RNAV route T-240 extends between the Bettles, AK, VHF omnidirectional range/distance measuring equipment (VOR/DME) navigation aid and the Deadhorse, AK, VOR/DME. The route description currently includes the “NAMRE” waypoint. The FAA determined that NAMRE is no longer required for air traffic control purposes and has deleted NAMRE from the NASR database.

This action amends Title 14 Code of Federal Regulations (14 CFR) part 71 by amending the legal description of RNAV route T-240 in Alaska to remove the NAMRE waypoint. The NAMRE waypoint is no longer required for air traffic control purposes and has been deleted from the NASR database. The removal of NAMRE does not affect the alignment or use of T-240. In addition, this action updates the description of T-240 by adding the names of the navigation aids that form the route. This standardizes the format for RNAV route descriptions in FAA Order 7400.9.

Since this action merely involves editorial changes to the legal description of RNAV route T-240, and does not involve a change in the dimensions or operating requirements of the affected route, I find that notice and public procedures under 5 U.S.C. 553(b) are unnecessary.

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.

This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it revises the legal description of an RNAV route to maintain currency.

United States Area Navigation Routes are published in paragraph 6011 of FAA Order 7400.9W, dated August 8, 2012, and effective September 15, 2012, which is incorporated by reference in 14 CFR 71.1. The RNAV route listed in this document will be published subsequently in the Order.

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

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

RNAV routes Q-42 and Q-480 both include the waypoint “BTRIX” in their descriptions. Q-480 also includes a waypoint named “BEETS.” With the extensive use of the routes in recent months, air traffic control facilities have identified a problem whereby “BTRIX” is being confused with “BEETS.” To eliminate any chance of confusion and enhance safety, the FAA is changing the name “BTRIX” to “MIKYG” in the descriptions of Q-42 and Q-480. This action is a name change only. The geographic position of the waypoint is not changing and the current alignments of Q-42 and Q-480 are not affected.

In addition, the geographic coordinates for the “BEETS” waypoint, in the description of Q-480, are changed from “lat. 39°57′20″ N., long. 77°26′59″ W.,” to “lat. 39°57′21″ N., long. 77°27′00″ W.” This is a minor change by adding one second of latitude and one second of longitude due to more accurate plotting of the point. This change does not alter the alignment of Q-480.

This action amends Title 14 Code of Federal Regulations (14 CFR) part 71 by changing the name of one waypoint in the descriptions of RNAV routes Q-42 and Q-480 from “BTRIX” to “MIKYG.” In addition, a minor increase of one second of latitude and one second of longitude is made to the coordinates of the BEETS waypoint in Q-480.

Since this action involves only editorial changes to the legal descriptions of RNAV routes and does not change the dimensions or operating requirements of the affected routes, notice and public procedures under 5 U.S.C. 553(b) are unnecessary.

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.

This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it updates the legal descriptions of RNAV routes to avoid the use of similar sounding waypoint names.

United States Area Navigation Routes are published in paragraph 2006 of FAA Order 7400.9W, dated August 8, 2012, and effective September 15, 2012, which is incorporated by reference in 14 CFR 71.1. The RNAV routes listed in this document will be published subsequently in the Order.

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

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

History

On July 5, 2012, the FAA published in the Federal Register a notice of proposed rulemaking (NPRM) to establish Class E airspace extending upward from 700 feet above the surface at Swinton Smith Field at Reidsville Municipal Airport, Reidsville, GA, to accommodate the separation of existing Class E airspace surrounding Vidalia Regional Airport, Vidalia, GA, (77 FR 39653) Docket No. FAA-2012-0385. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received. Geographic coordinates for both airports also are adjusted.

Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9W dated August 8, 2012, and effective September 15, 2012, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 establishes Class E airspace extending upward from 700 feet above the surface at Swinton Smith Field at Reidsville Municipal Airport, formerly Reidsville Airport, Reidsville, GA, and amends Class E airspace at Vidalia, Regional Airport, formerly Vidalia Municipal Airport, Vidalia, GA, to provide the controlled airspace required to accommodate the separation of existing Class E airspace surrounding Vidalia Regional Airport. Geographic coordinates for both airport are adjusted to be in concert with the FAAs aeronautical database. This action is necessary for the safety and management of IFR operations at the airport.

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.

This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it establishes controlled airspace surrounding Swinton Smith Field at Reidsville Municipal Airport, Reidsville, GA and amends controlled airspace at Vidalia Regional Airport, Vidalia, GA.

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

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

This amendment to part 95 of the Federal Aviation Regulations (14 CFR part 95) amends, suspends, or revokes IFR altitudes governing the operation of all aircraft in flight over a specified route or any portion of that route, as well as the changeover points (COPs) for Federal airways, jet routes, or direct routes as prescribed in part 95.

The specified IFR altitudes, when used in conjunction with the prescribed changeover points for those routes, ensure navigation aid coverage that is adequate for safe flight operations and free of frequency interference. The reasons and circumstances that create the need for this amendment involve matters of flight safety and operational efficiency in the National Airspace System, are related to published aeronautical charts that are essential to the user, and provide for the safe and efficient use of the navigable airspace. In addition, those various reasons or circumstances require making this amendment effective before the next scheduled charting and publication date of the flight information to assure its timely availability to the user. The effective date of this amendment reflects those considerations. In view of the close and immediate relationship between these regulatory changes and safety in air commerce, I find that notice and public procedure before adopting this amendment are impracticable and contrary to the public interest and that good cause exists for making the amendment effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, pursuant to the authority delegated to me by the Administrator, part 95 of the Federal Aviation Regulations (14 CFR part 95) is amended as follows effective at 0901 UTC, July 26, 2012.

The Librarian of Congress, upon the recommendation of the Register of Copyrights, has determined that the prohibition against circumvention of technological measures that effectively control access to copyrighted works shall not apply to persons who engage in noninfringing uses of certain classes of works. This rulemaking is the culmination of a proceeding initiated by the Register on September 29, 2011. A more comprehensive statement of the background and legal requirements of the rulemaking, a discussion of the record, and the Register's analysis are set forth in the Register's Recommendation, which was transmitted to the Librarian on October 12, 2012. A copy of the Recommendation may be found at www.copyright.gov/1201/. This notice summarizes the Register's Recommendation, announces the Librarian's determination, and publishes the regulatory text codifying the exempted classes of works.

The Digital Millennium Copyright Act (“DMCA”) was enacted to implement certain provisions of the WIPO Copyright Treaty and WIPO Performances and Phonograms Treaty. It established a wide range of rules for the digital marketplace that govern not only copyright owners, but also consumers, manufacturers, distributors, libraries, educators, and online service providers.

Chapter 12 of Title 17 of the United States Code prohibits the circumvention of certain technological measures employed by or on behalf of copyright owners to protect their works (“technological measures” or “access controls”). Specifically, Section 1201(a)(1)(A) provides, in part, that “[n]o person shall circumvent a technological measure that effectively controls access to a work protected” by the Copyright Act. In order to ensure that the public will have the continued ability to engage in noninfringing uses of copyrighted works, however, subparagraph (B) limits this prohibition. It provides that the prohibition shall not apply to persons who are users of a copyrighted work in a particular class of works if such persons are, or in the succeeding three-year period are likely to be, adversely affected by virtue of the prohibition in their ability to make noninfringing uses of such works, as determined in this rulemaking proceeding.

The proceeding is conducted by the Register of Copyrights, who is to provide notice of the proceeding, seek comments from the public, consult with the Assistant Secretary for Communications and Information of the Department of Commerce, and recommend final regulations to the Librarian of Congress. According to Section 1201(a)(1)(D), the resulting regulations, which are issued by the Librarian of Congress, announce “any class of copyrighted works for which the Librarian has determined, pursuant to the rulemaking * * * that noninfringing uses by persons who are users of a copyrighted work are, or are likely to be, adversely affected, and the prohibition contained in subparagraph (A) shall not apply to such users with respect to such class of works for the ensuing 3-year period.”

The primary responsibility of the Register and the Librarian in this rulemaking proceeding is to assess whether the implementation of access control measures is diminishing the ability of individuals to use copyrighted works in ways that are not infringing and to designate any classes of works with respect to which users have been adversely affected in their ability to make such noninfringing uses. Congress intended that the Register solicit input that would enable consideration of a broad range of current or likely future adverse impacts. Section 1201(a)(1)(C) directs that the rulemaking proceeding examine: (1) The availability for use of copyrighted works; (2) the availability for use of works for nonprofit archival, preservation, and educational purposes; (3) the impact that the prohibition on the circumvention of technological measures applied to copyrighted works has on criticism, comment, news reporting, teaching, scholarship, or research; (4) the effect of circumvention of technological measures on the market for or value of copyrighted works; and (5) such other factors as the Librarian considers appropriate. These statutory factors require the Register and Librarian to balance carefully the availability of copyrighted works for use, the effect of the prohibition on particular uses, and the effect of circumvention on copyrighted works.

In examining the factors set forth in Section 1201(a)(1)(C), the focus is on whether the implementation of technological measures has an adverse impact on the ability of users to make lawful uses of copyrighted works. The statutory prohibition on circumvention is presumed to apply to any and all kinds of works unless, and until, the criteria have been met for a particular class.

In each rulemaking proceeding, the Register and Librarian review the proposed classes de novo. The fact that a class previously has been designated creates no presumption that redesignation is appropriate. While in some cases earlier legal analysis by the Register may be relevant to analyzing a proposed exemption, the proponent of a class must still make a persuasive factual showing with respect to the three-year period currently under consideration. When a class has been previously designated, however, evidence relating to the costs, benefits, and marketplace effects ensuing from the earlier designation may be relevant in assessing whether a similar class should be designated for the subsequent period.

Proponents of an exemption for a class of works bear the burden of demonstrating that the exemption is warranted. In order to establish a prima facie case for designation of a particular class of works, the proponent must show that: (1) Uses affected by the prohibition on circumvention are or are likely to be noninfringing; and (2) as a result of a technological measure controlling access to a copyrighted work, the prohibition is causing, or in the next three years is likely to cause, a substantial adverse impact on those uses.

There are several types of noninfringing uses that could be affected by the prohibition of Section 1201(a)(1), including fair use and the use of public domain works, among others. A proponent must show that the proposed use is or is likely noninfringing. It is not sufficient that the use could be noninfringing, as the Register does not apply a “rule of doubt” when it is unclear whether a proposed use is likely to be fair or otherwise noninfringing.

A proponent may not rely on speculation to support a proposed class, but instead must show by a preponderance of evidence that the alleged harm to noninfringing uses is more likely than not to occur during the next three years. The harm must be distinct and measurable, and more than de minimis. The Register and Librarian will, when appropriate, consider whether alternatives exist to accomplish the proposed noninfringing uses. The mere fact that a particular medium or technology may be more convenient for noninfringing uses than other formats is generally insufficient to support an exemption. If sufficient alternatives exist, there is no substantial adverse impact or adequate basis to designate the class.

The starting point in defining a “particular class” of works to be designated as a result of the rulemaking is one of the categories of works set forth in Section 102 of the Copyright Act, such as literary works, musical works, or sound recordings. Those categories are only a starting point, however; a “class” will generally constitute some subset of a Section 102 category. The determination of the appropriate scope of a class of works recommended for exemption will also depend on the evidentiary record and take into account the adverse impact on noninfringing uses, as well as the market for and value of the copyrighted works.

While beginning with a category of works identified in Section 102, or a subcategory thereof, the description of the “particular class” ordinarily will be refined with reference to other factors so that the scope of the class is proportionate to the scope of harm to noninfringing uses. For example, a class might be refined in part by reference to the medium on which the works are distributed, or to the access control measures applied to the works. The description of a class of works may also be refined, in appropriate cases, by reference to the type of user who may take advantage of the exemption or the type of use that may be made pursuant to the designation. The class must be properly tailored to address not only the demonstrated harm, but also to limit the adverse consequences that may result from the exemption to the prohibition on circumvention. In every case, the contours of a class will depend on the factual record established in the rulemaking proceeding.

This is the fifth triennial rulemaking proceeding pursuant to Section 1201(a)(1)(C). The Register initiated the rulemaking on September 29, 2011 (76 FR 60398) with publication of a Notice of Inquiry (“NOI”). The NOI requested written comments from all interested parties, including representatives of copyright owners, educational institutions, libraries and archives, scholars, researchers, and members of the public, concerning whether noninfringing uses of certain classes of works are, or are likely to be, adversely affected by the prohibition against circumvention of measures that control access to copyrighted works.

During the initial comment period that ended on December 1, 2011, the Copyright Office received 22 comments, all of which were posted on the Office's Web site. Based on these comments, the Register identified proposed exemptions for the upcoming period. Because some of the initial comments contained similar or overlapping proposals, the Copyright Office organized the proposals into ten proposed classes of works, and set forth and summarized each class in a Notice of Proposed Rulemaking (“NPRM”) published on December 20, 2011 (76 FR 78866).

The NPRM did not present the initial classes in the form of a proposed rule, but merely as “a starting point for further consideration.” The NPRM asked interested parties to submit additional comments and reply comments providing support, opposition, clarification, or correction regarding the proposed classes of works, and to provide factual and/or legal arguments in support of their positions. The Copyright Office received a total of 674 comments before the comment period closed on February 10, 2012. The Office also received 18 reply comments before the reply comment period closed on March 2, 2012.

On March 15, 2012, the Register published a Notice indicating that public hearings would be conducted at the University of California, UCLA School of Law, in California, and at the Library of Congress in Washington, DC, in May and June 2012 to consider the proposed exemptions. Requests to testify were due April 2, 2012. Public hearings were held on five separate days: at the Library of Congress on May 11, 2012; at University of California, Los Angeles, School of Law on May 17, 2012; and at the Library of Congress on May 31, June 4, and June 5, 2012. Witnesses representing proponents and opponents of proposed classes of works offered testimony and answered questions from Copyright Office staff.

Following the hearings, the Copyright Office sent follow-up questions pertaining to certain issues to witnesses who had testified. The purpose of these written inquiries was to clarify for the record certain statements made during the hearings and to elicit further responses to questions raised at the hearings.

As contemplated by Congress, the Register also sought input from the Assistant Secretary for Communications and Information of the Department of Commerce, who oversees the National Telecommunications and Information Administration (“NTIA”). NTIA staff were briefed on the rulemaking process and informed of developments through a series of meetings and telephone conferences. They also were in attendance at many of the hearings.

NTIA formally communicated its views on the proposed classes in a letter delivered to the Register on September 21, 2012.

Upon the recommendation of the Register of Copyrights, the Librarian has determined that the following classes of works shall be exempt from the prohibition against circumvention of technological measures set forth in Section 1201(a)(1)(A):

This exemption is a modification of the proponents' proposal. It permits the circumvention of literary works that are distributed electronically to allow blind and other persons with disabilities to obtain books through the open market and use screen readers and other assistive technologies to read them, regardless of whether an accessible copy may be available for purchase, but provided the author, publisher, or other rights owner receives remuneration, as appropriate. It also permits authorized entities operating under Section 121 to use such works and ensures that such use conforms to the provisions and safeguards of that section.

Proponents American Council of the Blind and American Foundation for the Blind, supported by The Samuelson-Glushko Technology Law & Policy Clinic at the University of Colorado Law School, sought an exemption to access literary works that are distributed electronically— i.e., ebooks—that are legally obtained by individuals who are blind or print disabled but cannot be used with screen readers or other assistive technologies. In 2006 and 2010, the Librarian designated a class consisting of “[l]iterary works distributed in ebook format when all existing ebook editions of the work (including digital text editions made available by authorized entities) contain access controls that prevent the enabling either of the book's read-aloud function or of screen readers that render the text into a specialized format.” See 37 CFR 201.40(b)(6). In this proceeding, proponents sought to eliminate the requirement that all existing ebook editions contain access controls, but at the same time proposed to limit the exemption to individuals with print disabilities as defined by Section 121 of the Copyright Act and to authorized entities under Section 121 distributing works exclusively to such persons.

Proponents asserted that the exception is necessary because technological measures to control access to copyrighted works have been developed and deployed in ways that prevent access to ebooks by people who are blind or visually impaired. Proponents explained that, despite the rapid growth of the ebook market, most ebook titles remain inaccessible due to fragmentation within the industry and differing technical standards and accessibility capabilities across platforms. Although precise figures remain elusive, press accounts cited by the proponents suggest that only a fraction of the publicly available ebooks are accessible; proponents estimated that there are approximately 1.8 million inaccessible ebook titles. Proponents cited an example, The Mill River Recluse by Darcie Chan, ebook editions of which are available in each of the three major ebook stores. Only the iBookstore edition is accessible, however. An individual with a print disability would thus be required to have an iPhone, iPad, or other Apple device in order to access the book.

Joint Creators and Copyright Owners, consisting of the Association of American Publishers, the American Society of Media Photographers, the Business Software Alliance, the Entertainment Software Association, the Motion Picture Association of America, the Picture Archive Council of America, and the Recording Industry Association of America (“Joint Creators”), representing various content owner groups, offered no objection in principle to an exemption such as that promulgated in 2010. They observed that the market is evolving rapidly and that the market share of the major electronic book platforms had increased substantially since the last rulemaking. However, they opposed elimination of the requirement in the existing exemption that all ebook formats contain access controls before the exemption could be invoked.

When the Register was first called upon to consider an exemption for ebooks in 2003, the marketplace was very different. At that time, ebooks were distributed primarily for use on personal computers (“PCs”), readable with freely available software, and the public's reception of ebooks was tentative. Today, ebooks are marketed mainly for use on mobile devices, ranging from dedicated ebook readers using proprietary software ( e.g., Amazon's Kindle) to multipurpose devices running free software applications ( e.g., an Apple iPad running Amazon's Kindle app). Nonetheless, there are often substantial costs associated with owning dedicated reading devices, and there are inefficiencies associated with having to own more than one such device. The restrictions recommended by the Register in prior rulemakings are therefore not reflective of the current market conditions.

The Register determined that the statutory factors of Section 1201(a)(1)(C) strongly favor an exempted class to address the adverse effects that were established in the record. The designated class is not merely a matter of convenience, but is instead intended to enable individuals who are blind or visually impaired to have meaningful access to the same content that individuals without such impairments are able to perceive. As proponents explained, their desire is simply to be able to access lawfully acquired content. In short, the exemption is designed to permit effective access to a rapidly growing array of ebook content by a population that would otherwise go without.

NTIA also indicated its support for the adoption of an exemption, noting that “[r]equiring visually impaired Americans to invest hundreds of dollars in an additional device (or even multiple additional devices), particularly when an already-owned device is technically capable of rendering literary works accessible, is not a reasonable alternative to circumvention * * *.”

Explaining that literary works are distributed electronically in a wide range of formats, not all of which are necessarily widely understood to constitute “ebooks,” NTIA noted that it preferred the more general term “literary works, distributed electronically.”

At the hearing, proponents confirmed that it was not their intent to create a situation where publishers are not getting paid for their works, and that the author or publisher should be compensated for the price of the mainstream book available to the general public. Thus, the first prong of the designated class permits circumvention by blind or other persons with disabilities, effectively ensuring that they have access through the open market, while also ensuring that rights owners receive appropriate remuneration.

The second prong of the proposal (the part that would extend the exemption to authorized entities) is a new consideration; it has not been the subject of a prior Section 1201 rulemaking and proponents did not provide extensive analysis. Nonetheless, the Register found that the proposal was supported by relevant evidence and thus recommended that authorized entities should enjoy an exemption to the extent required to carry out their work under Section 121. The Register recommended some modifications to the proposal as written to ensure that it is consistent with, but not an enlargement of, Section 121. In relevant part, Section 121 permits qualified “authorized entities” to reproduce and distribute nondramatic literary works provided the resulting copies are in “specialized formats exclusively for use by blind or other persons with disabilities.”

In her recommendation, the Register noted that several provisions in Section 121 appear ill-suited to the digital world and could benefit from comprehensive review by Congress. Section 121 was enacted in 1996 following careful consideration of the public interest, including the interests of persons with disabilities and the interest of authors and other copyright owners. The issues relating to digital uses are complex and deserving of consideration beyond what can be accomplished in this proceeding.

This exemption is a modification of the proponents' proposal. It permits the circumvention of computer programs on mobile phones to enable interoperability of non-vendor-approved software applications (often referred to as “jailbreaking”), but does not apply to tablets—as had been requested by proponents—because the record did not support it.

Proponent Electronic Frontier Foundation (“EFF”), joined by New America Foundation's Open Technology Initiative, New Media Rights, Mozilla Corporation (“Mozilla”), and the Free Software Foundation (“FSF”), as well as several hundred individual supporters, sought an exemption to permit the circumvention of access controls on wireless devices so that the devices can be used with non-vendor-approved software that is lawfully acquired. In 2010, the Register recommended, and the Librarian designated, a class that permitted circumvention of technological measures on certain telephone handsets known as “smartphones.” In recommending that class, the Register found that many such phones are protected by access controls, that proponents' intended use—to render certain lawfully acquired applications interoperable with the handset's software—was fair, and that the access controls adversely affected that use. The Register also found that the statutory factors prescribed by 17 U.S.C. 1201(a)(1)(C) weighed in favor of granting the exemption.

In this proceeding, proponents urged an expanded version of the class designated in 2010, citing dramatic growth in the mobile phone market, along with continued widespread use of technological measures to prevent users from installing unauthorized applications on such phones. They proposed that the exemption be extended to include “tablets,” such as Apple's iPad, which, in EFF's words, have “enjoyed similar radical popularity over the past two years.”

EFF asserted that courts have long found copying and modification to enable device interoperability noninfringing under the doctrine of fair use. It further noted that the Register concluded in the 2010 rulemaking that jailbreaking was a fair use, and maintained that nothing in the factual or legal record since the last proceeding suggested that a change in this position was warranted.

EFF also asserted that the last three years have seen dramatic growth in the adoption of smartphones and tablets as consumers increasingly shift from traditional personal computers to mobile devices. EFF argued that the technological restrictions on phones and tablets have an adverse effect on consumer choice and competition. Specifically, it noted that Apple, whose devices “refuse to run any unapproved third-party software,” has strict rules about the type of programs approved for sale through its “App Store,” the only authorized source of iPhone and iPad applications. EFF further asserted that although Android-based devices are generally less restricted than Apple devices, most still employ technological measures to block functionality and prevent the installation of certain types of software. EFF urged the Register to consider that such technological measures are not intended to protect the copyrighted firmware, but instead to promote anticompetitive business practices.

Joint Creators asserted that the proposed exemption is unnecessary and beyond the scope of the rulemaking because Section 1201(f) of the Copyright Act already defines “the contours of acceptable circumvention related to interoperability.” Specifically, Joint Creators argued that the proponents have not established that Section 1201(f) does not already permit the conduct in which proponents seek to engage and, “if it were established that Congress chose not to include the conduct at issue within [Section] 1201(f),” then proponents have failed to establish that the Librarian has the authority to upset that decision through this proceeding. The Register concluded that it was unclear, at best, whether Section 1201(f) applies in this circumstance, so she proceeded to analyze the merits of the proposed exemption.

Joint Creators did not directly challenge EFF's fair use analysis but instead took issue with the Register's previous fair use finding. In reviewing the fair use question, the Register noted that the factual record with respect to fair use was substantially the same as it was in 2010 and that there had been no significant developments in pertinent case law that would cause the Register to reevaluate the analytical framework applied in 2010. The purpose and character of the use is noncommercial and personal so that individual owners of smartphones may use them for the purpose for which they were intended. The nature of the copyrighted work—firmware—remains the same as it was in 2010, and it remains true that one engaged in jailbreaking need only modify the functional aspects of the firmware, which may or may not be subject to copyright protection. Those engaged in jailbreaking use only that which is necessary to engage in the activity, which is often de minimis, rendering the third factor potentially unfavorable, but nevertheless of minimal consequence. With respect to market harm, notwithstanding the earlier exemption, the proliferation of smartphones has increased since the last rulemaking, suggesting that the fourth factor favored a fair use finding even more than it did in 2010.

The Register found that proponents had established that the prohibition is adversely affecting, and is likely to continue to have an adverse impact on, certain uses of mobile devices in which the firmware, a copyrightable work, is protected by technological measures. The evidence in the record indicated that smartphones have been widely adopted and that consumer acceptance of such devices will continue to increase in the future. Nonetheless, the vast majority of mobile phones sold today contain technological measures that restrict users' ability to install unauthorized applications.

The Register determined that the statutory factors weighed in favor of a renewed exemption for smartphones, as nothing in the record suggested that the market for mobile phones had been negatively impacted by the designation of such a class and, in fact, such a class might make smartphones more attractive to consumers. While Joint Creators raised concerns about pirated applications that are able to run on jailbroken devices, the record did not demonstrate any significant relationship between jailbreaking and piracy.

On the other hand, the Register concluded that the record did not support an extension of the exemption to “tablet” devices. The Register found significant merit to the opposition's concerns that this aspect of the proposed class was broad and ill-defined, as a wide range of devices might be considered “tablets,” notwithstanding the significant distinctions among them in terms of the way they operate, their intended purposes, and the nature of the applications they can accommodate. For example, an ebook reading device might be considered a “tablet,” as might a handheld video game device or a laptop computer.

NTIA supported the designation of a class for both smartphones and tablets. Noting the broad support for such an exemption and the numerous noninfringing uses enabled by jailbreaking, NTIA asserted that “the mobile application market has thrived, and continues to do so, despite—and possibly in part because of—the current exemption.” NTIA was persuaded that the proposed class should apply to tablets as well as mobile phones, believing that category to have been sufficiently defined by EFF. As noted, however, the Register determined that the record lacked a sufficient basis to develop an appropriate definition for the “tablet” category of devices, a necessary predicate to extending the exemption beyond smartphones. In future rulemakings, as mobile computing technology evolves, such a definition might be more attainable, but on this record, the Register was unable to recommend the proposed expansion to tablets.

This exemption is a modification of the proponents' proposal. It permits the circumvention of computer programs on mobile phones to enable such mobile phones to connect to alternative networks (often referred to as “unlocking”), but with limited applicability. In order to align the exemption to current market realities, it applies only to mobile phones acquired prior to the effective date of the exemption or within 90 days thereafter.

Proponents Consumers Union, Youghiogheny Communications, LLC, MetroPCS Communications, Inc., and the Competitive Carriers Association, supported by other commenting parties, submitted similar proposals seeking an exemption to permit circumvention to enable wireless devices to interoperate with networks other than the network on which the device was originally used. In 2006, and again in 2010, the Register recommended, and the Librarian designated, a class of works that permitted the circumvention of technological protection measures applied to firmware in wireless handsets for the purpose of switching to an alternative wireless network.

Proponents advanced several theories as to why “unlocking” is a noninfringing use, including that it does not implicate any copyright interests or, if it does, the conduct is permitted under Section 117 of the Copyright Act. In particular, proponents asserted that the owners of mobile phones are also the owners of the copies of the computer programs on those phones and that, as owners, they are entitled to exercise their rights under Section 117, which gives the owner of a copy of a computer program the privilege to make or authorize the making of another copy or adaptation of that computer program under certain circumstances, such as to permit the program to be used on a particular machine.

Proponents noted that “huge numbers” of people have already unlocked their phones under the 2006 and 2010 exemptions and claimed that ending the exemption will lead to higher device prices for consumers, increased electronic waste, higher costs associated with switching service providers, and widespread mobile customer “lock-in.” Although proponents acknowledged that unlocked mobile devices are widely available for purchase, they contended that an exemption is still warranted because some devices sold by carriers are permanently locked and because unlocking policies contain restrictions and may not apply to all of a carrier's devices. Proponents characterized software locks as impediments to a competitive marketplace. They claimed that absent the exemption, consumers would be forced to continue to do business with the carrier that sold the device to the consumer in the first instance, or to discard the device.

CTIA—The Wireless Association (“CTIA”), a trade association comprised of various commercial wireless service providers, objected to the proposals as drafted. Overall, CTIA maintained that an exemption for unlocking is not necessary because “the largest nationwide carriers * * * have liberal, publicly available unlocking policies,” and because unlocked phones are “freely available from third party providers—many at low prices.” Nonetheless, CTIA indicated that its members did not object to a “narrowly tailored and carefully limited exception” to permit individual customers of wireless carriers to unlock phones for the purpose of switching networks.

CTIA explained that the practice of locking cell phones is an essential part of the wireless industry's predominant business model, which involves subsidizing the cost of wireless handsets in exchange for a commitment from the customer that the phone will be used on that carrier's service so that the subsidy can eventually be recouped by the carrier. CTIA alleged that the industry has been plagued by “large scale phone trafficking operations” that buy large quantities of pre-paid phones, unlock them, and resell them in foreign markets where carriers do not subsidize handsets. On the question of noninfringing use, CTIA asserted that the Section 117 privileges do not apply because owners of wireless devices do not necessarily own the software on those devices.

The Register confronted similar arguments about Section 117 in the 2010 proceeding. There, the parties relied primarily upon Krause v. Titleserv, Inc., 402 F.3d 119 (2d Cir. 2005), as the leading authority regarding ownership of computer programs. After reviewing mobile phone agreements introduced in the 2010 proceeding, based on the state of the law at that time, the Register concluded that “[t]he record * * * leads to the conclusion that a substantial portion of mobile phone owners also own the copies of the software on their phones.”

Since the Register rendered her 2010 Recommendation, the case law has evolved. In 2010, the Ninth Circuit issued its decision in Vernor v. Autodesk, Inc., 621 F.3d 1102 (9th Cir. 2010), holding that “a software user is a licensee rather than an owner of a copy where the copyright owner (1) Specifies that the user is granted a license; (2) significantly restricts the user's ability to transfer the software; and (3) imposes notable use restrictions.”

Proponents made only a cursory attempt to respond to Vernor and failed to offer relevant agreements to support their view of software ownership. CTIA, by contrast, cited agreements from several major carriers in an effort to demonstrate that the software on the mobile handsets is licensed, rather than sold, to a phone's owner. Nonetheless, the Register was forced to conclude that the state of the law—and its applicability to mobile phone software—remains indeterminate. Although Vernor and Krause are useful guideposts in considering the status of software ownership, they are controlling precedent in only two circuits and are inconsistent in their approach; whether and how those standards would be applied in other circuits is unknown. Moreover, while CTIA contended that the agreements it offered unequivocally supported a finding that users do not own the software, in reviewing those agreements, the Register believed the question to be a closer call. The Register therefore determined that some subset of wireless customers— i.e., anyone considered to own the software on their phones under applicable precedent—would be entitled to exercise the Section 117 privilege.

The Register further concluded that the record before her supported a finding that, with respect to new wireless handsets, there are ample alternatives to circumvention. That is, the marketplace has evolved such that there is now a wide array of unlocked phone options available to consumers. While it is true that not every wireless device is available unlocked, and wireless carriers' unlocking polices are not free from all restrictions, the record clearly demonstrates that there is a wide range of alternatives from which consumers may choose in order to obtain an unlocked wireless phone. Thus, the Register determined that with respect to newly purchased phones, proponents had not satisfied their burden of showing adverse effects related to a technological protection measure.

However, with respect to “legacy” phones— i.e., used (or perhaps unused) phones previously purchased or otherwise acquired by a consumer—the record pointed to a different conclusion. The record demonstrated that there is significant consumer interest in and demand for using legacy phones on carriers other than the one that originally sold the phone to the consumer. It also supported a finding that owners of legacy phones—especially phones that have not been used on any wireless network for some period of time—may have difficulty obtaining unlocking codes from wireless carriers, in part because an older or expired contract might not require the carrier to cooperate.

Despite the increasing availability of unlocked phones in the marketplace and the trend toward wireless carriers' unlocking phones in certain circumstances, NTIA favored a broader exemption. It asserted that the unlocking policies of most wireless carriers are not reasonable alternatives to circumvention because many such policies apply only to current customers or subscribers, because some carriers will refuse to unlock devices, and because unlocking policies are often contingent upon the carrier's ability to obtain the necessary code. Further, “NTIA does not support the notion that it is an appropriate alternative for a current device owner to be required to purchase another device to switch carriers.”

The Register concluded after a review of the statutory factors that an exemption to the prohibition on circumvention of mobile phone computer programs to permit users to unlock “legacy” phones is both warranted and unlikely to harm the market for such programs. At the same time, in light of carriers' current unlocking policies and the ready availability of new unlocked phones in the marketplace, the record did not support an exemption for newly purchased phones. Looking to precedents in copyright law, the Register recommended that the class designated by the Librarian include a 90-day transitional period to allow unlocking by those who may acquire phones shortly after the new exemption goes into effect.

These related exemptions are modifications of the proponents' proposals. They permit the circumvention of motion pictures contained on DVDs and delivered through online services to permit the use of short portions for purposes of criticism and comment in noncommercial videos, documentary films, nonfiction multimedia ebooks offering film analysis, and for certain educational uses by college and university faculty and students and kindergarten through twelfth grade educators. They also permit the use of screen capture technology to the extent an exemption is necessary under the law. However, the exemptions do not apply to the use of motion picture excerpts in fictional films, as the Register was unable to conclude on the record presented that such use is noninfringing.

Proponents submitted eight proposals requesting the designation of classes to allow the circumvention of lawfully made and acquired motion pictures and audiovisual works protected by various access controls where the user seeks to engage in a noninfringing use. The proposals were comprised of three subgroups:

First, proponents of exemptions for noncommercial videos sought to use clips from motion pictures to create new noncommercial videos, such as remix or mash-up videos, for criticism, comment, and other noninfringing uses. Proponents for these uses included EFF and University of Michigan Library (“UML”), supported by the Organization for Transformative Works. UML's proposal requested an exemption very similar to the Register's 2010 recommended exemption for motion pictures contained on DVDs protected by Content Scrambling System (“CSS”), which encompassed educational uses and documentary filmmaking, in addition to noncommercial videos. However, UML indicated that the exemption should apply not only to motion pictures but to audiovisual works generally. EFF sought to broaden the 2010 exemption by expanding it to include audiovisual works and to include circumvention of motion pictures acquired via online distribution services. It also sought to enlarge the exemption to include not just criticism or comment but any noninfringing use, and to cover “primarily noncommercial videos,” a category that would include videos generating some amount of revenue.

Second, proponents of exemptions for commercial uses by documentary filmmakers, fictional filmmakers, and multimedia ebook authors sought an exemption to use clips from motion pictures to engage in criticism, comment, or other fair uses. Proponents for these uses included International Documentary Association, Kartemquin Educational Films, Inc., National Alliance for Media Arts and Culture, and Independent Filmmaker Project (collectively “Joint Filmmakers”); UML; and Mark Berger, Bobette Buster, Barnet Kellman, and Gene Rosow (collectively “Joint Ebook Authors”). Each of these proposals requested an exemption to circumvent motion pictures or other audiovisual works for use by creators of noninfringing commercial works, namely, documentary films, fictional films, and multimedia ebooks offering film analysis. As noted, UML's proposal largely tracked the exemption recommended by the Register in 2010. Joint Filmmakers' proposal sought to expand the 2010 exemption by adding fictional filmmakers, as well as by extending the exemption to cover any noninfringing use. Joint Filmmakers also sought to include circumvention of Blu-ray discs protected by the Advanced Access Content System (“AACS”) and motion pictures digitally transmitted through protected online services. Joint Ebook Authors' proposal sought the use of short portions of motion pictures for the purpose of multimedia ebook authorship. Like Joint Filmmakers, Joint Ebook Authors indicated that the proposed exemption should not depend on uses that involve criticism or comment but should instead merely require that the use be noninfringing. Joint Ebook Authors also proposed that the exemption include digitally transmitted video in addition to CSS-protected DVDs.

Finally, proponents of exemptions for educational uses sought to use clips from motion pictures for criticism, comment, or other educational purposes by college and university professors and faculty, college and university students, and kindergarten through twelfth grade educators. Proponents for these uses included UML; Library Copyright Alliance (“LCA”); Peter Decherney, Katherine Sender, Michael X. Delli Carpini, International Communication Association, Society for Cinema and Media Studies, and American Association of University Professors (“Joint Educators”); and Media Education Lab at the Harrington School of Communication and Media at the University of Rhode Island (“MEL”). The proposals by UML and LCA requested an exemption similar to the 2010 exemption recommended by the Register for circumvention of CSS-protected DVDs, except that UML sought to broaden it to apply to audiovisual works, as well as to students across all disciplines of study. Joint Educators' proposed exemption sought to enable college and university students, as well as faculty, to use short portions of video, as well as to circumvent AACS-protected Blu-ray discs and digitally transmitted works. Finally, MEL requested an exemption for the circumvention of audiovisual works used for educational purposes by kindergarten through twelfth grade educators.

Because each of the proposals involved the use of clips from motion pictures or audiovisual works, the eight possible exemptions were addressed as a group in the Register's Recommendation. The proposals for exemptions to allow the circumvention of lawfully obtained motion pictures protected by access controls for various commercial, noncommercial, and “primarily noncommercial” purposes shared a unifying feature in that in each case, proponents were seeking an exemption to allow circumvention for the purpose of reproducing short clips to facilitate alleged noninfringing uses. Creators of noncommercial videos sought to use portions of motion pictures to create noninfringing works involving criticism or comment that they asserted were transformative. Documentary filmmakers and multimedia ebook authors sought to reproduce portions of motion pictures in new works offering criticism or commentary. Fictional filmmakers wished to incorporate motion pictures into new films to convey certain messages. Film and media studies professors sought to assemble motion picture excerpts to demonstrate concepts, qualities, and techniques. Other educators sought to reproduce clips of motion pictures to illustrate points for classroom discussion.

Joint Creators and DVD Copy Control Association (“DVD CCA”) opposed the proposals pertaining to noncommercial videos and, more generally, the use of motion pictures contained on CSS-protected DVDs. Joint Creators also opposed the use of motion pictures acquired via online distribution services. Joint Creators questioned whether proponents had met the required statutory burden for an exemption. They urged the Register precisely to analyze the alleged noninfringing uses to determine whether they were, in fact, noninfringing. In addition, they argued that the proposed exemption for circumvention of AACS-protected Blu-ray discs should not be approved.

DVD CCA maintained that none of the examples offered in support of the proposed exemptions for documentary filmmakers, fictional filmmakers, or multimedia ebook authors sufficiently established that CSS is preventing the proposed uses. DVD CCA asserted that there are several alternatives to circumvention, including clip licensing, screen capture software, and video recording via smartphone that would enable proponents affordably and effectively to copy short portions of motion pictures without the requested exemption.

As for educational uses, Joint Creators and DVD CCA did not oppose the granting of an exemption covering circumvention of CSS for a variety of college and university uses involving copying of short portions of motion pictures, but asserted that the exemption should be limited to conduct that is clearly noninfringing and requires high-quality content.

Advanced Access Content System License Administrator (“AACS LA”) generally opposed the requested exemptions as they would apply to AACS-protected Blu-ray discs. It asserted that proponents have failed to make the case that they face substantial adverse effects with respect to content available only on Blu-ray discs.

In reviewing the proposed classes, the Register noted that certain of the proposed exemptions referred to “audiovisual works” as opposed to “motion pictures.” The Register observed that Section 101 defines “motion pictures” as “audiovisual works consisting of a series of related images which, when shown in succession, impart an impression of motion, together with accompanying sounds, if any.” Section 101 defines “audiovisual works” somewhat more broadly, as “works that consist of a series of related images which are intrinsically intended to be shown by the use of machines or devices such as projectors, viewers, or electronic equipment, together with accompanying sounds, if any, regardless of the nature of the material objects, such as films or tapes, in which the works are embodied.” Under the Copyright Act, “motion pictures” are thus a subset (albeit a very large one) of “audiovisual works.” The record for the proposed classes was directed to uses of motion pictures such as movies, television shows, commercials, news, DVD extras, etc., and did not focus on uses of audiovisual works that would fall outside of the Copyright Act's definition of “motion pictures.” Based on the record, the Register found no basis for considering exemptions beyond motion pictures and treated the requested exemptions for “audiovisual works” as requests relating to motion pictures.

The Register determined that proponents of exemptions for noncommercial videos, commercial uses by documentary filmmakers and multimedia ebook authors, and uses in educational contexts had established that a significant number of the proposed uses were for purposes of criticism and commentary. She noted that such uses fall within the favored purposes referenced in the preamble of Section 107 and, especially in light of the brevity of the excerpts used, are likely to be fair uses. More specifically, the Register determined that the proposed uses tended to be transformative in nature, employing short clips for purposes of criticism, comment, teaching, and/or scholarship, rather than for the works' originally intended purpose. Despite the commercial aspect of uses by documentary filmmakers and multimedia ebook authors, the Register noted that when a short excerpt of a motion picture is used for purposes of criticism and comment, even in a commercial context, it may well be a productive use that serves the essential function of fair use as a free speech safeguard. While the Register did not conclude that a court would find each and every one of proponents' examples to be transformative, she did find that the record amply supported the conclusion that a substantial number of the proffered examples likely would be considered transformative fair uses.

The Register also concluded, however, that the same fair use analysis did not apply to fictional filmmakers, at least on the record presented. She noted that fictional films differ from the other categories of use because their purpose is typically for entertainment, rather than for criticism or comment. As the Register explained in her Recommendation, under appropriate circumstances, a use by a fictional filmmaker might well be a fair use. But fictional film proponents merely described their desired uses and did not present concrete examples—such as existing films that made use of preexisting material in a clearly transformative manner—that permitted the Register to make a finding of fair use in this context. The record did not allow a satisfying determination as to the nature of the fictional filmmakers' proposed uses, the amount of the underlying works fictional filmmakers generally sought to use, or whether or how such uses might affect the market for the original works.

In addition, the Register observed that, to the extent discernible from proponents' descriptions, a number of the examples cited did not appear readily to lend themselves to a conclusion that the described use would likely be considered fair. More specifically, the use of an earlier work to flesh out characters or motivations in a new work, or to develop a storyline, as suggested by some of proponents' descriptive examples, does not inherently serve the purpose of criticism or comment on the existing work. The Register therefore concluded, on the record before her, that fictional filmmakers had failed to establish that the uses in which they sought to engage were likely to be noninfringing.

Having determined otherwise with respect to the other proposed categories of use involving criticism and comment, however, the Register proceeded to consider whether there were adequate alternatives to circumvention to accommodate these noninfringing uses.

Opponents pointed to clip licensing, smartphone video recording, and screen capture software as alternatives to achieve the desired uses. The Register found that clip licensing was not a reasonable alternative, as the scope of content offered through reasonably available licensing sources was far from complete. Moreover, requiring a creator who is making fair use of a work to obtain a license is in tension with the Supreme Court's holding in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994), that rightsholders do not have an exclusive right to markets for commentary on or criticism of their copyrighted works.

Nor did smartphone recording appear to be an adequate option, as the evidence indicated that smartphone recordings yielded inferior video and audio quality, and failed to capture the complete image as it was meant to appear on the screen.

In the 2010 proceeding, the Register determined that screen capture technology offered a cost-effective alternative technique to allow reproduction of motion pictures for certain uses. Unlike the last proceeding, where the Register raised screen capture technology as a possible alternative, in the current proceeding it was opponents who pointed to screen capture as a reasonable solution. However, based on the video evidence and commentary from proponents and opponents concerning screen capture technology, the Register determined that the screen capture images, while improved in quality since the last rulemaking, were still of lower quality than those available by circumvention of access controls on motion pictures; they were somewhat diminished in clarity and depth, and could exhibit pixilation.

Concerning screen capture, documentary filmmakers suggested that the lower-quality images generated by this technology were not suitable for the dissemination of their films. The Register found a similar argument persuasive in the previous rulemaking based on certain distribution standards generally requiring that films adhere to specific quality standards that cannot be met by screen capture. Unlike in the last proceeding, however, the Register was not convinced on the present record that the distribution requirements would give rise to significant adverse effects. In this proceeding, the parties explained the standards in greater detail, including the fact that certain accommodations are made by distributors with respect to pre-existing materials.

Nonetheless, the record did support the conclusion that, in some cases, for other reasons, the inability to circumvent to make use of higher-quality material available on DVDs and in protected online formats is likely to impose significant adverse effects on documentary filmmakers, noncommercial video makers, multimedia ebook authors, and certain educational users. Creators of noncommercial videos provided the most extensive record to support the need for higher-quality source material. Based on the video evidence presented, the Register concluded that diminished quality likely would impair the criticism and comment contained in noncommercial videos. For example, the Register was able to perceive that certain noncommercial videos would suffer significantly because of blurring and the loss of detail in characters' expression and sense of depth.

Although the record was not as robust in the case of documentary filmmakers and multimedia ebook authors, it was sufficient to support a similar finding that for certain uses— i.e., when trying to convey a point that depends upon the ability to perceive details or subtleties in a motion picture excerpt—documentary filmmakers and ebook authors would likely suffer adverse effects if they were unable to incorporate higher-quality images. Similarly, educational uses that depend upon close analysis of film or media images might be adversely impacted if students are unable to apprehend the subtle detail or emotional impact of the images they are analyzing. But where precise detail is not required for the particular use in question—for example, where a clip is presented simply to illustrate a historical event—the Register concluded that lower-quality screen capture images appeared adequate to fulfill the noninfringing use.

As an additional concern relating to screen capture technology, proponents maintained that even if the Register acknowledged now, as she did in 2010, that certain types of video capture software are noncircumventing, there is still no assurance that all copyright owners share this view. Proponents observed, for example, that litigation had been instituted over the use of similar methods of acquiring content protected by access controls. In light of the unsettled legal landscape, the Register determined that there is a need for limited exemptions to address the possible circumvention of protected motion pictures when using screen capture technology.

The record also indicated that there is some amount of motion picture material available only on Blu-ray discs, such as bonus material or, more rarely, entire films released exclusively on Blu-ray. However, the cited uses of Blu-ray-exclusive content in the record were insignificant in number. Moreover, with respect to documentary filmmakers in particular, for the reasons discussed above, the Register was not persuaded that Blu-ray content is necessary to meet applicable distribution standards. The Register therefore concluded that the record did not reflect a substantial adverse impact due to the inability to use motion picture materials contained on Blu-ray discs.

Overall, based on the record presented, the Register determined that, when a higher-quality excerpt is essential to a particular use, an exemption to permit circumvention of CSS-protected DVDs and protected online formats is appropriate. For uses where high-quality material is not critical, screen capture technology provides an adequate alternative to circumvention, and an exemption to permit the use of such technology is appropriate.

Looking to the statutory factors, the Register noted in her previous determination that “while CSS-protected DVDs may very well have fostered the digital distribution of motion pictures to the public, there is no credible support for the proposition that the digital distribution of motion pictures continues to depend on the integrity of the general `principle' that the circumvention of CSS is always unlawful.” She found that the record in the current proceeding similarly failed to support a finding that there could be no exemption to the prohibition on circumvention of CSS-protected DVDs. In light of the negative impact the prohibition on circumvention has on favored uses, such as criticism, comment, news reporting, teaching, scholarship, and research, as established in the proceeding, the Register concluded that the statutory factors support appropriately tailored exemptions to facilitate those uses.

NTIA agreed that an appropriate exemption to permit proposed noninfringing uses is necessary because users lack sufficient alternatives to circumvention. It asserted that “generally, the technological alternatives [to circumvention] produce low-quality videos, and associated license agreements often impose significant content limitations on the final work product.” It further noted that clip services are limited in scope and may not meet the needs of all users, and that licensing negotiations are “expensive and burdensome, especially when the licensee seeks to critique the copyrighted work.”

NTIA proposed that the Register recommend a class that encompasses “[m]otion pictures and other similar audiovisual works on DVDs or delivered via Internet Protocol,” asserting that the class should encompass “audiovisual works,” which is broader than “motion pictures.” NTIA also proposed to replace “for the purpose of criticism or comment” with “for the purpose of fair use,” and to expand the applicable circumstances beyond documentary filmmaking to include educational uses by college and university professors and college students, educational uses by kindergarten through twelfth grade educators, primarily noncommercial videos, and nonfictional or educational multimedia ebooks. Citing an inadequate definition of the proposed class of users, and a lack of demonstrated harm, the NTIA did not support an exemption for fictional filmmakers.

While the NTIA's views largely tracked those of the Register's concerning the need to designate appropriate classes, for the reasons discussed above, the Register did not believe that certain of NTIA's proposed expansions were supported by the record.

In explaining her recommended exemptions, the Register emphasized that the use of only short portions or clips was critical to her determination that the proposed uses were noninfringing. She rejected the proposed expansion of the exemption to cover unspecified “noninfringing” or “fair” uses where circumvention is not undertaken for the purpose of criticism or comment as, based on the record, criticism or comment were central to the uses supporting the exemption.

The Register also noted that while there might be additional noninfringing uses by multimedia ebook authors that could support a more broadly conceived exemption, the record in the proceeding supported only an exemption for ebooks offering film analysis.

Further, to the extent proponents for noncommercial videos sought an expanded exemption to cover “primarily noncommercial videos”—as opposed to “noncommercial videos”—they failed to demonstrate that a meaningful number of such uses would qualify as noninfringing; proponents identified only a single video that allegedly fell within this category, because it generated advertising revenue. It was not clear from the record, however, as to why such an example should be considered “primarily noncommercial” as opposed to “primarily commercial.” On the other hand, proponents established a sufficient basis to clarify that the exemption for noncommercial works should include videos created pursuant to a paid commission, provided that the commissioning entity uses the work solely in a noncommercial manner.

With respect to educational uses, the Register found that the record supported a determination that college and university professors and other faculty, as well as students, in film studies and other courses focused on close analysis of media excerpts may sometimes need to reproduce content from CSS-protected DVDs and protected online formats to enable such analysis. Because the recommended exemption is limited to educational activities involving close analysis, there was no basis to limit the exemption only to professors. The Register further determined that non-professor faculty at colleges and universities also should be permitted to take advantage of the exemption when there is a pedagogical need for high-quality source material. In addition, the record supported a finding that instructors of pre-college-level students sometimes engage in close analysis of motion picture excerpts in media-oriented courses and might have a need for high-quality source material.

The Register stressed that prospective users of the recommended exemptions for the use of motion picture excerpts should take care to ensure that they satisfy each requirement of the narrowly tailored exemptions before seeking to operate under their benefits, and consider whether there is an adequate alternative before engaging in circumvention under a recommended exemption. The Register noted that screen capture technology should only be employed when it is reasonably represented, and offered to the public, as enabling the reproduction of motion picture content after such content has been lawfully decrypted—that is, when it is offered as a noncircumventing technology. And, finally, users of the limited exemptions should be prepared to defend their activities in light of the alternatives as they exist at the time of their use of the exemption, including any further innovations in screen capture or other technologies that may produce higher-quality results than were obtainable as of the Register's Recommendation.

This exemption is a modification of the proponents' proposal. It permits the circumvention of motion pictures and other audiovisual works contained on DVDs or delivered through online services to facilitate research and development of players capable of rendering captions and descriptive audio for persons who are blind, visually impaired, deaf, or hard of hearing. The exemption responds to the primary need articulated by proponents in their submissions and at the hearings and one compelled by public policy, namely research and development. With respect to other uses proposed by proponents, the Register was unable to conduct a fair use analysis due to insufficient facts on the record, and, in particular, a lack of clear information regarding how captions and descriptive audio would be created, disseminated, or otherwise made available in connection with the underlying audiovisual work.

Proponents Telecommunications for the Deaf and Hard of Hearing, Inc., Gallaudet University, and the Participatory Culture Foundation proposed that the Register recommend four related classes of works to allow circumvention of technological measures applied to content distributed via the internet and “fixed-disc media” for the purpose of creating, improving, and rendering captions and descriptive audio tracks to enable individuals with disabilities to perceive such works, and for the purpose of conducting research and development on technologies to enable such accessibility. They urged that the prohibition on circumvention has had a “decidedly negative” impact on teaching, scholarship, research, and criticism. They stated that not only does the prohibition stifle the research and development associated with the development of accessible technologies, it also restricts the amount of content that is perceptible by individuals with disabilities.

Although not particularly clear from the proponents' written filings, at the hearing it became apparent that the primary interest was in the development of players capable of merging commercially accessible content with captions and descriptive audio that are created separately, generally by parties other than the copyright owner of the original copyrightable work. Proponents alleged that circumvention was necessary to achieve their objectives because they required access to the “playhead,” that is, the technical timing information embedded in internet-delivered and fixed-disc-based content that would allow proper synchronization of captions and descriptive audio with the underlying video content to which it applied.

Proponents explained that although some of the content in question is already captioned or provides descriptive audio, most does not. They acknowledged that the recently passed Twenty-First Century Communications and Video Accessibility Act (“CVAA”), Public Law 111-260 (codified in scattered sections of 47 U.S.C.), likely will require a substantial amount of digitally distributed programming to be captioned. However, they asserted that the CVAA does not extend to a wide range of content, including that which is distributed exclusively online ( e.g., content that does not appear first on broadcast or cable television). Indeed, in recent rulemaking proceedings under the CVAA, many content producers and distributors asserted that the creation or improvement of captions and descriptive audio is burdensome and would require permission from the copyright owners.

Proponents noted that the motion picture industry separately had asserted that voluntary captioning of a limited amount of programming would require “eight years to phase in.” They further noted that Netflix provides captions or subtitles on fewer than 5,000 of its nearly 12,000 titles. In addition, proponents explained that when such captions do exist, they may be “riddled with errors” or inconsistently formatted, hampering accessibility. With respect to descriptive audio, proponents observed that such tracks may play back at an inappropriate volume.

As for opposition, AACS LA and DVD CCA filed separate but substantially similar comments, taking issue with the proposed exemptions. They argued that the marketplace has evolved and will continue to evolve in such a way that satisfies accessibility needs. AACS LA further asserted that the proposed exemption potentially could harm future growth of the marketplace solutions for accessibility concerns. At the hearings, AACS LA offered a free license to its technology to enable developers to develop compatible implementations to enable accessibility, and it was suggested that DVD CCA would do so as well.

Joint Creators also opposed, similarly asserting that voluntary efforts and regulatory compliance are sufficient marketplace drivers for accessible materials. In addition, they maintained that proponents had failed to meet their burden. In their view, proponents had presented only scattered examples of errors in captions and that such errors are little more than a “mere inconvenience”; they also suggested that the proposed underlying uses might infringe the reproduction, distribution, and adaptation rights of the copyright owners.

Assessing the record in light of the statutory factors, the Register concluded that a limited exemption was appropriate to facilitate the proposed research and development. The Register found that the substantial quantity of inaccessible content, and the likely increase in the amount of content distributed free from any requirement that it be rendered accessible, essentially limits the universe of materials with respect to which individuals with certain disabilities may engage in commentary, criticism, scholarship, and the like. As observed by the Register, the proposal was aimed at allowing the wide range of motion pictures and other audiovisual works that are available to the general population to be accessed and enjoyed by those with disabilities. For such individuals, the exemption represents the difference between having and not having access to works available to everyone else.

The Register determined that the record with respect to research and development was sufficiently clear to support an exemption for those activities. Dr. Christian Vogler of Gallaudet University demonstrated a software development effort aimed at creating a player to combine captions or descriptive audio with commercially available motion picture and audiovisual content. With respect to this project, the Register was able to conclude that the purported use did not implicate the copyrighted content itself, but only certain non-protectable information about the work— i.e., the timecode information accessible through the protected “playhead.” Moreover, the Register found that there did not appear to be any reasonable alternatives to circumvention in order to obtain this information. Although, as noted, AACS LA and DVDCCA had indicated a willingness to offer a free license to those interested in developing accessibility tools for playback devices, the record indicated that no such license was currently in place, and it was unclear whether such a license would come to fruition during the next three years.

The Register found that proponents had demonstrated that there is a wide range of content contained on CSS-protected DVDs and delivered in protected online formats that is inaccessible to individuals with certain disabilities and as to which there is no alternative, accessible version. She further determined that the record did not support the proposition that circumvention was necessary with respect to Blu-ray content, as the same content is generally available on DVDs or online.

Beyond research and development, the Register found that the scope of proponents' intended uses was difficult to discern from proponents' written submissions, as the papers were fraught with broad generalizations. During the hearing, proponents were able to articulate three broad categories of conduct: (1) Conducting research and development on accessible technologies to develop a player capable of presenting or manipulating captions or descriptive audio (as discussed above); (2) creating such captions or descriptive audio or corrections thereto; and (3) presenting such captions or descriptive audio along with the underlying lawfully acquired work. Still, the precise contours of certain aspects of the proponents' intended exploitation of the proposed exemption remained elusive.

Pointing to a footnote in Sony Corporation of America v. Universal Studios, Inc., 464 U.S. 417 (1984), which provides in dicta that “making a copy of a copyrighted work for the convenience of a blind person is * * * an example of fair use,” proponents asserted that each of the broadly defined intended uses was fair. However, fair use analyses are, by statute, necessarily fact specific. Most of the proposed uses relating to the creation of captions and descriptive audio proposed by the proponents were so generally described that the Register found it impossible to evaluate whether they would be noninfringing. For example, proponents discussed both creating captions for content that is uncaptioned, including through crowdsourcing techniques, and fixing incorrect or poorly implemented captions. Each of these activities could have different implications under a traditional fair use analysis. Absent specific facts pertaining to the particularized uses, however, such an analysis was not possible.

NTIA supported proponents' proposals but suggested that the Register should recraft the exemptions into three categories that it believes were supported by the record. Specifically, NTIA would have fashioned a class specifically aimed at those developing the tools to facilitate the creation, improvement, or rendering of captions and descriptive audio; another class specifically for those engaged in the creation of captions and descriptive audio; and a third class for those using the captions and descriptive audio. NTIA further noted that it did not support the inclusion of Blu-ray because DVD remains the dominant format, online video distribution is outpacing Blu-ray adoption, and the effect of the proposals on the Blu-ray market was uncertain.

The Register and NTIA were in agreement on the need to “open the doors for innovation and empower the millions of Americans with visual and hearing disabilities to participate to the fullest possible extent in our society's multimedia culture.” However, for the reasons described above, the Register determined that, based on the current record, a more narrowly tailored class to permit research and development of assistive technologies was appropriate. The Register nonetheless made a point of encouraging the continued development of accessibility technologies and future proposals for exemptions to advance such efforts.

Upon the recommendation of the Register of Copyrights, the Librarian has determined that the following classes of works shall not be exempt from the prohibition against circumvention of technological measures set forth in Section 1201(a)(1)(A):

The Register concluded that the requested exemption to access public domain works was beyond the scope of the rulemaking proceeding and declined to recommend its adoption. As further explained in the 2010 rulemaking, “Section 1201 does not prohibit circumvention of a technological protection measure when it simply controls access to a public domain work; in such a case, it is lawful to circumvent the technological protection measure and there is no need for an exemption.”

Proponent Open Book Alliance (“OBA”) proposed an exemption to permit the circumvention of literary works in the public domain to enable access to works that are digitally distributed. Proponent sought a “clarification” that circumvention of technological measures for the purpose of accessing such literary works does not violate Section 1201(a)(1).

As explained above, Section 1201(a)(1) provides that “[n]o person shall circumvent a technological measure that effectively controls access to a work protected under this title.” The prohibition on circumvention of technological protection measures thus does not apply to public domain materials because such materials are not protected under Title 17.

Joint Creators filed comments in response to OBA's proposal. Joint Creators did not object to the conclusion that Section 1201(a)(1) is inapplicable to literary works that are in the public domain but cautioned that many distributions of such literary works contain ancillary copyrightable elements, such as cover art, inserts, photographs, prefaces, and the like.

NTIA shared the proponent's concern that “the implementation of [technological measures] restricts universal access” to public domain material, and that such restrictions “may have a negative impact on educational institutions and research organizations,” as well as other adverse impacts on the public. NTIA also recognized, however, that works in the public domain are not affected by the prohibition on circumvention. Accordingly, NTIA agreed that an exemption is not required for this class of works.

As Joint Creators observed, questions may arise when a technological measure controls access not only to a work in the public domain, but at the same time controls access to other works that are protected by copyright. There was no need for the Register to address this issue on the record presented, however, because proponents neither raised it nor presented any evidence relating to it.

Because the Register determined that the evidentiary record failed to support a finding that the inability to circumvent access controls on video game consoles has, or over the course of the next three years likely would have, a substantial adverse impact on the ability to make noninfringing uses, the Register declined to recommend the proposed class.

EFF, joined by Andrew “bunnie” Huang (“Huang”), FSF, SaurikIT, LLC (SaurikIT), and numerous individual supporters, sought an exemption to permit the circumvention of access controls on video game console computer code so that the consoles could be used with non-vendor-approved software that is lawfully acquired.

EFF observed that modern video game consoles are increasingly sophisticated computing devices that are capable of running not only games but “entire computer operating systems.” All three major video game manufacturers, however—Sony, Microsoft, and Nintendo—have deployed technological restrictions that force console purchasers to limit their operating systems and software exclusively to vendor-approved offerings. These restrictions require a console owner who would like to install a computer operating system or run a “homebrew” ( i.e., independently developed) application to defeat a number of technical measures before they can do so—a process that proponents refer to as “jailbreaking.” Proponents sought an exemption from Section 1201(a)(1) to permit such jailbreaking of video game consoles. Because the class they proposed would enable interoperability only with “lawfully obtained software programs,” proponents asserted that the exemption would not authorize or foster infringing activities.

In its comments, EFF explained the circumvention process with reference to Sony's PlayStation 3 (“PS3”). Sony's PS3 employs a series of technological protections so that the console can only install and run authenticated, encrypted code. One such measure is the encryption of the console's firmware, which restricts access to the console. The firmware must be authenticated by the console's “bootloader” software and decrypted before it can be used. Once the firmware has been authenticated and decrypted, it, in turn, authenticates applications before they can be installed or run on the PS3. EFF added that Microsoft's Xbox 360 and Nintendo's Wii employ similar authentication procedures as technological protection measures.

In further support of its requested exemption, EFF recounted that when Sony launched the PS3 in 2006, it included a software application called “OtherOS” that permitted users to install Linux and UNIX operating systems on their consoles. EFF provided examples of researchers who were able to use these earlier PS3 consoles in lieu of other computer systems to conduct various forms of scientific research, citing an Air Force project that made use of 1700 PS3s, as well as two academic projects employing clusters of PS3s to create high-performance computers. Some of these researchers chose to use clustered PS3s because they were less expensive than the available alternatives. In 2010, however, Sony issued a firmware update for the PS3 that removed the OtherOS functionality. PS3 users were not forced to upgrade, but the failure to adopt the upgrade precluded access to certain gameplay features and might make repair or replacement of the gaming system more difficult.

EFF further asserted that none of the three major console manufacturers currently allows the installation of independently developed applications on their consoles unless the developer has obtained approval of the software from the manufacturer through a “stringent” process that may require the developer to license costly development tools. As a result, hobbyists and homebrew developers engage in circumvention to defeat technical restrictions in order to create and run games and other applications on the PS3, Wii, and Xbox consoles.

EFF noted over 450 independently created games and applications for Nintendo's Wii available on the homebrew site WiiBrew.org, as well as some 18 homebrew games and several nongaming applications developed for the PS3—including a file backup program called “Multiman” and an application that transforms the PS3 into an FTP server—and a handful of other homebrew applications for other platforms and handheld gaming devices. EFF pointed out that there is no strong homebrew community for the Xbox360, attributing this phenomenon to a Microsoft development program that allows developers to publish games “with relative ease.”

Proponents argued that manufacturers' technological restrictions on video game consoles not only constrain consumer choice but also inhibit scientific research and homebrew development activities. Pointing to the Register's determination in the last Section 1201 rulemaking that circumvention of technological measures on smartphones to enable interoperability with lawfully obtained applications was a permissible fair use, proponents urged that the same logic should apply here. According to proponents, the restrictions on video game consoles do not protect the value or integrity of copyrighted works but instead reflect a business decision to restrict the applications that users can run on their devices.

EFF explained that a “large community” of console jailbreakers currently exists for all three major video game consoles but noted that such jailbreakers face potential liability under Section 1201(a)(1). As evidence of this, EFF cited recent litigation pursued by Sony against an individual and others who developed a method for jailbreaking the PS3. EFF explained that in January 2010, George Hotz (also known by his online name “GeoHot”) published a method for jailbreaking the PS3. In response, Sony initiated a lawsuit against Hotz and others alleging, among other things, that the defendants had conspired to violate the DMCA.

Finally, a few supporters of EFF's proposal suggested potential scenarios in which a console might need to be jailbroken to effectuate a repair but did not provide any specific evidence of actual repair issues.

The proposal to permit circumvention of video game consoles was vigorously opposed by the Entertainment Software Association (“ESA”), Sony Computer Entertainment America LLC (“SCEA” or “Sony”), and Joint Creators. Opponents filed extensive comments in response to EFF's request.

ESA characterized video game consoles as “the center of an intellectual property ecosystem” which makes copyrighted content readily and legally accessible, stating that the entire system depends upon effective and secure access controls. ESA explained that there are at least two potential access controls at issue. To play an unauthorized application, the user must circumvent not only the encryption on the console's firmware, but also modify the firmware to defeat the authentication check access control. It added that once modified, the firmware will operate, but the access controls will be circumvented, effectively allowing the console to run unauthorized content.

SCEA's comments focused on its PS3 console (the dominant example addressed in EFF's proposal). SCEA confirmed that the technological restrictions controlling access to the PS3 protect both its firmware and the copyrighted video games that are developed for that system. As explained by SCEA, allowing circumvention of the PS3 access controls would mean that the basic security checks could be skipped and the firmware freely modified to bypass or eliminate the process by which the video games are authenticated for use on the console, thus making it “virtually certain that successful hackers, under the guise of the exemption, will create the tools that enable even novice users to make, distribute, download, and play back illegal copies of games.”

Throughout their comments, opponents stressed piracy as an overriding concern, noting that once a user circumvents a console's security measures—even for an ostensibly benign purpose—it becomes a vehicle for unauthorized content. In their view, EFF's attempt to limit the exemption to interoperability with lawful applications would make no difference in practice, because “all known methods for circumventing game console [technological protection measures] necessarily eliminate the measures' ability to preclude the play, reproduction and distribution of infringing content.”

In support of their contentions regarding the link between circumvention and piracy, opponents provided documentation of console “hacking packages” that come bundled with applications to play pirated content. They further noted, again with supporting materials, that the homebrew channel installed with a popular Wii hacking package automatically includes applications that enable the console to play pirated content. They pointed out, with still further support in the record, that the “Multiman” backup system referenced by EFF as an example of a useful application enabled by jailbroken PS3s is used to decrypt and copy protected PS3 games so they can be illegally distributed. Other documentary evidence submitted by opponents showed that the PS3 FTP file server application described by EFF is used as a means to transfer illegal files. Opponents also furnished multiple examples of advertisements for console jailbreaking services that included (for an all-in price) a library of pirated games.

Opponents pointed to online forums and other sources that specifically referenced George Hotz's hack of the PS3—described sympathetically by EFF in its proposal—as permitting users to play pirated games and content, and provided representative postings. The documentation evidenced a broadly shared perception in the gaming community that jailbreaking leads to piracy. Notably, some of those providing commentary made the further observation that such piracy would negatively impact the development of new games.

Possibly referring to Hotz, SCEA elaborated on the hacking issue by commenting specifically on the events surrounding a 2010 breach of its PS3 system. In that case, hackers announced that they had successfully circumvented the technological measures on PS3 firmware, which was accomplished by exploiting vulnerabilities in Linux operating in the OtherOS environment. Although the hackers stated that they did not endorse or condone piracy, one hacker subsequently published PS3's encryption keys on the Internet, which were quickly used to create jailbreak software to permit the use of illegally made games. Sony saw an immediate rise in the number of illegal copies but no increase in homebrew development, while sales of legitimate software “declined dramatically.” As a result of the hack, Sony decided it had no choice but to discontinue OtherOS and issued a system upgrade that disabled OtherOS functionality for those who wished to maintain access to Sony's PlayStation network.

Mindful of the exemption established by the Librarian in the prior proceeding to permit jailbreaking of smartphones, opponents urged that video game consoles are not the equivalent of iPhones, asserting that the technological measures on game consoles legitimately protect the creation and dissemination of copyrighted works by discouraging pirated content and protecting creators' investment in new games. Opponents distinguished the development of a video game—a long and intensive process “akin to * * * motion picture production” involving a team of developers that can cost tens of millions of dollars—from the relative ease and inexpensiveness of creating a smartphone application. According to opponents, the development of new video games would be significantly impaired without reliable technological protections to protect developers' investments.

With respect to the need to jailbreak consoles to permit the operation of Linux-based homebrew programs, opponents observed that while EFF's request focused on the PS3, the homebrew community for that device is small, as evidenced by the fact that less than one-tenth of one percent of PS3 users (fewer than 2,000 in all) had made use of the PS3's OtherOS feature. In any event, they noted, there are over 4,000 devices on which Linux can be run without the need for circumvention, and homebrew games and applications can be played on a wide array of open platform devices. Opponents further observed that each of the three major video game console manufacturers has a program to support independent developers in creating and publishing compatible games.

Finally, opponents disputed proponents' suggestion that circumvention is necessary to repair broken game consoles, explaining that each console maker offers authorized repair services free of charge for consoles still under warranty for a nominal fee thereafter.

Although EFF sought to rely upon the Register's 2010 determination that modification of smartphone software to permit interoperability with non-vendor-approved applications was a fair use, the Register concluded that the fair use analysis for video consoles diverged from that in the smartphone context. Unlike in the case of smartphones, the record demonstrated that access controls on gaming consoles protect not only the console firmware, but the video games and applications that run on the console as well. The evidence showed that video games are far more difficult and complex to produce than smartphone applications, requiring teams of developers and potential investments in the millions of dollars. While the access controls at issue might serve to further manufacturers' business interests, they also protect highly valuable expressive works—many of which are created and owned by the manufacturers—in addition to console firmware itself.

The Register noted that research activities and functional applications that proponents claimed would be enabled by circumvention might well constitute transformative uses. On the other hand, circumventing console code to play games and other entertainment content (even if lawfully acquired) is not a transformative use, as the circumvented code is serving the same fundamental purpose as the unbroken code. While the second and third fair use factors did not greatly affect the analysis, on the significant question of market harm, the Register concluded that opponents had provided compelling evidence that circumvention of access controls to permit interoperability of video game consoles—regardless of purpose—had the effect of diminishing the value of, and impairing the market for, the affected code, because the compromised code could no longer serve as a secure platform for the development and distribution of legitimate content. The Register noted that instead of countering this evidence with a factual showing to prove opponents wrong, EFF merely asserted that its proposal would not permit infringing uses. The Register did not believe that this response satisfied proponents' obligation to address the “real-world impact” of their proposed exemption. Overall, the Register found that proponents had failed to fulfill their obligation to establish persuasively that fair use could serve as a basis for the exemption they sought.

The Register further found that even if proponents had satisfied their burden of establishing noninfringing uses, they nonetheless failed to demonstrate that video game console access controls have or are likely to have a substantial adverse impact on such uses. Proponents identified two broad categories of activities that were allegedly threatened by the prohibition on circumvention, scientific research and homebrew software development. With respect to scientific research, a small number of research projects involving only one type of gaming console, the PS3, suggested a de minimis impact, if any. This conclusion was reinforced by record evidence indicating that Sony had in fact cooperated with and been a supporter of research efforts and that alternative computing resources for such projects were available in the marketplace.

Nor, according to the Register's analysis, did the record support a finding that Section 1201(a)(1) is having a substantial adverse impact on lawful homebrew activities. The most significant level of homebrew activity identified by EFF appears to have occurred in relation to the Wii, but the record was relatively sparse in relation to other gaming platforms. Concerning the use of video game consoles to operate Linux software generally, the record showed that only a very small percentage of PS3 users availed themselves of the (now discontinued) OtherOS option that permitted users to run Linux on their PS3s. At the same time, there are thousands of alternative devices that can be used to develop and run Linux-based video games and other applications. In addition, the record indicated that developers can and do take advantage of various manufacturer programs to pursue independent development activities.

Finally, as noted above, the Register determined that proponents offered no factual basis in support of their suggestion that users are having difficulty repairing their consoles as a result of Section 1201(a)(1). This appeared to be only a hypothetical concern, as proponents failed to document any actual instances of users seeking to make repairs.

The Register therefore concluded that proponents had failed to establish that the prohibition on circumvention, as applied to video game console code, is causing substantial adverse effects.

Turning to the statutory factors, the Register took issue with proponents' view that piracy was an irrelevant consideration because the exemption they sought was only to allow interoperability with “lawfully obtained applications.” The Register explained that she could not ignore the record before her. Even if piracy were not the initial or intended purpose for circumvention, the record substantiated opponents' assessment that in the case of video games, console jailbreaking leads to a higher level of infringing activity, thus sharply distinguishing the case of video consoles from smartphones, where the record did not support the same finding. The evidence also suggested that the restriction limiting the proposed class to “lawfully obtained” applications—which the Register has found effective in other contexts—did not provide adequate assurance in this case. The Register noted that simply to suggest, as proponents had, that unlawful uses were outside the scope of the exemption and therefore of no concern was not a persuasive answer.

Finally, the Register agreed with proponents' assessment that the access controls protecting video game console code facilitate a business model, as many technological restrictions do. But the Register concluded that in the case of gaming platforms, that was not the sole purpose. Console access controls protect not only the integrity of the console code, but the copyrighted works that run on the consoles. In so doing, they provide important incentives to create video games and other content for consoles, and thus play a critical role in the development and dissemination of highly innovative copyrighted works.

NTIA supported the “innovative spirit epitomized by independent developers and researchers whose needs proponents contemplate in this class,” but noted that the evidence in the record was insufficient to support the considerable breadth of the proposed class. NTIA asserted that the record was unclear with respect to the need for an exemption to enable software interoperability, and that there was compelling evidence of reasonable alternatives available for research purposes. NTIA was also “cognizant of the proposal's likely negative impact on the underlying business model that has enabled significant growth and innovation in the video game industry.”

Although NTIA did not support the exemption as requested by proponents, it did support a limited exemption to allow videogame console owners to repair or replace hardware components, or to “obtain unlicensed repairs when the console is out of warranty or when the console and authorized replacement parts are no longer on the market.” As explained above, however, the Register found that the record lacked any factual basis upon which to recommend the designation of even such a limited class.

While the Register recognized that the concern expressed by proponents—that a broad implementation of restrictive access controls could preclude users from installing operating systems and applications of their choice—is a significant one, she found that proponents had relied heavily on speculation and failed to present specific and compelling evidence in support of a focused exemption. The Register therefore declined to recommend the adoption of the proposed class.

Software Freedom Law Center (“SFLC”), supported by FSF, Mozilla, SaurikIT, New Yorkers for Fair Use, Huang, and others, sought an exemption to permit the circumvention of computer programs on personal computing devices to enable the installation of other software, including alternative operating systems, when such software is lawfully obtained. The proposed exemption would have allowed circumvention by the device owner or by someone acting at the device owner's request.

In requesting this exemption, SFLC explained that there are two broad categories of access controls on personal computing devices: “application locks,” which effectively prevent users from installing certain software applications, and “OS locks,” which effectively prevent users from installing replacement operating systems. Citing the Librarian's 2010 determination permitting jailbreaking of smartphones to enable interoperability, SFLC asserted that the restrictions addressed by the smartphone exemption have become commonplace on other mobile computing devices and have begun to appear on personal computers. Accordingly, SFLC contended that the smartphone exemption should be “expanded” to include “all personal computing devices” so as to permit circumvention for the purpose of installing any software the user chooses, including a new operating system.

SFLC explained that the mobile device market, which includes not only smartphones but also tablet computers, is dominated by Google's Android operating system and Apple's iOS, which together account for 94 percent of the market. The two most popular ebook readers, Amazon's Kindle and Barnes & Noble's Nook, are Android-based devices. According to SFLC, “[a]ll of the restrictions addressed by the [smartphone] exemption are reproduced on the new formats.” Thus, the iOS on the iPhone and iPad limits applications to those obtained from Apple's store. In the case of Android, users are allowed to install applications obtained from channels other than Google's Android Marketplace, but Android withholds “many vital privileges” ( i.e., important device functionalities) from alternatively sourced applications. In addition, even though the Kindle and Nook are Android-based, Amazon and Barnes & Noble have substituted their own exclusive distribution channels, which cannot be avoided without jailbreaking.

SFLC further observed that Microsoft has announced that it will require hardware manufacturers for the forthcoming Windows 8 operating system to enable a secure boot system—which can function as a type of OS lock—“by default.” It asserted that because Microsoft controls nearly 90 percent of the operating system market, secure boot will be a “nearly ubiquitous” feature on personal computers in the next year. According to SFLC, this will “decimate” what is now a thriving market for alternative PC operating systems. In a further submission to the Copyright Office, however, SFLC conceded that Microsoft had established a program to enable developers to “have their operating systems signed by Microsoft”— i.e., to acquire a secure boot key—for a fee of 99 dollars.

SFLC acknowledged that the stated justification for OS locks is to protect device owners from malicious software by making it impossible for viruses to gain access to, or replace, a device's operating system. But in SFLC's words, “[t]his `security feature' is undiscerning: it will reject the device owner's intentional installation of an operating system just as it will reject a virus's payload.” SFLC observed that “[t]o the extent the firmware lock being circumvented merely prevents unauthorized operating systems from running, it does not protect access to a copyrighted work of the device producer, but rather prevents access to a competing copyrighted work to which the device owner has a license.”

On the question of noninfringing use, SFLC asserted that it is not infringing for the owner of a device to install applications that have not been approved by the device's manufacturer. According to SFLC, this conclusion—drawn from the Register's analysis and findings in the 2010 rulemaking proceeding—applies with equal force to application locks on devices other than smartphones, as well as to OS locks. SFLC noted that in 2010, the Register determined that circumvention for the purpose of achieving interoperability was either “noninfringing or fair.” SFLC further opined that, while modification of a preinstalled operating system is sometimes necessary to circumvent an application lock, the same is not true of OS locks, as removal of a device's default operating system does not implicate any of the exclusive rights of the owner of the operating system.

The proposed class was opposed by Joint Creators, who argued that the requested exemption “targets every device and every platform, and creates an open-ended standard for circumvention.” In their view, if granted, the exemption “would strip any copyright owner, distributor, or licensee from exercising any choices with respect to how to construct a distribution system related to personal computing, and would thus expose copyright owners and their business partners to unnecessary risk, piracy, and unpredictability.” Joint Creators characterized proponents' request as, “at best, premature,” and maintained that proponents had failed to meet the substantial burden required for an exemption.

Joint Creators also contended that the “primary effects” of such an exemption would be to enable distribution of pirated applications, and to remove technical limitations that would otherwise protect trial versions of applications. According to Joint Creators, circumvention of technical measures on computer programs is accomplished primarily to unlock trial versions of software or enable access to pirated copies or unauthorized modified versions.

Joint Creators stressed that proponents' arguments in favor of the proposed class were based on speculation rather than facts. They asserted that proponents' comments presented “theories” about what might occur but failed to demonstrate that the scenarios they portrayed were more likely than not. In particular, with respect to the secure boot issue, Joint Creators pointed out that proponents had not identified a single platform that precluded the installation of an alternative operating system.

Finally, Joint Creators asserted that the proposed class—in purporting to immunize circumvention, “performed * * * at the request of the device's owner”—amounted to a request to exempt the provision of circumvention services, which is prohibited under Section 1201(a)(1)(E).

The Register found that proponents had offered very little support for their claim that the uses for which they sought an exemption are noninfringing, even though it is a threshold requirement before an exemption can be considered. Instead, proponents chose to rest their case upon the Register's conclusion in the 2010 rulemaking—in the context of smartphones—that it was not an infringement to install applications that have not been approved by a device's manufacturer. The Register opined that proponents' conclusory declaration that the expansive set of uses upon which they premised their request was noninfringing was inadequate in the context of the rulemaking.

The Register noted that the record was murky on the especially critical issue of whether the removal of an operating system from a device in its entirety—an activity proponents sought to facilitate through the rulemaking process—required the circumvention of technical measures before erasing the operating system, or whether it was possible to remove an operating system without prior circumvention (even if such removal also simultaneously removed the access controls for that operating system). At the hearings, the Copyright Office sought clarification on this point from the parties, but the results were inconclusive. Another question that was not answered by the record was whether an OS lock preventing the operation of an alternative operating system is in fact a technological measure protecting a copyrighted work within the meaning of Section 1201(a).

The Register explained that to the extent an operating system can be removed without having first to gain access to the work through an act of circumvention, even if such work is protected for other purposes by technological measures, such removal would not constitute a violation of Section 1201(a)(1). This is because upon deletion of the work, any such technological measure is no longer “effectively control[ling] access” to the work. In such a case, of course, an exemption is unnecessary.

The Register also observed that much of proponents' concern appeared to be centered on Microsoft's to be launched Windows 8 operating system and its “secure boot” functionality. But proponents' own statements indicated that this concern was speculative. It appeared undisputed in the record that, at least as of today, purchasers of PCs are able to install alternative operating systems without resorting to circumvention. Indeed, proponents conceded that the specification allegedly adopted by Microsoft “does not prevent manufacturers from allowing users to disable the lock or add non-Microsoft keys,” and also acknowledged that Microsoft permitted developers to acquire keys for 99 dollars.

The Register determined that proponents' suppositions concerning the features of forthcoming software fell short of making a case that the harmful effects they posited were more likely to occur than not. The Register reiterated that mere speculation cannot support an exception to Section 1201(a)(1); rather, predicted adverse effects are only cognizable “in extraordinary circumstances in which the evidence of likelihood of future adverse impact is highly specific, strong and persuasive.” The Register concluded that proponents had failed to offer any such evidence here.

The Register additionally observed that granting an exemption for such a sweeping class would be without precedent in the history of Section 1201 rulemakings. In the past, faced with a proposed class with respect to which the proponents have offered substantial and persuasive evidence, but for which the definition proposed is not fully congruent with the proponents' showing, the Register has—to the extent a sufficient basis exists in the record—refined the class definition to ensure that it is appropriately tailored to her findings. But such refinement is only possible where the proponent of the proposed class has otherwise succeeded in demonstrating that some version of its exemption is warranted. The Register cannot delineate the appropriate contours of a class “in a factual vacuum.”

As a final consideration, the Register noted that to the extent the proposed class would effectively permit the provision of circumvention services to others—as it appeared to do—it must be rejected, as the provision of such services to others is forbidden under Section 1201(a)(2) of the DMCA.

NTIA was “not convinced that Secure Boot constitutes `a technological measure that effectively controls access to a work' protected by U.S. copyright law.'” It further noted that proponents had failed to present evidence that the secure boot functionality restricted access to Windows 8 or any other work for purposes of protecting copyright. NTIA thus did not support the designation of the proposed class.

The Register concluded that proponents had failed to establish that the prohibition on circumvention is imposing an adverse impact on noninfringing uses and declined to recommend the requested exemptions for space shifting.

Proponent Public Knowledge, as well as proponents Cassiopaea, Tambolini, Susan Fuhs, Kellie Heistand, Andy Kossowsky, and Curt Wiederhoeft, sought similar exemptions to permit the circumvention of motion pictures and other works on DVDs and other media to enable “space shifting,” i.e., the copying of complete works to permit personal use on alternative devices.

Proponent Public Knowledge stated a desire to move lawfully acquired motion pictures on DVDs to consumer electronic devices, such as tablet computers and laptop computers, that lack DVD drives. It asserted that consumers' inability to play lawfully acquired DVDs on the newest devices adversely affected noninfringing uses of the works contained on DVDs, and that a reasonable solution was for these consumers to copy the motion pictures into a format that could be viewed on the new devices. Public Knowledge urged that such an exemption “would merely allow a user to make use of a motion picture she has already acquired.” The space shifting proposals by the additional proponents—most of which were one page or less—sought similar exemptions, but offered few factual details and little or no legal analysis.

The current proposals were not unlike the proposal sought in the 2006 rulemaking. In that rulemaking, the Register declined to recommend a space shifting exemption in part because the proponents failed to offer persuasive legal arguments that space shifting was a noninfringing use. The Register also addressed space shifting in the 2003 rulemaking in her consideration of a requested exemption regarding “tethering.” In her 2003 recommendation, the Register observed that “no court has held that `space-shifting' is a fair use.”

Public Knowledge cited RIAA v. Diamond Multimedia Systems Inc., 180 F.3d 1072 (1999), and Sony Corporation of America v. Universal City Studios, Inc., 464 U.S. 417 (1984), in support of its contention that space shifting is a noncommercial personal use, and therefore a fair use. It applied the four-factor fair use test of Section 107 in support of its assertion that the sort of space shifting for which it sought an exemption is a noninfringing use. Public Knowledge further argued that the space shifting would not negatively impact the availability of, or harm the market for, copyrighted works, or contribute to piracy. Finally, Public Knowledge claimed that there were no reasonable alternatives to such space shifting.

Public Knowledge asked the Register to evaluate the legitimacy of personal space shifting through “independent examination.” According to Public Knowledge, the Section 1201(a) rulemaking process of “recommending, consulting, determining, and speculating necessarily requires the Register to draw conclusions beyond parroting the statute and existing case law.”

Proponents of the additional proposals sought to exempt other digital works, including sound recordings and ebooks, in addition to motion pictures, for purposes of space shifting. They offered insufficient factual or legal analysis in support of their proposed exemptions, however.

DVD CCA opposed the requested exemptions by first observing that, although many new electronic devices are made without DVD drives, consumers can still play DVDs on such devices through the use of peripheral tools, i.e., external drives that connect to the devices and are capable of playing DVDs. DVD CCA argued that just because a consumer prefers a portable device for certain purposes, it does not mean that the consumer is foreclosed from using a different device to play DVDs or that an exemption for space shifting is warranted.

DVDCCA further noted that, contrary to the statements made by Public Knowledge, consumers have not purchased the motion picture itself, but a DVD copy of the motion picture, which affords only the right to access the work according to the DVD format specifications, i.e., through the use of a DVD player. DVDCCA explained that consumers are able to purchase the copy at its retail price—typically less than 20 dollars—because it is distributed on a specific medium that will only play back on a licensed player. It stated that the Register has previously recognized that there is no unqualified right to access a work on a particular device.

DVDCCA alleged that the proposed exemption would harm the market for works distributed in the DVD medium as well as that for works offered in other digital media, explaining that the proposed exemption would displace sales for existing and forthcoming digital offerings that the DMCA was meant to encourage. It further alleged that the proposed exemption would create “public confusion” as to what is permitted activity.

Joint Creators similarly disputed Public Knowledge's assertion that consumers are adversely affected by an inability to play DVDs on electronic devices that are not designed to play DVDs, pointing to services that provide access to numerous titles for low subscription prices. They argued that it was not the purpose of the rulemaking to provide consumers with the most cost-effective manner to obtain commercial video content.

AACS LA opposed an exemption for space shifting that would apply to AACS technology protecting Blu-ray discs. It noted that proponents had failed to satisfy their burden to demonstrate that an exemption is warranted or that space shifting is a noninfringing act.

The Register recognized that there is significant consumer interest in the proposed exemption. Proponents, however, had the burden of demonstrating that the requested use was noninfringing. Neither of the two key cases relied upon by proponents, however, addresses or informs the space shifting activities at issue.

The Register noted that she had previously explained that Diamond Multimedia —a case in which the court was called upon to interpret the Audio Home Recording Act (“AHRA”)—“did not hold that `space-shifting' is fair use. It did state, in dicta, that `space-shifting' of digital and analog musical recordings is a noncommercial personal use consistent with the Audio Home Recording Act.” Notably, neither Diamond Multimedia, nor the statute it interpreted, addressed motion pictures, the focus of Public Knowledge's proposal.

Turning to Sony, the Register clarified that that case involved “time-shifting,” defined by the Supreme Court as “the practice of recording a program to view it once at a later time, and thereafter erasing it.” It did not address the legality of “librarying,” i.e., the maintenance of copies of copyrighted works. Here, by contrast, librarying was among the activities contemplated by the proposed exemptions.

The Register further observed that the law does not guarantee access to copyrighted material in a user's preferred format or technique. Indeed, copyright owners typically have the legal authority to decide whether and how to exploit new formats. The Register noted that while the law may someday evolve to accommodate some of proponents' proposed uses, more recent cases touching upon space shifting confirm that the fair use implications of various forms of space shifting are far from settled. The Register reiterated her view that the Section 1201 rulemaking process was “not the forum in which to break new ground on the scope of fair use.” She then proceeded to assess the proposed exemptions under the traditional fair use factors.

In urging that space shifting is a fair use, Public Knowledge characterized the copying of motion pictures for use on personal devices as a “paradigmatic noncommercial personal use” that could facilitate a transformative use. It further asserted that integrating reproductions of motion pictures from DVDs into a consumer's media management software was analogous to the integration of thumbnail images into Internet search engines found to be a transformative use in Perfect 10, Inc. v. Amazon.com, Inc., 487 F.3d 701 (9th Cir. 2007).

The Register did not agree with this analysis. In her view, the incorporation of reproductions of motion pictures from DVDs into a consumer's media management software is not equivalent to the provision of public search engine functionality. Rather, it is simply a means for an individual consumer to access content for the same entertainment purpose as the original work. Put another way, it does not “add[] something new, with a further purpose or different character, altering the first with new expression, meaning,” or advance criticism, comment, or any other interest enumerated in the preamble of Section 107. The Register therefore concluded that the first fair use factor did not favor a finding of fair use. The Register additionally determined that where creative works were being copied in their entirety, factors two and three also weighed against fair use, and that there was an inadequate basis in the record to conclude that the developing market for the online distribution of motion pictures would not be harmed by the proposed uses.

Finally, the Register concluded that proponents had failed to demonstrate that the use of a reasonably priced peripheral, a different device, or an online subscription service to access and play desired content did not offer a reasonable alternative to circumvention. Accordingly, the Register was not persuaded that the inability to engage in the space shifting activities described by proponents is having a substantial adverse impact on consumers' ability to make noninfringing uses of copyrighted works.

NTIA suggested what it described as a “more narrowly-constructed” version of Public Knowledge's proposed exemption. Specifically, it supported an exemption to allow circumvention of lawfully acquired DVDs “when the DVD neither contains nor is accompanied by an additional copy of the work in an alternative digital format, and when circumvention is undertaken solely in order to accomplish the noncommercial space shifting of the contained motion picture.” NTIA voiced support for the motion picture industry's efforts to make content available on the wide range of new devices, and encouraged the industry to continue developing new offerings. It contended that by limiting the exemption to circumstances in which the market had not supplied alternatives to DVDs, “the potential adverse effect on the market is minimal.”

The Register likewise expressed support for the motion picture industry's innovation and the development of market approaches to satisfy the demand for electronically distributed content. But while the Register was sympathetic to the desire to consume content on a variety of different devices, she noted that there is no basis under current law to assume that the space shifting activities that would be permitted under NTIA's proposal would be noninfringing. Moreover, in light of the record before her, the Register did not find that such activities would not adversely affect the legitimate future markets of copyright owners.

Having considered the evidence in the record, the contentions of the commenting parties, and the statutory objectives, the Register of Copyrights has recommended that the Librarian of Congress publish certain classes of works, as designated above, so that the prohibition against circumvention of technological measures that effectively control access to copyrighted works shall not apply to persons who engage in noninfringing uses of those particular classes of works.

Having duly considered and accepted the Recommendation of the Register of Copyrights, which Recommendation is hereby incorporated by reference, the Librarian of Congress is exercising his authority under 17 U.S.C. 1201(a)(1)(C) and (D) and is publishing as a new rule the classes of copyrighted works that shall be subject to the exemption found in 17 U.S.C. 1201(a)(1)(B) from the prohibition against circumvention of technological measures that effectively control access to copyrighted works set forth in 17 U.S.C. 1201(a)(1)(A).

For the reasons set forth in the preamble, 37 CFR part 201 is amended as follows:

This final rule describes new prices and product features for competitive products, by class of mail, established by the Governors of the United States Postal Service®. New prices are available under Docket Number CP2013-3 on the Postal Regulatory Commission's (PRC) Web site at http://www.prc.gov, and are also located on the Postal Explorer® Web site at http://pe.usps.com.

Competitive product prices and changes are identified by product as follows:

Overall, Express Mail prices will increase 5.9 percent. Express Mail will continue to offer zoned Retail, Commercial Base TM and Commercial Plus TM pricing tiers.

Retail prices will increase an average of 6.5 percent. The price for the Retail Flat Rate Envelope, Legal Flat Rate Envelope, and the recently-introduced Padded Flat Rate Envelope is increasing to $19.95. The Flat Rate Box price will remain at $39.95.

The existing Commercial Base prices offer lower prices to customers who use online and other authorized postage payment methods. Commercial Base prices will increase 2.0 percent.

The existing Commercial Plus price category offers price incentives to large volume customers. Commercial Plus prices will increase 1.0 percent.

Overall, Priority Mail prices will increase 6.3 percent. The price increase varies by price cell and price tier.

Retail prices will increase an average of 9.0 percent, but Retail Priority Mail will now include USPS® tracking and confirmation of delivery at no additional charge, offsetting about 3 percent of the increase. The regular Flat Rate envelope will be priced at $5.60, with the Legal Flat Rate Envelope priced at $5.75 and Padded Flat Rate Envelope priced at $5.95. Flat Rate Box prices will be: Small, $5.80; Medium, $12.35; Large, $16.85 and Large APO/FPO, $14.85.

Commercial Base prices offer lower prices to customers who use online and other authorized postage payment methods. Commercial Base prices will increase an average of 3.7 percent. Commercial Base pricing will offer an average 11.3 percent discount off retail prices.

Commercial Plus price category offers attractive price incentives to large volume customers. Commercial Plus prices will increase an average of 3.8 percent. Commercial Plus pricing will offer an average 16.2 percent discount off retail prices.

Critical Mail® letters and flats are enhanced with a new option, signature upon delivery, as part of the service offering. The Critical Mail letter with signature option is priced at $4.60; the Critical Mail flat with signature option is priced at $5.35.

The Postal Service is providing a new option within the suite of USPS Returns Services to include Critical Mail pieces. This new product will afford customers the ability to expedite their returns by using barcoded USPS Critical Mail (letters and flats).

Overall, First-Class Package Service prices will increase 3.0 percent. The Intelligent Mail® package barcode (IMpb) will continue to provide free USPS tracking and confirmation of delivery with these parcels.

The Postal Service is revising the DMM to add PC Postage endicia as a new payment method for First-Class Package Service Commercial Plus parcels.

First-Class Package Service mailers are currently assessed a $0.05 per piece surcharge for parcels weighing less than 2 ounces, parcels that are irregularly shaped (such as rolls, tubes or triangles), or parcels that lack a unique tracking barcode (previously a Postal routing barcode). These surcharges relate to additional handling required in Postal Service processing in order to work these pieces. As a result, the surcharge was not assessed for First-Class Package Service parcels presented in 5-digit/scheme containers.

The Postal Service is eliminating the surcharge for First-Class Package Service parcels under 2 ounces since the new prices will reflect that these pieces are generally nonmachinable. The Postal Service will retain a surcharge for First-Class Package Service parcels that are irregularly shaped, but will also retain the prior exclusion for parcels that are presented in 5-digit/scheme containers.

The standards implementing Intelligent Mail package barcodes (IMpb) requires an IMpb on First-Class Package Service parcels claiming presort pricing, effective January 7, 2013 (extended to January 27, 2013). Therefore the surcharge for parcels not bearing a barcode is no longer applicable for First-Class Package Service parcels claiming 5-digit, 3-digit or area distribution center (ADC) prices. The Postal Service will retain the surcharge for First-Class Package Service parcels claiming mixed ADC/single-piece prices that do not have a barcode. This surcharge and the surcharge for irregularly shaped First-Class Package Service parcels will increase to $0.08 per piece.

On average, Parcel Select prices will increase 9.0 percent.

The average price increase for Parcel Select Destination Entry destination delivery unit (DDU) is 8.0 percent, for destination sectional center facility (DSCF) 4.9 percent, and for destination network distribution center (DNDC) 4.8 percent.

The prices for Parcel Select NDC (network distribution center) and ONDC (origin network distribution center) presorted parcels are increasing 5.7 and 4.3 percent respectively. The prices for Parcel Select Nonpresort parcels are increasing 4.2 percent.

The prices for Parcel Select Lightweight TM (PSLW) will increase 9.8 percent. The IMpb will continue to provide free USPS tracking and confirmation of delivery with PSLW as well.

The Postal Service has decided to discontinue Parcel Select Regional Ground TM service due to inadequate usage.

On July 20, 2012, in Docket No. MC2012-13, the PRC gave conditional approval for Parcel Post to be transferred to the competitive product list. The three conditions outlined in the docket have been met. Parcel Post is now a competitive product and pending review by the PRC the product will be renamed “Standard Post TM ”. A global change will be made to the DMM for the January 27, 2013, update.

As a result of the transfer of Parcel Post to a competitive product, it will no longer be included under the list of products that comprise Package Services. Parcel Post will only be offered through retail channels, and will include USPS tracking and confirmation of delivery at no additional charge. Customers will now be able to access processing and delivery scans for their parcels online at USPS.com®.

Adult Signature Service prices are increasing. The price for Adult Signature Required is $4.95 and Adult Signature Restricted Delivery is $5.15.

In response to the structural changes being made to Delivery Confirmation extra service labels, the Postal Service will replace the current Label 314, electronic Delivery Confirmation, with a new Label 400, USPS Tracking. Label 400 will include an Intelligent Mail package barcode and will be provided for use by electronic option mailers. These labels may also be affixed to retail mailpieces by USPS retail associates when an applicable mailpiece is presented at a retail location without postage validation imprint (PVI) capability.

Parcel Return Service (PRS) prices will have an overall price increase of 4.8 percent. Return Network Distribution Center (RNDC) prices will have a 1.0 percent increase; Return Sectional Center Facility (RSCF) prices will increase less than 1.0 percent, and Return Delivery Unit (RDU) prices will increase 8.5 percent.

The Parcel Return Service annual permit fee and annual account maintenance fee are increasing. Information on fees can be found in the Domestic Mailing Services Federal Register Notice.

PRS participants are required to use labels that meet the specific criteria described in the DMM. To allow for the consistent capture and staging of PRS mailpieces at their intended pick-up points, the Postal Service has constructed a rigorous precertification process to assure PRS labels meet these established criteria.

The Postal Service has recently become aware of incidents where PRS permit holders have used noncompliant labels, resulting in PRS parcels being routed to the address on mailpiece, instead of the intended pick-up point. In addition, some PRS permit holders have requested exceptions for the use of noncompliant dual-purpose labels that have also resulted in the misdirection of PRS mailpieces to the address on the label. Currently, the Postal Service does not have a pricing mechanism to account for these instances where additional handling has occurred due to a mailer's noncompliant label.

As a result, the Postal Service will now specify when noncompliant labels are affixed to PRS parcels, which travel through the postal network to the delivery address on the label, the permit holder will be charged postage at the appropriate Parcel Post price, calculated from the parcel's entry point in the USPS network to its delivery address. If the parcel's entry point can not be determined, then postage will be calculated at Zone 4.

The Postal Service is introducing a new option for mailers receiving large quantities of return parcels, Parcel Return Service—Full Network (PRS— Full Network). Mailers with an annual volume of 50,000 or more return parcels, and who desire a full-network option from the USPS may enroll in PRS—Full Network.

PRS—Full Network provides a new returns option for mailers to receive return parcels entered by their customers anywhere within the Postal Service's network. PRS—Full Network features full network pricing, encompassing all eight USPS zones. To expedite delivery, PRS—Full Network will generally bypass the mailer's local delivery unit and will provide delivery of return parcels directly from the processing facility/sectional center facility (SCF) servicing the location of the mailer's designated return site.

PRS—Full Network participants will be required to pay postage through the scan based payment (SBP) program as specified in the DMM, and must obtain a Centralized Account Payment System (CAPS) debit account (instructions for enrollment are provided on the RIBBS Web site at http://ribbs.usps.gov ). Participants will also be required to pay an annual Parcel Return Service (PRS) fee and an annual PRS account maintenance fee.

Each PRS—Full Network mailpiece must bear an Intelligent Mail package barcode that includes the appropriate service type code (STC), and a selection of STCs have been developed for use with PRS—Full Network mailpieces. Detailed specifications are defined in Publication 91, Confirmation Services Technical Guide.

The addition of PRS—Full Network to the USPS product line provides an alternative to the current first-mile option available through its regular PRS returns network, and a full network solution for those mailers who are unable to pick-up their returns at the locations specified in conventional PRS agreements.

This revision also incorporates clarifying language in the DMM under Scan Based Payment, providing that participants must pay postage through a Centralized Account Payment System (CAPS) debit account. This requirement has been a condition for the use of Scan Based Payment since its inception.

The enrollment fee for Premium Forwarding Service® (PFS®) will not increase, remaining at $15.00. The price of the weekly reshipment charge will increase from $15.25 to $17.00.

The USPS Package Intercept TM fee will not change for January 2013.

The Pickup on Demand® service daily fee will increase from $15.30 to $20.00.

The Postal Service is revising the DMM to include Pickup on Demand enhancements that automate the payment method for all package pickup services, and also adds an option for requesting recurring pickups through the online package pickup program at www.usps.com.

Additionally, the Postal Service is revising the DMM to rename “Carrier Pickup” (a pickup that occurs as part of a regularly scheduled delivery or collection stop) as Package Pickup.

The competitive Post Office Box TM service prices will increase an average of 2.6 percent within the existing price ranges previously set.

New for January 2013, customers can order flat rate packaging supplies online in smaller quantities than currently provided and will be able to pay a fee to get supplies delivered faster than the current free service provided. The new expedited service fee is priced at $2.50.

The Postal Service provides additional resources to assist customers with this price change for Shipping Services. These tools include price lists, downloadable price files, and Federal Register Notices, which may be found on the Postal Explorer Web site at pe.usps.com.

The Postal Service adopts the following changes to Mailing Standards of the United States Postal Service, Domestic Mail Manual (DMM), incorporated by reference in the Code of Federal Regulations. See 39 CFR 111.1.

Accordingly, 39 CFR part 111 is amended as follows:

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

This action deals with revisions to California's federally-approved program to reduce volatile organic compound (VOC) emissions from the use of agricultural and structural pesticides to improve ozone air quality in five areas of the State: the South Coast, Southeast Desert (SED), Ventura County, San Joaquin Valley (SJV), and Sacramento Metro ozone nonattainment areas. VOC from pesticides and other sources react in the atmosphere with nitrogen oxides (NO X ) from mobile and other combustion sources in the presence of sunlight to form ozone.

EPA is approving as revisions to California state implementation plan (SIP) regulations and commitments adopted by the California Department of Pesticide Regulation (CDPR). These CDPR regulations and commitments were submitted by the California Air Resources Board (CARB) to EPA as follows:

1. October 12, 2009 submittal of the following CDPR regulations:

• Title 3 California Code of Regulations (3 CCR), sections 6447 (first paragraph) and 6447.3-6452 pertaining to field fumigation methods;

• Portions of 3 CCR sections 6452.1-6452.4 and sections 6624 and 6626 pertaining to emissions inventory;

• 3 CCR sections 6452.2 and 6452.3 pertaining to field fumigation limits and allowances in the Ventura County ozone nonattainment area.

2. October 12, 2009 submittal of CDPR's revised SIP commitment for the San Joaquin Valley (adopted by the CDPR Director, April 17, 2009). This submittal limits VOC emissions from the use of agricultural and commercial structural pesticides in the SJV to 18.1 tons per day (tpd) and commits CDPR to implement restrictions on non-fumigant pesticides in the SJV by 2014.

3. August 2, 2011 submittal of the following CDPR regulations that revised in part and added to the October 12, 2009 submittal:  1

• 3 CCR sections 6448.1, 6449.1, and 6450.1 pertaining to fumigation method restrictions.

• Portions of 3 CCR sections 6452.2 and 6452.3 pertaining to field fumigation limits and allowances in the Ventura County ozone nonattainment area.

• 3 CCR section 6452.4 pertaining to the annual VOC emissions inventory report.

• 3 CCR section 6626 pertaining to pesticide use reports.

EPA proposed to approve these submittals as revisions to the California SIP on April 24, 2012 at 77 FR 24441. A detailed discussion of these submitted revisions, the Clean Air Act (CAA) and EPA requirements applicable to them, and our evaluation can be found in the proposed rule and the technical support document (TSD) for this final action. 2 In this final rule, EPA is approving these revisions to the California SIP based on our conclusion that they comply with applicable CAA and regulatory requirements for SIP revisions. We are also finding that the fumigant regulations meet the CAA section 182(b)(2) requirement to provide for reasonably available control technology on the application of fumigants in the SJV.

In the April 24, 2012 proposal, EPA also provided its preliminary response to the remand by the Ninth Circuit Court of Appeals in Association of Irritated Residents v. EPA, 632 F.3d 584 (9th Cir. 2011), revised January 27, 2012 ( AIR ). This remand required EPA to evaluate the California SIP Pesticide Element for enforceability under the CAA. See 77 FR 24441, 24447. In this action, we are finalizing that response without change.

Lastly, in our April 24, 2012 proposed rule, we referred to another Ninth Circuit petition for review, El Comite Para El Bienestar De Earlimart v. EPA (No. 08-74340) (“ El Comité ”). 77 FR 24441 at 24448. In El Comité, various environmental and community groups challenged EPA's 1997 approval (62 FR 1150, Jan. 8, 1997) of the 1994 SIP for the 1-hour ozone standard for various California nonattainment areas (“1994 California Ozone SIP”), which included approval of the California SIP Pesticide Element, on the basis of the same 2008 Ninth Circuit decision, El Comité Para El Bienestar De Earlimart v. Warmerdam, 539 F.3d 1062) (“ Warmerdam ”), that was the basis for the remand in Association of Irritated Residents. At the time of our April 24, 2012 proposed rule, the Ninth Circuit had not issued its decision in El Comité.

Since then, the Ninth Circuit has issued a remand order to EPA in El Comité to reconsider its approval of the 1994 California Ozone SIP in light of the Warmerdam decision, as required by the remand in Association of Irritated Residents. 3 The remands in both Association of Irritated Residents and El Comité necessitate the same evaluation (i.e., for CAA enforceability) for the same portion of the California SIP (i.e., the California SIP Pesticide Element). Thus, our decision not to rescind or amend our 2009 re-approval of the California SIP Pesticide Element, in light of today's action approving the CDPR's revised SIP commitment for the San Joaquin Valley and fumigant regulations, finalizes not only our response to the remand in Association of Irritated Residents, but it also finalizes our response to the remand in El Comité.

EPA provided the public an opportunity to comment on its proposal to approve the revisions to the California SIP Pesticide Element for 30 days following the proposal's April 24, 2012 publication in the Federal Register . We received one comment letter on the proposed approval. This letter was submitted by the Center on Race, Poverty and the Environment on behalf of itself and 41 California environmental and community organizations (collectively “El Comité”). See letter, Brent Newell, General Counsel, Center on Race, Poverty & the Environment, May 24, 2012. We summarize our response to El Comité's main comments below. Our complete responses to all comments received can be found in section III of the TSD. A copy of the comment letter and its attachments can be found in the docket for this rule.

Comment: El Comité argues that CDPR's revised SIP commitment to limit pesticide VOC emissions in the SJV to no more than 18.1 tpd is not enforceable because citizens may not enforce the manner in which the Department calculates the baseline inventory and subsequent years' inventories as a means to challenge a failure to adopt regulations or otherwise to limit pesticide VOC emissions in the SJV. They (El Comité) also argue that including the inventory calculation procedures in the SIP would not make the revised commitment enforceable.

Response: Except for the analysis required by CAA section 110(l), the SJV baseline (that is, the 1990 baseline used to calculate the required level of emissions reductions) is no longer at issue now that the State has fixed the maximum level of pesticide VOC emissions allowed in the SJV at a fixed 18.1 tons per day (tpd). 4 Once this limitation is incorporated into the SIP, the 1990 baseline inventory will be of only historical interest and neither it nor the calculation procedures used for it need to be enforceable. Therefore, in addressing El Comité's comments, we will focus on the enforceability of the calculation procedures for the subsequent years' inventories.

The “emissions inventories” required by both the revised SIP commitment for the SJV and the fumigant regulations should not be confused with the emissions inventories that are required by specific sections of the CAA, such as sections 172(c)(3) and 182(a)(1). They are not the same in either scope or purpose. CAA section 172(c)(3) requires SIPs to “include a comprehensive, accurate, current inventory of actual emissions from all sources of the relevant pollutant or pollutants in such [nonattainment] area. * * *” The purpose of the comprehensive inventories required by this and similar CAA sections is to provide the basis for, among other things, the demonstrations of attainment and progress toward attainment required, for example, by CAA sections 182(c)(2)(A), 182(b)(1), and 182(c)(2)(B). Emissions inventories submitted to meet the CAA's specific inventory requirements are intended to describe but not control emissions from sources and source categories in the inventory and thus are not enforceable emission limitations as defined by CAA section 302(k).

In contrast, the “emissions inventory” called for in the revised SIP commitment and fumigant regulations is not a specific requirement of the CAA. It is instead an emissions estimation for a single emissions source—pesticide usage in the SJV—for the sole purpose of “evaluat[ing] compliance with the 1994 SIP pesticide element for SJV.” Revised SIP commitment for the SJV, p. 2. Together with the calculation methodology in the Neal memorandum, 5 the annual inventory requirement in 3 CCR section 6452.4(a)(1), and the reporting and recordkeeping requirements in sections 6624 and 6626, it is the means for monitoring compliance of this emissions source (pesticide usage in the SJV) with its applicable emission limit of not more than 18.1 tons of VOC per day.

Under the CAA and EPA regulations, a wide range of data and means of collecting data qualify as methods to monitor compliance. CDPR's procedures for monitoring compliance with the 18.1 tpd emission limit for VOC emissions from pesticides in the SJV fall squarely within this range. See, for example, 40 CFR 64.1 (defining compliance monitoring to include emission estimation and calculation procedures).

EPA considers the compliance monitoring associated with an emission limitation to be part of that limitation and, once incorporated into the SIP, enforceable under CAA sections 113 and 304. Therefore, including the inventory calculation procedures along with the requirements for an annual emissions inventory report and recordkeeping and reporting by pesticide users (which collectively constitute the compliance monitoring procedures for the 18.1 tpd emission limit), in the SIP will make CDPR's revised commitment for the SJV fully enforceable under CAA sections 113 and 304.

We also note that citizens seeking to enforce the revised commitment for the SJV under CAA section 304 are not restricted to using CDPR's inventory procedures or CDPR-generated inventories to demonstrate a violation. Under the CAA and EPA regulations, citizens may use any credible evidence of violation to enforce a SIP-approved emission limitation under CAA section 304. See CAA section 113, 40 CFR 51.212(c) and 40 CFR 52.12 and 52.30.

Comment: El Comité comments that EPA proposes to find that the revised SIP commitment for the SJV is enforceable based on the Neal memorandum, citing to the proposed rule at 77 FR 24441, 24444. It then claims that EPA contradicts itself by stating the SIP revision is unenforceable because it does not commit to specific measures to ensure that the 18.1 tpd limit is not exceeded, citing to the proposed rule at 77 FR 24441, 24450.

Response: We did not propose to find that the revised commitment for the SJV is enforceable based solely on the Neal memorandum. In the proposed rule, we cite not only to the Neal memorandum but also to several other provisions in CDPR's submitted regulations  6 and to the fumigant application method regulations to find that the 18.1 tpd emission limit for the SJV is enforceable:

This statement is consistent with the one later in the proposed rule that El Comité claims contradicts it:

Comment: El Comité argues that EPA's proposal to approve the revised SIP commitment for SJV as enforceable conflicts with the Ninth Circuit's decision in Warmerdam. They assert that in this decision, the Ninth Circuit did not allow citizens to “bootstrap” arguments of inventory manipulation to enforce a commitment to adopt regulations, citing Warmerdam at 1072-73. El Comité argues that the revised SIP commitment is a discretionary commitment and that the CAA does not allow such discretionary commitments.

Response: Our finding that the revised commitment for SJV is enforceable does not conflict with Warmerdam. In Warmerdam, the Ninth Circuit ruled that the baseline inventory could not be turned into an enforceable emission limitation by “bootstrapping it to the commitment to adopt regulations.”

As explained above, except for the analysis required by CAA section 110(l), the SJV baseline (that is, the 1990 baseline used to calculate the required level of emissions reductions) no longer has a purpose now that the State has set the maximum level of pesticide VOC emissions allowed in the SJV at a fixed 18.1 tpd. Once that limitation is incorporated into the SIP, the 1990 baseline inventory will be of historical interest only and neither it nor the calculation procedures used for it need to be enforceable in the future. We note that this will also be true for the 1990 baseline inventory for Ventura County once we approve the fumigant regulations.

CDPR's revised SIP commitment for the SJV is not a discretionary commitment. As discussed above and in the proposed rule, the commitment (including the fixed 18.1 tpd limitation on pesticide VOC emissions in the SJV), the monitoring procedures necessary to determine compliance with it, and the fumigant regulations combine to be a fully enforceable program under the CAA once approved into the SIP. We note again that citizens may use any credible evidence to enforce the commitment and are not restricted to using inventories generated by the State.

Comment: El Comité argues that the revised commitment by CDPR to manage pesticides emissions in the SJV is unenforceable because it is impractical to determine whether emissions levels are exceeded because inventories are only available two years after the fact. They further argue that the emission controls should constantly limit pesticide VOC emissions and “not lag two years behind.” To support these arguments, El Comité cites to the discussion of the fundamental principles for SIPs and control strategies found in the General Preamble at 13567-13568, 7 noting in particular the second principle relating to enforceable measures. They also cite to the General Preamble's discussion of enforceability of SIP regulations at 13502.

Response: El Comité confuses two requirements: the requirement that an emission limitation assures continuous emissions reductions and the requirement for a practical means of determining compliance with that emission limitation. The cited sections of the General Preamble all address the latter requirement. We have reviewed CDPR's revised SIP commitment for the SJV against the criteria for enforceability given in the General Preamble and determined that it meets them. See TSD, section III.B., Response B-6.

As to the requirement for continuous emissions reductions, we cannot consider the 18.1 tpd emission limit for the SJV as unrelated to the fumigant regulations. Not only do the fumigant regulations contain the reporting and recordkeeping requirements necessary for monitoring compliance with the limit, they also contain the principal control requirements for maintaining pesticide VOC emissions in the SJV under that limit. CDPR considers the 1.5 tpd in emissions reductions from the application method restrictions in the fumigant regulations to be sufficient to meet the SJV limit in a typical year. 8 These restrictions apply throughout the May 1 to October 30 regulatory season and thus provide for continuous emissions reductions during that season.

As a practical matter, CDPR produces the inventories as soon as practicable given the size and complexity of the source at hand (pesticide usage in the SJV), the sheer amount of data that must be evaluated, and the requirement in 3 CCR section 6452.4(b) that the public be given 45 days to comment on the draft inventories.

Comment: El Comité comments that the commitment in the existing 1994 Pesticide Element is both a tonnage commitment in an areas' attainment year and a percentage commitment: 13 tpd reduction by 1999 and 20 percent reduction from 1990 by 2005 in the SJV.

Response: We agree that the commitment in the 1994 Pesticide Element  9 is both a tonnage commitment and a percentage commitment, and we agree that the ton per day reduction called for in the Element is 13 tpd. Where EPA disagrees with El Comité is that EPA has concluded that the percentage commitment corresponds to the tonnage commitment in that they both relate directly to the attainment needs of SJV in achieving the 1-hour ozone standard by 1999 as anticipated by California in 1994 and 1996 in developing its Ozone SIP, and approved by EPA in 1997 when EPA approved that plan.

We explained the basis for our conclusion in this regard on pages 24446-24447 of the proposed rule. First, we note that the Boyd Letter, while clarifying certain other aspects of the Pesticide Element, introduced an ambiguity in the percentage commitment for SJV by stating, in the same paragraph, that the commitment in each SIP area (which in this context presumably includes SJV) is for a 20 percent reduction from 1990 to 2005 and that the credit taken in SJV is 12 percent.

To resolve this ambiguity, EPA is taking into account the words of the 1994 Pesticide Element itself and the words of EPA's final rule approving the 1994 California Ozone SIP, including this Element.

First, the 1994 Pesticide SIP committed CDPR to a “maximum of 20 percent” reduction in pesticide VOC emissions from 1990 baseline levels in areas “which reference VOC reductions” from the element in their plans. See 1994 Pesticide SIP, p.1. In the case of SJV, the “plan” that references VOC reductions from the Pesticide Element is the attainment demonstration plan for SJV in the 1994 California Ozone SIP, and it took credit for a 12 percent (not a 20 percent) reduction in baseline emissions from 1990.

Second, the Pesticide SIP states: “[t]he plan offers the flexibility to achieve reductions of less than 20 percent by the year 2005 in air districts if less pesticide VOC emission reductions are needed.” Id. At the time when the 1994 California Ozone SIP was adopted and approved, the applicable attainment date for SJV was 1999, and the 1994 California Ozone SIP, as ultimately approved, took credit for only a 12 percent reduction in pesticide VOC emission in that area because that was all that the attainment demonstration at the time called for from that source category. By its terms, the 1994 Pesticide SIP was developed specifically to be flexible enough to provide for a less-than-20 percent reduction in areas that did not need the full 20 percent to meet attainment needs.

Third, in EPA's final rule approving the 1994 California Ozone SIP (and the related 1994 Pesticide Element), we summarized our understanding of the emissions reduction commitments in the Pesticide Element as follows: “As described in the SIP, California has committed to adopt and submit to U.S. EPA by June 15, 1997, any regulations necessary to reduce VOC emissions from agricultural and commercial structural pesticides by 20 percent of the 1990 base year emissions in the attainment years for Sacramento, Ventura, Southeast Desert, and the South Coast, and by 12 percent in 1999 for the San Joaquin Valley.” See 62 FR at 1150, at 1170 (January 8, 1997). Therefore, in view of the overall design and purpose of the 1994 Pesticide Element and EPA's understanding of the commitments in the Element at the time of the approval of the Element into the California SIP, we have concluded that the approved Pesticide Element includes a 12 percent emissions reduction commitment in SJV, not a 20 percent emissions reduction commitment.

Comment: El Comité comments that the plain language of the 1994 Pesticide SIP and the [Boyd] Letter together commit to achieve a 20 percent reduction of pesticide VOC from 1990 levels by 2005, and EPA's approval of the revised SIP commitment for SJV will violate section 110(l) because CDPR and CARB have failed to demonstrate the change in the commitment to 12 percent will not interfere with attainment, reasonable further progress (RFP), or any other requirements of the CAA. They also comment that EPA's finding that the existing commitment is for 12 percent (rather than 20 percent) and that, as a result, approval of the revised SIP commitment for SJV would not violate section 110(l), has no basis in the plain language of the SIP, and is contrary to the Ninth Circuit's decision in Safe Air for Everyone v. EPA, 488 F.3d 1088 (9th Cir. 2007).

Response: As discussed above, EPA believes that the SIP commitment in the 1994 Pesticide SIP (as modified by the Boyd Letter) for SJV is ambiguous and thus subject to interpretation. We have interpreted the 1994 Pesticide SIP and Boyd Letter, in light of the language of both and do not find any one sentence of either document to be a definitive statement as to the commitment in SJV. Rather, in light of CDPR's stated purposes and design of the 1994 Pesticide Element itself, and the reliance on it by California in demonstrating attainment of the SJV by 1999 with respect to the 1-hour ozone standard, we have concluded that, consistent with EPA's language in approving the 1994 Pesticide Element, that the commitment is a 12 percent commitment in SJV. Thus, we do not view our approval of the revised SIP commitment for SJV as a relaxation in the California SIP because it would result in the same emissions reductions as would result under the existing approved California SIP Pesticide Element.

Our conclusion in this regard is not contrary to the Ninth Circuit's decision in the Safe Air case cited by El Comité. As noted by El Comité, in Safe Air, the Ninth Circuit held that the content of a SIP is based on its “plain meaning when such a meaning is apparent, not absurd, and not contradicted by the manifest intent of EPA, as expressed in the promulgating documents available to the public.” Safe Air for Everyone v. EPA, 488 F.3d 1088, at 1100 (9th Cir. 2007). In this instance, the meaning of the 1994 Pesticide Element's percent reduction SIP commitment for SJV is not “plain,” and even if it were, it is “contradicted by the manifest intent of EPA, as expressed in the promulgating document available to the public,” i.e., EPA's 1997 final rule approving the 1994 Pesticide Element into the California SIP. Thus, EPA's interpretation of the Element's percent reduction SIP commitment for SJV in the context of this rulemaking is consistent with the Ninth Circuit's decision in Safe Air and consistent with EPA's stated interpretation in 1997 of this same commitment.

As to CAA section 110(l), relative to California's and EPA's interpretation of the Pesticide Element to require a 12 percent reduction in pesticide VOC emissions in (rather than 20 percent) from a 1990 baseline, we have concluded that the revised SIP commitment for SJV would result in, at a minimum, the same emissions reductions that are currently required under the approved SIP, and neither the approved 8-hour ozone plan nor the approved PM 2.5 plan for SJV rely on emissions reductions due to the Pesticide Element. As such, we have also concluded, as we did for the proposed rule, that our approvals of the fumigant regulations and revised SIP commitment for SJV will not interfere with attainment and RFP or any other applicable requirement of the CAA and thus comply with the requirements of CAA section 110(l). See 77 FR 24441, at 24447.

Comment: El Comité comments that an approval of the revised SIP revision would violate CAA section 110(l) because neither CDPR nor CARB has demonstrated that the SIP revision does not backslide when it changes the manner by which the 1990 baseline inventory is calculated. They contend that the 1994 Pesticide Element committed CDPR to using the 1991 Pesticide Use Report (PUR) data to estimate the 1990 baseline inventory because “such data is more accurate than 1990 PUR data.”

Response: CAA section 110(l) does not prohibit any backsliding and does not bar approval of a SIP revision based solely on a state's failure to accompany the revision with a demonstration of non-interference. Section 110(l) only prohibits backsliding that would interfere with any applicable requirement of the CAA.

As stated above, we have concluded that the emissions reduction commitment in SJV under the existing SIP is 12 percent from 1990 levels, not 20 percent, and thus, the establishment of a 18.1 tpd limit (which represents a 12 percent reduction from 1990) through this SIP revision would result in the same emissions reductions from pesticide VOC emissions as required under the existing SIP.

We reviewed the language of the existing Pesticide SIP itself to see whether it could be reasonably interpreted to allow for use of 1990 PUR data, rather than 1991 PUR data, to determine whether the establishment of the 18.1 tpd limit (determined using 1990 PUR data) represents a revision to the SIP that would result in an emissions impact. If the existing SIP could be reasonably interpreted to allow for use of 1990 PUR data, then no emission impact would result.

The 1994 Pesticide SIP requires that a 1990 baseline inventory be used to determine the level of emissions reductions needed: “[t]his plan is designed to reduce volatile organic compound (VOC) emissions from agricultural and commercial structural pesticide applications by a maximum of 20 percent from the 1990 baseline * * *.” p. 1. The 1994 Pesticide SIP is clear that this 1990 baseline inventory is to represent conditions in 1990:

• “The base year inventory will be created from the 1991 Pesticide Use Report and then adjusted by a factor to represent the 1990 base year.” p. 5;

• “In cooperation with DPR, [CARB] will develop a baseline inventory of estimated 1990 pesticidal VOC emissions based on 1991 pesticide use data, adjusted to represent the 1990 base year.” p. 6;

• “The baseline inventory will be calculated by summing the estimated 1990 emissions of each agricultural and commercial structural use pesticide.” p. 6;

• “[Estimated 1990 e]missions will be calculated by multiplying the VOC Emissions Factor value for each product by the adjusted use of that product in 1990.” p. 5.

The 1994 Pesticide SIP also emphasizes the use of the best available information to calculate the inventory, including in the rationale for using the 1991 PUR data in lieu of the 1990 data. It also allows (on page 6) for “further adjust[ments] by additional VOC Emission Factors if additional information becomes available.” While this statement applies to VOC emission factors, it would be counter-intuitive to limit adjustments to just this type of data if the primary interest is to produce the best possible assessment of pesticide VOC emissions in the 1990 base year.

In the 1994 Pesticide SIP (page 5), CDPR stated it would use the 1991 PUR data (backcasted to represent 1990) as the starting point for calculating the 1990 baseline inventory because “[i]t is believed that the 1991 pesticide use report would be a more accurate source to determine 1990 pesticidal VOC emissions.” CDPR did not concede that the 1991 PUR data was more accurate and thus left open the option to use 1990 PUR data to calculate the 1990 baseline inventory if that data was determined to be more or similarly accurate. CDPR would later determine that the data for the two years was in fact of similar accuracy. This determination weakens any reading that the SIP mandates the use of the 1991 PUR data, given the SIP's emphasis on the 1990 baseline inventory reflecting 1990 conditions and on the use of the best available data.

We also observe that the use of unbackcasted 1991 PUR data to calculate the baseline inventory results in a 1991 baseline inventory. Using a 1991 baseline inventory to set SJV's (or any area's) pesticide VOC emission limit, as El Comité advocates, would conflict with the plain language of the 1994 Pesticide SIP, which indisputably requires that these emission limits be set from a 1990 baseline.

For these reasons, we conclude that the existing Pesticide Element does allow for the use of 1990 PUR data to determine 1990 baseline emissions, and thus, the establishment of an 18.1 tpd emission limit in the Valley that derives from 1990 PUR does not represent a revision to the SIP that results in higher emissions than would be allowed under the existing Pesticide Element.

For the purposes of this response, we have also investigated further the possibility that unbackcasted 1991 PUR data is required under the existing SIP and that use of 1990 PUR data would result in a higher limit than one resulting from the use of unbackcasted 1991 PUR data to establish the baseline emissions. To do this, we used information from the CDPR staff report on the revised SIP commitment for SJV to isolate the potential emissions impact of using 1990 PUR data rather than unbackcasted 1991 PUR data and calculated the difference to be 0.7 tpd. 10 In other words, if unbackcasted 1991 PUR data were required to be used in connection with establishing baseline VOC emissions from agricultural and commercial structural applications, then, based on data in the CDPR staff report, the corresponding limit in SJV (ensuring a 12 percent reduction) would be 17.4 tpd, 0.7 tpd lower than the 18.1 tpd limit developed using 1990 PUR data.

Alternatively, based on this analysis, we find that, even if the existing SIP required the use of unbackcasted 1991 PUR data to calculate the baseline and the use of the 1990 PUR data represented a revision to the SIP, we find that the potential emissions impact (0.7 ton per day of VOC higher limit) of using 1990 PUR data instead would not interfere with RFP or attainment of the NAAQS, for the following reasons. 11 As to ozone, we note that the approved 1997 8-hour ozone plan for SJV shows how the plan provides for VOC and NO X reductions that surpass RFP requirements and provides for expeditious attainment even without considering any VOC reductions from pesticides. See 76 FR 57846, 57861 and 57858 (September 16, 2011) and 77 FR 12652 (March 1, 2012). The SJV area has recently been designated as extreme nonattainment for the 2008 8-hour ozone NAAQS, but the nonattainment plan for that standard is not due until 2015. See 77 FR 30088 (May 21, 2012) and 40 CFR 51.908.

As to particulate matter (PM), we reiterate our observation from our proposed rule (at page 24447) that EPA has determined that VOC controls are not required for PM control in the SJV. See 72 FR 20586, 20589 (April 25, 2007); 69 FR 30006, 30007 (May 26, 2004); and 76 FR 69896, 69924 (November 9, 2011). In addition, we note that while the EPA-approved PM plans do not address the 2006 PM 2.5 NAAQS for which the SJV has also been designated as “nonattainment,” 74 FR 58688 (November 13, 2009), the nonattainment plan for the 2006 PM 2.5 NAAQS is not due until December 2012.

Comment: El Comité asserts that because the 1994 Pesticide Element calls for year-round reductions, approval of the revisions would violate CAA section 110(l) because neither CDPR nor CARB has demonstrated that the SIP revision does not backslide when the SIP revision only calls for seasonal (May through October) controls.

Response: CAA section 110(l) does not prohibit any backsliding and does not bar approval of a SIP revision based solely on a state's failure to accompany the revision with a demonstration of non-interference. Section 110(l) only prohibits backsliding that would interfere with any applicable requirement of the CAA.

El Comité provides no support for their position that the 1994 Pesticide Element requires year-round reductions. They do not cite to specific language in the Element and make no arguments as to why it should be interpreted to require year-around reductions. In our review of the 1994 Pesticide Element, we find nothing in it that directly addresses the issue of year around versus seasonal controls. Even with the most generous reading, the 1994 Element is at best ambiguous on the subject. This issue is also not directly addressed in EPA's rulemakings on the 1994 Ozone Plan. For these reasons, we have looked to California's stated purpose for including the 1994 Pesticide Element in its SIP and how the State relied on the emissions reductions from the Element to discern the best interpretation of its requirements regarding seasonality.

California submitted the 1994 Pesticide Element as part of its comprehensive plan to meet the 1-hour ozone standard and included reductions from this measure in the attainment demonstrations for the South Coast, Southeast Desert, Ventura County, SJV, and Sacramento nonattainment areas. From the language of the 1994 Pesticide Element itself, the reason for including a measure to reduce pesticide VOC emissions in the SIP was to address pesticide's contribution to ozone formation. See 1994 Pesticide SIP, p. 1.

Ozone is a seasonal pollutant with unhealthy levels being recorded mainly in the summer months when conditions are most conducive to its formation. The seasonality of ozone standard exceedances is reflected in EPA's policies and regulations that require ozone SIPs to include summer season inventories. See, for example, EPA's General Preamble at 57 FR 13498, 13502.

We described California's definition of its “summer season” (that is, its ozone season) in our proposed approval of the 1994 Ozone SIP as being from May through October. See 61 FR 10920, 10937. Consistent with the summer season being the period of concern for ozone, all the emissions inventories, the rate of progress demonstrations, and the attainment demonstrations in the 1994 Ozone SIP are expressed in tons per summer day. See, for example, 61 FR 10920, 10943-44. Estimates of emissions reductions from measures are also expressed in tons per summer day.

Taken together, these facts argue that the 1994 Pesticide Element as approved can be reasonably interpreted to apply only to the ozone season. As we noted above, this ozone season was defined by California in its 1994 Ozone SIP as being from May to October, the exact period that the fumigant regulations and the revised pesticide commitment for SJV cover. We, therefore, find that approval of these SIP revisions does not violate CAA section 110(l) on the basis that they provide for seasonal controls only.

Comment: El Comité alleges that the fumigant regulations are not enforceable because they do not guarantee that citizens and EPA have access to data to evaluate pesticide users' compliance with the fumigant application methods or permits issued by County Agricultural Commissioners (CAC).

Response: Under the fumigant regulations, applicators (farm operators or pest control businesses) are required to limit their use of fumigant-specific application methods during May 1- October 31 to those methods specified in the regulations. An applicator demonstrates compliance with the regulations by reporting the details of each fumigant application (e.g. the permittee/property operator, operator ID/permit number, acres planted, acres treated, application method, crop, date, time, and location) to the CAC, which in turn, provides the data to CDPR. As El Comité acknowledges, the public can obtain PUR data by making a California Public Records Act (CPRA) request to the CAC or CDPR. In addition, CDPR makes the PUR data available electronically to the public for free at the California Pesticide Information Portal (CalPIP) Web site at http://calpip.cdpr.ca.gov/main.cfm. The fact that the public has free online access to individual and summary PUR data enhances enforceability as compared to other SIP regulations, for which the data may be only accessible through a CPRA request.

We note again that citizens are not limited to enforcing based solely on records reported by sources. Under applicable CAA and regulatory provisions, any credible evidence of violation may be used. Such credible evidence might include, for example, photographs of a fumigant application taken from a public road.

Comment: El Comité states that the two-year record retention time in 3 CCR section 6624(g) severely undermines enforceability of the fumigant regulations because PUR data may no longer be available by the time CDPR publishes its Annual Emissions Inventory Report, up to two years later.

Response: The PUR data used to determine compliance with the fumigant regulations and to support enforcement is available to regulators and the public well before the two-year user retention provision ends. The fumigant regulations require the property operator to submit a PUR to the CAC by the 10th of the month following each fumigant application. Pest control businesses must submit the PUR to the CAC within 7 days of the application. See 3 CCR section 6626(a) and (b). The public can request PUR data from the CAC as soon as the PUR is submitted. The CAC must submit to CDPR a copy of each PUR received, and any other relevant information required by CDPR, within one calendar month after the CAC receives it. See California Food and Agricultural Code (CFAC) section 14012(b). CDPR publishes the PUR data online approximately one year after the growing season ends. 12 The PUR data, which is an input to the Annual Emissions Inventory Report, is not destroyed after two years, but rather it is retained and available on an on-going basis in CDPR's publicly-available, free and online PUR database at http://calpip.cdpr.ca.gov/main.cfm.

Comment: El Comité states that there are no monitoring provisions that would allow for an evaluation of whether the pesticide user met the emissions reductions specified for each fumigant application method or whether the user complied with a fumigant VOC emission limit.

Response: No such monitoring provisions are needed because the fumigant regulations do not require that an individual pesticide user meet either specific emissions reductions or the fumigant emission limit. Rather, they prohibit the use of certain fumigant application methods during the peak ozone season. In this way the fumigant regulations are similar to other regulations that require (or prohibit) use of certain control measures or work/management practices but do not otherwise require the source to meet specific numerical emission limits. 13 EPA has approved many regulations that require the use of specific control methods, rather than a specific emission limit. For example, SIP regulations require gasoline stations to install pre-approved vapor recovery devices but do not concurrently require them to meet an emission limit. 14 SIP rules for confined animal feeding operations, open burning, and agricultural fugitive dust are examples of regulations that require the use of specific management practices rather than compliance with a specific emission limit, similar to CDPR's pesticide regulations. 15

Under the SIP, fumigant VOC emission limits will apply only in Ventura County. 3 CCR section 6452.2. Ventura County's overall pesticide VOC emission limit is monitored through the annual emissions inventory that is calculated by CDPR and not by individual pesticide users. Section 6452.4(a)(2). If pesticide VOC emissions in a given year approached or exceeded the limit, then CDPR and Ventura County CAC are required to implement a fumigant limit/allowance system and to condition or deny restricted use permits to limit fumigant VOC emissions until overall pesticide VOC emissions, as reported in the annual emissions inventory, fall back below the limit for two consecutive years. Id.

Comment: El Comité states that the regulations are not federally enforceable because they fail to require sources to comply with new permit conditions should the fumigant VOC emission limit and allowance system be triggered under 3 CCR section 6452.2.

Response: The requirement to condition permits to comply with a fumigant VOC emission limit is only applicable to Ventura County under the SIP. Section 6452.2(e) prohibits a person from applying a field fumigant during the ozone period once the fumigant VOC emission limit is established unless their restricted material permit includes a field fumigant emission allowance or the notice of intent (NOI) to apply a fumigant is approved in writing. In addition, section 6452.2(c) requires that if Ventura County's fumigant VOC limit is triggered, the CAC must condition or deny permits in such a manner to assure that the fumigant VOC emission limit is not exceeded. These sections, which are being incorporated into the SIP, are sufficient for federal enforceability.

Comment: El Comité argues that 3 CCR section 6452(b) provides for improper director's discretion for alternative methods, noting, in particular, the lack of explicit and replicable procedures for determining whether the scientific data demonstrates that the alternative method's emissions rates are no greater than other methods allowed under the regulations.

Response: EPA has determined that the director discretion in section 6452(b) is not a basis for disapproval given the restrictions placed on the CDPR Director's ability to approve alternative methods and given the limited history of regulating fumigant application methods to reduce VOC emissions. See TSD, section II.E.

EPA's general policy regarding director's discretion is stated in 52 FR 45109 (November 24, 1987). Provisions allowing for a degree of state director discretion may be considered appropriate if explicit and replicable procedures within the rule tightly define how the discretion will be exercised to assure equivalent emissions reductions. 16 Under section 6452(b), a request for approval of an alternative application method must be accompanied by scientific data documenting the VOC emissions reductions (section 6452(b)(1)) and no alternative method may be approved if its emission rate and the maximum emission rate are greater than those for any method already specified in the regulations for use in the area for that fumigant (section 6452(b)(1)(A) and (B)). Section 6452(c) also explicitly requires the CDPR Director to evaluate the submitted scientific data to determine whether: (1) The data and information provided are sufficient to estimate emissions; (2) the results are valid as indicated by the quality control data; and (3) the conditions studied represent agricultural fields fumigated. A notice of interim approval of an alternative method must be published on CDPR's Web site (section 6452(d)) and interim approvals expire after three years (section 6452(e)). In addition, we note that all pesticide users are required by law to follow the federal label, state regulations, and permit conditions at the county level (CFAC section 12973). These provisions appropriately limit the CDPR director's discretion. 17

Comment: El Comité comments the Method Usage Fractions (MUF) for the 1991 and 2004 inventories do not have a factual foundation in the PUR. They also comment that the validity of the MUF for the 1991 inventory for all fumigants but 1,3-dichloropropene are not verifiable and that CDPR has not presented any evidence supporting its estimates of historical fumigant application methods, nor has it made public the details of the process by which this information was obtained.

Response: The PUR reports were not required to list the fumigation application method prior to 2008; therefore, it is not possible to base the MUF of the PUR prior to that year. 18 We note that the 1990, 1991 and 2004 inventories do not have any relevance to today's action.

CDPR has provided a detailed explanation of its process for determining the frequency of use of historical fumigant methods for the 1991 inventory as well as the 1990 inventory (which is the basis for calculating reductions) in the Barry memorandum. 19 Prior to 2008, the MUF were based on grower/applicator surveys, use data, expert opinion, and regulatory history. Since 2008, applicators have been required to report application methods on the PUR, so recent MUF calculations are based on empirical data. EPA has been presented with no evidence to dispute that CDPR used best available data to develop the MUF for the baseline inventory.

Comment: El Comité comments that CDPR's Application Method Adjustment Factors (AMAF) are based on unrepresentative field fumigation studies conducted in other states under cool soil conditions and therefore do not provide an accurate estimate of emissions from California fumigations conducted at high temperatures in the Central Valley during the peak ozone season from May to October. They also comment that studies conducted under worst-case scenarios have been excluded from the group of studies on which the fumigant application regulations are based.

Response: Similar comments were raised to CDPR during the comment periods prior to the adoption of the 2008 fumigant regulations and to CARB during the comment period prior to the adoption of the 2007 State Strategy (specifically on the revisions to the 1994 Pesticide Element for Ventura County that were included as Appendix H to the State Strategy). CDPR responded to these comments in the final Barry Memorandum (pp. 15-17) and in its response to comments on its proposed regulations. 20 CARB also provided responses. 21 Both stated that the studies included had been reviewed and accepted as sufficient to provide reliable data and were conducted under a variety of conditions and locations.

Comment: El Comité comments that (1) the field studies of AMAF have highly variable results even among similar studies and are therefore highly uncertain and that previous reviews have noted uncertainties in AMAF estimates and concluded that some AMAF proposed by CDPR were not conservative enough. They also comment that because the natural variability in flux rates (the rate at which the fumigant escapes from the soil) is large, a single study (or even several studies) will not provide an accurate estimate of actual emissions.

Response: CDPR responded to similar comments made during the 45-day comment period on the initial proposal of the fumigant regulations in July 2007. It agreed that flux rates vary and that the Department has chosen to average flux rates to get the most accurate picture of overall emissions. Their response, which is supported by CARB, is as follows:

See CDPR, Rulemaking File For Regulations Filed and in Effect on January 8, 2008; Final Statement of Reasons, Attachment A: Summary of Comments Received During the 45-Day Comment Period and DPR's Response.

Therefore, we conclude that CDPR took a reasoned approach to establishing AMAF based on the available science.

Comment: El Comité states that the fumigant regulations are unenforceable because they do not provide a funding mechanism, and because CDPR has not demonstrated under CAA section 110(a)(2)(E) that the state and CAC have adequate personnel, funding and authority to implement and enforce the regulations.

Response: We disagree that the fumigant regulations are unenforceable if they do not provide a mechanism to fund enforcement. Nothing in the CAA or EPA regulations require a SIP rule to include a rule-specific funding mechanism in order to be enforceable. If that were so, every SIP-approved rule would need to contain a specific funding mechanism before EPA could incorporate into SIP, which is not the case.

CAA section 110(a)(2)(e) requires states to provide “necessary assurances that the State * * * will have adequate personnel, funding, and authority under State (and, as appropriate, local) law to carry out such implementation plan.” CDPR has provided sufficient assurance that it has adequate funding (as well as personnel and authority) to implement the regulations.

CDPR funds CAC on an annual basis to conduct inspections and enforcement activities. Funding derives from an assessment on pesticide sales. CDPR collects 21 mill (or 2.1 cents) per dollar, of which approximately 7.6 mill is designated for CAC pesticide use inspection and enforcement activities (3 CCR section 6386; CFAC sections 12841 and 12841.3). In 2006 CDPR and the California Agricultural Commission and Sealers Association entered into a Memorandum of Understanding that explains the process for distributing funds. 22

The CAC have conducted 3,154 field fumigant inspections since January 1, 2008. 23 In 2010-2011, CAC made 724 field fumigant inspections and 2,130 structural fumigation inspections statewide. 24 In addition, CAC must conduct pre-application site evaluation inspections for at least 5 percent of all sites identified in permits or notices of intent (NOI) to apply pesticides for agricultural use (3 CCR section 6436). In 2010-2011, CAC's conducted a total of 7,941 pre-application inspections out of a total of 136,491 NOI, 25 or 5.8 percent of NOI reviewed.

Both CDPR and CAC enforcement authority is derived from State law and regulation. See CFAC section 14004; see also, CFAC section 2281 and 11501.5 and 3 CCR sections 6140 and 6128. Beyond its enforcement authorities, California law provides CDPR with the authority to place limitations on the quantity, area, and manner of application to reduce pesticide emissions through restricted materials permit conditions. See CFAC section 14006.5 and 3 CCR section 6412. Permits to use restricted materials are issued by the CAC, who has broad discretion to condition the permits on additional use restrictions. See CFAC section 14006. CDPR has oversight of the permit process and recommends conditions to be included in the CAC's permits. It can also enact use restrictions by regulation. See CFAC section 14005. In addition, for products containing a new active ingredient, CDPR may place appropriate restrictions on a product's use, including limitations on the quantity, area, and manner of application, and require low VOC formulations as a condition of registration. See CFAC section 12824. 26

Comment: El Comité asserts that approval of the revised SIP commitment for the SJV and the fumigant regulations would be arbitrary and capricious and a violation of CAA section 110(a)(2)(E) because neither CDPR nor CARB have provided a demonstration that the commitment and regulations are not prohibited by Title VI of the Civil Rights Act and EPA's regulations implementing Title VI.

Response: In addition to requiring a state to provide necessary assurances regarding adequate resources and authority for implementation, CAA section 110 (a)(2)(E) also requires a state to provide “necessary assurances that the State * * * is not prohibited by any provision of Federal or State law from carrying out such [SIP].”

El Comité asserts that California failed to provide a “demonstration” that its proposed revisions are not prohibited by Title VI of the Civil Rights Act. 27 Section 110(a)(2)(E), however, does not require a state to “demonstrate” it is not prohibited by Federal or State law from implementing its proposed SIP revision. Rather, this section requires a state to provide “necessary assurances” of this. Courts have given EPA ample discretion in deciding what assurances are “necessary” and have held that a general assurance or certification is sufficient. (“EPA is entitled to rely on a state's certification unless it is clear that the SIP violates state law and proof thereof * * * is presented to EPA.” BCCA Appeal Group v. EPA, 355 F.3d 817, 830 fn 11 (5th Cir. 2003)).

El Comité does not allege a violation of Title VI by either CDPR or CARB nor does it provide evidence that either the revised SIP commitment for the SJV and/or the fumigant regulations would result in any adverse environmental impacts. While El Comité includes in their letter several statements on fumigant usage and fumigant VOC emissions in Ventura County and the SJV (citing various CDPR documents as the sources), it provides no evidence that these usage rates or pesticide VOC emissions rates are either the result of implementing the revised SIP commitment and/or fumigant regulations or would not have resulted absent the implementation of the commitment and regulations. 28

On the other hand, California has provided multiple evaluations that show the revised SIP commitment for SJV and the fumigant regulations will improve California's air quality by reducing VOC emissions from pesticides, will not result in any significant adverse environmental impacts, and in fact, by reducing VOC, will improve air quality and assist the areas in their progress toward attainment of the ozone standards. 29

Both CDPR and CARB receive annual grants from EPA and have done so for many years. As grant recipients, both agencies must certify their compliance with Title VI and have done so in every year since the revised commitment and fumigant regulations were first adopted by CDPR in 2007 and submitted by CARB in 2009. 30 In addition, by letter dated August 7, 2012, CDPR provided EPA a further description of the ways in which its pesticide regulatory program, including the VOC rule EPA is approving today, complies with sections 601 and 602 of Title VI of the Civil Rights Act of 1964 (Title VI) that govern recipients of federal financial assistance. 31 Thus, EPA concludes California has provided the necessary assurances pursuant to 110(a)(2)(e).

Comment: El Comité asserts that EPA offered no factual basis or reasoned explanation for concluding that, with the addition of the fumigant regulations, the revised SIP commitment for SJV is sufficiently enforceable, and because EPA has failed to provide an explanation, its approval of the fumigant regulations and the revised SIP commitment as enforceable in tandem is arbitrary and capricious.

Response: On page 24450 of our April 24, 2012 proposed rule, we concluded that:

As explained further here and in other sections of this document, EPA is concluding CDPR's regulations and the commitment meet the applicable CAA requirements, and thus, we are finalizing our determination that the commitments in the 1994 Pesticide Element have been fulfilled, which in turn, forms the basis for our final decision not to rescind or otherwise modify our 1997 approval of the Pesticide Element or our 2009 approval of PEST-1. Specifically, as to SJV, we stated:

Factual support for our conclusion is found in the CDPR staff report on the revised SIP commitment for SJV which provides a table of baseline pesticide emissions in SJV (19.3 tpd) and an estimate of the VOC emissions reductions (1.5 tpd) due to CDPR's fumigant regulations (that are being approved as part of this action). Based on the data in CDPR's table, the fumigant regulations reduce baseline pesticide emissions to 17.8 tpd, which is 0.3 tpd less than the 18.1 tpd emissions cap (that derives from the 12 percent emissions reduction commitment from the existing California SIP Pesticide Element). Therefore, in most years, CDPR's fumigant regulations alone would safeguard the emission limit.

CDPR acknowledges, however, that fumigant use varies from year to year and could in some years be unusually high, raising the potential for the emission limit to be exceeded. This is why CDPR commits (1) to implement restrictions to reduce VOC emissions from non-fumigant pesticides by 2014 and (2) to commit to manage pesticide VOC emissions in SJV through annual emissions inventories and take further steps to reduce pesticide VOC emissions if necessary to bring such emissions back down below the emission limit.

Comment: El Comité argues that EPA's rationale for finding the combination of the revised SIP commitment for SJV and the fumigant regulations enforceable is unfounded because three quarters of all adjusted pesticide VOC emissions in the SJV in 2010 came from non-fumigants and SJV exceeded the 18.1 tpd emissions cap in 2005 and 2006 “despite CDPR's use of an adjusted inventory for fumigants in the Valley.” They argue further that controlling only one-quarter of the pesticide VOC inventory in the Valley with the fumigant regulations does not ensure that the revised SIP commitment meets the CAA requirement for enforceability.

Response: El Comité cites CDPR's 2010 annual inventory of pesticide VOC emissions as the source for their claim that VOC emissions in SJV exceeded the 18.1 tpd limit in 2005 and 2006 and that fumigant VOC emissions represent only 25 percent of the overall total pesticide emissions in SJV. Based on our review of CDPR's Revised 2010 Pesticide VOC Emissions Report, we confirm El Comité's factual statements but believe that the report supports EPA's conclusion that the combination of the commitment and fumigant regulations does meet the minimum requirements for enforceability of SIP measures and reasonably ensures that the 12 percent emissions reduction target from the Pesticide Element would be achieved in SJV. This is because (1) the emissions cap of 18.1 tpd has not been exceeded since adoption of CDPR's fumigant regulations in 2008; and (2) the percentage of pesticide VOC emissions due to fumigant use has declined from an average of 34 percent during the 3-year period (2005-2007) prior to implementation of CDPR's fumigant regulations to an average of 24 percent during the 3-year period (2008-2010) after implementation. See tables 5 and 6a of CDPR's Revised 2010 Pesticide VOC Emissions Report. This decline in the percentage of pesticide VOC emissions due to fumigant use is exactly the effect that would be expected in light of the implementation of CDPR's restrictions on the use of higher-emitting application methods, and it demonstrates that CDPR's fumigant regulations are effective at reducing pesticide VOC emissions in the SJV and to maintaining in compliance with the 18.1 tpd emission limit.

Comment: El Comité argues that because the SIP revision lacks a commitment to retain the fumigant regulations, EPA's rationale for using the fumigant regulations as its basis for finding the SIP revision enforceable is “illusory.” El Comité asserts that CDPR could rescind the fumigant regulations and CARB could offer new VOC controls applicable to other sources to support a section 110(l) demonstration.

Response: The SIP revision does not need to include a commitment to retain the fumigant regulations. If CDPR were to rescind the fumigant regulations, such rescission must be approved by EPA as a SIP revision to be rescinded as a part of the California SIP. The CAA does not allow unilateral changes to SIPs by states. Moreover, EPA has determined that the fumigant regulations are required to meet the section 182(b)(2) reasonably available control technology (RACT) requirement in the SJV, so for at least for SJV, California would need to demonstrate that the SIP still provides for RACT in SJV absent the fumigant regulations. Simple substitution of the fumigant regulations with new VOC emissions controls may not suffice in SJV due to the RACT requirement for the pesticide use source category.

In addition, to approve any rescission of CDPR's fumigant regulations submitted as a SIP revision, we would need to find that such rescission would not interfere with RFP and attainment of the NAAQS or any other applicable requirement of the Act pursuant to CAA section 110(l), and would therefore need to consider the effect of the rescission on the continued enforceability of the California SIP Pesticide Element and would need to consider the emissions impacts in the context of the RFP and attainment needs of the areas for which the regulations provide emissions reductions. Lastly, we note that any action EPA would take on such a rescission of the fumigant regulations would be subject to the normal public notice and comment procedures that EPA follows for all actions on SIPs and SIP revisions.

EPA is approving under CAA section 110(k)(3) the revisions to the California SIP Pesticide Element submitted by CARB on October 12, 2009 and August 2, 2011 (with the exception of the provisions related to methyl iodide). These revisions include CDPR's fumigant regulations and its revised SIP commitment for the SJV. Our approval will incorporate these revisions into the California's federally-enforceable SIP. This approval also satisfies California's obligation to implement RACT for field fumigation operations in the SJV under CAA section 182(b)(2) for the 1-hour ozone and 1997 8-hour ozone standards and thereby terminates both the sanctions clocks and the Federal Implementation Plan clock for this source category triggered by our January 10, 2012 partial disapproval action. See 77 FR 1417 (January 10, 2012).

EPA provided its preliminary response to the remands by the Ninth Circuit Court of Appeals in Association of Irritated Residents v. EPA, 632 F.3d 584 (9th Cir. 2011), revised January 27, 2012 ( AIR ) in the proposal for this rule. See 77 FR 24441, 24447. The Association of Irritated Residents remand required EPA to evaluate the California SIP Pesticide Element for enforceability under the CAA. In the proposed rule, EPA found that there is no need to either rescind or modify our prior approvals of the Pesticide Element because it had concluded that the SIP revisions fulfilled the commitments of the original Pesticide Element, thus obviating the need to address the deficiencies in enforceability of those original commitments. We are finalizing our response from the proposal without change. 32

Under the Clean Air Act, the EPA Administrator is required to approve a SIP submittal 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 submittals, 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 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).

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 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 26, 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:

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

Section 110(a) of the CAA requires states to adopt and submit regulations for the implementation, maintenance and enforcement of the primary and secondary national ambient air quality standards (NAAQS). Specifically, CAA sections 110(a)(2)(C), 110(a)(2)(D)(i)(II), and 110(a)(2)(J) require the State's plan to meet the applicable requirements of section 165 relating to a pre-construction permit program for the prevention of significant deterioration of air quality and visibility protection. The purpose of District Rule 2410—Prevention of Significant Deterioration, is to implement a pre-construction PSD permit program as required by section 165 of the CAA for certain new and modified major stationary sources located in attainment areas. EPA is currently the PSD permitting authority within the District because the State does not currently have a SIP-approved PSD program within the District. Inclusion of this revision in the SIP will mean that the District has an approved PSD permitting program and will transfer PSD permitting authority from EPA to the District. EPA would then assume the role of overseeing the District's PSD permitting program, as intended by the CAA. For a more detailed discussion of District Rule 2410, please refer to our proposed approval. See 77 FR 32493 (June 1, 2012).

EPA is finalizing a SIP revision for the San Joaquin Valley portion of the California SIP. The SIP revision will be codified in 40 CFR 52.220 and 40 CFR 52.270 by incorporating by reference District Rule 2410, as adopted June 16, 2011 and submitted to EPA by the California Air Resources Board (CARB) on August 23, 2011. In addition, the letter from the District to EPA, dated May 18, 2012, providing certain clarifications concerning District Rule 2410 and 40 CFR 51.166, will be included as additional material in 40 CFR 52.220. The regulatory text addressing this action also makes it clear that EPA is relying, in part, on the clarifications provided in the District's May 18, 2012 letter in taking this final approval action. As such, the District's implementation of the PSD program in a manner consistent with these clarifications is a pre-condition of today's final approval of the District's PSD SIP revision. This SIP revision provides a federally approved and enforceable mechanism for the District to issue pre-construction PSD permits for certain new and modified major stationary sources subject to PSD review within the District.

As discussed in EPA's proposal relating to today's SIP revision approval action, the District has requested approval to exercise its authority to administer the PSD program with respect to those sources located in the District that have existing PSD permits issued by EPA, including authority to conduct general administration of these existing permits, authority to process and issue any and all subsequent PSD permit actions relating to such permits ( e.g., modifications, amendments, or revisions of any nature), and authority to enforce such permits. Pursuant to the criteria in section 110(a)(2)(E)(i) of the CAA, we have determined that the District has the authority, personnel, and funding to implement the PSD program within the District for existing EPA-issued permits and therefore are transferring authority for such permits to the District concurrent with the effective date of EPA's approval of the District's PSD program into the SIP. A list of the EPA-issued permits that we anticipate will be transferred to the District is provided in the docket for this action. EPA has already provided a copy of each such permit to the District. As described in our proposal, EPA will retain PSD permit implementation authority for those specific sources within the District that have submitted PSD permit applications to EPA and for which EPA has issued a proposed PSD permit decision, but for which final agency action and/or the exhaustion of all administrative and judicial appeals processes (including any associated remand actions) have not yet been concluded or completed upon the effective date of EPA's final SIP approval action for Rule 2410. The District will assume full PSD responsibility for the administration and implementation of such PSD permits immediately upon notification from EPA that all administrative and judicial appeals processes and any associated remand actions have been completed or concluded for any such permit application.

In response to our June 1, 2012 proposed rule, we received two comment letters, one from the Western States Petroleum Association (WSPA) and one from Earthjustice on behalf of a consortium of environmental groups (Medical Advocates for Healthy Air, the Kern-Kaweah Chapter of the Sierra Club, the Center for Race, Poverty, and the Environment, and the Central Valley Air Quality Coalition). Copies of each comment letter have been added to the docket for this action and are accessible at www.regulations.gov. The comment letter from WSPA supports EPA's analysis and proposal to approve District Rule 2410 into the SIP. The comment letter from Earthjustice opposes the SIP revision and raises several specific objections. We have summarized the comments received and provided a response to the comments below.

Comment 1: WSPA expresses its support for EPA's expeditious approval of District Rule 2410, and recommends that such approval be completed as soon as possible in order to ensure that permitting is not unduly impacted for facilities subject to PSD review.

Response 1: EPA appreciates the commenter's support. We agree that EPA's proceeding expeditiously with its final action on the District's PSD SIP revision, after careful consideration of public comments received on its proposed action, will serve to facilitate timely processing of PSD permit decisions for facilities within the District that are subject to PSD review.

Comment 2: Earthjustice states that CAA sections 110(a)(2)(A) and (C) require SIPs to include enforceable measures to regulate the construction and modification of stationary sources. The commenter believes that District Rule 2410 includes loopholes for enforcing District compliance with its permitting requirements because currently, within the District, interested parties are able to seek judicial review of final PSD permitting decisions under section 307 of the Act, whereas under Rule 2410 and California state law there is no right to judicial review of permitting decisions for power plants licensed by the California Energy Commission (CEC). The commenter asserts that under California Public Resources Code (CPRC) section 25531, judicial review of such CEC approvals may only be had at the discretion of the State Supreme Court, and there is no guaranteed right of review. The commenter states that this legal conclusion regarding the limited availability of judicial review for power plant permitting decisions has been repeatedly asserted by the CEC and the District. The commenter concludes that approval of Rule 2410 would open the door for abuse and noncompliance in PSD permitting decisions, and does not comply with the requirements of section 110(a)(2) of the Act because it does not guarantee judicial enforceability.

Response 2: As EPA has stated previously, we interpret the CAA to require an opportunity for judicial review of a decision to grant or deny a PSD permit, whether issued by EPA or by a State under a SIP-approved or delegated PSD program. See 61 FR 1880, 1882 (Jan. 24, 1996) (EPA's proposed disapproval of Virginia's PSD program SIP revision due to State law standing requirements that limited judicial review); 72 FR 72617, 72619 (December 21, 2007) (in approving South Dakota's PSD program, EPA stated: “We interpret the statute and regulations to require at minimum an opportunity for state judicial review of PSD permits”). EPA continues to interpret the relevant provisions of the Act as described in these prior rulemaking actions. We believe that Congress intended for state judicial review of PSD permit decisions to be available for members of the public who can satisfy threshold standing requirements under Article III of the Constitution. See 61 FR 1882, January 24, 1996.

The commenter argues that California's judicial review procedures under CPRC 25531 for PSD permit decisions subject to the CEC certification process do not satisfy the CAA's requirements for judicial review. The commenter states that these State judicial review procedures are inadequate because such review may only be had at the discretion of the State Supreme Court, and there is no guaranteed right of judicial review.

CPRC section 25531(a) provides: “The decisions of the [CEC] on any application for certification of a site and related facility are subject to judicial review by the Supreme Court of California.”  1 California courts have found that California Supreme Court review of a power plant certification decision under CPRC section 25531 is a decision on the merits. Santa Teresa Citizen Action Group v. California Energy Commission, 105 Cal. App. 4th 1441, 1447-1448 (2003); see also In re Rose, 22 Cal.4th 430, 444 (2000) (when the sole means of review is a petition in the California Supreme Court, even the court's denial of the petition—with or without an opinion—reflects a judicial determination on the merits). EPA believes that the opportunity provided by CPRC 25531 to seek review of a PSD permit decision for a CEC-certified facility before the California Supreme Court and to obtain that court's judicial determination on the merits satisfies the CAA requirement that an opportunity for judicial review be provided under State law for PSD permits in SIP-approved PSD programs. We recognize that the judicial review process under CPRC 25531 differs in a number of respects from the administrative and judicial review processes available for PSD permit decisions under 40 CFR part 124 (opportunity to petition for administrative review by the EPA's Environmental Appeals Board (EAB)) and section 307(b) of the CAA (opportunity to seek review before Circuit Court of Appeals) when EPA or a delegated agency under 40 CFR 52.21 is the PSD permit issuer. However, the CAA does not require that the process for judicial review of the grant or denial of a PSD permit issued under a SIP-approved PSD program be identical to that provided when EPA or a delegated agency under 40 CFR 52.21 is the PSD permit issuer.

Comment 3: Earthjustice suggests that District Rule 2410 does not meet the public participation requirements of 40 CFR 51.166(q), citing sections 110(a)(2)(A) and (C) of the Act. The commenter states that EPA notes that Rule 2410 does not, on its face, comply with various public participation requirements in 40 CFR 51.166(q). The commenter further states that EPA dismisses these defects by relying on commitments in a letter from the District's Permitting Director to comply with the public participation requirements for issuing PSD permits. The commenter states that these commitments are not enforceable, are insufficient to support approval, and are not proposed to be codified into the SIP or other approved regulatory language. The commenter also states that it has not been established through any legal reference that the District's Permitting Director is authorized or empowered to bind the District legally to any particular practice, and that should the District fail to adhere to the processes outlined in its letter, stakeholders would have no recourse for ensuring the District's adherence. The commenter also states that the District has relinquished some of its permit processing responsibilities to the CEC, and that the CEC would not be bound by the District's commitments.

Response 3: We disagree that Rule 2410 does not comply with the public participation requirements of 40 CFR 51.166(q). Section 5.0 of Rule 2410 requires the District to follow the public participation requirements identified in certain sections of District Rule 2201 prior to issuing a PSD permit. District Rule 2201 is enforceable because it is already approved into the California SIP (see, e.g., 75 FR 26102 (May 11, 2010)). EPA asked the District to provide a letter clarifying, among other things, how Rule 2201 addresses certain specific requirements of 40 CFR 51.166 relating to the District's implementation of a number of PSD procedural requirements. EPA believes this written clarification is appropriate to support our analysis of and conclusions concerning Rule 2410. As noted above in Section II.A, the District provided a clarification letter dated May 18, 2012 to EPA that reflects the District's and EPA's interpretation of the District's public participation processes consistent with 40 CFR 51.166(q). The letter memorializes the proper intended reading of the provisions at issue, and the regulatory text that EPA is finalizing in this action expressly states that EPA is basing its approval of the District's PSD SIP, in part, on the clarifications regarding the District's implementation of the PSD program contained in the District's May 18, 2012 letter. EPA is also including this letter in the additional materials that will be referenced in the CFR as part of this SIP revision approval action. Because the District's implementation of the PSD program in a manner consistent with these clarifications, including those related to the District's public participation processes, is clearly a pre-condition of today's final approval of the District's PSD SIP revision, the clarifications provided in this letter concerning District Rule 2410 are binding and enforceable, and the District must adhere to the positions taken in the letter. In sum, District Rule 2410 meets the public participation requirements of 40 CFR 51.166(q) and is therefore consistent with section 110(a) of the Act in this regard.

Finally, with respect to the argument that the District has relinquished some of its permit processing responsibilities for power plants to the CEC, we are not aware of any particular PSD public participation requirements related to 40 CFR 51.166(q) that the District will be relying on the CEC to meet on the District's behalf, and the commenter has not specifically identified any such requirement. The District must adhere to the public participation requirements in Rule 2410 prior to issuing a PSD permit.

Comment 4: Earthjustice asserts that EPA has not demonstrated, as required by section 110(l) of the Act, that the federal PSD program, as “reformed” through the addition of the flexibility provisions in 2002, will not interfere with the maintenance of the national ambient air quality standards. The commenter disagrees with EPA's analysis that “the requirements of the PSD SIP revision are essentially equivalent to * * * those of the [Federal Implementation Plan] codified in 40 CFR 52.21” in support of EPA's determination that its proposed SIP approval action here would be consistent with section 110(l). The commenter states that the problem with this argument is that there has not been any analysis of whether these PSD regulations, with the various flexibilities that allow sources to be constructed without offsetting emission reductions, without best available control technology to minimize emission increases, and often without any obligation to ensure that the emissions will not cause or contribute to a violation of any national ambient air quality standards, are sufficient to prevent deterioration of air quality and sliding the District into nonattainment. The commenter notes that the PSD program being approved into the SIP has never been a part of the SIP and therefore has never been analyzed for its consistency with a plan for maintaining compliance with the national standards. The commenter believes it is meaningless to say that the permitting program will not get any worse once it is approved into the SIP because it has never been demonstrated that this permitting program is adequate to prevent the deterioration of air quality in the District.

The commenter states that the California legislature has specifically rejected EPA's finding that the 2002 New Source Review (NSR) Reforms could benefit air quality because permit requirements have impeded or deterred upgrades to sources, citing California Health and Safety Code sections 42501(e) and (f) (finding that the revisions to the federal regulations drastically reduce the circumstances under which modifications at an existing source would be subject to federal new source review and rejecting the argument that this would be beneficial to air quality because this claim is contradicted by California's experience). The commenter believes that the 2002 NSR Reforms to the PSD regulations allow growth to increase with fewer mitigation requirements and fewer safeguards for assessing air quality impacts.

The commenter also notes that although the District is attainment or unclassifiable for particulate matter 10 micrometers (μm) in diameter and smaller (PM 10 ), nitrogen dioxide (NO 2) , sulfur dioxide (SO 2 ), carbon monoxide (CO), and lead, EPA has approved a maintenance plan only for PM 10 in the last 10 years since the revisions to the PSD regulations. The commenter asserts that without such a plan there is no basis for assessing how a permitting program that allows significant modifications of major sources to avoid control and air quality analysis requirements will ensure that increased emissions from these sources will not interfere with attainment of the national standards. The commenter argues that blind reliance on the District's parallel nonattainment new source review permitting is no substitute for the missing analysis because the District allows sources to offset emission increases with “pre-baseline” emission reduction credits—meaning current air quality sees only an increase in emissions—and to offset emission increases of one pollutant with decreases of another, which may or may not be relevant to maintenance of the particular national standard.

The commenter asserts that EPA needs to provide its argument and analysis under section 110(l) of the Act for review and comment, as the proposed rule provides no rational basis for believing that the District's PSD program is sufficient to prevent growth in emissions that could interfere with attainment and maintenance of the national ambient air quality standards in the Valley.

Response 4: We disagree with the commenter's contentions that EPA has not conducted the analysis required by section 110(l) of the Act and that EPA's analysis does not provide adequate assurance that approval of the District's PSD program would not interfere with maintenance of the NAAQS. As stated in the Federal Register notice for our proposed approval of the District's PSD SIP revision, EPA included an analysis under section 110(l) in the technical support document (TSD) for the proposed rulemaking for this SIP revision approval action. In the TSD, we stated that our approval of the submittal would comply with CAA section 110(l), because the SIP, as revised to reflect the submitted revision, would provide for reasonable further progress and attainment of the NAAQS, and the requirements of the PSD SIP revision are essentially equivalent to, and at least as stringent as, those of the Federal Implementation Plan (FIP) codified in 40 CFR 52.21 and used to date by EPA to implement the required PSD program within the District. EPA noted that approval of the District's PSD SIP submittal would merely result in the transfer of authority for the PSD program from the EPA to the District, and therefore would not result in any substantive changes to the PSD program requirements, other CAA requirements, or air quality. We believe that our 110(l) analysis was adequate and appropriate, for the following reasons.

Section 110(l) of the CAA states that “[t]he Administrator shall not approve a revision of a plan if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress or any other applicable requirement of this chapter.” 42 U.S.C. 7410(l). EPA does not interpret section 110(l) to require a full attainment or maintenance demonstration before any changes to a SIP may be approved. Generally, a SIP revision may be approved under section 110(l) if EPA finds that it will at least preserve status quo air quality, particularly where, as here, the pollutants at issue are those for which an area has not been designated nonattainment.

In response to the commenter's concern that approval of the District's PSD SIP submittal including NSR Reform would allow fewer projects to be subject to PSD review, 2 meaning that fewer sources must demonstrate that their emission increases will not cause or contribute to a violation of the NAAQS or apply the best available control technology to those emission increases, we note that our approval of the District's PSD program, which incorporates by reference 40 CFR 52.21, into the SIP will not result in a change to the status quo. As stated in our TSD, the PSD program has been implemented within the District by EPA in accordance with the provisions of 40 CFR 52.21, which incorporated the NSR Reform provisions to which the commenter refers since their inception.

Even if the provisions of 40 CFR 52.21 as revised through NSR Reform were not already in place within the District, EPA is not aware of any basis for concluding that the PSD program under 40 CFR 52.21, including NSR Reform, that has been incorporated by reference by the District would interfere with the maintenance of the NAAQS within the District, nor has the commenter provided specific information demonstrating that such interference would occur. The commenter refers to a general legislative statement by the California legislature that appears to have been adopted in 2003 that disagrees generally with NSR Reform but which is not specific as to what changes in air quality, if any, would occur as a result of EPA's approval of the District's PSD program.

NSR Reform affects only permitting of modifications to existing sources, and more specifically, modifications to existing emissions units. Any growth occurring from new, greenfield sites would be controlled and permitted in the same manner both pre- and post-reform. Therefore, any concerns about NSR Reform would be related to unregulated growth from existing major sources. In the specific case of the District, modifications that are not subject to PSD review generally have been, and will continue to be, subject to review under the District's minor NSR program, which is approved into the California SIP through District Rule 2201. Rule 2201 contains the District's permit program for all increases in pollutants subject to a NAAQS, whether classified as attainment, nonattainment, or unclassifiable by EPA. The rule includes pre-construction permitting requirements for sources that are not required to be permitted under title I, parts C and D of the Act as new major stationary sources or major modifications at existing major stationary sources in attainment or nonattainment areas, which are commonly referred to as “minor NSR,” although this term is not used in Rule 2201. A modification in the District that is not required to obtain a PSD permit (whether due to the application of the NSR Reform provisions or not) would still be subject to the preconstruction permit requirements of the District's minor NSR program in Rule 2201, including any associated testing, monitoring, recordkeeping and reporting requirements. All modifications within the District are required to obtain a permit revision prior to modification of the applicable units. Generally, for any new or modified emissions unit, the District's NSR program begins applying BACT for emission increases of two pounds per day (0.4 tons per year). 3 See District Rule 2201, Sections 4.1 and 4.2. The District's NSR program also generally requires a demonstration that emissions from certain new or modified stationary sources, including minor sources, will not cause or make worse the violation of an ambient air quality standard. See District Rule 2201, Section 4.14. EPA's approval of the District's PSD program will not change the level of review that is conducted for modifications not subject to PSD review within the District. The District's robust minor NSR permitting program for such sources provides additional assurance that EPA's approval of the District's PSD SIP revision, which incorporates NSR Reform, will not interfere with maintenance of the NAAQS within the District.

We note that at the time EPA adopted NSR Reform, we provided an analysis of the environmental impacts of the “various flexibilities” the commenter discusses. Based on examples and modeling, we concluded that NSR Reform would likely have a neutral to positive effect on air quality relative to the pre-Reform provisions. See generally Supplemental Analysis of the Environmental Impact of the 2002 Final NSR Improvement Rules (Nov. 21, 2002) (Supplemental Analysis). 4 This analysis applied at the time the NSR Reforms became effective within the District, March 3, 2003. See 67 FR 80186. The commenter has provided no specific data that leads EPA to conclude that this initial analysis was incorrect. Considering the District's minor NSR program, which was not a part of the above-mentioned national analysis, the environmental impacts of continuing to implement the NSR Reform should not be different from the effect modeled in the analysis.

In sum, as EPA concluded in its TSD for the proposed rulemaking, the transfer of the PSD program under 40 CFR 52.21 from EPA to the District is not expected to result in any substantive changes to the PSD program requirements, other CAA requirements, or air quality within the District, and EPA continues to believe that its approval of the District's PSD SIP revision would not interfere with attainment and maintenance of the NAAQS within the District, or with any other applicable requirement of the CAA. EPA bases this conclusion on the fact that the District's PSD program will be no less stringent than the federal PSD program under 40 CFR 52.21 that it is replacing. In addition, EPA has taken into consideration the District's extensive minor source permitting program that will impose control requirements on sources that are not major under the PSD program. EPA finds that the approval of this SIP revision is entirely consistent with the development of a plan for the District to attain and maintain the NAAQS.

Last, it is unclear to EPA what the basis is for the commenter's statement that relying on the existing District nonattainment NSR program is not a substitute for the necessary analysis under CAA section 110(l) in terms of maintenance of the NAAQS, or how the commenter's concerns with the District's nonattainment NSR permitting process relate to EPA's CAA section 110(l) analysis in this case. We assume that the commenter is referring in this statement to the District's major nonattainment NSR program. 5 For the reasons outlined above, EPA believes that its 110(l) analysis for this action is appropriate, and we have not specifically relied on the District's major nonattainment NSR program to support our 110(l) analysis here because our approval action addresses the District's PSD permitting program, which regulates only those pollutants for which the District has been designated attainment or unclassifiable. General concerns about the District's major nonattainment NSR permitting process are outside the scope of this PSD SIP revision approval action.

EPA is approving CARB's August 23, 2011 submittal of District Rule 2410—Prevention of Significant Deterioration (PSD)—into the California SIP to establish a PSD permit program for pre-construction review of certain new and modified major stationary sources in attainment or unclassifiable areas.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k). 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 26, 2012. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See CAA section 307(b)(2).)

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

The public may inspect the rule and the technical supporting information by contacting Ginger Vagenas, Air Planning Office, U.S. Environmental Protection Agency, Mail Code AIR-2, 75 Hawthorne Street, San Francisco, CA 94105, phone number (415) 972-3964.

The following is an outline of the preamble.

The following are abbreviations of terms used in the preamble.

This action finalizes the initial air quality designations for portions of Indian Country located in Arizona that were previously deferred. At the time that the EPA finalized designations for the 2006 24-hour PM 2.5 NAAQS (74 FR 58688, November 13, 2009), the EPA deferred designations for Pinal County, Arizona, and surrounding counties to evaluate further high fine particle concentrations during 2006-2008, a period which indicated a possible new violating monitor in Pinal County, Arizona. The EPA also deferred designations for areas of Indian Country located within or near the deferred counties. On February 3, 2011 (76 FR 6056), 1 the EPA took action to finalize designations for the deferred area, designating as “nonattainment” state lands in a portion of Pinal County, Arizona (West Central Pinal nonattainment area). 2 The basis for establishing this nonattainment area was monitored air quality data for 2006-2008 indicating a violation of the NAAQS. 3 The EPA designated the remaining portion of Pinal County, the surrounding deferred counties (Cochise, Gila, Graham, La Paz, Maricopa, Pima, Yavapai and Yuma counties), and, except as noted below, areas of Indian Country located within those areas, as “unclassifiable/attainment.”

The EPA continued its deferral of the designation of the Gila River Indian Community reservation, which is located in Pinal and Maricopa counties adjacent to the new nonattainment area, and the Ak-Chin Indian Community reservation, which is surrounded by the West Central Pinal nonattainment area, to allow for the completion of the tribal consultation process. ( See 76 FR 6056, February 3, 2011).

With this action, the EPA is promulgating initial area designations for the areas of Indian Country of the Ak-Chin Indian Community and the Gila River Indian Community in accordance with the requirements of Clean Air Act (CAA) section 107(d).

In this action, the EPA is designating as “unclassifiable/attainment” the lands of the Ak-Chin Indian Community located in Pinal County, Arizona, and the Gila River Indian Community, located in Pinal County and Maricopa County, Arizona, for the 2006 24-hour PM 2.5 NAAQS of 35 micrograms per cubic meter (µg/m 3 ). These areas of Indian Country and the designation for each area appear in the table at the end of this final rule, which amends 40 CFR 81.303.

The basis for establishing these areas as unclassifiable/attainment is monitored air quality data from 2009-2011 from nearby monitors that indicate the area is attaining the 2006 24-hour PM 2.5 NAAQS. The “Cowtown” monitor, which is located in the vicinity of the lands of the Ak-Chin Indian Community and the Gila River Indian Community, previously violated the standard, leading to a nonattainment designation for state lands (West Central Pinal nonattainment area). In 2009, however, PM 2.5 values recorded at the Cowtown monitor dropped significantly and have remained below the level of the standard. The 2008-2010 24-hour PM 2.5 design value for the Cowtown monitor is 31µg/m 3 and for 2009-2011 is 26µg/m 3 . 4 Therefore, the West Central Pinal nonattainment area is no longer violating the 2006 24-hour PM 2.5 NAAQS. No other monitor in Arizona is currently violating the 2006 24-hour PM 2.5 NAAQS. 5

In October of 2009, the EPA notified the Governor of Arizona and tribal leaders of Tribes with areas of Indian Country located in Pinal and Maricopa counties that the Cowtown monitor in Pinal County was violating the 2006 24-hour PM 2.5 standards based on the most recent (2006-2008) air quality monitoring data at that time. Due to this new violation and the need for additional time to collect data and evaluate the area to determine an appropriate nonattainment area boundary, the EPA deferred the area designation of Pinal County, Maricopa County (the other county comprising the Phoenix-Mesa-Scottsdale core-based statistical area (CBSA)), the seven nearby counties (Cochise, Gila, Graham, La Paz, Pima, Yavapai and Yuma counties) surrounding the Phoenix-Mesa-Scottsdale CBSA, 6 and areas of Indian Country for the 2006 24-hour PM 2.5 standards. The EPA then followed the designations process set forth in section 107(d) of the CAA, which culminated in the creation of the West Central Pinal nonattainment area for the 2006 24-hour PM 2.5 NAAQS (76 FR 6056, February 3, 2011). Designations for nearby areas of Indian Country remained deferred to allow the completion of the tribal consultation process.

The Gila River Indian Community and the Ak-Chin Indian Community recommended that the EPA designate their lands “attainment/unclassifiable” on February 11, 2010, and September 2, 2010, respectively. On April 30, 2010, the EPA offered formal consultation to the leaders of the Ak-Chin Indian Community and the Gila River Indian Community and has discussed the PM 2.5 designation with the tribes on several occasions. On April 5, 2012, 7 the EPA contacted the Gila River Indian Community and on August 13, 2012, 8 the EPA contacted the Ak-Chin Indian Community to provide opportunities to discuss the intended designations of “unclassifiable/attainment” for their areas of Indian Country based on 2009-2011data. Both tribes subsequently indicated that no further consultation was necessary.

All correspondence and supporting documentation related to deferred final designations can be found in docket ID No. EPA-HQ-OAR-2007-0562.

Information providing the basis for the action in this notice, including applicable EPA guidance memoranda, and copies of correspondence regarding this process between the EPA and the Tribes are available in the identified docket. All docket information is available for review at the EPA Docket Center listed above in the ADDRESSES section of this document and on our designation Web site at http://www.epa.gov/pmdesignations/2006standards/index.htm. Other related state and tribal-specific information is available at the offices of EPA Region 9.

Upon promulgation of a new or revised NAAQS, the CAA requires the EPA to designate areas as attaining or not attaining the NAAQS. The CAA then specifies requirements for areas based on whether such areas are attaining or not attaining the NAAQS. In this final rule, the EPA assigns designations to areas as required.

This action responds to the requirement to promulgate air quality designations after promulgation of a new or revised NAAQS. This type of action is exempt from review under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011).

This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. Burden is defined at 5 CFR 1320.3(b). This rule responds to the requirement to promulgate air quality designations after promulgation of a new or revised NAAQS. This requirement is prescribed in the CAA section 107. The present final rule does not establish any new information collection requirements.

This final rule is not subject to the Regulatory Flexibility Act (RFA), which generally requires an agency to prepare a regulatory flexibility analysis for any rule that will have a significant economic impact on a substantial number of small entities. The RFA applies only to rules subject to notice-and-comment rulemaking requirements under the Administrative Procedure Act (APA) or any other statute. This rule is not subject to notice-and-comment requirements under the APA or any other statute because the rule is subject to CAA section 107(d)(2)(B), which does not require that the agency issue a notice of proposed rulemaking before issuing this rule.

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

This action is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments. It does not create any additional requirements beyond those of the CAA and PM 2.5 NAAQS (40 CFR 50.13). The CAA establishes the process whereby states take primary responsibility in developing plans to meet the PM 2.5 NAAQS.

This final rule does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. The CAA establishes the process whereby states take primary responsibility in developing plans to meet the PM 2.5 NAAQS. This rule will not modify the relationship of the states and the EPA for purposes of developing programs to implement the PM 2.5 NAAQS. Thus, Executive Order 13132 does not apply to this rule.

This action does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). This action will not have tribal implications because the areas of Indian Country affected by this rule are being designated as “unclassifiable/attainment,” and thus do not have a substantial cost or 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 tribes. The rule does not alter the relationship between the federal government and Tribes as established in the CAA and the TAR. Thus, Executive Order 13175 does not apply to this action.

However, because this action designates areas of Indian Country, the EPA consulted with tribal officials early in the process of developing this regulation to ensure meaningful and timely input into its development. At the beginning of the designations process, letters were sent to tribes expected to be impacted by designations for the 2006 24-hour PM 2.5 NAAQS. These letters not only informed the tribes of the overall designations process, but also offered consultation to ensure early communication and coordination. Additionally, letters were sent to potentially affected tribes indicating the EPA's intended designations for their areas of Indian Country. These letters offered an additional opportunity for consultation. All consultations were completed prior to promulgating this rule. During consultation, the primary concerns raised by tribes included the following: Impact of a potential nonattainment designation on future economic development; appropriateness of using data from monitors not on tribal land to characterize the air quality on tribal land; and ensuring final decisions are consistent with the EPA's “Policy for Establishing Separate Air Quality Designations for Areas of Indian Country” (December 20, 2011). During the consultation with the tribes affected by this regulatory action, the EPA's office in Region 9 ensured that the tribes fully understood the basis for the EPA's intended designations decisions and how those decisions are informed by the most recent certified air quality data and all other relevant information, including the EPA's “Policy for Establishing Separate Air Quality Designations for Areas of Indian Country.” To the extent possible, the EPA included the tribes' input into the final decision-making process for designations of their areas of Indian Country for the 2006 24-hour PM 2.5 NAAQS.

The EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the Executive Order has the potential to influence the regulation. This action is not subject to Executive Order 13045 because it does not establish an environmental standard intended to mitigate health or safety risks.

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

Section 12(d) of the NTTAA of 1995, Public Law 104-113, section 12(d) (15 U.S.C. 272 note) directs the EPA to use voluntary consensus standards (VCS) in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impracticable. VCS are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by VCS bodies. The NTTAA directs the EPA to provide Congress, through the Office of Management and Budget, explanations when the agency decides not to use available and applicable VCS.

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

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

The EPA has determined that this final rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because this rule does not affect the level of protection provided to human health or the environment.

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 U.S. The 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 U.S. prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2). This rule will be effective November 26, 2012.

Section 307(b)(1) of the CAA indicates which Federal Courts of Appeal have venue for petitions of review of final actions by the EPA. This section provides, in part, that petitions for review must be filed in the Court of Appeals for the District of Columbia Circuit: (i) When the agency action consists of “nationally applicable regulations promulgated, or final actions taken, by the Administrator,” or (ii) when such action is locally or regionally applicable, if “such action is based on a determination of nationwide scope or effect and if in taking such action the Administrator finds and publishes that such action is based on such a determination.”

This rule designating areas for the 2006 24-hour PM 2.5 NAAQS is “nationally applicable” within the meaning of section 307(b)(1). This rule establishes designations for certain areas for the 2006 24-hour PM 2.5 NAAQS. In addition, this action relates to the prior nationwide rulemakings in which the EPA promulgated designations for numerous other areas nationwide. At the core of this rulemaking is the EPA's interpretation of the definition of nonattainment under section 107(d)(1) of the CAA, and its application of that interpretation to areas across the country. In determining which areas should be designated “nonattainment” (or conversely, should be designated attainment or unclassifiable), the EPA used an analytical approach that it applied consistently across the U.S. in this rulemaking, and in the prior related rulemakings.

For the same reasons, the Administrator also is determining that the final designations are of nationwide scope and effect for the purposes of section 307(b)(1). In these circumstances, section 307(b)(1) calls for the Administrator to find the rule to be of “nationwide scope or effect” and for venue to be in the DC Circuit. Thus, any petitions for review of final designations must be filed in the Court of Appeals for the District of Columbia Circuit within 60 days from the date final action is published in the Federal Register .

For the reasons set forth in the preamble, 40 CFR part 81, subpart C is amended as follows:

States that 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 that the Federal program. As the Federal program changes, a state must change its program accordingly 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, the state must change its program because of changes to EPA's regulations in 40 Code of Federal Regulations parts 124, 260 through 266, 268, 270, 273, and 279.

EPA concludes that Missouri's application to revise its authorized program meets all of the statutory and regulatory requirements established by RCRA. Therefore, EPA grants Missouri final authorization to operate its hazardous waste program with the changes described in the authorization application. Missouri has responsibility for permitting Treatment, Storage, and Disposal Facilities (TSDFs) within its borders, except in Indian Country, 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 Missouri, including issuing permits, until Missouri is granted authorization to do so.

This decision serves to authorize revisions to Missouri's authorized hazardous waste program. This action does not impose additional requirements on the regulated community because the regulations for which Missouri is being authorized by this action are already effective and are not changed by this action. Missouri has enforcement responsibilities under its state hazardous waste program for violations of its program, but EPA retains its authority under RCRA sections 3007, 3008, 3013, and 7003, which include, among others, authority to:

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

• Enforce RCRA requirements and suspend or revoke permits; and

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

EPA did not publish a proposal before today's rule because EPA views this as a routine program change and we 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 Missouri's program revisions. If EPA receives comments that oppose this authorization, that document will serve as a proposal to authorize the revisions to Missouri's program that were the subject of adverse comment.

If EPA receives comments that oppose this authorization, EPA 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 revisions on the proposal mentioned in the previous section. EPA 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 EPA receives comments that oppose the authorization of a particular revision to Missouri's hazardous waste program, we will withdraw that part of this rule, but the authorization of the program revisions 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.

Initially, Missouri received final authorization to implement its hazardous waste management program effective December 4, 1985 (50 FR 47740). EPA granted authorization for revisions to Missouri's regulatory program on February 27, 1989, effective April 28, 1989 (54 FR 8190); January 11, 1993, effective March 12, 1993 (58 FR 3497); and on May 30, 1997, effective July 30, 1997, (62 FR 29301) (document to correct the effective date of the rule to be consistent with section 801 and 808 of the Congressional Review Act, enacted as part of the Small Business Regulatory Enforcement Fairness Act). Additionally, the State adopted and applied for interim authorization for the corrective action portion of the HSWA Codification Rule (July 15, 1985, 50 FR 28702). For a full discussion of the HSWA Codification Rule, the reader is referred to the Federal Register cited above. The State was granted interim authorization for the corrective action on May 4, 1999, effective July 6, 1999 (64 FR 23780). Missouri received authorization for further revisions to its program on February 28, 2000, effective April 28, 2000 (65 FR 10405; October 1, 2011, effective November 30, 2001 (66 FR 49841); and on April 28, 2006 (71 FR 25079), effective June 27, 2006.

On October 6, 2010, Missouri submitted a final complete program revision application, seeking authorization of additional revisions to its program in accordance with 40 CFR 271.21. Missouri's revision application includes regulations that are equivalent to, and no less stringent than revisions to the Federal hazardous waste program, as published in the Code of Federal Regulations as of July 1, 2006, and the final rule published July 28, 2006, (71 FR 42928; effective January 29, 2007).

We now make an immediate final decision, subject to receipt of written comments that oppose this action that Missouri's hazardous waste program revision satisfies all of the requirements necessary to qualify for final authorization. Therefore, EPA grants Missouri's authorization for the following program revisions:

Missouri seeks authority to administer the Federal requirements that are listed in Table 1. This Table lists the Missouri analogs that are being recognized as no less stringent than the analogous Federal requirements. Missouri's regulatory references are to the Missouri Code of State Regulations, Title 10 Division 25, effective June 30, 2009.

The State's statutory authority for the hazardous waste program for which it is seeking authorization is based on the following provisions from the Revised Statutes of Missouri (RSMo), as amended through the 2009 Supplement: Revised Statutes of Missouri, Chapter 260, Section 260.003 and “Missouri Hazardous Waste Management Law” section 260.350 through 260.434. Missouri's authority to incorporate the Federal program is found at RSMo 536.031.

Missouri is not being authorized for the following RCRA revisions that are found in 40 CFR as of July 1, 2006:

(a) Missouri is not seeking authorization for, and has appropriately left authority with EPA, for the majority of the non-delegable Federal rules that address specific functions for which EPA must retain authority, including treatment standards variances at 40 CFR 268.44(a)-(g) and hazardous waste imports and exports (40 CFR part 262, subparts E and H and other related requirements). However, Missouri has not left authority to EPA for the non-delegable provisions at: 40 CFR 261.39(a)(5)(exports of cathode ray tubes); 40 CFR 262.21 (Manifest Registry); 40 CFR 262.60(c), (d) and (e) (40 CFR part 262, subpart F export requirements); and 40 CFR 263.20(g)(4), 264.71(a)(3), and 265.71(a)(3)(Manifest copies for imports and exports of hazardous waste). EPA will continue to implement these requirements as appropriate.

(b) Missouri has adopted but has sought formal authorization and is not being authorized for the portions of the Federal program addressing the Burning of Hazardous Waste in Boilers and Industrial Furnaces (BIFs) that were introduced into the Federal code by a February 21, 1991 final rule (56 FR 7134; Revision Checklist 85) and subsequently amended by the following Federal rules: July 17, 1991 (56 FR 32688; revision Checklist 94); August 27, 1991 (56 FR 42504; Revision Checklist 96); September 5, 1991 (56 FR 43874; Revision Checklist 98); August 25, 1992 (57 FR 38558; Revision Checklist 111); September 30, 1992 (57 FR 44999; Revision Checklist 114); November 9, 1993 (58 FR 59598; Revision Checklist 127); and April 15, 1998 (63 FR 18504; Revision Checklist 164). As noted in the table in Section G, several of the final rules for which Missouri is receiving authorization address hazardous waste combustors and affect provisions from 40 CFR part 266, subpart H, 270.22 and 270.66 that apply to the requirements for boilers and industrial furnaces. Missouri is not receiving authorization for these BIF provisions as part of this authorization.

(c) Missouri has adopted but has not sought formal authorization and is not being authorized for the Universal Waste and Oil programs (40 CFR parts 273 and 279) as addressed by the following final rules: Used Oil—September 10, 1992 (57 FR 41566; Revision Checklist 112); May 13, 1993 as amended on June 17, 1993 (58 FR 26420 and 58 FR 33341; Revision Checklist 122); March 4, 1994 (59 FR 10550; Revision Checklist 130); May 6, 1998 as amended on July 14, 1998 (63 FR 24963 and 63 FR 37780; Revision Checklist 166); and July 30, 2003 (68 FR 44659; Revision Checklist 203); and Universal Waste—May 11, 1995 (60 FR 25492; Revision Checklist 142A- E); December 24, 1998 (63 FR 71225 Revision Checklist 176); July 6, 1999 (64 FR 36466; Revision Checklist 181); and August 5, 2005 (70 FR 45508; Revision Checklist 209).

(d) Missouri has adopted but has not sought formal authorization and is not being authorized for the RCRA Expanded Public Participation requirements introduced by the final rule published on December 11, 1995 (60 FR 63417; Revision Checklist 148).

(e) Missouri is not seeking authorization for the National Environmental Performance Track Program (April 22, 2004, 69 FR 21737; as amended October 25, 2004, 69 FR 62217; Revision Checklist 204). On May 14, 2009, EPA terminated the National Performance Track Program. In addition, Missouri has adopted but is not being authorized for the April 4, 2006 (71 FR 16862; revision Checklist 213) changes relative to the Performance Track program.

(f) Missouri has chosen not to adopt nor seek authorization for the final rules that make up the Wood Preserving Listings; however, in its incorporation by reference of 40 CFR part 261 at 10 CSR 25-4.261(1), Missouri has not excluded the changes addressed by the following Wood Preserving Listings final rules: July 1, 1991 (56 FR 30192; Revision Checklist 92), December 24, 1992 (57 FR 61492; Revision Checklist 120) and May 26, 1998 (63 FR 28556; Revision Checklist 167F). Similarly, Missouri has not excluded the final rule addressed by Revision Checklist 92 from its incorporation by reference of 40 CFR part 262 at 10 CSR 25-5.262(1).

(g) At 10 CSR 25-7.270(2)(D)6., Missouri excludes 40 CFR 270.42(j)(1) and (j)(2) from the incorporation by reference of 40 CFR part 270. To be consistent with the Federal program, Missouri needs to amend the language at 10 CSR 25-7.270(2)(D)6 to exclude the entire 270.42(j). Due to this error the Missouri provision is being excluded from the authorization of the final rules addressed by Revision Checklists 188 and 212.

The Missouri hazardous waste program contains some provisions that are more stringent than is required by the RCRA program as codified in the July 1, 2006 edition of title 40 of the Code of Federal Regulations. These more stringent provisions are being recognized as a part of the Federally-authorized program. The specific more stringent provisions are also noted in Missouri's authorization application. They include, but are not limited to, the following:

(a) At 10 CSR 25-5.262(2)(B) 1 and 2, Missouri is more stringent because the State requires generators to list the Missouri-specific acute hazardous waste code MH01 or MH02, as applicable, for wastes that are not regulated as acute hazardous wastes under the Federal program.

(b) At 10 CSR 25-5.262(2)(E), Missouri is more stringent in that the State requires that all documents sent to EPA in compliance with 40 CFR 262.54(c) and (e), also be sent to the Missouri Department of Natural Resources.

(c) At 10 CSR 25-5.262(2)(F), Missouri is more stringent because it includes several state-specific requirements with which United States importers must also comply including registering as a Missouri generator and additional recordkeeping requirements.

(d) At 10 CSR 25-6.263(2)(B)1, Missouri has adopted language in lieu of the Federal provisions at 40 CFR 263.20(a) that is more stringent than the Federal language including requirements related to the licensing of transporters and recordkeeping requirements for conditionally exempt small quantity generator waste.

(e) At 10 CSR 25-7.264(2)(E)1 and 2, in addition to the Federal requirements incorporated by reference at 10 CSR 25-7.264(1), Missouri is more stringent in that the state requires additional recordkeeping requirements for Treatment Storage and Disposal Facilities including the requirement to submit copies of manifests to the State.

After authorization, Missouri will issue permits for all the provisions for which it is authorized and will administer the permits issues. EPA will continue to administer any RCRA hazardous waste permits or portions of permits that we issued prior to the effective date of this authorization. Until such time as formal transfer of EPA permit responsibility to Missouri occurs and EPA terminates its permit, EPA and Missouri agree to coordinate the administration of permits in order to maintain consistency. We will not issue any more new permits or new portions of permits for the provisions listed in Section G after the effective date of this authorization. EPA will continue to implement and issue permits for HSWA requirements for which Missouri is not yet authorized.

Missouri is not seeking authorization to operate the program on Indian lands, since there are no Federally-recognized Indian lands in Missouri.

Codification is the process of placing the State's statutes and regulations that comprise the State's authorized hazardous waste program into the Code of Federal Regulations. EPA does this by referencing the authorized State rules in 40 CFR part 272. EPA reserves the amendment of 40 CFR 272, subpart AA for this authorization of Missouri's program changes until a later date.

The Office of Management and Budget has exempted this action from the requirements of Executive Order 12866 (58 FR 51735, October 4, 1993), and therefore this action is not subject to review by OMB. This action authorizes state requirements for the purpose of RCRA 3006 and imposes no additional requirements beyond those imposed by state law. Accordingly, I certify that this action will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this action authorizes pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). For the same reason, this action would not significantly or uniquely affect the communities of Tribal governments, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). In any case, Executive Order 13175 does not apply to this rule since there are no Federally-recognized tribes in the State of Missouri.

This action will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely authorizes state requirements as part of the State RCRA hazardous waste program without altering the relationship or the distribution of power and responsibilities established by RCRA. This action also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant and it does not make decisions based on environmental health or safety risks that may disproportionately affect children. This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866.

Under RCRA 3006(b), EPA grants a state's application for authorization as long as the state meets the criteria required by RCRA. It would thus be inconsistent with applicable law for EPA, when it reviews a state authorization application to require the use of any particular voluntary consensus standard, in place of another standard that otherwise satisfies the requirements of RCRA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 3701, et seq. ) do not apply. As required by section 3 of Executive Order 12988 (61 Fr 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 18, 1988) by examining the takings implications of the rule in accordance with the Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings issued under the executive order. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

The Congressional Review Act, 5 U.S.C. 801 et seq., as 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 document and other required information to the U.S. Senate, the U.S. House of representatives and the Comptroller General of the United States. EPA will submit a report containing this document and other required information to the U.S. Senate, the U. S. House of Representatives, and the comptroller General of the United States prior to publication in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This is not a “major rule” as defined by U.S.C. 804(2); this action will be effective December 26, 2012.

This document announces that, on October 15, 2012, OMB approved, for a period of three years, the information collection requirements contained in the Commission's Report and Order, FCC 12-42, published at 77 FR 30915, May 24, 2012. The OMB Control Number is 3060-0854. The Commission publishes this notice as an announcement of the effective dates of those modified sections. If you have any comments on the burden estimates listed below, or how the Commission can improve the collections and reduce any burdens caused thereby, please contact Cathy Williams, Federal Communications Commission, Room 1-C823, 445 12th Street SW., Washington, DC 20554. Please include the OMB Control Number, 3060-0854, in your correspondence. The Commission will also accept your comments via the Internet if you send them to PRA@fcc.gov.

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).

As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), the FCC is notifying the public that it received OMB approval on October 15, 2012, for the information collection requirements contained in the Commission's modified rules at 47 CFR 64.2401(a)(3) and (f).

Under 5 CFR part 1320, an agency may not conduct or sponsor a collection of information unless it displays a current, valid OMB Control Number.

No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act that does not display a current, valid OMB Control Number. The OMB Control Number is 3060-0854.

The foregoing notice is required by the Paperwork Reduction Act of 1995, Public Law 104-13, October 1, 1995, and 44 U.S.C. 3507.

The total annual reporting burdens and costs for the respondents are as follows:

OMB Control Number: 3060-0854.

OMB Approval Date: October 15, 2012.

OMB Expiration Date: October 31, 2015.

Title: Section 64.2401, Truth-in-Billing Format, CC Docket No. 98-170 and CG Docket No. 04-208.

Form Number: N/A.

Type of Review: Revision of a currently approved collection.

Respondents: Business or other for-profit entities.

Number of Respondents and Responses: 4,484 respondents; 36,090 responses.

Estimated Time per Response: 2 to 243 hours.

Frequency of Response: On occasion reporting requirement; Third party disclosure requirement.

Obligation to Respond: Required to obtain or retain benefits. The statutory authority for this information collection is found at section 201(b) of the Communications Act of 1934, as amended, 47 U.S.C. 201(b), and section 258, 47 U.S.C. 258, Public Law 104-104, 110 Stat. 56. The Commission's implementing rules are codified at 47 CFR 64.2400-01.

Total Annual Burden: 2,074,174 hours.

Total Annual Cost: $15,918,200.

Nature and Extent of Confidentiality: An assurance of confidentiality is not offered because this information collection does not require the collection of personally identifiable information from individuals.

Privacy Impact Assessment: No impact(s).

Needs and Uses: In 1999, the Commission released the Truth-in-Billing and Billing Format, CC Docket No. 98-170, First Report and Order and Further Notice of Proposed Rulemaking, ( 1999 TIB Order ); published at 64 FR 34488, June 25, 1999, which adopted principles and guidelines designed to reduce telecommunications fraud, such as slamming and cramming, by making bills easier for consumers to read and understand, and thereby, making such fraud easier to detect and report. In 2000, Truth-in-Billing and Billing Format, CC Docket No. 98-170, Order on Reconsideration, ( 2000 Reconsideration Order ); published at 65 FR 43251, July 13, 2000, the Commission, granted in part petitions for reconsideration of the requirements that bills highlight new service providers and prominently display inquiry contact numbers. On March 18, 2005, the Commission released Truth-in-Billing and Billing Format; National Association of State Utility Consumer Advocates' Petition for Declaratory Ruling Regarding Truth-in-Billing, Second Report and Order, Declaratory Ruling, and Second Further Notice of Proposed Rulemaking, CC Docket No. 98-170, CG Docket No. 04-208, ( 2005 Second Report and Order and Second Further Notice ); published at 70 FR 29979, May 25, 2005, and at 70 FR 30044, May 25, 2005, which determined, inter alia, that Commercial Mobile Radio Service providers no longer should be exempted from 47 CFR 64.2401(b), which requires billing descriptions to be brief, clear, non-misleading and in plain language. The 2005 Second Further Notice proposed and sought comment on measures to enhance the ability of consumers to make informed choices among competitive telecommunications service providers.

On April 27, 2012, the Commission released the Empowering Consumers to Prevent and Detect Billing for Unauthorized Charges (“Cramming”), Report and Order and Further Notice of Proposed Rulemaking, CG Docket No. 11-116, CG Docket No. 09-158, CC Docket No. 98-170, FCC 12-42 ( Cramming Report and Order and Further Notice of Proposed Rulemaking ); published at 77 FR 30915, May 24, 2012, and at 77 FR 30972, May 24, 2012, which determined that additional rules are needed to help consumers prevent and detect the placement of unauthorized charges on their telephone bills, an unlawful and fraudulent practice commonly referred to as “cramming.”

On December 9, 2008, we published a final rule to clarify the import/export license and fee requirements, adjust the user fee schedule, and update license and user fee exemptions (73 FR 74615). This final rule became effective on January 8, 2009.

The U.S. Fish and Wildlife Service has oversight responsibilities under statutory and regulatory authority to regulate the importation, exportation, and transportation of wildlife. Consistent with this authority, we have established an inspection program to oversee the importation, exportation, and transportation of wildlife and wildlife products. In support of our program activities, we promulgated regulations contained in title 50 of the Code of Federal Regulations in part 14 (50 CFR part 14) to provide individuals and businesses with guidelines and procedures to follow when importing or exporting wildlife, including parts and products. These regulations explain the requirements for individuals or businesses importing or exporting wildlife for commercial purposes, or for people moving their household goods, personal items, or pets, as well as the exemptions provided for specific activities or types of wildlife. The regulations at 50 CFR part 14 identify the specific ports and locations where these activities may be conducted and any fees that may be charged as a result of these activities.

On December 9, 2008, the Service published a final rule (73 FR 74615) implementing a new user fee system intended to recover the costs of the compliance portion of the wildlife inspection program. In developing the user fee system, the Service was guided by the Independent Offices Appropriations Act of 1952, codified at 31 U.S.C. 9701 (“the User Fee Statute”), which mandates that services provided by Federal agencies are to be “self-sustaining to the extent possible.” We were also guided by the Office of Management and Budget (OMB) Circular No. A-25, Federal user fee policy, which establishes Federal policy regarding fees assessed for government services. It provides that user fees will be sufficient to recover the full cost to the Federal Government of providing the service, will be based on market prices, and will be collected in advance of, or simultaneously with, the rendering of services. The policy requires Federal agencies to recoup the costs of “special services” that provide benefits to identifiable recipients. The Endangered Species Act (16 U.S.C. 1540(f)) also authorizes the Service to charge and retain reasonable fees for processing applications and for performing reasonable inspections of importation, exportation, and transportation of wildlife. The benefit of user fees is the shift in the payment for services from taxpayers as a whole to those persons who are receiving the government services.

The user fees currently apply primarily to commercial importers and exporters whose shipments of wildlife are declared to, and inspected and cleared by, Service wildlife inspectors, to ensure compliance with wildlife protection laws. These fees were not intended to fully fund the wildlife inspection program, which includes both a compliance monitoring function, involving services to the trade community, and a vital smuggling interdiction mission focused on detecting and disrupting illegal wildlife trade. The user fees appropriately focus only on recovering costs associated with services provided to importers and exporters engaged in legal wildlife trade. The inspection and clearance of wildlife imports and exports is a special service, provided to importers and exporters who are authorized to engage in activities not otherwise authorized for the general public. Our ability to effectively provide these inspection and clearance services and the necessary support for these services depends on inspection fees.

In developing the user fee rule, we analyzed the actual total costs of providing services to the legal wildlife trade community during fiscal year 2005, as compared to the actual total money that we collected for activities authorized by the wildlife inspection program during fiscal year 2005. The total costs include wildlife inspector salaries and benefits, the appropriate portion of our managers' salaries and benefits, direct costs such as vehicle operation and maintenance, equipment purchase and replacement, data entry and computer support for the Service's electronic filing system, communications costs, office supplies, uniforms, and administrative costs and indirect costs such as office space. It was readily apparent that total inspection fees collected in 2005 fell well below the total costs associated with the wildlife trade compliance program during fiscal year 2005. The user fee system was developed to recover costs over a 5-year period that ended in 2012 with the understanding that the 2012 fee schedule would continue to be used until the Service could complete a new economic assessment. Unforeseen administrative delays have resulted in postponement of this effort.

However, since implementation of the new user fee system, we have been made aware that we might have placed an undue economic burden on businesses that exclusively trade in small volumes of low-value, non-Federally protected wildlife parts and products. The continued expansion of the internet as a tool for commerce has made it not only possible, but imperative, in recent years for more and more businesses—especially small businesses—to sell directly to individual consumers. In the context of this business model, costs such as wildlife import/export inspection fees can be the tipping factor in the profitability and resulting viability of such business transactions. Global consumers increasingly expect to be able to order whatever they want whenever they want it from anywhere in the world, but some businesses dealing in small volumes of low-value wildlife products have been stymied in their ability to capitalize on, and compete in, these growing overseas markets.

The Service conducted a review of import/export data in the Law Enforcement Management Information System (LEMIS) for shipments imported or exported between 2009 and 2011. Almost half of the more than 10,000 licensed businesses were exclusively importing or exporting wildlife that was not living, was not injurious, and did not require a permit or certificate under Federal wildlife laws. These businesses are required to pay the designated port base inspection fee, currently assessed at $93, for each import or export. Because of the nature of the wildlife, they do not pay the higher premium inspection fees for live or protected species.

A further review of these nonliving, non-Federally protected wildlife shipments revealed that approximately 1,000 businesses exclusively imported or exported shipments the Service would consider to be small and of low value. The Service explored the value of shipments for which U.S. Customs and Border Protection currently allows informal declaration as part of the analysis of what could be considered a small shipment. The customs informal value is currently $2,000 except for most textile shipments, which must be valued at $250 or less. Based upon the review of the 2009-2011 LEMIS data, the Service decided to use a quantity of 25 as the upper limit on quantity of wildlife parts and products when a shipment was valued at $5,000 or less. The 2009-2011 import/export data showed that shipment contents ranged in quantity from 1 to 25 wildlife items or specimens when the shipment had a total value of $5,000 or less. Our analysis showed that increasing the number of specimens per shipment drives per-shipment value beyond a threshold that could reasonably be considered “low value.” The designated port base inspection fee of $93 could be considered excessive compared to the value of shipments worth $5,000 or less.

Service enforcement priorities establish that enforcement of Federal laws and regulations related to violations involving the import or export of non-Federal trust species of fish or wildlife is low priority. Because our analysis indicates an undue economic burden may have been placed on businesses importing or exporting small volumes of low-value wildlife parts and products that are considered to be low risk for the Service, we have created a user fee exemption program as an interim measure while we work on a new economic analysis and determine any changes needed to the current user fee structure.

With this rule, businesses that possess a valid Service import/export license may request to participate in this fee exemption program through our electronic filing system (eDecs). Qualified licensees will need to create an eDecs filer account as an importer or exporter if they do not already have one and file their required documents electronically. In order to be an approved participating business in the program and receive an exemption from the designated port base inspection fee, the licensed business will need to certify that it will exclusively import or export nonliving wildlife that is not listed as injurious under 50 CFR part 16 and does not require a permit or certificate under 50 CFR parts 15 (Wild Bird Conservation Act), 17 (Endangered Species Act), 18 (Marine Mammal Protection Act), 20 (Migratory Bird Treaty Act), 21 (Migratory Bird Treaty Act), 22 (Bald and Golden Eagle Protection Act), or 23 (the Convention on International Trade in Endangered Species of Wild Fauna and Flora). The requesting business will also need to certify that it will exclusively import or export the above type of wildlife shipments where the quantity in each shipment of wildlife parts or products is 25 or fewer and the total value of each wildlife shipment is $5,000 or less.

Any licensed business that has more than two wildlife shipments that were refused clearance in the 5 years prior to its request is not eligible for the program. In addition, any licensees that have been assessed a civil penalty, issued a Notice of Violation, or convicted of a misdemeanor or felony violation involving wildlife import or export will not be eligible to participate in the program. If an approved business fails to meet these criteria while participating in the program, the business will be removed from the program. While such a business would still be able to import or export wildlife, it would need to pay the applicable designated port base inspection fees for its shipments.

The current wildlife inspection fee schedule, which went into place at the beginning of 2009, was developed under the premise that all commercial entities engaged in wildlife trade should pay the actual costs of inspection services received. While implemented in January 2009, these regulations had initially been developed over a multiyear period beginning in 2006. They were thus predicated upon economic conditions that were changing in dramatic ways as the rulemaking process came to fruition.

Changing economic conditions have created a situation that may have unfairly disadvantaged smaller businesses without serving the interests of wildlife conservation. This situation was magnified with each year of the established fee schedule since 2009 as planned fee adjustments occurred in order to meet the goal of recovering the full costs of the wildlife inspection program from the businesses that engage in wildlife trade.

Under that schedule, the minimum fee for the inspection of a “routine” shipment that contains nonliving products made from species that move freely in trade (i.e., do not require a permit under Federal wildlife regulations and are not listed as injurious) now stands at $93. This cost must be paid regardless of the value or size of the shipment.

Some importers and exporters shipping small shipments (shipments containing 1 to 25 items made from wildlife) have been able to absorb this cost without undue hardship by consolidating shipments, passing on costs to consumers, and making other adjustments in business practices. Other companies shipping small shipments have not readily been able to make such adjustments.

These businesses have seen their per-shipment inspection fee increase steadily as a percentage of the value of the commodity being shipped. This escalation has taken place at a time when—because of the global economic downturn that followed on the heels of the 2008 U.S. financial crisis—businesses have not been able to make concomitant increases in retail prices paid by the consumer. In some cases, the inspection fee may even exceed the value of the product being shipped. With these inspection fees, some of these companies may no longer find it profitable to market their products overseas.

The Service's inspection fee schedule may have resulted in inordinate and unsustainable inspection costs for imports and exports that have disproportionately undercut the ability of certain businesses to respond to growing pressure to deal directly with consumers via internet-based purchases and other small shipping practices and do so profitably.

In adopting the 2008-2012 inspection fee schedule, the Service had assumed that it would be able to conduct routine reanalysis and adjustment of wildlife inspection fees so as to implement new fees reflective of economic realities that would be in place at the end of that 5-year period. Unforeseen administrative delays have resulted in the postponement of this effort and made it impossible for the Service to adjust for any unforeseen impact of its fee structure on certain U.S. businesses through the standard rulemaking procedure. Moreover, any impacts to businesses engaged primarily in low-volume shipments of wildlife have been magnified by the economic downturn. Under the Administrative Procedure Act (5 U.S.C. 551-553), our normal practice is to publish regulations with a 30-day delay in effective date. But in this case, the Service is taking immediate action to address this possible fee inequity in advance of a planned reassessment of its wildlife inspection user fee schedule. We are using the “good cause” exemptions under 5 U.S.C. 553(b) and (d)(3) to issue this rule without first invoking the usual notice and public comment procedure and to make this rule effective upon publication.

The “good cause” exemption is particularly relevant here because, as the Service begins the process for reexamining its fee structure, it needs to collect data regarding both the impact of changing the user fee structure on the business community and its ability to fully fund the wildlife inspection program. This interim rule will allow the Service to collect data with relatively low risk to the conservation goals of the Service and assist at least some businesses that may be currently experiencing an undue economic hardship. This interim rule does not add requirements on anyone; it merely relaxes fee requirements on as many as 1,000 licensees while more data are gathered. The Service is committed to finalizing this rule after careful consideration of both public comments and collection of additional data. 1

Background

As fully described in the initial interim rule implemented on May 1, 2012, (77 FR 25623), the final Gulf of Maine (GOM) cod assessment results were finalized in late January 2012. At that time, NMFS notified the New England Fishery Management Council (Council), as required by section 304(e)(7) of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), that the GOM cod rebuilding program was not making adequate progress toward rebuilding the stock, and that the Council must prepare an amendment within 2 years to rebuild the GOM cod stock. As authorized at section 304(e)(6) of the Magnuson-Stevens Act, the Council requested the Secretary of Commerce (Secretary) to implement interim measures to reduce, rather than end, overfishing of GOM cod while the Council developed a rebuilding plan. In response to the Council request and acting on behalf of the Secretary under authority granted by section 305(c) of the Magnuson-Stevens Act, NMFS implemented an initial interim rule May 1, 2012, to reduce rather than end overfishing on GOM cod during fishing year (FY) 2012, with the intent to extend the initial interim rule measures for the rest of FY 2012. However, the effectiveness for such rules is limited in duration. Rules may be issued for no more than 180 days with an extension of up to an additional 186 days to provide 12 months of interim measures. Therefore, this final interim rule extends the measures in the initial interim rule. The initial interim rule provided detailed information on how the interim measures are consistent with the authority provided by the Magnuson-Stevens Act and applicable NMFS guidelines for issuing interim measures. The background and authority-related information is not repeated here.

This temporary final rule extends the interim GOM cod catch limits and recreational management measures that were implemented on May 1, 2012. The initial interim measures expire on October 29, 2012; therefore, it is necessary to extend the interim measures until April 30, 2013, so that catch limits and recreational management measures are in place for the entire 2012 FY.

Eight comments were received on the initial interim rule. Responses to those comments are found in the Comments and Responses section later in this preamble.

The initial interim rule implemented a GOM cod total annual catch limit (ACL) of 6,700 mt that was divided among the various fishery components (Table 1). The distribution of ACL between sectors and the common pool was based on preliminary sector rosters in the initial interim rule. Subsequently, there have been two modifications to the original sector and common pool distribution based on final sector rosters (June 25, 2012, 77 FR 37816) and carryover from FY 2011 (September 26, 2012, 77 FR 59132). While the total ACL of 6,700 mt has remained unchanged, Table 1 highlights the revised allocations to sectors and the common pool. This interim rule extends the allocations in the most recent rule that published September 26, 2012.

The initial interim rule reduced the GOM cod recreational fishery minimum fish size from 24 in (61.0 cm) to 19 in (48.3 cm) and implemented a 9-fish bag limit (reduced from 10) to constrain catch to the recreational sub-ACL of 2,215 mt. These measures were based on analysis conducted by the Northeast Fisheries Science Center (NEFSC) using a new, but preliminary modeling approach and analytical model. Because of the uncertainty of the model and effectiveness of the measures, NMFS highlighted these concerns in the initial interim rule and outlined a plan to convene an external peer review of the model in question prior to this extension. A subset of the New England and Mid-Atlantic Fishery Management Councils' Science and Statistical Committees (SSC) convened on September 7, 2012, in Woods Hole, MA, to peer review the model and methods. The final SSC report found that the modeling approach was technically sound and represented an improvement over prior methods. Therefore, based on the findings of the peer review and the final report, this interim final rule extends the recreational measures through the end of FY 2012.

NMFS received eight comments during the comment period on the initial interim rule, five from private citizens, one from the Massachusetts Division of Marine Fisheries (DMF), and two from non-governmental organizations (Earth Justice and Oceana). Three of the comments from private citizens did not address measures of the rule and, as such, no responses have been provided.

Comment 1: The individual commented on the cod catch of different components of the recreational fishery and asked for additional reporting requirements for large party/charter vessels.

Response: Vessel trip reports are submitted by all recreational party/charter vessels to NMFS and the Marine Recreational Information Program collects, analyzes, and reports recreational fishing data. This interim rule was very limited in scope and duration for the purposes of reducing overfishing for 1 year, and therefore, did not address the larger issues and concerns about the sources of data that are needed to make management decisions, or consider modifying reporting requirements for the recreational fishery. The Council is the more appropriate forum for examining these larger issues regarding fishery effort and catch information by different components of the recreational fishery and to determine appropriate management measures.

Comment 2: The individual requested a new stock assessment that involves more input from members of the fishing industry.

Response: This comment does not directly pertain to the measures in the interim rule. The NEFSC will be completing stock assessments for Georges Bank (GB) and GOM cod in December 2012; these updates will provide catch advice to the Council for FY 2013. The NEFSC also recently hosted two workshops that included members of the fishing industry; one that reviewed the estimates of cod discard mortality rates and another that addressed the potential use of commercial catch per unit effort information in upcoming cod stock assessments. Lastly, the NEFSC has committed to side-by-side research with fishing industry vessels and the NEFSC's research vessels in the future.

Comment 3: Earth Justice requested that NMFS reject a Council request to allow partial access to the groundfish mortality closed areas. They also asked that NMFS develop a mid-year report on the interim catch levels and ongoing rebuilding efforts for GOM cod.

Response: NMFS denied the Council request to open closed areas in the initial interim rule and does not change that decision in this interim final rule. NMFS does not intend to complete a separate mid-year report at this time because commercial and recreational catch information is available ( http://www.nero.noaa.gov/ro/fso/MultiMonReports.htm ) and a comprehensive stock assessment is scheduled to occur in December of this year. At the end of FY 2012, NMFS intends to evaluate the commercial and recreational catch data and publish a final report on fishery performance. As mentioned above, the NEFSC will be completing a new GOM cod stock assessment which will provide insight on rebuilding efforts and help determine future catch levels and management measures for FY 2013.

Comment 4: The Massachusetts DMF and Oceana commented that there is inadequate and inaccurate catch monitoring given the current coverage rates of at-sea monitoring (25 percent), low catch limits for GOM cod, and the inability to enforce full retention of all legal-sized fish on unobserved trips.

Response: These comments align with a similar comment NMFS received for the FY 2012 Sector Operations Plan Rule, which suggested that the at-sea monitoring rate of 25 percent is inadequate. NMFS has determined, based on current information and analysis, that for FY 2012, the prescribed level of at-sea monitoring coverage is likely to provide reasonably accurate estimates of catch for sector vessels. However, The Plan Development Team (PDT) for the Council's Groundfish Oversight Committee and NMFS, are conducting an in depth examination into the adequacy of at-sea monitoring in the sector program; NMFS will reconsider the monitoring rate once this examination is complete. Moreover, because of the limited scope and duration of this interim rule, it is not appropriate or practicable to consider adjustments to the at-sea monitoring program and coverage levels in the middle of the fishing season. Resources for hiring, training, and allocating at-sea monitors have been made for the full year. Adjusting at-sea monitoring levels and protocol part way through the year has implications on sector operations and catch monitoring which should be addressed more fully in the Council process. Therefore, NMFS is attempting to address these concerns for FY 2013 and beyond.

The Regional Administrator, Northeast Region, NMFS, determined that this interim final rule is necessary for the conservation and management of the GOM cod fishery and that it is consistent with the Magnuson-Stevens Act and other applicable law.

Pursuant to 5 U.S.C. 553(d)(3), the Assistant Administrator finds good cause to waive the full 30-day delay in effectiveness for this rule. This rule merely extends the rule currently in place for an additional 6 months. The need for this extension was fully anticipated and announced to the public in the initial interim rule published on May 1, 2012. Accordingly, the entities affected by this rule and the public have no need to be made aware of or adjust to this rule by delaying its effectiveness for 30 days. The primary reason for delaying the effectiveness of Federal regulations is not present, and, therefore, such a delay would serve no public purposes. On the other hand, it would be contrary to the public interest if this rule does not become effective on October 29, 2012, because the previously established ACL for FY 2012 of 8,551 mt would become effective, with the result that overfishing would not be reduced. These measures would increase overfishing on the GOM cod stock and, as such, are inconsistent with the Magnuson-Stevens Act, the stated intent of the GOM cod rebuilding program, and the FMP. Moreover, failing to have the rule effective on October 29, 2012, may lead to confusion in the fishing community as to what regulations govern the harvest of GOM cod. For these reasons, there is good cause to waive the requirement for delayed effectiveness. NMFS has consulted with the Office of Information and Regulatory Affairs (OIRA) and due to the circumstances described above this action is exempt from review under Executive Order 12866.

Under section 608 of the Regulatory Flexibility Act, an agency may waive the requirement to perform a regulatory flexibility analysis for a rule where the agency finds that the “rule is being promulgated in response to an emergency that makes compliance or timely compliance with [the regulatory flexibility analysis requirements] impracticable.” 5 U.S.C. 608. As discussed in the preamble and classification section of initial interim rule, NMFS takes this action to address an emergency situation in the GOM cod fishery. Undertaking a regulatory flexibility analysis would delay this action and put the GOM cod and any small businesses that depend on it at further risk. Because the nature of this emergency requires immediate action, NMFS finds that compliance with the Regulatory Flexibility Act is impracticable. Thus, the requirements of the Regulatory Flexibility Act are hereby waived.

In the 2012 annual management measures for ocean salmon fisheries (77 FR 25915, May 2, 2012), NMFS announced the commercial and recreational fisheries in the area from the U.S./Canada Border to the U.S./Mexico Border, beginning May 1, 2012, and 2013 salmon seasons opening earlier than May 1, 2013.

NMFS is authorized to implement inseason management actions to modify fishing seasons and quotas as necessary to provide fishing opportunity while meeting management objectives for the affected species (50 CFR 660.409). Prior to taking inseason action, the Regional Administrator (RA) consults with the Chairman of the Pacific Fishery Management Council (Council) and the appropriate State Directors (50 CFR 660.409(b)(1)). Management of the salmon fisheries is generally divided into two geographic areas: north of Cape Falcon (U.S./Canada Border to Cape Falcon, Oregon) and south of Cape Falcon (Cape Falcon, Oregon to the U.S./Mexico Border).

The table below lists the inseason actions announced in this document.

The RA consulted with representatives of the Council, Oregon Department of Fish and Wildlife (ODFW), and California Department of Fish and Game (CDFG) on September 7, 2012.

The information considered during this consultation related to catch and effort to date in the commercial salmon fisheries south of Cape Falcon in the Oregon KMZ. Inseason action #22 closed the commercial salmon fishery in the Oregon KMZ on September 7, 2012, due to projected attainment of Chinook salmon quota. On September 7, 2012, the states recommended this action and the RA concurred; inseason action #22 took effect on September 7, 2012, and remained in effect until the end of the fishing season. Inseason action to effect season closure due to attainment of quota is authorized by 50 CFR 660.409(a)(1).

The RA consulted with representatives of the Council, Washington Department of Fish and Wildlife (WDFW), and ODFW on September 11, 2012. The information considered during this consultation related to catch and effort to date in the recreational salmon fishery north of Cape Falcon. Inseason action #23 adjusted the daily bag limit for the recreational salmon fishery in the Westport subarea (Queets River to Leadbetter Point) to two fish per day both of which can be a coho salmon and unmarked coho may be retained. This action was taken to allow greater access to available coho quota in the recreational fishery. On September 11, 2012, the states recommended this action and the RA concurred; inseason action #23 took effect on September 13, 2012, superseding inseason action #16 (77 FR 61728, October 11, 2012), and remained in effect until the end of the fishing season. Modification of recreational bag limits is authorized by 50 CFR 660.409(b)(1)(iii).

The RA consulted with representatives of the Council, ODFW, and CDFG on September 18, 2012. The information considered during this consultation related to catch and effort to date in the recreational salmon fishery south of Cape Falcon. Inseason action #24 adjusted the schedule for the Cape Falcon to Humbug Mountain non-mark-selective coho fishery. The opening scheduled preseason for September 20 through September 22 was changed to September 21 only. This action was taken due to projected attainment of non-mark-selective quota for this fishery. On September 18, 2012, the states recommended this action and the RA concurred; inseason action #24 took effect on September 20, 2012 and remained in effect until September 22, 2012. Inseason modification of fishing seasons is authorized by 50 CFR 660.409(b)(1)(i).

The RA consulted with representatives of the Council, ODFW, and CDFG on September 19, 2012. The information considered during this consultation related to catch and effort to date in the commercial salmon fishery in the California KMZ. Inseason action #25 closed the commercial salmon fishery between the Oregon/California Border and Humboldt South Jetty on September 19, 2012 due to projected attainment of Chinook salmon quota. On September 19, 2012, the states recommended this action and the RA concurred; inseason action #25 took effect on September 19, 2012 and remained in effect through the end of the fishing season. Inseason action to effect season closure due to attainment of quota is authorized by 50 CFR 660.409(a)(1).

The RA consulted with representatives of the Council, (WDFW), and (ODFW) on September 27, 2012. The information considered during this consultation related to catch and effort to date in the recreational salmon fisheries north of Cape Falcon. Inseason action #26 transferred 150 coho salmon from the recreational fishery quota for the Neah Bay subarea to the recreational fishery quota for the La Push subarea. This action resulted in a final coho quota of 8,200 for Neah Bay and 2,360 for La Push. This action was taken to allow the La Push fall fishing season to proceed as scheduled for September 29 through October 14 (77 FR 25915, May 2, 2012) while staying within the coho quota. On September 27, 2012, the states recommended this action and the RA concurred; inseason action #26 took effect on September 27, 2012 and remains in effect until the end of the fishing season or subsequent inseason action. Inseason modification of quotas and/or fishing seasons is authorized by 50 CFR 660.409(b)(1)(i).

All other restrictions and regulations remain in effect as announced for the 2012 Ocean Salmon Fisheries (77 FR 25915, May 2, 2012) and subsequent inseason actions (77 FR 55426, September 10, 2012; and 77 FR 61728, October 11, 2012) not otherwise modified herein.

The RA determined that the best available information indicated that the stock abundance, and catch and effort projections supported the above inseason actions recommended by the states. The states manage the fisheries in state waters adjacent to the areas of the U.S. exclusive economic zone in accordance with these Federal actions. As provided by the inseason notice procedures of 50 CFR 660.411, actual notice of the described regulatory actions was given, prior to the date the action was effective, by telephone hotline number 206-526-6667 and 800-662-9825, and by U.S. Coast Guard Notice to Mariners broadcasts on Channel 16 VHF-FM and 2182 kHz.

The Assistant Administrator for Fisheries, NOAA (AA), finds that good cause exists for this notification to be issued without affording prior notice and opportunity for public comment under 5 U.S.C. 553(b)(B) because such notification would be impracticable. As previously noted, actual notice of the regulatory actions was provided to fishers through telephone hotline and radio notification. These actions comply with the requirements of the annual management measures for ocean salmon fisheries (77 FR 25915, May 2, 2012), the West Coast Salmon Plan, and regulations implementing the West Coast Salmon Plan (50 CFR 660.409 and 660.411). Prior notice and opportunity for public comment was impracticable because NMFS and the state agencies had insufficient time to provide for prior notice and the opportunity for public comment between the time the fishery catch and effort data were collected to determine the extent of the fisheries, and the time the fishery modifications had to be implemented in order to ensure that fisheries are managed based on the best available scientific information, thus allowing fishers access to the available fish at the time the fish were available while ensuring that quotas are not exceeded. The AA also finds good cause to waive the 30-day delay in effectiveness required under 5 U.S.C. 553(d)(3), as a delay in effectiveness of these actions would allow fishing at levels inconsistent with the goals of the Salmon Fishery Management Plan and the current management measures.

These actions are authorized by 50 CFR 660.409 and 660.411 and are exempt from review under Executive Order 12866.

NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

NMFS closed directed fishing for pollock in Statistical Area 620 of the GOA under § 679.20(d)(1)(iii) on October 1, 2012 (77 FR 60321, October 3, 2012).

As of October 22, 2012, NMFS has determined that approximately 4,900 metric tons of pollock remain in the directed fishing allowance for pollock in Statistical Area 620 of the GOA. Therefore, in accordance with § 679.25(a)(1)(i), (a)(2)(i)(C), and (a)(2)(iii)(D), and to fully utilize the 2012 TAC of pollock in Statistical Area 620 of the GOA, NMFS is terminating the previous closure and is reopening directed fishing pollock in Statistical Area 620 of the GOA, effective 1200 hrs, A.l.t., October 24, 2012.

The Administrator, Alaska Region (Regional Administrator) considered the following factors in reaching this decision: (1) The current catch of pollock in Statistical Area 620 of the GOA and, (2) the harvest capacity and stated intent on future harvesting patterns of vessels in participating in this fishery.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the opening of the directed pollock fishery in Statistical Area 620 of the GOA. Immediate notification is necessary to allow for the orderly conduct and efficient operation of this fishery, to allow the industry to plan for the fishing season, and to avoid potential disruption to the fishing fleet and processors. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of October 22, 2012.

The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

Without this inseason adjustment, NMFS could not allow pollock fishery in Statistical Area 620 of the GOA to be harvested in an expedient manner and in accordance with the regulatory schedule. Under § 679.25(c)(2), interested persons are invited to submit written comments on this action to the above address until November 13, 2012.

This action is required by § 679.25 and is exempt from review under Executive Order 12866.