those regulations. In the case of violations of the PSAP Do-Not-Call requirements by a non-regulatee, the Commission therefore concludes that the section 503 of the Communications Act citation requirement applies. The Commission note, however, that the prior issuance of such a citation can be used as a basis both for imposing a higher penalty for subsequent offences and for imposing a forfeiture for the earlier violation at the same time. The Commission base the latter conclusion on the legislative history of section 503 of the Communications Act, which indicates that once an entity has received a citation, “if he or she thereafter engaged in the conduct for which the citation of violation was sent [] a notice of liability [could] be issued. In such an event, forfeiture liability would attach not only for the conduct occurring subsequently but also for the conduct for which the citation of violation was originally sent.” Thus, although there may be some instances, such as when the statute of limitations on the first violation has run, where the forfeiture may only be issued as to the subsequent violations, that will not always be the case. In those cases where the statute of limitations has expired, the Commission may nevertheless consider the first offence to support imposition of a higher monetary penalty for subsequent offences by a non-regulatee. As commenters suggest, the Commission believes that this interpretation will provide non-regulatees that may be less familiar with its rules with an opportunity to take corrective action before imposition of substantial monetary penalties required under section 6507(c) of the Tax Relief Act, while still taking first offences into consideration in imposing monetary penalties for subsequent violations.

18.Safe Harbor.The Commission concludes that numbers on the PSAP registry require a higher level of protection from unlawful automated calls than the residential telephone numbers on the National DNC registry. In addition, section 6507(c)(3) of the Tax Relief Act contemplates monetary penalties even for negligent conduct. Therefore, the Commission declines to adopt a safe harbor from our prohibition on using autodialers to contact registered PSAP numbers. As discussed above, OADEs are required to access the registry of PSAP numbers and update their calling lists to delete registered PSAP numbers no later than every 31 days. Therefore, any numbers added to the registry in the 31 day period following such a required update will not be subject to a violation of these rules because they will not be reflected in the OADE's download of the PSAP registry until the next required update.

19. As required by the Regulatory Flexibility Act of 1980, as amended, (RFA) an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the Notice of Proposed Rulemaking (PSAP Do-Not-Call NPRM) released by the Commission on May 22, 2012. The Commission sought written public comments on the proposals contained in the PSAP Do-Not-Call NPRM, including comments on the IRFA. None of the comments filed in this proceeding were specifically identified as comments addressing the IRFA; however, comments that address the impact of the proposed rules and policies on small entities are discussed below. This present Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA.

20. The “Middle Class Tax Relief and Job Creation Act of 2012” requires the Commission to establish a registry that allows PSAPs to register telephone numbers on a Do-Not-Call list and prohibits the use of automatic dialing or “robocall” equipment to contact those numbers. This requirement is designed to address concerns about the use of autodialers, which can generate large numbers of phone calls, tie up public safety lines, and divert critical responder resources away from emergency services. Document FCC 12-129 adopts rules to implement this statutory requirement as set forth in section 6507 of Tax Relief Act.

21. No comments were raised directly in response to the IRFA. Some commenters, however, raised issues concerning the impact of the proposed rules on small entities.

22.PSAPs.Commenters representing public safety and PSAPs request that the Commission design flexible requirements to minimize compliance burdens on such entities when compiling and submitting numbers onto the PSAP registry. The Commission has complied with this request by formulating flexible requirements which allow the PSAP to designate a person of their own choosing to submit numbers onto the registry. This designated representative will be required to provide certain basic contact information and be subject to verification by the Commission or the administrator of the registry. The Commission believes this requirement imposes minimal burdens while taking measures to ensure that only verified PSAP numbers are downloaded onto the PSAP registry. In addition, some commenters request that PSAPs only be required to access and verify the numbers contained on the registry each seven years. However, the Commission believes that it is necessary for a more frequent review to occur to ensure the ongoing accuracy of the registry. Therefore, the Commission requires that this review take place on an annual basis. To aid PSAPs in the process, they will be sent an annual reminder.

23.Autodialer Operators.Several commenters suggest that the Commission formulate its rules relating to the PSAP registry along the same lines as those applicable to the National Do-Not-Call registry. These commenters note that such regulatory consistencywill build upon existing knowledge and systems designed for compliance with the National DNC registry and, therefore, result in minimizing burdens that would result if such rules differ. To the extent possible, the Commission has followed the existing National DNC model and adopted requirements that are consistent with those requirements. A few commenters suggested that the Commission require a citation before issuing a monetary fine for violations of section 6507 of the Tax Relief Act by non-regulatees and/or adopt a safe harbor to protect against inadvertent violations. These commenters suggest that many entities subject to the rules contained herein may not be as familiar as Commission regulatees which necessitate some form of protection from substantial monetary penalties. The Commission adopts this statutory interpretation as it relates to the provision of a citation to non-regulatees. As discussed at length in document FCC 12-129, the statutory requirements are ambiguous on this issue. However, the Commission believes the most reasonable statutory construction is to require citations for first offences by non-regulatees and take such first offences into consideration when determining monetary penalties for subsequent violations.

24. The RFA directs agencies to provide a description of, and where feasible, an estimate of the number of small entities that will be affected by the proposed rules, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. Under the Small Business Act, a “small business concern” is one that: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) meets any additional criteria established by the Small Business Administration (SBA).

25. In general, the Commission's rule prohibiting the use of automatic dialing equipment to contact numbers on the PSAP Do-Not-Call registry apply to a wide range of entities. The rules, in particular, would apply to all operators of automatic dialing equipment. Therefore, the Commission expects that the requirements adopted in this proceeding could have a significant economic impact on a substantial number of small entities. Determining the precise number of small entities that would be subject to the requirements in the document FCC 12-129, however, is not readily feasible. Below, the Commission has described some current data that are helpful in describing the number of small entities that might be affected by its action.

26. Nationwide, there are a total of approximately 29.6 million small businesses, according to the SBA. A “small organization” is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” Nationwide, as of 2007, there were approximately 1.6 million small organizations.

27.Small Businesses, Small Organizations, and Small Governmental Jurisdictions.The Commission's action may, over time, affect small entities that are not easily categorized at present. The Commission therefore describes here, at the outset, three comprehensive, statutory small entity size standards that encompass entities that could be directly affected by the rules adopted in document FCC 12-129. As of 2009, small businesses represented 99.9% of the 27.5 million businesses in the United States, according to the SBA. Additionally, a “small organization” is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” Nationwide, as of 2007, there were approximately 1,621,315 small organizations. Finally, the term “small governmental jurisdiction” is defined generally as “governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” Census Bureau data for 2007 indicate that there were 89,527 governmental jurisdictions in the United States. The Commission estimate that, of this total, as many as 88,761 entities may qualify as “small governmental jurisdictions.” Thus, the Commission estimates that most governmental jurisdictions are small.

28.Telemarketing Bureaus and Other Contact Centers.According to the Census Bureau, this economic census category “comprises establishments primarily engaged in operating call centers that initiate or receive communications for others-via telephone, facsimile, email, or other communication modes-for purposes such as (1) promoting clients' products or services, (2) taking orders for clients, (3) soliciting contributions for a client; and (4) providing information or assistance regarding a client's products or services.” The SBA has developed a small business size standard for this category, which is: all such entities having $7 million or less in annual receipts. According to Census Bureau data for 2007, there were 2,100 firms in this category that operated for the entire year. Of this total, 1,885 firms had annual sales of under $5 million, and an additional 145 had sales of $5 million to $9,999,999. Thus, the majority of firms in this category can be considered small.

29. The Tax Relief Act requires the Commission to establish a Do-Not-Call registry for PSAPs. The Act specifies that PSAPs will be permitted to register telephone numbers on this registry. This allows PSAPs or their designated representatives to review their current telephone numbers and then provide those numbers to the administrator of the registry for inclusion on the PSAP Do-Not-Call registry. This will necessitate some administrative functions such as designating a representative to provide contact information on behalf of the PSAP and to obtain a unique number or password used to upload numbers onto the registry. In addition, the PSAP must develop a process to verify on an annual basis that the registered numbers should continue to appear on the registry. This will require PSAPs to check and verify at least once a year which numbers should continue to be included on the registry.

30. The Tax Relief Act also prohibits the use of automatic dialing or “robocall” equipment to contact numbers listed on the Do-Not-Call registry. As a result, operators of automatic dialing equipment will be required to check the registry and update their calling systems no later than each 31 days to ensure that they do not contact any telephone number listed on the PSAP Do-Not-Call registry. In order to access the registry, operators of automatic dialing equipment will be required to provide contact information and certify that they will not use the telephone numbers for any purpose other than compliance with this Act. In addition, OADEs will need to develop a process to ensure that the list of registered numbers obtained from the PSAP Do-Not-Call registry is not disclosed or disseminated for any purpose other than compliance with the Tax Relief Act. Such a process may entail training personnel, recording access to such information in a secure manner, and updating automatic dialing systems to ensure that such equipmentis not used to contact numbers on the PSAP registry.

31. Many operators of automatic dialing equipment subject to the Commission's rules are familiar with the rules adopted for compliance with the TCPAs analogous prohibitions on use the autodialers and the National Do-Not Call registry. Therefore, the Commission has adopted similar requirements herein to reduce compliance burdens and confusion. For example, the Commission has adopted the TCPA's definition of an autodialer and “emergency purpose” for use in this context of the PSAP registry. In addition, the Commission has adopted the same requirement that callers update and scrub any numbers listed on the PSAP registry no later than every 31 days; the same time frame which is required for the National Do-Not-Call registry. As part of the process to access the PSAP registry, the Commission has required OADEs to provide certain information including all telephone numbers used to place autodialed calls. A few commenters indicated that the provision of this information might be burdensome. The Commission concluded, however, that this information is necessary to trace the calling party in investigating any potential violation of its rules. In addition, the Commission provides substantial flexibility to PSAPs to determine which numbers they wish to upload onto the registry. The Commission requires PSAPs to check the registry on an annual basis to ensure that the numbers they have registered should remain on that registry. A few commenters suggested an alternative approach which would have required PSAPs to check the registry once only every seven years. The Commission concluded, however, that an annual review better ensures the accuracy of the database while imposing minimal burdens on the PSAP.

32. Pursuant to sections 1, 2, 4(i), 227, and 503 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i), 227, 503, and sections 6003 and 6507 of the Middle Class Tax Relief and Job Creation Act of 2012, that document FCC 12-129is adopted.

33. The Consumer and Governmental Affairs Bureau and Office of the Managing Director are delegated authority to take actions necessary to resolve any operational or administrative details relating to the Public Safety Answering Point Do-Not-Call registry including an announcement of the effective compliance date once the PSAP Do-Not-Call registry has become operational.

34. The Consumer and Governmental Affairs Bureau set an effective date of no less than six months after publication of a Public Notice announcing the date by which interested parties must begin compliance with the requirements adopted herein.

35. The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center,shall senda copy of document FCC 12-129, including the Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

For the reasons discussed in the preamble, the Federal Communications Commission amends parts 1 and 64 as follows: