I. Background and Summary Authority

On November 18, 2010 (Volume 75, Number 70,578), NIFA published an interim rule with a 120-day comment period to provide administrative provisions that are specific to the Federal assistance awards made under section 7526 of the Food, Conservation, and Energy Act of 2008 (FCEA), Public Law 110-246 (7 U.S.C. 8114), providing authority to the Secretary of Agriculture (Secretary) to establish and carry out the Sun Grant Program. No program specific comments were received. NIFA will adopt the interim rule as a final rule without change.

Under the Sun Grant Program grants are provided to Sun Grant Centers (hereafter, the Center(s)) and a Subcenter (as designated in section 7526(b)(1)(A)-(F) of the FCEA) for the purpose of subawarding 75 percent of USDA-awarded funds through a regional competitive grants program administered by the Centers and Subcenter to fund multi-institutional and multistate research, extension, and education programs on technology development and integrated research, extension, and education programs on technology implementation, in accordance with the purpose and priorities as described in section 7526. The Centers and Subcenter will utilize the remaining balance of USDA-awarded funds (after using up to 4 percent of the USDA-awarded funds for the administrative expenses of carrying out the regional competitive grants program) to conduct such programs at the respective Center or the Subcenter. Additionally, section 7526(d) of the FCEA requires the Centers and Subcenter to jointly develop and submit to the Secretary for approval a plan for addressing the bioenergy, biomass, and gasification research priorities of USDA and the Department of Energy at the State and regional levels. With respect to gasification research activities, the Centers and Subcenter are required to coordinate planning with land-grant colleges and universities in their respective regions that have ongoing research activities in that area. The Centers and Subcenter must use the approved plan in making grants and must give priority to programs that are consistent with the plan.

Section 7526(e) of the FCEA also requires the Centers and Subcenter to maintain, at the North-Central Center, a Sun Grant Information Analysis Center to provide the Centers and Subcenter with analysis and data management support.

The USDA authority to carry out this program has been delegated to NIFA through the Under Secretary for Research, Education, and Economics.

The objectives of the Sun Grant Program are to enhance national energy security through the development, distribution, and implementation of biobased energy technologies; to promote diversification in, and the environmental sustainability of, agricultural production in the United States through biobased energy and product technologies; to promote economic diversification in rural areas of the United States through biobased energy and product technologies; and to enhance the efficiency of bioenergy and biomass research and development programs through improved coordination and collaboration among USDA, the Department of Energy, and land-grant colleges and universities.

A primary function of NIFA is the fair, effective, and efficient administration of Federal assistance programs implementing agricultural research, education, and extension programs. As noted above, NIFA has been delegated the authority to administer this program and will be issuing Federal assistance awards for funding made available for this program; and thus, awards made under this authority will be subject to the Agency's assistance regulations at 7 CFR part 3430, Competitive and Noncompetitive Non-formula Federal Assistance Programs—General Award Administrative Provisions. The Agency's development and publication of these regulations for its non-formula Federal assistance programs serve to enhance its accountability and to standardize procedures across the Federal assistance programs it administers while providing transparency to the public. NIFA published 7 CFR part 3430 with subparts A through F as an interim rule on August 1, 2008 [73 FR 44897-44909] and as a final rule on September 4, 2009 [74 FR 45736-45752]. These regulations apply to all Federal assistance programs administered by NIFA except for the formula grant programs identified in 7 CFR 3430.1(f), the Small Business Innovation Research programs, with implementing regulations at 7 CFR part 3403, and the Veterinary Medicine Loan Repayment Program (VMLRP) authorized under section 1415A of the National Agricultural Research, Extension, and Teaching Policy Act of 1977 (NARETPA), with implementing regulations at 7 CFR part 3431.

NIFA organized the regulation as follows: Subparts A through E provide administrative provisions for all competitive and noncompetitive non-formula Federal assistance awards. Subparts F and thereafter apply to specific NIFA programs.

NIFA is, to the extent practical, using the following subpart template for each program authority: (1) Applicability of regulations, (2) purpose, (3) definitions (those in addition to or different from § 3430.2), (4) eligibility, (5) project types and priorities, (6) funding restrictions (including indirect costs), and (7) matching requirements. Subparts F and thereafter contain the above seven components in this order. Additional sections may be added for a specific program if there are additional requirements or a need for additional rules for the program ( e.g., additional reporting requirements).

Through this rulemaking, NIFA is adding subpart O for the administrative provisions that are specific to the Federal assistance awards made under the Sun Grant Program authority.

This action has been determined to be not significant for purposes of Executive Order 12866, and therefore, has not been reviewed by the Office of Management and Budget. This final rule will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; nor will it materially alter the budgetary impact of entitlements, grants, user fees, or loan programs; nor will it have an annual effect on the economy of $100 million or more; nor will it adversely affect the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities in a material way. Furthermore, it does not raise a novel legal or policy issue arising out of legal mandates, the President's priorities or principles set forth in the Executive Order.

This final rule has been reviewed in accordance with the Regulatory Flexibility Act of 1980, as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 601-612. The Department concluded that the rule will not have a significant economic impact on a substantial number of small entities. The rule does not involve regulatory and informational requirements regarding businesses, organizations, and governmental jurisdictions subject to regulation.

The Department certifies that this final rule has been assessed in accordance with the requirements of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. (PRA). The Department concludes that this final rule does not impose any new information requirements; however, the burden estimates will increase for existing approved information collections associated with this rule due to additional applicants. These estimates will be provided to OMB. In addition to the SF-424 form families ( i.e., Research and Related and Mandatory), and the SF-425 Federal Financial Report; NIFA has three currently approved OMB information collections associated with this rulemaking: OMB Information Collection No. 0524-0042, NIFA Current Research Information System (CRIS); No. 0524-0041, NIFA Application Review Process; and No. 0524-0026, Assurance of Compliance with the Department of Agriculture Regulations Assuring Civil Rights Compliance and Organizational Information.

This final regulation applies to the Federal assistance program administered by NIFA under the Catalog of Federal Domestic Assistance (CFDA) No. 10.320, Sun Grant Program.

The Department has reviewed this final rule in accordance with the requirements of Executive Order No. 13132 and the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1501 et seq., and has found no potential or 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 there is no Federal mandate contained herein that could result in increased expenditures by State, local, or tribal governments, or by the private sector, the Department has not prepared a budgetary impact statement.

The Department has reviewed this final rule in accordance with Executive Order 13175, and has determined that it does not have “tribal implications.” The final rule does not “have substantial direct effects 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.”

Executive Order 12866 and the President's Memorandum of June 1, 1998, require each agency to write all rules in plain language. The Department invites comments on how to make this final rule easier to understand.

Accordingly, the interim rule amending 7 CFR part 3430, which was published at 75 FR 70578 on November 18, 2010, is adopted as a final rule without change.

Background

On December 5, 2005, PWC applied for type certification for a model PW210S turboshaft engine. This engine consists of a two stage compressor driven by a single stage uncooled turbine, and a two stage free power turbine driving a two stage reduction gearbox. The control system includes a dual channel full authority digital electronic control. The engine will incorporate a novel or unusual design feature, which is a 30-minute AEO power rating. This rating was requested by the applicant to support rotorcraft search and rescue missions that require extensive operations at high power.

The applicable airworthiness standards do not contain adequate or appropriate airworthiness standards to address this design feature. Therefore a special condition is necessary to apply additional requirements for rating definition, instructions for continued airworthiness (ICA) and endurance testing. The 30-minute time limit applies to each instance the rating is used; however there is no limit to the number of times the rating can be used during any one flight, and there is no cumulative time limitation. The ICA requirement is intended to address the unknown nature of actual rating usage and associated engine deterioration. The applicant is expected to make an assessment of the expected usage and publish ICA's and airworthiness limitations section (ALS) limits in accordance with those assumptions, such that engine deterioration is not excessive. The endurance test requirement of 25 hours operation at 30-minute AEO rating is similar to several special conditions issued over the past 20 years addressing the same subject. Because the PWC model PW210S turboshaft engine has a continuous OEI rating and limits equal to or higher then the 30-minute AEO rating, the test time performed at the continuous OEI rating may be credited toward the 25-hour requirement. However, test time spent at other rating elements of the test, such as takeoff or other OEI ratings (that may be equal to or higher values), may not be counted toward the 25 hours of required running.

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

Under the provisions of 14 CFR 21.17(a) and 21.101(a), PWC must show that the model PW210S turboshaft engine meets the provisions of the applicable regulations in effect on the date of application, unless otherwise specified by the FAA. The application date is December 5, 2005, which corresponds to 14 CFR part 33 Amendment 20. However, PWC has elected to demonstrate compliance to later amendments of part 33 for this model. Therefore, the certification basis for the PW210S model turboshaft engine will be part 33, effective February 1, 1965, amended by Amendments 33-1 through 33-24.

The FAA has determined that the applicable airworthiness regulations (14 CFR part 33, Amendments 1-24 inclusive) do not contain adequate or appropriate safety standards for the model PW210 turboshaft engine, because of a novel or unusual rating. Therefore, special conditions are prescribed under the provisions of 14 CFR 11.19 and 14 CFR 21.16.

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

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

The PWC PW210S turboshaft engine will incorporate a novel or unusual design feature which is a 30-minute AEO power rating, for use up to 30-minutes at any time between the takeoff and landing phases of a flight. This design feature is considered to be novel and unusual relative to the part 33 airworthiness standards.

Notice of proposed special conditions, Notice No. 33-10-02-SC for the PW210S engine model was published on March 1, 2011 (76 FR 11172). One comment letter was received. The commenter stated disagreement with the special condition requirement of incorporating 25 hours of operation at the 30-minutes AEO rating into the § 33.87 test profile. The commenter proposing taking credit for the 30-minute periods run at takeoff rating that is part of the normal test profile required by § 33.87(b), thereby reducing the amount of test time at the new 30-minute AEO rating. The FAA does not concur. The takeoff rating and other normal use ratings are defined within 14 CFR part 1 and the associated requirements can be found in 14 CFR part 33 Takeoff rating is limited in use to a continuous period of not more then 5 minutes during takeoff operations, which occurs each flight. The existing § 33.87 requirements are designed to demonstrate engine durability for the takeoff rating which is considered a normal every flight operation, and is independent of any other ratings The proposed 30-minute rating is not defined within 14 CFR, but has been specifically requested by PWC. This new rating can be used for periods of up to 30-minutes at any time during a flight for a variety of normal mission purposes. Also, the number of usages during a single flight is not limited; and its use does not require special maintenance actions. So this rating is intended for normal mission use, similar to takeoff and other normal use ratings, and is different than limited turboshaft one-engine-inoperative (OEI) ratings. The OEI ratings for turboshafts, with the exception of continuous OEI, are for limited use during a flight and in some cases limited cumulative use. Therefore engine durability using the 30-minute AEO rating must be demonstrated over and above the takeoff rating and other normal use ratings included in the rating structure. So the baseline for endurance testing will be § 33.87(b) (no OEI rating). The FAA also finds that the test time associated with the continuous OEI rating is an appropriate baseline to define additional requirements for this new normal use 30- minute AEO rating. Therefore, engine durability using this rating must be demonstrated over and above the takeoff rating and other normal use ratings included in the rating structure. No changes to the special conditions have been made in this regard.

The commenter also states that the 25 hour requirement is inconsistent with § 33.87 philosophies, stating that time at any rating validates any lower rating. This statement is incorrect. The test requirements are established to demonstrate engine durability at all normal and emergency ratings and associated limits. The test profiles incorporate specific elements to this end. The normal ratings all have individual elements that must be performed. The 30-minutes AEO rating is a normal use rating that is expected to be used with a frequency of occurrence similar to the takeoff or maximum continuous ratings, and must have a specific and independent element as part of the overall test. Also, the expectation is that 30-minute AEO will be used far more frequently than any emergency 0E1 rating. These emergency ratings must also be demonstrated (when applicable) however due to their limited use, these elements of the test may overlap certain normal rating elements found in the various test profiles. The practice mentioned by the commenter is applied to OEI ratings only, because they are rarely used and only in emergency situations. Therefore, the frequency of occurrence for normal use ratings dictate that specific test time be allocated to each rating, and that time can't be combined because a rating is higher than another. No changes to the special conditions have been made in this regard.

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

These special conditions are applicable to the PWC PW210S turbo shaft engine. If PWC applies later for a change to the type certificate to include another closely related model incorporating the same novel or unusual design feature, these special conditions may also apply to that model as well, and would be made part of the certification basis for that model.

We reviewed the available data, including the comment received, and have determined that air safety and the public interest require adopting this special condition with the changes described above. This action affects only certain novel or unusual design features on one model of engine. It is not a rule of general applicability, and it affects only the applicant who applied to the FAA for approval of this feature on the engine product.

The authority citation for these special conditions is as follows:

Accordingly, the Federal Aviation Administration (FAA) issues the following special conditions as part of the type certification basis for the PWC PW210S turbo shaft engine.

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

2. PART 33 REQUIREMENTS.

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

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

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

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

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

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

(1) Modification of the § 33.87 test requirements to include the 25 hours of operation at 30- minute AEO power rating must be proposed by the Applicant and accepted by the FAA.

(2) Each § 33.87(d) continuous one-engine-inoperative (0EI) rating test period of 30-minutes or longer, run at power and limits equal to or higher then the 30-minutes AEO raring, may be credited toward this requirement. Note that the test time required for the takeoff or other OEI ratings may not be counted toward the 25 hours of operation required at the 30-minute AEO rating.

On April 12, 2011, the FAA published in the Federal Register a notice of proposed rulemaking to amend Class E airspace for Madison, SD, creating controlled airspace at Madison Municipal Airport (76 FR 20279) Docket No. FAA-2011-0135. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received. Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9U dated August 18, 2010, and effective September 15, 2010, which is incorporated by reference in 14 CFR Part 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

This action amends Title 14 Code of Federal Regulations (14 CFR) Part 71 by creating additional Class E airspace extending upward from 700 feet above the surface for new standard instrument approach procedures at Madison Municipal Airport, Madison, SD. This action is necessary for the safety and management of IFR operations at the airport. Geographic coordinates are also being updated to coincide with the FAA's aeronautical database.

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

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

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

On April 12, 2011, the FAA published in the Federal Register a notice of proposed rulemaking to establish Class E airspace for Campbellton, TX, creating controlled airspace at 74 Ranch Airport (76 FR 20280) Docket No. FAA-2010-1053. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received. Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9U dated August 18, 2010, and effective September 15, 2010, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

This action amends Title 14 Code of Federal Regulations (14 CFR) part 71 by establishing Class E airspace extending upward from 700 feet above the surface for new standard instrument approach procedures at 74 Ranch Airport, Campbellton, TX. This action is necessary for the safety and management of IFR operations at the airport.

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in subtitle VII, part A, subpart I, section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it establishes controlled airspace for 74 Ranch Airport, Campbellton, TX.

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

This rule amends Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) by amending the referenced SIAPs. The complete regulatory description of each SIAP is listed on the appropriate FAA Form 8260, as modified by the National Flight Data Center (FDC)/Permanent Notice to Airmen (P-NOTAM), and is incorporated by reference in the amendment under 5 U.S.C. 552(a), 1 CFR part 51, and § 97.20 of Title 14 of the Code of Federal Regulations.

The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, but refer to their graphic depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP contained in FAA form documents is unnecessary. This amendment provides the affected CFR sections and specifies the types of SIAP and the corresponding effective dates. This amendment also identifies the airport and its location, the procedure and the amendment number.

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP as amended in the transmittal. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained for each SIAP as modified by FDC/P-NOTAMs.

The SIAPs, as modified by FDC P-NOTAM, and contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these changes to SIAPs, the TERPS criteria were applied only to specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in a FDC NOTAM as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for all these SIAP amendments requires making them effective in less than 30 days.

Because of the close and immediate relationship between these SIAPs and safety in air commerce, I find that notice and public procedure before adopting these SIAPs are impracticable and contrary to the public interest and, where applicable, that good cause exists for making these SIAPs effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal Regulations, Part 97, 14 CFR part 97, is amended by amending Standard Instrument Approach Procedures, effective at 0901 UTC on the dates specified, as follows:

This rule amends Title 14 of the Code of Federal Regulations, Part 97 (14 CFR part 97), by establishing, amending, suspending, or revoking SIAPS, Takeoff Minimums and/or ODPS. The complete regulators description of each SIAP and its associated Takeoff Minimums or ODP for an identified airport is listed on FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR part 97.20. The applicable FAA Forms are FAA Forms 8260-3, 8260-4, 8260-5, 8260-15A, and 8260-15B when required by an entry on 8260-15A.

The large number of SIAPs, Takeoff Minimums and ODPs, in addition to their complex nature and the need for a special format make publication in the Federal Register expensive and impractical. Furthermore, airmen do not use the regulatory text of the SIAPs, Takeoff Minimums or ODPs, but instead refer to their depiction on charts printed by publishers of aeronautical materials. The advantages of incorporation by reference are realized and publication of the complete description of each SIAP, Takeoff Minimums and ODP listed on FAA forms is unnecessary. This amendment provides the affected CFR sections and specifies the types of SIAPs and the effective dates of the, associated Takeoff Minimums and ODPs. This amendment also identifies the airport and its location, the procedure, and the amendment number.

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP, Takeoff Minimums and ODP as contained in the transmittal. Some SIAP and Takeoff Minimums and textual ODP amendments may have been issued previously by the FAA in a Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for some SIAP and Takeoff Minimums and ODP amendments may require making them effective in less than 30 days. For the remaining SIAPS and Takeoff Minimums and ODPS, an effective date at least 30 days after publication is provided.

Further, the SIAPs and Takeoff Minimums and ODPS contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPS and Takeoff Minimums and ODPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedures before adopting these SIAPS, Takeoff Minimums and ODPs are impracticable and contrary to the public interest and, where applicable, that good cause exists for making some SIAPs effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—-(1) is not a “significant regulatory action” under Executive Order 12866;(2) is not a “significant rule ” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26,1979); and (3)does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) is amended by establishing, amending, suspending, or revoking Standard Instrument Approach Procedures and/or Takeoff Minimums and/or Obstacle Departure Procedures effective at 0902 UTC on the dates specified, as follows:

Background

Through this rule, BIS is undertaking the following actions:

In a previous rule that, inter alia, updated the authority citation paragraph for part 730 of the EAR (76 FR 21631, April 18, 2011), BIS inadvertently omitted the publication date of the most recent Presidential notice listed in that paragraph. This rule corrects the omission by adding the date “January 18, 2011” to the end of the authority citation paragraph for part 730 of the EAR.

Recently, BIS's Western Regional Office moved to a new location. This rule revises § 730.8(c) of the EAR to include the address and telephone number of the new location.

Supplement No. 1 to part 730 of the EAR contains a table that lists approved information collections that are related to the EAR. In 2010, the Office of Management and Budget approved BIS's requests to consolidate approved information collections that relate license exceptions or other exemptions from EAR requirements into a single approved collection with OMB control number 0694-0137, entitled “License Exemptions and Exclusions.” Accordingly, this rule removes the entries for OMB control numbers 0694-0023, 0694-0025, 0694-0027, 0694-0029, 0694-0033, 0694-0086, 0694-0101, 0694-0104, 0694-0106, 0694-0123 and 0694-0133 from the table and adds an entry for control number 0694-0137.

In 1996, the Department of Commerce created License Exception TAPS to authorize the export of crude oil from the North Slope of Alaska and transported over Federal rights-of-way granted pursuant to section 203 of the Trans-Alaska Pipeline Authorization Act (61 FR 27255, May 31, 1996). This license exception required exporters to submit to the Bureau of Export Administration (the predecessor of BIS) a copy of the same Shippers Export Declaration that the exporter was required to submit to U.S. Customs for transmittal to the Bureau of the Census. Subsequently, U.S. Customs and the Bureau of the Census developed AES, and required all exporters to use it to electronically submit export related information that had previously been submitted via paper declaration. In 2010, the Bureau of the Census gave BIS authorization to access AES data specific to individual transactions. This authorization gave BIS access, via the AES system, to export data connected with License Exception TAPS. Due to this new access, BIS concluded that the separate reporting requirement created by the TAPS License Exception was redundant. Accordingly, this rule removes that reporting requirement from § 754.2 of the EAR.

1. Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). This rule reduces regulatory burdens on the public and accomplishes the goals of Executive Order 13563. This rule has been determined to be not significant for purposes of Executive Order 12866.

2. Notwithstanding any other provision of law, no person is required to respond to, nor is subject to a penalty for failure to comply with, a collection of information, subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ) (PRA), unless that collection of information displays a currently valid Office of Management and Budget (OMB) Control Number. This rule affects a collection of information approved by OMB under control number 0607-0137: License Exemptions and Exclusions. BIS estimates that this rule will reduce the burden associated with that collection by 10 hours annually. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing the burden, to Jasmeet Seehra, Office of Management and Budget (OMB), by e-mail to jseehra@omb.eop.gov, or by fax to (202) 395-7285; and to the Regulatory Policy Division, Bureau of Industry and Security, Department of Commerce, Room 2099B, 14th Street and Pennsylvania Ave., NW., Washington, DC 20230 or by e-mail to publiccomments@bis.doc.gov.

3. This rule does not contain policies with Federalism implications as that term is defined under E.O. 13132.

4. BIS finds that there is good cause under 5 U.S.C. 553(b)(3)(B) to waive the provisions of the Administrative Procedure Act requiring prior notice and the opportunity for public comment because they are unnecessary. This rule (1) updates a statement of legal authority to state completely the authority conferred by a Presidential decision; (2) updates an address and telephone number to accurately reflect current information about BIS's Western Regional Office; (3) updates a table of approved information collections to reflect decisions already made by the Office of Management and Budget; and (4) removes a requirement that certain exporters submit directly to BIS information that those same exporters are also required to submit to the government via the AES and that is now available to BIS via that same system. This rule makes no changes to the rights of any person under the EAR, nor does it impose any additional burdens or requirements on the public. The only change that this rule makes to any person's obligations under the EAR is to relieve some exporters of the requirement to report to BIS information that they have reported to another government agency and to which BIS now has ready access.

In addition, the 30-day delay in effectiveness required by 5 U.S.C. 553(d) is unnecessary and contrary to the public interest here, where BIS is updating an authority citation, an address and telephone number and the approved collections table because these are technical changes that do not alter any right, duty, obligation or prohibition that applies to any person under the EAR. The 30-day delay is inapplicable to the removal of the redundant reporting requirement that this rule provides because such removal grants an exemption from a requirement. Moreover, any delay in the effective date of the contact information for BIS's office may cause public confusion and/or errors by the public; thus delaying the effective date of this regulation is contrary to the public interest.

No other law requires that notice of proposed rulemaking and an opportunity for public comment be given for this rule; therefore, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) are not applicable.

Accordingly, the Export Administration Regulations (15 CFR parts 730-774) are amended as follows:

We are adopting interim final Rule 240 under the Securities Act of 1933 (“Securities Act”), 1 interim final Rule 12a-11 and Rule 12h-1(i) under the Securities Exchange Act of 1934 (“Exchange Act”), 2 and interim final Rule 4d-12 under the Trust Indenture Act of 1939 (“Trust Indenture Act”). 3

On July 21, 2010, President Barack Obama signed the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”) into law. 4 The Dodd-Frank Act was enacted, among other reasons, to promote the financial stability of the United States by improving accountability and transparency in the financial system. 5 The recent financial crisis demonstrated the need for enhanced regulation of the over-the-counter (“OTC”) derivatives markets, which have experienced dramatic growth in recent years  6 and are capable of affecting significant sectors of the U.S. economy. 7 Title VII of the Dodd-Frank Act (“Title VII”) establishes a regulatory regime applicable to the OTC derivatives markets by providing the Securities and Exchange Commission (“Commission” or “we”) and the Commodity Futures Trading Commission (“CFTC”) with the tools to oversee these heretofore largely unregulated markets. Title VII provides that the CFTC will regulate “swaps,” the Commission will regulate “security-based swaps,” and the CFTC and the Commission will jointly regulate “mixed swaps.”   8

Title VII amends the Securities Act and the Exchange Act to substantially expand the regulation of the security-based swap markets, establishing a new regulatory framework within which such markets can continue to evolve in a more transparent, efficient, fair, accessible, and competitive manner. 9 The Title VII amendments to the Exchange Act impose, among other requirements, the following: (1) Registration and comprehensive oversight of security-based swap dealers and major security-based swap participants;  10 (2) reporting of security-based swaps to a registered security-based swap data repository, to the Commission, and to the public;  11 (3) clearing of security-based swaps through a registered clearing agency or through a clearing agency that is exempt from registration  12 if such security-based swaps are of a type that the Commission determines is required to be cleared, unless an exemption or exception from such mandatory clearing applies;  13 and (4) if a security-based swap is subject to the clearing requirement, 14 execution of the security-based swap transaction on an exchange, on a security-based swap execution facility (“security-based SEF”) registered under the Exchange Act, 15 or on a security-based SEF that has been exempted from registration by the Commission under the Exchange Act, 16 unless no security-based SEF or exchange makes such security-based swap available for trading. 17 Title VII also amends the Securities Act and the Exchange Act to include “security-based swaps” in the definition of “security” for purposes of those statutes. 18 As a result, “security-based swaps” will be subject to the provisions of the Securities Act and the Exchange Act and the rules thereunder applicable to “securities.”

The provisions of Title VII generally are effective on July 16, 2011 (360 days after enactment of the Dodd-Frank Act, the “Effective Date”), unless a provision requires a rulemaking. Specifically, if a Title VII provision requires a rulemaking, it will go into effect “not less than” 60 days after publication of the related final rule or on July 16, 2011, whichever is later. 19 We do not expect to complete all of the rulemaking we are directed to carry out pursuant to the provisions of Title VII prior to the Effective Date.

We have proposed to further define and provide guidance regarding the terms “security-based swap”  20 and “eligible contract participant.”  21 These proposed rules are among the rulemakings that will not be adopted by the Effective Date. We recognize that until we further define such terms, market participants may be uncertain as to how to comply with the applicable registration requirements of the Securities Act, the registration requirements of the Exchange Act applicable to classes of securities, and the indenture provisions of the Trust Indenture Act. In that regard, a number of commenters recently have raised concerns about potential uncertainty regarding the definitions of “security-based swap” and “eligible contract participant” and the related proposed rulemakings. 22 As part of our recent action providing guidance as to which of the requirements of Title VII will apply to security-based swap transactions as of the Effective Date and granting temporary relief to market participants from compliance with certain of these requirements, we granted certain temporary exemptions relating to security-based swap transactions with persons who are eligible contract participants as that term is defined today and relating to the operation of trading platforms for security-based swaps. 23 The exemption relating to eligible contract participants will allow persons currently participating in the security-based swap markets, who could potentially be considered non-eligible contract participants under the definition of “eligible contract participant” as amended by Title VII, to continue to do so until the term “eligible contract participant” is further defined in final rulemaking. 24 We also provided a temporary exemption to allow an entity that trades security-based swaps and is not currently registered as a national securities exchange or that cannot yet register as a security-based SEF because final rules for such registration have not yet been adopted, to continue trading security-based swaps during this temporary period without registering as a national securities exchange or security-based SEF. 25

In addition to the matters addressed in our recent action, we understand that there are other implications for security-based swaps under the Securities Act, other provisions of the Exchange Act, and the Trust Indenture Act. As we note, we have received comments expressing concern regarding the implications of including security-based swaps in the definition of “security.” Commenters have indicated that they are still analyzing the full implications of such expansion of the definition of “security,” but that it will take time. Market participants therefore have requested temporary relief from certain provisions of the Securities Act and the Exchange Act so that parties may complete their analysis and submit requests for more targeted relief. 26

While we recently proposed exemptions under the Securities Act, the Exchange Act and the Trust Indenture Act for security-based swaps issued by certain clearing agencies in their function as central counterparties (CCP) under certain conditions (the “Proposed SBS Exemptions”)  27 and also recently extended our temporary rules that provided certain exemptions under the Securities Act, the Exchange Act and the Trust Indenture Act for cleared credit default swaps (the “Temporary CDS Rules”), 28 these exemptions would not apply to transactions in security-based swaps, including credit default swaps, not involving a clearing agency. We also note that while the Temporary CDS Rules will be in place on the Effective Date, the Proposed SBS exemptions will not.

As a result, because security-based swaps will become securities on the Effective Date, absent the action we take in this release, counterparties entering into transactions in security-based swaps that are not within the scope of the Temporary CDS Rules will either need to rely on other available exemptions from the requirements of the Securities Act, the Exchange Act, and, if applicable, the Trust Indenture Act, or to consider whether to register such transactions or class of security. 29

We note that under current law, certain security-based swaps—specifically those within the pre-Dodd-Frank Act definition of “security-based swap agreement” entered into between eligible contract participants and subject to individual negotiation—are outside the scope of the federal securities laws, other than the anti-fraud and certain other provisions. 30 Up until now, these security-based swaps have been traded or otherwise transacted without concerns about complying with the registration requirements of the Securities Act, the registration requirements of the Exchange Act applicable to classes of securities, or the indenture provisions of the Trust Indenture Act. We understand that there are several types of trading platforms currently being used to effect transactions in security-based swaps that would likely register as security-based SEFs, 31 and that this activity would continue after the Effective Date. 32 We understand that if parties continue to engage in the same types of trading activities after the Effective Date that they may be engaging in currently with respect to security-based swap agreements that may be security-based swaps on the Effective Date, such activities may raise concerns about the availability of an exemption from the registration requirements of the Securities Act, such as the private placement exemption in Securities Act Section 4(2). 33

We have recognized that implementation of the Title VII provisions raises issues in a number of contexts. As we noted in our recent action, in furtherance of the Dodd-Frank Act's stated objective of promoting financial stability in the U.S. financial system, we intend to move forward expeditiously with the implementation of the new security-based swap requirements in an efficient manner, while minimizing unnecessary disruption and costs to the markets. 34 We recognize that many market participants will find compliance with Title VII to be a substantial undertaking. Security-based swap markets already exist, are global in scope, and have generally grown in the absence of regulation in the United States and elsewhere. In addition, the security-based swap markets are interconnected with other financial markets, including the traditional securities markets. In order to comply with Title VII provisions and related rules, we recognize that market participants will need additional time to acquire and configure necessary systems or to modify existing practices and systems, engage and train necessary staff, and develop and implement necessary policies and procedures. Furthermore, some of these changes cannot be undertaken until certain rules are finalized.

We are concerned about disrupting the operation of the security-based swap markets until the compliance date for final rules that we may adopt further defining the terms “security-based swap” and “eligible contract participant.” In our view, it is appropriate to permit those security-based swap transactions that, prior to the Effective Date, would be transactions in security-based swap agreements between eligible contract participants (and, therefore, not subject to the registration requirements of the Securities Act, the registration requirements of the Exchange Act applicable to classes of securities, and the indenture provisions of the Trust Indenture Act) to continue to be entered into as they are today until the compliance date for such final rules. Thus, we believe that it is necessary and appropriate in the public interest and consistent with the protection of investors, pending the compliance date for final rules that we may adopt further defining the terms “security-based swap” and “eligible contract participant,” to provide interim exemptions from all provisions of the Securities Act (other than the Section 17(a) antifraud provisions), the registration requirements of the Exchange Act relating to classes of securities, and the indenture provisions of the Trust Indenture Act for those security-based swaps that would have been, prior to the Effective Date, within the definition of “security-based swap agreement” under Securities Act Section 2A  35 and Exchange Act Section 3A  36 and are entered into solely between eligible contract participants (as defined prior to the Effective Date).

We are adopting interim final rules to provide certain conditional exemptions under the Securities Act, the Exchange Act and the Trust Indenture Act.

We are adopting interim final Securities Act Rule 240 to exempt from all provisions of the Securities Act, except the anti-fraud provisions of Section 17(a), subject to certain conditions, the offer or sale of those security-based swaps that under current law are security-based swap agreements (which under that definition must be entered into between eligible contract participants and subject to individual negotiation) and that will be defined as “securities” under the Securities Act on the Effective Date due solely to the provisions of Title VII. Securities Act Rule 240 will permit the offer or sale of these security-based swaps between eligible contract participants without requiring compliance with Securities Act Section 5.

The definition of “security-based swap” in Title VII and “security-based swap agreement” in Securities Act Section 2A are not identical. 37 In addition, the amendments to the definition of “eligible contract participant” in Title VII narrow in some respects the definition of “eligible contract participant” in the Commodity Exchange Act. 38 In addition, we note that because certain persons may be eligible contract participants today but as a result of the narrower definition may no longer be eligible contract participants after the Effective Date, without an exemption, certain counterparties may not be able to offer or sell such security-based swaps without compliance with the registration requirements of the Securities Act. 39 As a result of such differences, to avoid uncertainty as to the applicability of the Securities Act registration requirements pending the compliance date for final rules that we may adopt further defining the terms “security-based swap” and “eligible contract participant” and to allow transactions between persons who are eligible contract participants today, we believe it is appropriate to provide an exemption that will allow market participants to continue to enter into transactions that come within the pre-Dodd-Frank Act definition of “security-based swap agreements.”

Under Securities Act Rule 240, a security-based swap will be exempt from the registration requirements of the Securities Act if it would have been a “security-based swap agreement” under the Securities Act prior to the Effective Date and is entered into between eligible contract participants (as that term was defined prior to the Effective Date). 40 The purpose of these conditions is to allow those types of security-based swaps that were not defined as a “security” under the Securities Act prior to the Effective Date to continue to be transacted following the Effective Date until the compliance date for final rules that we may adopt further defining the terms “security-based swap” and “eligible contract participant.”  41

We also are adopting two interim final rules relating to Exchange Act registration of security-based swaps. We are adopting interim final Exchange Act Rule 12a-11 to exempt any security-based swap offered and sold in reliance on Securities Act Rule 240 from the provisions of Exchange Act Section 12(a). As with our recent exemption affecting persons who are eligible contract participants, this exemption is intended to allow trading activities relating to those security-based swaps that under current law are security-based swap agreements with eligible contract participants to continue, provided the parties rely on the Rule 240 Securities Act exemption with respect to such security-based swaps. We also are adopting an interim final amendment to Exchange Act Rule 12h-1 to exempt any security-based swap offered and sold in reliance on Securities Act Rule 240 from the provisions of Exchange Act Section 12(g). While we do not know whether there will be a class of security-based swaps that otherwise would satisfy the registration threshold under Exchange Act Section 12(g), we believe it is appropriate to provide this exemption while we continue to learn about and evaluate the type of security-based swap transactions that have been and will be transacted.

We are adopting an interim final rule under Trust Indenture Act Section 304(d) that will exempt any security-based swap offered or sold in reliance on Securities Act Rule 240 from having to comply with the provisions of the Trust Indenture Act. We believe an exemption from the Trust Indenture Act is appropriate in this situation.

The Trust Indenture Act is aimed at addressing problems that unregulated debt offerings pose for investors and the public, and provides a mechanism for debt holders to protect and enforce their rights with respect to the debt. We do not believe that the protections contained in the Trust Indenture Act are needed at this time to protect eligible contract participants to whom a sale of security-based swaps is made in reliance on Securities Act Rule 240. At this point, we believe that the identified problems that the Trust Indenture Act is intended to address do not occur in the offer and sale of these security-based swaps. For example, these security-based swaps are contracts between two parties and, as a result, do not raise the same problem regarding the ability of parties to enforce their rights under the instruments as would, for example, a debt offering to the public. Moreover, enforcement of contractual rights and obligations under these security-based swaps would occur directly between such parties, and it appears that the Trust Indenture Act provisions would not provide any additional meaningful substantive or procedural protections.

Accordingly, due to the nature of those security-based swaps that may be sold in reliance on Securities Act Rule 240, we do not believe the protections contained in the Trust Indenture Act are currently needed with respect to those instruments. Therefore, we believe the exemption is necessary and appropriate in the public interest, consistent with the protection of investors and the purposes fairly intended by the Trust Indenture Act.

We request and encourage any interested person to submit comments regarding the interim final rules. In particular, we solicit comment on the following questions:

1. How will the exemptions affect, if at all, the manner in which security-based swaps are transacted today and are expected to be transacted following the Effective Date?

2. Will the counterparties to security-based swaps be able to rely on other available exemptions from registration under the Securities Act and the Exchange Act? If not, why? Is further guidance or rules needed in this regard? If so, what type of guidance or rules would be helpful?

3. Are security-based swaps transacted today or expected to be transacted following the Effective Date in a manner that would not permit the parties to rely on existing exemptions under the Securities Act and the Exchange Act? If so, please explain in detail why existing exemptions would not be available.

4. Should we consider additional exemptions under the Securities Act and the Exchange Act for security-based swaps traded on a national securities exchange or security-based SEF with eligible contract participants? Should an exemption from Exchange Act registration be provided if all holders of the class of security-based swap are eligible contract participants? Why or why not? What conditions to any such exemption would be appropriate, if any?

5. Should we consider providing an exemption under the Securities Act that would allow a public offering of uncleared security-based swaps to eligible contract participants on a registered security-based SEF or national securities exchange? Why or why not? What conditions to any such exemption would be appropriate, if any?

6. We are interested in understanding what type of security-based swaps might not be eligible for the interim final exemptions. Are there security-based swaps transactions today that would not be encompassed within the scope of the interim final exemptions and that should be covered?

7. Do the interim final exemptions apply to all security-based swaps that should be exempted from the Securities Act, the Exchange Act and the Trust Indenture Act as of the Effective Date? If not, how should the interim final exemptions be revised such that these other security-based swaps would be included within the interim final exemptions?

8. The interim final Securities Act exemption contains particular conditions. Should the Securities Act exemption in Securities Act Rule 240 be conditioned in this manner? If not, why not?

9. Are the exemptions from the Securities Act, the Exchange Act and the Trust Indenture Act appropriate? If not, why not? Should we take a different approach?

The interim final rules will remain in effect until the compliance date for final rules that we may adopt further defining the terms “security-based swap” and “eligible contract participants.” We anticipate that this term of the exemptions will provide us with time to evaluate the market for security-based swaps, and consider whether there are other exemptions that we should consider regarding security-based swap transactions between eligible contract participants.

Adoption of the interim final rules, which will be effective on July 11, 2011, will minimize disruptions and costs to the security-based swap markets that could occur on the Effective Date as a result of the effectiveness of the definitions of “security-based swap” and “eligible contract participant” on the Effective Date prior to the completion of rulemakings to further define these terms. We have included several requests for comment in this release. We will consider the public comments we receive in determining whether we should revise the interim final rules in any respect, as well as other actions we should take with respect to such exemptions.

The Administrative Procedure Act generally requires an agency to publish notice of a proposed rulemaking in the Federal Register . 42 This requirement does not apply, however, if the agency “for good cause finds * * * that notice and public procedure are impracticable, unnecessary, or contrary to the public interest.”  43 Further, the Administrative Procedure Act also generally requires that an agency publish an adopted rule in the Federal Register 30 days before it becomes effective. 44 This requirement does not apply, however, if the agency finds good cause for making the rule effective sooner. 45 We, for good cause, find that notice and solicitation of comment before adopting the new rules is impracticable, unnecessary, or contrary to the public interest.

For the reasons we discussed throughout this release, we believe that we have good cause to act immediately to adopt the new rules on an interim final basis. The interim final rules are intended to minimize disruptions and costs to the security-based swap markets that could occur on the Effective Date as a result of the effectiveness of the definitions of “security-based swap” and “eligible contract participant” on the Effective Date prior to the completion of rulemakings to further define these terms. In addition, we had previously anticipated that additional exemptions would not be needed to preserve the status quo because we assumed that existing exemptions under the Securities Act would be available to participants in security-based swap transactions after the Effective Date. We have become aware, however, due to comments we have recently received, that there may be questions as to whether such exemptions may be available for all types of trading activities that may occur today involving instruments that will or may be encompassed in the definition of “security-based swap.”  46 Moreover, we have requested comment on trading activities in our recent SBS Exemption Proposing Release. 47 We emphasize that we are requesting comments on the interim final rules and will carefully consider any comments that we receive in determining whether we should revise the interim final rules in any respect, as well as other actions we should take with respect to such exemptions.

The interim final rules will remain in effect until the compliance date for final rules that we may adopt further defining the terms “security-based swap” and “eligible contract participant.” We find that there is good cause to have the new rules effective as interim final rules and that notice and public procedure in advance of effectiveness of the interim final rules is impracticable, unnecessary and contrary to the public interest. 48

The interim final rules do not impose any new “collections of information” within the meaning of the Paperwork Reduction Act of 1995 (“PRA”), 49 nor do they create any new filing, reporting, recordkeeping, or disclosure reporting requirements. Accordingly, we are not submitting the interim final rules to the Office of Management and Budget for review in accordance with the PRA. 50 We request comment on whether our conclusion that there are no collections of information is correct.

We are adopting interim final rules that will provide exemptions for those security-based swaps that under current law are “security-based swap agreements” between “eligible contract participants” (each as defined today) and that will be defined as “securities” under the Securities Act and the Exchange Act as of the Effective Date due solely to the provisions of Title VII. The interim final rules will exempt these security-based swaps from all provisions of the Securities Act, other than the Section 17(a) anti-fraud provisions, as well as exempt these security-based swaps from Exchange Act registration requirements and from the provisions of the Trust Indenture Act, provided certain conditions are met.

The interim final rules are intended to minimize disruptions and costs to the security-based swap markets that could occur on the Effective Date until the compliance date for final rules that we may adopt further defining the terms “security-based swap” and “eligible contract participant.” The purpose of the exemptions is to allow market participants to continue to enter into those security-based swaps that under current law are defined as security-based swap agreements as they do today without concern that such security-based swap transactions may not comply with the provisions of the Securities Act, the registration provisions of the Exchange Act applicable to a class of security-based swaps, or the indenture provisions of the Trust Indenture Act. The exemptions will minimize the uncertainty as to the applicability of the Securities Act, the Exchange Act and the Trust Indenture Act that could occur on the Effective Date with respect to those security-based swaps that under current law are defined as security-based swap agreements as a result of the effectiveness of the definitions of “security-based swap” and “eligible contract participant” on the Effective Date prior to the completion of rulemakings to further define these terms.

Absent the exemptions, following the Effective Date, the offer and sale of those security-based swaps that under current law are defined as security-based swap agreements may have to be registered under the Securities Act, certain of those security-based swaps may have to be registered as a class under the Exchange Act, and the provisions of the Trust Indenture Act may need to be complied with. We believe that requiring compliance with these provisions likely would disrupt and impose unnecessary costs on this segment of the security-based swap markets. Absent the exemptions, we believe that certain market participants would incur additional costs due to compliance with the registration requirements of the Securities Act and the Exchange Act, as well as compliance with the provisions of the Trust Indenture Act. It also is possible that without the exemptions, a market participant may not continue to participate in these types of transactions if compliance with these provisions were infeasible (economically or otherwise).

A market participant will benefit from the exemptions because it will not have to file a registration statement covering the offer and sale of these security-based swaps or evaluate the availability of another existing exemption from such registration requirements. If the market participant is not required to register the offer and sale of these security-based swaps, it will not have to incur the additional costs of such registration, including legal and accounting costs. The availability of the exemptions under the Securities Act, the Exchange Act, and the Trust Indenture Act also would mean that market participants would not incur the costs of preparing disclosure documents describing these security-based swaps and from preparing indentures and arranging for the services of a trustee.

The interim final rules are exemptions, and thus do not impose new requirements on market participants. We recognize that a consequence of the exemptions would be the unavailability of certain remedies under the Securities Act and the Exchange Act and certain protections under the Trust Indenture Act for an interim period to the extent that any of these security-based swap transactions otherwise would be subject to the registration requirements of the Securities Act and the Exchange Act. Absent the exemptions, a market participant may have to file a registration statement covering the offer and sale of the security-based swaps, may have to register the class of security-based swaps that it has issued under the Exchange Act, which would provide investors with civil remedies in addition to antifraud remedies, and may have to satisfy the applicable provisions of the Trust Indenture Act. A registration statement covering the offer and sale of security-based swaps may provide certain information about the market participants, the security-based swap contract terms, and the identification of the particular reference securities, issuers, or loans underlying the security-based swap. As a result of the interim final rules, while an investor would be able to pursue an antifraud action in connection with the purchase and sale of security-based swaps under Exchange Act Section 10(b), it would not be able to pursue civil remedies under Securities Act Sections 11 or 12. We could still pursue an antifraud action in the offer and sale of security-based swaps under Securities Act Section 17(a).

Exchange Act Section 23(a)(2)  51 requires us, when adopting rules under the Exchange Act, to consider the impact that any new rule would have on competition. Section 23(a)(2) prohibits us from adopting any rule that would impose a burden on competition not necessary or appropriate in furtherance of the purposes of the Exchange Act. In addition, Securities Act Section 2(b)  52 and Exchange Act Section 3(f)  53 require us, when engaging in rulemaking where we are required to consider or determine whether an action is necessary or appropriate in the public interest, to also consider, in addition to the protection of investors, whether the action will promote efficiency, competition, and capital formation.

We are adopting interim final rules that would provide exemptions under the Securities Act, the Exchange Act, and the Trust Indenture Act for those security-based swaps that under current law are security-based swap agreements and will be defined as “securities” under the Securities Act and the Exchange Act as of the Effective Date due solely to the provisions of Title VII. Because these exemptions would maintain the status quo with respect to the ability of market participants to engage in transactions in these security-based swaps, we do not believe that our actions today will impose a burden on competition. We also believe that the interim final rules will promote efficiency by minimizing disruptions and costs to the security-based swap markets that could occur as a result of the effectiveness of the definitions of “security-based swap” and “eligible contract participant” on the Effective Date prior to the completion of rulemakings to further define these terms. By allowing transactions in security-based swaps that under current law are security-based swap agreements to continue to be entered into between eligible contract participants as they are today until the compliance date for final rules that we may adopt further defining the terms “security-based swap” and “eligible contract participant,” and to the extent that such security-based swaps are used to hedge risks, including those related to the issuance of the referenced securities (as occurs with equity swaps and the issuance of convertible bonds, for example), the interim final rules will prevent potential impairment of the capital formation process.

The Commission requests comment on all aspects of this analysis and, in particular, on whether the interim final rules will place a burden on competition, as well as the effect of the proposal on efficiency, competition, and capital formation. Commenters are requested to provide empirical data and other factual support for their views, if possible.

The Commission hereby certifies that pursuant to 5 U.S.C. 605(b) that the interim final rules contained in this release will not have a significant economic impact on a substantial number of small entities. 54 The interim final rules apply only to counterparties that may engage in security-based swap transactions in reliance on the interim final rule providing an exemption under the Securities Act. The interim final exemption under the Securities Act provides that the exemption is available only to security-based swaps that are entered into between eligible contract participants, as that term is defined in Section 1a(12) of the Commodity Exchange Act prior to the Effective Date, and other than with respect to persons determined by the CFTC to be eligible contract participants pursuant to Section 1a(12)(C) of the Commodity Exchange Act (7 U.S.C. 1a(12)). Based on our existing information about the participants in the security-based swap markets, the Commission believes that the interim final rules would apply to few, if any, small entities. 55 For this reason, the interim final rules should not have a significant economic impact on a substantial number of small entities. We encourage written comments regarding this certification.

The rules described in this release are being adopted under the authority set forth in Sections 19 and 28 of the Securities Act; Sections 12(h), 23(a) and 36 of the Exchange Act; and Section 304(d) of the Trust Indenture Act.

For the reasons set out in the preamble, the Commission amends Title 17, Chapter II, of the Code of Federal Regulations as follows:

Alpharma, LLC, 400 Crossing Blvd., Bridgewater, NJ 08807 has informed FDA of a change of name and mailing address to Alpharma, LLC, a wholly owned subsidiary of Pfizer, Inc., 235 East 42d St., New York, NY 10017. Accordingly, the Agency is amending the regulations in 21 CFR 510.600(c) to reflect these changes.

This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808.

Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs and redelegated to the Center for Veterinary Medicine, 21 CFR part 510 is amended as follows:

On November 17, 2008 (73 FR 68204), HUD published a final rule that amended HUD's RESPA regulations to further the purposes of RESPA by requiring more timely and effective disclosures related to mortgage settlement costs for federally related mortgage loans to consumers. The regulatory changes made by the November 2008 rule were designed to achieve several objectives, including but not limited to: protecting consumers from unnecessarily high settlement costs by taking steps to improve and standardize the Good Faith Estimate (GFE) form to make it, among other things, easier to use for shopping among settlement service providers and to provide more accurate estimates of costs of settlement services; improving disclosure of yield spread premiums (YSP); clarifying HUD-1/HUD-1A Settlement statements; and ensuring that, at settlement, borrowers are aware of final costs as they relate to their particular mortgages.

HUD's November 2008 final rule followed publication of a March 14, 2008, proposed rule and made several changes in response to public comment. The November 17, 2008, final rule took effect on January 16, 2009, and certain provisions of the RESPA regulations became applicable on the effective date of the final rule. However, for the majority of the revised RESPA regulations, the November 2008 final rule provided for compliance to commence with the revised RESPA regulations on January 1, 2010.

In the period since the revised RESPA regulations became applicable, HUD has identified certain technical corrections needed to the regulations and in Appendix A to the regulations, and a few provisions where clarification would further enhance understanding of a regulatory provision or an Appendix A provision. HUD has already provided guidance and clarification on certain regulatory provisions through information provided on HUD's RESPA website. 1 Through this rule, HUD is amending the RESPA regulations and Appendix A to make certain technical corrections and to clarify certain regulatory and appendix provisions.

This rule makes the following technical and clarifying amendments.

This rule corrects a citation to the Truth in Lending Act that is in the definition of “Federally related mortgage loan” in § 3500.2. Although this definition was not amended by the November 2008 rule, the enactment of the Dodd-Frank Wall Street Reform and Consumer Financial Protection Act (Pub. L. 110-203, approved July 21, 2010; see sec. 1100A(1)), changed the citation for “creditor” which appears in paragraph (1)(ii)(D) of the definition of “Federally related mortgage loan” in § 3500.2. Paragraph (1)(ii)(D) states that “creditor” is defined in the Consumer Credit Protection Act at 15 U.S.C. 1602(f), but the correct citation is now 15 U.S.C. 1602(g).

Section 3500.7(a)(4) and (b)(4). Section 3500.7(a) addresses when the lender must provide a GFE to an applicant borrower, and § 3500.7(b) addresses the same for a mortgage broker. Both sections state that a lender or a mortgage broker is not permitted to charge, as a condition for providing a GFE, any fee for an appraisal, inspection, or other similar settlement services. The lender or the mortgage broker may at its option charge a fee limited to the cost of a credit report. Both sections also state that the lender or mortgage broker may not charge additional fees until after the applicant has received the GFE.

The preamble discussion of this provision states that: “After the GFE has been received, the loan originator may collect additional fees needed to proceed to final underwriting for borrowers who decide to proceed with a loan from that originator.” (See 73 FR 68212, first column.) Although the language in the preamble makes clear that an applicant borrower must express an intent to continue with a loan after the applicant borrower receives the GFE for the loan before a lender or mortgage broker can collect additional fees from the applicant borrower beyond the cost of a credit report, this language was inadvertently omitted from the regulatory text. The question of whether an applicant borrower must express an intent to continue with a loan before the lender or mortgage broker can collect additional fees is an issue that came up after the regulations were promulgated and HUD addressed that question in its New RESPA Rules Frequently Asked Questions (FAQs) issued August 13, 2009, by replying in the affirmative that a borrower must express an intent to continue with the loan. (See question #10 at page 7 of www.hud.gov/offices/hsg/rmra/res/resparulefaqs422010.pdf, updated April 2, 2010, without changing this FAQ). To eliminate any ambiguity about whether the applicant borrower must express an intent to continue with the application process, this rule amends § 3500.7(a)(4) and (b)(4) to provide that the applicant borrower must indicate an intention to proceed with the loan covered by the GFE received by the applicant borrower from the lender or mortgage broker before the lender or mortgage broker may charge additional fees.

Section 3500.7(f). Section 3500.7(f) addresses when the GFE becomes binding. The amendments made to this section address both needed corrections and clarification.

1. The introductory paragraph to § 3500.7(f) uses the term “new GFE” in the first, second, and third sentences to refer to a “revised GFE.” This same term is used in paragraph (f)(5). A revised GFE is not a new GFE, and it is important to maintain this distinction. With the exception of the introductory paragraph and paragraph (f)(5), the remainder of § 3500.7(f) uses the term “revised GFE” not “new GFE.” This rule therefore substitutes “revised” for “new” in introductory paragraph (f) and paragraph (f)(5).

2. The introductory paragraph to § 3500.7(f) currently provides that a loan originator is bound “within the tolerances provided in paragraph (e) of this section, to the settlement charges and terms listed on the GFE provided to the borrower, unless a [revised] GFE is provided prior to settlement consistent with this paragraph (f).” However, the introductory paragraph inadvertently omits that the GFE does not remain binding indefinitely but expires 10 business days after the GFE is provided to the borrower if the borrower does not express an intent to continue with an application provided by the loan originator that provided the GFE, or expires after such longer period as may be specified by the loan originator pursuant to § 3500.7(c). Although the expiration period of the GFE is clearly stated in paragraph (f)(4) of § 3500.7(f), HUD finds that clarity is enhanced by also adding this language to the introductory paragraph of § 3500.7(f).

3. Paragraph (f)(1) of § 3500.7, which addresses changed circumstances affecting settlement costs, provides that the revised GFE may increase charges for services listed on the GFE but only to the extent that the changed circumstances actually resulted in higher charges. However, paragraph (f)(2), which addresses changed circumstances affecting the loan, and paragraph (f)(3), which addresses borrower-requested changes, inadvertently omits that the revised GFE may increase charges listed on the GFE only to the extent that changed circumstances affecting the loan, or the borrower's requested change, actually increased those charges. This rule therefore adds language making this limitation clear in paragraphs (f)(2) and (f)(3).

4. Paragraph (f)(4) of § 3500.7 as noted earlier, addresses the expiration of the GFE. The heading of this paragraph uses the word “original” to describe the GFE. The heading on this paragraph should not have any qualifier for the GFE. Whether new or revised, the period of expiration, as provided in paragraph (f)(4), is applicable.

5. Paragraph (f)(5) of § 3500.7(f) clarifies that whenever the borrower's interest rate is locked, a revised GFE must be provided to the borrower showing the revised interest rate-dependent changes and terms within 3 business days.

6. Paragraph (f)(6) addresses new home purchases. HUD is adding the word “construction” to the phrase “new home purchases” so that it reads “new construction home purchases.” HUD believes that the content of this paragraph is clear that new home purchases refers to purchases of newly constructed homes, not simply any home that is new to a borrower. This interpretation is supported by the preamble to the November 17, 2008, final rule in which this regulatory provision was discussed. The preamble stated in relevant part as follows: “Finally, the final rule includes the proposed provision on revision of the GFE for transactions involving new home purchases. HUD recognizes that in cases of new construction, the original GFE may be provided long before settlement is anticipated to occur.” (Emphasis added.) (See 73 FR 68221, first column.) While HUD believes the meaning of paragraph (f)(6) is clear, to remove any possibility of ambiguity the word “construction” is inserted between the words “new” and “home purchases.”

Section 3500.8(c) (Violations of section 4 of RESPA). The heading of § 3500.8(c) shows the citation for section 4 of RESPA as 12 U.S.C. 2604, but it should be 12 U.S.C. 2603. This rule corrects the citation.

This rule also makes certain technical amendments to Appendix A to the RESPA regulations, which is entitled “Instructions for Completing HUD-1 and HUD-1A Settlement Statements; Sample HUD-1 and HUD-1A Statements.”

Appendix A—HUD-1 Instructions for Lines 601-602. The instructions for lines 601-602 (see 73 FR 68244) contain a transposed number. The instructions state to “Enter the total in Line 420 and Line 610.” Reference to line 610 should be line 601. The rule makes that correction.

Appendix—HUD-1 Instructions for Page 3. The instructions for the HUD-1, found at 73 FR 68243 of the November 2008 final rule, provide that the HUD-1 form is to be used as a statement of the actual charges and adjustments. If the borrower, or a person acting on behalf of the borrower, does not purchase a settlement service that was listed on the GFE (e.g., owner's title insurance), there should be no amount entered for that service in the corresponding line on Page 2 of the HUD-1, and the estimate of the charge from the GFE should not appear on the comparison chart on Page 3 of the HUD-1.

HUD has determined that the current instructions are not sufficiently clear on this point. Allowing loan originators to include on Page 3 of the HUD-1 charges from the GFE for settlement services that were not purchased could both induce loan originators to discourage consumers from purchasing settlement services (e.g., owner's title insurance) in order to gain padding in the 10 percent tolerance categories, and encourage loan originators to pad the 10 percent tolerance categories on the GFE with estimates of services that the consumer will not need in the transaction. HUD has previously addressed and clarified this issue in informal guidance. For example, in the July 2010 posting of its RESPA Roundup, 2 HUD's Office of RESPA and Interstate Land Sales noted as follows:

Because inquiries about estimates on the HUD-1 has been a question frequently asked, and to address any remaining confusion, HUD revises the first paragraph of the instructions for Page 3 of the HUD-1 to clarify that the amounts to be inserted in the comparison chart are those for the services that were purchased or provided as part of the transaction, and that no amount should be included on Page 2 of the HUD-1 for any service that was listed on the GFE, but was not obtained in connection with the transaction.

In general, HUD publishes a rule for public comment before issuing a rule for effect, in accordance with HUD's regulations on rulemaking at 24 CFR part 10. Part 10, however, provides in § 10.1 for exceptions from that general rule where HUD finds good cause to omit advance notice and public participation. The good cause requirement is satisfied when the prior public procedure is “impracticable, unnecessary, or contrary to the public interest.”

HUD finds that good cause exists to publish this rule for effect without soliciting public comment, on the basis that prior public procedure is unnecessary. As discussed in this preamble, this final rule merely makes technical corrections and clarifying amendments to the RESPA final rule published on November 17, 2008. No substantive changes are made by this final rule.

Under 24 CFR 50.19(c)(2) of HUD's regulations, this rule is categorically excluded from environmental review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321).

Executive Order 13132 (entitled “Federalism”) prohibits an agency from publishing any rule that has federalism implications if the rule either: (i) Imposes substantial direct compliance costs on state and local governments and is not required by statute, or (ii) preempts state law, unless the agency meets the consultation and funding requirements of section 6 of the Executive Order. This rule would not have federalism implications and would not impose substantial direct compliance costs on state and local governments or preempt state law within the meaning of the Executive Order.

HUD is not required to publish a notice of proposed rulemaking for this technical corrections/clarifying amendments final rule. Accordingly, the Regulatory Flexibility Act is not applicable to this final rule.

Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) (UMRA) requires Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and on the private sector. This rule does not, within the meaning of the UMRA, impose any Federal mandates on any State, local, or tribal governments nor on the private sector.

For the reasons set out in the preamble, this final rule amends part 3500 of title 24 of the Code of Federal Regulations as follows:

The Willow Street Bridge, at mile 1.02 across the Old River Channel of the Cuyahoga River, at Cleveland, Ohio, has a vertical clearance in the closed position of 12 feet and a horizontal clearance of 150 feet. There are no specific requirements for this bridge in Subpart B of 33 CFR 117 and is therefore required to open on signal at all times.

The bridge owner requested a temporary deviation from the regulations to facilitate the replacement of the bridge operating machinery. The work requires the bridge to be kept in the closed position.

The Old River Channel of the Cuyahoga River serves a tug company, salt mine, road improvement, and construction facilities that import or export materials and services. One yacht club and two marinas are also located on this waterway. The Coast Guard coordinated with the bridge owner and the facilities on and adjacent to the waterway to establish the dates of this temporary deviation to be the least disruptive to their operations.

Under this temporary deviation, the Willow Street Bridge will remain secured to masted navigation and will not be required to open for any vessel from January 31, 2012 through February 21, 2012. Vessels able to pass under the bridge without an opening may do so at anytime.

In accordance with 33 CFR 117.35(e), the bridge must return to its regular operating schedule immediately at the end of the designated time period. This deviation from the operating regulations is authorized under 33 CFR 117.35.

The Louisiana Department of Transportation and Development has requested a temporary deviation in order to perform electrical component upgrades and repair work from the operating schedule for the vertical lift bridge on the SR 27 (Ellender Ferry) across the Gulf Intracoastal Waterway, mile 243.8, west of Harvey Locks, near Hackberry, Calcasieu Parish, Louisiana. The bridge provides 50 feet of vertical clearance above Mean High Water, NGVD 29, in the closed-to-navigation position. Currently, according to 33 CFR 117.451(e), the draw of the bridge shall open on signal when more than 50 feet vertical clearance is required, if at least four-hour notice is given to the Louisiana Department of Highways, District Maintenance Engineer, at Lake Charles.

The closure is necessary to perform electrical component upgrades and repair work on the bridge that allows the bridge to be raised. This maintenance is essential for the continued operation of the bridge. Notices will be published in the Eighth Coast Guard District Local Notice to Mariners and will be broadcast via the Coast Guard Broadcast Notice to Mariners System.

Navigation on the waterway consists of tugs with tows, fishing vessels, sailing vessels, and other recreational craft. The Coast Guard has coordinated the closure with waterway users, industry, and other Coast Guard units. Vessels that can pass under the bridge in the closed-to-navigation position can do so anytime. There are no alternate routes. The bridge will not be able to open for emergencies.

In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the designated time period. This deviation from the operating regulations is authorized under 33 CFR 117.35.

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 publishing an NPRM would be impracticable due to the time required to finalize the list of event participants.

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 because immediate action is necessary to protect the vessels that will be transiting in the parade.

Seattle's Seafair Fleet Week is an annual event which brings a variety of vessels to Seattle. During the event, the visiting military vessels are at risk because of their inherent military function, and because they will be transiting in the Parade of Ships in close proximity to spectators, highly populated areas, and other vessels. This rule is necessary to ensure the security of visiting foreign and domestic military vessels not covered under the Naval Vessel Protection Zone (NVPZ). See 33 CFR part 165, subpart G. The size of these security zones is necessary to ensure the security of the visiting vessels is equivalent to the vessels protected by the NVPZ. While participating in the Parade of Ships it is important for the on scene patrol to have a consistent zone size for all participating ships. The security zones will help prevent any acts which would harm the vessels and their crew and endanger vessels, property, and persons along the parade route.

The temporary security zones established by this rule will prohibit any person or vessel from entering or remaining within 500 yards of the HMCS WHITEHORSE (NCSM 705), HMCS NANAIMO (NCSM 702), and the USCGC MELLON (WHEC 717) while these vessels are participating in the Parade of Ships and while moored at Pier 66, Terminal 25, and Terminal 46. The COTP has granted general permission for vessels to enter the outer 400 yards of the security zone, so long as any vessels doing so operate at the minimum speed necessary to maintain course. In the event the COTP must revoke the general permission to enter, notice will be provided to the public via a Broadcast Notice to Mariners. The security zones will be enforced by Coast Guard personnel. The COTP may also be assisted in the enforcement of the zones by other federal, state, or local agencies.

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

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

The Coast Guard bases this finding on the fact that the security zones will be in place for a limited period of time and vessel traffic will be able to transit around the security zones. Maritime traffic may also request permission to transit through the zones from the COTP, Puget Sound or a Designated Representative.

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 and operators of vessels intending to operate in the waters covered by the security zones while they are in effect. The rule will not have a significant economic impact on a substantial number of small entities because the security zones will be in place for a limited period of time and maritime traffic will still be able to transit around the security zones. Maritime traffic may also request permission to transit though the zones from the COTP, Puget Sound or Designated Representative.

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 (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 security zones. An environmental analysis checklist and a categorical exclusion is 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:

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. These sections provide additional information on this final action:

On March 30, 2011 (76 FR 17585), EPA published a proposed rulemaking for the State of Missouri. This rulemaking proposed approval of Missouri's submittal dated February 27, 2007, as meeting the relevant and applicable requirements of CAA sections 110(a)(1) and (2) necessary to implement, maintain, and enforce the 1997 NAAQS.

The above referenced submittal addresses the infrastructure elements specified in CAA sections 110(a)(1) and (2). This submittal refers to the implementation, maintenance and enforcement of the 1997 8-hour ozone NAAQS. The rationale supporting EPA's proposed action is explained in the proposal and EPA incorporates by reference the rationale in the proposal as supplemented by this rule, as its rationale for the final rule. No public comments were received on the proposed rulemaking.

EPA is currently acting upon SIPs that address the infrastructure requirements of CAA section 110(a)(1) and (2) for ozone and PM2.5 NAAQS for various states across the country. Commenters on EPA's recent proposals for some states raised concerns about EPA statements that it was not addressing certain substantive issues in the context of acting on the infrastructure SIP submissions. 1 The commenters specifically raised concerns involving provisions in existing SIPs and with EPA's statements that it would address two issues separately and not as part of actions on the infrastructure SIP submissions: (i) existing provisions related to excess emissions during periods of start-up, shutdown, or malfunction at sources, that may be contrary to the CAA and EPA's policies addressing such excess emissions (“SSM”); and (ii) existing provisions related to “director's variance” or “director's discretion” that purport to permit revisions to SIP approved emissions limits with limited public process or without requiring further approval by EPA, that may be contrary to the CAA (“director's discretion”). EPA notes that there are two other substantive issues for which EPA likewise stated that it would address the issues separately: (i) existing provisions for minor source new source review programs that may be inconsistent with the requirements of the CAA and EPA's regulations that pertain to such programs (“minor source NSR”); and (ii) existing provisions for Prevention of Significant Deterioration (PSD) programs that may be inconsistent with current requirements of EPA's “Final NSR Improvement Rule,” 67 FR 80186 (December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (“NSR Reform”). In light of the comments, EPA now believes that its statements in various proposed actions on infrastructure SIPs with respect to these four individual issues should be explained in greater depth with respect to these issues.

EPA intended the statements in the proposals concerning these four issues merely to be informational, and to provide general notice of the potential existence of provisions within the existing SIPs of some states that might require future corrective action. EPA did not want states, regulated entities, or members of the public to be under the misconception that the Agency's approval of the infrastructure SIP submission of a given state should be interpreted as a re-approval of certain types of provisions that might exist buried in the larger existing SIP for such state. Thus, for example, EPA explicitly noted that the Agency believes that some states may have existing SIP approved SSM provisions that are contrary to the CAA and EPA policy, but that “in this rulemaking, EPA is not proposing to approve or disapprove any existing State provisions with regard to excess emissions during SSM of operations at facilities.” EPA further explained, for informational purposes, that “EPA plans to address such State regulations in the future.” EPA made similar statements, for similar reasons, with respect to the director's discretion, minor source NSR, and NSR Reform issues. EPA's objective was to make clear that approval of an infrastructure SIP for these ozone and PM2.5 NAAQS should not be construed as explicit or implicit re-approval of any existing provisions that relate to these four substantive issues.

Unfortunately, the commenters and others evidently interpreted these statements to mean that EPA considered action upon the SSM provisions and the other three substantive issues to be integral parts of acting on an infrastructure SIP submission, and therefore that EPA was merely postponing taking final action on the issue in the context of the infrastructure SIPs. This was not EPA's intention. To the contrary, EPA only meant to convey its awareness of the potential for certain types of deficiencies in existing SIPs, and to prevent any misunderstanding that it was reapproving any such existing provisions. EPA's intention was to convey its position that the statute does not require that infrastructure SIPs address these specific substantive issues in existing SIPs and that these issues may be dealt with separately, outside the context of acting on the infrastructure SIP submission of a state. To be clear, EPA did not mean to imply that it was not taking a full final agency action on the infrastructure SIP submission with respect to any substantive issue that EPA considers to be a required part of acting on such submissions under section 110(k) or under section 110(c). Given the confusion evidently resulting from EPA's statements, however, we want to explain more fully the Agency's reasons for concluding that these four potential substantive issues in existing SIPs may be addressed separately.

The requirement for the SIP submissions at issue arises out of CAA section 110(a)(1). That provision requires that states must make a SIP submission “within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a national primary ambient air quality standard (or any revision thereof)” and that these SIPS are to provide for the “implementation, maintenance, and enforcement” of such NAAQS. Section 110(a)(2) includes a list of specific elements that “[e]ach such plan” submission must meet. EPA has historically referred to these particular submissions that states must make after the promulgation of a new or revised NAAQS as “infrastructure SIPs.” This specific term does not appear in the statute, but EPA uses the term to distinguish this particular type of SIP submission designed to address basic structural requirements of a SIP from other types of SIP submissions designed to address other different requirements, such as “nonattainment SIP” submissions required to address the nonattainment planning requirements of part D, “regional haze SIP” submissions required to address the visibility protection requirements of CAA section 169A, new source review permitting program submissions required to address the requirements of part D, and a host of other specific types of SIP submissions that address other specific matters.

Although section 110(a)(1) addresses the timing and general requirements for these infrastructure SIPs, and section 110(a)(2) provides more details concerning the required contents of these infrastructure SIPs, EPA believes that many of the specific statutory provisions are facially ambiguous. In particular, the list of required elements provided in section 110(a)(2) contains a wide variety of disparate provisions, some of which pertain to required legal authority, some of which pertain to required substantive provisions, and some of which pertain to requirements for both authority and substantive provisions. 2 Some of the elements of section 110(a)(2) are relatively straightforward, but others clearly require interpretation by EPA through rulemaking, or recommendations through guidance, in order to give specific meaning for a particular NAAQS. 3

Notwithstanding that section 110(a)(2) states that “each” SIP submission must meet the list of requirements therein, EPA has long noted that this literal reading of the statute is internally inconsistent, insofar as section 110(a)(2)(I) pertains to nonattainment SIP requirements that could not be met on the schedule provided for these SIP submissions in section 110(a)(1). 4 This illustrates that EPA must determine which provisions of section 110(a)(2) may be applicable for a given infrastructure SIP submission. Similarly, EPA has previously decided that it could take action on different parts of the larger, general “infrastructure SIP” for a given NAAQS without concurrent action on all subsections, such as section 110(a)(2)(D)(i), because the Agency bifurcated the action on these latter “interstate transport” provisions within section 110(a)(2) and worked with states to address each of the four prongs of section 110(a)(2)(D)(i) with substantive administrative actions proceeding on different tracks with different schedules. 5 This illustrates that EPA may conclude that subdividing the applicable requirements of section 110(a)(2) into separate SIP actions may sometimes be appropriate for a given NAAQS where a specific substantive action is necessitated, beyond a mere submission addressing basic structural aspects of the State's implementation plan. Finally, EPA notes that not every element of section 110(a)(2) would be relevant, or as relevant, or relevant in the same way, for each new or revised NAAQS and the attendant infrastructure SIP submission for that NAAQS. For example, the monitoring requirements that might be necessary for purposes of section 110(a)(2)(B) for one NAAQS could be very different than what might be necessary for a different pollutant. Thus, the content of an infrastructure SIP submission to meet this element from a state might be very different for an entirely new NAAQS, versus a minor revision to an existing NAAQS. 6

Similarly, EPA notes that other types of SIP submissions required under the statute also must meet the requirements of section 110(a)(2), and this also demonstrates the need to identify the applicable elements for other SIP submissions. For example, nonattainment SIPs required by part D likewise have to meet the relevant subsections of section 110(a)(2) such as section 110(a)(2)(A) or (E). By contrast, it is clear that nonattainment SIPs would not need to meet the portion of section 110(a)(2)(C) that pertains to part C, i.e., the PSD requirement applicable in attainment areas. Nonattainment SIPs required by part D also would not need to address the requirements of section 110(a)(2)(G) with respect to emergency episodes, as such requirements would not be limited to nonattainment areas. As this example illustrates, each type of SIP submission may implicate some subsections of section 110(a)(2) and not others.

Given the potential for ambiguity of the statutory language of section 110(a)(1) and (2), EPA believes that it is appropriate for EPA to interpret that language in the context of acting on the infrastructure SIPs for a given NAAQS. Because of the inherent ambiguity of the list of requirements in section 110(a)(2), EPA has adopted an approach in which it reviews infrastructure SIPs against this list of elements “as applicable.” In other words, EPA assumes that Congress could not have intended that each and every SIP submission, regardless of the purpose of the submission or the NAAQS in question, would meet each of the requirements, or meet each of them in the same way. EPA elected to use guidance to make recommendations for infrastructure SIPs for these NAAQS.

On October 2, 2007, EPA issued guidance making recommendations for the infrastructure SIP submissions for both the 1997 8-hour ozone NAAQS and the 1997 PM2.5 NAAQS. 7 Within this guidance document, EPA described the duty of states to make these submissions to meet what the Agency characterized as the “infrastructure” elements for SIPs, which it further described as the “basic SIP requirements, including emissions inventories, monitoring, and modeling to assure attainment and maintenance of the standards.”  8 As further identification of these basic structural SIP requirements, “attachment A” to the guidance document included a short description of the various elements of section 110(a)(2) and additional information about the types of issues that EPA considered germane in the context of such infrastructure SIPs. EPA emphasized that the description of the basic requirements listed on attachment A was not intended “to constitute an interpretation of” the requirements, and was merely a “brief description of the required elements.”  9 EPA also stated its belief that with one exception, these requirements were “relatively self explanatory, and past experience with SIPs for other NAAQS should enable States to meet these requirements with assistance from EPA Regions.”  10 For the one exception to that general assumption, however, i.e., how states should proceed with respect to the requirements of section 110(a)(2)(G) for the 1997 PM2.5 NAAQS, EPA gave much more specific recommendations. But for other infrastructure SIP submittals, and for certain elements of the submittals for the 1997 PM2.5 NAAQS, EPA assumed that each State would work with its corresponding EPA regional office to refine the scope of a State's submittal based on an assessment of how the requirements of section 110(a)(2) should reasonably apply to the basic structure of the State's implementation plan for the NAAQS in question.

Significantly, the 2007 Guidance did not explicitly refer to the SSM, director's discretion, minor source NSR, or NSR Reform issues as among specific substantive issues EPA expected states to address in the context of the infrastructure SIPs, nor did EPA give any more specific recommendations with respect to how states might address such issues even if they elected to do so. The SSM and director's discretion issues implicate section 110(a)(2)(A), and the minor source NSR and NSR Reform issues implicate section 110(a)(2)(C). In the 2007 Guidance, however, EPA did not indicate to states that it intended to interpret these provisions as requiring a substantive submission to address these specific issues in the context of the infrastructure SIPs for these NAAQS. Instead, EPA's 2007 Guidance merely indicated its belief that the states should make submissions in which they established that they have the basic SIP structure necessary to implement, maintain, and enforce the NAAQS. EPA believes that states can establish that they have the basic SIP structure, notwithstanding that there may be potential deficiencies within the existing SIP. Thus, EPA's proposals mentioned these issues not because the Agency considers them issues that must be addressed in the context of an infrastructure SIP as required by section 110(a)(1) and (2), but rather because EPA wanted to be clear that it considers these potential existing SIP problems as separate from the pending infrastructure SIP actions.

EPA believes that this approach to the infrastructure SIP requirement is reasonable, because it would not be feasible to read section 110(a)(1) and (2) to require a top to bottom, stem to stern, review of each and every provision of an existing SIP merely for purposes of assuring that the state in question has the basic structural elements for a functioning SIP for a new or revised NAAQS. Because SIPs have grown by accretion over the decades as statutory and regulatory requirements under the CAA have evolved, they may include some outmoded provisions and historical artifacts that, while not fully up to date, nevertheless may not pose a significant problem for the purposes of “implementation, maintenance, and enforcement” of a new or revised NAAQS when EPA considers the overall effectiveness of the SIP. To the contrary, EPA believes that a better approach is for EPA to determine which specific SIP elements from section 110(a)(2) are applicable to an infrastructure SIP for a given NAAQS, and to focus attention on those elements that are most likely to need a specific SIP revision in light of the new or revised NAAQS. Thus, for example, EPA's 2007 Guidance specifically directed states to focus on the requirements of section 110(a)(2)(G) for the 1997 PM2.5 NAAQS because of the absence of underlying EPA regulations for emergency episodes for this NAAQS and an anticipated absence of relevant provisions in existing SIPs.

Finally, EPA believes that its approach is a reasonable reading of section 110(a)(1) and (2) because the statute provides other avenues and mechanisms to address specific substantive deficiencies in existing SIPs. These other statutory tools allow the Agency to take appropriate tailored action, depending upon the nature and severity of the alleged SIP deficiency. Section 110(k)(5) authorizes EPA to issue a “SIP call” whenever the Agency determines that a State's implementation plan is substantially inadequate to attain or maintain the NAAQS, to mitigate interstate transport, or otherwise to comply with the CAA. 11 Section 110(k)(6) authorizes EPA to correct errors in past actions, such as past approvals of SIP submissions. 12 Significantly, EPA's determination that an action on the infrastructure SIP is not the appropriate time and place to address all potential existing SIP problems does not preclude the Agency's subsequent reliance on provisions in section 110(a)(2) as part of the basis for action at a later time. For example, although it may not be appropriate to require a state to eliminate all existing inappropriate director's discretion provisions in the course of acting on the infrastructure SIP, EPA believes that section 110(a)(2)(A) may be among the statutory bases that the Agency cites in the course of addressing the issue in a subsequent action. 13

EPA is taking final action to approve Missouri's submittal that provides the basic program elements to meet the applicable requirements in CAA sections 110(a)(2)(A),(B),(C),(D)(ii),(E),(F),(G),(H),(J),(K),(L), and (M) necessary to implement, maintain, and enforce the 1997 8-hour ozone NAAQS.

As explained in the proposed rulemaking, this action does not address the requirements of section 110(a)(2)(D)(i) for the 1997 8-hour ozone NAAQS, because it has already been addressed in a separate rulemaking. See 72 FR 25975. The scope of this action is further discussed in section III, above.

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

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

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

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

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

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

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

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

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

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

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

The Congressional Review Act, 5 U.S.C. 801 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in 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 September 9, 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:

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. These sections provide additional information on this final action:

On March 30, 2011 (76 FR 17599), EPA published a proposed rulemaking for the State of Kansas. This rulemaking proposed approval of Kansas' submittals dated January 8, 2008 and July 20, 2009 as meeting the relevant and applicable requirements of CAA sections 110(a)(1) and (2) necessary to implement, maintain, and enforce the 1997 8-hour ozone NAAQS.

The above referenced submittals address the infrastructure elements specified in CAA sections 110(a)(1) and (2). These submittals refer to the implementation, maintenance and enforcement of the 1997 8-hour ozone NAAQS. The rationale supporting EPA's proposed action is explained in the proposal and EPA incorporates by reference the rationale in the proposal, as supplemented by this notice, as its rationale for the final rule. No public comments were received on the proposed rulemaking.

EPA is currently acting upon SIPs that address the infrastructure requirements of CAA section 110(a)(1) and (2) for ozone and PM 2.5 NAAQS for various states across the country. Commenters on EPA's recent proposals for some states raised concerns about EPA statements that it was not addressing certain substantive issues in the context of acting on the infrastructure SIP submissions. 1 The commenters specifically raised concerns involving provisions in existing SIPs and with EPA's statements that it would address two issues separately and not as part of actions on the infrastructure SIP submissions: (i) existing provisions related to excess emissions during periods of start-up, shutdown, or malfunction at sources, that may be contrary to the CAA and EPA's policies addressing such excess emissions (“SSM”); and (ii) existing provisions related to “director's variance” or “director's discretion” that purport to permit revisions to SIP approved emissions limits with limited public process or without requiring further approval by EPA, that may be contrary to the CAA (“director's discretion”). EPA notes that there are two other substantive issues for which EPA likewise stated that it would address the issues separately: (i) Existing provisions for minor source new source review programs that may be inconsistent with the requirements of the CAA and EPA's regulations that pertain to such programs (“minor source NSR”); and (ii) existing provisions for Prevention of Significant Deterioration (PSD) programs that may be inconsistent with current requirements of EPA's “Final NSR Improvement Rule,” 67 FR 80186 (December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (“NSR Reform”). In light of the comments, EPA now believes that its statements in various proposed actions on infrastructure SIPs with respect to these four individual issues should be explained in greater depth with respect to these issues.

EPA intended the statements in the proposals concerning these four issues merely to be informational, and to provide general notice of the potential existence of provisions within the existing SIPs of some states that might require future corrective action. EPA did not want states, regulated entities, or members of the public to be under the misconception that the Agency's approval of the infrastructure SIP submission of a given state should be interpreted as a reapproval of certain types of provisions that might exist buried in the larger existing SIP for such state. Thus, for example, EPA explicitly noted that the Agency believes that some states may have existing SIP approved SSM provisions that are contrary to the CAA and EPA policy, but that “in this rulemaking, EPA is not proposing to approve or disapprove any existing State provisions with regard to excess emissions during SSM of operations at facilities.” EPA further explained, for informational purposes, that “EPA plans to address such State regulations in the future.” EPA made similar statements, for similar reasons, with respect to the director's discretion, minor source NSR, and NSR Reform issues. EPA's objective was to make clear that approval of an infrastructure SIP for these ozone and PM 2.5 NAAQS should not be construed as explicit or implicit reapproval of any existing provisions that relate to these four substantive issues.

Unfortunately, the commenters and others evidently interpreted these statements to mean that EPA considered action upon the SSM provisions and the other three substantive issues to be integral parts of acting on an infrastructure SIP submission, and therefore that EPA was merely postponing taking final action on the issue in the context of the infrastructure SIPs. This was not EPA's intention. To the contrary, EPA only meant to convey its awareness of the potential for certain types of deficiencies in existing SIPs, and to prevent any misunderstanding that it was reapproving any such existing provisions. EPA's intention was to convey its position that the statute does not require that infrastructure SIPs address these specific substantive issues in existing SIPs and that these issues may be dealt with separately, outside the context of acting on the infrastructure SIP submission of a state. To be clear, EPA did not mean to imply that it was not taking a full final agency action on the infrastructure SIP submission with respect to any substantive issue that EPA considers to be a required part of acting on such submissions under section 110(k) or under section 110(c). Given the confusion evidently resulting from EPA's statements, however, we want to explain more fully the Agency's reasons for concluding that these four potential substantive issues in existing SIPs may be addressed separately.

The requirement for the SIP submissions at issue arises out of CAA section 110(a)(1). That provision requires that states must make a SIP submission “within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a national primary ambient air quality standard (or any revision thereof)” and that these SIPS are to provide for the “implementation, maintenance, and enforcement” of such NAAQS. Section 110(a)(2) includes a list of specific elements that “[e]ach such plan” submission must meet. EPA has historically referred to these particular submissions that states must make after the promulgation of a new or revised NAAQS as “infrastructure SIPs.” This specific term does not appear in the statute, but EPA uses the term to distinguish this particular type of SIP submission designed to address basic structural requirements of a SIP from other types of SIP submissions designed to address other different requirements, such as “nonattainment SIP” submissions required to address the nonattainment planning requirements of part D, “regional haze SIP” submissions required to address the visibility protection requirements of CAA section 169A, new source review permitting program submissions required to address the requirements of part D, and a host of other specific types of SIP submissions that address other specific matters.

Although section 110(a)(1) addresses the timing and general requirements for these infrastructure SIPs, and section 110(a)(2) provides more details concerning the required contents of these infrastructure SIPs, EPA believes that many of the specific statutory provisions are facially ambiguous. In particular, the list of required elements provided in section 110(a)(2) contains a wide variety of disparate provisions, some of which pertain to required legal authority, some of which pertain to required substantive provisions, and some of which pertain to requirements for both authority and substantive provisions. 2 Some of the elements of section 110(a)(2) are relatively straightforward, but others clearly require interpretation by EPA through rulemaking, or recommendations through guidance, in order to give specific meaning for a particular NAAQS. 3

Notwithstanding that section 110(a)(2) states that “each” SIP submission must meet the list of requirements therein, EPA has long noted that this literal reading of the statute is internally inconsistent, insofar as section 110(a)(2)(I) pertains to nonattainment SIP requirements that could not be met on the schedule provided for these SIP submissions in section 110(a)(1). 4 This illustrates that EPA must determine which provisions of section 110(a)(2) may be applicable for a given infrastructure SIP submission. Similarly, EPA has previously decided that it could take action on different parts of the larger, general “infrastructure SIP” for a given NAAQS without concurrent action on all subsections, such as section 110(a)(2)(D)(i), because the Agency bifurcated the action on these latter “interstate transport” provisions within section 110(a)(2) and worked with states to address each of the four prongs of section 110(a)(2)(D)(i) with substantive administrative actions proceeding on different tracks with different schedules. 5 This illustrates that EPA may conclude that subdividing the applicable requirements of section 110(a)(2) into separate SIP actions may sometimes be appropriate for a given NAAQS where a specific substantive action is necessitated, beyond a mere submission addressing basic structural aspects of the State's implementation plan. Finally, EPA notes that not every element of section 110(a)(2) would be relevant, or as relevant, or relevant in the same way, for each new or revised NAAQS and the attendant infrastructure SIP submission for that NAAQS. For example, the monitoring requirements that might be necessary for purposes of section 110(a)(2)(B) for one NAAQS could be very different than what might be necessary for a different pollutant. Thus, the content of an infrastructure SIP submission to meet this element from a state might be very different for an entirely new NAAQS, versus a minor revision to an existing NAAQS. 6

Similarly, EPA notes that other types of SIP submissions required under the statute also must meet the requirements of section 110(a)(2), and this also demonstrates the need to identify the applicable elements for other SIP submissions. For example, nonattainment SIPs required by part D likewise have to meet the relevant subsections of section 110(a)(2) such as section 110(a)(2)(A) or (E). By contrast, it is clear that nonattainment SIPs would not need to meet the portion of section 110(a)(2)(C) that pertains to part C, i.e., the PSD requirement applicable in attainment areas. Nonattainment SIPs required by part D also would not need to address the requirements of section 110(a)(2)(G) with respect to emergency episodes, as such requirements would not be limited to nonattainment areas. As this example illustrates, each type of SIP submission may implicate some subsections of section 110(a)(2) and not others.

Given the potential for ambiguity of the statutory language of section 110(a)(1) and (2), EPA believes that it is appropriate for EPA to interpret that language in the context of acting on the infrastructure SIPs for a given NAAQS. Because of the inherent ambiguity of the list of requirements in section 110(a)(2), EPA has adopted an approach in which it reviews infrastructure SIPs against this list of elements “as applicable.” In other words, EPA assumes that Congress could not have intended that each and every SIP submission, regardless of the purpose of the submission or the NAAQS in question, would meet each of the requirements, or meet each of them in the same way. EPA elected to use guidance to make recommendations for infrastructure SIPs for these NAAQS.

On October 2, 2007, EPA issued guidance making recommendations for the infrastructure SIP submissions for both the 1997 8-hour ozone NAAQS and the 1997 PM 2.5 NAAQS. 7 Within this guidance document, EPA described the duty of states to make these submissions to meet what the Agency characterized as the “infrastructure” elements for SIPs, which it further described as the “basic SIP requirements, including emissions inventories, monitoring, and modeling to assure attainment and maintenance of the standards.”  8 As further identification of these basic structural SIP requirements, “attachment A” to the guidance document included a short description of the various elements of section 110(a)(2) and additional information about the types of issues that EPA considered germane in the context of such infrastructure SIPs. EPA emphasized that the description of the basic requirements listed on attachment A was not intended “to constitute an interpretation of” the requirements, and was merely a “brief description of the required elements.”  9 EPA also stated its belief that with one exception, these requirements were “relatively self explanatory, and past experience with SIPs for other NAAQS should enable States to meet these requirements with assistance from EPA Regions.”  10 For the one exception to that general assumption, however, i.e., how states should proceed with respect to the requirements of section 110(a)(2)(G) for the 1997 PM 2.5 NAAQS, EPA gave much more specific recommendations. But for other infrastructure SIP submittals, and for certain elements of the submittals for the 1997 PM 2.5 NAAQS, EPA assumed that each state would work with its corresponding EPA regional office to refine the scope of a State's submittal based on an assessment of how the requirements of section 110(a)(2) should reasonably apply to the basic structure of the State's implementation plan for the NAAQS in question.

Significantly, the 2007 Guidance did not explicitly refer to the SSM, director's discretion, minor source NSR, or NSR Reform issues as among specific substantive issues EPA expected states to address in the context of the infrastructure SIPs, nor did EPA give any more specific recommendations with respect to how states might address such issues even if they elected to do so. The SSM and director's discretion issues implicate section 110(a)(2)(A), and the minor source NSR and NSR Reform issues implicate section 110(a)(2)(C). In the 2007 Guidance, however, EPA did not indicate to states that it intended to interpret these provisions as requiring a substantive submission to address these specific issues in the context of the infrastructure SIPs for these NAAQS. Instead, EPA's 2007 Guidance merely indicated its belief that the states should make submissions in which they established that they have the basic SIP structure necessary to implement, maintain, and enforce the NAAQS. EPA believes that states can establish that they have the basic SIP structure, notwithstanding that there may be potential deficiencies within the existing SIP. Thus, EPA's proposals mentioned these issues not because the Agency considers them issues that must be addressed in the context of an infrastructure SIP as required by section 110(a)(1) and (2), but rather because EPA wanted to be clear that it considers these potential existing SIP problems as separate from the pending infrastructure SIP actions.

EPA believes that this approach to the infrastructure SIP requirement is reasonable, because it would not be feasible to read section 110(a)(1) and (2) to require a top to bottom, stem to stern, review of each and every provision of an existing SIP merely for purposes of assuring that the state in question has the basic structural elements for a functioning SIP for a new or revised NAAQS. Because SIPs have grown by accretion over the decades as statutory and regulatory requirements under the CAA have evolved, they may include some outmoded provisions and historical artifacts that, while not fully up to date, nevertheless may not pose a significant problem for the purposes of “implementation, maintenance, and enforcement” of a new or revised NAAQS when EPA considers the overall effectiveness of the SIP. To the contrary, EPA believes that a better approach is for EPA to determine which specific SIP elements from section 110(a)(2) are applicable to an infrastructure SIP for a given NAAQS, and to focus attention on those elements that are most likely to need a specific SIP revision in light of the new or revised NAAQS. Thus, for example, EPA's 2007 Guidance specifically directed states to focus on the requirements of section 110(a)(2)(G) for the 1997 PM 2.5 NAAQS because of the absence of underlying EPA regulations for emergency episodes for this NAAQS and an anticipated absence of relevant provisions in existing SIPs.

Finally, EPA believes that its approach is a reasonable reading of section 110(a)(1) and (2) because the statute provides other avenues and mechanisms to address specific substantive deficiencies in existing SIPs. These other statutory tools allow the Agency to take appropriate tailored action, depending upon the nature and severity of the alleged SIP deficiency. Section 110(k)(5) authorizes EPA to issue a “SIP Call” whenever the Agency determines that a state's SIP is substantially inadequate to attain or maintain the NAAQS, to mitigate interstate transport, or otherwise to comply with the CAA. 11 Section 110(k)(6) authorizes EPA to correct errors in past actions, such as past approvals of SIP submissions. 12 Significantly, EPA's determination that an action on the infrastructure SIP is not the appropriate time and place to address all potential existing SIP problems does not preclude the Agency's subsequent reliance on provisions in section 110(a)(2) as part of the basis for action at a later time. For example, although it may not be appropriate to require a state to eliminate all existing inappropriate director's discretion provisions in the course of acting on the infrastructure SIP, EPA believes that section 110(a)(2)(A) may be among the statutory bases that the Agency cites in the course of addressing the issue in a subsequent action. 13

EPA is taking final action to approve Kansas' submittals that provide the basic program elements to meet the applicable requirements in CAA sections 110(a)(2)(A), (B), (C), (D) (ii), (E), (F), (G), (H), (J), (K), (L), and (M) necessary to implement, maintain, and enforce the 1997 8-hour ozone NAAQS.

As explained in the proposed rulemaking, this action does not address the requirements of section 110(a)(2)(D)(i) for the 1997 8-hour ozone NAAQS, because it has already been addressed in a prior rulemaking. See 72 FR 10608. 14 The scope of this action is further discussed in section III, above.

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

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

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

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

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

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

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

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

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

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

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

The Congressional Review Act, 5 U.S.C. 801 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in 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 September 9, 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: