On March 27, 2006, ECF applied for a change to Type Certificate (TC) No. H4EU to install an optional SAR AFCS in the model EC225LP helicopter. The model EC225LP is a transport category helicopter certificated to Category A requirements when configured for more than nine passengers and Category A or B requirements when configured for nine or less passengers. This helicopter is also certificated for instrument flight under the requirements of Appendix B to 14 CFR part 29, Amendment 29-47.

The use of dedicated AFCS upper modes, in which a fully coupled autopilot provides operational SAR profiles, is needed for SAR operations conducted over water in offshore areas clear of obstructions. The SAR modes enable the helicopter pilot to fly fully coupled maneuvers, to include predefined search patterns during cruise flight, and to transition from cruise flight to a stabilized hover and departure (transition from hover to cruise flight). The SAR AFCS also includes an auxiliary crew control that allows another crewmember (such as a hoist operator) to have limited authority to control the helicopter's longitudinal and lateral position during hover operations.

Flight operations conducted over water at night may have an extremely limited visual horizon with little visual reference to the surface even when conducted under Visual Meteorological Conditions (VMC). Consequently, the certification requirements for SAR modes must meet Appendix B to 14 CFR part 29. While Appendix B to 14 CFR part 29 prescribes airworthiness criteria for instrument flight, it does not consider operations below instrument flight minimum speed (V MINI ), whereas the SAR modes allow for coupled operations at low speed, all-azimuth flight to zero airspeed (hover).

Since SAR operations have traditionally been a public use mission, the use of SAR modes in civil operations requires special airworthiness standards (special conditions) to ensure that a level of safety consistent with Category A and Instrument Flight Rule (IFR) certification is maintained. In this regard, 14 CFR part 29 lacks adequate airworthiness standards for AFCS SAR mode certification to include flight characteristics, performance, and installed equipment and systems.

Under 14 CFR 21.101, ECF must show the EC225LP, as changed, continues to meet the applicable provisions of the rules incorporated by reference in TC No. H4EU or the applicable regulations in effect on the date of application for the change. The regulations incorporated by reference in the TC are commonly referred to as the “original type certification basis.” The regulations incorporated by reference in H4EU are as follows:

a. 14 CFR 21.29.

b. 14 CFR part 29 Amendments 29-1 to 29-25; plus § 29.785 through Amendment 29-28; plus §§ 29.963, 29.967, 29.973, 29.975 through Amendment 29-34; plus §§ 29.25, 29.865 through Amendment 29-42; plus §§ 29.1, 29.2, 29.49, 29.51, 29.53, 29.55, 29.59, 29.60, 29.61, 29.62, 29.64, 29.65, 29.67, 29.73, 29.75, 29.77, 29.79, 29.81, 29.83, 29.85, 29.87, 29.307, 29.337, 29.351, 29.361, 29.391, 29.395, 29.397, 29.401, 29.403, 29.413, 29.427, 29.501, 29.519, 29.547, 29.549, 29.561(c), 29.561(d), 29.563, 29.602, 29.610, 29.613, 29.621, 29.625, 29.629, 29.631, 29.663, 29.674, 29.727, 29.755, 29.775, 29.783, 29.787, 29.803, 29.805, 29.807, 29.809, 29.811, 29.855, 29.861, 29.901, 29.903, 29.908, 29.917, 29.923, 29.927, 29.954, 29.961, 29.965, 29.969, 29.971, 29.991, 29.997, 29.999, 29.1001, 29.1011, 29.1019, 29.1027, 29.1041, 29.1043, 29.1045, 29.1047, 29.1093, 29.1125, 29.1141, 29.1143, 29.1163, 29.1181, 29.1189, 29.1193, 29.1305, 29.1309, 29.1323, 29.1329, 29.1337, 29.1351, 29.1359, 29.1415, 29.1521, 29.1549, 29.1557, 29.1587, A29, B29, C29, D29 through Amendment 29-47; plus 29.1317 through Amendment 29-49.

c. 14 CFR part 36 Amendment 21 (ICAO Annex 16, Volume 1, Chapter 8).

d. Equivalent Safety Findings:

(1) TC2899RD-R-F-01; § 29.1303(j), V ne aural warning.

(2) TC2899RD-R-F-02; § 29.1545(b)(4), Airspeed indicators markings.

(3) TC2899RD-R-F-03; § 29.1549(b), Powerplant instruments markings.

(4) TC2899RD-R-F-05; §§ 29.173, 29.175, Static Longitudinal Stability.

(5) TC2899RD-R-F-06; 14 CFR part 29, Appendix B, paragraph IV; IFR Static Longitudinal Stability—Airspeed stability.

(6) TC2899RD-R-A-01; § 29.807(d)(2), Ditching emergency exits for passengers.

(7) TC2899RD-R-P-01; § 29.923(a)(2), Rotor drive system and control mechanism tests.

In addition to the applicable airworthiness standards and special conditions, the ECF model EC225LP must comply with the noise certification requirements of 14 CFR part 36.

If the Administrator finds the applicable airworthiness standards (that is, 14 CFR part 29) do not contain adequate or appropriate safety standards for the ECF model EC225LP helicopter because of a novel or unusual design feature, special conditions are prescribed under § 21.16.

The FAA issues special conditions, as defined in § 11.19, under § 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 TC 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 TC be modified to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model.

The ECF model EC225LP helicopter will incorporate the following novel or unusual design features:

The SAR system is composed of a navigation computer with SAR modes, an AFCS that provides coupled SAR functions, hoist operator control, a hover speed reference system, and two radio altimeters. The AFCS coupled SAR functions include:

(a) Hover hold at selected height above the surface.

(b) Ground speed hold.

(c) Transition down and hover to a waypoint under guidance from the navigation computer.

(d) SAR pattern, transition down, and hover near a target over which the helicopter has flown.

(e) Transition up, climb, and capture a cruise height.

(f) Capture and track SAR search patterns generated by the navigation computer.

(g) Monitor the preselected hover height with automatic increase in collective if the aircraft height drops below the safe minimum height.

These SAR modes are intended to be used over large bodies of water in areas clear of obstructions. Further, use of the SAR modes that transition down from cruise to hover will include operation at airspeeds below V MINI .

The SAR system only entails navigation, flight control, and coupled AFCS operation of the helicopter. The system does not include the extra equipment that may be required for over water flight or external loads to meet other operational requirements.

In response to the final special conditions with request for comments, No. 29-022-SC, published in the Federal Register on November 6, 2008 (73 FR 65968), we received multiple comments from one commenter, AgustaWestland (AW). We responded to the comments and recommendations in the notice of proposed special conditions No. 29-022A-SC for the ECF model EC225LP helicopter installation of a SAR AFCS, published in the Federal Register on December 20, 2010 (75 FR 79312). Because we agreed with some of AW's comments, the notice proposed to revise the special conditions and clarify the intent of some of the requirements.

We gave the public the opportunity to comment on the amendments to the special conditions, but no additional comments were received in response to the notice of special conditions. Therefore, the amended special conditions are being adopted as proposed.

A summary of the amendments and clarification from the original special conditions published in No. 29-022-SC follows:

Referring to subparagraph (a)(3), which deals with a Go-Around mode, we disagree with AW's interpretation of the requirement, however we recognize the wording may be unclear. We made a change to subparagraph (a)(3) to reflect that the required Go-Around mode is pilot-selectable and the purpose is to interrupt any other coupled mode. We also clarified in subparagraph (a)(2) that this requirement pertains to normal SAR mode sequencing.

With respect to subparagraphs (b)(3) and (b)(4) of the SAR Mode System Architecture, we concurred with AW's recommendations, which is consistent with the requirement of subparagraph (b)(2). Therefore, subparagraphs (b)(3) and (b)(4) are revised to additionally require the actual groundspeed and actual heading to be displayed to the pilot.

In AW's reference to subparagraph (c)(3), we made non-substantive changes to improve the intent of the requirement.

Additional wording was added to subparagraph (f)(1)(i)(C) that provides linkage to the minimum use height (MUH) determination made in subparagraph (c)(3). This change was made for clarification purposes only and is not intended to increase or alleviate the current requirements. We have also defined MUH in subparagraph (c)(3). We do not intend for the SAR AFCS to decouple automatically if the helicopter descends below MUH.

We made some other minor changes to improve and clarify wording, with no substantive increase or decrease to the current requirements, as follows:

In subparagraph (a)(1) we added “(within the maximum demonstrated wind envelope)” to highlight that safe and controlled flight is required throughout the wind envelope. Adding this phrase does not change our intent of SAR envelope definition.

We added, “Pilot-commanded descent below the safe minimum height is acceptable provided the alerting requirements in (b)(7)(i) are sufficient to alert the pilot of this encroachment” to subparagraph (a)(4). This clarifies that the SAR AFCS is permitted to descend below the stored or pilot-selected safe minimum height only when commanded by the pilot, provided the alerting requirements are sufficient to alert the pilot of the descent.

We modified subparagraph (b)(6) to indicate that the AFCS system must monitor for all deviations and failures, not just those that create a hazard, which was our original intent. The alerting requirement does not change; a pilot alert is still required for all deviations and all failures that require pilot-corrective action.

Clarified subparagraph (b)(7) by adding subparagraph (iii) for normal transitions. This makes the requirement more specific.

We clarified in subparagraph (b)(8) that the hoist operator control has limited authority.

Subparagraph (b)(8)(iii) of the current special condition contains two requirements. We have separated them, so subparagraph (b)(8)(iii) only contains the hoist operator control noninterference requirement and subparagraph (b)(8)(iv) contains the pilot override criteria for the hoist control.

We modified subparagraph (d)(2) by deleting “danger of” from the first sentence. This change does not alter the intent of this requirement.

Subparagraph (d)(3)(iii)(B) was modified to incorporate more general terms to clarify the requirement.

We changed subparagraph (b)(10) to state a functional hazard assessment must address all failure conditions, not just those that represent catastrophic failure conditions. This change makes this SAR special condition requirement consistent with the requirements of § 29.1309.

We changed the second paragraph in subparagraph (e)(1)(ii) to a note. This “note” provides information only and is better characterized as a “note.” The original wording was always intended to stand as a note, but it was not previously marked as one.

We removed the parenthetical from subparagraph (g)(4) as it is not needed. The intent of this requirement has not changed.

Finally, we clarified subparagraphs (g)(4)(i) and (g)(4)(ii), by changing “transition,” “hover,” and “cruise” to “transition modes,” “hover modes,” and “cruise modes,” respectively. This general wording allows an applicant more flexibility in the use of SAR mode terminology.

These special conditions apply to the ECF model EC225LP helicopters. Should ECF apply at a later date for a change to the TC to include another model incorporating the same novel or unusual design feature, these special conditions would apply to that model as well under the provisions of § 21.101(d).

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

The authority citation for these special conditions is as follows:

Accordingly, pursuant to the authority delegated to me by the Administrator, the type certification basis for Eurocopter France model EC225LP helicopter, Type Certificate No. H4EU, is amended by removing Special Condition No. 29-022-SC from Docket No. SW022 (published in 73 FR 65968, November 6, 2088) and adding the following special conditions (No. 29-022A-SC) to the type certification basis when the optional Search and Rescue (SAR) Automatic Flight Control System (AFCS) is installed:

In addition to the part 29 certification requirements for Category A and helicopter instrument flight (Appendix B), the following additional requirements must be met for certification of the SAR AFCS:

(a) SAR Flight Modes. The coupled SAR flight modes must provide:

(1) Safe and controlled flight in three axes (lateral and longitudinal position/speed and height/vertical speed) at all airspeeds from instrument flight minimum speed (V MINI ) to a hover (within the maximum demonstrated wind envelope).

(2) Automatic transition to the helicopter instrument flight (Appendix B) envelope as part of the normal SAR mode sequencing.

(3) A pilot-selectable Go-Around mode that safely interrupts any other coupled mode and automatically transitions to the helicopter instrument flight (Appendix B) envelope.

(4) A means to prevent unintended flight below a safe minimum height. Pilot-commanded descent below the safe minimum height is acceptable provided the alerting requirements in (b)(7)(i) are sufficient to alert the pilot of this descent below safe minimum height.

(b) SAR Mode System Architecture. To support the integrity of the SAR modes, the following system architecture is required:

(1) A system for limiting the engine power demanded by the AFCS when any of the automatic piloting modes are engaged, so full authority digital engine control (FADEC) power limitations, such as torque and temperature, are not exceeded.

(2) A system providing the aircraft height above the surface and final pilot-selected height at a location on the instrument panel in a position acceptable to the FAA that will make it plainly visible to and usable by any pilot at their station.

(3) A system providing the aircraft heading and the pilot-selected heading at a location on the instrument panel in a position acceptable to the FAA that will make it plainly visible to and usable by any pilot at their station.

(4) A system providing the aircraft longitudinal and lateral ground speeds and the pilot-selected longitudinal and lateral ground speeds when used by the AFCS in the flight envelope where airspeed indications become unreliable. This information must be presented at a location on the instrument panel in a position acceptable to the FAA that is plainly visible to and usable by any pilot at their station.

(5) A system providing wind speed and wind direction when automatic piloting modes are engaged or transitioning from one mode to another.

(6) A system that monitors for flight guidance deviations and failures with an appropriate alerting function that enables the flight crew to take appropriate corrective action.

(7) An alerting system must provide visual or aural alerts, or both, to the flight crew under any of the following conditions:

(i) When the stored or pilot-selected safe minimum height is reached.

(ii) When a SAR mode system malfunction occurs.

(iii) When the AFCS changes modes automatically from one SAR mode to another.

(8) The SAR system hoist operator control is considered a flight control with limited authority and must comply with the following:

(i) The hoist operator control must be designed and located to provide for convenient operation and to prevent confusion and inadvertent operation.

(ii) The helicopter must be safely controllable by the hoist operator control throughout the range of that control.

(iii) The hoist operator control may not interfere with the safe operation of the helicopter.

(iv) Pilot and copilot flight controls must be able to smoothly override the control authority of the hoist operator control, without exceptional piloting skill, alertness, or strength, and without the danger of exceeding any other limitation because of the override.

(9) The reliability of the AFCS must be related to the effects of its failure. The occurrence of any failure condition that would prevent continued safe flight and landing must be extremely improbable. For any failure condition of the AFCS which is not shown to be extremely improbable:

(i) The helicopter must be safely controllable and capable of continued safe flight without exceptional piloting skill, alertness, or strength. Additional unrelated probable failures affecting the control system must be evaluated.

(ii) The AFCS must be designed so that it cannot create a hazardous deviation in the flight path or produce hazardous loads on the helicopter during normal operation or in the event of a malfunction or failure, assuming corrective action begins within an appropriate period of time. Where multiple systems are installed, subsequent malfunction conditions must be evaluated in sequence unless their occurrence is shown to be improbable.

(10) A functional hazard assessment (FHA) and a system safety assessment must be provided to address the failure conditions associated with SAR operations. For SAR catastrophic failure conditions, changes may be required to the following:

(i) System architecture.

(ii) Software and complex electronic hardware design assurance levels.

(iii) High Intensity Radiated Field (HIRF) test levels.

(iv) Instructions for continued airworthiness.

The assessments must consider all the systems required for SAR operations to include the AFCS, all associated AFCS sensors (for example, radio altimeter), and primary flight displays. Electrical and electronic systems with SAR catastrophic failure conditions (for example, AFCS) must comply with the § 29.1317(a)(4) HIRF requirements.

(c) SAR Mode Performance Requirements.

(1) The SAR modes must be demonstrated in the requested flight envelope for the following minimum sea-state and wind conditions:

(i) Sea State: Wave height of 2.5 meters (8.2 feet), considering both short and long swells.

(ii) Wind: 25 knots headwind; 17 knots for all other azimuths.

(2) The selected hover height and hover velocity must be captured (to include the transition from one captured mode to another captured mode) accurately and smoothly and not exhibit any significant overshoot or oscillation.

(3) For any single failure or any combination of failures of the AFCS that is not shown to be extremely improbable, the recovery must not result in a loss of height greater than half of the minimum use height (MUH) with a minimum margin of 15 feet above the surface. MUH is the minimum height at which any SAR AFCS mode can be engaged.

(4) The SAR mode system must be usable up to the maximum certified gross weight of the aircraft or to the lower of the following weights:

(i) Maximum emergency flotation weight.

(ii) Maximum hover Out-of-Ground Effect (OGE) weight.

(iii) Maximum demonstrated weight.

(d) Flight Characteristics.

(1) The basic aircraft must meet all the part 29 airworthiness criteria for helicopter instrument flight (Appendix B).

(2) For SAR mode coupled flight below V MINI , at the maximum demonstrated winds, the helicopter must be able to maintain any required flight condition and make a smooth transition from any flight condition to any other flight condition without requiring exceptional piloting skill, alertness, or strength, and without exceeding the limit load factor. This requirement also includes aircraft control through the hoist operator's control.

(3) For SAR modes at airspeeds below V MINI , the following requirements of Appendix B to part 29 must be met and will be used as an extension to the IFR certification envelope of the basic aircraft:

(i) Static Longitudinal Stability: The requirements of paragraph IV of Appendix B are not applicable.

(ii) Static Lateral-Directional Stability: The requirements of paragraph V of Appendix B are not applicable.

(iii) Dynamic Stability: The requirements of paragraph VI of Appendix B are replaced with the following two paragraphs:

(A) Any oscillation must be damped and any aperiodic response must not double in amplitude in less than 10 seconds. This requirement must also be met with degraded upper mode(s) of the AFCS. An “upper mode” is a mode that utilizes a fully coupled autopilot to provide an operational SAR profile.

(B) After any upset, the AFCS must return the aircraft to the last commanded position within 10 seconds or less.

(4) With any of the upper mode(s) of the AFCS engaged, the pilot must be able to manually recover the aircraft and transition to the normal (Appendix B) IFR flight profile envelope without exceptional skill, alertness, or strength.

(e) One-Engine Inoperative (OEI) Performance Information.

(1) The following performance information must be provided in the Rotorcraft Flight Manual Supplement (RFMS):

(i) OEI performance information and emergency procedures, providing the maximum weight that will provide a minimum clearance of 15 feet above the surface, following failure of the critical engine in a hover. The maximum weight must be presented as a function of the hover height for the temperature and pressure altitude range requested for certification. The effects of wind must be reflected in the hover performance information.

(ii) Hover OGE performance with the critical engine inoperative for OEI continuous and time-limited power ratings for those weights, altitudes, and temperatures for which certification is requested.

(f) RFMS.

(1) The RFMS must contain, at a minimum:

(i) Limitations necessary for safe operation of the SAR system to include:

(A) Minimum crew requirements.

(B) Maximum SAR weight.

(C) Engagement criteria for each of the SAR modes to include MUH (as determined in subparagraph (c)(3)).

(ii) Normal and emergency procedures for operation of the SAR system (to include operation of the hoist operator control), with AFCS failure modes, AFCS degraded modes, and engine failures.

(iii) Performance information:

(A) OEI performance and height-loss.

(B) Hover OGE performance information, utilizing OEI continuous and time-limited power ratings.

(C) The maximum wind envelope demonstrated in flight test.

(g) Flight Demonstration.

(1) Before approval of the SAR system, an acceptable flight demonstration of all the coupled SAR modes is required.

(2) The AFCS must provide fail-safe operations during coupled maneuvers. The demonstration of fail-safe operations must include a pilot workload assessment associated with manually flying the aircraft to an altitude greater than 200 feet above the surface and an airspeed of at least the best rate of climb airspeed (V y ).

(3) For any failure condition of the SAR system not shown to be extremely improbable, the pilot must be able to make a smooth transition from one flight mode to another without exceptional piloting skill, alertness, or strength.

(4) Failure conditions that are not shown to be extremely improbable must be demonstrated by analysis, ground testing, or flight testing. For failures demonstrated in flight, the following normal pilot recovery times are acceptable:

(i) Transition modes (Cruise-to-Hover/Hover-to-Cruise) and Hover modes: Normal pilot recognition plus 1 second.

(ii) Cruise modes: Normal pilot recognition plus 3 seconds.

(5) All AFCS malfunctions must include evaluation at the low-speed and high-power flight conditions typical of SAR operations. Additionally, AFCS hard-over, slow-over, and oscillatory malfunctions, particularly in yaw, require evaluation. AFCS malfunction testing must include a single or a combination of failures (for example, erroneous data from and loss of the radio altimeter, attitude, heading, and altitude sensors) which are not shown to be extremely improbable.

(6) The flight demonstration must include the following environmental conditions:

(i) Swell into wind.

(ii) Swell and wind from different directions.

(iii) Cross swell.

(iv) Swell of different lengths (short and long swell).

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the Federal Register on July 30, 2012 (77 FR 44511). That NPRM proposed to correct an unsafe condition for the specified products. The MCAI states:

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

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

• Are consistent with the intent that was proposed in the NPRM (77 FR 44511, July 30, 2012) for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM (77 FR 44511, July 30, 2012).

We estimate that this AD will affect 10 products of U.S. registry. We also estimate that it will take about .5 work-hour per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour.

Based on these figures, we estimate the cost of this AD on U.S. operators to be $425, or 42.50 per product.

In addition, we estimate that any necessary follow-on actions will take about .5 work-hour and require parts costing $100 for a cost of $142.50 per product. We have no way of determining the number of products that may need these actions.

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

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

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

For the reasons discussed above, I certify this AD:

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

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

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

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

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

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

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM published in the Federal Register on June 4, 2012 (77 FR 32918). That NPRM proposed to require repetitive inspections for cracks and a chemical spot test in the area of STA 908, and related investigative and corrective actions, if necessary. For certain airplanes, that NPRM also proposed to require an inspection and modification.

We gave the public the opportunity to participate in developing this AD. The following presents the comment received on the proposal (77 FR 32918, June 4, 2012) and the FAA's response to the comment.

Boeing requested that we relocate the terminating action statement related to confirmed 2000 series aluminum from paragraph (h)(2) of the NPRM (77 FR 32918, June 4, 2012) to paragraph (j) of the NPRM.

We disagree with the request to relocate the sentence. The terminating action specified in paragraph (h)(2) of this AD only terminates the actions specified in paragraph (h)(1) of this AD. Paragraph (j) of the AD allows operators to forego all requirements of this AD, including the initial inspection, repetitive inspections, and chemical spot test requirements, by replacing the butt strap with a new part made of the correct material, and doing related investigative and corrective actions, as applicable. No change has been made to the AD in this regard.

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

We estimate that this AD affects 61 airplanes of U.S registry.

We estimate the following costs to comply with this AD:

In addition, we have received no definitive data that would enable us to provide cost estimates for the actions that would be required for Group 1 airplanes.

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

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

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

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

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

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

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

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

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

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

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

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 89-15-07, Amendment 39-6267 (54 FR 30009, July 18, 1989). That AD applies to the specified products. The NPRM published in the Federal Register on May 31, 2012 (77 FR 32064). That NPRM proposed to continue to require repetitive visual inspections around the bushings of the wing landing gear (WLG) beam outboard end fittings for corrosion, and rework if necessary; and ultrasonic inspections for cracks of the outboard end fittings of the WLG support beams, and rework if necessary. That NPRM also proposed to add airplanes and repetitive inspections of the outboard end fitting of the left and right WLG support beams for cracks and corrosion, and corrective actions if necessary.

We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the proposal (77 FR 32064, May 31, 2012) and the FAA's response to each comment.

Boeing asked that the following sentence be added to paragraph (s) of the NPRM (77 FR 32064, May 31, 2012): “After accomplishing the repair or change in accordance with Part 7 of the Accomplishment Instructions of Boeing Alert Service Bulletin 747-57A2331, dated November 12, 2009, do the applicable actions required by paragraph (r) of this AD.” Boeing stated that the follow-on inspections are required after accomplishing the repair or replacement in Part 7. Boeing added that paragraph (q) of the NPRM contains a similar requirement for Groups 1 through 5 airplanes.

We partially agree with the commenter. We agree that the language specified in paragraphs (q) and (s) of the NPRM (77 FR 32064, May 31, 2012) is inconsistent. However, we do not agree to include the additional sentence in paragraph (s) of this final rule because it would continue to restate redundant information, and may further confuse operators. Therefore, we have removed “* * * do the applicable actions required by paragraph (p) of this AD,” as was specified in paragraph (q) of the NPRM, in order to provide consistency between those related paragraphs.

Qantas Airways (QAN) asked that the NPRM (77 FR 32064, May 31, 2012) be reviewed to accurately capture all approved part numbers for end fitting replacements. QAN stated that, for its Model 747-400 Configuration 6 airplanes, Boeing Alert Service Bulletin 747-57A2331, dated November 12, 2009, specifies that if a replacement spare end fitting is required, an end fitting assembly having P/N 112U1701-1 is to be used for that replacement. QAN noted that the parts page inventory list from the original equipment manufacturer (OEM) shows that P/N 112U1701-1 is no longer available and has been replaced with P/N 112U2701-7. QAN also noted that P/N 65B14473-23 and P/N 65B14473-24 are no longer available and have been replaced by P/N 65B14473-33 and P/N 65B14473-34, respectively. QAN added that these replacement parts are not identified in the referenced service information. QAN also stated that, if any of the replacement parts are used, it will be forced to request an alternative method of compliance (AMOC) from the OEM to approve the use of an alternate part in order to comply with the AD requirements.

We acknowledge the commenter's concerns. However, as specified in the NPRM (77 FR 32064, May 31, 2012), since issuance of AD 89-15-07, Amendment 39-6267 (54 FR 30009, July 18, 1989), corrosion occurred again at the lug bore and bushing interface because moisture continued to develop in that area due to exposure of the end fittings to environmental conditions. Subsequently, cracks occurred at the corroded areas of the end fittings; therefore, the unsafe condition specified in the existing AD has not been corrected. We find that issuing this AD without further delay is necessary to adequately address the identified unsafe condition. Operators may submit a request for approval of the replacement part numbers (P/Ns) through an AMOC, as specified in paragraph (u) of the AD. We have not changed the AD in this regard.

Boeing and Atlas Air asked that the paragraph identifier in the last sentence in paragraph (l) of the NPRM (77 FR 32064, May 31, 2012) be changed from paragraph (j) to paragraph (p). Boeing and Atlas Air stated that paragraph (j) of the NPRM would not be applicable since it applies to inspections of the end fittings prior to accomplishing the repair or replacement in Part 7 of Boeing Alert Service Bulletin 747-57A2331, dated November 12, 2009. Atlas Air added that paragraph (p) of the NPRM defines the procedures for follow-on end fitting inspections on which the repair or replacement specified in Part 7 has been done.

Boeing, Atlas Air, and UPS asked that the paragraph identifier in the last sentence in paragraph (n) of the NPRM (77 FR 32064, May 31, 2012) be changed from paragraph (m) to paragraph (r). Boeing, Atlas Air, and UPS stated that paragraph (m) of the NPRM applies to inspections of the end fittings prior to accomplishing the repair or replacement in Part 7 of Boeing Alert Service Bulletin 747-57A2331, dated November 12, 2009. Atlas Air added that paragraph (r) of the NPRM defines the procedures for follow-on end fitting inspections on which the repair or replacement specified in Part 7 has been done.

We agree with the commenters for the reasons provided. We have changed the paragraph identifiers in paragraphs (l) and (n) of this AD accordingly.

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

Since issuance of AD 89-15-07, Amendment 39-6267 (54 FR 30009, July 18, 1989), we have increased the labor rate used in the Costs of Compliance from $40 per work-hour to $85 per work-hour. The Costs of Compliance information, below, reflects this increase in the specified labor rate.

We estimate that this AD affects 173 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

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

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

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

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

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

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

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

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

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

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

The Burlington County Bridge Commission, who owns and operates this vertical-lift type drawbridge, has requested a temporary deviation from the current operating regulations set out in 33 CFR 117.5 and 117.716(b) to facilitate the adjustment of the operational lift cables.

The Burlington-Bristol Bridge on Route 413, at mile 117.8, across the Delaware River, between Burlington NJ and Bristol PA, has a vertical clearance in the closed position to vessels of 62 feet above mean high water.

Under the regular operating schedule the bridge opens on signal as required by 33 CFR 117.5 and the opening of a bridge may not be delayed more than five minutes for a highway bridge, after the signal to open is given as required by 33 CFR 117.716(b).

Under this temporary deviation, the Burlington-Bristol Bridge will be closed to navigation and unable to open on signal each day from 7 a.m. until 3 p.m. on October 30, 2012 and November 1, 2012.

Vessels that can pass under the bridge without a drawbridge opening may do so at all times. There are no alternate routes for vessels transiting this section of the Delaware River.

There are approximately four to six vessels per week from four facilities whose vertical clearance surpasses the closed bridge position, requiring an opening of the draw span. The Coast Guard has coordinated this replacement work with the Mariners' Advisory Committee for the Bay & River Delaware, and will inform the other users of the waterway through our Local and Broadcast Notices to Mariners of the closure periods for the bridge so that vessels can arrange their transits to minimize any impact caused by the temporary deviation. The bridge will not be able to open in an emergency during lift cable tension adjustments.

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

The Coast Guard is issuing this final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.”

Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because publishing an NPRM would be contrary to the public interest. The Coast Guard received notification of the America's Cup Race Management's intentions to finish the races in the subject location on September 18, 2012, and the event would occur before the rulemaking process would be completed. Because of the dangers posed by the high-speeds of vessels operating in the subject area during race finishes, the safety zone is necessary to provide for the safety of event participants, spectators, spectator craft, and other vessels transiting the event area. For the safety concerns noted, it is in the public interest to have these regulations in effect during the event.

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

The legal basis for the proposed temporary rule is the Ports and Waterways Safety Act which authorizes the Coast Guard to establish safety zones (33 U.S.C. 1221 et seq. ).

America's Cup Race Management, in conjunction with San Francisco Bay Fleet Week, will be conducting sailing races from Thursday, October 4, 2012, through Sunday, October 7, 2012, for the 2012 America's Cup World Series. The Coast Guard intends to enforce a temporary safety zone in order to protect spectators and participants from vessel collision during high-speed race finishes that will occur in vicinity of San Francisco West Yacht Harbor Light 2. This safety zone establishes a temporary restricted area on the waters 350 yards around position 37°48′32″ N, 122°26′24″ W (NAD 83) as depicted in National Oceanic and Atmospheric Administration (NOAA) Chart 18649. The sailing events are meant for entertainment purposes and the safety zone is issued to establish a temporary restricted area on the waters surrounding the event finish-line. Due to the large number of craft confined within this small area of water and the high speeds of event participants, this action in needed to protect both participant and spectator vessels from the risk of collision in vicinity of the finish-line.

The Coast Guard will enforce a temporary safety zone in the navigable waters of San Francisco Bay in vicinity of San Francisco West Yacht Harbor Light 2, which is stationed approximately 1,250 yards east of Anita Rock in San Francisco Bay. This safety zone is to support the 2012 America's Cup World Series regattas being conducted in conjunction with San Francisco Bay Fleet Week. During Fleet Week, which is scheduled to take place from Thursday, October 4, 2012 until Sunday, October 7, 2012, America's Cup will be conducting two races per day. Each of these races will be approximately an hour long and occur between the hours of 11:15 a.m. and 6:30 p.m. At the end of each race, the Coast Guard will enforce a 350-yard safety zone around position 37°48′32″ N, 122°26′24″ W (NAD 83). At the conclusion of the sailing regattas the safety zone shall terminate.

The effect of the temporary safety zone will be to restrict navigation in the vicinity of the America's Cup World Series finish-line, which will be located near San Francisco West Yacht Harbor Light 2. Except for persons or vessels authorized by the Coast Guard Patrol Commander, no person or vessel may enter or remain in the restricted area. These regulations are needed to keep spectators and vessels away from high-speed race finishes to ensure the safety of participants, spectators, and transiting vessels.

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

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

The economic impact of this rule is not significant because the safety zone is limited in duration, and is limited to a narrowly tailored geographic area. In addition, although this rule restricts access to the waters encompassed by the safety zone, the effect of this rule will not be significant because the local waterway users will be notified via public Broadcast Notice to Mariners to ensure the safety zone will result in minimum impact. The entities most likely to be affected are waterfront facilities, commercial vessels, and pleasure craft engaged in recreational activities.

The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule may affect the following entities, some of which may be small entities: Owners and operators of waterfront facilities, commercial vessels, and pleasure craft engaged in recreational activities and sightseeing, if these facilities or vessels are in the vicinity of the safety zone at times when this zone is being enforced. This rule will not have a significant economic impact on a substantial number of small entities for the following reasons: (i) This rule will encompass only a small portion of the waterway for a limited period of time, and (ii) the maritime public will be advised in advance of this safety zone via Broadcast Notice to Mariners.

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

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

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

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

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone of limited size and duration. This rule is categorically excluded from further review under paragraph 34(g) and 35(b) of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES . We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

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

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

The Coast Guard is issuing this final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because delay would be impracticable. Immediate action is necessary to ensure the safety of vessels, spectators, participants, and others in the vicinity of the marine event on the dates and times this rule will be in effect.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date would be impracticable, since immediate action is needed to ensure the public's safety.

The legal basis for this temporary rule is the Ports and Waterways Safety Act which authorizes the Coast Guard to establish safety zones (33 U.S.C 1221 et seq.).

Sea World is sponsoring the Sea World Fireworks, which will include a fireworks presentation from a barge in Mission Bay. The fireworks display is scheduled to occur between 8:50 p.m. and 10 p.m. on the following evenings; September 19, November 16, and December 31, 2012. This safety zone is necessary to provide for the safety of the crew, spectators, participants, and other vessels and users of the waterway.

The Coast Guard is establishing a safety zone that will be enforced from 8:50 p.m. to 10 p.m. on the following evenings; September 19, November 16, and December 31, 2012. The safety zone will cover a 600 foot radius surrounding the fireworks barge in approximate position 32°46′03″ N, 117°13′11″ W. The safety zone is necessary to provide for the safety of the crew, spectators, participants, and other vessels and users of the waterway. When this safety zone is being enforced, persons and vessels are prohibited from entering into, transiting through, or anchoring within this safety zone unless authorized by the Captain of the Port, or his designated representative.

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

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders. This determination is based on the size and location of the safety zone. Commercial vessels will not be hindered by the safety zone. Recreational vessels will only be prohibited from transiting through the designated safety zone during the specified times.

The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

(1) This rule will affect the following entities, some of which may be small entities: the owners or operators of vessels intending to transit or anchor in a portion of Mission Bay from 8:50 p.m. to 10 p.m. on September 19, November 16, and December 31, 2012.

(2) This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: The safety zone will only be in effect for one hour and 10 minutes late in the evening when vessel traffic is low.

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

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

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

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and determined that this rule does not have implications for federalism.

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

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

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

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

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

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

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

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

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

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

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

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

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

Between 7:00 p.m. and 7:30 p.m. on October 12, 2012, a historical reenactment will take place in which period cannons will be activated from the shoreline with pyrotechnic rockets being used to simulate cannonballs being launched several hundred feet over the water. This historical reenactment will be held on the Lower Niagara River near the Silo Restaurant, Lewiston, NY. The Captain of the Port Buffalo has determined that fireworks launched proximate to a gathering of watercraft pose a significant risk to public safety and property. Such hazards include premature and accidental detonations, dangerous projectiles, and falling or burning debris.

With the aforementioned hazards in mind, the Captain of the Port Buffalo has determined that this temporary safety zone is necessary to ensure the safety of spectators and vessels during the Battle of Queenston Heights Bicentennial historical reenactment and fireworks display. This zone will be effective and enforced from 6:30 p.m. until 8:00 p.m. on October 12, 2012. This zone will encompass all waters of the Niagara River, Lewiston, NY starting from position 43°10′28.2″ N and 79°02′58.6″ W then South to 43°10′22.9″ N and 79°02′58.9″ W then West to 43°10′23.2″ N and 79°03′05.0″ W then North to 43°10′28.5″ N and 79°03′05.0″ W then returning to the point of origin to form a square (NAD 83).

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

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

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

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

This rule will affect the following entities, some of which might be small entities: The owners or operators of vessels intending to transit or anchor in a portion of the Niagara River on the evening of October 12, 2012.

This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: This safety zone will be enforced for only 90 minutes late in the day. Traffic will be allowed to pass through the zone with the permission of the Captain of the Port. The Captain of the Port can be reached via VHF channel 16. Before the activation of the zone, we would issue local Broadcast Notice to Mariners.

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

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

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

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and determined that this rule does not have implications for federalism.

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

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

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

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

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

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

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

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

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

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

The Coast Guard will enforce a 100 foot safety zone around the fireworks barge at the Dutra Company Yard in Rio Vista, CA during the loading and transit of the fireworks barge and until the commencement of the fireworks display. Loading of the pyrotechnics onto the barge is scheduled to take place from 12:01 p.m. until 3 p.m. on October 13, 2012 at the Dutra Company Yard in Rio Vista, CA. From 7 p.m. until 8 p.m. the loaded barge will transit from the Dutra Company Yard to the launch site off of Rio Vista, CA in position 38°09′18″ N, 121°41′15″ W (NAD 83). Upon commencement of the 15 minute fireworks display, scheduled to take place from 8:30 p.m. until 8:45 p.m. on October 13, 2012, the safety zone will increase in size and encompass the navigable waters around and under the fireworks barge within a radius of 1,000 feet in position in position 38°09′18″ N, 121°41′15″ W (NAD 83) for the Rio Vista Bass Derby Fireworks in 33 CFR 165.1191. This safety zone will be in effect from 12:01 p.m. to 9 p.m. on October 13, 2012.

Under the provisions of 33 CFR 165.1191, unauthorized persons or vessels are prohibited from entering into, transiting through, or anchoring in the safety zone during all applicable effective dates and times, unless authorized to do so by the PATCOM. Additionally, each person who receives notice of a lawful order or direction issued by an official patrol vessel shall obey the order or direction. The PATCOM is empowered to forbid entry into and control the regulated area. The PATCOM shall be designated by the Commander, Coast Guard Sector San Francisco. The PATCOM may, upon request, allow the transit of commercial vessels through regulated areas when it is safe to do so.

This notice is issued under authority of 33 CFR 165.1191 and 5 U.S.C. 552(a). In addition to this notice in the Federal Register , the Coast Guard will provide the maritime community with extensive advance notification of the safety zone and its enforcement period via the Local Notice to Mariners.

If the Captain of the Port determines that the regulated area need not be enforced for the full duration stated in this notice, a Broadcast Notice to Mariners may be used to grant general permission to enter the regulated area.

EPA is taking final action to approve Alabama's SIP revision for the Alabama portion of the Chattanooga Area, 1 as submitted through the ADEM to EPA on October 7, 2009, for the purpose of demonstrating attainment of the 1997 Annual PM 2.5 NAAQS. Alabama's PM 2.5 attainment plan for Jackson County includes an analysis of RACM/RACT, an RFP plan, contingency measures, and an insignificance determination for mobile direct PM 2.5 and NO X emissions for transportation conformity purposes. EPA previously approved the base year emissions inventory for the Alabama portion of the Chattanooga Area on February 8, 2012 (77 FR 6467).

EPA has determined that Alabama's PM 2.5 attainment plan for the 1997 Annual PM 2.5 NAAQS for Jackson County meets the applicable requirements of the CAA and the PM 2.5 Implementation Rule. Thus, EPA is taking final action to approve Alabama's attainment plan for Jackson County, including the insignificance determination for direct PM 2.5 and NO X for Alabama's mobile source contribution to ambient PM 2.5 levels in the Chattanooga Area. More detail on EPA's rationale for this approval can be found in EPA's July 12, 2012, proposed rulemaking for this action ( see 77 FR 41132).

On April 25, 2007, EPA published the PM 2.5 Implementation Rule for the 1997 PM 2.5 NAAQS (72 FR 20586). This rule describes the CAA framework and requirements for developing SIPs to achieve attainment in areas designated nonattainment for the 1997 PM 2.5 NAAQS. Such attainment plans must include a demonstration that a nonattainment area will meet the applicable NAAQS within the timeframe provided in the statute. For the 1997 PM 2.5 NAAQS, an attainment demonstration must show that a nonattainment area will attain the standards as expeditiously as practicable, but within five years of designation (i.e., by an attainment date of no later than April 5, 2010, based on air quality data for 2007 through 2009). As mentioned above, ADEM provided Alabama's SIP revision with the attainment plan (the subject of this rulemaking) for the Alabama portion of the Chattanooga Area on October 7, 2009.

On May 31, 2011, EPA determined that the Chattanooga Area had attaining data for the 1997 Annual PM 2.5 NAAQS. See 76 FR 31239. That determination was based on quality-assured, quality controlled and certified ambient air monitoring data that shows the Area met the 1997 Annual PM 2.5 NAAQS. Furthermore, on September 8, 2011, in accordance with CAA 179(c), EPA determined that the Chattanooga Area attained the 1997 Annual PM 2.5 NAAQS by its applicable attainment date of April 5, 2010. See 76 FR 55774. This information is mentioned here in support of EPA's determination that Alabama's attainment plan was sufficient for the Chattanooga Area to achieve attainment by no later than the required attainment date of April 5, 2010.

As discussed in the May 31, 2011, rulemaking, EPA's determination of attainment  2 suspended the obligation for the State to meet planning SIP requirements for the Chattanooga Area for so long as the Area continues to attain the 1997 Annual PM 2.5 NAAQS. See 40 CFR 51.1004(c). The State must still submit required emissions inventories consistent with applicable timelines. 3 The suspended SIP submission obligations include the attainment demonstration (including in this case the mobile source insignificance determination submitted to satisfy transportation conformity requirements), the RACM/RACT analysis and requirements, the RFP requirements as applicable, and contingency measures. Despite the suspension of the aforementioned attainment plan requirements for the Chattanooga Area for the 1997 Annual PM 2.5 NAAQS, Alabama has requested that EPA take action on its planning SIP for this Area in part because the SIP submittal includes the insignificance determination for conformity purposes.

EPA's July 12, 2012, proposal action provides additional details regarding the rationale for today's final action. A brief discussion is provided here as well. As shown in the table below, ambient PM 2.5 levels in the Chattanooga Area have declined steadily since Alabama submitted its PM 2.5 attainment plan in 2009.

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.

I. Background

Throughout this document, whenever “we,” “us,” or “our” is used, we mean EPA. On April 12, 2012 (77 FR 21908), EPA published a notice of proposed rulemaking (NPR) for the Commonwealth of Pennsylvania. The NPR proposed approval of amendments to the plan approval requirements for the construction, modification, reactivation, and operation of sources under 25 Pa. Code chapter 127. The formal SIP revision was submitted by PADEP on April 14, 2009.

The primary purpose of the amendments is to streamline the permitting process by eliminating some of the administrative burden and costs associated with processing minor permitting actions, while preserving the right of the public to review and comment on those proposed actions. The proposed amendments generally affect five regulations: Section 127.12b, pertaining to “shakedown” periods for new or modified sources; section 127.12d, pertaining to completeness determinations; sections 127.44 and 127.45, pertaining to public notice requirements; and section 127.48, pertaining to conferences and hearings. The specific requirements of the SIP revision and the rationale for EPA's proposed action are explained in the NPR and will not be restated here.

EPA received a single set of comments on its April 12, 2012 proposed action to approve revisions to the Pennsylvania SIP. These comments, provided by the Clean Air Council, (hereinafter referred to as “the Commenter”), raised concerns with regard to EPA's April 12, 2012 proposed action. A full set of these comments is provided in the docket for today's final action. A summary of the comments and EPA's responses are provided below.

Generally, the Commenter raises three areas of concern. First, the Commenter asserts that the proposal to increase the duration of “shakedown period” extensions from 120 days to 180 days is inappropriate. Second, the Commenter asserts that the addition of the completeness determination requirements adds to PADEP's permitting burden, and together with the other contested revisions, “* * * increases the burden on the public contrary to the stated purpose of the Clean Air Act * * *” ( See, Comments at 3). Third, the Commenter raises several specific concerns regarding the proposed revisions to the public participation requirements under 25 Pa. Code section 127. EPA's response to these comments is below.

Comment 1: The Commenter notes that PADEP's previously approved regulations allow a 180-day shakedown period, with provisions for obtaining a 120-day extension. The Commenter further asserts that PADEP has not provided any justification as to why the existing 120-day extension period should be expanded to 180 days, and that, in the absence of such justification, the proposed longer extension period is “* * * both unnecessary and improper,” ( See, Comments at 2).

Response 1: 25 Pa. Code section 127.12b outlines the terms and conditions which must be included in each plan approval. Under section 127.12b(c), each plan approval “* * * must authorize temporary operation to facilitate shakedown of sources and air cleaning devices, to permit operations pending issuance of a permit under Subchapter F (relating to operating permit requirements) or Subchapter G (relating to Title V operating permits) or to permit the evaluation of the air contamination aspects of the source.” The currently approved regulations already allow for a 120-day extension of this temporary operating authorization. EPA disagrees with the Commenter's assertion that allowing a longer, 180-day extension is improper, and we leave to PADEP's discretion the issue of whether it is necessary. CAA section 110(k)(3) requires the Administrator to approve a SIP submittal “* * * if it meets all of the applicable requirements of this chapter.” We cannot identify, nor did the Commenter point to any CAA requirement or provision of its implementing regulations which is contrary to PADEP's proposed expansion of the temporary operating authorization period. Furthermore, we note that 25 Pa. Code section 127.12b requires each plan approval to contain all applicable CAA requirements, including monitoring, recordkeeping and reporting, and prohibits PADEP from approving or extending the temporary authorization period in any instance which would circumvent the requirements of 25 Pa. Code section 127. Therefore, we are approving the revisions to 25 Pa. Code 127.12b as submitted.

Comment 2: Although acknowledging that the proposed addition of the completeness determination requirements of 25 Pa. Code section 127.12d complies with the CAA, the Commenter asserts that, “It defies common understanding of fairness to push burdens away from the booming private industry while at the same time increasing the burden on government, especially when PADEP is facing budget cuts” ( See, Comments at 3).

Response 2: EPA disagrees that the addition of completeness determinations imposes an undue burden on permitting authorities. On the contrary, clearly defining what is required of both the applicant and the permitting authority (PADEP in this case), as well as establishing deadlines on both parties eliminates potentially open ended, back-and-forth correspondence between the applicant and PADEP that draws the permitting process out unnecessarily. Such a situation is much more burdensome on a permitting authority than a requirement for completeness determinations. In any event, the point is moot. The completeness determination provision proposed by PADEP is not only compliant with the CAA, it is required by 40 CFR 51.166(q)(1). We are therefore approving the revisions as submitted.

Comment 3: The third area of concern raised by the Commenter relates to the proposed revisions to the public participation requirements for plan approvals. The specific provisions with which the Commenter takes issue are discussed in detail as follows:

First, the Commenter asserts that the proposed revision to 25 Pa. Code 127.44, specifically the elimination of the receipt of application notice for minor permitting actions, “* * * would significantly decrease the public's awareness of the permitting activity in their own communities and consequently diminish the public's ability to provide meaningful input into the permitting process,” ( See, Comments at 3). Second, the Commenter asserts that the elimination of the newspaper publication requirement for minor permitting actions in favor of publication in the Pennsylvania Bulletin under the proposed revision to section 127.44 is contrary to 40 CFR sections 51.166(q), 51.161(b)(3), and 70.7(h), arguing that because the Pennsylvania Bulletin is a ” highly esoteric publication with very limited and specialized readership” ( See, Comments at 4), it fails to meet the CAA's “prominent advertisement” requirements. Third, the Commenter asserts that eliminating the requirement for notice to be sent to affected states is contrary to 40 CFR 70.7(h)(3), 70.8, and 51.166(q)(2)(iv). Fourth, the Commenter asserts that the proposed revisions to section 127.45, related to the required contents of the public notices, are contrary to 40 CFR 51.161(a) because the revised provisions do not include the requirement to disclose the proposed emissions limitations, PADEP's analysis of the applicant's proposal, and the project's impact on ambient air quality ( See, Comments at 7). Finally, the Commenter asserts that section 127.48 is contrary to 40 CFR 51.166(q)(iii) and (v) because it gives PADEP too much discretion in determining when to hold conferences and public hearings.

Response 3: Generally, the proposed revisions to the public notice requirements pertain to Pennsylvania's minor NSR program. In contrast to the considerable requirements prescribed for major NSR, the CAA, at section 110(a)(2)(C), addresses minor source programs only by requiring that each SIP include a program that provides for “* * * regulation of the modification and construction of any stationary source within the areas covered by the plan as necessary to assure that [NAAQS] are achieved * * *” The implementing regulations for minor NSR are at 40 CFR 51.160-51.164. In sum, states have considerable discretion with regard to developing their minor NSR programs.

With regard to the elimination of the receipt of application notice, the Commenter is incorrect in the assertion that the previously approved version of the Pennsylvania SIP requires both a notice of receipt and a notice of intent to issue. Only one notice, a notice of intent to take action (issue/deny) was required by the previously approved version of 25 Pa. Code 127.44(a). PADEP was, as a matter of policy, issuing two notices. It was never a requirement, and it is within PADEP's discretion to stop that practice. The revisions to section 127.44(a) are consistent with the requirements of 40 CFR 51.161(a).

The Commenter's assertion that the elimination of the newspaper publication requirement for minor permitting actions in favor of publication in the Pennsylvania Bulletin under the proposed revision to section 127.44 is contrary to 40 CFR 51.166(q), 51.161(b)(3), and 70.7(h) is also incorrect. First, the types of actions that are subject to the revised requirements of 25 Pa. Code 127.44(a) are not subject to the major NSR requirements of 40 CFR 51.166(q). With regard to section 70.7(h), in certain circumstances, Pennsylvania operates a “merged” permit program in which a plan approval is both an NSR and a title V action, and the requirements of the plan approval are brought into the facility's title V permit as an administrative amendment with no additional public notice. In such instances, all of the public notice requirements of part 70, including the newspaper requirement of section 70.7(h) are applicable. It is unclear how frequently this situation occurs in the types of minor facilities that are subject to the proposed revisions to 25 Pa. Code 127.44. Nevertheless, this is a title V implementation issue, and does not affect the approvability of the proposed revisions to Pennsylvania's NSR SIP. Furthermore, we disagree that publication in the Pa. Bulletin fails to meet the “prominent advertisement” requirements of 40 CFR 51.161(b)(3). EPA has repeatedly recognized that the prominent advertisement requirements of section 51.161(b)(3) are media neutral, and that state programs may meet the requirement with alternative methods, provided that it is reasonable to conclude that the public would have “ready and routine access to any alternative publishing venues,” ( See, April 17, 2012, Janet McCabe Memo to Regional Administrators entitled, “Minor New Source Review Public Notice Requirements under 40 CFR 51.161(b)(3)”, available at http://www.epa.gov/region07/air/nsr/nsrmemos/pubnot.pdf). We believe publication in the Pa. Bulletin meets this standard.

With regard to the Commenter's assertion that eliminating the requirement for notice to be sent to affected states is contrary to 40 CFR 70.7(h)(3), 70.8, and 51.166(q)(2)(iv), as we stated above, the types of actions that are subject to the proposed revised requirements of 25 Pa. Code 127.44(a) are not subject to the major NSR requirements of 40 CFR 51.166. The applicable regulations of 40 CFR 51.160-51.164 contain no such notice requirement. As discussed above, the applicability of the title V requirements of part 70 is dependent on whether the specific plan approval is being processed as a “merged” permit, and is an implementation issue that does not impact the approvability of the proposed SIP revision.

EPA agrees with the Commenter's assertion that the proposed revisions to 25 Pa. Code 127.45 fall short of what is required by 40 CFR 51.161. However, as we discussed in our proposal, we believe that to some extent, the intent of section 51.161(a) was met in 25 Pa. Code sections 127.45(a)(3) and (4), which contain the requirements for what must be included in the public notice. These sections require a description of the proposed construction or modification, the control technology being installed, the conditions in the proposed permit (with reference to applicable federal requirements), and the type and quantity of air contaminants being emitted. Nevertheless, the agency analysis required by 40 CFR 51.161(a) is not explicitly required in the proposed SIP revision, nor do the regulations of sections 127.44 and 127.45 require that the agency's analysis be made available for public inspection in at least one location, in accordance with 40 CFR 51.161(b)(1). Section 127.44(f)(1) requires only that the application be made available. This is the basis for granting limited approval. In order to receive full approval, PADEP must adopt regulations that explicitly require that the agency's analysis be included in the materials made available to the public, and that the materials be made available for public inspection in at least one location.

Additionally, the Commenter asserts that the proposed revisions have lead to inadequate information being provided in the notices of receipt and intent to issue, thus limiting the public's ability to participate meaningfully in the permitting process ( See, Comments at 7). The Commenter further asserts that not only should the application materials and the agency's analysis be provided to the public, but that the proposed permit itself should also be provided. There is no requirement in section 51.161 that the proposed permit be made public. Nevertheless, EPA agrees that the generic, boilerplate language cited by the Commenter falls short of the intent of section 51.161 ( See, Comments at 7-8). However, this is an implementation issue which is outside of the scope of the SIP revision process. Once PADEP submits regulations which correct the deficiencies leading to our limited approval, the regulations at 25 Pa. Code section 127.45 will be fully approvable on their face.

Finally, EPA disagrees with the Commenter's assertion that 25 Pa. Code 127.48 is contrary to 40 CFR 51.166(q)(iii) and (v) because it gives PADEP too much discretion in determining when to hold conferences and public hearings. The requirements of section 127.48 apply not to routine public hearings held in the course of the public notice process, but to hearings held as a result of an official protest having been filed in accordance with section 127.46. There are no public hearing requirements in 40 CFR 51.161 for minor NSR actions. Additionally, we note that Pennsylvania has met the plan requirements of 40 CFR 51.166 by incorporating by reference in their entirety the federal regulations at 40 CFR 52.21. Therefore, the applicable requirements are not under section 51.166(q), but rather are under section 52.21(q). Section 52.21(q) requires that the applicable procedures of 40 CFR section 124 be followed in the processing of applications. According to section 124.12(a), “The Director shall hold a public hearing whenever he or she finds, on the basis of requests, a significant degree of public interest in a draft permit(s).” It is clear that there is some discretion afforded to the permitting authority in determining when a public hearing should be held.

For the reasons discussed above, EPA believes that with the exception of the noted deficiencies, PADEP's proposed SIP revision meets all applicable CAA requirements, and that a limited approval is warranted.

EPA is granting limited approval of the submitted amendments to 25 Pa. Code chapter 127 as a revision to the Pennsylvania SIP.

Under the CAA, 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, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 4, 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 regarding streamlining amendments to Pennsylvania's plan approval process may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR part 52 is amended as follows:

On August 7, 2012 (77 FR 46990), EPA published a notice of proposed rulemaking (NPR) for the State of Delaware. The NPR proposed approval of the attainment demonstration portion of the attainment plan for the 1997 8-hour ozone NAAQS for the Philadelphia Area. The formal SIP revision was submitted by Delaware on June 13, 2007.

The SIP revision consists of the attainment demonstration portion of the attainment plan submitted by Delaware as a SIP revision on June 13, 2007 to demonstrate attainment of the 1997 8-hour ozone NAAQS for the Philadelphia Area by the applicable attainment date of June 2011. EPA previously approved other portions of the Delaware attainment plan submitted on June 13, 2007. See 75 FR 17863 (April 8, 2010). EPA has determined that the weight of evidence analysis that Delaware used to support the attainment demonstration provides sufficient evidence that the Philadelphia Area would attain the 1997 8-hour ozone NAAQS by the applicable attainment date of June 2011. Specific requirements of the attainment demonstration and the rationale for EPA's proposed action are explained in the NPR and the technical support document (TSD) and will not be restated here. No public comments were received on the NPR.

Separately, EPA conducted a process to find adequate the motor vehicle emission budgets (MVEBs) for New Castle, Kent and Sussex Counties which are associated with the Delaware attainment demonstration for the Philadelphia Area. A notice was posted on EPA's Web site for a 30-day public comment period on the adequacy determination for the 2009 MVEBs associated with the attainment demonstration for all three counties in Delaware. No comments were received during the public comment period. Therefore, EPA finds adequate the MVEBs for transportation conformity purposes for all three counties in Delaware.

EPA is approving the 1997 8-hour ozone NAAQS attainment demonstration portion of the attainment plan submitted by Delaware on June 13, 2007. EPA has determined that Delaware's SIP revision demonstrates attainment of the 1997 8-hour ozone NAAQS for the Philadelphia Area by the applicable attainment date of June 2011. EPA also has determined that the SIP revision meets the applicable requirements of the CAA. EPA is also approving and finding adequate the 2009 MVEBs associated with the attainment demonstration for all three counties in Delaware.

Under the CAA, 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, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 4, 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 pertaining to the Delaware attainment demonstration for the 1997 8-hour ozone NAAQS for the Philadelphia Area may not be challenged later in proceedings to enforce its requirements. ( See section 307(b)(2).)

40 CFR part 52 is amended as follows:

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

On July 30, 2012 (77 FR 44560), EPA proposed to approve a draft version of the following rules because we determined that they complied with the relevant CAA requirements.

Our proposed action contains more information on the rules and our evaluation. Our proposed approval responded to a July 5, 2012 request from the State to parallel process a version of these rules proposed for local adoption on June 28, 2012. On August 30, 2012, NDEP submitted to EPA official copies of Washoe County Rules 030.218, 030.230, 030.235, and 030.970A that were adopted locally on June 28, 2012. On September 10, 2012, EPA determined that the submittal for these Washoe County Rules met the completeness criteria in 40 CFR Part 51 Appendix V, which must be met before formal EPA review. We have reviewed the versions of these rules and they are unchanged from the version we proposed to approve on July 30, 2012.

EPA's proposed action provided a 30-day public comment period. During this period, we received no comments.

No comments were submitted that change our assessment of the rules as described in our proposed action. Therefore, as authorized under section 110(k)(3) of the Act, EPA is fully approving these rules into the Nevada SIP.

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 4, 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)).

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

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Printing Office's e-CFR site at http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?&c=ecfr&tpl=/ecfrbrowse/Title40/40tab_02.tpl.

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2010-0524 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before December 4, 2012. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any CBI) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2010-0524, by one of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute.

• Mail: OPP Docket, Environmental Protection Agency Docket Center (EPA/DC), (28221T), 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001.

• Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at http://www.epa.gov/dockets/contacts.htm.

In the Federal Register of July 13, 2012 (77 FR 41346) (FRL-9353-9), EPA issued a proposed rule pursuant to FFDCA section 408(e), 21 U.S.C. 346a (d)(3). The Agency-initiated rule proposed that 40 CFR 180.662 be amended by establishing tolerances for trinexapac-ethyl in or on barley, bran at 2.5 ppm; sugarcane, molasses at 2.5 ppm; and wheat, bran at 6.0 ppm. The rule also proposed amending the existing trinexapac-ethyl tolerances for wheat, forage from 1.5 to 1.0 ppm and wheat, middlings from 6.5 to 10.5 ppm, as well as changing the existing commodity definition for “hog, kidney” to “hog, meat by-products” in order to correct inadvertent errors in the final rule tolerance table for trinexapac-ethyl that was published in the Federal Register on March 2, 2012 (77 FR 12740) (FRL-9337-9). The proposed rule included a summary of the exposure assessment prepared by the Agency and explained the basis for EPA's conclusion that there is a reasonable certainty that no harm will result to the general population or to infants and children, as a result of aggregate exposure to trinexapac-ethyl residues. A comment was received in response to the proposed rule. EPA's response to that comment is discussed below in Unit III.

An anonymous citizen objected to the presence of any pesticide residues on food. The Agency understands the commenter's concerns and recognizes that some individuals believe that pesticides should be banned completely. However, the existing legal framework provided by section 408 of the Federal Food, Drug and Cosmetic Act (FFDCA) contemplates that tolerances greater than zero may be set when persons seeking such tolerances or exemptions have demonstrated that the pesticide meets the safety standard imposed by that statute. This citizen's comment appears to be directed at the underlying statute and not EPA's implementation of it; the citizen has made no contention that EPA has acted in violation of the statutory framework.

Given that EPA received no meaningful comment on its proposal and based on the information, analysis, and conclusions in the July 13, 2012 proposal (77 FR 41346) (FRL-9353-9), tolerances are established, as proposed, for residues of trinexapac-ethyl, in or on barley, bran at 2.5 ppm; sugarcane, molasses at 2.5 ppm; and wheat, bran at 6.0 ppm. In addition, as proposed, the tolerance level for wheat, forage is revised from 1.5 to 1.0 ppm, the tolerance level for wheat, middlings is revised from 6.5 to 10.5 ppm and the commodity definition, “hog, kidney” is revised to “hog, meat by-products.”

This final rule establishes tolerances under FFDCA section 408(d) on EPA's own initiative. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this final rule has been exempted from review under Executive Order 12866, this final rule is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq. ), nor does it require any special considerations under Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994).

Pursuant to the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ), the Agency hereby certifies that these proposed tolerances will not have significant negative economic impact on a substantial number of small entities. Establishing a pesticide tolerance or an exemption from the requirement of a pesticide tolerance is, in effect, the removal of a regulatory restriction on pesticide residues in food, and thus such an action will not have any negative economic impact on any entities, including small entities.

This final rule directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this final rule. In addition, this final rule does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1501 et seq. ).

This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA) (15 U.S.C. 272 note).

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq. ), EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Therefore, 40 CFR chapter I is amended as follows:

States which have received final authorization from EPA under RCRA section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste program that is equivalent to, consistent with, and no less stringent than the Federal program. As the Federal program changes, States must change their programs and ask EPA to authorize the changes. Changes to State programs may be necessary when Federal or State statutory or regulatory authority is modified or when certain other changes occur. Most commonly, States must change their programs because of changes to EPA's regulations in 40 Code of Federal Regulations (CFR) parts 124, 260 through 266, 268, 270, 273 and 279.

We conclude that Tennessee's application to revise its authorized program meets all of the statutory and regulatory requirements established by RCRA. Therefore, we grant Tennessee final authorization to operate its hazardous waste program with the changes described in the authorization application. Tennessee has responsibility for permitting treatment, storage, and disposal facilities within its borders and for carrying out the aspects of the RCRA program described in its revised program application, subject to the limitations of the Hazardous and Solid Waste Amendments of 1984 (HSWA). New Federal requirements and prohibitions imposed by Federal regulations that EPA promulgates under the authority of HSWA take effect in authorized States before they are authorized for the requirements. Thus, EPA will implement those requirements and prohibitions in Tennessee, including issuing permits, until the State is granted authorization to do so.

The effect of this decision is that a facility in Tennessee subject to RCRA will now have to comply with the authorized State requirements instead of the equivalent Federal requirements in order to comply with RCRA. Tennessee has enforcement responsibilities under its State hazardous waste program for violations of such program, but EPA retains its authority under RCRA sections 3007, 3008, 3013, and 7003, which includes, among others, authority to:

• Do inspections, and require monitoring, tests, analyses or reports;

• Enforce RCRA requirements and suspend or revoke permits; and

• Take enforcement actions regardless of whether the State has taken its own actions.

This action does not impose additional requirements on the regulated community because the regulations for which Tennessee is being authorized by today's action are already effective, and are not changed by today's action.

EPA did not publish a proposal before today's rule because we view this as a routine program change and do not expect comments that oppose this approval. We are providing an opportunity for public comment now. In addition to this rule, in the proposed rules section of today's Federal Register , we are publishing a separate document that proposes to authorize the State program changes.

If EPA receives comments that oppose this authorization, we will withdraw this rule by publishing a document in the Federal Register before the rule becomes effective. EPA will base any further decision on the authorization of the State program changes on the proposal mentioned in the previous paragraph. We will then address all public comments in a later final rule. You may not have another opportunity to comment. If you want to comment on this authorization, you must do so at this time.

If we receive comments that oppose only the authorization of a particular change to the State hazardous waste program, we will withdraw that part of this rule but the authorization of the program changes that the comments do not oppose will become effective on the date specified above. The Federal Register withdrawal document will specify which part of the authorization will become effective, and which part is being withdrawn.

Tennessee initially received final authorization on January 22, 1985, effective February 5, 1985 (50 FR 2820), to implement the RCRA hazardous waste management program. We granted authorization for changes to Tennessee's program on the following dates: June 12, 1987, effective August 11, 1987 (52 FR 22443); June 1, 1992, effective July 31, 1992 (57 FR 23063); May 8, 1995, effective July 7, 1995 (60 FR 22524); August 24, 1995, effective October 23, 1995 (60 FR 43979); May 23, 1996, effective July 22, 1996 (61 FR 25796); January 30, 1998, effective March 31, 1998 (63 FR 4587); September 15, 1999, effective November 15, 1999 (64 FR 49998); October 26, 2000, effective December 26, 2000 (65 FR 64161); December 26, 2001, effective February 25, 2002 (66 FR 66342); April 11, 2003, effective June 10, 2003 (68 FR 17748); March 14, 2005, effective May 13, 2005 (70 FR 12416); and May 11, 2006, effective July 10, 2006 (71 FR 27405).

On December 15, 2008, and June 1, 2011, Tennessee submitted final complete program revision applications, seeking authorization of its changes in accordance with 40 CFR 271.21. EPA now makes an immediate final decision, subject to receipt of written comments that oppose this action, that Tennessee's hazardous waste program revisions satisfy all of the requirements necessary to qualify for final authorization. Therefore, we grant Tennessee final authorization for the following program changes:

I. Background a. National Service Criminal History Check Requirements Prior to the Serve America Act

In 2007, the Corporation issued rules requiring grantees to conduct criminal history checks on the members, volunteers, and grant-funded staff who had recurring access to children, persons age 60 or older, or individuals with disabilities. Recurring access meant having contact with individuals from one or more of the above groups on more than one occasion. These 2007 rules only applied to the AmeriCorps State and National, FGP and SCP programs. The rules did not apply to the Retired and Senior Volunteer Program (RSVP), Learn and Serve America (LSA), or other CNCS-funded programs. Affected grantees could apply to CNCS for approval of an alternative search procedure (ASP) if state law precluded them from complying with the national service criminal history check requirements or if they could obtain substantially the same information using a different process. The regulation also permitted grantees to conduct a fingerprint-based FBI criminal history check in lieu of the required state criminal history registry check(s).

In 2009, Congress amended the National and Community Service Act of 1990 (42 U.S.C. 12501 et seq. ) (NCSA) with the Serve America Act (Pub. L. 111-13) (SAA). The SAA codified CNCS's regulatory National Service Criminal History Check requirements and expanded the categories of positions covered by the criminal history check requirements. Under the SAA, on or after October 1, 2009, any entity that selects an individual to serve in a position in which the individual receives a living allowance, stipend, national service educational award, or salary through a program receiving assistance under the national service laws must conduct a criminal history check on that individual. Individuals in covered positions now include grant-funded staff serving in any CNCS-funded national service program, including RSVP, LSA, Non-profit Capacity Building, and the Social Innovation Fund (SIF) grant programs.

Notably, the SAA expanded the categories of covered positions subject to the National Service Criminal History Check requirements without regard to the individual's access to vulnerable populations. It also prohibited individuals convicted of murder from serving in covered positions. The SAA also required that after April 21, 2011, individuals in covered positions with recurring access to vulnerable populations must have a fingerprint-based FBI criminal history check conducted as part of the National Service Criminal History Check. As directed by the SAA, CNCS issued new regulations in 2009, expanding coverage to any national service participant, volunteer or grant-funded employee who received one of the above-described payments for his or her service or employment. (74 FR 46495, September 10, 2009). Pursuant to these regulations, each individual in a covered position who does not have recurring access to vulnerable populations who began work or started service with a grantee on or after October 1, 2009, is required to undergo a National Service Criminal History Check that includes: (1) A nationwide check of the National Sex Offender Public Web site (NSOPW); and (2) a search of either (a) the state criminal registry(ies) in the state in which the grantee is operating and the state in which the individual resides at the time of application, or (b) a Federal Bureau of Investigation (FBI) fingerprint-based criminal history check.

The SAA specified separate National Service Criminal History Check requirements for individuals in covered positions with recurring access to vulnerable populations. Beginning April 21, 2011, entities that select individuals to serve in covered positions who are 18 or older and who will have recurring access to children age 17 or younger, individuals age 60 or older, or individuals with disabilities must conduct for each individual: (1) A nationwide check of the NSOPW; (2) a search of the state criminal registr(ies) in the state in which the individual in a covered position will be primarily serving or working and the state in which the individual resides at the time of application; and (3) an FBI fingerprint-based criminal history check. The SAA created limited exceptions to this special rule.

To implement National Service Criminal History Check provisions of the SAA, CNCS published a notice of a proposed rulemaking in the Federal Register on July 6, 2011. (76 FR 39361). This final rule implements the SAA with regard to individuals in covered positions with recurring access to vulnerable populations. In addition, the final rule clarifies several requirements in the existing rule and makes minor technical corrections for clarity.

The SAA amended the NCSA's definition of program to include newly- authorized programs including Campuses of Service, Serve America Fellows, Encore Fellows, Silver Scholars, the Social Innovation Fund, and activities funded under programs such as the Volunteer Generation Fund. The final rule aligns the definition of program in the regulation with the statutory definition, corrects a typographical error, and corrects the statutory citation.

Because this rule sets forth the National Service Criminal History Check provisions in one location in the Code of Federal Regulations, and because the rule applies to recipients of CNCS federal financial assistance who have individuals in covered positions, this final rule is written using program-neutral terminology. Accordingly, “you” in this final rule means a Corporation grantee or other entity subject to Corporation grant provisions. Unless the context otherwise requires, this includes, but is not limited to, recipients of federal financial assistance under grant programs defined in § 2510.20 of this final rule, as well as SCP, FGP, and RSVP projects.

The final rule clarifies that the National Service Criminal History Check eligibility criteria apply to individuals in covered positions and aligns the definition of the term “covered position” with the language of the SAA. The reference in the proposed rule to the definition of program in § 2510.20 was removed from the final rule for clarity. The SAA extended application of the National Service Criminal History Check requirements to entities receiving CNCS grants under the national service laws, which include the NCSA and the Domestic Volunteer Service Act of 1973 (DVSA), as amended. While the National Service Criminal History Check requirements apply to programs defined in § 2510.20, the applicability is not limited to those programs. The requirements also apply to individuals in covered positions in the SCP, FGP, and RSVP programs. It should be clear that a National Service Criminal History Check is not required for individuals whose connection to the grantee is tangential, or who are considered beneficiaries. For example, a National Service Criminal History Check would not be required for an individual contracted to provide occasional training to participants and volunteers, but is not otherwise integral to the operation of the program, nor would it be required for a child who receives a cash prize from a program for completing a service-learning project.

The SAA amended the NCSA to prohibit an individual convicted of murder, as defined under 18 U.S.C. 1111, from serving in a covered position. In 2009, CNCS amended the National Service Criminal History Check regulations to reflect this statutory change concerning eligibility. As the regulatory sections updated in 2009 indicated, the change applied to AmeriCorps State and National. However, CNCS inadvertently failed to update the provision in the regulation that specifically addresses eligibility to serve in an AmeriCorps State and National position. This final rule corrects this oversight to reflect in this section that eligibility for service in an AmeriCorps State and National position includes satisfaction of the National Service Criminal History Check eligibility criteria.

The 2009 amendments to the National Service Criminal History Check regulations created some confusion regarding the eligibility of individuals convicted of murder, as defined under 18 U.S.C. 1111, from serving in a covered position. Congress declared that, as of October 1, 2009, individuals convicted of murder may not work or serve in covered positions. This Congressional mandate gave no discretion to CNCS to waive or modify this eligibility requirement.

Consequently, grantees with individuals convicted of murder who are currently serving or working in a covered position, including staff, must remove those individuals from the covered positions. For those individuals for whom a state registry or FBI criminal history check was not required prior to this final rule (e.g., those individuals who began work or service before October 1, 2009, without a subsequent break in service), grantees will be permitted to rely on the individuals' self-certification that they have never been convicted of murder as defined by 18 U.S.C. 1111, in lieu of conducting a criminal history check. The definition in 18 U.S.C. 1111 is as follows: “Murder is the unlawful killing of a human being with malice aforethought. Every murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing; or committed in the perpetration of, or attempt to perpetrate, any arson, escape, murder, kidnapping, treason, espionage, sabotage, aggravated sexual abuse or sexual abuse, child abuse, burglary, or robbery; or perpetrated as part of a pattern or practice of assault or torture against a child or children; or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed, is murder in the first degree. Any other murder is murder in the second degree.”

Individuals who have been convicted of murder have been ineligible to serve as of October 1, 2009, and therefore, all costs associated with these individuals are potentially disallowable since that date.

The National Service Criminal History Check for individuals in covered positions must include (1) a nationwide check of the Department of Justice's National Sex Offender Public Web site (NSOPW) and (2) either (a) a name- or fingerprint-based search of the official state criminal history registry in the state in which the grantee is operating and of the official state criminal history registry in the state in which the individual resides at the time of application, or (b) submission of fingerprints through a state central record repository to the Federal Bureau of Investigation for a national criminal history background check.

Because of the importance of proper screening and because the NSOPW is a widely-available and free public resource, the NSOPW search must be nationwide (i.e., all states and territories) in order to meet the National Service Criminal History Check requirement. If any of the databases comprising the NSOPW are down, offline, or otherwise unavailable, the NSOPW check is incomplete until all databases are checked. The rule has been revised to clarify this requirement. Additionally, because of the availability of this free public resource, grantees must conduct an NSOPW check for any individual currently serving or working in a covered position defined under this rule, regardless of when the individual was hired or started service, and regardless of their access to vulnerable populations. Finally, as a prudential action, all CNCS grantees, when conducting a search of the name-based NSOPW, should include not only the applicant's current legal name, but also any previous names or aliases by which the applicant may have been known.

Since 2007, CNCS has required grantees operating in more than one state that conduct state criminal registry checks to conduct the checks in the state where the individual in a covered position will be primarily serving or working and in the state in which the individual resides at the time of application. The final rule codifies this requirement.

Comments received by CNCS indicated that the formatting of the proposed rule made it difficult to determine which components of the National Service Criminal History Check are required. The rule has been reformatted to make the requirements clear. Additionally, the heading of this section was edited to be consistent with the other section headings.

CNCS also received comments requesting resolution of the ambiguity in the proposed rule regarding the time at which an individual is considered of age for the special rule for individuals with recurring access to vulnerable populations to apply. The final rule establishes that the rule applies to an individual who will be 18 years old or older at any time while serving in a covered position. The final rule also replaces the broad term “vulnerable population” with the specific groups statutorily defined as “vulnerable populations,” where necessary, to resolve any ambiguity.

This section of the final rule is the first section in which the words “enrolled” and “hired” are replaced with “starts service” and “begins work,” respectively. These words are updated throughout the final rule because comments suggested that the use of “enrolled” and “hired” created some confusion. For some grantees, “enrolled” has a specific operational meaning that does not reflect the intended timing in the context of the rule. Therefore, the word, “enrolled,” has been replaced with the words, “starts service,” to more clearly convey the intended timing requirements of the final rule. For the purposes of this rule, an individual “starts service” when the individual's time begins to be credited toward their service commitment; an individual “begins work” when the individual engages in activities chargeable to the grant.”

The proposed rule reflected CNCS's intent to eliminate unnecessary replication of the National Service Criminal History Check provisions in the Code of Federal Regulations, and anchors the substantive provisions in one location. Because grantees subject to the National Service Criminal History Check provisions use different terminology, and comments indicated that the terminology may have caused confusion, the final rule includes a definitional section to eliminate confusion concerning the applicability of the provisions. Sections have been renumbered and citations throughout the rule have been updated accordingly to accommodate its inclusion.

This final rule implements the National Service Criminal History Check requirements for individuals in covered positions with recurring access to vulnerable populations who began work or who started service on or after April 21, 2011. The NCSA, as amended by the SAA, defines vulnerable populations as children age 17 or younger, individuals age 60 or older, or individuals with disabilities. The final rule now more clearly defines “vulnerable population.” Unless CNCS approves an alternative search procedure or an exception under § 2540.207, for individuals in covered positions who will be 18 or older and who also have recurring access to vulnerable populations, grantees must conduct (1) a nationwide check of the NSOPW ( http://www.nsopw.gov ), (2) a name- or fingerprint-based search of the official state criminal registry in the state in which the grantee is operating and of the official state criminal registry in the state in which the individual resides at the time of application, and (3) submission of fingerprints through a state central record repository to the Federal Bureau of Investigation for a national criminal history background check.

CNCS continues to define “recurring access” as “the ability on more than one occasion to approach, observe, or communicate with an individual through physical proximity or other means, including but not limited to, electronic or telephonic communication.” (45 CFR 2510.20).

In anticipation of the final rule, current grantees have inquired as to whether CNCS would develop a centralized mechanism for conducting FBI fingerprint checks for national service participants. CNCS is committed to identifying ways to decrease the burden on grantees; however, no such centralized mechanism is available at this time.

Grantees must conduct and document the results of the nationwide NSOPW check before an individual begins work or starts service. The NSOPW is a free public resource available at http://www.nsopw.gov/.

Under § 2540.204(b) of this final rule, it is not necessary to perform an additional National Service Criminal History Check on an individual who serves consecutive terms of service with the same grantee when the break in service does not exceed 120 days, as long as the original check is a compliant check for the covered position in which the individual will be serving or working following the break in service. For example, if an individual serves an original term in a covered position with no recurring access to vulnerable populations, but will be serving the consecutive term in a covered position with recurring access to vulnerable populations, the grantee must ensure that any additional National Service Criminal History Check components required for the position are conducted (e.g. the fingerprint-based FBI check). This section allows, but does not require, a grantee to forego additional National Service Criminal History checks for individuals serving consecutive terms, based upon a presumption that the additional check would, in large part, replicate the original check and that the grantee's proximity to the individual would increase the likelihood that the grantee would have knowledge of the individual's activity.

Grantees must conduct a National Service Criminal History Check under this final rule on individuals in covered positions who, on or after April 21, 2011, begin work or start service (1) following a break in service exceeding 120 days or (2) with a new grantee.

This final rule codifies CNCS's understanding that it is common for vulnerable population beneficiaries to be accompanied by a parent, legal guardian, teacher, doctor, nurse, or other individual responsible for his or her care. CNCS does not believe it is necessary for an individual with pending National Service Criminal History Check results to be accompanied by an authorized grantee representative who has received the appropriate criminal history check when the vulnerable population beneficiary is accompanied by an individual responsible for his or her care.

While results from the state or FBI criminal history check components of the National Service Criminal History Check are pending, grantees may allow individuals in covered positions with recurring access to vulnerable populations to begin work or start service, as long as the individual is not permitted access to vulnerable populations without being accompanied by (1) an authorized grantee representative who has previously been cleared for such access; (2) a family member or legal guardian of the vulnerable individual; or (3) an individual authorized by the nature of his or her profession to have recurring access to the vulnerable individual, such as an education or medical professional. Accompaniment is a higher standard than supervision in that it requires the individual with recurring access to vulnerable populations to be in the physical presence of the accompanying individual. For example, a covered individual whose criminal history check component results are pending may give nature tours to schoolchildren as part of an environmental program as long as the covered individual is within the physical presence of teachers or parents.

The final rule has been changed based on comments CNCS received about the ambiguity in the term “accompaniment.” The final rule uses the phrase “physical presence” in place of “accompaniment” to convey the intended meaning and specific requirement.

The rule requires grantees to obtain and document a baseline criminal history check for individuals in covered positions. CNCS considers the cost of this required National Service Criminal History Check a reasonable and necessary program grant expense, such costs being presumptively eligible for reimbursement. In any event, a grantee should include the costs associated with its screening process in the grant budget it submits to CNCS for approval.

This rule codifies CNCS's guidance that a grantee may not charge an individual for the cost of a National Service Criminal History Check unless CNCS has given written permission to do so. In addition, because a National Service Criminal History Check is inherently attributable to operating a program, such costs may not be charged to a state commission administrative grant.

Grantees must retain the criminal history check results along with written documentation that they considered the results in selecting the individual. The grantee must review and determine that the information returned by the governmental body issuing criminal history registry results provides information that would allow the grantee to determine whether or not an individual was eligible to work or serve in a covered position under the final rule. For example, if a grantee receives a document from the statewide criminal history registry that indicates that the individual is “cleared” for service based upon an agreement that describes CNCS's standards for eligibility, that clearance document may be retained as the sufficient documentation of the criminal history check results, along with written documentation that the grantee considered the result in selecting the individual.

The headings and structure of this section have been modified from those in the proposed rule in order to clarify the substantive content, and to clearly distinguish alternative search procedures from the statutory exceptions to the fingerprint-based FBI criminal history check requirement for individuals in covered positions with recurring access to vulnerable populations. A grantee may request in writing that CNCS approve an alternative search procedure for the National Service Criminal History Check components described in § 2540.203(a) or § 2540.203(b)(2)(i)-(ii), if the grantee (1) is prohibited under state law from meeting the requirements of § 2540.203(a) or § 2540.203(b)(2)(i)-(ii) or (2) demonstrates that it can obtain substantially equivalent or better information through an alternative search procedure.

Grantees may also apply to CNCS for approval of an exception from the fingerprint-based FBI criminal history check component of the National Service Criminal History Check, described in § 2540.203(b)(2)(iii), for an individual in a covered position with recurring access to vulnerable populations. CNCS may approve such an exception if the entity demonstrates to CNCS's satisfaction (1) that the cost to the grantee of complying with 45 CFR 2540.203(b)(2)(iii) is prohibitive; (2) that the entity is not authorized, or is otherwise unable, under State or Federal law, to access the national criminal history background check system of the FBI; or (3) that there is sufficient justification for CNCS to exempt the grantee from the requirement for good cause.

Congress granted those individuals in covered positions with recurring access to vulnerable populations an exception to the FBI fingerprint-based criminal history check requirement when their access to vulnerable populations is “episodic in nature or for a [one]-day period.” For the purpose of this final rule, the Corporation defines “episodic” as access that is not a regular, scheduled, and anticipated component of an individual's service activities. If access to vulnerable populations is not a regular, scheduled, and anticipated component of an individual's service activities, the grantee is not required to conduct a fingerprint-based FBI criminal history check. However, the grantee must conduct the other components of the National Service Criminal History Check, as described in § 2540.203(b)(2)(i)-(ii) or under an approved ASP.

For example, consider an individual who is applying for an AmeriCorps position with an environmental program that involves volunteer coordination. If the grantee anticipates that the position will involve coordinating high school student volunteers on a regular basis, then the grantee must conduct a fingerprint-based FBI criminal history check on that individual. However, if the grantee has no reason to expect that the position will involve coordinating 17-year-old and younger volunteers because the grantee has never operated in a youth environment, does not have any youth engagement goals, and does not recruit high school aged volunteers, then any contact with a child volunteer would be irregular, unscheduled, unanticipated, and thus, episodic. Therefore, the grantee would not need to conduct a fingerprint-based FBI criminal history check. However, the grantee must conduct the other components of the National Service Criminal History Check, as described in § 2540.203(b)(2)(i)-(ii) or under an approved ASP.

Episodic access is not determined by a specific number. In other words, if a grantee does not anticipate that a member will have access to vulnerable populations, the need to meet the National Service Criminal History Check requirements for individuals in covered positions with access to vulnerable populations would not materialize after a specific number of incidents of access occur, but would once the access becomes regular, scheduled and anticipated. If incidental access becomes unexpectedly regular or frequent, a grantee should re-evaluate its initial determination of episodic access and take appropriate action.

CNCS expects that in the majority of cases, it will be clear whether or not access to vulnerable populations is a regular, scheduled, and anticipated component of an individual's service activities. Nevertheless, CNCS recommends that grantees specifically address contact with vulnerable populations in each position description, service agreement, or similar document describing an individual's service activities.

CNCS will publish on its Web site ( http://www.nationalservice.gov ) those scenarios for which CNCS has approved exemptions for “good cause” from the fingerprint-based FBI criminal history check requirement in § 2540.203(b)(2)(iii). The list of approved “good cause” exemptions may be expanded and codified in future rulemakings.

CNCS will monitor compliance with the rules and requirements associated with National Service Criminal History checks as a material condition of receiving a CNCS grant. An entity's failure to comply may adversely affect the entity's access to grant funds or ability to obtain future funding from CNCS. In addition, an entity jeopardizes its eligibility for reimbursement of costs and hours related to an individual if it fails to perform or properly document the required National Service Criminal History Check.

The table below illustrates what National Service Criminal History Check components are required of individuals serving or working after January 1, 2013.

CNCS published the proposed rule with a 30-day comment period in the Federal Register of July 6, 2011 (76 FR 39361). We received over 150 comments on the proposed rule. Most of the commenters identified themselves as representatives of grantees required to comply with the rule. The most relevant comments and our responses are set forth below.

Comment: The majority of commenters expressed disapproval with the rule's requirement that individuals working with vulnerable populations must submit their fingerprints to the FBI for a national criminal history background check. The commenters disapproved of the requirement because the process for complying with the requirement is time consuming, costly, and logistically challenging for grantees and participants. As a result, the commenters said that the increased administrative and financial burden the requirement imposes on grantees will significantly impact their ability to recruit participants and operate effectively. Additionally, the commenters considered the requirement unnecessarily redundant, as many of the grantees already require individuals to complete several criminal history background checks and that the additional requirement of a fingerprint-based FBI check provides very little new information.

Response: We acknowledge the concerns expressed about the FBI fingerprinting process and the administrative impact the requirement may have on some grantees. We, like all executive agencies, may exercise discretion in issuing rules, but only to the extent discretion is granted to us by law. The law requires individuals working with vulnerable populations to submit their fingerprints to the FBI for a national criminal history check; however, the law also created exceptions to the fingerprint-based FBI criminal history check. Grantees may use the “episodic access” exception without our written approval. The other available exceptions require that you contact our Office of Grants Management for written approval. The procedure for requesting an exception is in 45 CFR 2540.207.

Comment: Several of the comments we received indicated that the cost of the FBI criminal history background check could be a financial burden for the grantee and for the participants and volunteers.

Response: We acknowledge the administrative and financial impact that the fingerprint-based FBI criminal history check could have on grantees. The law created exceptions to the fingerprint-based FBI criminal history check requirement for individuals in covered positions with recurring access to vulnerable populations, one of which is when it is cost-prohibitive for the grantee to comply. Grantees may request written approval of an exception by contacting our Office of Grants Management.

We want to reiterate that unless we grant specific permission in writing, a grantee may not charge an individual for the cost of any component of a National Service Criminal History Check. In the absence of specific written permission, the grantee must not, even when the check returns unfavorable results, require the applicant or participant to ultimately bear the cost of the criminal history check.

Comment: The U.S. Department of Justice, FBI, Criminal Justice Information Systems (CJIS) commented that the final rule did not adequately address the role played by the state central record repositories and requested that CNCS revise the rule to specify that entities must submit fingerprints to the FBI through the state central record repository.

Response: We agree and have amended the rule to reflect the process established by FBI CJIS to process the fingerprint-based FBI criminal history checks required by the SAA. State central record repositories are critical to the infrastructure established by FBI CJIS for the processing of national criminal history background checks. In its October 31, 2011 memorandum to state central record repositories on the implementation of the SAA, FBI CJIS stated that those organizations subject to the SAA (and this final rule) “must contact the state repository in the state of operation to determine if the organization can access national criminal history record information.” In lieu of state statutory provisions, fingerprint-based state and national criminal history checks for CNCS grantees could be authorized by three federal legal authorities: the SAA, the National Child Protection Act, as amended by the Volunteers for Children Act, and Section 153 of the Adam Walsh Act. “Background checks conducted pursuant to the SAA must comply with certain criteria, to include fingerprints submitted via [a state central record repository], designation of a governmental agency to receive and screen the results of the record checks, and non-dissemination of the criminal history record information outside the receiving governmental department or related governmental agencies.”

The FBI CJIS guidance to state repositories stated that “each national service organization must coordinate with the [state central records repository] in the states of program operation/residence to establish procedures for performing state and national criminal history record checks.” The guidance specified further that

The full text of the memorandum is available at http://www.nationalserviceresources.org/files/fbi-memo-to-state-repositories-on-serve-america-act-oct-31-11.pdf.

We believe that our State Commission partners, as well as state Departments on Aging, Child Welfare Agencies, and Education Agencies can be instrumental in engaging the state central record repositories to streamline the National Service Criminal History Check process for national service grantees operating in their states and ensure proper screening of individuals in covered positions and the full implementation of the SAA.

Comment: We received comments regarding the potential discriminatory effects that the use of criminal history checks by grantee organizations may have on individuals' ability to participate in National Service.

Response: The commenters identify an important issue. The use of criminal history records to exclude members and staff from Corporation-funded programs and activities may, in some circumstances, run afoul of federal civil rights laws. Grantees should recognize that they have a dual status under the Civil Rights Act of 1964, depending on the nature of their relationship with an individual. Grantees, as recipients of federal financial assistance, must comply with Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d et seq., and its implementing regulations, 45 CFR 1203.1 et seq., which prohibit discrimination in Corporation-funded programs and activities, including the selection and placement of volunteers and members, on the basis of race, color, and national origin. Grantees, as employers, must also comply with Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., which prohibits discrimination in employment decisions. The Equal Employment Opportunity Commission (EEOC) has issued guidance explaining when consideration of arrest and conviction records violates Title VII. See http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm. As explained in the EEOC guidance, grantees should be mindful that arrests alone are mere allegations, and that actual criminal convictions (where there has been a formal adjudication by a finder of fact), or actual evidence of conduct underlying an arrest, are the relevant indicators of an individual's fitness, or in some cases, eligibility (i.e., murder), to serve with, or work for, a Corporation grantee. Grantees should ensure that their screening practices are narrowly tailored in a manner that complies with these federal nondiscrimination requirements, in addition to applicable state laws governing the consideration of criminal history records.

Grantees also should be mindful that applicants have the right to review and challenge the results of the National Service Criminal History Check. Grantees are required by our regulations to safeguard an individual's personal information and give the individual the opportunity to challenge any adverse findings that result from the National Service Criminal History Check.

Comment: We received comments requesting clarification of when the results of a National Service Criminal History Check make an individual ineligible to serve in a covered position.

Response: The law prohibits an individual from serving in a national service program in four situations: (1) The individual refuses to consent to the criminal history check; (2) the individual makes a false statement in connection with the criminal history check; (3) the individual is registered or required to be registered as a sex offender; or (4) the individual has been convicted of murder as defined by federal law. If the National Service Criminal History Check returns results that implicate criteria other than those above, the grantee has the discretion, subject to any federal civil rights law and state law requirements, to decide whether or not the results of a criminal history background check disqualify an individual from service with the grantee. Grantees should consider the factors set forth in the EEOC's guidance under Title VII ( http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm ), including the nature and gravity of the offense, the time that has passed since the conviction or completion of the sentence, and the nature of the position. Grantees should have written policies on their disqualification criteria and be consistent in how those criteria are applied to all individuals.

In addition, grantees should be aware of federal reentry policy, which seeks to minimize unjustified collateral consequences on formerly incarcerated persons. Participation in national service programs funded by the Corporation could aid the successful reentry of formerly incarcerated persons into society. Therefore, barriers to participation in national service programs for those formerly incarcerated persons who are not statutorily ineligible to serve should be minimized as much as possible without putting program beneficiaries at genuine risk.

Comment: We received comments expressing concern about many grantees' overall level of understanding or ability to interpret the results of a National Service Criminal History Check.

Response: Grantees should be aware that, due to pending cases, state law restrictions, and resource issues, the information contained in databases and reports for criminal histories may be missing certain arrest and disposition information. Accordingly, grantees should obtain training, and implement best practices, in the interpretation and use of criminal records for screening participants and staff. We have required grantees to conduct National Service Criminal History Checks since 2007, and have always required that they treat applicants fairly. We reiterate that the grantee is responsible for obtaining the level of expertise necessary to understand the information received in response to the National Service Criminal History Check and use it in a fair manner that is consistent with our regulations and grant conditions. Information obtained from a National Service Criminal History Check is only one of many sources of information that is available about an individual.

Comment: We received numerous comments on the proposed rule's requirement that National Service Criminal History Checks be repeated on individuals who serve consecutive terms of service with the same grantee when the break in service exceeds 30 days. The comments suggested that in view of the time it takes to complete the newly-required fingerprint-based FBI criminal background check, a 30-day break in service requirement imposes an additional administrative burden on seasonal or academic-year programs or projects.

Response: We agree with the commenters. The FBI fingerprint check takes longer than the process established under our 2007 rule and the SAA expands the number of individuals in covered positions. Balancing the administrative burden on grantees with the importance of proper screening, we determined that a longer break in service period is not unreasonable. Accordingly, the final rule reflects our decision to require that the National Service Criminal History Check be repeated if an individual's break in service exceeds 120 days, and also allows grantees to request approval for a longer break in service than 120 days, as long as the break does not exceed 180 days. The request must describe the program's design, explain why the longer period is required, and demonstrate the establishment of adequate risk management controls for the extended break in service. We want to clarify that consecutive terms of service requires that the individual serves another term with the same grantee. Checks performed by one grantee on an individual may not be transferred to another grantee. When an individual begins service with a new grantee, that grantee is responsible for conducting a new National Service Criminal History Check. Because the NSOPW is a free and widely-available resource, we encourage grantees with program designs where breaks in service are anticipated to conduct a new nationwide NSOPW check after a break in service of any duration.

Comment: We received comments seeking clarification about the status of individuals in covered positions who conducted the appropriate National Service Criminal History Check components when they began work or started service prior to April 21, 2011.

Response: The National Service Criminal History Check components of this rule apply to individuals in covered positions who begin work, or who start service, on or after, April 21, 2011. Grantees are responsible for ensuring that those individuals who began work, or who started service, prior to, April 21, 2011, conducted the appropriate National Service Criminal History Check components required by the regulation that was in effect prior to that date. If individuals in covered positions who began work, or who started service prior to, April 21, 2011, subsequently have a break in service that exceeds 120 days, or begins work or service with a different grantee, they must have a Check required by this final rule. If an individual serves consecutive terms of service in a covered position and does not have a break in service that exceeds 120 days, then no additional National Service Criminal History Check is required as long as the original check is a compliant check for the covered position in which the individual will be serving or working following the break in service.

Comment: We received numerous comments on the requirement that individuals working with vulnerable populations be accompanied while the components of their National Service Criminal History Check have been submitted, but not yet returned. Commenters suggested that we clarify what we mean by “accompaniment” and how to document it.

Response: The purpose of the National Service Criminal History Check is to screen out those individuals who may pose a risk to the population being served. Accompaniment requires that an individual for whom the National Service Criminal History Check components are pending be, at all times, in the physical presence of (1) an authorized grantee representative who has been previously cleared for such access; (2) a family member or legal guardian of the vulnerable individual; or (3) an individual authorized by the nature of his or her profession to have recurring access to the vulnerable individual, such as an education or medical professional. Accompaniment provides grantees with the opportunity to place participants in service positions before the criminal history background check is complete. Supervision is insufficient because it doesn't provide the immediate oversight that would mitigate risk of a participant's improper conduct sought to be avoided by the National Service Criminal History Check. We have updated the rule to reflect more accurately our intent that accompaniment means that the individual must be in the physical presence of the accompanying individual.

The Office of Grants Management will issue guidance to grantees prior to the effective date of this final rule on how to document compliance with the accompaniment requirements.

Comment: We also received comments requesting clarification on how to apply the rule to individuals who reach the age of 18 during their service term.

Response: A National Service Criminal History Check is required for individuals who are, or who will reach the age of, 18 or older at any time during their service term. The Check must be conducted in accordance with 2450.204, even if the individual is not yet 18 at the time service or work begins. The final rule reflects this clarification.

Comment: Some comments identified areas in the proposed rule where the distinction between exceptions and alternative search procedures was unclear. Other commenters articulated specific challenges they faced in obtaining the required checks.

Response: Since implementation of the original National Service Criminal History Check rule in 2007, we have evaluated and approved alternative search procedures when grantees submitted a written request for evaluation of a proposed alternative search procedure. This practice will continue under the new rule. The law also gives us the authority to exempt grantees from conducting the fingerprint-based FBI criminal history check required under the new rule for individuals in covered positions with recurring access to vulnerable populations. We acknowledge the confusion in the wording of the proposed rule. We have revised the final rule so that the requirements and procedures are clear.

With respect to the comments we received regarding particular challenges grantees face under the new rule, we cannot address those here. Grantees with individual challenges that they believe will justify an exception from § 2540.203(b)(2)(iii) should contact our Office of Grants Management or their Program Officer.

Comment: We received comments requesting clarification of the “episodic access” exception from the fingerprint-based FBI criminal history background check requirement for individuals with recurring access to vulnerable populations.

Response: A grantee does not need our approval to use the “episodic access” exception to the fingerprint-based FBI criminal history check requirement described in § 2540.203(b)(2)(iii). This is a self-determination grantees will make using the guidance in this notice. We will continue to monitor grantees for compliance with the criminal history background check requirement, including reliance on the episodic access exception.

Comment: CNCS received comments indicating that the proposed rule was unclear as to when approval from CNCS is required for individuals in covered positions with recurring access to vulnerable populations to be excepted from the fingerprint-based FBI criminal history check.

Response: The final rule has been restructured with new headings to indicate clearly when CNCS approval is required. In the case of episodic access, grantees are responsible for using their best judgment to determine whether or not an individual's access to vulnerable populations is episodic. Approval from the CNCS Office of Grants Management is not required. However, reliance on the self-determined exception for “episodic access” will be monitored by CNCS as a material grant condition.

Comment: We received numerous comments expressing concern about our ability to process requests for alternative search procedure approval and fingerprint-based FBI criminal history check exceptions in a timely manner and what grantees should do while their requests are pending.

Response: The Office of Grants Management is prepared to process requests from grantees in a prompt manner. This function may not be delegated to a grantee, such as a State Commission. However, a State Commission may request approval for an alternative search procedure applicable to individual sub-grantees, or to all of their sub-grantees, if applicable. While results of the National Service Criminal History Check are pending, individuals in covered positions with recurring access to vulnerable populations must be accompanied. The final rule and preamble have been updated to clarify this requirement.

This final rule becomes effective January 1, 2013. However, the special rule for individuals in covered positions with recurring access to vulnerable populations will only apply to the selection of individuals in covered positions who began work or who started service with a grantee on, or after, April 21, 2011. Notwithstanding this date, grantees will have until January 1, 2013 to initiate the fingerprint-based FBI criminal history check or the state registr(ies) check(s), whichever has not already been initiated, for individuals in covered positions with recurring access to vulnerable populations. A grantee must be certain that it has already satisfied the requirement to conduct an NSOPW check on all individuals who are currently serving or working in covered positions.

Because of the significant period of time between April 21, 2011, and the effective date of the regulation, CNCS has determined that, as a blanket good cause exception implemented by section 2540.207(b)(2) of this final rule, an individual in a covered position with recurring access to vulnerable populations who began work or who started service with a grantee on or after April 21, 2011, and then departed the program or project before January 1, 2013, must have complied with the rule effective on October 1, 2009 (i.e. had a Check that included the NSOPW component and either the State Criminal History registr(ies) component OR the fingerprint-based FBI national criminal history background check component, but not BOTH the State Criminal History registr(ies) component AND the fingerprint-based FBI national criminal history background check component).

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

As required by the Regulatory Flexibility Act of 1980 (5 U.S.C. 605 (b)), the Corporation certifies that this rule, if adopted, will not have a significant economic impact on a substantial number of small entities. This regulatory action will not result in (1) an annual effect on the economy of $100 million or more; (2) a major increase in costs or prices for consumers, individual industries, federal, state, or local government agencies, or geographic regions; or (3) significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets. Therefore, CNCS has not performed the initial regulatory flexibility analysis that is required under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) for major rules that are expected to have such results.

For purposes of Title II of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531-1538, as well as Executive Order 12875, this regulatory action does not contain any Federal mandate that may result in increased expenditures in either federal, state, local, or tribal governments in the aggregate, or impose an annual burden exceeding $100 million on the private sector.

In accordance with section 3507(j) of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.), the recordkeeping requirements included in this final rule have been submitted for emergency approval to the Office of Management and Budget (OMB). Due to an oversight, the Paperwork Reduction Act information was not included in the proposed rule and CNCS is requesting a short-term emergency clearance (OMB Control Number 3045-0145). In order to fairly evaluate whether a recordkeeping requirement should be approved by OMB, section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 requires that we solicit comment on the following issues:

• The need for the recordkeeping requirement and its usefulness in carrying out the proper functions of our agency.

• The accuracy of our estimate of the information collection burden.

• The quality, utility, and clarity of the information to be collected.

• Recommendations to minimize the information collection burden on the affected public, including automated collection techniques.

Under a separate notice, we will solicit public comment on each of these issues for the following sections of this document that contain recordkeeping requirements: 2540.205, .206.

Executive Order 13132, Federalism, prohibits an agency from publishing any rule that has Federalism implications if the rule either imposes substantial direct compliance costs on State and local governments and is not required by statute, or the rule preempts State law, unless the agency meets the consultation and funding requirements of section 6 of the Executive Order. The proposed rule does not have any Federalism implications, as described above.

For the reasons stated in the preamble, the Corporation for National and Community Service proposes to amend chapter XXV, title 45 of the Code of Federal Regulations as follows:

This is a synopsis of the Commission's Order, Termination of Certain Proceedings as Dormant, document DA 12-1545, adopted September 27, 2012 and released on September 27, 2012, in CG Docket No. 12-39. On June 3, 2011, the Commission sought comment on whether certain listed docketed Commission proceedings should be terminated as dormant. See 76 FR 35892, June 20, 2011. On September 30, 2011, in a subsequent action, the Commission terminated, as dormant, certain docketed Commission proceedings. See 76 FR 70902, November 16, 2011. On February 15, 2012, the Commission sought comment on whether additional docketed Commission proceedings should be terminated as dormant. See 77 FR 13322, March 6, 2012. The full text of document DA 12-1545 and copies of any subsequently filed documents in this matter will be available for public inspection and copying during regular business hours at the FCC Reference Information Center, Portals II, 445 12th Street SW., Room CY-A257, Washington, DC 20554. Document DA 12-1545 and copies of subsequently filed documents in this matter may also be purchased from the Commission's duplicating contractor, Best Copying and Printing, Inc. (BCPI), at Portals II, 445 12th Street SW., Room CY-B402, Washington, DC 20554. Customers may contact BCPI at its Web site, www.bcpiweb.com, or by calling (202) 488-5300. Document DA 12-1545 can also be downloaded in Word or Portable Document Format (PDF) at: http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-12-1545A1.doc, or http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-12-1545A1.pdf.

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).

This document does not contain information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any 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. On February 4, 2011, the Commission released Amendment of Certain of the Commission's Part 1 Rules of Practice and Procedure and Part 0 Rules of Commission Organization, Report and Order, FCC 11-16, in CG Docket No. 11-44, published at 76 FR 24383, May 2, 2011 (Procedure Order), which revised portions of its Part 1—Practice and Procedures and Part 0—Organizational rules. The amendment of § 0.141 of the Commission's organizational rules delegated authority to the Chief, CGB to conduct periodic review of all open dockets with the objective of terminating those that were inactive. The Commission stated that termination of such proceedings also will include the dismissal as moot of any pending petition, motion, or other request for relief in the terminated proceeding that is procedural in nature or otherwise does not address the merits of the proceeding. On February 15, 2012, the Commission released Termination of Certain Proceedings as Dormant, Public Notice, DA 12-220, CG Docket No. 12-39, published at 77 FR 13322, March 6, 2011 ( Termination Public Notice ), which identified those dockets that could potentially be terminated and provided interested parties the opportunity to file comments on these proposed terminations. Based upon CGB's review of the two comments received in response to the Termination Public Notice, and for the reasons given below, CGB hereby terminates the proceedings that are listed in the Attachment to DA 12-1545, which were previously listed in DA 12-220. See http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-12-220A1.doc.

2. CGB received two comments requesting that particular proceedings noted in the Termination Public Notice remain open. Based upon CGB's review of these comments, for the reasons noted below, CGB rejects the request of the New Jersey Broadcasters Association (NJBA) to retain RM-11099. Based on the request of the Office of Communication of the United Church of Christ, Inc., National Hispanic Media Coalition, Campaign Legal Center, Media Access Project, Benton Foundation, and Free Press (collectively, UCC), and our further evaluation, MB Docket No. 05-6 will remain open and will not be terminated at this time. On our own motion as described below, CGB has also determined not to terminate two additional proceedings listed in the Termination Public Notice.

3. NJBA asks that we maintain as active RM-11099, which had been initiated by the May 27, 2004 filing of NJBA's Petition entitled “In the Matter of the Commissions' Rules to Protect New Jersey Listeners from FM Translator and Low Power FM 100 Watt Interference.” As acknowledged by NJBA, materials in both its Petition and its Comments relate to the LPFM and FM translator services. On March 19, 2012, the Commission released a Fifth Report and Order and Fourth Further Notice of Proposed Rulemaking in MM Docket No. 99-25, published at 77 FR 20756, April 6, 2012, a proceeding that relates specifically to those services. Given the common subject matter, the materials in the proceeding that the NJBA seeks to keep open are applicable to and may be filed again in ongoing MM Docket No. 99-25. For this reason, CGB denies NJBA's request to keep RM-11099 open.

4. The UCC requests that the Commission keep open MB Docket No. 05-6. Although the Termination Public Notice proposed closing this proceeding, based upon both the UCC's comments and CGB's additional evaluation, we find that further action in the proceeding, which proposes modification of the Commission's rules to make more clear broadcasters' public notice of the proposed sale of their stations, may be required. Accordingly, CGB will not terminate the proceeding at this time.

5. As a final matter, although the Termination Public Notice proposed closing Rules and Policies Concerning Attribution of Joint Sales Agreements In Local Television Markets (MB Docket No. 04-256) and 1998 Biennial Regulatory Review—Review of Accounts Settlement in the Maritime Mobile and Mobile-Satellite Radio Services (IB Docket No. 98-96), upon further sua sponte evaluation, CGB finds that further action may also be necessary in these docketed proceedings. Accordingly, CGB will not terminate these proceedings at this time. In addition, the Media Bureau has concluded that the termination of the proceeding Retention by Broadcasters of Program Recordings (MB Docket No. 04-232) will not affect the Commission's authority to initiate enforcement actions, as it deems appropriate, and accordingly CGB terminates that proceeding as dormant.

6. The Commission's action does not require notice and comment and is not subject to the Regulatory Flexibility Act of 1980, as amended. See 5 U.S.C. 601(2), 603(a). The Commission nonetheless notes that it anticipates that the rules adopted will not have a significant economic impact on a substantial number of small entities. As described above, the Commission primarily changes its own internal procedures and organizations and does not impose substantive new responsibilities on regulated entities. There is no reason to believe termination of certain dormant proceedings would impose significant costs on parties to Commission proceedings. To the contrary, the Commission takes the actions herein with the expectation that overall they will make dealings with the Commission quicker, easier, and less costly for entities of all size.

The Commission will not send a copy of document DA 12-1545 pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A) because the Commission is not adopting, amending, revising, or deleting any rules.

Pursuant to sections 1, 4(i), and 4(j), of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), and (j) and § 0.141 of the Commission rules, the proceedings listed in the Attachment to DA 12-1545, which can be downloaded in Word or Portable Document Format (PDF) at: http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-12-1545A1.doc or http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-12-1545A1.pdf, are terminated.

The Pipeline and Hazardous Materials Safety Administration (PHMSA) annually reviews the Hazardous Materials Regulations (HMR; 49 CFR Parts 171-180) to identify typographical errors, outdated addresses or other contact information, and similar errors. In this final rule, we are correcting typographical errors, incorrect Code of Federal Regulations (CFR) references and citations, inconsistent use of terminology, misstatements of certain regulatory requirements, and inadvertent omissions of information. Because these amendments do not impose new requirements, notice and public comment are unnecessary. By making these amendments effective without the customary 30-day delay following publication, the changes will appear in the next published revision of the 49 CFR.

The following is a section-by-section summary of the minor editorial corrections and clarifications made in this final rule.

This section describes the standards in 49 U.S.C. 5125 for determining preemption of a State, local, or Indian tribe requirement applicable to the transportation of hazardous material. Paragraph 5125(b)(1)(D) was recently amended in the “Moving Ahead for Progress in the 21st Century” (MAP-21) Act (Pub. L. 112-141 § 33006(d), 126 Stat. 835, July 6, 2012) which added the words “other written hazardous materials transportation incident reporting involving State or local emergency responders in the initial response to the incident.” Because this additional language simply sets forth the wording of the Federal hazardous material transportation law, it is considered an editorial change.

Section 171.7, paragraph (a), lists materials incorporated by reference into the HMR. In paragraph (a)(3), the tensile strength of “1100” MPa for the entries “ISO 9809-1,” and “ISO 9809-2,” has an unnecessary space and reads “1 100.” We are removing this additional space in this final rule.

Section 171.8 provides definitions and abbreviations used throughout the HMR. We are making two revisions to this section.

The spelling of the entry for “Containership” is amended by revising the word to read “Container ship.” Although both spellings are correct, we are revising the spelling for consistency throughout the HMR, which should aid in HMR searches. This is an editorial change that does not impact any statements, shipping papers, et cetera.

The last sentence of the definition for “Hazardous material” reads in part, “and materials that meet the defining criteria for hazard classes and divisions in part 173 of subchapter C of this chapter.” For clarification and consistency with other sections in the HMR, we are revising the sentence to read “and materials that meet the defining criteria for hazard classes and divisions in part 173 of this subchapter.”

This section contains the Hazardous Materials Table (HMT) and explanatory text for each of the columns in the HMT. A final rule published on January 19, 2011 [76 FR 3308] under Docket PHMSA 2009-0126 (HM-215K) entitled “Hazardous Materials: Harmonization with the United Nations Recommendations, International Maritime Dangerous Goods Code, and the International Civil Aviation Organization Technical Instructions for the Safe Transport of Dangerous Goods by Air,” revised the § 172.101(c)(10)(i) instruction for the proper shipping name description of a mixture or a solution of a single predominant hazardous material under certain conditions. Currently, § 172.101(c)(10)(ii) states that if one or more of the conditions in § 172.101(c)(10)(i) is satisfied, a proper shipping name shall be selected as prescribed in § 172.101(c)(12)(ii). For clarification, in this final rule, we are correcting the citation so that the sentence reads “that if one or more of the conditions in § 172.101(c)(10)(i)(A) through(F) is satisfied, the proper shipping name selection process in § 172.101(c)(12)(ii) must be used.”

In the HMT, Special Provision B37 is erroneously applied to Column (7) for the Packing Group I entry of “Cyanide solutions, n.o.s.,” UN1935. Special Provision B37 once applied to “Nitric oxide, compressed,” but does not address or apply to cyanide solutions. Therefore, in this final rule, Special Provision B37 is being removed from Column (7) of the HMT for “Cyanide solutions, n.o.s.,” UN1935. (Also, see § 172.102.)

In a final rule published on March 5, 1999 [64 FR 10742] under Docket Number RSPA-98-4185 (HM-215C) entitled “Harmonization with the United Nations Recommendations, International Maritime Dangerous Goods Code, and International Civil Aviation Organization's Technical Instructions,” a plus (+) sign was added to Column (1) of the HMT for the entry “Aminophenols ( o-; m-; p- ),” UN2512. During the printing process, the isomers were inadvertently changed from Italic font to Roman font. In this final rule, we are correcting the font to Italic. Words in italics are not part of the proper shipping name, but may be used in addition to the proper shipping name.

This section prescribes the special provisions assigned to § 172.101 HMT entries. Special provisions with a “B” code apply to bulk packagings. Special provisions with an “N” code apply to non-bulk packagings. Aside from the entry “Cyanide solutions, n.o.s,” UN1935, the Special Provisions B37, B50, B60, and N72 are not assigned to any entries in the HMT and are being removed from § 172.102 in this final rule. In addition, Special Provision B37 is being removed from the entry, “Cyanide solutions, n.o.s,” UN1935 (see preamble discussion under “§ 172.101, The Hazardous Materials Table”). For background information on the “B” and “N” codes being removed, the following is provided:

Special Provision B37 required that the amount of nitric oxide charged into any tank car tank not exceed 1,379 kPa (200 psig) at 21 °C (70 °F).

Special Provision B50 required that, when transported in a multi-unit tank car tank, each valve outlet of a multi-unit tank car tank was to be sealed by a threaded solid plug or a threaded cap with inert luting or gasket material. Valves were to be stainless steel and the caps, plugs, and valve seats were to be of a material that would not deteriorate as a result of contact with the lading.

Special Provision B60 authorized certain entries in the HMT to be transported in DOT Specification 106A500X multi-unit tank car tanks that were not equipped with a pressure relief device of any type. For the transportation of phosgene, the outage was required to be sufficient to prevent tanks from becoming liquid full at 55 °C (130 °F).

Special Provision N72 required that packagings used to transport the material for certain entries in the HMT were to be examined by the Bureau of Explosives and approved by the Associate Administrator.

This section prescribes requirements for the shipper's certification. In paragraph (a)(2), the spelling of the word “labelled” is revised to read “labeled.” Although both spellings are correct, we are revising this spelling for consistency throughout the HMR. It should be noted that this is merely an editorial change and does not invalidate certification statements that have the “labelled” spelling.

This section prescribes the placarding requirements for a bulk packaging containing a hazardous material as specified for the material in §§ 172.504 and 172.505. In paragraph (c)(4), as amended under a final rule published on July 20, 2011 [76 FR 43510] under Docket PHMSA-2009-0151 (HM-218F) entitled “Hazardous Materials: Miscellaneous Amendments,” we are correcting two errors that occurred during the printing process of this section. In this final rule, we are adding the wording “white square-on-point” for consistency with the identification number marking requirements under § 172.332, and making an editorial and punctuation correction at the end of the sentence to return the paragraph (c) exceptions to an “and” clause. Prior to the July 20, 2011 rulemaking, if any of the five conditions specified in paragraph (c) were satisfied, the labeling alternative to placarding was authorized. Changes under HM-218F made this less clear.

This section prescribes the exceptions for the shipment of waste materials. In paragraphs (b)(2)(ii)(B) and (b)(2)(ii)(C), the unit conversions of 3 mils and 6 mils to inches is corrected in this final rule from “0.12 inches” and “0.24 inches” to read “0.003 inches” and “0.006 inches,” respectively.

This section prescribes the requirements for hazardous materials in intermediate bulk containers (IBCs). Paragraph (h)(2) was revised in a final rule published on February 2, 2010 [75 FR 5376] under Docket PHMSA-06-25736 (HM-231) entitled “Hazardous Materials; Miscellaneous Packaging Amendments.” The revision in that rule corrected an error in the pressure limitation for metal IBC's. During the printing process, paragraph (h) introductory text was inadvertently omitted and its intended subparagraphs were mistakenly added to paragraph (g). We are correcting these errors in this rulemaking. The subparagraphs mistakenly added to paragraph (g) are reinserted into paragraph (h) and paragraph (g) will again stand alone as intended and submitted to the Federal Register .

This section prescribes the definitions and exceptions for Class 6, Division 6.2 hazardous materials. In § 173.134, the last paragraph addressing transitional provisions was inadvertently alphanumerically numbered with a “(c),” which mistakenly duplicates another alphanumerical number in this section. This oversight is corrected in this final rule by renumbering the paragraph as “(e).” We will remove this paragraph in a future rulemaking. However, until that time, it will remain in the HMR as an informational paragraph to state that the authorization for the continued use of the criteria for packing group assignments in effect on December 31, 2006 ended on January 1, 2012.

This section prescribes the exceptions for non-spillable batteries. In this final rule, we are clarifying the introductory text for § 173.159a(c) that the exception from the packaging requirements in § 173.159 does not include an exception from the vibration and pressure differential tests in § 173.159(f) for determination of a wet battery as non-spillable. Specifically, we are revising the wording to read “non-spillable batteries, as determined in accordance with § 173.159(f) of this subpart, are excepted from the packaging requirements of § 173.159 under the following conditions:”

This section prescribes the requirements for cryogenic liquids in tank cars. We are revising paragraph (a)(3) to update the email address and telephone number for the shipper to contact the Federal Railroad Administration whenever a tank car containing any flammable cryogenic liquid is not received by the consignee within 20 days from the date of shipment.

This section contains the table of A 1 and A 2 values for radionuclides. The entry for “Sm-147” contains a printing error. In the seventh column for specific activity in TBq/g, the value is missing a “0” in the exponent. We are correcting “8.5 × 10 − 1 ” to read “8.5 × 10 − 10 .”

This section specifies the separation distance requirements for packages containing Class 7 (radioactive) materials in cargo aircraft. In the first column of the § 175.702(a)(2)(ii) table heading, a typographical error is corrected by revising “of predesignated area” to read “or predesignated area.”

This section prescribes requirements for Specification 3AL seamless aluminum cylinders. Paragraph (k) addresses the duties of the inspector. In § 178.46(k)(2), the reference to performance or verification of ultrasonic inspection requirements is corrected from paragraph “(c)” to read “(b)(5).”

This section specifies procedures for the approval of United Nations (UN) pressure receptacles. In paragraph (e)(5), we are revising the incorrect reference to “§ 178.72” to correctly read “§ 178.71.”

This section prescribes specifications for United Nations (UN) pressure receptacles. In paragraphs (g)(1), (g)(2) and (k)(1)(i), the reference to the tensile strength of “1100” has an unnecessary space and incorrectly reads “1 100.” In this final rule, we are removing this additional space.

This section prescribes specifications for Multiple Element Gas Containers (MEGCs). In paragraphs (d)(3)(i) and (d)(3)(ii), the reference to the tensile strength of “1100” has an unnecessary space and incorrectly reads “1 100.” In this final rule, we are removing this additional space.

This section prescribes requirements for the marking of non-bulk performance-oriented packagings. Paragraph (e)(1) was revised under a final rule published on February 2, 2010 [75 FR 5376] under Docket PHMSA-06-25736 (HM-231) and again under a final rule published on September 30, 2010 [75 FR 60333] under Docket PHMSA-06-25736 (HM-231) both entitled “Hazardous Materials: Miscellaneous Packaging Amendments.” The revisions in these rules provided detailed requirements for the marking of the United Nations symbol on performance-oriented packaging. During the printing process, paragraph (d) was mistakenly printed with the subparagraphs intended for paragraph (e), and the introductory text for paragraph (e) was omitted altogether. The result was that this section skipped from paragraph (d) directly to paragraph (f). Under this final rule, we are revising the paragraphs with the correct numbering as intended and submitted to the Federal Register . Specifically, paragraph (d) is a stand-alone paragraph without the subparagraphs intended for paragraph (e). The paragraph (e) introductory text is reinserted, and the subparagraphs mistakenly printed under paragraph (d) are relocated to their correct position as subparagraphs to paragraph (e).

This section prescribes the general requirements for the testing of non-bulk packagings and packages. The term “different packaging” is defined in paragraph (c)(4). Paragraph (c)(4)(v) of the definition excludes packagings which differ only in a lesser design height from the category of a “different packaging.” For purposes of clarification, we are revising the paragraph to link the exclusion to the authorized packaging variations that allow a packaging to be manufactured at a lesser design height by adding a reference to the variations in paragraph (g)(3) for single packaging, and to (g)(4) for combination packaging.

Appendix B to Part 179 prescribes procedures for simulated pool and torch-fire testing. Paragraphs 2.a.(1) and 3.a.(1) are revised by correcting an erroneous mathematical calculation. This correction should improve compliance by clarifying the conversion factors.

This final rule is published under authority of 49 U.S.C. 5103(b), which authorizes the Secretary of Transportation to prescribe regulations for the safe transportation, including security, of hazardous material in intrastate, interstate, and foreign commerce. The purpose of this final rule is to remove unnecessary cross references to the HMT, correct grammatical and typographical errors, and, in response to requests for clarification, improve the clarity of certain provisions in the HMT.

This final rule is not considered a significant regulatory action under section 3(f) of Executive Order 12866 and, therefore, was not reviewed by the Office of Management and Budget. This rule is not significant under the Regulatory Policies and Procedures of the Department of Transportation (44 FR 11034). Additionally, E.O. 13563 supplements and reaffirms E.O. 12866, stressing that, to the extent permitted by law, an agency rulemaking action must be based on benefits that justify its costs, impose the least burden, consider cumulative burdens, maximize benefits, use performance objectives, and assess available alternatives. This final rule does not impose new or revised requirements for hazardous materials shippers or carriers; therefore, it is not necessary to prepare a regulatory impact analysis.

This final rule has been analyzed in accordance with the principles and criteria in Executive Order 13132 (“Federalism”). This final rule does not adopt any regulation that: (1) Has substantial direct effects on the states, the relationship between the national government and the states, or the distribution of power and responsibilities among the various levels of government; or (2) imposes substantial direct compliance costs on state and local governments. PHMSA is not aware of any state, local, or Indian tribe requirements that would be preempted by correcting editorial errors and making minor regulatory changes. This final rule does not have sufficient federalism impacts to warrant the preparation of a federalism assessment.

This final rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13175 (“Consultation and Coordination with Indian Tribal Governments”). Because this final rule does not have tribal implications, does not impose substantial direct compliance costs on Indian tribal governments, and does not preempt tribal law, the funding and consultation requirements of Executive Order 13175 do not apply, and a tribal summary impact statement is not required.

This final rule will not have a significant economic impact on a substantial number of small entities. This rule makes minor editorial changes which will not impose any new requirements on persons subject to the HMR; thus, there are no direct or indirect adverse economic impacts for small units of government, businesses, or other organizations.

Executive Order 13563 is supplemental to and reaffirms the principles, structures, and definitions governing regulatory review that were established in Executive Order 12866 Regulatory Planning and Review of September 30, 1993. In addition, Executive Order 13563 specifically requires agencies to: (1) Involve the public in the regulatory process; (2) promote simplification and harmonization through interagency coordination; (3) identify and consider regulatory approaches that reduce burden and maintain flexibility; (4) ensure the objectivity of any scientific or technological information used to support regulatory action; consider how to best promote retrospective analysis to modify, streamline, expand, or repeal existing rules that are outmoded, ineffective, insufficient, or excessively burdensome.

A complete review of the existing HMR led to the identification of various minor errors in the HMR. The errors identified have no effect on the intent or meaning of the regulations. The correction of these errors will clarify current text while maintaining the intent of the regulations affected. This final rule is designed to address those errors by making non-substantive changes to the HMR such as editorial changes, spelling corrections, removal of transitional requirements that are no longer applicable and formatting modifications. This final rule corrects these errors but does not require the application of Executive Order 13563. The final rule does however clarify the regulatory text thus improving the regulations.

This rule does not impose unfunded mandates under the Unfunded Mandates Reform Act of 1995. It does not result in costs of $141.3 million or more to either state, local, or tribal governments, in the aggregate, or to the private sector, and is the least burdensome alternative that achieves the objectives of the rule.

There are no new information collection requirements in this final rule.

The National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321-4347), and implementing regulations by the Council on Environmental Quality (40 CFR part 1500) require Federal agencies to consider the consequences of Federal actions and prepare a detailed statement on actions that significantly affect the quality of the human environment.

The purpose of this rulemaking is to correct editorial errors, makes minor regulatory changes and, in response to requests for clarification, improves the clarity of certain provisions in the HMR. The intended effect of this rule is to enhance the accuracy and reduce misunderstandings of the regulations. The amendments contained in this rule are non-substantive changes and do not impose new requirements. Therefore, PHMSA has determined that the implementation of this final rule will not have any significant impact on the quality of the human environment.

A regulation identifier number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN number contained in the heading of this document can be used to cross-reference this action with the Unified Agenda.

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

In consideration of the foregoing, 49 CFR chapter I is amended as follows:

The snapper-grouper fishery of the South Atlantic is managed under the Fishery Management Plan for the Snapper-Grouper Fishery of the South Atlantic Region (FMP), and black sea bass is a species contained in that FMP. The FMP was prepared by the South Atlantic Fishery Management Council (Council) and is implemented under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622. NMFS published a temporary rule to delay the start of the 2012-2013 fishing season for the commercial sector of black sea bass from June 1, 2012 to July 1, 2012 (77 FR 28305, May 14, 2012). The commercial ACL (commercial quota) for black sea bass in the South Atlantic is 309,000 lb (140,160 kg), gutted weight, for the current fishing year (July 1, 2012, through May 31, 2013) as specified in 50 CFR 622.42(e)(5).

Black sea bass are managed throughout their range. In the South Atlantic EEZ, black sea bass are managed under the FMP by the Council from 35°15.19′ N. lat., the latitude of Cape Hatteras Light, North Carolina, south to the boundary between the South Atlantic and Gulf of Mexico (Gulf) Councils, off of Key West, Florida. The boundary between the South Atlantic and Gulf Councils coincides with the line of demarcation between the Atlantic Ocean and the Gulf, which begins at the intersection of the outer boundary of the EEZ, as specified in the Magnuson-Stevens Act, and 83°00′ W. long., proceeds northward along that meridian to 24°35′ N. lat., (near the Dry Tortugas Islands), thence eastward along that parallel, through Rebecca Shoal and the Quicksand Shoal, to the Marquesas Keys, and then through the Florida Keys to the mainland at the eastern end of Florida Bay, the line so running that the narrow waters within the Dry Tortugas Islands, the Marquesas Keys and the Florida Keys, and between the Florida Keys and the mainland, are within the Gulf. From Cape Hatteras Light, North Carolina, through Maine, black sea bass are managed jointly by the Mid-Atlantic Fishery Management Council and the Atlantic States Marine Fisheries Commission. Therefore, the closure provisions contained in this notice are applicable to those vessels harvesting or possessing black sea bass from Cape Hatteras Light, North Carolina, through to the boundary between the South Atlantic and Gulf Councils (off of Key West, Florida), as described above.

The AM at 50 CFR 622.49(b)(5)(i) requires NMFS to close the commercial sector for black sea bass when the ACL (quota) is reached, or is projected to be reached, by filing a notification to that effect with the Office of the Federal Register. Also, under 50 CFR 622.43(a), NMFS is required to close the commercial sector for a species or species group when the quota for that species or species group is reached, or is projected to be reached, by filing a notification to that effect with the Office of the Federal Register. Based on the best scientific information available, NMFS has determined that the available commercial ACL (commercial quota) of 309,000 lb (140,160 kg), gutted weight, for black sea bass will be reached on or before October 8, 2012. Accordingly, NMFS is implementing an AM to close the commercial sector for black sea bass in the South Atlantic EEZ at 12:01 a.m., local time, on October 8, 2012 from 35°15.19′ N. lat., the latitude of Cape Hatteras Light, North Carolina, south to the boundary between the South Atlantic and Gulf Councils, as previously described in this temporary rule. The commercial sector for black sea bass will remain closed until 12:01 a.m., local time, on June 1, 2013. The operator of a vessel with a valid commercial vessel permit for snapper-grouper having black sea bass onboard must have landed and bartered, traded, or sold such black sea bass prior to 12:01 a.m., local time, October 8, 2012.

During the closure, the bag limit and possession limits specified in 50 CFR 622.39(d)(1)(vii) and (d)(2), respectively, apply to all harvest or possession of black sea bass in or from the South Atlantic EEZ, and the sale or purchase of black sea bass taken from the EEZ is prohibited. The prohibition on sale or purchase does not apply to sale or purchase of black sea bass that were harvested, landed ashore, and sold prior to 12:01 a.m., local time, October 8, 2012, and held in cold storage by a dealer or processor. For a person on board a vessel for which a Federal commercial or charter vessel/headboat permit for the South Atlantic snapper-grouper fishery has been issued, the sale and purchase provisions of the commercial closure for black sea bass would apply regardless of whether the fish were harvested in state or Federal waters, as specified in 50 CFR 622.43(a)(5)(ii).

This action responds to the best scientific information available. The Assistant Administrator for Fisheries, NOAA (AA), finds that the need to immediately implement this action to close the commercial sector to the harvest of black sea bass constitutes good cause to waive the requirements to provide prior notice and opportunity for public comment pursuant to the authority set forth in 5 U.S.C. 553(b)(B), as such procedures would be unnecessary and contrary to the public interest. Such procedures would be unnecessary because the regulations have already been subject to notice and comment, and all that remains is to notify the public of the closure.

Additionally, allowing prior notice and opportunity for public comment is contrary to the public interest because of the need to immediately implement this action to protect the black sea bass stock because it is subject to overfishing and the capacity of the fishing fleet allows for rapid harvest of the commercial ACL (commercial quota). Prior notice and opportunity for public comment would require time and would potentially result in a harvest well in excess of the established commercial ACL (commercial quota), which would impede the rebuilding of the stock by the end of the rebuilding period set at 2016.

For the aforementioned reasons, the AA also finds good cause to waive the 30-day delay in effectiveness of the action under 5 U.S.C. 553(d)(3).

This action is taken under 50 CFR 622.43(a) and is exempt from review under Executive Order 12866.

The fishery for coastal migratory pelagic fish (king mackerel, Spanish mackerel, and cobia) is managed under the Fishery Management Plan for the Coastal Migratory Pelagic Resources of the Gulf of Mexico and South Atlantic (FMP). The FMP was prepared by the Gulf of Mexico and South Atlantic Fishery Management Councils (Councils) and is implemented under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.

On April 27, 2000, NMFS implemented the final rule (65 FR 16336, March 28, 2000) that divided the Gulf migratory group king mackerel's Florida west coast subzone of the Gulf eastern zone into northern and southern subzones, and established their separate quotas. The Florida west coast subzone is that part of the eastern zone located south and west of 25°20.4′ N. lat. (a line directly east from the Miami-Dade/Monroe County, FL boundary) along the west coast of Florida to 87°31.1′ W. long. (a line directly south from the Alabama/Florida boundary). The Florida west coast subzone is further divided into northern and southern subzones. The northern subzone is that part of the Florida west coast subzone that is between 26°19.8′ N. lat. (a line directly west from the Lee/Collier County, FL boundary) and 87°31.1′ W. long. (a line directly south from the Alabama/Florida boundary).

The commercial ACL (commercial quota) for the Gulf migratory group king mackerel in the northern Florida west coast subzone is 197,064 lb (89,397 kg) (50 CFR 622.42(c)(1)(i)(A)( 2 )( ii )), for the current fishing year, July 1, 2012, through June 30, 2013.

Because 75 percent of the northern Florida west coast subzone's quota had been harvested, NMFS published a temporary rule on August 30, 2012, to reduce the trip limit for the commercial sector of king mackerel in the northern Florida west coast subzone to 500 lb (227 kg) of king mackerel per day in or from the EEZ (77 FR 52623).

Regulations at 50 CFR 622.49(h)(1)(i) and 50 CFR 622.43(a)(3) require NMFS to close the commercial sector for Gulf migratory group king mackerel in the northern Florida west coast subzone when the ACL (quota) is reached, or is projected to be reached, by filing a notification to that effect with the Office of the Federal Register. Based on the best scientific information available, NMFS has determined the commercial ACL (commercial quota) of 197,064 lb (89,397 kg) for Gulf migratory group king mackerel in the northern Florida west coast subzone will be reached by October 5, 2012. Accordingly, the northern Florida west coast subzone is closed effective noon, local time, October 5, 2012, through June 30, 2013, the end of the fishing year, to commercial fishing for Gulf migratory group king mackerel.

Except for a person aboard a charter vessel or headboat, during the closure, no person aboard a vessel for which a commercial permit for king mackerel has been issued may fish for or retain Gulf group king mackerel in the EEZ in the closed zones or subzones. A person aboard a vessel that has a valid charter vessel/headboat permit for coastal migratory pelagic fish may continue to retain king mackerel in or from the closed zones or subzones under the bag and possession limits set forth in 50 CFR 622.39(c)(1)(ii) and (c)(2), provided the vessel is operating as a charter vessel or headboat. A charter vessel or headboat that also has a commercial king mackerel permit is considered to be operating as a charter vessel or headboat when it carries a passenger who pays a fee or when there are more than three persons aboard, including operator and crew.

During the closure, king mackerel from the closed zone, including those harvested under the bag and possession limits, may not be purchased or sold. This prohibition does not apply to trade in king mackerel from the closed zones or subzones that were harvested, landed ashore, and sold prior to the closure and were held in cold storage by a dealer or processor.

This action responds to the best scientific information available. The Assistant Administrator for Fisheries, NOAA (AA), finds that the need to immediately implement this action to close the Florida west coast subzone to commercial king mackerel fishing constitutes good cause to waive the requirements to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) because prior notice and opportunity for public comment is unnecessary and contrary to the public interest. Prior notice and public comment is unnecessary because the rule implementing the commercial ACL (commercial quota) and the associated requirement for closure of the commercial harvest when the ACL (quota) is reached or projected to be reached has already been subject to notice and comment, and all that remains is to notify the public of the closure.

Additionally, allowing prior notice and opportunity for public comment is contrary to the public interest because of the need to immediately implement this action to protect the king mackerel resource because the capacity of the fishing fleet allows for rapid harvest of the quota. Prior notice and opportunity for public comment would require time and would potentially result in a harvest well in excess of the established quota.

For the aforementioned reasons, the AA also finds good cause to waive the 30-day delay in the effectiveness of this action under 5 U.S.C. 553(d)(3).

This action is taken under 50 CFR 622.43(a) and is exempt from review under Executive Order 12866.