Over the past 40 years the NRC (and earlier as the Atomic Energy Commission (AEC), the NRC's predecessor agency), has assessed and continues to assess fees to applicants and licensees to recover the cost of its regulatory program. The NRC's cost recovery principles for fee regulation are governed by two major laws, the Independent Offices Appropriations Act of 1952 (IOAA) (31 U.S.C. 483 (a)) and OBRA-90 (42 U.S.C. 2214), as amended. The NRC is required each year, under OBRA-90, as amended, to recover approximately 90 percent of its budget authority, not including amounts appropriated for WIR, and amounts appropriated for generic homeland security activities (non-fee items), through fees to NRC licensees and applicants. The following discussion explains the various court decisions, congressional mandates and Commission policy which form the basis for the NRC's current fee policy and cost recovery methodology, which in turn form the basis for this rulemaking.

In 1968, the AEC adopted its first license fee schedule in response to Title V of the IOAA. This statute authorized and encouraged Federal regulatory agencies to recover to the fullest extent possible costs attributable to services provided to identifiable recipients. The AEC established fees under 10 CFR part 170 in two sections, § 170.21 and § 170.31. Section 170.21 established a flat application fee for filing applications for nuclear power plant construction permits. Fees were set by a sliding scale for construction permits and operating license fees depending on plant size and annual fees were levied on holders of Commission operating licenses under 10 CFR part 50. Section 170.31 established application fees and annual fees for materials licenses. Between 1971 and 1973, the 10 CFR part 170 fee schedules were adjusted to account for increased costs resulting from expanded services which included health and safety inspection services and manufacturing licenses and environmental and antitrust reviews. The annual fees assessed by the Commission began to include inspection costs and the material fee schedule expanded from 16 to 28 categories for fee assessment. During this period, the schedules continued to be modified based on the Commission's policy to recover costs attributable to identifiable beneficiaries for the processing of applications, permits and licenses, amendments to existing licenses, and health and safety inspections relating to the licensing process.

On March 4, 1974, the U.S. Supreme Court rendered major decisions in two cases, National Cable Television Association, Inc. v. United States, 415 U.S. 36 (1974) and Federal Power Commission v. New England Power Company, 415 U.S. 345 (1974), regarding the charging of fees by Federal agencies. The Court held that the IOAA authorizes an agency to charge fees for special benefits rendered to identifiable persons measured by the “value to the recipient” of the agency service. The Court, thus, invalidated the Federal Power Commission's annual fee rule because its fee structure assessed annual fees against the regulated industry at large without considering whether anyone had received benefits from any Commission services during the year in question. As a result of these decisions, the AEC promptly eliminated annual licensing fees and issued refunds to licensees, but left the remainder of the fee schedule unchanged.

In November 1974, the AEC published proposed revisions to its license fee schedule (39 FR 39734; November 11, 1974). The Commission reviewed public comments while simultaneously considering alternative approaches for the proper evaluation of expanding services and proper assessment based upon increasing costs of Commission services.

While this effort was under way, the Court of Appeals for the District of Columbia issued four opinions in fee cases— National Cable Television Assoc. v. FCC, 554 F.2d 1094 (D.C. Cir. 1976); National Association of Broadcasters v. FCC, 554 F.2d 1118 (D.C. Cir. 1976); Electronic Industries Association v. FCC, 554 F.2d 1109 (D.C. Cir. 1976); and Capital Cities Communication, Inc. v. FCC, 554 F.2d 1135 (D.C. Cir. 1976). These decisions invalidated the license fee schedules promulgated by the Federal Communications Commission, and they provided the AEC with additional guidance for the prompt adoption and promulgation of an updated licensee fee schedule.

On January 19, 1975, under the Energy Reorganization Act of 1974, the licensing and related regulatory functions of the AEC were transferred to the NRC. The NRC, prompted by recent court decisions concerning fee policy, developed new guidelines for use in fee development and the establishment of a new proposed fee schedule.

The NRC published a summary of guidelines as a proposed rule (42 FR 22149; May 2, 1977), and the Commission held a public meeting to discuss the notice on May 12, 1977. A summary of the comments on the guidelines and the NRC's responses were published in the Federal Register (43 FR 7211; February 21, 1978).

The U.S. Court of Appeals for the Fifth Circuit upheld the Commission's fee guidelines on August 24, 1979, in Mississippi Power and Light Co. v. U.S. Nuclear Regulatory Commission, 601 F.2d 223 (5th Cir. 1979), cert. denied, 444 U.S. 1102 (1980). This court held that—

(1) The NRC had the authority to recover the full cost of providing services to identifiable beneficiaries;

(2) The NRC could properly assess a fee for the costs of providing routine inspections necessary to ensure a licensee's compliance with the Atomic Energy Act of 1954, as amended, and with applicable regulations;

(3) The NRC could charge for costs incurred in conducting environmental reviews required by the National Environmental Policy Act (42 U.S.C. 4321);

(4) The NRC properly included the costs of uncontested hearings and of administrative and technical support services in the fee schedule;

(5) The NRC could assess a fee for renewing a license to operate a low-level radioactive waste burial site; and

(6) The NRC's fees were not arbitrary or capricious.

In 1986, Congress passed the Consolidated Omnibus Budget Reconciliation Act (COBRA) (H.R. 3128), which required the NRC to assess and collect annual charges from persons licensed by the Commission. These charges, when added to other amounts collected by the NRC, totaled about 33 percent of the NRC's estimated budget. In response to this mandate and separate congressional inquiry on NRC fees, the NRC prepared a report on alternative approaches to annual fees and published the decision on annual fees for power reactor operating licenses in 10 CFR part 171 for public comment (51 FR 24078; July 1, 1986). The final rule (51 FR 33224; September 18, 1986) included a summary of the comments and the NRC's related responses. The decision was challenged in the D.C. Circuit and upheld in its entirety in Florida Power and Light Company v. United States, 846 F.2d 765 (D.C. Cir. 1988), cert. denied, 490 U.S. 1045 (1989).

In 1987, the NRC retained the established annual and 10 CFR part 170 fee schedules in the Federal Register (51 FR 33224; September 18, 1986).

In 1988, the NRC was required to collect 45 percent of its budget authority through fees. The NRC published a proposed rule that included an hourly increase recommendation for public comment in the Federal Register (53 FR 24077; June 27, 1988). The NRC staff could not properly consider all comments received on the proposed rule. Therefore, on August 12, 1988, the NRC published an interim final rule in the Federal Register (53 FR 30423). The interim final rule was limited to changing the 10 CFR part 171 annual fees.

In 1989, the Commission was required to collect 45 percent of its budget authority through fees. The NRC published a proposed fee rule in the Federal Register (53 FR 24077; June 25, 1988). A summary of the comments and the NRC's related responses were published in the Federal Register (53 FR 52632; December 28, 1988).

On November 5, 1990, with respect to 10 CFR part 171, the Congress passed OBRA-90, requiring that the NRC collect 100 percent of its budget authority, less appropriations from the Nuclear Waste Fund (NWF), through the assessment of fees. The OBRA-90 allowed the NRC to collect user fees for the recovery of the costs of providing special benefits to identifiable applicants and licensees in compliance with 10 CFR part 170 and under the authority of the IOAA (31 U.S.C. 9701). These fees recovered the cost of inspections, applications for new licenses and license renewals, and requests for license amendments. The OBRA-90 also allowed the NRC to recover annual fees under 10 CFR part 171 for generic regulatory costs not otherwise recovered through 10 CFR part 170 fees. In compliance with OBRA-90, the NRC adjusted its fee regulations in 10 CFR part 170 and 171 to be more comprehensive without changing their underlying basis. The NRC published these regulations in a proposed rule for public comment in the Federal Register (54 FR 49763; December 1, 1989). The NRC held three public meetings to discuss the proposed changes and questions. A summary of comments and the NRC's related responses were published in the Federal Register (55 FR 21173; May 23, 1990).

In FYs 1991-2000, the NRC continued to comply with OBRA-90 requirements in its proposed and final rules. In 1991, the NRC's annual fee rule methodology was challenged and upheld by the D.C. Circuit Court of Appeals in Allied Signal v. NRC, 988 F.2d 146 (D.C. Cir. 1993).

The FY 2001 Energy and Water Development Appropriation Act amended OBRA-90 to decrease the NRC's fee recovery amount by 2 percent per year beginning in FY 2001, until the fee recovery amount was 90 percent in FY 2005.

The FY 2006 Energy and Water Development Appropriation Act extended this 90 percent fee recovery requirement for FY 2006. Section 637 of the Energy Policy Act of 2005 made the 90 percent fee recovery requirement permanent in FY 2007.

In addition to the requirements of OBRA-90, as amended, the NRC was also required to comply with the requirements of the Small Business Regulatory Enforcement Fairness Act of 1996. This Act encouraged small businesses to participate in the regulatory process, and required agencies to develop more accessible sources of information on regulatory and reporting requirements for small businesses and create a small entity compliance guide. The NRC, in order to ensure equitable fee distribution among all licensees, developed a fee methodology specifically for small entities that consisted of a small entity definition and the Small Business Administration's most common receipts-based size standards as described under the North American Industry Classification System (NAICS) identifying industry codes. The NAICS is the standard used by Federal statistical agencies to classify business establishments for the purposes of collecting, analyzing, and publishing statistical data related to the U.S. business economy. The purpose of this fee methodology was to lessen the financial impact on small entities through the establishment of a maximum fee at a reduced rate for qualifying licensees.

In FY 2009, the NRC computed the small entity fee based on a biennial adjustment of 39 percent, a fixed percent applied to the prior 2-year weighted average for all fee categories that have small entity licensees. The NRC also used 39 percent to compute the small entity annual fee for FY 2005, the same year the agency was required to recover only 90 percent of its budget authority. The methodology allowed small entity licensees to be able to predict changes in their fees in the biennial year based on the materials users' fees for the previous 2 years. Using a 2-year weighted average lessened the fluctuations caused by programmatic and budget variables within the fee categories for the majority of small entities.

The agency also determined that there should be a lower-tier annual fee based on 22 percent of the maximum small entity annual fee to further reduce the impact of fees. In FY 2011, the NRC applied this methodology which would have resulted in an upper-tier small entity fee of $3,300, an increase of 74 percent or $1,400 from FY 2009, and a lower-tier small entity fee of $700, an increase of 75 percent or $300 from FY 2009. The NRC determined that implementing this increase would have a disproportionate impact upon small licensees and performed a trend analysis to calculate the appropriate fee tier levels. From FY 2000 to FY 2008, $2,300 was the maximum upper-tier small entity fee and $500 was the maximum lower-tier small entity fee. Therefore, in order to lessen financial hardship for small entity licensees, the NRC concluded that for FY 2011 $2,300 should be the maximum upper-tier small entity fee and $500 should be the lower-tier small entity fee. For this fee rule, the small entity fees remain unchanged. The next small entity biennial review is scheduled for FY 2013.

The NRC published the FY 2012 proposed fee rule on March 15, 2012 (77 FR 15530) to solicit public comment on its proposed revisions to 10 CFR parts 170 and 171. By the close of the comment period (April 16, 2012), the NRC received responses from eight commenters that were considered in this fee rulemaking. The majority of the comments were received from the uranium industry in addition to comments received from the nuclear power industry, the materials industry, and small entities. The comments have been grouped by issues and are addressed in a collective response.

Comment. The NRC staff received the following comments from the uranium recovery industry regarding the hourly rate. Several commenters stated they would be adversely impacted by the higher hourly rate in the form of larger invoices for the NRC staff's expended time during the license application and submittal review process. The commenters attributed the higher review costs to the NRC's regulatory process, which they believe has not improved as promised with the implementation of NUREG-1910—Generic Environment Impact Statement (GEIS) for In Situ Leach Uranium Milling Facilities, the Memorandum of Understanding (MOU) between the Commission and the Bureau of Land Management (BLM) (ADAMS Accession No. ML093430201), and performance based licensing which has resulted in delayed licensing application submittals and reviews. One commenter suggested the NRC should redouble its efforts to capitalize on GEIS. Another commenter stated the NRC should do more to ensure better implementation of the NRC/BLM MOU. The commenters suggested the NRC should expand performance based licensing because the risk posed by uranium recovery licensees is low based on materials handled, and an expansion would allow the use of Safety and Environmental Review Panels to approve certain actions, ultimately resulting in cost savings to licensees. Another commenter suggested, for example, that expending $150,000 and considerable time for the initial phase of a preoperational inspection for an existing facility is excessive. One commenter recommended that the NRC review the staff levels assigned to different activities and compare them to the risk to public health and the environment. Another commenter suggested the NRC improve the efficiency of the review processes and pass the realized gains in efficiency, in the form of decreased fees, to licensees. Several commenters stated the NRC should effectively manage resources to process new applications along with existing applications including proposed expansion projects. Another commenter suggested the NRC should move forward to provide a draft rule for public comment concerning Section 106 of the National Historic Preservation Act, and should look to other Federal agencies, such as the BLM, for best practices in the processing of 106 reviews. Several commenters recommended that the NRC, upon the completion of acceptance reviews, provide costs estimates for submittal reviews which detail the approximate staff hours required to review the submittal. The commenters stated the NRC should create a schedule of costs for common tasks which would include the approximate costs of performing tasks such as reviewing and approving surety, thereby enabling licensees to better budget for reviews by the NRC staff.

Response. Regarding the inefficiency of in situ leach GEIS, the NRC disagrees with the commenters because GEIS has reduced the amount of work required to prepare the site-specific supplemental environmental impact statements. The reduction was a result of the GEIS focusing on targeting issues of importance at each in situ leach facility. Additionally, the GEIS eliminated the need for public scoping. However, the Section 106 Tribal consultation process remains extensive for many NRC reviews due to many uranium recovery facilities located on or near land deemed important by many Indian tribes. The NRC is currently in the process of developing high level, agency-wide Section 106 guidance, which will eventually be made available to the public in the near future.

Regarding improving the implementation of the MOU for uranium recovery facilities, the NRC disagrees with the commenters because the NRC strongly supports the collaborative effort between the NRC and the BLM to foster effective communication between the two agencies and identify agency roles and responsibilities as they relate to the exchange of information concerning uranium recovery projects. The NRC recognizes certain applications have seen benefits from the enhanced cooperation realized by the MOU. However, it is the applicant's responsibility to ensure that both the BLM and the NRC receive the appropriate information at the same time; otherwise, cooperation on an environmental document is not feasible.

In reference to comments on the expansion of performance based licensing for uranium recovery facilities, the NRC disagrees with the commenters. Each license contains a list of criteria for determining whether or not an action requires a license condition. Uranium recovery licensees routinely use these criteria successfully for performing various changes and tests. However, certain activities will always fall outside the criteria resulting in the need for a license amendment. Significant well field expansions (satellite areas) and central plant modifications, for example, will always require license amendments. In general, the performance based license condition is streamlining the oversight process.

Regarding the comments on the inefficiency of the uranium recovery licensing review process, the NRC believes it has made substantial improvements that have benefitted the industry and NRC. During the licensing review process, the staff performs rigorous internal reviews of staff hours by task after completion of regulatory actions to evaluate efficiency.

Regarding the comment on tailoring staff hour levels to risk, the NRC staff determined this action is not always possible since the NRC staff must ensure facilities comply with our regulations, regardless of the perceived risk. Therefore, regardless of risk, a certain level of effort will always be required to perform certain tasks.

Regarding the comment concerning preoperational inspections as an example of a costly activity which can be reviewed based on the risk significance of a uranium recovery facility, the NRC staff is required to ensure that a new or restarting facility will be operated in a manner that complies with the regulations and license conditions. Activities such as the preoperational inspection provide the agency with an opportunity for one “hard look” at an operation prior to activation to determine the viability of an operation.

Regarding the processing of new uranium recovery applicants and major expansion amendments along with licensing actions for existing licensees, the NRC established a program strategy, that prioritizes work for existing licensees over new license and major expansion reviews to maintain safety. As the NRC licenses more facilities, more resources will be needed to manage the increased workload for existing licensees. The staff will prioritize available resources to accomplish the highest priority licensing work.

Regarding the commenters' suggestions to include a provision for cost estimates for the NRC review of uranium recovery license submittals, the NRC produced a general cost estimate for the completion of three new uranium recovery application reviews. The information was presented to industry in Denver, CO, in January 2011. The NRC will continue to update this information annually, or when a new license or major amendment review has been completed.

In reference to the comments to create a schedule of costs for common tasks, the staff compiled a list of over 20 amendments and reviews typically undertaken for uranium recovery licenses. The staff determined the creation of a schedule of costs for common tasks is very complex and would require additional resources in a challenging budget environment. Consequently, the NRC staff is not undertaking this task at this time in order to maintain focus on other high priority program activities.

In general, the NRC has implemented several methods which have improved the uranium recovery licensing review process. The pre-submission audit has been useful in improving the quality of applications which helps to expedite reviews. The NRC staff now issues draft licenses instead of open issues which eliminates review time. The NRC staff also performs acceptance reviews on responses to requests for additional information (RAI) to determine whether or not a review can proceed, thereby eliminating the time spent on continuing a review with incomplete information.

Finally, the NRC believes that the uranium recovery industry also plays a role in streamlining reviews. First, submitting applications that contain all the relevant information speeds up the NRC's review process. Second, the uranium recovery industry could submit design certification requests in the form of petitions for rulemaking with designs for certain common features such as central plants, satellite plants, wells, header houses, and ponds. In this manner, an applicant can merely incorporate by reference certain approved designs instead of reproducing these designs in an application. Third, the industry can maximize the effectiveness of the RAI process by providing prompt and complete answers to the NRC staff requests. Efficient and streamlined regulation requires a team-effort. Working together, both the NRC and the industry can continue to make improvements to our regulatory processes.

There are no changes to this final rule as a result of the comments concerning the hourly rate.

Comment. One commenter suggested the NRC should establish more flat fees for activities for uranium recovery operations in order to provide more certainty regarding fees, with the goal of moving routine activities to flat fees.

Response. The NRC disagrees with this comment. Based on past experience, the NRC believes there would be a very limited number of licensing activities that would qualify for flat fees. The 10 CFR part 170 “flat” license fees are fees charged for most material and import/export license applications and amendments. These fees are based on the average direct hours required to process the application or amendment, multiplied by the professional hourly rate established annually in 10 CFR part 170. The average processing time is determined through a biennial review of actual hours associated with processing these applications or amendments, and the “flat” rate is subject to change based on the NRC's professional hourly rate at the time of the rulemaking. Also, most potential flat fee tasks would have a large standard deviation per activity associated with each licensee because some review can be either simple or complex, thus, an average costs would not be feasible. An example is a surety review which can be either simple to complex in nature. If the agency were to impose an upper confidence limit calculation for surety reviews, the agency would benefit at the expense of some licensees who will overpay significantly for these types of reviews. Due to the complex nature of flat fees and required resources, the NRC will not undertake this activity to remain focused on high priority work. There are no changes to this final rule as a result of this comment.

Comment. Commenters suggested the NRC should prepare invoices with more detail, similar to invoices prepared by industry consultants, to better understand how staff time is allocated. One commenter stated invoices should include dates and times, similar to the private sector, which would allow licensees to comprehend work performed, hours spent and completion dates. Another commenter suggested that providing the names of the NRC staff members or contractors, including billable hours incurred, would allow licensees to understand how staff time is allocated and the costs of specific activities.

Response. The NRC agrees with the commenters. The NRC currently provides information requested by commenters through its invoice documentation with the exception of project manager (PM) and inspector names, which are available upon request. There is an Activity Inspection Report supplement available that further provides the detailed information identified by the commenters. Due to the large volume of data, the Activity Inspection Report is not routinely distributed with the invoice documentation unless specifically requested by the licensee or applicant.

The invoices issued to licensees and applicants summarize costs assessed under 10 CFR part 170, which include regular and non-regular hours billed, hourly and contract costs, total amount billed in addition to the vendor name, docket number, due date, and type of license. The NRC believes the Activity Inspection Report detailing the PM and inspector names for time activity code/inspection reports including regular hours billed is sufficient to enable licensees to identify tasks performed by the NRC staff along with associated costs.

Accordingly, there are no changes to this final rule as a result of these comments.

Comment. One commenter suggested that the NRC make a definite commitment to use the Small Business Administration's (SBA) “Table of Small Business Size Standards” to define a small business as it relates to the assessment of fees by the NRC. The commenter also stated that the table matches the “North American Industry Classification System Codes,” and should be used government-wide to ensure consistency in definitions for businesses in terms of size, type of industry, and other means of categorization.

Response. The NRC agrees with this comment. The NRC is committed to using the SBA's “Table of Small Business Size Standards” to qualify licensees as small entities in its assessment of fees, and acknowledges that this table matches the “North American Industry Classification System Codes.” Reduced fees for small entities fall into two categories, lower-tier annual fees and maximum upper-tier annual fees, to help lessen the financial impact for small entities participating in the nuclear power industry. The NRC will continue to comply with the Small Business Act which states that unless specifically authorized by statute, no Federal department or agency may prescribe a size standard for categorizing a business concern as a small business concern, unless proposed size standards meet certain criteria and are approved by the Administrator of the SBA. The NRC is currently updating its small business size standards to comply with the SBA size standards. There are no changes to this final rule as a result of this comment.

Comment. One commenter suggested that the total percentage change in all fees be spread among all of the fee classes in an effort to eliminate hardships for some licensees who are impacted by an increase in annual fees.

Response. The NRC disagrees with this comment. The NRC acknowledges that an increase in fees can be difficult for some licensees to absorb. However, the NRC must remain in compliance with the OBRA-90, as amended, which requires the NRC to recover approximately 90 percent of its budget authority in a given year by charging fees to its licensees. The NRC fee methodology calculation consists of determining, to the maximum extent practicable, the reasonable relationship between costs and the provision of regulatory services to licensees. The NRC fees are based on current year budgeted costs of activities benefitting the associated license fee classes, and best reflect the license fee class to which the costs should be assessed. For each proposed fee rulemaking, in accordance with the Regulatory Flexibility Analysis Act, the NRC must consider the impact of the rulemaking on small entities and determine the best fee methodology to compute fees that minimize compliance costs and eliminate barriers to competition. The NRC's establishment of the small entity reduced fees into two tiers, lower-tier and maximum upper-tier annual fees, continues to be a practical solution for small entities. The small entity fees are reviewed biennially to assess the financial impact for small entities and encourage competition in the nuclear power industry. There are no changes to this final rule as a result of this comment.

Comment. One commenter stated that the broad revenue range for small entities' gross annual receipts encompassing $450,000 to $6,500,000 tends to advantage larger firms while burdening smaller entities. The commenter indicated that its firm's revenue is at the lower end of this range, yet its fee is the same as another entity with three or four times its gross revenue. The commenter suggested that the NRC consider establishing additional tiers of gross annual receipts that correspond to more annual license fee levels in order to lower licensing fees and thereby reduce the licensing fee burden for small entities.

Response. The NRC disagrees with this comment. The NRC believes that the two-tiered reduced annual fees method currently in place provides substantial fee relief for small entities, including those with relatively low gross receipts. A reduction in fees for small entities must be paid for by other NRC licensees in order to meet the requirements of the OBRA-90, as amended, to recover most of the NRC's budget through fees. While establishing more tiers would reduce the burden for some small entities, a further reduction in fees would result in an increase in the small entity subsidy other licensees must pay. The NRC supports the two-tiered reduced annual fees method because it provides a reasonable balance between the objectives of the OBRA-90 and the 1980 Regulatory Flexibility Act requirement that Federal agencies examine ways to minimize the significant impacts their rules may have on a substantial number of small entities. Therefore, the current two-tiered reduced annual fees method will remain intact with modifications to conform to SBA size standards, as necessary. There are no changes to this final rule as a result of this comment.

Comment. One commenter stated that the NRC should continue to achieve greater transparency in its budgeting by revealing planned staffing and resource needs by individual programs, particularly in the areas of defense and national interest programs that are funded by taxpayers with appropriated funds. The commenter suggested that the NRC more fully explain the decrease in budgeted resources in FY 2012, and if the agency is planning similar reductions in future years for these programs.

Response. The NRC agrees with this comment. The NRC strives for transparency and openness with internal and external stakeholders in accomplishing its mission of protecting public health and safety and the environment. Although detailed budget discussions fall outside the scope of this rulemaking, the NRC recommends commenters and others review the NUREG-1100, Volume 27, “Congressional Budget Justification: Fiscal Year 2012” (February 2011) (ADAMS Accession No. ML12137A853), for the NRC's budget plans for FY 2012 and beyond. There are no changes to this final rule as a result of this comment.

Comment. One commenter stated that the industry is aware that the agency has $32 million in unobligated balances from prior years' appropriations that could be used to fund additional Fukushima-related work or be used to reduce licensee fees in future years. The commenter commends the NRC for supporting educational programs and suggested $15 million of the funds for education programs budgeted in FY 2012 be used to support the congressionally-authorized Integrated University Program trade school, scholarships, fellowships, and faculty development grants. The remaining funds would be utilized for curriculum development and to support nuclear technology programs at minority-serving institutions.

Response. The purposes of the proposed and final fee rulemakings are to describe, and solicit and evaluate comments on, the allocation of the NRC's budget for fee calculation purposes. The rules and supporting work papers do not address changes in budget resources, or use of prior-year funds but provide detailed information on how the fee calculations were derived in compliance with the OBRA-90 and the Consolidated Appropriations Act of 2012. Commenters and others may also review the NUREG-1100, Volume 27, “Congressional Budget Justification: Fiscal Year 2012” (February 2011) (ADAMS Accession No. ML12137A853) for more detailed information on the NRC's budget for FY 2012, including the activities performed by each of the programs. The NRC will continue to request from Congress only those resources necessary to operate its programs efficiently, effectively, and in compliance with its mission of protecting people and the environment, while keeping fees as low as possible for all licensees. There are no changes to this final rule as a result of this comment.

The NRC assesses two types of fees to meet the requirements of OBRA-90. First, user fees, presented in 10 CFR part 170 under the authority of the IOAA, recover the NRC's costs of providing special benefits to identifiable applicants and licensees. For example, the NRC assesses these fees to cover the costs of inspections, applications for new licenses and license renewals, and requests for license amendments. Second, annual fees, presented in 10 CFR part 171 under the authority of OBRA-90, recover generic regulatory costs not otherwise recovered through 10 CFR part 170 fees. Under this rulemaking, the NRC continues the fee cost recovery principles through the adjustment of fees without changing the underlying principles of the NRC fee policy in order to ensure that the NRC continues to comply with the statutory requirements of OBRA-90, the Atomic Energy Act, and the IOAA.

On December 23, 2011, President Obama signed the Consolidated Appropriations Act of 2012, giving the NRC a total appropriation of $1,038.1 million. Accordingly, in compliance with the Atomic Energy Act of 1954, as amended, and OBRA-90, the NRC is amending its licensing, inspection, and annual fees to recover approximately 90 percent of its FY 2012 budget authority, less the appropriations for non-fee items. The amount of the NRC's required fee collections is set by law and is, therefore, outside the scope of this rulemaking.

The NRC's total budget authority for FY 2012 is $1,038.1 million. The non-fee items excluded outside of the fee base include $0.8 million for WIR activities and $26.7 million for generic homeland security activities. Based on the 90 percent fee-recovery requirement, the NRC is required to recover approximately $909.5 million in FY 2012 through 10 CFR part 170 licensing and inspection fees and through 10 CFR part 171 annual fees. This amount is $6.3 million less than the amount estimated for recovery in FY 2011, a decrease of less than 1 percent. The FY 2012 fee recovery amount is decreased by $8.5 million to account for billing adjustments (i.e., for FY 2012 invoices that the NRC estimates will not be paid during the fiscal year, less payments received in FY 2012 for prior year invoices). This leaves approximately $901 million to be billed as fees in FY 2012 through 10 CFR part 170 licensing and inspection fees and 10 CFR part 171 annual fees.

Table I summarizes the budget and fee recovery amounts for FY 2012. The FY 2011 amounts are provided for comparison purposes. (Individual values may not sum to totals due to rounding.)

On April 23, 2012, the FAA published in the Federal Register a notice of proposed rulemaking (NPRM) to establish two new RNAV routes in the southwestern United States (78 FR 24156). An NPRM correction published in the Federal Register of May 23, 2012 (77 FR 30437) corrected the description of VOR Federal airway V-16.

Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal. One comment was received which expressed support for the proposal.

The FAA is amending Title 14, Code of Federal Regulations (14 CFR) part 71 to modify the descriptions of Jet Route J-2, and VOR Federal airways V-16, V-66 and V-202 in southern Arizona and New Mexico. The FAA is taking this action due to the scheduled decommissioning of the Cochise, AZ, VORTAC, which is used in the descriptions of the routes. Specifically, the portion of J-2 that extends from Gila Bend, AZ; to Cochise, AZ; to El Paso, TX is realigned to proceed from Gila Bend to Tucson, AZ, and then to El Paso, TX (with the remainder of the route is unchanged). The portion of V-16 that currently extends from Tucson, AZ; to Cochise, AZ; to Columbus, NM, is realigned to proceed from Tucson, AZ; to San Simon, AZ; then to Columbus, NM (remainder of route unchanged). V-66 is modified by removing language that excludes altitudes above 13,000 feet MSL in one segment of the route no longer required by air traffic control. V-202 currently extends from Tucson, AZ; to Cochise, AZ; to San Simon, AZ; to Silver City, NM; to Truth or Consequences, NM. The western portion of V-202 that extends between Tucson-Cochise-San Simon is deleted. The modified V-202 begins at San Simon, AZ; to Silver City, NM; to Truth or Consequences, NM.

Jet Routes are published in paragraph 2004, and Domestic VOR Federal airways are published in paragraph 6010, of FAA Order 7400.9V dated August 9, 2011, and effective September 15, 2011, which is incorporated by reference in 14 CFR 71.1. The Jet Routes and VOR Federal airways listed in this document will be published subsequently in the Order.

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. 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.

This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it modifies Air Traffic Service routes to maintain the continuity of navigation guidance in the southwestern United States.

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures,” paragraph 311a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

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

AB Science, 3 Avenue George V, 75008 Paris, France, filed a supplemental CNADA 141-308 for KINAVET-CA1 (masitinib mesylate) Tablets for a revised indication for the treatment of nonresectable Grade II or III cutaneous mast cell tumors in dogs that have not previously received radiotherapy and/or chemotherapy except corticosteroids. In accordance with the Federal Food, Drug, and Cosmetic Act (the FD&C Act), as amended by the Minor Use and Minor Species Animal Health Act of 2004 (MUMS Act), this supplemental application is conditionally approved as of January 30, 2012, and the regulations in 21 CFR part 516 are amended to reflect this action.

A summary of safety and effectiveness data and information submitted to support conditional approval of this application 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.

KINAVET-CA1 (masitinib mesylate) Tablets for the intended uses conditionally approved by FDA under application number 141-308 qualifies for 7 years of exclusive marketing rights beginning on December 15, 2010, the date of the original conditional approval. This new animal drug qualifies for exclusive marketing rights under section 573(c) of the FD&C Act (21 U.S.C. 360ccc-2(c)) because it has been declared a designated new animal drug by FDA under section 573(a) of the FD&C Act.

FDA has determined under 21 CFR 25.33 that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

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 the authority delegated to the Commissioner of Food and Drugs and redelegated to the Center for Veterinary Medicine, 21 CFR part 516 is amended as follows:

PBGC's regulations on Allocation of Assets in Single-Employer Plans (29 CFR part 4044) and Benefits Payable in Terminated Single-Employer Plans (29 CFR part 4022) prescribe actuarial assumptions—including interest assumptions—for valuing and paying plan benefits under terminating single-employer plans covered by title IV of the Employee Retirement Income Security Act of 1974. The interest assumptions in the regulations are also published on PBGC's Web site ( http://www.pbgc.gov ).

The interest assumptions in Appendix B to Part 4044 are used to value benefits for allocation purposes under ERISA section 4044. PBGC uses the interest assumptions in Appendix B to Part 4022 to determine whether a benefit is payable as a lump sum and to determine the amount to pay. Appendix C to Part 4022 contains interest assumptions for private-sector pension practitioners to refer to if they wish to use lump-sum interest rates determined using PBGC's historical methodology. Currently, the rates in Appendices B and C of the benefit payment regulation are the same.

The interest assumptions are intended to reflect current conditions in the financial and annuity markets. Assumptions under the asset allocation regulation are updated quarterly; assumptions under the benefit payments regulation are updated monthly. This final rule updates the benefit payments interest assumptions for July 2012 and updates the asset allocation interest assumptions for the third quarter (July through September) of 2012.

The third quarter 2012 interest assumptions under the allocation regulation will be 2.95 percent for the first 20 years following the valuation date and 3.66 percent thereafter. In comparison with the interest assumptions in effect for the second quarter of 2012, these interest assumptions represent no change in the select period (the period during which the select rate (the initial rate) applies), a decrease of 0.16 percent in the select rate, and an increase of 0.30 percent in the ultimate rate (the final rate).

The July 2012 interest assumptions under the benefit payments regulation will be 1.00 percent for the period during which a benefit is in pay status and 4.00 percent during any years preceding the benefit's placement in pay status. In comparison with the interest assumptions in effect for June 2011, these interest assumptions represent a decrease of 0.25 percent in the immediate annuity rate and are otherwise unchanged.

PBGC has determined that notice and public comment on this amendment are impracticable and contrary to the public interest. This finding is based on the need to determine and issue new interest assumptions promptly so that the assumptions can reflect current market conditions as accurately as possible.

Because of the need to provide immediate guidance for the valuation and payment of benefits under plans with valuation dates during July 2012, PBGC finds that good cause exists for making the assumptions set forth in this amendment effective less than 30 days after publication.

PBGC has determined that this action is not a “significant regulatory action” under the criteria set forth in Executive Order 12866.

Because no general notice of proposed rulemaking is required for this amendment, the Regulatory Flexibility Act of 1980 does not apply. See 5 U.S.C. 601(2).

Employee benefit plans, Pension insurance, Pensions, Reporting and recordkeeping requirements.

Employee benefit plans, Pension insurance, Pensions.

In consideratin of the foregoing, 29 CFR parts 4022 and 4044 are amended as follows:

Table of Acronyms DHS Department of Homeland Security FR  Federal Register NPRM Notice of Proposed Rulemaking A. Regulatory History and Information

On April 3, 2012, we published a notice of proposed rulemaking (NPRM) entitled: Special Local Regulation and Security Zone: War of 1812 Bicentennial Commemoration, Port of Boston, Massachusetts; in the Federal Register (77 FR 19963). Two comments were received in the proposed rule's docket:

• One comment was accidentally misfiled from an unrelated FAA regulation and did not pertain to our proposed rulemaking. It has since been removed from the docket for this rule by the Docket Management System.

• One comment asked simply “Will there be any provisions for Press Boats for the event? If so how should the vessel be flagged or identified as such?” The Coast Guard recommends that a boat with members of the media onboard, display something with the word “MEDIA” that is visible to other vessels.

No public meeting was requested of the Coast Guard, and none was held.

The event sponsor hosted a planning and coordination meeting that was open to the public on October 12, 2011 and held an Initial Planning Conference on February 14-15, 2012 and a mid-term planning conference on May 8, 2012 in Boston, MA. Recommendations to employ a similar pattern to that which was used during the Sail Boston 2009 events were received during this meeting; such recommendations are incorporated into this document.

Additionally, informal discussions were held with port stakeholders in December 2011, January, March, April, and May 2012 during the Boston's Port Operators Group monthly Meetings, and comments recommending the use of traffic patterns the way they were used during Sail Boston 2009 have been addressed.

On January 26, 2012 the Coast Guard briefed federal, state, and local government agencies to update them on Coast Guard planning for the War of 1812 Bicentennial Commemoration Events. This meeting was also attended by several local business leaders. Nothing discussed at this meeting impacted the drafting of this proposed regulation.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Any delay in the effective date of this rule could jeopardize the safety of life on navigable waters and protection of U.S. and Foreign military vessels, U.S. and foreign government sailing vessels, private vessels, spectators, and the Port of Boston during these events.

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

The purpose of this rule is to promote the safe navigation of vessels and the safety of life and property during the heavy volume of vessel traffic expected in the Port of Boston during the War of 1812 Bicentennial Commemoration events.

The United States Navy is planning a series of events nationwide to celebrate the commemoration of the War of 1812. The Port of Boston events will occur between June 28 and July 6, 2012. The events will consist of a gathering of U.S and foreign military vessels, U.S. and foreign government sailing vessels mooring in various berths throughout the Port of Boston.

The War of 1812 Bicentennial Commemoration events are expected to conform to the following outline of events:

1. June 28-29—Multiple U.S. and foreign military vessels arrive;

2. June 30: Arrival of the U.S. and foreign government sailing vessels;

3. June 28 through July 6: Security Zones in effect;

4. June 30 through July 6: Public tours of U.S and Foreign military vessels and U.S and foreign government sailing vessels;

5. June 29 through July 6: Vessel movement control measures in effect;

6. July 4: USS CONSTITUTION and USCGC EAGLE Parade;

7. July 4: USN Blue Angles aerial demonstration.

On July 4, starting at 11 a.m. there will be salute to the USS CONSITUTION and USCGC EAGLE as they sail from Constitution Pier, outbound Boston Main Channel to Castle Island and return. This will be followed by an air demonstration by the Navy's Blue Angels above Boston Inner Harbor at approximately 12:15 p.m.

In the year 2009, a similar event, Sail Boston 2009, drew several hundred thousand spectators by both land as well as water to Boston Harbor.

Recognizing the significant draw this event may have on recreational boating traffic, the Coast Guard's is establishing a special local regulation that would create vessel movement control measures in Boston Harbor through a Regulated Area, which will be in effect during the War of 1812 Bicentennial Commemoration events.

This regulated area is needed for vessel movement control measures and to facilitate law enforcement vessel access to support facilities. Additionally, the regulated areas will protect the maritime public and participating vessels from possible hazards to navigation associated with dense vessel traffic.

The Regulated Area establishes a counter-clockwise traffic pattern around Boston Inner Harbor to ensure spectator vessels are following an organized route, facilitating the smooth flow of boating traffic, thereby minimizing disruption on the waterway. A Coast Guard Patrol Commander (PATCOM) will be designated and on scene controlling the flow of traffic through the Regulated Area.

The waterway between the World Trade Center Pier and the Fish Pier, as well as the waterway within the Reserved Channel do not constitute large areas for unhindered navigation. Due to the navigation restrictions in these waterways, when vessels over 125 feet enter the area, on-scene patrol personnel will halt the flow of vessel traffic and allow no other vessel in the channel until the vessel greater than 125 feet is clear of the narrow channel.

Due to concerns of tenants at the World Trade Center, Fish Piers and the Black Falcon Terminal, waterside viewing hours for vessels berthed at these facilities will be limited to times specified in the regulatory text, outside of which only vessels which are tenants within the channels of the World Trade Center, Fish Pier and Reserved Channel will be authorized access within those areas.

A comment was received on the proposed ruling requesting to know what provisions will be made to identify press boats. To help identify a press boat, The Coast Guard recommends that a boat with members of the media onboard, display something with the word “MEDIA” that is visible to other vessels.

Additionally, the Coast Guard is establishing 25-yard security zones surrounding participating vessels while moored. The regulations will be in effect in Boston Harbor throughout the effective period. These restrictions are expected to minimize the risks associated with the anticipated large number of recreational vessel traffic within the confines of Boston Inner Harbor operating in conjunction with commercial deep draft vessel traffic that pose a significant threat to the safety of life.

This rule is effective and will be enforced from 9 a.m. on June 29, 2012 to 6 p.m. on July 6, 2012.

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

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

Although this regulation imposes traffic restrictions in portions of Boston Harbor during the events, the effect of this regulation will not be significant for the following reasons: the regulated area and security zones will only be in place during the week long War of 1812 activities, and Extensive advance notice will be made to mariners via appropriate means, which may include broadcast notice to mariners, local notice to mariners, facsimile, marine safety information bulletin, local Port Operators Group meetings, the Internet, USCG Sector Boston Homeport Web page, and local newspapers and media. The advance notice will permit mariners to adjust their plans accordingly. Additionally, the regulated area is tailored to impose the least impact on maritime interests without compromising safety.

Similar restrictions were established for Sailing Boston 1992, 2000, and 2009 events. Based upon the Coast Guard's experiences from those previous similar magnitude events, these regulations have been narrowly tailored to impose the least impact on maritime interests yet provide the necessary level of safety.

The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended requires federal agencies to consider the potential impact of regulations on small entitles during rulemaking. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule would not have a significant economic impact on a substantial number of small entities.

This rule would affect the following entities, some of which might be small entities: The owners or operators of vessels intending to transit, fish, or anchor in portions of Boston Harbor during various times during the effective period.

The rule would not have a significant economic impact on a substantial number of small entities for the same reasons outlined in the Executive Order 12866 and Executive Order 13563 section above.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT , above.

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

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

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on 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. We have analyzed this rule under that Order and determined that it does not have implications for federalism.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

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

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

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

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

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

This action is not a “Significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.

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

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves temporary security zones and a special local regulation. This regulatory action is categorically excluded from further environmental analysis and review paragraph 34(g) and (h) respectively of figure 2-1 of the Commandant Instruction. An environmental analysis checklist and Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES . We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 100 and 165 as follows:

The Oregon Department of Transportation has requested that the US 101 Umpqua River Bridge remain closed to vessel traffic to facilitate electrical system upgrades to the bridge's control circuitry. The US 101 Bridge crosses the Umpqua River at mile 11.1 and provides 36 feet of vertical clearance above mean high water when in the closed position. Vessels which do not require an opening of the bridge may continue to transit beneath the bridge during this maintenance period. Under normal conditions the US 101 Umpqua River Bridge operates in accordance with 33 CFR 117.893(a) which states that the draw shall open on signal if at least two hours advance notice is given. This deviation period is from 8 a.m. on June 25, 2012 through 5 p.m. June 28, 2012. The deviation allows the US 101 Umpqua River Bridge, mile 11.1, to remain in the closed position and need not open for maritime traffic from 8 a.m. June 25, 2012 through 5 p.m. June 28, 2012. The bridge shall operate in accordance to 33 CFR 117.893(a) at all other times. Waterway usage on this stretch of the Umpqua River includes vessels ranging from occasional commercial tug and barge to small pleasure craft. Mariners will be notified and kept informed of the bridge's operational status via the Coast Guard Notice to Mariners publication and Broadcast Notice to Mariners as appropriate. The draw span will be required to open, if needed, for public vessels of the United States and for vessels engaged in emergency response operations during this closure period.

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

The Wilmington Family YMCA, on behalf of NCDOT, has requested a temporary deviation from the current operating schedules for the S.R. 74 Bridge, across AIWW, mile 283.1 at Wrightsville Beach, NC; the Cape Fear Memorial Bridge across the Cape Fear River, mile 26.8; and the Isabel S. Holmes Bridge across the Northeast Cape Fear River, mile 1.0; both at Wilmington, NC. The requested deviation is to accommodate the annual YMCA Tri Span 5K & 10K races scheduled for Saturday, July 14, 2012. To facilitate these events, the draw of the bridges will be maintained in the closed-to-navigation positions from 7 a.m. to 9 a.m.

The SR 74 Bridge is a double-leaf bascule drawbridge with a vertical clearance of 20 feet, above mean high water, in the closed position. The current operating schedule is set out in 33 CFR 117.821(a)(4). During the month of July, the bridge is required to open on signal, except that from 7 a.m. to 7 p.m., the draw need only open on the hour.

The Cape Fear Memorial Bridge is a vertical-lift drawbridge with a vertical clearance of 65 feet, above mean high water, in the closed position. The current operating schedule is set out in 33 CFR 117.823. During the month of July the bridge is required to open on signal, except that on the second Saturday of July of every year, the draw need not open 8 a.m. to 10 a.m.

The Isabel S. Holmes Bridge is a double-leaf bascule drawbridge with a vertical clearance of 40 feet, above mean high water, in the closed position. The current operating schedule is set out in 33 CFR 117.829. During the month of July the bridge is required to open on signal except that the draw will be closed to pleasure craft, from 6 a.m. to 6 p.m., every day, except at 10 a.m. and 2 p.m., when the draw will open for all waiting vessels; and the draw need not open, from 8 a.m. to 10 a.m., on the second Saturday of July of every year. Vessels that can pass under these bridges in the closed position may do so at any time. The bridges will be able to open for emergencies.

There are no alternate routes available to vessels transiting these waterways. These races have been an annual event; therefore local waterway users should be familiar with the closure. To ensure that waterway users are aware of the closure, the Coast Guard will issue a Local and Broadcast Notice to Mariners to allow mariners to schedule their transits accordingly. Most waterway traffic for these bridges consists of recreational boats with a few barges and tugs in the daytime.

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

Table of Acronyms DHS Department of Homeland Security FR  Federal Register NPRM Notice of Proposed Rulemaking A. Regulatory History and Information

The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because doing so would be impracticable. The final details for this event were not known to the Coast Guard until there was insufficient time remaining before the event to publish an NPRM. Thus, delaying the effective date of this rule to wait for a comment period to run would be impracticable and it would inhibit the Coast Guard's ability to protect spectators and vessels from the hazards associated with a maritime fireworks display, which are discussed further below.

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

Between 9 p.m. and 10 p.m. on June 25, 2012, a fireworks display will be held on Lake Michigan in Ellison Bay, WI. The Captain of the Port, Sector Lake Michigan has determined that fireworks launched proximate to a gathering of watercraft pose a significant risk to public safety and property. Such hazards include premature and accidental detonations, dangerous projectiles, and falling or burning debris.

With the aforementioned hazards in mind, the Captain of the Port, Sector Lake Michigan, has determined that this temporary safety zone is necessary to ensure the safety of spectators and vessels during the Town of Porter Fireworks. This zone will be effective and enforced from 9 p.m. until 10 p.m. on June 25, 2012. This zone will encompass all waters of Lake Michigan, Ellison Bay, WI within a 400 foot radius of position 45°15′39.36″ N and 87°05′03″ W (NAD 83).

Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port, Sector Lake Michigan, or his designated on-scene representative. The Captain of the Port or his designated on-scene representative may be contacted via VHF Channel 16.

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

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS). We conclude that this rule is not a significant regulatory action because we anticipate that it will have minimal impact on the economy, will not interfere with other agencies, will not adversely alter the budget of any grant or loan recipients, and will not raise any novel legal or policy issues. The safety zone created by this rule will be relatively small and enforced for relatively short time. Also, the safety zone is designed to minimize its impact on navigable waters. Furthermore, the safety zone has been designed to allow vessels to transit around it. Thus, restrictions on vessel movement within that particular area are expected to be minimal. Under certain conditions, moreover, vessels may still transit through the safety zone when permitted by the Captain of the Port.

The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

This rule will affect the following entities, some of which might be small entities: The owners or operators of vessels intending to transit or anchor in a portion of Lake Michigan on the evening of June 25, 2012.

This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: This safety zone would be activated, and thus subject to enforcement, for only one hour in the evening. Traffic may be allowed to pass through the zone with the permission of the Captain of the Port. The Captain of the Port can be reached via VHF channel 16. Before the activation of the zone, we would issue local Broadcast Notice to Mariners.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section above.

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

This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on 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. We have analyzed this rule under that Order and determined that this rule does not have implications for federalism.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the FOR FURTHER INTFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

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

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

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

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

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

This action is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.

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

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves the establishment of a safety zone, and therefore it is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES . We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

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

Table of Acronyms DHS Department of Homeland Security FR  Federal Register NPRM Notice of Proposed Rulemaking A. Regulatory History and Information

The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because doing so would be impracticable. The final details for this event were not known to the Coast Guard until there was insufficient time remaining before the event to publish an NPRM. Thus, delaying the effective date of this rule to wait for a comment period to run would be impracticable because it would inhibit the Coast Guard's ability to protect spectators and vessels from the hazards associated with a maritime fireworks display, which are discussed further below.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register. For the same reasons discussed in the preceding paragraph, waiting for 30 day notice period to run would be impracticable.

Between 9:15 p.m. and 10:15 p.m. on June 16, 2012, a fireworks display will be held on Lake Michigan near Sheboygan, WI. The Captain of the Port Sector Lake Michigan has determined that fireworks launched proximate to a gathering of watercraft pose a significant risk to public safety and property. Such hazards include premature and accidental detonations, dangerous projectiles, and falling or burning debris.

With the aforementioned hazards in mind, the Captain of the Port Sector Lake Michigan has determined that this temporary safety zone is necessary to ensure the safety of spectators and vessels during the Sheboygan Harbor Fest Fireworks. This zone will be effective and enforced from 9:15 p.m. until 10:15 p.m. on June 16, 2012. This zone will encompass all waters of Lake Michigan and the Sheboygan Harbor, Sheboygan, WI within a 1000 foot radius of position 43°44′55″ N and 87°41′54.8″ W (NAD 83).

Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Sector Lake Michigan or his or her designated on-scene representative. The Captain of the Port or his or her designated on-scene representative may be contacted via VHF Channel 16.

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

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS). We conclude that this rule is not a significant regulatory action because we anticipate that it will have minimal impact on the economy, will not interfere with other agencies, will not adversely alter the budget of any grant or loan recipients, and will not raise any novel legal or policy issues. The safety zone created by this rule will be relatively small and enforced for relatively short time. Also, the safety zone is designed to minimize its impact on navigable waters. Furthermore, the safety zone has been designed to allow vessels to transit around it. Thus, restrictions on vessel movement within that particular area are expected to be minimal. Under certain conditions, moreover, vessels may still transit through the safety zone when permitted by the Captain of the Port.

The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

This rule will affect the following entities, some of which might be small entities: The owners or operators of vessels intending to transit or anchor in a portion of the Lake Michigan and the Sheboygan Harbor on the evening of June 16, 2012.

This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: This safety zone would be activated, and thus subject to enforcement, for only one hour in the evening. Traffic may be allowed to pass through the zone with the permission of the Captain of the Port. The Captain of the Port can be reached via VHF channel 16. Before the activation of the zone, we would issue local Broadcast Notice to Mariners.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section above.

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

This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on 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. We have analyzed this rule under that Order and determined that this rule does not have implications for federalism.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

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

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

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

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

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

This action is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.

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

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves the establishment of a safety zone and, therefore it is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES . We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

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

Regulatory Information

The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule, as publication of an NPRM would be impracticable because the Coast Guard did not receive the application for this event in sufficient time to allow for publication of an NPRM.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register. Delaying the effective date would be impracticable because the Coast Guard did not receive an application for this event in sufficient time to allow for publication more than 30 days prior to the date scheduled for the event, and any delay in the effective date would prevent the safety zone from being effective at the time of the event. Therefore, immediate action is needed to ensure the safety of vessels transiting the area.

On July 3, 2012, the Isle of Wight County, VA will sponsor a fireworks display on the navigable waters of the Pagan River shoreline centered on position 36°59′18″ N/076°37′45″ W (NAD 1983). Due to the need to protect mariners and spectators from the hazards associated with the fireworks display, such as the accidental discharge of fireworks, dangerous projectiles, and falling hot embers or other debris, vessel traffic will be temporarily restricted within 420 feet of the fireworks launch site.

The Coast Guard is establishing a safety zone on the navigable waters of the Pagan River within the area bounded by a 420-foot radius circle centered on position 36°59′18″ N/076°37′45″ W (NAD 1983). This safety zone will be established in the vicinity of Smithfield, VA from 9 p.m. to 10 p.m. on July 3, 2012, with a rain date of July 4, 2012 from 9 p.m. until 10 p.m. In the interest of public safety, general navigation within the safety zone will be restricted during the specified date and times. Except for participants and vessels authorized by the Coast Guard Captain of the Port or his representative, no person or vessel may enter or remain in the regulated area.

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

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. Although this regulation restricts access to the safety zone, the effect of this rule will not be significant because: (i) The safety zone will be in effect for a limited duration; (ii) the zone is of limited size; (iii) mariners may transit the waters in and around this safety zone at the discretion of the Captain of the Port or designated representative; and (iv), the Coast Guard will make notifications via maritime advisories so mariners can adjust their plans accordingly.

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

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

The rule would affect the following entities, some of which might be small entities: the owners or operators of vessels intending to transit or anchor in a portion of the Pagan River from 9 p.m. to 10 p.m. on July 3, 2012.

This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: (i) The safety zone will only be in place for a limited duration and limited size. (ii) Before the enforcement period of July 3, 2012, maritime advisories will be issued allowing mariners to adjust their plans accordingly.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because publishing an NPRM would be impracticable since immediate action is necessary to protect maritime public and response vessels in or around Penn Cove, WA, from hazards created by a sunken fishing vessel, which may include debris and other potentially hazardous materials, and requires emergency response and salvage operations.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Normal notice and comment procedures cannot be followed due to the immediate threat of collision and/or exposure to hazardous debris and/or materials associated with the sunken F/V Deep Sea.

On the evening of May 13, 2012, the F/V Deep Sea, sank after catching fire. Containment and absorbent boom is being used to mitigate any impact to the environment from released hazardous wastes. Multiple assets are on-scene responding to contain and clean up hazardous material, assess potential environmental impact and/or response and coordinate salvage operations. As a result the Coast Guard is establishing a safety zone around the F/V Deep Sea, located in Penn Cove, WA. The safety zone created by this rule is necessary to help ensure the safety of maritime public and the personnel involved in response and salvage operations with regard to the sunken F/V Deep Sea. It prevents navigation in areas where response and salvage vessels may be operating and that may contain debris or hazardous materials produced from and as a result of the sunken F/V Deep Sea.

The Coast Guard is establishing a safety zone which encompasses all waters within 200 yards of the F/V Deep Sea, sunken in Penn Cove, WA. Vessels wishing to enter the zone must request permission for entry by contacting on-scene patrol craft on VHF CH 13 or Joint Harbor Operation Center at (206) 217-6001. Once permission for entry is granted, vessels must proceed at a minimum speed necessary for safe navigation.

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

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

The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which may be small entities: the owners or operators vessels intending to transit the affected waterway during the period mentioned. This safety zone will not have a significant economic impact on a substantial number of small entities because the zone established in this rule is limited in size and vessels may transit through area with permission from the COTP.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT , above.

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

This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on 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. We have analyzed this rule under that Order and determined that this rule does not have implications for federalism.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

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

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

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

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

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

This action is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.

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

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves the establishment of an emergency safety zone. This rule is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination will be available in the docket where indicated under ADDRESSES . We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

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

Table of Acronyms DHS Department of Homeland Security FR  Federal Register NPRM Notice of Proposed Rulemaking A. Regulatory History and Information

The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Given the short time until the fireworks displays commence, it would be impracticable to issue an NPRM and subsequent final rule before the commencement of the fireworks displays. For that reason, we find there is good cause to issue this final rule without notice and comment.

Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because to do so would be impracticable, since the events would be over before notice could be given and comments taken, and it is immediately necessary to protect the events' spectators from the hazards associated with fireworks displays.

(a) The authority for this action can be found in 33 CFR 1.05-1(f).

(b) Fireworks displays create hazardous conditions for the maritime public because of the large number of vessels that congregate near the displays as well as the noise, falling debris, and explosions that occur during the event. The establishment of a safety zone around displays helps to ensure the safety of the maritime public by prohibiting all persons and vessels from coming too close to the fireworks display and the associated hazards.

This rule establishes four safety zones for the following firework displays: Boston Harbor Fireworks on July 3, 2012 in Boston Harbor near Olympia, WA; Celebrate America Festival on July 3, 2012 in Holmes Harbor near Freeland, WA; Everett 4th of July Foundation on July 4, 2012 in Port Gardner near Everett, WA; and Port Townsend July 4th Fireworks on July 4, 2012 in Port Townsend near Point Hudson. All persons and vessels will be prohibited from entering the safety zones during the dates and times they are effective unless authorized by the Captain of the Port or his Designated Representative.

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

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

The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit through the established safety zones during the times of enforcement. This rule will not have a significant economic impact on a substantial number of small entities because the temporary safety zones are minimal in size and short in duration, maritime traffic will be able to transit around them and may be permitted to transit them with permission from the Captain of the Port or his designated representative.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT , above.

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

This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on 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. We have analyzed this rule under that Order and determined that this rule does not have implications for federalism.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the FOR FURTHER INTFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

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

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

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

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

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

This action is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.

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

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves the establishment of safety zones. This rule is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist and a categorical exclusion determination are available in the docket where indicated under ADDRESSES . We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

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

The Coast Guard will enforce a segment of the Safety Zone; Brandon Road Lock and Dam to Lake Michigan including Des Plaines River, Chicago Sanitary and Ship Canal, Chicago River, Calumet-Saganashkee Channel, Chicago, IL, listed in 33 CFR 165.930. Specifically, the Coast Guard will enforce this safety zone between Mile Marker 296.1 to Mile Marker 296.7 on all waters of the Chicago Sanitary and Ship Canal. Enforcement will occur from 7 a.m. until 11 a.m. and again from 1 p.m. until 5 p.m. on each day from July 19 until July 27, 2012.

This enforcement action is necessary because the Captain of the Port, Sector Lake Michigan has determined that the Army Corp of Engineers' safety testing of the demonstration barrier and barriers IIA and IIB pose risks to life and property. The combination of vessel traffic and the testing operations in the water makes the controlling of vessels through the impacted portion of the Chicago Sanitary and Ship Canal necessary to prevent injury and property loss.

In accordance with the general regulations in § 165.23 of this part, entry into, transiting, mooring, laying up or anchoring within the enforced area of this safety zone by any person or vessel is prohibited unless authorized by the Captain of the Port, Sector Lake Michigan, or his or her designated representative.

This notice is issued under authority of 33 CFR 165.930 and 5 U.S.C. 552(a). In addition to this notice in the Federal Register, the Captain of the Port, Sector Lake Michigan, will also provide notice through other means, which may include, but are not limited to, Broadcast Notice to Mariners, Local Notice to Mariners, local news media, distribution in leaflet form, and on-scene oral notice.

Additionally, the Captain of the Port, Sector Lake Michigan, may notify representatives from the maritime industry through telephonic and email notifications.

Table of Acronyms DHS Department of Homeland Security FR  Federal Register NPRM Notice of Proposed Rulemaking A. Regulatory History and Information

On May 9, 2012, we published a notice of proposed rulemaking (NPRM) entitled “Safety Zone, Temporary Change for Recurring Fifth Coast Guard District Fireworks Displays; Northwest Harbor (East Channel) and Tred Avon River, MD” in the Federal Register (77 FR 27159). We received no comments on the proposed rule. No public meeting was requested, and none was held.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Due to the need for immediate action, the restriction of vessel traffic is necessary to protect life, property and the environment; therefore, a 30-day notice is impracticable. Delaying the effective date would be contrary to the safety zones' intended objectives of protecting persons and vessels involved in the event, and enhancing public and maritime safety.

Fireworks display events are frequently held on or adjacent to navigable waters within the boundary of the Fifth Coast Guard District. For a description of the geographical area of each Coast Guard Sector—Captain of the Port Zone, please see 33 CFR 3.25. This regulation temporarily changes the enforcement period and regulated area for a safety zone for two annually recurring fireworks events, described at (b)(5) and (b)(21) of the Table to 33 CFR 165.506, that are normally scheduled to occur each year on June 14th and June and July—Saturday or Sunday before Independence Day holiday, respectively.

On June 16, 2012, the American Flag Foundation will sponsor their annual fireworks event. This event will take place in Baltimore, MD on the waters of the Patapsco River. The regulation at 33 CFR 165.506 is enforced annually for this event. Also, a fleet of spectator vessels is expected to gather near the event site to view the fireworks. To provide for the safety of participants, spectators, and transiting vessels, the Coast Guard will temporarily restrict vessel traffic in the event area from 8 p.m. to 10:30 p.m. on June 16, 2012. The regulation at 33 CFR 165.506 will be enforced for the duration of the event. Vessels may not enter the regulated area unless they receive permission from the Coast Guard Captain of the Port Baltimore or the designated on-scene patrol personnel.

On July 3, 2012, the Tred Avon Yacht Club will sponsor their annual fireworks event. This event will take place in Oxford, MD on the waters of the Tred Avon River. The regulation at 33 CFR 165.506 is enforced annually for this event. Also, a fleet of spectator vessels is expected to gather near the event site to view the fireworks. To provide for the safety of participants, spectators, and transiting vessels, the Coast Guard will temporarily restrict vessel traffic in the event area from 8 p.m. to 10:30 p.m. on July 3, 2012. The regulation at 33 CFR 165.506 will be enforced for the duration of the event. Vessels may not enter the regulated area unless they receive permission from the Coast Guard Captain of the Port Baltimore or the designated on-scene patrol personnel.

The Coast Guard received no comments in response to the NPRM. No public meeting was requested and none was held.

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

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders. Although this regulation would restrict access to these areas, the effect of this rule will not be significant because: (i) The safety zones will only be in effect from 8 p.m. to 10:30 p.m. on June 16, 2012 and from 8 p.m. to 10:30 p.m. on July 3, 2012, (ii) the Coast Guard will give advance notification via maritime advisories so mariners can adjust their plans accordingly, and (iii) although the safety zone will apply to the sections of the Patapsco River, Northwest Harbor (East Channel), and the Tred Avon River, vessel traffic will be able to transit safely around the safety zone.

The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The Coast Guard received no comments from the Small Business Administration on this rule. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule would affect the following entities, some of which might be small entities: The owners or operators of vessels intending to transit or anchor in the effected portions of the Potomac River and National Harbor Access Channel during the event. Although this regulation prevents traffic from transiting specified portions of the Patapsco River, Northwest Harbor (East Channel), from 8 p.m. through 10:30 p.m. on June 16, 2012, and the Tred Avon River, from 8 p.m. through 10:30 p.m. on July 3, 2012. This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: (i) The regulated areas are of limited size, (ii) this rule will only be in effect for five hours total, and (iii) although the safety zone will apply to a section of the Patapsco River and Tred Avon River, vessel traffic will be able to transit safely around the safety zone. Before the enforcement period, the Coast Guard will issue maritime advisories widely available to users of the waterway, to allow mariners to make alternative plans for transiting the affected area.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT , above.

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

This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on 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. We have analyzed this rule under that Order and determined that this rule does not have implications for federalism.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the FOR FURTHER INTFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

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

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

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

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

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

This action is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.

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

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves implementation of regulations at 33 CFR part 165 that establish safety zones on navigable waters of the United States for fireworks events. These safety zones are enforced for the duration of fireworks display events. The fireworks are launched from or immediately adjacent to navigable waters of the United States and may have potential for negative impact on the safety or other interest of waterway users and near shore activities in the event area. The category of activities includes fireworks launched from barges at or near the shoreline that generally rely on the use of navigable waters as a safety buffer. This rule is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES .

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

The Coast Guard is issuing this final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because doing so would be impracticable. The final details for this event were not known to the Coast Guard until there was insufficient time remaining before the event to publish an NPRM. Thus, delaying the effective date of this rule to wait for a comment period to run would be because it would inhibit the Coast Guard's ability to protect spectators and vessels from the hazards associated with fireworks displays, which are discussed further below.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . For the same reasons discussed in the preceding paragraph, waiting for 30 day notice period run would also be impracticable.

Between 7 p.m. and 11 p.m. on July 4, 2012, a fireworks display will occur in the vicinity of Duluth Harbor in Duluth, MN. Based on accidents that have occurred in other Captain of the Port zones and the explosive hazards of fireworks, the Captain of the Port Duluth has determined that fireworks launches proximate to watercraft pose a significant risk to public safety and property. The likely combination of large numbers of recreational vessels, congested waterways, darkness punctuated by bright flashes of light, alcohol use, and debris falling into the water could easily result in serious injuries or fatalities. Establishing a safety zone to control vessel movement around the location of the launch platform will help ensure the safety of persons and property at these events and help minimize the associated risks.

A temporary safety zone is necessary to ensure the safety of spectators and vessels during the setup, loading and launching of a fireworks display in conjunction with the Duluth Fourth Fest fireworks display. The fireworks display will occur between 7 p.m. and 11 p.m. on July 4, 2012.

The safety zone for the fireworks will encompass all U.S. navigable waters of the Duluth Harbor Basin Northern Section within a 600 foot radius of position 46°46′47″ N., 092°06′10″ W.; at Duluth, MN. (DATUM: NAD 83).

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

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

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS). We conclude that this rule is not a significant regulatory action because we anticipate that during the short time this zone will be in effect, it will have minimal impact on the economy, will not interfere with other agencies, will not adversely alter the budget of any grant or loan recipients, and will not raise any novel or legal policy issue.

The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

This rule will be in effect for only a few hours on a single night. Also, vessel traffic can safely pass outside the safety zone during the event. Additionally, vessels may request permission from the Captain of the Port Duluth to transit through the safety zone.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT , above.

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

This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on 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. We have analyzed this rule under that Order and determined that this rule does not have implications for federalism.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the FOR FURTHER INTFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

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

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

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

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

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

This action is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.

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

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves establishing a safety zone. This rule is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES . We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

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

On March 28, 2012, we published a notice of proposed rulemaking entitled Safety Zone; Bay Swim V, Presque Isle Bay, Erie, PA in the Federal Register (77 FR 18739). We received no letters commenting on the proposed rule. No public meeting was requested, and none was held.

Between 9 a.m. and 11 a.m. on June 30, 2012, a large scale swimming event will take place on Presque Isle Bay near Erie, PA. The Captain of the Port Buffalo has determined that this large scale swimming event across a navigable waterway will pose significant risks to participants and the boating public.

With the aforementioned hazards in mind, the Captain of the Port Buffalo has determined that a temporary safety zone is necessary to ensure the safety of participants and the boating public during the Bay Swim V. The safety zone will be effective and enforced from 8:30 a.m. until 11:30 a.m. on June 30, 2012.

The safety zone will encompass all U.S. navigable waters of Presque Isle Bay, Erie, PA starting from Vista 3 in Presque Isle State Park at position 42°07′29.30″ N, 80°08′48.82″ W and extend in a straight line 1,000 feet wide to the Erie Yacht Club at position 42°07′21.74″ N, 80°07′58.30″ W (DATUM: NAD 83).

Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Buffalo or his designated on-scene representative. The Captain of the Port or his designated on-scene representative may be contacted via VHF Channel 16.

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

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS). We conclude that this rule is not a significant regulatory action because we anticipate that it will have minimal impact on the economy, will not interfere with other agencies, will not adversely alter the budget of any grant or loan recipients, and will not raise any novel legal or policy issues. The safety zone created by this rule will be relatively small and enforced for relatively short time. Also, the safety zone is designed to minimize its impact on navigable waters. Furthermore, the safety zone has been designed to allow vessels to transit around it. Thus, restrictions on vessel movement within that particular area are expected to be minimal. Under certain conditions, moreover, vessels may still transit through the safety zone when permitted by the Captain of the Port.

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

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

This temporary final rule may affect the following entities, some of which may be small entities: the owners of operators of vessels intending to transit or anchor in a portion of Presque Isle Bay near Erie, PA between 8:30 a.m. to 11:30 p.m. on June 30, 2012.

This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: This rule will be in effect for only approximately three hours and the safety zone will allow vessels to move freely around the safety zone in Presque Isle Bay. If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking process. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness.

If the rule will affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact LT Christopher Mercurio, Chief of Waterway Management, U.S. Coast Guard Sector Buffalo; telephone 716-843-9343, email. The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

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

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

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the FOR FURTHER INTFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

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

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

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

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

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

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

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

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

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

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

The Coast Guard will enforce the Safety Zone for the Fleet Week Maritime Festival in 33 CFR 165.1330 on August 1, 2012, from 8 a.m. until 8 p.m.; however, it will only be enforced thirty minutes prior to, during, and thirty minutes after the annual parade of ships and aerial demonstration.

In accordance with the general regulations in 33 CFR Part 165, Subpart C, no vessel operator may enter, transit, moor, or anchor within this safety zone, except for vessels authorized by the Captain of the Port or Designated Representative, thirty minutes prior to the beginning, during and thirty minutes following the conclusion of the Parade of Ships. For the purpose of this rule, the Parade of Ships includes both the pass and review of the ships near Pier 66 and the aerial demonstrations immediately following the pass and review. The Captain of the Port may be assisted by other federal, state, or local agencies as needed.

In order to transit through this safety zone, authorization must be granted by the Captain of the Port, Puget Sound, or his Designated Representative. All vessel operators desiring entry into this safety zone shall gain authorization by contacting either the on-scene U.S. Coast Guard patrol craft on VHF Ch 13 or Ch 16, or Coast Guard Sector Puget Sound Joint Harbor Operations Center (JHOC) via telephone at (206) 217-6002. Requests shall Indicate the reason why movement within the safety zone is necessary and the vessel's arrival and/or departure facility name, pier and/or berth. Vessel operators granted permission to enter this safety zone will be escorted by the on-scene patrol until no longer within the safety zone.

This notice is issued under authority of 33 CFR 165.1330 and 5 U.S.C. 552(a). In addition to this notice in the Federal Register , the Coast Guard will provide the maritime community with extensive advance notification of this enforcement period via the Local Notice to Mariners and marine information broadcasts. If the Captain of the Port determines that the regulated area need not be enforced for the full duration stated in this notice, he may use a Broadcast Notice to Mariners to grant general permission to enter the regulated area.

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

EPA is taking final action to approve changes to the Florida SIP such that it is consistent with federal requirements for NSR permitting. On October 19, 2007, and July 1, 2011, 1 FDEP submitted revisions to EPA for approval into the Florida SIP to adopt federal requirements for NSR permitting promulgated in the Phase II Rule. Florida's October 19, 2007, SIP revision makes changes to the State's air quality regulations at Chapter 62-210, Florida Administrative Code (F.A.C.), Stationary Sources—General Requirements, Section 200—Definitions (rule 62-210.200), and Chapter 62-212, F.A.C., Stationary Sources—Preconstruction Review, Section 400—Prevention of Significant Deterioration (rule 62-210.400). Florida's July 1, 2011, SIP revision also makes changes at Chapter 62-210, F.A.C., to adopt PSD provisions promulgated in the Phase II Rule. Specifically, both SIP revisions amend the State's PSD regulations to establish that PSD permit applicants must identify NOx as an ozone precursor as established in the Phase II Rule. Lastly, both SIP revisions make clarifying and corrective changes to Florida's rules at Chapters 62-210 and 62-212, F.A.C. Pursuant to section 110 of the CAA, EPA is approving these changes into the Florida SIP. EPA notes that Florida's October 19, 2007, SIP submission makes clarifying changes to rule 62-212.400(11), F.A.C., regarding applicable public participation requirements for PSD permitting. However, because Florida's subsequent July 1, 2011, SIP revision made subsequent revisions to this public participation provision, EPA is not taking action to approve Florida's October 19, 2007, revision to rule 62-212.400(11), F.A.C. EPA is taking final action to approve the subsequent July 1, 2011, clarifying amendments to rule 62-212.400(11), F.A.C. into the Florida SIP.

On April 5, 2012, EPA published a proposed rulemaking to approve the aforementioned changes to Florida's NSR PSD program. See 77 FR 20582. Comments on the proposed rulemaking were due on or before May 7, 2012. No comments, adverse or otherwise, were received on EPA's April 5, 2012, proposed rulemaking. EPA is now taking final action to approve the changes to Florida's NSR PSD program as outlined in EPA's April 5, 2012, proposed rulemaking. A summary of the background for today's final actions is provided below.

With regard to the 1997 8-hour ozone NAAQS, 2 EPA's Phase II Rule, finalized on November 29, 2005, addressed control and planning requirements as they applied to areas designated nonattainment for the 1997 8-hour ozone NAAQS such as reasonably available control technology, reasonably available control measures, reasonable further progress, modeling and attainment demonstrations, NSR, and the impact to reformulated gas for the 1997 8-hour ozone NAAQS transition. See 70 FR 71612. The NSR permitting requirements established in the rule included the following provisions: Recognizing NO X as an ozone precursor for PSD purposes; changes to the nonattainment new source review (NNSR) rules establishing major stationary thresholds (marginal, moderate, serious, severe, and extreme nonattainment classifications) and significant emission rates for the 8-hour ozone, PM 10 and carbon monoxide NAAQS; revising the criteria for crediting emission reductions credits from operation shutdowns and curtailments as offsets, and changes to offset ratios for marginal, moderate, serious, severe, and extreme ozone nonattainment.

The Phase II Rule made changes to federal regulations at 40 CFR 51.165 and 51.166 (which govern the NNSR and PSD permitting programs respectively). Pursuant to these requirements, states were required to submit SIP revisions adopting the relevant federal requirements of the Phase II Rule (at 40 CFR 51.165 and 51.166) into their SIP no later than June 15, 2007. Florida's October 19, 2007, and July 1, 2011, SIP revisions adopt the relevant provisions at 40 CFR 51.66 into the Florida SIP to be consistent with federal regulations for NSR PSD permitting requirements promulgated in the Phase II Rule with minor variations. States may meet the requirements of 40 CFR part 51 and the Phase II Rules with alternative but equivalent regulations. As part of its analysis of Florida's October 19, 2007 and July 1, 2011, SIP revisions, EPA conducted a thorough review of the State's submittals including those provisions that differ from the federal rules (specifically the term “regulated NSR pollutant” at 40 CFR 51.166(b)(49)). EPA determined that Florida's term “PSD pollutant”  3 is equivalent to the federal PSD definition “regulated NSR pollutant” and consistent with the program requirements for NSR, set forth at 40 CFR 51.166 related to the relevant revisions amended in the Phase II Rule. For more detail on Florida's equivalent PSD provisions for the definition of “regulated NSR pollutant” related to the Phase II Rule, please refer to EPA's proposed rulemaking at 77 FR 20584 (May 5, 2012). See also 73 FR 36435 (June 27, 2008).

Finally, Florida's October 19, 2007, and July 1, 2011, SIP revisions make clarifying changes and typographical corrections to portions of the State's NSR regulations at Chapter 62-210 and 212. Florida's October 19, 2007, SIP revisions make clarifying and/or corrective changes to rule 62-212.400, F.A.C including amending subsection entitled “General Prohibitions” at rule 62-212.400(1) by replacing the term “Prohibitions” with the term “Provisions”; and adding language at rule 62-212.400(1)(c) and 62-212.720— Actuals Plantwide Applicability Limits (PALs), to clarify that the term “Administrator” in 40 CFR 52.21 shall mean “Department” when applying the portions of the federal rule cited from within the FDEP rules.

In addition, Florida's July 1, 2011, SIP revision corrected an administrative error in the definition of “major modification” by replacing the term “PSD pollutant” with “regulated air pollutant” at rule 62-210.200(186)(d), F.A.C. The July 1, 2011, SIP revision also amends the public participation provision at 62-212.400(11), F.A.C., to clarify that the applicable public notice and participation provisions can be found at 62-210.350, F.A.C., and 62-110.106, F.A.C., to satisfy the federal public participation requirements. Florida's October 19, 2007, SIP submission also made changes to rule 62-212.400(11), F.A.C., regarding applicable public participation requirements for PSD permitting. However, Florida's July 1, 2011, SIP revision made subsequent changes to the public participation provision at rule 62-212.400(11), F.A.C., and therefore, EPA is not taking action to approve Florida's October 19, 2007, revision to rule 62-212.400(11), F.A.C. EPA is instead approving the latest revision to rule 62-212.400(11), F.A.C., included in Florida's July 1, 2011, SIP revision.

Florida's October 19, 2007 and July 1, 2011, SIP revisions update the State's PSD definitions at Chapter 62-210, F.A.C. and provisions at Chapter 62-212, F.A.C. to adopt the NSR requirements promulgated in the Phase II Rule (at 40 CFR 52.21) recognizing NO X as an ozone precursor regarding: amendments to the definitions for “ major stationary source ” (40 CFR 52.21(b)(1)), “ major modification ” (40 CFR 52.21(b)(2)), “ significant ” (for significant emissions rate) (at 40 CFR 52.21(b)(23)(i)), “ regulated NSR pollutant ” (40 CFR 52.21(b)(50)), and the addition of a footnote at 40 CFR 52.21(i)(5)(i)(f) establishing the requirement for ambient air impact analysis. The Phase II rule also made other revisions to the NNSR program; however, only the addition of PSD amendments recognizing NO X as an ozone precursor is relevant to this action.

Florida's October 19, 2007, SIP revision, which became state effective July 16, 2007, revised definitions at rule 62-210.200, F.A.C., for “ major stationary source, ” “ significant emissions rate ” (or “ significant ” at 40 CFR 52.21(b)(23)(i)), and “ PSD pollutant ”  4 (Florida's equivalent to the federal term “ regulated NSR pollutant ” at 40 CFR 52.21 (b)(50)) by adding the term “nitrogen oxides” to recognize NO X as an ozone precursor. The changes at rule 62-212.400, F.A.C., also addressed the inclusion of “nitrogen oxides” in the footnote at 62-212.400(3)(e)1.e., (as amended at 40 CFR 52.21 (i)(5)(i)(f)) regarding air quality level for ozone. 5 Florida's July 1, 2011, SIP revision, which became state effective October 12, 2008, revised the definition for “ major modification ” to be consistent with the definition promulgated in the Phase II Rule to include NO X as an ozone precursor.

As mentioned above, both Florida SIP submittals made clarifying changes and corrected typographical errors at Florida Chapter 62-210 and 212, F.A.C. Specifically Florida's October 19, 2007, SIP submission made changes to rule 62-212.400(11), F.A.C., regarding applicable public participation requirements for PSD permitting. However, because Florida's July 1, 2011 SIP revision made subsequent changes 62-212.400(11), F.A.C., EPA is not approving the October 19, 2007 SIP revision to 62-212.400(11), F.A.C., into the Florida SIP. EPA is instead approving the latest revision to rule 62-212.400(11), F.A.C., included in Florida's July 1, 2011, SIP revision. EPA has determined that Florida's October 19, 2007, and July 1, 2011, SIP revisions, both meet the NSR PSD permitting requirements established in the Phase II Rule and are consistent with section 110 of the CAA.

Pursuant to section 110 of the CAA, EPA is taking final action to approve Florida's October 19, 2007, and July 1, 2011, SIP revisions adopting federal PSD definitions and provisions amended in the Phase II Rule specifically recognizing NO X as an ozone precursor into the Florida SIP. EPA is also taking final action to approve Florida's clarifying changes and correction to Florida's NSR rules. EPA is approving these revisions into the Florida SIP because they are consistent with section 110 of the CAA and EPA implementing NSR regulations.

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 14, 2012. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See CAA section 307(b)(2), 42 U.S.C. 7607(b)(2).

40 CFR part 52 is amended as follows:

Transportation conformity (hereafter referred to as “conformity”) is required under section 176(c) of the Clean Air Act (CAA or Act) to ensure that federally supported highway, transit projects, and other activities are consistent with (“conform to”) the purpose of the SIP. Conformity currently applies to areas that are designated nonattainment, and to areas that have been redesignated to attainment after 1990 (maintenance areas) with plans developed under section 175A of the Act, for the following transportation related criteria pollutants: Ozone, particulate matter (e.g., PM 2.5 and PM 10 ), carbon monoxide, and nitrogen dioxide.

Conformity to the purpose of the SIP means that transportation activities will not cause new air quality violations, worsen existing violations, or delay timely attainment of the relevant criteria pollutants, also known as national ambient air quality standards (NAAQS). The transportation conformity regulation is found in 40 CFR part 93 and provisions related to conformity SIPs are found in 40 CFR 51.390.

EPA promulgated the Federal transportation conformity criteria and procedures (“Conformity Rule”) on November 24, 1993 (58 FR 62188). Among other things, the rule required states to address all provisions of the conformity rule in their SIPs frequently referred to as “conformity SIPs.” Under 40 CFR 51.390, most sections of the conformity rule were required to be copied verbatim. States were also required to tailor all or portions of the following three sections of the conformity rule to meet their state's individual circumstances: 40 CFR 93.105, which addresses consultation procedures; 40 CFR 93.122(a)(4)(ii), which addresses written commitments to control measures that are not included in a metropolitan planning organization's (MPO's) transportation plan and transportation improvement program that must be obtained prior to a conformity determination, and the requirement that such commitments, when they exist, must be fulfilled; and 40 CFR 93.125(c), which addresses written commitments to mitigation measures that must be obtained prior to a project-level conformity determination, and the requirement that project sponsors must comply with such commitments, when they exist.

On August 10, 2005, the “Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users” (SAFETEA-LU) was signed into law. SAFETEA-LU revised section 176(c) of the CAA transportation conformity provisions. One of the changes streamlines the requirements for conformity SIPs. Under SAFETEA-LU, states are required to address and tailor only three sections of the rule in their conformity SIPs: 40 CFR 93.105, 40 CFR 93.122(a)(4)(ii), and, 40 CFR 93.125(c), described above. In general, states are no longer required to submit conformity SIP revisions that address the other sections of the conformity rule. These changes took effect on August 10, 2005, when SAFETEA-LU was signed into law.

Effective June 15, 2004, EPA designated 20 whole counties in the Atlanta area, as nonattainment for the 1997 8-hour ozone standard. The counties include Barrow, Bartow, Carroll, Cherokee, Clayton, Cobb, Coweta, DeKalb, Douglas, Fayette, Forsyth, Fulton, Gwinnett, Hall, Henry, Newton, Paulding, Rockdale, Spalding, and Walton counties. Effective April 5, 2005, EPA designated 20 whole counties, and a portion of two counties in the Atlanta area, as nonattainment for the 1997 Annual PM 2.5 standard. The whole counties include Barrow, Bartow, Carroll, Cherokee, Clayton, Cobb, Coweta, DeKalb, Douglas, Fayette, Forysth, Fulton, Gwinnett, Hall, Henry, Newton, Paulding, Rockdale, Spalding, and Walton counties; the partial counties include Heard and Putnam counties. The current designation status of both the Atlanta 1997 8-hour ozone and 1997 Annual PM 2.5 areas is nonattainment.

There are two MPOs that are responsible for transportation planning for areas within the Atlanta nonattainment areas. The Atlanta Regional Commission (ARC) is the MPO for most of the Atlanta 1997 8-hour ozone and 1997 Annual PM 2.5 nonattainment areas. ARC's planning boundary includes the whole counties of Cherokee, Clayton, Cobb, Coweta, DeKalb, Douglas, Fayette, Forsyth, Fulton, Gwinnett, Henry, Paulding and Rockdale counties; and portions of Barrow, Bartow, Newton, Spalding and Walton counties in the Atlanta, Georgia area. Gainesville-Hall MPO (GHMPO) is the other MPO for the Atlanta 1997 8-hour ozone and 1997 Annual PM 2.5 nonattainment areas. GHMPO's planning boundary includes Hall County. Walton County and the portions of Barrow, Bartow, Heard, Newton, Putnam, Spalding counties are considered “donut”  1 areas for the purposes of implementing transportation conformity in this area. Per the Transportation Conformity Rule, the MPO's conformity determination is not complete without a regional analysis that considers the projects in the MPO area(s) as well as the donut areas that are within the nonattainment/maintenance area. For the purposes of implementing 1997 8-hour ozone and 1997 Annual PM 2.5 conformity, ARC serves as the lead agency for the preparation, consultation, and distribution of the conformity determinations.

Previously Georgia had established transportation conformity SIP for the Atlanta area. On September 27, 2002, EPA approved the Atlanta area's SIP revision which incorporated by reference 40 CFR 93 Subpart A, 67 FR 60869, and customized 40 CFR 93.105, 93.122(a)(4)(ii), and 93.125(c) for all of the MPOs in the entire state. Specifically, the Atlanta area established a Memorandum of Agreement (MOA) for implementing the conformity Criteria and Consultation Procedure. The new conformity SIP (the subject of this rule making) has removed any incorporation by reference and has converted the MOA to a State Rule to be consistent with the SAFETEA-LU revisions to the CAA (Pub. L. 109-59) and subsequent regulations published on January 24, 2008 (73 FR 4420).

Effective April 5, 2005, EPA designated Hamilton County in Tennessee, Walker and Catoosa Counties in Georgia, and a portion of Jackson County, Alabama in the tri-state Chattanooga area, as nonattainment for the 1997 Annual PM 2.5 standard. The current designation status of the Chattanooga 1997 Annual PM 2.5 area is nonattainment.

The Chattanooga-Hamilton County, North Georgia Transportation Planning Organization (CHNGTPO) is the MPO for most of the tri-state Chattanooga, TN-GA, 1997 Annual PM 2.5 area. CHCNGTPO's planning boundary includes Portions of Walker and Catoosa Counties in Georgia and Hamilton County in Tennessee; Portions of Walker and Catoosa Counties in Georgia; and a portion of Jackson County, Alabama. The portion of Jackson County, Alabama that is within the Chattanooga 1997 Annual PM 2.5 area is not within the CHCNGTPO planning boundary and thus is considered a “donut” area for the purposes of implementing transportation conformity in this area. Per the Transportation Conformity Rule, the MPO's conformity determination is not complete without a regional analysis that considers the projects in the MPO area as well as the donut areas that are within the nonattainment/maintenance area. For the purposes of implementing 1997 Annual PM 2.5 conformity, CHCNGTPO serves as the lead agency for the preparation, consultation, and distribution of the conformity determinations.

Walker and Catoosa Counties in Georgia which are a part of the Chattanooga area do not have a previous conformity SIP. The states of Tennessee and Alabama will establish conformity procedures for the counties that make up the Tennessee and Alabama portion of the Chattanooga nonattainment area in their individual conformity SIPs. The SIP revision at issue now includes the conformity procedures for Walker and Catoosa Counties as part of the 1997 Annual PM 2.5 Chattanooga nonattainment area.

Effective June 15, 2004, EPA designated Bibb County and a portion of Monroe County in the Macon, Georgia area as nonattainment for the 1997 8-hour ozone standard. Effective April 5, 2005, EPA designated Bibb County and a portion of Monroe County in the Macon, Georgia area as nonattainment for the 1997 Annual PM 2.5 standard. The current designation status of the Macon 1997 8-hour ozone and 1997 Annual PM 2.5 areas are nonattainment for PM 2.5 and attainment (with a maintenance plan) for 1997 8-hour ozone (72 FR 53432, September 19, 2007).

The Macon Area Transportation Study (MATS) is the MPO for most of the Macon 1997 8-hour ozone and 1997 Annual PM 2.5 nonattainment area. The MATS planning boundary includes all of Bibb County. The portion of Monroe County that is included in the Macon 1997 8-hour ozone and 1997 Annual PM 2.5 nonattainment areas is not within the MATS planning boundary, and thus is considered a “donut” area for the purposes of implementing transportation conformity in this area. The donut area of Monroe County entered into an agreement with the Georgia Department of Transportation (DOT) that will allow the Georgia DOT to represent them. Per the transportation conformity regulations, the MPO's conformity determination is not complete without a regional analysis that considers the transportation projects in the MPO area as well as the donut areas that are within the nonattainment area. For the purposes of implementing 1997 8-hour ozone and 1997 Annual PM 2.5 conformity, MATS serves as the lead agency for the preparation, consultation and distribution of the conformity determination.

Bibb County and the portion of Monroe County, Georgia which are a part of the Macon area do not have a previous conformity SIP. The SIP revision at issue now includes the conformity procedures for both the entire county of Bibb and the portion of Monroe County, Georgia, for the Macon area.

Effective April 5, 2005, EPA designated a portion of Floyd County in the Rome-Floyd area as nonattainment for the 1997 Annual PM 2.5 standard. The current designation status of the Rome-Floyd County 1997 Annual PM 2.5 area is nonattainment. The Rome Floyd County MPO (RFCMPO) is the MPO for the entire Rome-Floyd 1997 Annual PM 2.5 area. For the purposes of implementing 1997 Annual PM 2.5 conformity, RFCMPO serves as the lead agency for the preparation, consultation, and distribution of the conformity determinations.

Floyd County, Georgia which is a part of the Rome area does not have a previous conformity SIP. The SIP revision at issue now includes the conformity procedures for the entire county of Floyd county, Georgia, for the Rome area.

On November 16, 2010, the State of Georgia, through GA DNR, submitted the State's transportation conformity and consultation interagency rule to EPA as a revision to the SIP. On February 21, 2011, and again on March 10, 2011, GA DNR submitted supplemental information regarding the Georgia transportation conformity rule. These three SIP revisions established procedures for interagency consultation and replaced the Memorandum of Agreement submitted by GA DNR and approved by EPA on September 27, 2002 (67 FR 60869).

The State of Georgia developed its consultation rule based on the elements contained in 40 CFR 93.105, 93.122(a)(4)(ii), and 93.125(c). As a first step, the State worked with the existing transportation planning organization's interagency committee that included representatives from the State air quality agency, State DOT, Federal Highway Administration—Georgia Division, Federal Transit Administration, the MPOs of the maintenance and nonattainment areas of Georgia, and EPA. The interagency committee met regularly and drafted the consultation rules considering elements in 40 CFR Part 93.105, 93.122(a)(4)(ii), and 93.125(c), and integrated the local procedures and processes into the rule. The consultation process developed in this rule is for the State of Georgia. On July 6, 2010, GA DNR held a public hearing for the transportation conformity rulemaking.

EPA has evaluated this SIP and has determined that the State has met the requirements of Federal transportation conformity rule as described in 40 CFR Part 51, Subpart T and 40 CFR Part 93, Subpart A. GA DNR has satisfied the public participation and comprehensive interagency consultation requirement during development and adoption of the State Rule at the local level. Therefore, EPA is approving the rule as a revision to the Georgia SIP. EPA's rule requires the states to develop their own processes and procedures for interagency consultation among the federal, state, and local agencies and resolution of conflicts meeting the criteria in 40 CFR 93.105. The SIP revision must include processes and procedures to be followed by the MPO, state DOT, and U.S. DOT in consulting with the state and local air quality agencies and EPA before making conformity determinations. The transportation conformity SIP revision must also include processes and procedures for the state and local air quality agencies and EPA to coordinate the development of applicable SIPs with MPOs, state DOTs, and U.S. DOT.

EPA has reviewed the submittal to assure consistency with the CAA as amended by SAFETEA-LU and EPA regulations (40 CFR part 93 and 40 CFR 51.390) governing state procedures for transportation conformity and interagency consultation and has concluded that the submittal is approvable. Details of EPA's review are set forth in a technical support document (TSD), which has been included in the docket for this action. Specifically, in the TSD, EPA identifies how the submitted procedures satisfy our requirements under 40 CFR 93.105 for interagency consultation with respect to the development of transportation plans and programs, SIPs, and conformity determinations, the resolution of conflicts, and the provision of adequate public consultation, and our requirements under 40 CFR 93.122(a)(4)(ii) and 93.125(c) for enforceability of control measures and mitigation measures.

For the reasons set forth above, EPA is taking action under section 110 of the Act to approve the rule implementing the conformity criteria and consultation procedures revision to the Georgia SIP pursuant to the CAA, as a revision to the Georgia SIP. As a result of this action, Georgia's previously SIP-approved conformity procedures for Georgia (67 FR 60869, September 27, 2002), will be replaced by the procedures submitted to EPA on November 16, 2010, for approval and adopted by State of Georgia on August 25, 2010. This action also establishes consultation procedures for all counties in Georgia.

EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. However, in the proposed rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision should adverse comments be filed. This rule will be effective August 14, 2012 without further notice unless the Agency receives adverse comments by July 16, 2012.

If EPA receives such comments, then EPA will publish a document withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period. Parties interested in commenting should do so at this time. If no such comments are received, the public is advised that this rule will be effective on August 14, 2012 and no further action will be taken on the proposed rule.

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

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 14, 2012. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register , rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. This action may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).

40 CFR part 52 is amended as follows:

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:

Under sections 110(a)(1) and (2) of the CAA, and implementing EPA guidance, states were required to submit either revisions to their existing EPA approved SIPs necessary to provide for implementation, maintenance, and enforcement of the 1997 ozone NAAQS and the 1997 PM 2.5 NAAQS, or certifications that their existing SIPs for ozone and particulate matter already met those basic requirements. The statute requires that states make these submissions within 3 years after the promulgation of new or revised NAAQS. However, intervening litigation over the 1997 ozone NAAQS and the 1997 PM 2.5 NAAQS created uncertainty about how states were to proceed. 1 Accordingly, both EPA and the states were delayed in addressing these basic SIP requirements.

In a consent decree with Earth Justice, EPA agreed to make completeness findings with respect to these SIP submissions. Pursuant to this consent decree, EPA published completeness findings for all states for the 1997 8-hour ozone NAAQS on March 27, 2008, and for all states for the 1997 PM 2.5 NAAQS on October 22, 2008.

On October 2, 2007, EPA issued a guidance document entitled “Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) for the 1997 8-hour Ozone and PM 2.5 National Ambient Air Quality Standards,” making recommendations to states concerning these SIP submissions (the 2007 Guidance). Within the 2007 Guidance, EPA gave general guidance relevant to matters such as the timing and content of the submissions. Wisconsin made its infrastructure SIP submission for the 1997 ozone and PM 2.5 NAAQS on December 12, 2007. The State provided supplemental submissions to EPA on January 24, 2011, and March 28, 2011.

On April 28, 2011, EPA published its proposed action on the Region 5 states' submissions ( see 76 FR 23757). Notably, we proposed to find that Wisconsin had met the requirements of section 110(a)(2)(C) concerning state PSD programs generally, and in particular the requirement to include NO X as a precursor to ozone ( see 76 FR 23757 at 23760-23761), thereby satisfying the requirement that the State has an adequate PSD program pursuant to section 110(a)(2)(C) for both the 1997 ozone and 1997 PM 2.5 NAAQS. 2

During the comment period for the April 28, 2011, proposed rulemaking, EPA received three sets of comments. Two of the commenters observed that although we had proposed to approve Wisconsin's infrastructure SIP as meeting the correct requirements for NO X as a precursor to ozone in the State's PSD program, Wisconsin's PSD SIP does not contain the most recent PSD program revisions required by EPA for this purpose. One of the commenters also noted that Wisconsin's existing SIP does not meet current EPA requirements with respect to NSR because Wisconsin has not included fuel changes as “major modifications” in its NSR program for certain sources under certain conditions. A detailed discussion of these comments as they relate to Wisconsin's SIP was included in the April 20, 2012, proposed rulemaking ( see 77 FR 23647), which is the basis for this final action.

As a result of the comments received in response to our April 28, 2011, proposed rulemaking, we did not promulgate final action on those two limited aspects of Wisconsin's infrastructure SIP in our July 13, 2011, final rulemaking ( see 76 FR 41075). We did, however, promulgate final action on all other applicable elements of Wisconsin's infrastructure SIP. In the July 13, 2011, rulemaking, we committed to address the issues raised in the comments concerning NO X as a precursor to ozone and the definition of “major modification” related to fuel changes for certain sources in Wisconsin in a separate action; our April 20, 2012, proposed rulemaking and this final rulemaking serve as that action.

On April 20, 2012, we proposed to disapprove the State's infrastructure SIP submission with respect to two narrow issues related to section 110(a)(2)(C). During the comment period on the April 20, 2012, proposed rulemaking, EPA received two comment letters. EPA addresses the significant and relevant comments in this final action, specifically in the following section.

The public comment period for EPA's proposal to disapprove the narrow portions of the submittals from Wisconsin addressing the current regulatory requirements for NO X as a precursor to ozone in PSD permitting and the definition of “major modification” related to fuel changes for certain sources  3 closed on May 21, 2012. EPA received two comment letters, one of which was not relevant to this rulemaking. A synopsis of the significant individual comments contained in the other letter, as well as EPA's response to each comment, is discussed below:

Comment 1: WDNR submitted a comment letter that states that although Wisconsin's SIP does not explicitly include all portions of the regulatory language EPA required states to adopt in the “Final Rule to Implement the 8-Hour Ozone National Ambient Air Quality Standard—Phase 2; Final Rule to Implement Certain Aspects of the 1990 Amendments Relating to New Source Review and Prevention of Significant Deterioration as They Apply in Carbon Monoxide, Particulate Matter, and Ozone NAAQS; Final Rule for Reformulated Gasoline” (Phase 2 Rule) ( see 70 FR 71612), WDNR does in fact consider NO X as a precursor of ozone in its permitting decisions. WDNR also states that it has consistently treated NO X as a precursor to ozone, and existing language in Wisconsin Administrative Code section NR 405.02(25i) clearly gives WDNR the authority to regulate NO X as a precursor for ozone, as it has been identified as such by EPA. WDNR further states that it is not aware of any situation where it has not consistently used this existing authority in its major NSR program. Lastly, WDNR states that in response to EPA's and the public's concern over this issue, it currently has under development a revision to Wisconsin Administrative Code section NR 405.02(25i) to ensure that the language is wholly consistent with Federal language contained in 40 CFR 51.166, as required by the Phase 2 Rule. Upon revision and final adoption at the state level, WDNR has committed to submit the revisions to EPA for approval and incorporation into the SIP.

Response 1: EPA recognizes that Wisconsin currently has some authority to treat NO X as a precursor to ozone in permitting decisions, and EPA appreciates the State's efforts to ensure that NO X is correctly evaluated as a precursor to ozone in fact. However, the Phase 2 Rule obligates states to make explicit regulatory changes in order to clarify and remove any ambiguity concerning the requirement that NO X be treated as a precursor to ozone in permitting contexts in specific ways. The Phase 2 Rule requires states to submit SIP revisions incorporating the requirements of the rule, including these specific NO X as a precursor to ozone provisions, by June 15, 2007 ( see 70 FR 71612 at 71683). As explained in our April 20, 2012, proposed rulemaking, states that had not incorporated the necessary changes specific to NO X as a precursor to ozone as required by the Phase 2 Rule were included in EPA's March 27, 2008, “Completeness Findings for Section 110(a) State Implementation Plans for the 8-hour Ozone NAAQS” and received a finding of failure to submit related to section 110(a)(2)(C) for this reason ( see 73 FR 16205).

As a result of EPA's own regulations, submission deadlines, and actions germane to the explicit identification of NO X as a precursor to ozone in Federally approved PSD programs, EPA is finalizing the disapproval of portions of Wisconsin's infrastructure SIP submission with respect to the NO X as a precursor to ozone provision requirements of section 110(a)(2)(C) for the 1997 ozone and PM 2.5 NAAQS.

EPA appreciates Wisconsin's efforts to develop SIP revisions that will be wholly consistent with the Federal language contained in 40 CFR 51.166. EPA will work actively with the State to ensure that the necessary SIP revisions are completed as expeditiously as possible. In the interim, we will work actively with the State to ensure that NO X is correctly treated as a precursor to ozone in a manner consistent with the requirements of the Phase 2 Rule.

Comment 2: In the same comment letter, WDNR recognizes that its definition of “major modification” as found in Wisconsin Administrative Code section NR 405.02(21)(b)5.a. does not include language that recognizes prohibitions on fuel use exemptions that may have been contained in Federally-issued PSD permits issued prior to EPA's approval of Wisconsin's PSD SIP. However, WDNR does not agree with the notion that the omission in fact allows more exemptions than what is allowed by Federal rules.

WDNR states that under its title V operating permit program, all applicable requirements to a source are included in its operation permit. As a result, WDNR states that it clearly recognizes that requirements contained in a Federally-issued PSD permit would be an applicable requirement to the source and that it would be included in the source's title V operating permit, therefore making the requirement fully enforceable under State and Federal law.

WDNR states that this issue is a very narrow one, and that it is not aware of a single situation where an omission has occurred in practice. Further, WDNR believes that the omission in its definition of “major modification” was an oversight that occurred during rule writing, and cites a previous commitment to EPA to make a correction. Lastly, WDNR states that a correction to the definition in question has begun, and will be part of the same rulemaking effort that will address the NO X as a precursor to ozone provision.

Response 2: EPA agrees that this issue is a very narrow one, and that an omission in practice is perhaps nonexistent. Nonetheless, as explained in EPA's April 20, 2012, proposed rulemaking, this is an issue that has previously arisen, and that the State has acknowledged and agreed to address. WDNR's previous commitment to address the issue, dated June 1, 2011, did not include a date certain by which it would complete the requested revision of the State's regulation. As a result, EPA could not promulgate an approval or conditional approval of the section 110(a)(2)(C) portion of Wisconsin's infrastructure SIP for the 1997 ozone and PM 2.5 NAAQS with respect to this narrow issue.

EPA recognizes that in practice, WDNR has the authority and means to ensure adherence to the prohibitions on fuel use exemptions in certain instances, consistent with our own definition of “major modification.” However, our regulations along with a previous request to the State to make appropriate revisions to the SIP necessary to address this issue result in finalizing the disapproval of Wisconsin's infrastructure SIP submissions for the 1997 ozone and PM 2.5 NAAQS. This narrow disapproval pertains to the NSR exemption for fuel changes as “major modifications” where the source was capable of accommodating the change before January 6, 1975. Once again, we note that this disapproval is a narrow one, and limited to the specific state regulatory language concerning the exemption.

EPA appreciates WDNR's efforts to correct the definition of “major modification” and will actively work with the State to ensure that alignment of the State and Federal definition for “major modification” occurs as expeditiously as possible. In addition, we will work actively with the State as needed to ensure adherence to the prohibitions on fuel use exemptions in Federally-issued permits.

For the reasons discussed in the proposed rulemaking, EPA is taking final action to disapprove two narrow portions of Wisconsin's infrastructure SIP submissions for the 1997 ozone and PM 2.5 NAAQS with respect to section 110(a)(2)(C). Specifically, we are finalizing disapproval of portions of Wisconsin's submissions because the current SIP does not satisfy the requirements of the Phase 2 Rule for explicit identification of NOx as a precursor to ozone in PSD permitting. We are also finalizing disapproval of portions of Wisconsin's submissions because the current SIP contains an impermissible NSR exemption for fuel changes as “major modifications” where the source was capable of accommodating the change before January 6, 1975. These grounds for disapproval are narrow, and pertain only to these specific deficiencies in Wisconsin's SIP. The State has begun the process for rectifying these two issues, and we will work with the State to rectify these issues promptly.

Under section 179(a) of the CAA, final disapproval of a submission that addresses a requirement of a Part D Plan (section 171-section 193 of the CAA), or is required in response to a finding of substantial inadequacy as described in section 110(k)(5) starts a sanction clock. The provisions in the submissions we are disapproving were not submitted by Wisconsin to meet either of those requirements. Therefore, no sanctions under section 179 will be triggered.

The full or partial disapproval of a SIP revision triggers the requirement under section 110(c) that EPA promulgate a Federal Implementation Plan (FIP) no later than 2 years from the date of the disapproval unless the State corrects the deficiency, and the Administrator approves the plan or plan revision before the Administrator promulgates such FIP. As previously mentioned, Wisconsin has begun the process to rectify each of these deficiencies. Further, EPA anticipates acting on WDNR's submissions to address these two issues within the 2-year time frame prior to our FIP obligation on these very narrow issues. In the interim, EPA expects WDNR to address NOx as a precursor to ozone correctly for PSD permitting consistent with the requirements of the Phase 2 Rule, and to ensure adherence to the prohibitions on fuel use exemptions in Federally-issued permits. The State has indicated that it will be addressing both issues correctly in permitting decisions in the interim, so EPA anticipates that the practical implications of these disapprovals should be minimal.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and, therefore, is not subject to review by the Office of Management and Budget.

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

This action merely disapproves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ).

Because this rule disapproves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (59 FR 22951, November 9, 2000).

This action also does not have Federalism implications because it does not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely disapproves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the CAA.

This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it disapproves a state rule implementing a Federal Standard.

In reviewing state submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. In this context, in the absence of a prior existing requirement for the state to use voluntary consensus standards (VCS), EPA has no authority to disapprove a state submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a state submission, to use VCS in place of a state submission that otherwise satisfies the provisions of the CAA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply.

This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 14, 2012. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

Therefore, 40 CFR part 52 is amended as follows:

Information is organized as follows:

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

Under the CAA enacted in 1970, EPA established national ambient air quality standards (NAAQS) for certain pervasive air pollutants, such as photochemical oxidant, carbon monoxide (CO), and particulate matter. The NAAQS represent concentration levels below which public health and welfare are protected. The 1970 Act also required states to adopt and submit SIPs to implement, maintain, and enforce the NAAQS.

SIP revisions are required from time-to-time by the CAA to account for new or amended NAAQS or to meet other changed circumstances. The CAA was significantly amended in 1977, and under the 1977 Amendments, EPA promulgated attainment status designations for all areas of the country with respect to the NAAQS.

The CAA requires EPA to periodically review and revise the NAAQS, and in 1979, EPA established a new NAAQS of 0.12 ppm for ozone, averaged over 1 hour. This new NAAQS replaced the oxidant standard of 0.08 ppm. See 44 FR 8202 (February 8, 1979). Areas designated nonattainment for oxidant were considered to be nonattainment for ozone as well. Part D of CAA Title I requires special measures for areas designated nonattainment. In 1984, EPA approved Utah's SIP for the 1-hour ozone standard for the Salt Lake County and Davis County nonattainment area (49 FR 32575).

Congress significantly amended the CAA again in 1990. Under the 1990 Amendments, each area of the country that was designated nonattainment for the 1-hour ozone NAAQS, including Salt Lake County and Davis County, was classified by operation of law as marginal, moderate, serious, severe, or extreme nonattainment depending on the severity of the area's air quality problem. The ozone nonattainment designation for Salt Lake County and Davis County continued by operation of law according to section 107(d)(1)(C)(i) of the CAA, as amended in 1990. Furthermore, the area was classified by operation of law as moderate for ozone under CAA section 181(a)(1).

Under CAA section 175A, states may request redesignation of a nonattainment area to attainment if monitoring data showed that the area has met the NAAQS and certain other requirements. On July 18, 1995, both Salt Lake and Davis Counties were found to be attaining the 1-hour ozone standard (60 FR 36722). On July 17, 1997, EPA approved the State's request to redesignate Salt Lake and Davis County to attainment for the 1-hour ozone standard. As part of that action, EPA approved the State's 1-hour ozone maintenance plan (62 FR 38213).

On July 18, 1997, EPA promulgated an 8-hour ozone NAAQS (62 FR 38856). This standard was intended to replace the 1-hour ozone standard.

On February 22, 1999, partially in response to EPA's promulgation of the 8-hour ozone NAAQS, but for other purposes as well, Utah submitted six revisions to its approved 1-hour maintenance plan. These revisions consisted of the following: (1) Changes to the nitrogen oxides (NO X ) Reasonably Available Control Technology (RACT) provisions; (2) clarification of the transportation conformity provisions; (3) removal of budgets for sources other than on-road mobile sources; (4) changes to the trigger for contingency measures; (5) removal of the commitment to develop an annual inventory for point sources; and (6) removal of references to CO in various sections of the maintenance plan. EPA did not act on the revisions at the time, in part because of a 1999 legal challenge to the 1997 8-hour ozone NAAQS.

On December 31, 2002, Utah submitted what it characterized as non-substantive changes to the 1-hour ozone maintenance plan. The primary purpose of the changes was to revise cross-references in the 1-hour maintenance plan to Utah air rules whose numbering Utah had changed. EPA approved these changes in 2003 (68 FR 37744, June 25, 2003). Subsequently, EPA discovered that in the June 25, 2003 action it had inadvertently incorporated by reference certain changes to the contingency measures provision in the 1-hour ozone maintenance plan that were substantive in nature and had not been previously approved—i.e., the proposed changes to the contingency measures that Utah had submitted on February 22, 1999. On October 15, 2003, EPA issued a technical correction to delete the changes to the contingency measures provision from the approved SIP (68 FR 59327).

We have since discovered that Utah's December 31, 2002, submittal included other revisions from its February 22, 1999, submittal that were substantive in nature. These revisions included the (1) Changes to the NO X RACT provisions, (2) removal of the commitment to develop an annual inventory for point sources, and (3) removal of references to CO in some sections of the maintenance plan. Because we were not aware that we had inadvertently approved these revisions in 2003, we did not issue a technical correction to reverse our approval. As we explain more fully below, in this action we are proposing to ratify our 2003 inadvertent approval of these revisions.

On April 30, 2004, EPA designated areas of the country for the 1997 8-hour ozone standard. EPA designated all areas in Utah, including Salt Lake County and Davis County, as unclassifiable/attainment for the 1997 8-hour ozone NAAQS (69 FR 23858, April 30, 2004).

Also, on April 30, 2004, EPA revoked the pre-existing 1-hour NAAQS (69 FR 23951; 40 CFR 50.9(b)). As part of this rulemaking, EPA also established certain requirements to prevent backsliding in those areas that were designated as nonattainment for the 1-hour ozone standard at the time of designation for the 8-hour ozone standard, or that were redesignated to “attainment” but subject to a maintenance plan, as is the case for Salt Lake County and Davis County. These requirements are codified at 40 CFR 51.905.

In the case of Utah, one of these requirements was to submit a maintenance plan for the 1997 8-hour ozone standard. Also, the rule clarifies that revisions to pre-existing 1-hour ozone maintenance plans must be approved by EPA and must meet the requirements of CAA sections 110(l) and 193. It also clarifies that EPA will not approve certain changes to the 1-hour ozone maintenance plan until a state in Utah's position has submitted and EPA has approved the maintenance plan for the 1997 8-hour ozone standard. We have not approved a maintenance plan for the 1997 8-hour ozone standard for Salt Lake County or Davis County.

On March 22, 2007, the Governor of Utah submitted a maintenance plan for the 1997 8-hour ozone standard for Salt Lake County and Davis County, and associated rule revisions. EPA is not taking action on that submittal at this time. 1 Rather, EPA is only acting on the revisions to the maintenance plan submitted on February 22, 1999.

The State's February 22, 1999, submittal included six revisions to the 1-hour ozone maintenance plan. As noted above, the State's December 31, 2002, submittal included some of the same revisions, and we inadvertently approved some of those revisions. We describe the various revisions and our analysis of them in the following paragraphs.

A. Section IX.D.2.b(4)(a), “NO X RACT.” The State's 1999 submittal proposed to remove from the maintenance plan a commitment to address new “Alternative Control Guidance Documents (ACTs)” for NO X issued by EPA. That commitment read as follows:

In this action, we are proposing to ratify our 2003 approval for the following reasons. First, when we approved the maintenance plan in 1997, we simultaneously approved Utah's NO X RACT exemption request for major stationary sources in the 1-hour ozone nonattainment area, except to the extent the SIP already included specific NO X RACT requirements (62 FR 28403, May 23, 1997; 62 FR 38213, July 17, 1997). The basis for our approval was that ambient air quality monitoring data showed that the area met the 1-hour ozone standard of 0.12 ppm without additional RACT measures. Thus, if the maintenance plan had omitted the commitment regarding future NO X ACTs, we would have approved it; the commitment was not required or necessary, and the purpose of Utah's revision to the maintenance plan was to align the plan with the NO X RACT exemption request. In light of our approval of that exemption request, the removal of the commitment in the maintenance plan is reasonable, since it is not needed to ensure maintenance of the 1-hour ozone NAAQS.

Second, ACTs do not determine what constitutes RACT; instead they evaluate a range of potential control options. EPA has updated only two NO X ACTs since we approved the maintenance plan in 1997—one for cement manufacturing and one for internal combustion engines—and we do not read those updates as being “new determinations of what constitutes RACT.” In other words, we conclude that the commitment has not been triggered, even if there are sources in the maintenance area for which the updated ACTs would be relevant. We also conclude that the commitment will not be triggered in the future because EPA does not determine RACT in ACTs. Thus, we conclude that the removal of the commitment from the maintenance plan will not interfere with attainment of any NAAQS or any other applicable requirement of the CAA. See CAA section 110(l).

B. Section IX.D.2.f(3), “Safety Margin,” and Table 9, “Safety Margin.” The State's 1999 submittal proposed to modify the maintenance plan's language regarding the use of any safety margin for transportation conformity determinations and to add new Table 9, which specifies the safety margin available for various years. For a maintenance plan, our regulations define safety margin as the amount by which the total projected emissions from all sources of a given pollutant are less than the total emissions that would satisfy the maintenance requirement. 40 CFR 93.101. The existing language in Utah's 1-hour ozone maintenance plan uses the term “emissions credit” rather than “safety margin.” Also, the existing language doesn't identify the available safety margin. The revised language uses the term “safety margin,” which is consistent with EPA's regulations, and indicates that the safety margin is defined in Table 9 of the maintenance plan. Our regulations require that the safety margin be explicitly quantified in the SIP before it may be used for conformity purposes. 40 CFR 93.124. The revised language also clarifies and strengthens the procedures for use of the safety margin for transportation or general conformity determinations. Use of all or a portion of the safety margin for general conformity purposes would require EPA approval of a SIP revision. Also, the Utah Board would need to approve the use of any part of the safety margin for either transportation or general conformity purposes. We find that the revisions to Section IX.D.2.f(3) and the addition of Table 9 are consistent with our conformity regulations and will not interfere with maintenance of the 1-hour ozone standard, attainment or maintenance of any other NAAQS, or any other CAA requirement.

C. Section IX.D.2.f, Table 8. The State's 1999 submittal proposed to remove from Table 8 of the maintenance plan the budgets for sources other than on-road mobile sources. The previously approved maintenance plan contains budgets for area sources, non-road mobile sources, and point sources, in addition to the budgets for on-road mobile sources. These budgets are specified for years 1994 through 2006, 2007 (the end of the maintenance period), 2015, and 2020. The 2007 budgets are identical to the inventory values used to demonstrate maintenance in 2007. Under our general conformity regulations, these 2007 inventory values for sources other than on-road mobile sources are defined as budgets for general conformity regardless of whether they are explicitly stated in the maintenance plan. We also note that the 2007 budgets are more stringent than the 2015 and 2020 budgets (except for two instances in which the differences are very slight). Thus, we find that the removal of the 2015 and 2020 budgets for sources other than on-road mobile sources will make it more difficult to show general conformity. In this sense, removal of such budgets will make the SIP more stringent. In addition, we have confirmed with the State that the State has never allowed reliance on such budgets for a general conformity showing. Finally, such budgets are not needed to ensure ongoing maintenance of the 1-hour ozone NAAQS; nor will their removal from the maintenance plan interfere with the attainment or maintenance of other NAAQS or compliance with other CAA requirements. Thus, we approve the removal from the maintenance plan of the budgets for area, on-road mobile, and point sources.

D. Section IX.D.2.h(2), “Determination of Contingency Action Level.” The State's 1999 submittal proposed to change the maintenance plan's trigger for contingency measures. Instead of a defined trigger, the revised plan would allow the State to consider several factors in deciding whether contingency measures should be implemented to attain or maintain the 8-hour ozone standard. The revision would also redefine the contingency trigger date to be the date the State determines that one or more contingency measures should be implemented. EPA is disapproving these changes.

Our consistent interpretation has been that contingency measures in a maintenance plan must include a pre-defined trigger, such as a violation of the standard. In the maintenance plan, the State must commit to implement one or more contingency measures within a set period after the violation. The revised SIP does not include a pre-defined trigger, and, thus, we disapprove the State's revisions to Section IX.D.2.h(2) of the maintenance plan. 2

While 40 CFR 51.905(e) discusses modifications that may be implemented upon revocation of the 1-hour standard, including removal of the obligation to implement contingency measures upon a violation of the 1-hour NAAQS, the modifications only apply to areas with an approved maintenance plan for the 8-hour ozone standard. The State does not have an approved 8-hour ozone maintenance plan.

E. Section IX.D.2.j(1), “Tracking System for Verification of Emission Inventory.” The State's 1999 submittal proposed to remove the maintenance plan's reference to an annual inventory for point sources. Specifically, section IX.D.2.j(1)(b) of the previously approved maintenance plan includes the State's commitment to develop an annual inventory for point sources in the area. A separate section of the previously approved maintenance plan—section IX.D.2.j(1)(a)—includes a commitment to update the inventory for all source categories every three years. The State's 1999 submittal did not propose to change this latter commitment.

As noted, in our 2003 action we inadvertently approved the removal of the State's commitment to develop an annual inventory for point sources. In that 2003 action, we only intended to approve non-substantive changes to numbering and cross-references. In this action, we are ratifying our 2003 approval of the State's removal of the commitment to develop an annual inventory for point sources. Approval is warranted because such an inventory is not needed to ensure maintenance of the 1-hour ozone NAAQS. Nor will removal of the commitment to submit an annual inventory for point sources interfere with attainment or maintenance of any other NAAQS or compliance with any other CAA requirement. The maintenance plan retains the requirement that the State update its inventory of all source categories every three years. This is consistent with EPA's regulatory requirements for inventories, and we find that a three-year frequency is adequate to track emissions relevant to the maintenance plan.

F. Various Sections. The State's 1999 submittal proposed to remove all references to CO because CO is not a significant contributor to ozone formation. These references occur in a variety of locations in the 1-hour ozone maintenance plan. For example, the maintenance plan includes inventories for CO, transportation conformity budgets for CO, budgets for CO for sources other than on-road mobile sources, and references to inspection and maintenance provisions for CO.

As noted, we inadvertently approved the removal of some of these references to CO in our 2003 action, in which we only intended to approve non-substantive changes to numbering and cross-references. In this action, we are ratifying our 2003 approval of the State's removal of some of the references to CO and approving the State's removal of all other references to CO in the 1-hour ozone maintenance plan.

First, we agree with the State that CO is not a significant contributor to ozone formation. Thus, there is no need for CO measures to ensure maintenance of the 1-hour ozone standard or any other ozone standard. Second, the removal of the CO measures in the 1-hour ozone maintenance plan will not interfere with attainment or maintenance of any other NAAQS or compliance with any other CAA requirement. In particular, there are no CO nonattainment areas in Utah. Within Salt Lake and Davis Counties, the only maintenance area for CO is Salt Lake City. It has its own maintenance plan, with its own motor vehicle emissions budgets and CO measures. In addition, recent monitored ambient CO values for Salt Lake City and other areas in Utah are well below the level of the CO NAAQS.

Thus, the removal of CO measures in the 1-hour ozone maintenance plan is consistent with continued maintenance of the 1-hour ozone NAAQS and with CAA section 110(l).

G. Miscellaneous. As noted above, we previously approved revisions to the 1-hour ozone maintenance plan that the State submitted on December 31, 2002, a date that post-dates the date of the revisions we are proposing to act on today. In particular, in our June 25, 2003 action on the December 31, 2002 submittal, we approved Utah's updating of references in the 1-hour ozone maintenance plan to Utah air rules whose numbering Utah had changed after it submitted revisions to the 1-hour ozone maintenance plan in 1999. See 68 FR 37744. We are retaining the updated references to Utah air rules as we approved them in our June 25, 2003 action. We are not replacing these updated references with the older references contained in the 1-hour ozone maintenance plan that Utah submitted in 1999.

We received one comment letter on our April 10, 2012 notice of proposed rulemaking, from the Utah Division of Air Quality (UDAQ). Below we provide a summary of, and our response to, the State's comment.

Comment: UDAQ comments on EPA's proposed disapproval of Utah's revisions to the contingency measure provisions in the 1-hour ozone maintenance plan. UDAQ recommends that EPA approve the revisions. In the alternative, UDAQ asks that if partial disapproval is deemed necessary, EPA indicated that it will not require a revision of the plan or initiate work on a Federal Implementation Plan. UDAQ reasons that it would not be an acceptable use of limited state or EPA resources to prepare a revised plan for the 1-hour ozone standard, which has not been violated in the area since 1992 and which was revoked in 2005. UDAQ also indicates that ozone levels have continued to drop and that Salt Lake and Davis Counties were declared attainment areas for both the 1997 and 2008 ozone NAAQS. UDAQ asserts that it is not possible for Utah to revise the 1-hour ozone maintenance plan because any new regulatory requirements for ozone in Utah must reflect the current ozone standard, not the standard that was in effect 15 years ago and has been revoked in Utah. UDAQ also suggests that the contingency measure language in the federally-approved SIP is not practically enforceable by EPA. UDAQ states that it submitted a new maintenance plan in 2007 that addresses the 1997 ozone NAAQS and that contains an automatic trigger for contingency measures and a different set of contingency measures. UDAQ notes that EPA has not acted on the 2007 maintenance plan.

Response: The comments do not provide a basis for us to reverse our proposed disapproval of Utah's revisions to the contingency measure provisions. As noted in our April 10, 2012 proposal (77 FR 21515) and in section II, above, EPA's consistent interpretation has been that contingency measures in a maintenance plan must include a pre-defined trigger, such as a violation of the standard. In the maintenance plan, the State must commit to implement one or more contingency measures within a set period after the violation. The revised maintenance plan does not include a pre-defined trigger. Therefore, we cannot approve the State's revision.

This disapproval does not trigger a FIP obligation because the approved SIP remains in place and, contrary to UDAQ's assertion, remains federally enforceable. This is a well-established principle concerning SIPs—once approved, their provisions remain federally enforceable unless and until EPA approves a revision. As a practical matter, this may have little significance because Utah has been attaining the 1-hour ozone standard for many years and the relevant areas were designated unclassifiable/attainment for the 1997 and 2008 ozone standards. Thus, a violation of the 1-hour standard is unlikely. Nonetheless, as noted in our proposal and in section I above, the revocation of the 1-hour ozone standard did not automatically eliminate existing 1-hour ozone plan provisions from the SIP. Any changes require EPA approval, and EPA will not approve the removal of contingency measures for the 1-hour ozone standard until an area has an approved maintenance plan for the 8-hour ozone NAAQS. 77 FR 21514, 21515; 40 CFR 51.905(e). We intend to address Utah's 2007 maintenance plan for the 1997 ozone standard and any plans for the 2008 standard in separate actions, as necessary. 3

For the reasons described above, we are taking the following actions concerning Utah's revisions to the 1-hour ozone maintenance plan for Salt Lake and Davis Counties: 4

A. We are ratifying our June 25, 2003 approval (at 68 FR 37744) of the following revisions to the 1-hour ozone maintenance plan that Utah submitted on December 31, 2002:

1. The revisions to Section IX.D.2.b(4)(a), “NOx RACT;”

2. The revisions to subsection IX.D.2.j(1)(b) of Section IX.D.2.j(1), “Tracking System for Verification of Emission Inventory;” and

3. The removal of references to CO in the sections of the plan that we approved on June 25, 2003.

B. We are approving the revisions to the 1-hour ozone maintenance plan that Utah submitted on February 22, 1999 except for the following:

1. The revisions to Section IX.D.2.h(2), “Determination of Contingency Action Level,” which EPA is disapproving;

2. The revisions to the remainder of Section IX.D.2.h, which were superseded by the revisions to the plan that EPA approved on June 25, 2003;

3. The revisions to Sections IX.D.2.b, IX.D.2.d(1)(a), IX.D.2.e(1), IX.D.2.f(1)(a), IX.D.2.i, and IX.D.2.j, which were superseded by the revisions to the plan that EPA approved on June 25, 2003.

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

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

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

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

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

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

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

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

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

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

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

On February 10, 2012 HHS/CDC published a Direct Final Rule (DFR) (77 FR 6971) amending 42 CFR 71.53 by adding a new paragraph (j) to establish a user fee for filovirus testing of nonhuman primates. HHS/CDC took this action because (1) testing is no longer being offered by the only private, commercial laboratory that previously performed these tests and (2) we believed that these requirements were non-controversial and unlikely to generate significant adverse comment. The DFR incorrectly listed the effective date as March 12, 2012. On February 10, 2012, HHS/CDC also published a companion Notice of Proposed Rulemaking (NPRM) (77 FR 7109) that proposed identical filovirus testing and user fee requirements in the Federal Register . In both the DFR and NPRM, HHS/CDC indicated that if it did not receive any significant adverse comments by April 10, 2012, it would publish a document in the Federal Register withdrawing the notice of proposed rulemaking and confirming the effective date of the direct final rule within 30 days after the end of the comment period. Because of the error in effective date the DFR took effect prior to the expiration of the comment period.

HHS/CDC is now amending 42 CFR 71.53 by removing paragraph (j) which will have the same effect as if HHS/CDC had withdrawn the DFR. HHS/CDC is taking this action because of the error in effective date and due to having received significant adverse public comments. HHS/CDC will carefully review the comments received on the notice of proposed rulemaking published on February 10, 2012.

Accordingly, 42 CFR part 71 is corrected by making the following correcting amendment:

DoD published a proposed rule in the Federal Register at 76 FR 78874 on December 20, 2011. The comment period closed on February 21, 2012. One respondent submitted a public comment in response to the proposed rule.

DoD is updating the historical names of the Acts in the DFARS (e.g., the “Service Contract Act of 1965” is now the “Service Contract Labor Standards statute”). A table providing the historical titles of the Acts, the present statutory citation, and the new titles of the statutes is being proposed under FAR case 2011-018 for inclusion at FAR 1.110. That table will cover acts under both titles 40 and 41. Additionally, editorial changes are being made to conform to DFARS drafting conventions.

Although there were no substantive changes to the meaning of the statutes, there were some changes in terminology.

One respondent submitted two edits, which have been incorporated in the final rule at 225.1101(2)(i)(C) and 225.7000(b).

Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

DoD certifies that this final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because the rule does not change any policies or requirements. It just changes and updates references and terminology. Additionally, the proposed rule published at 76 FR 78874 on December 20, 2011, invited comments from small businesses and other interested parties. No comments were received from small entities on the affected DFARS subparts with regard to small businesses. Therefore, a Final Regulatory Flexibility Analysis has not been performed.

The rule does not impose any new information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

Therefore, 48 CFR parts 201, 203, 204, 212, 213, 217, 219, 222, 225, 233, 243, 252, and 48 CFR chapter 2 appendix I are amended as follows:

The interim rule implemented the legislation by establishing (1) Regulations addressing the selection, training, equipping, and conduct of personnel performing private security functions in areas of contingency operations, complex contingency operations, or other military operations or exercises that are designated by the combatant commander, (2) a contract clause, and (3) remedies. DoD published the interim rule in the Federal Register at 76 FR 52133 on August 19, 2011, to implement section 862, as amended, of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2008. Section 862 was amended by section 853 of the NDAA for FY 2009 and sections 831 and 832 of the NDAA for FY 2011. In addition, the DoD Instruction addressing private Security Contractors (DoDI 3020.50) was revised on August 1, 2011, and the final rule to implement section 862 of the NDAA for FY 2008, as amended, 32 CFR part 159, Private Security Contractors Operating in Contingency Operations, was published in the Federal Register on August 11, 2011 (76 FR 49651). Public comments on the final rule at 32 CFR part 159 had been solicited by publication of an interim rule on July 17, 2009.

Three respondents submitted comments on the interim rule. A discussion of the comments and the changes made to the rule as a result of those comments are provided as follows:

The following significant changes to the DFARS are being made by this rule:

• The definition of “private security functions” in the clause at DFARS 225.370-3 was revised to conform to the DoDI, and limit the definition to the specified criteria.

• The types of active, non-lethal countermeasures that must be reported when used has been added at DFARS 225.370-4(c)(1)(iv)(E) and 252.225-7039(b)(1)(iv)(E).

• The types of Government-authorized investigations with which the contractor is required to cooperate are more narrowly described in order to conform to the limitations in the statute. Changes have been made to DFARS 225.370-4(c)(3) and the clause at DFARS 252.225-7039(b)(3). In addition, a definition of “full cooperation” has been added to the clause at DFARS 252.225-7039 to allay concerns about waiver of attorney-client privilege.

• The remedies at DFARS 225.370-5(a) have been revised to remove paragraph (a)(4), a discussion of the right to terminate for default, because this right is already covered by the contract termination clauses.

• The applicability of the rule (DFARS 225.370-2, 225.370-4(b), and 225.370-6) and references to the title of DoDI 3020.50 at DFARS 225.370-4 and 252.225-7039(b)(2)(i)) have been updated to conform to the revised DoDI 3020.50.

Comment: Two respondents commented that the definition of “private security functions” was (a) too broad and (b) inconsistent among the DoDI, the DFARS text, and the clause at DFARS 252.225-7039, Contractors Performing Private Security Functions.

Response: The definition of “private security functions” has been revised to limit the definition to the specified criteria all inclusive (rather than just “including” the criteria), consistent with the DoDI. The essence of the definition cannot be changed substantially in the DFARS from that in the controlling DoDI.

Comment: One respondent stated that the requirement for prime contractors to ensure that personnel performing private security functions comply with numerous administrative and reporting requirements and are briefed on and understand various enumerated laws, regulations, orders, directives, instructions, and rules related to the private security function imposes “untenable oversight, policing, and enforcement obligations,” particularly for non-private security function prime contractors that subcontract with a private security function provider. The respondent recommended that the prime contractor's obligation be limited to the administrative functions of passing the requirements on to the private security function provider and conducting audits or other administrative review functions to verify compliance.

Response: No change has been made in the final rule because the law, at section 862(b)(2), as amended, requires the contractor, without regard to whether it is a direct provider of private security functions, to “ensure” that its employees and any subcontractors' employees who are responsible for performing private security functions comply with the regulations prescribed under subsection (a) of section 862 implemented as DoDI 3020.50. In addition, the clause at DFARS 252.225-7039(b)(1), requires DoD to identify the applicable private security functions in the contract and make available to the contractor the relevant orders, directives, and instructions.

Comment: One respondent noted that DFARS 225.370-4(c)(3) imposes on contractors the obligation to cooperate with any Government-authorized investigation “by providing access to employees performing private security functions and relevant information in the possession of the contractor,” but fails to provide any explanation of the scope and limitations on this requirement. The respondent recommended that the final rule define the contractor's obligation to cooperate, as in the mandatory disclosure provisions of FAR 52.203-13, Contractor Code of Business Ethics and Conduct, by specifying that such cooperation does not require the contractor to waive attorney-client privilege or the protections afforded by the attorney work-product doctrine.

Response: The final rule has been amended to more clearly define the scope and limitations of the contractor's obligation to cooperate with Government investigations. The revised text reflects the limitations on the investigations specifically addressed by the statute, as amended (see DFARS 225.370-4(c)(3) and 252.225-7039(b)(3)). The limitation on information to that in the contractor's possession regarding the incident concerned was in the interim rule. Additionally, the final rule requires the contractor to provide “full cooperation” with any Government-authorized investigation. In addition, the definition of “full cooperation” included in the clause reflects the mandatory disclosure provisions of FAR 52.203-13, Contractor Code of Business Ethics and Conduct, with minor edits, as recommended by the respondent.

Comment: One respondent stated that the interim rule, at DFARS 225.370-5(a)(1), grants the Government the very broad power to direct a contractor to remove any personnel at its own expense if the personnel fail to comply with or violate applicable requirements. The respondent believed that it is unclear whether the “applicable requirements” are solely limited to those spelled out in the interim rule or if they include additional requirements not identified in the interim rule.

Response: No change has been made in the final rule because the applicable requirements for contracts performed outside the United Sates have been clearly defined in DFARS subpart 225.3 and paragraph (b) of the clause at DFARS 252.225-7039, Contractors Performing Private Security Functions. As noted in the response to comment category B.2 above, relevant orders, directives, and instructions must be made available to the contractor in a single location, including an internet Web site (see section 862(a)(3) of the statute, as amended), and they must be updated as they change, e.g., a change in guidance from a geographic combatant commander.

Comment: One respondent was concerned with the implementation of section 862(d), as amended. The respondent concluded that the DFARS interim rule went beyond the requirements of the statute “by requiring the contracting officer to include this evaluation requirement in an award-fee plan. This subpart then provides the contracting officer the flexibility to determine whether to reduce, deny, or recover all or part of award fees.”

Response: No change has been made in the final rule in response to this comment. FAR 16.401(e)(2) states that the determination of the amount of award fee and the methodology for determining the award fee are unilateral decisions made solely at the discretion of the Government. In addition, FAR 16.401(e)(3) requires that all contracts providing for award fees must be supported by an award-fee plan that establishes the procedures for evaluating award fee and an award-fee board for conducting the award-fee evaluation. The use of an award-fee type contract provides the Government the maximum, subjective flexibility in the determination of the factors that will be considered, i.e., the award-fee plan, and the amount of award fee granted in a performance period. The statute requires that an additional factor, i.e., the failure of a contractor to comply with contractual requirements pertaining to the performance of private security functions, must always be a consideration for award fees on any award-fee contract calling for performance in the applicable areas.

Comments: One respondent submitted two comments on the applicability of the interim rule. First, the respondent stated that the statute limits the regulations to “combat operations or other significant military operations” and the interim rule goes beyond that. Second, the respondent noted that the interim rule requires DoD subcontractors for commercial items and commercial components to comply with requirements imposed on private security providers and recommended that the applicability of the DFARS coverage be modified to require coverage only for contracts and subcontracts that provide security as a primary function.

Response: The applicability of the DFARS final rule has been revised, at DFARS 225.370-2, to encompass the categories as specified in the DoDI, except that “combat operations” are identified separately from “contingency operations,” as specified in the statute. “Complex contingency operations” are now identified as “humanitarian or peacekeeping operations,” which is a term defined in statute and FAR 2.101. The Secretary of Defense has not formally designated Iraq or Afghanistan as “combat operations,” yet these areas are clearly intended to be covered by the regulations for private security functions. Therefore, “contingency operations” are covered. Whereas Governmentwide implementation will be restricted to combat operations and other significant military operations, the DoDI requires somewhat broader application for DoD contracts.

Congress did not contemplate limiting applicability of the regulations to only those contractors providing primarily private security functions. To do so would have resulted in anomalies such as sanctions for a private security contractor whose employee wounded or killed a civilian while not sanctioning a contractor providing construction goods or foodstuffs whose personnel providing security wounded or killed a civilian. These requirements are applicable only when the contract or subcontract performance is outside the United States.

Comment: One respondent noted a number of perceived shortcomings in the reporting requirements at DFARS 225.370-4(c)(1)(iv). Specifically, the respondent was concerned that the requirement to report any property destruction could overwhelm industry and Government employees alike with reports of incidental and de minimis damage to property. The respondent was concerned that the requirement to report incidents in which a firearm is discharged would include planned firearm discharges occurring during training and maintenance. In addition, the respondent requested that the DFARS include examples of active, non-lethal countermeasures.

Response: The statute requires contractors, at section 862(b)(2)(A)(iv), to report incidents in which (1) A weapon is discharged by personnel performing private security functions; (2) personnel performing private security functions are killed or injured; or (3) persons are killed or injured, or property is destroyed, as a result of conduct by contractor personnel. The second comment resulted in the addition of a listing of active, non-lethal countermeasures in both the DFARS text see DFARS 225.370-4(c)(1)(iv)(E) and the clause at 252.225-7039.

Comment: One respondent stated that the legislation does not allow the Government to terminate a contract for default in the case of noncompliance.

Response: The Government has the right to terminate a contract for default pursuant to one of the termination clauses at FAR 52.249-6 (cost-reimbursement), -8 (fixed-price supply and service), -10 (construction), or -11 (personal services) that is included in every contract, as applicable. DoD does not acquire new or additional termination-for-default rights by including such coverage in the clause at DFARS 252.225-7039. Therefore, the final rule has removed the termination language from DFARS 225.370-5 and the clause at DFARS 252.225-7039.

While the statute does not specifically list termination of a contract for default when a contractor's failure to comply is severe, prolonged, or repeated, it does provide that the contractor must be referred to the agency suspension or debarment official and that the failure may be a cause for suspension or debarment of the contractor. Once a contractor appears on the Excluded Parties List System (FAR 9.404), all Government agencies are prohibited from awarding contracts or consenting to subcontracts with the contractor, unless there is an agency head determination to do so (FAR 9.405(a)).

Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is a significant regulatory action and, therefore, was subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

A final regulatory flexibility analysis has been prepared consistent with the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., and is summarized as follows:

DoD is adopting as final, with changes, an interim rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to implement section 862 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2008, as amended by section 853 of the NDAA for FY 2009 and sections 831 and 832 of the NDAA for FY 2011. The final rule has been updated to conform with the governmentwide regulation at 32 CFR part 159, entitled “Private Security Contractors Operating in Contingency Operations.” In addition, this final rule implements DoDI 3020.50, “Private Security Contractors (PSCs) Operating in Contingency Operations, Humanitarian or Peace Operations, or Other Military Operations or Exercises,” which provides procedures for personnel performing private security functions for DoD. This final rule impacts only private security contractors performing outside the United States in areas of combat operations and other significant military operations designated by the Secretary of Defense, contingency operations, or other military operations designated by the combatant commanders. DoD does not expect this final rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because it impacts only private security contractors performing outside the United States.

In FY 2010, DoD awarded 1,839 contracts for performance in Iraq and Afghanistan. Of this total, 361, or 20 percent, were awarded to small businesses. Firms performing private security functions in these areas were already required to report the occurrence of incidences such as those listed in the clause at DFARS 252.225-7039, Contractors Performing Private Security Functions, but there was no consistency in the manner of reporting or the individual to whom the report was to be made. This DFARS final rule provides this consistency and clarity and, in that sense, serves to relieve the burdens on small businesses.

No comments were received from the Chief Counsel for Advocacy of the Small Business Administration in response to the rule.

The rule does not duplicate, overlap, or conflict with any other Federal rules. No alternatives have been identified that accomplish the stated objectives of the applicable statutes.

This rule contains information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35). The rule affects the certification and information collection requirements in the provisions at DFARS 225.7402-3, currently approved under OMB Control Number 0704-0460, titled “Synchronized Predeployment and Operational Tracker (SPOT) System,” effective through March 31, 2013. No impact is anticipated, however, because DoD contractors operating in areas of combat operations, contingency operations, or other military operations or exercises are currently required to use SPOT for registering personnel and weapons, as well as armored vehicles, helicopters, and other military vehicles operated by personnel performing private security functions, and to report the incidents addressed in the clause at DFARS 252.225-7039.

Accordingly, the interim rule amending 48 CFR parts 216, 225, and 252, which was published at 76 FR 52133 on August 19, 2011, is adopted as a final rule with the following changes: