This final rule has been determined to be non-significant by the Office of Management and Budget (OMB) under Executive Order 12866.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. Except where specified, all State and local laws and regulations that are in direct conflict with this rule will be preempted. Federal funds carry Federal requirements. No person is required to apply for funding under this program, but if they do apply and are selected for funding, they must comply with the requirements applicable to the Federal program funds. This rule is not retroactive. It will not affect agreements entered into prior to the effective date of the rule. Before any judicial action may be brought regarding the provisions of this rule, the administrative appeal provisions of 7 CFR part 11 must be exhausted.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effect of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, the Agency generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, or tribal governments, in the aggregate, or to the private sector, of $100 million, or more, in any one year. When such a statement is needed for a rule, section 205 of the UMRA generally requires the Agency to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule.

This rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local, and tribal governments or the private sector. Therefore, this rule is not subject to the requirements of sections 202 and 205 of the UMRA.

This document has been reviewed in accordance with 7 CFR part 1940, subpart G, “Environmental Program.” It is the determination of the Agency that this action does not constitute a major Federal action significantly affecting the quality of the human environment, and, in accordance with the National Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq., neither an Environmental Assessment nor an Environmental Impact Statement is required.

The policies contained in this rule do not have any substantial direct effect on States, on the relationship between the national government and States, or on the distribution of power and responsibilities among the various levels of government. Nor does this rule impose substantial direct compliance costs on State and local governments. Therefore, consultation with the States is not required.

In compliance with the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) the undersigned has determined and certified by signature of this document that this rule change will not have a significant impact on a substantial number of small entities. This rule does not impose any significant new requirements on Agency applicants and borrowers, and the regulatory changes affect only Agency determination of program benefits for guarantees of loans made to individuals. Changes impacting lenders will impact all approved lenders doing business under this program. There is no distinction made between small and large lenders.

This program/activity is not subject to the provisions of Executive Order 12372, which require intergovernmental consultation with State and local officials. (See the Notice related to 7 CFR part 3015, subpart V, at 48 FR 29112, June 24, 1983; 49 FR 22675, May 31, 1984; 50 FR 14088, April 10, 1985.)

This program is listed in the Catalog of Federal Domestic Assistance under Number 10.410, Very Low to Moderate Income Housing Loans (Section 502 Rural Housing Loans).

The information collection and record keeping requirements contained in this regulation have been approved by OMB in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). The assigned OMB control number is 0575-0078.

The Rural Housing Service is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

The U.S. Department of Agriculture (USDA) prohibits discrimination in all its programs and activities on the basis of race, color, national origin, age, disability, and where applicable, sex, marital status, familial status, parental status, religion, sexual orientation, genetic information, political beliefs, reprisal, or because all or part of an individual's income is derived from any public assistance program. (Not all prohibited bases apply to all programs.) Persons with disabilities who require alternative means for communication of program information (Braille, large print, audiotape, etc.) should contact USDA's TARGET Center at (202) 720-2600 (voice and TDD). To file a complaint of discrimination, write to USDA, Director, Office of Civil Rights, 1400 Independence Avenue, SW., Washington, DC 20250-9410, or call (800) 795-3272 (voice) or (202) 720-6382 (TDD). USDA is an equal opportunity provider, employer, and lender.

In the spring of 2009, the Inspector General completed an audit of the controls over lending activities in the SFHGLP. The audit evaluated the systems and processes to ensure that lenders (1) submit accurate and legitimate borrower eligibility data and (2) set interest rates on loans within Agency guidelines. The audit report made a number of recommendations for what the SFHGLP can do to streamline operations, prevent fraud, and improve efficiency in its mission. As a result of the audit a proposed rule was published in the Federal Register on May 19, 2010 (75 FR 27949).

Under the existing SFHGLP regulation, lenders may set an interest rate for a loan that does not exceed the higher of the Lender's published rate for VA first mortgage loans with no discount points or the current Federal National Mortgage Association (Fannie Mae) rate as defined in 7 CFR 1980.302(a), currently defined as the current Fannie Mae posted yield for 90-day delivery (Actual/Actual), plus six-tenths of 1 percent for 30-year fixed rate conventional loans, rounded up to the nearest one-quarter of 1 percent. The first change made by this final rule eliminates the lender's published VA rate for first mortgage loans with no discount points as an option for a maximum interest rate on loans. The effect of this action is to create a more uniform, simpler standard for interest rates under the SFHGLP, whereby lenders will always use the current Fannie Mae rate as the rate ceiling. The Fannie Mae rate is the interest rate guidance most widely utilized by approved lenders. It is also the most accessible to lenders and the Agency when documenting loan files to ensure affordable interest rates are extended to SFHGLP borrowers.

The second change made by this final rule relates to the rights of the Secretary when the Secretary has to pay a claim under the guarantee for the loan and the original lender did not originate the loan in accordance with the program requirements. This change allows the Secretary in certain circumstances to seek indemnification from the originating lender for the Secretary's loss. This change promises to save taxpayer money and incentivize due care on the part of lenders by allowing the Government to recoup the funds it pays out in the event of a claim under the guarantee where the original lender did not comply with SFHGLP requirements.

The Agency received comments from three different sources in response to the Proposed Rule. These comments came from advocacy groups and a community bank.

One commenter submitted a comment on the Single Family Housing Direct Loan Program and expressed general concern about the affordability of housing for low-income families. The Agency acknowledges this comment and notes that the changes being adopted will affect only the Guaranteed Loan Program.

One commenter agreed with the Agency that the Fannie Mae published rate is used by a much broader base of investors than the VA index and stated that the rule change creating a uniform standard will cause only minimal disruptions in business while lenders implement the new policy. This commenter requested that the final rule provide at least a 60-day implementation period to allow lenders to make necessary system changes. The Agency notes that the effective date of the final rule is 60 days from the date of publication in the Federal Register .

The commenter also recommended that the Agency revise the rule to require that the Ginnie Mae index be used if the Fannie Mae index is not available. The commenter made this recommendation because the commenter is concerned about future changes to government sponsored enterprises (GSEs). The Agency is aware of the vulnerabilities surrounding the GSEs and the potential for future changes; however, the Agency believes it would be premature to name a backup index at this time. Additionally, Ginnie Mae does not publish a similar index. The Agency, therefore, has made no changes to the final rule in response to this comment.

One commenter expressed concern that the proposed indemnification policy is too broad. The commenter agreed that indemnification is appropriate in cases where a lender commits fraud, but the commenter expressed concern about a lender being required to provide indemnification due to an oversight by the lender or deception by the borrower. The Agency has revised the rule to clarify and limit the circumstances under which indemnification may be required. These changes, which address the commenter's concerns, are described in greater detail below.

Another commenter made similar comments. The commenter agreed that indemnification is appropriate in cases of lender fraud or lender negligence, but the commenter expressed concern about lenders being held liable due to unforeseen circumstances or circumstances beyond their control. This commenter recommended four specific changes to the rule.

First, the commenter stated that lender indemnification for fraud should exclude fraud committed by a third party, such as a borrower, real estate agent, or seller. The Agency does not intend to seek indemnification when fraud was committed by a third party and the lender had no knowledge of such fraud. The Agency has revised the rule to clarify that indemnification will apply “when there was fraud or misrepresentation in connection with origination of the loan of which the originating Lender had actual knowledge at the time it became such Lender or which the originating Lender participated in or condoned.”

Second, the commenter stated that indemnification should not be automatic in cases where the Agency pays a claim within 24 months of closing. The commenter wrote that lenders should not be subject to indemnification when borrowers default on their loans due to circumstances beyond the lender's control. The Agency disagrees with the commenter that indemnification is automatic. A prerequisite to indemnification in the proposed rule was a determination by the Agency that the Lender did not originate a loan in accordance with the requirements in 7 CFR part 1980, subpart D. Further, the Agency has revised the rule to clarify what conditions must be satisfied before the Agency can require indemnification after paying a claim within 24 months of loan closing.

Third, the commenter recommended that in order for a lender to be liable due to misrepresentation, the misrepresentation must be proven by clear and convincing evidence and the misrepresentation must have been discoverable prior to loan closing. The Agency has revised the rule to provide clarification regarding the circumstances under which indemnification may be required. If RHS pays a loss claim within 24 months of loan origination as a result of the originating lender's nonconforming action or failure to act, RHS may seek indemnification if: (1) The originating lender utilized unsupported data or omitted material information when submitting the request for a conditional commitment to RHS; (2) the originating lender failed to properly verify and analyze the applicant's income and employment history in accordance with Agency guidelines; (3) the originating lender failed to address property deficiencies identified in the appraisal or inspection report that affect the health and safety of the occupants or the structural integrity of the property; or (4) the originating lender used an appraiser that was not properly licensed or certified, as appropriate, to make residential real estate appraisals in accordance with 7 CFR 1980.334(a). In addition, RHS may seek indemnification at any time, regardless of how long ago the loan closed, if RHS determines that there was fraud or misrepresentation in connection with the origination of the loan of which the originating lender had actual knowledge at the time it became such lender or which the originating lender participated in or condoned and RHS paid a loss claim as a result of the originating lender's nonconforming action or failure to act. In this context, misrepresentation includes negligent misrepresentation. With regard to the commenter's other suggestion, the Agency has decided not to incorporate the “clear and convincing evidence” standard into the rule. The Agency will seek indemnification only when an analysis of all available evidence establishes that indemnification is appropriate under the standards set forth in the rule. Lenders are protected in that a decision to require indemnification from the lender may be appealed to the USDA National Appeals Division (NAD), and the final determination of NAD shall be reviewable by any United States District Court of competent jurisdiction according to NAD regulations at 7 CFR part 11.

Fourth, the commenter requested that program violations be limited to only material program violations that adversely affect the program. The Agency agrees with the commenter that indemnification is appropriate only where the lender's violation is material. As discussed above, the Agency has revised the rule to clarify and limit the circumstances under which indemnification may be required. The Agency may seek indemnification only when RHS pays a claim under the loan note guarantee as a result of the originating Lender's nonconforming action or failure to act.

The commenter also expressed concern about whether lenders would have appeal rights. As noted above, indemnification will be treated as an adverse decision, and the lender may appeal the decision. The Agency has revised section 1980.399(a)(2) of the rule to make clear that the Lender may appeal an indemnification decision alone, without the participation of the borrower.

One commenter stated that the Agency's indemnification policy should be like the Federal Housing Administration's policy in that it should apply only to the originating lender and not to the servicer. The Agency agrees and has clarified that indemnification may only be sought from originating lenders. As noted in 7 CFR 1980.309(f), lenders are fully responsible for their own actions and the actions of those acting on their behalf, including during loan origination.

One commenter asked for clarification whether the same indemnification standards would apply to loans that are manually underwritten and loans that are submitted through the Guaranteed Underwriting System (GUS). The Agency will apply the same indemnification standards to all guaranteed loans.

For the reason stated in the preamble, Chapter XVIII, Title 7 of the Code of Federal Regulations is amended as follows:

The regulations in 9 CFR part 93 (referred to below as the regulations) prohibit or restrict the importation of certain animals into the United States to prevent the introduction of communicable diseases of livestock and poultry. “Subpart C—Horses,” §§ 93.300 through 93.326, pertains to the importation of horses into the United States. Sections 93.301 and 93.304 of the regulations contain specific provisions for the importation of horses from regions affected with contagious equine metritis (CEM), which is a highly contagious venereal disease of horses and other equines caused by an infection with the bacterium Taylorella equigenitalis.

On March 25, 2011, we published an interim rule in the Federal Register (76 FR 16683-16686, Docket No. APHIS-2008-0112) to amend the regulations regarding the importation of horses from countries affected with CEM by incorporating an additional certification requirement for imported horses 731 days of age or less and adding new testing protocols for test mares and imported stallions and mares more than 731 days of age. The provisions of the interim rule became effective March 25, 2011, and we will consider all comments on the interim rule received on or before May 24, 2011.

After the publication of the interim rule, we received comments that raised a variety of issues, including the feasibility of immediately implementing certain requirements.

Based on our review of the comments received to date, we consider it advisable to delay our enforcement of the interim rule until July 25, 2011. This additional time will allow CEM testing facilities to make any adjustments to their operating procedures that may be necessary in order to successfully implement the interim rule.

Accordingly, we are delaying enforcement of the interim rule amending 9 CFR part 93, published at 76 FR 16683-16686 on March 25, 2011, until July 25, 2011.

The Board published a final rule in the Federal Register of April 25, 2011 (76 FR 22948) (FR Doc. 2011-8843), amending Regulation Z and the staff commentary to the regulation, in order to clarify certain aspects of the rules that implement the Credit Card Accountability Responsibility and Disclosure Act of 2009. As published, the final rule inadvertently omits the revisions to redesignated § 226.58(b)(7) and the revised commentary to § 226.55(b)(6). In addition, the published final rule misprints comment 51(b)(2)-1 and contains other typographical errors.

Accordingly, in the final rule, FR Doc. 2011-8843, published on April 25, 2011, (76 FR 22948) make the following corrections:

Under the Act, on the designated transfer date, July 21, 2011, 2 certain consumer financial protection authorities will transfer from seven transferor agencies  3 to the CFPB, and the CFPB will also assume certain new authorities. Subject to the limitations and other provisions of the Act, the CFPB will be authorized to enforce, inter alia, rules and orders issued by the transferor agencies under the enumerated consumer laws. 4 The CFPB will also have authority to enforce in some circumstances the Federal Trade Commission's Telemarketing Sales Rule and its rules under the Federal Trade Commission Act, although the Federal Trade Commission will retain full authority over these rules. 5

Section 1063(i) of the Act provides that, not later than the designated transfer date, the CFPB “(1) shall, after consultation with the head of each transferor agency, identify the rules and orders that will be enforced by the Bureau; and (2) shall publish a list of such rules and orders in the Federal Register .” The CFPB has consulted with each transferor agency pursuant to section 1063(i) and has developed a list of rules for which it seeks public comment. 6 After consultation, neither the transferor agencies nor the CFPB have identified any orders for inclusion in the list. After considering any public comments, the CFPB will publish a final list in the Federal Register not later than the designated transfer date.

The CFPB's enforcement authority is defined by the Act and other applicable law. As a result, the list required by section 1063(i) will not have a substantive effect on any rules or orders or the parties who may be subject to them; it will merely provide a convenient reference source. Accordingly, the inclusion or exclusion of any rule or order would not alter the CFPB's authority. In addition, section 1063(i) does not require the CFPB to update, correct, or otherwise maintain the final list. Because the list under section 1063(i) reflects the CFPB's interpretation of its authority under the Act and relates to agency organization, procedure, or practice, the list is not subject to the notice-and-comment requirements of the Administrative Procedure Act (“APA”) (5 U.S.C. 551 et seq ). 7 Nevertheless, the Bureau invites public comment during a thirty-day period.

Accordingly, pursuant to section 1063(i), the CFPB invites public comment on the following list of rules that will be enforceable by the CFPB subject to the limitations and other provisions of the Act: 8

1. 12 CFR Part 202—Equal Credit Opportunity Act (Regulation B)

2. 12 CFR Part 203—Home Mortgage Disclosure (Regulation C)

3. 12 CFR Part 205—Electronic Fund Transfers (Regulation E)

4. 12 CFR 208.101-105 & Appendix A to Subpart I—Registration of Residential Mortgage Loan Originators (Regulation H, Subpart I)

5. 12 CFR Part 213—Consumer Leasing (Regulation M)

6. 12 CFR Part 216—Privacy of Consumer Financial Information (Regulation P)

7. 12 CFR Part 222—Fair Credit Reporting (Regulation V), except with respect to §§ 222.1(c) (effective dates), 222.83 (Disposal of consumer information), 222.90 (Duties regarding the detection, prevention, and mitigation of identity theft), 222.91 (Duties of card issuers regarding changes of address), & Appendix J (Interagency Guidelines on Identity Theft Detection, Prevention, and Mitigation)

8. 12 CFR Part 226—Truth in Lending (Regulation Z)

9. 12 CFR Part 230—Truth in Savings (Regulation DD)

1. 12 CFR Part 332—Privacy of Consumer Financial Information

2. 12 CFR Part 334—Fair Credit Reporting, except with respect to §§ 334.83 (Disposal of consumer information), 334.90 (Duties regarding the detection, prevention, and mitigation of identity theft), 334.91 (Duties of card issuers regarding changes of address), & Appendix J (Interagency Guidelines on Identity Theft Detection, Prevention, and Mitigation)

3. 12 CFR 365.101-.105 & Appendix A to Subpart B—Registration of Residential Mortgage Loan Originators

1. 12 CFR 34.20-.25—Adjustable-Rate Mortgages (but only as applied to non-federally chartered housing creditors under the Alternative Mortgage Transaction Parity Act (“AMTPA”))

2. 12 CFR 34.101-.105 & Appendix A to Subpart F—Registration of Residential Mortgage Loan Originators

3. 12 CFR Part 40—Privacy of Consumer Financial Information

4. 12 CFR Part 41—Fair Credit Reporting, except with respect to §§ 41.83 (Disposal of consumer information), 41.90 (Duties regarding the detection, prevention, and mitigation of identity theft), 41.91 (Duties of card issuers regarding changes of address), & Appendix J (Interagency Guidelines on Identity Theft Detection, Prevention, and Mitigation)

1. 12 CFR 560.35—Adjustments to home loans (but only as applied to non-federally chartered housing creditors under AMTPA)

2. 12 CFR 560.210-220—Alternative Mortgage Transactions (but only as it relates to AMTPA)

3. 12 CFR 563.101-.105 & Appendix A to Subpart D—Registration of Residential Mortgage Loan Originators

4. 12 CFR Part 571—Fair Credit Reporting, except with respect to §§ 571.83 (Disposal of consumer information), 571.90 (Duties regarding the detection, prevention, and mitigation of identity theft), 571.91 (Duties of card issuers regarding change of address), & Appendix J (Interagency Guidelines on Identity Theft Detection, Prevention, and Mitigation)

5. 12 CFR Part 573—Privacy of Consumer Financial Information

1. 12 CFR 701.21—Loans to members and lines of credit to members (but only as applied to non-federally chartered housing creditors under AMTPA)

2. 12 CFR Part 707—Truth in Savings

3. 12 CFR Part 716—Privacy of Consumer Financial Information

4. 12 CFR Part 717—Fair Credit Reporting, except with respect to §§ 717.83 (Disposal of consumer information), 717.90 (Duties regarding the detection, prevention, and mitigation of identity theft), 717.91 (Duties of card issuers regarding changes of address), & Appendix J (Interagency Guidelines on Identity Theft Detection, Prevention, and Mitigation)

5. 12 CFR Part 741—Requirements for Insurance, but only with respect to §§ 741.217 (Truth in savings), 741.220 (Privacy of consumer financial information), & 741.223 (Registration of residential mortgage loan originators)

6. 12 CFR Part 761—Registration of Mortgage Loan Originators

1. 16 CFR Part 310—Telemarketing Sales Rule

2. 16 CFR Part 313—Privacy of Consumer Financial Information

3. 16 CFR Part 320—Disclosure Requirements for Depository Institutions Lacking Federal Depository Insurance

4. 16 CFR Part 322—Mortgage Assistance Relief Services

5. 16 CFR Part 425—Use of Prenotification Negative Option Plans

6. 16 CFR Part 429—Rule Concerning Cooling-Off Period for Sales Made at Homes or at Certain Other Locations

7. 16 CFR Part 433—Preservation of Consumers' Claims and Defenses

8. 16 CFR Part 444—Credit Practices

9. 16 CFR Part 435—Mail or Telephone Order Merchandise

10. 16 CFR Part 436—Disclosure Requirements and Prohibitions Concerning Franchising

11. 16 CFR Part 437—Disclosure Requirements and Prohibitions Concerning Business Opportunities

12. 16 CFR Subchapter F, Parts 603 et seq. —Fair Credit Reporting Act, except with respect to Part 681 (Identity Theft Rules), Part 682 (Disposal of Consumer Report Information and Records), & Appendix A to Part 681 (Interagency Guidelines on Identity Theft Detection, Prevention, and Mitigation)

13. 16 CFR Part 901—Procedures for State Application for Exemption from the Provisions of the [Fair Debt Collection Practices] Act

1. 24 CFR 26.28-.56—Hearing Procedures Pursuant to the Administrative Procedure Act

2. 24 CFR Part 30—Civil Money Penalties: Certain Prohibited Conduct (but only as applied to the Real Estate Settlement Procedures Act of 1974 (“RESPA”) and the Interstate Land Sales Full Disclosure Act (“ILSA”))

3. 24 CFR Part 1710—Land Registration

4. 24 CFR Part 1715—Purchasers' Revocation Rights, Sales Practices, and Standards

5. 24 CFR Part 1720—Formal Procedures and Rules of Practice

6. 24 CFR Part 3500—Real Estate Settlement Procedures Act

7. 24 CFR Part 3800—Investigations in Consumer Regulatory Programs (but only as applied to RESPA and ILSA)

Background

On January 26, 2007, Transport Canada Civil Aviation (TCCA), on behalf of Bombardier Inc., located in Montreal, Canada, applied to the New York Aircraft Certification Office (NYACO) for FAA approval of a type-design change on the Bombardier Model BD-700-1A10 and BD-700-1A11 airplanes. Per Type Certificate Data Sheet (TCDS) T00003NY, those aircraft models are known under the marketing designation of Global Express and Global 5000, respectively. The change is to introduce the Rockwell-Collins avionics suite to replace the existing Honeywell Primus 2000EP avionics suite. The change includes the installation of a SVS that displays video imagery.

Video display on the HUD constitutes new and novel technology for which the FAA has no certification criteria. Title 14, Code of Federal Regulations (14 CFR) 25.773 does not permit visual distortions and reflections that could interfere with the pilot's normal duties and was not written in anticipation of such technology. Other applications for certification of such technology are anticipated in the near future and magnify the need to establish FAA safety standards that can be applied consistently for all such approvals. Special conditions are therefore issued as prescribed under the provisions of § 21.16.

Under the provisions of 14 CFR 21.101, Bombardier Inc. must show that the Bombardier Model BD-700-1A10 and BD-700-1A11 airplanes, as changed, continue to meet the applicable provisions of the regulations incorporated by reference in T00003NY or the applicable regulations in effect on the date of application for the change. The regulations incorporated by reference in the type certificate are commonly referred to as the “original type certification basis.” The regulations incorporated by reference in T00003NY are as follows:

Based on the application date, January 26, 2007, under the provisions of § 21.101, the applicable type-certification standards for the modification to the Bombardier Model BD-700-1A10 and BD-700-1A11 airplanes are as follows:

The original certification basis for the Bombardier Model BD-700-1A10 and BD-700-1A11 airplanes shown on TCDS T00003NY, Revision 13.

14 CFR part 25, effective February 1, 1965, including the latest applicable requirements of Amendments 25-1 through 25-119.

If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Bombardier Model BD-700-1A10 and BD-700-1A11 airplanes because of a novel or unusual design feature, special conditions are prescribed under the provisions of 14 CFR 21.16.

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 any other 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 under § 21.101.

In addition to the applicable airworthiness regulations and special conditions, the Bombardier Model BD-700-1A10 and BD-700-1A11 airplanes must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36.

The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type-certification basis under 14 CFR 21.101.

The Bombardier Model BD-700-1A10 and BD-700-1A11 airplanes will incorporate the following novel or unusual design features:

An SVS that displays video imagery on a HUD.

For many years the FAA has approved, on transport category airplanes, the use of HUD that display flight symbology, without a significant visual obscuration of the outside view. When the FAA began to evaluate the display of enhanced vision system (EVS) imagery on the HUD, significant potential to obscure the outside view became apparent, contrary to the requirements of 14 CFR 25.773. This rule does not permit distortions and reflections in the pilot-compartment view that can interfere with normal duties, and the rule was not written in anticipation of such technology. The video image potentially interferes with the pilot's ability to see the natural scene in the center of the forward field of view. Therefore, the FAA issued special conditions for such HUD/EVS installations to ensure that the level of safety required by § 25.773 would be met even when the image might partially obscure the outside view. While many of the characteristics of EVS and SVS video differ in some ways, they have one thing in common: The potential for interference with the outside view through the airplane windshield. The FAA issues special conditions for new and novel technologies to achieve equivalent levels of safety.

Although the pilot readily may be able to see around and through small, individual, stroke-written symbols on the HUD, the pilot may not be able to see around or through the image that fills the display without some interference of the outside view. Nevertheless, the SVS may be capable of meeting the required level of safety when considering the combined view of the image and the outside scene visible to the pilot through the image. It is essential that the pilot can use this combination of image and natural view of the outside scene as safely and effectively as the pilot-compartment view currently available without the SVS image.

Because § 25.773 does not provide for any alternatives or considerations for such a new and novel system, the FAA establishes safety requirements that assure an equivalent level of safety and effectiveness of the pilot-compartment view as intended by that rule. The purpose of this special condition is to provide the unique pilot-compartment-view requirements for the SVS installation.

Notice of Proposed Special Conditions no. 25-11-10-SC for the Bombardier Model BD-700-1A10 and BD-700-1A11 airplanes was published in the Federal Register on March 28, 2011 (76 FR 17062). No comments were received, and the special conditions are adopted as proposed.

As discussed above, these special conditions are applicable to the Bombardier Model BD-700-1A10 and BD-700-1A11 airplanes. Should Bombardier Inc. apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, the special conditions would apply to that model as well.

This action affects only certain novel or unusual design features on Bombardier Model BD-700-1A10 and BD-700-1A11 airplanes. It is not a rule of general applicability.

The authority citation for these special conditions is as follows:

Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type-certification basis for Bombardier Model BD-700-1A10 and BD-700-1A11 airplanes.

1. During any phase of flight in which it is to be used, the SVS imagery on the HUD must not degrade flight safety or interfere with the effective use of outside visual references for required pilot tasks.

2. To avoid unacceptable interference with the safe and effective use of the pilot-compartment view, the SVS must meet the following requirements:

a. The SVS design must minimize unacceptable display characteristics or artifacts (e.g., terrain shadowing against a dark background) that obscure the desired image of the scene, impair the pilot's ability to detect and identify visual references, mask flight hazards, distract the pilot, or otherwise degrade task performance or safety.

b. Control of SVS image display brightness must be sufficiently effective in dynamically changing background (ambient) lighting conditions to avoid pilot distraction, impairment of the pilot's ability to detect and identify visual references, masking of flight hazards, or to otherwise degrade task performance or safety. If automatic control for image brightness is not provided, it must be shown that a single, manual setting is satisfactory for the range of lighting conditions encountered during a time-critical, high-workload phase of flight (e.g., low-visibility instrument approach).

c. A readily accessible control must be provided that permits the pilot to immediately deactivate and reactivate display of the SVS image on demand, without having to remove hands from the flight controls and throttles.

d. The SVS image on the HUD must not impair the pilot's use of guidance information, or degrade the presentation and pilot awareness of essential flight information displayed on the HUD, such as alerts, airspeed, attitude, altitude and direction, approach guidance, windshear guidance, TCAS resolution advisories, or unusual-attitude recovery cues.

e. The SVS image and the HUD symbols, which are spatially referenced to the pitch scale, outside view, and image, must be scaled and aligned (i.e., conformal) to the external scene. In addition, the SVS image and the HUD symbols—when considered singly or in combination—must not be misleading, cause pilot confusion, or increase workload. Airplane attitudes or cross-wind conditions may cause certain symbols (e.g., the zero-pitch line or flight-path vector) to reach field-of-view limits, such that they cannot be positioned conformally with the image and external scene. In such cases, these symbols may be displayed but with an altered appearance that makes the pilot aware that they are no longer displayed conformally (for example, “ghosting”). The combined use of symbology and runway image may not be used for path monitoring when path symbology is no longer conformal.

f. A HUD system used to display SVS images must, if previously certified, continue to meet all of the requirements of the original approval.

3. The safety and performance of the pilot tasks associated with the use of the pilot-compartment view must be not be degraded by the display of the SVS image. These tasks include the following:

a. Detection, accurate identification and maneuvering, as necessary, to avoid traffic, terrain, obstacles, and other flight hazards.

b. Accurate identification and utilization of visual references required for every task relevant to the phase of flight.

4. Appropriate limitations must be stated in the Operating Limitations section of the Airplane Flight Manual to prohibit the use of the SVS for functions that have not been found to be acceptable.

On August 14, 2009, at 74 FR 41,101, EOUST published a proposed rule on this topic. Before the comment period closed on October 13, 2009, EOUST received two comments. The comments received and EOUST's responses are discussed below.

The administration of all chapter 12 and chapter 13 bankruptcy cases is entrusted to private persons who are case or standing trustees under the supervision and oversight of a regional United States Trustee. As distinguished from case or standing trustees, United States Trustees are employees of the Department of Justice. A standing trustee is appointed by the United States Trustee under 28 U.S.C. 586 and administers more than one chapter 12 or chapter 13 case, as opposed to a case trustee who is appointed under 11 U.S.C. 1202 or 11 U.S.C. 1302 and who administers only the case to which the trustee is appointed. This rule addresses the right, conferred by the BAPCPA, of a standing trustee to obtain administrative review when the trustee's request for projected expenses, referred to as a “claim of actual, necessary expenses” in 28 U.S.C. 586(e)(3), is denied by the United States Trustee.

When a debtor files for bankruptcy relief under chapter 12 or chapter 13, the debtor proposes a plan to pay his or her creditors a percentage of the amounts owed to creditors over a specified period of time and obtains court approval of this plan. This process is termed confirming a chapter 12 or chapter 13 plan. Once the bankruptcy court confirms the plan, the trustee will oversee the payment of creditors pursuant to the plan. The debtor pays plan payments to the trustee and the trustee then disburses the appropriate amounts to creditors.

As part of the process of administering debtors' cases, a trustee incurs expenses. A trustee is authorized to collect a specified percentage from debtors' plan payments to pay for these expenses. However, before incurring expenses, a trustee obtains approval from the United States Trustee. As the first step in obtaining United States Trustee approval for expenses, the United States Trustee requires that the trustee submit a budget for the anticipated expenses for the fiscal year. The fiscal year for the chapter 12 standing trustee ends each June 30th; the fiscal year for the chapter 13 standing trustee ends each September 30th. Next, these projected expenses are evaluated by the United States Trustee who will either approve the expenses or require modifications to the proposed budget. Once the United States Trustee approves the trustee's budget, the trustee is notified of this approval, and pursuant to 28 U.S.C. 586(e), the trustee's compensation and a specified percentage fee that the trustee may collect from debtors' plan payments are authorized. This fee is to be used for payment of the approved expenses incurred during the fiscal year as well as for the trustee's compensation.

When a trustee realizes that expenses for the current year might exceed the approved amount, a trustee must submit a request to the United States Trustee, and obtain approval, before incurring expenses above the approved amount. This request must be submitted when the increase to an individual expense line item is greater than both 10% of the budgeted amount and $5,000.00. Expenses for certain items require prior United States Trustee approval regardless of amount. These expenses currently are increases in the amount budgeted for specified employee expenses, increases in office lease obligations, payments to the standing trustee or relative of the standing trustee, and expenses for any item not originally contained in the approved budget. This policy is set forth in the Handbook for Chapter 13 Standing Trustees which is posted on the EOUST's Web site and will be incorporated in the revised Handbook for Chapter 12 Standing Trustees. If any other expenses are added to this list, the United States Trustee will notify trustees via e-mail or regular mail at least 30 days before including the new expenses in a revision to the Handbook.

If a trustee disagrees with the United States Trustee's denial of the trustee's proposed budget or request for additional expenses, the trustee may seek administrative review of the denial under the procedures identified in this rule. The Director of EOUST (“Director”) will conduct a de novo review of the United States Trustee's decision to determine whether the record supports the United States Trustee's decision and whether the decision was an appropriate exercise of the United States Trustee's discretion or contrary to law.

With the passage of BAPCPA, Congress directed the Attorney General to prescribe procedures implementing administrative review for trustees when a claim of actual, necessary expenses is denied. The Attorney General delegated this authority to the Director. In response to this congressional mandate, the Director publishes this rule, which establishes such procedures. This rule imposes requirements only upon standing trustees who are supervised by United States Trustees. In addition, this rule addresses only the United States Trustee's denial of a trustee's claim of actual, necessary expenses. This rule does not address the suspension or termination of trustees. EOUST will publish another notice of proposed rulemaking that addresses the suspension or termination of trustees with a RIN number of 1105-AB12.

The final rule differs from the proposed rule in the following ways:

• The administrative review process has been expedited by shortening the time for a trustee to request review by the Director from 30 calendar days to 21 calendar days after receiving a notice of denial of expenses from the United States Trustee or after the expenses were deemed denied. Similarly, the United States Trustee's time to respond to the trustee's request for review has been shortened from 30 calendar days to 21 calendar days. These changes are reflected in paragraphs (e) and (h).

• Paragraphs (c)(1), (c)(2), and (k) have been revised to eliminate the reference to “the deadline” so that the review process cannot arbitrarily be delayed by setting long deadlines when the United States Trustee or the Director seeks the submission of additional information.

• Paragraph (i) has been revised to include the word “non-privileged” before “information” in order to make it consistent with paragraph (d) and so that it is clear that the rule does not seek to waive a trustee's right to assert traditional privileges.

• The rule has been revised to reflect differences in chapter 12 and chapter 13 fiscal years.

EOUST received two comments on the proposed rule, one of which had several sub-comments within it. EOUST has considered each comment carefully and appreciates the time and effort required to prepare and submit each comment. EOUST's responses to the comments are discussed below.

Comment: One comment expressed concern that the time limits in the rule allowed too much time to elapse before a final decision by the Director must be issued. The comment suggested shortening the deadlines for various stages during the administrative review process. Specifically, the comment recommended the United States Trustee deny a budget line item no later than October 10, the trustee appeal within 15 days, the United States Trustee respond within 10 days, and the Director issue a decision within 90 days of the trustee's request for review.

Response: EOUST recognizes that the administrative review process can be lengthy at times and has revised the rule to shorten the process as much as possible. However, sufficient time must be granted to the trustee, United States Trustee, and the Director to perform their respective duties to ensure a fair and just resolution is accomplished. In order to balance the competing interests of a quick resolution with that of obtaining the most equitable resolution that is fair to all parties, EOUST has modified some of the deadlines in the rule. Although the comment did not reference the time line for the chapter 12 trustee, the same concern would exist. Specifically, the time for a trustee to request review by the Director is shortened from 30 calendar days to 21 calendar days from the date of the United States Trustee's notice of denial or 21 calendar days from the date on which the trustee's expenses were deemed denied by the United States Trustee. Similarly, the United States Trustee's deadline for responding to the trustee's request for review has been shortened from 30 calendar days to 21 calendar days.

EOUST has not, however, modified the deadline for the United States Trustee to issue a denial of a trustee's requested expenses—July 30 for chapter 12 standing trustee expenses and October 31 for chapter 13 standing trustee expenses. Though trustees are generally required to submit a budget delineating the trustee's expenses by May 1 for chapter 12 trustees and July 1 for chapter 13 trustees, this is not always the case in every region, and many trustees submit budgets after the due date. In addition, it is not an infrequent occurrence for a chapter 12 trustee to submit a budget after June 1 or a chapter 13 trustee to submit a budget after September 1. When this occurs, the United States Trustee must have sufficient time to thoroughly review the trustee's proposed expenses. Thus, in order to ensure the United States Trustee has adequate time to review every trustee's expenses, including those submitted late, EOUST declines to modify the rule to require the United States Trustee to issue a denial by July 10 for chapter 12 trustees and by October 10 for chapter 13 trustees.

Comment: One comment pointed out that the language in the rule could significantly extend the time limits for reaching a resolution. In paragraphs (c)(1), (c)(2), and (k), the rule states that if the United States Trustee or the Director seeks additional information, the time period for resolution or denial is extended to 30 days beyond “the deadline for submission of the additional information.” The comment stated this could be read to allow the United States Trustee or the Director to set a long deadline for the submission of additional information, and thereby delay the review process.

Response: EOUST concurs that these paragraphs could be interpreted as the comment indicated, though that was not the intent. Accordingly, EOUST has modified paragraphs (c)(1), (c)(2), and (k) to eliminate the reference to “the deadline” so that the review process continues upon the submission of the additional information and cannot arbitrarily be delayed by setting long deadlines for the submission of that additional information.

Comment: One comment acknowledged that the rule does not require the United States Trustee to deny a trustee's claim for expenses when a trustee commits one of the reasons for denial as enunciated in paragraphs (b)(1) through (7), and that the United States Trustee possesses discretion to determine whether denial is appropriate. However, the comment advocated that the rule should include a “good cause” provision so that the United States Trustee may deny the trustee's claim for expenses only if the trustee's failure is without “good cause.”

Response: This change is unnecessary and could potentially transfer the burden of proof from the trustee to the United States Trustee when adjudicating a trustee's request for review. As the comment concedes, the rule does not eliminate the United States Trustee's discretion to approve or deny a trustee's claim for expenses.

The rule was intentionally drafted this way to provide the United States Trustee with sufficient flexibility to approve expenses, in appropriate circumstances, even when a trustee engages in one of the enumerated reasons for denial. EOUST agrees that the rule must have sufficient flexibility to account for special circumstances, such as the inability to obtain prior approval of an expense due to a flood or other natural disaster, which is precisely why the rule provides the United States Trustee with discretion. In addition, the rule requires the United States Trustee to communicate with the trustee in an attempt to resolve any dispute before issuing a notice of denial. Thus, the trustee will have ample opportunity to explain any reason or “good cause” to the United States Trustee, necessitating the immediate expenditures and which prevented the trustee from obtaining prior approval of such expenses.

As the rule is currently written, the United States Trustee possesses the discretion to deny a trustee's claim for expenses if the trustee engages in one of the delineated reasons for denial (or some similar reason). If an emergency situation caused the trustee to commit one of these failures, then the trustee can explain the emergency to the United States Trustee who may then decide that the claim for expenses may be approved. Or, if the United States Trustee feels the emergency did not warrant the trustee's failure, then the claim for expenses may be denied.

If the United States Trustee denies the claim for expenses, then the trustee may request the Director to review the United States Trustee's decision, and may present the emergency situation to the Director as a justifiable reason or “good cause.”

The crucial point is that the trustee has the opportunity to explain why an emergency situation caused the trustee's failure and the United States Trustee has the flexibility under the rule to approve or disapprove depending on what is most appropriate in the individual circumstances. Because the rule provides sufficient flexibility for emergency situations as written, there is no need to create a “good cause” provision. Moreover, the addition of a ”good cause” exception may inappropriately require the United States Trustee to prove that the “good cause” was insufficient to justify the trustee's failure before denying a claim for expenses, effectively transferring the burden of proving whether a trustee's failure was justified from the trustee to the United States Trustee. EOUST believes the trustee should bear the burden of proof in demonstrating whether a sufficient reason exists for excusing the trustee's failure. Accordingly, EOUST declines to modify the rule as proposed by the comment.

Comment: One comment pointed out that paragraph (d) requires the United States Trustee to provide “non-privileged” documents to the Director while paragraph (i) allows the Director to seek “additional information from any party.” The comment expressed concern that the asymmetry between these two paragraphs could mean that the rule intends to waive the trustee's right to assert traditional privileges.

Response: The asymmetry between the two paragraphs is inadvertent. EOUST is not attempting to waive a trustee's right to assert traditional privileges. Paragraph (i) is revised to include “non-privileged” before “information.”

Comment: One comment proposed striking the language stating that this rule does not authorize a trustee to seek review of any decision to change the trustee's percentage fee, concluding that the review of expenses without the review of the percentage fee is meaningless.

Response: The setting of the trustee's percentage fee and the allowance or disallowance of expenses, though related, are not inextricably tied together. Though the amount of a trustee's expenses is one factor in determining the trustee's percentage fee, it is not the only factor. A change in the level of expenses may or may not necessitate a change in a trustee's percentage fee. Further, 28 U.S.C. 586(e)(3) specifically requires the Attorney General to develop procedures for a standing trustee to obtain administrative review of the United States Trustee's decision to deny the trustee's claim for actual, necessary expenses. It is important to note that this right to review is expressly limited to the denial of a claim for expenses, not the setting of the trustee's percentage fee. In order to maintain the scope of review mandated by Congress, EOUST declines to modify the rule as requested by the comment.

This rule has been drafted and reviewed in accordance with Executive Order 12866, “Regulatory Planning and Review” section 1(b), The Principles of Regulation. This rule is not a “significant regulatory action” as defined by Executive Order 12866 and, accordingly, this rule has not been reviewed by the Office of Management and Budget.

The Department has also assessed both the costs and benefits of this rule as required by section 1(b)(6) and has made a reasoned determination that the benefits of this regulation justify its costs. The costs considered in this regulation include the costs for prosecuting an administrative appeal of the United States Trustee's denial of a trustee's claim of actual, necessary expenses. The anticipated costs are the compiling, photocopying and mailing of the requested records. However, none of these costs are new. This rule simply codifies the current practice for obtaining administrative review of the United States Trustee's decision.

The benefits of this rule include the codification of the process for a trustee to obtain administrative review of the United States Trustee's denial of a trustee's claim of actual, necessary expenses. These benefits justify its costs in complying with Congress' mandate to prescribe procedures to implement 28 U.S.C. 586(e)(3).

This rule will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

This rule does not contain an information collection under the Paperwork Reduction Act (44 U.S.C. 3501, et seq. ). If a trustee wishes to appeal the United States Trustee's decision, the trustee submits a request for review to the Director detailing the specific factual circumstances supporting the trustee's argument.

In accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), the Director has reviewed this rule and by approving it certifies that it will not have a significant economic impact on a substantial number of small entities. This certification is based upon the fact that this rule does not impose any new costs upon trustees that did not already exist under the current administrative review process. In addition, the costs of compiling, photocopying and mailing records are de minimis.

This rule does not require the preparation of an assessment statement in accordance with the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531. This rule does not include a Federal mandate that may result in the annual expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of more than the annual threshold established by the Act ($100 million). Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 801 et seq. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, and innovation; or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

Accordingly, for the reasons set forth in the preamble, Part 58 of chapter I of title 28 of the Code of Federal Regulations is amended as follows:

This amendment corrects a previously printed error in the final rule that mistakenly transposed geographic coordinates for the Algiers Canal Forebay and Huey P Long Bridge reporting points in Table 161.65(f), VTS Lower Mississippi River Reporting Points.

Accordingly, 33 CFR part 161 is corrected by making the following correcting amendment:

Regulatory Information

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 sufficient information regarding the dates and scope of the event was not received in time to publish a NPRM followed by a final rule as the event would occur before the rulemaking process was complete. Due to the dangers posed by the pyrotechnics used in this fireworks display, the safety zone is necessary to provide for the safety of event participants, spectator craft, and other vessels transiting the event area. For the safety concerns noted, it is in the public interest to have these regulations in effect during the event.

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 . Any delay in the effective date of this rule would expose spectators, vessels and other property to the hazards associated with pyrotechnics used in the fireworks display.

The legal basis for the temporary rule is 33 U.S.C. 1226, 1231, 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; Public Law 107-295, 116 Stat. 2064; and Department of Homeland Security Delegation No. 0170.1, which collectively authorize the Coast Guard to define safety zones.

The safety zone is being issued to establish a temporary regulated area on the Charles River around the fireworks launch barge during the fireworks display.

This temporary rule is necessary to ensure the safety of spectators, vessels and other property from the hazards associated with fireworks display. The COTP Boston has determined that fireworks displays in close proximity to watercraft and waterfront structures pose a significant risk to public safety and property. Such hazards include obstructions to the waterway that may cause marine casualties and the explosive danger of fireworks and debris falling into the water that may cause death or serious bodily harm. Establishing a safety zone around the location of this fireworks event will help ensure the safety of spectators, vessels and other property and help minimize the associated risks.

The Coast Guard has implemented safety zones for past events and has not received public comments or concerns regarding the impact to waterway traffic from these events.

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, 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 Coast Guard determined that this rule is not a significant regulatory action for the following reasons: The safety zone will be of limited duration, is located in waterways that have no deep draft commercial traffic and is designed to avoid, to the extent possible, fishing and recreational boating traffic routes.

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 would 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 enter, transit through, moor or anchor in portions of the Charles River during a fireworks display.

This rule will not have a significant economic impact on a substantial number of small entities for the following reasons: This rule will only be in effect for 1 hour and vessels will be able to transit around the safety zone. Before the effective period, we will issue maritime advisories widely available to users of the river.

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. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact MST1 David Labadie at the telephone number or e-mail address indicated under the FOR FURTHER INFORMATION CONTACT section of this notice.

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 expenditure, we do discuss the effects of this rule elsewhere in this preamble.

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction. This rule involves the establishment of a safety zone. 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 165 as follows:

On February 8, 2011, we published a notice of proposed rulemaking (NPRM) entitled “Safety Zone; Underwater Hazard, Gravesend Bay, Brooklyn, NY” in the Federal Register (76 FR 6728). We received no comments on the proposed rule. A public meeting was not requested and none was held.

In response to media reports of military munitions found in Gravesend Bay by civilian divers, U.S. Navy Explosive Ordnance Disposal divers from Naval Weapons Station Earle conducted underwater surveys and confirmed the location of munitions on the bottom of Gravesend Bay. The munitions consist of approximately 1500 rounds of 20mm ammunition, one 3-inch diameter projectile and two cartridge casings. The (COTP) New York has established a temporary safety zone under docket number USCG-2010-1126 as an interim measure while this long-term rulemaking process is pursued.

In the interest of public safety, the U.S. Navy has requested that the Coast Guard limit access to the location in Gravesend Bay where the munitions are located until the ordnance can be rendered safe and removed.

This safety zone is necessary to ensure the safety of mariners, vessels, and civilian divers from the potential hazards associated with unexploded military munitions.

The COTP New York is establishing a safety zone around the location of an unexploded munitions site to ensure the safety of mariners and vessels transiting near the location of the ordnance as well as divers intending to dive in the area.

The safety zone encompasses all waters of Gravesend Bay within 110-yard radius of position 40°36′30″ N, 074°02′14″ W (NAD 83), approximately 70-yards southeast of the Verrazano Bridge Brooklyn tower.

Entry into the safety zone by any person or vessel will be prohibited unless specifically authorized by the COTP New York, or the designated on-scene representative. Persons desiring to enter the safety zone may request permission to enter from the Coast Guard COTP via VHF Channel 16 or by contacting the Sector New York Command Center at (718) 354-4353.

The Coast Guard advises that entry into, transiting, diving, dredging, dumping, fishing, trawling, conducting salvage operations, remaining within or anchoring in this safety zone is prohibited unless authorized by the COTP New York or the designated on-scene representative.

The “designated on-scene representative” is any Coast Guard commissioned, warrant, or petty officer who has been designated by the COTP New York to act on her behalf.

The Coast Guard received no comments on the proposed rulemaking. No changes were made to the final 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, as supplemented by Executive Order 13563, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order.

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 entering into, transiting through, diving, dredging, dumping, fishing, trawling, conducting salvage operations, remaining within or anchoring in a portion of Gravesend Bay.

This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons. This safety zone will limit access to a relatively small portion of the waterway. Vessel traffic can safely transit around the safety zone. Before the activation of the zone, we will issue maritime advisories widely available to users of the waterway in the vicinity of Gravesend Bay.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule will have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

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 the establishment of a safety zone to restrict unauthorized persons and vessels from entering into, transiting through, diving, dredging, dumping, fishing, trawling, conducting salvage operations, remaining within or anchoring within a portion of Gravesend Bay until recently discovered military munitions are rendered safe and removed from the area.

An environmental analysis checklist and a categorical exclusion determination are available in the docket where indicated under ADDRESSES .

Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, and Waterways.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 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 any delay encountered in this regulation's effective date by publishing a NPRM would be contrary to public interest since immediate action is needed to provide for the safety of life and property on navigable waters.

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 safety of the event participants, spectator craft, and other vessels transiting the event area.

Coast Guard Sector Hampton Roads has been notified that on June 10, 11, and 12, 2011, Ocean City, MD will host an air show event above the Atlantic Ocean between Talbot Street and 33rd Street in Ocean City, MD. In recent years, there have been unfortunate instances of jet and plane crashes during performances at air shows. Typical of jet or plane crashes, there is also a wide area of scattered debris that damages property and could cause significant injury or death. Due to the need to protect mariners and the public transiting the Atlantic Ocean immediately below the air show from hazards associated with the air show, the Coast Guard is establishing a temporary safety zone bound by the following coordinates: 38°21′38″ N/075°04′04″ W, 38°21′27″ N/075°03′29″ W, 38°19′35″ N/075°04′19″ W, 38°19′45″ N/075°04′54″ W (NAD 1983). Access to this area will be temporarily restricted for public safety purposes.

The Coast Guard is establishing a temporary safety zone on the navigable waters of the Atlantic Ocean bound by the following coordinates: 38°21′38″ N/075°04′04″ W, 38°21′27″ N/075°03′29″ W, 38°19′35″ N/075°04′19″ W, 38°19′45″ N/075°04′54″ W (NAD 1983), in the vicinity of Talbot Street and 33rd Street in Ocean City, MD.

This safety zone is in the interest of public safety during the Ocean City Air Show and will be enforced from 10 a.m. until 4 p.m. on June 10, 2011, from 10 a.m. until 4 p.m. on June 11, 2011, and from 10 a.m. until 4 p.m. on June 12, 2011. Access to the safety zone will be restricted during the specified dates and times. Except for vessels authorized by the Captain of the Port or his Representative, no person or vessel may enter or remain in the safety zone.

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. Although this regulation restricts access to the safety zone, the effect of this rule will not be significant because: (i) The safety zone will be in effect for a limited duration; (ii) the zone is of limited size; (iii) mariners may transit the waters in and around this safety zone at the discretion of the Captain of the Port or designated representative; and (iv), the Coast Guard will make notifications via maritime advisories so mariners can adjust their plans accordingly.

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.

The rule would affect the following entities, some of which might be small entities: The owners or operators of vessels intending to transit or anchor on the Atlantic Ocean in the vicinity of Ocean City, MD from 10 a.m. until 4 p.m. on June 10, 2011, from 10 a.m. until 4 p.m. on June 11, 2011, and from 10 a.m. until 4 p.m. on June 12, 2011.

This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: (i) The safety zone will only be in place for a limited duration and limited size. (ii) Before the enforcement period of June 10, 2011 to June 12, 2011, maritime advisories will be issued allowing mariners to adjust their plans accordingly.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

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)(g), of the Instruction. This rule involves establishing a temporary safety zone. 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 165 subpart C as follows:

On February 7, 2011 (76 FR 6590), EPA published a notice of proposed rulemaking (NPR), proposing to determine that the Pittsburgh Area has attained the 1997 8-hour ozone NAAQS. The Pittsburgh Area is composed of Allegheny, Armstrong, Beaver, Butler, Fayette, Washington, and Westmoreland Counties in Pennsylvania. EPA's determination is based upon complete, quality-assured, quality-controlled, and certified ambient air quality monitoring data for the years 2007 to 2009 showing that the Pittsburgh Area has monitored attainment of the 1997 8-hour ozone NAAQS. Complete air quality monitoring data for 2010 in AQS also show continued attainment.

EPA is determining that the Pittsburgh Area has attained the 1997 8-hour ozone NAAQS based on 2007 to 2009 complete, quality-assured, and certified ambient air quality monitoring data. Data for 2010 are consistent with continued attainment. As provided in 40 CFR 51.918, a final determination of attainment suspends the requirement for the Commonwealth of Pennsylvania to submit, for the Pittsburgh Area, an attainment demonstration and associated RACM, RFP plan, contingency measures, and any other planning requirements related to attainment of the 1997 8-hour ozone NAAQS as long as the area continues to attain the 1997 8-hour ozone NAAQS. If EPA subsequently determines, after notice-and-comment rulemaking, that the Pittsburgh Area has violated the 1997 8-hour ozone NAAQS, the basis for the suspension of the specific requirements, set forth at 40 CFR 51.918, would no longer exist, and the Pittsburgh Area would thereafter have to address applicable requirements.

This action is not a redesignation of the area to attainment. The Pittsburgh Area will remain designated nonattainment for the 1997 8-hour ozone NAAQS until such time as EPA determines that the area meets the CAA requirements for redesignation to attainment, including an approved maintenance plan.

Other specific information regarding this determination and the rationale for EPA's proposed action are explained in the NPR, and will not be restated here.

On March 9, 2011, EPA received adverse comments on the NPR from Mr. Robert Ukeiley on behalf of the Chesapeake Bay Foundation, the Group Against Smog and Pollution, the National Parks Conservation Association, and the Sierra Club. A summary of the comments submitted and EPA's response is provided below.

Comment: The commenter stated that EPA should not approve the determination of attainment because the Pittsburgh Area does not have a plan to meet the 1997 8-hour ozone NAAQS.

Response: EPA disagrees with the commenter's assertion that no common sense or legal basis exists for EPA to finalize its determination of attainment. The sole question addressed by EPA's rulemaking is whether the monitored ambient air quality in the area shows that the area has attained the 1997 8-hour ozone standard. The commenter does not contest EPA's finding that the Pittsburgh Area meets this NAAQS. Upon EPA's final determination that the area has attained the standard, 40 CFR 51.918 provides that the CAA requirement to submit planning SIPs associated with attainment of that standard are suspended for as long as the area continues to have ambient air quality data that meets that NAAQS. This regulation, which was upheld by the United States Court of Appeals for the District of Columbia Circuit (DC Cir) in NRDC v. EPA, 571 F.3d 1245 ( DC Cir. 2009), is based on the principle that when an area is already attaining a standard, and continues in attainment, there is no basis for requiring planning SIPs to attain that standard. In other words, if an area is meeting the NAAQS, it does not need a plan to meet the NAAQS. No additional measures are required for the area to attain the standard, since the area is already in attainment. In any event, EPA's determination of attainment is based solely on quality-assured ambient air quality monitoring. It is 40 CFR 51.918 that directs the suspension of planning requirements for the 1997 8-hour ozone standard. This suspension lasts only for so long as the area continues in attainment. Contrary to the commenter's contention, under these circumstances there are no adverse impacts from the suspension.

Comment: The commenter asserts that the data from ambient air quality monitors in the Pittsburgh Area do not meet the 75 parts per billion (ppb) 2008 NAAQS or the 60 to 70 ppb levels proposed in EPA's reconsideration of the 2008 NAAQS.

Response: EPA's rulemaking action here addresses only the 1997 8-hour ozone NAAQS, and has no bearing on whether the area is attaining any other NAAQS or requirements under any other NAAQS. Therefore, this comment is not relevant to this rulemaking action.

Comment: The commenter alleges that EPA must perform an evaluation under CAA Section 110(l) to justify a determination of attainment for the Pittsburgh Area, and further alleges that CAA Section 110(l) would show that EPA should disapprove the attainment determination. The commenter contends that EPA must analyze how delaying implementation of the 1987 SIP revisions, including RACT, will interfere with other NAAQs attainment.

Response: CAA Section 110(l) applies explicitly and only to a “revision to an implementation plan.” As set forth in the response to comment above, EPA's rulemaking here is restricted to EPA's determination, based on ambient air quality, that the Pittsburgh Area is attaining the 1997 8-hour ozone standard. It is not a SIP revision, and thus section 110(l) is by its own terms not applicable to this rulemaking. It is not this determination of attainment, but rather EPA's ozone implementation rule, 40 CFR 51.918, that specifies the consequence of the determination as suspension of the area's obligations to submit an attainment demonstration, a RFP plan, contingency measures and other planning requirements related to attainment as SIP revisions for as long as the area continues to attain. In any case, the requirements that are suspended by the regulation are related solely to attainment for the 1997 8-hour ozone standard. EPA is determining, and the commenter does not contest, that the area is attaining that standard and the suspension of attainment planning SIP submissions lasts only as long as the area is meeting that standard. No other requirements are suspended. The commenter is incorrect in arguing that the determination of attainment would delay implementation of measures needed for attainment of the 1997 8-hour ozone standard, and that it would relax SIP control measures. This action has no effect on control measures, or air quality, in the area. For example, contrary to commenter's contention, RACT requirements for the 1997 8-hour ozone standard (or for any other standard), are not suspended or delayed by this determination, nor by 40 CFR 51.918.

In sum, no evaluation under section 110(l) is required by law, and even if such an evaluation were required, EPA would conclude that this determination of attainment would not interfere with attainment, reasonable further progress towards attainment, or any other applicable requirement of the CAA.

EPA has determined that the Pittsburgh Area has attained the 1997 8-hour ozone NAAQS based on 2007 to 2009 complete, quality-assured, and certified ambient air quality monitoring data. Data in AQS for 2010 are consistent with continued attainment. As provided in 40 CFR 51.918, this determination suspends the requirements for the Commonwealth of Pennsylvania to submit, for the Pittsburgh Area, an attainment demonstration and associated RACM, RFP plan, contingency measures, and any other planning requirements related to attainment of the 1997 8-hour ozone NAAQS as long as the area continues to attain the 1997 8-hour ozone NAAQS.

This action is not a redesignation. The Pittsburgh Area will remain designated nonattainment for the 1997 8-hour ozone NAAQS until such time as EPA determines that the area meets the CAA requirements for redesignation to attainment, including an approved maintenance plan.

This action makes a determination of attainment based on air quality and results in the suspension of certain Federal requirements, and does not impose additional requirements beyond those imposed by State law. For that reason, this proposed 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 determination that the Pittsburgh Area has attained the 1997 8-hour ozone NAAQS 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 these actions 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 August 1, 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 determination that the Pittsburgh Area has attained the1997 8-hour ozone NAAQS may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR part 52 is amended as follows:

EPA is determining that the Chattanooga Area (comprised Hamilton County in Tennessee, Catoosa and Walker Counties in Georgia, and a portion of Jackson County in Alabama) has attaining data for the 1997 annual PM 2.5 NAAQS. This determination is based upon quality assured, quality controlled and certified ambient air monitoring data that shows the Area has monitored attainment of the 1997 annual PM 2.5 NAAQS based on the 2007-2009 data.

Other specific requirements of the determination and the rationale for EPA's action are explained in the notice of proposed rulemaking (NPR) published on March 22, 2011 (76 FR 15895). For summary purposes, a monitor in Rossville did not meet data completeness requirements for 2007 due to monitor shut-down. Data substitution was used to determine the attainment status of the Rossville site. The Georgia Environmental Protection Division (GA EPD) developed a weight-of-evidence approach for an alternative method of data substitution. EPA determined that GA EPD successfully demonstrated a strong correlation between the PM 2.5 data from the Rossville site and two other sites in the Area. The annual design value for 2007-2009 for the Chattanooga Area is 12.7 μg/m 3 , at the Siskin Drive site (47-065-4002). The comment period closed on April 21, 2011. No comments were received in response to the NPR.

This final action, in accordance with 40 CFR 51.1004(c), suspends the requirements for this Area to submit attainment demonstrations, associated RACM, RFP plans, contingency measures, and other planning SIPs related to attainment of the 1997 annual PM 2.5 NAAQS as long as this Area continues to meet the 1997 annual PM 2.5 NAAQS. Finalizing this action does not constitute a redesignation of the Chattanooga Area to attainment for the 1997 annual PM 2.5 NAAQS under section 107(d)(3) of the Clean Air Act (CAA). Further, finalizing this action does not involve approving maintenance plans for the Area as required under section 175A of the CAA, nor does it involve a determination that the Area has met all requirements for a redesignation.

EPA is determining that the Chattanooga Area has attaining data for the 1997 annual PM 2.5 NAAQS. This determination is based upon quality assured, quality controlled, and certified ambient air monitoring data showing that this Area has monitored attainment of the 1997 annual PM 2.5 NAAQS during the period 2007-2009. This final action, in accordance with 40 CFR 51.1004(c), will suspend the requirements for this Area to submit attainment demonstrations, associated RACM, RFP plans, contingency measures, and other planning SIPs related to attainment of the 1997 annual PM 2.5 NAAQS as long as the Area continues to meet the 1997 annual PM 2.5 NAAQS. EPA is taking this final action because it is in accordance with the CAA and EPA policy and guidance.

This action makes a determination of attainment based on air quality, and will result in the suspension of certain federal requirements, and it will 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 1997 PM 2.5 clean NAAQS data determination for the Chattanooga Area 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 CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 1, 2011. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. ( See section 307(b)(2).)

40 CFR part 52 is amended as follows:

I. Background: On June 30, 1982 EPA delegated authority to implement the Federal PSD program in 40 CFR 52.21 to the MassDEP. On December 31, 2002, EPA published in the Federal Register revisions to the Federal PSD regulations (67 FR 80186). A final rule revising the Federal portions of implementation plans in 40 CFR part 52 to include the revisions to the Federal PSD regulations was published in the Federal Register on March 10, 2003. Both of these actions were effective on March 3, 2003.

On February 27, 2003, the MassDEP notified the Regional Administrator of EPA Region 1 that the MassDEP would not accept authority for the implementation of the amended PSD program and was ending its June 30, 1982, agreement with EPA to assume responsibility for implementing the Federal PSD regulations. The letter from the MassDEP explained that the MassDEP would no longer implement the Federal PSD program as of March 3, 2003. Consequently, as of March 3, 2003, sources of air pollution located in Massachusetts and subject to the Federal PSD program were required to apply for and receive a PSD permit from EPA New England before beginning actual construction.

On June 17, 2003, EPA published a Federal Register announcing the MassDEP's decision to end its delegation agreement with the EPA and explaining the consequences of this decision for owners and operators of sources that have PSD permits or that will need such permits in the future (68 FR 35881).

On April 4, 2011, the Commissioner of the MassDEP signed a delegation agreement under which EPA would again delegate responsibility for conducting source review under the Federal PSD regulations to the MassDEP.

II. Final Action: On April 11, 2011, the Regional Administrator of EPA Region 1 signed the delegation agreement, which is entitled “Agreement for Delegation of the Federal Prevention of Significant Deterioration Program by the United States Environmental Protection Agency, Region 1 to the Massachusetts Department of Environmental Protection,” and which sets forth the terms and conditions according to which the MassDEP agrees to implement and enforce the Federal PSD program. The Regional Administrator's signature on the delegation agreement grants full delegation of the Federal PSD regulations at 40 CFR 52.21 to the MassDEP pursuant to the terms and conditions of the delegation agreement, 40 CFR 52.21(u), and the requirements of the Clean Air Act.

Effective on April 11, 2011, all permit applications for new or modified major sources and all other information pursuant to 40 CFR 52.21 for sources in the Commonwealth of Massachusetts, and all inquiries regarding the implementation of 40 CFR 52.21 in the Commonwealth, should be sent directly to the MassDEP at the following address: Massachusetts Department of Environmental Protection, One Winter Street, Boston, MA, 02108. In addition, the MassDEP will assume responsibility to administer and enforce all PSD permits issued in Massachusetts, including those PSD permits already issued by EPA. EPA retains authority to issue and administer permits in certain limited areas of federal jurisdiction defined in the delegation agreement, and also retains authority to issue a PSD permit to Pioneer Valley Energy Center (PVEC) in Westfield, Massachusetts. Finally, EPA retains certain oversight roles regarding federal requirements, which are set forth in detail in the delegation agreement.

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

On August 2, 2010 (75 FR 45082), EPA proposed a limited approval and limited disapproval of the following rules that were submitted for incorporation into the California SIP.

We proposed a limited approval because we determined that these rules improve the SIP and are largely consistent with the relevant CAA requirements. We simultaneously proposed a limited disapproval because some rule provisions conflict with section 110 and part D of the Act. These provisions include the following:

The following provisions in Rule 361 conflict with section 110(a) the Act and prevent full approval of the SIP revision.

1. Section F.3 defines the length of the startup and shutdown intervals as “not last[ing] longer than is necessary to reach stable temperatures and conditions.” This leads to enforceability concerns due to the lack of specificity of the duration of these periods. The duration of these periods should be further specified.

2. Section G.4 states that documentation of fuel sulfur content must be kept as a record. The type of documentation required should be specified in the rule.

The following provisions in Rule 333 conflict with section 110(a) the Act and prevent full approval of the SIP revision.

1. Rule 333 includes various provisions allowing for APCO discretion without having explicit and replicable procedures that define how the discretion will be exercised to assure emission reductions.

2. Section F.3 indicates that portable analyzer reading in excess of the emission limits triggers another reading in 15 days and monthly readings for 3 months. These high portable analyzers readings should instead trigger a source test within 60 days of the excess emission reading.

3. Section I.1 indicates that source tests shall be performed at the engine's maximum load or under the engines' typical duty cycle as demonstrated by historical operation data. This should be constrained to the engine's maximum load or conditions specified in the Permit to Operate. The option for testing at the engine's typical duty cycle should be further defined and justified.

The TSDs describe additional rule revisions that we recommend for the next time the local agency modifies the rules but that are not the basis for disapproval at this time.

EPA's proposed action provided a 30-day public comment period. During this period, we received no comments.

No comments were submitted that change our assessment of the rules as described in our proposed action. Therefore, as authorized in sections 110(k)(3) and 301(a) of the Act, EPA is finalizing a limited approval of the submitted rules. This action incorporates the submitted rules into the California SIP, including those provisions identified as deficient. As authorized under section 110(k)(3), EPA is simultaneously finalizing a limited disapproval of the rule. If this disapproval is finalized, no sanctions will be imposed under section 179 of the Act because SBCAPCD is not required to have these rules in the applicable SIP. A final disapproval would also not trigger the 2-year clock for the federal implementation plan (FIP) requirement under section 110(c). Note that the submitted rules have been adopted by the SBCAPCD, and EPA's final limited disapproval does not prevent the local agency from enforcing it.

The Office of Management and Budget (OMB) has exempted this regulatory action from Executive Order 12866, entitled “Regulatory Planning and Review.”

This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq . Burden is defined at 5 CFR 1320.3(b).

The Regulatory Flexibility Act (RFA) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions.

This rule will not have a significant impact on a substantial number of small entities because SIP approvals and limited approvals/limited disapprovals under section 110 and subchapter I, part D of the Clean Air Act do not create any new requirements but simply approve requirements that the State is already imposing. Therefore, because this limited approval/limited disapproval action does not create any new requirements, I certify that this action will not have a significant economic impact on a substantial number of small entities.

Moreover, due to the nature of the Federal-State relationship under the Clean Air Act, preparation of flexibility analysis would constitute Federal inquiry into the economic reasonableness of State action. The Clean Air Act forbids EPA to base its actions concerning SIPs on such grounds. Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 42 U.S.C. 7410(a)(2).

Under sections 202 of the Unfunded Mandates Reform Act of 1995 (“Unfunded Mandates Act”), signed into law on March 22, 1995, EPA must prepare a budgetary impact statement to accompany any proposed or final rule that includes a Federal mandate that may result in estimated costs to State, local, or tribal governments in the aggregate; or to the private sector, of $100 million or more. Under section 205, EPA must select the most cost-effective and least burdensome alternative that achieves the objectives of the rule and is consistent with statutory requirements. Section 203 requires EPA to establish a plan for informing and advising any small governments that may be significantly or uniquely impacted by the rule.

EPA has determined that the limited approval/limited disapproval action promulgated does not include a Federal mandate that may result in estimated costs of $100 million or more to either State, local, or tribal governments in the aggregate, or to the private sector. This Federal action approves pre-existing requirements under State or local law, and imposes no new requirements. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, result from this action.

Federalism (64 FR 43255, August 10, 1999) revokes and replaces Executive Orders 12612 (Federalism) and 12875 (Enhancing the Intergovernmental Partnership). Executive Order 13132 requires EPA 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” is 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, EPA may not issue a regulation that has 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, or EPA consults with State and local officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that has federalism implications and that preempts State law unless the Agency consults with State and local officials early in the process of developing the proposed regulation.

This 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, as specified in Executive Order 13132, because it merely approves a State rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” This final rule does not have tribal implications, as specified in Executive Order 13175. It will not have substantial direct effects on tribal governments, 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. Thus, Executive Order 13175 does not apply to this rule.

EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the Executive Order has the potential to influence the regulation. This rule is not subject to Executive Order 13045, because it approves a State rule implementing a Federal standard.

This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866.

Section 12 of the National Technology Transfer and Advancement Act (NTTAA) of 1995 requires Federal agencies to evaluate existing technical standards when developing a new regulation. To comply with NTTAA, EPA must consider and use “voluntary consensus standards” (VCS) if available and applicable when developing programs and policies unless doing so would be inconsistent with applicable law or otherwise impractical.

The EPA believes that VCS are inapplicable to this action. Today's action does not require the public to perform activities conducive to the use of VCS.

Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States.

EPA lacks the discretionary authority to address environmental justice in this rulemaking.

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 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 . 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). This rule will be effective on June 30, 2011.

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 August 1, 2011. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements (see section 307(b)(2)).

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

Table of Contents I. Background II. This Action III. Comments and Responses IV. Final Action V. Statutory and Executive Order Reviews I. Background

Detailed background information and rationale for this final action can be found in EPA's proposed rule entitled “Approval and Promulgation of Implementation Plans; Extension of Attainment Date for the Charlotte-Gastonia-Rock Hill, North Carolina-South Carolina 1997 8-Hour Ozone Moderate Nonattainment Area,” 75 FR 46881 (August 4, 2010). The comment period for EPA's proposed action closed on September 3, 2010. EPA received three sets of comments on the August 4, 2010, proposed rulemaking which are discussed later in this rulemaking. This section includes a brief summary of the information and rationale for EPA's proposed approval of the bi-state Charlotte Area's one-year extension.

Section 181(b)(2)(A) requires the Administrator, within six months of the attainment date, to determine whether an ozone nonattainment area attained the NAAQS. CAA section 181(b)(2)(A) states that, for areas classified as marginal, moderate, or serious, if the Administrator determines that the area did not attain the standard by its attainment date, the area must be reclassified to the next classification. However, CAA section 181(a)(5) provides an exemption from these reclassification requirements. Under this provision, EPA may grant up to two one-year extensions of the attainment date under specified conditions. Specifically, in relevant part, section 181(a)(5) states:

Upon application by any State, the Administrator may extend for 1 additional year (hereinafter referred to as the “Extension Year”) the date specified in table 1 of paragraph (1) of this subsection if—

(A) The State has complied with all requirements and commitments pertaining to the area in the applicable implementation plan, and

(B) no more than 1 exceedance of the national ambient air quality standard level for ozone has occurred in the area in the year preceding the Extension Year.

The language in section 181(a)(5)(B) reflects the form of the 1-hour ozone NAAQS, which is exceedance based and does not reflect the 1997 8-hour ozone NAAQS, which is concentration based. Because section 181(a)(5)(B) does not reflect the form of the 8-hour NAAQS, EPA promulgated a regulation interpreting this provision in a manner consistent with Congressional intent but reflecting the form of the 1997 8-hour NAAQS. See 40 CFR 51.907. This regulation provides that an area will be eligible for the first of the one-year extensions under the 1997 8-hour NAAQS if, for the attainment year, the area's 4th highest daily 8-hour average is 0.084 parts per million (ppm) or less. The area will be eligible for the second extension if the area's 4th highest daily 8-hour value averaged over both the original attainment year and the first extension year is 0.084 ppm or less. No more than two one-year extensions may be issued for a single nonattainment area.

In summary, EPA interprets the CAA and implementing regulations to allow the granting of a one-year extension under the following minimum conditions: (1) The State requests a one-year extension; (2) all requirements and commitments in the EPA-approved SIP for the area have been complied with; and (3) the area has a 4th highest daily 8-hour average of 0.084 ppm or less for the attainment year (or an area's 4th highest daily 8-hour value averaged over both the original attainment year and the first extension year is 0.084 ppm or less, if a second one-year extension is requested). Because the bi-state Charlotte Area's attainment date was June 15, 2010, the “attainment year” used for this purpose is the 2009 ozone season. See 40 CFR 51.900(g). The North Carolina and South Carolina ozone seasons run from April 1 to October 31 of any given year.

EPA has determined that North Carolina and South Carolina have met the CAA requirements to obtain a one-year extension of the June 2010 attainment date for the 1997 8-hour ozone NAAQS for the bi-state Charlotte Area. As a result, EPA is taking final action to extend the bi-state Charlotte Area's attainment date from June 15, 2010, to June 15, 2011, for the 1997 8-hour ozone NAAQS. Specifically, EPA has determined that North Carolina and South Carolina are in compliance with the requirements and commitments associated with the EPA-approved implementation plans, and that the 4th highest daily concentration for 2009 for the bi-state Charlotte Area is below the 1997 8-hour ozone NAAQS. EPA has reviewed the 1997 8-hour ozone NAAQS ambient air quality monitoring data for the bi-state Charlotte Area, and has determined that these data are consistent with the ozone monitoring requirements contained in 40 CFR part 50, Appendix I. These data are recorded in the EPA Air Quality System database. These data are complete, quality-assured, quality-controlled, and certified ambient air monitoring data for 2009. On the basis of that review, EPA has concluded that for the attainment year ozone season of 2009, the bi-state Charlotte Area's 4th highest daily 8-hour average concentration was 0.071 ppm, which is below 0.084 ppm. As provided in CAA section 181(a)(5) and 40 CFR 51.907, this final action extends, by one year, the deadline by which the bi-state Charlotte Area must attain the 1997 8-hour ozone NAAQS. It also extends the timeframe by which EPA must make an attainment determination for the bi-state Charlotte Area.

As described in section 181(a)(5) of the CAA, areas may qualify for up to two one-year extensions. EPA notes that this final action only relates to the initial one-year extension. The bi-state Charlotte Area will be eligible for the second extension if the bi-state Charlotte Area's 4th highest daily 8-hour value averaged over both the original attainment year and the first extension year is 0.084 ppm or less and the continues to comply with all requirements and commitments pertaining to the bi-state Charlotte Area in the applicable implementation plan. Any analysis of whether the bi-state Charlotte Area qualifies for the second extension would be based on data from both the 2009 and 2010 ozone seasons. If requested at a future date, EPA will make a determination of the appropriateness of a second one-year extension for the bi-state Charlotte Area for the 1997 8-hour ozone NAAQS in a separate rulemaking.

EPA received one set of adverse comments  1 and two requests for additional information for its proposal to approve the requests from North Carolina and South Carolina to extend the attainment date for the bi-state Charlotte Area for the 1997 8-hour ozone NAAQS from June 15, 2010, to June 15, 2011. The comments, received by September 3, 2010, were from the Southern Environmental Law Center (SELC) on behalf of Clean Air Carolina and from two citizens (hereinafter referred to as “the Commenter”). Below is a summary of the comments and EPA's response.

Comment 1: The Commenter requests clarification on why the attainment date for the bi-state Charlotte Area needs an extension and on what grounds is the extension being granted.

Response 1: Effective June 15, 2004, EPA designated the bi-state Charlotte Area as nonattainment for the 1997 8-hour ozone NAAQS. Along with this nonattainment designation, EPA classified the bi-state Charlotte Area as a “moderate” ozone nonattainment area based on the level of the three year design value for the area at the time of EPA's designations. In accordance with the section 181 of the CAA, “moderate” areas are required to attain the ozone NAAQS “as expeditiously as practicable,” but no later than 6 years after EPA's nonattainment designation. This means that the bi-state Charlotte Area was required to attain the 1997 8-hour ozone NAAQS by June 15, 2010 (based on monitoring data from the 2007 through 2009 ozone seasons). In section 181(a)(5) of the CAA, Congress allows EPA to consider extension of the attainment dates for ozone areas provided the area meets the requirements for such extensions. See EPA's August 4, 2010, proposed rulemaking at 75 FR 46881 for the detailed rationale for approval of the bi-state Charlotte Area's attainment date extension, and the “Background” section of this rulemaking for more detail on the section 181(a)(5) requirements. EPA has made the determination that both North Carolina and South Carolina meet the requirements of section 181(a)(5) (as interpreted in 40 CFR 51.907) for the bi-state Charlotte Area for the 1997 8-hour ozone NAAQS, and as such EPA is granting an extension of the 1997 8-hour ozone attainment date from June 15, 2010, to June 15, 2011.

Comment 2: The Commenter requests that EPA incorporate by reference comments previously provided for the attainment demonstrations for the bi-state Charlotte Area. Specifically, the Commenter states “[t]hese comments incorporate by reference SELC's June 10, 2010 and May 19, 2010 comments to the agency on the North Carolina and South Carolina 8-hour ozone attainment demonstration plan submission, and SELC's March 29, 2010, March 22, 2010, December 17, 2009, November 13, 2003, and October 26, 2009, submissions to the North Carolina Division of Air Quality (`NCDAQ') and the South Carolina Bureau of Air Quality, all of which have been previously submitted to EPA.”

Response 2: EPA's August 4, 2010, proposed action relates to the States' requests for a one-year extension of the attainment date for the 1997 8-hour ozone NAAQS for the bi-state Charlotte Area, and does not relate to the approvability of the attainment demonstrations submitted by North Carolina and South Carolina for the bi-state Charlotte Area. There are separate requirements regarding requests for attainment date extensions (relevant to this final action and described in “Background” sections of EPA's August 4, 2010, proposed rulemaking and this final rulemaking) and approval of attainment demonstrations. EPA held a public comment period from August 4, 2010, through September 3, 2010, to provide the public with opportunity to specifically comment on the proposed approval of the attainment date extension for the bi-state Charlotte Area for the 1997 8-hour ozone NAAQS. The Commenter provided a detailed letter with their comments in opposition to EPA's proposed action to extend the bi-state Charlotte Area's attainment date to which EPA is responding in this final rulemaking. Although the Commenter suggests that EPA should incorporate by reference comments previously submitted to North Carolina and South Carolina during their state public comment periods for their attainment demonstrations and reasonable further progress plans, and to EPA during a public comment period on the attainment demonstration for the bi-state Charlotte Area, 2 the Commenter does not identify and EPA did not identify anything in those comments that are relevant to the analysis of whether the bi-state Charlotte Area is eligible for the first attainment date extension provided under CAA section 181(a)(5) and 40 CFR 51.907.

Comment 3: The Commenter asserts several times throughout the comment letter that EPA should reclassify the bi-state Charlotte Area to “serious” for the 1997 8-hour ozone NAAQS. Specifically, the Commenter states “EPA should instead reclassify the area to `serious' nonattainment status * * *” and “[i]n the wake of the missed deadline, the Act now requires reclassification of the Metrolina area to `serious' status.” The Commenter goes on to conclude that “[t]he proposed extension is inconsistent with the Clean Air Act's statutory scheme and its emphasis on attainment deadlines. EPA should require North and South Carolina officials to comply with the Act and prepare a SIP revision consistent with the Metrolina area's legally required bump-up to `serious' status.”

Response 3: EPA disagrees with the Commenter's assertions and conclusion that the Act requires the Agency to reclassify the bi-state Charlotte Area to “serious” for the 1997 8-hour ozone NAAQS “[i]n the wake of the missed deadline * * *” Congress contemplated the potential for areas to miss the attainment date deadlines in the CAA and allows for extensions of the attainment date deadline so long as areas meet the requirements of section 181(a)(5). EPA's analysis indicates that both North Carolina and South Carolina have met the requirements of section 181(a)(5) of the CAA (as interpreted by 40 CFR 51.907) for the initial one-year extension of the 1997 8-hour ozone moderate area attainment date for the bi-state Charlotte Area, and thus the Act does not require EPA to reclassify the bi-state Charlotte Area to “serious” status. Additionally, given that EPA has determined that the bi-state Charlotte Area qualifies for the one-year extension for the moderate ozone classification, the bi-state Charlotte Area is not subject to being “bumped-up” and thus is not subject to the planning requirements that would be triggered by a bump-up.

Comment 4: The Commenter states “[t]he deadline for meeting the 1997 ozone standard was June 15, 2010, and there is still no Federally approved State Implementation Plan (`SIP') for meeting that standard. As a result, EPA lacks authority to grant the proposed extension, and the Metrolina area should instead be reclassified to `serious' nonattainment status, triggering the development of a new plan with additional control strategies. As we explained in our previous comments, the Clean Air Act allows EPA to grant extensions only when a state has complied with all the requirements of the approved SIP for an area. The States have no approved SIP for meeting the ozone NAAQS in this area. As indicated in the notice, both states have provided `necessary SIP [State Implementation Plan] submittals,' intended to meet `outstanding requirements related to the 1997 8-hour ozone attainment demonstration for the bi-state Charlotte area.' But these plan submissions were not made until after the conclusion of the 2009 ozone season, and therefore could only purport to demonstrate attainment of the 1997 ozone NAAQS, retroactively, despite modeling and monitoring data to the contrary. The proposed extension signifies a de facto approval of these plans and introduces a relaxed post hoc standard, which would be contrary to the requirements of the Act and which would encourage states to take a `wait-and-see' approach to SIP control strategies.”

Response 4: EPA does not agree with the Commenter's assertion that EPA lacks the authority to grant the requests from North Carolina and South Carolina for an extension of the bi-state Charlotte Area's 1997 8-hour ozone attainment date. In EPA's August 4, 2010, proposed rulemaking, EPA explained that section 181(a)(5) of the CAA is what EPA must consider when contemplating a state's request for a one-year extension to an ozone attainment date. The Commenter appears to question whether North Carolina and South Carolina meet the requirements of section 181(a)(5)(A) which states “the State has complied with all requirements and commitments pertaining to the area in the applicable implementation plan * * *” As noted in EPA's August 4, 2010, proposed rulemaking, the “applicable implementation plan” is defined by the CAA in section 302(q) as “the portion (or portions) of the implementation plan, or most revision thereof, which has been approved under section 7410 of this title, or promulgated under section 7410(c) of this title, or promulgated or approved pursuant to regulations promulgated under section 7601(d) of this title and which implements the relevant requirements of this chapter.” [Emphasis added].Thus, the “compliance” that is relevant to evaluating the States' eligibility for an attainment date extension under section 181(a)(5) is solely with those requirements and commitments that have been approved into the existing SIP—not with those which may yet be approved. EPA has made an independent assessment of whether North Carolina and South Carolina are in compliance with all the requirements and commitments pertaining to the bi-state Charlotte Area in the applicable implementation plan, as defined by section 302(q), and the Agency has made the determination that both states are in compliance. EPA also notes that originally, North Carolina and South Carolina submitted attainment demonstrations for the bi-Charlotte Area for the 1997 8-hour ozone NAAQS on June 15, 2007, and August 31, 2007, respectively. Subsequently, both states withdrew their original attainment demonstrations but later submitted these attainment demonstrations with updated and supplemental information. EPA disagrees that this final action is a de facto approval of these plans. These plans are still pending before EPA. The Commenter also mentions that EPA's final action to approve the extension of the attainment date for the bi-state Charlotte Area introduces a relaxed post hoc standard, which would be contrary to the requirements of the Act and which would encourage states to take a “wait-and-see” approach to SIP control strategies. EPA disagrees. If EPA determines that a state has not submitted a required nonattainment area SIP, mandatory sanctions are imposed 18 and 24 months after such a finding and EPA is required to promulgate a Federal implementation plan within two years. The CAA provides appropriate incentives to ensure that states do not take a “wait and see” approach for attainment of the NAAQS. When North Carolina and South Carolina withdrew their original attainment demonstrations for the bi-state Charlotte Area (which were provided in 2007), EPA issued a finding of failure to submit. See 74 FR 21550 (May 8, 2009). The submissions that both North Carolina and South Carolina provided in 2009 were provided in response to EPA's finding of failure to submit.

Comment 5: One Commenter states “[t]he Metrolina area's ozone problem is chronic and significant.” Additionally, the Commenter cites the American Lung Association 2010 State of the Air Report and mentions that the report ranks Charlotte as the 10th most polluted city in the country for ozone. The Commenter goes on to state that “[i]n contrast to the anomalous 2009 ozone season, pollution levels during the first part of the 2010 summer have continued to exceed the 1997 standard of 84 ppb [parts per billion][or 0.084 ppm], with the `County Line' monitor registering as high as 96 ppb [or 0.096 ppm], and the Metrolina monitors recording 30 exceedances of the 2008 standard (75 ppb [or 0.075 ppm]) as of August 28, 2010. Air quality planning should do as much as possible to protect citizens' health in nonattainment areas, and at the very least, the region must comply with express Clean Air Act Requirements.” Another Commenter states “[t]he 2010 ozone season clearly shows that the current control methods to obtain attainment for the 1997 standard for the Charlotte region are not effective. The 2009 ozone season had favorable weather conditions. This alone allowed for the low ozone numbers. The intent of Congress, through the CAA, is for non-attainment areas to reach attainment. Delaying the decision by one year will allow the Charlotte area to continue building roads. Is not mobile sources the largest contributor to ozone formation in the Charlotte area?”

Response 5: EPA agrees with the Commenters that the unusually hot summer of 2010 resulted in more exceedances of the ozone NAAQS at the monitors within the bi-state Charlotte Area. However, based on EPA's preliminary evaluation of the data, the bi-state Charlotte Area appears to still be monitoring attainment for the 1997 ozone NAAQS. Additionally, EPA's preliminary evaluation indicates that the bi-state Charlotte Area could be eligible for the second extension of the attainment date, if requested. Regardless, air quality data for the 2010 ozone season is not relevant to the issue of whether the bi-state Charlotte Area qualifies for the first one-year extension of its attainment date as provided under CAA section 181(a)(5) and 40 CFR 51.907. EPA notes that nonattainment areas are allowed to build roads and are subject to requirements to demonstrate that these activities will not interfere with air quality goals. EPA's granting of the one-year extension to the attainment date will not relieve the bi-state Charlotte Area of continuing to make the demonstration that transportation planning activities will not interfere with air quality goals.

Comment 6: The Commenter states “EPA may only extend the nonattainment deadline for an area that has not met the NAAQS if ‘the State has complied with all requirements and commitments pertaining to the area in the applicable implementation plan.’ 42 U.S.C. § 7511(a)(5)(A). The Act defines ‘the term “applicable implementation plan’ ” as ‘the portion (or portions) of the implementation plan, or most recent revision thereof, which has been approved under section 110 of this title.’ Id. § 7602(q). [Emphasis added] Section 110, in turn, provides that `[e]ach State shall * * * adopt and submit to the Administrator, within 3 years * * * after promulgation of a [NAAQS] (or any revision thereof) under section 109 [42 § USCS 7409] for any air pollutant, a plan which provides for implementation, maintenance, an enforcement of such primary standard in each air quality control region * * * within such State,' Id. § 7410(a)(1). Section 110 goes on to prescribe that `each such plan shall * * * meet the applicable requirements of Part D of this subchapter (relating to nonattainment areas).' Id. § 7410(a)(1). Among the applicable requirements of Part D, `plan provisions * * * shall provide for attainment of the national ambient air quality standards.' Id. § 7502(c)(1). In other words, to qualify for an extension, a state must comply with its federally approved SIP, which among other requirements, must demonstrate attainment.”

Response 6: EPA agrees with the Commenter's citation to 42 U.S.C. 7511(a)(5)(A)[section 181(a)(5)(A)], and to 42 U.S.C. 7602(q) [section 302(q)] as the relevant provisions of the CAA to consider. Additionally, EPA agrees with the Commenter's emphasis on “which has been approved” of the Act's definition for the term “applicable implementation plan.” It is the emphasis on “which has been approved” that EPA relied on to make the determination that North Carolina and South Carolina are meeting the requirements of 181(a)(5)(A). However, EPA does not agree with the Commenter's apparent broadening of the definition of “applicable implementation plan” to mean that EPA must consider plans which have not yet been approved. The CAA is unambiguous on the requirements for EPA to grant an extension and on what EPA should consider as the “applicable implementation plan,” and based on those requirements, EPA has determined that both North Carolina and South Carolina qualify for an extension of the attainment date for the 1997 8-hour ozone NAAQS for the bi-state Charlotte Area.

Comment 7: The Commenter notes that both North Carolina and South Carolina submitted attainment demonstrations for the bi-state Charlotte Area in 2007, but later withdrew these submissions after EPA sent a letter to both States with a recommendation that North Carolina and South Carolina request a voluntary reclassification of the bi-state Charlotte Area to “serious” status for the 1997 8-hour ozone NAAQS. Additionally, the Commenter notes that in EPA's letter, the Agency states “if we are required to take rulemaking action on the SIP, we see no alternative to proposing disapproval of the SIP's attainment demonstration.” The Commenter goes on to state that “[c]learly, the States submitted `a plan' as contemplated by the extension provision, but it was not an approvable plan, and therefore, not a plan that would provide a basis for a future extension request. Indeed, rather than demonstrate attainment, the modeling in the submissions actually predicted that the area would fail to meet the standard by the deadline. After signaling its intent to disapprove the submissions, however, EPA allowed the States to “withdraw” their plans, an action that is not authorized under the Clean Air Act, which contravenes EPA's obligation to take action on a plan submission, and `approve or disapprove it, either in whole or in part.' ”

Response 7: These comments are not relevant to this rulemaking. The issues raised concern whether attainment demonstrations submitted in 2007 adequately demonstrated whether the bi-state Charlotte Area would attain the 1997 ozone NAAQS by June 2010 and they do not address whether the bi-state Charlotte Area qualifies for an attainment date extension. EPA notes, however, that we disagree with the Commenter's assertion that States are not authorized under the CAA to withdraw submitted SIPs. The CAA does not directly address this issue; however, EPA can see no reasonable interpretation that the Act prohibits a state from withdrawing a submitted plan prior to EPA final action. The CAA provides states with a choice whether to submit plans and to take the lead in regulating sources for purposes of attainment and maintenance of the NAAQS. Consistent with that overall paradigm, states can choose to withdraw submitted SIPs at any time prior to EPA final action, which establishes those requirements under Federal law. Once the plan is approved and made Federally enforceable, it can no longer be withdrawn or altered except through a SIP revision or a Federal implementation plan. If the withdrawn SIP had been submitted to meet a specific statutory requirement and the state does not replace the SIP submission upon withdrawal with a new SIP submission to meet that statutory requirement (or, in appropriate instances, with an attainment determination that suspends the obligation to meet such requirement), EPA has the authority to make a finding of failure to submit for that required submission. EPA also notes that subsequently, both North Carolina and South Carolina resubmitted their attainment demonstrations for the 1997 8-hour ozone NAAQS.

Comment 8: The Commenter states that “[d]uring the 2009 ozone season, cool temperatures and a slow economy contributed to a dramatic decline in ozone pollution, albeit not enough to bring the three-year ozone design value into attainment by the June 2010 deadline. Nevertheless, the States have resubmitted their `withdrawn' 2007 submissions for public comment and agency approval, along with supplemental plans that establish higher motor vehicle emissions budgets. These submissions do not provide the legal basis for an extension because they have never been federally approved, and thus have not be made federally enforceable, see 42 U.S.C. § 7413, and they therefore do not meet the definition of `applicable implementation plan.' ”

Response 8: As provided in previous responses, EPA disagrees with the Commenter's premise that the attainment demonstration submissions are required to be approved in order for EPA to grant the request from North Carolina and South Carolina for a one-year extension to the attainment date for the 1997 8-hour ozone NAAQS.

Comment 9: The Commenter states that “EPA's Federal Register notice appears to indicate that the States `are meeting their federally-approved implementation plans' by virtue of adequate monitoring alone. 75 Fed. Reg. 46881, 46883.” Further, the Commenter mentions that “EPA guidance documents direct states requesting an extension under 42 U.S.C. § 7511(a)(5) to both certify compliance with the approved SIP for the current classification, and to document the preparations being taken to address the `consequences of eventually not attaining the NAAQS,' including meeting new requirements that take effect upon reclassification of the area.” The Commenter concludes this point by stating “[t]he States' extension requests, however, neither explain how they have complied with all requirements of an `approved SIP' that does not exist, nor mention the possibility that the area might not attain the NAAQS by the extended deadline.”

Response 9: EPA disagrees with the Commenter's assertion that EPA's analysis of whether North Carolina and South Carolina “are meeting their federally-approved implementation plans” is “by virtue of adequate monitoring alone.” Over the past several years, the bi-state Charlotte Area has benefitted from the reduction in emissions attributable to the implementation of federal, state and local programs. Some of the federal control measures that have come on line since the bi-state Charlotte Area was designated nonattainment for the 1997 8-hour ozone NAAQS in 2004 include: Tier 2 vehicle and fuels standards; heavy-duty gasoline and diesel highway vehicle standards; nonroad spark-ignition engines and recreational engines standards; and large nonroad diesel engine standards. North Carolina has also implemented state programs that have provided emissions reductions in the bi-state Charlotte Area. These state programs include: (1) The Clean Air Bill which expanded the inspection and maintenance program from 9 to 48 counties; (2) North Carolina's nitrogen oxide (NOx) SIP Call rule which was predicted to reduce summertime NOx emissions from power plants and other industries by sixty-eight percent; and (3) North Carolina's Clean Smokestack Act which required coal-fired power plants in North Carolina to reduce annual NOx emissions by seventy-seven percent by 2009, and to reduce annual sulfur dioxide emissions by forty-nine percent by 2009 and seventy-three percent by 2013. Additionally, EPA disagrees with the Commenter's statement that an “approved SIP” does not exist for the bi-state Charlotte Area. As noted in EPA's proposed rulemaking, the “applicable implementation plan” is defined by the CAA in section 302(q) as the portion (or portions) of the implementation plan, or most recent revision thereof, which has been approved under section 110, or promulgated under section 110(c), or promulgated or approved pursuant to regulations promulgated under section 301(d) and which implements the relevant requirements of the CAA. Lastly, EPA disagrees with the Commenter's statement indicating that the States did not provide the necessary certification regarding compliance with their approved SIPs. On April 28, 2010, NC DENR stated in a letter to EPA, that it “certifies that the state has complied with all requirements and commitments pertaining to the area in the applicable ozone implementation plan.” On May 6, 2010, SC DHEC, in a letter to EPA, stated “South Carolina has complied with all requirements and commitments pertaining to the area in the South Carolina State Implementation Plan.” EPA believes that these statements provide the necessary certification from the States. EPA also notes that North Carolina and South Carolina considered the consequences of eventually not attaining the NAAQS. They conducted modeling for the year 2012 in case they did not have clean data and were required to be reclassified to serious. That modeling would have been submitted to EPA as the States' attainment demonstration for a serious classification had the area been reclassified to serious.

Comment 10: The Commenter states that “[t]he agency's permissive proposed approach would encourage poor air quality planning. Indeed, the State's plan submissions allow unfettered expansion of the area's highway network without regard to long-term air quality consequences.” The Commenter goes on to say that “[r]eclassification of the area to `serious' nonattainment status would require better developed and more accurate travel modeling that would help to ensure that road capacity investments will not compromise air quality for years to come. See 40 CFR § 93.122”

Response 10: The August 4, 2010, proposed rulemaking and this final action do not involve the approval of any plans for the bi-state Charlotte Area for the 1997 8-hour ozone standard. Additionally, while not relevant to this final action, EPA notes that the development of the mobile emissions in the States' attainment demonstration plans for the bi-state Charlotte Area were developed through a required interagency process, pursuant to 40 CFR 93.105, that includes federal, state and local air quality and transportation partners. The Commenter mentions that the “[r]eclassification of the area to `serious' nonattainment status would require better developed and more accurate travel modeling that would help to ensure that road capacity investments will not compromise air quality for years to come.” While EPA agrees that there are different travel demand modeling requirements for “serious” versus “moderate” ozone areas, EPA also notes that 40 CFR 93.122(d) states “[i]n all areas not otherwise subject to paragraph (b) of this subsection, regional emissions analyses must use those procedures described in paragraph (b) of this section if the use of those procedures has been the previous practice of the MPO * * *” The transportation modeling requirements for “serious” areas are outlined in 40 CFR 93.122(b). In a letter dated December 3, 2010, NC DENR provided EPA with additional information regarding the travel demand modeling practices currently employed in the bi-state Charlotte Area. Attached to the letter, the Senior Transportation Planner for the Charlotte Department of Transportation provides a comparison of the current practice for travel demand modeling for the entire bi-state Charlotte Area and the requirements of 40 CFR 93.122(b) for a “serious” area. The comparison demonstrates that the current practices for travel demand modeling meet the requirements for a “serious” area although the bi-state Charlotte Area is a “moderate” area. NC DENR's December 3, 2010, letter can be found in the docket for this final rulemaking. A reclassification of the area to “serious” would not change the current travel demand modeling practice in the bi-state Charlotte Area since the bi-state Charlotte Area is currently meeting the “serious” area requirements, and in accordance with 40 CFR 93.122(b) and (d), this practice must be maintained.

Comment 11: The Commenter mentions that “[s]tate officials have argued that reclassifying and undertaking more stringent control measures to ensure compliance with the existing ozone standard is unnecessary because EPA will soon approve a new standard and require new plans to meet the standard.” Further, the Commenter goes on to say, “* * * not only has EPA recently delayed its expected release of the new, stricter standards, but even without delay, waiting until implementation of the new standard would result in several years of delay in the adoption of the additional control measures required today as part of `bump up' to a `serious' classification.” The Commenter continues by noting the delay of the promulgation of the new ozone standard and anticipated dates for the attainment demonstration submissions. The Commenter mentions “approval of inadequate plans now will only delay efforts to address the serious air quality problems in the Charlotte metro area and make attainment under the 2008 standard, or a stronger one, much more difficult, uncertain, and expensive.”

Response 11: Neither the States' position (as articulated by the Commenter) nor this comment are relevant to this action. This action solely concerns whether the States have demonstrated that a one-year attainment date extension is appropriate for the 1997 ozone NAAQS. EPA notes that in a separate process, the Agency is reconsidering the 2008 ozone NAAQS and, if EPA determines a different NAAQS should be promulgated, the Agency will undertake rulemaking to address the requirements for the implementation of that NAAQS. The fact that EPA may issue a new standard at a future date has no bearing on whether the area qualifies for a one-year extension of its attainment date for the 1997 ozone NAAQS.

Comment 12: In their comment letter, the Commenter notes that at a meeting with EPA Region 4, EPA staff suggested that the Act requires the Agency to grant an extension. The Commenter states “[n]o legal grounds exist for such an interpretation” and goes on to state “[t]he agency only has authority to grant an extension when a state's air quality and compliance with an approved implementation plan satisfy the statutory requirements, and even then, the agency's authority to grant an extension is discretionary.” The Commenter also states “To the contrary, disapproving the plan submissions and requiring bump-up is the only action that complies with the plain meaning of the Clean Air Act.”

Response 12: For the reasons provided in previous comments, EPA disagrees with the Commenter's interpretation of the Act.

EPA is taking final action to approve North Carolina's April 28, 2010, and South Carolina's May 6, 2010, requests for EPA to grant a one-year extension (from June 15, 2010 to June 15, 2011) of the bi-state Charlotte Area attainment date for the 1997 8-hour ozone NAAQS. EPA has determined that both North Carolina and South Carolina have met the statutory requirements for such an extension.

Under the CAA, the Administrator is required to approve SIP submissions and requests that comply with the provisions of the Act and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing the States' requests for an extension of the 1997 8-hour ozone NAAQS attainment date for the bi-state Charlotte Area, EPA's role is to approve the States' requests, provided that they meet the criteria of the CAA. Accordingly, this proposed action merely approves a state request for an extension of the 1997 8-hour ozone NAAQS attainment date as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this final 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).

EPA has also determined that the one year extension for the bi-state Charlotte Area does not have Tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because there are no “substantial direct effects” on an Indian Tribe as a result of this action. The Catawba Indian Nation Reservation is located within the South Carolina portion of the bi-state Charlotte Area. EPA notes that the proposal for this rule incorrectly stated that the South Carolina “SIP is not approved to apply in Indian country located in the state.” However, pursuant to the Catawba Indian Claims Settlement Act, S.C. Code Ann. 27-16-120, “all state and local environmental laws and regulations apply to the [Catawba Indian Nation] and Reservation and are fully enforceable by all relevant state and local agencies and authorities.” Thus, the South Carolina SIP does apply to the Catawba Reservation. This final action to approve the one year extension for the bi-state Charlotte Area, however, does not add, subtract or change any existing state or local regulations in the SIP. Therefore, EPA has determined that there will be no substantial direct effects to the Catawba. In addition, EPA also notes that this final action 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 CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 1, 2011. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR part 81 is amended as follows:

This is a summary of the Commission's Report and Order, FCC 11-57, adopted on April 5, 2011, and released on April 6, 2011, as corrected by an erratum issued on April 15, 2011. The full text of this document is available for inspection and copying during normal business hours in the FCC Reference Information Center, Room CY-A257, 445 12th Street, SW., Washington, DC 20554. The complete text may be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc. (BCPI), Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, (202) 488-5300, facsimile (202) 488-5563, or via e-mail at fcc@bcpiweb.com. The complete text is also available on the Commission's Web site at http://wireless.fcc.gov/edocs_public/attachment/FCC-11-57A1doc. This full text may also be downloaded at: http://wireless.fcc.gov/releases.html. Alternative formats (computer diskette, large print, audio cassette, and Braille) are available by contacting Brian Millin at (202) 418-7426, TTY (202) 418-7365, or via e-mail to bmillin@fcc.gov.

The Federal Communications Commission makes additional spectrum available for new investment in mobile broadband networks while also ensuring that the United States maintains robust MSS capabilities. This action is consistent with Recommendation 5.8.4 of the National Broadband Plan, which recommended that 90 megahertz of spectrum allocated to MSS could be made available for terrestrial mobile broadband use, while preserving sufficient MSS capability to serve rural areas, public safety, and other important national purposes. The rules adopted herein: (1) Add co-primary Fixed and Mobile allocations to the MSS 2GHz band, consistent with the International Table of Allocations, and (2) extend the Commission's existing secondary market spectrum manager spectrum leasing policies, procedures, and rules that currently apply to wireless terrestrial services to services provided using the ATC of an MSS system.

1. Mobile Satellite Service Spectrum Allocation. MSS is a radiocommunications service involving transmission between mobile earth stations and one or more space stations. As we discussed in the MSS NPRM, three MSS frequency bands are capable of supporting broadband service: The 2 GHz band (“S-band”) from 2000-2020 MHz and 2180-2200 MHz, the Big LEO Band from 1610-1626.5 MHz and 2483.5-2500 MHz, and the L-band from 1525-1559 MHz and 1626.5-1660.5 MHz. 75 FR 49871 (August 16, 2010). Although the International Table of Allocations includes a primary Fixed and Mobile services allocation along with the primary Mobile-Satellite allocation in the S-band, such co-allocations do not exist in the U.S. Table. The Big LEO and L-bands are not allocated for Fixed and Mobile services either in the United States or on an international basis.

2. In addition, as noted in the MSS NOI, MSS has the capability to serve important needs, such as rural access and disaster recovery. 75 FR 49871 (August 16, 2010). MSS has the ability to provide communications to mobile user terminals anywhere in the United States, including in remote areas where people are without basic telecommunications services. MSS is particularly well suited for meeting the needs of the transportation, petroleum, and other vital industries. MSS operators have the ability to operate when existing terrestrial infrastructure is non-existent or has been degraded or destroyed and therefore can meet public safety and emergency communication needs in times of national crises and natural disasters. For example, MSS satellite networks were utilized in the aftermath of the terrorist attacks of September 11, 2001, and during the hurricane season of 2005. MSS units provide interoperable connections between emergency responders and other communications networks, and can even link U.S. emergency response providers with counterparts in neighboring countries.

3. Terrestrial Use of MSS Spectrum. At present, use of these MSS bands for terrestrial mobile service is permitted only under the Commission's ATC rules and in association with the existing satellite system authority. The Commission adopted the ATC rules in 2003. ATC consists of terrestrial base stations and mobile terminals that re-use frequencies assigned for MSS operations. In the MSS NPRM, we noted that technological developments involving the use of MSS/ATC spectrum could soon lead to the provision of mobile broadband services similar to those provided by terrestrial mobile providers. In particular, we observed that SkyTerra (now LightSquared) plans to construct an integrated national satellite/terrestrial mobile broadband network, which would make use of both MSS spectrum and terrestrial spectrum that it has already leased in the secondary market, and that the services it would offer have the potential to expand services offered in the overall market of mobile terrestrial wireless services and to enhance competition in this larger mobile marketplace. In addition to LightSquared, three other MSS licensees have received ATC authority, although none of these currently has commercial terrestrial ATC stations in operation. We note that Globalstar's ATC authority has been suspended for failure to come into compliance with the ATC “gating criteria” as required pursuant to the temporary waiver granted in 2008.

4. Secondary Market Policies and MSS Spectrum. Currently, the Commission's secondary markets spectrum leasing framework, which applies to terrestrial Wireless Radio Services licenses, does not extend to ATC uses of MSS spectrum. In the Secondary Markets First Report and Order adopted in 2003, the Commission established policies and rules by which terrestrially-based Wireless Radio Service licensees could lease some or all of the spectrum usage rights associated with their licenses to third party spectrum lessees, which could then provide wireless services consistent with the underlying license authorization. 68 FR 66232 (November 25, 2003). The Commission provided for two different types of spectrum leasing arrangements for Wireless Radio Services: Spectrum manager leasing arrangements and de facto transfer leasing arrangements. Spectrum manager leasing arrangements require the licensee to maintain an active role in ensuring compliance with applicable Commission policies and rules but do not involve a transfer of de facto control under 47 U.S.C. 310(d), while de facto transfer leasing arrangements involve a transfer of de facto control and require Commission approval. In establishing these secondary market policies, the Commission sought to promote more efficient, innovative, and dynamic use of the spectrum, expand the scope of available wireless services and devices, enhance economic opportunities for accessing spectrum, promote competition among terrestrial wireless service providers, and eliminate regulatory uncertainty surrounding terrestrial spectrum leasing arrangements. At that time, however, the Commission decided not to extend these spectrum leasing policies and rules to satellite services. In particular, the Commission recognized that there already was a well-established set of policies and rules in effect for satellite-capacity transponder leasing, the kinds of leasing arrangements that were occurring in the context of satellite services. Satellite-capacity transponder leasing arrangements differ from spectrum leasing arrangements. Among other things, satellite-capacity transponder leasing does not involve the leasing of spectrum. Subsequently, the Commission extended the leasing framework to additional Wireless Radio Services and to Public Safety services, as well as to other terrestrial spectrum bands that became available.

5. More recently, as ATC services have begun to develop, the Commission has drawn guidance from the Wireless Radio Services secondary market leasing policies. In 2008, the Commission determined that its ATC policies specifically contemplated that MSS licensees could lease access to spectrum to third-party terrestrial providers so long as the requisite ATC gating requirements are met. Furthermore, the Commission found in one case that the particular ATC spectrum leasing arrangement at issue—which the parties had directly modeled on the requirements for spectrum manager leasing arrangements already available to terrestrial wireless services—was consistent with Commission policy, including the statutory requirement relating to transfers of control under 47 U.S.C. 310(d) that applied to Wireless Radio Services under the secondary market policies. Specifically, the Commission found that the leasing arrangement was consistent with a spectrum manager leasing arrangement under its spectrum leasing policies for Wireless Radio Services. Thus, even though the Commission did not adopt the terrestrial Wireless Radio Services spectrum leasing policies and rules for MSS/ATC spectrum leasing arrangements in a rulemaking context, it nonetheless applied the statutory interpretation relating to those policies and rules to the particular lease of MSS spectrum associated with an ATC authorization.

6. As proposed in the MSS NPRM, we add Fixed and Mobile allocations to the 2000-2020 MHz and 2180-2200 MHz band. These allocations will be co-primary with the existing Mobile Satellite allocation. By adding these allocations to the band, we will be in a position to provide greater flexibility for use of this spectrum in the future. In addition, this change in allocation will bring our allocations for the band into harmony with the International Table of Allocations. We take no action on the proposal in the MSS NPRM that, in the event that a 2 GHz MSS license is returned or cancelled, the spectrum covered by the license should not be assigned to the remaining MSS licensee or made available to a new MSS licensee.

7. Our proposal to add Fixed and Mobile allocations to the 2 GHz MSS band received wide support from both satellite and terrestrial wireless licensees. Only Boeing opposed the proposal. Boeing argues that adding this allocation will undermine the ability of 2 GHz MSS licensees to provide service in rural areas, provide valuable service to public safety, and assist in disaster recovery. Boeing also points out that keeping MSS primary in the 2 GHz MSS band promotes the goal of international harmonization with respect to satellite services. Boeing also claims that MSS networks provide the only means to create a next generation air traffic management (ATM) communication, navigation, and surveillance infrastructure. Boeing explains that it obtained a 2 GHz MSS license in 2001 with a goal of developing such a system but that economic conditions and other factors thwarted the plan. Boeing still believes that development of an ATM system is critical to the future of aviation.

8. We agree that MSS networks are a necessary and critical part of this nation's communications infrastructure, and serve an important role in meeting the needs of rural areas, the public safety community, and disaster recovery, but conclude that these needs can continue to be satisfied under the rules we adopt. MSS remains co-primary in the 2 GHz MSS band, which is consistent with international allocations. As we stated in the MSS NPRM, the addition of Fixed and Mobile allocations to the 2 GHz MSS band is merely a first step toward providing flexibility to allow greater use of the band for mobile broadband. The existing service rules that permit MSS and ATC operation in the band will not be altered solely by the addition of Fixed and Mobile allocations to the band. Both of the MSS licensees in the band will continue to operate under the terms of their existing licenses and must comply with all of the Commission's satellite and ATC rules. Furthermore, we are not altering the allocation for the Big LEO band or the L-band.

9. As to the development of an ATM system, we express no opinion as to the need for such a system, whether it should be satellite-based, or whether the 2 GHz band is a suitable location for it. As a practical matter, we note that Boeing has returned its 2 GHz MSS license. At the same time, there is evidence of exploding demand for spectrum for mobile broadband networks. Given all of the foregoing, we believe that adding Fixed and Mobile allocations to the 2 GHz MSS band will provide additional flexibility to meet this demand in the future and therefore is in the public interest.

10. We also modify three footnotes to the U.S. Table to be consistent with this change in allocation. Footnote US380 permits MSS operators to operate ATC in conjunction with MSS networks despite the fact that these bands have not been allocated for Fixed and Mobile uses. Because we have now added Fixed and Mobile allocations to the 2000-2020 MHz and 2180-2200 MHz band, US380 is no longer needed for this band. We amend footnote US380 to remove this band while keeping US380 in place for the MSS Big LEO and L-bands. Two footnotes, NG156 and NG168 permit certain Broadcast Auxiliary Service (BAS) and Fixed Service (FS) licensees, respectively, to continue to operate on a primary basis until December 9, 2013 (the sunset date for the band). Because the relocation of the BAS incumbents out of the 2000-2020 MHz band has been completed, footnote NG156 which addresses the status of the BAS incumbents is no longer needed. Therefore, we remove footnote NG156 from the U.S. Allocation Table. We amend footnote NG168 to clarify that existing Fixed and Mobile operations in the 2180-2200 MHz band ( i.e. the pre-existing FS licensees) shall become secondary after the band sunset date while ATC operations by MSS will continue to be permitted on a primary basis after the sunset date.

11. In sum, we find that adding co-primary Fixed and Mobile allocations along with the MSS allocation in the 2 GHz band serves the public interest. Our actions bring the allocations into harmony with the international allocations. We also lay the foundation for more flexible use of the band in the future, thereby promoting investment in the development of new services and additional innovative technologies. In adding these co-primary allocations and in applying certain secondary market spectrum leasing rules to ATC leasing arrangements we have not altered in any way the existing ATC service rules and policies that the Commission previously adopted to guard against harmful interference. Furthermore, we conclude that adding co-primary Fixed and Mobile allocations in this band will not result in harmful interference, and would not inevitably lead to uses that would result in harmful interference. Finally, having added co-primary Fixed and Mobile allocations to the 2 GHz band, we anticipate issuing a notice of proposed rulemaking on subjects raised in the MSS NOI, including possible service rule changes that could increase investment and utilization of the band in a manner that further serves the public interest. We expect the staff will take advantage of industry technical expertise as it develops options, which may include potential synergies with neighboring bands, to inform our decision making process going forward.

12. As proposed in the MSS NPRM, we extend the Commission's general secondary market spectrum leasing policies, procedures, and rules to ATC spectrum leasing arrangements. As we discussed in the MSS NPRM, recent and planned near-term developments in the use of MSS spectrum for the provision of terrestrial services are increasing the potential that these services will become sufficiently similar to the services offered in the overall market of mobile terrestrial wireless services to enhance competition in this larger mobile marketplace. Accordingly, we find that a common set of policies, procedures, and rules—where consistent with ATC policies and rules—will promote greater consistency, regulatory parity, predictability, and transparency with respect to spectrum leasing arrangements involving terrestrially-based mobile service offerings.

13. The record contains widespread support for this action. Indeed, every commenter that addressed the issue supported the extension of the general secondary markets spectrum leasing rules and policies to ATC. For example, the Telecommunications Industry Association asserts that applying the Commission's secondary market rules and policies to ATC will encourage innovative arrangements and partnerships that will speed the development and deployment of wireless broadband to rural and other areas. Additionally, Inmarsat states that spectrum leasing arrangements would facilitate the ability of MSS operators to deploy ATC, which would increase the availability of terrestrial broadband services and advance the public interest. Echostar notes that “efficient secondary markets * * * promote spectrum efficiency and create opportunities to maximize use of spectrum for mobile broadband services.” We agree that applying these spectrum leasing policies and rules will help facilitate efficient and innovative new arrangements for using spectrum, including in both urban and rural areas. Moreover, commenters assert that by extending these spectrum leasing policies, the Commission would establish regulatory predictability and parity between similarly situated services.

14. Spectrum Manager Leasing Arrangements. Consistent with the Commission's ATC policies and rules, and the ancillary nature of ATC, we determine that MSS licensees and spectrum lessees may only enter into spectrum manager leasing arrangements. As discussed in the MSS NPRM, the Commission established several “gating criteria” that MSS operators must meet in order to be authorized to operate ATC stations. At their core, these gating criteria require the MSS licensee to provide substantial satellite service, as well as an integrated satellite/terrestrial service. We conclude that ATC spectrum manager leasing arrangements, which would require the MSS licensee to maintain an active role in ensuring compliance with all of these requirements, are the best means of ensuring that terrestrial leasing arrangements in MSS spectrum remains consistent with the underlying ATC policies and rules. We believe that the spectrum manager leasing rules will enable significant flexibility for the provision of terrestrial mobile broadband as part of an MSS/ATC service offering.

15. Under a spectrum manager leasing arrangement, the MSS licensee retains de facto control of the MSS spectrum at all times, remaining primarily responsible for ensuring compliance with the underlying ATC requirements (including the underlying authorization) as well as for the spectrum lessee's compliance with those requirements. This responsibility includes maintaining reasonable operational oversight over the leased spectrum so as to ensure that each lessee complies with all applicable technical and service rules, including frequency coordination requirements and resolution of interference-related matters. Permitting only spectrum manager leasing arrangements ensures that the MSS licensee retains primary responsibility for MSS, including the provision of substantial satellite service (including all gating criteria) as well as the coordination of any terrestrial use with satellite use so that the terrestrial use is consistent with the MSS service and interference rules. Requiring spectrum manager leasing arrangements also address the concerns, expressed by Inmarsat, that the MSS licensee should retain ultimate control over the use of MSS spectrum in order to enhance its ability to coordinate operations and avoid harmful interference.

16. De facto transfer leasing arrangements, in contrast, would effectively transfer primary responsibilities for meeting these obligations to the spectrum lessee(s), which are not in a position to meet many of the underlying obligations of the MSS license, such as meeting the gating criteria obligations to provide substantial satellite service and to provide integrated mobile satellite/terrestrial service. Transferring de facto control over the use of the spectrum to a spectrum lessee also could sever the relationship between the provision of the satellite and the terrestrial service. We are not persuaded by the commenters that assert generally that we should permit MSS licensees to enter into de facto transfer leasing arrangements, but do not address how such arrangements would be fully consistent with the ATC gating criteria.

17. We also will apply the general policies and rules that pertain to the spectrum manager leasing arrangements, as set forth in the Commission's secondary market policies and rules. Accordingly, we agree with TerreStar that an MSS licensee may lease spectrum for ATC use in varying amounts and in any geographic area or at any site encompassed by the license when entering into a spectrum manager leasing arrangement.

18. Notification procedures. MSS licensees and potential spectrum lessees seeking to enter into spectrum manager leasing arrangements will be required to file the same information and certifications as required under the Commission's rules for Wireless Radio Service. As proposed in the MSS NPRM, we will require that leasing parties submit specified information and certifications (including information about the parties, the amount and geographic location of the spectrum involved, and other overlapping terrestrial-use spectrum holdings of the parties) to the Commission in advance of any operations that would be permitted pursuant to the proposed transaction. As is required with respect to a spectrum leasing arrangement involving Wireless Radio Services, each party to a proposed ATC spectrum manager leasing arrangement must have correct and up-to-date ownership information on file with the Commission (using FCC Form 602) as of the date that the notification of the spectrum manager leasing arrangement is filed.

19. As with spectrum manager leasing arrangements involving Wireless Radio Services, to the extent a proposed ATC spectrum manager leasing arrangement does not raise potential public interest concerns, the transaction would be subject to immediate processing, whereas to the extent potential public interest concerns were raised ( e.g., potential competitive harms, as discussed below, or foreign ownership concerns) the transaction would be subject to streamlined procedures as the Commission evaluated whether the public interest would be served by the proposed transaction. We hereby delegate to the Wireless Telecommunications Bureau (WTB) and the International Bureau (IB) the authority to resolve implementation and administrative issues relating to these notification requirements, which will include revisions to FCC Form 608 and the Commission's Universal Licensing System (ULS).

20. Potential competitive concerns. Assessing potential competitive effects of proposed secondary market transactions is an important element of the Commission's policies to promote competition and guard against the harmful effects of anticompetitive behavior. As the Commission recognized in the Secondary Markets First Report and Order, spectrum leasing arrangements potentially raise competitive concerns, and the Commission applied its general competition policies for terrestrially-based mobile services to these arrangements. Specifically, the Commission observed that it may consider the use of leased spectrum as a relevant factor when examining marketplace competition. In assessing the potential competitive effects of spectrum leasing arrangements, the Commission stated that it would determine, based on a case-by-case review of all relevant factors, whether services provided over both leased and licensed spectrum in specific product and geographic markets should be taken into account.

21. We conclude that spectrum leasing arrangements involving ATC also potentially raise competitive concerns, as several commenters assert. As we discussed above, technological advances will enable MSS licensees and their spectrum lessees to use ATC authority to provide mobile services similar to those provided by terrestrial mobile providers. While we recognize that in the past the Commission has not viewed MSS as a substitute for terrestrial mobile services, we have recently observed that the mobile satellite service industry currently is undergoing major technological advances and structural changes. In particular, we note that several MSS providers have, at various times, articulated their plans to offer high-speed data services, especially in connection with terrestrial networks using their ATC authority, and that such services in the future could affect, and potentially enhance, competition in the provision of terrestrial mobile services. Spectrum lessees using ATC therefore appear increasingly likely to provide services that could affect competition in the mobile telephony/broadband services product market. Accordingly, to the extent that we determine that particular ATC spectrum leasing arrangements can be used to provide such services, the procedures we will adopt allow us to assess these arrangements in the context of our existing competitive analysis framework for mobile telephony/broadband services, consistent with our general authority to ensure that the public interest would be served by proposed transactions. We note that these procedures also enable us to assess each proposed spectrum manager leasing arrangement to determine whether any other type of competitive issue might arise in the context of the MSS/ATC transaction, such as leasing arrangements between different MSS operators.

22. Existing ATC spectrum leasing arrangements. We conclude that MSS licensees and ATC lessees must conform any existing spectrum leasing arrangement to the spectrum leasing policies adopted in this Report and Order. We note that providing this information and submitting the notification is consistent with the Commission's approach when it first evaluated an MSS/ATC spectrum leasing arrangement, as discussed above. We direct parties to submit notification to the Commission of any existing MSS/ATC spectrum leasing arrangements no later than thirty (30) days of the effective date of this Report and Order. This would include any spectrum leasing arrangement that parties may seek to enter prior to the effective date of the rules adopted herein.

23. U.S. GPS Industry Council's Request. In its comments, the U.S. GPS Industry Council expresses concern about the need to protect the Radionavigation-Satellite Service (RNSS) operating in the 1559-1610 MHz band, including the Global Positioning System (GPS), from interference from terrestrial operations in the MSS bands. The U.S. GPS Industry Council is concerned that applying existing secondary market rules to the use of MSS spectrum could lead to denser deployment of terrestrial services using MSS spectrum, which in turn would increase the probability of harmful interference to GPS. It also requests that the Commission codify the technical operating parameters applicable to MSS licensees under their respective ATC authorizations to ensure greater clarity and certainty about the interference rules applicable to secondary market arrangements. The U.S. GPS Industry Council expresses particular concern about potential interference to GPS that could result from adjacent terrestrial operations by an MSS L-band operator (LightSquared Subsidiary LLC). The National Telecommunications and Information Administration (NTIA) also has expressed concern about the potential for adverse impact of ATC operations in the L-band on GPS and other Global Navigation Satellite System (GNSS) receivers.

24. The addition of co-primary Fixed and Mobile allocations to the MSS 2 GHz band and the secondary market policies and rules that we adopt herein do not in any way change the obligations that attach to each MSS licensee to comply with the applicable technical and operational rules for ATC operations pursuant to its license. Under the spectrum manager leasing arrangements that we are permitting, the MSS licensee continues to have primary responsibility for ensuring compliance of any terrestrial operations with the obligations associated with its authorization, and each spectrum lessee would be obligated to ensure its operations comply with the particular technical and operational requirements applicable to the MSS licensee from which it is leasing spectrum.

25. To the extent that potential interference concerns arise with respect to MSS/ATC operations in particular MSS bands, concerns will be addressed on a licensee and band-specific basis. We note that, as regards the interference concerns raised by the U.S. GPS Industry Council and NTIA about LightSquared's operations in the MSS L-band, LightSquared is working with the GPS community by establishing a technical working group to fully study the potential for harmful interference from its base station operations in the MSS L-band spectrum to GPS receivers in the adjacent 1559-1610 MHz band and to identify measures necessary to prevent harmful interference to GPS. Pursuant to the January 26, 2011 LightSquared Waiver Order, LightSquared cannot commence offering a commercial terrestrial service on its MSS L-band frequencies until the Commission, after consultation with NTIA, concludes that the harmful interference concerns have been resolved.

26. We emphasize that responsibility for protecting services rests not only on new entrants but also on incumbent users themselves, who must use receivers that reasonably discriminate against reception of signals outside their allocated spectrum. In the case of GPS, we note that extensive terrestrial operations have been anticipated in the L-band for at least 8 years. We are, of course, committed to preventing harmful interference to GPS and we will look closely at additional measures that may be required to achieve efficient use of the spectrum, including the possibility of establishing receiver standards relative to the ability to reject interference from signals outside their allocated spectrum.

27. Foreign Ownership. T-Mobile requests that, in applying the Commission's secondary markets spectrum leasing rules and policies to ATC, we extend the availability of the immediate processing/approval procedures to prospective lessees with indirect foreign ownership exceeding 25 percent, if that ownership has previously been approved by the Commission. We decline to revisit this issue here. T-Mobile's request is a reiteration of similar previous requests, including requests made in the Commission's earlier wireless secondary markets proceeding, which the Commission has denied. This Report and Order neither re-examines the wireless secondary market rules and policies generally nor establishes independent ATC secondary market rules and policies.

28. Paperwork Reduction Analysis: This document does not contain proposed information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any 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, see 44 U.S.C. 3506(c)(4).

29. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the Fixed and Mobile Services in the Mobile Satellite Service Bands at 1525-1559 MHz and 1626.5-1660.5 MHz, 1610-1626.5 MHz and 2483.5-2500 MHz, and 2000-2020 MHz and 2180 MHz Notice of Proposed Rulemaking and Notice of Inquiry (Notice). 75 FR 49871 (August 16, 2010). The Commission sought written public comment on the proposals in the Notice, including comment on the IRFA. This present Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA.

30. This Report and Order continues the Commission's efforts to enhance competition and speed the deployment of terrestrial mobile broadband. While ensuring the United States maintains robust mobile satellite service capabilities, in the Report and Order the Commission takes steps to make additional spectrum available for new investment in terrestrial mobile broadband networks.

31. The Report and Order takes two actions. First, we add co-primary Fixed and Mobile allocations to the Table of Frequency Allocations for the 2 GHz band, consistent with the International Table of Allocations. Under this allocation, Fixed and Mobile services will have equal status to MSS. This allocation modification is a precondition for more flexible licensing of terrestrial services within the band and lays the groundwork for providing additional flexibility in use of the 2 GHz spectrum in the future. The Report and Order does not change the status of the existing MSS licensees nor grant authority for terrestrial operations in the band beyond what is currently permitted under the ATC rules.

32. Second, the Report and Order applies the Commission's secondary markets policies and rules applicable to terrestrial wireless radio services to spectrum leasing arrangements involving the use of MSS bands for terrestrial services. Specifically, the Report and Order specifies requirements for licensees entering into spectrum manager leasing arrangements involving ATC, which will increase competition, improve spectrum efficiency, and allow small entities greater access to spectrum.

33. There were no comments filed that specifically addressed the rules and policies presented in the IRFA.

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

35. Satellite Telecommunications and All Other Telecommunications. Two economic census categories address the satellite industry. The first category has a small business size standard of $15 million or less in average annual receipts, under SBA rules. The second has a size standard of $25 million or less in annual receipts.

36. The category of Satellite Telecommunications “comprises establishments primarily engaged in providing telecommunications services to other establishments in the telecommunications and broadcasting industries by forwarding and receiving communications signals via a system of satellites or reselling satellite telecommunications.” Census Bureau data for 2007 show that 512 Satellite Telecommunications firms operated for that entire year. Of this total, 464 firms had annual receipts of under $10 million, and 18 firms had receipts of $10 million to $24,999,999. Consequently, the Commission estimates that the majority of Satellite Telecommunications firms are small entities that might be affected by our action.

37. The second category, i.e. “All Other Telecommunications” comprises “establishments primarily engaged in providing specialized telecommunications services, such as satellite tracking, communications telemetry, and radar station operation. This industry also includes establishments primarily engaged in providing satellite terminal stations and associated facilities connected with one or more terrestrial systems and capable of transmitting telecommunications to, and receiving telecommunications from, satellite systems. Establishments providing Internet services or voice over Internet protocol (VoIP) services via client-supplied telecommunications connections are also included in this industry.” For this category, Census Bureau data for 2007 show that there were a total of 2,383 firms that operated for the entire year. Of this total, 2,347 firms had annual receipts of under $25 million and 12 firms had annual receipts of $25 million to $49,999,999. Consequently, the Commission estimates that the majority of All Other Telecommunications firms are small entities that might be affected by our action.

38. Mobile Satellite Service Carriers. Neither the Commission nor the U.S. Small Business Administration has developed a small business size standard specifically for mobile satellite service licensees. The appropriate size standard is therefore the SBA standard for Satellite Telecommunications, which provides that such entities are small if they have $15 million or less in annual revenues. Currently, the Commission's records show that there are 31 entities authorized to provide voice and data MSS in the United States. The Commission does not have sufficient information to determine which, if any, of these parties are small entities. The Commission notes that small businesses are not likely to have the financial ability to become MSS system operators because of high implementation costs, including construction of satellite space stations and rocket launch, associated with satellite systems and services. Nonetheless, it might be possible that some are small entities affected by this Report and Order and therefore we include them in this section of the FRFA.

39. Wireless Telecommunications Carriers (except satellite). The Report and Order applies the Commission's secondary market policies and rules to terrestrial service in the MSS bands. We cannot predict who may in the future lease spectrum for terrestrial use in these bands. In general, any wireless telecommunications provider would be eligible to lease spectrum from the MSS licensees. Since 2007, the SBA has recognized wireless firms within this new, broad, economic census category. Prior to that time, such firms were within the now-superseded categories of Paging and Cellular and Other Wireless Telecommunications. Under the present and prior categories, the SBA has deemed a wireless business to be small if it has 1,500 or fewer employees. For this category, census data for 2007 show that there were 1,383 firms that operated for the entire year. Of this total, 1,368 firms had employment of 999 or fewer employees and 15 had employment of 1000 employees or more. Similarly, according to Commission data, 413 carriers reported that they were engaged in the provision of wireless telephony, including cellular service, Personal Communications Service (PCS), and Specialized Mobile Radio (SMR) Telephony services. Of these, an estimated 261 have 1,500 or fewer employees and 152 have more than 1,500 employees. Consequently, the Commission estimates that approximately half or more of these firms can be considered small. Thus, using available data, we estimate that the majority of wireless firms can be considered small.

40. This Report and Order applies the Commission's secondary markets policies and rules applicable to terrestrial wireless services to spectrum management leasing transactions involving the use of MSS bands for terrestrial wireless services. Leasing parties will be required to submit specified information and certifications (including information about the parties, the amount and geographic location of the spectrum involved, and other overlapping terrestrial-use spectrum holdings of the parties) to the Commission in advance of any operations that would be permitted pursuant to the proposed transaction. These changes affect small and large companies equally. To give these rules any meaning, this information must be generated by small and large entities alike. Otherwise, wireless service providers seeking to lease MSS/ATC spectrum would not have all of the information available to make educated leasing agreements.

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

42. In the Report and Order, we add Fixed and Mobile allocations to the 2000-2020 MHz and 2180-2200 MHz bands. By adding these allocations to the band, we will be in a position to provide greater flexibility for use of this spectrum in the future, which may provide small entities with greater opportunity to lease spectrum. Only one party, Boeing, opposed the proposal, arguing the allocation will undermine the ability of 2 GHz MSS to provide service in rural areas, provide valuable service to public safety, and assist in disaster recovery. Boeing also suggested that keeping MSS primary in the 2 GHz MSS band promotes the goal of international harmonization with respect to satellite services. Boeing also claimed that MSS networks provide the only means to create a next generation air traffic management (ATM) communication, navigation, and surveillance infrastructure. We agree with Boeing that MSS has an important role in meeting the needs or rural areas, the public safety community, and disaster recovery, but conclude that these needs can continue to be satisfied under the rules we adopt. Furthermore, we do not think it prudent to limit future flexible use of the 2 GHz band based on speculation that an ATM communication system may be developed in the band at some unspecified date, particularly in light of evidence of exploding demand for spectrum for mobile broadband networks. We believe that adding Fixed and Mobile allocations to the 2 GHz MSS band will provide additional flexibility to meet this demand in the future and therefore is in the public interest.

43. In the Report and Order, we take steps that may affect small entities that provide specific information pursuant to the Commission's secondary market leasing rules and policies. The requirements we adopt will require parties to an MSS/ATC spectrum leasing arrangement to file the same type of notification information that other parties to current spectrum leases must file. MSS licensees that propose to enter into MSS/ATC spectrum manager leasing arrangements must file the FCC Form 608. Additionally, all parties to such a proposed spectrum manager leasing arrangement must submit an FCC Form 602, which details ownership information, to the extent that a current version of this form is not already on file with the Commission. The extension of secondary markets rules and policies to MSS/ATC spectrum will promote competition in wireless terrestrial broadband and will benefit small entities in their efforts to compete against other wireless service providers, both large and small, in the provision of wireless broadband services. We believe that, on balance, the benefits to small entities of our actions in the Report and Order far outweigh any burdens this order places on small entities.

44. The record makes clear that broad support exists for extending the Commission's secondary markets rules and policies to MSS/ATC spectrum. Our actions in the Report and Order should benefit wireless broadband service providers seeking additional terrestrial spectrum, many of which may be small entities, by providing access to an increased amount of spectrum. Our actions benefit the public interest by promoting competition, innovation, and investment.

45. In extending the Commission's secondary markets rules and policies to MSS/ATC spectrum, we limit that extension to spectrum manager spectrum leasing arrangements. While several parties recommend we allow both spectrum manager and de facto transfer spectrum leasing arrangements, we reject those arguments. De facto transfer leasing arrangements would effectively transfer primary responsibilities for meeting the obligations of the MSS licensee to the spectrum lessee(s), which are not in a position to meet many of the underlying obligations of the MSS license authorization, such as meeting the gating criteria obligations to provide substantial satellite service and to provide integrated mobile satellite/terrestrial service. Transferring de facto control over the use of the spectrum to a spectrum lessee also could sever the relationship between the provision of the satellite and terrestrial service. Thus, we do not extend de facto transfer spectrum leasing arrangements to the MSS/ATC spectrum.

46. The Commission will send a copy of the Report and Order, including this FRFA, in a report to be sent to Congress pursuant to the Congressional Review Act. In addition, the Commission will send a copy of the Report and Order, including this FRFA, to the Chief Counsel for Advocacy of the SBA. A copy of the Report and Order and the FRFA (or summaries thereof) will also be published in the Federal Register.

47. Accordingly, it is ordered, that pursuant to sections 1, 4(i) and (j), 301, 303, and 310 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j), 301, 303, and 310, this Report and Order is adopted.

48. It is further ordered, that pursuant to the authority contained in sections 1, 4(i) and (j), 301, 303, and 310 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j), 301, 303, and 310, the Commission's rules are amended.

49. It is further ordered that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Report and Order, including the Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

50. It is further ordered that the Commission shall send a copy of this Report and Order in a report to be sent to Congress and the General Accounting Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR parts 1, 2, and 25 as follows:

In FR Doc. 2011-10228 published in the Federal Register on Monday, May 9, 2011, 76 FR 26641, the following correction is made: