Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the Federal Register on December 15, 2011 (76 FR 77934), and proposed to supersede AD 2005-23-02, Amendment 39-14360 (70 FR 69067, November 14, 2005). That NPRM proposed to correct an unsafe condition for the specified products. The MCAI states:

This AD also adds certain ACT equipped airplanes, produced after AD 2005-23-02, Amendment 39-14360 (70 FR 69067, November 14, 2005) was issued, to the applicability. This AD also removes Model A320-111 airplanes from the applicability because there are no operational Model A320-111 airplanes in the United States and Airbus intends to remove this model from the EASA Type Certificate Data Sheet (TCDS). You may obtain further information by examining the MCAI in the AD docket.

We gave the public the opportunity to participate in developing this AD. We have considered the comments received.

Thomas Hayden Barnes stated he supports efforts to ensure airline safety and the NPRM (76 FR 77934, December 15, 2011) appears reasonable.

US Airways stated it supports the intent of the NPRM (76 FR 77934, December 15, 2011).

US Airways stated that accomplishment of the modification specified in Airbus Mandatory Service Bulletin A320-28-1162, Revision 02, dated December 18, 2009, will take 14.5 man-hours per fuel tank. We infer that the commenter wants the preamble section of the final rule changed to reflect 14.5 work-hours per fuel tank.

We agree. The total work-hours for accessing, modifying a fuel tank, and closing are estimated at 14.5 work-hours per fuel tank. We have changed the cost section in the final rule to reflect an estimate of 15 work-hours per fuel tank to comply with the new basic requirements of this AD. We have also revised the estimated cost of the AD on U.S. operators to be $919,275 (based on one fuel tank per airplane), or $1,275 per fuel tank.

US Airways requested we revise the parts cost statement of the NPRM (76 FR 77934, December 15, 2011) to include the parts cost for the actions required by AD 2005-23-02, Amendment 39-14360 (70 FR 69067, November 14, 2005) and that are retained in the NPRM. The commenter stated that the parts costs are not covered under warranty.

We partially agree. Airbus Service Bulletin A320-28-1105, Revision 02, dated March 11, 2005, states that Airbus will provide the material at no charge for orders placed before December 31, 2003. Therefore, we agree that some operators may have had to pay for parts. We do not agree to add parts costs to this final rule, but we have added a statement to the cost section for actions that are required by AD 2005-23-02, Amendment 39-14360 (70 FR 69067, November 14, 2005) and retained in this AD. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these parts. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here.

US Airways requested the NPRM (76 FR 77934, December 15, 2011) be changed to allow installation of the seals without removing the ACTs from the airplane as specified in AD 2005-23-02, Amendment 39-14360 (70 FR 69067, November 14, 2005). The commenter stated that in order to replace the seal on ACT number 2, only the integrated impact wall needs to be removed; and for seal replacement on ACT number 1, the ACT number 2 has to be rolled rearward approximately two feet to provide access to ACT number 1, which can then have its seal replaced without ACT removal. The commenter provided references to its internal documentation to support its request.

We disagree. US Airways request does not substantiate the detailed procedures needed for deviation from the Airbus recommended actions specified in Airbus Mandatory Service Bulletin A320-28-1162, Revision 02, dated December 18, 2009, for installation of seals on the ACT number 1 and ACT number 2. In addition, Airbus foresees a potential safety hazard for mechanics if seals are installed without removing the ACTs due to inadequate ventilation and high concentration of fuel vapor.

Under the provisions of paragraph (l) of this AD, we will consider requests for approval of alternate method of compliance (AMOC) if sufficient data are submitted to substantiate that deviation from the specified procedures in Airbus Mandatory Service Bulletin A320-28-1162, Revision 02, dated December 18, 2009, would provide an acceptable level of safety. We have not changed the AD in this regard.

We have revised the heading for paragraph (k) of this AD and the wording in paragraphs (h) and (k) of this AD; these changes have not changed the intent of those paragraphs.

We reviewed the available data, including the comments received, and determined that air safety and the public interest require adopting the AD as proposed, except for minor editorial changes and/or changes to the cost section that add the accessing and closing costs. We have determined that these minor changes:

• Are consistent with the intent that was proposed in the NPRM (76 FR 77934, December 15, 2011) for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM (76 FR 77934, December 15, 2011).

Based on the service information, we estimate that this AD affects 721 products of U.S. registry.

The actions that are required by AD 2005-23-02, Amendment 39-14360 (70 FR 69067, November 14, 2005) and retained in this AD take about 1 work-hour per product, at an average labor rate of $85 per work hour. Required parts cost about $0 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these parts. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, the estimated cost of the currently required actions is $85 per product.

We estimate that it would take about 15 work-hours per fuel tank to comply with the new basic requirements of this AD. The average labor rate is $85 per work-hour. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these parts. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of the AD on U.S. operators to be $919,275, or $1,275 per fuel tank.

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

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

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

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

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

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

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.

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

You may examine the AD docket on the Internet at http://www.regulations.gov; or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains the NPRM (76 FR 77934, December 15, 2011), the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone (800) 647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

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

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the Federal Register on December 29, 2011 (76 FR 81884). That NPRM proposed to correct an unsafe condition for the specified products. The MCAI states:

You may obtain further information by examining the MCAI in the AD docket.

We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM (76 FR 81884, December 29, 2011) or on the determination of the cost to the public.

Airbus has issued Mandatory Service Bulletins A330-32-3241 and A340-32-4282, both Revision 01, both including Appendix 01, both dated October 6, 2011, which correct certain aircraft maintenance manual references. We referred to Airbus Mandatory Service Bulletins A330-32-3241 and A340-32-4282, both dated November 26, 2010, as the appropriate sources of service information for doing the actions specified in the NPRM (76 FR 81884, December 29, 2011). We have updated paragraphs (g) and (j) of this AD to refer to Airbus Mandatory Service Bulletins A330-32-3241 and A340-32-4282, both Revision 01, both including Appendix 01, both dated October 6, 2011. We have also added new paragraph (h) to this AD to give credit for actions done before the effective date of this AD in accordance with Airbus Mandatory Service Bulletins A330-32-3241 and A340-32-4282, both dated November 26, 2010, and updated subsequent paragraph identifiers accordingly.

We also added a reference to Model A330-200 freighter series airplanes in paragraphs (g) and (h) of this AD.

We reviewed the available data and determined that air safety and the public interest require adopting the AD with the changes described previously and minor editorial changes. We have determined that these changes:

• Are consistent with the intent that was proposed in the NPRM (76 FR 81884, December 29, 2011) for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM (76 FR 81884, December 29, 2011).

We estimate that this AD will affect 55 products of U.S. registry. We also estimate that it will take about 66 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Required parts will cost about $10,000 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these parts. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of this AD to the U.S. operators to be $858,550, or $15,610 per product.

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

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

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

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

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

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

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.

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

You may examine the AD docket on the Internet at http://www.regulations.gov; or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains the NPRM (76 FR 81884, December 29, 2011), the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone (800) 647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

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

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM published in the Federal Register on February 8, 2012 (77 FR 6522). That NPRM proposed to require repetitive detailed inspections for fractured or missing latch pin retention bolts, replacement of existing titanium bolts with new Inconel bolts, and related investigative and corrective actions if necessary.

We gave the public the opportunity to participate in developing this AD. We have considered the comments received. Boeing and American Airlines support the NPRM (77 FR 6522, February 8, 2012).

We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting the AD as proposed.

We estimate that this AD affects 148 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

We estimate the following costs to do any necessary repairs that would be required based on the results of the inspection. We have no way of determining the number of aircraft that might need these repairs:

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 notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM published in the Federal Register on March 2, 2012 (77 FR 12757). That NPRM proposed to require inspection for oversized or deformed fuel hose clamps and replacement as necessary because of reports we have received of installation of oversized clamps on fuel vapor return and/or fuel vent lines in the outboard sections of the left and right wings. This condition, if not corrected, could result in leakage of fuel or vapor in areas where electrical wiring and other potential ignition sources are present, which could lead to an inflight fire.

We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM or on the determination of the cost to the public.

We reviewed the relevant data and determined that air safety and the public interest require adopting the AD as proposed except for minor editorial changes. We have determined that these minor changes:

• Are consistent with the intent that was proposed in the NPRM (77 FR 12757, March 2, 2012) for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM (77 FR 12757, March 2, 2012).

We estimate that this AD affects 244 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

We estimate the following costs to do any necessary replacements that would be required based on the results of the inspection. We have no way of determining the number of aircraft that might need these replacements:

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.

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:

FDA's Center for Veterinary Medicine (CVM) is adopting use of a monthly Federal Register document to codify approval actions for NADAs and abbreviated ANADAs. CVM will no longer publish a separate rule for each action. This approach will allow a more efficient use of available resources.

In this document, FDA is amending the animal drug regulations to reflect the original and supplemental approval actions during March 2012, as listed in table 1 of this document. FDA is also informing the public of the availability of environmental review documents required under the National Environmental Policy Act (NEPA), where applicable. For actions requiring review of safety or effectiveness data, summaries of the basis of approval (FOI Summaries) under the Freedom of Information Act (FOIA) may be seen in the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852, between 9 a.m. and 4 p.m., Monday through Friday.

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

Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs and redelegated to the Center for Veterinary Medicine, 21 CFR parts 510, 520, 522, and 558 are amended as follows:

This rule concerns Clean Air Act (CAA) restrictions on the consumption, production, and use of methyl bromide (a Class I, Group VI controlled substance) for critical uses during calendar year 2012. Under the Clean Air Act, methyl bromide consumption and production were phased out on January 1, 2005, apart from allowable exemptions, such as the critical use exemption and the quarantine and preshipment (QPS) exemption. Consumption is defined under the CAA as production plus imports minus exports. With this action, EPA is authorizing the uses that qualify for the 2012 critical use exemption as well as specific amounts of methyl bromide that may be produced and imported, or sold from pre-phaseout inventory (also referred to as “stocks”) for critical uses in 2012.

Section 553(d) of the Administrative Procedure Act (APA), 5 U.S.C. Chapter 5, generally provides that rules may not take effect earlier than 30 days after they are published in the Federal Register . EPA is issuing this final rule under section 307(d)(1) of the Clean Air Act, which states: “The provisions of section 553 through 557 * * * of Title 5 shall not, except as expressly provided in this section, apply to actions to which this subsection applies.” Thus, section 553(d) of the APA does not apply to this rule. EPA is nevertheless acting consistently with the policies underlying APA section 553(d) in making this rule effective on May 17, 2012. APA section 553(d) allows an effective date less than 30 days after publication “as otherwise provided by the agency for good cause found and published with the rule.” Section 5 U.S.C. 553(d)(1) allows an effective date less than 30 days after publication for a rule that “that grants or recognizes an exemption or relieves a restriction.” 5 U.S.C. 553(d)(1). Since today's action can be considered to either grant an exemption for limited critical uses during 2012 from the general prohibition on production or import of methyl bromide after the phaseout date of January 1, 2005, or relieve a restriction that would otherwise prevent production or import of methyl bromide, EPA is making this action effective immediately upon publication.

Entities and categories of entities potentially regulated by this action include producers, importers, and exporters of methyl bromide; applicators and distributors of methyl bromide; and users of methyl bromide that applied for the 2012 critical use exemption including growers of vegetable crops, fruits, and nursery stock, and owners of stored food commodities and structures such as grain mills and processors. This rulemaking does not affect applicants for future control periods.

This list is not intended to be exhaustive, but rather to provide a guide for readers regarding entities likely to be regulated by this action. To determine whether your facility, company, business, or organization could be regulated by this action, you should carefully examine the regulations promulgated at 40 CFR part 82, subpart A. If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding section.

Methyl bromide is an odorless, colorless, toxic gas which is used as a broad-spectrum pesticide and is controlled under the CAA as a Class I ozone-depleting substance (ODS). Methyl bromide was once widely used as a fumigant to control a variety of pests such as insects, weeds, rodents, pathogens, and nematodes. Information on methyl bromide can be found at http://www.epa.gov/ozone/mbr.

Methyl bromide is also regulated by EPA under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and other statutes and regulatory authority, as well as by States under their own statutes and regulatory authority. Under FIFRA, methyl bromide is a restricted use pesticide. Restricted use pesticides are subject to Federal and State requirements governing their sale, distribution, and use. Nothing in this rule implementing Title VI of the Clean Air Act is intended to derogate from provisions in any other Federal, State, or local laws or regulations governing actions including, but not limited to, the sale, distribution, transfer, and use of methyl bromide. Entities affected by this rule must comply with FIFRA and other pertinent statutory and regulatory requirements for pesticides (including, but not limited to, requirements pertaining to restricted use pesticides) when producing, importing, exporting, acquiring, selling, distributing, transferring, or using methyl bromide. The provisions in this action are intended only to implement the CAA restrictions on the production, consumption, and use of methyl bromide for critical uses exempted from the phaseout of methyl bromide.

The regulatory requirements of the stratospheric ozone protection program that limit production and consumption of ozone-depleting substances are in 40 CFR part 82, subpart A. The regulatory program was originally published in the Federal Register on August 12, 1988 (53 FR 30566), in response to the 1987 signing and subsequent ratification of the Montreal Protocol on Substances that Deplete the Ozone Layer (Montreal Protocol). The Montreal Protocol is the international agreement aimed at reducing and eliminating the production and consumption of stratospheric ozone-depleting substances. The United States was one of the original signatories to the 1987 Montreal Protocol and the United States ratified the Protocol on April 12, 1988. Congress then enacted, and President George H.W. Bush signed into law, the Clean Air Act Amendments of 1990 (CAAA of 1990) which included Title VI on Stratospheric Ozone Protection, codified as 42 U.S.C. Chapter 85, Subchapter VI, to ensure that the U.S. could satisfy its obligations under the Montreal Protocol. EPA issued regulations to implement this legislation and has since amended the regulations as needed.

Methyl bromide was added to the Montreal Protocol as an ozone-depleting substance in 1992 through the Copenhagen Amendment. The Parties to the Montreal Protocol (Parties) agreed that each industrialized country's level of methyl bromide production and consumption in 1991 should be the baseline for establishing a freeze in the level of methyl bromide production and consumption for industrialized countries. EPA published a rule in the Federal Register on December 10, 1993 (58 FR 65018), listing methyl bromide as a Class I, Group VI controlled substance, freezing U.S. production and consumption at the 1991 baseline level of 25,528,270 kilograms, and setting forth the percentage of baseline allowances for methyl bromide granted to companies in each control period (each calendar year) until 2001, when the complete phaseout would occur. This phaseout date was established in response to a petition filed in 1991 under sections 602(c)(3) and 606(b) of the CAAA of 1990, requesting that EPA list methyl bromide as a Class I substance and phase out its production and consumption. This date was consistent with section 602(d) of the CAAA of 1990, which for newly listed Class I ozone-depleting substances provides that “no extension [of the phaseout schedule in section 604] under this subsection may extend the date for termination of production of any class I substance to a date more than 7 years after January 1 of the year after the year in which the substance is added to the list of class I substances.”

At the Seventh Meeting of the Parties (MOP) in 1995, the Parties agreed to adjustments to the methyl bromide control measures and agreed to reduction steps and a 2010 phaseout date for industrialized countries with exemptions for critical uses. At that time, the U.S. continued to have a 2001 phaseout date in accordance with section 602(d) of the CAAA of 1990. At the Ninth MOP in 1997, the Parties agreed to further adjustments to the phaseout schedule for methyl bromide in industrialized countries, with reduction steps leading to a 2005 phaseout. The Parties also established a phaseout date of 2015 for developing (Article 5) countries.

In October 1998, the U.S. Congress amended the Clean Air Act to prohibit the termination of production of methyl bromide prior to January 1, 2005, to require EPA to align the U.S. phaseout of methyl bromide with the schedule specified under the Protocol, and to authorize EPA to provide certain exemptions. These amendments were contained in Section 764 of the 1999 Omnibus Consolidated and Emergency Supplemental Appropriations Act (Pub. L. 105-277, October 21, 1998) and were codified in section 604 of the CAA, 42 U.S.C. 7671c. The amendment that specifically addresses the critical use exemption appears at section 604(d)(6), 42 U.S.C. 7671c(d)(6). EPA revised the phaseout schedule for methyl bromide production and consumption in a final rulemaking on November 28, 2000 (65 FR 70795), which allowed for the phased reduction in methyl bromide consumption specified under the Protocol and extended the phaseout to 2005 while creating a placeholder for critical use exemptions. EPA again amended the regulations to allow for an exemption for quarantine and preshipment (QPS) purposes on July 19, 2001 (66 FR 37751), with an interim final rule and with a final rule on January 2, 2003 (68 FR 238).

On December 23, 2004 (69 FR 76982), EPA published a rule (the “Framework Rule”) that established the framework for the critical use exemption; set forth a list of approved critical uses for 2005; and specified the amount of methyl bromide that could be supplied in 2005 from stocks and new production or import to meet the needs of approved critical uses. EPA has subsequently published rules applying the critical use exemption framework for each of the control periods from 2006 to 2011. Under the authority of section 604(d)(6) of the CAA, this action authorizes the uses that qualify as approved critical uses in 2012 and the amount of methyl bromide that may be produced, imported, or supplied from inventory to satisfy those uses.

This action reflects Decision XXII/6, taken at the Twenty-Second Meeting of the Parties in November 2010. In accordance with Article 2H(5) of the Montreal Protocol, the Parties have issued several Decisions pertaining to the critical use exemption. These include Decisions IX/6 and Ex. I/4, which set forth criteria for review of critical uses. The status of Decisions is addressed in NRDC v. EPA, (464 F.3d 1, DC Cir. 2006) and in EPA's “Supplemental Brief for the Respondent,” filed in NRDC v. EPA and available in the docket for this action. In this rule on critical uses for 2012, EPA is honoring commitments made by the United States in the Montreal Protocol context.

Article 2H of the Montreal Protocol established the critical use exemption provision. At the Ninth Meeting of the Parties in 1997 the Parties agreed to criteria for the exemption, as contained in Decision IX/6. In that Decision, the Parties agreed that “a use of methyl bromide should qualify as `critical' only if the nominating Party determines that: (i) The specific use is critical because the lack of availability of methyl bromide for that use would result in a significant market disruption; and (ii) there are no technically and economically feasible alternatives or substitutes available to the user that are acceptable from the standpoint of environment and public health and are suitable to the crops and circumstances of the nomination.” EPA promulgated these criteria in the definition of “critical use” at 40 CFR 82.3.

In response to EPA's request for critical use exemption applications published in the Federal Register on May 20, 2009 (74 FR 23705), applicants provided data on the technical and economic feasibility of using alternatives to methyl bromide. Applicants also submitted data on their use of methyl bromide, research programs into the use of alternatives, and efforts to minimize use and emissions.

EPA's Office of Pesticide Programs reviews the data submitted by applicants, as well as data from governmental and academic sources, to establish whether there are technically and economically feasible alternatives available for a particular use of methyl bromide, and whether there would be a significant market disruption if no exemption were available. In addition, EPA reviews other parameters of the exemption applications such as dosage and emissions minimization techniques and applicants' research or transition plans. This assessment process culminates in the development of the U.S. Government's critical use nomination (CUN). The U.S. Department of State has submitted a CUN annually to the United Nations Environment Programme (UNEP) Ozone Secretariat. The Methyl Bromide Technical Options Committee (MBTOC) and the Technology and Economic Assessment Panel (TEAP), which are advisory bodies to Parties to the Montreal Protocol, review the CUNs of the Parties and make recommendations to the Parties on the nominations. The Parties then take Decisions to authorize critical use exemptions for particular Parties, including how much methyl bromide may be supplied for the exempted critical uses. As required in section 604(d)(6) of the CAA, for each exemption period, EPA consults with the United States Department of Agriculture (USDA) and other departments and institutions of the Federal government that have regulatory authority related to methyl bromide. EPA also provides an opportunity for public comment on the amounts of methyl bromide that the agency is proposing to exempt for critical uses and the uses that the agency is proposing as approved critical uses.

Additional information on the domestic review process and methodology employed by the Office of Pesticide Programs is available in a detailed memorandum titled “Development of 2003 Nomination for a Critical Use Exemption for Methyl Bromide for the United States of America,” contained in the docket for this rulemaking. While the particulars of the data continue to evolve and administrative matters are further streamlined, the technical review itself remains rigorous with careful consideration of new technical and economic conditions.

On January 22, 2010, the U.S. Government (USG) submitted the eighth CUN to the Ozone Secretariat of the UNEP. This nomination contained the request for 2012 critical uses. In February 2010, MBTOC sent questions to the USG concerning technical and economic issues in the 2012 nomination. The USG transmitted responses to MBTOC in March, 2010. These documents, together with reports by the advisory bodies noted above, are in the public docket for this rulemaking. The critical uses and allocation amounts reflect the analysis contained in those documents.

The December 23, 2004, Framework Rule (69 FR 76982) established the framework for the critical use exemption program in the U.S., including definitions, prohibitions, trading provisions, and recordkeeping and reporting obligations. The preamble to the Framework Rule included EPA's determinations on key issues for the critical use exemption program.

An approved critical user may purchase methyl bromide produced or imported with critical use allowances (CUAs) as well as limited inventories of pre-phaseout methyl bromide, the combination of which constitute the supply of “critical use methyl bromide” intended to meet the needs of agreed critical uses. Since publishing the Framework Rule, EPA has annually promulgated regulations to exempt from the phaseout of methyl bromide specific quantities of production and import for each control period (each calendar year), to determine the amounts that may be supplied from pre-phaseout inventory, and to indicate which uses meet the criteria for the exemption program for that year. See 71 FR 5985 (calendar year 2006), 71 FR 75386 (calendar year 2007), 72 FR 74118 (calendar year 2008), 74 FR 19878 (calendar year 2009), 75 FR 23167 (calendar year 2010), and 76 FR 60736 (calendar year 2011).

Today's action uses the existing regulatory framework to determine critical uses for 2012 and the amounts of critical use allowances (CUAs) and critical stock allowances (CSAs) to be allocated for those uses. A CUA is the privilege granted through 40 CFR part 82 to produce or import 1 kilogram (kg) of methyl bromide for an approved critical use during the specified control period. These allowances expire at the end of the control period and, as explained in the Framework Rule, are not bankable from one year to the next. A CSA is the right granted through 40 CFR part 82 to sell 1 kg of methyl bromide from the remaining inventory of material produced or imported prior to the January 1, 2005, phaseout date for an approved critical use during the specified control period.

The Framework Rule established provisions governing the sale of pre-phaseout inventories for critical uses, including the concept of CSAs and a prohibition on the sale of pre-phaseout inventories for critical uses in excess of the amount of CSAs held by the seller. It also established trading provisions that allow CUAs to be converted into CSAs.

The aggregate amount of pre-phaseout methyl bromide reported as being in inventory at the beginning of 2011 was 1,802,715 kg. As in prior years, the Agency continues to closely monitor CUA and CSA data. As stated in the final 2006 CUE Rule, if an inventory shortage occurs, EPA may consider various options including authorizing the conversion of a limited number of CSAs to CUAs through a rulemaking, bearing in mind the upper limit on U.S. production/import for critical uses.

As explained in the 2008 CUE Rule, EPA intends to continue releasing the aggregate methyl bromide stockpile data reported under the requirements at 40 CFR 82.13 for the end of each control period. If the number of competitors in the industry were to decline appreciably, EPA may revisit the question of whether the aggregate is entitled to treatment as confidential business information and whether to release the aggregate without notice. EPA did not propose to change the treatment of submitted information but welcomes relevant information concerning the composition of the industry. EPA did not receive any information suggesting that the number of companies has declined to the point that EPA should consider treating the aggregate as confidential information. The aggregate information for 2003 through 2011 is available in the docket for this rulemaking.

In Decision XXII/6, taken in November 2010, the Parties to the Protocol agreed “to permit, for the agreed critical-use categories for 2012 set forth in table C of the annex to the present decision for each party, subject to the conditions set forth in the present decision and in decision Ex.I/4 to the extent that those conditions are applicable, the levels of production and consumption for 2012 set forth in table D of the annex to the present decision which are necessary to satisfy critical uses * * *” The following uses are those set forth in table C of the annex to Decision XXII/6 for the United States:

EPA sought comment on the technical analysis contained in the U.S. nomination (available for public review in the docket to this rulemaking), and information regarding any changes to the registration (including cancellation or new registrations), use, or efficacy of alternatives that have transpired after the 2012 U.S. nomination was written. Such information has the potential to alter the technical or economic feasibility of an alternative and could thus cause EPA to modify the analysis that underpins EPA's determination as to which uses and what amounts of methyl bromide qualify for the CUE.

EPA recognizes that as the market for alternatives evolves, the thresholds for what constitutes “significant market disruption” or “technical and economic feasibility” change. EPA received one comment urging the agency to consider greater use of 1,3-D and sulfuryl fluoride than contained in the technical analysis. This comment repeats a comment submitted by the same commenter on the 2010 CUE Rule but does not provide any new data. EPA has considered the commenter's concerns and believes that response contained in the 2010 CUE Rule response to comments, which is available in the docket to this rule, still appropriately addresses this comment.

EPA proposed to modify the table in 40 CFR part 82, subpart A, appendix L to reflect the agreed critical use categories identified in Decision XXII/6. EPA is finalizing the lists of critical uses and critical users as proposed. First, EPA is removing from the list of approved critical users two users that did not submit applications for 2012 and therefore were not included in the U.S. nomination. These users are International Paper and Weyerhaeuser Company in the forest nursery seedlings sector and beans in the commodities sector.

Second, EPA is removing North Carolina and Tennessee strawberry nurseries from the list of approved critical users. Southeast strawberry growers applied for a critical use in 2012. The U.S. did not submit a nomination to UNEP for this use in this geographical location because EPA's technical review found that there are alternatives to methyl bromide for Southeast strawberry nurseries.

Third, EPA is limiting the scope of the approved critical use for the National Pest Management Association's (NPMA) post harvest fumigations. In past control periods, the scope of the NPMA food processing critical use included “processed food, cheese, herbs and spices, and spaces and equipment in associated processing and storage facilities.” MBTOC found that the nomination for food processing facilities was inadequately justified and recommended only cheese storage facilities for consideration by the Parties as a critical use. MBTOC's comments can be found in the May 2010 TEAP Progress Report in the docket to this rule. The Parties' Decision reflects the MBTOC recommendation. EPA is modifying the NPMA critical use to include only “Members of the National Pest Management Association treating cheese storage facilities.”

EPA did not receive any comments objecting to the proposed modifications to the table in 40 CFR part 82, subpart A, appendix L. EPA received three comments agreeing that the proposed critical uses have a continuing need for access to methyl bromide under a 2012 CUE. One commenter stated that the strict application and review process properly limits the use of methyl bromide, given its effect on the stratospheric ozone layer. EPA also received comment that there should be no uses of methyl bromide given its toxicity and effect on the stratospheric ozone layer. EPA disagrees that all methyl bromide use should stop. The CUN addresses the need for methyl bromide for the 2012 critical uses. In addition, the 2012 critical uses were reviewed by the technical bodies to the Ozone Secretariat and authorized by the Parties to the Montreal Protocol. Concerns about the toxicity of methyl bromide are addressed through the pesticide registration program under FIFRA, as well as other authorities, and are outside the scope of this rulemaking. EPA also received one comment questioning some of the limiting critical conditions. This commenter has raised the same points in past CUE rulemakings and EPA believes our responses from past rulemakings, which are included in the docket for this rule, remain appropriate.

EPA is repeating the following clarifications made in previous years for ease of reference. The “local township limits prohibiting 1,3-dichloropropene” are prohibitions on the use of 1,3-dichloropropene products in cases where local township limits on use of this alternative have been reached. In addition, “pet food” under subsection B of Food Processing refers to food for domesticated dogs and cats. Finally, “rapid fumigation” for commodities is when a buyer provides short (two working days or fewer) notification for a purchase or there is a short period after harvest in which to fumigate and there is limited silo availability for using alternatives.

Table C of the annex to Decision XXII/6 lists critical uses and amounts agreed to by the Parties to the Montreal Protocol. When added together, the total authorization for 2012 is 1,022,826 kg, which is equivalent to 4.0% of the U.S. 1991 methyl bromide consumption baseline. The maximum amount of new production or import authorized by the Parties is 922,826 kg (3.6% of baseline) as set forth in Table D of the annex to Decision XXII/6. The difference between the total authorization and the authorized amount of new production is 100,000 kg (0.4% of baseline), which is the minimum that the Parties expect the U.S. to use from pre-phaseout inventory on critical uses.

EPA is finalizing the amount of new production and import discussed in the proposed rule. With this final rule, EPA is allocating 759,744 kg (3.0% of baseline) of new production and import of methyl bromide for critical uses for 2012. EPA is also allocating 263,082 kg (1.0% of baseline) in the form of critical stock allowances for sale of pre-phaseout inventory for critical uses in 2012.

In the proposed rule, EPA used the methodology established in the 2008 CUE Rule to determine the level of “available stocks,” from which the CSAs are calculated. At the time of the proposed rule, EPA estimated that 263,082 kg of pre-phaseout inventory would be “available” for use in 2012. Therefore, EPA proposed allocating 263,082 kg of critical stock allowances for 2012. Using the calculation described in the proposed rule, EPA then proposed a CUA amount of 759,744 kg.

Due to the timing of the 2012 CUE rulemaking, EPA issued a No Action Assurance letter December 21, 2011. This letter allowed critical use allowance holders to continue producing and importing methyl bromide beyond December 31, 2011, in the absence of allowances, subject to certain conditions. The No Action Assurance allows for the production and import of 379,872 kg and the sale of 131,541 kg from pre-phaseout inventory for critical uses. The No Action Assurance levels were half the amounts contained in the proposed rule to allow for changes to the final rule after new inventory data were received.

At the end of February, distributors reported to EPA the amount of pre-phaseout inventory that was still under their ownership as of December 31, 2011. These data show that the pre-phaseout inventory was greater than the estimates that formed the basis of the CSA and CUA amounts in the proposed rule. In the proposed rule, EPA estimated that the inventory would decline to 692,082 kg at the end of 2011. The reported data show that the remaining inventory was actually 1,248,876 kg.

The amount of inventory drawdown was so low compared to EPA's estimates in the proposed rule that if EPA were to apply the framework calculation detailed in the proposed rule to the new data, the new production levels would be less than what is allowed under the No Action Assurance (these calculations are available in the docket for this rulemaking). The No Action Assurance allows for the production and import of 379,872 kg and the sale of 131,541 kg from pre-phaseout inventory for critical uses. Under the framework calculation based on new inventory data, the allocation would be 202,950 kg of new production/import and 819,876 kg of inventory.

Hence, EPA is not finalizing a critical use allocation of 202,950 kg for 2012. This amount would be below what is currently allowed for production/import in the No Action Assurance letter. Regulated entities have been acting on the amounts in the No Action Assurance letter in good faith, and may have already produced up to the allowed level. In addition, EPA never determined that the No Action Assurance levels for CUAs and CSAs would be sufficient for an entire year. When this situation occurred during the development of the 2011 CUE Rule, EPA finalized the new production amount allowed under the No Action Assurance and allocated CSAs up to the full level authorized by the Parties. Were EPA to follow this approach in this 2012 Rule, EPA would finalize 379,872 kg of new production and import and 819,876 kg of critical stock allowances. For the reasons discussed below, EPA is not following this approach but rather is finalizing the amounts discussed in the proposed rule.

An allocation of 202,950 kg, or even 379,872 kg (i.e., an amount consistent with the No Action Assurance) for new production and import would be substantially less than the amount proposed, which was 759,744 kg. These circumstances are substantially different from the 2011 rule, when EPA proposed to authorize 1,500,000 kg of new production, and issued a No Action Assurance for that same amount of new production. While EPA provided the public with an explanation of how it calculated its proposed authorization for CUE, and noted that it might adjust those calculations with new data, EPA believes the results of the methodology using the updated data now available are sufficiently different that additional notice and the opportunity to comment would be warranted before using that data as the basis for a final CUE authorization. At the same time, EPA recognizes that regulated entities, including manufacturers and critical users of methyl bromide, are in need of a final CUE rule for calendar year 2012. EPA did not propose, and is not considering, a total authorization of less than 1,022,826 kg for critical uses in 2012. EPA has weighed the benefit of re-opening for comment the allocation of the total authorization between critical use allowances and critical stock allowances against the time-sensitive need for a CUE authorization for the current calendar year and concluded that re-opening the allocation for comment is not warranted. Accordingly, EPA is finalizing its proposed allocations of 759,744 kg of critical use allowances and 263,082 kg of critical stock allowances for 2012.

EPA received a comment that the calculation mistakenly used the CSA allocation amount from the proposed 2011 CUE rule, not the final rule. When EPA was developing the proposed 2012 rule, the 2011 rule was still not finalized. EPA assumed that the final 2011 rule would allocate 482,333 kg but it actually allocated 555,200 kg of CSAs. The commenter requests that the estimated drawdown calculation be updated. EPA agrees with the commenter that EPA would have used the value from the final 2011 rule, had it been available when EPA was developing the proposed 2012 rule. EPA has used the updated CSA value from the final 2011 rule, as well as updated inventory information, in calculating how the formula used in the proposal would allocate the CUE authorization. However, as noted above, EPA is not basing the allocation in this final rule on that formula.

One commenter objected to EPA's proposal to allocate 759,744 kg for new production or import. The commenter stated that the Parties authorized 922,826 kg for new production and import and that it is arbitrary and capricious for the agency to allocate any amount less than that level of new production. EPA disagrees with the commenter's interpretation of Decision XXII/6. In Table D of Decision XXII/6, the Parties authorized 922,826 kg for new production and import “minus available stocks.” Thus, EPA does not believe it would be consistent with Decision XXII/6 to authorize 922,826 kg for new production and import without considering available stocks. Furthermore, EPA notes, consistent with our position in prior rulemakings, that the Agency is not required to allocate the full amount of authorized new production and consumption. The Parties only agree to “permit” a particular level of production and consumption; they do not—and cannot—mandate that the U.S. authorize this level of production and consumption domestically. Nor does the CAA require EPA to allow the full amount permitted by the Parties. Section 604(d)(6) of the CAA does not require EPA to exempt any amount of production and consumption from the phaseout, but instead specifies that the Agency “may” create an exemption for critical uses, providing EPA with substantial discretion.

When determining the CSA amount for a year, EPA considers what portion of existing stocks is “available” for critical uses. As discussed in prior CUE rulemakings, the Parties to the Protocol recognized in their Decisions that the level of existing stocks may differ from the level of available stocks. Decision XXII/6 states that “production and consumption of methyl bromide for critical uses should be permitted only if methyl bromide is not available in sufficient quantity and quality from existing stocks.” In addition, earlier decisions refer to the use of “quantities of methyl bromide from stocks that the Party has recognized to be available.” Thus, it is clear that individual Parties have the ability to determine their level of available stocks. Decision XXII/6 further reinforces this concept by including the phrase “minus available stocks” as a footnote to the United States' authorized level of production and consumption in Table D. Section 604(d)(6) of the CAA does not require EPA to adjust the amount of new production and import to reflect the availability of stocks; however, as explained in previous rulemakings, making such an adjustment is a reasonable exercise of EPA's discretion under this provision.

One commenter objects to the use of a supply chain factor in determining an amount of “available stocks” that can be used by critical users and requests that EPA require that the inventory be exhausted before allowing any additional new production. The commenter also states that the calculation of the supply chain factor is overly conservative because it assumes a catastrophic loss when production is at the peak. EPA has addressed this comment in prior rulemakings; those responses are available in the docket for this rulemaking.

Another commenter stated that the CSA allocation failed to consider the effect that drawing down the pre-phaseout inventory would have if there is a catastrophic failure in the domestic supply of methyl bromide in future years. EPA believes that the calculation of the supply chain factor (which reflects the level of authorized CUE use as it declines) was adequate consideration of the possibility of a future catastrophic interruption in the domestic supply of methyl bromide. Although EPA is not relying on calculation of a supply chain factor and the formula it proposed to use to allocate CSAs in this final rule, EPA notes that the CSA allocation is lower under this final rule than if EPA had relied on that formula, because more methyl bromide remains in pre-phaseout inventory than anticipated.

Unlike past control periods, all critical use methyl bromide that companies reported to be produced or imported in 2010 was sold to end users. The information reported to EPA is that 1,954,610 kg of critical use methyl bromide was produced or imported. A slightly higher amount than the amount produced or imported was actually sold to end-users in 2010. This additional amount was from distributors selling amounts that were carried over from the 2009 control period. Thus, EPA did not propose to apply any carryover deduction to the new production amount for 2012.

One commenter suggested that the lack of a carryover demonstrates excess demand and that EPA should therefore increase the amount of newly produced or imported material. EPA responds that the agency expects material produced or imported for use in a particular control period to be used in that control period and that there typically should not be a carryover. EPA established the carryover reduction to account for an over allocation or underuse of allowances in a particular control period and avoid any stockpiling of critical use material. The absence of a carryover does not mean that the agency should increase the allocation. EPA's carryover calculation is consistent with the method used in previous CUE rules, and with the method agreed to by the Parties in Decision XVI/6 for calculating column L of the U.S. Accounting Framework. All past U.S. Accounting Frameworks for the methyl bromide critical use exemption are available in the public docket for this rulemaking.

EPA considers new data about alternatives that were not available at the time the U.S. Government submitted the CUN to the Parties and adjusts the allocation for new production and import accordingly. Two alternatives not considered in the 2012 CUN, which was submitted to UNEP in January 2010, may be used in limited quantities in 2012. EPA proposed to not adjust the allocation considering that the uptake of these two alternatives (iodomethane and DMDS) is expected to be minimal in 2012. One commenter agreed that the uptake will be practically nonexistent.

In July 2010, EPA registered Dimethyl Disulfide (DMDS) to control nematodes, weeds, and pathogens in tomatoes, peppers, eggplants, curcurbits, strawberries, ornamentals, forest nursery seedlings, and onions. Twenty-four states have now registered DMDS and registrations are pending in four other states. Even though DMDS is registered in states that grow critical use crops, EPA believes that the uptake of this alternative will be minimal in 2012. Use in the 2011 growing season was small because the product was either not registered in the state or the distribution system was still under development. Furthermore, the manufacturer of DMDS, Arkema, has stated that they are limiting the roll-out of this alternative to ensure proper applicator training and use of odor mitigation practices. As stated in the proposed rule, EPA continues to anticipate that growers will use the 2012 growing season to test the fumigant on limited acreage. Therefore, EPA is not reducing the allocation of allowances based on the uptake of DMDS in 2012.

Second, California registered iodomethane in December of 2010. EPA is unable to estimate uptake of iodomethane in California during 2012 due to uncertainties created by the California label. Specifically, the California label has larger buffer zones and lower use rates than the federal label. EPA does not have efficacy studies at the California label's lower use rates and is uncertain how widely it will be adopted without that data. In addition to the state registration, County Agricultural Commissioners must permit each iodomethane application that occurs within their jurisdiction.

One commenter stated that EPA should not be allocating fewer CUEs than the amount authorized by the Parties given EPA's January 19, 2011, proposal to revoke the tolerances established for sulfuryl fluoride under section 408 of the Federal Food, Drug, and Cosmetic Act (76 FR 3422). This rule is based on the current status of alternatives and is limited to 2012. The proposed tolerance revocation rule includes a staggered implementation scheme so that it is unlikely that any specific revocation will be effective as soon as 2012 (76 FR 3447). Therefore, EPA has not based the allocation amounts for 2012 on any anticipated impacts of that proposal on methyl bromide use.

EPA did not propose to take any other reductions because the 2012 CUN properly applied transition rates for all other alternatives. The TEAP report of October 2010 included reductions in its recommendations for critical use categories based on the transition rates in the 2012 CUN. The TEAP's recommendations were then considered in the Parties' 2012 authorization amounts, as listed in Decision XXII/6. Therefore, transition rates, which account for the uptake of alternatives, have already been applied for authorized 2012 critical use amounts. EPA continues to gather information about methyl bromide alternatives through the CUE application process, and by other means. EPA also continues to support research and adoption of methyl bromide alternatives, and to request information about the economic and technical feasibility of all existing and potential alternatives.

EPA also took comment on an issue raised in the proposed 2011 CUE rule. In that rulemaking, EPA proposed a critical-use allowance allocation of 1,500,000 kg for 2011, given that regulated entities had been acting in good faith on statements made by the agency in a No Action Assurance letter that producers and importers could assume the final allocation would be at least that much. While the total allocation was not affected, the amount of new production was 128,382 kg more than what EPA would have allocated for 2011 had the CSA and CUA amounts been based on the “available stocks” calculation using end of year inventory data. It also means that the critical stock allocation was 128,382 kg less than the amount of “available stocks.” EPA stated in the 2011 proposed rule that the Agency could reduce critical-use allowances for new production and import in the 2012 allocation rule to account for this difference.

EPA took comment on an alternative approach in which EPA would allocate 631,362 kg (2.5% of baseline) of CUAs for 2012. This amount is 128,382 kg less than the proposed CUA amount. The CSA amount could remain either at 263,082 kg or be increased to 391,464 kg to reflect the lower CSA allocation in 2011. The total allocation for 2012 would be 894,444 kg or 1,022,826 kg depending on how many CSAs are issued under this alternative. EPA did not propose this alternative as the lead approach because the number of CUAs in the 2011 rule did not exceed the Parties' production authorization for 2011 and the total CUE amount for 2011 was unaffected. EPA received one comment in opposition to this approach. The commenter states that the 2011 CUA allocation was proper because it maintained consistency with the No Action Assurance letter and that any “over allocation” in 2011 will self-correct in future rules. First, any additional new production would reduce the need to use CSAs, which will result in more “available stocks” in next year's CUE calculation and therefore a higher CSA allocation. Second, any unused allocation will be captured in EPA's calculation of carryover. After considering this issue, EPA is not finalizing the alternative allocation approach in the final rule.

EPA received one comment that the rulemaking process typically is not completed in a timely manner. Methyl bromide producers, importers, and distributers need advance notice of their allowances to ensure material can be manufactured or imported and ultimately distributed to growers to meet spring fumigation schedules. The commenter requests that EPA develop a more efficient process to promulgate the critical use rule so that it is in effect before the control period begins. EPA notes that the Parties to the Montreal Protocol take their decision to authorize critical uses typically a year before the control period at issue. This schedule, coupled with the Clean Air Act section 604(d)(6) requirement to provide notice and the opportunity for public comment, makes it difficult for EPA to complete the rule in advance of the control period, since the Decisions of the Parties are central to the development of the rule. However, EPA acknowledges that promulgating the rule after the start of the control period is not ideal. EPA will consider means of streamlining the Critical Use Exemption rulemaking in the future so that the rule can be issued prior to the start of the control period.

EPA is allocating critical use allowances for new production or import of methyl bromide up to the amount of 759,744 kg (3.0% of baseline) as shown in the table in 40 CFR 82.8(c)(1). These allowances expire at the end of the control period and, as explained in the Framework Rule, are not bankable from one year to the next. The CUA allocation is subject to the trading provisions at 40 CFR 82.12, which are discussed in section V.G. of the preamble to the Framework Rule (69 FR 76982).

Paragraph 3 of Decision XXII/6 states “that Parties shall endeavor to license, permit, authorize or allocate quantities of critical-use methyl bromide as listed in tables A and C of the annex to the present decision.” This is similar to language in prior Decisions authorizing critical uses. The language from these Decisions calls on Parties to endeavor to allocate critical use methyl bromide on a sector basis. EPA's Framework Rule proposed several options for allocating critical use allowances, including a sector-by-sector approach. The agency evaluated the various options based on their economic, environmental, and practical effects. After receiving comments, EPA determined that a lump-sum, or universal, allocation, modified to include distinct caps for pre-plant and post-harvest uses, was the most efficient and least burdensome approach that would achieve the desired environmental results, and that a sector-by-sector approach would pose significant administrative and practical difficulties.

One commenter states that EPA should allocate specifically to each of the Critical Use Categories as authorized by the Parties. The EPA's “lump sum” approach, the commenter asserts, does not guarantee that critical users have access to methyl bromide and it instead allows those with the greatest ability to pay to garner methyl bromide away from other users with approved critical needs. Furthermore, developers of methyl bromide alternatives need assurance that methyl bromide will eventually exit a particular use segment. Allowing an open market for methyl bromide allocation is an economic disincentive for anyone developing alternatives. At a minimum, this commenter supports distinguishing between pre-plant and post-harvest sectors as EPA currently does. EPA received a separate comment favoring the universal allocation approach over a sector-specific allocation. The commenter states that by allocating up to 14 types of allowances the sector specific approach would be overly complex to administer, would create problems for distributors, and would spread allowances among too many producer/importers and distributors. EPA has addressed these comments in prior rulemakings; those responses are available in the docket for this rulemaking.

For the reasons discussed in the preamble to the 2009 CUE rule (74 FR 19894), the agency believes that under the universal allocation approach adopted in the Framework Rule, the actual critical use will closely follow the sector breakout listed in the Parties' decisions.

The 2004 Framework Rule (69 FR 52366) established the provisions governing the sale of pre-phaseout inventories for critical uses, including the concept of CSAs and a prohibition on the sale of pre-phaseout inventories for critical uses in excess of the amount of CSAs held by the seller. In addition, the Framework Rule further took pre-phaseout inventories into account through the trading provisions that allow CUAs to be converted into CSAs.

A preambular paragraph to Decision XXII/6 states “that parties should reduce their stocks of methyl bromide retained for employment in critical-use exemptions to a minimum in as short a time period as possible.” EPA notes that the U.S. Government does not retain pre-phaseout inventory. Pre-phaseout inventory is held by private companies that may sell or distribute it for any use that meets the labeling under FIFRA, whether critical or not. EPA believes it is responsibly managing the stocks of pre-phaseout inventory through the CUE authorization process. Prior rulemakings have generally allocated higher amounts from stocks than the minimum set forth in the Parties' decisions. Through the careful management, aggregate amounts have been reduced by 93% since the end of 2003. In addition, EPA has undertaken a broader use of its regulatory authorities under FIFRA to progressively limit U.S. domestic use of stocks to critical uses. While it is not possible to predict the exact date by which all remaining pre-2005 inventory will be exhausted, under the FIFRA process any small remaining quantities in 2015 will likely be entirely devoted to uses that have been identified as critical under the process developed since 2005 to address critical needs of developed countries. EPA is allocating CSAs for the 2012 control period in the amount of 263,082 kg (1.0% of baseline). This is more than the difference between the total U.S. CUE amount approved by the Parties and the permitted level of U.S. production and consumption. For 2012, that difference is 100,000 kg (0.4% of baseline).

One commenter stated that the Agency is incorrect to assume that 263,082 kg of pre-phaseout inventory will be available for critical uses in 2012. Instead, the commenter stated that EPA should allocate only 100,000 kg from stocks. The commenter says that the distributors that own stocks are free to sell them for any purpose, including for non-CUE uses, and that EPA cannot control how or whether inventory is sold. EPA agrees that the allocation system allows distributors of inventory to respond to market conditions instead of requiring them to sell inventory to critical users. EPA issues CSAs as a mechanism to track the use of stocks for critical uses. Under section 82.4(p), stocks may not be sold for use on critical uses if the seller does not hold the corresponding amount of CSAs. Critical users may purchase either newly produced or imported critical use methyl bromide or stocks sold through the expenditure of CSAs. EPA chose this approach, at least in part, to promote market flexibility and efficiency. EPA's formula for calculating the amount of “available stocks” contains a variable representing the drawdown of pre-phaseout inventory prior to the beginning of the relevant control period. EPA has attempted to estimate the amounts of pre-phaseout inventory expected to be sold to critical and non-critical users. EPA recognizes that its estimates have become increasingly inexact in characterizing actual drawdown of pre-phaseout inventory, as the amounts in inventory have declined over time. EPA intends to consider the adequacy of using this formula to assess “available stocks” in a future action. However, the fact that distributors can choose to sell to non-critical users does not necessarily mean that the inventory is largely unavailable to critical users. In fact, regulatory changes under the FIFRA labeling requirements discussed above will likely mean that remaining stocks are increasingly only available to U.S. critical uses. End of year reported data show that the inventory on December 31, 2011, was 1,248,876 kg. EPA expects that holders of pre-phaseout inventory will be able to expend the full amount of CSA allocations to satisfy the needs of critical users.

One commenter also stated that inventory was disproportionately distributed among fewer distributors and thus is unavailable to critical users. EPA collects information annually on the number of companies that hold inventory. These data support the comment that some companies no longer maintain any pre-phaseout inventory. Recent mergers have also resulted in fewer companies holding pre-phaseout inventory. However, there has not been a significant change in the overall geographic distribution of inventory. It is still held by companies in large amounts in both California and the Southeast, the two largest markets for critical use methyl bromide. EPA will continue to consider the question of availability of stocks in light of declining inventory and distributors in future actions. However, as noted above EPA believes that holders of pre-phaseout inventory will be able to expend the full amount of CSA allocations in 2012 to satisfy the needs of critical users.

EPA's allocation of CSAs is based on each company's proportionate share of the aggregate inventory. In 2006, the United States District Court for the District of Columbia upheld EPA's treatment of company-specific methyl bromide inventory information as confidential. NRDC v. Leavitt, 2006 WL 667327 (D.D.C. March 14, 2006). Therefore, the documentation regarding company-specific allocation of CSAs is in the confidential portion of the rulemaking docket and the individual CSA allocations are not listed in the table in 40 CFR 82.8(c)(2). EPA notes that it is modifying the table in 40 CFR 82.8(c)(2) to reflect the recent merger of three methyl bromide distributors who are also critical stock allowance holders. The revised table removes the individual entries for Hendrix & Dail, Hy-Yield Products, and Reddick Fumigants and adds an entry for TriEst Ag Group, Inc. EPA will inform the listed companies of their CSA allocations in a letter following publication of the rule.

Paragraphs 2 and 5 of Decision XXII/6 request Parties to ensure that the conditions or criteria listed in Decisions Ex. I/4 and IX/6, paragraph 1, are applied to exempted critical uses for the 2012 control period. A discussion of the agency's application of the criteria in paragraph 1 of Decision IX/6 appears in sections V.A., V.D., V.E., and V.G. of this preamble. EPA has solicited comments on the technical and economic basis for determining that the uses listed in this rule meet the criteria of the critical use exemption. The CUNs detail how each proposed critical use meets the criteria listed in paragraph 1 of Decision IX/6, apart from the criterion located at (b)(ii), as well as the criteria in paragraphs 5 and 6 of Decision Ex. I/4.

The criterion in Decision IX/6(1)(b)(ii), which refers to the use of available stocks of methyl bromide, is addressed in sections V.E., V.F., and V.G. of this preamble. The agency has previously provided its interpretation of the criterion in Decision IX/6(1)(a)(i) regarding the presence of significant market disruption in the absence of an exemption, and EPA refers readers to the 2006 CUE rule (71 FR 5989) as well as to the memo in the docket titled “Development of 2003 Nomination for a Critical Use Exemption for Methyl Bromide for the United States of America” for further elaboration.

The remaining considerations are addressed in the nomination documents including: the lack of available technically and economically feasible alternatives under the circumstance of the nomination; efforts to minimize use and emissions of methyl bromide where technically and economically feasible; the development of research and transition plans; and the requests in Decision Ex. I/4(5) and (6) that Parties consider and implement MBTOC recommendations, where feasible, on reductions in the critical use of methyl bromide and include information on the methodology they use to determine economic feasibility.

Some of these criteria are evaluated in other documents as well. For example, the U.S. has considered the adoption of alternatives and research into methyl bromide alternatives, criterion (1)(b)(iii) in Decision IX/6, in the development of the National Management Strategy submitted to the Ozone Secretariat in December 2005, and updated in October 2009. The National Management Strategy addresses all of the aims specified in Decision Ex.I/4(3) to the extent feasible and is available in the docket for this rulemaking.

EPA received one comment that the Agency should adjust production and import levels in the 2012 CUE Rule to account for research amounts. EPA received a similar comment on the 2011 CUE Rule. The commenter implied that EPA had a previous policy of adjusting the production and import level upward to provide an allocation for research. This is not an accurate characterization of EPA's policy. Prior to 2010, the U.S. Nomination did contain a separate amount for research. While the Parties approved research as a critical use, their decisions encouraged the use of inventory to meet critical research needs. In the corresponding CUE rules, EPA responded to the Parties' decisions by reducing the new production/import amounts by the research amount, leaving the research portion of the total critical use exemption to be met through the use of CSAs.

In the proposed rule, EPA discussed a supplemental critical use nomination of 2,576 kg for research activities in 2012. This nomination was to have been discussed at the Meeting of the Parties in November 2011. EPA proposed to increase the final CSA allocation by up to 2,576 kg after consideration of the action taken by the Parties in November 2011 and comments on research needs. However, prior to the Meeting of the Parties, the U.S. Government withdrew the supplemental nomination. Therefore, EPA is not increasing the final CSA allocation. Nonetheless, the 2012 nomination and the decision the Parties took in 2010 are broad enough to cover both research and non-research uses. As discussed in the preamble to the 2010 CUE rule (75 FR 23179), research is a key element of the critical use process. Research on the crops shown in the table in Appendix L to subpart A remains a critical use of methyl bromide. While researchers may continue to use newly produced material for field, post-harvest, and emission minimization studies requiring the use of methyl bromide, EPA encourages researchers to use pre-phaseout inventory purchased through the expenditure of CSAs. EPA also encourages distributors to make inventory available to researchers, to promote the continuing effort to assist growers to transition critical use crops to alternatives.

Previous decisions have stated that Parties shall request critical users to employ emission minimization techniques such as virtually impermeable films, barrier film technologies, deep shank injection and/or other techniques that promote environmental protection, whenever technically and economically feasible. One commenter asks EPA to require emissions minimization techniques rather than simply encourage them. EPA notes that, although EPA considers application rates in determining CUAs, requiring specific emissions minimization techniques would be outside the scope of the proposed rule. EPA developed a comprehensive strategy for risk mitigation through the 2006 Reregistration Eligibility Decision (RED) for methyl bromide, which is implemented through restrictions on how methyl bromide products can be used. This approach does require that methyl bromide labels include directions that treated sites be tarped except for California orchard replant where EPA instead requires deep (18 inches or greater) shank applications. The RED also incorporated incentives for applicators to use high-barrier tarps, such as virtually impermeable film (VIF), by allowing smaller buffer zones around those sites. In addition to minimizing emissions, use of high-barrier tarps has the benefit of providing pest control at lower application rates. The amount of methyl bromide nominated by the United States reflects the lower application rates necessary when using high-barrier tarps, where such tarps are allowed.

EPA will continue to work with the U.S. Department of Agriculture—Agricultural Research Service (USDA-ARS) to promote emission reduction techniques. The federal government has invested substantial resources into best practices for methyl bromide use, including emission reduction practices. USDA-ARS has a national outreach effort to publicize the best practices.

Users of methyl bromide should continue to make every effort to minimize overall emissions of methyl bromide to the extent consistent with State and local laws and regulations. EPA also encourages researchers and users who are successfully utilizing such techniques to inform EPA of their experiences and to provide such information with their critical use applications.

Under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993), this final rule is a “significant regulatory action” because it was deemed to raise novel legal or policy issues. Accordingly, EPA submitted this action to the Office of Management and Budget (OMB) for review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011) and any changes made in response to interagency recommendations have been documented in the docket for this action.

This action does not impose any new information collection burden. The application, recordkeeping, and reporting requirements have already been established under previous critical use exemption rulemakings and this action does not change any of those existing requirements. The Office of Management and Budget (OMB) has previously approved the information collection requirements contained in the existing regulations at 40 CFR part 82 under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and has assigned OMB control number 2060-0482. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9.

The 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 this rule on small entities, small entity is defined as: (1) A small business as defined by the Small Business Administration's regulations at 13 CFR 121.201 (see Table below); (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; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.

Agricultural producers of minor crops and entities that store agricultural commodities are categories of affected entities that contain small entities. This rule only affects entities that applied to EPA for an exemption to the phaseout of methyl bromide for 2012. In most cases, EPA received aggregated requests for exemptions from industry consortia. On the exemption application, EPA asked consortia to describe the number and size distribution of entities their application covered. EPA estimated that 3,218 entities petitioned EPA for an exemption for the 2005 control period. EPA revised this estimate in 2011 down to 1,800 end users of critical use methyl bromide. EPA believes that the number will continue to decline as growers stop applying for critical uses. Since many applicants did not provide information on the distribution of sizes of entities covered in their applications, EPA estimated that, based on the above definition, between one-fourth and one-third of the entities may be small businesses. In addition, other categories of affected entities do not contain small businesses based on the above description.

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 proposed rule on small entities.” (5 U.S.C. 603-604). 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 a regulatory burden, or otherwise has a positive economic effect on all of the small entities subject to the rule. Since this rule exempts methyl bromide for approved critical uses after the phaseout date of January 1, 2005, this action confers a benefit to users of methyl bromide. EPA estimates in the Regulatory Impact Assessment found in the docket to this rule that the reduced costs resulting from the de-regulatory creation of the exemption are approximately $22 million to $31 million on an annual basis (using a 3% or 7% discount rate respectively). These reduced costs are dramatic due to the high value of methyl bromide for crop production and agriculture related activities. We have therefore concluded that this rule would relieve regulatory burden for all 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. Instead, this action provides an exemption for the manufacture and use of a phased out compound and would not impose any new requirements on any entities. 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 action does not have federalism implications. 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. This rule is expected to affect producers, suppliers, importers, and exporters and users of methyl bromide. Thus, Executive Order 13132 does not apply to this rule. In the spirit of Executive Order 13132, and consistent with EPA policy to promote communications between EPA and State and local governments, EPA specifically solicited comment on this action from State and local officials.

This action does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). This rule does not significantly or uniquely affect the communities of Indian tribal governments nor does it impose any enforceable duties on communities of Indian tribal governments. Thus, Executive Order 13175 does not apply to this action. EPA specifically solicited additional comment on this action from tribal officials.

EPA interprets EO 13045 (62 F.R. 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 EO has the potential to influence the regulation. This action is not subject to EO 13045 because it does not establish an environmental standard intended to mitigate health or safety risks.

This rule is not a “significant energy action” as defined in Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)) because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. This rule does not pertain to any segment of the energy production economy nor does it regulate any manner of energy use. Therefore, we have concluded that this rule is not likely to have any adverse energy effects.

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 rulemaking 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 rule does not have disproportionately high and adverse human health or environmental effects on minority or low-income populations, because it affects the level of environmental protection equally 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. Any ozone depletion that results from this rule will impact all affected populations equally because ozone depletion is a global environmental problem with environmental and human effects that are, in general, equally distributed across geographical regions of the United States.

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 not a “major rule” as defined by 5 U.S.C. 804(2). This rule will be effective May 17, 2012.

For the reasons stated in the preamble, 40 CFR Part 82 is amended as follows:

A. What is codification?

Codification is the process of placing a State's statutes and regulations that comprise the State's authorized hazardous waste management program into the Code of Federal Regulations (CFR). Section 3006(b) of RCRA, as amended, allows the Environmental Protection Agency (EPA) to authorize State hazardous waste management programs to operate in lieu of the Federal hazardous waste management regulatory program. The EPA codifies its authorization of State programs in 40 CFR part 272 and incorporates by reference State statutes and regulations that the EPA will enforce under sections 3007 and 3008 of RCRA and any other applicable statutory provisions.

The incorporation by reference of State authorized programs in the CFR should substantially enhance the public's ability to discern the current status of the authorized State program and State requirements that can be Federally enforced. This effort provides clear notice to the public of the scope of the authorized program in each State.

Oklahoma initially received Final authorization effective January 10, 1985, (49 FR 50362) to implement its Base Hazardous Waste Management program. Subsequently, the EPA approved additional program revision applications effective on June 18, 1990 (55 FR 14280), November 27, 1990 (55 FR 39274), June 3, 1991 (56 FR 13411), November 19, 1991 (56 FR 47675), November 29, 1993 (58 FR 50854), December 21, 1994 (59 FR 51116), April 27, 1995 (60 FR 2699), March 14, 1997 (62 FR 12100), July 14, 1998 (63 FR 23673), November 23, 1998 (63 FR 50528), February 8, 1999 (63 FR 67800), March 30, 2000 (65 FR 16528), July 10, 2000 (65 FR 29981) March 5, 2001 (66 FR 28), June 9, 2003 (68 FR 17308), April 6, 2009 (74 FR 5994), and May 6, 2011 (76 FR 18927). The EPA incorporated by reference Oklahoma's then authorized hazardous waste program effective December 13, 1993 (58 FR 52679), July 14, 1998 (63 FR 23673), October 25, 1999 (64 FR 46567), October 27, 2003 (68 FR 51488), and August 27, 2010 (75 FR 36546). In this document, the EPA is revising Subpart LL of 40 CFR part 272 to include the authorization revision actions effective April 6, 2009 (74 FR 5994) and June 6, 2011 (76 FR 18927).

The purpose of this Federal Register document is to codify Oklahoma's base hazardous waste management program revisions RCRA Clusters XVII through XVIII. The EPA provided notices and opportunity for comments on the Agency's decisions to authorize the Oklahoma program, and the EPA is not now reopening the decisions, nor requesting comments, on the Oklahoma authorizations as published in the Federal Register notices specified in Section B of this document.

This document incorporates by reference Oklahoma's hazardous waste statutes and regulations and clarifies which of these provisions are included in the authorized and Federally enforceable program. By codifying Oklahoma's authorized program and by amending the Code of Federal Regulations, the public will be more easily able to discern the status of Federally approved requirements of the Oklahoma hazardous waste management program.

The EPA is incorporating by reference the Oklahoma authorized hazardous waste program in subpart LL of 40 CFR part 272. Section 272.1851 incorporates by reference Oklahoma's authorized hazardous waste statutes and regulations. Section 272.1851 also references the statutory provisions (including procedural and enforcement provisions) which provide the legal basis for the State's implementation of the hazardous waste management program, the Memorandum of Agreement, the Attorney General's Statements and the Program Description, which are approved as part of the hazardous waste management program under Subtitle C of RCRA.

The EPA retains its authority under statutory provisions, including but not limited to, RCRA sections 3007, 3008, 3013 and 7003, and other applicable statutory and regulatory provisions to undertake inspections and enforcement actions and to issue orders in authorized States. With respect to these actions, the EPA will rely on Federal sanctions, Federal inspection authorities, and Federal procedures rather than any authorized State analogues to these provisions. Therefore, the EPA is not incorporating by reference such particular, approved Oklahoma procedural and enforcement authorities. Section 272.1851(c)(2) of 40 CFR lists the statutory provisions which provide the legal basis for the State's implementation of the hazardous waste management program, as well as those procedural and enforcement authorities that are part of the State's approved program, but these are not incorporated by reference.

The public needs to be aware that some provisions of Oklahoma's hazardous waste management program are not part of the Federally authorized State program. These non-authorized provisions include:

(1) Provisions that are not part of the RCRA subtitle C program because they are “broader in scope” than RCRA subtitle C (see 40 CFR 271.1(i));

(2) Federal rules for which Oklahoma is not authorized, but which have been incorporated into the State regulations because of the way the State adopted Federal regulations by reference.

State provisions that are “broader in scope” than the Federal program are not part of the RCRA authorized program and the EPA will not enforce them. Therefore, they are not incorporated by reference in 40 CFR part 272. For reference and clarity, 40 CFR 272.1851(c)(3) lists the Oklahoma regulatory provisions which are “broader in scope” than the Federal program and which are not part of the authorized program being incorporated by reference. “Broader in scope” provisions cannot be enforced by the EPA; the State, however, may enforce such provisions under State law.

Oklahoma has adopted but is not authorized for the Federal rules published in the Federal Register on October 5, 1990 (55 FR 40834); February 1, 1991 (56 FR 3978); February 13, 1991 (56 FR 5910); April 2, 1991 (56 FR 13406); May 1, 1991 (56 FR 19951); December 23, 1991 (56 FR 66365); June 29, 1995 (60 FR 33912), May 26, 1998 (63 FR 28556), June 14, 2005 (70 FR 34538), August 1, 2005 (70 FR 44150). Therefore, these Federal amendments included in Oklahoma's adoption by reference at 252:205-3-2(b) through 252:205-3-2(m) of the Oklahoma Administrative Code, are not part of the State's authorized program and are not part of the incorporation by reference addressed by this Federal Register document.

With respect to any requirement pursuant to the Hazardous and Solid Waste Amendments of 1984 (HSWA) for which the State has not yet been authorized, the EPA will continue to enforce the Federal HSWA standards until the State is authorized for these provisions.

The EPA is not amending 40 CFR part 272 to include HSWA requirements and prohibitions that are implemented by the EPA. Section 3006(g) of RCRA provides that any HSWA requirement or prohibition (including implementing regulations) takes effect in authorized and not authorized States at the same time. A HSWA requirement or prohibition supersedes any less stringent or inconsistent State provision which may have been previously authorized by the EPA (50 FR 28702, July 15, 1985). The EPA has the authority to implement HSWA requirements in all States, including authorized States, until the States become authorized for such requirement or prohibition. Authorized States are required to revise their programs to adopt the HSWA requirements and prohibitions, and then to seek authorization for those revisions pursuant to 40 CFR part 271.

Instead of amending the 40 CFR part 272 every time a new HSWA provision takes effect under the authority of RCRA section 3006(g), the EPA will wait until the State receives authorization for its analog to the new HSWA provision before amending the State's 40 CFR part 272 incorporation by reference. Until then, persons wanting to know whether a HSWA requirement or prohibition is in effect should refer to 40 CFR 271.1(j), as amended, which lists each such provision.

Some existing State requirements may be similar to the HSWA requirement implemented by the EPA. However, until the EPA authorizes those State requirements, the EPA can only enforce the HSWA requirements and not the State analogs. The EPA will not codify those State requirements until the State receives authorization for those requirements.

The Office of Management and Budget (OMB) has exempted this action from the requirements of Executive Order 12866 (58 FR 51735, October 4, 1993), and therefore this action is not subject to review by OMB. The reference to Executive Order 13563 (76 FR 3821, January 21, 2011) is also exempt from review under Executive order 12866 (56 FR 51735, October 4, 1993). This rule incorporates by reference Oklahoma's authorized hazardous waste management regulations and imposes no additional requirements beyond those imposed by State law. Accordingly, I certify that this action 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 merely incorporates by reference certain existing State hazardous waste management program requirements which the EPA already approved under 40 CFR part 271, and with which regulated entities must already comply, 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. 104B-4).

This action 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 (64 FR 43255, August 10, 1999), because it merely incorporates by reference existing authorized State hazardous waste management program requirements without altering the relationship or the distribution of power and responsibilities established by RCRA. This action also does not have Tribal implications within the meaning of Executive Order 13175 (65 FR 67249, November 6, 2000).

This action also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant and it does not make decisions based on environmental health or safety risks. This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001), because it is not a significant regulatory action under Executive Order 12866.

The requirements being codified are the result of Oklahoma's voluntary participation in the EPA's State program authorization process under RCRA Subtitle C. 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. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, the EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. The EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. 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. 801 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The EPA will submit a report containing this document 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 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 action will be effective July 16, 2012.

For the reasons set forth in the preamble, 40 CFR part 272 is amended as follows:

I. Background

In Federal Register Doc. 2012-6594 of March 23, 2012 (77 FR 17220-17252), there was a technical error that is identified and corrected in the “Correction of Error” section below. The provision in this correction document is effective as if it had been included in the document published on March 23, 2012. Accordingly, the correction is effective on May 22, 2012.

On page 17248, we inadvertently made an incorrect cross reference in the regulations text at § 153.220(d). We are correcting the cross reference from “§ 153.210(a)(2)(ii)” to read “§ 153.210(a)(2)(iii)” to specify that if a State contracts with more than one applicable reinsurance entity, the State must notify HHS in the manner and timeframe specified by HHS of the percentage of reinsurance contributions received from HHS for the State to be allocated to each applicable reinsurance entity.

We ordinarily publish a notice of proposed rulemaking in the Federal Register to provide a period for public comment before the provisions of a rule take effect in accordance with section 553(b) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). However, we can waive this notice and comment procedure if the Secretary finds, for good cause, that the notice and comment process is impracticable, unnecessary, or contrary to the public interest, and incorporates a statement of the finding and the reasons therefore in the notice.

Section 553(d) of the APA ordinarily requires a 30-day delay in effective date of final rules after the date of their publication in the Federal Register . This 30-day delay in effective date can be waived, however, if an agency finds there is good cause to do so, and the agency incorporates a statement of the findings and its reasons in the rule issued.

This document merely corrects technical and typographic errors in the Health Insurance Premium Stabilization final rule that was published on March 23, 2012 and becomes effective on May 22, 2012. The changes are not substantive changes to the standards set forth in the final rule. Therefore, we believe that undertaking further notice and comment procedures to incorporate this correction and delay the effective date for this change is unnecessary. In addition, we believe it is important for the public to have the correct information as soon as possible, and believe it is contrary to the public interest to delay the dissemination of it. For the reasons stated above, we find there is good cause to waive notice and comment procedures and the 30-day delay in the effective date for this correction notice.

This is a summary of the Commission's Third Memorandum Opinion and Order, ET Docket No. 04-186 and 02-380, FCC 12-36, adopted April 4, 2012 and released April 5, 2012. The full text of this document is available for inspection and copying during normal business hours in the FCC Reference Center (Room CY-A257), 445 12th Street SW., Washington, DC 20554. The complete text of this document also may be purchased from the Commission's copy contractor, Best Copy and Printing, Inc., 445 12th Street SW., Room CY-B402, Washington, DC 20554. The full text may also be downloaded at: www.fcc.gov. People with Disabilities: To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an email to fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).

1. In this Order, the Commission addressed five petitions for reconsideration of its decisions in the Second Memorandum Opinion and Order (“Second MO&O”), 75 FR 75814, December 6, 2010, in this proceeding and modified its rules in certain respects. In particular, the Commission increased the maximum height above average terrain (HAAT) for sites where fixed devices may operate; modified the adjacent channel emission limits to specify fixed rather than relative levels; and slightly increased the maximum permissible power spectral density (PSD) for each category of TV bands device. These changes will result in decreased operating costs for fixed TVBDs and allow them to provide greater coverage, thus increasing the availability of wireless broadband services in rural and underserved areas without increasing the risk of interference to incumbent services. The Commission also revised and amended several of its rules to better effectuate the Commission's earlier decisions in this docket and to remove ambiguities.

2. In the First Report and Order and Further Notice of Proposed Rule Making in this proceeding, 71 FR 66876, and 71 FR 66897, November 17, 2006, respectively, the Commission allowed fixed unlicensed devices to operate on vacant TV channels, excluding channel 37, and prohibited personal/portable devices from operating on channels 14-20 that are used by public safety operations in some cities. However, it did not adopt final technical rules at that time. In the Second Report and Order in this proceeding, the Commission adopted rules that allow unlicensed devices to operate in the TV bands at locations where frequencies are not in use by licensed services. The TV bands consist of six-megahertz channels designated 2 to 51 in four bands of frequencies in the VHF and UHF regions of the radio spectrum (54-72 MHz, 76-88 MHz, 174-216 MHz, and 470-698 MHz).

3. The Commission permitted two categories of unlicensed devices, fixed and personal/portable unlicensed, to operate in the TV bands. Fixed devices must incorporate a geo-location capability and a means to access a database that provides a list of available TV channels that may be used at their location. Such devices must contact a database to obtain a channel list before operating and re-check the database at least once daily. Fixed devices are permitted to operate with up to one watt transmitter power output and may use an antenna that provides up to 6 dBi of gain. Portable devices can operate either as “Mode I” or “Mode II”. A Mode II device must incorporate similar geo-location and database access capabilities to fixed devices. A Mode I device is not required to incorporate geo-location or database access capabilities but instead obtains the list of available channels on which it can operate from either a fixed or Mode II device that has database access. Personal/portable devices are permitted to operate with up to 100 mW EIRP except when operating on channels adjacent to a TV service, in which case they may operate with up to 40 mW EIRP. The databases used by TV bands devices are established and administered by parties selected by the Commission.

4. In the Second MO&O in this proceeding, the Commission upheld the majority of its prior decisions but made the following changes to the rules that are at issue in one or more of the five petitions for reconsideration that it addressed in this order:

• Restricted fixed TV bands devices from operating at locations where the ground level is more than 76 meters above the average terrain level in the area.

• Eliminated the requirement that TV bands devices that incorporate geo-location and database access must also listen (sense) to detect the signals of TV stations and low power auxiliary service stations (wireless microphones). As part of that change, the Commission also revised the rules in several respects to reflect use of that method as the only means for determining channel availability. These changes include requiring Mode I devices to verify channel availability and Mode II devices to verify their operating location at regular time intervals.

• Modified the rules governing the measurement of adjacent channel emissions.

• Required that information in the TV bands databases be publicly available.

5. The petitions for reconsideration raise the following issues: (1) The height above average terrain (HAAT) limit for TV bands devices; (2) out-of-band emission limits; (3) protection of wireless services on TV channel 52; (4) establishment of a new category of fixed indoor TV bands devices; and (5) the confidentiality of certain information in the TV bands database.

6. The Commission found that in the Second MO&O, it generally established the appropriate balance between providing for operation of TV bands devices that will make new broadband services available to the public while protecting incumbent services in the TV bands from interference. Thus, it upheld the majority of its decisions in the Second MO&O that are addressed in the petitions for reconsideration. The Commission found merit in some of those requests and therefore modified certain rules to enhance TVBD operations, particularly in rural and underserved areas. In particular, it increased the maximum height above average terrain (HAAT) of sites where fixed devices may operate, modified the adjacent channel (out-of-band) emission limits to specify fixed levels, and slightly increased the maximum permissible power spectral density (PSD) for each category of TV bands device. These changes will result in decreased operating costs and greater coverage from fixed TV bands devices that the Commission expects will increase the availability of wireless broadband services in rural and underserved areas. It found that these changes will not increase the risk of interference to incumbent services. The Commission corrected several of its rules to better effectuate the Commission's earlier decisions in this docket and to remove ambiguities.

7. Decision. The Commission modified its rules to establish a maximum HAAT for a fixed device antenna of 250 meters and maintained the limit for fixed device antenna height AGL at 30 meters. The Commission took this action because it found that the current rule, which limits fixed TV bands devices to sites where the ground HAAT is no greater than 76 meters, unnecessarily precludes the operation of fixed TV bands devices at many locations in the country, particularly in rural and other areas that are currently underserved by broadband services. Under the modifications that the Commission adopted, a site with an elevation of up to 220 meters above average terrain could be used with a 30-meter antenna, or a site with a higher elevation above average terrain could be used with a shorter antenna, provided the sum of the site elevation above average terrain and antenna height above ground does not exceed 250 meters. These changes will result in lower costs and greater flexibility for fixed device operators by allowing the use of sites that were previously precluded by the rules and permitting greater coverage from each site. This will increase the availability of wireless broadband services, particularly in rural and underserved areas.

8. The Commission declined to raise the limit for fixed device antenna height AGL to 75 meters. It previously considered and rejected requests to raise this limit in the Second MO&O, noting that the 30-meter height above ground limit was established as a balance between increasing the TV bands device transmission range and the need to minimize the impact on licensed services. While the Commission recognized the argument that an increased antenna height above ground limit could improve TV bands device range in certain circumstances, it found that the Commission appropriately took a conservative approach to minimize the potential for interference to authorized services by limiting the antenna height AGL to 30 meters. It therefore declined to increase this limit at this time. As the Commission previously stated, it could revisit this height limit in the future if experience with TV bands devices indicates they could operate at higher antenna heights without causing interference. Also, the changes the Commission made by removing the 76- meter site HAAT limit and permitting an antenna HAAT of up to 250 meters will serve to increase the coverage of TV bands devices in many instances.

9. Because the range at which interference occurs increases as the antenna height is raised, the Commission made additional changes to offset the increased potential for harmful interference at the higher antenna heights it is permitting. As recommended by the Joint Petitioners, the Commission revised the table of minimum required separation distances between fixed devices and the contours of co-channel and adjacent channel TV stations to specify separation distances for HAAT ranging from less than three meters to a maximum of 250 meters. The Commission found that the Joint Petitioners' recommended separation distances are greater than necessary to provide the level of protection to TV services that the Commission decided to provide. It therefore modified the table as shown.

10. The methodology used by the Joint Petitioners to calculate the required separation distances between TV bands devices and co-channel and adjacent channel TV contours is generally consistent with the methodology described in the Second Report and Order. The Joint Petitioners calculated separation distances from fixed devices with an antenna HAAT of 30 meters and greater in the same manner as the Commission by using the F(50,10) propagation curves in the rules. The Joint Petitioners used the OET TM-91-1 method to calculate separation distances for fixed device antenna heights below 30 meters HAAT because the Commission's propagation curves are undefined for HAAT values below 30 meters. OET TM-91-1 is a model that the Commission uses for calculating signal levels at short distances and low antenna heights above ground. While the Commission used a different propagation model to calculate the separation distances at low antenna heights in the Second Report and Order (the Okumara model), it used the TM-91-1 model in the Second Report and Order to calculate the impact of personal/portable TV bands devices on TV reception at short distances, e.g., up to approximately 1.5 km. Based on its comparison of these models, the Commission found that TM-91-1 is appropriate for calculating signal levels at distances less than 1 km (as well as longer distances), whereas the Okumura model was not designed for use at distances less than 1 km. Thus, the Commission agreed with the Joint Petitioners' suggestion to use the TM-91-1 model to calculate the required separation distances from TV bands devices at antenna heights below 30 meters HAAT where the Commission's propagation curves are undefined.

11. The Commission prohibited fixed devices with an HAAT greater than the current maximum of 106 meters from providing channel lists to Mode I personal/portable devices. This action was necessary because a Mode I device, which does not incorporate a geo-location capability, obtains a list of available channels from a fixed or Mode II device that is determined by the geographic coordinates of those devices. Under the 106 meter limitation, the communication distance between a Mode I device and the fixed or Mode II device that provides a channel list is relatively short, and thus there is a low probability that a Mode I device would operate at a location where its channel list is not valid, i.e., does not meet the minimum separation distances from co-channel and adjacent channels TV stations or other protected services. However, if the fixed device that obtains the channel list for a Mode I device operates with greater HAAT than the current rules permit, the Mode I device could operate at a greater distance from the coordinates of the fixed device where the available channel list was calculated. This will increase the chance that the Mode I device could operate at a location where the channel list is not valid. The Commission therefore required that the TV bands database not provide channel lists for Mode I devices through fixed devices with an antenna HAAT of greater than 106 meters.

12. The Commission did not increase the minimum required separation of one kilometer between wireless microphones and fixed devices operating at a higher HAAT than the current rules allow, because the higher HAAT will not increase fixed device signal strength at a one kilometer distance. The OET TM-91-1 model that is used to calculate signal strength at the distance takes into account radiated power, separation distance, and the antenna height AGL, but is independent of the HAAT. Because the Commission did not increase the maximum fixed device antenna height AGL or radiated power, there will be no increase in signal level at one kilometer. The Commission also did not increase the size of the exclusion zones around receive sites for MVPDs, low power TV or BAS links, because it has no information demonstrating that the existing requirements are insufficient to provide adequate protection at the higher antenna HAAT that it is permitting for fixed devices.

13. In the Second Report and Order, the Commission adopted out-of-band emission limits for TV bands devices to protect other authorized services both inside and outside the TV bands. For emissions that fall in a TV channel adjacent to the operating channel of a TV bands device, the Commission required that these emissions be at least 55 dB below the highest emission in the operating channel, with both the in-band and out-of-band emissions measured with a 100 kHz bandwidth. Emissions that are more than one channel removed from the operating channel must comply with the limits specified in § 15.209 of the rules. These field strength limits, measured at a distance of 3 meters, are 100 microvolts per meter (30-88 MHz), 150 microvolts per meter (88-216 MHz), 200 microvolts per meter (216-960 MHz), and 500 microvolts per meter (above 960 MHz).

14. In the Second MO&O, the Commission modified the limits for emissions that fall in TV channels adjacent to the operating channel. Specifically, it required that in-band emissions be measured within a 6 MHz bandwidth instead of within a 100 kHz bandwidth, and it revised the required level of attenuation from 55 dB to 72.8 dB to compensate for the difference in measurement bandwidths while providing the same level of interference protection. The Commission made these changes to ensure consistency in emission measurements, because the in-band power measured within a 100 kHz bandwidth could vary depending on the bandwidth of the transmitted signal, whereas the total power measured within a 6 MHz bandwidth will be the same regardless of whether the signal fills the entire channel or just part.

15. Decision. The Commission modified the rules for adjacent channel emission limits to specify fixed values, rather than vary the limit relative to the in-band power. Specifically, it adopted a fixed adjacent channel emission limit for each category of TV bands device that is equivalent to the current emission limit for devices operating at maximum power. Devices operating at less than the maximum permitted power will not be required to suppress emissions below the fixed limits. This eliminates the need for a device operating at less than the maximum permitted power to unnecessarily suppress adjacent channel emissions below the levels needed to prevent interference to other services in the TV bands, thus simplifying equipment design and reducing its cost. A fixed emission limit also simplifies compliance measurements, because the emission level can be measured directly rather than by comparing the in-band and adjacent channel power measured in two different bandwidths.

16. The Commission calculated the appropriate fixed adjacent channel emission limits as follows. The current adjacent channel emission limit is −72.8 dB in a 100 kHz bandwidth, measured relative to the total in-band power in a 6 MHz bandwidth. It defined a fixed adjacent channel emission limit for each of the four maximum power levels at which TV bands devices can operate (fixed: 1 Watt; personal/portable: 100 mW; personal/portable operating adjacent to occupied channels: 40 mW; and sensing-only devices: 50 mW). The adjacent channel emission limit for each category of device is simply the maximum power permitted in a 6 MHz bandwidth minus 72.8 dB. A table showing these limits is provided.

17. The Commission also slightly increased the maximum permissible PSD for each category of TV bands device to address the roll-off concern raised by Spectrum Bridge. It established the PSD limits to prevent multiple TV bands devices with transmit bandwidths of much less than 6 MHz from sharing a channel, which could result in a total transmitted power within a channel significantly greater than the limits for individual fixed or personal/portable devices. These limits were derived using the assumption that the maximum permitted power of a TV bands device is spread uniformly across a 6 MHz channel. However, the Commission recognized that this assumption makes compliance with either the current or the modified adjacent channel emission limits it adopted impractical if a device operates at the maximum permissible power level. For a TV bands device to operate at the maximum permissible power, it must fill the entire 6 MHz channel, leaving no margin for a roll-off from the in-band signal to the much lower level it must meet in the adjacent channel. The Commission therefore increased the PSD limit for each category of TV bands device by 0.4 dB, which will allow a TV bands device to operate at the maximum permissible power in a bandwidth of 5.5 MHz instead of 6 MHz. This will allow 250 kHz for a roll-off from the in-band signal to each adjacent channel. The Commission did not adopt a 6 dB (4 times) increase in the PSD limit as Spectrum Bridge suggests, because that change would allow devices to operate at maximum power in a bandwidth of much less than 6 MHz, thus making it possible for multiple devices to share a channel with a total power greater than the limits currently allowed for an individual device.

18. The revised PSD and adjacent channel emission limits that the Commission adopted are as follows.

19. In the Commission's review of the PSD and adjacent channel emission issues, it discovered some minor inconsistencies and omissions in the rules concerning the measurement of emissions and corrected them herein. Specifically, § 15.709(c) does not specify whether compliance with the adjacent channel emission limits is determined through radiated or conducted measurements. In addition, § 15.709(a)(5) requires measurement of the power conducted from the TV bands device into the antenna to determine compliance with the PSD limits. However, this is not possible for personal/portable devices which are required to have a permanently attached antenna. This section also does not include a requirement that fixed device PSD must be reduced in the same manner as the maximum conducted output power when the transmit antenna gain exceeds 6 dBi. Such a requirement is necessary to ensure that the PSD is proportionally reduced when the maximum output power is reduced to prevent a device from transmitting in a bandwidth of much less than 5.5 MHz at the maximum permissible power level. To correct these omissions and inconsistencies, the Commission revised § 15.709(a) and (c) to specify that the PSD and adjacent channel emission limits are conducted power limits for fixed devices and EIRP (radiated) limits for personal/portable devices. It also required that the conducted PSD limit for fixed devices be reduced by one dB for each dB that the maximum directional gain of the transmit antenna exceeds 6 dBi. These rule clarifications will not result in any increased compliance costs for equipment manufacturers.

20. The Commission declined to relax the out-of-band emission limit to the specific values requested by Motorola, the Joint Petitioners, and the Wi-Fi Alliance. As the Commission previously noted in the Second MO&O, adjacent channel emissions from a TV bands device appear as co-channel emissions in an adjacent channel used by a TV station or other authorized service, and interference can occur to TV reception at very low undesired co-channel signal levels. The Commission also noted that personal/portable TV bands devices are permitted to operate within the protected contours of adjacent channel TV stations, and fixed TV bands devices can operate as close as 0.1 kilometers outside the contours of adjacent channel stations and at significantly higher power than personal/portable TV bands devices. Thus, the Commission found it appropriate to require TV bands devices to meet tighter adjacent channel emission limits than other equipment such as Wi-Fi devices that do not typically operate adjacent to services that receive interference at the same low level as the broadcast TV service. The Commission noted that the relaxation of the limit requested by the petitioners is approximately 25 dB (316 times the power), which would be a very significant increase in adjacent channel power over the maximum the rules currently permit and would have the potential to cause interference to adjacent channel users in the TV bands.

21. The Commission found that increasing the minimum separation distances between TV bands devices and adjacent channel TV stations as a way to offset the increased interference potential would be effective only in protecting TV reception but not other services that operate in or adjacent to the TV bands. For example, registered wireless microphones and other low power auxiliary services authorized under part 74 would be impacted by the increased noise that TV bands devices would place in adjacent channels. This increased noise also could limit the use of personal/portable TV bands devices operating adjacent to fixed TV bands devices, thereby impairing efficient use of spectrum. Increasing the 1 kilometer protection distance around registered wireless microphones would be ineffective because registration provides only co-channel and not adjacent channel protection from TV bands devices. Further, the increased adjacent channel emission levels could impact wireless services adjacent to the TV bands, such as those above channel 51 (the subject of another petition discussed in detail below), land mobile radio services on frequencies below channels 7 and 14, and the Low Power Radio Service above channel 13.

22. For the reasons stated, the Commission declined to relax the adjacent channel emission limits to prevent interference to authorized services in and adjacent to the TV bands. It concluded that its decision on this issue promotes more efficient use of the TV spectrum by both licensed and unlicensed devices. The Commission recognized the petitioners' argument that tighter emission limits could result in higher equipment costs. It found, however, that the record in this proceeding indicates that at least one equipment manufacturer, Adaptrum, is capable of building a prototype device that complies with the limits adopted in the Second MO&O. In addition, another manufacturer, Koos Technical Services, Inc., developed a device that complies with all the requirements for fixed TV bands, devices, including the adjacent channel emission limits, and became the first party to obtain certification for a TV bands device. Further, tighter out-of-band emission limits can allow users to operate in adjacent frequency bands with less geographic separation between them, thus enabling more efficient and intensive use of spectrum. Thus, the Commission concluded that the benefits of tighter out-of-band emission limits outweigh any increase in equipment cost that may be necessary to comply with these rules.

23. Prior to the June 12, 2009 digital television transition, full-service TV stations were permitted to operate on channels 52-69 (698 MHz to 806 MHz, also referred to as the 700 MHz band). The Commission reallocated these channels for services other than broadcast television. Under the band plan that the Commission adopted, there are two channel groupings: (1) The lower 700 MHz band, consisting of channels 52-59, and (2) the upper 700 MHz band, consisting of channels 60-69. The lower 700 MHz band is divided into five blocks designated A through E, and the upper 700 MHz band is divided into four blocks designated A through D, with two additional bands allocated for public safety use. Block A in the lower 700 MHz band, which is the subject of Cellular South's petition for reconsideration in this proceeding, consists of TV channel 52 paired with TV channel 57. This pairing of channels with a 30 MHz frequency separation between them is designed to allow the use of these channels for two-way wireless operations. Fixed base stations will transmit to mobile devices using channel 57, while mobile devices will transmit to base stations using channel 52. Therefore, base stations will incorporate receivers that receive signals from mobile devices on channel 52. The lower 700 MHz Block A was licensed through Commission Auction 73 in 2008. Cellular South is one of the entities that obtained licenses for Block A through this auction. It did not previously participate in this proceeding.

24. Prospective bidders were made aware prior to Auction 73 that there would continue to be full-service and low power television stations on channel 51 after the auction. The Public Notice describing this auction's procedures cautioned potential bidders about Commission rules and requirements that place limits on the ability of 700 MHz band licensees to use this spectrum. The Public Notice specifically pointed to § 27.60 of the rules that requires wireless licensees to protect co-channel and adjacent channel TV stations, including stations on channel 51. Thus, prospective bidders for Block A were given notice that there would be TV stations on adjacent channel 51, and the emission levels that a TV station may place in an adjacent channel are clearly specified in the Commission's rules. These limits permit TV stations to place significantly higher power in an adjacent channel than part 15 TV bands devices.

25. CTIA—the Wireless Association and the Rural Cellular Association filed a petition for rulemaking and a licensing freeze on March 15, 2011, requesting that the Commission take action to prevent further interference to Block A licensees. To permit the Commission to evaluate the matters raised in the petition, the Media Bureau placed a freeze on the filing of new applications and most applications for minor changes to low power and full power television stations on channel 51. The Commission took that action to preserve the status quo and to ensure that new applications are not filed in anticipation of the future limitations proposed in the petition. It has not yet taken any other action with respect to this petition.

26. Decision. The Commission declined to establish in this docket new requirements to protect wireless operations on channel 52. As an initial matter, it noted that Cellular South's petition on this issue was not timely filed. The Commission adopted rules permitting TV band devices to operate on Channel 51 in its 2008 Second Report and Order . Pursuant to § 1.429(d) of the Commission's rules, the deadline for seeking reconsideration of that decision was 30 days after the summary of the Second Report and Order was published in the Federal Register . Cellular South filed its petition in January 2011, more than two years after the applicable due date.

27. As an independent and alternative basis, the Commission dismissed Cellular South's petition on this issue pursuant to § 1.429(b) of the Commission's rules, which precludes parties from relying on facts in petitions for reconsideration that were not presented to the Commission previously, unless those facts have changed or the party could not have known about those facts when it had an opportunity to comment. No party raised the issue of protection criteria for services on channel 52 in response to the NPRM or FNPRM in this proceeding or at any time prior to Cellular South's petition for reconsideration. The Commission was not persuaded that Cellular South could not previously participate in this proceeding. Cellular South purchased its licenses at auction in 2008, several months before the adoption of the Second Report and Order, and over two years before the adoption of the Second MO&O. Cellular South therefore had ample opportunity to make any concerns about potential interference from TV bands devices to wireless services in the lower 700 MHz Block A known to the Commission but failed to do so. While the Commission recognized Cellular South's argument that the final technical specifications for 700 MHz band equipment were not available until more recently, it did not find that a convincing explanation for not participating in the proceeding. If the precise technical parameters needed to perform an interference analysis are not known ( e.g., receiver bandwidth, noise floor, noise figure, antenna gain, and desired-to-undesired signal ratio), parties could make reasonable estimates of these parameters. Cellular South, however, did not provide any analysis or even express to the Commission any general concerns about possible interference prior to filing its petition for reconsideration.

28. As another independent and alternative basis for dismissing the petition on this issue, the Commission reached the merits and rule against Cellular South. The Commission found that there is no need to adopt new requirements as Cellular South requests because the current rules appropriately protect wireless operations on channel 52. The emission levels that a TV bands device may place in an adjacent channel are far below the levels that a full-service TV station on channel 51 may place in adjacent channel 52. Specifically, emissions from TV bands devices in the adjacent channel must be at least 72.8 dB below the level in the 6 MHz channel where the TV bands device operates. As discussed, the Commission modified the rules to specify maximum adjacent channel emission levels that provide this level of adjacent channel protection. For a personal/portable TV bands device operating on channel 51 at the maximum allowable power of 100 milliwatts EIRP, the maximum radiated emission in the adjacent channel would be −52.8 dBm EIRP or 132 microvolts per meter at a distance of three meters. This is below the § 15.209 out-of-band emission limit of 200 microvolts per meter at three meters that applies to most part 15 transmitters in this frequency band. In the case of fixed TV bands devices operating on channel 51 at the maximum EIRP of 4 watts, the maximum permitted emission in the adjacent channel is −36.8 dBm EIRP or 835 microvolts per meter at three meters. While this is greater than the § 15.209 limit, the Commission noted that this limit was developed with the assumption that there would be a 10 meter separation between a potentially interfering device and the device being protected. The Commission expects that there would typically be a much greater separation distance between a TV bands device and a wireless base station receiving channel 52, thus significantly reducing the signal level at the receiver and the likelihood of interference. Thus, the Commission found that there is a very low probability that TV bands devices on channel 51 will cause harmful interference to wireless services in the adjacent band. Because the Commission did not adopt here protection criteria between TV bands devices and Block A stations, it saw no reason to include 700 MHz Block A base stations in the TV bands databases.

29. While the part 15 rules are designed to minimize the likelihood of interference to authorized services, there is always the possibility that interference may occur in certain situations. Therefore TV bands devices, like all other part 15 devices, operate on a non-interference basis, meaning that in the event a device causes interference to an authorized service, the device must cease operation. Because fixed TV bands devices must be registered in the TV bands database, if a licensee of a wireless system were to receive interference, it could check the database to find information on the interfering device. Also, as the Commission stated in the Second Report and Order, it intends to closely oversee the development and introduction of TV bands devices and take whatever actions may be necessary to correct any interference that may occur and will consider any rule changes that might be needed to better protect against harmful interference to incumbent services. Because TV bands devices operate under the control of a database that provides a list of available channels to the TV bands devices, in the event of harmful interference the Commission could take steps such as requesting the database operators to limit the use of certain TV channels in an area. Thus, the Commission found no need to adopt new protection requirements for wireless services on channel 52 at this time.

30. As discussed, the rules that the Commission adopted in the Second Report and Order allow for two classes of TV bands devices—fixed and personal/portable. Fixed devices may operate at power levels up to 4 watts EIRP and must either incorporate a geo-location capability such as GPS or be professionally installed and have the devices' geographic coordinates manually entered by the installer. Personal/portable devices may operate with a power level up to 100 mW EIRP. Mode II personal/portable devices must incorporate a geo-location capability such as GPS to determine the geographic coordinates to within +/− 50 meters. Both fixed and Mode II portable devices must access a database that provides a list of available channels at the devices' location. A Mode II portable device must re-check its location and the database for available channels if it changes location during operation. Mode I devices are not required to incorporate geo-location or database access capabilities, and they obtain a list of available channels on which they can operate from either a fixed or Mode II device that accesses a database. A portable device can operate in Mode II at locations where it can receive a geo-location signal, and in Mode I at locations where it cannot. Fixed devices may operate only on vacant TV channels that are not adjacent to occupied TV channels, while personal/portable devices may operate adjacent to occupied TV channels if their maximum EIRP is reduced to no more than 40 milliwatts.

31. In the Second MO&O, the Commission decided that a Mode II device must use its geo-location capability to check its location at least once every 60 seconds while in operation to determine whether it has moved. In addition, the Commission required that a Mode II device check the database when it moves more than 100 meters from the location where it performed its last database check.

32. Decision. The Commission declined to establish a new class of fixed indoor devices as requested by the Wi-Fi Alliance. The Wi-Fi Alliance states that the devices of interest would be mass market Mode II personal/portable devices, thus indicating to us that they would be small and easily transportable. The Commission found that such devices would have a high potential for causing interference to authorized services in the TV bands if they did not incorporate a geo-location capability to accurately determine their location. The devices could easily be moved to a different location without updating the coordinates, where they would then receive an inaccurate list of available channels. In the absence of a geo-location capability, the coordinates would have to be manually entered into a device. In the case of mass market consumer devices, the Commission would not consider the consumer to be a professional installer. It expected that many consumers would lack knowledge or experience in determining and entering a device's coordinates and therefore would be likely to make more errors than a professional installer or, alternately, would be more likely to enter an improper set of coordinates. While the Commission denied the Wi-Fi Alliance's request to create a new category of TV bands device, it noted the current rules do in fact contain provisions that allow TV bands devices to operate without GPS under certain circumstances. Specifically, a personal/portable device can operate without GPS in Mode I if it communicates with either a fixed device or a Mode II personal/portable device that provides it with a list of available channels on which it can operate.

33. In the Second MO&O, the Commission decided that all information that is required by the Commission's rules to be in a TV bands database is to be publicly available, including fixed TV bands device registration and voluntarily submitted protected entity information, such as cable headends. The Commission noted that the registration of a protected entity in the database will preclude operation of TV bands devices on one or more channels over specific areas and that there is the possibility of errors in the registration information. It further noted that while much of the data will come from Commission databases that already are public sources, errors could result from the inadvertent entry of incorrect data or as a result of a party deliberately entering false data. The Commission therefore found that it is appropriate to permit public examination of protected entity registration information to allow the detection and correction of errors.

34. Decision. The Commission declined to require that the geographic coordinates or other information concerning cable headends in the TV bands database be kept confidential. First, it noted that NCTA previously participated in this proceeding but never alleged prior to filing its petition that there is any need to keep information on cable headends confidential. The issue of public availability of database information was raised in the petitions for reconsideration of the Second Report and Order in this proceeding, and NCTA raised no concerns about the confidentiality of headend registrations in its response to these petitions. In any case, the Commission was not persuaded that making information about cable headends publicly available poses a security threat to communications infrastructure. Based on the documents referenced in NCTA's petition, virtually all communications facilities, including wireline, wireless, satellite, cable, and broadcasting facilities, could be classified as critical infrastructure. Information on a large number of these communications facilities is already publicly available through the Commission's databases, and there is no evidence that the public availability of this information has ever posed a threat to the security of communications infrastructure. Also, as NCTA and PISC note, information on the locations of cable headends is already publicly available from other sources, and the TV bands databases will only list those facilities that are outside the protected contours of the over-the-air TV stations being received and that the headend operator chooses to register.

35. While the Commission upheld its previous decision to make all information in the TV bands database publicly available, it noted that the Second MO&O did not include specific text to codify this decision. The Commission therefore added a new paragraph to § 15.715 of the rules to specify that database administrators must provide a means to allow public access to the information in the database. Such access will be limited to the information that is required by the rules to be included in the databases and will not include any additional information that the database administrators may choose to collect. OET will advise the database administrators as necessary to implement this requirement. Codifying this rule does not impose any new costs or other burdens on database administrators because they were already required to provide the capability described.

36. OET designated ten parties as TV bands database administrators and requires them to attend workshops conducted by Commission staff. During the course of these workshops, the database administrators have noted that some rules require Commission interpretation and guidance to ensure that they are implemented consistently across all TV White Space databases. OET staff has provided guidance on how certain rules as written should be implemented by the database administrators. Information regarding these discussions, including any rule interpretations provided to the database administrators at these workshops, is posted on the Commission's Web site at http://www.fcc.gov/encyclopedia/white-space-database-administration . The Commission concluded that the rules should be modified to clearly state the requirements for protecting these services.

37. The rules require that TV bands databases contain information on the location of receive sites for TV translator, low power TV, and Class A TV stations (collectively low power stations) and the channels of TV signals received for retransmission at such sites. The Commission's Consolidated Data Base System (CDBS) has the ability to store receive site information for low power stations, but the receive site information currently contained in the CDBS is incomplete or inaccurate and therefore not always reliable. For this reason, the Commission adopted rules that require low power stations to register their receive sites with the TV bands database administrators to obtain protection. Subsequent to the adoption of these rules, the Commission has become concerned that if it were to allow parties to register receive site information both in the TV bands database and the CDBS, there could be conflicts in the data between the CDBS and the database registrations due to data entry errors or updates to the information in one database but not the other. The Commission therefore found it is necessary to provide for a single registry for low power station receive site information, and that registry is to be the CDBS. The Commission's staff has constructed a Web page interface that will allow licensees of low power stations to easily provide us with their correct receive channel information. The information collected through this Web page interface will be used to update the CDBS. The Commission will issue a public notice when the interface is available to the public and will provide instructions on how to access it.

38. In view of the Commission's decision to acquire and maintain all low power station receive site data by means of the new receive site update facility and the CDBS system, it no longer finds it necessary to require database administrators to provide a separate registration process for this information. In addition to relieving the database operators of a significant burden, this change will make the low power station receive site data in the CDBS more reliable and also avoid data conflicts between the CDBS and the database registration records. Accordingly, the Commission modified § 15.713(b)(2) of the rules to remove receive sites of TV translator, low power TV, and Class A TV stations from the list of facilities that are not contained in Commission databases and placing them in § 15.713(b)(1) in the list of facilities that are contained in Commission databases. The Commission also modified § 15.715(c) to remove TV translator receive sites as an example of facilities not contained in Commission databases. These rule changes are procedural in nature in that the Commission changed the manner in which low power TV receive site information is collected and placed in the TV bands databases, but not the protection afforded to receive sites. Thus, these changes do not require prior notice under the Administrative Procedure Act (APA).

39. Section 15.712(h) of the rules prohibits the operation of TV bands devices within 2.4 kilometers of certain radio astronomy and other receive sites to prevent interference to operations at those locations. This rule section specifies the geographic coordinates of receive sites that were provided to the Commission by the National Telecommunications and Information Administration (NTIA) in 2005. NTIA recently discovered inaccuracies in the coordinates for several radio astronomy receive sites and filed a request with the Commission to correct these inaccuracies. In particular, it provided corrected coordinates for the Arecibo Observatory in Puerto Rico and the Table Mountain receive site in Colorado. NTIA also requested that the Commission modify the receive site coordinates listed in § 15.712(h) to match those in footnote US388 to the Table of Frequency Allocations in § 2.106 of the rules because it determined that the coordinates in that footnote are correct. The Commission found that NTIA's requested changes to this section will ensure that radio astronomy and other receive sites are protected against interference from TV bands devices and therefore updated the rules to reflect the correct coordinates. In addition, the Commission noted that § 15.712(h)(1) lists the Naval Radio Research Observatory in Sugar Grove, West Virginia as a protected site but does not specify its geographic coordinates. The Commission therefore revised this section to add the coordinates of that observatory. These rule revisions do not require TV bands devices to protect any additional radio astronomy sites or increase the size of the protected zones around them; they merely provide more precise geographic coordinates for the sites that TV bands devices were already required to protect. The Commission found that these changes are insignificant in nature and impact, and inconsequential to the industry and the public. Thus, these rule changes do not require prior notice under the APA.

40. As required by the Regulatory Flexibility Act (RFA), 1 an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the Notice of Proposed Rule Making ( NPRM ) in ET Docket No. 04-186, 2 and an additional IRFA was incorporated in the First Report and Order and Further Notice of Proposed Rule Making (FNPRM) in ET Docket No. 04-186. 3 The Commission sought written public comment on the proposals in the NPRM and in the FNPRM, including comment on the IRFAs. No comments were received in response to either IRFA. This present Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA. 4

41. This Third Memorandum Opinion and Order responds to five petitions for reconsideration that were filed in response to the Second Memorandum Opinion and Order (“ Second MO&O” ) in this proceeding. 5 It eliminates the 76 meter limitation on the height above average terrain of the sites where fixed TV bands devices may operate and increases the maximum permitted antenna height above average terrain from 106 meters to 250 meters. The Third Memorandum Opinion and Order also replaces the current relative limit with a fixed limit for TV bands device emissions that fall in the 6 MHz channels adjacent to the operating channel. Devices operating at the maximum permitted power must suppress adjacent channel emissions to the same level that the current rules require, but devices operating at less than the maximum power do not have to suppress emissions below this level. However, the Third Memorandum Opinion and Order upholds the majority of the Commission's prior decisions permitting unlicensed broadband operations in the TV bands while making certain other minor changes and refinements to the rules for TV band devices. The Commission believes that these changes and clarifications to the rules will better ensure that licensed services are protected from interference while retaining flexibility for unlicensed devices to share spectrum with new services or to change frequencies if TV spectrum is reallocated for other purposes.

42. There were no public comments filed that specifically addressed the rules and policies proposed in the IRFA.

43. Pursuant to the Small Business Jobs Act of 2010, the Commission is required to respond to any comments filed by the Chief Counsel for Advocacy of the Small Business Administration and to provide a detailed statement of any change made to the proposed rules as a result of those comments. The Chief Counsel did not file any comments in response to the proposed rules in this proceeding.

44. The RFA directs agencies to provide a description of, and, where feasible, an estimate of, the number of small entities that may be affected by the rules adopted herein. 6 The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.”  7 In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. 8 A “small business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA). 9

45. Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing. The Census Bureau defines this category as follows: “This industry comprises establishments primarily engaged in manufacturing radio and television broadcast and wireless communications equipment.FN1 Examples of products made by these establishments are: transmitting and receiving antennas, cable television equipment, GPS equipment, pagers, cellular phones, mobile communications equipment, and radio and television studio and broadcasting equipment.”  10 In this category, the SBA has deemed a business manufacturing radio and television broadcasting equipment, wireless telecommunications equipment, or both, to be small if it has fewer than 750 employees. 11 For this category of manufacturing, Census data for 2007 show that there were 919 firms that operated that year. Of those establishments, 531 had between 1 and 19 employees; 240 had between 20 and 99 employees; and 148 had more than 100 employees. 12 Since 771 establishments had fewer than 100 employees, and since only 148 had more than 100 employees, the vast majority of manufacturers in this category would be considered small under applicable standards.

46. Wireless Telecommunications Carriers (except satellite). Since 2007, the Census Bureau has placed wireless firms within this new, broad, economic census category. 13 Under the present and prior categories, the SBA has deemed a wireless business to be small if it has 1,500 or fewer employees. 14 For this category, census data for 2007 show that there were 1,383 firms that operated for the entire year. 15 Of this total, 1,368 firms had employment of 999 or fewer employees and 15 had employment of 1000 employees or more. 16 Similarly, according to Commission data, 413 carriers reported that they were engaged in the provision of wireless telephony, including cellular service, Personal Communications Service (PCS), and Specialized Mobile Radio (SMR) Telephony services. 17 Of these, an estimated 261 have 1,500 or fewer employees and 152 have more than 1,500 employees. 18 Consequently, the Commission estimates that approximately half or more of these firms can be considered small. Thus, using available data, we estimate that the majority of wireless firms can be considered small.

47. TV bands devices are required to be authorized under the Commission's certification procedure as a prerequisite to marketing and importation, and the Third Memorandum Opinion and Order makes no change to that requirement. However, it makes certain changes to the technical requirements for TV bands devices, which are discussed.

48. The RFA requires an agency to describe any significant alternatives that it has considered in developing its approach, which may include the following four alternatives (among others): “(1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities; (3) the use of performance rather than design standards; and (4) an exemption from coverage of the rule, or any part thereof, for such small entities.”  19

49. While the Third Memorandum Opinion and Order generally upholds the rules adopted in the Second Memorandum Opinion and Order, the Commission made certain changes to those rules. It believed those changes and clarifications would provide for improved protection of licensed services in the TV bands, resolve certain uncertainties in the rules, and provide manufacturers with greater flexibility in designing products to meet market demands.

50. The Commission eliminated the prohibition on fixed TV bands device operation at sites where the ground elevation is more than 76 meters above the average elevation of the surrounding terrain, while maintaining the current antenna height above ground limit of 30 meters. In place of the site elevation limit, the Commission adopted a requirement that a fixed device may operate with an antenna height above average terrain of up to 250 meters, which is an increase from the current antenna height above average terrain limit of 106 meters (30 meters antenna height above ground plus 76 meters site above average terrain). Under the new rule, a fixed TV bands device could operate from a site with an elevation of up to 220 meters above average terrain using an antenna height above ground of 30 meters, resulting in an antenna height above average terrain of 250 meters. In reaching this decision, the Commission considered the competing views from various parties on whether the ground elevation limit unnecessarily restricts the locations where fixed TV bands devices can operate and whether an increase in the maximum antenna height above ground and average terrain can allow greater coverage by fixed TV bands devices without causing interference to authorized users of the TV bands. The Commission believes that the changes it adopted will allow for increased availability of wireless broadband services in rural and underserved areas while protecting television and other services that operate in the TV bands.

51. The Commission made certain changes to the technical requirements for TV bands devices. Specifically, it modified the limits for emissions that fall in TV channels adjacent to those where a TV bands device operates by specifying limits that are at fixed levels, rather than relative to the in-band power. This change simplifies compliance measurements, because it will no longer be necessary to compare the in-band and adjacent channel power, which had to be measured with two different bandwidths under the previous rules. Instead, compliance can be determined by directly measuring the adjacent channel power in a specified bandwidth for comparison to the limit. The rule changes that the Commission adopted also eliminate the need for devices operating at less than the maximum permitted power to suppress adjacent channel emissions to levels below those needed to prevent interference to other services in the TV bands. In reaching its decision to modify the adjacent channel emission limits, the Commission considered and rejected requests for a greater relaxation of the limit. The Commission found that the adopted limits are necessary to prevent interference to authorized services in and adjacent to the TV bands and to allow more efficient use of the TV spectrum by both licensed and unlicensed devices. The Commission recognized petitioners' arguments that tighter emission limits can result in higher equipment costs. However, the record indicated that at least one equipment manufacturer is capable of complying with the limits adopted in the Second Memorandum Opinion and Order. 20 The Commission noted that tighter out-of-band emission limits can allow users to operate in adjacent frequency bands with less geographic separation between them, thus enabling more efficient and intensive use of spectrum. Thus, it found that the benefits of tighter out-of-band emission limits outweigh the increase in equipment cost necessary to comply with the limits.

52. The Commission will send a copy of the Third Memorandum Opinion and Order, including this FRFA, in a report to Congress and the Government Accountability Office pursuant to the Congressional Review Act. 21

53. Pursuant to the authority contained in sections 4(i), 302, 303(e), 303(f), and 307 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 302, 303(c), 303(f), and 307 this Third Memorandum Opinion and Order is hereby adopted.

54. Pursuant to sections 4(i), 302, 303(e) 303(f), 303(g), 303(r), and 405 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 302, 303(e), 303(f), 303(g), 303(r), and 405, the petitions for reconsideration addressed herein are granted to the extent discussed and the remainder of requests in the petitions for reconsideration are denied.

55. Part 15 of the Commission's rules is amended, and such rule amendments shall be effective June 18, 2012.

56. The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of the Third Memorandum Opinion and Order, including the Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the U.S. Small Business Administration.

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 15 as follows:

FMVSS No. 208 (49 CFR 571.208) specifies requirements for the protection of vehicle occupants in crashes and includes equipment requirements for restraint systems. This document makes technical amendments to several of the provisions within this standard, specifically the requirements for pressure vessels and explosive devices, which are located at S9.1 and S9.2, and the air bag warning label requirements, which are located at S4.5.1.

S9.1 and S9.2 were promulgated in 1972 with the purpose of regulating occupant crash protection systems, such as air bags, that contain explosive materials or pressure vessels by imposing directly on manufacturers the obligation to conform to Federal hazardous materials regulations. 1 S9.1 specifies that pressure vessels shall conform to certain requirements for Specification 39 non-reusable (non-refillable) cylinders found at 49 CFR 178.65. S9.2 specifies requirements for explosive devices and, in particular, requires that such devices not exhibit any of the characteristics prohibited by the Federal regulation listing forbidden explosives, which, at the time S9.2 was adopted, was found at 49 CFR 173.51.

Since S9.1 and S9.2 were adopted, the hazardous materials regulations referenced in these paragraphs have been reorganized and, in some cases, relocated. On December 21, 1990, the regulation listing forbidden explosives (49 CFR 173.51) was redesignated as 49 CFR 173.54. 2 On May 23, 1996, the pressure vessel requirements in 49 CFR 178.65 were reorganized, 3 and on August 8, 2002, a subreferenced provision concerning pressure relief devices (49 CFR 173.34(d)) was moved into 49 CFR 173.301. 4

As a result of these reorganizations, the references in FMVSS No. 208 are no longer accurate. This notice updates the references contained in S9.1 and S9.2 of this standard. It does not make any substantive changes to the requirements specified therein. In particular, we note that when the hazardous materials regulations referenced in S9.1 and S9.2 were reorganized or redesignated, minor textual changes were made to those referenced sections. However, these textual changes did not result in any substantive changes. Accordingly, the substantive requirements of S9.1 and S9.2 remain the same.

The need to correct the references in S9.1 of FMVSS No. 208 was the subject of a petition for rulemaking submitted by the North American Automotive Hazardous Material Action Committee on October 7, 2004. That organization specifically petitioned NHTSA to update paragraph S9.1 of FMVSS No. 208. This document grants that petition. We had also previously been contacted by a representative of Takata Corporation concerning this matter.

In addition to updating the references in S9.1 and S9.2, this final rule makes a technical amendment to S4.5.1(e) of FMVSS No. 208, which specifies requirements for air bag warning labels on vehicle dashboards and steering wheel hubs. S4.5.1(e)(1) specifies label requirements for all vehicles equipped with air bags except as provided in S4.5.1(e)(2). S4.5.1(e)(2) specifies label requirements for vehicles certified to meet certain advanced air bag requirements before December 1, 2003. S4.5.1(e) contains a third set of label requirements in S4.5.1(e)(3), which specifies the label requirements for vehicles certified to meet the specified advanced air bag requirements on or after December 1, 2003. However, the text of S4.5.1(e)(1) does not include an exception for S4.5.1(e)(3).

On January 25, 2005, we received a request for interpretation from Toyota Motor North America, Inc. (Toyota) concerning S4.5.1(e). 5 Toyota's concern was that S4.5.1(e)(1) makes an exception for S4.5.1(e)(2) but not for S4.5.1(e)(3). Arguably, as written, both S4.5.1(e)(1) and S4.5.1(e)(3) would apply to vehicles certified to meet certain advanced air bag requirements on or after December 1, 2003. Toyota indicated its belief that it was not NHTSA's intention to require vehicles to have both labels, which are very similar.

We responded to Toyota's request for interpretation on March 14, 2005. 6 We confirmed Toyota's understanding and agreed that it was not the agency's intention to require vehicles to have both types of labels. We indicated that the agency intended for the labeling requirements in S4.5.1(e)(2) and S4.5.1(e)(3) to supersede the labeling requirement in S4.5.1(e)(1) for vehicles certified to meet certain advanced air bag requirements and stated that the exception identified in S4.5.1(e)(1) should include both S4.5.1(e)(2) and S4.5.1(e)(3). This amendment adds S4.5.1(e)(3) as an exception to the requirements of S4.5.1(e)(1), consistent with our letter of interpretation to Toyota. This is a technical correction and does not change any of the substantive labeling requirements.

Section 553 of the Administrative Procedure Act (5 U.S.C. 553) provides that when an agency, for good cause, finds that notice and public procedure are impracticable, unnecessary, or contrary to the public interest, the agency may issue a final rule without providing notice and an opportunity for public comment (5 U.S.C. 553(b)(B)). NHTSA has determined that there is good cause for making these technical amendments final without notice and an opportunity for public comment. These technical amendments update the cross-references to Federal hazardous materials regulations in paragraphs S9.1 and S9.2 of FMVSS No. 208 and correct the language in paragraph S4.5.1(e) of that standard. The amendments do not alter the substance of the amended sections nor do they alter the requirements of FMVSS No. 208. Accordingly, notice and public comment are unnecessary. For the same reasons, NHTSA has determined that there is good cause for these amendments to go into effect 30 days after publication in the Federal Register .

The agency has discussed the relevant requirements of Executive Order 12866, Executive Order 13563, DOT Regulatory Policies and Procedures, the National Environmental Policy Act, the Regulatory Flexibility Act, Executive Order 13132 (Federalism), Executive Order 12988 (Civil Justice Reform), the Unfunded Mandates Reform Act, the Paperwork Reduction Act, Executive Order 13045 (Protection of Children From Environmental Health and Safety Risks), the National Technology Transfer and Advancement Act, and Executive Order 13211(Energy Effects), as applicable, in the underlying substantive rules establishing and amending the affected sections of FMVSS No. 208. Those discussions are not affected by these amendments.

The Department of Transportation assigns a regulation identifier number (RIN) to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. You may use the RIN contained in the heading at the beginning of this document to find this action in the Unified Agenda.

Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit http://www.regulations.gov.

For the reasons stated in the preamble, the National Highway Traffic Safety Administration, Department of Transportation, amends 49 CFR part 571 as follows: