On June 2, 2011, the U.S. Office of Personnel Management (OPM) issued an interim rule (76 FR 31785) to abolish the Cumberland, Maine, nonappropriated fund (NAF) Federal Wage System (FWS) wage area and redefine Cumberland, Kennebec, and Penobscot Counties, ME, to the York, ME, NAF wage area. The Federal Prevailing Rate Advisory Committee, the national labor-management committee responsible for advising OPM on matters concerning the pay of FWS employees, reviewed and recommended these changes by consensus. The interim rule had a 30-day comment period, during which OPM received no comments.

I certify that these regulations will not have a significant economic impact on a substantial number of small entities because they will affect only Federal agencies and employees.

Accordingly, under the authority of 5 U.S.C. 5343, the interim rule published on June 2, 2011, amending 5 CFR part 532 (76 FR 31785) is adopted as final with no changes.

On June 2, 2011, the U.S. Office of Personnel Management (OPM) issued a proposed rule (76 FR 31885) to redefine Panola County, MS, from the Northern Mississippi wage area to the Memphis, TN, wage area. The proposed rule had a 30-day comment period during which OPM received no comments.

The Federal Prevailing Rate Advisory Committee (FPRAC), the national labor-management committee responsible for advising OPM on matters concerning the pay of FWS employees, recommended this change by consensus. FPRAC recommended no other changes in the geographic definitions of the Northern Mississippi and Memphis wage areas.

In addition, this final rule corrects the name of the Southern Colorado wage area in Appendix C to subpart B of part 532—Appropriated Fund Wage and Survey Areas, which was incorrectly entered as Southwestern Colorado in a final rule issued on July 22, 2011 (76 FR 43803).

I certify that these regulations will not have a significant economic impact on a substantial number of small entities because they will affect only Federal agencies and employees.

Accordingly, the U.S. Office of Personnel Management amends 5 CFR part 532 as follows:

The Ethics Reform Act of 1989  1 includes restrictions on gifts, travel, outside activities, and outside employment. See Public Law No. 101-194, tit. III and VI, 103 Stat. 1716 (1989). It authorizes the Office of Government Ethics (“OGE”) to implement regulations concerning the conduct of executive branch employees. See 5 U.S.C. 7351(c). OGE issued a final rule setting forth uniform standards of ethical conduct and an interim final rule on financial disclosure in 1992, followed by a final rule on financial interests in 1996. These rules apply to all executive branch departments and agencies of the Federal Government and their employees. These three executive branch-wide regulations, as corrected and amended, are codified at 5 CFR parts 2634, 2635, and 2640. 2 The Federal Election Campaign Act of 1971, as amended, 2 U.S.C. 431 et seq. (“the Act”), in part, restricts the activities of members of the Federal Election Commission and the Commission's employees. See 2 U.S.C. 437c(a)(3) and 437g(a)(12)(A).

The OGE Standards of Ethical Conduct regulations supersede any standards of conduct regulations previously issued by Federal agencies and therefore supersede, with some exceptions, the Commission's former regulations in 11 CFR part 7. Although agencies may still issue regulations to supplement OGE's Standards of Ethical Conduct in order to accommodate specific agency needs, any such regulations must be issued in accordance with OGE's rules, and must be submitted to OGE for prior approval. See 5 CFR 2635.105(a) and (b). Agencies may, however, retain any regulations based on their own separate statutory authority or that address different, non-ethics matters.

OGE's Standards of Ethical Conduct regulations address gifts from outside sources, gifts between employees, conflicting financial interests, impartiality in performing official duties, pursuit of other employment, misuse of position, and outside employment and activities. See 5 CFR part 2635.

In addition to OGE's Standards of Ethical Conduct regulations, Commission employees are subject to certain rules issued by the Office of Personnel Management (“OPM”) concerning employee responsibilities and conduct. See 5 CFR part 735. These rules address restrictions on certain gambling activities, conduct prejudicial to the government, and unauthorized examination training for individuals preparing to take civil and Foreign Service examinations. See 5 CFR part 735.

The Commission and OGE have determined that the following supplemental regulations are necessary and appropriate in view of the FEC's programs and operations and to fulfill the purposes of the OGE standards. These supplemental regulations are being issued in new chapter XXXVII of title 5 of the Code of Federal Regulations. In addition, the FEC is revising its regulations at 11 CFR part 7 to conform to the OGE and OPM regulations, without compromising the Commission's independence in its core mission of administering Federal campaign finance laws.

On May 17, 2010, the Commission and OGE jointly published a Notice of Proposed Rulemaking in the Federal Register . See Notice of Proposed Rulemaking on Standards of Conduct, 75 FR 27456 (May 17, 2010) (“NPRM”). The comment period closed on June 16, 2010. Two comments were received in response to the proposed rules. 3 The Internal Revenue Service submitted a comment stating that it did not find any conflict between the Internal Revenue Code or Treasury Regulations and the proposed rules. One other commenter submitted comments addressing certain aspects of the proposed regulations. These comments are addressed in the discussion below.

Under the Administrative Procedure Act, 5 U.S.C. 553(d), and the Congressional Review of Agency Rulemaking Act, 5 U.S.C. 801(a)(1), agencies must submit final rules to the Speaker of the House of Representatives and the President of the Senate, and publish them in the Federal Register at least thirty calendar days before they take effect. The final rules that follow were transmitted to Congress on November 4, 2011.

The Commission, with the concurrence of OGE, is amending the rules that govern the conduct of members of the Commission (“Commissioners”) and Commission employees by adding supplemental regulations in a new chapter XXXVII of 5 CFR, consisting of part 4701, and by revising the Commission's Standards of Conduct in 11 CFR part 7.

New section 4701.101 sets forth the authority for the supplemental regulations, which includes 2 U.S.C. 437c(a)(3), 5 U.S.C. 7301, and 5 U.S.C. App. (Ethics in Government Act of 1978). Section 4701.101(a) indicates that the regulations in 5 CFR part 4701 apply to both Commissioners and employees of the Commission. The rules at 5 CFR 4701.101(b) list some of the other regulations in title 5 and 11 CFR part 7 that govern the ethical conduct of Commissioners and employees. No public comments were received on this section.

OGE's Standards of Ethical Conduct regulations supersede the Commission's former regulation at 11 CFR 7.9(f) concerning prior approval for outside employment and activities. OGE's regulations prohibit an employee from engaging in outside employment or any other outside activity that conflicts with their official duties. 5 CFR 2635.802. A Federal agency shall, by supplemental regulation, require employees or any category of employees to obtain prior approval before engaging in specific types of outside activities, including outside employment, if that agency determines that a prior approval requirement is necessary or desirable for the purpose of administering the agency's ethics program. 5 CFR 2635.803.

The Commission has determined that an approval requirement for outside employment or activities is necessary, desirable and appropriate to the administration of its ethics program because the approval requirement has been effective in ensuring that the outside employment and activities of its employees conform to all applicable laws and regulations. Therefore, the Commission, with the concurrence of OGE, is renewing its requirement for prior approval of certain outside employment and activities by issuing this supplemental regulation at 5 CFR 4701.102 in accordance with 5 CFR 2635.803.

Section 4701.102 differs significantly from former 11 CFR 7.9(f). The major difference is in the far narrower scope of the outside employment and activities covered by the new regulation. Former 11 CFR 7.9(f) required Commission employees to obtain prior approval for all outside employment and activities. The term “outside employment or other outside activity” was defined broadly at former 11 CFR 7.2(h) to include “any work, service or other activity performed by an employee.” In contrast, 5 CFR 4701.102 requires prior approval from the Designated Agency Ethics Official (“DAEO”) only for outside activities that are related to the employee's official duties or that involve the application of the same specialized skills or the same educational background as used in the performance of the employee's official duties. This new rule, which draws on portions of prior approval regulations adopted by several other Federal agencies with OGE concurrence, is narrowly tailored to address agency concerns, while reducing the administrative burdens placed on employees. See, e.g., 5 CFR 3801.106 (Department of Justice), 5 CFR 4501.103 (OPM), 5 CFR 6301.102 (Department of Education), and 5 CFR 8601.102 (Federal Retirement Thrift Investment Board).

New 5 CFR 4701.102(a) sets out the definitions of the terms used in 5 CFR 4701.102(b). The definitions of “active participant,” “employee,” and “related to the employee's official duties” refer back to the definitions of these terms used in the general standards of conduct regulations issued by OGE.

Section 4701.102(a)(2) follows the definition of “employee” in OGE's regulation at 5 CFR 2635.102(h), which includes “any officer or employee of an agency.” This definition includes Commissioners. However, section 4701.102(b) excludes Commissioners from its procedures. Section 437c(a)(3) of the Act itself restricts outside activities of Commissioners. See 2 U.S.C. 437c(a)(3). 4 As discussed below, regulations implementing Section 437c(a)(3) were located in former 11 CFR 7.9, and are being moved to 11 CFR 7.6 as part of this rulemaking.

Section 4701.102(a)(3) defines “outside employment” to mean any form of non-Federal employment, business relationship or activity involving the provision of personal services, with or without compensation. The definition provides a non-exhaustive list of services such as serving as a lawyer, officer, director, trustee, agent, consultant, contractor, general partner, teacher, speaker, writer, or any other services provided by an individual. This definition of “outside employment” is similar to those adopted by other Federal agencies and covers a broad range of outside employment and activities in which a Commission employee may seek to engage. See, e.g., 5 CFR 3801.106 (Department of Justice) and 5 CFR 5701.101 (Federal Trade Commission). Notably, this definition of “outside employment” includes unpaid activity which may not conform to the usual understanding of “employment.”

Section 4701.102(b) states that a Commission employee other than a special Government employee  5 must obtain prior, written approval from the DAEO before engaging in outside employment or activities where the services provided are related to the employee's official duties or involve the application of the same specialized skills or the same educational background as used in the performance of the employee's official duties. Accordingly, Commission employees are required to obtain prior, written approval only when they seek to engage in outside employment or activities that are related, in one of those respects, to their official duties. For example, a Commission attorney wishing to engage in weekend employment as a salesperson for a retail organization need not seek prior approval because such employment would not be related to his or her official duties or involve the application of the same specialized skills or educational background as used in his or her position at the Commission. In contrast, a Commission attorney wishing to represent a relative in a lawsuit filed against a private party in State court would need to seek prior approval because such representation would involve the application of the same specialized skill or same educational background as used in his or her position with the Commission.

One comment argued that the prior approval requirement would be overbroad in that approval would be required for many activities that obviously do not conflict with Federal employment or law. Consequently, according to the comment, the requirement may deter employees from participating in community activities or cause a greater administrative burden in having to process so many requests. This comment also faulted the rule for not specifying how the employer will determine if an outside activity involves the same specialized skills or educational background. The comment suggested that the requirement should be eliminated.

The Commission disagrees with the comment because the scope of activities in the revised rules for which prior approval is required is considerably narrower than the scope of activities in the former regulations, which required prior approval for any potential outside employment. Thus, there will likely be fewer requests for the DAEO to handle. Further, the requirement to seek prior approval is not intended to prevent Commission employees from engaging in outside activities; rather, it is merely intended to help employees avoid potential conflicts with their jobs at the Commission. 6

Finally, the Commission has determined that the “same specialized skills and educational background” standard is well suited for reviewing outside activities. The previous standard, in which all outside activities were reviewed, was overly broad and unduly burdensome. On the other hand, although the regulation also requires employees to seek approval for outside activities that “relate to their official duties,” limiting the preapproval requirement to those activities would be too narrow. Such a limitation would exclude from the review and prior approval process activities that have little or nothing to do with an employee's work, but may nevertheless result in criminal or administrative violations due to the employee's employment status. For instance, attorney employees may not represent persons before Federal courts or other Federal agencies. See 18 U.S.C. 203 and 205 (prohibiting representation by Federal employees in matters involving the United States or District of Columbia). Similarly, Audit staff may not communicate with the Internal Revenue Service on behalf of persons being audited. See 18 U.S.C. 203. The Commission has determined that requiring prior approval for those activities that use the same specialized skills or educational background is the least burdensome standard for employees and the Commission that still ensures that employees receive the guidance they need to avoid potential conflicts with their jobs at the Commission.

Section 4701.102(c) establishes the procedure for the submission of approval requests to the DAEO. It requires that the request be submitted through all of the employee's supervisors. For purposes of this section, the Staff Director, the General Counsel, the Inspector General, the Chief Financial Officer, a Commissioner, or the Commission, respectively, are considered the final level of supervision for their subordinates. A request needs to provide certain information, including the identity of the person, group, or organization for which the employee intends to provide services.

One comment expressed concern that the new regulations would require employees to obtain the approval of all supervisors before commencing outside employment. However, section 4701.102(c) requires only that employees submit their requests through all of their supervisors. The only person with the authority to approve or disapprove the request is the DAEO. See 5 CFR 4701.102(b). The purpose of having the employee submit the request through his or her supervisory chain is to alert these supervisors to the request so that they can provide the DAEO with relevant information, where necessary, about the employee's present job duties and likely future assignments. Such additional information is sometimes necessary for the DAEO to make an accurate determination about the request pursuant to section 4701.102(d), and to provide appropriate guidance to the employee for the purpose of avoiding potential conflicts with his or her job duties at the Commission.

Section 4701.102(d) sets forth the standard for the DAEO's approval of an employee's request regarding outside employment or activity, which was not in former 11 CFR 7.9(f). Approval will be granted only upon a determination that the outside employment or activity is not expected to involve conduct prohibited by statute or Federal regulations. In making this determination, the regulations to be considered include those at 5 CFR part 2635. Therefore, the approval will depend on whether the outside employment or activity: (1) Would create conflicting financial interests, (2) would result in a lack of impartiality in performing official duties or the misuse of Government position, and (3) would otherwise comply with 5 CFR part 2635. The Commission also intends to develop appropriate internal procedural guidelines, consistent with the regulations adopted here, to address the processing of requests for prior approval of outside employment or activities by agency employees.

The comment also objected to the use of the phrase “expected to,” arguing that it is too broad and subjective, failing to specify an exact standard. The comment further proposed the standard that “approval shall be granted only upon a determination that the outside employment does not involve conduct prohibited by statute or Federal regulation including 5 CFR part 2635” as an alternative.

The language the Commission is adopting is an appropriate standard, having been adopted by numerous other Federal departments and agencies. See, e.g., 5 CFR 3801.106(b)(3) (Department of Justice), 5 CFR 4501.103(c) (OPM), and 5 CFR 8601.102(b) (Federal Thrift Retirement Investment Board). Moreover, the phrase “expected to” is not intended to introduce any element of subjectivity or uncertainty. It merely recognizes that the activity for which approval is sought has yet to take place, and that a determination by the DAEO will be made based on the information as provided by the employee, not on information that is not provided, or on subsequent changes to the scope of an activity that occur after the employee enters into it. Cf. 5 CFR 2635.107(b) (employee must make full disclosure of all relevant circumstances in order to invoke protection from disciplinary action based on good faith reliance on advice of agency ethics official). Indeed, 5 CFR part 2635, in part, employs the “expected to” standard. See 5 CFR 2635.802(b), Example 2. 7

The Act authorizes the Commission to promulgate regulations addressing certain conduct of its members and its employees. Pursuant to this authority, the Commission is promulgating the following rules in 11 CFR part 7: (1) 11 CFR 7.1 (purpose and applicability), (2) 7.2 (definitions), (3) 7.3 (interpretation and advisory service), (4) 7.4 (reporting suspected violations), (5) 7.5 (corrective actions), (6) 7.6 (outside employment and activities of Commissioners), (7) 7.7 (prohibition against making complaints and investigations public), and (8) 7.8 (ex parte communications in enforcement actions). Details of these provisions are discussed below.

Many of the Commission's former regulations in 11 CFR part 7 have been supplanted by OGE's regulations. These regulations include: (1) Portions of former 11 CFR 7.1 (purpose and applicability), former 11 CFR 7.3 (notification to employees and special Commission employees), former 11 CFR 7.7 (prohibited conduct—general), former 11 CFR 7.8 (gifts, entertainment, and favors), portions of former 11 CFR 7.9 (outside employment or activities), former 11 CFR 7.10 (financial interests), former 11 CFR 7.12 (membership in associations), former 11 CFR 7.13 (use of Government property), former 11 CFR 7.16 (miscellaneous statutory provisions), and former 11 CFR 7.17-7.21 (comprising Subpart C, which addressed special Commission employees). Accordingly, the Commission is removing the supplanted regulations from the Commission's Standards of Conduct in 11 CFR part 7.

The Commission's regulation at former 11 CFR 7.11 concerning political activity by Commissioners and Commission employees was supplanted by the Hatch Act Reform Amendments of 1993. See Public Law 103-94, 107 Stat. 1001 (1993). Therefore, the Commission is removing former section 7.11. See discussion below.

The Commission's regulations at former 11 CFR part 7, subpart D (composed of sections 7.22-7.33), addressed post-employment conflicts of interest and procedures for administrative enforcement proceedings. The statutory authorization for these regulations has been removed. See 18 U.S.C. 216(j). Therefore, the Commission is removing 11 CFR part 7, subpart D. See discussion below.

The regulations that the Commission is retaining and revising are redesignated. The following chart lists the removals, revisions, and redesignations for 11 CFR part 7.

Section 7.1(a) states that the regulations in 11 CFR part 7 apply to all members and employees of the Commission. Section 7.1(b) lists the other regulations in title 5 of the Code of Federal Regulations, including new 5 CFR part 4701, that now govern the ethical conduct of Commissioners and employees. Former 11 CFR 7.1(b), which stated that the regulations in 11 CFR part 7 apply to all employees and “special Commission employees,” is being removed. As explained below, 11 CFR 7.2(d) includes “special Government employees” in the definition of “employee.” Although the Commission's former regulations used the term “special Commission employee,” the revised regulation uses the term “special Government employee” as defined at 5 CFR 2635.102(l) in order to better conform to OGE terminology. Because revised 11 CFR 7.1(a) states that the regulations in 11 CFR part 7 apply to all Commission employees, which includes special Government employees, former paragraph (b) is no longer necessary and is being removed. Former 11 CFR 7.1(c), which stated that the regulations in 11 CFR part 7 must be construed in accordance with any applicable laws, regulations, and the Commission's Labor-Management Agreement is being removed because it is unnecessary. No public comments were received on this section.

Section 7.2 continues to set forth the definitions used in 11 CFR part 7. The definition of “Commission” in 11 CFR 7.2(a) remains unchanged. The definition of “Commissioner” in 11 CFR 7.2(b) is being revised slightly. Whereas former paragraph (b) of 11 CFR 7.2 defined “Commissioner,” in part, as “a voting member of the Federal Election Commission,” revised 11 CFR 7.2(b) deletes the word “voting” from the definition. The word “voting” is not necessary because the Commission no longer includes non-voting members. 15 This definition includes a Commissioner who holds his or her position by virtue of a recess appointment.

The definition of “conflict of interest” in former section 7.2(c) is being removed. Instead, the Commission relies on OGE regulations and regulatory definitions regarding conflicts of interest, except for the provisions in 11 CFR 7.6 governing outside employment and activities of Commissioners. See, e.g., 5 CFR 2635.801-2635.809. Because section 7.6 does not use the term “conflict of interest,” a definition of that phrase specific to 11 CFR part 7 is no longer needed.

The terms “Designated Agency Ethics Officer” and “Ethics Officer” in former 11 CFR 7.2(d) are being replaced with the term “Designated Agency Ethics Official” in section 7.2(c) and throughout part 7. See 11 CFR 7.3, 7.4, and 7.5. These changes make the Commission's regulations consistent with OGE's regulations at 5 CFR 2638.104. Section 7.2(c) also includes a provision from former 11 CFR 7.4 stating that the Commission's General Counsel serves as the Designated Agency Ethics Official.

In revised 11 CFR 7.2(d), the definition of “employee” is being moved from former 11 CFR 7.2(e) and is being amended to include a “special Government employee as defined in 18 U.S.C. 202(a).” OGE regulations at 5 CFR 2635.102(h) include “special Government employee” within the general definition of “employee,” thus subjecting special Government employees to the same Standards of Conduct as other employees, with certain limitations. Revised section 7.2(d) operates similarly.

Section 7.2(e) defines “ ex parte communication” for the purposes of 11 CFR part 7. This definition is based on the definition of “ ex parte communication” at 11 CFR 201.2(a) applicable to non-enforcement situations. 16 Like that definition, section 7.2(e) defines “ ex parte communication” as any written or oral communication by any person outside the agency to any Commissioner or any member of any Commissioner's staff, but not to any other Commission employee, that imparts information or argument regarding prospective Commission enforcement action or potential action concerning any pending enforcement matter. Like Commission regulations at 11 CFR 111.22 and part 201, the definition in section 7.2(e) is limited to Commissioners and their staff members because the Commissioners are empowered to make decisions on enforcement matters, and their staff members are their confidential assistants on these matters. The Commission notes that “matter” as used in the revised rule includes enforcement Matters Under Review, Administrative Fines, and Alternative Dispute Resolution cases (“ADR”). See also discussion of 11 CFR 7.8 below.

Section 7.2(f) defines the term “Inspector General.” The definitions of “former employee,” “official responsibility,” “person,” and “special Commission employee” at former 11 CFR 7.2(f), (g), (i), and (j), respectively, are being removed from section 7.2 as these definitions are no longer necessary. In addition, paragraph (h) of former 11 CFR 7.2 defining “outside employment or other outside activity” is being removed. Because the Commission is replacing much of former 11 CFR 7.9 (outside employment or activities by Commission employees) with a supplemental regulation at 5 CFR 4701.102, paragraph (h) of former 11 CFR 7.2 defining “outside employment or other outside activity” is now superfluous.

No public comments were received on this section.

Section 11 CFR 7.3 is a revised version of former 11 CFR 7.4, which addressed the provision of interpretation and guidance to Commissioners and employees. Specifically, under section 7.3(a), Commissioners and employees may seek interpretation and guidance related to 5 CFR parts 735, 2634, 2635, 2640, and 4701 from the DAEO. Paragraph (b) clarifies that the DAEO, a Commissioner, or an employee may request an opinion from the Director of OGE concerning interpretations of 5 CFR parts 2634, 2635, or 2640. No public comments were received on this section.

Section 7.4, which is a revised version of former 11 CFR 7.5, addresses the reporting of suspected violations of the FEC's Standards of Conduct and OGE's Standards of Ethical Conduct. Section 7.4 requires the reporting of suspected violations of 5 CFR parts 735, 2634, 2635, 2640, and 4701, and 11 CFR part 7 to the DAEO, the Inspector General, or other appropriate law enforcement authorities. No public comments were received on this section.

Section 7.5 informs employees that a violation of the FEC's Standards of Conduct or OGE's Standards of Ethical Conduct may be cause for appropriate corrective action, disciplinary action, or adverse action, in addition to any penalty prescribed by law, including criminal penalties. This section is based on former section 7.6(a). Procedures for taking corrective, disciplinary, and adverse actions are set forth in other authority. Accordingly, the procedures in former section 7.6(b) and (c) are no longer necessary and are being deleted. No public comments were received on this section.

Section 7.6 addresses outside employment and activities of Commissioners. 17 FECA provides authority for additional restrictions on Commissioners' outside employment and activities. See 2 U.S.C. 437c(a)(3).

Section 7.6, which retains the approach of the former rule at 11 CFR 7.9(a), states that no Commissioner may devote a substantial portion of his or her time to any other business, vocation, or employment. This regulation retains the former rule's allowance of a ninety-day period for a Commissioner, following the start of Commission service, to limit such activity.

As noted in the 1986 Explanation and Justification for the prior rule on Commissioners' outside activities, the use of the words “substantial portion” of a Commissioner's time to trigger the regulation's prohibitions is based on the legislative history of 2 U.S.C. 437c(a)(3). See Explanation and Justification for Final Rules on Standards of Conduct for Agency Employees, 51 FR 34440, 34442 (Sept. 29, 1986). The Conference Report that accompanied the 1976 amendments to FECA discusses 2 U.S.C. 437c(a)(3): “[T]he conferees agree that the requirement is intended to apply to members who devote a substantial portion of their time to such business, vocation, or employment activities.” H.R. Rep. No. 94-1057, at 34 (1976) (Conf. Rep.), reprinted in Legislative History of Federal Election Campaign Act Amendments of 1976, at 1028 (1977). This rule continues this interpretation. No public comments were received on this section.

Pursuant to section 111.21 of the Commission's rules, which implements section 437g(a)(12)(A) of the Act, and with the exception of Commission actions described in section 111.20, “no complaint filed with the Commission, nor any notification sent by the Commission, nor any investigation conducted by the Commission, nor any findings made by the Commission shall be made public by the Commission or by any person or entity without the written consent of the respondent with respect to whom the complaint was filed, the notification sent, the investigation conducted, or the finding made.” 11 CFR 111.21(a); 2 U.S.C. 437g(a)(12)(A). Section 7.7 derives its authority from 2 U.S.C. 437g(a)(12)(A). This rule follows former 11 CFR 7.14. The Commission is making one non-substantive change by removing the phrase “are warned that they” from paragraph 7.7(a). The language is unnecessary because the text of the paragraph itself serves as a warning.

No public comments were received on this section.

Section 7.8, which is a revised version of former 11 CFR 7.15, addresses ex parte communications made in the context of enforcement actions. In particular, section 7.8 prohibits the making or consideration of ex parte communications by Commissioners and any member of a Commissioner's staff, except as otherwise required by law. 18 Former 11 CFR 7.15 applied to Commissioners and “employees involved in the decisional process.” The revisions to this section were made to conform 11 CFR 7.8 to the ex parte rules in 11 CFR 111.22 and part 201. See also discussion of 11 CFR 7.2(e), above. Section 7.8 also contains nonsubstantive revisions from paragraphs (a), (c), and (d) of former section 7.15. For clarity, the Commission has added new paragraph (e) of section 7.8, which references the provisions of 11 CFR 111.22 governing ex parte communications made in connection with Commission enforcement actions, and 11 CFR part 201, governing ex parte communications made in connection with public funding, audits, litigation, rulemakings, and advisory opinions. Paragraph 7.8(e) is intended to assist the reader in locating additional rules regarding ex parte communications in enforcement actions, audits, litigation, rulemakings, and advisory opinions.

No public comments were received on this section.

The Hatch Act Reform Amendments of 1993  19 lifted many of the restrictions imposed by the original Hatch Act on most Federal employees with regard to participation in political campaigns. However, Congress specifically addressed the FEC in the Hatch Act Amendments and left all of the original Hatch Act's restrictions in place for employees of the Commission, other than Commissioners. See 5 U.S.C. 7323(b)(1) and (2). In contrast to the Commissioners, Commission employees may not give a political contribution to a Member of Congress, an employee of the Executive Branch (other than the President or Vice President), or an officer of a uniformed service. 5 U.S.C. 7323(b)(1). Additionally, Commission employees may not “take an active part in political management or political campaigns.” 5 U.S.C. 7323(b)(2)(A).

The Hatch Act, as amended, prohibits certain political activities by Commissioners such as (1) Using official authority or influence to interfere with an election, (2) knowingly soliciting or discouraging political activity by anyone subject to a Commission audit or investigation, (3) soliciting or receiving political contributions (except in certain, narrowly limited circumstances), or (4) being a candidate for public office in a partisan election. 5 U.S.C. 7323(a).

OPM has authority to issue regulations regarding the Hatch Act Amendments, and the Office of Special Counsel (“OSC”) interprets and enforces those regulations. See 5 U.S.C. 1103(a)(5), 1212, 1216(a)(1) and 7325. No provision in the Hatch Act Amendments empowers any agency other than OPM to issue regulations pursuant to the Hatch Act Amendments, and no provision in FECA directly refers to the Hatch Act Amendments or previous Hatch Act restrictions. OPM has issued a regulation expressly prescribing the extent to which the political activities of employees may be limited beyond the restrictions in the Hatch Act Amendments. See 5 CFR 734.104. This OPM regulation states: “No further proscriptions or restrictions may be imposed upon employees covered under this regulation except: (a) Employees who are appointed by the President by and with the advice and consent of the Senate; (b) Employees who are appointed by the President; (c) Non-career senior executive service members; (d) Schedule C employees, 5 CFR 213.3301, 213.3302; and (e) Any other employees who serve at the pleasure of the President.” 5 CFR 734.104.

The Commission requested and received an advisory opinion from the OSC as to the scope of the Commission's authority to interpret the Hatch Act Amendments regarding Commissioners and Commission employees. 20 The specific question asked was whether the Commission may adopt a regulation that would forbid a Commissioner or a Commission employee from publicly supporting, working for, or contributing to a candidate, political party, or political committee subject to the jurisdiction of the FEC, even if, in the case of public support, the activity is not done in concert with the candidate, political party, or political committee. In its opinion, the OSC noted the OPM regulations cited above and stated with respect to employees that “the FEC cannot further restrict the political activity of its regular employees by forbidding them from publicly supporting or contributing to a candidate, political party, or political committee subject to the jurisdiction of the Commission.” U.S. Office of Special Counsel Advisory Opinion, OSC File No. AD-03-0095, at 2 (Aug. 29, 2003). The OSC opinion also noted with respect to Commissioners that “the FEC has no authority to adopt regulations that would forbid a Commissioner from publicly supporting, working for, or contributing to a candidate, political party, or political committee subject to the jurisdiction of the FEC.” Id. at 2-3. Thus, the OSC concluded that “the FEC may not adopt regulations that would limit the political activity of FEC employees or Commissioners beyond the restrictions set forth in the Hatch Act.”  21 Id. at 3.

Accordingly, former section 7.11 is being removed because it is inconsistent with the Hatch Act Amendments.

The Commission is removing former 11 CFR 7.12, which addressed employee and Commissioner membership in associations. In 1991, OGE issued a Notice of Proposed Rulemaking that included proposed regulations concerning participation in professional associations. See Notice of Proposed Rulemaking on Standards of Ethical Conduct for Employees of the Executive Branch, 56 FR 33778 (July 23, 1991). OGE decided, however, to reserve action in its final rule on this topic as a result of the overwhelming response to its request for comments. See Explanation and Justification for Final Rule on Standards of Ethical Conduct for Employees of the Executive Branch, 57 FR 35006 (Aug. 7, 1992). Consistent with the OGE decision to reserve action on membership in associations in its final rule, the Commission concludes that ethical concerns regarding membership in nongovernmental associations or organizations are properly addressed under the more general standards in 5 CFR part 2635. See 57 FR at 35035. Among those general provisions that are applicable are 5 CFR 2635.402 (concerning disqualifying financial interests), 5 CFR 2635.502 (concerning personal and business relationships), and 5 CFR 2635.704 and 2635.705 (concerning use of government property and official time).

Former 11 CFR part 7, subpart D, concerned administrative procedures to be followed for investigations of post-employment conflict-of-interest violations by individuals who have left Commission employment. Subpart D was based on a prior version of 18 U.S.C. 207 and 5 CFR parts 2637 and 2641. At the time that subpart D was adopted, 18 U.S.C. 207(j) authorized agency proceedings against individuals who violated that section and required that “departments and agencies shall, in consultation with the Director of the Office of Government Ethics, establish procedures to carry out this subsection.”

Subsequently, however, 18 U.S.C. 207(j) was amended and the language authorizing administrative procedures and providing the authority to promulgate regulations establishing procedures was removed and replaced with language providing exceptions to the restrictions on post-employment conflicts of interest. 22 The Commission has no pending post-employment situations concerning employees who left service before the repeal of former 18 U.S.C. 207(j). Accordingly, the Commission is removing former 11 CFR part 7, subpart D in its entirety. Please note that former employees remain subject to Department of Justice criminal prosecution under 18 U.S.C. 207 for post-employment conflict of interest violations. See 18 U.S.C. 216.

The Commission certifies that the attached final rules will not have a significant economic impact on a substantial number of small entities. The basis of this certification is that this rulemaking affects only the appointed members of the Federal Election Commission and its employees. The members of the Commission and its employees are individuals, and are not small entities under 5 U.S.C. 601.

For the reasons set out in the preamble, title 5 of the Code of Federal Regulations is amended as follows, and chapter I of title 11 of the Code of Federal Regulations is further amended as follows:

Section 218(a) of the Nuclear Waste Policy Act (NWPA) of 1982, as amended, requires that “the Secretary [of the Department of Energy] shall establish a demonstration program, in cooperation with the private sector, for the dry storage of spent nuclear fuel at civilian nuclear power reactor sites, with the objective of establishing one or more technologies that the [Nuclear Regulatory] Commission may, by rule, approve for use at the sites of civilian nuclear power reactors without, to the maximum extent practicable, the need for additional site-specific approvals by the Commission.” Section 133 of the NWPA states, in part, that “[t]he Commission shall, by rule, establish procedures for the licensing of any technology approved by the Commission under Section 219(a) [sic:218(a)] for use at the site of any civilian nuclear power reactor.”

To implement this mandate, the Commission approved dry storage of spent nuclear fuel in NRC-approved casks under a general license by publishing a final rule in Title 10 of the Code of Federal Regulations (10 CFR) part 72, which added a new Subpart K within 10 CFR part 72, entitled “General License for Storage of Spent Fuel at Power Reactor Sites” (55 FR 29181; July 18, 1990). This rule also established a new Subpart L within 10 CFR Part 72, entitled “Approval of Spent Fuel Storage Casks,” which contains procedures and criteria for obtaining NRC approval of spent fuel storage cask designs. The NRC subsequently issued a final rule on November 21, 2008 (73 FR 70587), that approved the MAGNASTOR ® cask design and added it to the list of NRC-approved cask designs in 10 CFR 72.214 as Certificate of Compliance (CoC) No. 1031.

On March 22, 2010, and as supplemented on March 30, March 31, June 8, July 1, November 10, and November 19, 2010, and April 22 and May 17, 2011, NAC, the holder of CoC No. 1031, submitted an application to the NRC that requested an amendment to CoC No. 1031. Specifically, NAC requested changes to revise: TS 3.3.2 to reduce the transportable storage canister removable surface contamination limits; TS 4.1.1 to add various boron-10 areal densities for use with Pressurized Water Reactor and Boiling Water Reactor baskets and to replace the fuel tube orthogonal pitch with the minimum fuel tube outer diagonal dimension; Table 2.1-2, “ASME Code Alternatives for MAGNASTOR® components,” of the Final Safety Analysis Report to correct the code reference; and Appendices A and B of the TSs to make editorial corrections.

As documented in the SER, the NRC staff performed a detailed safety evaluation of the proposed CoC amendment request and found that an acceptable safety margin is maintained. In addition, the NRC staff has determined that there continues to be reasonable assurance that public health and safety will be adequately protected.

This direct final rule revises the MAGNASTOR® System listing in 10 CFR 72.214 by adding Amendment No. 2 to CoC No. 1031. The amendment consists of the changes previously described, as set forth in the revised CoC and TSs. The revised TSs are identified in the SER.

The amended MAGNASTOR® System cask design, when used under the conditions specified in the CoC, the TSs, and NRC regulations, will meet the requirements of 10 CFR part 72; thus, adequate protection of public health and safety will continue to be ensured. When this direct final rule becomes effective, persons who hold a general license under 10 CFR 72.210 may load spent nuclear fuel into MAGNASTOR® System casks that meet the criteria of Amendment No. 2 to CoC No. 1031 under 10 CFR 72.212.

For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; the Nuclear Waste Policy Act of 1982, as amended; and 5 U.S.C. 552 and 553; the NRC is adopting the following amendments to 10 CFR part 72.

We received reports of two accidents where the engines suddenly lost power and the helicopters had to make emergency autorotation landings. Investigation revealed that PTG spool bearings, part number (P/N) 2523973 Revision N and P/N 2523973 Revision P, could fail prematurely. PTGs with these affected spool bearings require repetitive replacements before the spool bearings wear out prematurely. This condition, if not corrected, could result in sudden engine power loss, the helicopter making an emergency autorotation landing, and substantial damage to the helicopter.

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

This AD requires initial and repetitive replacements of PTGs model AL-AB1, P/N 4-301-289-03, 4-301-289-05, 4-301-289-09, 4-301-101-16, and 4-301-101-18, that are marked with compliance symbol N or P, or with no compliance symbol, on the PTG identification plate.

We consider this AD interim action. If final action is later identified, we might consider further rulemaking then.

An unsafe condition exists that requires the immediate adoption of this AD. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because of the premature failure of the affected PTGs. Therefore, we find that notice and opportunity for prior public comment are impracticable and that good cause exists for making this amendment effective in less than 30 days.

This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment. However, we invite you to send any written data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include the docket number FAA-2011-1159 and Directorate Identifier 2011-NE-34-AD at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD because of those comments.

We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this AD.

We estimate that this AD will affect 83 Honeywell International Inc. LTS101-600A-2, -3, -3A, and LTS101-700D-2 turboshaft engines, installed on helicopters of U.S. registry. We also estimate that it will take about 3 work-hours to replace a PTG on each engine. Required parts would cost about $3,500 per engine. The average labor rate is $85 per work-hour. Based on these figures, we estimate the total cost of this AD for one PTG replacement to U.S. operators, to be $311,665.

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

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

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

For the reasons discussed above, I certify that this AD:

(1) Is not a “significant regulatory action” under Executive Order 12866,

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

(3) Will not affect intrastate aviation in Alaska, and

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

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

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2011-0175, dated September 8, 2011 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

Rolls-Royce plc has issued Rolls-Royce plc Alert Service Bulletin No. RB.211-73-AG054, Revision 2, dated June 29, 2011. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.

This product has been approved by the aviation authority of the United Kingdom and is approved for operation in the United States. Pursuant to our bilateral agreement with the United Kingdom, they have notified us of the unsafe condition described in the MCAI and service information referenced above. We are issuing this AD because we evaluated all information provided by EASA and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design.

Since no domestic operators use this product, notice and opportunity for public comment before issuing this AD are unnecessary. Therefore, we are adopting this regulation immediately.

This AD is a final rule that involves requirements affecting flight safety, and we did not precede it by notice and opportunity for public comment. We invite you to send any written relevant data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2011-1109; Directorate Identifier 2011-NE-33-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD because of those comments.

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

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

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

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

For the reasons discussed above, I certify this AD:

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

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

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

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

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

By virtue of a Customs Union Treaty with Switzerland, Liechtenstein has adopted the export controls implemented under Swiss law, and has authorized Switzerland to administer and enforce export controls within Liechtenstein's territory. The Bureau of Industry and Security (BIS) recognizes that this arrangement results in the implementation of export controls in Liechtenstein that are equivalent to those in Switzerland, and in accordance with the multilateral export control regimes. By virtue of the Customs Union Treaty of 1923 between Switzerland and Liechtenstein (Customs Union Treaty), 1 Liechtenstein is a part of the “Swiss customs territory” and Switzerland acts on behalf of Liechtenstein regarding issues of trade in goods. The Customs Union Treaty empowers Switzerland to conclude and incur undertakings that apply automatically and directly to Liechtenstein. As a result of this arrangement, Swiss export control law applies equally to exporters from Switzerland and Liechtenstein. Further, Switzerland is responsible for administering export controls and enforcing export controls in Liechtenstein. Consequently, in this final rule, BIS aligns its treatment of Liechtenstein with that of Switzerland, resulting in the treatment of Liechtenstein and Switzerland as one territory for purposes of the Export Administration Regulations (EAR). Therefore, license requirements and licensing policy under the EAR for Liechtenstein are effectively the same as those for Switzerland. This treatment of Liechtenstein is consistent with the effort of the United States to streamline licensing requirements where export controls prescribed by the multilateral regimes are implemented.

In this rule, BIS amends the EAR by adding a sentence to paragraph (b) (Countries) of Section 738.3 (Commerce Country Chart Structure) that states that Liechtenstein, which serves as one territory with Switzerland for customs and export purposes, will be accorded the same licensing treatment as Switzerland under the EAR.

In addition and consistent with the purpose of this rule, BIS amends the EAR by adding a footnote for “Liechtenstein” on the Commerce Country Chart in Supplement No. 1 to Part 738 that states, “Refer to Switzerland for licensing requirements for Liechtenstein under the EAR.”; and by removing the “X” in chemical and biological weapons column 2, nuclear nonproliferation column 1, national security column 2, and regional stability column 2. BIS also amends the EAR by removing Liechtenstein from the group of Computer Tier 1 Destinations in paragraph (c)(1) of Section 740.7 (License Exception Computers (APP)); Country Group B in Supplement No. 1 to Part 740; the group of countries for which an Import Certificate or End-User Statement may be required in paragraph (b)(2) of Section 748.9 (Support Documents for License Applications); and the Authorities Administering Import Certificate/Delivery Verification and End-User Statement Systems in Foreign Countries in Supplement No. 4 to part 748. Finally, in this rule, BIS removes and reserves paragraph (g), which expressly permitted reexports between Liechtenstein and Switzerland, in License Exception Additional Permissive Reexports (APR).

Since August 21, 2001, the Export Administration Act (the Act) has been in lapse and the President, through Executive Order 13222 of August 17, 2001 (3 CFR, 2001 Comp., p. 783 (2002)), as extended most recently by the Notice of August 12, 2011, 76 FR 50661 (August 16, 2011), has continued the EAR in effect under the International Emergency Economic Powers Act. BIS continues to carry out the provisions of the Act, as appropriate and to the extent permitted by law, pursuant to Executive Order 13222.

1. Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has been designated a “significant regulatory action” although not economically significant, under section 3(f) of Executive Order 12866. Accordingly, the rule has been reviewed by the Office of Management and Budget (OMB).

2. Notwithstanding any other provisions of law, no person is required to respond to nor be subject to a penalty for failure to comply with a collection of information, subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ) (PRA), unless that collection of information displays a currently valid OMB Control Number. This rule involves two collections of information subject to the PRA. This collection has been approved by OMB under control number 0694-0088, “Multi-Purpose Application,” which carries a burden hour estimate of 43.8 minutes to prepare and submit form BIS-748. The other collection has been approved by OMB under control number 0694-0106, “Reporting and Recordkeeping Requirements under the Wassenaar Arrangement,” and carries a burden hour estimate of 21 minutes for a manual or electronic submission. Total burden hours associated with the PRA and OMB control numbers 0694-0088 and 0694-0106 are not expected to increase as a result of this rule.

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

4. Pursuant to 5 U.S.C. 553(a)(1), the provisions of the Administrative Procedure Act requiring notice of proposed rulemaking, the opportunity for public participation, and a delay in effective date, are inapplicable because this regulation involves a military or foreign affairs function of the United States. ( See 5 U.S.C. 553(a)(1)). Immediate implementation of these amendments furthers United States policies and goals toward allies and cooperating and like-minded countries with regard to export controls and reduces the burden on exporters in relation to licensing obligations. This rule will positively impact regional stability by promoting greater responsibility in the transfer of dual-use goods, technologies, thus preventing destabilizing effects. This action also reconciles any inconsistencies in the treatment of Liechtenstein in light of its Treaty and export control arrangement with Switzerland and therefore is consistent with the effort of the United States to streamline licensing requirements where export controls prescribed by the multilateral regimes are implemented. Failure to immediately implement this rule would result in an unnecessary licensing burden on businesses, especially small businesses. Thus, in light of the United States' understanding of how export controls are administered in Liechtenstein, the United States seeks to assist businesses and prevent confusion by immediately removing licensing requirements that are unnecessary in light of the fact the international regime requirements are otherwise being met. No other law requires that a notice of proposed rulemaking and an opportunity for public comment be given for this rule. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule by 5 U.S.C. 553, or by any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., are not applicable. Therefore, this regulation is issued in final form. In addition, the Department finds good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in effectiveness for the reasons provided above. Accordingly, this regulation is made effective immediately upon publication.

Accordingly, parts 738, 740 and 748 of the Export Administration Regulations (15 CFR parts 730 through 774) are amended as follows:

Coast Guard District Commanders and Captains of the Port (COTP) must be immediately responsive to the safety and security needs within their jurisdiction; therefore, District Commanders and COTPs have been delegated the authority to issue certain local regulations. Safety zones may be established for safety or environmental purposes. A safety zone may be stationary and described by fixed limits or it may be described as a zone around a vessel in motion. Security zones limit access to prevent injury or damage to vessels, ports, or waterfront facilities and may also describe a zone around a vessel in motion. Special local regulations are issued to enhance the safety of participants and spectators at regattas and other marine events. Drawbridge operation regulations authorize changes to drawbridge schedules to accommodate bridge repairs, seasonal vessel traffic, and local public events. Regulated Navigation Areas are water areas within a defined boundary for which regulations for vessels navigating within the area have been established by the regional Coast Guard District Commander.

Timely publication of these rules in the Federal Register is often precluded when a rule responds to an emergency, or when an event occurs without sufficient advance notice. The affected public is, however, informed of these rules through Local Notices to Mariners, press releases, and other means. Moreover, actual notification is provided by Coast Guard patrol vessels enforcing the restrictions imposed by the rule. Because Federal Register publication was not possible before the beginning of the effective period, mariners were personally notified of the contents of these safety zones, security zones, special local regulations, regulated navigation areas or drawbridge operation regulations by Coast Guard officials on-scene prior to any enforcement action. However, the Coast Guard, by law, must publish in the Federal Register notice of substantive rules adopted. To meet this obligation without imposing undue expense on the public, the Coast Guard periodically publishes a list of these temporary safety zones, security zones, special local regulations, regulated navigation areas and drawbridge operation regulations. Permanent rules are not included in this list because they are published in their entirety in the Federal Register . Temporary rules are also published in their entirety if sufficient time is available to do so before they are placed in effect or terminated. The temporary rules listed in this notice have been exempted from review under Executive Order 12666, Regulatory Planning and Review, because of their emergency nature, or limited scope and temporary effectiveness.

The following unpublished rules were placed in effect temporarily during the period between March 2010 and July 2011 unless otherwise indicated.

The Norfolk Southern Corporation, who owns and operates this swing drawbridge, has requested a temporary deviation from the current operating regulations set out in 33 CFR 117.1007(a) to facilitate laying new rail.

Under the current operation schedule, the draw shall remain in the open position for navigation. The draw shall only be closed for train crossings or periodic maintenance. The Norfolk Southern #5 Bridge, at mile 1.1, across the Elizabeth River (Eastern Branch) in Norfolk, VA, has a vertical clearance in the closed position to vessels of 6 feet above mean high water.

To facilitate laying new rail, the drawbridge will be maintained in the closed-to-navigation position from 7 a.m. to 5 p.m. on November 30, 2011. The bridge normally operates in the open position with several vessels transiting a week. Coordination with waterway users has been completed.

The Coast Guard will inform the users of the waterway through our Local and Broadcast Notices to Mariners of the opening restrictions of the draw span to minimize transiting delays caused by the temporary deviation. There are no alternate routes available but vessels may pass before 7 a.m. and after 5 p.m. Mariners able to pass under the bridge in the closed position may do so at any time and the bridge is 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.

Jefferson Parish has requested a temporary deviation from the operating schedule for the Bascule Span Bridge across the Harvey Canal Route, Intracoastal Waterway, mile 2.8 at Harvey, Jefferson Parish, Louisiana. The bridge has a vertical clearance of 45 feet above mean high water in the closed-to-navigation position and unlimited in the open-to-navigation position; however, during the deviation time periods, the vertical clearance beneath the bridge will be reduced to 35 feet above mean high water.

In accordance with Title 33 CFR 117.451(a), the bridge currently opens on signal for the passage of vessels; except that, from 6:30 a.m. to 8:30 a.m. and from 3:45 p.m. to 5:45 p.m. Monday through Friday except holidays, the draw need not be opened for the passage of vessels. This deviation allows the bridge to remain closed to navigation from 6:30 a.m. until 5:45 p.m. Monday through Saturday from Monday, December 5, 2011 through Saturday, March 3, 2012. At all other times, the bridge will open on signal for the passage of vessels in accordance with Title 33 CFR 117.451(a). Additionally, from Saturday, December 20, 2011 through Tuesday, January 3, 2012, the contractor will not work and the bridge will operate in accordance with Title 33 CFR 117.451(a).

The closure is necessary in order to clean and repaint the steel surfaces of the bridge. 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 mainly of tugs with tows with some commercial fishing vessels and recreational craft. Coordination between the Coast Guard and the waterway users determined that there should not be any significant effects on these vessels. An alternate route is available via the GIWW (Algiers Alternate Route). The bridge can open during the maintenance for emergencies. Opening the bridge will take approximately 90 minutes to remove the tarps and equipment as required to open the bridge.

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.

The Route 1 Bridge, across the Mystic River, mile 2.8, at Mystic, Connecticut, has a vertical clearance in the closed position of 4 feet at mean high water and 7 feet at mean low water. The drawbridge operation regulations are listed at 33 CFR 117.211(b).

The bridge rarely opens December through April except for testing.

The waterway users are recreational vessels of various sizes that do not operate during the winter months when this deviation will be in effect.

The owner of the bridge, Connecticut Department of Transportation, requested a temporary deviation from the regulations to facilitate a major bridge rehabilitation project.

During the bridge rehabilitation the bridge will be locked in the closed position and inoperable for any bridge openings.

The Coast Guard contacted the waterway users regarding the bridge closure and no objections were received.

Under this temporary deviation the Route 1 Bridge may remain in the closed position from December 1, 2011 through April 15, 2012.

Vessels that can pass under the bridge in the closed position may do so at any time.

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 subject bridge is the SR 11 Swing Bridge across Doullut Canal at mile 0.2, in Empire, Plaquemines Parish, LA. The vertical clearance is 3.3 feet above mean high water. Presently, under 33 CFR 117.5, the draw of the SR 11 Swing Bridge across Doullut Canal at mile 0.2, in Empire, shall open on signal.

The owner requests the bridge be allowed to remain in the closed-to-navigation position for the purpose of the running of the 2011 Orange King Festival Bike Race. This deviation is effective December 3, 2011 from 8 a.m. until noon. Coordination will be through Public Notice and Local Notice to Mariners upon date of publication in the Federal Register . This bridge will 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.

The City of Chesapeake, who owns and operates the S168 Bridge across the Atlantic Intracoastal Waterway, Albemarle and Chesapeake Canal mile 12.0, at Chesapeake (Great Bridge), VA, has requested a temporary deviation from the current operating regulations set out in 33 CFR 117.997(g), to accommodate the annual Christmas parade event. Normally, the bridge opens on signal; except that, from 6 a.m. to 7 p.m., the draw need be opened only on the hour or, if the vessel cannot reach the draw exactly on the hour, the drawtender may delay the hourly opening up to ten minutes past the hour.

In the closed position to vessels, this lift-type drawbridge provides a vertical clearance of 8.5 feet, above mean high water.

The Chesapeake annual Christmas parade event is scheduled for December 3, 2011. Under this temporary deviation, the drawbridge will remain in the closed position to vessels requiring an opening from 4 p.m. to 6 p.m. and from 8 p.m. to 10 p.m. on December 3, 2011. And, operations on December 4, 2011 will take place as set out in 33 CFR 117.997(g). However, should weather preclude this event from taking place on December 3, 2011, the event will be re-scheduled to take place on December 4, 2011. In that case, the drawbridge will operate as normal on December 3, 2011 and the drawbridge will remain in the closed position to vessels requiring an opening from 3 p.m. to 5 p.m. and from 7 p.m. to 9 p.m. on December 4, 2011. At all other times during the effective period of this temporary deviation, the drawbridge will operate as outlined at 33 CFR 117.997(g).

Vessels may transit under the drawbridge while it is in the closed position. The Atlantic Intracoastal Waterway caters to a variety of vessels from tug and barge traffic to recreational vessels traveling from Florida to Maine. The Coast Guard will inform unexpected users of the waterway through our local and broadcast Notices to Mariners of the limited operating schedule for the drawbridge so that vessels can arrange their transits to minimize any impacts caused by the temporary deviation. The Atlantic Ocean is the alternate route for vessels and the bridge will be able to open in the event of an emergency.

In accordance with 33 CFR 117.35(e), the draw must return to its original 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 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. Due to a change in the plans of the President of the United States, sufficient notice of the zone location could not be released in time to adequately complete a notice-and-comment rulemaking.

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 . Because of a change in the plans of the President of the United States, there is insufficient time before the security zone must be in place to publish this temporary final rule and then delay its effective date for 30 days after publication.

From November 13, 2011, through November 15, 2011, the President of the United States and his official party will be visiting the Ko'olina Beach Resort in Honolulu, Hawaii. The resort is located adjacent to U.S. navigable waters in the Honolulu Captain of the Port Zone. Accordingly, the U.S. Coast Guard is establishing this security zone in order to maintain optimum security to ultimately protect the President and his official party from all possible threats associated with vessels and persons in the water. Entry of persons or vessels into these security zones will be prohibited unless authorized by the Captain of the Port (COTP) Honolulu.

This temporary final rule will be effective from 11 p.m. HST on November 13, 2011 through 9 a.m. HST on November 15, 2011.

The security zone area is designated as the West Oahu Offshore Zone and covers all waters creating a box shape, encompassed by a line extending 1000 yards north along the coast from 21°20′16.00″ N, 158°07′34.77″ W; to 21°20′43.98″ N, 158°07′44.52″ W; then 1000 yards west to 21°20′36.10″ N, 158°08′15.18″ W; then 2000 yards south to 21°19′38.93″ N, 158°07′54.33″ W; then east to 21°19′1647.64″ N, 158°07′23.79″ W; then north along the shoreline back to the starting point. The West Oahu Offshore Zone does not include the entrance of Barbers Point Harbor Channel or the four lagoons adjacent to the Ko'olina Resort.

In accordance with the general regulations in 33 CFR part 165, subpart D, no person or vessel will be permitted to transit into or remain in the zone except for those authorized support vessels, aircraft and support personnel, or other personnel or vessels authorized by the Captain of the Port or the District Commander. Any Coast Guard commissioned, warrant, or petty officer, or other Captain of the Port representative permitted by law, may enforce the zone. Vessels, aircraft, or persons in violation of this rule will be subject to the penalties set forth in 33 U.S.C. 1232 and 50 U.S.C. 192.

Vessels, aircraft, or persons in violation of this rule will be subject to the penalties set forth in 33 U.S.C. 1232 and 50 U.S.C. 192.

We developed this temporary final 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 expects the economic impact of this rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary. This conclusion is based on the limited duration of the zone and the limited geographic area affected by it.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule will 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 could affect the following entities, some of which might be small entities: the owners or operators of vessels for hire intending to transit or operate in the West Oahu Security Zone from November 13, 2011 to on November 15, 2011.

This security zone will not have a significant economic impact on a substantial number of small entities for the following reasons: the security zone will be activated and thus subject to enforcement for a period of no longer than 2 days and will not affect vessels transiting or operating outside a box extending along the coast 1000 yards to the north of the northern most lagoon at the Ko'olina Resort, to 1000 yards south, along the coast, of Ko'olina's northern most lagoon to 1000 yards to seaward from both points and then connected with a straight line.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule will affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact LCDR Scott O. Whaley at (808) 522-8264 ext. 352.

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 will not create an environmental risk to health or risk to safety that might disproportionately affect children.

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it will 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 made a determination that this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction. This regulation establishes one security zone. A final “Environmental Analysis Check List” and a final “Categorical Exclusion Determination” are available in the docket where indicated under ADDRESSES .

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

EPA is approving New Jersey's revision to the ozone State Implementation Plan (SIP) submitted on May 14, 2009. This SIP revision relates to New Jersey's NO X RACT determination for the Naval Weapons Station Earle (NWSE) facility located in Colts Neck, New Jersey, Monmouth County. The facility contains two stationary reciprocating, diesel fuel fired, internal combustion engines one existing and one new engine.

EPA received one comment from the public. The commenter expressed support for EPA's proposed approval of the New Jersey SIP revision but was concerned about the length of time from the date EPA received the SIP revision request to the date of EPA's proposal to approve the SIP revision. EPA understands the commenter's concerns. However, due to the numerous SIP revisions that EPA receives, and the limited resources EPA has to act on all SIP revisions, EPA must process SIP revisions based on overall program priorities.

EPA has determined that New Jersey's SIP revision for the NO X RACT determination for NWSE's engines is consistent with New Jersey's NO X RACT regulation and EPA's guidance. EPA has determined that New Jersey's SIP revision will not interfere with any applicable requirement concerning attainment and reasonable further progress, or any other applicable requirement of the Act. Therefore, EPA is approving the NO X emission limits identified in New Jersey's Conditions of Approval document for NWSE's engines. The conditions contained in the Conditions of Approval document currently specify emissions limits, work practice standards, testing, monitoring, and recordkeeping/reporting requirements. These conditions are consistent with the NO X RACT requirements specified in Subchapter 19 of Chapter 27, Title 7 of the New Jersey Administrative Code and conform to EPA NO X RACT guidance.

More specifically, EPA approves the current Conditions of Approval document which includes the following, to limit the:

1. NO X emissions rate from each engine to 11.3 g/bhp-hr,

2. Total NO X emissions rate while combusting 100% distillate oil to 4.67 tons per year for both engines combined,

3. Combined hours of operation for both engines to less than 675 hours per year,

4. Operation of each engine to 75% load or less, and

5. Annual fuel usage to 20,047.50 gallons per year combined for both engines.

In addition, the Conditions of Approval specify the NO X emissions limits, combustion process adjustments mentioned above, emission testing, monitoring, recordkeeping and reporting requirements, which States and sources will need to provide for through the Title V permitting process.

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

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by January 13, 2012. 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).

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. Section 804, however, exempts from section 801 the following types of rules: rules of particular applicability; rules relating to agency management or personnel; and rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties. 5 U.S.C. 804(3). Because this is a rule of particular applicability, EPA is not required to submit a rule report regarding this action under section 801.

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

In this action, EPA is approving revisions to the Texas regulations relating to renewal of preconstruction permits. The rules for Permit Renewals are currently approved in the Texas SIP under 30 TAC 116.310, 116.311, 116.312, 116.313, 116.314, and 116.315. EPA approved these rules on March 10, 2006 (71 FR 12285), and revisions on March 20, 2009 (74 FR 11851), and March 11, 2010 (75 FR 11464). The approved rules require each preconstruction permit to be renewed every ten years. Permit renewal is approved based upon a demonstration in the renewal application that the permitted facility will operate in accordance with all requirements and conditions of the existing permit, including representations in the application to construct, any subsequent amendments, any previously granted renewal, and the compliance history of the facility. Although preconstruction permits must remain in effect as long as the source operates and until voided under the approved implementation procedures, periodic renewal of preconstruction permits is neither required nor prohibited under the Act or Federal Regulations.

On December 15, 1995; July 22, 1998; and September 4, 2002; the State of Texas submitted revisions to the Texas SIP concerning Permit Renewals under Title 30 of the Texas Administrative Code (30 TAC), Chapter 116—Control of Air Pollution by Permits for New Construction or Modification, Subchapter D—Permit Renewals. The December 15, 1995, revisions to these provisions were superseded and rendered moot by revisions submitted to EPA on July 22, 1998, because the latter submittal repealed and replaced the earlier versions of the same provisions addressed in the December 15, 1995, submittal. Submitted revisions included changes to 30 TAC 116.310—Notification of Permit Holder, 30 TAC 116.311—Permit Renewal Application, 30 TAC 116.312—Public Notification and Comment Procedures, 30 TAC 116.313—Renewal Application Fees, 30 TAC 116.314—Review Schedule, and 30 TAC 116.315—Permit Renewal Submittal. In this final action, we are addressing submitted revisions to 30 TAC 116.310, 116.311, and 116.314.

Section 30 TAC 116.310—Notification of Permit Holder—is currently approved as adopted by Texas on August 16, 1993, approved March 10, 2006 (71 FR 12285). Today, we are approving revisions to Section 116.310 that were adopted by Texas on November 16, 1995 (submitted December 15, 1995) and June 17, 1998 (submitted July 22, 1998).

Section 30 TAC 116.311—Permit Renewal Application—is currently approved as adopted by Texas on April 6, 1994, approved March 10, 2006 (71 FR 12285). The requirements of subsection (c) were later removed from Section 116.311 and added to a new Section 116.315 and approved by EPA on March 11, 2010 (75 FR 11464). Today, we are approving other revisions adopted by Texas on November 16, 1995 (submitted December 15, 1995); June 17, 1998 (submitted July 22, 1998); and August 21, 2002 (submitted September 4, 2002). Today's action does not address severable revisions to 30 TAC 116.311(a)(2) submitted December 15, 1995; July 22, 1998; and September 4, 2002. This provision was revised to exclude changes under the severable provisions relating to Qualified Facilities. EPA is not taking action on Paragraph (a)(2) in this rulemaking. EPA will address the revisions to that provision in a separate action in connection with the separately submitted revisions to the Texas Qualified Facilities Program, submitted October 5, 2010.

Section 30 TAC 116.314—Review Schedule—is currently approved as adopted by Texas on August 16, 1993, approved March 10, 2006 (71 FR 12285). Today, we are approving revisions adopted by Texas on November 16, 1995 (submitted December 15, 1995) and June 17, 1998 (submitted July 22, 1998).

EPA proposed to approve these SIP revisions on June 6, 2011 (76 FR 32333). In that proposal, we requested public comments on the proposed action. The public comment period closed July 6, 2011. We received one comment letter from Baker Botts on behalf of the BCCA Appeal Group (BCCAAG) and the Texas Industry Project (TIP).

Additional information related to these SIP submittals is contained in the Technical Support Document (TSD), which is in the docket for this action.

The table below summarizes the changes that were submitted and are affected by this action. A summary of EPA's evaluation of each section and the basis for this final action is discussed in section III of this preamble. The TSD includes a detailed evaluation of the referenced SIP submittals.

We have evaluated the SIP submissions for consistency with the CAA, NSR regulations for new and modified sources in 40 CFR part 51, and the approved Texas SIP. We have also reviewed the rules for enforceability and legal sufficiency.

This action addresses revisions to 30 TAC 116.310, 116.311, and 116.314, submitted December 15, 1995, and July 22, 1998, and revisions to 30 TAC 116.311 submitted September 4, 2002. A technical analysis of the submittals for the sections relating to Notification of Permit Holder, Permit Renewal Application, and Review Schedule has found that these changes are consistent with the CAA, 40 CFR part 51 and EPA policies. Therefore, EPA approves the revisions to 30 TAC 116.310, 116 .311, 1 and 116.314 submitted on December 15, 1995; July 22, 1998; and September 4, 2002.

The currently approved provisions for 30 TAC 116.310 were submitted to EPA on August 31, 1993. EPA approved the submitted revisions on March 10, 2006 (71 FR 12285). These revisions became effective on May 9, 2006.

Since EPA's last approval for this section, TCEQ has submitted two SIP revisions to EPA for the Notification of Permit Holder in 30 TAC 116.310 on December 15, 1995, and July 22, 1998. Today we are approving the revisions of the existing provisions of section 116.310. The revisions submitted to this section include updated references to the current agency name and update of a state statutory citation to the current citation.

These submitted revisions are non-substantive and do not change the underlying requirements of the section as currently approved. We are approving the revisions to 30 TAC 116.310 as submitted December 15, 1995, and July 22, 1998.

The currently approved provisions for 30 TAC 116.311 were submitted to EPA on August 31, 1993, and April 29, 1994. EPA approved the submitted revisions on March 10, 2006 (71 FR 12285). These revisions became effective on May 9, 2006.

Since EPA's last approval for this section, TCEQ has submitted three SIP revisions to EPA for the Permit Renewal Application section on December 15, 1995; July 22, 1998; and September 4, 2002. On March 11, 2010, we approved the recodification and revision of the existing provisions of Section 116.311(c) to a new Section 116.315—Permit Renewal Submittal. In this action, we are approving the remaining revisions as described below, except for the revisions to 30 TAC 116.311(a)(2). This includes the following revisions:

a. Revisions submitted December 15, 1995, and July 22, 1998.

These revisions include:

• Removal of Paragraphs (a)(1), (a)(3), and (a)(4), and the redesignation of existing Paragraphs (a)(2), (a)(5), and (a)(6) to Paragraphs (a)(1) through (a)(3), respectively;

• Addition of new Paragraphs (a)(4) and (a)(5);

• Addition of new Subsection (b); and

• Redesignation of existing Subsection (b) to Subsection (c) with non-substantive revisions.

b. Revisions submitted September 4, 2002.

These revisions include the addition of new Paragraph (a)(1) and redesignation of existing Paragraphs (a)(1) through (a)(4) to Paragraphs (a)(2) through (a)(5), respectively.

a. The addition of new Paragraph (a)(1).

Texas submitted Paragraph (a)(1) on September 4, 2002. This paragraph ensures that upon renewal, “dockside vessel emissions associated with the permitted facility will comply with all rules and regulations of the commission and with the intent of the TCAA, including protection of the health and property of the public and minimization of emissions to the extent possible, consistent with good air pollution practices.” This revision is consistent with the provision in the SIP-approved 30 TAC 116.111(a)(2) as it relates to associated dockside vessel emissions. See 72 FR 49198 (August 28, 2007). The TCEQ obtained the authority to regulate dockside emissions under House Bill (HB) 3040, 77th Legislature, 2001 which amended the Texas Health and Safety Code (THSC), Texas Clean Air Act (TCAA), § 382.065 (Acts 2001, 77th Legislature, Chapter 1166, § 1). See page 2 of the TCEQ's evaluation of the revisions submitted September 4, 2002. The TCEQ further states:

Finally, concerning the revision to 30 TAC 116.311, the TCEQ states:

b. The removal of existing Paragraph (a)(1).

This paragraph provides that upon renewal the emissions from the facility will comply with all applicable specifications and requirements in the Texas Air Control Board (TACB)  2 rules and the Texas Clean Air Act (TCAA). Texas submitted the removal of existing Paragraph (a)(1) on December 15, 1995, and July 22, 1998. This provision is redundant because the SIP already contains the substantive requirement at 30 TAC 116.115(b)(2)(H)(ii) requiring that “[i]f more than one state or federal regulation or permit condition are applicable, the most stringent limit or condition shall govern and be the standard by which compliance shall be demonstrated.” The SIP also provides TCEQ with the authority to re-evaluate a source's ability to comply with the statute and regulations at renewal, as provided in the existing SIP rule at 30 TAC 116.311(b), and which is recodified to 30 TAC 116.311(c). Because the removal of this paragraph is merely the removal of a redundant requirement, it is not a relaxation of the SIP. Therefore, approval of this revision will not interfere with attainment and reasonable further progress or any other applicable federal requirement, as required by section 110(l) of the CAA. Accordingly, we are approving the removal of existing Paragraph (a)(1), submitted December 15, 1995, and July 22, 1998.

c. Revisions to Paragraph (a)(2).

As currently approved, Paragraph (a)(2) provides that upon renewal, a facility continues to operate in accordance with all requirements and conditions of the existing permit, including representations in the application for permit to construct and subsequent amendments, and any previously granted renewal. This paragraph was revised and redesignated to Paragraph (a)(1) in the December 15, 1995, and July 22, 1998, SIP submittals. This paragraph was again redesignated to Paragraph (a)(2) in the September 4, 2002, SIP submittal. The revisions submitted December 15, 1995, and July 22, 1998, as redesignated in the September 4, 2002, SIP submittal, were revised to add a provision that excludes changes otherwise authorized for a Qualified Facility. The submitted revisions to paragraph (a)(2) are related to severable provisions that relate to Qualified Facilities that we disapproved on April 14, 2010 (75 FR 19468) and to the separately submitted revisions to the Qualified Facilities Program on October 5, 2010. We are taking no action on the severable submitted revision to Paragraph (a)(2) relating to Qualified Facilities, and we will address these revisions in a separate action on the submitted revisions to the Qualified Facilities Program. The approved SIP will retain currently approved paragraph (a)(2) as adopted by Texas on April 4, 1994 (submitted April 29, 1994), and approved March 10, 2006.

Accordingly, consistent with our proposal, we will take no action on the submitted revisions to 30 TAC 116.311(a)(2). The approved SIP will retain the currently approved provisions of 30 TAC 116.311(a)(2) as adopted by Texas on April 6, 1994, and approved by EPA on March 10, 2006, 71 FR 12285.

d. The removal of existing Paragraph (a)(3).

This paragraph required that upon renewal the facility will continue to have appropriate means to measure the emission of significant air contaminants as determined necessary by the Executive Director. Texas submitted the removal of Paragraph (a)(3) on December 15, 1995, and July 22, 1998. In its December 15, 1995, submittal Texas stated:

Because the removal of this paragraph is merely the removal of a redundant requirement, it is not a relaxation of the SIP. Therefore, approval of this revision will not interfere with attainment and reasonable further progress or any other applicable federal requirement, as required by section 110(l) of the CAA. Accordingly, we are approving the removal of existing Paragraph (a)(3), submitted December 15, 1995, and July 22, 1998.

e. The removal of existing Paragraph (a)(4).

This paragraph required that upon renewal the facility will continue to use the control technology determined by the Executive Director to be economically reasonable and technically practicable considering the age of the facility and the impact of its emissions on the surrounding area. Texas submitted the removal of Paragraph (a)(4) on December 15, 1995, and July 22, 1998. This provision is redundant because the SIP already provides for this substantive requirement at 30 TAC 116.311(a)(2) and 30 TAC 116.111(a)(2)(C). Section 30 TAC 116.311(a)(2) provides that upon renewal, the facility is being operated in accordance with all requirements and conditions of the existing permit, including representations in the application for permits to construct and subsequent amendments, and any previously granted renewal. Therefore, the SIP-approved requirements 30 TAC 116.311(a)(2) require that upon renewal, a facility will continue to meet the requirements of 30 TAC 116.111(a)(2)(C). This SIP rule requires that a proposed facility will utilize Best Available Control Technology (BACT), with consideration given to technical practicability and economic reasonableness of reducing or eliminating the emissions from the facility. Because the removal of Paragraph (a)(4) is merely the removal of a redundant requirement, it is not a relaxation of the SIP. Therefore, approval of the removal of 30 TAC 116.311(a)(4) will not interfere with attainment and reasonable further progress or any other applicable federal requirement, as required by section 110(l) of the CAA.

The removal of Paragraph (a)(4) also removes a provision that allows director discretion relating to the control technology that could be utilized at a facility following renewal. Further, the TCEQ maintains the authority to impose, as a condition of renewal, additional requirements that it determines to be economically reasonable and technically practicable considering the age of the facility and the impact of its emissions on the surrounding area, as provided in the submitted revisions related to 30 TAC 116.311(b) (which is evaluated in section III.B.3.i of this preamble). Accordingly, we are approving the removal of existing Paragraph (a)(4), submitted December 15, 1995, and July 22, 1998.

f. Revisions to currently submitted Paragraphs (a)(3) and (a)(4).

These paragraphs are currently approved as Paragraphs (a)(5) and (a)(6). These paragraphs require that upon renewal, the facility must continue to meet the applicable requirements of the New Source Performance Standards (required under section 111 of the Act and 40 CFR part 60) and the National Emission Standards for Hazardous Air Pollutants (required under section 112 of the Act and 40 CFR part 61). These paragraphs were redesignated to Paragraphs (a)(2) and (a)(3) with non-substantive changes in revisions submitted December 15, 1995, and July 22, 1998, and were again redesignated to Paragraphs (a)(3) and (a)(4) in a revision submitted September 4, 2002, with no substantive changes. The changes to these provisions are non-substantive revisions to the existing SIP. Accordingly, we are approving the redesignations and non-substantive changes to these paragraphs as submitted December 15, 1995; July 22, 1998; and September 4, 2002.

g. Addition of new Paragraph (a)(5).

This paragraph was submitted as Paragraph (a)(4) on July 22, 1998, and then redesignated to Paragraph (a)(5), as submitted September 4, 2002. This paragraph requires that upon renewal, the facility must continue to meet the applicable requirements of the maximum achievable control technology standard as listed under 40 CFR part 63, promulgated by EPA under the authority of section 112 of the CAA, or as listed under 30 TAC Chapter 113, Subchapter C of this title (relating to National Emissions Standards for Hazardous Air Pollutants for Source Categories) (FCAA § 112, 40 CFR part 63). This paragraph ensures that upon renewal the facility continues to meet the requirements of the current SIP at 30 TAC 116.111(a)(2)(F), which requires permitted facilities to comply with the requirements of 40 CFR part 63. Accordingly, we are approving the addition of Paragraph (a)(5) as submitted December 15, 1995; July 22, 1998; and September 4, 2002.

h. Addition of new Subsection (b).

Texas submitted Subsection (b) on December 15, 1995, and July 22, 1998. This section provides that in addition to the requirements in Subsection (a) of this section, if the TCEQ determines it necessary to avoid a condition of air pollution or to ensure compliance with otherwise applicable federal or state air quality control requirements, then: (1) The applicant may be required to submit additional information regarding the emissions from the facility and their impacts on the surrounding area; and (2) the TCEQ shall impose as a condition for renewal those requirements the Executive Director determines to be economically reasonable and technically practicable considering the age of the facility and the impact of its emissions on the surrounding area. This new subsection provides the Executive Director of the TCEQ with authority to require additional information and to require additional requirements above and beyond the requirements stipulated in Subsection (a) whenever the Executive Director deems such additional measures are necessary. EPA has already approved Subsection (a) (as adopted by the State on April 6, 1994) as meeting the requirements of the Act and 40 CFR part 51. Because the requirements in Subsection (b) are in addition to the requirements in Subsection (a) of this section, and because EPA has approved Subsection (a), Subsection (b) can only be used to impose additional measures when the Executive Director deems them necessary. Subsection (b) does not authorize the Executive Director to use the permit renewal process to relax terms and conditions of the existing permit. Such relaxations of the existing permit must be authorized through the SIP-approved procedures for changing a permit under 30 TAC Chapter 116, Subchapter B—New Source Review Permits. 3 Further, the addition of subsection (b) provides a mechanism to ensure that upon renewal, the permit continues to meet the approved SIP requirements at 30 TAC 116.111(a)(2)(A)(1) which requires the initial permit must “comply with all rules and regulations of the commission and with the intent of the TCAA, including protection of the health and property of the public.” The addition of Subsection (b) provides TCEQ with a mechanism to impose additional requirements at renewal when TCEQ deems it necessary to address changes in air quality or changes to applicable federal and state requirements that may occur after issuance of the initial permit. We therefore find that the submitted revision to add Subsection (b) to 30 TAC 116.311 meets section 110(a)(2)(C) of the Act and 40 CFR part 51; and does not interfere with any applicable requirement concerning attainment and reasonable further progress, or any other applicable requirement of the Act. Accordingly, we are approving the addition of the new Subsection (b) to the SIP.

i. Revisions to Subsection (c).

This provision is currently approved as Subsection (b). This subsection requires that upon renewal, the facility shall continue to meet the requirements under the undesignated heading in Subchapter B relating to Compliance History. This provision was redesignated to Subsection (c) with revisions, submitted December 15, 1995, and July 22, 1998. The submitted revisions include changing the citations to refer to the Compliance History provisions to refer to the SIP-approved requirement under 30 TAC 116.120 through 116.126 under Subchapter B, Division 2—Compliance History. The changes also include clarifications that failure to demonstrate compliance with the Compliance History requirements shall result in the renewal not being granted. It further changes the rule to provide that if a contested case hearing has not been requested, the Executive Director, not the staff, must notify the applicant of intent to recommend denial of an application for permit renewal if the TCEQ finds that violations of the compliance history constitute a recurring pattern of egregious conduct which demonstrates a consistent disregard for the regulatory process, including failure to make a timely and substantial attempt to correct the violations. We find that the submitted revision meets section 110(a)(2)(C) of the Act and 40 CFR part 51. Accordingly, we are approving the redesignation of Subsection (b) to Subsection (c) and the revisions thereto as submitted December 15, 1995, and July 22, 1998.

The currently approved provisions for 30 TAC 116.314 were submitted to EPA on August 31, 1993. EPA approved the submitted revisions on March 10, 2006 (71 FR 12285). These revisions became effective on May 9, 2006.

Since EPA's last approval for this section, TCEQ has submitted two SIP revisions to EPA for this section on December 15, 1995, and July 22, 1998. In this action, we are approving the revisions of the existing provisions of section 116.314. The revisions submitted to this section include the following:

• Reorganization of Subsection (a) into Subsections (a) and (b) and redesignation of existing Subsections (b) and (c) to Subsections (c) and (d).

• Non-substantive revisions to the reorganized Subsections (a) and (b).

• Revisions to Subsection (c) as recodified.

• Non-substantive revisions to Subsection (d) as recodified.

The revisions to 30 TAC 116.314 are evaluated and addressed as described below:

a. Revisions to Subsections (a) and (b).

The revisions submitted December 15, 1995, and July 22, 1998, revised and reorganized Subsection (a) into Subsections (a) and (b). These revisions include clarifying amendments which streamline and reorganize the requirements of Subsections (a) and (b). The submitted changes are non-substantive. Accordingly, we are approving Subsections (a) and (b) as submitted December 15, 1995, and July 22, 1998.

b. Revisions to Subsection (c).

These provisions are currently approved as Subsection (b). As approved, this subsection provides that in the event that the permit holder fails to satisfy the requirements for corrective action by the deadline specified in the report filed by the TCEQ, the applicant shall be required to show cause in a contested case proceeding why the permit should not expire. The proceeding will be pursuant to the requirements of the Administrative Procedure and Texas Register Act, Article 6252-13a, V.T.C.S. This subsection was recodified to Subsection (c) in the revisions submitted December 15, 1995, and July 22, 1998. The submitted revisions update the agency name and the statutory citation relating to contested case hearings and referred to the contested case hearing provisions in 30 TAC Chapters 1, 55, and 80. The submitted revision to 30 TAC 116.314(c) includes specific cross-references to 30 TAC Chapters 1, 55, and 80, which relate to Purpose of Rules, General Provisions; Request for Contested Case Hearings; Public Comment; and Contested Case Hearings. In contrast, the current SIP refers to the Contested Case Hearing Process without cross references to specific rules relating to Contested Case Hearings. Although the revision provides references to the specific rules relating to Contested Case Hearings, the revision does not make substantive changes to the requirements of the existing SIP. Texas's use of the Contested Hearing Process in this context in both the current SIP and the submitted revisions is to inform the permit applicant of the availability of the contested case hearing but does not incorporate the specific requirements of Chapters 1, 55, and 80 into the SIP. Further, the submitted revision to 30 TAC 116.314(c) meets the requirements of section 110(a)(2)(C) of the Act and 40 CFR part 51, does not interfere with any applicable requirement concerning attainment and reasonable further progress, or any other applicable requirement of the Act. Accordingly, we are approving the revisions to Subsection (c) as submitted December 15, 1995, and July 22, 1998.

d. Revisions to Subsection (d).

These provisions are currently approved as Subsection (c) and relate to the effective date of the existing permit. This subsection was revised and recodified to Subsection (d) in revisions submitted December 15, 1995, and July 22, 1998. These revisions include clarifying amendments which streamline the requirements relating to Permit Renewals. The submitted changes are non-substantive. Accordingly, we are approving the revision to Subsection (d) as submitted December 15, 1995, and July 22, 1998.

EPA received one comment letter submitted jointly by the BCCA Appeal Group (BCCA) and Texas Industry Project (TIP).

The commenters agreed with EPA's proposed approval of 30 TAC 116.310, 116.311, and 116.314 because approval of these provisions will enhance the Texas SIP.

We appreciate the commenters' support for our approval of these Texas Permit Renewals provisions.

The commenters asked EPA to fully approve all of the revisions to 30 TAC 116.311 on the basis that deferral would be inappropriate in light of the SIP approvability of Section 116.311 as a whole and EPA's commitment to act on the revisions to it by October 31, 2011. 4 The commenters contend that the language at issue in section 116.311(a)(2) addresses only a requirement for the contents of a permit renewal application, and it does not independently bring the Qualified Facilities Program into the SIP. Further, the commenters assert that requiring applicants to show satisfaction of state requirements that are not yet SIP-approved does not render the provision unapprovable. So, rather than deferring action on section 116.311(a)(2) to coincide with a longer schedule for action on the revised Qualified Facilities Program, the commenters suggest that EPA should act now to approve section 116.311(a)(2).

EPA disagrees with the commenters that the revisions to 116.311(a)(2) are approvable at this time. The language of the revisions exempts renewal applicants from complying with requirements of the existing SIP-approved permit if the source is authorized as a Qualified Facility. On April 14, 2010, EPA disapproved the Qualified Facilities Program (75 FR 19468). On October 5, 2010, Texas submitted revisions to the Qualified Facilities Program in an effort to address EPA's concerns noted in our disapproval action. However, EPA has not had the opportunity to review and take action on these revisions yet, so the Qualified Facilities Program is not a part of the approved SIP at this time. We disagree with the commenters' contention that allowing applicants to show satisfaction of state requirements that are not yet SIP-approved, in lieu of compliance with SIP-approved requirements, renders the provision approvable. The submitted revisions to 30 TAC 116.311(a)(2) exempt sources from compliance with permit terms and conditions on the basis that the source has state-only authorization under the non-federally approved Qualified Facilities Program. At this time, EPA is taking no action on the submitted revision to 30 TAC 116.311(a)(2). We will take action on the revision to 30 TAC 116.311(a)(2) when we take action on the October 5, 2010, submitted revisions to the Qualified Facilities Program.

Finally, commenters urge EPA to act on the proposed SIP approval on the basis that prompt SIP approvals improve regulatory transparency and certainty. Commenters state that divergence between the requirements of state law and the SIP can cause confusion over the applicable requirements and increase the costs of compliance.

We agree that action on SIP submittals increases certainty for the regulated community because final action by EPA clarifies whether rules submitted by a state for inclusion in the SIP are sufficient to meet federal requirements and are federally enforceable. However, we note that approvability of an individual SIP submittal turns on whether the submittal complies with the CAA and applicable federal regulations. EPA must evaluate each SIP submittal on its own merits and determine what action to take under CAA section 110(k).

Today, EPA is approving the following revisions to the Texas SIP:

• Revisions to 30 TAC 116.310—Notification of Permit Holder—submitted December 15, 1995, and July 22, 1998.

• Revisions to 30 TAC 116.311—Permit Renewal Application—submitted December 15, 1995; July 22, 1998; and September 4, 2002; as follows:

○ Addition of new Paragraph (a)(1);

○ Removal of existing Paragraphs (a)(1), (a)(3), and (a)(4);

○ Revisions to and redesignation of existing Paragraphs (a)(5) and (a)(6) to Paragraphs (a)(3) and (a)(4), respectively;

○ Addition of new Paragraph (a)(5);

○ Addition of new Subsection (b); and

○ Revisions to and redesignation of existing Subsection (b) to Subsection (c).

• Revisions to 30 TAC 116.314—Review Schedule—submitted December 15, 1995, and July 22, 1998, as follows:

○ Revisions to and reorganization of existing Subsection (a) to Subsections (a) and (b); and

○ Revisions to and redesignation of existing Subsections (b) and (c) to Subsections (c) and (d), respectively.

Much of this SIP revision re-organizes and makes non-substantive changes to the Texas renewals program. This revision also revises the SIP by adding a requirement to ensure that permits that pre-date TCEQ's rule change to regulate dockside emissions are required at renewal to ensure all dockside emissions comply with the statute and regulations. The revision also removed the following three requirements from the renewals process: (1) Upon renewal the emissions from the facility will comply with all applicable specifications and requirements in the Texas Air Control Board (TACB) rules and the Texas Clean Air Act (TCAA); (2) upon renewal the facility will continue to have appropriate means to measure the emission of significant air contaminants as determined necessary by the Executive Director; and (3) upon renewal the facility will continue to use the control technology determined by the Executive Director to be economically reasonable and technically practicable considering the age of the facility and the impact of its emissions on the surrounding area. The removal of these provisions is approvable because these requirements are provided elsewhere in the Texas SIP; and therefore, their deletion will not interfere with attainment and reasonable further progress of the NAAQS or any other applicable requirement, as required by section 110(l) of the CAA.

Final action on these revisions on or before October 31, 2011, will meet EPA's obligation on the Permit Renewals component of the May 21, 2009, Consent Decree between EPA and the Business Coalition for Clean Air Appeal Group, Texas Association of Business, and Texas Oil and Gas Association.

EPA will address the severable revisions to 30 TAC 116.311(a)(2) submitted December 15, 1995; July 22, 1998; and September 4, 2002, in a separate action. While we are processing our separate action on the revisions to Paragraph (a)(2), we are retaining the currently approved provisions of paragraph (a)(2) in the SIP as adopted by Texas on April 6, 1994, approved March 10, 2006 (71 FR 12285).

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by January 13, 2012. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR part 52 is amended as follows:

The CPS fishery in the U.S. exclusive economic zone (EEZ) off the West Coast is managed under the CPS FMP, which was developed by the Pacific Fishery Management Council (Council) pursuant to the Magnuson-Stevens Fishery Conservation and Management Act (MSA). Species managed under the CPS FMP include Pacific sardine, Pacific mackerel, jack mackerel, northern anchovy, market squid and krill. The CPS FMP was approved by the Secretary of Commerce and was implemented by regulations that can be found at 50 CFR part 660, subpart I.

The MSA was amended in 2007 to include new requirements for ACLs and accountability measures (AMs) and other provisions regarding preventing and ending overfishing and rebuilding fisheries. On February 17, 2009, NMFS revised its guidelines implementing MSA National Standard 1 (January 16, 2009; 74 FR 3178) in response to these changes in the MSA. The revised guidelines explain NOAA's interpretation of the new statutory requirements for specifying ACLs at such levels that overfishing does not occur and that measures be taken to ensure accountability with these limits. The purpose of Amendment 13 is to amend the CPS FMP to comply with certain provisions in those revised advisory guidelines and to comply with the new requirement to establish a process for setting ACLs and AMs. Specifically, Amendment 13 revised the framework process to set and adjust fishery specification and management measures, and established a framework for specifying new reference points such as ACLs and AMs, as well as other provisions for preventing overfishing such as the potential setting of annual catch targets (ACTs).

Additionally, Amendment 13 amended the FMP to better account for scientific and management uncertainty and to prevent overfishing through the following measures:

• Modify the existing harvest control rules for actively managed species (Pacific sardine and Pacific mackerel) to include a buffer or reduction in acceptable biological catch (ABC) relative to overfishing limit (OFL) to account for scientific uncertainty. This buffer will be recommended during the annual management cycle through a combination of scientific advice from the Scientific and Statistical Committee (SSC) and a policy determination of the Council.

• Maintain the default harvest control rules for monitored stocks (jack mackerel, northern anchovy and market squid) but modified as necessary to specify the new management reference points. ACLs would likely be specified for multiple years until such time as the species becomes actively managed or new scientific information becomes available. The current buffer of a 75-percent reduction in the ABC control rule (ABC equals 25 percent of OFL/MSY) will remain in use until recommended for modification by the SSC and by the Council through the annual harvest and management specification process and approved by NMFS.

• Add a mechanism for the use of sector-specific ACLs, ACTs and AMs. Although not a change to the FMP, the Council reaffirmed that all management unit species (MUS) currently in the FMP, including those species categorized as monitored species and prohibited harvest species (krill) are “in the fishery” and will remain as MUS. Amendment 13 also adds Pacific herring ( Clupea pallasii pallasii ) and jacksmelt ( Atherinopsis californiensis ) to the FMP as ecosystem component (EC) species. Although the incidental catch of these species within CPS fisheries is extremely small, the intent of this action is to continue to specifically monitor the catches of these species and report catch estimates in the annual Stock Assessment and Fishery Evaluation report along with other incidental catch. In addition to the current ecological considerations in the FMP, the amendment also specifies that the Council will include ecological considerations when reviewing and/or adopting status determination criteria (SDCs), ACLs, and ACTs.

No substantive changes have been made to this rule from the proposed rule stage and no changes have been made to the regulatory text from the proposed rule.

On June 28, 2011 NMFS published a proposed rule for Amendment 13 soliciting public comments (76 FR 124). NMFS received two letters regarding the proposed rule to implement Amendment 13, including a letter of “no comment” submitted by U.S. Department of the Interior and one from two non-governmental organizations (NGO) that is addressed below.

Comment 1: The majority of the points raised in the NGO comment related more to the CPS FMP as whole as opposed to specific changes being made by Amendment 13, and will not be addressed here. However, NMFS found the comments valuable and will consider them for future management planning, and will respond directly to the commenters about their concerns regarding matters outside the scope of this rulemaking. With regard to Amendment 13 and/or its implementing regulations the comment stated that revised ABC control rules for the actively managed stocks (Pacific sardine and Pacific mackerel) failed to properly articulate or provide an adequate buffer for scientific uncertainty with respect to OFL levels. Also with regard to the framework measures in Amendment 13 the comment stated that new framework for determining overfishing and the formula for calculating OFL for actively managed species allows CPS to be harvest at levels higher than previously allowed and provides for less precautionary management than under the old framework. Specific to the regulations implementing Amendment 13, the comment also stated that the revised definition of a “harvest guideline” is not clear with respect to how it compares to an ACT. The comment also stated that an Environment Impact Statement (EIS) should have been prepared instead of an Environmental Assessment, that a wider range of alternatives should have been analyzed, and that proper scoping or a process for providing public comment did not occur.

Response: NMFS believes the revised framework for ABC that uses a P*, or probability of overfishing determination, provides for an appropriate way to incorporate scientific uncertainty in the OFL to buffer against overfishing (i.e., exceeding the OFL). The ABC will be recommended to NMFS by the Council based on its preferred level of risk aversion. The ABC is based on a percentage reduction of the OFL as determined by an SSC determination on scientific uncertainty and a risk policy determined by the Council. In cases where scientific uncertainty (σ) associated with estimating an OFL is quantified by the SSC, the percentage reduction that defines the scientific uncertainty buffer and the ABC can be determined by translating the estimated σ to a range of probability of overfishing (P*) values. The Council then selects a level of risk aversion by choosing an appropriate P* value. Each P* value is then matched to its corresponding BUFFER fraction that is applied to the OFL according to the ABC control rule.

Under Amendment 13 overfishing will be determined for the finfish stocks based on new OFL formulas and not based on the existing ABC or harvest guideline (HG) formulas. Based on the guidance in the revised NS 1 guidelines the harvest levels that resulted from the existing ABC/HG formulas were more analogous to ACL or ACT type levels as opposed to OFL levels. Within the new Amendment 13 framework, OFLs correspond with MSY levels which are in concert with the relationship between OFL, ABC and ACL described in the guidelines. Additionally, the maximum allowable catch levels (ACLs and associated ACTs), will still be set based on the same conservative formulas and principles that exist in the CPS FMP. These levels will be considered in conjunction with ABC control rules to prevent overfishing.

With regard to the definitions of “harvest guideline” and ACT, the CPS FMP previously used the setting of harvest guidelines (HGs) in a similar way as to how ACTs are defined, as a management target. Because ACTs are an optional reference point and HGs were already in the FMP, NMFS decided to maintain the term HG for consistency purposes while recognizing that HGs will be used with the same objective as ACTs, to prevent the ACL from being exceeded.

Regarding the comments about the National Environmental Policy Act (NEPA) analysis for Amendment 13, the EA showed that the implementation and adoption of Amendment 13 will not significantly adversely impact the quality of the human environment. Therefore an EIS is not necessary to comply with NEPA for this action. With regard to the range of alternatives, NMFS believes a reasonable number of alternatives were analyzed based on the nature of this action. Additionally, the alternatives analyzed were all reasonable, would all meet the purpose and need of the action, and were all objectively evaluated. The public had several opportunities to provide input on the development of the proposed action and EA. The Council process, which is based on stakeholder involvement, provides opportunities for public input on scoping and public comment on fishery management proposals during Council, subcommittee, and advisory body meetings. Meetings of the Council and its advisory bodies constitute the scoping process, involving the development of alternatives and consideration of the impacts of the alternatives: all meetings are announced in advance, and welcome public attendance and comments. Specifically the public had opportunity to provide input into this action and EA during the March and November 2009, and March and June 2010, Pacific Council meetings. Additionally, NMFS published a Federal Register notice on June 8, 2011, that announced the availability of the Amendment and draft EA and comments on the draft EA were accepted until August 8, 2011, providing the public 60 days to submit comments on the EA.

The Administrator, Southwest Region, NMFS, determined that the Amendment 13 is necessary for the conservation and management of the CPS fishery and that it is consistent with the Magnuson-Stevens Fishery Conservation and Management Act and other applicable laws.

This final rule has been determined to be not significant for purposes of Executive Order 12866.

The Chief Council for Regulation of the Department of Commerce certified to the Chief Council for Advocacy of the Small Business Administration during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. The factual basis for the certification was published in the proposed rule and is not repeated here.

No comments were received regarding this certification. As a result, a regulatory flexibility analysis was not required and none was prepared.

For the reasons set out in the preamble, NMFS amends 50 CFR part 660 as follows: