[Federal Register Volume 78, Number 112 (Tuesday, June 11, 2013)]
[Rules and Regulations]
[Pages 34915-34918]
[FR Doc No: 2013-13727]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2013-0289; FRL-9822-3]

Approval and Promulgation of Air Quality Implementation Plans;
Virginia; Revision to the Classification and Implementation of the 2008
Ozone National Ambient Air Quality Standards for the Northern Virginia
Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action to approve revisions to the
Virginia State Implementation Plan (SIP). The revisions consist of two
amendments: an amendment to the list of nonattainment areas; and an
amendment to the 1997 National Ambient Air Quality Standards (NAAQS)
for ozone for purposes of transportation conformity. EPA is approving
these revisions to include the classification of Northern Virginia as
``marginal'' for the 2008 ozone NAAQS, and to revoke the 1997 ozone
NAAQS for the purposes of transportation conformity as established by
the EPA in accordance with the requirements of the Clean Air Act (CAA).

DATES: This rule is effective on August 12, 2013 without further
notice, unless EPA receives adverse written comment by July 11, 2013.
If EPA receives such comments, it will publish a timely withdrawal of
the direct final rule in the Federal Register and inform the public
that the rule will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2013-0289 by one of the following methods:
    A. www.regulations.gov. Follow the on-line instructions for
submitting comments.
    B. Email<EMAIL_ADDRESS>    C. Mail: EPA-R03-OAR-2013-0289, Cristina Fernandez, Associate
Director, Office of Air Program Planning, Air Protection Division,
Mailcode 3AP30, U.S. Environmental Protection Agency, Region III, 1650
Arch Street, Philadelphia, Pennsylvania 19103.
    D. Hand Delivery: At the previously-listed EPA Region III address.
Such deliveries are only accepted during the Docket's normal hours of
operation, and special arrangements should be made for deliveries of
boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-
2013-0289. EPA's policy is that all comments received will be included
in the public docket without change, and may be made available online
at www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through www.regulations.gov or email. The
www.regulations.gov Web site is an ``anonymous access'' system, which
means EPA will not know your identity or contact information unless you
provide it in the body of your comment. If you send an email comment
directly to EPA without going through www.regulations.gov, your email
address will be automatically captured and included as part of the
comment that is placed in the public docket and made available on the
Internet. If you submit an electronic comment, EPA recommends that you
include your name and other contact information in the body of your
comment and with any disk or CD-ROM you submit. If EPA cannot read your
comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses.
    Docket: All documents in the electronic docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, i.e., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available either electronically in www.regulations.gov or
in hard copy during normal business hours at the Air Protection
Division, U.S. Environmental Protection Agency, Region III, 1650 Arch
Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal
are available at the Virginia Department of Environmental Quality, 629
East Main Street, Richmond, Virginia 23219.

FOR FURTHER INFORMATION CONTACT: Gregory Becoat,<PHONE_NUMBER>, or by
email at<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. Summary of SIP Revision

    On March 20, 2013, the Commonwealth of Virginia submitted a formal
revision to its SIP. The SIP revision consists of two amendments to the
Virginia Administrative Code: (1) an amendment to the list of
nonattainment areas in section 9VAC5-20-204, and (2) an amendment to
the 1997 NAAQS for ozone specified in section 9VAC5-30-55. The first is
an amendment that reflects EPA's rulemaking action on May 21, 2012 to
establish initial air quality designations for most areas in the United
States for the 2008 primary and secondary ozone NAAQS (77 FR 30087). In
this rulemaking action, EPA designated the Northern Virginia
nonattainment area as ``marginal'' for the 2008 ozone NAAQS. The second
amendment reflects a separate EPA rulemaking action also made on May
21, 2012, in which the EPA provided for the revocation of the 1997
ozone NAAQS for transportation conformity purposes one year after the
effective date of designations for the 2008 ozone NAAQS (77 FR 30160).
For Virginia, one year after the effective date is July 20, 2013.

II. General Information Pertaining to SIP Submittals From the
Commonwealth of Virginia

    In 1995, Virginia adopted legislation that provides, subject to
certain conditions, for an environmental assessment (audit)
``privilege'' for voluntary compliance evaluations performed by a
regulated entity. The legislation further addresses the relative burden
of proof for parties either asserting the privilege or seeking
disclosure of documents for which the privilege is claimed. Virginia's
legislation also provides, subject to certain conditions, for a penalty
waiver for violations of environmental laws when a regulated entity
discovers such violations pursuant to a voluntary compliance evaluation
and voluntarily discloses such violations to the Commonwealth and takes
prompt and appropriate measures to remedy the violations. Virginia's
Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-
1198, provides a privilege that protects from disclosure documents and
information about the content of those documents that are the product
of a voluntary environmental assessment. The Privilege Law does not
extend to documents or information that: (1) Are generated or developed
before the commencement of a voluntary environmental assessment; (2)
are prepared independently of the assessment process; (3) demonstrate a
clear, imminent and substantial danger to the public health or
environment; or (4) are required by law.
    On January 12, 1998, the Commonwealth of Virginia Office of the
Attorney General provided a legal opinion that states that the
Privilege Law, Va. Code Sec.  10.1-1198, precludes granting a privilege
to documents and information ``required by law,'' including documents
and information ``required by Federal law to maintain program
delegation, authorization or approval,'' since Virginia must ``enforce
Federally authorized environmental programs in a manner that is no less
stringent than their Federal counterparts. . . . '' The opinion
concludes that ``[r]egarding Sec.  10.1-1198, therefore, documents or
other information needed for civil or criminal enforcement under one of
these programs could not be privileged because such documents and
information are essential to pursuing enforcement in a manner required
by Federal law to maintain program delegation, authorization or
approval.'' Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides
that ``[t]o the extent consistent with requirements imposed by Federal
law,'' any person making a voluntary disclosure of information to a
state agency regarding a violation of an environmental statute,
regulation, permit, or administrative order is granted immunity from
administrative or civil penalty. The Attorney General's January 12,
1998 opinion states that the quoted language renders this statute
inapplicable to enforcement of any Federally authorized programs, since
``no immunity could be afforded from administrative, civil, or criminal
penalties because granting such immunity would not be consistent with
Federal law, which is one of the criteria for immunity.''
    Therefore, EPA has determined that Virginia's Privilege and
Immunity statutes will not preclude the Commonwealth from enforcing its
program consistent with the Federal requirements. In any event, because
EPA has also determined that a state audit privilege and immunity law
can affect only state enforcement and cannot have any impact on Federal
enforcement authorities, EPA may at any time invoke its authority under
the CAA, including, for example, sections 113, 167, 205, 211 or 213, to
enforce the requirements or prohibitions of the state plan,
independently of any state enforcement effort. In addition, citizen
enforcement under section 304 of the CAA is likewise unaffected by
this, or any, state audit privilege or immunity law.

III. Final Action

    EPA is approving these revisions to the Virginia SIP to incorporate
the following two amendments: (1) An amendment to the list of
nonattainment areas in section 9VAC5-20-204, and (2) an amendment to
the 1997 NAAQS for ozone, for the purposes of transportation
conformity, specified in section 9VAC5-30-55. EPA is publishing this
rule without prior proposal because EPA views this as a
noncontroversial amendment and anticipates no adverse comment. However,
in the ``Proposed Rules'' section of today's Federal Register, EPA is
publishing a separate document that will serve as the proposal to
approve the SIP revision if adverse comments are filed. This rule will
be effective on August 12, 2013 without further notice unless EPA
receives adverse comment by July 11, 2013. If EPA receives adverse
comment, EPA will publish a timely withdrawal in the Federal Register
informing the public that the rule will not take effect. EPA will
address all public comments in a subsequent final rule based on the
proposed rule. EPA will not institute a second comment period on this
action. Any parties interested in commenting must do so at this time.

IV. Statutory and Executive Order Reviews

A. General Requirements

    Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the CAA and applicable
Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely approves state law as meeting Federal requirements and
does not impose additional requirements beyond those imposed by state
law. For that reason, this action:
     Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
     does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
     does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
     does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
     is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
     is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
     is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
     does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country

located in the state, and EPA notes that it will not impose substantial
direct costs on tribal governments or preempt tribal law.

B. Submission to Congress and the Comptroller General

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

C. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by August 12, 2013. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this action for the purposes of judicial review nor
does it extend the time within which a petition for judicial review may
be filed, and shall not postpone the effectiveness of such rule or
action. Parties with objections to this direct final rule are
encouraged to file a comment in response to the parallel notice of
proposed rulemaking for this action published in the proposed rules
section of today's Federal Register, rather than file an immediate
petition for judicial review of this direct final rule, so that EPA can
withdraw this direct final rule and address the comment in the proposed
rulemaking. This action, revising the Virginia SIP to include an
amendment to the list of nonattainment areas, and an amendment to the
1997 NAAQS for ozone for the purposes of transportation conformity may
not be challenged later in proceedings to enforce its requirements.
(See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by
reference, Nitrogen dioxide, Ozone, Reporting and recordkeeping
requirements, Volatile organic compounds.

    Dated: May 28, 2013.
W.C. Early,
Acting Regional Administrator, Region III.

    40 CFR part 52 is amended as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

    Authority:  42 U.S.C. 7401 et seq.

Subpart VV--Virginia

0
2. In Sec.  52.2420, the table in paragraph (c) is amended by revising
the entries for Sections 5-20-204 and 5-30-55. The revised text reads
as follows:

Sec.  52.2420  Identification of plan.

* * * * *
    (c) * * *

                                 EPA-Approved Virginia Regulations and Statutes
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                                                        State
       State citation             Title/subject       effective      EPA approval date      Explanation [former
                                                         date                                 SIP  citation]
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                                                  * * * * * * *
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                                     9 VAC 5, Chapter 20 General Provisions
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                                                  * * * * * * *
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                                          Part II Air Quality Programs
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                                                  * * * * * * *
5-20-204...................  Nonattainment Areas...     11/21/12  6/11/13 [Insert page    The Northern Virginia
                                                                   number where the        8-hour ozone
                                                                   document begins].       nonattainment area is
                                                                                added.
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                                                  * * * * * * *
                          9 VAC 5, Chapter 30 Ambient Air Quality Standards [Part III]
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                                                  * * * * * * *
5-30-55....................  Ozone (8-hour, 0.08        11/21/12  6/11/13 [Insert page    The 1997 8-hour ozone
                              ppm).                                number where the        NAAQS for purposes of
                                                                   document begins].       transportation
                                                                                conformity is
                                                                                revoked.

                                                  * * * * * * *
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* * * * *
[FR Doc. 2013-13727 Filed 6-10-13; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register: January 14, 2010 (Volume 75, Number 9)]
[Notices]
[Page 2170-2171]
[DOCID:fr14ja10-108]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-61298; File No. SR-BX-2009-087]

Self-Regulatory Organizations; NASDAQ OMX BX, Inc.; Notice of
Filing and Immediate Effectiveness of Proposed Rule Change To Amend
Rules 2240 and 2250 To Reflect Changes to Corresponding FINRA Rules

January 6, 2010.
    Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934
(``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that
on December 30, 2009, NASDAQ OMX BX, Inc. (the ``Exchange'' or ``BX'')
filed with the Securities and Exchange Commission (``Commission'') the
proposed rule change as described in Items I, II, and III below, which
Items have been prepared by the Exchange. The Exchange has designated
the proposed rule change as constituting a non-controversial rule
change under Rule 19b-4(f)(6) under the Act,\3\ which renders the
proposal effective upon filing with the Commission. The Commission is
publishing this notice to solicit comments on the proposed rule change
from interested persons.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ 17 CFR 240.19b-4(f)(6).
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I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    Pursuant to the provisions of Section 19(b)(1) of the Securities
Exchange Act of 1934 (``Act''),\4\ and Rule 19b-4 thereunder,\5\ NASDAQ
OMX BX, Inc. (``BX'') is filing with the Securities and Exchange
Commission (``Commission'') a proposed rule change to amend BX Rules
2240 and 2250 to reflect recent changes to corresponding rules of the
Financial Industry Regulatory Authority (``FINRA''). The text of the
proposed rule change is available at http://
nasdaqomxbx.cchwallstreet.com, at the Exchange's principal office, and
at the Commission's Public Reference Room.
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    \4\ 15 U.S.C. 78s(b)(1).
    \5\ 17 CFR 240.19b-4.
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II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, the Exchange included statements
concerning the purpose of and basis for the proposed rule change and
discussed any comments it received on the proposed rule change. The
text of these statements may be examined at the places specified in
Item IV below. The Exchange has prepared summaries, set forth in
Sections A, B, and C below, of the most significant aspects of such
statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

1. Purpose
    Many of BX's rules are based on rules of FINRA (formerly the
National Association of Securities Dealers (``NASD'')). During 2008,
FINRA embarked on an extended process of moving rules formerly
designated as ``NASD Rules'' into a consolidated FINRA rulebook. In
most cases, FINRA has renumbered these rules, and in some cases has
substantively amended them. Accordingly, BX also proposes to initiate a
process of modifying its rulebook to ensure that BX rules corresponding
to FINRA/NASD rules continue to mirror them as closely as practicable.
In some cases, it will not be possible for the rule numbers of BX rules
to mirror corresponding FINRA rules, because existing or planned BX
rules make use of those numbers. However, wherever possible, BX plans
to update its rules to reflect changes to corresponding FINRA rules.
    This filing addresses BX Rule 2240 entitled ``Disclosure of Control
Relationship with Issuer'' and 2250 entitled ``Disclosure of
Participation or Interest in Primary or Secondary Distribution.'' BX
Rule 2240 62 [sic] makes reference to NASD 2240 [sic] entitled
``Disclosure of Control Relationship with Issuer.'' The Commission
approved a proposed rule change to adopt NASD Rule 2240 as FINRA Rule
2262, NASD Rule 2250 as FINRA Rule 2269 and NASD Rule 3340 as FINRA
Rule 5260.\6\
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    \6\ Securities Exchange Act Release No. 60659 (September 11,
2009), 74 FR 48117 (September 21, 2009) (SR-FINRA-2009-044).
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    FINRA transferred NASD Rule 2240 without material change into the
Consolidated FINRA Rulebook as FINRA Rule 2262. FINRA Rule 2262
provides that a member controlled by, controlling, or under common
control with the issuer of any security must, before entering into any
contract with or for a customer for the purchase or sale of such
security, disclose to the customer the existence of such control; if
such disclosure is not made in writing, it must be supplemented by
written disclosure at or before the completion of the transaction.

    FINRA transferred NASD Rule 2250 without material change into the
Consolidated FINRA Rulebook as FINRA Rule 2269. FINRA Rule 2269
provides that if a member is acting as a broker for a customer, or is
acting for both the customer and some other person, or is acting as a
dealer and receives or has promise of receiving a fee from a customer
for advising the customer with respect to securities, then the member
must, at or before the completion of any transaction for or with the
customer in any security in the primary or secondary distribution of
which the member is participating or is otherwise financially
interested, give the customer written notification of the existence of
such participation or interest.
    FINRA transferred NASD Rule 3340 without material change into the
Consolidated FINRA Rulebook as FINRA Rule 5260. FINRA Rule 5260
prohibits members from, directly or indirectly, effecting transactions
or publishing quotations or indications of interest (``IOIs'') in (1)
any security with respect to which a trading halt is in effect; or (2)
any security future when there is a regulatory trading halt in effect
with respect to the underlying security. The trading and quoting
conduct prohibited by Rule 3340 is triggered only when a trading halt
is in effect. The rule also provides that, in the event that FINRA
halts over-the-counter trading and quoting in NMS stocks because the
Alternative Display Facility (``ADF'') or a Trade Reporting Facility
(``TRF'') is unable to transmit real-time information to the applicable
Securities Information Processor, members are not prohibited from
trading through other markets for which trading is not halted.
    BX is proposing to amend BX Rule 2240 by renaming Rule 2240 to new
Rule 2262. Also, BX is proposing to amend BX Rule 2250 by renaming Rule
2250 to new Rule 2269. BX would delete current Rules 2240 and 2250. BX
also proposes to amend the references to BX Rule 2240 and 2250 to
instead state FINRA Rules 2262 and 2269 in the new Rules 2262 and 2269,
respectively. Because Rule 3340 contains rule text that is
substantially similar to Rule 5260, and does not incorporate Rule 5260
by reference, no changes are necessary to Rule 3340.
2. Statutory Basis
    The Exchange believes that the proposed rule change is consistent
with the provisions of Section 6 of the Act,\7\ in general, and with
Sections [sic] 6(b)(5) of the Act,\8\ in particular, in that the
proposal is designed to prevent fraudulent and manipulative acts and
practices, to promote just and equitable principles of trade, to foster
cooperation and coordination with persons engaged in regulating,
clearing, settling, processing information with respect to, and
facilitating transactions in securities, to remove impediments to and
perfect the mechanism of a free and open market and a national market
system, and, in general, to protect investors and the public interest.
The proposed changes will conform BX Rules 2240 and 2250 to recent
changes made to corresponding FINRA rules and rename Rules 2240 and
2250 to new Rules 2262 and 2269 respectively.
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    \7\ 15 U.S.C. 78f.
    \8\ 15 U.S.C. 78f(b)(5).
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B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change will
result in any burden on competition that is not necessary or
appropriate in furtherance of the purposes of the Act, as amended.

C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants or Others

    Written comments were neither solicited nor received.

III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action

    Because the foregoing proposed rule change does not: (i)
Significantly affect the protection of investors or the public
interest; (ii) impose any significant burden on competition; and (iii)
become operative for 30 days from the date on which it was filed, or
such shorter time as the Commission may designate, it has become
effective pursuant to Section 19(b)(3)(A) of the Act \9\ and Rule 19b-
4(f)(6) thereunder.\10\
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    \9\ 15 U.S.C. 78s(b)(3)(A).
    \10\ 17 CFR 240.19b-4(f)(6).
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    At any time within 60 days of the filing of the proposed rule
change, the Commission may summarily abrogate such rule change if it
appears to the Commission that such action is necessary or appropriate
in the public interest, for the protection of investors, or otherwise
in furtherance of the purposes of the Act.

IV. Solicitation of Comments

    Interested persons are invited to submit written data, views, and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:

Electronic Comments

     Use the Commission's Internet comment form (http://
www.sec.gov/rules/sro.shtml); or
     Send an e-mail to<EMAIL_ADDRESS>Please include
File Number SR-BX-2009-087 on the subject line.

Paper Comments

     Send paper comments in triplicate to Elizabeth M. Murphy,
Secretary, Securities and Exchange Commission, 100 F Street, NE.,
Washington, DC 20549-1090.

All submissions should refer to File Number SR-BX-2009-087. This file
number should be included on the subject line if e-mail is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's Internet Web site (http://www.sec.gov/rules/
sro.shtml). Copies of the submission,\11\ all subsequent amendments,
all written statements with respect to the proposed rule change that
are filed with the Commission, and all written communications relating
to the proposed rule change between the Commission and any person,
other than those that may be withheld from the public in accordance
with the provisions of 5 U.S.C. 552, will be available for inspection
and copying in the Commission's Public Reference Room, 100 F Street,
NE., Washington, DC 20549, on official business days between the hours
of 10 a.m. and 3 p.m. Copies of the filing also will be available for
inspection and copying at the principal office of BX. All comments
received will be posted without change; the Commission does not edit
personal identifying information from submissions. You should submit
only information that you wish to make available publicly. All
submissions should refer to File Number SR-BX-2009-087 and should be
submitted on or before February 4, 2010.
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    \11\ The text of the proposed rule change is available on the
Commission's Web site at http://www.sec.gov/.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\12\
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    \12\ 17 CFR 200.30-3(a)(12).
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Florence E. Harmon,
Deputy Secretary.
[FR Doc. 2010-539 Filed 1-13-10; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register Volume 76, Number 56 (Wednesday, March 23, 2011)]
[Proposed Rules]
[Pages 16349-16350]
[FR Doc No: 2011-6894]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Chapter 1

Notice of Policy Regarding Civil Aircraft Operators Providing
Contract Support to Government Entities (Public Aircraft Operations)

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notification of policy change; request for comments.

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SUMMARY: This notice states the Federal Aviation Administration's (FAA)
policy pertaining to civil aircraft operators that provide contract
support to government entities.

DATES: Comments must be received before April 22, 2011.

ADDRESSES: This is a statement of policy only. We are accepting
comments concerning the implementation of this policy only from
government entities via e-mail at<EMAIL_ADDRESS>
FOR FURTHER INFORMATION CONTACT: Monica C. Buenrostro, General Aviation
and Commercial Division, Flight Standards Service, AFS-800, Federal
Aviation Administration, 800 Independence Avenue, SW., Washington, DC
20591; telephone:<PHONE_NUMBER>; e-mail<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: Title 49 of the United States Code (U.S.C),
section 40102 (a)(41) provides the definition of ``Public Aircraft''
and Title 49 U.S.C 40125 provides the Qualifications for Public
Aircraft Status. These statutory provisions provide the legal basis for
public aircraft operations in the United States.
    The FAA recognizes that these statutory provisions are difficult to
apply to aircraft operations conducted by civil contractors for
government entities. The FAA is therefore clarifying its policy toward
these operators by better defining the responsibilities of the parties
affected by these contracts.
    Public Aircraft Operation is limited by the statute to certain
government operations within U.S. airspace. Although these operations
must comply with certain general operating rules (including those
applicable to all aircraft in the National Airspace System), other
civil certification and safety oversight regulations do not apply.
Whether an operation may be considered public is determined on a
flight-by-flight basis, under the terms of the statute (49 U.S.C 40102
and 49 U.S.C 40125) and considers aircraft

ownership, operator, the purpose of the flight and the persons on board
the aircraft.

FAA Policy

     Public aircraft status is not an ``automatic'' status
granted by the existence of a contract between a civil operator and a
government agency.
     The FAA considers ALL contracted operations to be civil
aircraft operations, unless:
     The contracting government entity provides the operator
with a written declaration (from the contracting officer or higher-
level official) of public aircraft status for designated, qualified
flights;
     The contracted operator notifies the FAA Flight Standards
District Office (FSDO) having oversight of the operator (or the
operation, as appropriate) that it has contracted with a government
entity to conduct ``eligible'' public aircraft operations;
     The contracted operator submits the written declaration to
the FSDO with jurisdiction having oversight;
     The flight(s) in question are determined to be legitimate
public aircraft operations under the terms of the statute; and
     The declaration is made in advance of the proposed public
aircraft flight.
     To implement this policy and collect data, the FSDO having
oversight of the contracted operator will record receipt of these
declarations by electronic means.
    Contracted government entities are cautioned that public aircraft
operations performed by civil operators create a significant transfer
of liability to the contracting government entity, and that FAA
oversight ceases.
    Civil operators are cautioned that unless there is a declaration of
public aircraft status, all operations must be conducted in accordance
with all applicable civil aviation regulations, and that the FAA
retains oversight and enforcement authority for any deviation from the
provisions of Title 14 of the Code of Federal Regulations (14 CFR).
Operators are also cautioned that it is their responsibility to refuse
a contract to perform operations that violate 14 CFR if they cannot
ensure that the government entity offering the contract has declared
that operation as a public aircraft operation and that such flight
meets the public aircraft eligibility requirements as outlined in the
statute.
    The FAA is revising Advisory Circular 00.1-1, Government Aircraft
Operations, and FAA Order 8900.1, Flight Standards Information
Management System. These revisions will more fully address public
aircraft policy issues and implementation.
    Government entities with experience using civil operators under
contract are invited to share their experience and suggestions
concerning implementation of this policy. Government entities may
submit comments to<EMAIL_ADDRESS>to be considered as the FAA
continues to refine the public aircraft operations policy.

    Issued in Washington, DC, on March 17, 2011.
John W. McGraw,
Acting Director, Flight Standards Service.
[FR Doc. 2011-6894 Filed 3-22-11; 8:45 am]
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