On August 26, 2010, Turbomeca applied for type certification for a new model Arriel 2D turboshaft engine. This engine consists of an axial air intake, an axial compressor and a centrifugal compressor driven by a single-stage turbine, a direct-flow annular combustion chamber, and a single-stage free turbine which drives a reduction gear assembly located at the rear end. The accessory gearbox, located at the front end, is driven by the gas generator turbine.

The engine will incorporate a novel or unusual design feature, which is a 30-minute power rating. This rating was requested by the applicant to support rotorcraft search and rescue missions that require extensive operations at high power. This type of rating is generally associated with multi-engine applications and has usually been named an all-engine-operating (AEO) rating. However, this model will be installed on a single engine rotorcraft, and the rating name for the purpose of this special condition is now 30-minute power rating. The number of times this new rating can be used during a flight is not intended to be limited.

The applicable airworthiness standards do not contain adequate or appropriate airworthiness standards to address this design feature. Therefore, a special condition is necessary to apply additional requirements for rating definition, instructions for continued airworthiness (ICA), and endurance testing. The 30 minute time limit applies to each instance the rating is used; however there is no limit to the number of times the rating can be used during any one flight, and there is no cumulative time limitation. The ICA requirement is intended to address the unknown nature of actual rating usage and associated engine deterioration. The applicant is expected to make an assessment of the expected usage and publish ICAs and ALS limits in accordance with those assumptions, such that engine deterioration is not excessive. The endurance test requirement of 25 hours operation at 30 minute rating is similar to several special conditions issued over the past 20 years addressing the same subject. It must be noted that test time required for the takeoff rating may not be counted toward the 25 hours of operation required for the 30-minute rating.

These special conditions contain the additional airworthiness standards necessary to establish a level of safety equivalent to the level that would result from compliance with the applicable standards of airworthiness in effect on the date of application.

Under the provisions of 14 CFR 21.17(a) and 21.101(a), Turbomeca must show that the model Arriel 2D turboshaft engine meets the provisions of the applicable regulations in effect on the date of application, unless otherwise specified by the FAA. The current certification basis for engines in this model series varies, being either 14 CFR part 33, Amendment 14 or Amendment 15. Turbomeca proposes a certification basis of part 33, Amendment 15. In accordance with § 21.101(b), the FAA concurs with the Turbomeca proposal. Therefore, the certification basis for the Turbomeca Arriel 2D will be part 33, effective February 1, 1965, as amended by Amendments 33-1 through 33-15 inclusive. The FAA has determined that the applicable airworthiness regulations (part 33, Amendments 1-15 inclusive) do not contain adequate or appropriate safety standards for the model Arriel 2D turboshaft engine, because of a novel or unusual rating. Therefore, special conditions are prescribed under the provisions of 14 CFR 11.19 and 14 CFR 21.16.

The FAA issues special conditions, as defined by 14 CFR 11.19, in accordance with 14 CFR 11.38, which become part of the type certification basis in accordance with § 21.17(a)(2) and (b).

Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include another related model that incorporates the same or similar novel or unusual design feature, or should any other model already included on the same type certificate be modified to incorporate the same or similar novel or unusual design feature, the special conditions would also apply to the other model.

The Turbomeca (TM) model Arriel 2D turboshaft engine will incorporate a novel or unusual design feature which is a 30-minute power rating, for use up to 30 minutes at any time between the take-off and landing phases of a flight. This design feature is considered to be novel and unusual relative to the part 33 airworthiness standards.

Notice of proposed special conditions, Notice No. 33-11-01-SC for the Arriel 2D engine model was published on April 1, 2011 (76 FR 18130). One comment letter was received.

The commenter agreed with the special conditions for the Arriel 2D model only; and only as driven by program needs and because the engine is already compliant via similar requirements applied during EASA type certification. The commenter expressed several technical and regulatory disagreements with the special conditions, which are discussed below.

The commenter stated disagreement with the special condition requirement of incorporating 25 hours of operation at the 30 minute rating into the § 33.87 test profile. The commenter proposed to take credit for the 30 minute periods run at takeoff rating that is part of the normal test profile required by § 33.87(b), thereby reducing the amount of test time at the new 30 minute rating. The FAA does not agree. The takeoff rating and other normal ratings are defined within 14 CFR part 1, and the associated requirements can be found in part 33. Takeoff rating is limited in use to a continuous period of not more then 5 minutes during takeoff operations. The existing § 33.87 requirements are designed to demonstrate engine durability for the takeoff rating which is considered a normal every flight operation, and is independent of any other ratings. The proposed 30 minute rating is not defined within part 33, but has been specifically requested by TM. This new rating can be used for periods of up to 30 minutes at any time during a flight for a variety of normal mission purposes. Also, the number of usages during a single flight is not limited; and its use does not require special maintenance actions.

The new 30 minute rating is intended for normal mission use, similar to takeoff and other normal use ratings, but is different then limited turboshaft one-engine-inoperative (OEI) ratings. The OEI ratings for turboshafts, with the exception of continuous OEI, are for limited use during a flight, and in some cases limited cumulative use. We understand the Arriel 2D model is intended for a single engine application, and therefore has no OEI ratings; however, the FAA finds that the test time associated with the continuous OEI rating is an appropriate baseline to define additional requirements for a normal use 30 minute rating. Therefore, engine durability using this rating must be demonstrated over and above the takeoff rating and other normal use ratings included in the rating structure. Therefore, no changes to the special conditions have been made in this regard.

The commenter also states that the 25 hour requirement is inconsistent with § 33.87 philosophies, stating that time at any rating validates any lower rating. The FAA does not agree. The § 33.87 test requirements are established to demonstrate engine durability at all normal and emergency ratings, and associated limits. The various test profiles incorporate specific elements to this end. The normal ratings all have individual elements that must be performed. The 30 minute rating is also a normal use rating and must also have a specific and independent element as part of the overall test. Any emergency ratings (for example, OEI) must also be demonstrated, however due to their limited use, these elements of the test may overlap certain normal rating elements found in the various test profiles. Therefore, no changes to the special conditions have been made in this regard.

The commenter also states that the basis for 25 hours of required run time was not described in the special condition. The 25 hours was selected to be between the baseline § 33.87 cumulative run time for takeoff rating (18.75 hours) and maximum continuous rating (45 hours). This requirement is weighted more heavily toward the takeoff time due to the definition of the rating and intended operation. Therefore, no changes to the special conditions have been made in this regard.

These special conditions are applicable to the Turbomeca model Arriel 2D turboshaft engine. If Turbomeca applies later for a change to the type certificate to include another closely related model incorporating the same novel or unusual design feature, these special conditions may also apply to that model as well, and would be made part of the certification basis for that model.

This action affects only certain novel or unusual design features on one model of engine. It is not a rule of general applicability, and it affects only the applicant who applied to the FAA for approval of this feature on the engine product.

The authority citation for these special conditions is as follows:

Accordingly, the Federal Aviation Administration (FAA) issues the following special conditions as part of the type certification basis for the Turbomeca model Arriel 2D turbo shaft engine.

1. PART 1 DEFINITION. Unless otherwise approved by the Administrator and documented in the appropriate manuals and certification documents, the following definition applies to this special condition: “Rated 30 Minute Power”, means the approved shaft horsepower developed under static conditions at the specified altitude and temperature, and within the operating limitations established under part 33, and limited in use to periods not exceeding 30 minutes each.

2. PART 33 REQUIREMENTS.

(a) Sections 33.1 Applicability and 33.3 General: As applicable, all documentation, testing and analysis required to comply with the part 33 certification basis, must account for the 30 minute rating, limits and usage.

(b) Section 33.4, instructions for continued airworthiness (ICA). In addition to the requirements of § 33.4, the ICA must:

(1) Include instructions to ensure that in-service engine deterioration due to rated 30 minute power usage will not be excessive, meaning that all other approved ratings are available within associated limits and assumed usage, for successive flights; and that deterioration will not exceed that assumed for declaring a time between overhaul (TBO) period.

(i) The applicant must validate the adequacy of the maintenance actions required under paragraph (b)(1) above.

(2) Include in the airworthiness limitations section (ALS), any mandatory inspections and serviceability limits related to the use of the 30-minute rating.

(c) Section 33.87, Endurance Test. In addition to the requirements of §§ 33.87(a) and 33.87(b), the overall test run must include a minimum of 25 hours of operation at 30 minute power and limits, divided into periods of 30 minutes power with alternate periods at maximum continuous power or less.

(1) Modification of the § 33.87 test requirements to include the 25 hours of operation at 30-minute power rating, must be proposed by the Applicant and accepted by the FAA. Note that the test time required for the takeoff rating may not be counted toward the 25 hours of operation required for the 30-minute rating.

On March 23, 2011, the FAA published in the Federal Register a notice of proposed rulemaking to amend Class E airspace for Duluth, MN, creating additional controlled airspace at Duluth International Airport (76 FR 16348) Docket No. FAA-2011-0123. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received. Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9U dated August 18, 2010, and effective September 15, 2010, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

This action amends Title 14 Code of Federal Regulations (14 CFR) Part 71 by amending Class E airspace, as an extension to a Class D or Class E surface area; and Class E airspace extending upward from 700 feet above the surface, for new standard instrument approach procedures at Duluth International Airport, Duluth, MN. This action is necessary for the safety and management of IFR operations at the airport. Geographic coordinates will also be updated to coincide with the FAA's aeronautical database.

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

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

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

I. Background

Title 19, Code of Federal Regulations (CFR), sets forth at Part 122 the regulations relating to the entry and clearance of aircraft in international commerce and the transportation of persons and cargo by aircraft in international commerce.

Generally, a civil aircraft arriving from a place outside of the United States is required to land at an airport designated as an international airport. Alternatively, the pilot of a civil aircraft may request permission to land at a specific airport, and, if landing rights are granted, the civil aircraft may land at that landing rights airport.

Section 236 of Public Law 98-573 (the Trade and Tariff Act of 1984), codified at 19 U.S.C. 58b, created an option for civil aircraft desiring to land at an airport other than an international airport or a landing rights airport. A civil aircraft arriving from a place outside of the United States may ask for permission to land at an airport designated by the Secretary of Homeland Security as a user fee airport.

Pursuant to 19 U.S.C. 58b, an airport may be designated as a user fee airport if the Commissioner of CBP as delegated by the Secretary of Homeland Security determines that the volume of business at the airport is insufficient to justify customs services at the airport and the governor of the state in which the airport is located approves the designation. Generally, the type of airport that would seek designation as a user fee airport would be one at which a company, such as an air courier service, has a specialized interest in regularly landing.

As the volume of business anticipated at this type of airport is insufficient to justify its designation as an international or landing rights airport, the availability of customs services is not paid for out of appropriations from the general treasury of the United States. Instead, customs services are provided on a fully reimbursable basis to be paid for by the user fee airport on behalf of the recipients of the services.

The fees which are to be charged at user fee airports, according to the statute, shall be paid by each person using the customs services at the airport and shall be in the amount equal to the expenses incurred by the Commissioner of CBP in providing customs services which are rendered to such person at such airport, including the salary and expenses of those employed by the Commissioner of CBP to provide the customs services. To implement this provision, generally, the airport seeking the designation as a user fee airport or that airport's authority agrees to pay a flat fee for which the users of the airport are to reimburse the airport/airport authority. The airport/airport authority agrees to set and periodically review the charges to ensure that they are in accord with the airport's expenses.

The Commissioner of CBP designates airports as user fee airports pursuant to 19 U.S.C. 58b. If the Commissioner decides that the conditions for designation as a user fee airport are satisfied, a Memorandum of Agreement (MOA) is executed between the Commissioner of CBP and the local responsible official signing on behalf of the state, city or municipality in which the airport is located. In this manner, user fee airports are designated on a case-by-case basis. The regulation pertaining to user fee airports is 19 CFR 122.15. It addresses the procedures for obtaining permission to land at a user fee airport, the grounds for withdrawal of a user fee designation and includes the list of user fee airports designated by the Commissioner of CBP in accordance with 19 U.S.C. 58b. Periodically, CBP updates the list of user fee airports at 19 CFR 122.15(b) to reflect those that have been recently designated by the Commissioner. On November 18, 2010, the Commissioner signed an MOA approving the designation of user fee status for Naples Municipal Airport. This document updates the list of user fee airports by adding Naples Municipal Airport, in Naples, Florida, to the list.

Because this amendment merely updates the list of user fee airports to include an airport already designated by the Commissioner of CBP in accordance with 19 U.S.C. 58b and neither imposes additional burdens on, nor takes away any existing rights or privileges from, the public, pursuant to 5 U.S.C. 553(b)(B), notice and public procedure are unnecessary, and for the same reasons, pursuant to 5 U.S.C. 553(d)(3), a delayed effective date is not required.

Because no notice of proposed rulemaking is required, the provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) do not apply. This amendment does not meet the criteria for a “significant regulatory action” as specified in Executive Order 12866.

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

The rule will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.

This document is limited to technical corrections of CBP regulations. Accordingly, it is being signed under the authority of 19 CFR 0.1(b).

Part 122, Code of Federal Regulations (19 CFR part 122) is amended as set forth below:

On April 11, 2011, we published a notice of proposed rulemaking (NPRM) entitled “Special Local Regulations for Marine Events; Patapsco River, Northwest Harbor, Baltimore, MD” in the Federal Register (76 FR 69). We received no comments on the proposed rule. No public meeting was requested, and none was held.

On June 25, 2011, Baltimore Dragon Boat Club, Inc. will sponsor Dragon Boat Races in the Patapsco River, Northwest Harbor, at Baltimore, MD. The event will consist of approximately 15 teams rowing Chinese Dragon Boats in heats of 2 or 3 boats for a distance of 500-meters. Due to the need for vessel control during the event, the Coast Guard will temporarily restrict vessel traffic in the event area to provide for the safety of participants, spectators, and other transiting vessels.

The Coast Guard received no comments in response to the NPRM. No public meeting was requested and none was held.

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

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders. Although this regulation will prevent traffic from transiting a portion of the Patapsco River during the event, the effect of this regulation will not be significant due to the limited duration that the regulated area will be in effect and the extensive advance notifications that will be made to the maritime community via the Local Notice to Mariners and marine information broadcasts, so mariners can adjust their plans accordingly. Additionally, the regulated area has been narrowly tailored to impose the least impact on general navigation yet provide the level of safety deemed necessary. Vessel traffic will be able to transit the regulated area at slow speed between heats, when the Coast Guard Patrol Commander deems it safe to do so.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule may affect the following entities, some of which might be small entities: the owners or operators of vessels intending to transit or anchor in the effected portions of the Patapsco River during the event.

Although this regulation prevents traffic from transiting a portion of the Patapsco River, Northwest Harbor during the event, this proposed rule will not have a significant economic impact on a substantial number of small entities for the following reasons. This proposed rule would be in effect for only a limited period. Vessel traffic will be able to transit the regulated area between heats, when the Coast Guard Patrol Commander deems it safe to do so. Before the enforcement period, we will issue maritime advisories so mariners can adjust their plans accordingly.

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

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

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

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

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2-1, paragraph (34)(h), of the Instruction. This rule involves implementation of regulations within 33 CFR Part 100 applicable to organized marine events on the navigable waters of the United States that could negatively impact the safety of waterway users and shore side activities in the event area. The category of water activities includes but is not limited to sail boat regattas, boat parades, power boat racing, swimming events, crew racing, canoe and sail board racing. An environmental analysis checklist and a categorical exclusion determination are available in the docket where indicated under ADDRESSES .

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

Regulatory Information

On Monday, January 10, 2011, we published a notice of proposed rulemaking (NPRM) entitled Special Local Regulation; Olympia Harbor Days Tug Boat Races, Budd Inlet, WA in the Federal Register (76 FR 006). We did not receive any comments on the proposed rule. We did not receive any requests for a public meeting and a public meeting was not held.

The Coast Guard is establishing a special local regulation to enable vessel movement restrictions within the navigation channel and an area extending north of the channel in Budd Inlet, WA during the annual Olympia Harbor Days tug boat races. Tug boat races typically result in vessel and spectator congestion in the proximity of the race course. The draft of these vessels creates a large wake when accelerating at fast speeds such as during races. Vessel movement restrictions are necessary to ensure spectators remain an adequate distance from the specified race area thereby providing unencumbered access for emergency response craft in the event of a race-related emergency. This rule establishes a specified race area and ensures the safety of this marine event by prohibiting persons and vessel operators from entering, transiting or remaining within the designated race zone during times of enforcement.

Olympia Harbor Days is an annual tug boat race in Budd Inlet, WA involving different classes of tug boat races. Each class of vessel will compete in a heat which will take place within the navigation channel. This rule creates a special local regulation to restrict vessel movement within the race area to include the navigational channel and an area extending north of the channel in Budd Inlet, WA during each heat of racing. The event sponsor and event sponsor patrol craft located at the extremities of this race area will delineate the boundaries of the specified race area. The event sponsor will assist the COTP in informing the maritime public of vessel movement restrictions in the specified race area during this annual event.

The notice of proposed rulemaking for this rule did not receive any comments. Paragraph (d) was changed slightly to clarify the nature of the restriction; that the regulated area is only enforced at times announced in the Federal Register by the Captain of the Port.

The Coast Guard will enforce the special local regulation in 33 CFR 100.1309 from 12 noon to 8 p.m. on September 4, 2011.

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

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders. This rule is not a significant regulatory action because it is located in an isolated area, short in duration and vessels will be able to transit the navigation channel between heats of racing.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

This rule will affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit this zone during periods of enforcement. This rule will not have a significant economic impact on a substantial number of small entities for the following reasons. This rule will be enforced for a short duration and vessels will be able to navigate the channel between heats with the permission of the on-scene patrol commander (the event sponsor).

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

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

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

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

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2-1, paragraph (34)(g.) of the Instruction. This rule involves tug boat racing by various classes of tugboats in Budd Inlet, WA. An environmental analysis checklist and a categorical exclusion determination are available in the docket where indicated under ADDRESSES .

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

The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because delaying the effective date would be contrary to the public interest since immediate action is needed to ensure the public's safety during the 35th Annual Norfolk Harborfest Celebration.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date would be contrary to the public interest since immediate action is needed to ensure the public's safety during 35th Annual Norfolk Harborfest Celebration.

Marine events are frequently held on the navigable waters within the boundary of the Fifth Coast Guard District. The on water activities that typically comprise marine events include sailing regattas, power boat races, swim races and holiday boat parades. For a description of the geographical area of each Coast Guard Sector—Captain of the Port Zone, please see 33 CFR 3.25.

This regulation temporarily changes the enforcement period of special local regulations for recurring marine events within the Fifth Coast Guard District. This regulation applies to one marine event found in 33 CFR 100.501, Line 37 of Table to § 100.501. The current enforcement period is June 1, 2, and 3.

On June 10, 11, and 12, 2011, Norfolk Festevents Ltd. will sponsor the “35th Annual Norfolk Harborfest Celebration” on the waters of the Southern Branch of the Elizabeth River near Norfolk, Virginia. The regulation at 33 CFR 100.501 is effective annually for this marine event. The event will consist of several boat races and parades on the Southern Branch of the Elizabeth River in the vicinity of Town Point Beach, Norfolk, Virginia. A fleet of spectator vessels is expected to gather near the event site to view the competitions. To provide for the safety of participants, spectators, support and transiting vessels, the Coast Guard will temporarily restrict vessel traffic in the event area during the river boat races and parade. The regulation at 33 CFR 100.501 will be enforced for the duration of the event. Under provisions of 33 CFR 100.501, on June 10, 11, and 12, 2011, vessels may not enter the regulated area unless they receive permission from the Coast Guard Patrol Commander.

The Coast Guard is temporarily changing the dates for an established special local regulation for marine events on specified waters of the Southern Branch, Elizabeth River, near Norfolk, Virginia. The regulated area will be established in the interest of public safety during the 35th Annual Norfolk Harborfest Celebration, and will be enforced on June 10, 11, and 12, 2011. Access to the regulated area will be restricted during the specified dates or until the river boat races and parades are complete, whichever is sooner. Except for participants and vessels authorized by the Captain of the Port or his Representative, no person or vessel may enter or remain in the regulated area.

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

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under that those Orders. Although this rule prevents traffic from transiting a portion of certain waterways during specified events, the effect of this regulation will not be significant due to the limited duration that the regulated area will be in effect and the extensive advance notifications that will be made to the maritime community via marine information broadcasts, local radio stations and area newspapers so mariners can adjust their plans accordingly. Additionally, this rulemaking does not change the permanent regulated areas that have been published in 33 CFR 100.501, Table to § 100.501. In some cases vessel traffic may be able to transit the regulated area when the Coast Guard Patrol Commander deems it is safe to do so.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

This rule would affect the following entities, some of which might be small entities: The owners or operators of vessels intending to transit or anchor in the areas where marine events are being held. This regulation will not have a significant impact on a substantial number of small entities because it will be enforced only during marine events that have been permitted by the Coast Guard Captain of the Port. The Captain of the Port will ensure that small entities are able to operate in the areas where events are occurring when it is safe to do so. In some cases, vessels will be able to safely transit around the regulated area at various times, and, with the permission of the Patrol Commander, vessels may transit through the regulated area. Before the enforcement period, the Coast Guard will issue maritime advisories so mariners can adjust their plans accordingly.

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

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

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

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

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2-1, paragraph (34)(h), of the Instruction. This rule involves implementation of regulations within 33 CFR Part 100 that apply to organized marine events on the navigable waters of the United States that may have potential for negative impact on the safety or other interest of waterway users and shore side activities in the event area. The category of water activities includes but is not limited to sail boat regattas, boat parades, power boat racing, swimming events, crew racing, and sail board racing. An environmental analysis checklist and a categorical exclusion determination will be available in the docket where indicated under ADDRESSES .

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

On February 15, 2011, we published a notice of proposed rulemaking (NPRM) entitled Drawbridge Operation Regulation; Atlantic Intracoastal Waterway (AIWW), at Wrightsville Beach, NC; Cape Fear and Northeast Cape Fear River, at Wilmington, NC in the Federal Register (76 FR 8663). We received no comments on the proposed rule. No public meeting was requested, and none was held.

The Beach2Battleship Iron and 1/2 Iron distance Triathlon competition is an annual event that is held in the Wrightsville Beach and Wilmington, NC area in late October or early November. The swimming portion of this triathlon is tide dependent and so it is difficult to determine the exact date to best hold the event.

The Battleship North Carolina Half Marathon & 5K is another annual event that occurs in the Wrightsville Beach and Wilmington, NC area on the second Sunday of every November. Because of the uncertainty of the tides and consequently the exact date for the Beach2Battleship Iron and 1/2 Iron distance Triathlon competition, the Battleship Race group has agreed to schedule their race on the opposing weekend of the Iron Man competition.

As with the Iron Man race, the exact date of the closure will be published locally in the Local Notice to Mariners and the Broadcast Notice to Mariners. The local community has become accustomed to these annual events and the bridge closures that are necessary for them.

The S.R. 74 Bridge is a double leaf bascule drawbridge with a vertical clearance of 20 feet at mean high water in the closed position. The current operating schedule for the bridge is set out in 33 CFR 117.821(a)(4). This rule change will not affect the current operation of the bridge but add an additional closure period.

The regulatory change allows the S.R. 74 (Wrightsville Beach) Bridge to remain closed to navigation between 7 a.m. and 10:30 a.m. and to remain closed to navigation between 12 p.m. and 11:59 p.m. on the last Saturday in October or the first or second Saturday in November depending on the tides and the date the event will be held. The exact date of the closure will be published locally in the Local Notice to Mariners and Broadcast Notice to Mariners.

The Cape Fear Memorial Bridge is a vertical lift drawbridge with a vertical clearance of 65 feet at mean high water in the closed position and the Isabel S. Holmes Bridge is a double leaf bascule drawbridge with a vertical clearance of 40 feet at mean high water in the closed position. The current operating schedules for these bridges are set out in 33 CFR 117.823 and 33 CFR 117.829(a)(4), respectively. This regulatory change modifies the existing annual November closure from just the second Sunday in November to the first or second Sunday in November for the Cape Fear Memorial Bridge and the Isabel S. Holmes Bridge. The closure time of 7 a.m. to 11 a.m. for the event for both bridges remains unaffected in this rule. The Isabel S. Holmes Bridge will have an additional regulatory change modification to include a closure from 12 p.m. to 11:59 p.m. on the last Saturday of October or the first or second Saturday of November of every year.

The waterway traffic consists mostly of recreational vessels with some barges and tugs during the daytime. There are no alternative routes available to vessels transiting these waterways. Vessels that can transit under the bridges without an opening may do so at any time. The bridges will be able to open for emergencies.

No comments were received on the proposed rule and no changes were made to the proposed rule.

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

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

The changes are expected to have minimal impact on mariners due to the short duration that the drawbridges will be maintained in the closed position. Both events have been observed in past years with little to no impact to marine or vehicular traffic. It is also a necessary measure to facilitate public safety that allows for the orderly movement of participants and vehicular traffic before, during, and after the races.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which might be small entities: The owners or operators of vessels needing to transit any of the bridges between the hours of closure on either race day.

This action will not have a significant impact on a substantial number of small entities because the rule only adds minimal restrictions to the movement of navigation, and mariners who plan their transits in accordance with the scheduled bridge closures can minimize delay. Vessels that can safely transit under the bridges may do so at any time.

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

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

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

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2-1, paragraph (32)(e), of the Instruction.

Under figure 2-1, paragraph (32)(e), of the Instruction, an environmental analysis checklist and a categorical exclusion determination are not required for this rule.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 117 as follows:

I. Background

Throughout this document, whenever “we,” “us,” or “our” is used, we mean EPA. On December 17, 2010 (75 FR 78949), EPA published a notice of proposed rulemaking (NPR) for the State of West Virginia. The NPR proposed approval of the inclusion of NO X as a precursor to ozone for permits for construction and major modification of major stationary sources of air pollution for PSD. This action will replace the current SIP-approved version of 45CSR14, entitled, Permits for Construction and Major Modification of Major Stationary Sources of Air Pollution for the Prevention of Significant Deterioration. The formal SIP revision was submitted by West Virginia on July 20, 2009.

This SIP revision consists of replacing the current version of 45CSR14 approved by EPA on December 4, 2006 (71 FR 64470) with the regulations which were made effective as a legislative rule in West Virginia on June 1, 2009 and submitted to EPA on July 20, 2009. This revision governs the permitting for the construction of new major stationary sources and the significant modification of existing major stationary sources of air pollutants in areas designated attainment or non-classifiable for the National Ambient Air Quality Standards (NAAQS).

This approval of West Virginia's SIP submission addresses changes needed to ensure consistency with the CAA's part C PSD permit program. This SIP submission also corrects deficiencies identified by EPA in the March 27, 2008 Federal Register action entitled, “Completeness Findings for Section 110(a) State implementation Plans for the 8-hour Ozone National Ambient Air Quality Standards (1997 Ozone NAAQS)” (73 FR 16205). EPA's approval of this SIP submission addresses West Virginia's compliance with the portion of CAA Section 110(a)(2)(C) & (J) relating to the Part C permit program for the 1997 Ozone NAAQS, because this action would approve regulating NO X as a precursor to ozone in West Virginia's SIP in accordance with the Federal Register action dated November 29, 2005 (70 FR 71612) that finalized NO X as a precursor for ozone regulations set forth at 40 CFR 51.166 and in 40 CFR 52.21.

Additionally, in the course of taking action upon the previously approved NSR Reform SIP revision dated December 4, 2006 (71 FR 64470), West Virginia had requested that EPA not act upon certain provisions of 45CSR14.19.8 pertaining to the recordkeeping and reporting requirements for sources that elect to use the actual-to-projected actual emission test and where there is a “reasonable possibility” that a project may result in a significant net emissions increase. Based upon revisions to 45CSR14.19.8, EPA is now approving 45CSR14.19.8 in its entirety into the West Virginia SIP with this action as regulatory corrections have been made to the State's regulations.

The references to pollution control projects (PCPs) and clean units (CUs) were deleted in the West Virginia regulations in accordance with the Federal rulemaking action dated June 13, 2007 (72 FR 32526). These State references to PCPs and CUs are not a part of the currently approved SIP and are, therefore, just being corrected in West Virginia's regulations; as a result of correctly deleting their references, West Virginia's regulations will be consistent with the Federally enforceable provisions.

EPA has determined that the current amendments to West Virginia's PSD permit program at 45CSR14, as submitted on July 20, 2009, meet the minimum requirements of 40 CFR 51.166 and the Clean Air Act. This action will approve these revisions to the West Virginia SIP.

EPA is approving the West Virginia SIP revision submitted on July 20, 2009 which amends 45CSR14 as a revision to the West Virginia SIP. EPA is also making a determination that West Virginia's SIP meets the requirements of CAA Sections 110(a)(2)(C) and (J) relating to the part C permit program for the 1997 Ozone NAAQS. EPA had solicited public comments on these issues discussed in this document in the prior proposed Federal Register action dated December 17, 2010 (75 FR 78949). No adverse comments were received.

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

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

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 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 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. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this 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 the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

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 July 26, 2011. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action to include NO X as a precursor to ozone and the provisions for “reasonable possibility” in West Virginia for permits for construction and major modification of major stationary sources of air pollution for the prevention of significant deterioration may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR part 52 is amended as follows:

I. Does this action apply to me?

You may be affected by this action if you manufacture, import, or process chemicals for commercial purposes. Potentially affected entities may include, but are not limited to:

• Manufacturers, importers, and processors of chemical substances or mixtures, e.g., chemical manufacturing and processing and petroleum refineries (NAICS codes 325 and 324110).

This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. To determine whether you or your business may be affected by this action, you should carefully examine the applicability provisions in 40 CFR part 721 for TSCA section 5-related obligations. If you have any questions regarding the applicability of this action to a particular entity, consult the technical person listed under FOR FURTHER INFORMATION CONTACT.

This action amends 40 CFR 721.185(b)(1), which sets forth requirements for requesting modification or revocation of SNUN requirements. This provision requires persons who request modification of SNUN requirements for a particular chemical substance to send the request in writing to EPA. When developing the TSCA section 5 electronic reporting requirements published in the Federal Register issue of January 6, 2010 (75 FR 773) (FRL-8794-5), EPA had intended to include these modification requests. In the document proposing electronic reporting of TSCA section 5 submissions published in the Federal Register issue of December 22, 2008 (73 FR 78261) (FRL-8395-8), EPA included regulatory text to require electronic reporting for modification and revocation requests regarding significant new use reporting requirements for microorganisms under 40 CFR 725.984(b)(1), containing language almost identical to the regulatory language included in this direct final rule. Discussion in the preamble of the final rule regarding types of submissions that would continue to be required in hard copy did not include modification and revocation requests under § 721.185(b)(1). No comments were received regarding 40 CFR 725.984(b)(1), and EPA finalized this change. However, the corresponding change to the analogous provision in § 721.185(b)(1) was inadvertently omitted from both the proposed and final rule. This direct final rule includes this change.

Section 5(a)(1)(A) of TSCA requires persons to notify EPA at least 90 days before manufacturing a new chemical substance for commercial purposes (under TSCA manufacture includes import). Section 3(9) of TSCA defines a “new chemical substance” as any substance that is not on the TSCA Inventory of Chemical Substances compiled by EPA under section 8(b) of TSCA. Section 5(a)(2) of TSCA authorizes EPA to determine that a use of a chemical substance is a “significant new use.” EPA must make this determination by rule after considering all relevant factors, including those listed in TSCA section 5(a)(2). Once EPA determines that a use of a chemical substance is a significant new use, TSCA section 5(a)(1)(B) requires persons to submit a notice to EPA at least 90 days before manufacturing or processing the chemical substance for that use.

The Government Paperwork Elimination Act (GPEA) requires Federal agencies to provide for the:

1. Option of electronic maintenance, submission, or disclosure of information, when practicable as a substitute for paper.

2. Use and acceptance of electronic signatures, when practicable. EPA's Cross-Media Electronic Reporting Regulation (CROMERR) (40 CFR part 3), published in the Federal Register issue of October 13, 2005 (70 FR 59848) (FRL-7977-1), provides that any requirement in title 40 of the CFR to submit a report directly to EPA can be satisfied with an electronic submission that meets certain conditions once the Agency publishes a document that electronic document submission is available for that requirement.

Section 553 of the Administrative Procedure Act (APA), 5 U.S.C. 553(b)(3)(B), provides that, when an agency for good cause finds that notice and public procedure are impracticable, unnecessary, or contrary to the public interest, the agency may issue a final rule without providing notice and an opportunity for public comment. EPA has determined that there is good cause for making this rule final without prior proposal and opportunity for comment, for the reasons mentioned in Unit II.A. EPA finds that this constitutes good cause under 5 U.S.C. 533(b)(3)(B).

This action amends an existing regulation to correct an omission in the final rule published in the Federal Register of January 6, 2010, introducing electronic reporting of TSCA section 5 submissions and supporting documents; it does not otherwise amend or impose any other requirements. This action is not a “significant regulatory action” under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993). Further, this direct final rule does not impose new or change any information collection burden that requires additional review by the Office of Management and Budget (OMB) under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). The information collection activities contained in the regulations are already approved under OMB control numbers 2070-0012 and 2070-0038. An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9 and on corresponding collection instruments, as applicable.

Pursuant to section 605(b) of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ), the Agency hereby certifies that this direct final rule will not have a significant adverse economic impact on a substantial number of small entities. The correction is not expected to have any adverse economic impacts on affected entities, regardless of their size. This determination is consistent with that made for the final rule, which appears in Unit VII.C. of the preamble to the January 6, 2010 final rule.

State, local, and tribal governments were not expected to be affected by the January 6, 2010 final rule (see Unit VII.D. through F. of the preamble to that action), and, similarly, this direct final rule is not expected to affect these governments. Accordingly, pursuant to Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1531-1538), EPA has determined that this action is not subject to the requirements in UMRA sections 202 and 205 because it does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or for the private sector in any 1 year. In addition, this action does not significantly or uniquely affect small governments or impose a significant intergovernmental mandate, as described in UMRA sections 203 and 204. For the same reasons, EPA has determined that this direct final rule does not have “federalism implications” as specified in Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999), because it would not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in the Order. Thus, Executive Order 13132 does not apply to this direct final rule. Nor does it have “tribal implications” as specified in Executive Order 13175, entitled Consultation and Coordination with Indian Tribal Governments (65 FR 22951, November 9, 2000). Thus, Executive Order 13175 does not apply to this action.

Since this action is not economically significant under Executive Order 12866, it is not subject to Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997), and Executive Order 13211, entitled Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001). In addition, EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern health or safety risks, which is not the case in this direct final rule.

This action does not involve technical standards that would require the consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272).

This action does not have an adverse impact on the environmental and health conditions in low-income and minority communities. Therefore, this action does not involve special consideration of environmental justice related issues as specified in Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994).

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

Therefore, 40 CFR chapter I is amended as follows:

The NFIP enables property owners to purchase flood insurance which is generally not otherwise available. In return, communities agree to adopt and administer local floodplain management aimed at protecting lives and new construction from future flooding. Section 1315 of the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits flood insurance coverage as authorized under the NFIP, 42 U.S.C. 4001 et seq.; unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed in this document no longer meet that statutory requirement for compliance with program regulations, 44 CFR part 59. Accordingly, the communities will be suspended on the effective date in the third column. As of that date, flood insurance will no longer be available in the community. However, some of these communities may adopt and submit the required documentation of legally enforceable floodplain management measures after this rule is published but prior to the actual suspension date. These communities will not be suspended and will continue their eligibility for the sale of insurance. A notice withdrawing the suspension of the communities will be published in the Federal Register.

In addition, FEMA has identified the Special Flood Hazard Areas (SFHAs) in these communities by publishing a Flood Insurance Rate Map (FIRM). The date of the FIRM, if one has been published, is indicated in the fourth column of the table. No direct Federal financial assistance (except assistance pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act not in connection with a flood) may legally be provided for construction or acquisition of buildings in identified SFHAs for communities not participating in the NFIP and identified for more than a year, on FEMA's initial flood insurance map of the community as having flood-prone areas (section 202(a) of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4106(a), as amended). This prohibition against certain types of Federal assistance becomes effective for the communities listed on the date shown in the last column. The Administrator finds that notice and public comment under 5 U.S.C. 553(b) are impracticable and unnecessary because communities listed in this final rule have been adequately notified.

Each community receives 6-month, 90-day, and 30-day notification letters addressed to the Chief Executive Officer stating that the community will be suspended unless the required floodplain management measures are met prior to the effective suspension date. Since these notifications were made, this final rule may take effect within less than 30 days.

National Environmental Policy Act. This rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Considerations. No environmental impact assessment has been prepared.

Regulatory Flexibility Act. The Administrator has determined that this rule is exempt from the requirements of the Regulatory Flexibility Act because the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits flood insurance coverage unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed no longer comply with the statutory requirements, and after the effective date, flood insurance will no longer be available in the communities unless remedial action takes place.

Regulatory Classification. This final rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

Executive Order 13132, Federalism. This rule involves no policies that have federalism implications under Executive Order 13132.

Executive Order 12988, Civil Justice Reform. This rule meets the applicable standards of Executive Order 12988.

Paperwork Reduction Act. This rule does not involve any collection of information for purposes of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

Accordingly, 44 CFR part 64 is amended as follows:

This is a summary of the Commission's Report and Order (R&O) in CC Docket No. 80-286, FCC 11-71, released on May 4, 2011. The full text of this document is available for public inspection during regular business hours in the FCC Reference Center, Room CY-A257, 445 12th Street, SW., Washington, DC 20554.

1. Jurisdictional separations is the process by which incumbent LECs apportion regulated costs between the intrastate and interstate jurisdictions.

2. The 2001 Separations Freeze Order, 66 FR 33202, June 21, 2001, froze all part 36 category relationships and allocation factors for price cap carriers and all allocation factors for rate-of-return carriers. Rate-of-return carriers had the option to freeze their category relationships at the outset of the freeze. The freeze was originally established July 1, 2001 for a period of five years, or until the Commission completed separations reform, whichever occurred first. The 2006 Separations Freeze Extension Order, 71 FR 29843, May 24, 2006, extended the freeze for three years or until the Commission completed separations reform, whichever occurred first. The 2009 Separations Freeze Extension Order, 74 FR 23955, May 22, 2009, extended the freeze until June 30, 2010, and the 2010 Separations Freeze Extension Order, 75 FR 30301, June 1, 2010, extended the freeze until June 30, 2011.

3. The NPRM proposed extending the current freeze of part 36 category relationships and jurisdictional cost allocation factors used in jurisdictional separations, which freeze would otherwise expire on June 30, 2011, until June 30, 2012. The R&O adopts that proposal. The extension will allow the Commission to continue to work with the Federal-State Joint Board on Separations to achieve comprehensive separations reform. Pending comprehensive reform, the Commission concludes that the existing freeze should be extended on an interim basis to avoid the imposition of undue administrative burdens on incumbent LECs. The overwhelming majority of parties filing comments in response to the NPRM supported extension of the freeze.

4. The extended freeze will be implemented as described in the 2001 Separations Freeze Order. Specifically, price-cap carriers would use the same relationships between categories of investment and expenses within part 32 accounts and the same jurisdictional allocation factors that have been in place since the inception of the current freeze on July 1, 2001. Rate-of-return carriers would use the same frozen jurisdictional allocation factors, and would use the same frozen category relationships if they had opted previously to freeze those as well.

5. As required by the Regulatory Flexibility Act, the Commission certifies that these regulatory amendments will not have a significant impact on small business entities.

6. The R&O does not propose any new or modified information collections subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, therefore, it does not contain any new, modified, or proposed “information collection burden for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, 44 U.S.C. 3506(c)(4).

7. The Commission will send a copy of the R&O in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

8. Pursuant to sections 1, 4(i) and (j), 214(e), 254, and 410 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j), 214(e), 254, and 410, the R&O is adopted.

9. The report and order shall be effective June 27, 2011.

10. The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of the R&O, including the Final Regulatory Flexibility Certification, to the Chief Counsel for Advocacy of the Small Business Administration.

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 36 as follows:

This document makes the following corrections to the final rule published May 2, 2011, at 76 FR 24393:

1. On page 24393, column 3, revise the DATES section to read as follows:

2. On page 24397, column 2, correct paragraph 18 to read as follows:

18. Lastly, the Commission seeks to reduce the risk that marketing and outreach efforts will continue to be vehicles for manufacturing fraudulent minutes, such as those described above. To the extent an eligible VRS provider contracts with a third party to provide any services or functions related to marketing or outreach, and such services utilize VRS, the costs for such services cannot be compensated from the TRS Fund on a per-minute basis. In addition, all agreements in connection with marketing and outreach activities, including those involving sponsorships, financial endorsements, awards, and gifts made by the provider to any individual or entity, must be described in the providers' annual submissions to the TRS Fund administrator. The Commission recognizes that some companies currently offering VRS through an arrangement with an eligible provider may wish to continue providing this service on their own, yet may require additional time to make adjustments to their operations in order to come into compliance with the new requirements adopted in this Order. To give these entities an opportunity to continue to provide VRS as a subcontractor with an eligible provider until such time as they obtain certification under new procedures to be adopted pursuant to the accompanying FNPRM, the Commission will consider requests for a temporary waiver of the new requirements. A company requesting a waiver of the rules adopted in document FCC 11-54 will have the burden of showing that the waiver is in the public interest, that grant of the waiver request will not undermine the purposes of the rules that we adopt today, and that it will come into compliance with those rules within a short period of time. Applicants requesting to receive a temporary waiver shall provide, in writing, a description of the specific requirement(s) for which it is seeking a waiver, along with documentation demonstrating the applicant's plan and ability to come into compliance with all of these requirements (other than the certification requirement) within a specified period of time, which shall not exceed three months from the date on which the rules become effective. Evidence of the applicant's plan and ability to come into compliance with the new rules shall include the applicant's detailed plan for modifying its business structure and operations in order to meet the new requirements, along with submission of the following relevant documentation to support the waiver request:

• A copy of each deed or lease for each call center operated by the applicant;

• A list of individuals or entities that hold at least a 10 percent ownership share in the applicant's business and a description of the applicant's organizational structure, including the names of its executives, officers, partners, and board of directors;

• A list of all of the names of applicant's full-time and part-time employees;

• Proofs of purchase or license agreements for use of all equipment and/or technologies, including hardware and software, used by the applicant for its call center functions, including but not limited to, automatic call distribution (ACD) routing, call setup, mapping, call features, billing for compensation from the TRS fund, and registration;

• Copies of employment agreements for all of the provider's executives and CAs;

• A list of all financing arrangements pertaining to the provision of Internet-based relay service, including documentation on loans for equipment, inventory, property, promissory notes, and liens;

• Copies of all other agreements associated with the provision of Internet-based relay service; and

• A list of all sponsorship arrangements ( e.g., those providing financial support or in-kind interpreting or personnel service for social activities in exchange for brand marketing), including any associated agreements.

3. On page 24401, column 1, correct § 64.604 (c)(5)(iii)(L)(3) to read as follows: (3) If, the TRS provider submits additional justification for payment of the minutes of use in dispute within two months after being notified that its initial justification was insufficient, the Fund administrator or the Commission will review such additional justification documentation, and may ask further questions or conduct further investigation to evaluate whether to pay the TRS provider for the minutes of use in dispute, within eight months after submission of such additional justification.

On December 4, 2009, GSA published in the Federal Register at 74 FR 63704, a Proposed Rule with a request for comments. As a result, public comments were received.

GSA is amended the GSAR subpart 501.106 by removing the reference to “570.702(c)” and adding “570.802(c)” and “570.802(d)” in their place.

GSA moved advertising requirements from Part 505 to section 570.106, Advertising, Publicizing, and Notifications to Congress, since most of the guidance on advertising requirements contained in Part 505 relate to the leasing program. The changes to Part 505 have already been implemented in GSAR case 2008-G503, published in the Federal Register at 75 FR 32860, June 10, 2010.

GSA is amending the GSAR to revise GSAR Part 570, Acquiring Leasehold Interests in Real Property. In summary, GSA is amending this part to update regulatory provisions that are applicable to lease transactions; to provide sustainability guidance on implementing Executive Order 13514 and Guiding Principles for Federal Leadership in High Performance and Sustainable Buildings; to delete the dollar value of the simplified lease acquisition threshold and instead reference Federal Acquisition Regulation (FAR) 2.101 for information about the threshold; and to clarify the meaning and improve the readability of this part. In addition, GSA is moving advertising requirements from Part 505 to Part 570, since most of the guidance on advertising requirements contained in Part 505 relate to the leasing program.

This rule revises GSAR 570 as follows:

Overall changes were made throughout the text to change “you” to “contracting officer,” and to edit language for clarity.

GSAR 570.101(b) is revised to delete GSAR rules that are no longer applicable to the acquisition of leasehold interests in real property and to add current references to GSAR 522.805, 522.807, and 532.111.

GSAR 570.101(c) is revised to update the GSAR provisions that are applicable in leasing transactions. This section is revised to delete GSAM sections from the GSAR and move them to the GSAM, the non-regulatory portion of the manual.

GSAR 570.101(d) is added to explain that the FAR does not apply to leasehold acquisitions of real property and to further explain that references to the FAR in Part 570 are used as a matter of policy where the underlying statute behind the FAR provision applies to leasing or as matter of administrative convenience.

GSAR 570.102 is revised to add definitions for “ANSI/BOMA Office Area (ABOA)”, “lease acquisition,” “lease extension,” “lease renewal (option),” “succeeding lease,” and “superseding lease.” The definition for “simplified lease acquisition threshold” is revised to delete the dollar value, and instead reference FAR 2.101 for information about the threshold. The definition for “small business” is revised to delete the dollar limit for annual average gross receipts and to reference the size standard established by the Small Business Administration. Further revisions were made to include where the size standards may be found on the web. The definition of “rent and related services” is deleted because it is not used within the subpart. The definition for “space in buildings” is deleted because this definition was only referenced at 570.105-3 which is also being deleted.

GSAR 570.103 is revised to update the statutory reference to leasing authority. In addition, GSAR 570.103 is revised, consistent with statute and regulation, to allow the contracting officer to designate a contracting officer's representative.

GSAR 570.105-2 is re-titled, Criteria for the Use of Two-phase Design-build. GSAR 570.105-2 is revised to update the statutory reference to leasing authority. GSAR 570.105-2(c) is added to reference 570.305, where additional procedures can be found regarding two-phase design-build selections that apply to acquisition of leasehold interests.

GSAR 570.105-3 is deleted in its entirety because sealed bidding is not used in GSA leasing transactions. Since negotiations or discussions are not allowed under sealed bidding, GSA has determined that the use of negotiated acquisition procedures in real property lease acquisitions enables GSA to clarify and explain SFO requirements to more effectively address the unique elements of each property and obtain better lease pricing.

GSAR 570.106 is re-titled Advertising, Publicizing, and Notifications to Congress, and revised to incorporate advertising requirements from Part 505, because most of the exceptions to advertising requirements contained in Part 505 relate to the leasing program.

GSAR 570.106-1, Synopsis of Lease Awards, is added to incorporate synopsizing requirements of lease awards from Part 505.

GSAR 570.108 is revised to update reference to “Excluded Parties List System” (EPLS).

GSAR 570.109 is revised to add the language “representations and” for clarification.

GSAR 570.110 is revised to require the contracting officer to obtain two bids or cost and pricing data for price analysis of offered tenant improvement costs.

GSAR 570.111 is revised to require that the inspection and acceptance document contain the ANSI/BOMA Office Area (ABOA) square footage accepted and the acceptance date.

GSAR 570.115, Novation and Change of Ownership, is added to include language stating that FAR 42.12 applies in the event of a transfer of ownership of the leased premises or a change in the lessor's legal name.

GSAR 570.116, Contract Format, is added to include language stating that the uniform contract format is not required for leases of real property.

GSAR 570.117, Sustainable Requirements for Lease Acquisitions, is added to add a requirement for the contracting officer to include sustainable design requirements appropriate for the type of leasing action in the solicitations for offers, to identify the location of solicitation requirements and instructions on http://www.gsa.gov/leasing, and to include guidance on Executive Order 13514 and the Guiding Principles for Federal Leadership in High Performance and Sustainable Buildings.

GSAR 570.203-3(a), is revised to add a reference to “GSA Form 3626” for clarity and to require the contracting officer to include sustainable design requirements in offers.

GSAR 570.203-4 is revised to include a reference to the thresholds at FAR 15.403-4 and 19.702(a). It is further revised to require that the contracting officer make an affirmative determination of price reasonableness.

GSAR Subpart 570.3 is renamed Acquisition Procedures for Leasehold Interests in Real Property Over the Simplified Lease Acquisition Threshold.

GSAR 570.303-1 is revised to add a requirement that each Solicitation for Offers (SFO) must include sustainable design requirements.

GSAR 570.303-2 is revised to allow electronic issuance of solicitations.

GSAR 570.303-4 is revised to require contracting officers to re-advertise and reissue a solicitation when a complete revision of a solicitation is required in accordance with GSAR 570.106.

GSAR 570.304 is revised to adequately distinguish between best value and low price technically acceptable acquisitions.

GSAR 570.305 is revised to require the contracting officer to consider planned subcontracting opportunities for small disadvantaged business concerns during phase one evaluations.

GSAR 570.306(b) is revised to require the contracting officer to review the elements of the lessor's proposed rent to analyze whether the individual elements are realistic and reflect the lessor's understanding of work to be performed. GSAR 570.306(c) is revised to add information on past performance evaluations. GSAR 570.306(f) was revised to direct the reader to important paragraphs in Part 570 concerning the evaluation of offers.

GSAR 570.401 is revised to add language indicating that if a renewal option was not evaluated as part of the lease at award, then the addition of a renewal option during the lease term must satisfy the requirements of GSAM 506 regarding full and open competition.

GSAR 570.402-2 is revised to update the reference to publication and advertising requirements for leases.

GSAR 570.404 is revised to clarify that a superseding lease may be used when market conditions warrant renegotiation of an existing lease, and to provide considerations of a cost benefit analysis.

GSAR 570.405 is revised to provide examples of situations where lease extensions may be appropriate.

GSAR 570.501(a) is revised to explain that the procedures in 570.502 apply to alterations acquired directly from a lessor by modification or supplemental lease agreement.

GSAR 570.502 is deleted because this information is addressed in 570.501(a).

GSAR 570.502-1 is revised to tie the threshold to the FAR definition of the micro-purchase threshold.

GSAR 570.502-2 is revised to delete language referencing progress payments. This section is further revised to allow the lease contracting officer to delegate alteration contracting authority to a warranted contracting officer's representative in GSA or the tenant agency.

GSAR 570.503 is revised to delete paragraph (b) from the GSAM and incorporate it into the GSAR.

New section GSAR 570.6 Contracting for Overtime Services and Utilities in Leases is added to provide requirements for when overtime services and utilities are needed.

GSAR 570.601 is renumbered as 570.701 and is revised to delete the reference to the dollar value of the thresholds, and to instead provide the FAR reference because the thresholds may change. GSAR 570.601 is revised to include the following additional FAR provisions or clauses that must be included in solicitations:

52.204-6, Data Universal Numbering system (DUNS) Number;

52.204-7, Central Contractor Registration;

52.219-28, Post-Award Small Business Program Rerepresentation (use if lease term exceeds five years),

52.232-33, Electronic Funds Transfer—Central Contractor Registration;

52.222-36, Affirmative Action for Workers with Disabilities;

52.204-10, Reporting Executive Compensation and First-Tier Subcontract Awards;

52.204-5, Women-Owned Business (Other than Small Business);

52.203-13, Contractor Code of Business Ethics and Conduct;

52.203-14, Display of Hotline Poster(s).

GSAR 570.602 and 570.603 are renumbered as 570.702 and 703, respectively, and are revised to require the contracting officer to document the file when deleting or substantially changing a clause. GSAR 570.603 is further revised to number the paragraphs (a) and (b), and to include language in paragraphs (a) and (b) to require the contracting officer to include the following additional clauses in leaseholds for real property:

552.215-70, Examination of Records by GSA;

552.270-28, Mutuality of Obligation;

552.270-29, Acceptance of Space;

552.270-30, Price Adjustment for Illegal or Improper Activity;

552.270-31, Prompt Payment;

552.270-32, Covenant Against Contingent Fees.

GSAR 570.604 is renumbered as 570.704 and is revised to delete the reference to clause 552.203-5, Covenant Against Contingent Fees, because the updated clause number is now referenced in 570.703.

GSAR 570.701 is renumbered as 570.801 and is revised to delete the instructions to omit the reference to Standard Form (SF)2-A.

GSAR 570.802(d) is added to allow the use of the GSA Form 1217, Lessor's Annual Cost Statement, to obtain pricing information regarding offered services and lease commissions.

The clause at 552.270-1, Instructions to Offerors—Acquisition Leasehold Interest in Real Property, is revised to add language requiring execution and delivery of a lease to effectuate contract formation. It also adds paragraph (f) to address paperwork collection information.

The provision at 552.270-3, Parties to Execute Leases, is revised to make it consistent with the instructions contained in FAR 4.102.

The clause at 552.270-7, Fire and Casualty Damage, is revised to permit the government to assess a property's condition before giving notice of termination.

The clause at 552.270-14, Changes, is revised to change “usable square foot” to “ABOA square foot,” and to specify the impact of the failure to assert a claim for a price adjustment.

The clause at 552.270-16, Adjustment for Vacant Premises, is revised to clarify when and how adjustments for vacant premises will be made.

The clause at 552.270-18, Default in Delivery—Time Extensions, is revised to update the terminology of “usable square footage” to “ABOA square footage.”

The clause at 552.270-20, Payment, is revised to update the terminology of “usable square footage” to “ABOA square footage.”

The clause at 552.270-29, Acceptance of Space, is revised to update the terminology of “usable square footage” to “ABOA square footage” and to simplify the reference to a section in the solicitation.

The following clauses were added to GSAR Part 570: 552.270-30, Price Adjustment for Illegal or Improper Activity; 552.270-31, Prompt Payment; and 552.270-32, Covenant Against Contingent Fees.

Two public comments from one respondent were received in response to the proposed rule.

Comment: One comment recommended deleting the language “and delivery” at GSAR 552.270-1(e)(7), Instructions to Offerors.

Response: Do not concur. Execution and delivery in the legal sense are both necessary elements to effectuate the contract. Absent delivery, the offeror would not know that the contract was executed and that the offeror was bound to perform.

Comment: The second comment recommended at GSAM 570.106-1(c), for the posting of a justification for other than full and open competition on the FedBizOpps website, be revised to clarify when the justification is to be posted.

Response: Do not concur. Justifications for other than full and open are required to be posted after award by Section 844 of the National Defense Authorization Act for Fiscal Year 2008, “Public Disclosure of Justification and Approval Documents for Noncompetitive Contracts”. Parties receive notice of the opportunity to express interest in the leasing action by posting of the notice required by section GSAM 570.402-2 of the proposed regulation.

This is not a significant regulatory action and, therefore, was not subject to review under Section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

In accordance with Executive Order 13563, Improving Regulation and Regulatory Review, dated January 18, 2011, GSA determined that this rule is not excessively burdensome to the public, and is consistent with amending the General Services Administration Acquisition Regulation (GSAR) to revise GSAR Part 570, Acquiring Leasehold Interests in Real Property.

The General Services Administration certifies that this final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because the rule is not considered substantive. It clarifies existing language, deletes obsolete coverage, and edits existing language.

The Paperwork Reduction Act does apply; however, these changes to the GSAR do not impose additional information collection requirements to the paperwork burden previously approved under OMB Control Number 3090-0086.

The Paperwork Reduction Act applies because the rule contains information collection requirements. Accordingly, the Regulatory Secretariat has forwarded a request to receive approval of the new information collection requirement concerning GSAR Case 2006-G508, Acquiring Leasehold Interests in Real Property, to the Office of Management and Budget under 44 U.S.C. 3501, et seq.

At 570.702(d), the contracting officer may use GSA Form 1217, Lessor's Annual Cost Statement, to obtain pricing information regarding offered services and lease commissions.

The annual reporting burden is estimated as follows:

Respondents: 5,733.

Responses per respondent: 1.

Total annual responses: 5,733.

Preparation hours per response: 1 hour.

Total response burden hours: 5,733.

Public reporting burden for this collection of information is estimated to average 1 hour per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

Therefore, GSA amends 48 CFR parts 501, 552, and 570 as set forth below:

I. The FRA Guide and the Companion Guide

FRA has revised the FRA Guide based upon its review of the petitions for reconsideration submitted in response to the final rule and to make necessary technical amendments that are addressed in the “Section-by-Section” analysis. The FRA Guide is posted on FRA's website at http://safetydata.fra.dot.gov/officeofsafety. Hard copies of the FRA Guide will be available upon request. Information on requesting hard copies of the FRA Guide can be found in § 225.21, “Forms,” of this final rule. FRA has also revised its Companion Guide containing instructions for electronically submitting monthly reports to FRA based upon its review of the petitions for reconsideration and to make necessary technical amendments that are addressed in the “Section-by-Section” analysis. The Companion Guide is posted on FRA's website at http://safetydata.fra.dot.gov/officeofsafety.

On September 9, 2008, FRA published a Notice of Proposed Rulemaking (NPRM), which proposed miscellaneous amendments to FRA's accident/incident reporting regulations in order to clarify ambiguous regulations and to enhance the quality of information available for railroad casualty analysis. See 73 FR 52496. The NPRM also proposed revisions to the 2003 FRA Guide for Preparing Accident/Incident Reports (2003 FRA Guide) and FRA's accident/incident recording and reporting forms.

On September 10, 2008, during the 36th Railroad Safety Advisory Committee (RSAC) meeting, RSAC Task No. 2008-02 was presented for acceptance. The task offered to the RSAC for consideration was to review comments received on FRA's NPRM and would have allowed the RSAC to make recommendations for the content of the final rule. The task was withdrawn at the meeting without RSAC acceptance.

Following publication of the NPRM in the Federal Register , FRA held a public hearing in Washington, DC on December 18, 2008, and extended the comment period for an additional thirty (30) days following the hearing. The hearing was attended by a number of railroads, organizations representing railroads, and labor organizations. FRA received oral and written testimony at the hearing as well as written comments during the extended comment period. A copy of the hearing transcript was placed in Docket No. FRA-2006-26173 on http://www.regulations.gov. During the initial and extended comment period, FRA received comments and heard testimony from the following organizations, in addition to comments from individuals, listed in alphabetical order:

• American Association for Justice;

• Association for American Railroads (AAR);

• American Train Dispatchers Association;

• BNSF Railway Company;

• Brotherhood of Locomotive Engineers and Trainmen;

• Brotherhood of Maintenance of Way Employes Division;

• Brotherhood of Railroad Signalman;

• California Public Utilities Commission;

• U.S. Department of Labor;

• Illinois Commerce Commission/Transportation Bureau/Rail Safety Section;

• Kansas City Southern Railway Company;

• Metro-North Commuter Railroad Company;

• National Railroad Passenger Corporation (Amtrak);

• New York State Metropolitan Transportation Authority;

• NJ Transit Rail Operations;

• Norfolk Southern Corporation;

• Southeastern Pennsylvania Transportation Authority (SEPTA);

• Union Pacific Railroad Company (UP); and

• United Transportation Union.

On November 9, 2010, FRA issued a final rule, entitled Miscellaneous Amendments to the Federal Railroad Administration's Accident/Incident Reporting Requirements; Final Rule, clarifying and amending FRA's accident/incident reporting and recording standards and guidance. See 75 FR 68862. Following the publication of the final rule, FRA received one formal petition for reconsideration from SEPTA, which was entered into the docket on January 28, 2011. FRA also received an informal request from UP to revise the FRA Guide by adding additional circumstance codes. FRA opted to treat UP's comments as an informal petition for reconsideration entering the request into the docket on January 28, 2011, and is responding to UP's request in this document. The petitions for reconsideration raised various issues relating to the telephonic reporting requirements, the telephonic reporting chart and circumstance codes. The purpose of this document is to address the issues raised in the petitions for reconsideration relating to the final rule requirements.

The specific issues and recommendations raised by these petitioners, and FRA's responses to those petitions are discussed in detail in the “Section-by-Section Analysis” portion of the preamble. The following section-by-section analysis also contains a detailed discussion of each provision of the final rule text, the final rule preamble, the FRA Guide and forms contained in the FRA Guide, or the FRA Companion Guide that accompanies the final rule that is being clarified or amended. This discussion will enable the regulated community to more readily compare this document with the preamble discussion contained in the final rule and will aid the regulated community in understanding the requirements of the rule. Due to the complexity of the final rule and the number of documents affected and addressed in the rulemaking document and in an effort to provide readers as clear of an understanding as possible of the technical and clarifying amendments being made by this document, the section-by-section analysis is being divided into the following discussion sections:

FRA is making amendments to only one section of the final rule text. This amendment concerns the definition of “event or exposure arising from the operation of a railroad contained in § 225.5.

This document makes a technical amendment to the first tier subpart (ii)(A) of the definition of “Event or exposure arising from the operation of a railroad”. The amendment removes “non-train incident” from the list of qualifying events arising from the operation of the railroad with regards to non-employees who are injured while off railroad property. This technical amendment is necessary because the addition of this type of accident/incident to tier one subpart (ii)(A) in the final rule inappropriately expanded the meaning of the term “event or exposure arising from the operation of the railroad” and the type of injuries captured for non-employees who are off railroad property beyond the scope intended. Removing “non-train incident” from the definition brings the meaning of the term into conformance with the intent and scope of the NPRM and final rule. The inclusion of this type of accident/incident in the definition is an obvious error and a technical amendment is an appropriate action to correct this oversight.

The final rule's clarification and restructuring of the definition of “event or exposure arising from the operation of the railroad”, was not intended to change the term's meaning. Rather, the amendments were intended to clarify the term and bring it into conformance with existing industry practices. As such, the intent of the final rule was to remain consistent with the FRA's intent in the 2003 Final Rule:

However, the final rule in this proceeding amended the language proposed in the NPRM for the first tier subpart (ii)(A) by adding the term “non-train incident” to the list of qualifying events. Non-train incident is defined as an “event that results in a reportable casualty, but does not involve the movement of on-track equipment nor cause reportable damage above the threshold established for train accidents.” See § 225.5, “Definitions—Non train incident.” FRA stated in the final rule that this term was included to make the definition consistent with the list of accidents/incidents contained in the 2003 FRA Guide in addition to FRA's 2003 Final Rule amending its accident/incident regulations. 68 FR 10107, March 3, 2003. In the 2003 FRA Guide, non-train incidents are included in the list of categories of accidents/incidents; however, non-train incident was not included in FRA's 2003 Final Rule definition as a qualifying event arising from the operation of the railroad for non-employees who are injured while off railroad property.

Upon further review, it appears that the final rule's clarifying amendment is not consistent with the intent of FRA's 2003 Final Rule and expands the meaning of the term beyond the intent and scope of the final rule and NPRM. While non-train incident is included in the list of accidents/incidents in the 2003 FRA Guide, it was excluded as a triggering event for non-employees off railroad property in the related 2003 Final Rule. Moreover, the purpose of defining “event or exposure arising from the operation of the railroad” in the 2003 Final Rule was to limit the qualifying events with regards to non-employees. Based upon the definition of non-train incident, a railroad would be potentially responsible for reporting an injury to a non-employee occurring off railroad property that does not involve the movement of rail equipment. For example, under the definition contained in the final rule, if an individual suffers a reportable injury as the result of a car accident off railroad property involving a railroad automobile, any subsequent injury to the non-employee would be potentially reportable. This type of injury was not intended to be captured by FRA's accident/incident reporting regulations. As such, this document removes non-train incident from the list of qualifying events under the first tier subpart (ii)(A) of the definition of “event or exposure arising from the operation of the railroad”.

This document denies that portion of SEPTA's petition for reconsideration requesting the amendment of this section with regard to limiting and consolidating the notification requirements to which a railroad is subject.

SEPTA's petition for reconsideration noted that a railroad may potentially be required to comply with several agencies' immediate notification requirements following an accident/incident, and; therefore, a railroad would be required to comply with each agency's separate notification requirements. SEPTA further suggested that the agencies should share the information rather than requiring a railroad to make several different notifications to streamline the process and to ease the burden on the railroad.

As an initial matter, in the NPRM, FRA requested comments and suggestions on four issues of concern. One of these issues was § 225.9 telephonic reporting. Specifically, the NPRM noted that FRA was considering changing the method by which telephonic reports of accidents/incidents, as required by § 225.9, are made. Under FRA's current regulations, railroads are required to telephonically report certain accidents/incidents to the National Response Center (NRC), who in turn provides notification of the accidents/incidents to FRA. The NPRM indicated that FRA was reviewing whether it would be preferable for railroads to report these accidents/incidents directly to FRA via electronic transmission, and specifically sought comments and suggestions on the issue. FRA opted not to adopt any of the suggested changes or to require direct reporting to FRA, as FRA's infrastructure is inadequate to handle direct reporting. See 75 FR 68876, November 9, 2010.

With regards to SEPTA's specific suggestion to consolidate various agency notification requirements, again, FRA is declining to adopt the recommendation. Each government agency's notification requirements are aimed to alert the agency to specific accidents/incidents. These requirements may vary from agency to agency based upon their regulatory authority and mission. Moreover, each regulation may vary in terms of how and when notifications must occur. As such, the accidents/incidents for which FRA requires notification may not capture the accidents/incidents or the specific information that other agencies are interested in or need to fulfill their mission. Moreover, FRA does not have regulatory authority to control, change or alter other agencies' notification requirements; as such, FRA is not currently in a position to adopt or enforce SEPTA's recommendation. Finally, FRA does not currently have the infrastructure in place to handle notifications on behalf of other agencies or the ability to share that information outside the FRA to the extent required by SEPTA's recommendation.

This document is making several clarifying or technical amendments to the preamble discussions contained in the final rule. The preamble discussions being clarified in this document involve discussions of the regulatory text as well as discussions of the FRA Guide.

This document is making a clarifying amendment to the preamble language in the Section-by-Section Analysis of the final rule relating to a railroad's duty to investigate trespasser fatalities. See also, 75 FR 68889. The final rule requires railroads to investigate all trespasser fatalities in order to determine the cause of death. As explained in the final rule, FRA included this requirement to ensure that railroads are taking the proper steps to confirm whether or not a death is a suicide. The railroad must continue its investigation for a period of six months or until it is able to confirm the cause of death (or whichever occurs first). FRA anticipates that, if the cause of death is obvious (e.g., there are no indications that the individual(s) died as the result of a suicide), a railroad's investigation will not take the full six months and the cause of death will be easily confirmed with proper authority.

In discussing this new requirement, the preamble language stated that “if a railroad cannot obtain the required information after making a documented good faith effort for six months, then the railroad may discontinue its investigation and report the casualty as a trespasser fatality.” 75 FR 68870, 68879. After reviewing this language and receiving questions from the industry, FRA has determined that this sentence is confusing and misleading. Consequently, this document clarifies the discussion contained in Section-by-Section Analysis for the final rule.

FRA did not intend to negate a railroad's duty to create and submit a Form FRA F 6180.55a for a reportable trespasser fatality within 30 days after the month within which the death occurred. Rather, this preamble discussion was intended to explain a railroad's obligation at the end of the six month investigative period if the railroad cannot confirm the cause of the death. As such, once a railroad learns about a reportable trespasser fatality, the railroad must create and submit a Form FRA F 6180.55a to the FRA within 30 days after the month within which the death occurred. However, after submitting the Form FRA F 6180.55a, the railroad must continue to try to confirm the cause of death for a period of up to six months for trespasser fatalities. If the railroad is able to confirm the cause of death, the railroad must amend, or correct, the Form FRA 6180.55a as appropriate. If the railroad is unable to confirm the cause of death, the fatality may be reported as a trespasser fatality so that the death remains as a trespasser fatality on the Form FRA F 6180.55a and the railroad is not required to amend or correct the report.

FRA is clarifying the above language to avoid any potential confusion and to ensure that railroads are consistently submitting their reports to the FRA in a timely fashion. As stated above, the new investigative requirements are not meant to eliminate a railroad's duty to make a report per § 225.11 or to delay the reporting of trespasser fatalities for a period of six months (or until the railroad can determine cause of death). Rather, FRA was attempting to instruct railroads on how to proceed at the end of the six month investigative period in situations in which the railroad is unsuccessful in determining the cause of death.

This document identifies and corrects preamble language regarding Chapter 2 of the FRA Guide relating to the Definition of “Worker on Duty-Employee (Class A).” This correction does not result in any amendments or changes to the actual definition.

The final rule removed an example to the definition of Worker on Duty-Employee (Class A) characterizing an employee on his lunch break as on duty. This example was inserted into the definition in the NPRM. FRA received a comment from the AAR with regards to this example requesting its removal as an employee who is injured on an unpaid lunch break may not be considered on-duty. FRA agreed with the AAR and recognized that an employee who is not under pay is generally considered off duty. Consequently, FRA removed the example in the final rule to avoid confusion. However, in removing the example, the preamble language stated that “[i]n general, an employee on a break, whether paid or unpaid, is considered an Employee Not On Duty (Class B).” See 75 FR 68886.

This statement is incorrect and clearly inconsistent with the definition of Worker on Duty-Employee (Class A) contained in the final rule and the examples contained in the FRA Guide. Rather, as stated in the definition of Worker on Duty-Employee (Class A), “[w]hether or not the worker is under pay will normally be the deciding factor for determining `on-duty' status.” FRA Guide, Chapter 2. While there are certain exceptions, an employee who is under pay at the time of his injury is generally considered on-duty. FRA intended to state that an employee on a break, if unpaid, is generally considered an Employee Not On Duty (Class B). Consequently, the preamble language was an obvious error and a technical amendment is an appropriate action to correct this oversight.

This document identifies and corrects erroneous information contained in the preamble language to the final rule. However, this correction does not result in any amendments or changes to the actual Train Accident Cause Codes. The final rule added an additional Train Accident Cause Code in response to a recommendation from the National Transportation Safety Board (NTSB). Both the final rule and NPRM discussed the background and history of this recommendation in the preamble. Specifically, the final rule stated that:

To clarify, FRA added Train Accident Cause Code T224 in response to NTSB Safety Recommendation No. Recommendation-05-02 (R-05-02), which was contained in NTSB's RAR 05/01. Moreover, this recommendation arose from the NTSB investigation into the derailment of a northbound CN train on February 9, 2003, in Tamaroa, Illinois, and the subsequent release of hazardous materials. A copy of the NTSB's RAR 05/01, containing NTSB's R-05-02, has been placed in Docket No. FRA-2006-26173 on http://www.regulations.gov for ease of reference.

The Companion Guide, a technical manual that did not go through formal notice and comment, contains instructions for electronically submitting monthly reports. As such, the Companion Guide also includes directions for handling reports and records after June 1, 2011, with regards to the creation and submission of the reports, including late reports, and the amending/correcting of reports for accidents/incidents occurring prior to the effective date. The Companion Guide currently instructs that “railroads amending reports or records created or submitted prior to the effective date of the new rule, or submitting late reports for accidents that occurred prior to the effective date of the new rule, must amend those records and reports consistent with the new regulations and newest FRA Guide.” See Companion Guide, Introduction.

However, upon further consideration, FRA is revising the instructions contained in the Companion Guide to eliminate any confusion, to avoid requiring railroads to retroactively apply the new rules and regulations, and to prevent any potential issues with the collection of accident/incident data. FRA will also include these revised instructions in the FRA Guide. As an initial matter, the instructions contained in the Companion Guide are being revised as they could potentially create confusion and problems with FRA's accident/incident data and require the railroad to retroactively apply the new rule and regulations. If a railroad is required to apply the reporting and recording regulations contained in the final rule to determine whether an accident/incident occurring prior to the effective date is reportable, a railroad may potentially have to report an accident/incident that was not reportable at the time it occurred. For example, under the current guidance, a railroad may have to report a suicide or attempted suicide even though it occurred prior to the effective date of the final rule. The revised instructions, set forth below, will ensure that accidents/incidents are reported/recorded in a manner consistent with the rules and regulations that were in place at the time the accident/incident occurred.

FRA received numerous questions from the railroads requesting additional clarification and instructions with regards to this issue indicating that the directions contained in the Companion Guide are either too difficult to find and/or to understand. By revising these instructions and including them in the FRA Guide, FRA anticipates eliminating further confusion, improving compliance, and ensuring accurate accident/incident data.

This document makes the following general clarifying or technical amendments throughout the FRA Guide: correct typos and formatting issues; highlight key provisions for additional emphasis; and update the Index and Table of Content to reflect changes in pagination. Moreover, this document updates the publication and effective dates throughout the FRA Guide.

This document makes a clarifying amendment to Chapter 1 of the FRA Guide by adding instructions for creating and submitting records and reports, including late reports, in addition to amending/correcting reports after the final rule's June 1, 2011, effective date for accidents/incidents occurring prior to that date. This issue is addressed in the preceding discussion related to revisions being made to the FRA Companion Guide. This document provides notice that the revised directions discussed above are being added to the FRA Guide for ease of reference and convenience. Consequently, this document adds the revised instructions, which are consistent with the revised instructions contained in the Companion Guide, to Chapter 1 of the FRA Guide. These instructions explain to railroads that:

This document amends Appendix F of the FRA Guide by adding additional Circumstance Codes in response to the petitions for reconsideration. The final rule added new Circumstance Codes to Appendix F of the FRA Guide for use on Form FRA F 6180.55a, “Railroad Injury and Illness Summary (Continuation Sheet)”.

This document is adding Location Circumstance Code CE—“On Station Platform” to Part III of the “Location Circumstance Codes” in response to SEPTA's petition for reconsideration. The preamble to the final rule stated that the final rule would change Location Circumstance Code C2—“On Platform” to “On Platform Station.” See 75 FR 68892. However, as SEPTA noted in its petition, the final rule did not in fact make this change. While this document adds this new code, this document does not remove or replace Location Circumstance Code C2—“On Platform”. Upon further review, FRA has determined that “On Station Platform” is too specific to replace “On Platform” as there are other types of platforms beyond station platforms. As FRA wants to continue collecting information about accidents/incidents occurring at those locations, this document does not eliminate C2—“On Platform”. Moreover, this document uses the code “On Station Platform” instead of “On Platform Station” as the former is a more accurate description.

This document is also amending Appendix F of the FRA Guide by adding several additional Circumstance Codes in response to UP's petition for reconsideration. FRA has reviewed the additional codes recommended by UP and believes that they will improve FRA accident/incident data. Thus, FRA is adding the following new codes to Appendix F—Circumstance Codes as follows:

(a) To Part I of the “Location Circumstance Codes” FRA adds codes:

• F—Restroom;

• U—Airport/Airplane;

• V—Freight terminal; and,

• W—Private property.

(b) To Part III of the “Location Circumstance Codes” FRA adds codes:

• AA—At freight terminal;

• AB—On tower;

• AC—In cafeteria/lunch room;

• D1—At lodging facility;

• D2—On highway/street;

• D3—On private property;

• D4—On sidewalk/walkway

• D5—In airport;

• D6- In airplane;

• D7—In hotel room;

• E1—On parking lot;

• E2—In building; and,

• E3—In restroom.

(c) To the “Tools, Machinery, Appliances, Structures, Surfaces, (etc.) Circumstance Codes” FRA adds code:

• 8K—Knuckle.

This document makes a general clarifying or technical amendment to each of the accompanying FRA forms, updating the expiration date of each form. The Office of Management and Budget (OMB) approved the information collections submissions associated with the accident/incident final rule. As such, the new expiration date for the forms is February 28, 2014. FRA received notification of OMB's decision following the publication of the final rule and, as such, this document makes the technical amendment so that the forms to reflect the change in the expiration date.

The forms are revised as follows:

Form FRA F 6180.107. This document corrects certain preamble language addressing a railroad's obligation to create a Form FRA F 6180.107 within a proscribed time period. However, this correction will not result in any changes to the regulatory text or FRA Guide. In discussing revisions to the Form FRA F 6180.107 with regards to block 23, the final rule stated that:

See 75 FR 68897. These instructions are an obvious mistake and this documents clarifies that, consistent with the instructions in § 225.21(i)(2) and throughout the preamble to the final rule, a railroad must actually enter each claimed occupational illness “no later than seven working days after receiving knowledge that an employee is claiming they have incurred an occupational illness.” See 75 FR 68907. This technical amendment is appropriate as the mistake was obvious and this document highlights this issue to avoid any potential confusion.

Form FRA F 6180.150. A technical amendment is being made to Form FRA F 6180.150, by removing the word “draft” from the form. As stated in the final rule, Form FRA F 6180.150 was submitted to OMB and pending approval. See 75 FR 68888. FRA submitted the Form FRA F 6180.150 to OMB with the final rule. OMB notified FRA that it approved the form, and; as such, it may now be used to collection information about potential injuries to highway-users involved in highway-rail grade crossing accidents/incidents.

This document makes several clarifying and technical amendments to Appendix J of the FRA Guide, which provides Type of Territory Codes and instructions for the use of those codes when completing block 30, “Type of Territory,” on Form FRA F 6180.54, “Rail Equipment Accident/Incident Report.” See 75 FR 68897. The codes represent the type of territory ( i.e., signaled territory versus non-signaled territory); the authority for movement ( i.e., signal indication; mandatory directive; other than main track—Rule 105); and additional miscellaneous supplemental codes. See FRA Guide, Appendix H, “Forms”.

This document amends the list identifying the various methods of control ( i.e., systems) contained on page J-2 of the FRA Guide, Appendix J, by eliminating the outdated term “Direct Train Control”. Previously, FRA included this term because one particular railroad used it as a formal method of operation; however, that particular railroad no longer uses that method of operation and has since started using Track Warrant Control. Therefore, this term is no longer applicable and no longer used in the industry. Thus, FRA is removing it for clarity and to avoid any potential confusion. Moreover, there will be no conflict with FRA's use of the term Direct Train Control as a generic, or “umbrella,” term, which FRA uses, generally, to refer to this common method of operation in the industry as a whole.

This document adds supplemental code “Z-Other-Narrative Required” to the list for position 4 and 5 for non signals on page J-4 of the FRA Guide, Appendix J. FRA created the code “Other-Narrative Required” to ensure that if other existing codes are inadequate the railroads are able to accurately complete the field and to ensure that FRA is able to obtain a response. FRA discovered that it failed to list this supplemental code in two positions. While the directions found on page J-1 of the FRA Guide, Appendix J, make it clear that this code is always available in case existing codes are insufficient; this document adds these codes for clarity and consistency.

This document also amends the supplemental codes found on pages J-5 and J-6 so that the supplemental codes consistently correspond to the same narrative throughout Appendix J to the FRA Guide. This clarifying amendment is intended to eliminate any confusion potentially created in the final rule resulting from switching the supplemental code and the narrative description throughout Appendix J to the FRA Guide. As a result of this amendment, the supplemental codes correspond to the same narrative ( e.g., Supplemental Code L means Special Instructions) throughout Appendix J to the FRA Guide; whereas, under the final rule, the supplemental code and its narrative varied throughout Appendix J to the FRA Guide. Consequently, the supplemental codes contained in Appendix J to the FRA Guide have the following meaning:

• A—Auto Cab Signals

• B—Auto Train Control

• C—Auto Train Stop

• D—Automatic Block Signals System

• E—Broken Rail Monitoring

• F—Direct Traffic Control

• G—Interlocking

• H—Manual Block System

• J—Positive Train Control

• K—Restricted Speed or Equivalent

• L—Special Instructions

• M—Switch Point Monitoring

• N—Time Table/Train Orders

• P—Track Warrant Control

• Q—Traffic Control System/CTC

• R—Yard/Restricted Limits

• T—Other Than Main Track

• Z—Other-Narrative Required

The document makes two technical amendments to Appendix L of the FRA Guide, which includes the full regulatory text of part 225. The final rule included this rule text for ease of reference. This document alters only the rule text found in Appendix L of the FRA Guide and does not affect any other part of the final rule. First, a technical amendment is being made to update the reporting threshold by including the reporting threshold for 2011, which is $9,400. The reporting threshold for 2011 was calculated and published after the publication of the final rule. See 75 FR 75911, December 7, 2010. This revision affects § 225.19 (c) and (e), which include a list of the current and past reporting thresholds.

An amendment is also being made to the title of Form FRA F 6180.56 in § 225.21 in Appendix L of the FRA Guide. The regulatory text included Appendix L as part of the final rule identified Form FRA F 6180.56 as “Annual Railroad Report of Manhours by State” and this document corrects the form's title to “Annual Railroad Report of Employee Hours and Casualties by State.” This was an obvious error as the form is correctly identified elsewhere in the final rule, the actual regulatory text and the FRA Guide.

This document revises the Telephonic Reporting Chart contained in Appendix M to the FRA Guide to make clarifying and technical amendments in response to the petitions for reconsideration and to make the chart consistent with the rule text. In addition, this document makes several general technical amendments to the Telephonic Reporting Chart. These include updating the footnote numbering as a result of substantive changes and correcting typos.

The Telephonic Reporting Chart is amended in response to SEPTA's petition for reconsideration. In its petition for reconsideration, SEPTA requested clarification with regards to the use and placement of footnote number four dealing with the “24 hours notification cap” for fatalities resulting from a highway-rail grade crossing accident/incident. SEPTA noted that the placement of the footnote appeared to expand the “24 hours notification cap” to all fatalities regardless of the circumstances.

The final rule amended the accident/incident telephonic reporting requirements related to fatalities that occur at highway-rail grade crossings as a result of train accidents or train incidents. FRA had previously required railroads to report immediately to the National Response Center (NRC), via telephone, “a fatality at a highway-rail grade crossing as a result of a train accident or train incident.” 49 CFR 225.9(a)(2)(iii). FRA found that confusion existed as to the applicability of this requirement when death does not occur at the scene of the accident/incident, but occurs several hours or days later, after the fatally injured person is taken to the hospital for treatment.

As a result, the final rule revised the telephonic reporting requirement for highway-rail grade crossing fatalities to require telephonic reporting only if death occurs within 24 hours of the accident/incident. This revision is consistent with the Department of Transportation, Office of Inspector General's November 28, 2005 recommendation (Report No. MH-2006-016), which recommended that FRA amend § 225.9 to clarify the reporting requirements and to include criteria requiring railroads to report to NRC any death at a highway-rail grade crossing, only if death occurs within 24 hours of the accident/incident.

This document updates and moves footnote number four to make it clear that the “24 hours notification cap” applies only to “a fatality at a highway-rail grade crossing as a result of a train accident or train incident” as explained in the final rule. 49 CFR 225.9(a)(2)(iii). FRA agrees with SEPTA's contention that the placement of the footnote could potentially cause confusion, and; as such, the clarifying amendment is appropriate.

This document updates the Telephonic Reporting Chart contained in Appendix M to the FRA Guide to reflect changes made to § 225.9(a)(2)(iv) and to accurately reflect the regulatory language in § 225.9(a)(2)(v). The final rule made a technical amendment to paragraph (a)(2)(iv) by adding the words “or more” after $150,000, to clarify that the telephonic reporting requirement is triggered when a train accident results in damage of $150,000 or more to railroad and non-railroad property. The Telephonic Reporting Chart is updated to reflect this change in the rule text. Similarly, the Telephonic Reporting Chart is updated so that it accurately reflects the rule text in § 225.9(a)(2)(v) by changing the language from “damage in excess of $25,000” to “$25,000 or more”. Both of these amendments are necessary to correct obvious errors.

Finally, in reviewing the Telephonic Reporting Chart, FRA discovered that the chart does not include paragraph (a)(1)(iii). Thus, the Telephonic Reporting Chart is being amended so that it includes paragraph (a)(1)(iii) and accurately reflects the rule text. Again, the failure to include this paragraph was an obvious oversight and this amendment makes the Telephonic Reporting Chart consistent with the rule text.

This revised final rule in response to petitions for reconsideration has been evaluated in accordance with existing policies and procedures and determined to be non-significant under not only Executive Orders 12866 and 13563 but also DOT policies and procedures. See 44 FR 11034; February 26, 1979. FRA has analyzed the costs and benefits of the revisions to the final rule. With two exceptions, the revisions FRA is making are technical corrections or clarifications and will not have any economic impact. They will serve to make clear and correct the requirements of the final rule and its accompanying FRA Guide. Although the addition of circumstance codes for Location as well as Tools, Machinery, Appliances, and Structures may add some reporting burden, it would be nominal. Parties filling out the forms would have more codes to select from to describe the accident or incident circumstances, but no fields have been added to any reporting forms. FRA is also revising the definition of “event or exposure arising from the operation of the railroad” in § 225.5, “Definitions”. In the final rule, FRA included non-train incidents in the list of events that can result in a reportable injury to a non-employee while off railroad property. Upon further review, it appears this amendment was overly broad and would capture more information than original intended. As such, FRA is removing this from the list.

Since any burden associated with the added cause codes for accidents and incidents would be nominal and the Regulatory Evaluation conducted in support of the final rule already took into account the impacts of the new definition of “event or exposure arising from the operation of the railroad,” FRA believes that the outcome of that analysis would not be impacted. Even if that were not the case, FRA is confident that the cost savings from the revised definitions would exceed any additional cost burden. In other words, the revised definition represents the least costly alternative for achieving the desired safety outcome. To the extent that any additional burden results from the additional circumstance codes, it will be nominal and have no impact on the findings of the Regulatory Evaluation of the final rule.

The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq. ) and Executive Order 13272 (67 FR 53461; August 16, 2002) require agency review of proposed and final rules to assess their impact on small entities. The Regulatory Flexibility Act requires an agency to review regulations to assess their impact on small entities. An agency must conduct a regulatory flexibility analysis unless it determines and certifies that a rule is not expected to have a significant impact on a substantial number of small entities. Pursuant to the Regulatory Flexibility Act of 1980, 5 U.S.C. 605(b), the FRA Administrator certifies that the revisions to the final rule will not have a significant economic impact on a substantial number of small entities. Although a substantial number of small railroads will be affected by these revisions, none of these entities will be significantly impacted. The net impact of these revisions is beneficial stemming from a reduction in burden associated with not reporting certain events. At the NPRM stage, FRA certified that the proposal would not result in a significant economic impact on a substantial number of small entities and requested comment on such certification as well all other aspects of the NPRM. Although many comments were received in response to the NPRM, no comments directly addressed the certification. In developing the final rule, FRA considered all comments received in response to the NPRM. FRA also certified that the final rule would not have a significant economic impact on a substantial number of small entities.

“Small entity” is defined in 5 U.S.C. 601 as including a small business concern that is independently owned and operated, and is not dominant in its field of operation. The U.S. Small Business Administration (SBA) has authority to regulate issues related to small businesses, and stipulates in its size standards that a “small entity” in the railroad industry is a for profit “line-haul railroad” that has fewer than 1,500 employees, a “short line railroad” with fewer than 500 employees, or a “commuter rail system” with annual receipts of less than seven million dollars. See “Size Eligibility Provisions and Standards,” 13 CFR part 121 subpart A. Additionally, section 601(5) defines as “small entities” governments of cities, counties, towns, townships, villages, school districts, or special districts with populations less than 50,000. Federal agencies may use a different standard for small entities, in consultation with SBA and in conjunction with public comment. Pursuant to that authority FRA has published a final statement of agency policy that formally establishes “small entities” or “small businesses” as being railroads, contractors and hazardous materials shippers that meet the revenue requirements of a Class III railroad as set forth in 49 CFR 1201.1-1, which is $20 million or less in inflation-adjusted annual revenues, and commuter railroads or small governmental jurisdictions that serve populations of 50,000 or less. See 68 FR 24891, May 9, 2003, codified at Appendix C to 49 CFR part 209. The $20 million limit is based on the Surface Transportation Board's revenue threshold for a Class III railroad carrier. Railroad revenue is adjusted for inflation by applying a revenue deflator formula in accordance with 49 CFR 1201.1-1. FRA is using this definition for this rulemaking. This final rule applies to railroads. There are approximately 665 small railroads that would be affected by this final rule. The factual basis for the certification that this final rule will not have a significant economic impact on a substantial number of small entities, is that the total cost of complying with the final rule will be either unchanged or reduced.

This response to petitions for reconsideration of the final rule does not change any of the information collection requirements and associated estimated burden contained in the original final rule.

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

FRA believes it is in compliance with Executive Order 131132. Because the amendments contained in this response to petitions for reconsideration of the final rule either clarify requirements currently contained in the final rule or allow for greater flexibility in complying with the final rule, this document will not have substantial direct effects on the States, on the relationship between the national government and the States, nor on the distribution of power and responsibilities among various levels of government. In addition, FRA has determined that this response to petitions for reconsideration of the final rule will not impose substantial direct compliance costs on State and local governments. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply.

FRA notes that this part could have preemptive effect by the operation of law under the FRSA. See 49 U.S.C. 20106. Section 20106 provides that States may not adopt or continue in effect any law, regulation, or order related to railroad safety or security that covers the subject matter of a regulation prescribed or issued by the Secretary of Transportation (with respect to railroad safety matters) or the Secretary of Homeland Security (with respect to railroad security matters), except when the State law, regulation, or order qualifies under the “essentially local safety or security hazard” exception to § 20106.

In sum, FRA has analyzed this response to petitions for reconsideration in accordance with the principles and criteria contained in Executive Order 13132, and has determined that preparation of a federalism summary impact statement for this document is not required.

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

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

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

Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency “shall, unless otherwise prohibited by law, assess the effects of Federal regulatory actions on State, local, and tribal governments, and the private sector (other than to the extent that such regulations incorporate requirements specifically set forth in law).” Section 202 of the Act (2 U.S.C. 1532) further requires that “before promulgating any general notice of proposed rulemaking that is likely to result in the promulgation of any rule that includes any Federal mandate that may result in expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) [$140.8 million in 2010] in any 1 year, and before promulgating any final rule for which a general notice of proposed rulemaking was published, the agency shall prepare a written statement” detailing the effect on State, local, and tribal governments and the private sector. This response to the petitions for reconsideration of the final rule, including the revised final rule, would not result in the expenditure, in the aggregate, of $140.8 million or more in any one year, and thus preparation of such a statement is not required.

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

Interested parties should be aware that anyone is able to search the electronic form of all comments received into any agency docket by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). To get more information on this matter and to view the Regulations.gov Privacy Notice go to http://www.regulations.gov/search/footer/privacyanduse.jsp . You may review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477-78).

For the reasons discussed in the preamble, FRA amends part 225 of chapter II, subtitle B of Title 49, Code of Federal Regulations, as follows: