On December 8, 2006, the Food and Nutrition Service (FNS) published a proposed rule in 71 FR 71075 to revise the SNAP regulations in 7 CFR parts 272 and 273 regarding computer matching requirements, the prisoner verification system (PVS), the deceased person matching system and electronic disqualified recipient system (eDRS) matching, as well as redefining data requirements and retention, and the process for application screening. Comments on these proposed revisions were solicited until February 6, 2007. A total of 26 sets of comments were received by the published deadline from 22 State SNAP agencies, 2 governmental associations, and 2 recipient interest groups. This final rule addresses the concerns expressed in these comments. Readers are referred to the proposed rule for a more complete description of the rule's requirements and stipulations. The following is a discussion of the provisions of the proposed rule, the comments received, and the changes made in the final rule.

Of the 26 sets of comments received, most recommended that FNS withdraw the proposed regulation altogether. Of these, 15 comments offered alternative suggestions for FNS to consider. FNS categorized the comments in order to sum up their contents: Burdensome and Ineffective (20 comments); Impact on Application Timeliness (15 comments); Impact on Simplified Reporting (12 comments); Impact on State Computer Systems (9 comments); Inaccurate Cost-Benefit Analysis (3 comments); and Cases Where Matches Cannot Be Verified (3 comments). All comments are addressed under the specific regulation citation they reference. Some comments received were general and did not pertain to specific regulation citations. Those comments are addressed first and are related to simplified reporting and computer systems.

Simplified reporting was authorized by the Farm Security and Rural Investment Act of 2002 (the 2002 Farm Bill), subsequent to the implementation of prisoner and death matching requirements. Since 2002, 51 State agencies have opted to implement simplified reporting. Generally, under simplified reporting, households are required to report changes in income between certification and scheduled reporting periods only when the total countable income rises above 130 percent of the poverty level. Prior to simplified reporting, most households were required to report most changes within 10 days, or monthly. State agencies implementing simplified reporting can set reporting intervals or certification periods at 4, 5, or 6 months. Generally, for households subject to simplified reporting, the death or imprisonment of a household member does not have to be reported until the 6-month report, or at the next recertification period for prisoner verification. Those electing 12-month certification spans must require an update of household circumstances at the 6-month interval, unless the household is made up of elderly or disabled members.

In some circumstances, no overpayment can occur if the change was not required to be reported. Simplified reporting has provided multiple benefits for State administration and Program access. FNS concurs with the comments expressing that simplified reporting has been beneficial in making the Program more efficient and recipient-friendly and will make specific accommodations for simplified reporting options when warranted in the waiver process.

In regard to the need to change computer systems, nine State agencies commented that the overall provisions in the proposed rule will require them to make expensive changes. There were three comments concerned with the steps States may need to take if the matches required by these provisions cannot be verified. In this instance, no adverse action is to be taken against the households for any matches described in this rule that cannot be verified.

In general, the comments expressed recognition that these matches are required by law, and suggested alternatives that would allow State agencies the discretion to determine the frequency of the matches. While FNS carefully considered these comments, the matches are required by law and FNS considers the frequency of the matching requirements described herein to be an acceptable standard.

Section 1003 of the Balanced Budget Act of 1997 (Pub. L. 105-33) amended Section 11(e) of the Food Stamp Act of 1977  1 (7 U.S.C. 2020(e)) to require States to establish systems and take periodic action to ensure that an individual who is detained in a Federal, State, or local penal, correctional, or other detention facility for more than 30 days shall not be eligible to be counted as a household member participating in SNAP. The FNS final rule will codify this requirement and define taking periodic action as requiring States to conduct PVS checks at application and re-certification.

FNS received several comments specifically addressing this provision. Thirteen comments stated that PVS data received from the Social Security Administration (SSA) is not reliable, shows only that individuals have been incarcerated in the past, and does not provide the admission and tentative release dates. One comment stated that State agencies cannot require correctional facilities to provide the necessary verification for taking action. Further, six comments indicated that including children and one-person households in the PVS matches provide little value.

FNS carefully considered these comments in finalizing this provision and agrees that it is appropriate to exempt minor children, as that status is defined by each State, and one-person households where there is a face-to-face interview. Therefore, these exemptions are provided for in the revised § 272.13. However, with regard to the frequency of the match, taking into account both simplified reporting and the need to prevent those incarcerated for more than 30 days from participating, FNS determined that conducting the prisoner match at application and recertification provides the best opportunity for effective policy enforcement. Therefore, FNS retained in this final rule the requirement to perform a PVS match with household members at application and recertification. Going forward, FNS will make every effort to work with the SSA and other relevant agencies to improve the quality and timeliness of the data made available to State agencies for the purpose of conducting the prisoner match. FNS is also willing to consider any alternatives that State agencies may wish to propose for their own unique situation through its waiver process.

This rule also implements the deceased matching requirements enacted by Public Law 105-379 on November 12, 1998. Public Law 105-379, which amended Section 11 of the Food Stamp Act of 1977 (7 U.S.C. 2020), required all State agencies to enter into a cooperative arrangement with the SSA to obtain information on individuals who are deceased, and use the information to verify and otherwise ensure that benefits are not issued to such individuals. The law went into effect on June 1, 2000. The mandated requirements were implemented by FNS directive to all SNAP State agencies on February 14, 2000. State agencies are responsible for entering into a matching agreement with SSA in order to access information on deceased individuals. FNS proposed adding a new § 272.14 to codify this requirement in regulation and included requirements for accessing the SSA death master file. These requirements included independently verifying the record prior to taking adverse action, and conducting matches for deceased individuals at application and re-certification.

Several comments specifically addressed this provision. Eleven comments stated that experience has shown that it is very unusual for households to initially apply for benefits for a deceased household member. They state that, since starting to conduct death matches in 1999, it is more common that the death of a household member during the certification period goes unreported by the remaining household members. With simplified periodic reporting, the change does not need to be reported until the interim report of the next recertification.

Four comments received noted that the preamble to the proposed rule states that the SSA death master file be matched at the time of application and at recertification, but the actual wording in the regulation language says “* * *at the time of application and periodically thereafter.” FNS concurs that this is inconsistent and confusing; “periodically thereafter” may not be the same as recertification. FNS has, therefore, amended this provision in the final rule as indicated below.

Two comments noted that fulfilling the volume of match requests at the frequency required by the proposed regulation would be burdensome for SSA. One commenter further noted that, in the past, FNS has instructed State agencies to reduce the frequency of matches because the previous frequency was burdensome for SSA. SSA did encounter certain burdens during the implementation phase of the prisoner and death matches, but has subsequently worked through those complications. Nevertheless, FNS does want to focus on implementing requirements that will improve Program integrity while not imposing unnecessary burdens on State agencies.

Accordingly, after considering the comments, FNS is amending the final rule with respect to death matches. The revised final provision at § 272.14(c)(1) provides the requirement that State agencies conduct the match of deceased individuals against household members at application and no less frequently than every 12 months. As a result, FNS believes this final rule maintains the intent of the statute for conducting this match while relieving States of requirements that do not effectively promote Program integrity. In addition, State agencies can design their matching systems to make them more consistent with their simplified reporting procedures.

Existing regulations at § 273.16(i)(4) require State agencies to use disqualified recipient data to ascertain the correct penalty, based on prior disqualifications, for an individual currently suspected of an intentional Program violation (IPV), and to determine the eligibility of Program applicants suspected of being in a disqualified status. The proposed rule further proposed:

• State agencies use disqualified recipient data to screen all Program recipients and applicants prior to certification. State agencies may also periodically match the entire database of disqualified individuals against its current caseload.

• State agencies not take an adverse action against a household based on information provided by a disqualified recipient match unless the match information has been independently verified.

• The State agency initiating the disqualified recipient search contact the State agency that originated the disqualification or the household for verification prior to taking adverse action against the household. The proposed rule proposed that the agency that originated the disqualification provide documentation to the requesting agency within 20 days of the postmarked date of request.

• The disqualified individual and, if applicable, the household, be informed of the effect of the existing disqualification on the eligibility and, if applicable, benefits of the remaining household members.

• Changes and updates to the format, methodology and fields State agencies use to report and access intentional Program violation (IPV) disqualification information.

Several comments specific to disqualified recipient matching were received. Regarding implementation, 13 comments noted that the provisions of the rule would be very difficult to implement because the nationwide eDRS database provided by FNS to perform this function is problematic. The comments further state that very few of the disqualifications in eDRS are relevant to the day-to-day operation of the Program because eDRS maintains disqualifications indefinitely, including those for individuals who are deceased or incarcerated for long periods of time. As the records age, the disqualifications become less and less useful because they have no impact on current eligibility. One comment noted that a very small percentage of SNAP households had the potential to be affected by an actively disqualified household member. Also, twelve comments noted that in order to meet the requirements of the rule, all eligibility workers would need access to eDRS via the eAuthentication process required by the Department of Agriculture, expressing concern that putting all eligibility workers through this process would be cumbersome and impractical.

Regarding the need for the eDRS system, while one State agency commented that it queries eDRS for those who newly arrive to the State, five other State agencies noted that disqualified recipients who newly arrive in the State are already known to the incoming State agency. State and local eligibility workers regularly contact other State agencies when applicants newly arrive from other States to obtain information about the applicant's participation, disqualification and able-bodied adults without dependents (ABAWD) status. These State agencies asserted that there is no need to check current or former household members (when they apply) from within the State as those participants and their disqualification status are already known. Further, they believed there was no reason to re-screen applicants at recertification since the current State would have originated any disqualification action and would have already known about it.

Regarding secondary verification, 11 comments noted that the timeframe of 20 days, specified under the computer matching requirements, for another State agency to respond for a request for information, does not leave enough time to gather all of the information and process the application in a timely manner. The comments indicated that if the person should not have been certified, it will be discovered when the State processes a periodic match and an overpayment can be completed at that time. They also indicated that it is unclear what a requesting State should do in instances of expedited service cases or if the other State agency does not respond within 20 days. Finally, one comment supported the proposed rule's clarification that no adverse action be taken against a recipient or applicant based on a match unless the match information is independently verified.

Regarding the eAuthentication process, FNS recognizes that this process may be difficult for some States to obtain the proper eAuthentication levels for their eligibility workers. The eAuthentication process is vital to protecting personally identifiable information of SNAP recipients, confidentiality and the integrity of the Program. This process, while difficult, is necessary to maintain the security standards set forth to protect client information. FNS will continue to explore possible ways to make the eAuthentication process less burdensome for States in the future.

In addressing these comments, it is important to note that, as a Program with national eligibility standards, an individual disqualified in one State because of an IPV determination is also disqualified in every State. However, the Program is administered by State agencies that use and maintain their own systems and databases to perform the functions associated with certifying and supplying benefits to households. As such, there must be some mechanism in place so that a State agency can determine that an applicant has been disqualified by another State when they apply for SNAP benefits. Also, since the disqualification penalties are cumulative, the State agency must be aware of whether an individual has had any prior disqualifications by any other State in order to assign the appropriate disqualification penalty.

The issue of how States become aware of an existing or previous disqualification to ensure that ineligible individuals are not participating or the proper disqualification is assigned is the crux of this portion of this rule. In the performance of this function, an individual's rights must be protected to ensure that only those individuals that should be ineligible to receive benefits due to an existing or previous disqualification are indeed determined ineligible. Further, States are expected to provide this information in a timely manner to the requesting State so that they can determine the eligibility of the applicant. States that fail to provide the requested information within the time frame set forth under the computer matching requirements are considered to be out of compliance with these regulations. Those States will be subject to corrective action upon review. In any case where the requesting State has not received the information timely, the State should certify the household for benefits in accordance with our regulations until it receives the requested documentation. If the State subsequently receives verification that the client or household is ineligible, they should disqualify them and establish a claim to collect any benefits that were issued in error. While FNS carefully considered all comments in determining the final provisions in this rule, the Agency wanted to ensure that individuals' rights are protected and that proper disqualifications are assigned. FNS believes this final rule meets these goals while adequately addressing the concerns of the comments.

Many of the comments received regarding this provision focus on the operation and integrity of the data contained in eDRS. There were concerns that the data may be outdated, inaccurate or incomplete. While FNS is continuously trying to add appropriate edits and perform data integrity checks where possible, it is ultimately the responsibility of each State to enter timely, accurate and verifiable disqualification data into eDRS for use by other States. This is a nationwide partnership in which FNS and State agencies need to work together to ensure that ineligible individuals are not participating and that disqualified individuals receive the appropriate disqualification period. FNS is committed to continuing efforts to improve the system and the integrity of data to ensure accurate and timely disqualifications are imposed.

FNS does not agree with the comment that very few of the disqualifications in eDRS are relevant to the day-to-day operation of the Program. Records with disqualification periods that have expired are necessary for making penalty determinations and those that remain active are useful for determining eligibility. Further, in addition to the complete database file containing all the records in the system, FNS has for some time made available a file containing only active records, specifically designed for the purpose of conducting eligibility matches. FNS has also modified its online database access system to search only active records when the user selects “Eligibility” as the purpose for the inquiry.

Nevertheless, FNS agrees with the comment that a very small percentage of SNAP households would be affected by a disqualified member. Data reported by States indicated that, in fiscal year 2010, 36,859 individuals were disqualified out of a total of 40.3 million participants. In addition to these 37,000 disqualifications, there are also those still serving 2-year, 10-year or permanent disqualifications whose records remain active. While this number remains relatively low compared to the number of participants, it still represents a potential issuance risk in excess of nearly $2.0 million per month should these individuals not be prevented from participating, based on estimates for 2013. The potential also exists for any of these individuals to cross into another jurisdiction to avoid serving their penalty. FNS believes that some form of applicant screening is therefore necessary to prevent those inclined to try to participate during a period of disqualification and to deter those that might otherwise make the attempt.

In response to those comments suggesting that there was no need to check current or former recipients (when they apply) from within the State, or to re-screen applicants at recertification since the State would have originated the action and would have already known about it, FNS would point out that since applicant matching was not previously mandated one cannot be certain there are no disqualifications in an individual's past. For example, applicants that may have been in a disqualified status in one State may have moved to, and been determined eligible by, another State that did not conduct the match at the time of application. Therefore, it is possible that disqualified individuals are currently participating in a number of States. However, FNS does agree that there is probably no need to conduct matches at recertification once FNS is reasonably certain that currently disqualified individuals that may be receiving benefits are removed from the active rolls. Consequently, FNS will retain the requirement to match all applicants prior to initial certification but require matches at recertification only for the first year subsequent to implementation of this final rule. Within the first year of the implementation date of this rule, but no later than 180 days from publication, States will be required to match all applicants prior to initial certification, all newly added household members at the time they are added, and all participants in the household at recertification. In the second year, the requirement to match participants at recertification will be discontinued, and States will only be required to match applicants prior to initial certification and newly added household members as they are added. Further, since the purpose of a 1-year match at recertification is to remove currently participating disqualified individuals, States having the ability to conduct a one-time match of their entire active caseload against active cases from the disqualified recipient database may do so and be exempted from the requirement to conduct matches at recertification. The periodic match that would have been required by the proposed rule will not be required in this final rule, but may be conducted at the option of the State. Finally, States may exempt from the matching requirements those individuals that have not reached the age of majority as defined by State statute.

FNS proposed to add language to the existing regulations for when mass changes are made in Federal benefits that affect SNAP allotments. Specifically, in cases when the change in allotment was the result of a computer match, FNS proposed that the information would need to be independently verified, and the SNAP household would need to be provided notice and an opportunity to contest any adverse action, if the adjustment would change the level of benefits or eligibility status of the household.

FNS received several comments specific to this provision. One comment stated that this alternative is not attractive as it constitutes much more effort than applying the existing procedure. In addition, two commenters were concerned about the additional burden placed upon State agencies if this information is not considered verified upon receipt.

FNS carefully considered the comments in this area. A computer match, covered by the Computer Matching Act [5 U.S.C. 552a(o)], uses information provided by a Federal source and compares it to a State record, using a computer to perform the comparison; this match affects eligibility or the amount of benefits for a Federal benefit program. As such, FNS has no discretion in this area and the information must be independently verified. Moreover, the SNAP household must be provided notice and given an opportunity to contest the adverse action if the adjustment would change the level of benefits or eligibility status of the household. However, State agencies should be aware that the independent verification/notice of adverse action provisions apply only if there is an adverse effect on benefits (i.e., a denial, termination or reduction in benefits). The vast majority of mass changes in benefits are increases due to cost-of-living adjustments. As such, FNS expects this new requirement to have a minimal impact on State agency workload. In addition, State agencies can use the option found at § 273.12(e)(3)(A) to implement mass changes using percentages. Therefore, this provision remains unchanged in the final rule (see § 273.12(e)(3)(B)).

State agencies have been instructed through FNS directive to implement the provisions of the prisoner verification matches (Pub. L. 105-33) and death file matches (Pub. L. 105-379) as required by law in the applicable legislation, and these matches should already be in place without waiting for formal regulations. Unless specified below, the remaining provisions of this rule are effective and must be implemented the first day of the month following 60 days from date of publication of this final rule.

Since the inception of the disqualified recipient database in 1992, FNS has required that States query the database for the purpose of assigning the correct penalty to those being disqualified and whenever they believe an applicant may be in a disqualified status. To comply with these requirements, States should already have in place some capability for conducting matches against the disqualified recipient database. In recognition of this, the provisions of this rule dealing with the systematic matching of disqualification data in § 273.16(i) are effective and must be implemented no later than 180 days after the effective date of this final rule.

Executive Orders 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). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility.

This final rule has been designated a “significant regulatory action,” although not economically significant, under section 3(f) of Executive Order 12866. Accordingly, the rule has been reviewed by the Office of Management and Budget.

As required for all rules that have been designated as significant by the Office of Management and Budget, the following Regulatory Impact Analysis (RIA) was developed for this final rule.

1. Title: Supplemental Nutrition Assistance Program: Electronic Disqualified Recipient System Reporting and Computer Matching Requirements that Affect the Supplemental Nutrition Assistance Program

2. Action:

a. Nature: Final Rule

b. Need for the Rule: This final rule codifies prisoner verification and death master file matching procedures mandated by legislation and previously implemented through agency directive. This rule also revises SNAP regulations affecting the way State agencies access and use client disqualification information to enforce penalties for Intentional Program Violations (IPV).

c. Background: The Balanced Budget Act of 1997 (Pub. L. 105-33), enacted on August 5, 1997, requires States to establish systems and take periodic action to ensure that an individual who is detained in a Federal, State, or local penal, correctional, or other detention facility for more than 30 days shall not be eligible to participate in the Supplemental Nutrition Assistance Program. The law was effective August 5, 1998. This regulation will amend current rules to require States to conduct Prisoner Verification System (PVS) checks at application and re-certification. Public Law 105-379, enacted on November 12, 1998, requires all State agencies to enter into a cooperative arrangement with the Social Security Administration (SSA) to obtain information on deceased individuals and to use the information to verify and otherwise ensure that benefits are not issued to such individuals. The law was effective June 1, 2000. FNS is also requiring States to use the Electronic Disqualified Recipient System (eDRS) to screen all new applicants. States report all disqualified recipients to the eDRS database in order to prevent those individuals from participating in other States and to ensure that the proper penalties are assigned for intentional Program violations.

3. Justification of Alternatives. The Department has no discretion regarding the portions of the regulation that are based on legislative mandate to implement prisoner verification and deceased persons' data match programs. The Department does have discretion on the portion of the regulation affecting matches to identify disqualified recipients. The law requires that matches be performed, but is silent on when in the certification process the match must occur. The regulation mandates that these matches be performed up front, prior to certification. This alternative was chosen over requiring matches at a later point in the certification process because of the expected result that earlier mandatory verification will save the most taxpayer dollars.

4. Effects:

Effects on Low-Income Families. This action would identify deceased individuals, prisoners, and other ineligibles to ensure that they are not included as members of SNAP households. These matches will assist State agencies in identifying who, due to extended certification periods or failure to notify a change of household status, should no longer receive SNAP benefits. The number of people we estimate being removed from the SNAP caseloads as a result of the matches is described in detail below.

PVS Matches: FNS estimates that mandatory computer matches using the PVS will identify approximately 64,000 ineligible prisoners from the SNAP case rolls in 2013. Because this regulation is codifying legislation enacted some years ago, all States are currently performing data matches using the PVS for initial certifications and recertification, so the impacts on participation and costs for initial certifications are incorporated in current baseline budget estimates. There are no new savings.

The estimate on the impact of the computer match using the PVS is based on a General Accounting Office  2 (GAO) Study, Substantial Overpayments Result from Prisoners Being Counted as Household Members, issued in March 1997. GAO examined data from four States: California, Florida, New York, and Texas. GAO estimated that in 1995, $2.6 million in benefits were paid to 9,440 State prisoners, and $925,000 in benefits was paid to 2,698 county prisoners, with a total of 12,138 prisoners receiving $3.5 million for an average of 3.85 months. If we assume that prisoners would have continued to receive benefits for one month before the data match identified them and they were removed from the caseload rolls, we estimate that a mandatory computer match with State and County prisoner databases at the time of certification could have saved $2.6 million in overpayments in those four States. The one month that the prisoners would continue to receive benefits reduces the savings from the match from $3.5 million to $2.6 million. The 12,138 prisoners accounted for 0.13 percent of the 1995 SNAP caseload among those four States.

Between 1989 and 2009, the average number of initial certifications was nearly identical to the number of households participating in an average month, and the average number of recertifications was close. In any given year, the two numbers tracked closely together—when caseloads rose, so did the number of initial certifications and recertifications. Since we project caseloads and not initial certifications and recertifications, we use projected participation estimates as a proxy for the number of certifications and recertifications.

The effect on participation resulting from a mandatory computer match is taken by applying the 0.13 percent impact to the total projected FY 2013 caseload of 46.9 million. This yields an estimate of 61,000 ineligible prisoners who would be taken off the SNAP rolls at initial certification. However, prior to the enactment of the legislation mandating matches, a number of States were already performing these matches—Connecticut, Massachusetts, New York, Maryland, Pennsylvania, Florida, Mississippi, North Carolina, Tennessee, Illinois, Texas, Kansas, and Missouri—accounting for 45 percent of the FY 2011 caseload. We also adjusted to account for an increase in the number of prisons between 1995 and 2017 (actual numbers through 2010 and projected for 2017) and an expected false positive match rate of 10 percent. Making the match mandatory for the States who did not perform the match prior to the legislation will remove 44,000 prisoners in 2013.

Requiring biennial matches at the time of recertification would yield yet more ineligible prisoners. No States were performing matches at recertification when the law was enacted, but now all States are, so all of the savings are incorporated in the budget baseline and none are “new.” There would be no savings from those prisoners who were identified in previous matches. According to the most recent SNAP characteristics report, the average certification period for SNAP households is 12 months. However, the number of new prisoners who entered the system in 2010 is about half the total prison population as of June 30, 2011. Therefore, matches at recertification would yield only half as many hits as matches performed at initial certification. Therefore, we halved the original impact of 61,000. We also adjusted for an increase in the number of prisoners from 1995 to 2013 and assumed a 10 percent false positive match rate. Finally, we halved the impact yet again to adjust for biennial matches. The estimate of prisoners identified at recertification matches in 2013 is 20,000.

To obtain the impact of performing the matches at initial certification and at recertification, we added the two totals together, getting 64,000 prisoners for 2013. The estimate assumes that these prisoners identified by the matches would then be removed from the SNAP caseloads.

To obtain the impact of performing the matches at initial certification and at recertification, we added the two totals together, getting 60,000 prisoners for 2012. The estimate assumes that these prisoners identified by the matches would then be removed from the SNAP caseloads.

Matches with Social Security Deceased Lists. Mandatory computer matches using Social Security Administration (SSA) lists of deceased individuals could identify an estimated 100,000 deceased individuals on SNAP case rolls in 2013 Because this regulation is codifying legislation enacted some years ago, all States are currently performing data matches using the SSA lists at initial certification and at recertification, so the impacts of matches at initial certification on participation and costs are incorporated in current baseline budget estimates. There are no new savings that are not incorporated in the current budget baseline estimates.

In 2013, we estimate that 39,000 deceased individuals will be identified from matches performed at initial certification, and 61,000 individuals will be identified through matches performed at recertification.

The estimate on the impact of the computer match using SSA lists of deceased individuals is based on a GAO Study, Thousands of Deceased Individuals Are Being Counted as Household Members, issued in February 1998. GAO examined data from four States: California, Florida, New York, and Texas, and estimated that in 1995 and 1996, $8.4 million in benefits were paid on behalf of 25,881 deceased individuals, with these individuals “receiving” benefits for an average of 4.17 months. If we assume that some deceased individuals would have continued to be issued benefits for one month before the data match identified them and they were removed from the caseload rolls, we estimate that a mandatory computer match with SSA databases could have saved $3.2 million per year in overpayments. This figure is derived from taking the $8.4 million they received in benefits over two years, assuming that they would still receive benefits for 1 month rather than an average of 4.17 months, and halving the figure to get an annual total. The 12,941 deceased individuals (half of the 25,881 individuals identified over a two-year period) accounted for 0.14 percent of the 1996 SNAP caseload in those four states.

Between 1989 and 2010, the average number of initial certifications was nearly identical to the number of households participating in an average month, and the average number of recertifications was close. In any given year, the two numbers tracked closely together—when caseloads rose, so did the number of initial certifications and recertifications. Since we project caseloads and not initial certifications and recertifications, we use projected participation estimates as a proxy for the number of certifications and recertifications.

The effect on participation resulting from a mandatory computer match on deceased individuals at the time of initial certification is taken by applying the 0.144 percent impact to the total projected FY 2013 caseload of 46.9 million. This yields an estimate of nearly 68,000 deceased individuals who would be taken off the SNAP rolls. Several adjustments were made after this point. First, prior to the enactment of the legislation mandating matches, a number of States were already performing these matches—California, New York, Florida, Illinois, and Ohio—accounting for 35 percent of the FY 2011 caseload. We assume that 10 percent of the matches are false positives. We estimate that mandatory matches at certification will identify an estimated 39,000 deceased individuals being removed from the rolls in 2013.

Requiring the matches at the time of recertification would identify more deceased persons. Since no States were performing matches at recertification at the time that the law was enacted, all States would be included. We also assume that 10 percent of the matches are false positives. Thus, we estimate that performing the match at recertification would identify 61,000 deceased individuals in 2013 for removal from SNAP caseloads.

To obtain the impact of performing the matches at initial certification and at recertification, we added the two totals together, for a total of 100,000 deceased persons identified through matches in 2013.

Matches Using the eDRS. Optional matches at initial certification using the eDRS as currently being performed will remove more than 6,000 ineligible persons from caseloads at initial certification in 2013. Making matches mandatory at initial certification and conducting a one-time match at recertification for current participants will remove an additional 9,000 ineligible persons from the caseloads in 2013; nearly 3,000 identified at initial certification and more than 6,000 identified at recertification.

The estimate on the impact of the computer match using the eDRS is based on a GAO Study, Households Collect Benefits for Persons Disqualified for Intentional Program Violations, issued in July 1999. GAO examined data from four States: California, Illinois, Louisiana, and Texas, and estimated that in 1997, $528,000 in benefits were paid to households on behalf of 3,166 disqualified individuals, with these individuals receiving benefits for an average of 2.33 months. If we assume that some disqualified individuals will continue to be issued benefits for one month, we estimate that a mandatory computer match at initial certification with the eDRS could have saved $301,000 in overpayments.

The four States accounted for 28 percent of the caseload in 1997 and 29 percent of benefits issued. Thus, taking the demonstration figures and applying them nationally, we estimate that over 11,000 individuals would have been disqualified.

We know from the eDRS that as of December 2010, 49,500 individuals were currently disqualified from SNAP. We do not have figures for past years, so we have no definitive data for whether the number of individuals disqualified at any one time has risen or fallen over the past decade. However, in the FNS National Data Bank, we have the number of disqualifications by year and by length of disqualification. Using this data to estimate the number of individuals becoming disqualified and the number of individuals whose disqualification expires, we estimate that over the past decade, the number of disqualified individuals has fluctuated between 50,000 and 70,000, and are not correlated with SNAP participation levels. So we did not make any adjustments to account for changes in overall participation levels.

Under current regulations, States are not required to perform the eDRS matches routinely; they are required only to do periodic matches on an ad hoc basis. FNS staff members estimate that 27 States, with 64 percent of the SNAP caseload, are currently doing routine matches at initial certification. No States are doing matches at recertification. Assuming that the regulations are published by September 2012, and adjusting for a 10 percent false positive rate for matches, we assume that in 2013, 9,000 ineligible persons will be identified by matches performed at initial certification. Of these, we estimate that 6,400 are currently identified and after publication of this regulation, an additional 2,800 will be identified. We are assuming that half the States not doing the match will have implemented the match by January 1, 2013, and the remaining States will have implemented the matches by July 1, 2013, for an overall phase-in rate of 75 percent for 2013 and 100 percent in later years.

The number of ineligible persons identified at recertification is adjusted downwards to account for the fact only new disqualifications would be identified. Also, we are assuming that we are only performing the recertification matches once, rather than annually or biannually. To estimate the impact of running one-time matches at certification, we computed the percentage of disqualifications which are for under a year (91 percent), and adjusted the estimate by that factor. We estimate that over 9,000 ineligible individuals will be identified through matches performed at recertification. We are assuming that in 2013, half the remaining States will have implemented the one-time matches at recertification by January 1, 2013, and the remaining half by July 1, 2013; so we are assuming a 75 percent impact for 2013 and a 25 percent impact for 2014. Thus, we are assuming the newly-matching States will identify nearly 7,000 ineligible individuals in 2013, and the remaining 2,000 individuals identified in FY 2014.

To obtain the impact of performing the matches at initial certification and at recertification, we added the totals for initial certification and recertification together for a total of 6,000 disqualified individuals identified by States currently performing matches and 10,000 disqualified individuals identified by States newly implementing matches in 2013.

Effects on Administering State Agencies: This rule affects State agencies by codifying computer matches mandated by legislation and requiring a previously optional computer match.

Effect on Retailers. This action is not anticipated to have any measurable impact on SNAP retailers.

Cost Impact. This action reduces benefit costs by identifying and removing ineligible and deceased individuals from the SNAP. It does not affect benefit levels for households without individuals identified in the computer matches.

PVS Matches: FNS estimates that mandatory computer matches using the PVS will save approximately $26 million in benefits that would have been paid to households on behalf of ineligible prisoners in Fiscal Year 2013. Of that, nearly $18 million will be saved through matches performed at initial certification, which were made mandatory by legislation and are incorporated in current budgetary baselines. Nearly $8 million will be saved through matches performed at recertification, which will be required under discretionary provisions of this regulation. The savings is estimated at $115 million for the five-year period 2013-2017.

The cost estimate was derived using the same methodology as that used for the participation impact estimate. Using data from the GAO report, we estimate that about $2,618,847 in overpayments could have been avoided using the computer match at initial certification. This accounted for 0.03 percent of benefits issued in Fiscal Year 1995.

Applying this to the Fiscal Year 2013 estimated benefits of $75.2 billion yields an unadjusted savings of $24 million in reduced overpayments to prisoners at initial certification. After taking out those States who used the PVS prior to the legislation making such matches mandatory, adjusting for increases in the number of prisoners since 1995, and assuming a 10 percent false positive rate for matches, we estimate that the savings will be $18 million.

Requiring the matches at the time of recertification would yield additional savings. Since all States are performing matches at recertification, any cost savings are included in the current budget baseline. There would be no savings from those prisoners who were identified in previous matches. According to the most recent SNAP characteristics report, the average certification period for SNAP households is 12 months. However, the number of new prisoners who entered the system in 2010 is about half the total prison population as of June 30, 2011. Therefore, matches at recertification would yield only half as many hits as matches performed at initial certification. Therefore, we halved the original savings of $24 million. We also adjusted for increases in the number of prisoners and assume a 10 percent false positive rate for matches. Finally, we halved the estimate because the recertification matches will be performed biennially, rather than annually. The savings from performing matches at recertification is an estimated $8 million in Fiscal Year 2013.

To obtain the impact of performing the matches at initial certification and at recertification, we added the two totals together, for savings of $26 million. The five-year savings are an estimated $115 million.

Matches Using Social Security Deceased Lists. The mandatory computer matches using SSA lists of deceased individuals may save over $45 million in benefits that would have been issued to households on behalf of deceased individuals in FY 2013. Of that, $18 million will be saved through matches performed at initial certification, which were made mandatory by legislation and are incorporated in current budgetary baselines. Nearly $27 million will be saved through matches performed at recertification, which will be required under discretionary provisions of this regulation. The total savings over the five-year period is estimated to be $203 million.

The cost estimate was derived using the same methodology as that used for the participation impact estimate. Using data from the GAO report, we estimate that about $3,185,000 in overpayments could have been avoided using the computer match. This accounted for 0.04 percent of benefits issued in Fiscal Year 1996.

Applying this to Fiscal Year 2013 estimated benefits of $75.2 billion yields an unadjusted savings of $30 million in reduced overpayments to deceased individuals. After taking out those States who ran computer matches with SSA death lists prior to the legislation making such matches mandatory, and assuming a 10 percent false positive rate for matches, the cost savings for performing matches at initial certification is $18 million.

Since all States currently perform matches with SSA death lists at recertification, these costs are all incorporated in the current budget baselines. The average certification period is 12 months; we take an annual estimate as for initial certification. The cost savings for performing matches at recertification is estimated at nearly $27 million in 2013 and $121 million for 2013-2017.

We then combined the savings for matches at initial certification and at recertification for a total of $45 million. The five-year savings are an estimated $203 million.

Matches Using the eDRS. Matches at initial certification and recertification using the eDRS may save nearly $3 million in benefits that would have been paid out to individuals disqualified from participating in SNAP in Fiscal Year 2013 and $8 million for 2013-2017. Of that, more than $1 million of these savings is incorporated in the budgetary baseline for FY 2013; the five-year estimate is nearly $6 million. Under current law, States are only required to do periodic matches; however, 27 States currently perform matches at initial certification. No States perform matches at recertification. New savings are estimated to be nearly $2 million for Fiscal Year 2013. The five-year savings for 2013-2017 is estimated at $2.2 million.

The cost estimate was derived using the same methodology used for the participation impact estimate. Using data from the GAO report, we estimate that about $301,000 in overpayments could have been avoided using the computer match. Since the states featured in the GAO study accounted for 29 percent of all benefits, applying the study estimates nationally would have saved nearly $1.1 million in FY 1997.

No adjustments were made to account for caseload changes, since recent data, as discussed earlier, does not show a correlation between the number of disqualified individuals and SNAP participation levels. Since 1997, the average monthly benefit has risen; we anticipate that the average monthly benefit will be about 85 percent higher in 2013-2017. (The American Recovery and Reinvestment Act of 2009 increased the maximum allotment by 13.6 in April 2009 and froze it until FY 2014.) Inflating the 1997 cost to capture 2013 benefit costs yields nearly $2 million in savings.

We estimate that today, 64 percent of benefits were issued to States currently performing routine matches at initial certification. We then adjust for past and expected increases in the average monthly benefit, and assume a 10 percent false positive match rate. We estimate that the 2013 cost savings estimate will be $1.1 million for States currently performing the match, with a five year savings of nearly $6 million. We assume that the final regulation is published by October 1, 2012. We assume that 50 percent of the States currently not performing matches at recertification will start by January 1, 2013, and the remaining States will start by July 1, 2013, so the overall phase-in rate for 2013 is 75 percent. The 2013 cost savings by States newly performing the match will be nearly $500,000, and the five year savings will be $3 million.

Today, no States are performing matches at recertification, so all savings are “new” and not incorporated in the budget baseline. This proposal would require all States to perform a one-time match at recertification to capture cases not recently certified. The cost savings from disqualifying ineligible persons identified at recertification is adjusted downwards to account for the fact only new disqualifications would be identified. To estimate that, we computed the percentage of disqualifications that is for under a year (90 percent) and adjusted the estimate by that percentage. We also assumed that 10 percent of matches will be false positives. We estimate that the 2013 cost savings will be $1.1 million, with 75 percent of the matches run the first year; and the remainder matches run the second year. The five-year savings will be $1.6 million.

The combined savings for matches against the eDRS performed at initial certification and recertification is nearly $3 million in 2013 and $8 million over the 2013-2017 five-year time period. Of that, $1 million in 2013 savings comes from States currently performing the match and $1.7 million comes from new States. For the five-year period, nearly $6 million in savings comes from States currently performing the match and $2.2 million comes from new States.

The total savings from the computer matches is estimated at $73 million in 2013 and $326 million for the five-year period of 2013-2017. Of this, an estimated $324 million is incorporated in the current budget and $2 million represents new savings.

The FAA has determined that notice and opportunity for public comment are impractical because we do not expect substantive comments, and because this special condition only affects this one manufacturer. We also considered that these procedures would significantly delay the issuance of the design approval, and thus, the delivery of the affected aircraft. As certification for the Eurocopter France model EC130T2 is imminent, the FAA finds that good cause exists for making these special conditions effective upon issuance.

While we did not precede this with a notice of proposed special conditions, we invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.

We will consider all comments we receive by the closing date for comments. We will consider comments filed late if it is possible to do so without incurring expense or delay. We may change these special conditions based on the comments we receive.

On October 7, 2008, Eurocopter France applied to amend Type Certificate No. H9EU to include the new EC130T2 model. The EC130T2 model is a derivative of the EC130B4, which is currently approved under Type Certificate No. H9EU. The EC130T2 is a 14 CFR part 27 normal category, single-engine rotorcraft, which will be certificated for single-pilot operation and a maximum of seven passengers. This model includes increased performance from the Turbomeca Arriel 2D engine, an upgraded main transmission, new vehicle engine management display (VEMD) avionics, and an active vibration control system.

Eurocopter France proposes that the EC130T2 model use a novel and unusual design feature, which is a 30-minute power rating, identified in the Arriel 2D engine type certification data sheet (TCDS) [FAA Turbomeca TCDS No. E00054EN]. 14 CFR 1.1 defines “rated takeoff power” as limited in use to no more than 5 minutes for takeoff operation. Thus, the use of takeoff power for 30 minutes will require special airworthiness standards, known as special conditions, to address the use of this 30-minute power rating and its effects on the rotorcraft. These special conditions will add requirements to the existing airworthiness standards in 14 CFR 27.923 (Rotor drive system and control mechanism tests), § 27.1305 (Powerplant instruments), and § 27.1521 (Powerplant limitations).

For the EC130T2, the European Aviation Safety Agency (EASA) has issued CRI E-02, which documents the special conditions.

The following is a summary of the final special conditions:

In addition to the requirements of Section 27.923, Rotor Drive System and Control Mechanism Tests, the aircraft drive-system effects due to use of the 30-minute power rating versus the Takeoff (5-minute) rating must be accounted for in the rotor drive-system testing.

In addition to the requirements of Section 27.1305, Powerplant Instruments, since this new 30-minute power rating has a time limit associated with its use, the pilot must have the means to identify:

• When the rated engine power level is achieved,

• When the event begins, and

• When the time interval expires.

In addition to the requirements of Section 27.1521, Powerplant Limitations, a new 30-minute rating must be defined for the use of takeoff power for greater than 5 minutes and must be limited to no more than 30 minutes per use.

Furthermore, the Model EC130T2 rotorcraft flight manual must include limitations on use of the 30-minute power rating to state:

• Continuous use above MCP is limited to 30 minutes, and

• Cumulative use above MCP is limited to 1 hour per flight.

Under 14 CFR 21.101, Eurocopter France must show that the EC130T2 model helicopter meets the applicable provisions of the regulations incorporated by reference in Type Certificate No. H9EU, or the applicable regulations in effect on the date of application for the amendment to the type certificate. The regulations incorporated by reference in the type certificate are commonly referred to as the “original type certification basis.” The regulations incorporated by reference in H9EU are as follows:

(a) 14 CFR 21.29, and part 27 Amendments 27-1 through 27-32, except 14 CFR 27.952 is not adopted.

(b) 14 CFR Part 36 Appendix H through Amendment 20

(c) Special Condition 27-009-SC for HIRF

(d) Equivalent Level of Safety Findings issued against:

(1) 14 CFR 27.1549(b) Powerplant Instrument Markings.

(2) 14 CFR 27.1027(b)(2) Main Gearbox Oil Filter Bypass

The Administrator has determined that the applicable airworthiness regulations (that is, 14 CFR part 27) do not contain adequate or appropriate safety standards for the EC130T2 model helicopter because of a novel or unusual design feature. Therefore, special conditions are prescribed under the provisions of 14 CFR 21.16.

The FAA issues special conditions, as defined by 14 CFR 11.19, in accordance with 14 CFR 11.38, and they become part of the type certification basis under § 21.101.

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

The EC130T2 model helicopter will incorporate a novel or unusual design feature, which is:

• A 30-minute power rating.

These special conditions are applicable to the Eurocopter France Model EC130T2 helicopter. These special conditions would apply if Eurocopter France seeks to amend Type Certificate No. H9EU to add another model that has the same unusual design feature.

This action affects only certain novel or unusual design features on the Eurocopter France Model EC130T2 helicopter. It is not a rule of general applicability, and it affects only the applicant who applied to the FAA for approval of this feature.

On June 7, 2012, the FAA published in the Federal Register a notice of proposed rulemaking (NPRM) to establish controlled airspace at Fort Morgan, CO (77 FR 33687). Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class E airspace designations are published in paragraph 6005, of FAA Order 7400.9V dated August 9, 2011, and effective September 15, 2011, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in that Order.

This action amends Title 14 Code of Federal Regulations (14 CFR) Part 71 by establishing Class E airspace extending upward from 700 feet above the surface, at Fort Morgan Municipal Airport, to accommodate IFR aircraft executing new RNAV (GPS) standard instrument approach procedures at the airport. This action is necessary for the safety and management of IFR operations.

The FAA has determined this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, Section 106 discusses the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it establishes controlled airspace at Fort Morgan Municipal Airport, Fort Morgan, CO.

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:

The Commission published the final rule entitled Real-Time Public Reporting of Swap Transaction Data (“Final Rule”) in the Federal Register on January 9, 2012, (77 FR 1182), adopting rules to implement a framework for the real-time public reporting of swap transactions and pricing data for all swap transactions. The final rule, which became effective on March 9, 2012, contains a sentence in a footnote that created an inconsistency as to the type of swap transactions that may be considered “publicly reportable swap transactions” under the Final Rule. The sentence is corrected in this release to eliminate the inconsistent language in the footnote and, thus, make clear that certain, and not all, covered transactions as described in Sections 23A and 23B of the Federal Reserve Act may be considered “publicly-reportable swap transactions.”

The Commission received inquiries whether it considered all “covered transactions” between affiliates, as defined in Sections 23A and 23B of the Federal Reserve Act  1 to be “publicly reportable swap transactions.” As published, the last sentence of footnote 44 of the Final Rule reads: “The Commission considers any covered transaction between affiliates as described in Sections 23A and 23B of the Federal Reserve Act to be publicly reportable swap transactions.” This sentence unintentionally conflicts with the text of § 43.2 defining “publicly reportable swap transaction,” and with the preamble of the Final Rule.

Section 43.2 defines the term “publicly reportable swap transaction,” and also provides an example of certain swap transactions that do not fall within the definition. Under § 43.2, in paragraph (2)(i) of the definition of “publicly reportable swap transaction,” certain inter-affiliate trades may not be reportable as the rule excludes from the definition of reportable swap transactions: “Internal swaps between one hundred percent owned subsidiaries of the same parent entity.” Paragraph (3) of the definition states that the examples of transactions set forth paragraph (2) of the definition that do not fall within the publicly reportable swap transaction definition “represent swaps that are not at arm's length and thus are not publicly reportable swap transactions, notwithstanding that they do result in a corresponding change in the market risk position between two parties.” Indeed, there may be covered transactions as defined in Sections 23A and 23B of the Federal Reserve Act that are not at “arm's length” transactions under Part 43, but which nevertheless result in a corresponding change in market risk between the two parties. Under § 43.2, those types of covered transactions would not be “publicly reportable swap transactions.”

Further, correction of the footnote 44 sentence will remove any conflict with the preamble language. The preamble language immediately preceding the footnote states: “As adopted, the definition of a publicly reportable swap transaction also provides, by way of example, that internal transactions to move risk between wholly-owned subsidiaries of the same parent, without having credit exposure to the other party would not presently require public dissemination because such swaps are not arm's-length transactions.” Again, there may be covered transactions as defined in Sections 23A and 23B of the Federal Reserve Act that may be internal transactions to move risk between wholly-owned subsidiaries of the same parent, without having credit exposure to the other party. Those transactions thus do not require public dissemination because they are not arm's-length transactions.

Accordingly, this document revises the language of the last sentence of footnote 44 on page 1187 of the Federal Register to read as follows: “Certain covered transactions between affiliates as described in Sections 23A and 23B of the Federal Reserve Act may be considered to be publicly reportable swap transactions.”

For compliance purposes, this correction of the footnote sentence will result in a more accurate reflection of the regulatory language that the determination of whether a covered transaction under Section 23A or 23B of the Federal Reserve Act is a publicly reportable swap transaction should be made by the parties to the swap, rather than the Commission. In turn, the Commission's review of such determination will be based upon the standards as set forth in § 43.2.

In FR Doc. 2011-33173 appearing on page 1182 in the Federal Register on Monday, January 9, 2012, the following correction is made:

On page 1187, revise the last sentence of footnote 44 to read, “Certain covered transactions between affiliates as described in Sections 23A and 23B of the Federal Reserve Act may be considered to be publicly reportable swap transactions.”

Throughout this document wherever “we,” “us,” or “our” are used we mean EPA. On July 13, 2012 (77 FR 41279), we published a final rulemaking action announcing our limited approval of Pennsylvania's Regional Haze SIP. In this document, we inadvertently provided an incorrect amendatory instruction on page 41284 regarding the addition of an entry to § 52.2020(e)(1), and also omitted a paragraph heading. This action corrects both the erroneous amendatory instruction and the omitted paragraph heading in part 52 for this paragraph.

In rule document 2012-16428, published in the Federal Register on July 13, 2012 (77 FR 41279), the following corrections are made:

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

On July 18, 1997 (62 FR 38856), EPA promulgated an 8-hour ozone standard of 0.08 parts per million (ppm) (85 parts per billion (ppb) or higher exceeds the standard). EPA published a final rule designating and classifying areas under the 1997 8-hour ozone NAAQS on April 30, 2004 (69 FR 23857). In that rulemaking, the Greater Chicago area was designated as nonattainment for the ozone standard. This area was classified as a moderate nonattainment area under subpart 2 of the Clean Air Act (CAA).

On July 23, 2009, IEPA requested redesignation of the Illinois portion of the Greater Chicago area to attainment of the 1997 8-hour ozone standard based on ozone data for the period of 2006-2008. On September 16, 2011, IEPA supplemented the original ozone redesignation request, submitting ozone data for the period of 2008-2010, revising the mobile source emission estimates using EPA's on-road mobile source emissions model, MOVES, and extending the demonstration of maintenance of the ozone standard through 2025, with new MVEBs, but without emission reductions resulting from implementation of EPA's Clean Air Interstate Rule (CAIR).

On March 12, 2010, EPA issued a final rulemaking determining that the entire Chicago-Gary-Lake County, IL-IN area had attained the 1997 8-hour ozone NAAQS based on three years of complete, quality-assured ozone data for the period of 2006-2008, and continuing through 2009  1 (75 FR 12088). On May 11, 2010, EPA issued a final rulemaking redesignating the Indiana portion (Lake and Porter Counties) of the Chicago-Gary-Lake County, IL-IN area to attainment of the 1997 8-hour ozone NAAQS (75 FR 26118).

On February 9, 2012 (77 FR 6743), EPA issued a notice of rulemaking proposing to approve Illinois' request to redesignate the Illinois portion of the Greater Chicago area to attainment of the 1997 8-hour ozone standard, as well as proposing to approve Illinois' ten-year ozone maintenance plan for the area, VOC and NOx MVEBs, and 2002 VOC and NOx emission inventories as revisions of the Illinois SIP. This proposed rulemaking sets forth the basis for determining that Illinois' redesignation request meets the CAA requirements for redesignation for the 1997 8-hour ozone NAAQS. Complete, quality-assured air quality monitoring data in the Greater Chicago area for 2008-2010 and for 2009-2011 show that this area is currently attaining the 1997 8-hour ozone NAAQS. Preliminary data available to date for 2012 are consistent with continued attainment of the 1997 8-hour ozone NAAQS. The quality-assured ozone data in the Greater Chicago area were discussed in the February 9, 2012, proposed rule for this rulemaking (77 FR 6747). Table 1 summarizes the 2009-2011 annual fourth high ozone concentrations and 2009-2011 ozone design values (three-year averages of the annual fourth high daily maximum 8-hour ozone concentrations) for each of the monitoring sites in the Greater Chicago area. These and other ozone data for the Greater Chicago area are also documented at EPA's Web site http://www.epa.gov/airdata/ad_rep_mon.html.

The primary background for today's action is contained in EPA's February 9, 2012, proposal to approve Illinois' redesignation request, and in EPA's March 12, 2010, final rulemaking determining that the area has attained the 1997 8-hour ozone NAAQS. In these rulemakings, we noted that, under EPA regulations at 40 CFR 50.10 and 40 CFR part 50, appendix I, the 1997 8-hour ozone standard is attained when the three-year average of the annual fourth-highest daily maximum 8-hour average ozone concentrations is less than or equal to 0.08 ppm at all ozone monitoring sites in an area. See 69 FR 23857 (April 30, 2004) for further information. To support the redesignation of the area to attainment of the NAAQS, the area must show attainment based on complete, quality-assured data for the most recent three-year period. The data completeness requirement, for any given monitoring site, is met when the three-year average of days with valid ambient monitoring data is greater than 90 percent, and no single year has less than 75 percent data completeness, as determined in accordance with appendix I of 40 CFR part 50. Under the CAA, EPA may redesignate a nonattainment area to attainment if sufficient, complete, quality-assured data are available demonstrating that the area has attained the standard and if the State meets all applicable redesignation requirements specified in section 107(d)(E) and section 175A of the CAA.

The February 9, 2012, proposed rule provides a detailed discussion of how Illinois' ozone redesignation request meets the CAA requirements. Complete, quality-assured and certified air quality monitoring data in the Greater Chicago area for 2009-2011 and preliminary data available for 2012 show that this area is currently attaining the 1997 8-hour ozone NAAQS. With the final approval of its VOC and NOx emission inventories, Illinois has met all CAA requirements for redesignation of the Illinois portion of the Greater Chicago area to attainment for the 1997 8-hour ozone NAAQS. Illinois has demonstrated that attainment of the 1997 8-hour ozone NAAQS will be maintained in the Greater Chicago area through 2025 with or without the implementation of EPA's CAIR. Finally, Illinois has adopted 2008 and 2025 MVEBs that are supported by Illinois' ozone maintenance demonstration and adopted ozone maintenance plan.

EPA provided a 30-day review and comment period for the February 9, 2012, proposed rule. During the comment period, we received one comment set from an individual representing the Sierra Club. These comments are summarized and addressed below.

Comment 1: The commenter argues that it is inappropriate to redesignate the Illinois portion of the Greater Chicago area to attainment under the 1997 8-hour ozone standard when EPA intends to designate this area as nonattainment under the 2008 8-hour ozone standard, and asserts that EPA is delaying the implementation of the 2008 8-hour ozone standard.

Response 1: We disagree with the commenter. The area's status with respect to the 2008 8-hour ozone standard is not relevant to the area's attainment status under the 1997 8-hour ozone standard. It would be inappropriate to defer or reject the redesignation of the area under the 1997 8-hour ozone standard based on EPA's designation of the area under the 2008 8-hour ozone standard.

On June 11, 2012, EPA published its designation for the Chicago-Naperville, IL-IN-WI area for the 2008 ozone standards. 77 FR 34221. EPA designated the Chicago-Naperville, IL-IN-WI area as nonattainment with a classification of marginal for the 2008 ozone standards. The area's status with respect to the 2008 ozone standards, however, does not affect or prevent redesignation of the area to attainment for the 1997 ozone standard. The 1997 ozone standard currently remains in effect, and, thus, EPA continues to evaluate the area's designation status with respect to that standard. Until the 1997 8-hour ozone standard is revoked, it remains in effect and independent of the 2008 8-hour ozone standards, and EPA continues to evaluate and act upon states' redesignation requests with respect to the 1997 ozone standard.

EPA has in the past continued to redesignate areas under existing standards even after the adoption of new standards for the same pollutant. After adopting the 1997 8-hour ozone standard, EPA continued to redesignate areas for the 1-hour ozone standard until the 1-hour ozone standard was revoked. See, for example the Cincinnati ozone redesignation for the 1-hour ozone standard, 70 FR 35946 (June 21, 2005) and the Atlanta ozone redesignation for the 1-hour ozone standard, 70 FR 34660 (June 15, 2005).

Subsequent to the adoption of the 2008 8-hour ozone standard and designation of areas for this standard, EPA has continued to redesignate areas to attainment for the 1997 8-hour ozone standard. See, for example, the Detroit, Michigan redesignation, 74 FR 30950 (June 29, 2009); Clearfield and Indiana Counties, Pennsylvania redesignation, 74 FR 11674 (March 19, 2009); Kewaunee County, Wisconsin redesignation, 73 FR 29436 (May 21, 2008); and, Door and Manitowoc Counties, Wisconsin redesignation, 75 FR 39635 (July 12, 2010). Also see the redesignation of the Illinois portion of the St. Louis area for the 1997 8-hour ozone standard, 77 FR 34819 (June 12, 2012).

Comment 2: The commenter argues that EPA has failed to consider ambient monitoring data from 2011 even though Illinois has already submitted and certified these data. The commenter asserts that the EPA must include these data in its consideration of Illinois' ozone redesignation request and provide the public with the opportunity to review and comment on these data before making any final decision on Illinois' ozone redesignation request.

Response 2: At the time EPA prepared the proposed rule for rulemaking on Illinois' ozone redesignation request, EPA had not yet received Illinois' certification of the 2011 ozone data. At the time of EPA's proposed redesignation of the area, the 2008-2010 ozone data were the most recent three years of State-certified data available to EPA. Illinois has subsequently certified its 2011 ozone data for the Illinois portion of the Greater Chicago area.

Indiana has certified its 2011 ozone data for the Indiana portion of the Greater Chicago area. In addition, Wisconsin has certified the 2011 ozone data for the Chiwaukee Prairie monitoring site in Kenosha County, generally considered to be the peak ozone design value site attributable to emissions in the Greater Chicago area.

The complete, certified 2011 ozone data, along with ozone data for 2009 and 2010, show that the Greater Chicago area continues to attain the 1997 8-hour ozone standard. The highest 8-hour ozone design value for the 2009-2011 period was recorded at the Chiwaukee Prairie monitoring site, with a value of 0.077 parts per million. All of these data show that the area continued to attain the 1997 8-hour ozone standard during the 2009-2011 period. Preliminary ozone data for 2012 for the Greater Chicago area and for Chiwaukee Prairie are consistent with the Greater Chicago area's continued attainment of the 1997 8-hour ozone standard. EPA has, thus, considered these data, which reflect continued attainment of the 1997 8-hour ozone standard. Although the 2011 data were not certified at the time of proposal, these data were available to the public through EPA's Air Quality System and commenters could have reviewed the data and addressed them in comments.

Comment 3: The commenter asserts that the consideration of the 2011 data is particularly important because 2008 (the attainment year used by the IEPA to document the emissions reduction-basis for the attainment of the ozone standard in the Chicago-Gary-Lake County, IL-IN area and the base year for the 10-year ozone standard maintenance demonstration) was the first year of a major recession. The commenter contends that emission reductions leading to the observed air quality improvement were the result of temporary economic conditions rather than the result of permanent emission reductions.

Response 3: First, as set forth in EPA's response to comment 2 above, EPA has considered the complete, quality assured and certified monitoring data for the bi-state nonattainment area for 2011. These data show that the area has continued to attain the 1997 8-hour ozone standard, and preliminary data for 2012 are consistent with continued attainment. A determination of attainment is based solely on air quality considerations, and, therefore, underlying economic conditions are not relevant to the limited inquiry that results in a determination. In another portion of this rulemaking, and with respect to a separate and independent criterion for redesignation under section 107(d)(3)(E)(iii), EPA examines whether attainment is due to permanent and enforceable emission reductions. See discussion in the proposed rulemaking (77 FR 6743, February 9, 2012) and elsewhere in these responses to comments.

The commenter provides no data to demonstrate that the economic recession of recent years had any impact on emissions in 2008. The commenter merely speculates that there was such an impact. Lacking any data to the contrary, we see no reason to assume that the lower emissions of 2008 (relative to those of the base nonattainment year of 2002) were exclusively or predominantly an artifact of temporary emission reductions resulting from the economic recession.

In addition, the Chicago-Gary-Lake County, IL-IN area has continued to attain the 1997 ozone standard over an extended period (over a number of sequential three-year periods, 2006-2008, 2007-2009, 2008-2010, and now 2009-2011), with general downward trends in ozone design values at most monitoring sites in the area (see Table 1 in the proposed rule for this rulemaking action, 77 FR 6747). Given the downward trend in ozone design values and the ozone design values below the 0.085 ppm ozone standard violation level, we see no reason to believe that a reversal in the economic situation in this area will cause a return to violation of the 1997 8-hour ozone standard in this area in the foreseeable future.

Comment 4 General: The commenter argues that Illinois and EPA have failed to comply with the ozone redesignation requirement of section 107(d)(3)(E)(iii) of the CAA, which requires that the observed improvement in air quality be due to permanent and enforceable emission reductions resulting from the State's implementation of its SIP and implementation of applicable Federal air pollution control requirements and other permanent and enforceable emission reductions. The commenter argues, in particular, that EPA relied on several emission control programs that are not permanent and enforceable. These questioned emission controls are specified in the following:

Comment 4a: The commenter asserts that the NO X SIP call is not permanent and enforceable. The commenter notes that EPA found that the NO X emission reductions leading to attainment in the Greater Chicago area were due, in part, to the implementation of the NO X SIP call. The commenter argues that the NO X SIP call cannot be assumed to be permanent and enforceable because it has been replaced, and, therefore, no longer exists. In addition, the NO X SIP call is implemented through a cap-and-trade program, which means that no actual NO X emission reduction may have been required for any specified source upwind of the high ozone areas in the Greater Chicago area. The commenter cites a 2009 decision by the D.C. Circuit Court of Appeals, which the commenter believes held that EPA cannot use cap-and-trade programs to satisfy an area-specific statutory mandate. See NRDC v. EPA, 571 F.3d 1245, 1257 (D.C. Cir. 2009).

Response 4a: EPA disagrees with the commenter's position that emission reductions associated with the NO X SIP call cannot be considered to be permanent and enforceable. The commenter's first argument—that the NO X emission reductions are not permanent and enforceable because the NO X SIP call has been replaced—is based on a misunderstanding of the relationship between the CAIR and the NO X SIP call. While the CAIR ozone-season trading program replaced the ozone-season NO X trading program developed in the NO X SIP call (70 FR 25290), nothing in the CAIR relieved states of their NO X SIP call obligations. In fact, in the preamble to CAIR, EPA emphasized that the states and certain units covered by the NO X SIP call but not by CAIR must still satisfy the requirements of the NO X SIP call. EPA provided guidance regarding how such states could meet these obligations. 2 In no way did EPA suggest that states could disregard their NO X SIP call obligations. (70 FR 25290). For NO X SIP call states, the CAIR NO X ozone season program provides a way to continue to meet the NO X SIP call obligations for electric generating units (EGUs) and large non-electric generating units (nonEGUs). In addition, the anti-backsliding provisions of 40 CFR 51.905(f) specifically provide that the provisions of the NO X SIP call, including the statewide NO X emission budgets, continue to apply.

In summary, the requirements of the NO X SIP call remain in force. They are permanent and enforceable as are state regulations developed to implement the requirements of the NO X SIP call.

EPA also disagrees with the commenter's second argument—that the emission reductions associated with the NO X SIP call cannot be considered permanent and enforceable because the NO X SIP call provides for a trading program. There is no support for the commenter's argument that EPA must ignore all emission reductions achieved by the NO X SIP call simply because the mechanism used to achieve the emission reductions is an emissions trading program. As a general matter, trading programs establish mandatory caps on emissions and permanently reduce the total emissions allowed by sources subject to the programs. The emission caps and associated controls are enforced through the associated SIP rules or Federal Implementation Plans (FIPs). Any purchase of allowances and increase in emissions by a utility necessitates a corresponding sale of allowances and results in an emission reduction by another utility. Given the regional nature of ozone formation and transport, the emission reductions will have an air quality benefit that will compensate, at least in part, for the impact of any emission increase.

In addition, the case cited by the commenter, NRDC v. EPA, 571 F.3d 1245 (D.C. Cir. 2009), does not support the commenter's position. The case addressed EPA's determination that the CAA nonattainment area RACT requirement was satisfied by the NO X SIP call trading program. The court held that, because EPA had not demonstrated that the trading program would result in sufficient emission reductions within a nonattainment area, its determination that the program satisfied RACT was not supported. Id. 1256-58. The court explicitly noted that EPA might be able to reinstate the provision providing that compliance with the NO X SIP call satisfies NO X RACT for EGUs for particular nonattainment areas if, upon conducting a technical analysis, it could demonstrate that the NO X SIP call results in greater emissions reductions in a nonattainment area than would be achieved if RACT-level controls were installed in that area. Id. at 1258. In this case, EPA's comparison of emissions in 2002 and 2008 in this rulemaking necessarily looked only at changes in emissions “in the nonattainment area.” As such, the commenter's reliance on NRDC v. EPA is misplaced.

Comment 4b: The commenter contends that EPA cannot rely on the Cross State Air Pollution Rule (CSAPR) to provide permanent and enforceable emission reductions because the implementation of this rule has been stayed by the U.S. Court of Appeals for the District of Columbia Circuit. The commenter contends that this stay makes CSAPR neither permanent nor enforceable. In addition, the commenter notes that CSAPR is to be implemented through a cap-and-trade program, and, therefore, as summarized in Comment 4a, CSAPR cannot be relied on to produce permanent and enforceable emission reductions. Further, EPA cannot take credit for the promise of any emission control program that would replace CSAPR should the Court remand or vacate CSAPR.

Response 4b: Illinois has not relied on CSAPR to demonstrate that attainment was due to permanent and enforceable emission reductions or to demonstrate that it will maintain the standard. EPA did not credit Illinois with NO X emission reductions from the implementation of CSAPR for attainment or maintenance of the 1997 ozone standard. While CSAPR was listed by the State as a possible contingency measure in the State's ozone maintenance plan, EPA did not credit Illinois with NO X emission reductions resulting from the implementation of CSAPR, nor did the State take credit for any such emission reduction when demonstrating maintenance of the 1997 ozone standard. As such, the stay of CSAPR is not relevant here.

In addition, modeling performed by EPA during the CSAPR rulemaking process also demonstrates that the counties in the Greater Chicago area will have ozone levels below the 1997 8-hour ozone standard in both 2012 and 2014 without emission reductions from CSAPR or CAIR, with the highest value for any county in the area projected to be 81.1 ppb without the implementation of CSAPR/CAIR-based emission controls. See “Air Quality Modeling Final Rule Technical Support Document,” Appendix B, pages B-9, B-10, B-11, and B-33, which is available in the docket for this rulemaking.

Although Illinois did list the “Cross-State Air Pollution Rule” as a possible contingency measure in the ozone maintenance plan, this measure is only one of many that may be selected should the contingency plan be triggered. EPA has concluded, in its consideration of the ozone maintenance plan contingency measures, that there are other contingency measures sufficient to satisfy the requirements of section 175A of the CAA, without the consideration of CSAPR.

With regard to the commenter's assertion that EPA cannot rely on the emission reductions resulting from the implementation of CSAPR because CSAPR would be implemented through the application of an emissions trading program, see our response to the commenter's similar comment with regard to emissions trading under EPA's NOx SIP call in the response to comment 4a above. In addition, CSAPR contains assurance provisions that guarantee that emission reductions will occur in specific states.

Comment 4c: The commenter asserts that Illinois emission control rules are not permanent and enforceable. To support this assertion, the commenter argues that Illinois' Consumer Products and Architectural and Industrial Coatings (AIM) rules have been adopted only by the State, and that, until these rules are approved by the EPA and incorporated into the SIP they cannot be relied upon for redesignation.

Response 4c: EPA in fact finalized approval of Illinois' consumer products and AIM rules on June 7, 2012, at 77 FR 33659. Thus, the commenter's concern is moot. Moreover, EPA wishes to note that it is not necessary for every change in emissions between the nonattainment year (in this case 2002) and the attainment year (2008) to be permanent and enforceable. Rather, the improvement in air quality necessary for the area to attain must be reasonably attributable to permanent and enforceable reductions in emissions. As discussed in the proposed rule at 77 FR 6754 (February 9, 2012), Illinois and upwind areas have implemented a number of permanent and enforceable regulatory control measures which have reduced emissions and have resulted in a corresponding improvement in ozone air quality. Even if EPA did not finalize action on Illinois' consumer products and AIM rules before completing action on the State's ozone redesignation request, these emission reductions are not necessary to demonstrate that the improvement in air quality is reasonably attributable to permanent and enforceable emission reductions.

Comment 4d: The commenter asserts that the use of 2008 air quality data is inappropriate to demonstrate that the attainment of the 1997 8-hour ozone standard is due to the implementation of permanent and enforceable emission reductions. The commenter claims that EPA simply documented the changes in emissions between 2002 and 2008 to demonstrate that the observed ozone air quality improvement is due to permanent and enforceable emission reductions during this period. The commenter contends that this is unacceptable for a number of reasons.

First, the commenter asserts that EPA has done nothing to connect the emission changes with air quality impacts. The commenter claims that EPA has conducted no analyses to prove that emission reductions between 2002 and 2008 have led to reduced ozone concentrations and attainment of the 1997 8-hour ozone standard.

Second, the commenter argues that using a single attainment year, 2008, is arbitrary because, as explained in preceding comments, the impact of cap-and-trade emission control programs, such as the NO X SIP call and CSAPR, can cause emissions to vary over time and location as sources buy, sell, and trade emission allowances.

Third, the commenter characterizes the choice of 2008 is further problematic because 2008 marked the beginning of a large economic recession in this country. The commenter contends that this resulted in decreased electricity demand, decreased automobile, truck, and shipping traffic, and decreased factory production. The commenter contends that EPA makes the “unsupported and implicit conclusion” that monitored changes in ozone levels between 2002 and 2008 were due to the implementation of permanent and enforceable emission controls rather than to changes in meteorology, economic conditions, temporary, or voluntary (not enforceable) emission controls. The commenter asserts that EPA provides no analysis showing that the recession was not the cause of the 2002-2008 emission reduction and observed ozone air quality improvement.

Finally, the commenter argues that EPA has not shown that the 2008 emissions inventory reflects permanent and enforceable emission reductions occurring between 2002 and 2008. The 2008 emissions inventory appears to be the “actual” or the “projected” emissions from an unidentified group of sources. The commenter argues that there is a significant difference between what sources actually emit and what sources are allowed to emit, and that the IEPA and EPA have incorrectly assumed that allowable emissions are equal to actual emissions.

Response 4d: EPA's conclusion here is fully supported by the facts and applicable legal criteria. EPA policy  3 and longstanding practice allows states to demonstrate permanent and enforceable emission reductions by comparing emissions occurring during the nonattainment period (represented by emissions during one of the years in the three-year period used to designate an area as nonattainment, 4 in this case 2002) with emissions occurring during the attainment period (represented by emissions during one of the three attainment years, in this case 2008, which is part of the three-year period, 2006-2008, in which Chicago-Gary-Lake County, IL-IN area first attained the 1997 8-hour ozone standard). In EPA's determination of attainment and proposed approval of the redesignation request, EPA considered data for the 2008-2010 time period, which was then the most recent quality-assured, certified three years of data available. See 77 FR 6743, 6746 (February 9, 2012). Therefore, selecting 2008 as the representative attainment year and comparing emissions for this year to those of the representative violation year, 2002, is an appropriate and long-established approach that demonstrates emission reductions in the period between the years of nonattainment and attainment. These emission reductions, therefore, can be reasonably seen to account for the observed air quality improvement.

EPA disagrees with the commenter's assertion that EPA has conducted no analyses to prove that emission reductions between 2002 and 2008 led to reduced ozone concentrations. EPA's analyses included comparison of emissions for the representative nonattainment year to the emissions for the representative attainment year. This comparison, which established the existence of significant emission reductions that resulted in attainment, and also linked these emission reductions to control measures, is consistent with longstanding practice and EPA policy for making such a demonstration. As noted in the proposed rulemaking for this redesignation (77 FR 6754, February 9, 2012), the State of Illinois documented changes in VOC and NO X emissions between 2002 and 2008 in the Illinois portion of the Greater Chicago area and the emission control measures that have been implemented in the Illinois portion of the Greater Chicago area. These emission control measures resulted from the State's adoption and implementation of regulations, including regulations to: Control NO X emissions at electric generating utilities and large industrial combustion sources under EPA's NO X SIP call; control emissions and implement New Source Performance Standards (NSPS), National Emission Standards for Hazardous Air Pollutants (NESHAPS), and Maximum Available Control Technology (MACT) standards for new sources; control VOC solvent emissions for aerosol coatings and AIM coatings and consumer solvents; control vehicle emissions through the implementation of enhanced vehicle inspection and maintenance; control vehicle refueling emissions; and control vehicle evaporative emissions through use of low volatility fuels and reformulated gasoline. In addition to the State's implementation of state-specific emission control measures, Federal emission control measures have also been implemented in the Greater Chicago area, including: Tier 2 emission standards for vehicles; Tier 4 nonroad diesel engine standards; marine compression-ignition engine standards; and locomotive engine standards. As noted in the February 9, 2012, proposed rule, all of these emission controls have been implemented since the 2001-2003 ozone standard violation period for the Greater Chicago area. Therefore, it is reasonable to conclude that the emission reductions resulting from these emission controls contributed to the attainment of the 1997 8-hour ozone standard in the Greater Chicago area. See the February 9, 2012, proposed rule (77 FR 6754 and 6759) for discussions of implemented emission control measures and how Illinois derived the 2002 and 2008 VOC and NO X emissions, demonstrating emission reductions between the 2002 violation year and 2008 attainment year.

The State demonstrated that the implementation of these emission controls along with other ongoing emission controls resulting from continued implementation of the Illinois SIP have led to the emission reductions used to demonstrate the emissions reduction in this area. To derive the 2008 emissions, the State determined source category-specific emission control factors associated with the implemented emission controls. Note that the State applied emission control factors only for those source categories covered by State or Federal emission control requirements and for specific sources subject to permanent, enforceable source closures. The State took no credit for temporary or non-permanent emission reductions resulting from voluntary emission control measures or source activity downturn resulting from the current downturn in the economy. The source category-specific emission control factors, along with source category-specific growth factors, were applied to the 2002 base year emissions to project the 2008 emissions. Emission reductions resulting from source closures occurring between 2002 and 2008 and determined to be permanent (including forfeiture of source permits) were also considered and factored into the emission projections, but produced relatively small emission reductions compared to the impacts of implemented emission controls. Since most source categories had positive growth factors, almost all projected emission reductions can be attributed to the impacts of implemented emission controls. Therefore, the State has demonstrated that the derived emission reduction that occurred between 2002 and 2008 is due to the implementation of emission controls.

The CAA does not specifically require the use of ozone modeling to make a demonstration that the observed ozone air quality improvement is due to permanent and enforceable emission reductions resulting from the implementation of emission controls. It has not been the general practice of states to do so in demonstrating emission reductions for purposes of ozone redesignation requests.

EPA disagrees with the commenter's contention that using emissions from a single attainment year is arbitrary due to the year-to-year variation in emission levels resulting from the implementation of cap-and-trade programs. As a general matter, trading programs establish mandatory caps on emissions and permanently reduce total emissions allowed for sources subject to the programs. The emission caps and associated controls are enforced through the associated SIP rules and FIPs. Any purchase of emission allowances and increase in emissions by a utility necessitates a corresponding sale of emission allowances and reduction in emissions by another utility. Given the regional nature of ozone formation and transport, the emissions reduction will have an ozone air quality benefit that will compensate, at least in part, for the impact of any emission increase.

With respect to NO X SIP call emission reductions within the Greater Chicago area, there is no evidence of significant temporal variation in emissions levels. In fact, actual emissions from NO X SIP call sources in the Chicago area have not varied much from year-to-year over the 2003-2011 time period. Some of the largest emitters in the Greater Chicago area that are covered by the NO X SIP call are operating near full capacity. In addition, an analysis of ozone season NO X emission rates and total operating hours for all NO X SIP call sources in this area shows that annual levels of NO X emission rates (tons per hour of operation) have generally trended downward subsequent to 2003 as a result of the implementation of emission controls.

While the commenter expressed concerns that an economic downturn was responsible for the observed air quality improvement, the commenter has made no demonstration that the reduction in emissions and observed improvement in air quality is due to an economic recession, changes in meteorology, or temporary or voluntary emission reductions. In addition, as noted previously, the CAA does not require modeling to make any such demonstration. There are no data demonstrating that the observed air quality improvement is due to the economic downturn, temporary changes in meteorology, or voluntary emission reductions, and, as discussed above, EPA's modeling for the CSAPR demonstrates that the Greater Chicago area would attain the NAAQS in 2012 and 2014 with or without implementation of CAIR, which is place only temporarily. We, thus, have no reason to believe that factors other than permanent and enforceable emission reductions let to attainment of the 1997 8-hour ozone standard in the Greater Chicago area.

Finally, with regard to consideration of actual versus allowable/permitted emission levels, longstanding practice and EPA policy allows for the use of actual emissions when demonstrating permanent and enforceable emission reductions. Sources seldom emit at maximum allowable emission levels, and assuming that all sources simultaneously operate at maximum capacity would grossly overestimate emission levels. For this reason, EPA believes actual emissions are the appropriate emission levels to consider when comparing nonattainment year emissions with attainment year emissions to demonstrate the basis for improvements in peak ozone levels. EPA also notes that the certified monitoring data establish that the area has been attaining the 1997 8-hour ozone standard continuously during the periods of 2006-2008, 2007-2009, 2008-2010, and 2009-2011, and that EPA's modeling demonstrates that the Greater Chicago area would have attainment air quality in 2012 and 2014 with or without the implementation of CAIR. Emissions reductions have continued during this extended period as the State has continued to implement and enforce emission controls in addition to those required by CAIR.

Comment 5: The commenter claims that EPA has not conducted an adequate analysis of the effect redesignation to attainment will have on attainment and maintenance of other NAAQS under section 110(l) of the CAA. The commenter complains that EPA has failed to conduct an adequate analysis of the ozone redesignation impacts with respect to the 1997 annual fine particulate (PM 2.5 ) NAAQS, the 2006 24-hour PM 2.5 NAAQS, the 1-hour nitrogen dioxide (NO 2 ) NAAQS, the 1-hour sulfur dioxide (SO 2 ) NAAQS, and 2008 8-hour ozone NAAQS.

Response 5: Section 110(l) of the CAA provides in part: “the Administrator shall not approve a revision of a plan if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress * * *, or any other applicable requirement of this chapter.” As a general matter, EPA must and does consider section 110(l) requirements for every SIP revision, including whether the revision would “interfere with” any applicable requirement. See, e.g., 70 FR 53, 57 (January 3, 2005); 70 FR 17029, 17033 (April 4, 2005); 70 FR 28429, 28431 (May 18, 2005); and 70 FR 58119, 58134 (October 5, 2005).

The Illinois redesignation request and maintenance plan for the 1997 8-hour ozone standard neither revises nor removes any existing emission control requirements. On that basis, EPA concludes that the redesignation will not interfere with attainment or maintenance of any of the air quality standards. Moreover, the maintenance plan itself demonstrates that the emission emissions of NO X and VOC in the Greater Chicago area will remain at or below the attainment year (2008) levels through 2025, thus demonstrating non-interference with other pollutants, in particular fine pollutants, that are formed through reactions and processes involving NO X and/or VOC. In addition, contingency measures, if subsequently activated, can be selected to ensure non-interference through lowered emission levels.

The commenter does not provide any information in the comment to indicate that approval of this redesignation would have any impact on the area's ability to comply with any of the referenced NAAQS. In fact, the ozone maintenance plan provided with the State's redesignation request demonstrates a decline in VOC and NO X emissions over the timeframe of the 10-plus year maintenance period. This reflects the fact that the redesignation does not relax any existing emission control rules or emission limits, nor will the redesignation alter the status quo air quality. The commenter has not explained why the redesignation might interfere with attainment of any standard or with satisfaction of any other CAA requirement, and EPA finds no basis under section 110(l) for EPA to disapprove the SIP revision (ozone maintenance plan and emissions inventories) at issue or to disapprove the requested ozone redesignation.

Comment 6: The commenter asserts that EPA cannot approve Illinois' 2002 emissions inventory as meeting the emission inventory requirement of section 182(a)(1) of the CAA for a number of reasons. In particular, the commenter believes that Illinois' mobile source emission inventories, based on the use of EPA's MOVES model, does not account for the increase VOC and NO X emissions that would result from the use of up to 15 percent ethanol content in gasoline recently approved by the EPA. The commenter argues that many car and light-duty truck emission control systems are not designed to control vehicle emissions with blends of 15 percent ethanol (Ethanol 15 or E15). The commenter believes that EPA has not accounted for the extra VOC and NO X emissions that would result from the use of E15.

Response 6: First, it is noted that this comment was directed at EPA's proposed approval of Illinois' 2002 base period emissions. The commenter's concern is not relevant to approval of the 2002 base year emission inventories because the EPA-approved use of E15 fuels was not in place during 2002. The use of E15 fuels was approved by EPA well after 2002. Therefore, the mobile source emissions for 2002 could not have reflected the future use of E15 fuels.

With regard to the use of E15 fuels in later years, it is noted that, in 2010 and 2011, EPA granted partial waivers for the use of E15 fuels in Model Year (MY) 2001 and newer light-duty motor vehicles (75 FR 68094, November 4, 2010 and 76 FR 4662, January 26, 2011). As discussed in the waiver decisions, there may be some small emission impacts for the use of E15. E15 is expected to cause a small immediate emissions increase in NO X emissions. However, due to its lower volatility than the E10 fuels currently in use, its use is also expected to result in lower evaporative emissions. Other possible emissions impacts may be from the misfueling of E15 in vehicles or engines for which its use is not approved, i.e., MY 2000 and older motor vehicles, heavy-duty engines and vehicles, motorcycles and all non-road engines, vehicles, and equipment. EPA has promulgated a separate rule dealing specifically with the mitigation of misfueling to reduce potential emissions impacts from misfueling (76 FR 44406, July 25, 2011).

EPA's partial waiver for E15 is based on extensive studies done by the Department of Energy, as well as EPA's engineering assessment, to determine the effects on exhaust and evaporative emissions for the vehicle fleet prior to and after the partial waiver. The criteria for granting the waiver was not that there are no emission impacts for E15, but rather that vehicles operating on E15 would not be expected to violate their emission standards in-use.

The E15 partial waivers do not require that E15 be made or sold, and it is unclear if and to what extent E15 may even be used in Illinois. Even if E15 is introduced into commerce in Illinois, considering the likely small and offsetting direction of the emission impacts, the limited set of motor vehicles approved for its use, and the measures required to mitigate misfueling, EPA believes that any potential emission impacts of E15 will be less than the margin of safety by which Illinois shows maintenance of the 1997 ozone standard.

Comment 7: The commenter argues that EPA has not accounted for the effects of changes in weather in its analysis of Illinois' ozone redesignation request. The commenter asserts that EPA should have adjusted monitored ozone levels to account for the varying impacts of meteorology. The commenter contends that EPA cannot approve Illinois' ozone resignation request without a weather adjusted analysis. In addition, the commenter believes that EPA has erred in not considering the impacts that climate change will have on ozone formation during the maintenance period.

Response 7: A determination that an area has attained the 1997 8-hour ozone standard is based on an objective review of the air quality data for a specified period. There are no provisions in the CAA for considering the impacts of changing meteorology and adjusting monitored ozone concentrations to reflect a standardized set of meteorological data or some historical range of meteorological data. Therefore, we disagree with the commenter's argument that EPA should have adjusted ozone levels to assess the impacts of meteorology during the attainment period versus meteorology more reflective of historical high ozone periods. In addition, it should be noted that the very nature of the three-year averaging of ozone concentrations used to assess compliance with the 1997 8-hour ozone standard is used, in part, to negate the impacts of year-to-year variations in meteorology on ozone formation.

By the same reasoning, we also disagree with the commenter that EPA must, in the context of a redesignation rulemaking, consider the impact of climate change on future ozone formation. While EPA agrees that climate change is a serious environmental issue, at this time EPA does not believe that an area-specific climate change analysis must occur in the context of rulemaking on a redesignation request and maintenance plan. Even if EPA chose to make such an assessment, it is virtually impossible, especially given the relatively limited spatial and temporal focus of a redesignation request and related maintenance plan, to project or predict the local meteorological changes that might result from climate change. Current modeling uncertainties result in conflicting projections of the spatial patterns of future changes in meteorological variables and the specific regional distributions of future ozone changes across the United States. Modeling guidance is not yet available for the type of area-specific analysis of effects or climate change on ozone concentrations required for SIP planning. EPA, therefore, believes it is premature to require a precise mathematical accounting in the SIP process for the effect of higher ambient temperatures due to climate change on ozone concentrations. EPA is ready to reevaluate this position when the state of science and confidence in projection improve. Given the above, at this time, EPA is not in a position to forecast the impact climate change may have on future ozone considerations with the specificity needed for evaluating a state's ozone maintenance demonstration. See EPA's similar reasoning in its approval of Kentucky's section 110(a)(1) maintenance for Huntington-Ashland, Kentucky, 76 FR 21853 (April 14, 2011). Finally, EPA notes that the Greater Chicago area has continued to attain the 1997 8-hour ozone standard since the 2006-2008 monitoring period, and that its attainment of the standard has withstood the challenges of meteorological variability for many years longer than required. Elsewhere in this notice, EPA has addressed extensively its reasoning for concluding, as required for redesignation, that attainment is due to permanent and enforceable emissions reductions, rather than to unduly favorable meteorology.

We conclude that none of the comments discussed above provides a basis for precluding EPA from finalizing the actions we proposed on February 9, 2012.

After reviewing Illinois' ozone redesignation request, EPA has determined that it meets the redesignation criteria set forth in section 107(d)(3)(E) f the CAA. Therefore, EPA is approving the redesignation of the Illinois portion of the Greater Chicago area to attainment of the 1997 8-hour ozone NAAQS. EPA is also approving Illinois' ozone maintenance plan for the Illinois portion of the Greater Chicago area as a revision of the Illinois SIP based on Illinois' demonstration that the plan meets the requirements of section 175A of the CAA. EPA is approving the 2002 VOC and NO X emission inventories for the Illinois portion of the Greater Chicago area as meeting the requirements of section 182(a)(1) of the CAA. Finally, EPA is also approving and finding adequate Illinois' 2008 and 2025 VOC and NO X MVEBs for the Illinois portion of the Greater Chicago area. For 2008, these MVEBs are 117.23 tons per ozone season weekday for VOC and 373.52 tons per ozone season weekday for NO X . For 2025, these MVEBs are 48.13 tons per ozone season weekday for VOC and 126.27 tons per ozone season weekday for NO X .

In accordance with 5 U.S.C. 553(d), EPA finds there is good cause for this action to become effective immediately upon publication. This is because a delayed effective date is unnecessary due to the nature of a redesignation to attainment, which relieves the area from certain CAA requirements that would otherwise apply to it. The immediate effective date for this action is authorized under both 5 U.S.C. 553(d)(1), which provides that rulemaking activities may become effective less than 30 days after publication if the rule “grants or recognizes an exemption or relieves a restriction,” and section 553(d)(3), which allows an effective date less than 30 days after publication “as otherwise provided by the agency for good cause found and published with the rule.” The purpose of the 30-day waiting period prescribed in section 553(d) is to give affected parties a reasonable time to adjust their behavior and prepare before the final rule takes effect. Today's rule, however, does not create any new regulatory requirements such that affected parties would need time to prepare before the rule takes effect. Rather, today's rule relieves the State of planning requirements for this 8-hour ozone nonattainment area. For these reasons, EPA finds good cause under 5 U.S.C. 553(d)(3) for this action to become effective on the date of publication of this action.

Under the CAA, redesignation of an area to attainment and the accompanying approval of a maintenance plan under section 107(d)(3)(E) are actions that affect the status of a geographical area and do not impose any additional regulatory requirements on sources beyond those imposed by State law. A redesignation to attainment does not in and of itself create any new requirements, but rather results in the applicability of requirements contained in the CAA for areas that have been redesignated to attainment. Moreover, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA 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, these actions do not impose additional requirements beyond those imposed by State law and the CAA. For that reason, these actions:

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

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

• Are 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. );

• Do 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);

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

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

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

• Are 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,

• Do 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 October 12, 2012. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR parts 52 and 81 are amended as follows:

Worldwide Web (WWW) . In addition to being available in Docket ID No. EPA-HQ-OAR-2011-0028, following the Administrator's signature, an electronic copy of this final rule will be available through the WWW on the EPA's Greenhouse Gas Reporting Program Web site at http://www.epa.gov/climatechange/emissions/ghgrulemaking.html .

What is the effective date? The final rule is effective on September 12, 2012, except for the amendments to Tables A-6 and A-7 of 40 CFR part 98 subpart A and the amendments to 40 CFR part 98 subpart I (section 98.94(a)(2)(iii), (a)(3)(iii), and (a)(4)(iii)), which are effective on August 13, 2012. Section 553(d) of the Administrative Procedure Act (APA), 5 U.S.C. chapter 5, generally provides that rules may not take effect earlier than 30 days after they are published in the Federal Register . EPA is issuing this final rule under section 307(d)(1) of the Clean Air Act, which states: “The provisions of section 553 through 557 of Title 5 shall not, except as expressly provided in this section, apply to actions to which this subsection applies.” Thus, section 553(d) of the APA does not apply to this rule. EPA is nevertheless acting consistently with the purposes underlying APA section 553(d) in making the amendments to subparts A and I effective on August 13, 2012. The amendments to subpart A defer the reporting deadline for several inputs to emission equations and the amendments to subpart I remove the requirement for some facilities to recalculate and report data under that subpart. An effective date less than 30 days after the date of publication in such circumstances is consistent with the purposes of APA section 553(d), which provides an exception for any action that grants or recognizes an exemption or relieves a restriction.

Judicial Review. Under section 307(b)(1) of the CAA, judicial review of this final rule is available only by filing a petition for review in the U.S. Court of Appeals for the District of Columbia Circuit (the Court) by October 12, 2012. Under CAA section 307(d)(7)(B), only an objection to this final rule that was raised with reasonable specificity during the period for public comment can be raised during judicial review. Section 307(d)(7)(B) of the CAA also provides a mechanism for the EPA to convene a proceeding for reconsideration, “[i]f the person raising an objection can demonstrate to EPA that it was impracticable to raise such objection within [the period for public comment] or if the grounds for such objection arose after the period for public comment (but within the time specified for judicial review) and if such objection is of central relevance to the outcome of the rule.” Any person seeking to make such a demonstration to us should submit a Petition for Reconsideration to the Office of the Administrator, Environmental Protection Agency, Room 3000, Ariel Rios Building, 1200 Pennsylvania Ave., NW., Washington, DC 20460, with a copy to the person listed in the preceding FOR FURTHER INFORMATION CONTACT section, and the Associate General Counsel for the Air and Radiation Law Office, Office of General Counsel (Mail Code 2344A), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20004. Note, under CAA section 307(b)(2), the requirements established by this final rule may not be challenged separately in any civil or criminal proceedings brought by the EPA to enforce these requirements.

Acronyms and Abbreviations. The following acronyms and abbreviations are used in this document.

Organization of This Document. The following outline is provided to aid in locating information in this preamble.

The first purpose of this action is to finalize confidentiality determinations for the data elements (except those in the “Inputs to Emission Equations” data category and certain additional subpart I data elements) in seven subparts of 40 CFR part 98 of the Mandatory Greenhouse Gases Reporting Rule (hereafter referred to as “Part 98”):

The second purpose of this action is to finalize confidentiality determinations for new data elements (that are not inputs to emission equations) added to subparts II and TT in the Technical Corrections final rule  1 after the EPA issued final confidentiality determinations for non-inputs to equations data elements in these two subparts. 2

The third purpose of this action is to finalize amendments to subpart A of Part 98 to defer until 2013 or 2015 the reporting deadline for inputs to emission equations data elements recently added by the Technical Corrections final rule. These data elements are in subparts W, FF, and TT.

The fourth purpose of this action is to finalize amendments to subpart I regarding the calculation and reporting of emissions from facilities that use best available monitoring methods (BAMM). These amendments remove the obligation to recalculate and resubmit emission estimates for the period during which the facility used best available monitoring methods.

As noted above, we are making final confidentiality determinations for the data elements reported under the finalized subparts of Part 98 identified in Table 1 of this preamble. We are not making final confidentiality determinations for data elements in this action not identified in Table 1. We are also finalizing amendments to Tables A-6 and A-7 of subpart A for the subparts shown in Table 1 of this preamble.

This document adopted on August 3, 2012 and released on August 6, 2012 by the Managing Director in DA 12-1263 revised 47 CFR 0.408 in its entirety.

1. Section 3507(a)(3) of the Paperwork Reduction Act of 1995, 44 U.S.C. 3507(a)(3), requires agencies to display a current control number assigned by the Director, Office of Management and Budget (“OMB”) for each agency information collection requirement.

2. Section 0.408 of the Commission's rules displays the OMB control numbers assigned to the Commission's public information collection requirements that have been reviewed and approved by OMB.

3. Authority for this action is contained in Section 4(i) of the Communications Act of 1934 (47 U.S.C. 154(i)), as amended, and section 0.231(b) of the Commission's Rules. Since this amendment is a matter of agency organization procedure or practice, the notice and comment and effective date provisions of the Administrative Procedure Act do not apply. See 5 U.S.C. 553(b)(A)(d). For this reason, this rulemaking is not subject to the Congressional Review Act and will not be reported to Congress and the Government Accountability Office. See 5 U.S.C. 801.

4. Accordingly, it is ordered, that section 0.408 of the rules is revised as set forth in the revised text effective on August 13, 2012.

5. Persons having questions on this matter should contact Judith B. Herman at (202) 418-0214 or email to Judith-B.Herman@fcc.gov.

Accordingly, 47 CFR part 0 is amended as follows:

This is a summary of the Commission's Report and Order, ET Docket Nos. 11-90, 10-28, FCC 11-171, adopted July 3, 2012 and released July 5, 2012. The full text of this document is available for inspection and copying during normal business hours in the FCC Reference Center (Room CY-A257), 445 12th Street SW., Washington, DC 20554. The complete text of this document also may be purchased from the Commission's copy contractor, Best Copy and Printing, Inc., 445 12th Street SW., Room, CY-B402, Washington, DC 20554. The full text may also be downloaded at: www.fcc.gov . People with Disabilities: To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an email to fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).

1. In the Report and Order (Order), the Commission modified §§ 15.35 and 15.253 of the rules to enable enhanced vehicular radar technologies in the 76- 77 GHz band for improved collision avoidance and driver safety and to allow fixed radar applications at airport locations to improve safety for airport personnel and equipment. With respect to § 15.253, the Commission eliminated the requirement that vehicular radars decrease power when the vehicles on which the radar is mounted is not in motion. In addition, the Commission also modified § 15.253 to specify a new emission limit for 76-77 GHz vehicular radars that will apply to front, side, and rear illuminating vehicular radars. The Commission takes this action in response to petitions for rulemaking filed by Toyota Motor Corporation (TMC) and Era Systems Corporation (Era).

2. The Commission also modified § 15.253 to allow fixed radar applications in the 76-77 GHz band at airport locations. These fixed radars can detect foreign object debris (FOD) on runways and monitor aircraft traffic as well as service vehicles on taxiways and other airport vehicle service areas that have no public access. The modifications to the rules that the Commission adopted will provide more efficient use of the spectrum, and enable the automotive and aviation industries to develop enhanced safety measures for drivers and the general public.

3. The 76-77 GHz band, which is allocated to the Radio Astronomy service (RAS) and the Radiolocation service on a primary basis and to the Amateur and Space research (space-to-Earth) services on a secondary basis, is in the region of the radiofrequency spectrum known as “millimeter wave” spectrum. The frequencies above 30 GHz are commonly called millimeter wave frequencies because of their wavelength. At these frequencies, radio propagation decreases more rapidly with distance than at other frequencies and antennas that can narrowly focus transmitted energy are practical and of modest size. While the limited range of such transmissions might appear to be a major disadvantage for many applications, it does allow the reuse of frequencies within very short distances and, thereby enables a higher concentration of transmitters to be located in a geographical area than is possible at lower frequencies.

4. On July 21, 2009, the Toyota Motor Corporation (TMC) filed a petition for rulemaking requesting that the Commission modify the emission limits for vehicular radar systems operating within the 76-77 GHz band. Specifically, TMC requested that the Commission eliminate the in-motion and not-in-motion distinctions in the emission limits for vehicular radar systems and establish a single emission limit that applies in all directions from a vehicle. On September 8, 2009, Era filed comments in CB Docket No. 09-102 requesting that the Commission amend § 15.253 to permit fixed use of 76-77 GHz radars at airports for monitoring air traffic and airport service vehicles only. Emissions from these fixed radars would not illuminate any public access roads.

5. On May 24, 2011, the Commission issued a Notice of Proposed Rule Making (NPRM), 77 FR 35176, June 16, 2011, in which it sought public comment on proposed amendments to §§ 15.35 and 15.253 of the rules regarding operation within the 76.0-77.0 GHz band. Specifically, the NPRM proposed modifications to § 15.253 to increase the average power density limit to 88 µW/cm 2 at 3 m (average EIRP of 50 dBm) and to decrease the peak power density limit to 279 µW/cm 2 at 3 m (peak EIRP of 55 dBm) regardless of the illumination direction of the vehicular radar, and to eliminate the in-motion and not-in-motion distinction for vehicles equipped with such radars. In the NPRM, the Commission also proposed to allow fixed radars to operate in the 76-77 GHz band in addition to vehicular radar systems, and to require that such fixed radar systems meet the proposed limits for vehicular radar systems.

6. The Commission finds that the 76-77 GHz band is well suited for unlicensed use by vehicular radar technologies and by fixed radar systems limited to airport locations, and are adopting the proposed modifications to §§ 15.35 and 15.253 accordingly. The modifications to the rules that the Commission adopted are intended to foster the development of improved radar systems that will offer significant safety benefits to the public. Studies show that use of collision avoidance technology can prevent or lessen the severity of a significant number of traffic accidents. By modifying our rules for 76-77 GHz radars to align generally with international automotive industry standards, the Commission expects these life-saving devices to be placed on more passenger vehicles by enabling economies of scale. Furthermore, it believes that the changes in power levels and use as discussed will not result in a significant increase in the potential of interference to other users of the 76-77 GHz band. The Commission notes that these rule changes facilitate expanded use of existing technologies and do not appear to impose any new costs. While no party has provided any specific data, these technologies have the potential to help avoid accidents thereby save lives and damage to property.

7. The Commission also finds that the use of 76-77 GHz fixed radars at airports for detecting foreign objects on runways, as well as for monitoring aircraft and service vehicles on taxiways and other airport vehicle service areas that have no public access ( e.g., gate areas) to be in the public interest and compatible with vehicular radar use. The Commission finds that the benefits of allowing fixed radar systems at airports for these applications will improve the safety of the general public and airport personnel without increasing the potential for inference to licensed users. The Commission notes that these rule changes enable expanded use of existing technologies and do not appear to impose any new costs. Recent studies estimate the annual direct and indirect cost to U.S. aviation industry caused by the FOD damage to be approximately $1 billion and $4 billion, respectively. Enhanced technologies for FOD detection and for other airport monitoring services will help prevent accidents and substantially mitigate damage attributable to FOD.

8. Proposal. In the NPRM, the Commission proposed to modify § 15.253 to eliminate the in-motion and not-in-motion distinction for vehicular radars and to adopt uniform emission limits for forward, side, and rear-looking radars. In lieu of separate emission limits for in-motion and not-in-motion, the Commission proposed to increase the average power density limit to 88 µW/cm 2 at 3 meters (average EIRP of 50 dBm) and to decrease the peak power density limit to 279 µW/cm 2 at 3 meters (peak EIRP of 55 dBm) for vehicular radar systems regardless of the direction of illumination. The Commission also sought comment on TMC's request to modify § 15.253 to specify a limit on peak EIRP instead of average power density in addition to, or as an alternative to, the limits currently specified in the rules. Furthermore, because the Commission proposed to modify § 15.253(b) to specify a peak emission limit that is less than 20 dB above the average limit, it also proposed to modify § 15.35(b) to specify that the 20 dB peak to average limit does not apply to vehicular radars authorized under § 15.253(b).

9. Decision. The Commission modified § 15.253 to (1) Eliminate the in-motion and not-in-motion distinction for vehicular radars, (2) adopt a single set of emission limits for forward, side, and rear-looking radars, and (3) amend the emission limits for vehicular radars to specify the average and peak radiated emission limits as both EIRP and a power density limit of 88 μW/cm  2 at 3 m (average EIRP of 50 dBm) and 279 μW/cm  2 at 3m (peak EIRP of 55 dBm), respectively. In light of this, the Commission modified § 15.35(b) to specify that the 20 dB peak limit provision will no longer apply to vehicular radars in the 76-77 GHz band. Devices operating under the provisions of these rules continue to be subject to the radiofrequency radiation exposure requirements specified in §§ 1.1307(b), 2.1091 and 2.1093 of the FCC rules, as appropriate.

10. The Commission finds that the new set of emission limits will not measurably increase potential for interference from vehicular radar systems to RAS operations in the 76-77 GHz band. First, the reduced peak limit adopt for vehicular radars will increase the level of interference protection afforded to RAS system because it is lower than the current peak limit. Second, the average power limit is being increased by only 1.7 dB from the current maximum for vehicular radars in the 76-77 GHz band, i.e., from 48.3 dBm to 50 dBm. Under worst-case free space conditions a 1.7 dB increase is only a 1.2-fold increase in signal range. The very short distances that these radars operate under, plus the propagation characteristics of the band, translate in practice to a minimal increase in interference potential that the Commission does not believe will yield any increase in actual interference to RAS operations. Because the radio astronomy observatories typically have control over access to a distance of one kilometer from the telescopes to provide protection from interference caused by automobile spark plugs and other uncontrolled RFI sources, the potential for interference caused by the incremental increase in average power limits at that distance (one kilometer) would be negligible. Furthermore, the effect of an increase in average power level of 1.7 dB is negligible when also taking into account the variability in propagation characteristics due to terrain, weather and other propagation factors.

11. The Commission agrees with the automotive industry that given the horizontal direction of vehicular radar beams, the propagation characteristics of terrain and the geographical location of the RAS equipment, the modified emission limits pose no additional risk of interference or damage to the RAS equipment compared to the current rules. Accordingly, it believes that there is no need to restrict vehicular radar systems based on coordination zones or to impose requirements for a GPS-aware automatic or a user operated cut-off switch.

12. The National Telecommunications and Information Administration (NTIA) noted that the National Science Foundation (NSF)-sponsored a study documenting measurements performed jointly by representatives from the radio astronomy community and several vehicular radar manufacturers. The measurements performed using the University of Arizona's 12 Meter Telescope located at Kitt's Peak examined the impact that vehicular radar emissions would have on radio astronomy installations. Emissions of two different vehicular radars manufactured by Robert Bosch GmbH and Continental Corporation were measured in the adjacent 77-80 GHz band. The measurements of the emissions from a single vehicular radar system at two distances (1.7 km and 26.9 km from the radio astronomy installation) indicated that the received signal level at the radio astronomy installation exceeded the protection criteria specified in Recommendation International Telecommunication Union Radiocommunications Sector (ITU-R) RA.769-2. The study acknowledges that mitigation factors such as terrain shielding, orientation of the vehicular radar transmitter antenna with respect to the observatory, or attenuation of the vehicular radar transmitter if mounted behind the vehicle bumper were not taken into account and would tend to reduce the distance at which interference occurred. NTIA requested that this study be included as part of the public record for this proceeding, and asked that the Commission encourage the radio astronomy community and the vehicular radar manufacturers to continue this cooperative effort to examine and implement mitigation techniques that can be employed to address the potential interference concerns. The Commission recognizes the concerns of the radio astronomy community in both the 76-77 GHz band at issue in this proceeding and in the 77-80 GHz band examined in the study. As discussed, the Commission's rules have permitted vehicular radars to operate in the 76-77 GHz band since 1995. Further, it expects any increase in potential interference in the 76-77 GHz band as a result of the technical rules changes the Commission makes here to be negligible when compared to the overall effect caused by the variability in propagation characteristics due to terrain, weather and other propagation factors. The Commission has not found anything in the NSF study that suggests that the increase in the potential for harmful interference resulting from these rule revisions will not be negligible. Further, it always encourage cooperation between parties with respect to compatibility of systems that use the radio spectrum, thus we specifically encourage continued cooperation between the radio astronomy community and the vehicular radar industry.

13. Finally, the Commission agrees with the commenters that there has been significant growth in the use of automobile radar systems, and it anticipates that these systems will become relatively commonplace within a few years because of consumer demand for increased vehicle safety. The Commission believes that these developments will make automotive safety and convenience more affordable and readily available to the public, as the automotive industry will be able to develop new and improved vehicular radars with no measurable increase in potential interference to licensed services.

14. Proposal. The Commission proposed to allow the use of fixed radar systems at any location rather than restrict their use to only airport locations, as requested by Era in its petition for rulemaking. It stated that Era's proposal to limit fixed radar operations to specific locations such as airports or other places where fixed radars would not illuminate public roads may be overly restrictive and could cause unnecessary burdens to the public if implemented. The Commission stated that fixed radars operating at the same maximum power levels as vehicular-mounted radars would be even less likely to interfere with the RAS and Radiolocation services than vehicle-mounted radars because the locations where they are used would not change. It stated that fixed radars should be able to co-exist with vehicular radars because they both would operate with the same power level and use antennas with narrow beamwidths, thus reducing the chances that the signal from one radar would be within the main lobe of the receive antenna of the other. In a worst-case scenario, where two radars are aiming directly at each other, fixed radar should have no more impact on a vehicular radar system than another vehicular system would.

15. The Commission sought comment on whether it should allow unlicensed fixed radar applications to operate within the 76-77 GHz band at the same power levels as those proposed for vehicular radars. The Commission also sought comment on whether there is a need to limit fixed radar applications to specific locations such as airports and/or locations where they are not aimed at publicly accessible roads, or if some alternative criteria would be more appropriate.

16. Comments. The commenters overwhelmingly opposed the use of fixed radar applications in the 76-77 GHz band without regard to location as proposed by the Commission, although some argued that fixed radars could be permitted for airport use only. The opponents cited increased interference potential to vehicular radars and a lack of technical analysis and study for fixed radar in the 76-77 GHz band.

17. Decision. The Commission modified § 15.253 of its rules to allow the operation of fixed radars at airport locations with the same emission limits as those for vehicular radars in the 76-77 GHz band for purposes of detecting foreign object debris on runways and monitoring aircraft and service vehicles on taxiways and other airport vehicle service areas that have no public vehicle access ( e.g., gate areas). Limiting the location of fixed radars in this way should prevent them from illuminating public roads, and thus reduce the likelihood of interference to vehicular radars while enabling airports to better monitor airport service vehicles and taxiways and to improve debris detection on the runways.

18. Moreover, airports are challenged with managing increasing congestion on the ground. This rule modification will add to the tools that enhance an airport's ability to determine the location of airplanes and airport ground vehicles that are operating in taxiways and runways. The presence of FOD in an airport's air operations area (AOA) poses a significant threat to the safety of air travel. Foreign object debris on taxiways and runways has the potential to damage aircraft during the critical phases of takeoffs and landings, which can lead to catastrophic loss of life and at the very least increased maintenance and operating costs. This rule modification will help reduce FOD hazards through the implementation of a FOD management program and the effective use of FOD detection and removal equipment.

19. The Commission disagrees with the commenters who state that only vehicular radars should be allowed to operate under the part 15 rules. It concludes that both vehicular radars and fixed radars at airports, under the limited circumstances we are providing for here, will be able to operate successfully in the 76-77 GHz band. Airport runways, taxiways and other non-public areas at airports are generally not near public roadways, and fixed radars at airports should not illuminate public roadways in the vicinity. With respect to the use of fixed radars outside of airports, we continue to believe that vehicular radars should be able to share the band with fixed radars operating at the same levels and note that there are no conclusive test results indicating that there would be incompatibility issues between the two types of radars. The Commission recognizes, however, that no parties have come forward to support fixed radar applications beyond airport locations in this band. Therefore, in the absence of a clear demand, the Commission is not adopting provisions for unlicensed fixed radar operations outside of airport locations in the 76-77 GHz band at this time.

20. This document does not contain a proposed information collection(s) subject to the Paperwork Reduction Act of 1995 (PRA, Pub. L. 104-13). In addition, therefore, it does not contain any new or modified information collection burden for small business concerns with fewer than 25 employees, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).

21. As required by the Regulatory Flexibility Act (RFA), 1 an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the Notice of Proposed Rulemaking (NPRM) in this Docket 11-90. 2 The Commission sought written public comment on the proposals in the NPRM, including comment on the IRFA. As described more fully, the Commission finds that the rules it adopted in the Report and Order will not have a significant economic impact on a substantial number of small entities. 3 The Commission did not receive comments from The Organization for the Promotion and Advancement of Small Telecommunications Companies (OPASTCO). It has nonetheless provided this Final Regulatory Flexibility Analysis (FRFA) to provide a fuller record in this proceeding. This FRFA conforms to the RFA. 4

22. On May 24, 2011, the Commission released a NPRM seeking comments regarding petitions for rulemaking filed by Toyota Motor Corporation (TMC) and Era Systems Corporation (Era) requesting modifications to § 15.253 of the rules for vehicular radar systems operating in the 76-77 GHz band. Vehicular radars can determine the exact distance and relative speed of objects in front of, beside, or behind a car to improve the driver's ability to perceive objects under bad visibility conditions or objects that are in blind spots. Some examples of vehicular radar systems include collision warning and mitigation systems, blind spot detection systems, lane change assist and parking aid systems. The NPRM proposed to eliminate the requirement that vehicular radars decrease power when the vehicle on which the radar is mounted is stopped, or not in motion, and to expand the use of unlicensed 76-77 GHz band radars to fixed infrastructure systems. These modifications to the rules will provide more efficient use of spectrum, and enable the automotive radar application industries and fixed radar applications, operating at airports only, to develop enhanced safety measures for drivers and the general public. In addition, these modifications would make the rules governing the vehicle radars in United States more comparable to those outside the United States and benefit the automotive and aviation industries in terms of enabling new product development and cost reduction.

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

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

25. Our action may, over time, affect small entities that are not easily categorized at present. We therefore describe here, at the outset, three comprehensive, statutory small entity size standards. 5 First, nationwide, there are a total of approximately 27.5 million small businesses, according to the SBA. 6 In addition, a “small organization” is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.”  7 Nationwide, as of 2007, there were approximately 1.6 million small organizations. 8 Finally, the term “small governmental jurisdiction” is defined generally as “governments of cities, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.”  9 Census Bureau data for 2007 indicate that there were 89,476 local governmental jurisdictions in the United States. 10 We estimate that, of this total, as many as 88,506 entities may qualify as “small governmental jurisdictions.”  11

26. This Economic Census category “comprises establishments primarily engaged in broadcasting aural programs by radio to the public. Programming may originate in their own studio, from an affiliated network, or from external sources.”  12 The SBA has established a small business size standard for this category, which is: Such firms having $7 million or less in annual receipts. 13 According to Commission staff review of BIA Publications, Inc.'s Master Access Radio Analyzer Database on March 31, 2005, about 10,840 (95%) of 11,410 commercial radio stations had revenues of $6 million or less. Therefore, the majority of such entities are small entities.

27. We note, however, that in assessing whether a business concern qualifies as small under the above size standard, business affiliations must be included. 14 In addition, to be determined to be a “small business,” the entity may not be dominant in its field of operation. 15 We note that it is difficult at times to assess these criteria in the context of media entities, and our estimate of small businesses may therefore be over-inclusive.

28. Radars operating in the 76-77 GHz band are required to be authorized under the Commission's certification procedure as a prerequisite to marketing and importation, and the Report and Order proposes no change to that requirement. See 47 CFR 15.101, 15.201, 15.305, and 15.405. The changes adopted in this proceeding would not change any of the current reporting or recordkeeping requirements. However, it will eliminate the requirement that a radar must reduce power when a vehicle is not in motion and to establish a single emission limit that applies in all directions from a vehicle. It also expands the use of unlicensed 76-77 GHz band radars to fixed infrastructure systems at airport locations only.

29. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities. 16

30. At this time the Commission believes that the new rules adopted in this Report and Order are deregulatory in nature, which we expect will simplify compliance requirements for all parties, particularly small entities, and permit the development of improved radar systems. Elimination of requirement for radars to reduce power when a vehicle is not in motion will simplify equipment design, and establishment of a single emission limit that applies in all directions from a vehicle would allow the development of omni-directional monitoring systems. The allowance of unlicensed fixed radar systems in the 76-77 GHz band at airport locations only along with the unlicensed vehicular radars will improve spectrum efficiency and promote collaboration for shared unlicensed spectrum. We believe that the adopted rules will apply equally to large and small entities. Therefore, there is no inequitable impact on small entities.

31. The Commission will send a copy of the Report and Order, including this FRFA, in a report to Congress pursuant to the Congressional Review Act. 17 In addition, the Commission will send a copy of the Report and Order, including this FRFA, to the Chief, Counsel for Advocacy of the SBA.

32. Pursuant to sections 1, 2, 4(i), 301, 302, and 303(f) of the Communications Act of 1934, 47 U.S.C. 151, 152, 154(i), 301, 302a, and 303(f), that this Report and Order is hereby adopted.

33. The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Report and Order, including the Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

34. It is further ordered that these proceedings, ET Docket No. 11-90 and ET Docket No. 10-28, are hereby terminated.

For the reasons set forth in the preamble, the Federal Communications Commission amends part 15 of Title 47 of the Code of Federal Regulations to read as follows:

This is a summary of the Commission's Report and Order, document FCC 12-83, adopted on July 19, 2012, and released on July 20, 2012. The full text of document FCC 12-83 is available for inspection and copying during normal business hours in the FCC Reference Information Center, Room CY-A257, 445 12th Street SW., Washington, DC 20554. The complete text may be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc. (BCPI), Portals II, 445 12th Street SW., Room CY-B402, Washington, DC 20554, (202) 488-5300, facsimile (202) 488-5563, or via email at fcc@bcpiweb.com. The complete text is also available on the Commission's Web site at http://transition.fcc.gov/Daily_Releases/Daily_Business/2012/db0720/FCC-12-83A1.doc. To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to fcc504@fcc.gov or call the Consumer and Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (TTY).

Document FCC 12-83 does not contain new or modified information collection(s) subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, therefore, it does not contain any new or modified information collection burden for small business concerns with fewer than 25 employees, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).

1. In 1996, Congress added section 713 to the Act (47 U.S.C. 613) establishing requirements for closed captioning on video programming to ensure access by persons with hearing disabilities to television programming and directing the Commission to prescribe rules to carry out this mandate. The Commission's closed captioning rules currently require video programming distributors to caption one-hundred percent of all new, non-exempt English and Spanish language programming.

2. Section 713 of the Act authorizes the Commission to grant individual exemptions from the closed captioning requirements. As originally enacted, section 713 of the Act authorized the Commission to grant individual closed captioning exemptions on a case-by-case basis upon a showing that the provision of closed captions would “result in an undue burden.” 47 U.S.C. 613(d)(3). Section 713(e) of the Act defined “undue burden” to mean “significant difficulty or expense,” and directed the Commission to consider four factors in making an undue burden determination. Those factors are: (1) The nature and cost of the closed captions for the programming; (2) the impact on the operation of the provider or program owner; (3) the financial resources of the provider or program owner; and (4) the type of operations of the provider or program owner.

3. In October 2010, Congress adopted the CVAA, in which it amended section 713(d)(3) of the Act by replacing the “undue burden” terminology with the term “economically burdensome.” Congress did not change the definition of “undue burden” contained in section 713(e) of the Act or the four factors to be considered in evaluating individual petitions. As a result, on October 20, 2011, the Commission adopted an Order, published at 76 FR 67376, November 1, 2011 and at 76 FR 67377, November 1, 2011, offering provisional guidance on how it would interpret this statutory change and a Notice of Proposed Rulemaking (the NPRM), published at 76 FR 67397, November 1, 2011, proposing to amend § 79.1 of its rules to replace the term “undue burden” with the term “economically burdensome.” In neither the Order nor the NPRM did the Commission make or propose to make any substantive change in the standard for evaluating individual exemption petitions or the factors it would consider when deciding these petitions.

4. In response to the NPRM, the Commission received a single comment filed jointly by Telecommunications for the Deaf and Hard of Hearing, Inc., the National Association of the Deaf, the Deaf and Hard of Hearing, the Consumer Advocacy Network, the Association of Late-Deafened Adults, the Hearing Loss Association of America, and the Cerebral Palsy and Deaf Organization (Consumer Groups). Consumer Groups agreed with the Commission's proposed interpretation of the economically burdensome standard and concluded that it was consistent with Congress's expressed and unambiguous intent.

5. In document FCC 12-83, the Commission concludes that, for purposes of evaluating individual exemptions under section 713(d)(3) of the Act, Congress intended the term “economically burdensome” to be synonymous with the term “undue burden” as defined by section 713(e) of the Act and as interpreted and applied in Commission rules and precedent. This conclusion is supported by the CVAA itself, which preserves, unchanged, the language in section 713(e) defining an “undue burden” and enumerating the factors to be considered in an “undue economic burden” analysis, and by the CVAA's legislative history, which encouraged the Commission in its determination of “economically burdensome” petitions to continue using these factors in assessing individual exemption requests.

6. Accordingly, document FCC 12-83 concludes that in changing the terminology from “undue burden” to “economically burdensome” in section 713(d)(3) of the Act, Congress did not intend any substantive change to the criteria that the Commission consistently has used for individual closed captioning petitions. It notes that this interpretation is consistent with the manner in which the Commission has interpreted the term “economically burdensome” in other recent Commission rules adopted pursuant to the CVAA governing the delivery of closed captioning on video programming delivered using Internet protocol and rules governing video description, and concludes that the Commission and CGB under delegated authority, will continue to evaluate individual exemption petitions filed under section 713(d)(3) of the Act using the four factors set forth in section 713(e) of the Act.

7. The Regulatory Flexibility Act of 1980, as amended (RFA), (5 U.S.C. 601-612, as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, Public Law 104-121, Title II, 110 Stat. 857 (1996)), requires that a regulatory flexibility analysis be prepared for notice-and-comment rule making proceedings, unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities” (5 U.S.C. 605(b)). The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction” (5 U.S.C. 601(6)). In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act (5 U.S.C. 601(3)). A “small business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA) (15 U.S.C. 632).

8. In document FCC 12-83, the Commission conforms the terminology used in § 79.1(f) of the Commission's rules to the requirements of section 202 of the CVAA. Under the rule amendments adopted herein, a petitioner seeking an exemption from the closed captioning requirements will have to demonstrate that compliance with such captioning requirements would be “economically burdensome” as mandated by the CVAA. Prior to this amendment, the Act and our rules required a petitioner to show that complying with the captioning requirements would constitute an “undue burden.” In mandating this change in terminology, the Commission concludes that Congress intended no substantive change to the factors used to evaluate individual petitions for closed captioning exemptions. Because no substantive changes to the Commission's rules or procedures were contemplated by the NPRM, the Commission concluded in the NPRM that the proposed change in our rules to reflect the terminology adopted by Congress in section 202 of the CVAA would have no economic impact on small business entities or consumers and included in the NPRM an Initial Regulatory Flexibility Certification.

9. No comments were received concerning the Certification, and the Report and Order finds no reason to change the Commission's conclusions as contained in that Certification. Therefore, the Commission certifies that the rule amendments adopted in document FCC 12-83 will not have a significant economic impact on a substantial number of small entities. The amendments contain no new obligations or prohibitions. Nor do they remove any requirements or have substantive implications of any sort. They simply change the nomenclature utilized by the Commission's rules to describe the showing that must be made by petitioners to warrant exemptions from the closed captioning requirements, as mandated by Congress in section 202 of the CVAA. In addition, document FCC 12-83, including a final certification, will be sent to the Chief Counsel for Advocacy of the SBA.

10. The Commission will send a copy of document FCC 12-83, including a copy of this Final Regulatory Flexibility Certification, in a report to Congress pursuant to the Congressional Review Act (5 U.S.C. 801(a)(1)(A)).

11. Pursuant to sections 4(i), 303(r) and 713 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 303(r) and 613, document FCC 12-83 is adopted and the Commission's rules are hereby amended.

12. The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of document FCC 12-83, including the Final Regulatory Flexibility Certification, to the Chief Counsel for Advocacy of the Small Business Administration.

13. The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of document FCC 12-83, in a report to Congress and the Government Accountability Office pursuant to the Congressional Review Act.

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 part 79 as follows:

On May 13, 2011, NHTSA published a final rule amending the helmet labeling requirements and compliance test procedures of FMVSS No. 218, Motorcycle helmets, in order to make it more difficult to misleadingly label novelty helmets and to aid the agency in enforcing the standard. 1 Specifically, the final rule required a single, enhanced certification label that the agency believes will discourage the production, sale, and attachment of labels that misleadingly resemble legitimate certification labels. The final rule further required that the size label state the helmet size in discrete, numerical terms in order to facilitate compliance testing. Additionally, the final rule amended the retention and impact attenuation test procedures and adopted helmet conditioning tolerances.

Two petitions for reconsideration, each dated June 23, 2011, were received from the Motorcycle Industry Council (MIC), a not-for-profit national trade association representing manufacturers and distributors of motorcycles and motorcycle parts and accessories, as well as members of allied trades. The first petition requested that the agency include in the preamble a statement permitting voluntary early compliance prior to the effective date of May 13, 2013. This document responds to that petition.

The second petition requested that the definition of “discrete size” in FMVSS No. 218 be amended by adding language requiring that this value reflect the actual size of the helmet. MIC also submitted a clarification of its second petition, which noted various issues regarding the measurement of “discrete size.” The agency will respond to this petition in a separate, forthcoming document.

MIC requested that the agency include in the preamble a statement permitting voluntary early compliance prior to the effective date of May 13, 2013, stating that such a provision is usually included in final rules with safety benefits. MIC asserted that allowing immediate voluntary compliance would serve to accelerate the goals of the rule and would provide needed flexibility to motorcycle helmet manufacturers seeking to introduce helmets complying with the amended requirements on a gradual basis, rather than having to stockpile inventory until the effective date.

Agency Response —NHTSA is granting MIC's petition and is including a provision in the DATES section of this document permitting voluntary early compliance with the amended requirements of 49 CFR 571.218 established by the May 13, 2011 final rule. We emphasize that a helmet manufactured to meet the amended requirements of FMVSS No. 218 before the effective date must meet all of the amended labeling and performance requirements.

On May 21, 2012 (77 FR 29905), we published a final rule revising the TED requirements to allow the use of new materials and to modify existing approved TED designs. The definition of a brace bar included as an allowable modification was wrong, however, and must be corrected. Specifically, the previous definition incorrectly required the brace bar to be permanently attached to the frame and rear face of each of the deflector bars within 4 inches (10.2 cm) of the midpoint of the TED frame. This requirement is explicit only for TEDs constructed of steel or aluminum flat bar less than 3/8 inch in thickness, as noted in § 223.207, paragraph (a)(1)(i)(D). For TEDs constructed of steel, fiberglass, or aluminum rod meeting the minimum specified dimensions; steel or aluminum tubing meeting the minimum specified dimensions; or steel or aluminum flat bar 3/8 inch (0.95 cm) or more in thickness, an optional brace bar need only be secured to the rear face of the TED frame. A brace bar on a TED frame constructed of the aforementioned materials may also be secured to the rear face of each of the deflector bars, with or without spacer bars, but this is not a requirement.

Accordingly, the final rule published on May 21, 2012 (77 FR 29905), is corrected and is effective upon publication. On page 29909, column 3, paragraph (d)(9) is corrected.

For the reasons set out in the preamble, 50 CFR part 223 is amended by making the following corrected amendment: