The FAA has determined that notice of, and opportunity for prior public comment on, these special conditions are impracticable because these procedures would significantly delay issuance of the design approval and thus delivery of the affected aircraft. In addition, the substance of these special conditions has been subject to the public comment process in several prior instances with no substantive comments received. The FAA therefore finds that good cause exists for making these special conditions effective upon issuance.

We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.

We will consider all comments we receive by the closing date for comments. We may change these special conditions based on the comments we receive.

On March 29, 2005, GAC applied for an FAA type certificate for its new Model GVI passenger airplane (hereafter referred to as “the GVI”). On September 28, 2006, GAC re-applied for the GVI type certificate to adhere to the application effectivity established by Title 14, Code of Federal Regulations (14 CFR) 21.17(c), and on July 31, 2011, GAC requested an extension of application in accordance with § 21.17(d)(2). The FAA concurred with this request and established a new effective application date of September 18, 2007. The GVI airplane will be an all-new, two-engine jet transport airplane. The maximum takeoff weight will be 99,600 pounds, with a maximum passenger count of 19 passengers.

Under the provisions of Title 14, Code of Federal Regulations (14 CFR) 21.17, GAC must show that the GVI meets the applicable provisions of 14 CFR part 25, as amended by Amendments 25-1 through 25-120, 25-122, 25-124, and 25-132 thereto. If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the GVI because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design feature, the special conditions would also apply to the other model.

In addition to the applicable airworthiness regulations and special conditions, the GVI must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36; and the FAA must issue a finding of regulatory adequacy under § 611 of Public Law 92-574, the “Noise Control Act of 1972.”

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

The GVI will incorporate the following novel or unusual design features: Rechargeable lithium batteries and rechargeable lithium-battery systems.

The current regulations governing installation of batteries in large, transport-category airplanes were derived from Civil Air Regulations (CAR) Part 4b.625(d) as part of the re-codification of CAR 4b that established 14 CFR part 25 in February 1965. The new battery requirements, § 25.1353(c) (1) through (c)(4), basically reworded the CAR requirements.

Increased use of nickel-cadmium (Ni-Cd) batteries in small airplanes resulted in increased incidents of battery fires and failures, which led to additional rulemaking affecting large, transport-category airplanes as well as small airplanes. On September 1, 1977, and March 1, 1978, respectively, the FAA issued § 25.1353(c)(5) and (c)(6), governing Ni-Cd battery installations on large, transport-category airplanes.

The proposed use of rechargeable lithium batteries and rechargeable lithium-battery systems for equipment and systems on the GVI have prompted the FAA to review the adequacy of these existing regulations. Our review indicates that the existing regulations do not adequately address several failure, operational, and maintenance characteristics of rechargeable lithium batteries and rechargeable lithium-battery systems that could affect the safety and reliability of the GVI rechargeable lithium batteries and rechargeable lithium-battery-system installations.

At present, commercial aviation has limited experience with the use of rechargeable lithium batteries and rechargeable lithium-battery systems in aviation applications. However, other users of this technology, ranging from wireless telephone manufacturers to the electric vehicle industry, have noted safety problems with lithium batteries. These problems include overcharging, over-discharging, and cell-component flammability.

In general, lithium batteries are significantly more susceptible than their Ni-Cd or lead-acid counterparts to internal failures that can result in self-sustaining increases in temperature and pressure ( i.e., thermal runaway). This is especially true for overcharging, which causes heating and destabilization of the components of the lithium-battery cell, which can lead to the formation, by plating, of highly unstable metallic lithium. The metallic lithium can ignite, resulting in a self-sustaining fire or explosion. The severity of thermal runaway due to overcharging increases with increased battery capacity due to the higher amount of electrolyte in large batteries.

Discharge of some versions of the lithium-battery cell, beyond a certain voltage (typically 2.4 volts), can cause corrosion of the electrodes in the cell, resulting in loss of battery capacity that cannot be reversed by recharging. This loss of capacity may not be detected by the simple voltage measurements commonly available to flight crewmembers as a means of checking battery status, a problem shared with Ni-Cd batteries.

Unlike Ni-Cd and lead-acid cells, some types of lithium-battery cells use flammable liquid electrolytes. The electrolyte can serve as a source of fuel for an external fire if the cell container is breached.

The problems that lithium-battery users experience raise concerns about the use of these batteries in commercial aviation. The intent of these special conditions is to establish appropriate airworthiness standards for lithium-battery installations in the GVI, and to ensure, as required by §§ 25.601 and 25.1309, that these battery installations will not result in an unsafe condition.

To address these concerns, these special conditions adopt the following requirements:

• Those sections of § 25.1353 that are applicable to lithium batteries.

• The flammable-fluid fire-protection requirements of § 25.863. In the past, this rule was not applied to batteries in transport-category airplanes because the electrolytes in lead-acid and Ni-Cd batteries are not considered flammable.

• New requirements to address hazards of overcharging and over-discharging that are unique to rechargeable lithium batteries.

• Section 25.1529, Instructions for Continued Airworthiness, must include maintenance requirements to ensure that batteries used as spares are maintained in an appropriate state of charge, and installed lithium batteries are sufficiently charged at appropriate intervals. These instructions must also describe proper repairs, if allowed, and battery part-number configuration control.

In issuing these special conditions, the FAA requires that:

(1) All characteristics of the lithium batteries and their installation that could affect safe operation of the GVI are addressed, and

(2) Appropriate Instructions for Continued Airworthiness, which include maintenance requirements, are established to ensure the availability of electrical power from the batteries when needed.

The intent of these proposed special conditions is to establish appropriate airworthiness standards for rechargeable lithium-battery and rechargeable lithium-battery system installations in the GVI and to ensure, as required by §§ 25.1309 and 25.601, that these battery installations are not hazardous or unreliable.

As discussed above, these special conditions are applicable to the GVI. Should GAC apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, the special conditions would apply to that model as well.

This action affects only certain novel or unusual design features on the GVI. It is not a rule of general applicability.

The substance of these special conditions has been subjected to the notice and comment period in several prior instances and has been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the substance contained herein. Therefore, because a delay would significantly affect the certification of the airplane, which is imminent, the FAA has determined that prior public notice and comment are unnecessary and impracticable, and good cause exists for adopting these special conditions upon issuance. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above.

The authority citation for these special conditions is as follows:

Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type-certification basis for the GVI.

In lieu of the requirements of § 25.1353(c)(1) through (c)(4) at amendment 25-42, lithium batteries and battery installations on the GVI must be designed and installed as follows:

(1) Safe lithium battery-cell temperatures and pressures must be maintained during any charging or discharging condition, and during any failure of the battery-charging or battery-monitoring system not shown to be extremely remote. The lithium-battery installation must preclude explosion in the event of those failures.

(2) Design of lithium batteries must preclude the occurrence of self-sustaining, uncontrolled increases in temperature or pressure.

(3) No explosive or toxic gases emitted by any lithium battery in normal operation, or as the result of any failure of the battery-charging or battery-monitoring system, or battery installation which is not shown to be extremely remote, may accumulate in hazardous quantities within the airplane.

(4) Installations of lithium batteries must meet the requirements of 14 CFR 25.863(a) through (d).

(5) No corrosive fluids or gases that may escape from any lithium battery may damage surrounding structure or any adjacent systems, equipment, or electrical wiring of the airplane in such a way as to cause a major or more-severe failure condition, as determined in accordance with 14 CFR 25.1309(b).

(6) Each lithium-battery installation must have provisions to prevent any hazardous effect on structure or essential systems caused by the maximum amount of heat the battery can generate during a short circuit of the battery or of its individual cells.

(7) Lithium-battery installations must have a system to control automatically the charging rate of the battery to prevent battery overheating or overcharging, and

(i) A battery-temperature-sensing and over-temperature-warning system with a means to automatically disconnect the battery from its charging source in the event of an over-temperature condition or,

(ii) A battery-failure sensing-and-warning system with a means to automatically disconnect the battery from its charging source in the event of battery failure.

(8) Any lithium-battery installation, the function of which is required for safe operation of the airplane, must incorporate a monitoring-and-warning feature that will provide an indication to the appropriate flight crewmembers whenever the state-of-charge of the batteries has fallen below levels considered acceptable for dispatch of the airplane.

(9) The instructions for continued airworthiness required by § 25.1529 (and § 26.11) must contain maintenance steps to assure that the lithium batteries are sufficiently charged at appropriate intervals specified by the battery manufacturer. The instructions for continued airworthiness must also contain procedures to ensure the integrity of lithium batteries in spares storage to prevent the replacement of batteries, the function of which are required for safe operation of the airplane, with batteries that have experienced degraded charge-retention ability or other damage due to prolonged storage at a low state-of-charge. Precautions should be included in the continued-airworthiness maintenance instructions to prevent mishandling of lithium batteries, which could result in a short circuit or other unintentional damage that could result in personal injury or property damage.

GAC must show compliance with the requirements of these special conditions by test and/or analysis. The aircraft certification office, or its designees, will find compliance in coordination with the FAA Transport Standards Staff.

On December 23, 2011, we issued Emergency AD 2011-27-51, which requires inspecting the elevator bob-weight and attaching linkage for correct installation and for damage or deformation to the weight and/or weight bracket with corrective action as necessary. This AD was prompted by the following reports of the elevator bob-weight (stabilizer weight) traveling past its stop bolt, which allowed the attaching linkage to move over-center, reducing nose down elevator control.

In one instance, a Model 1900C airplane experienced jammed elevators on take-off after a loud bang was heard in the cockpit shortly after rotation. The flight crew noticed that they were unable to move the control column to a nose down position. Elevator movement was only available between neutral to full deflection nose up. The airplane pitch was controlled with the elevator trim and the airplane returned to base, landing safely. Upon inspection, mechanics noticed that the bob-weight interconnect link, part number (p/n) 101-524112-1, was upside down and trailing forward from the control column weld assembly instead of trailing aft as it should. With the link traveled over-center, the geometry of the bob-weight was completely changed relative to its stop. This condition made the bob-weight hit its stop mid-travel, where it should actually have positive clearance from its stop at the full nose down position. The elevator could now only move between nose full up and neutral.

In another instance, on a Model 1900D airplane, during the takeoff roll the elevator controls felt heavy and appeared to be jammed/sticking, requiring more force than usual to rotate. The crew then aborted the takeoff run. Subsequent investigation revealed that the elevator bob-weight attaching link assembly traveled over-center, thus preventing full nose down elevator control authority.

The Model 1900 airplanes have the same type design and thus are subject to this unsafe condition.

This condition, if not corrected, could result in reduced nose down elevator control and loss of airplane control.

We reviewed Hawker Beechcraft Corporation Safety Communiqué #321, dated December 2011. The service information provides information to assist in doing the actions of this AD.

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 inspecting the elevator bob-weight and attaching linkage for correct installation and for damage or deformation to the weight and/or weight bracket with corrective action as necessary.

We consider this AD interim action to address the immediate unsafe condition affecting these airplanes. We may take further AD action at a later date.

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 the elevator stabilizer weight (bob-weight) could move over-center resulting in reduced nose down elevator control, which could result in loss of control of the airplane. 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-2012-0014 and Directorate Identifier 2011-CE-044-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 affects 300 airplanes.

We estimate the following costs to comply with this AD:

The on-condition costs for any corrective action that may be necessary based on the above inspection would vary from airplane to airplane, and we have no way of determining that cost.

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:

We issued a supplemental notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an airworthiness directive (AD) that would apply to the specified products. That supplemental NPRM published in the Federal Register on April 5, 2011 (76 FR 18664). That supplemental NPRM proposed to require installing new panel assemblies in the main equipment center or on the forward cargo compartment sidewall and removing certain relays from some panels in the main equipment center. That supplemental NPRM also proposed to require revising the maintenance program to incorporate Airworthiness Limitations (AWLs) No. 28-AWL-27 and No. 28-AWL-28. For certain airplanes that supplemental NPRM proposed to require prior or concurrent installation of a second fuel crossfeed valve. That supplemental NPRM also proposed an alternative location for the installation of the new panel assemblies for airplanes that have the optional water system drain plumbing and changing the interconnecting wiring between the P141 panel and the P36 and P37 panels. For airplanes with a deactivated center fuel tank, that supplemental NPRM proposed to require an alternative functional test for the left and right override/jettison pumps.

We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the supplemental NPRM (76 FR 18664, April 5, 2011) and the FAA's response to each comment.

Boeing concurs with the content of the supplemental NPRM (76 FR 18664, April 5, 2011). Continental Airlines has no technical objections or comments to the supplemental NPRM.

Several commenters requested to either revise or remove paragraph (j) of the supplemental NPRM (76 FR 18664, April 5, 2011). ABX Air recommended that paragraph (j) of the supplemental NPRM be revised to specify that prior or concurrent accomplishment of Boeing Service Bulletin 767-28-0034, Revision 3, dated March 14, 1996, is only required if Boeing Service Bulletin 767-28A0085, Revision 2, dated August 19, 2010, has been done in accordance with the requirements in paragraph (g) of the supplemental NPRM. ABX added that an operator may choose not to incorporate Boeing Service Bulletin 767-28-0034 as long as an alternative method which complies with the requirements in paragraph (g) is approved in accordance with paragraph (o) of the supplemental NPRM. British Airways (BAB) requested that the requirement in paragraph (j) of the supplemental NPRM be removed for any alternative designs (e.g., TDG Aerospace UFI). Japan Airlines (JAL) noted that the installation of a second crossfeed valve, as required by paragraph (j) of the supplemental NPRM, does not have a direct relationship with the electrical fault or uncommanded dry operation of the main tank boost pumps and center auxiliary tank override and jettison pumps, and is not a possible source of ignition.

We acknowledge the commenters' concerns and have removed paragraph (j) from this AD. The installation of a dual crossfeed valve system is an option that operators may do to improve airplane reliability, or as an alternative method of compliance (AMOC) to the requirements of AD 88-21-03 R1, Amendment 39-6077 (53 FR 46605, November 18, 1988). That action (installation of a dual crossfeed configuration) is not necessary for the installation of the ground fault interrupter (GFI) or to address uncommanded dry operation of the main boost pumps and center auxiliary tank override and jettison pumps. This AD requires installation of GFI for both single and dual crossfeed valve configurations. We agree that a single crossfeed valve configuration is acceptable (not incorporating Boeing Service Bulletin 767-28-0034, Revision 3, dated March 14, 1996), and we are working with Boeing to expedite the revision of Boeing Service Bulletin 767-28A0085 in order to provide procedures for a modification to add GFI protection on airplanes with single crossfeed valve configurations.

In addition, we have clarified the actions by revising paragraph (g) of this AD to specify the actions for airplanes with a dual crossfeed valve configuration and adding paragraph (h) of this AD to specify actions for airplanes with a single crossfeed valve configuration (i.e., a dual crossfeed valve configuration has not been installed in accordance with Boeing Service Bulletin 767-28-0034). For airplanes with a dual crossfeed valve configuration, the installation specified in Boeing Service Bulletin 767-28A0085, Revision 2, dated August 19, 2010, must be done. For airplanes with a single crossfeed valve configuration, there are two options: (1) Doing the installation specified in Boeing Service Bulletin 767-28A0085, Revision 2, dated August 19, 2010, provided that prior to or concurrently with the installation of the ground fault interrupt relays, a dual crossfeed valve is installed in accordance with Boeing Service Bulletin 767-28-0034, Revision 3, dated March 14, 1996, or (2) maintaining the single crossfeed valve configuration and modifying the airplane to install a GFI using a method approved by the FAA. We have revised the subsequent paragraph identifiers accordingly.

All Nippon Airways (ANA), ABX, BAB, and JAL requested that issuance of the AD be postponed until Boeing Service Bulletin 767-28A0085, Revision 2, dated August 19, 2010, has been revised. ABX noted that Boeing Service Bulletin 767-28A0085, Revision 2, dated August 19, 2010, contains instructions to modify airplanes with two fuel crossfeed valves, but no instructions to modify airplanes with one crossfeed valve. The commenters stated that Boeing is in the process of revising this service bulletin to change the concurrent requirement and provide wiring changes and an alternative installation for airplanes having a single crossfeed valve system.

We do not agree to delay issuance of this AD until Boeing Service Bulletin 767-28A0085, Revision 2, dated August 19, 2010, is revised, due to the severity of the unsafe condition addressed by this AD. As noted previously, paragraph (h) of this AD has been added to provide two options for airplanes that currently have a single crossfeed valve configuration. Also noted previously, Boeing is currently revising Service Bulletin 767-28A0085, and it will be issued after it is completed. Therefore, as specified previously, we have changed paragraph (g) of this AD and added paragraph (h) of this AD.

Two commenters requested that we allow AMOCs for AD 2009-16-06, Amendment 39-15989 (74 FR 38905, August 5, 2009), to terminate the requirements of paragraph (i) of the supplemental NPRM (76 FR 18664, April 5, 2011). United Airlines (UA) requested that the supplemental NPRM include a new paragraph to allow an AMOC to AD 2009-16-06, to terminate prior or concurrent installation of an automatic shutoff system for the auxiliary fuel tank pump as required by paragraph (i) of the supplemental NPRM. UA stated that accomplishing the requirements in AD 2009-16-06 terminates the requirements in paragraph (i) of the supplemental NPRM, and noted that during compliance with that AD it obtained FAA AMOC Letter 140S-09-331, dated September 25, 2009, to install an automatic system for the auxiliary fuel tank pump in accordance with Boeing Service Bulletin 767-28A0083, Revision 1, dated April 26, 2007. That AMOC was only applicable to three of UA's 35 Model 767-300 airplanes because Boeing Service Bulletin 767-28A0083, Revision 1, dated April 26, 2007, was accomplished on the remaining 32 airplanes before the effective date of AD 2009-16-06. UPS stated that it obtained FAA-AMOC 140S-10-218, dated June 22, 2010, which approved the use of alternate terminal blocks because those identified in Boeing Service Bulletin 767-28A0083, Revision 2, dated February 12, 2009, had been superseded. UPS requested that paragraph (i) of the supplemental NPRM be updated to include that any approved AMOCs terminate the requirements of paragraph (i) of the supplemental NPRM.

We acknowledge the commenters' concerns and provide the following. The related FAA-approved AMOCs should be accepted for terminating the requirements of paragraph (j) of this AD (referred to as paragraph (i) in the supplemental NPRM (76 FR 18664, April 5, 2011)), because the intent of those requirements is met by those AMOCs. It is not necessary to add a new paragraph or revise paragraph (j) of this AD, because accomplishing the AMOCs to AD 2009-16-06, Amendment 39-15989 (74 FR 38905, August 5, 2009), meets the requirements of AD 2009-16-06, and therefore terminates the requirements of paragraph (j) of this AD. Paragraph (j) of this AD already states that “Accomplishing the requirements of AD 2009-16-06, terminates the requirements of this paragraph.” We have made no change to the AD in this regard.

UA asked that paragraph (k) of the supplemental NPRM (76 FR 18664, April 5, 2011) be revised to add a reference to Revision May 2010 of Section 9 of the Boeing 767 Maintenance Planning Data (MPD) Document, D622T001-9. UA stated that paragraph (k) requires concurrent revision of the maintenance program by incorporating Airworthiness Limitations (AWLs) No. 28-AWL-27 and No. 28-AWL-28 of Section 9 of the Boeing 767 MPD Document, D622T001-9, Revision April 2008; Revision March 2009; or Revision May 2009. UA added that subsequent to Revision May 2009, Boeing has issued Revision May 2010. UPS also requested that paragraph (k) of the supplemental NPRM be revised to add Revision 22, dated April 2011, of Section 9 of the Boeing 767 MPD, Document D622T001-9.

We agree that Boeing 767 MPD Document, D622T001-9, Revision May 2010 should be added to paragraph (k) of this AD. However, we do not agree to add Revision 22, dated April 2011. That revision does not affect Section 9 of MPD Document D622T001-9, as referred to in paragraph (k) of this AD. We have revised paragraph (k) of this AD accordingly.

We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting the AD with the changes described previously. We also determined that these changes will not increase the economic burden on any operator or increase the scope of the AD.

We estimate that this AD will affect 416 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

According to the manufacturer, some of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all costs in our cost estimate.

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 have 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 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:

This final rule adopts, without change, the interim final rule with request for comments we published in the Federal Register on December 29, 2010, at 75 FR 81843. The interim final rule changed the way we account for income and resources when determining eligibility for the subsidy provided by the Extra Help program, and removed certain items from those we will count as income and resources. In addition, the interim final rule extended the effective date of a determination or redetermination of an Extra Help subsidy when there is a death of a spouse.

Medicare prescription drug coverage is a voluntary program that covers various prescription drugs. The regulations and requirements for the program are codified in 42 CFR part 423. The Centers for Medicare & Medicaid Services (CMS) promulgates rules and regulations concerning the Medicare program. Anyone who meets the requirements listed in 42 CFR 423.30(a) can enroll in Medicare prescription drug coverage. Medicare prescription drug coverage beneficiaries are generally responsible for deductibles, cost-sharing, and monthly premiums towards the cost of covered prescriptions.

Beneficiaries with Medicare prescription drug coverage who have limited income and resources may qualify for Extra Help with their monthly premiums, deductibles, and cost-sharing for Medicare prescription drug coverage. To qualify for Extra Help, a Medicare beneficiary must reside in one of the fifty states or the District of Columbia and must have resources and income within specific limits.

Congress enacted MIPPA in July of 2008. 1 Section 116 of MIPPA exempts certain items from income and resources determinations of Extra Help eligibility on or after January 1, 2010. We apply these exemptions to applications filed and redeterminations initiated on or after January 1, 2010. The items exempted under section 116 are the value of life insurance and in-kind support and maintenance.

To implement these requirements of MIPPA, we issued guidance in August 2009 and discontinued counting these exempted items for applications and redeterminations in accordance with the requirements of the statute. Accordingly, we no longer count as income the help a beneficiary receives when someone else provides food and shelter, or pays for food, mortgage, rent, heating fuel, gas, electricity, water, or property taxes. To reflect these statutory exemptions, we revised sections 418.3335(b) and 418.3350 and deleted section 418.3345 of our regulations in the interim final rule that we published in December 2010.

In March 2010, Congress passed the Affordable Care Act, which extends the effective date of a determination or redetermination of an Extra Help subsidy due to the death of a spouse. 2 In our previous rules, any adjustment in the amount of Extra Help the beneficiary receives was effective the month after the month in which we are notified of the death of a spouse. In some cases, the death of a spouse would result in a decrease in the amount of Extra Help or loss of Extra Help eligibility for the beneficiary.

Effective January 1, 2011, if the death of the spouse would decrease or eliminate the subsidy provided by the Extra Help program, we extend the effective period for a determination or redetermination until one year after the date on which it would otherwise cease to be effective—that is, the month after the month we are notified of the death of the spouse. In order to reflect the changes made by the Affordable Care Act, we revised sections 418.3120 and 418.3123 of our regulations.

Prior to the publication of our interim rule, our regulations at 418.3350(b) stated that we did not count as income the unearned income described in sections 416.1124(b), (c)(1) through (c)(12), and (c)(14) through (c)(21). Those rules omitted a reference to paragraph 416.1124(c)(22) that we added after the publication of section 418.3350 in December 2005. We updated the reference in section 418.3350 to correct this omission. This was a technical change only and did not affect the substance of our rules.

On December 29, 2010, we published an interim final rule with request for comments in the Federal Register at 75 FR 81843 and provided a sixty-day comment period. We received five comments. We carefully considered the concerns expressed in these comments but did not make any changes to the final rule.

We summarized the commenters' views and responded to the significant issues raised that are within the scope of the interim final rule.

Comment: A commenter expressed gratitude for the cessation of counting as income the help low-income subsidy recipients receive when someone else pays household bills.

Response: We appreciate the comment and value the public's input on regulatory changes. Changes in the Medicare Improvements for Patients and Providers Act of 2008 have made it easier for people to qualify for Extra Help with their Medicare prescription drug plan costs.

Comment: An organization expressed support for our efforts to expand eligibility for low-income subsidy and would like the expansion efforts to go further. The organization believes it would be appropriate to eliminate the asset test (resource limits) for Extra Help with Medicare prescription drug plan costs. The organization stated that the Extra Help asset test is highly restrictive, preventing millions of low-income Part D enrollees from benefiting from Extra Help, and unnecessarily complicates the application process, potentially discouraging qualified enrollees from applying to the program. The organization also stated that an asset test is inappropriate for Medicare beneficiaries, as Americans should be encouraged to save for retirement.

Response: We cannot adopt this comment because the resources eligibility standards for the Extra Help program are statutory. Elimination or adjustment to statutory requirements is beyond the scope of these regulations.

Comment: An organization expressed concern about contacting the surviving spouse of a low-income subsidy eligible couple when we determine that we will defer the redetermination for one year. The organization believes this correspondence may cause unnecessary anxiety to the widow/widower.

Response: We are unable to adopt this suggestion. The death of a spouse is a subsidy-changing event (SCE). We send a redetermination form whenever an SCE report is received as required in 20 CFR 418.3120(b)(1). We use the information to determine if the event will affect the Extra Help subsidy. In some cases, contact with the widow/widower will result in an increase in the Extra Help subsidy. If the subsidy decreases, we will extend the effective period of the determination or redetermination for at least one year from the spouse's death.

Comment: An organization believes that we should provide a more comprehensive definition of “in-kind support and maintenance” in 20 CFR 418.3335, either by providing examples or referencing the appropriate link.

Response: We cannot adopt this comment at this time because it is not within the scope of the present regulatory change, which is based on statutory changes. However, we agree that a more comprehensive definition of “in-kind support and maintenance” may be appropriate in 20 CFR 418.3335(b). We will consider publishing a separate Notice of Proposed Rulemaking to add a sentence to the end of § 418.3335(b) explaining that ”Shelter includes room, rent, mortgage payments, real property taxes, heating fuel, gas, electricity, water, sewerage, and garbage collection services.”

Comment: An organization asked us to consider clarifying that life insurance refers to the cash surrender value of the life insurance that is under 20 CFR 418.3425.

Response: We are unable to adopt this suggestion because the statutory exclusion is not limited to the cash surrender value of life insurance. “No part of the value of any life insurance policy shall be taken into account” in determining the resources of an individual and the eligible spouse of the individual. 3

Regulatory Information

The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b) (B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule. The Coast Guard received notice and application for this event on or about August 15, 2011. The Coast Guard reviewed the planned event and determined that a special local regulation is needed to protect event participants from the possible hazards associated with local boat traffic in the area, but that determination was not completed in time for a Notice of Proposed Rulemaking to be prepares and comments to be received. Delaying or foregoing this rule to publish a NPRM would unnecessarily interfere with the contractual obligations that may be involved with the event and would forego the safety measures necessary to protect the event participants. The public interest in holding this event as scheduled outweighs the chance that this temporary rule will interfere with vessel traffic in a meaningful way. This rule does provide a full 30-day period before its effective date.

On February 18 and 19, 2012 the HITS triathlon will take place near and in the Corpus Christi Bayfront area. This temporary special local regulation is necessary to ensure the safety of HITS Triathlon participants and protect them from the possible hazards associated vessel traffic inside the waters of the Corpus Christi Bayfront area during this event.

This special local regulation is intended to restrict vessel traffic from a portion of the Corpus Christi Bayfront area for the swim portion of the triathlon. The size of the zone was determined by natural barriers on all 4 sides of the race course and local knowledge about wind, waves, and currents in this particular area.

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

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, 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 has determined that this rule is not a significant regulatory action for the following reasons: (1) The rule will be enforced for four hours a day for two days; (2) scheduled breaks will be provided to allow waiting vessels to transit safely through the affected area; (3) persons and vessels may enter, transit through, anchor in, or remain within the regulated area if they obtain permission from the COTP or the designated representative; and (4) advance notification of amplifying information about the event and this regulation will be made to the maritime community via broadcast notice to mariners and Local Notice to Mariners (LNM).

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

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

This rule will not have a significant economic impact on a substantial number of small entities for the following reasons: (1) This rule will only be enforced not more than 4 hours each day; (2) during non-enforcement hours all vessels will be allowed to transit through the special local regulation zone without having to obtain permission; (3) vessels will be allowed to pass through the zone with permission of the Coast Guard Patrol Commander during scheduled break periods between races and at other times when permitted by the Coast Guard Patrol Commander.

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

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

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

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

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2-1, paragraph (34)(h), of the Instruction. This rule involves the establishment of a Special Local Regulation in conjunction with a marine event permit. Under the terms of the instruction, an environmental analysis checklist and a categorical exclusion determination are not required for this regulation.

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

The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is contrary to public interest to delay the effective date of this rule. The Coast Guard is establishing the security zone to protect high-ranking government officials, mitigate potential terrorist acts, and enhance public and maritime safety and security. The Coast Guard was unable to publish a NPRM due to the short time period between event planners notifying the Coast Guard of the event and publication of the security zone. Furthermore, delaying the effective date would be contrary to the security zone's intended objectives of protecting high-ranking government officials, mitigating potential terrorist acts and enhancing public and maritime safety security.

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 . Due to the need for immediate action, the restriction of vessel traffic is necessary to protect life, property and the environment, therefore, a 30-day notice period is impracticable. Delaying the effective date would be contrary to the security zone's intended objectives of protecting high-ranking government officials, mitigating potential terrorist acts and enhancing public and maritime safety and security.

The President will address the nation on January 24, 2012. During this event, a gathering of high-ranking United States officials will take place at the U.S. Capitol Building in Washington, DC, in close proximity to navigable waterways within the Captain of the Port's Area of Responsibility.

The Coast Guard has given each Coast Guard Captain of the Port the ability to implement comprehensive port security regimes designed to safeguard human life, vessels, and waterfront facilities while still sustaining the flow of commerce. The Captain of the Port Baltimore is establishing this security zone to protect high-ranking government officials, mitigate potential terrorist acts, and enhance public and maritime safety and security in order to safeguard life, property, and the environment on or near the navigable waters.

Through this regulation, the Coast Guard will establish a security zone. The security zone will be in effect from 4 p.m. until 11:59 p.m. on January 24, 2012. The security zone will include all navigable waters of the Potomac River, from shoreline to shoreline, bounded on the north by the Francis Scott Key (U.S. Route 29) Bridge at mile 113.0, downstream to and bounded on the south between the Virginia shoreline and the District of Columbia shoreline along latitude 38°51′00″ N, including the waters of the Georgetown Channel Tidal Basin; and all waters of the Anacostia River, from shoreline to shoreline, bounded on the north by the 11th Street (I-295) Bridge at mile 2.1, downstream to and bounded on the south by its confluence with the Potomac River. This location is entirely within the Area of Responsibility of the Captain of the Port Baltimore, as set forth at 33 CFR 3.25-15.

This rule provides that entry into, attempted entry into, or remaining in this security zone is prohibited unless authorized by the Coast Guard Captain of the Port Baltimore. Except for persons or vessels authorized by the Captain of the Port Baltimore, no person or vessel may enter or remain in the regulated area during the effective period. Vessels already at berth, mooring, or anchor at the time the security zone is implemented do not have to depart the security zone. All vessels underway within the security zone at the time it becomes effective are to depart the zone immediately. To seek permission to transit the area, the Captain of the Port Baltimore can be contacted at telephone number (410) 576-2693 or on Marine Band Radio, VHF-FM channel 16 (156.8 MHz). Coast Guard vessels enforcing the security zone can be contacted on Marine Band Radio, VHF-FM channel 16 (156.8 MHz). The Coast Guard will issue Broadcast Notices to Mariners to further publicize the security zone.

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

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. Although this security zone restricts vessel traffic through the affected area, vessels may seek permission from the Captain of the Port Baltimore to enter and transit the zone. Furthermore, the effect of this regulation will not be significant due to the limited size and duration that the regulated area will be in effect. In addition, notifications will be made to the maritime community via marine information broadcasts so mariners may adjust their plans accordingly.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule may affect the following entities, some of which might be small entities: The owners or operators of vessels intending to operate or transit through or within the security zone during the enforcement period. The security zone will not have a significant economic impact on a substantial number of small entities for the following reasons. The security zone is of limited duration. Although the security zone will apply to the entire width of the Potomac and Anacostia Rivers, traffic may be allowed to pass through the zone with the permission of the Captain of the Port Baltimore. Before the effective period, maritime advisories will be widely available to the maritime community. Additionally, given the time of year this event is scheduled, the vessel traffic is expected to be minimal.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Regulatory Information

The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule notice of this year's event was not received in sufficient time for the Coast Guard to solicit public comments before the event's start. Thus, waiting for a notice and comment period to run would be impracticable and contrary to the public interest because it would inhibit the Coast Guard's ability to protect the spectators of and participants in this event from the hazards discussed below.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date of this rule would be contrary to the public interest for the same reasons discussed in the preceding paragraph.

The 24th Annual North American International Auto Show (NAIAS) will be held at Cobo Hall in downtown Detroit, MI. The NAIAS is the prime venue for introducing the world's most anticipated vehicles. The public showing days of the NAIAS begin January 14 and extend through January 22. Prior to the public showing, there will also be multiple high profile events; including the press preview days (January 9-10, 2012), industry preview days (January 11-12, 2012), and the charity preview event (January 13, 2012). In 2011, the NAIAS attendance for the public showing was over 735,000 people and press preview days attracted over 5,000 journalists representing 55 countries. Attendance and participation at the 2012 NAIAS is anticipated to rival last year's attendance and will likely be one of the largest media events in North America.

NAIAS has attracted numerous protesters from various organizations. Due to the current state of the economy, the recent number of layoffs, the closures of several thousand automotive dealerships around the country, and the likely presence of high profile visitors, it is possible that protests may continue to occur at this year's event. Consequently, the Captain of the Port Detroit has determined that it is necessary to safeguard portions of the Detroit River from destruction, loss, or injury from sabotage or other subversive acts.

To safeguard portions of the Detroit River during this year's event, the Captain of the Port Detroit has determined that a temporary security zone is necessary. This security zone will ensure the safety of the participants in and visitors of the 24th Annual North American International Auto Show being held at Cobo Hall in downtown Detroit, MI. The security zone will be in effect from 8 a.m. on January 8, 2012, until 12:01 a.m. on January 23, 2012. The zone will be enforced from 8 a.m. to 12:01 a.m. daily for the duration of the event.

The security zone will encompass an area of the Detroit River beginning at a point of origin on land adjacent to the west end of Joe Lewis Arena at 42°19.44′ N, 083°03.11′ W; then extending offshore approximately 150 yards to 42°19.39′ N, 083°03.07′ W; then proceeding upriver approximately 2000 yards to a point at 42°19.72′ N, 083°01.88′ W; then proceeding onshore to a point on land adjacent the Tricentennial State Park at 42°19.79′ N, 083°01.90′ W; then proceeding downriver along the shoreline to connect back to the point of origin. Vessels in close proximity to the security zone will be subject to increased monitoring and boarding. All geographic coordinates are North American Datum of 1983 (NAD 83).

All persons and vessels shall comply with the instructions of the Coast Guard Captain of the Port or the designated on scene representative. Entry into, transit, or anchoring within the security zone is prohibited unless authorized by the Captain of the Port Detroit or his designated on-scene representative. The Captain of the Port or his designated on-scene representative may be contacted via VHF Channel 16.

We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 14 of these statutes or executive orders.

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under Order 12866 or under section 1 of Executive Order 13563.

We conclude that this rule is not a significant regulatory action because we anticipate that it will have a minimal impact on the economy, will not interfere with other agencies, will not adversely alter the budget of any grant or loan recipients, and will not raise any novel legal or policy issues. The security zone on the Detroit River will be relatively small and exist for only a minimal time. Thus, restrictions on vessel movement within any particular area of the Detroit River are expected to be minimal. Under certain conditions, moreover, vessels may still transit through the security zone when permitted by the Captain of the Port. We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary. This determination is based on the short time that vessels will be restricted from the area of water impacted by the security zone. Moreover, vessels may still transit freely in Canadian waters adjacent to the security zone.

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

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

This rule will affect the following entities, some of which may be small entities: the owners or operators of vessels intending to transit or anchor in a portion of the Detroit River, Detroit, Michigan, beginning at a point of origin on land at 42°19.44′ N, 083°03.11′ W; then extending offshore approximately 150 yards to 42°19.39′ N, 083°03.07′ W; then proceeding upriver approximately 2000 yards to a point at 42°19.72′ N, 083°01.88′ W; then proceeding onshore to a point on land at 42°19.79′ N, 083°01.90′ W; then returning to the point of origin from 8 a.m. January 8, 2012, through 12:01 a.m. on January 23, 2012.

This security zone will not have a significant economic impact on a substantial number of small entities for the following reasons: This rule will not obstruct the regular flow of commercial traffic and will allow vessel traffic to pass around the security zone. In the event that this temporary security zone affects shipping, commercial vessels may request permission from the Captain of the Port Detroit to transit through the security zone. The Coast Guard will give notice to the public via a Broadcast to Mariners that the regulation is in effect.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

You may be potentially affected by this action if you use mercury-containing industrial thermometers in laboratories, for field analysis (e.g., including usage at petroleum storage or refining facilities), or for other industrial applications. Potentially affected entities may include, but are not limited to:

• Testing Laboratories (NAICS code 541380).

• Petroleum Refineries (NAICS code 324110).

• Analytical Laboratory Instrument Manufacturing (NAICS code 334516).

This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the technical person listed under FOR FURTHER INFORMATION CONTACT .

The Agency is promulgating a final rule, which was proposed in the Federal Register issue of January 12, 2011 (76 FR 2056) (FRL-8846-6), to incorporate into EPA regulations revised ASTM standards that provide flexibility to the regulated community to use alternatives to mercury-containing industrial thermometers. As part of the Agency's mercury reduction effort and pursuant to the “EPA Roadmap for Mercury, Chapter 2: Addressing Mercury Uses in Products and Processes,” available at http://www.epa.gov/hg/roadmap.htm, EPA is removing unnecessary requirements to use mercury-containing industrial thermometers where viable and comparable non-mercury substitutes exist in the market. EPA is specifically updating regulations to incorporate three ASTM standards (D5865-10, D445-09, and D93-09) that allow for the use of alternatives to mercury-containing industrial thermometers. The Agency is updating these ASTM standards where they are referenced in regulations pursuant to the Clean Air Act (CAA) and the Toxic Substances Control Act (TSCA) (certain sections of 40 CFR parts 49, 60, 75, 89, 92, 94, 761, and 1065). One of the incorporated ASTM standards (D5865-10) requires the use of a mercury-free device while the other two ASTM standards (D445-09 and D93-09) provide the flexibility to use alternatives to mercury-containing industrial thermometers, but do not require their use. EPA is amending Agency regulations to allow the use of the updated ASTM standard D5865-10 and the previous ASTM standards, D5856-01a, D5856-03a, and D5856-04 so that flexibility is given to use mercury-free thermometers, but not required. Although commenters on the proposed rule stated that EPA should not allow the flexibility to use previous versions of ASTM D-5865 so that mercury-free thermometers would be required, the intent of this final rule is to provide the flexibility to use mercury-containing industrial thermometers while not specifically requiring their use.

Mercury exposures can harm the brain, heart, kidneys, lungs, and immune system. Most human exposure to mercury is through the consumption of fish containing methylmercury. Exposure to methylmercury through ingestion can harm the normal development of the nervous system, resulting in learning disabilities. Elemental mercury and other forms of mercury from industrial sources are deposited from the air and are converted into methylmercury. Mercury exposure can also occur by inhalation of elemental mercury from breakage or improper disposal of mercury-containing products such as mercury-containing industrial thermometers. Inhalation exposure of elemental mercury can lead to neurotoxic and developmental neurotoxic effects.

The National Institute of Standards and Technology (NIST), a U.S. government agency devoted to advancing measurement science, standards, and technology, believes there are no fundamental barriers to the replacement of mercury-containing industrial thermometers. Supporting this assertion, on March 1, 2011, NIST discontinued the calibration of mercury-containing industrial thermometers. By discontinuing these calibrations, NIST supports their professional opinion that mercury-containing industrial thermometers are no longer the highest standard for accurate and reproducible temperature measurement. Although previously perceived as superior in performance, mercury-containing industrial thermometers have readily available and comparable alternatives such as platinum resistance thermometers, thermistors, thermocouples, and portable electronic thermometers (PETs).

Although a start, the ASTM standards (D5865-10, D445-09, and D93-09) addressed in this final rule comprise only a small percentage of the ASTM standards referenced within EPA regulations that require the use of mercury-containing industrial thermometers. Further revisions to these other relevant ASTM standards would be necessary before EPA could provide more comprehensive flexibility to the regulated community. To facilitate the use of mercury alternatives, EPA encourages ASTM, in the spirit of pollution prevention, to expeditiously review and revise standards that require the use of mercury-containing industrial thermometers, particularly those currently embedded in EPA regulations. More specifically, EPA encourages ASTM committee chairs to support EPA in making committee members aware of committee standards that require the use of mercury-containing industrial thermometers.

In addition to EPA regulations that reference ASTM standards, certain EPA regulations directly require the use of mercury-containing industrial thermometers. Most of these regulations are pursuant to CAA; EPA's Office of Air and Radiation intends to address them through a separate rulemaking. For ASTM standards contained within State implementation plan (SIP) approvals, the Agency would need to address each ASTM standard separately after consultation with the States. Additionally, analytical methods required under the Resource Conservation and Recovery Act (RCRA) that use mercury-containing industrial thermometers as a Method Defined Parameter (MDP) were not addressed in the proposed rule and will not be addressed in this final rule. EPA plans to make revisions to MDPs that require the use of mercury-containing industrial thermometers at a future date. While the Office of Solid Waste and Emergency Response (OSWER) Methods Innovation Rule (MIR), published in the Federal Register issue of June 14, 2005 (70 FR 34538) (FRL-7916-1), allows flexibility in RCRA-related sampling and analysis, the MIR does not currently allow for flexibility for test methods that have MDPs. However, methods that are not considered MDPs (i.e., methods not required by RCRA regulations) allow the use of alterative equipment such as non-mercury thermometers as long as users can demonstrate that data quality objectives can be met without compromising data quality. EPA believes that users should identify the appropriate methods for a specific project before sampling and analysis begins and recommends that they consult with their regulating authority during identification of performance goals and the selection of appropriate methods before using alternative equipment (e.g., non-mercury thermometer).

For more information on MIR and RCRA's SW-846, “Test Methods for Evaluating Solid Waste, Physical/Chemical Methods,” please visit the SW-846 Web site at http://www.epa.gov/osw/hazard/testmethods/sw846.

This action is being taken under the Agency's authority pursuant to CAA (42 U.S.C. 7401 to 7671q) and TSCA (15 U.S.C. 2601 to 2692).

The comments EPA received on the proposed rule were overwhelmingly supportive of incorporating the revised ASTM standards D5865-10, D445-09, and D93-09. Five public comments were received. Commenters noted that temperature measurement in laboratories and in the field would not adversely be affected by the proposed amendments. One commenter also correctly noted that several States have already banned or in some way restricted the sale of mercury-containing industrial thermometers.

Other commenters questioned EPA's reasoning for the action, citing compact fluorescent lights as a greater source of mercury than thermometers. EPA believes that there is justification for allowing flexibility to use alternatives to mercury-containing industrial thermometers where comparable and available substitutes exist. There may be significant cost savings for making the switch to mercury-free thermometers considering the expense incurred to properly clean up a mercury spill following the breakage of a mercury-containing industrial thermometer. Mercury in fluorescent lights, however, is outside the scope of this rulemaking.

1. How can EPA provide additional flexibility in the use of mercury-free thermometers to comply with the Agency's relevant regulations? Commenters suggested that EPA incorporate voluntary consensus standards (including ASTM standards) by reference so that future updates and amendments to such standards would not require a separate rulemaking by EPA for incorporation. One commenter also stated that by incorporating such ASTM standards EPA should require the use of the least toxic alternatives allowed under such standards.

Where ASTM standards are mentioned in EPA regulations, they are incorporated by reference. But that incorporation does not mean that updates to those standards are automatically incorporated. To incorporate updates to standards in EPA regulations, EPA must follow the appropriate procedures of the Administrative Procedures Act to amend the existing regulations. EPA believes that notice-and-comment rulemaking, such as was used for this final rule, provides the public with the ability to thoroughly review updated voluntary consensus standards and provide comments before they are incorporated into EPA regulations.

In the spirit of the National Technology Transfer and Advancement Act (NTTAA), EPA has often identified which industrial thermometers must be used for specific functions by referencing ASTM standards in its regulations. EPA believes the best way to remove unnecessary requirements to use mercury-containing industrial thermometers is for ASTM committees to expeditiously bring up for revision ASTM standards that unnecessarily require mercury-containing industrial thermometers in situations where effective, comparable, and available mercury-free alternatives exist. EPA would then review such ASTM standard revisions and incorporate the updated standards that allow mercury-free alternatives into EPA regulations that reference these standards. EPA would do this through notice-and-comment rulemaking.

2. Are requirements to use mercury-containing thermometers necessary for performance reasons or should flexibility be provided in most, if not all, measurement applications? Commenters stated that thermometry requirements should be performance based. Commenters also noted that flexibility for the use of non-mercury alternatives should be allowed and that where effective non-mercury alternatives exist they should be required to be used to the maximum extent possible.

Another commenter stated that many State agencies have actively promoted the elimination of usage of mercury-containing industrial thermometers in State laboratories and have not since experienced reduced performance in temperature measurement. As a result, the commenter asserts that State agencies have found that it is technologically possible to eliminate the use of mercury-containing industrial thermometers in most, if not all, applications. The commenter further stated that those State agencies experiences are supported by NIST's statement that there are no fundamental barriers to the replacement of mercury-containing industrial thermometers and NIST's discontinuation of the calibration of mercury-containing thermometers. It was the opinion of this commenter that the decision by NIST to discontinue the calibration of mercury-containing thermometers will facilitate the transition to mercury-free alternatives in laboratories where annual mercury-containing industrial thermometer re-calibration requirements have proven to be an impediment to the complete removal of mercury measurement devices. The same commenter went on to say that the use of digital alternatives to mercury-containing industrial thermometers provided the benefit of electronic recordkeeping processes that could prevent human error in recording measurements.

EPA agrees with commenters that the thermometry requirements should be performance based. EPA also agrees that flexibility for mercury-containing industrial thermometer alternatives should be allowed, especially when effective, comparable, and available mercury alternatives are available. EPA also agrees with the commenter that where effective non-mercury alternatives exist, there may be justification for requiring the use of a mercury-free device considering the pollution prevention benefits. However, EPA has not at this time decided whether to pursue requirements for use of mercury-free devices. In the spirit of NTTAA, EPA encourages ASTM to take this into consideration when revising its relevant standards. EPA also agrees with the noted benefits of digital thermometers and that NIST's recent decision will help expedite the transition of laboratories to non-mercury-containing industrial thermometers.

3. Does the use of data-loggers for temperature measurement in autoclaves provide a viable alternative to the use of mercury-containing thermometers? Commenters supported the use of data-loggers for temperature measurement in autoclaves to provide a viable alternative to mercury-containing industrial thermometers. Commenters also noted that substituting the use of mercury-containing industrial thermometers in this application, although initially more expensive, avoids the potential for thermometer breakage inside of an autoclave, which could result in expensive cleanup and disposal costs, and overall would represent a significant lifecycle cost savings. One commenter stated that a vaporized mercury release from a resulting spill in an operating autoclave could be potentially dangerous to employees unaware of the thermometer breakage or mercury spill. Two commenters also stated that the ability of data-loggers to track temperature over time within the autoclaves provides assurance of adequate temperatures for a sufficient period of time to ensure proper sterilization, while avoiding potential degradation of microbiological media. EPA agrees with the commenters that the use of data-loggers in autoclaves provides further support that there are viable alternatives to the use of mercury-containing industrial thermometers.

4. What else can EPA do to help expedite the use of alternatives to mercury-containing thermometers where feasible, comparable, and available? Commenters responded that EPA should continue to encourage ASTM to evaluate expeditiously its standards that require the use of mercury-containing industrial thermometers and that EPA staff should continue to engage in the ASTM standard updating process as committee members. Commenters also responded that EPA should provide the States and ASTM assistance in evaluating mercury alternatives as well as publicize and make available the outcomes of these performance-based studies. The commenters further responded that EPA should clarify to the public, where possible, applications where mercury-containing industrial thermometers are no longer necessary for accurate and reproducible temperature measurement. Commenters also encouraged EPA to continue to work with NIST to facilitate a switchover to non-mercury alternatives. Finally, one commenter asked that EPA broaden its efforts across its programs to identify additional requirements, including other CAA and RCRA requirements, where mercury-containing industrial thermometers are referenced directly and provide more comprehensive flexibility under these requirements.

EPA agrees with the commenters on their request that the Agency continue to encourage ASTM to evaluate its standards that require the use of mercury-containing industrial thermometers, including informing the public on what thermometer applications no longer require mercury devices for accurate and reproducible measurement. EPA will continue to work with the States and ASTM to evaluate mercury alternatives and to make such evaluations available to the public. EPA also agrees to evaluate the additional requirements under CAA and RCRA to use mercury-containing industrial thermometers and provide flexibility where possible.

In a separate document published in the Federal Register issue of March 21, 2011 (76 FR 15554) (FRL-9273-5), EPA finalized an amendment to § 63.14 and to Table 6 in subpart DDDDD of 40 CFR part 63, that removed the ASTM standard D5865-03a and replaced it with the ASTM standard D5865-10a. Therefore, the amendments to 40 CFR part 63 published in the proposed rule for this document are no longer necessary.

Additionally, at this time EPA does not plan to amend 40 CFR part 86 due to issues related to the Office of the Federal Register's (OFR) requirements for incorporation by reference. The incorporation by reference requirements to include the addition of ASTM standards D93-09 and D445-09 would require amendments to 40 CFR part 86 not initially targeted by this rulemaking. Those amendments would significantly expand the scope of the rulemaking beyond issues related to the flexible use of mercury-free thermometers. EPA plans in the future to address the amendments proposed for 40 CFR part 86 and OFR's incorporation by reference requirements for 40 CFR part 86.

The regulatory text of this final rule is significantly changed in appearance from the proposed rule. These changes in the regulatory text were made in order to comply with the Office of the Federal Register's (OFR) incorporation by reference requirements found in 1 CFR part 51. Approval by the OFR Director was based on meeting the requirements for new approvals, 17 ASTM and ISO standards and 1 OECD guideline, which are used to perform the testing required by this final rule, and changing the format for the existing centralized incorporation by reference sections affected by this final rule. These formatting changes in the regulatory text are non-substantive and do not change the meaning of the regulatory amendments originally proposed.

This is not a “significant regulatory action” under Executive Order 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011).

This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq. ). Burden is defined at 5 CFR 1320.3(b). An Agency may not conduct or sponsor, and a person is not required to respond to a collection of information that requires the Office of Management and Budget (OMB) approval under PRA, unless it has been approved by OMB and displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in title 40 of the CFR, after appearing in the Federal Register , are listed in 40 CFR part 9, and included on the related collection instrument, or form, if applicable.

Pursuant to section 605(b) of RFA (5 U.S.C. 601 et seq. ), I hereby certify that this final rule does not have a significant economic impact on a substantial number of small entities. Under RFA, small entity is defined as:

1. A small business that is further defined by the Small Business Administration's (SBA) regulations at 13 CFR 121.201 using either the number of employees or annual receipts for the businesses affected by the regulation, which for this final rule includes any business that is primarily engaged in the use of mercury-containing industrial thermometers in laboratories, for field analysis (e.g., including usage at petroleum storage or refining facilities), or for other industrial applications (see also Unit I. and the applicable provisions in the regulations affected by this final rule).

2. A small governmental jurisdiction that is a government of a city, county, town, school district, or special district with a population of less than 50,000.

3. A small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.

In making this determination, the impact of concern is any significant adverse economic impact on small entities because the primary purpose of regulatory flexibility analysis is to identify and address regulatory alternatives “which minimize any significant economic impact of the rule on small entities.” 5 U.S.C. 603 and 604. Thus, an agency may certify under RFA when the rule relieves regulatory burden, or otherwise has no expected economic impact on small entities subject to the rule.

The revisions in this final rule will provide flexibility to affected entities by allowing the use of mercury-free thermometers, without mandating their use. It does not otherwise amend or impose any other requirements. As such, this final rule will not have any adverse economic impact on any entities, large or small.

This final rule contains no Federal mandates under the provisions of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1531-1538) for State, local, or Tribal governments or the private sector. The action imposes no enforceable duty on any State, local, or Tribal governments or the private sector and does not contain any unfunded mandate, or otherwise have any effect on small governments subject to the requirements of sections 202, 203, 204, or 205 of UMRA.

This action will not have federalism implications because it is not expected to have a substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). Thus, Executive Order 13132 does not apply to this action.

This action will not have Tribal implications because it is not expected to have substantial direct effects on Indian Tribes, will not significantly or uniquely affect the communities of Indian Tribal governments, and does not involve or impose any requirements that affect Indian Tribes, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). Accordingly, the requirements of Executive Order 13175 do not apply to this action.

EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the Executive Order has the potential to influence the regulation. This action is not subject to Executive Order 13045 because it does not establish an environmental standard intended to mitigate health or safety risks, nor is it an “economically significant regulatory action” as defined by Executive Order 12866.

This action is not subject to Executive Order 13211 (66 FR 28355, May 22, 2001), because it is not a significant regulatory action under Executive Order 12866.

Section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note), directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.

ASTM standards constitute voluntary consensus standards and, as such, NTTAA directly applies to this final rule. With this final rule, EPA is adding to existing EPA regulations the most current versions of applicable ASTM standards that allow flexibility in the use of mercury-containing industrial thermometers and in the spirit of NTTAA plans to work closely with ASTM to address the remaining standards referenced within EPA regulations that require the use of mercury-containing thermometers.

This action does not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. Therefore, this action does not involve special consideration of environmental justice-related issues as specified in Executive Order 12898 (59 FR 7629, February 16, 1994).

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

Therefore, 40 CFR chapter I is amended as follows:

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

The words or initials Act or CAA mean or refer to the Clean Air Act, unless the context indicates otherwise.

The words EPA, we, us or our mean or refer to the United States Environmental Protection Agency.

The initials SIP mean or refer to State Implementation Plan.

The words State or Colorado mean the State of Colorado, unless the context indicates otherwise.

The initials NSR mean or refer to New Source Review, the initials PSD mean or refer to Prevention of Significant Deterioration and the initials NAAQS mean or refer to National Ambient Air Quality Standards.

The initials CO mean Carbon Monoxide, NO 2 mean Nitrogen Dioxide and SO 2 mean Sulfur Dioxide.

The initials BACT mean Best Available Control Technology.

The word Base means United States Army Fort Carson Military Base and the word PCMS means Pinón Canyon Maneuver Site.

The initials CEM mean Continuous Emission Monitoring.

Colorado's Regulation 1 governs opacity, particulates, sulfur dioxide (SO 2 ), and carbon monoxide (CO) emissions from sources. Colorado adopted revisions to Regulation 1 on July 21, 2005 and submitted them to EPA on August 8, 2006. The State revised regulations regarding the use of smoke during military operations, equipment requirements and work practices (abatement and control measures) intended to control the emissions of particulates, smokes and SO 2 from new and existing stationary sources.

The revision also provides a new numbering scheme for each section of the regulation. Previously, subsections were designated only by the letter or number (for example, A or 1) assigned to that subsection. In the revision, every subsection is designated by full reference to it (for example, I.A or I.A.1).

Section I.A. provides that Regulation 1 provisions are applicable statewide. An exception is made if a provision within Regulation 1 is made specifically applicable to attainment, attainment/maintenance or nonattainment areas. Consistent with its use of the term elsewhere, the State added the attainment/maintenance nomenclature as a revision to Section I.A.

The State adopted EPA test methods number 1 through 9 (40 CFR part 60, appendix A-4) as it is applied to Standards of Performance for Steel Plants: Electric Arc Furnaces (40 CFR 60.275).

In the “Background” section of our proposed rule for these Regulation 1 revisions (76 FR 49391), we said that the State had submitted a revision to Section II.A.1 requiring sources to use EPA Test Method 9 to determine opacity. Originally, the State had added language to the section stating that the use of the test method shall not preclude the use of other credible evidence. The use of other credible evidence was suggested by EPA during the State's drafting of the revisions. The intent of the suggestion was to clarify that the use of the test method was not the only evidence that could be used to determine opacity. The State decided that the addition of the credible evidence wording was unnecessary because Regulation 1 is subject to the credible evidence provisions found in the State's Common Provisions. Therefore, the State removed the credible evidence reference from their revisions to Regulation 1, and section II.A.1 was unchanged in this revision. The “Proposed Action” section of our notice did not propose action on this section, correctly reflecting that no substantive change to this section had been made.

Section II.A.3 was revised to clarify that pilot plants and experimental operations shall not emit particulate matter in excess of 30 percent opacity for more than six minutes during a sixty minute time period. Prior to the revision the sixty minute time period had not been defined.

The State revised Regulation 1 to address the United States Army Fort Carson Military Base's (Base's) need to use military obscurants during training while, at the same time, maintaining the air quality in areas accessible to the public near the military base. Section II.A of Regulation 1 prior to the revision set general standards for all sources prohibiting emissions into the atmosphere of any air pollutant which is in excess of 20% opacity. However in 1998 the State revised Regulation 1 in recognition that obscurant generation training by the United States Army purposefully intends to be at or near 100 percent opacity. Section II.D set specific limitations for the use of obscurants at the Base and the Pinón Canyon Maneuver Site (PCMS) at 100 percent opacity subject to specified limitations and conditions. These included using a buffer zone around the military's training operation and limitation of the quantity of obscurant being generated.

The August 8, 2006 submittal revised Section II. of Regulation 1 by removing the daily limitation to the use of obscurants, and replaced a three-kilometer buffer zone within the military training area where obscurants could not be generated with a prohibition on transport of visible emissions from obscurants outside the boundaries of the facilities in order to protect the air quality in public areas outside the military boundary.

Section III.A.1.d, prior to its revision by the State, stated that if two or more fuel burning units connect to any opening, the maximum allowable emission rate shall be calculated on a process rate of pound per million heat input (BTU) basis. The State revised this so that the maximum allowable emission rate shall be calculated on a design rate of pounds per hour.

A revision to Section III.B.2.a of Regulation 1 clarified the areas where an incinerator emission standard applies. Previously, the emission rate limitation of 0.10 grain of particulate matter per standard cubic foot applied only to incinerators located in nonattainment areas. The revision, consistent with changes elsewhere, included attainment/maintenance areas as well.

The August 8, 2006 submittal changed Section III.C.1.a. regarding manufacturing processes emission rates, to clarify that the applicability of the section is to process equipment with a design rate of 30 tons per hour or less.

Under the revision averaging times for existing sources of SO 2 (unless specified in other sections of Regulation 1) shall be a three hour rolling average (Section VI.A.1). Prior to the August 8, 2006 submittal only sources utilizing a CEM were subject to the 3 hour rolling average. Requirements regarding frequency of fuel sampling were eliminated from this section. Recordkeeping and reporting requirements were modified in Section VI.A.5 to allow the State to require a longer period than the two years for keeping records on site.

We noted in the “Background” section of our proposed rule for these Regulation 1 revisions (76 FR 49391), that the State had submitted a revision to Section VI.B.4.i that addressed emission limitations for new cement manufacturing sources. This revision was removed by the State prior to the submittal of the revisions to EPA on August 8, 2006. The State decided that new cement manufacturing plants will be included in the State's NSR permit program that will include more stringent SO 2 emissions than are established in Regulation 1. Therefore, the State removed as unnecessary and redundant the reference to new cement manufacturing plants in Section VI.B.4.i. The “Proposed Action” section of the notice did not propose action on this section, correctly reflecting that no substantive change had been made.

In Section VIII.A., Applicability, the reference to the U.S. Department of Energy, Rocky Flats Environmental Technology Site and Gates Rubber Company as sources using oil as a backup fuel is deleted since the sources no longer operate in the Denver, Colorado metropolitan area.

EPA did not receive comments regarding our proposed rule for Colorado's Regulation 1 revisions.

Section 110(l) of the CAA states that a SIP revision cannot be approved if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress toward attainment of the National Ambient Air Quality Standards (NAAQS) or any other applicable requirement of the Act. The Colorado SIP revisions being approved that are the subject of this action do not interfere with attainment of the NAAQS or any other applicable requirement of the Act. In regard to the August 8, 2006 submittal, EPA is approving several revisions to the State's Regulation Number 1. These portions do not relax the stringency of the Colorado SIP. In particular, the State reinstated previous SO 2 limits, where we had disapproved subsequent relaxations that the State submitted. Therefore, this action satisfies the requirements of section 110(l).

We are not acting on purported substantive revisions made to Section II.C. regarding the State's Open Burning regulation. Upon review of the revisions, the language was unchanged from a previous revision the State had made to its Open Burning regulations under the Smoke and Opacity section of Regulation 1. EPA approved this revision in an earlier action (76 FR 4540, January 26, 2011). EPA therefore considers that no substantive revision was submitted for Section II.C. As discussed above, no substantive changes were made to sections II.A.1 and VI.B.4.i.

We are approving the new numbering scheme for Regulation 1. This approval does not constitute approval of any renumbered provisions that were not substantively modified, including sections II.A.1, II.C, and VII.B.4.i. We are approving the State's incorporation by reference into the SIP of EPA test method 9.

We are also approving the use of obscurants by the United States Army for military exercises at Fort Carson and PCMS under the prescribed conditions stated in Section II.D. The use of design rates for determining allowable emissions rates for manufacturing processes as defined in Section III.C.1.a of Regulation 1 is also approved.

The revision to the default averaging time (3 hour rolling average) for existing sources of SO 2 (Section VI.A.1) is approved. The modification to recordkeeping and reporting requirements in Section VI.A.5 is also approved. The reinstatement of Section VI.B.5, requirements for new sources of SO 2 emissions not regulated elsewhere in Regulation 1, is approved.

EPA is approving the deletion of the Rocky Flats Environmental Technology Site and the Gates Rubber Company in Section VIII.A. Minor grammatical revisions made throughout the revisions are also being approved. The State's use of the term “attainment/maintenance” area in Sections I.A., III.B.2.a, IV.D.2, and IX is approved.

EPA is disapproving the revision to Section III.A.1.d regarding the maximum allowable emission rate for multiple fuel units. We did not receive information from the State showing that changing the method for calculating emissions would not result in an increase in emissions. The State considered the issue and realized that the likelihood of two units venting to one stack where a pound per hour emission rate was needed would be rare. Therefore, the State did not provide the information and EPA is disapproving the revision to Section III.A.1.d

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it 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).

This rule also does not have tribal implications 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, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it approves a state rule implementing a Federal standard.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission; to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

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 March 19, 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:

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

Table 1 lists the rules we are approving with the dates that they were adopted or amended by the local air agencies and submitted by the California Air Resources Board (CARB).

On August 25, 2010, EPA determined that the submittals for AVAQMD Rule 1134 and ICAPCD Rule 400.1 met the completeness criteria in 40 CFR Part 51 Appendix V, which must be met before formal EPA review.

There are no previous versions of ICAPCD Rule 400.1 in the SIP. We approved an earlier version of AVAQMD Rule 1134 into the SIP on November 1, 1996 (61 FR 56470). The AVAQMD adopted an earlier a revision to the SIP approved version of Rule 1134 on April 11, 1997 but it was not submitted to EPA.

NO X helps produce ground-level ozone, smog and particulate matter, which harm human health and the environment. Section 110(a) of the CAA requires States to submit regulations that control NO X emissions. AVAQMD Rule 1134 regulates emissions of NO X and carbon monoxide (CO) from stationary gas turbine systems with ratings equal to or greater than 0.3 MW. ICAPCD Rule 400.1 regulates emissions of NO X from stationary gas turbine systems with ratings equal to or greater than 1 MW. EPA's technical support documents (TSDs) have more information about these rules.

Generally, SIP rules must be enforceable (see section 110(a) of the Act), must require Reasonably Available Control Technology (RACT) for each category of sources covered by a Control Techniques Guidelines (CTG) document as well as each NO X or VOC major source in nonattainment areas classified as moderate or above (see sections 182(b)(2) and 182(f)), and must not relax existing requirements (see sections 110(l) and 193). The AVAQMD regulates an ozone nonattainment area classified as moderate for the 8-hour NAAQS and severe-17 for the 1-hour NAAQS (see 40 CFR part 81), thus Rule 1143 must fulfill RACT requirements for NO X . The ICAPCD regulates an ozone nonattainment area classified as moderate (see 40 CFR part 81). Because Rule 400.1 regulates major stationary sources of NO X , it must fulfill NO X RACT requirements. On December 3 2009, EPA determined that ICAPCD attained the 1997 8-hour NAAQS for ozone based upon ambient air monitoring data showing the area had monitored attainment during the 2006-2008 monitoring period. (74 FR 63309) This determination suspended some of the planning requirements related to attainment of the 1997 8-hour ozone NAAQS but not the Section 182(b)(2) and 182(f) RACT requirements for major NO X emission sources. The ICAPCD also regulates a serious PM-10 nonattainment area, and is therefore subject to the requirement under sections 189(b)(1)(B) and 189(e) of the Act to implement Best Available Control Measures (BACM, which includes Best Available Control Technology or BACT) for control of PM-10 and PM-10 precursor emissions.

Guidance and policy documents that we use to evaluate enforceability and RACT requirements consistently include the following:

1. “State Implementation Plans; General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990,” 57 FR 13498 (April 16, 1992); 57 FR 18070 (April 28, 1992).

2. “State Implementation Plans; Nitrogen Oxides Supplement to the General Preamble; Clean Air Act Amendments of 1990 Implementation of Title I; Proposed Rule,” (the NO X Supplement), 57 FR 55620, November 25, 1992.

3. “Issues Relating to VOC Regulation Cutpoints, Deficiencies, and Deviations,” EPA, May 25, 1988 (the Bluebook).

4. “Guidance Document for Correcting Common VOC & Other Rule Deficiencies,” EPA Region 9, August 21, 2001 (the Little Bluebook).

5. “State Implementation Plans for Serious PM-10 Nonattainment Areas, and Attainment Date Waivers for PM-10 Nonattainment Areas Generally; Addendum to the General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990,” 59 FR 41998, August 16, 1994.

6. “PM-10 Guideline Document,” EPA 452/R-93-008, April 1993.

7. “Alternative Control Technology Document, NO X Emissions from Stationary Gas Turbines,” US EPA, 453/R-93-007, January 1993.

8. “Determination of Reasonably Available Control Technology and Best Available Retrofit Control Technology for the Control of Oxides of Nitrogen from Stationary Gas Turbines,” California Air Resources Board, May 18, 1992.

9. “Status Report on NO X Controls for Gas Turbines, Cement Kilns, Boilers, and Internal Combustion Engines,” Northeast States for Coordinated Air Use Management, December 2000.

We believe these rules are consistent with the relevant policy and guidance regarding enforceability, RACT, and SIP relaxations. The TSDs have more information on our evaluation.

The TSDs describe additional rule revisions that we recommend for the next time the local agencies modify the rules.

As authorized in section 110(k)(3) of the Act, EPA is fully approving the submitted rules because we believe they fulfill all relevant requirements. We do not think anyone will object to this approval, so we are finalizing it without proposing it in advance. However, in the Proposed Rules section of this Federal Register, we are simultaneously proposing approval of the same submitted rules. If we receive adverse comments by February 17, 2012, we will publish a timely withdrawal in the Federal Register to notify the public that the direct final approval will not take effect and we will address the comments in a subsequent final action based on the proposal. If we do not receive timely adverse comments, the direct final approval will be effective without further notice on March 19, 2012. This will incorporate these rules into the federally enforceable SIP.

Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

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

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

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

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

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

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

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

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

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

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

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller 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 March 19, 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. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the Proposed Rules section of today's Federal Register , rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. This action may not be challenged later in proceedings to enforce its requirements (see section 307(b)(2)).

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

I. Why is EPA using a direct final rule?

EPA is publishing this rule without a prior proposed rule because we view this as a noncontroversial action and anticipate no adverse comment. However, in the “Proposed Rules” section of today's Federal Register , we are publishing a separate document that will serve as the proposed rule to adopt the provisions in this Direct Final Rule if adverse comments are received on this direct final rule. We will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. For further information about commenting on this rule, see the ADDRESSES section of this document.

If EPA receives adverse comment, we will publish a timely withdrawal in the Federal Register informing the public that this direct final rule will not take effect. We would address all public comments in any subsequent final rule based on the proposed rule.

This action will affect companies that own steamships operating exclusively on the Great Lakes that were in service on October 30, 2009. The following table gives some examples of entities that may be affected by this rule; however, since these are only examples, you should carefully examine the regulations. You may direct questions regarding the applicability of this action as noted in FOR FURTHER INFORMATION CONTACT .

A. Submitting CBI. Do not submit this information to EPA through www.regulations.gov or email. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

B. Tips for Preparing Your Comments. When submitting comments, remember to:

• Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register date and page number).

• Follow directions—The agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.

• Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.

• Describe any assumptions and provide any technical information and/or data that you used.

• If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.

• Provide specific examples to illustrate your concerns, and suggest alternatives.

• Explain your views as clearly as possible, avoiding the use of profanity or personal threats.

• Make sure to submit your comments by the comment period deadline identified.

EPA's final rule for Category 3 marine engines  1 and their fuels (75 FR 22896, April 30, 2010) exempted steamships from the sulfur limits that apply to fuel used in ships operating on the Great Lakes  2 beginning August 1, 2012 (40 CFR 1043.95(a)). This means steamships can continue to operate indefinitely on high sulfur residual fuel. However, because steamship engines have high emissions and low fuel efficiency, we included a provision to encourage owners of Great Lakes steamships to voluntarily replace their steam boilers with cleaner, more fuel-efficient marine diesel engines (40 CFR 1043.95(b)(4)(iv)). The current voluntary repower incentive is in the form of relief through EPA's economic hardship program, through which an owner may apply for a relaxation of the Great Lakes fuel sulfur limits for fuel used by the repowered diesel ship, for a defined period of time. The use of lower price, higher sulfur residual fuel can help offset vessel repower costs.

EPA believes that the goal of repowering the fleet of Great Lakes steamships will be achieved more effectively by adding a new incentive program to provide an automatic, time-limited fuel waiver for repowered steamships. Instead of applying for relief through the economic hardship program, Great Lakes steamship owners who voluntarily repower their steamships with diesel engines would automatically qualify for a waiver that will allow the use of residual fuel in the replacement diesel engines that exceeds the global and ECA sulfur limits that otherwise apply to the fuel used in marine diesel engines operated on the U. S. portions of the Great Lakes. This automatic Great Lakes steamship repower fuel waiver will be valid through December 31, 2025; after that date, repowered steamships will be required to comply with the Great Lakes ECA fuel sulfur limits for diesel engines. 3 To qualify for this automatic fuel sulfur waiver, the steamship must be exempt from existing requirements pursuant to 40 CFR 1043.95(a) in that it must operate exclusively on the Great Lakes and must have been in service on October 30, 2009. In addition, the replacement engine must be a Tier 2 or cleaner marine diesel engine as specified in 40 CFR 1042.104.

Voluntary replacement of steam engines with cleaner, more efficient Tier 2 or better marine diesel engines through this modification to our steamship repower incentive program will provide important air quality and energy benefits immediately, due to the improved fuel efficiency of the diesel engines, and even larger benefits in the long term, when the repowered ships will use fuel that complies with the 1,000 ppm sulfur limit on the Great Lakes.

The Great Lakes and St. Lawrence Seaway are the longest deep draft navigation system in the world. About 160 million tons of cargo is moved each year through the 110 ports located on this 2,300 mile system, which extends from the Gulf of St. Lawrence to the western shores of Lake Superior. According to a recent study, this transportation system generated nearly 93,000 directly-related jobs and 134,000 indirect jobs in the U.S. and Canada in 2010, providing about $34.5 billion in business revenue. 4

The U.S. Great Lakes fleet consists of 57 vessels that carry about 65 percent of Great Lakes cargo. 5 This fleet is “captive,” meaning that many of these ships operate solely on the Great Lakes. For some ships, this is because they are too large to pass through the Welland Canal to the St. Lawrence Seaway; others service only Great Lakes ports. Operation in fresh water minimizes hull corrosion and therefore these captive cargo ships remain in service for a long time. The average age of the fleet of all U.S. cargo vessels operating on the Great Lakes today is about 44 years. The Canadian fleet of 96 ships carries about 25 percent of Great Lakes cargo. This fleet is different from the U.S. fleet in that the ships are younger, on average 35 years, tend to be smaller, and are more likely to operate in the brackish water of the lower end of the St. Lawrence Seaway, the Gulf of St. Lawrence, and the Atlantic Ocean. The remaining Great Lakes cargo is carried by foreign ocean-ships operating on the system temporarily.

Steamships are the oldest segment of the Great Lakes fleet. There are thirteen U.S. steamships operating on the Great Lakes; twelve of these have boilers burning residual fuel oil and the thirteenth operates on coal. The average age of these steamships is about 58 years, the youngest being built in 1960 and the oldest in 1942. The average age of the smaller fleet of 6 Canadian steamships is 57 years, with the youngest built in 1967. Because they operate primarily in fresh water, the U.S. steamships do not experience the corrosion of saltwater and are expected to remain in operation for several more decades.

Steamships remaining in operation today, on both the Great Lakes and the ocean, are part of a legacy fleet that uses technology originally developed before the diesel engine became the dominant ship propulsion method worldwide. In steam technology engines, residual fuel or coal is burned to heat water in a boiler; the resulting steam is converted into energy to rotate the ship's main propellers. Steam engines are less efficient than internal combustion engines and can use 30 to 50 percent more fuel than a diesel engine. This translates to high sulfur oxide (SO X ) and particulate matter (PM) emissions. As discussed in our Category 3 marine rule, these emissions have important impacts on human health and the environment.

Steamships that operate in salt water are retired from service as a result of hull corrosion, and much of today's fleet of ocean steamships is expected to be retired by 2020. Owners choose diesel engines for the replacement vessels because of their better fuel efficiency and performance characteristics; diesel engines have lower SOx and PM emissions as well. Increasing fuel prices have led some Great Lakes steamship owners to carry out repower projects to replace their inefficient steam engines with cleaner fuel-efficient diesel engines. This type of vessel modification can be expensive, with costs of $15 to $25 million or more (20 to 25 percent of the cost of a new vessel), because the steam engine is an integral part of the vessel and the hull must be cut away to remove it. Repowering also requires extensive engine room and propeller modifications. However, the fuel savings associated with a 30 percent improvement in fuel efficiency combined with the long service life of Great Lakes ships helps the owner recover these costs. The fuel savings can make repowering attractive to owners on a long-term basis, and several Great Lakes steamships were repowered in the last decade, including the Paul R. Tregurtha, the Charles M. Beeghly (now the James L. Oberstar), the Michipicoten, and the Saginaw. This dynamic was changed, however, with the designation of the North American Emission Control Area (ECA) and the application of the stringent ECA fuel sulfur limits to the Great Lakes through our Category 3 marine rule. As explained below, ECA-compliant fuel is expected to be higher price distillate fuel, and steamship owners may not be able to recover the cost of a repower even with the better fuel efficiency of diesel engines compared to steam engines. As a result, the incentives for repowering any one of the thirteen remaining steamships became less compelling.

In our 2010 Category 3 marine rulemaking, EPA adopted a Coordinated Strategy for ships that will reduce emissions from all foreign and domestic vessels that affect U.S. air quality. The Coordinated Strategy applies to all ships that operate in the United States, including those that operate on the U.S. portions of the Great Lakes and St. Lawrence Seaway. The Coordinated Strategy consists of three parts:

(i) Addition of new tiers of Clean Air Act (CAA) emission standards that apply to Category 3 marine engines installed on U.S. vessels, and certain compliance requirements that are consistent with our regulatory program for Category 1 and Category 2 marine engines;

(ii) Designation of U.S. coastal waters as an Emission Control Area (ECA) through amendment to Annex VI of the International Convention for the Prevention of Pollution from Ships (MARPOL Annex VI); ships operating in a designated ECA are required to meet the most stringent engine and marine fuel sulfur requirements contained in MARPOL Annex VI; and

(iii) Adoption of the engine emission and fuel sulfur limits contained in the amendments to MARPOL Annex VI that are applicable to all vessels regardless of flag and implementation of those requirements in the U.S. through the Act to Prevent Pollution from Ships (APPS) and regulations issued under APPS.

The North American ECA was designated through amendment to MARPOL Annex VI that was adopted by the Parties to Annex VI in March 2010. 6 A fuel sulfur limit of 10,000 ppm will begin to apply in this designated ECA starting in August 2012; this is reduced to 1,000 ppm beginning January 1, 2015. 7

Our 2010 Category 3 marine rulemaking finalized regulations implementing the MARPOL Annex VI and North American ECA requirements for U.S. vessels under the CAA and for U.S. and foreign vessels under APPS. That rule also adopted regulatory text to clarify that vessels operating in U.S. internal waters, shoreward of an ECA, that can be accessed by ocean-going vessels must meet the MARPOL Annex VI ECA requirements. This includes ports and internal waters such as the Great Lakes. In the regulatory text we refer to the internal waters in which we are applying the ECA requirements as the “ECA associated area.” The regulatory text applies the ECA requirements for these internal waters beginning at the same time as the ECA takes effect under MARPOL Annex VI.

We received many comments from Great Lakes stakeholders during our Category 3 rulemaking process about the application of the ECA standards to the Great Lakes. Steamship owners raised technical and safety issues associated with operating Great Lakes steamships on distillate fuel, since these steamships were designed specifically to operate on residual fuel oils. In response to these comments, we considered a number of options to address the safety concerns for these vessels. However, Congress placed a prohibition on EPA's use of funds to issue a final rule that included fuel sulfur standards applicable to existing steamships that operate exclusively in the Great Lakes. Therefore, under our APPS section 1903 authority to “prescribe any necessary or desired regulations to carry out the provisions” of MARPOL Annex VI, our final regulations exclude Great Lakes steamships from the final fuel sulfur requirements (40 CFR 1043.95(a)). This means that steamships can continue to use high sulfur residual fuel indefinitely. 8

At the same time, however, we recognized that the steamship fuel sulfur exemption, combined with the application of ECA fuel sulfur requirements to diesel ships operating on the Great Lakes, would reduce the incentives for steamship owners to repower their ships. This is because once the steamship is repowered with diesel engines it would no longer be exempt from the fuel sulfur requirements. In addition, the higher price of fuel that is compliant with ECA and global fuel requirements would make it harder to recover the costs of the repower project through fuel savings from the more fuel efficient diesel engines.

As a result, we added a provision to our economic hardship waiver program that would allow EPA to consider “the ability of an individual vessel to recover capital investments incurred to repower or otherwise modify a vessel to reduce air emissions” (40 CFR 1043.95(b)(4)(iv)). Using this provision, EPA intended that steamship owners who voluntarily repower their steamships with diesel engines could apply for an economic hardship waiver that would allow the ship to use lower-price residual fuel in the repowered diesel engine for a specified period of time, which can help offset the capital costs of a repower project.

Since EPA finalized the Category 3 marine rule, we recognized that the goal of encouraging voluntary Great Lakes steamship repowers can be achieved more effectively by providing an automatic fuel sulfur waiver for a defined period of time for Great Lakes steamships that are repowered with a Tier 2 or better diesel engine. 9

A waiver is appropriate and reasonable due to the significant emissions and energy benefits from repowering a steamship with a diesel engine, both immediately and in the long run. A diesel engine is 30 to 50 percent more fuel-efficient than a steam power plant, due to better combustion technology. In a typical steamship, replacing the steam power plant with a diesel engine will immediately reduce SO X emissions by about 34 percent; PM emissions would be about the same for both engines when operating on high sulfur residual fuel. In the long term, beginning January 1, 2026 when the replacement diesel engines will be required to use fuel that complies with the 1,000 ppm sulfur limit on the Great Lakes, the estimated emission reductions will be even more significant: About 97 percent reduction in SO X and about 84 percent reduction in PM emissions compared to the steam engine. These SO X and PM emission reductions are extraordinary, especially given that Great Lakes steamships, repowered or not, will have many years of service life remaining even after the expiration of the fuel sulfur waiver. Steam engines have inherently low NO X emissions due to their inefficient combustion process, and replacing a steam engine with a diesel engine may result in several times more NO X emissions. However, the diesel marine engines that would replace the steam engine have NO X emissions comparable to diesel engines used in other marine and land-based applications, and would be required to meet at least EPA's Tier 2 standards. In addition, the health and human welfare benefits of reducing PM and SO X emissions overwhelm the impacts of the NO X emission increase of the repowered engine compared to the original steam engine. Therefore, the impacts of repowering Great Lakes steamships are expected to be significantly beneficial.

An automatic waiver is appropriate because it will give owners greater flexibility with regard to how and when they repower. A ship repower is a lengthy process that requires significant redesign of the ship engine room and propulsion system. Also, the scheduling of dry dock time must be timed with the order and delivery of the replacement engine and other important ship components. An automatic waiver will avoid an additional review and approval phase for a repower project. It also may facilitate financing as the waiver is available for any qualifying steamship repower.

Consistent with our existing steamship fuel sulfur waiver (40 CFR 1043.95(a)), this steamship incentive program fuel waiver is available only to steamships that were operating exclusively on the Great Lakes and that were in service on October 30, 2009  10 and therefore are otherwise exempt from the requirements of Part 1043. In addition, the steam engine must be replaced with an engine that meets the EPA standards in effect at the time the ship will enter dry dock (i.e., it is covered by an EPA-issued certificate of conformity).

To qualify for this steamship repower waiver, the vessel must remain intact in that the cargo section of the vessel must remain connected to the section that contains the pilothouse. This means that if a steamship is converted to a barge and is subsequently paired, either permanently or sporadically, with a tug, the tug will not qualify for this fuel sulfur waiver. Removal of the engine section of the vessel and replacing it with a tug is more consistent with replacing the existing vessel rather than repowering it. In addition, the replacement tug would likely be powered by a Category 2 engine that does not use residual fuel, due to the space restrictions on tugs and the requirements for fuel handling equipment to use residual fuel, and therefore a residual fuel waiver would be irrelevant.

The waiver is valid through December 31, 2025. Beginning January 1, 2026, the owner will be required to use ECA-compliant fuel in the repowered diesel engine. This limited waiver period is intended to encourage steamship owners to repower early to take full advantage of the amount of time they can use lower price residual fuel. This, in turn, will maximize the human health and environmental benefits of the steamship repower waiver.

A steamship owner taking advantage of the automatic steamship repower incentive program is required to notify EPA's designated certification officer of the intention to use this provision. The notification must include a description of the project, the expected timeline, and other relevant information. The owner is also required to notify EPA's designated certification officer at completion of the project. At that time, EPA will provide the owner with a statement that the repowered ship is covered by the steamship repower incentive program fuel sulfur waiver. This document should be kept with the ship's International Air Pollution Prevention (IAPP) and Engine International Air Pollution Prevention (EIAPP) certificates, for compliance purposes.

The owner of the repowered steamship is required to comply with all other aspects of EPA's marine diesel engine program, including the MARPOL Annex VI requirements with respect to bunker delivery notes.

EPA has determined that no changes are needed to our 40 CFR part 80 fuels program to effectuate the fuel sulfur waiver for repowered steamships. This is because the prohibitions contained in 40 CFR 80.610 specify that “no person shall * * * (6) beginning January 1, 2015, introduce (or permit the introduction of) any fuel with a sulfur content greater than 1,000 ppm for use in a Category 3 marine vessel within an ECA, except as allowed by 40 CFR part 1043,” and the steamship repower incentive program regulations will be part of 40 CFR 1043.95. In addition, ECA fuel is defined in 40 CFR 80.2(ttt)(2)(i) as excluding “fuel that is allowed by 40 CFR part 1043 to exceed the fuel sulfur limits for operation in an ECA (such as fuel used by excluded vessels * * *).”

Under the authority of 33 U.S.C. 1903 to “prescribe any necessary or desired regulations to carry out the provisions” of MARPOL Annex VI, EPA is taking direct final action to add an automatic fuel sulfur waiver to our marine diesel program for repowered steamships operating on the Great Lakes. This automatic fuel waiver is available only to owners of steamships that operate exclusively on the Great Lakes and that were in service on October 30, 2009, where “in service” means operating as a steamship, but is not limited to actually performing that service on that day. This waiver will allow the converted steamship to use non-compliant residual fuel in the repowered diesel engine through December 31, 2025.

This action will not have an adverse cost impact on steamship owners. Steamship owners are not required to replace the steam engines on their vessels with diesel engines. This direct final rule merely adds a provision to allow steamship owners who voluntarily repower with diesel engines to automatically continue to use the fuel they would otherwise be permitted to use had the ship not been repowered, for a period of time. This provision will provide important air quality and energy benefits immediately, due to the improved fuel efficiency of the diesel engines, and even larger benefits beginning in 2026, when the repowered ship will use fuel that complies with the 1,000 ppm sulfur limit on the Great Lakes.

This action is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011). This direct final rule merely adds an automatic waiver provision to encourage Great Lakes steamship owners to repower their vessels with cleaner marine diesel engines. There are no costs associated with this rule because steamship owners are not required to repower their ships.

The information collection requirements in this rule will be submitted for approval to the Office of Management and Budget (OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The information collection requirements are not enforceable until OMB approves them.

The program contained in this rule is a voluntary incentive program to encourage owners of Great Lakes steamship to repower their ships with diesel engines. A steamship owner taking advantage of the automatic fuel waiver is required to notify EPA's designated certification officer of the intention to use this provision. The notification must include a description of the project, the expected timeline, and other relevant information. The owner is also required to notify EPA's designated certification officer at completion of the project. The purpose of the reporting is to ensure that a repower has taken place, with a qualified EPA-certified engine. Because this program is voluntary, a steamship owner would provide this information only if the provision is exercised. When the project is completed, EPA will provide the owner with a statement that the repowered ship is covered by the steamship repower incentive program fuel sulfur waiver, which is to be kept onboard for compliance purposes.

There are potentially six companies affected, which own the twelve remaining diesel steamships that operate on the Great Lakes. It is not known how many of these companies will actually take advantage of the waiver, or when they would repower. However, it is likely that the repowers would occur prior to 2015, to maximize the fuel savings afforded by the fuel sulfur waiver before it expires on December 31, 2025.

The total estimated burden associated with the automatic steamship repower incentive program is 14.0 hours annually. This is based on two steamship owners repowering two steamships in each of three years and an estimated 3.5 annual labor hours for each manufacturer to prepare and submit the required information for each ship. Burden is defined at 5 CFR 1320.3(b).

An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9. When this ICR is approved by OMB, the Agency will publish a technical amendment to 40 CFR part 9 in the Federal Register to display the OMB control number for the approved information collection requirements contained in this final rule.

The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.

For purposes of assessing the impacts of today's rule on small entities, small entity is defined as: (1) A small business primarily engaged in shipbuilding and repairing as defined by NAICS code 336611 with 1,000 or fewer employees (based on Small Business Administration size standards); (2) a small business that is primarily engaged in freight or passenger transportation on the Great Lakes as defined by NAICS codes 483113 and 483114 with 500 or fewer employees (based on Small Business Administration size standards); (3) a small business primarily engaged in commercial and industrial machinery and equipment repair and maintenance with annual receipts less than $7 million (based on Small Business Administration size standards); (4) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (5) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.

After considering the economic impacts of today's final rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities.

In determining whether a rule has a significant economic impact on a substantial number of small entities, the impact of concern is any significant adverse economic impact on small entities, since the primary purpose of the regulatory flexibility analyses is to identify and address regulatory alternatives “which minimize any significant economic impact of the rule on small entities.” 5 U.S.C. 603 and 604. Thus, an agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, or otherwise has a positive economic effect on all of the small entities subject to the rule.

This direct final rule merely adds an automatic waiver provision to encourage Great Lakes steamship owners to repower their vessels with cleaner marine diesel engines. There are no costs and therefore no regulatory burden associated with this rule because steamship owners are not required to repower their ships and can continue using their vessels indefinitely. This Great Lakes steamship repower incentive program will assist those steamship owners who choose to voluntarily repower their ships, however, by allowing them to use lower-price residual fuel in the repowered diesel ship for a specified period of time, which may help them cover the costs of the repower project. We have therefore concluded that today's final rule will not increase regulatory burden for affected small entities.

This action contains no Federal mandates under the provisions of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531-1538 for State, local, or tribal governments or the private sector. The action imposes no enforceable duty on any State, local or tribal governments or the private sector. Therefore, this action is not subject to the requirements of sections 202 or 205 of the UMRA.

This action is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments. This direct final rule merely adds an automatic waiver provision to encourage Great Lakes steamship owners to repower their vessels with cleaner marine diesel engines. None of the thirteen U.S. steamships operating on the Great Lakes as of October 30, 2009, are owned or operated by a State, local, or tribal government.

This action does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This direct final rule merely adds an automatic waiver provision to encourage Great Lakes steamship owners to repower their vessels with cleaner marine diesel engines. None of the thirteen U.S. steamships operating on the Great Lakes as of October 30, 2009, are owned or operated by a State. Thus, Executive Order 13132 does not apply to this action.

This action does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). This direct final rule merely adds an automatic waiver provision to encourage Great Lakes steamship owners to repower their vessels with cleaner marine diesel engines. None of the thirteen U.S. steamships operating on the Great Lakes as of October 30, 2009, are owned or operated by an Indian tribal government. Thus, Executive Order 13175 does not apply to this action.

This action is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997) because it is not economically significant as defined in Executive Order 12866, and because the Agency does not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. This direct final rule merely adds an automatic waiver provision to encourage Great Lakes steamship owners to repower their vessels with cleaner marine diesel engines. To the extent Great Lakes steamship owners take advantage of this incentive program, their action will provide immediate air quality and energy benefits, due to the improved fuel efficiency of the diesel engines, and even larger benefits in the long term, when the repowered ship will use fuel that complies with the 1,000 ppm sulfur limit on the Great Lakes. These emission reductions will improve air quality for all people who live in the Great Lakes region, including children and other sensitive populations.

This action is not subject to Executive Order 13211 (66 FR 28355, May 22, 2001), because it is not a significant regulatory action under Executive Order 12866.

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104-113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.

This action does not involve technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards.

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

EPA has determined that this final rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it increases the level of environmental protection for all affected populations without having any disproportionately high and adverse human health or environmental effects on any population, including any minority or low-income population. This direct final rule merely adds an automatic waiver provision to encourage Great Lakes steamship owners to repower their vessels with cleaner marine diesel engines. To the extent Great Lakes steamship owners take advantage of this incentive program, their action will provide immediate air quality and energy benefits, due to the improved fuel efficiency of the diesel engines, and even larger benefits in the long term, when the repowered ship will use fuel that complies with the 1,000 ppm sulfur limit on the Great Lakes. These emission reductions will improve air quality for all people who live in the Great Lakes region, including minority and low-income populations.

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A Major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2). This rule will be effective on March 19, 2012.

The statutory authority for this action comes from section 1903 of the Act to Prevent Pollution from Ships (33 U.S.C. 1901 et seq. ). The Act to Prevent Pollution from Ships implements Annex VI to the International Convention for the Prevention of Pollution from Ships (MARPOL) and makes those requirements enforceable domestically. Section 1903 gives the Administrator the authority to prescribe any necessary or desired regulations to carry out the provisions of Regulations 12 through 19 of MARPOL Annex VI.

For the reasons set out in the preamble, Title 40, Chapter I of the Code of Federal Regulations is amended as follows: