The FAA finds that notice and public comment to this final rule are unnecessary, since this amendment is a conforming change in light of the rulemaking activity that led to AD 2012-11-09. 1 Interested parties have been offered an opportunity to comment on the issues covered by this SFAR, and the FAA has considered all comments. See Airworthiness Directive (AD) 2012-11-09; 77 FR 38000, June 26, 2012.

The FAA's authority to issue rules on 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 III, Section 44701, “General Requirements.” Under that section, the FAA is charged with promoting safe flight of civil aircraft in air commerce by prescribing minimum standards required in the interest of safety for the design and performance of aircraft; regulations and minimum standards in the interest of safety for inspecting, servicing, and overhauling aircraft; and regulations for other practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it revises the safety standards for design and operation of transport category airplanes.

The FAA issued Special Federal Aviation Regulation (SFAR) 111 to address the noncompliance with the regulations created by compliance with AD 2011-04-09. 2 Because no solution was available at that time that would both comply with the AD and provide oxygen to occupants of lavatories, the SFAR was intended to be in effect until superseded by further action.

As discussed in the preambles to the notice of proposed rulemaking (NPRM)  3 and final rule adopting AD 2012-11-09, the FAA chartered an Aviation Rulemaking Committee (ARC) to identify methods of restoring oxygen in lavatories without creating security vulnerabilities. The FAA is in the process of developing rulemaking to adopt new standards for chemical oxygen generator system installations, based on the ARC recommendations, and has issued Policy Statement PS-ANM-25-04, Chemical Oxygen Generator Installations. Applicants may use the guidance in that policy statement for approval of chemical oxygen generator systems. Further, the FAA has issued AD 2012-11-09, which mandates installation of a supplemental oxygen system in all airplanes affected by AD 2011-04-09.

The FAA is now establishing an expiration date for SFAR 111 that coincides with the compliance date of AD 2012-11-09. While we fully expect that the compliance time specified in the AD is sufficient to enable all affected operators to comply within that time, it is possible there will be circumstances beyond an operator's control under which the operator's compliance will be delayed. If the delay is adequately justified, per § 39.19, the FAA may approve an alternative method of compliance (AMOC) or extension of compliance time. To avoid having to initiate additional rulemaking or to grant a separate exemption from the regulations referenced in SFAR 111, paragraph (e) would allow for an extension of the expiration of the SFAR corresponding to the duration of any such extension of compliance time.

The applicability of the SFAR has been amended to conform to AD 2012-11-09. The amended SFAR applies to persons required to comply with AD 2012-11-09, but only for airplanes on which the actions required by the AD have not yet been accomplished. The effect of this limitation is that, once those actions are accomplished on an airplane, it is no longer eligible for the relief or subject to the requirements provided by this SFAR, and the operator is again required to comply with the applicable rules specified in paragraph (b) of the SFAR.

Until compliance with AD 2012-11-09 is accomplished, the amended SFAR allows all air carriers that were required to comply with AD 2011-04-09 to continue to operate without complying with specific regulations pertaining to supplemental oxygen systems. The amended SFAR also permits manufacturers and modifiers of transport category airplanes to deliver or return to service airplanes affected by the FAA directive with the same relief. In addition, the amended SFAR requires certain procedural and configuration enhancements to reduce the safety risk to passengers in the unlikely event that they should need oxygen while in a lavatory. Paragraph (c) of the amended SFAR requires that when a person described in paragraph (a) of this section has modified airplanes as required by Airworthiness Directive 2011-04-09, the affected airplanes must be returned to service with a note in the airplane maintenance records that the modification was done under the provisions of this SFAR.

Paragraph (h) of AD 2011-04-09 also contains a provision for regulatory relief that is in effect until superseded by other rulemaking. AD 2012-11-09 superseded AD 2011-04-09 and contains a similar provision for superseding future rulemaking to allow for the progressive retrofit of the affected fleet. As such, the amended SFAR is only needed to allow for deliveries, modifications and other entries into service that might otherwise not be allowed due to noncompliance with supplemental oxygen requirements, until the compliance date of AD 2012-11-09.

On March 8, 2011, the FAA published an interim final rule, request for comments (Amendment Nos. 21-94, 25-133, 121-354, 129-50; SFAR 111), on security considerations for lavatory oxygen systems in the Federal Register (76 FR 12550). The FAA had become aware of security vulnerability with certain types of oxygen systems installed inside the lavatories of most transport category airplanes. As a result, the FAA mandated that these oxygen systems be rendered inoperative until the vulnerability could be eliminated. However, by rendering the oxygen systems inoperative to comply with that mandatory action, operators were out of compliance with the requirements of Title 14, Code of Federal Regulations (14 CFR) 25.1447, 121.329, and 121.333.

In addition to the fleet of in-service airplanes, newly manufactured airplanes and airplanes undergoing other modification also needed to render the oxygen systems in the lavatories inoperative. SFAR 111 was needed so the affected airplanes could continue operating until the issue was resolved.

The FAA then chartered an Aviation Rulemaking Committee (ARC) to make recommendations regarding new standards for the oxygen system installation, as well as how to implement those standards. The ARC submitted its recommendations to the FAA, and the FAA intends to use those recommendations as the basis for new standards and new installation approvals.

The FAA received comments from ten commenters regarding SFAR 111. Those commenters were: Aerox Aviation Oxygen Systems, Inc., The Boeing Company, and eight individual commenters. The FAA's disposition of those comments was published in the Federal Register on February 27, 2012 (77 FR 11385.) The FAA determined that no revisions to SFAR 111 were necessary based off comments received.

Changes to Federal regulations must undergo several economic analyses. First, Executive Order 12866 and Executive Order 13563 direct that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354) requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (Pub. L. 96-39) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. In developing U.S. standards, the Trade Act requires agencies to consider international standards and, where appropriate, that they be the basis of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more annually (adjusted for inflation with base year of 1995). This portion of the preamble summarizes the FAA's analysis of the economic impacts of this final rule. Department of Transportation Order DOT 2100.5 prescribes policies and procedures for simplification, analysis, and review of regulations. If the expected cost impact is so minimal that a proposed or final rule does not warrant a full evaluation, this order permits that a statement to that effect and the basis for it to be included in the preamble if a full regulatory evaluation of the cost and benefits is not prepared. Such a determination has been made for this final rule. The reasoning for this determination follows:

This final rule adds an expiration date to SFAR 111 that coincides with the compliance date for AD 2012-11-09.

The FAA has, therefore, determined that this final rule is not a “significant regulatory action” as defined in section 3(f) of Executive Order 12866, and is not “significant” as defined in DOT's Regulatory Policies and Procedures.

The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA) establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objectives of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the businesses, organizations, and governmental jurisdictions subject to regulation.” To achieve this principle, agencies are required to solicit and consider flexible regulatory proposals and to explain the rationale for their actions to assure that such proposals are given serious consideration.” The RFA covers a wide-range of small entities, including small businesses, not-for-profit organizations, and small governmental jurisdictions.

Agencies must perform a review to determine whether a rule will have a significant economic impact on a substantial number of small entities. If the agency determines that it will, the agency must prepare a regulatory flexibility analysis as described in the RFA.

However, if an agency determines that a rule is not expected to have a significant economic impact on a substantial number of small entities, section 605(b) of the RFA provides that the head of the agency may so certify and a regulatory flexibility analysis is not required. The certification must include a statement providing the factual basis for this determination, and the reasoning should be clear.

The costs to small airline operators to install lavatory oxygen generating systems have been addressed in the economic analysis associated with the rulemaking for AD-2012-11-09. This final rule ensures that the expiration date of SFAR 111 will coincide with the compliance date of AD-2012-11-09, but also allows for an extension of compliance time if the delay is adequately justified.

Therefore as the FAA Acting Administrator, I certify that this rule will not have a significant economic impact on a substantial number of small entities.

The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal agencies from establishing standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Pursuant to these Acts, the establishment of standards is not considered an unnecessary obstacle to the foreign commerce of the United States, so long as the standard has a legitimate domestic objective, such as the protection of safety, and does not operate in a manner that excludes imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. The FAA has assessed the potential effect of this final rule and determined that it responds to a domestic safety objective and is not considered an unnecessary obstacle to international trade.

Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (in 1995 dollars) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.” The FAA currently uses an inflation-adjusted value of $143.1 million in lieu of $100 million. This final rule does not contain such a mandate; therefore, the requirements of Title II of the Act do not appl y.

The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that the FAA consider the impact of paperwork and other information collection burdens imposed on the public. The FAA has determined that there is no new requirement for information collection associated with this final rule.

In keeping with U.S. obligations under the Convention on International Civil Aviation, it is FAA policy to conform to International Civil Aviation Organization (ICAO) Standards and Recommended Practices to the maximum extent practicable. The FAA has reviewed the corresponding ICAO Standards and Recommended Practices and has identified no differences with these regulations.

Executive Order 13609, Promoting International Regulatory Cooperation, promotes international regulatory cooperation to meet shared challenges involving health, safety, labor, security, environmental, and other issues and to reduce, eliminate, or prevent unnecessary differences in regulatory requirements. The FAA has analyzed this action under the policies and agency responsibilities of Executive Order 13609, and has determined that this action would have no effect on international regulatory cooperation.

FAA Order 1050.1E identifies FAA actions that are categorically excluded from preparation of an environmental assessment or environmental impact statement under the National Environmental Policy Act in the absence of extraordinary circumstances. The FAA has determined this rulemaking action qualifies for the categorical exclusion identified in paragraph 312f and involves no extraordinary circumstances.

The FAA has analyzed this final rule under the principles and criteria of Executive Order 13132, Federalism. The agency determined that this action will not have a substantial direct effect on the States, or the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government, and, therefore, does not have Federalism implications.

The FAA analyzed this final rule under Executive Order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use (May 18, 2001). The agency has determined that it is not a “significant energy action” under the executive order and it is not likely to have a significant adverse effect on the supply, distribution, or use of energy.

An electronic copy of a rulemaking document my be obtained by using the Internet—

1. Search the Federal eRulemaking Portal ( http://www.regulations.gov);

2. Visit the FAA's Regulations and Policies Web page at http://www.faa.gov/regulations_policies/or

3. Access the Government Printing Office's Web page at http://www.gpo.gov/fdsys/.

Copies may also be obtained by sending a request (identified by amendment or docket number of this rulemaking) to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue SW., Washington, DC 20591, or by calling (202) 267-9680.

Comments received may be viewed by going to http://www.regulations.gov and following the online instructions to search the docket number for this action. Anyone is able to search the electronic form of all comments received into any of the FAA's dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.).

The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 requires FAA to comply with small entity requests for information or advice about compliance with statutes and regulations within its jurisdiction. A small entity with questions regarding this document, may contact its local FAA official, or the person listed under the FOR FURTHER INFORMATION CONTACT heading at the beginning of the preamble. To find out more about SBREFA on the Internet, visit http://www.faa.gov/regulations_policies/rulemaking/sbre_act/ .

In consideration of the foregoing, the Federal Aviation Administration amends chapter I of Title 14, Code of Federal Regulations as follows:

We received a report of an engine shutdown and turbine case burn-through, preceded by exceedance of the engine exhaust gas temperature (EGT) limit and loss of engine oil. Investigation revealed that the event was caused by damage to the HPT stage 2 nozzle due to inadequate part cooling. HPT stage 2 nozzles, part numbers (P/Ns) 2101M24G01, 2101M24G02, and 2101M24G03, are identified as having the inadequate cooling design. This condition, if not corrected, could result in HPT stage 2 nozzle failure, leading to uncontrolled fire, engine shutdown, and damage to the airplane.

We are issuing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

This AD requires initial and repetitive borescope inspections and removal from service before further flight if burn holes are detected, in HPT stage 2 nozzles, P/Ns 2101M24G01, 2101M24G02, and 2101M24G03. This AD also requires mandatory removal from service of these HPT stage 2 nozzles at the next engine shop visit.

No domestic operators use this product. Therefore, we find that notice and opportunity for prior public comment are unnecessary, and that good cause exists for making this amendment effective in less than 30 days.

This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment. However, we invite you to send any written data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include the Docket Number FAA-2012-1293 and Directorate Identifier 2012-NE-45-AD at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD because of those comments.

We will post all comments we receive, without change, to http://www.regulations.gov , including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this AD.

We estimate that this AD will affect no engines installed on airplanes of U.S. registry. We also estimate that it would take about two hours per engine to perform a borescope inspection of the HPT stage 2 nozzle. The average labor rate is $85 per work hour. Required parts would cost about $487,312 per engine. Based on these figures, we estimate the cost of this proposed AD to U.S. operators to be $0.

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

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

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

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

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

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

(3) Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction, and

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

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

We received a report from Global Material Solutions of Pratt & Whitney, of a forging process error that occurred during manufacture of HPT disks, part number (P/N) 880026, serial numbers (S/Ns) GLKBAA9307, GLKBAA9335, GLKBAA9404, GLKBAA9407, and GLKBAA9409. During the last forging operation of the manufacturing process, the forging temperature at the disk rim was incorrect. This resulted in below allowable creep properties of the HPT disk, which reduced the calculated maximum life limits. This condition, if not corrected, could result in uncontained release of multiple turbine blades, damage to the engine, and damage to the airplane.

We are issuing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

This AD requires removal of the affected HPT disks at reduced maximum life limits, as follows:

• For CFM56-3, CFM56-3B and CFM56-3C turbofan engines operating to 20,100 lbs maximum takeoff (MTO) thrust, remove the HPT disk on or before accumulating 8,000 cycles-since-new (CSN).

• For CFM56-3B and CFM56-3C turbofan engines operating to 22,100 lbs MTO thrust, remove the HPT disk on or before accumulating 8,000 CSN.

• For CFM56-3C turbofan engines operating to 23,500 lbs MTO thrust, remove the HPT disk on or before accumulating 4,000 CSN.

• For HPT disks that have been used in multiple models or thrust installations, the formula in the ADDED DATA section of Pratt & Whitney Special Instruction 6F-12 dated December 21, 2012 must be used to calculate the remaining life on the disk.

No domestic operators use this product. Therefore, we find that notice and opportunity for prior public comment are unnecessary and that good cause exists for making this amendment effective in less than 30 days. Accordingly, this AD is effective upon publication.

This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment. However, we invite you to send any written data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket Number FAA-2012-1289; Directorate Identifier 2012-NE-43-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD because of those comments.

We will post all comments we receive, without change, to http://www.regulations.gov , including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this AD.

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

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

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

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

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

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

(3) Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction, and

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

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

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

FDA is amending the animal drug regulations to reflect approval actions for several original ANADAs during December 2012, as listed in table 1. In addition, FDA is informing the public of the availability, where applicable, of documentation of environmental review required under the National Environmental Policy Act (NEPA) and, for actions requiring review of safety or effectiveness data, summaries of the basis of approval (FOI Summaries) under the Freedom of Information Act (FOIA). These public documents may be seen in the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852, between 9 a.m. and 4 p.m., Monday through Friday. Persons with access to the Internet may obtain these documents at the Center for Veterinary Medicine FOIA Electronic Reading Room: http://www.fda.gov/AboutFDA/CentersOffices/OfficeofFoods/CVM/CVMFOIAElectronicReadingRoom/default.htm.

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

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

Electronic Access and Filing

This document may be viewed online through the Federal eRulemaking portal at http://www.regulations.gov . Retrieval help and guidelines are available on the Web site. It is available 24 hours each day, 365 days a year. An electronic copy of this document may also be downloaded from the Office of the Federal Register's home page at: http://www.archives.gov/federal-register and the Government Printing Office's Web page at: http://www.gpo.gov/fdsys .

Under the “Administrative Procedure Act” (5 U.S.C. 553(b)), an agency may waive the normal notice and comment procedure if it finds, for good cause, that it would be impracticable, unnecessary, or contrary to the public interest. The FHWA finds that notice and comment for this rule is unnecessary because it implements a congressional mandate to amend 23 CFR 635.411 to allow States to choose culvert and storm sewer material type. The regulatory amendments in this final rule are based upon the statutory language and FHWA does not anticipate receiving meaningful comments to alter the regulation given the explicit mandate. Accordingly, FHWA finds good cause under 5 U.S.C. 553(b)(3)(B) to waive notice and opportunity for comment.

The “General Material Requirements,” found in 23 CFR part 635 subpart D, supports competitive bidding principles in 23 U.S.C. 112 with certain requirements and procedures relating to product and material selection and use on Federal-aid highway projects.

Securing competition in the area of culvert pipe material selection has been a concern of FHWA since the 1960s. In an internal Bureau of Public Roads (now FHWA) Memorandum issued October 7, 1963, the Bureau of Public Roads addressed the issue of culvert selection and in general product selection in writing:

This Memorandum further states,

Through a revision to Policy & Procedure Memorandum 21-6.3 dated October 3, 1972, the FHWA included a table entitled “Summary of Acceptable Criteria for Specifying Types of Culvert Pipes.” On September 30, 1974, the table was included in the CFR as an appendix to 23 CFR 635.117 (39 FR 35152). According to § 635.117(d), as in effect in 1974, Appendix A

Section 5514 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU, Pub. L. 109.59; August 10, 2005), titled “Competition for Specification of Alternative Types of Culvert Pipes,” required the Secretary of Transportation to ensure that States provide for competition with respect to the specification of alternative types of culvert pipes through requirements that are commensurate with competition for other construction materials. To implement this provision, the FHWA issued a final rule on November 15, 2006 (71 FR 66450), that deleted Appendix A from the CFR.

On July 6, 2012, President Obama signed the Moving Ahead for Progress in the 21st Century Act (MAP-21), Public Law 112-141, 126 Stat. 405. Section 1525 of MAP-21, “State Autonomy for Culvert Pipe Selection,” requires the Secretary of Transportation, within 180 days of the date of enactment of MAP-21 (October 1, 2012) to modify section 635.411 of title 23 CFR, to ensure that States shall have the autonomy to determine culvert and storm sewer material types to be included in the construction of a project on a Federal-aid highway. The use of the word “autonomy” in this section gives the State transportation departments (State DOTs) and other direct recipients the sole authority and discretion to make a decision regarding culvert and storm sewer material types without any input or approval from the FHWA. As a result, a State DOT may choose to exercise its autonomy regarding culvert and storm sewer type selection to either:

(a) Include all material types deemed acceptable as a result of engineering and economic analysis, or

(b) Restrict the pool of available culvert and storm sewer material types to those which the State DOT would select.

Although section 1525 gives the States the autonomy to determine culvert and storm sewer material types, section 1525 does not relieve the States of compliance with other applicable Federal requirements, such as Buy America, culvert design standards in 23 CFR part 625, and the restriction against the use of patented and proprietary products in 23 CFR 635.411. Also, while a State may choose to specify only one type of material, the State may not specify only one specific product among several of the same material type that is chosen unless otherwise permitted to do so under section 635.411. Also, with respect to design standards, the specified type would have to conform to engineering design standards such as structural load, hydraulic capacity, corrosion resistance, etc., and would have to fit into the natural and constructed environment. These culvert design standards are encompassed in the various standards found in 23 CFR part 625.

This final rule amends subsection 635.411 to add a paragraph (f) to grant autonomy to State DOTs regarding the selection of culvert and storm sewer material types to be included in Federal-aid highway construction projects. The language would not permit FHWA to limit Federal-aid participation in costs based on the culvert or storm sewer material type selected by the State DOT. However, the State DOTs' use of culvert and storm sewer material shall otherwise comply with all applicable Federal requirements, such as the provisions regarding the use of patented and proprietary products set forth in this section as well as the design standards set forth in 23 CFR part 625.

The FHWA has determined that this action is not a significant regulatory action within the meaning of Executive Order 12866, and within the meaning of the U.S. Department of Transportation's regulatory policies and procedures. Since this rulemaking implements a congressional mandate to merely allow States to choose culvert and storm sewer material type, and does not require or prohibit the use of a particular type of culvert and storm sewer material, the FHWA anticipates that the economic impact of this rulemaking would be minimal. The FHWA anticipates that this final rule will not adversely affect, in a material way, any sector of the economy. Additionally, this action complies with the principles of Executive Order 13563. In addition, these changes will not interfere with any action taken or planned by another agency and would not materially alter the budgetary impact of any entitlements, grants, user fees, or loan programs. Consequently, a full regulatory evaluation is not required.

Since FHWA finds good cause under 5 U.S.C. 553(b)(3)(B) to waive notice and opportunity for comment for this rule, the provisions of the Regulatory Flexibility Act (Pub. L. 96-354, 5 U.S.C. 601-612) do not apply. However, the FHWA has evaluated the effects of this action on small entities and has determined that the action would not have a significant economic impact on a substantial number of small entities. The amendment addresses obligation of Federal funds to States for Federal-aid highway projects. As such, it affects only States and States are not included in the definition of small entity set forth in 5 U.S.C. 601.

This final rule would not impose unfunded mandates as defined by the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48, March 22, 1995) as it will not result in the expenditure by State, local, tribal governments, in the aggregate, or by the private sector, of $148.1 million or more in any one year (2 U.S.C. 1532).

Executive Order 13132 requires agencies to assure meaningful and timely input by State and local officials in the development of regulatory policies that may have a substantial, direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. This action has been analyzed in accordance with the principles and criteria contained in Executive Order 13132 dated August 4, 1999, and the FHWA has determined that this action would not have a substantial direct effect or sufficient federalism implications on the States. The FHWA has also determined that this action would not preempt any State law or regulation or affect the States' ability to discharge traditional State governmental functions.

Catalog of Federal Domestic Assistance Program Number 20.205, Highway Planning and Construction. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities apply to this program. Accordingly FHWA solicits comments on this issue.

Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et seq. ), Federal agencies must obtain approval from the Office of Management and Budget for each collection of information they conduct, sponsor, or require through regulations. The FHWA has analyzed this final rule under the PRA and has determined that this rule does not contain collection of information requirements for the purposes of the PRA.

The FHWA has analyzed this action for the purpose of the National Environmental Policy Act of 1969, as amended (42 U.S.C. 4321 et seq. ), and has determined that this action would not have any effect on the quality of the environment and meets the criteria for the categorical exclusion at 23 CFR 771.117(c)(20).

The FHWA has analyzed this final rule under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. The FHWA does not anticipate that this final rule would affect a taking of private property or otherwise have taking implications under Executive Order 12630.

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

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. The FHWA certifies that this action would not cause an environmental risk to health or safety that might disproportionately affect children.

The FHWA has analyzed this action under Executive Order 13175, dated November 6, 2000, and believes that the action would not have substantial direct effects on one or more Indian tribes; would not impose substantial direct compliance costs on Indian tribal governments; and would not preempt tribal laws. This final rule addresses obligations of Federal funds to States for Federal-aid highway projects and would not impose any direct compliance requirements on Indian tribal governments. Therefore, a tribal summary impact statement is not required.

The FHWA has analyzed this action under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. The FHWA has determined that this is not a significant energy action under that order since it is not a significant regulatory action under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, a Statement of Energy Effects is not required.

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

In consideration of the foregoing, title 23, Code of Federal Regulations, part 635 is amended as follows:

Table of Acronyms DHS Department of Homeland Security FR Federal Register MOTCO Military Ocean Terminal Concord NPRM Notice of Proposed Rulemaking A. Public Participation and Request for Comments

We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted without change to http://www.regulations.gov and will include any personal information you have provided.

If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online at http://www.regulations.gov, or by fax, mail, or hand delivery, but please use only one of these means. If you submit a comment online, it will be considered received by the Coast Guard when you successfully transmit the comment. If you fax, hand deliver, or mail your comment, it will be considered as having been received by the Coast Guard when it is received at the Docket Management Facility. We recommend that you include your name and a mailing address, an email address, or a telephone number in the body of your document so that we can contact you if we have questions regarding your submission.

To submit your comment online, go to http://www.regulations.gov, type the docket number in the “SEARCH” box and click “SEARCH.” Click on “Submit a Comment” on the line associated with this rulemaking.

If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 8-1/2 by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period and may change the rule based on your comments.

To view comments, as well as documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type the docket number in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rulemaking. You may also visit the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act notice regarding our public dockets in the January 17, 2008, issue of the Federal Register (73 FR 3316).

We do not now plan to hold a public meeting. But you may submit a request for one on or before December 20, 2012, using one of the methods specified under ADDRESSES . Please explain why you believe a public meeting would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the Federal Register .

This interim rule will regulate the waters of Suisun Bay in vicinity of the Military Ocean Terminal Concord (MOTCO) in Concord, California. This rule will be enforced in conjunction with the MOTCO security zone, established in 33 CFR § 165.1199, which restricts vessel traffic during military onloads and offloads at MOTCO.

The Coast Guard is issuing this rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM with respect to this rule because to do so would be impracticable. Due to the fact that military loading operations are ongoing, there is a need to begin enforcement of a no-loitering zone immediately, and a notice and comment period would expose the public to additional dangers.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register because to do otherwise would be impracticable, as immediate prevention measures are needed to protect the maritime public during military onload and offload operations.

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

The U.S. Army's 834th Transportation Battalion requested that the U.S. Coast Guard develop a no-loitering area around the piers at Military Ocean Terminal Concord, CA during military onloads and offloads. In the unlikely event of an explosion due to military loading operations, a no-loitering zone is needed to minimize the likelihood of public presence in the projected blast zone, to protect persons and vessels from the dangers associated with military onload and offload operations.

A safety zone is necessary in the vicinity of MOTCO to prevent persons and vessels from anchoring or otherwise loitering in the zone between 500 yards of MOTCO Pier 2 in position 38°03′30″ N, 122°01′14″ W (NAD 83) as depicted in National Oceanic and Atmospheric Administration (NOAA) Chart 18656 (the perimeter of the existing security zone) and 3,000 yards of the pier.

The Coast Guard is establishing a safety zone in Suisun Bay near MOTCO in Concord California during military onloads and offloads. Given the potentially devastating impact of an ordnance mishap, the Coast Guard is implementing a safety zone around the MOTCO piers during military onloads and offloads. This rule will create a no-loitering area in the zone between 500 yards of MOTCO Pier 2 in position 38°03′30″ N, 122°01′14″ W (NAD 83) as depicted in National Oceanic and Atmospheric Administration (NOAA) Chart 18656 (the perimeter of the existing security zone) and 3,000 yards of the pier. The purpose of this safety zone is to prevent persons or vessels from anchoring or loitering within the potential blast zone around the MOTCO piers during military onloads and offloads. This safety zone will be effective for the entire duration of onload and offload operations.

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

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

The safety zone is limited in duration, and is limited to a narrowly tailored geographic area. In addition, although this rule restricts anchoring and/or loitering in the waters encompassed by the safety zone, the effect of this rule will not be significant because the local waterway users will have access to the waterway for transitory purposes. The entities most likely to be affected by this rule are owners and operators of commercial vessels, and pleasure craft engaged in recreational activities and sightseeing.

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

This rule may affect owners and operators of commercial vessels, and pleasure craft engaged in recreational activities and sightseeing. This safety zone would not have a significant economic impact on a substantial number of small entities for the following reasons. This safety zone would be activated, and thus subject to enforcement, for a limited duration. The safety zone does not restrict transitory use of the waterways and is in place to prevent anchoring and loitering within the blast zone. The maritime public will be advised via actual notice during the enforcement of this safety zone.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Coast Guard is extending the initial Temporary Final Rule USCG—2012-0431. On June 15, 2012 a Notice to Proposed Rulemaking was published in 77 FR 35906 for USCG -2012-0431. A subsequent Notice to Proposed Rulemaking was published on September 13, 2012 in 77 FR 56587 for USCG-2012-0811. We received no comments on this proposed rule.

North Carolina Department of Transportation has awarded a contract to Marine Contracting Corporation of Virginia Beach, Virginia to perform bridge maintenance on the NC 133 Fixed Bridge crossing the Atlantic Intracoastal Waterway, mile 311.8, at Oak Island, North Carolina. The contract provides for replacing the fender system which commenced on September 12, 2012 with an initial completion date of December 12, 2012. Subsequently, the contractor was granted an extension by North Carolina Department of Transportation until February 14, 2013. However, due to the presence of rock on the sea bed, which has impacted the construction progress, NCDOT has granted an additional extension until June 15, 2013 to complete the bridge maintenance. The contractor will utilize a 140 foot deck barge with a 40 foot beam as a work platform and for equipment staging. This safety zone will provide a safety buffer to transiting vessels as bridge repairs present potential hazards to mariners and property due to reduction of horizontal clearance. During this period the Coast Guard will require a one hour notification to the work supervisor at the NC 133 Fixed Bridge at the Atlantic Intracoastal Waterway crossing, mile 311.8, Oak Island, North Carolina. The notification requirement will apply during the maintenance period for vessels requiring a horizontal clearance of greater than 50 feet.

The temporary safety zone will encompass the waters directly under the NC 133 Fixed Bridge crossing the Atlantic Intracoastal Waterway, mile 311.8, at Oak Island, North Carolina (33°55′18″ N/078°04′22″ W). All vessels transiting this section of the waterway requiring a horizontal clearance of greater than 50 feet will be required to make a one hour advanced notification to the work supervisor at the NC 133 Fixed Bridge while the safety zone is in effect. The initial safety zone was in effect from 8 a.m. September 12, 2012 to 8 p.m. December 12, 2012. An extension changed the end date of the zone to February 14, 2013. Here, the additional extension will again extend the end date from 8 p.m. February 14, 2013 to 8 p.m. June 15, 2013.

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

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders. This rule does not restrict traffic from transiting through the noted portion of the Atlantic Intracoastal Waterway; it only imposes a one hour notification to ensure the waterway is clear of impediment to allow passage to vessels requiring a horizontal clearance of greater than 50 feet.

The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard received no comments from the Small Business Administration on this rule. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule affects the following entities, some of which may be small entities: The owners or operators of commercial tug and barge companies, recreational and commercial fishing vessels intending to transit the specified portion of Atlantic Intracoastal Waterway from 8 p.m. February 14, 2013 through 8 p.m. June 15, 2103.

This safety zone would not have a significant economic impact on a substantial number of small entities for the following reasons. Although the safety zone will apply to the entire width of this section of the Atlantic Intracoastal Waterway, vessel traffic will be able to request passage by providing a one hour advanced notification. Before the effective period, the Coast Guard will issue maritime advisories widely available to the users of the waterway. If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Executive Summary

This rule is an inflation adjustment for civil penalties administered by the U.S. Army Corps of Engineers. It is necessary to comply with the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended (28 U.S.C. 2461 note) (FCPIAA). The FCPIAA requires Federal agencies to periodically increase their civil penalties to account for inflation to maintain the deterrent effects of those penalties. On August 3, 2011, the Deputy Secretary of Defense delegated to the Secretary of the Army the authority and responsibility to adjust penalties administered by the U.S. Army Corps of Engineers. On August 29, 2011, the Secretary of the Army delegated that authority and responsibility to the Assistant Secretary of the Army for Civil Works.

The maximum Class I civil penalty for violations under Section 309(g) of the Clean Water Act would increase from $27,500 to $32,500. Because of the rounding rules of the FCPIAA, the minimum penalty would remain unchanged at $11,000 per violation. The Class I civil penalty for violations of Section 205(e) of the National Fishing Enhancement Act would also remain at $11,000 per violation.

This rule would not result in any additional costs to implement the Corps Regulatory Program, because the Class I civil penalties have been in effect since 1990. This rule merely adjusts those Class I civil penalties to account for inflation, as required by the FCPIAA. This rule will result in additional costs to members of the regulated public who do not comply with their Clean Water Act section 404 permits and a receive a final Class I civil administrative penalty order from a District Engineer, because it would increase the maximum penalty amount from $27,500 to $32,500. The benefit of this rule would be to increase the maximum Class I civil penalty amount to account for inflation and maintain the deterrent provided by that Class I civil penalty.

Pursuant to Section 4 of the Federal Civil Penalties Inflation Adjustment Act of 1990, 28 U.S.C. 2461 note, as amended, each Federal agency is required to issue regulations adjusting for inflation the civil monetary penalties that can be imposed pursuant to such agency's statutory authorities. The Corps initial adjustment to each civil monetary penalty under Section 309(g) of the Clean Water Act and Section 205(e) of the National Fishing Enhancement Act was published in the June 25, 2004, issue of the Federal Register (69 FR 35515) and became effective on July 26, 2004. The initial adjustment was based on the 10 percent increase provided by Section 6 of the Federal Civil Penalties Inflation Adjustment Act.

The FCPIAA requires subsequent adjustments to be made at least once every four years following the previous adjustment. The FCPIAA requires that the adjustment reflect the percentage increase in the Consumer Price Index (CPI) between June of the calendar year preceding the adjustment and June of the calendar year in which the amount was last set or adjusted. As the initial adjustment was made and published on June 25, 2004, the inflation adjustment was calculated by comparing the CPI for June 2004 (189.700) with the CPI for June 2012 (229.478), resulting in an inflation adjustment of 21.0 percent.

The amount of each civil monetary penalty was multiplied by 21.0 percent (the inflation adjustment) and the resulting increase amounts were rounded in accordance with the rounding requirements of the FCPIAA. As a result of the rounding rules in the FCPIAA, the Class I civil penalty for violations under Section 309(g) of the Clean Water Act would remain at $11,000 per violation. The maximum penalty would increase to $32,500. The Class I civil penalty for violations under Section 205(e) of the National Fishing Enhancement Act would remain at $11,000 per violation, because of the rounding rules in the statute.

In compliance with the principles in the President's Memorandum of June 1, 1998, regarding plain language, this preamble is written using plain language. The use of “we” in this notice refers to the Corps and the use of “you” refers to the reader. We have also used the active voice, short sentences, and common everyday terms except for necessary technical terms.

This action does not impose any new information collection burden under the provisions of the Paperwork Production Act, 44 U.S.C. 3501 et seq. This rule adjusts our civil penalty amounts to comply with the requirements of the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended. Therefore, this action is not subject to the Paperwork Reduction Act.

Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.

An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. For the Corps regulatory program under Section 10 of the Rivers and Harbors Act of 1899, Section 404 of the Clean Water Act, and Section 103 of the Marine Protection, Research and Sanctuaries Act of 1972, the current OMB approval number for information requirements is maintained by the Corps of Engineers (OMB approval number 0710-0003).

Under Executive Order 12866 (58 FR 51735, October 4, 1993), the Corps must determine whether the regulatory action is “significant” and therefore subject to review by the Office of Management and Budget (OMB) and the requirements of the Executive Order. The Executive Order defines “significant regulatory action” as one that is likely to result in a rule that may:

(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities;

(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or

(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in these Executive Orders.

Pursuant to the terms of Executive Order 12866, we have determined that this rule is not a “significant regulatory action” because it does not meet any of these four criteria. This rule adjusts the maximum Class I civil penalty amount for violations of permit conditions and limitations for activities that involve discharges of dredged or fill material into waters of the United States.

Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires the Corps to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have Federalism implications.” The phrase “policies that have Federalism implications” is defined in the Executive Order to include regulations that 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.”

This rule does not have Federalism implications. We do not believe that adjusting our Class I civil penalties to account for inflation will have substantial direct effects on the States, on the relationship between the Federal government and the States, or on the distribution of power and responsibilities among the various levels of government. This rule does not impose new substantive requirements. In addition, this rule will not impose any additional substantive obligations on State or local governments since it is applicable only to permittees who violate the conditions and limitations of certain Corps permits. Therefore, Executive Order 13132 does not apply to this rule.

The RFA generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice-and-comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations and small governmental jurisdictions.

For purposes of assessing the impacts of this rule on small entities, a small entity is defined as: (1) A small business based on Small Business Administration size standards; (2) a small governmental jurisdiction that is a government of a city, county, town, school district, or special district with a population of less than 50,000; or (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.

After considering the economic impacts of this rule on small entities, we believe that this action will not have a significant economic impact on a substantial number of small entities. The rule is consistent with current agency practice, does not impose new substantive requirements, and therefore would not have a significant economic impact on a substantial number of small entities.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and Tribal governments and the private sector. Under Section 202 of the UMRA, the agencies generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and Tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating a rule for which a written statement is needed, section 205 of the UMRA generally requires the agencies to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows the Corps to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if the agency publishes with the final rule an explanation why that alternative was not adopted. Before the Corps establishes any regulatory requirements that may significantly or uniquely affect small governments, including Tribal governments, they must have developed under Section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.

We have determined that this rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and Tribal governments, in the aggregate, or the private sector in any one year. This rule adjusts civil penalties in accordance with the requirements of the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended. This rule is consistent with current agency practice, does not impose new substantive requirements and therefore does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and Tribal governments, in the aggregate, or the private sector in any one year. Therefore, this rule is not subject to the requirements of Sections 202 and 205 of the UMRA. For the same reasons, we have determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments. Therefore, this rule is not subject to the requirements of Section 203 of UMRA.

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note) directs us to use voluntary consensus standards in our regulatory activities, unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs us to provide Congress, through OMB, explanations when we decide not to use available and applicable voluntary consensus standards.

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

Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), applies to any rule that: (1) is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that we have reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, we must evaluate the environmental health or safety effects of the rule on children, and explain why the regulation is preferable to other potentially effective and reasonably feasible alternatives.

This rule is not subject to this Executive Order because it is not economically significant as defined in Executive Order 12866. In addition, it does not concern an environmental or safety risk that we have reason to believe may have a disproportionate effect on children.

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 6, 2000), requires agencies to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” The phrase “policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.”

This rule does not have tribal implications. It will not have substantial direct effects on tribal governments, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes. This rule adjusts the civil penalties in 33 CFR 326.6 to account for inflation, as required by the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended. It is generally consistent with current agency practice and does not impose new substantive requirements. Therefore, Executive Order 13175 does not apply to this rule.

The Corps prepares appropriate environmental documentation, including Environmental Impact Statements when required, for all permit decisions. Therefore, environmental documentation under the National Environmental Policy Act is not required for this rule. This rule only revises our Class I civil penalties to account for inflation, as required by the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended. Appropriate environmental documentation has been, or will be, prepared for each permit action that is subject to the Class I administrative penalty process.

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

Executive Order 12898 requires that, to the greatest extent practicable and permitted by law, each Federal agency must make achieving environmental justice part of its mission. Executive Order 12898 provides that each Federal agency conduct its programs, policies, and activities that substantially affect human health or the environment in a manner that ensures that such programs, policies, and activities do not have the effect of excluding persons (including populations) from participation in, denying persons (including populations) the benefits of, or subjecting persons (including populations) to discrimination under such programs, policies, and activities because of their race, color, or national origin.

This rule is not expected to negatively impact any community, and therefore is not expected to cause any disproportionately high and adverse impacts to minority or low-income communities. This rule relates solely to the adjustments to Class I civil penalties under Section 309(g)(2)(A) of the Clean Water Act and Section 205(e) of the National Fishing Enhancement Act to account for inflation.

This rule is not a “significant energy action” as defined in Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. This rule relates only to the adjustments to Class I civil penalties under Section 309(g)(2)(A) of the Clean Water Act and Section 205(e) of the National Fishing Enhancement Act to account for inflation. This rule is consistent with current agency practice, does not impose new substantive requirements, and therefore will not have a significant adverse effect on the supply, distribution, or use of energy.

For the reasons set forth in the preamble, the Corps amends 33 CFR part 326 as follows:

The U.S. Army Corps of Engineers (Corps) issues nationwide permits (NWPs) to authorize certain activities that require Department of the Army permits under Section 404 of the Clean Water Act and/or Section 10 of the Rivers and Harbors Act of 1899. The NWPs authorize activities that have minimal individual and cumulative adverse environmental effects. The NWPs are proposed, issued, modified, reissued, and revoked from time to time (generally five years), after an opportunity for public notice and comment.

Some NWPs require project proponents to notify Corps district engineers prior to commencing NWP activities. These notifications are called pre-construction notifications (PCNs), and they provide district engineers with opportunities to confirm whether or not the proposed activities qualify for NWP authorization. For most NWPs, the district engineer has to respond within 45 days of receipt of a complete PCN. If, after reviewing the PCN, the district engineer determines that the proposed activity qualifies for NWP authorization, the district engineer issues an NWP verification letter to the project proponent. The NWP verification may contain special conditions to ensure that the NWP activity results in minimal individual and cumulative effects on the aquatic environment and the Corps public interest review factors.

This rule has two effects:

1. Most NWPs, through the application of the PCN general condition, have a 45-day review period for PCNs. The NWP regulations, however, dating back to 1991, still specify the default PCN review period as 30 days. This final rule makes the NWP regulation consistent with the current NWP PCN general condition, which will reduce confusion and ensure consistent implementation.

2. NWPs are reissued every 5 years, but NWP verification letters expire within two years. This rule will change the verification letter expiration date to be the same as the expiration date of the applicable NWP(s). This will ease the regulatory burden on permittees whose construction is not completed within two years by making it unnecessary to reverify the NWP authorization.

The last reissuance of the NWPs, including the PCN general condition (general condition 31), was published in the February 21, 2012, issue of the Federal Register (77 FR 10184). The 2012 NWPs expire on March 18, 2017. The Corps regulations governing the NWP program are provided at 33 CFR part 330. The current NWP regulations were published in the Federal Register on November 22, 1991 (56 FR 59110).

Section 330.1(e) of the 1991 rule provided district engineers with 30 days to review notifications to determine whether proposed NWP activities result in minimal individual and cumulative adverse environmental effects and are in the public interest. Section 330.6(a)(3)(ii) of the 1991 regulation stated that NWP verification letters can be valid for no more than two years. Since 1991, there have been substantial changes to the NWP program and other Federal programs that warrant amendments to these provisions.

In the November 30, 2004, issue of the Federal Register (69 FR 69563) we published a proposed rule to amend these provisions of the NWP regulations:

1. In § 330.1(e)(1) and § 330.4(c)(6) and (d)(6), we proposed to change the PCN review period from 30 days to 45 days, to conform with the length of the PCN review period that has been in use for certain NWPs since 1996. On June 7, 2000, the 45-day PCN review period was applied to all NWPs requiring pre-construction notification (see 65 FR 12818). The 45-day PCN review period is found in the “pre-construction notification” general condition of the NWPs (currently general condition 31).

2. In § 330.6(a)(3)(ii) we proposed to change the length of time an NWP verification would be valid from two years to the expiration date of the NWP.

In response to the proposed rule, 15 comments were received. One commenter expressed general support for the proposed revisions and two commenters said that the proposed rule should be withdrawn.

Two commenters said that the proposed rule violates the Administrative Procedure Act (APA) because the impacts of proposed rule are not fully explained. These commenters also said that changing the PCN review period from 30 days to 45 days is not consistent with agency practice, because the Corps did use APA rulemaking procedures to change the PCN review period to 45 days.

We complied with APA requirements when we undertook this rulemaking to amend the NWP regulations. In the preamble to the November 30, 2004, notice of proposed rulemaking, we provided a concise explanation of the basis and purpose of the proposed amendments to specific sections of 33 CFR part 330, and discussed their anticipated effects. As discussed in the proposed rule, the purpose of amending these sections of 33 CFR part 330 is to make the NWP regulation consistent with those provisions in the general condition addressing the timing of PCN processing that has been in effect for all NWPs since June 7, 2000, and to provide regulatory efficiency when issuing NWP verification letters.

We also complied with APA requirements when we issued and reissued NWPs in 1996, 2000, 2002, 2007, and 2012, with 45-day PCN review periods in the “pre-construction notification” general condition. In the June, 17, 1996, proposal to reissue NWPs (61 FR 30786), we solicited comments on increasing the notification review period for NWP 26 from 30 days to 45 days. In the July 21, 1999, proposal to issue five new NWPs and modify six existing NWPs to replace NWP 26 (64 FR 39341), we requested comments on increasing the PCN review period to 45 days for all NWPs. In the August 9, 2001 (66 FR 42070), September 26, 2006 (71 FR 56296), and February 16, 2011 (76 FR 9174) proposals to issue and reissue NWPs, we solicited comments from interested parties on a proposed PCN review period of 45 days. Comments received in response to those proposals were fully considered, and the 45-day PCN review period was adopted in the final NWPs. In the preambles to the Federal Register notices announcing the final NWPs, we also provided responses to comments that were received. Therefore, in each of these cases, the APA procedures were used to promulgate the terms and conditions of the NWPs. Today's final rule concludes the rulemaking process for making the appropriate sections of 33 CFR part 330 consistent with the NWPs currently in effect, and for changing the length of time an NWP verification could be in effect.

Two commenters asserted that the proposed rule violates the Regulatory Flexibility Act (RFA), because its impacts are not fully explained, and the Corps did not discuss economic impacts or their potential significance. One commenter said that the 30-day completeness review and 45-day PCN review period adopted in the 2000 NWPs and subsequent NWPs must be in the final rule or else the impacts on small entities would be substantial. This commenter also stated that the final rule needs to include the provisions of the “construction period” general condition for the 2002 NWPs for impacts on small entities to be insubstantial.

We have revised our RFA analysis to better explain the impacts of the final rule on small entities. The RFA analysis is provided below in the “Administrative Requirements” section of this preamble. We do not agree that it is necessary to incorporate the 30-day completeness review into § 330.1(e)(1) for this rule to have an insubstantial impact on small entities. The 30-day completeness review is currently addressed through the terms of general condition 31 (pre-construction notification) of the 2012 NWPs, as published in the February 21, 2012, issue of the Federal Register .

For reasons cited in the March 12, 2007, notice of the reissuance of the NWPs, the “construction period” general condition that was adopted in 2002 was not retained in the current NWPs (see 72 FR 11171). Removal of this general condition will not cause the NWPs to result in substantial impacts on small entities. Its removal was necessary to be consistent with Section 404(e)(2) of the Clean Water Act.

Several commenters objected to increasing the PCN review period in 33 CFR part 330 from 30 to 45 days. Several commenters stated that the longer PCN review period is contrary to the original intent of NWP program, which is to streamline the authorization process. Two commenters said that increasing the PCN review period would delay time sensitive activities, such as activities occurring in areas with short construction seasons. One commenter stated that changes to the “pre-construction notification” general condition for the nationwide permits does not require conforming changes to part 330, since permit conditions can be more stringent than regulations. Another commenter said that it is unnecessary to change the NWP regulations, since the timing requirements in the “pre-construction notification” general condition can change whenever the NWPs are reissued. Two commenters stated that the proposed changes will have significant impacts on small entities when they are compared to the NWP regulations promulgated in 1991.

Changing the PCN review period in 33 CFR part 330 from 30 days to 45 days will make the NWP regulation consistent with the “pre-construction notification” general condition for the current NWPs. It should also be noted that the 2007 and 2012 NWPs were promulgated as rules under the Administrative Procedures Act. By establishing the same time frames in the NWPs and their governing regulations, this amendment will also help ensure consistent interpretation and implementation of the NWP terms and conditions and the NWP regulations.

The longer processing times for NWP verification requests are not directly due to changes to the “pre-construction notification” general condition or the Corps' regulations governing the NWP program. Longer processing times are a result of the increased complexity of the regulatory environment that has occurred since 1991 as a result of judicial decisions and changes in laws and regulations. Since the 1991 rule was issued, there have been substantial changes in Federal laws and regulations that have affected the implementation of the Corps Regulatory Program, as well as changes in agency practices and policies such as compensatory mitigation requirements and jurisdiction. These changes have caused increased processing times for NWP PCNs, as well as applications for other types of DA permits.

For example, the promulgation of regulations in 1997 and 2002 to implement the essential fish habitat provisions of the Magnuson-Stevens Fishery Conservation and Management Act has resulted in an additional consultation requirement for many activities authorized by Corps permits. As another example, the Advisory Counsel on Historic Preservation issued revised regulations in 2000 and 2004 that govern Section 106 of the National Historic Preservation Act, which has resulted in changes in processing procedures for DA permits under interim guidance issued by the Corps on April 25, 2005, and January 31, 2007.

Compensatory mitigation is often required to ensure that NWP activities result in minimal individual and cumulative adverse effects on the aquatic environment. Compensatory mitigation proposals can be complex documents that require technical review to determine whether the proposed compensatory mitigation projects are feasible and will effectively offset authorized losses of aquatic resources. Since 1991, there have also been changes to the Regulatory Program's compensatory mitigation policies, such as the issuance of Regulatory Guidance Letter 02-02 on December 24, 2002. Although the Corps regulations for compensatory mitigation for losses of aquatic resources at 33 CFR part 332 were issued (see 73 FR 19594) after this proposed rule was published, the requirements for implementing that rule still support these changes to the NWP regulations.

Prior to issuing a verification letter for an NWP activity, the district engineer must review the mitigation statement or conceptual or detailed compensatory mitigation plan within 45 days of receipt of a complete PCN (see paragraph (b)(5) of NWP general condition 31 (77 FR 10287)). During this time period, the district engineer must also determine whether the proposed NWP activity, in conjunction with any proposed compensatory mitigation, will result in no more than minimal individual and cumulative adverse effects on the aquatic environment and other public interest factors. The 45-day review period provides district engineers with time to effectively review compensatory mitigation statements or proposals submitted with PCNs, or to exercise discretionary authority if the net adverse effects on the aquatic environment are determined to be more than minimal.

Despite these and other changes in the regulatory environment, NWP verification processing times are still substantially less than processing times for individual permits (see below). Amending the NWP regulations so that the PCN review period is the same as the PCN review period in the “pre-construction notification” general condition will not significantly impact small entities, since the 45-day PCN review period has been in effect for all the NWPs since 2000.

Two commenters said that the proposed changes will significantly affect the regulated public because of the increase in NWP processing times from 16 days in 1998 to 27 days in 2003. One commenter said that the Corps should discuss alternatives to reduce NWP processing times or reduce the need for changing the regulation.

During the period of 1998 to 2003, the processing times for all types of DA permits have increased, with NWPs showing the smallest increase. In fiscal year 2010, the average processing time for a standard permit application was 221 days and for NWP pre-construction notifications the average processing time was 32 days. We do not believe that this final rule will change the average processing times for NWP verification requests, since it reflects long-standing NWP PCN processing practices as provided in the “pre-construction notification” general condition. When one considers the changes in processing times that have occurred for the various types of DA permits, the NWP program still fulfills its intent of reducing delays and paperwork to authorize activities that have minimal adverse effects on the aquatic environment. Developing alternatives to the NWP program to reduce processing times, while complying with the requirements of applicable laws and regulations, such as the Endangered Species Act and the National Historic Preservation Act, is not feasible.

Two commenters stated that the proposed amendments are unnecessary, since the average review period for NWP verifications in 2003 was 27 days. One commenter disagreed that the average processing time for NWP verification requests was 27 days in 2003, and said that the processing times are usually longer than 27 days. Two commenters remarked that increasing the PCN review period from 30 days to 45 days should not alter processing times for NWP PCNs. Several commenters stated that the proposed amendment would increase processing times.

It is important to understand that the 27-day average review period cited in the proposed rule is the mean processing time for NWP PCNs and other NWP verification requests. Processing times may be longer for specific proposed activities, especially for NWP activities where consultation with other agencies is required to comply with other Federal laws, such as Section 7 of the Endangered Species Act and Section 106 of the National Historic Preservation Act. In those situations, the NWP authorization may be suspended until the required consultation is completed, resulting in longer processing times.

Two commenters said that if the 45-day PCN review period is adopted in the final rule, the Corps should implement expedited NWP processing procedures to offset the delays that they believe will result from that change.

As discussed above, we do not believe that this amendment to the NWP regulations will alter NWP PCN processing times. The NWPs still provide a streamlined form of authorization for certain activities that result in minimal individual and cumulative adverse effects on the aquatic environment.

Two commenters said that increasing the PCN review period to 45 days will change implementation of paragraph (a) of the “pre-construction notification” general condition for the NWPs. Paragraph (a) requires the district engineer to determine if a PCN is complete within 30 days of the date of receipt of the PCN, and if additional information is necessary to make the PCN complete, to request the additional information within that 30-day period. These commenters stated that changing the PCN review period in section 330.1(e)(1) would remove the 15 days between the end of the 30-day completeness review and the end of the 45-day PCN review. One commenter said that the proposed amendment would result in a 45-day completeness review for NWP PCNs.

This amendment does not affect the timing provisions of the “pre-construction notification” general condition, including the 30-day period for making completeness determinations for PCNs. In accordance with the current “pre-construction notification” general condition (general condition 31 of the 2012 NWPs), district engineers are still required to make their completeness determinations within 30 days. The 45-day clock for making a decision on a PCN still begins on the date a complete PCN is received by the district.

One commenter remarked that the proposed rule should have discussed potential effects of the amendment on program efficiency, specifically the time necessary to determine that a PCN is complete. This commenter noted that the 2001 Energy and Water Development Appropriations Act requires the Corps to track and report this information.

This amendment will have no effect on program efficiency since 45-day PCN review period has been part of the NWP program since 1996. This rule does not affect the reporting required under the 2001 Energy and Water Development Appropriations Act.

Several commenters recommended that the Corps amend the NWP regulations to include the 30-day completeness review for PCNs and allow the district engineer to make only one request for additional information to make a PCN complete.

The 30-day completeness review and the general rule regarding requests for additional information are adequately addressed through general condition 31, “pre-construction notification,” of the 2012 NWPs. The 2012 NWPs were promulgated as a rule, and we do not believe it is necessary to incorporate these provisions into 33 CFR part 330.

One commenter objected to the proposed amendment, and stated that the Corps should pursue available means to streamline consultations required by other Federal statutes, such as the Essential Fish Habitat (EFH) provisions of the Magnuson-Stevens Fishery Management and Conservation Act cited as an example in the preamble to the proposed rule. This commenter said that the EFH regulations provide mechanisms to reduce administrative burdens on Federal agencies through programmatic consultations and general concurrences, to streamline the consultation process for classes of similar projects. These mechanisms could be used to conduct EFH consultations within the PCN review period stated in § 330.1(e)(1).

We understand that the EFH regulations provide mechanisms to streamline the consultation process and comply with the requirements of the EFH provisions of the Magnuson-Stevens Fishery Management and Conservation Act. However, the use of those streamlining mechanisms is more appropriately addressed at the regional level, between Corps district offices and NMFS regional offices. In addition, those streamlining mechanisms may not be available for all NWP activities conducted across the country, so we believe that a regulation change is an appropriate course of action for accommodating the consultation requirements of the EFH provisions, as well as other revised consultation requirements, such as those promulgated for the purposes of Section 106 of the National Historic Preservation Act. Amending the NWP regulations also provides greater clarity and predictability for the public, by reducing the number of instances where it is necessary to revoke or suspend NWP authorizations in cases where consultation with other agencies is necessary to comply with applicable laws.

In the preamble to the November 30, 2004, proposed rule, we discussed the EFH regulations as an example of additional consultation and coordination requirements that have been imposed since the NWP regulations were last amended in 1991. The EFH regulations are simply one example. Another example is Section 106 of the National Historic Preservation Act, for which new implementing regulations were promulgated in 2000 and further revised in 2004. Under the Corps Regulatory Program's April 25, 2005, and January 31, 2007, interim guidance, there is a 30-day review period for most determinations concerning effects to historic properties. In light of these examples and other requirements, we believe that amending the NWP regulations to be consistent with the 45-day pre-construction notification review period in the current NWP general condition 27 will help ensure compliance with all applicable statutes and regulations, while providing timely responses to NWP verification requests.

One commenter asked how the proposed rule would affect the process for incorporating the conditions of an individual Section 401 water quality certification that is issued after the district engineer completes the review of a PCN within the 45 day period. This commenter also requested that the final rule provide clarification on the process for incorporating the conditions of an individual water quality certification into an NWP authorization.

The amendment to section 330.4(c)(6) does not affect the provisional verification process for NWP activities that require individual water quality certification, or the process for incorporating water quality certification conditions into an NWP authorization. It only changes the PCN review period to 45 days to be consistent with the 45 day review period in the NWP “pre-construction notification” general condition. Regulatory Guidance Letter 92-04 provides guidance on incorporating water quality certification conditions into NWP authorizations. That guidance discusses, from the Corps perspective, what constitutes unacceptable conditions in water quality certifications and Coastal Zone Management Act consistency concurrences. Regulatory Guidance Letter 92-04 is available on the Internet at: http://www.usace.army.mil/Portals/2/docs/civilworks/RGLS/rgl92-04.pdf.

In the November 30, 2004, proposed rule we proposed to amend § 330.6(a)(3)(ii) to allow district engineers to issue NWP verifications that are valid until the date the NWP expires, instead of requiring verifications to expire in two years or less. An NWP verification provides confirmation that a particular activity is authorized by NWP. This amendment will help promote administrative efficiency by eliminating the two year limit for NWP verifications, so that it will not be necessary for district engineers to reverify an NWP authorization when the permittee has not completed the authorized work within two years of the issuance of the NWP verification letter.

Many commenters expressed general support for proposed amendment of § 330.6(a)(3)(ii). One commenter noted that under the proposed rule, district engineers have the discretion to issue NWP verifications for any specified time period, but generally the verification would have the same expiration date as the NWP.

We are adopting the proposed amendment in this final rule. District engineers may impose expiration dates on NWP verifications that occur earlier than the expiration date of the applicable NWPs, but they should document the reasons for shorter expiration dates. Shorter verification periods may be appropriate in cases where the authorized activity needs to be done by a specific date because of concerns for the aquatic environment or other public interest factors.

One commenter recommended that the final rule clarify that an NWP verification cannot extend past the expiration date of the NWP. This commenter said that allowing an NWP verification to be valid beyond the expiration date of an NWP conflicts with 33 CFR 330.6(b), which states that an NWP automatically expires if it is not modified or reissued within five years of its effective date. Two commenters stated that the proposed rule limits NWP verification periods to the date the NWP expires, and that district engineers could not issue verifications that are valid for a period of time after the NWP expires. Those commenters suggested that the Corps clarify the amount of discretion afforded to district engineers when establishing expiration dates for case-specific NWP verifications. Three commenters asked whether district engineers could issue NWP verifications that are valid after the expiration date of the NWP.

As discussed above, the final rule contains flexibility for district engineers to establish expiration dates for NWP verifications, but in most cases the expiration date for an NWP verification letter will be the same as the expiration date for the applicable NWP(s). The first sentence of § 330.6(a)(3)(ii) states that an NWP verification should be valid “generally until the expiration date of the NWP.” The amendment of § 330.6(a)(3)(ii) does not affect § 330.6(b). Section 330.6(b) of the NWP regulations provides up to 12 months to complete an NWP activity after the NWP expires, as long as that activity has commenced or is under contract to commence by the date the NWP expires. If an NWP verification letter is to be issued near the expiration date of the applicable NWP(s), the district engineer may inform the permittee of the availability of § 330.6(b) to provide an additional 12 months to complete the authorized activity.

One commenter said that the proposed amendment conflicts with 33 CFR 330.6(b), which provides one year to complete the work authorized by an NWP, as long as the activity is under construction, or is under contract to commence construction, at the time the NWP expires, unless discretionary authority has been exercised. This commenter stated that although Section 404(e) of the Clean Water Act limits NWPs to five year authorization periods, it does not limit the amount of time to complete the work once it is authorized by NWP.

This amendment does not conflict with 33 CFR 330.6(b). The additional year to complete the authorized work in reliance on the previous NWP allows permittees time to complete activities that have begun construction, or are under contract to begin construction. All Corps permits have specific construction periods, and if the project proponent cannot complete construction within those time periods, he or she must either obtain a time extension or a new individual permit or general permit authorization. Since the NWPs cannot be issued for a period of more than five years, the Corps cannot grant time extensions for those NWP activities beyond the 12 months provided in § 330.6(b). If the previous NWP authorization expires and § 330.6(b) does not apply, the Corps will evaluate the proposed activity and determine if it qualifies for authorization under any of the new, modified, or reissued NWPs. If the proposed activity does not qualify for any of the new, modified, or reissued NWPs, then the project proponent needs to obtain an individual permit or a regional general permit authorization.

Several commenters said that the final rule should include a “reasonable construction period” to allow a permittee sufficient time to complete an NWP activity without obtaining a new NWP verification. These commenters referred to the “construction period” general condition of the 2002 NWPs, which were published in the January 15, 2002, issue of the Federal Register (67 FR 2020). One commenter expressed support for the proposed amendment to this section, as long as the “construction period” general condition is not changed. Two commenters asserted that clarification is needed in the final rule, so that there is no conflict with “construction period” general condition. Two commenters stated that the proposed rule would make the “construction period” general condition invalid. One commenter expressed concern that the proposed amendment would reduce the amount of time an NWP verification would be valid, especially in cases where the expiration date of the NWP is less than two years from the date of the verification letter. This commenter said that a permittee needs a reasonable amount of time to complete the authorized work, and suggested using the “construction period” general condition to address this concern.

As discussed in the March 12, 2007, Federal Register notice (72 FR 11171-11172), we have removed the “construction period” general condition from the NWPs. That general condition was removed because it is contrary to Section 404(e)(2) of the Clean Water Act, which imposes a five year limit on general permits. In light of the statutory time limit placed on general permits, NWP activities with long construction periods can be addressed in two ways.

Once an NWP expires, the permittee can utilize 33 CFR 330.6(b) to complete the work. That regulation allows permittees to continue work for 12 months in reliance on an NWP authorization, if that NWP has expired or been modified or revoked, and the activity is under construction or under contract to commence construction. If that NWP activity cannot be completed within that 12 month time period, then the permittee would have to obtain another DA authorization, which may be provided by a reissued or new NWP. We believe that 33 CFR 330.6(b) is sufficient to address concerns with projects that may not be completed before an NWP expires. For NWP activities that require substantial amounts of time to complete, project proponents should consider whether it would be more advantageous to pursue an individual permit authorization. Individual permits can have greater flexibility in construction periods. An individual permit authorization can also be extended, as long as the district engineer determines that the time extension would be consistent with applicable regulations and would not be contrary to the public interest.

This change to the NWP regulations does not reduce the amount of time an NWP verification would be valid. In cases where a reissued NWP can be used to authorize the previously verified NWP activity, the Corps could issue a new verification letter that would be valid until that NWP expires. For those activities that do not qualify for the reissued NWP, the grandfather provision at 33 CFR 330.6(b) could continue to provide the NWP authorization for up to an additional 12 months for eligible activities, unless the district engineer exercises discretionary authority to modify, suspend, or revoke the NWP authorization. Having the NWP verification letter expire at the same time as the NWP itself expires will promote compliance and help protect the aquatic environment by requiring district engineers to consider whether the proposed activity still qualifies for NWP authorization under the terms and conditions of a reissued or new NWP. The reissued or new NWP may have changed substantially during the NWP reissuance process that the Corps conducts every five years, to protect the aquatic environment or other public interest review factors.

One commenter suggested linking the expiration date of the NWP verification to the expiration date(s) of any other required Federal authorizations to reduce duplication with other Federal programs. This commenter also said that re-verification of NWP activities should not be required if they are long-term activities that are subject to comprehensive regulation through another Federal environmental statute.

We do not believe it would be appropriate to link the expiration date of NWP verifications with other Federal authorizations. Other Federal environmental statutes often do not have exactly the same requirements as the statutes administered by the Corps. Therefore, there is often a need for the Corps to do an independent review or determination to ensure compliance with the laws that apply to the Corps regulatory program. Actions or outcomes required by other Federal environmental statutes often differ from Corps requirements. In addition, Section 404(e) of the Clean Water Act limits the issuance of general permits, including NWPs, to a maximum of five years.

One commenter requested clarification on how the proposed amendment of § 330.6(a)(3)(ii) would affect situations where the NWP is revoked, modified, or expired during the time period specified in the verification letter.

If an NWP is revoked, suspended, or modified by the Chief of Engineers before the NWP verification letter expires, 33 CFR 330.6(b) applies. In other words, the project proponent would have 12 months to complete the authorized work, as long as he or she has commenced construction, or is under contract to commence construction, before the NWP was revoked, suspended, or modified and the district engineer has not exercised discretionary authority to modify, suspend, or revoke the NWP authorization.

In compliance with the principles in the President's Memorandum of June 1, 1998, (63 FR 31855) regarding plain language, this preamble is written using plain language. The use of “we” in this notice refers to the Corps. We have also used the active voice, short sentences, and common everyday terms except for necessary technical terms.

This action will not impose any new information collection burden under the provisions of the Paperwork Production Act (44 U.S.C. 3501 et seq.). For NWPs that require PCNs, the modification changes the 30-day review period to a 45-day review period. In addition, the final rule changes the length of time an NWP verification letter could be valid. Since the final rule does not involve any additional collection of information from the public, this action is not subject to the Paperwork Reduction Act.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), the Corps must determine whether the regulatory action is “significant” and therefore subject to review by OMB and the requirements of the Executive Order. The Executive Order defines “significant regulatory action” as one that is likely to result in a rule that may:

(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities;

(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or

(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in these Executive Orders.

Pursuant to the terms of Executive Order 12866, we have determined that the final rule is not a “significant regulatory action” because it does not meet any of these four criteria. This rule consists of minor modifications of existing regulations. For NWPs that require PCNs, the final rule increases the 30-day review period to 45 days, which is consistent with the current general conditions for the NWPs. In addition, the final rule changes the length of time an NWP verification letter is generally valid.

Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires the Corps to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have Federalism implications.” The phrase “policies that have Federalism implications” is defined in the Executive Order to include regulations that 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.”

The final rule does not have Federalism implications. We do not believe that amending the regulation to increase the NWP PCN review period or increase the length of time an NWP verification letter may be valid will have substantial direct effects on the States, on the relationship between the Federal government and the States, or on the distribution of power and responsibilities among the various levels of government. This rule does not impose new substantive requirements. In addition, the changes will not impose any additional substantive obligations on State or local governments. Therefore, Executive Order 13132 does not apply to this rule.

The Regulatory Flexibility Act generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice-and-comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations and small governmental jurisdictions.

For purposes of assessing the impacts of this rule on small entities, a small entity is defined as: (1) A small business based on Small Business Administration size standards; (2) a small governmental jurisdiction that is a government of a city, county, town, school district, or special district with a population of less than 50,000; or (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.

Amending the NWP regulations to allow district engineers to issue NWP verification letters with expiration dates that are the same as the expiration date of the NWPs will benefit small entities who use NWPs. Implementation of this change will provide clarity, since the expiration date of the verification letter will usually match the expiration date of the NWP being used to authorize the activity. It will also eliminate uncertainty regarding whether re-verification is necessary in cases where the two-year verification letter expired before the date the NWP itself expired. The revised regulation will provide small entities with assurance that the NWP authorization is valid until the NWP expires.

Making the PCN review period in the NWP regulations consistent with the NWP “pre-construction notification” general condition will have no effect on small entities, since users of the NWPs must comply with all applicable terms and conditions of the NWPs, including the “pre-construction notification” general condition, which establishes time frames for PCN reviews.

After considering the economic impacts of this rulemaking on small entities, I certify that this action will not have a significant impact on a substantial number of small entities. The ability for district engineers to issue NWP verification letters that have the same expiration date as the NWPs themselves will benefit small entities by providing clarity and reducing paperwork burdens. Amending the NWP regulation to have the same PCN review period as the NWP “pre-construction notification” general condition will also provide clarity and regulatory certainty. This final rule is consistent with current agency practice, does not impose new substantive requirements, and therefore would not have a significant economic impact on a substantial number of small entities.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and Tribal governments and the private sector. Under Section 202 of the UMRA, the agencies generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and Tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating a rule for which a written statement is needed, Section 205 of the UMRA generally requires the agencies to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows an agency to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if the agency publishes with the final rule an explanation why that alternative was not adopted. Before an agency establishes any regulatory requirements that may significantly or uniquely affect small governments, including Tribal governments, it must have developed, under Section 203 of the UMRA, a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.

We have determined that the final rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and Tribal governments, in the aggregate, or the private sector in any one year. This rule is consistent with current agency practice, does not impose new substantive requirements and therefore does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and Tribal governments, in the aggregate, or the private sector in any one year. Therefore, the final rule is not subject to the requirements of Sections 202 and 205 of the UMRA. For the same reasons, we have determined that this rule contains no regulatory requirements that might significantly affect small governments. Therefore, it is not subject to the requirements of Section 203 of UMRA.

Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that we have reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, we must evaluate the environmental health or safety effects of this rule on children, and explain why the regulation is preferable to other potentially effective and reasonably feasible alternatives.

The final rule is not subject to this Executive Order because it is not economically significant as defined in Executive Order 12866. In addition, it does not concern an environmental or safety risk that we have reason to believe may have a disproportionate effect on children.

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 6, 2000), requires agencies to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” The phrase “policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.”

This rule does not have tribal implications. It will not have substantial direct effects on tribal governments, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes. It is generally consistent with current agency practice and does not impose new substantive requirements. Therefore, Executive Order 13175 does not apply to this rule.

The Corps prepares appropriate environmental documentation, including Environmental Impact Statements when required, for all permit decisions. Therefore, environmental documentation under the National Environmental Policy Act is not required for this rule. Appropriate environmental documentation, which includes an environmental assessment, is prepared for each NWP when it is issued, reissued, or modified.

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. We will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States. A major rule cannot take effect until 60 days after it is published in the Federal Register . This rule is not a “major rule” as defined by 5 U.S.C. 804(2).

Executive Order 12898 requires that, to the greatest extent practicable and permitted by law, each Federal agency must make achieving environmental justice part of its mission. Executive Order 12898 provides that each Federal agency conduct its programs, policies, and activities that substantially affect human health or the environment in a manner that ensures that such programs, policies, and activities do not have the effect of excluding persons (including populations) from participation in, denying persons (including populations) the benefits of, or subjecting persons (including populations) to discrimination under such programs, policies, and activities because of their race, color, or national origin.

The final rule is not expected to negatively impact any community, and therefore is not expected to cause any disproportionately high and adverse impacts to minority or low-income communities.

This rule is not a “significant energy action” as defined in Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The final rule updates regulations for implementing the Nationwide Permit Program. The rule is consistent with current agency practice, does not impose new substantive requirements and therefore will not have a significant adverse effect on the supply, distribution, or use of energy.

For the reasons stated in the preamble, the Corps is amending 33 CFR part 330 as follows:

The NFIP enables property owners to purchase Federal flood insurance that is not otherwise generally available from private insurers. In return, communities agree to adopt and administer local floodplain management measures aimed at protecting lives and new construction from future flooding. Section 1315 of the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits the sale of NFIP flood insurance unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed in this document no longer meet that statutory requirement for compliance with program regulations, 44 CFR part 59. Accordingly, the communities will be suspended on the effective date in the third column. As of that date, flood insurance will no longer be available in the community. We recognize that some of these communities may adopt and submit the required documentation of legally enforceable floodplain management measures after this rule is published but prior to the actual suspension date. These communities will not be suspended and will continue to be eligible for the sale of NFIP flood insurance. A notice withdrawing the suspension of such communities will be published in the Federal Register .

In addition, FEMA publishes a Flood Insurance Rate Map (FIRM) that identifies the Special Flood Hazard Areas (SFHAs) in these communities. The date of the FIRM, if one has been published, is indicated in the fourth column of the table. No direct Federal financial assistance (except assistance pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act not in connection with a flood) may be provided for construction or acquisition of buildings in identified SFHAs for communities not participating in the NFIP and identified for more than a year on FEMA's initial FIRM for the community as having flood-prone areas (section 202(a) of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4106(a), as amended). This prohibition against certain types of Federal assistance becomes effective for the communities listed on the date shown in the last column. The Administrator finds that notice and public comment procedures under 5 U.S.C. 553(b), are impracticable and unnecessary because communities listed in this final rule have been adequately notified.

Each community receives 6-month, 90-day, and 30-day notification letters addressed to the Chief Executive Officer stating that the community will be suspended unless the required floodplain management measures are met prior to the effective suspension date. Since these notifications were made, this final rule may take effect within less than 30 days.

National Environmental Policy Act. This rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Considerations. No environmental impact assessment has been prepared.

Regulatory Flexibility Act. The Administrator has determined that this rule is exempt from the requirements of the Regulatory Flexibility Act because the National Flood Insurance Act of 1968, as amended, Section 1315, 42 U.S.C. 4022, prohibits flood insurance coverage unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed no longer comply with the statutory requirements, and after the effective date, flood insurance will no longer be available in the communities unless remedial action takes place.

Regulatory Classification. This final rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

Executive Order 13132, Federalism. This rule involves no policies that have federalism implications under Executive Order 13132.

Executive Order 12988, Civil Justice Reform. This rule meets the applicable standards of Executive Order 12988.

Paperwork Reduction Act. This rule does not involve any collection of information for purposes of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

Accordingly, 44 CFR part 64 is amended as follows:

The NFIP enables property owners to purchase Federal flood insurance that is not otherwise generally available from private insurers. In return, communities agree to adopt and administer local floodplain management measures aimed at protecting lives and new construction from future flooding. Section 1315 of the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits the sale of NFIP flood insurance unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed in this document no longer meet that statutory requirement for compliance with program regulations, 44 CFR part 59. Accordingly, the communities will be suspended on the effective date in the third column. As of that date, flood insurance will no longer be available in the community. We recognize that some of these communities may adopt and submit the required documentation of legally enforceable floodplain management measures after this rule is published but prior to the actual suspension date. These communities will not be suspended and will continue to be eligible for the sale of NFIP flood insurance. A notice withdrawing the suspension of such communities will be published in the Federal Register .

In addition, FEMA publishes a Flood Insurance Rate Map (FIRM) that identifies the Special Flood Hazard Areas (SFHAs) in these communities. The date of the FIRM, if one has been published, is indicated in the fourth column of the table. No direct Federal financial assistance (except assistance pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act not in connection with a flood) may be provided for construction or acquisition of buildings in identified SFHAs for communities not participating in the NFIP and identified for more than a year on FEMA's initial FIRM for the community as having flood-prone areas (section 202(a) of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4106(a), as amended). This prohibition against certain types of Federal assistance becomes effective for the communities listed on the date shown in the last column. The Administrator finds that notice and public comment procedures under 5 U.S.C. 553(b), are impracticable and unnecessary because communities listed in this final rule have been adequately notified.

Each community receives 6-month, 90-day, and 30-day notification letters addressed to the Chief Executive Officer stating that the community will be suspended unless the required floodplain management measures are met prior to the effective suspension date. Since these notifications were made, this final rule may take effect within less than 30 days.

National Environmental Policy Act. This rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Considerations. No environmental impact assessment has been prepared.

Regulatory Flexibility Act. The Administrator has determined that this rule is exempt from the requirements of the Regulatory Flexibility Act because the National Flood Insurance Act of 1968, as amended, Section 1315, 42 U.S.C. 4022, prohibits flood insurance coverage unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed no longer comply with the statutory requirements, and after the effective date, flood insurance will no longer be available in the communities unless remedial action takes place.

Regulatory Classification. This final rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

Executive Order 13132, Federalism. This rule involves no policies that have federalism implications under Executive Order 13132.

Executive Order 12988, Civil Justice Reform. This rule meets the applicable standards of Executive Order 12988.

Paperwork Reduction Act. This rule does not involve any collection of information for purposes of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

Accordingly, 44 CFR part 64 is amended as follows:

The Federal Emergency Management Agency (FEMA) makes the final determinations listed below for the modified BFEs for each community listed. These modified elevations have been published in newspapers of local circulation and ninety (90) days have elapsed since that publication. The Deputy Associate Administrator for Mitigation has resolved any appeals resulting from this notification.

This final rule is issued in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR part 67. FEMA has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR part 60.

Interested lessees and owners of real property are encouraged to review the proof Flood Insurance Study and FIRM available at the address cited below for each community. The BFEs and modified BFEs are made final in the communities listed below. Elevations at selected locations in each community are shown.

National Environmental Policy Act. This final rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. An environmental impact assessment has not been prepared.

Regulatory Flexibility Act. As flood elevation determinations are not within the scope of the Regulatory Flexibility Act, 5 U.S.C. 601-612, a regulatory flexibility analysis is not required.

Regulatory Classification. This final rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

Executive Order 13132, Federalism. This final rule involves no policies that have federalism implications under Executive Order 13132.

Executive Order 12988, Civil Justice Reform. This final rule meets the applicable standards of Executive Order 12988.

Accordingly, 44 CFR part 67 is amended as follows:

The Federal Communications Commission (FCC or Commission) published a document in the Federal Register on November 16, 2011 (76 FR 70904) deleting § 1.229(b)(2) and redesignating § 1.229(b)(3) as § 1.229(b)(2). That document inadvertently failed to account for changes to § 1.229(b) that the FCC adopted in the Second Report and Order in MB Docket No. 07-42 on July 29, 2011, which were subsequently published in the Federal Register on September 29, 2011 (76 FR 60652) and took effect after the information collection requirements were approved by the Office of Management and Budget (“OMB”) under the Paperwork Reduction Act, 77 FR 6479, February 8, 2012. This document conforms the amendments to § 1.229(b) adopted in the Second Report and Order, which became effective on February 8, 2012, and to the amendments to § 1.229(b) that took effect previously on November 16, 2011.

Accordingly, 47 CFR part 1 is corrected by making the following correcting amendments:

In this Order, we make a number of nonsubstantive, editorial or conforming revisions to parts 32, 51 and 69 of the Commission's rules. We make these revisions to delete certain rule provisions that are without current legal effect or are otherwise obsolete. These nonsubstantive revisions are part of the Commission's ongoing examination and improvement of FCC processes and procedures. The revisions clarify, simplify, and harmonize our rules, making the rules more readily accessible to the public and avoiding potential confusion for interested parties and Commission staff alike. The revisions and the specific reasons we are adopting each one are set forth below.

1. This Order amends part 32, subpart C, Instructions for Balance Sheet Accounts, to delete § 32.2321, which is obsolete. Section 32.2321 creates an account in the Uniform System of Accounts for incumbent local exchange carriers' (incumbent LECs') embedded customer premises wiring that was capitalized prior to October 1, 1984. By Commission order, the full amortization of all inside wiring was to be completed by September 30, 1994 and therefore the rule has no further applicability.

2. This Order amends rules in part 51, subpart D, Additional Obligations of Incumbent Local Exchange Carriers, which, among other things, establishes a list of unbundled network elements (UNEs) that are subject to the unbundling rules adopted in the Commission's Triennial Review proceedings, and the terms for unbundling these network elements. See Triennial Review Order, FCC 03-227, published at 68 FR 52276, 52295-305; Unbundled Access to Network Elements; Review of the Section 251 Triennial Review Remand Order, FCC 04-290, published at 70 FR 8940, 8953-55, February 24, 2005. Specifically, this Order makes the following deletions or amendments to part 51 rules that refer to UNEs that are no longer subject to unbundling as a result of decisions in the Triennial Review proceedings or expired transition periods:

• This Order deletes § 51.319(a)(1)(i), which references “line sharing” as a UNE that is subject to unbundling, to conform to judicial decision. See United States Telecom Ass'n v. FCC, 290 F.3d 415, 428-29 (2002) (vacating the Commission's decision to provide CLECs with unbundled access to the high frequency portion of copper loops to provide broadband DSL services, primarily because the Commission had failed to consider the relevance of intermodal competition in the broadband market). The definition of “high-frequency portion of the loop” in § 51.319(a)(1)(i) has continuing relevance for the Commission's unbundling requirements, specifically with regard to line splitting under § 51.319(a)(1)(ii). Accordingly, in deleting § 51.319(a)(1)(i), this order moves the definition of “high-frequency portion of the loop” to the end of § 51.319(a)(1)(ii) and redesignates § 51.319(a)(1)(ii) through 51.319(a)(1)(v) as § 51.319(a)(1)(i) through 51.319(a)(1)(iv). This Order also deletes the reference to unbundled “local circuit switching” in § 51.319(a)(1)(ii) (redesignated as § 51.319(a)(1)(i)), to implement the Triennial Review Remand Order, FCC 04-290, published at 70 FR 8940, February 24, 2005.

• This Order deletes references to “the high-frequency portion of the copper loop” in § 51.319(a)(1)(iii) (redesignated as § 51.319(a)(1)(ii)), to conform to judicial decision. See United States Telecom Ass'n v. FCC, 290 F.3d 415, 428-29 (2002).

• This Order deletes § 51.319(a)(1)(iii)(D) & (E) to conform to judicial decision. See United States Telecom Ass'n v. FCC, 290 F.3d 415, 428-29 (2002).

• This Order amends § 51.319(a)(1)(v) (redesignated as 51.319(a)(1)(iv)) to delete the reference to “line sharing,” to conform to judicial decision. See United States Telecom Ass'n v. FCC, 290 F.3d 415, 428-29 (2002).

• This Order deletes a reference in § 51.319(a)(7)(ii) to network modifications that would enable a requesting telecommunications carrier to obtain access to a dark fiber loop. This deletion reflects the fact that the Commission previously eliminated the requirement to make dark fiber loops available as unbundled network elements.

• This Order deletes § 51.319(d) to conform to judicial decision, redesignates § 51.319(e) through (g) as § 51.319(d) through (f)), and amends all internal cross-references to reflect these redesignations.

• This Order deletes § 51.319(a)(4)(iii), 51.319(a)(5)(iii), 51.319(a)(6)(ii), 51.319(e)(2)(ii)(C), 51.319(e)(2)(iii)(C), and 51.319(e)(2)(iv)(B), all of which establish transition periods that have expired. In addition, this Order revises § 51.319(a)(6)(i) to designate that section as § 51.319(a)(6), and restructures 51.319(e)(2)(iv), redesignated as 51.319(d)(2)(iv), to eliminate § 51.319(e)(2)(iv)(A) as a separate section and to consolidate its text into redesignated § 51.319(d)(2)(iv).

3. This Order amends Part 69, Access Charges, to delete references to § 54.303, Long Term Support, which the Commission deleted in the USF/ICC Transformation Order, FCC 11-161, published at 77 FR 26987, May 8, 2012.

4. Specifically, this Order amends § 69.415(c) to remove references to § 54.303 and “long term support,” deletes § 69.2(y) and § 69.502(c), which reference § 54.303, and redesignates § 69.502(d) and (e) as § 69.502(c) and (d), respectively.

5. The rule amendments adopted in this Order and set forth in the attached Appendix are nonsubstantive, editorial revisions of the rules pursuant to 47 CFR 0.231(b). These revisions delete rule provisions that are without current legal effect or are otherwise obsolete, and delete references to obsolete rules and statutes. Accordingly, we find good cause to conclude that notice and comment procedures are unnecessary and would not serve any useful purpose. For the same reason, we also find good cause to make these nonsubstantive, editorial revisions of the rules effective upon publication in the Federal Register .

6. Because we adopt this Order without notice and comment, the Regulatory Flexibility Act does not apply.

7. The rules contained herein have been analyzed with respect to the Paperwork Reduction Act of 1995 and found to contain no new or modified form, information collection, and/or recordkeeping, labeling, disclosure, or record retention requirements, and will not increase or decrease burden hours imposed on the public. See Public Law 104 through 113, 44 U.S.C. 3501, et. seq. In addition, therefore, this Order does not contain any new or modified “information collection burden for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002. See Public Law 107 through 198, 44 U.S.C. 3506(c)(4).

8. The Commission will send a copy of this Order in a report to Congress and the Government Accountability Office pursuant to the Congressional Review Act. See 5 U.S.C. 801(a)(1)(A).

9. Accordingly, It is ordered that, effective upon publication in the Federal Register , Parts 32, 51, and 69 of the Commission's rules are amended, as set forth in the attached Final Rules caption, pursuant to the authority contained in Sections 4(i), 5(c), and 303(r) of the Communications Act, 47 U.S.C. 154(i), 155(c), and 303(r), and Section 0.231(b) of the Commission's regulations, 47 CFR 0.231(b).

10. It is further ordered that the Secretary shall cause a copy of this Order to be published in the Federal Register .

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR parts 32, 51, and 69 as follows:

This is a summary of the Bureau's Report and Order (R&O) in WC Docket No. 10-90; WC Docket No. 05-337; DA 12-1777, released on November 6, 2012. The full text of this document is available for public inspection during regular business hours in the FCC Reference Center, Room CY-A257, 445 12th Street SW., Washington, DC 20554, and may also be purchased from the Commission's copy contractor, BCPI, Inc., Portals II, 445 12th Street SW., Room CY-B402, Washington, DC 20554. Customers may contact BCPI, Inc. via their Web site, http://www.bcpi.com, or call 1-800-378-3160. This document is available in alternative formats (computer diskette, large print, audio record, and Braille). Persons with disabilities who need documents in these formats may contact the FCC by email: FCC504@fcc.gov or phone: 202-418-0530 or TTY: 202-418-0432.

1. In this Report and Order (R&O), the Wireline Competition Bureau (Bureau) adopts data specifications for collecting study area boundaries for purposes of implementing various reforms adopted as part of the USF/ICC Transformation Order, 76 FR 73830, November 29, 2011. In the USF/ICC Transformation Order, the Commission comprehensively reformed universal service funding for high-cost, rural areas, adopting fiscally responsible, accountable, incentive-based policies to preserve and advance voice and broadband service. As discussed below, confirming the relevant geographic boundaries is important for implementing several components of those reforms, including: the Commission's benchmarking rule and the elimination of support where an unsubsidized competitor offers voice and broadband service that overlaps an incumbent carrier's study area. On June 1, 2012, the Bureau issued the Study Area Boundaries Public Notice, 77 FR 37402, June 21, 2012, which proposed collecting study area and exchange boundary data from all incumbent LECs. Specifically, the Bureau proposed requiring all incumbent LECs to submit study area boundary data in an esri shapefile format with certain identifying feature attributes. The R&O adopts that proposal.

2. Benchmarking Rule. In the USF/ICC Transformation Order, the Commission adopted a benchmarking rule intended to moderate the expenses of rate-of-return carriers with very high costs compared to their similarly situated peers, while encouraging other rate-of-return carriers to advance broadband deployment. On April 25, 2012, the Bureau adopted the methodology for implementing this rule, which establishes limits on recovery of capital costs and operating expenses for high-cost loop support (HCLS). The methodology uses quantile regression analyses to generate a capital expense limit and an operating expense limit for each rate-of-return cost company study area. In the HCLS Benchmarks Implementation Order, the Bureau relied on Tele Atlas wire center boundaries as an interim source for study area boundaries. Tele Atlas is a widely-used commercial source of this information. As an interim measure to address expressed concerns that the Tele Atlas boundaries used in the benchmark methodology misstate some rate-of-return study areas, the Bureau provided a streamlined, expedited waiver process for incumbent LECs affected by the HCLS benchmarks to correct errors on an ad hoc basis, while obtaining public input on a proposed process to collect new nationwide data on study areas boundaries.

3. In the USF/ICC Transformation Order, the Commission adopted a rule to phase out universal service support where an unsubsidized competitor—or a combination of unsubsidized competitors—offers voice and broadband service throughout 100 percent of an incumbent's study area. In the USF/ICC Transformation FNPRM, 76 FR 78384, December 16, 2011, the Commission sought comment on a process to reduce support where such an unsubsidized competitor offers voice and broadband service to a substantial majority, but not 100 percent of the study area. Study area boundaries are needed to determine whether unsubsidized competitors offer service within all or a portion of an incumbent's study area.

4. On June 1, 2012, the Bureau issued the Study Area Boundaries Public Notice which proposed collecting study area and exchange boundary data from all incumbent LECs. Specifically, the Bureau proposed requiring all incumbent LECs to submit study area boundary data in an esri shapefile format with certain identifying feature attributes. The Bureau sought comment on this proposal, along with whether to allow states to assist incumbent LECs in submitting boundary data and how to resolve any overlap issues.

5. Collecting Study Area and Exchange Boundaries. In this R&O, the Bureau requires incumbent LECs to submit esri shapefiles of their study area boundaries, with each submitted shapefile representing a single study area in each state that the incumbent LEC serves. The shapefile for each study area must depict each exchange within the study area as a closed, non-overlapping polygon. Each exchange-area polygon must constitute one record in the shapefile and must contain associated data with certain attributes used to identify the exchange, such as the exchange name and CLLI (Common Language Location Identifier) code. The Bureau will collect study area boundary data at the exchange level so that it can distinguish those exchanges that are subject to “frozen” support levels from those that are not, and so that the data can be updated to reflect any exchanges that have been transferred from one incumbent LEC to another.

6. Collecting Data in ESRI Shapefile Format. The Bureau finds that collecting study area boundary data in an esri shapefile format best balances the need for accurate and timely data with the goal of minimizing burdens on providers. A number of commenters support this approach. The use of a single data format will facilitate the creation of a complete, accurate, uniformly-formatted, publicly-available, and easily-accessible set of study area boundary data. Having all of the data submitted in a uniform format will enable us to access, analyze, and aggregate the study area boundaries using the same software program, thereby minimizing the delay and inaccuracies associated with analyzing data in inconsistent formats or converting data to a single format.

7. The Bureau finds that the esri shapefile is the best among possible data formats. Since its introduction in the 1990s, the esri shapefile has become the industry standard for storing, depicting, and analyzing spatial data. As a result, there are multiple geographic information system (GIS) platforms capable of creating and managing esri shapefiles, and multiple software programs can convert spatial data stored in other formats (such as MapInfo) to an esri shapefile format. Therefore, incumbent LECs or state entities that maintain spatial data on study area boundaries in another format should be able to convert such data to an esri shapefile format. In addition, there are many GIS specialists and engineering consultants in the United States that are able to provide expertise and develop spatial data for incumbent LECs and state entities without internal GIS resources.

8. Incumbent LECs and states entities are most familiar with the various factors—such as local geography and topography, customer locations, network configuration, and state obligations—that determine individual study area boundaries, and therefore are best suited to undertake the conversion of existing map data to an esri shapefile, because they can identify and immediately correct any errors that might occur in this conversion process. Incumbent LECs that do not already have esri shapefiles of their study area boundaries may either use software and information technology, and/or rely on the expertise of consultants, to develop a shapefile based on the presumably known locations of their physical plant and their customers. Thus, the benefits gained by requiring incumbent LECs to provide and verify esri shapefiles warrant the potential burdens imposed.

9. Incumbent LECs or other entities are not expected to conduct physical surveys in order to produce the degree of accuracy required by the data specification. Incumbent LECs reasonably can be expected to know where they offer services and thus should be able to create and submit an esri shapefile to the degree of accuracy required based largely on existing information.

10. The Bureau also rejects the argument that the boundary data collection requirements should be shifted to the state commission in cases where the incumbent LEC is unable to reasonably comply. The Bureau encourages states to assist in this endeavor, but recognizes that some state commissions may have limited resources to undertake this responsibility, particularly if there are numerous incumbent LECs within the state.

11. State Involvement. State entities to voluntarily submit shapefiles on behalf of any and/or all incumbent LECs within their states. State entities are well situated to assist incumbent LECs with their responsibilities under this R&O. Involvement of state entities that undertake or assist with this data collection effort could reduce the burden on incumbent LECs and on Commission staff, particularly because some states already have digitized service territory boundaries. State entities wishing to submit such data should notify the Commission in writing of their intention to do so and submit that notice to WC Docket No. 10-90 via the Commission's Electronic Comment Filing System (ECFS). The Bureau will release a Public Notice identifying the deadlines for these notices (as well as the deadlines for the shapefile submissions and incumbent LEC certifications).

12. Ultimately, however, the incumbent LECs are responsible for reviewing, verifying, and certifying that the study area boundary data are accurate and for ensuring that the ongoing obligations, such as updating of information, are satisfied. Accordingly, in cases where a state entity uploads data to the Commission-sponsored Web site on behalf of one or more incumbent LECs, each incumbent LEC whose data are submitted by the state must log into the Web site to review the shapefile. If the incumbent LEC has a reasonable basis to conclude the shapefile is correct, the incumbent LEC can certify and submit the data using the same web interface. The reporting obligation set forth in this R&O ultimately rests with incumbent LECs; state commissions may not certify as to the accuracy of the data on behalf of incumbent LECs. If the incumbent LEC cannot certify that the data submitted by the state commission are correct, the incumbent LEC must so notify the Bureau and upload corrected data, either on its own or in conjunction with the state entity that filed it. The incumbent LEC can then certify that the study area boundary data are accurate.

13. Incumbent LEC Certification. After reviewing and, if necessary, correcting the study area boundary data submitted by itself or a state entity, each incumbent LEC must certify the accuracy of the data. An official of the firm, such as a corporate officer, managing partner, or sole proprietor, must provide an electronic signature certifying that he or she has examined the study area boundary shapefile and that, to the best of his or her knowledge, information, and belief, the data contained in the shapefile are accurate and correct. The certifying official may be different from the GIS specialist or other individual who developed the study area boundary shapefile, and the web interface will allow filers to enter contact information for both the certifying official and the individual most knowledgeable about the spatial data.

14. Data Reconciliation. Once the shapefiles have been submitted and certified, the Bureau will review the study area boundaries and resolve any voids and overlaps. Overlap areas would be those shown to be served by more than one incumbent LEC, while void areas would be those shown to be served by no incumbent LEC. The Bureau will attempt to distinguish unpopulated void areas from populated void areas that are likely to be served by some incumbent LEC, in which case an error in the submitted data may need to be resolved. The Bureau may also seek help from state commissions to resolve gaps, voids, and overlap issues. During review, if boundary overlaps or void areas are found in the submitted boundary data, the Bureau will contact the filer(s) to resolve such issues. Once these issues are resolved, the Bureau will ask incumbent LECs to recertify the new, corrected boundaries. When a complete set of the reconciled boundaries has been compiled the study area boundary data will be published.

15. The Bureau will contact, either directly or via a state entity, any incumbent LEC that does not submit study area boundary data in the format requested by the required date and request that the incumbent LEC submit the required shapefiles within 30 days. The Bureau will also contact any incumbent LEC that has not certified the accuracy of the required study area data, whether filed by the incumbent LEC itself or by another party, and request that the incumbent LEC certify the data, or submit corrected data, within 30 days. Compliance with the rules adopted in this R&O is mandatory, and failure to comply may lead to enforcement action, including forfeiture penalties, pursuant to the Communications Act and other applicable law.

16. It is critical to our universal service reform implementation efforts to ensure that the boundary area data do not become out-of-date. Therefore, incumbent LECs must provide updated data when their study area boundaries change. Study area boundaries can change as the result of a transaction involving the addition or sale of exchanges; new deployment into previously-unserved areas, such as a new housing subdivision; or an incumbent LEC relinquishing its ETC designation and no longer being obligated to serve an area as a carrier of last resort. Incumbent LECs and/or state entities must submit updated data by March 15 of each year, beginning the year following the initial data submissions, showing any changes made by December 31 of the previous year. The incumbent LEC is responsible for making any necessary changes and for filing the revised shapefile. The changes cannot be made using the web interface itself; incumbent LECs will need to modify the shapefile. However, incumbent LECs can upload a revised shapefile to the same Web site used for the original filing. In addition, all incumbent LECs must recertify their study area boundary data every two years. Filers will need to examine, through the web interface described below, the boundary data previously submitted, and then either certify that they are correct or submit revised data.

17. Once OMB has completed its review of the study area boundary data collection requirements adopted today, the Bureau will issue a Public Notice providing detailed instructions and announcing the deadline for the submission of data. Each incumbent LEC or submitting state entity will need to log into the web interface, at the announced Web site URL, to upload the data. After logging in, the submitting entity will provide contact information for the individual most knowledgeable about the study area boundary data, in case questions about the submitted data arise. After completing the contact information, the incumbent LEC or state entity will upload a single zip file containing the required files per Appendix A. Once the zip file has been uploaded, the web interface will display a map of the submitted data on the filer's screen, allowing the filer to review the map and associated data for accuracy and completeness before certifying and submitting it. In cases where a state entity has uploaded data on behalf of an incumbent LEC(s), each incumbent LEC will be required to log in to the filing system separately to review and certify that the data are correct prior to submitting them. A corporate officer of an incumbent LEC will need to provide contact information and certify under penalty of perjury that he or she has examined the study area boundary shapefile and that—to the best of his or her knowledge, information, and belief—the data contained in the shapefile are accurate and correct. If the data need to be revised, the incumbent LEC or state entity will have to correct the data before the incumbent LEC certifies and submits them.

18. The Commission will send a copy of this R&O in a report to be sent to Congress and the Government Accountability Office, pursuant to the Congressional Review Act.

19. This R&O contains new information collection requirements subject to the PRA. It will be submitted to OMB for review under section 3507(d) of the PRA. OMB, the general public, and other Federal agencies are invited to comment on the new information collection requirements contained in this proceeding.

1. Pursuant to sections 1, 2, 4(i), 201-205, 218-220, 254, 256, 303(r), and 403 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i), 201-205, 218-220, 254, 303(r), and 403, and §§ 0.91, 0.201(d), 0.291, and 1.427 of the Commission's rules, 47 CFR 0.91, 0.201(d), 0.291, 1.427, and pursuant to the delegations of authority in paragraphs 157, 184, 187, 192, 217 of the USF/ICC Transformation Order, document DA 12-1777 is adopted.

2. Document DA 12-1777 shall be effective thirty (30) days after publication in the Federal Register , except for the requirements contained in paragraph 16 and Appendix A, which are subject to the PRA. These requirements include new or modified information collection requirements that require approval by OMB under the PRA, and shall become effective after the Commission publishes a document in the Federal Register announcing such approval and the relevant effective date(s).

3. The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of document DA 12-1777, including the Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

4. The Commission shall send a copy of document DA 12-1777 to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).