[Federal Register Volume 81, Number 26 (Tuesday, February 9, 2016)]
[Notices]
[Pages 6904-6905]
[FR Doc No: 2016-02489]

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SECURITIES AND EXCHANGE COMMISSION

[Investment Company Act Release No. 31982; 812-14376]

MassMutual Premiere Funds, et al.; Notice of Application

February 3, 2016.
AGENCY:  Securities and Exchange Commission (``Commission'').

ACTION:  Notice of an application under section 6(c) of the Investment
Company Act of 1940 (``Act'') for an exemption from section 15(a) of
the Act and rule 18f-2 under the Act, as well as from certain
disclosure requirements in rule 20a-1 under the Act, Item 19(a)(3) of
Form N-1A, Items 22(c)(1)(ii), 22(c)(1)(iii), 22(c)(8) and 22(c)(9) of
Schedule 14A under the Securities Exchange Act of 1934, and Sections 6-
07(2)(a), (b), and (c) of Regulation S-X (``Disclosure Requirements'').
The requested exemption would permit an investment adviser to hire and
replace certain sub-advisers without shareholder approval and grant
relief from the Disclosure Requirements as they relate to fees paid to
the sub-advisers. The order would also supersede a prior order.\1\

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    \1\ MassMutual Institutional Funds et al., Investment Company
Act Release Nos. 25211 (October 16, 2001) (notice), 25260 (November
9, 2001) (order), amended by MassMutual Institutional Funds et al.,
Investment Company Release Nos. 25665 (July 17, 2002) (notice) and
25699 (August 13, 2002) (order).
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    Applicants: MassMutual Premier Funds, MassMutual Select Funds, MML
Series Investment Fund, and MML Series Investment Fund II, (each, a
``Trust,'' and collectively, the ``Trusts''), each a Massachusetts
business trust registered under the Act as an open-end management
investment company with multiple series (each a ``Series''), and MML
Investment Advisers, LLC, a Delaware limited liability company
registered as an investment adviser under the Investment Advisers Act
of 1940 (the ``Manager,'' and collectively with the Trusts, the
``Applicants'').
    Filing Dates: The application was filed October 17, 2014, and
amended on March 9, 2015, June 15, 2015 and October 13, 2015.
    Hearing or Notification of Hearing: An order granting the
application will be issued unless the Commission orders a

hearing. Interested persons may request a hearing by writing to the
Commission's Secretary and serving applicants with a copy of the
request, personally or by mail. Hearing requests should be received by
the Commission by 5:30 p.m. on February 26, 2016, and should be
accompanied by proof of service on the applicants, in the form of an
affidavit or, for lawyers, a certificate of service. Pursuant to rule
0-5 under the Act, hearing requests should state the nature of the
writer's interest, any facts bearing upon the desirability of a hearing
on the matter, the reason for the request, and the issues contested.
Persons who wish to be notified of a hearing may request notification
by writing to the Commission's Secretary.

ADDRESSES:  Secretary, U.S. Securities and Exchange Commission, 100 F
Street NE., Washington, DC 20549-1090. Applicants: 14376, M243,
Enfield, CT 06082.

FOR FURTHER INFORMATION CONTACT:  Bruce MacNeil, Senior Counsel, at
(202) 551-6817, or James M. Curtis, Branch Chief, at<PHONE_NUMBER>
(Division of Investment Management, Chief Counsel's Office).

SUPPLEMENTARY INFORMATION:  The following is a summary of the
application. The complete application may be obtained via the
Commission's Web site by searching for the file number, or an applicant
using the Company name box, at http://www.sec.gov/search/search.htm or
by calling<PHONE_NUMBER>.

Summary of the Application

    1. The Manager will serve as the investment adviser to each
Subadvised Series pursuant to an investment advisory agreement with
each Trust (each, an ``Investment Management Agreement,'' and
collectively, the ``Investment Management Agreements'').\2\ The Manager
will provide the Subadvised Series with continuous and comprehensive
investment management services subject to the supervision of, and
policies established by, each Subadvised Series' board of directors
(``Board''). The Management Agreements permit the Manager, subject to
the approval of the Board, to delegate to one or more Sub-Advisers the
responsibility to provide the day-to-day portfolio investment
management of each Subadvised Series, subject to the supervision and
direction of the Manager.\3\ The primary responsibility for managing
the Subadvised Series will remain vested in the Manager. The Manager
will hire, evaluate, allocate assets to and oversee the Sub-Advisers,
including determining whether a Sub-Adviser should be terminated, at
all times subject to the authority of the Board.
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    \2\ Applicants request relief with respect to the named
Applicants, any future Series of the Trusts and any other existing
or future registered open-end management company or series thereof
that intends to rely on the requested order in the future and that:
(a) is advised by the Manager or by any entity controlling,
controlled by, or under common control with the Manager or its
successor (included in the term ``Manager''); (b) uses the multi-
manager structure described in the application; and (c) complies
with the terms and conditions of the application (any such series, a
``Subadvised Series''). For purposes of the requested order,
``successor'' is limited to an entity that results from a
reorganization into another jurisdiction or a change in the type of
business organization.
    \3\ A ``Sub-Adviser'' for a Series is (1) an indirect or direct
``wholly owned subsidiary'' (as such term is defined in the Act) of
the Manager for that Series, or (2) a sister company of the Manager
for that Series that is an indirect or direct ``wholly-owned
subsidiary'' (as such term is defined in the Act) of the same
company that, indirectly or directly, wholly owns the Manager (each
of (1) and (2) a ``Wholly-Owned Sub Adviser'' and collectively, the
``Wholly-Owned Sub-Advisers''), or (3) an investment sub-adviser for
that Series that is not an ``affiliated person'' (as such term is
defined in Section 2(a)(3) of the Act) of the Series or the Adviser,
except to the extent that an affiliation arises solely because the
sub-Adviser serves as a sub-adviser to one or more Series (each a
``Non-Affiliated Sub-Adviser'' and collectively, the ``Non-
Affiliated Sub-Advisers'') .
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    2. Applicants request an exemption to permit the Manager, subject
to Board approval, to hire a Non-Affiliated Sub-Adviser or a Wholly-
Owned Sub-Adviser, pursuant to Sub-Advisory Agreements and materially
amend Sub-Advisory Agreements with Non-Affiliated Sub-Advisers and
Wholly-Owned Sub-Advisers without obtaining the shareholder approval
required under section 15(a) of the Act and rule 18f-2 under the
Act.\4\ Applicants also seek an exemption from the Disclosure
Requirements to permit a Subadvised Series to disclose (as both a
dollar amount and a percentage of the Subadvised Series' net assets):
(a) The aggregate fees paid to the Manager and any Wholly-Owned Sub-
Advisers; (b) the aggregate fees paid to Non-Affiliated Sub-Advisers,
and (c) the fee paid to each Affiliated Sub-Adviser.
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    \4\ The requested relief will not extend to any sub-adviser,
other than a Wholly-Owned Sub-Adviser, who is an affiliated person,
as defined in section 2(a)(3) of the Act, of the Subadvised Series
or the Manager, other than by reason of serving as a sub-adviser to
one or more of the Subadvised Series (``Affiliated Sub-Adviser'').
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    3. Applicants agree that any order granting the requested relief
will be subject to the terms and conditions stated in the Application.
Such terms and conditions provide for, among other safeguards,
appropriate disclosure to Subadvised Series' shareholders and
notification about sub-advisory changes and enhanced Board oversight to
protect the interests of the Subadvised Series' shareholders.
    4. Section 6(c) of the Act provides that the Commission may exempt
any person, security, or transaction or any class or classes of
persons, securities, or transactions from any provisions of the Act, or
any rule thereunder, if such relief is necessary or appropriate in the
public interest and consistent with the protection of investors and
purposes fairly intended by the policy and provisions of the Act.
Applicants believe that the requested relief meets this standard
because, as further explained in the Application, the Investment
Management Agreements will remain subject to shareholder approval,
while the role of the Sub-Advisers is substantially equivalent to that
of individual portfolio managers, so that requiring shareholder
approval of Sub-Advisory Agreements would impose unnecessary delays and
expenses on the Subadvised Series. Applicants believe that the
requested relief from the Disclosure Requirements meets this standard
because it will improve the Manager's ability to negotiate fees paid to
the Sub-Advisers that are more advantageous for the Subadvised Series.

    For the Commission, by the Division of Investment Management,
under delegated authority.
Robert W. Errett,
Deputy Secretary.
[FR Doc. 2016-02489 Filed 2-8-16; 8:45 am]
 BILLING CODE 8011-01-P


[Federal Register Volume 77, Number 138 (Wednesday, July 18, 2012)]
[Rules and Regulations]
[Pages 42179-42181]
[FR Doc No: 2012-17410]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2012-0563]
RIN 1625-AA00

Safety Zone; Fireworks Display, Potomac River, Charles County,
Newburg, MD

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

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SUMMARY: The Coast Guard will establish a safety zone upon specified
waters of the Potomac River. This action is necessary to provide for
the safety of life on navigable waters during a fireworks display
launched from a barge located in the Potomac River at Newburg in
Charles County, Maryland. This safety zone is intended to protect the
maritime public in a portion of the Potomac River.

DATES: This rule is effective from 8 p.m. on July 21, 2012, through
10:30 p.m. on July 22, 2012.

ADDRESSES: Documents mentioned in this preamble are part of docket
[USCG-2012-0563]. To view 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.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule,
call or email Mr. Ronald L. Houck, Sector Baltimore Waterways
Management Division, U.S. Coast Guard; telephone<PHONE_NUMBER>, email
<EMAIL_ADDRESS>If you have questions on viewing or submitting
material to the docket, call Renee V. Wright, Program Manager, Docket
Operations, telephone<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

Table of Acronyms

DHS Department of Homeland Security
FR Federal Register
NPRM Notice of Proposed Rulemaking

A. Regulatory History and Information

    The Coast Guard is issuing this temporary final rule without prior
notice and opportunity to comment pursuant to authority under section
4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This
provision authorizes an agency to issue a rule without prior notice and
opportunity to comment when the agency for good cause finds that those
procedures are ``impracticable, unnecessary, or contrary to the public
interest.'' Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good
cause exists for not publishing a notice of proposed rulemaking (NPRM).
The Coast Guard received the information about the event on May 23,
2012, and it would be impracticable to publish an NPRM and receive
comments before the event commences.
    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. Due to the need for immediate
action, the restriction of vessel traffic is necessary to protect life,
property and the environment; therefore, a 30-day notice is
impracticable.

B. Basis and Purpose

    Fireworks displays are frequently held from locations on or near
the navigable waters of the United States. The potential hazards
associated with fireworks displays are a safety concern during such
events. The purpose of this rule is to promote public and maritime
safety during a fireworks display, and to protect mariners transiting
the area from the potential hazards associated with a fireworks
display, such as the accidental discharge of fireworks, dangerous
projectiles, and falling hot embers or other debris. This rule is
needed to ensure safety on the waterway during the scheduled event.

C. Discussion of the Final Rule

    Digital Lightning, of Kensington, Maryland, will conduct a
fireworks display launched from a barge located on the Potomac River,
adjacent to Gilligan's Pier Restaurant, at Newburg in Charles County,
Maryland scheduled on July 21, 2012 at approximately 9:45 p.m. If
necessary, due to inclement weather, the fireworks display may be re-
scheduled to take place on July 22, 2012 at approximately 9:45 p.m.
    The Coast Guard is establishing a temporary safety zone on certain
waters of the Potomac River, within a 200 yards radius of a fireworks
discharge barge in approximate position latitude 38[deg]23[min]41[sec]
N, longitude 076[deg]59[min]30[sec] W, located at Newburg in Charles
County, Maryland (NAD 1983). The temporary safety zone will be enforced
from 8 p.m. through 10:30 p.m. on July 21, 2012 and, if necessary due
to inclement weather, from 8 p.m. through 10:30 p.m. on July 22, 2012.
The effect of this temporary safety zone will be to restrict navigation
in the regulated area during, as well as the set up and take down of,
the fireworks display. No person or vessel may enter or remain in the
safety zone. Vessels will be allowed to transit the waters of the
Potomac River outside the safety zone. Notification of the temporary
safety zone will be provided to the public via marine information
broadcasts.

D. Regulatory Analyses

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

1. Regulatory Planning and Review

    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. Although
this safety zone will restrict some vessel traffic, there is little
vessel traffic associated with commercial fishing in the area, and
recreational boating in the area can transit waters outside the safety
zone. In addition, the effect of this rule will not be significant
because the safety zone is of limited duration and limited size. For
the above reasons, the Coast Guard does not anticipate any significant
economic impact.

2. Impact on Small Entities

    The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as
amended, requires federal agencies to consider the potential impact of
regulations on small entities during rulemaking. The Coast Guard
certifies under 5 U.S.C. 605(b) that this rule will not have a
significant economic impact on a substantial number of small entities.
This rule will affect the following entities, some of which may be
small entities: The owners or operators of vessels intending to
operate, transit, or anchor in a portion of the Potomac River, located
at Newburg in Charles County, Maryland from 8 p.m. through 10:30 p.m.
on July 21, 2012 and, if necessary due to inclement weather, from 8
p.m. through 10:30 p.m. on July 22, 2012. This safety zone will not
have a significant economic impact on a substantial number of small
entities for the following reasons. The safety zone is of limited size;
this safety zone would be activated, and thus subject to enforcement,
for only 2\1/2\ hours in the evening when vessel traffic is low; and
vessel traffic could pass safely around the safety zone. In addition,
before the activation of the zone, we will issue maritime advisories
widely available to users of the waterway to allow mariners to make
alternative plans for transiting the affected area.

3. Assistance for Small Entities

    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.

4. Collection of Information

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

5. Federalism

    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.

6. Protest Activities

    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.

7. Unfunded Mandates Reform Act

    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.

8. Taking of Private Property

    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.

9. Civil Justice Reform

    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.

10. Protection of Children

    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.

11. Indian Tribal Governments

    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.

12. Energy Effects

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

13. Technical Standards

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

14. Environment

    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 establishing 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.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and
recordkeeping requirements, Security measures, Waterways.

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

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

0
1. The authority citation for part 165 continues to read as follows:

    Authority: 33 U.S.C. 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50
U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Pub. L. 107-
295, 116 Stat. 2064; Department of Homeland Security Delegation No.
0170.1.

0
2. Add Sec.  165.T05-0563 to read as follows:

Sec.  165.T05-0563  Safety Zone; Fireworks Display, Potomac River,
Charles County, Newburg, MD.

    (a) Regulated Area. The following area is a safety zone: All waters
of the Potomac River, within a 200 yards radius of a fireworks
discharge barge in approximate position latitude 38[deg]23[min]41[sec]
N, longitude 076[deg]59[min]30[sec] W, located at Newburg in Charles
County, Maryland (NAD 1983).
    (b) Regulations. The general safety zone regulations found in 33
CFR 165.23 apply to the safety zone created by this temporary section,
Sec.  165.T05.0563.
    (1) All vessels and persons are prohibited from entering this zone,
except as authorized by the Coast Guard Captain of the Port Baltimore.
    (2) Persons or vessels requiring entry into or passage within the
zone must request authorization from the Captain of the Port or his
designated representative by telephone at<PHONE_NUMBER> or on VHF-FM
marine band radio channel 16.
    (3) All Coast Guard assets enforcing this safety zone can be
contacted on VHF-FM marine band radio channels 13 and 16.
    (4) The operator of any vessel within or in the immediate vicinity
of this safety zone shall:
    (i) Stop the vessel immediately upon being directed to do so by any
commissioned, warrant or petty officer on board a vessel displaying a
Coast Guard Ensign, and
    (ii) Proceed as directed by any commissioned, warrant or petty
officer on board a vessel displaying a Coast Guard Ensign.
    (c) Definitions. Captain of the Port Baltimore means the Commander,
Coast Guard Sector Baltimore or any Coast Guard commissioned, warrant
or petty officer who has been authorized by the Captain of the Port to
act on his behalf.
    Designated representative means any Coast Guard commissioned,
warrant, or petty officer who has been authorized by the Captain of the
Port Baltimore to assist in enforcing the safety zone described in
paragraph (a) of this section.
    (d) Enforcement. The U.S. Coast Guard may be assisted by Federal,
State and local agencies in the patrol and enforcement of the zone.
    (e) Enforcement period. This section will be enforced from 8 p.m.
through 10:30 p.m. on July 21, 2012 and, if necessary due to inclement
weather, from 8 p.m. through 10:30 p.m. on July 22, 2012.

    Dated: July 3, 2012.
Mark P. O'Malley,
Captain, U.S. Coast Guard, Captain of the Port Baltimore.
[FR Doc. 2012-17410 Filed 7-17-12; 8:45 am]
BILLING CODE 9110-04-P


[Federal Register Volume 83, Number 87 (Friday, May 4, 2018)]
[Proposed Rules]
[Pages 19648-19650]
[FR Doc No: 2018-09277]

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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.

========================================================================

Federal Register / Vol. 83, No. 87 / Friday, May 4, 2018 / Proposed
Rules

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 39

[Docket No. FAA-2018-0358; Product Identifier 2017-NM-142-AD]
RIN 2120-AA64

Airworthiness Directives; Airbus Airplanes

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: We propose to adopt a new airworthiness directive (AD) for
certain Airbus Model A319-131, A319-132, A319-133, A320-231, A320-232,
A320-233, A321-131, A321-231, and A321-232 airplanes. This proposed AD
was prompted by reports of fan cowl door (FCD) losses during take-off.
This proposed AD would require modification and re-identification, or
replacement, of certain FCDs, and installation of a placard in the
flight deck. We are proposing this AD to address the unsafe condition
on these products.

DATES: We must receive comments on this proposed AD by June 18, 2018.

ADDRESSES: You may send comments, using the procedures found in 14 CFR
11.43 and 11.45, by any of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the instructions for submitting comments.
     Fax:<PHONE_NUMBER>.
     Mail: U.S. Department of Transportation, Docket
Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue SE, Washington, DC 20590.
     Hand Delivery: Deliver to Mail address above between 9
a.m. and 5 p.m., Monday through Friday, except Federal holidays.
    For service information identified in this NPRM, contact Bombardier
Short Brothers, PLC, Airworthiness, P.O. Box 241, Airport Road,
Belfast, BT3 9DZ Northern Ireland; telephone +44(0)2890-462469; fax
+44(0)2890-468444; email [email protected];
internet http://www.bombardier.com. You may view this service
information at the FAA, Transport Standards Branch, 2200 South 216th
St., Des Moines, WA. For information on the availability of this
material at the FAA, call<PHONE_NUMBER>.

Examining the AD Docket

    You may examine the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-
0358; or in person at the Docket Management Facility between 9 a.m. and
5 p.m., Monday through Friday, except Federal holidays. The AD docket
contains this NPRM, the regulatory evaluation, any comments received,
and other information. The street address for the Docket Operations
office (telephone<PHONE_NUMBER>) is in the ADDRESSES section. Comments
will be available in the AD docket shortly after receipt.

FOR FURTHER INFORMATION CONTACT: Sanjay Ralhan, Aerospace Engineer,
International Section, Transport Standards Branch, FAA, 2200 South
216th St., Des Moines, WA 98198; telephone and fax<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

Comments Invited

    We invite you to send any written relevant data, views, or
arguments about this proposal. Send your comments to an address listed
under the ADDRESSES section. Include ``Docket No. FAA-2018-0358;
Product Identifier 2017-NM-142-AD'' at the beginning of your comments.
We specifically invite comments on the overall regulatory, economic,
environmental, and energy aspects of this NPRM. We will consider all
comments received by the closing date and may amend this NPRM based on
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 NPRM.

Discussion

    The European Aviation Safety Agency (EASA), which is the Technical
Agent for the Member States of the European Union, has issued EASA
Airworthiness Directive 2017-0178, dated September 15, 2017 (referred
to after this as the Mandatory Continuing Airworthiness Information, or
``the MCAI''), to correct an unsafe condition for certain Airbus Model
A319-131, A319-132, A319-133, A320-231, A320-232, A320-233, A321-131,
A321-231, and A321-232 airplanes. The MCAI states:

    Fan Cowl Door (FCD) losses during take-off were reported on
Airbus A320 family aeroplanes equipped with IAE [International Aero
Engines] V2500 engines. Investigations confirmed that in all cases,
the FCD were opened prior to the flight and were not correctly re-
secured. During the pre-flight inspection, it was not detected that
the FCD were not properly latched.
    This condition, if not corrected, could lead to in-flight loss
of an FCD, possibly resulting in damage to the aeroplane and/or
injury to persons on the ground.
    EASA issued AD 2016-0053 [which corresponds to FAA AD 2017-13-
10, Amendment 39-18940 (82 FR 29371, June 29, 2017) (``AD 2017-13-
10'')], requiring modification of the FCD installed on affected
aeroplanes, and installation of a placard in the cockpit, in
accordance with the instructions of Airbus Service Bulletin (SB)
A320-71-1069 (which in turns refers to Goodrich SB V2500-NAC-71-0331
for FCD modification and re-identification).
    The monolithic FCDs, installed on aeroplanes embodying Short
Brothers supplemental type certificate (STC) 10029547, are also
affected by this potential unsafe condition. Consequently, the STC
Holder, trading as Bombardier Short Brothers, developed a
modification, similar to the one designed by Airbus, and issued SB
V25MFC-71-1003. The modification consists of a new FCD front latch
and keeper assembly, having a specific key necessary to un-latch the
FCD. This key cannot be removed unless the FCD front latch is safely
closed. The key, after removal, must be stowed in the flight deck at
a specific location, as instructed in the applicable Aircraft
Maintenance Manual. The applicable Flight Crew Operating Manual has
been amended accordingly. After modification, the FCD is identified
with a different Part Number (P/N).
    Mixed FCD installation can be found on aeroplanes embodying
[EASA] STC 10029547 (i.e., Monolithic FCD and standard production
non-Monolithic FCD). For standard production non-Monolithic FCD,
Bombardier Short Brothers SB V25MFC-71-1003 specifies to accomplish
the instructions

of Goodrich SB V2500-NAC-71-0331, as applicable.
    For the reasons described above, this [EASA] AD requires
modification and re-identification of FCD, and installation of a
placard in the cockpit.

    You may examine the MCAI in the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-
0358.

Related Service Information Under 1 CFR Part 51

    Bombardier Short Brothers, PLC has issued Service Bulletin V25MFC-
71-1003, dated September 28, 2016. The service information describes
procedures for installing modified latches on the left and right engine
FCDs, and re-identifying the FCDs. This service information is
reasonably available because the interested parties have access to it
through their normal course of business or by the means identified in
the ADDRESSES section.

FAA's Determination and Requirements of This Proposed AD

    This product has been approved by the aviation authority of another
country, and is approved for operation in the United States. Pursuant
to our bilateral agreement with the State of Design Authority, we have
been notified of the unsafe condition described in the MCAI and service
information referenced above. We are proposing this AD because we
evaluated all pertinent information and determined an unsafe condition
exists and is likely to exist or develop on other products of these
same type designs.

Differences Between This Proposed AD and the MCAI or Service
Information

    EASA AD 2017-0178, dated September 15, 2017, includes both
monolithic FCDs and non-monolithic FCDs (those not modified by
Bombardier Short Brothers, PLC Supplemental Type Certificate (STC)
ST03076NY). Required actions for the non-monolithic FCDs are included
in AD 2017-13-10 (which corresponds to EASA AD 2016-0053, dated March
14, 2016), so we have not included them in this AD.

Costs of Compliance

    We estimate that this proposed AD affects 557 airplanes of U.S.
registry. We estimate the following costs to comply with this proposed
AD:

                                                 Estimated Costs
----------------------------------------------------------------------------------------------------------------
                                                                                Cost per      Cost on U.S.
               Action                         Labor cost            Parts cost        product        operators
----------------------------------------------------------------------------------------------------------------
Modification and re-identification   8 work-hours x $85 per hour          $1,500          $2,180      $1,214,260
 (or replacement), and placard        = $680.
 installation.
----------------------------------------------------------------------------------------------------------------

Authority for This Rulemaking

    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 proposed AD is issued in accordance with authority delegated
by the Executive Director, Aircraft Certification Service, as
authorized by FAA Order 8000.51C. In accordance with that order,
issuance of ADs is normally a function of the Compliance and
Airworthiness Division, but during this transition period, the
Executive Director has delegated the authority to issue ADs applicable
to transport category airplanes to the Director of the System Oversight
Division.

Regulatory Findings

    We determined that this proposed AD would not have federalism
implications under Executive Order 13132. This proposed AD would not
have a substantial direct effect on the States, on the relationship
between the national Government and the States, or on the distribution
of power and responsibilities among the various levels of government.
    For the reasons discussed above, I certify this proposed
regulation:
    1. Is not a ``significant regulatory action'' under Executive Order
12866;
    2. Is not a ``significant rule'' under the DOT Regulatory Policies
and Procedures (44 FR 11034, February 26, 1979);
    3. Will not affect intrastate aviation in Alaska; and
    4. Will not have a significant economic impact, positive or
negative, on a substantial number of small entities under the criteria
of the Regulatory Flexibility Act.

List of Subjects in 14 CFR Part 39

    Air transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.

The Proposed Amendment

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

PART 39--AIRWORTHINESS DIRECTIVES

0
1. The authority citation for part 39 continues to read as follows:

    Authority:  49 U.S.C. 106(g), 40113, 44701.

Sec.  39.13   [Amended]

0
2. The FAA amends Sec.  39.13 by adding the following new airworthiness
directive (AD):

Airbus: Docket No. FAA-2018-0358; Product Identifier 2017-NM-142-AD.

(a) Comments Due Date

    We must receive comments by June 18, 2018.

(b) Affected ADs

    None.

(c) Applicability

    This AD applies to Airbus Model A319-131, A319-132, A319-133,
A320-231, A320-232, A320-233, A321-131, A321-231, and A321-232
airplanes, certificated in any category, if modified by Bombardier
Short Brothers, PLC Supplemental Type Certificate (STC) ST03076NY.

(d) Subject

    Air Transport Association (ATA) of America Code 71, Powerplant.

(e) Reason

    This AD was prompted by reports of fan cowl door (FCD) losses
during takeoff. We are issuing this AD to prevent in-flight loss of
an FCD, which could result in damage to the airplane and injury to
persons on the ground.

(f) Compliance

    Comply with this AD within the compliance times specified,
unless already done.

(g) Modification and Re-Identification of FCDs

    Within 18 months after the effective date of this AD: Do the
modification and re-identification specified in paragraphs (g)(1)
and (g)(2) of this AD.
    (1) Modify each left-hand (LH) and right-hand (RH) FCD having a
part number listed as ``Old Part Number'' in table 1 to paragraphs
(g), (h), and (l) of this AD, in accordance with the Accomplishment
Instructions of Bombardier Short Brothers Service Bulletin V25MFC-
71-1003, dated September 28, 2016.
    (2) Re-identify each modified FCD with the part number listed as
``New Part Number'' in table 1 to paragraphs (g), (h), and (l) of
this AD, in accordance with the Accomplishment Instructions of
Bombardier Short Brothers Service Bulletin V25MFC-71-1003, dated
September 28, 2016.

 Table 1 to Paragraphs (g), (h), and (l) of This AD--Monolithic FCD Part
                              Number Change
------------------------------------------------------------------------
         FCD position               Old part No.         New part No.
------------------------------------------------------------------------
LH............................  745B4000-501         745B4000-507
                                745B4000-503         745B4000-509
                                745B4000-505         745B4000-511
RH............................  745B4000-502         745B4000-508
                                745B4000-504         745B4000-510
                                745B4000-506         745B4000-512
------------------------------------------------------------------------

(h) Optional Compliance by Replacement or Installation

    (1) Replacement of the FCDs having a part number listed as ``Old
Part Number'' in table 1 paragraphs (g), (h), and (l) of this AD,
with the FCDs having the corresponding part number listed as ``New
Part Number'' in table 1 to paragraphs (g), (h), and (l) of this AD,
is acceptable for compliance with the requirements of paragraph (g)
of this AD.
    (2) Installation on an engine of a right-hand and left-hand
engine FCD having a part number approved after the effective date of
this AD is acceptable for compliance with the requirements of
paragraph (g) of this AD for that engine only, provided the
conditions specified in paragraphs (h)(2)(i) and (h)(2)(ii) of this
AD are met.
    (i) The part number is approved using a method approved by the
Manager, International Section, Transport Standards Branch, FAA; or
the European Aviation Safety Agency (EASA); or Bombardier Short
Brothers, PLC's EASA Design Organization Approval (DOA). If approved
by the DOA, the approval must include the DOA-authorized signature.
    (ii) The installation is accomplished using a method approved by
the Manager, International Section, Transport Standards Branch, FAA;
or EASA; or Bombardier Short Brothers, PLC's EASA DOA. If approved
by the DOA, the approval must include the DOA-authorized signature.

(i) Placard Installation

    For airplanes on which Airbus modification 157718 has not been
embodied in production: Within 18 months after the effective date of
this AD, install a placard that specifies the FCD keys stowage
location in the flight deck on the box located at the bottom of the
120VU panel, or at the bottom of the coat stowage, as applicable to
airplane configuration, using a method approved by the Manager,
International Section, Transport Standards Branch, FAA; or EASA; or
Bombardier Short Brothers, PLC's EASA DOA. If approved by the DOA,
the approval must include the DOA-authorized signature.

(j) Missing FCD Keys or Placard

    Flights with one or both FCD keys missing from the stowage
location in the fight deck, or with the placard (that specifies the
FCD keys stowage location) missing or damaged, are permitted for a
period not to exceed 10 calendar days from the date of discovery.

(k) Alternate Location of FCD Keys and Placard

    As an option to paragraph (i) of this AD, an alternate location
for the key stowage in the flight deck and installation of a placard
for identification of that stowage location are permitted as
specified in the operator's FAA-accepted maintenance or inspection
program, provided the keys can be retrieved from that flight deck
location when needed and the placard installation is done within 18
months after the effective date of this AD.

(l) Parts Installation Prohibition

    No person may install on any airplane an FCD with a part number
identified as ``Old Part Number'' in table 1 to paragraphs (g), (h),
and (l) of this AD, after the time specified in paragraph (l)(1) or
(l)(2) of this AD, as applicable.
    (1) For any airplane with an installed FCD having a part number
identified as ``Old Part Number'' in table 1 to paragraphs (g), (h),
and (l) of this AD: After modification of that airplane as required
by paragraph (g) of this AD or as specified in paragraph (h) of this
AD.
    (2) For any airplane without an installed FCD having a part
number identified as ``Old Part Number'' in table 1 to paragraphs
(g), (h), and (l) of this AD: After the effective date of this AD.

(m) Other FAA AD Provisions

    The following provisions also apply to this AD:
    (1) Alternative Methods of Compliance (AMOCs): The Manager,
International Section, Transport Standards Branch, FAA, has the
authority to approve AMOCs for this AD, if requested using the
procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19,
send your request to your principal inspector or local Flight
Standards District Office, as appropriate. If sending information
directly to the International Section, send it to the attention of
the person identified in paragraph (n)(2) of this AD. Information
may be emailed to: [email protected]. Before using any
approved AMOC, notify your appropriate principal inspector, or
lacking a principal inspector, the manager of the local flight
standards district office/certificate holding district office.
    (2) Contacting the Manufacturer: For any requirement in this AD
to obtain corrective actions from a manufacturer, the action must be
accomplished using a method approved by the Manager, International
Section, Transport Standards Branch, FAA; or the EASA; or Bombardier
Short Brothers, PLC's EASA DOA. If approved by the DOA, the approval
must include the DOA-authorized signature.

(n) Related Information

    (1) Refer to Mandatory Continuing Airworthiness Information
(MCAI) EASA Airworthiness Directive 2017-0178, dated September 15,
2017, for related information. This MCAI may be found in the AD
docket on the internet at http://www.regulations.gov by searching
for and locating Docket No. FAA-2018-0358.
    (2) For more information about this AD, contact Sanjay Ralhan,
Aerospace Engineer, International Section, Transport Standards
Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone
and fax<PHONE_NUMBER>.
    (3) For service information identified in this AD, contact
Bombardier Short Brothers, PLC, Airworthiness, P.O. Box 241, Airport
Road, Belfast, BT3 9DZ Northern Ireland; telephone +44(0)2890-
462469; fax +44(0)2890-468444; email
[email protected]; internet http://www.bombardier.com. You may view this service information at the
FAA, Transport Standards Branch, 2200 South 216th St., Des Moines,
WA. For information on the availability of this material at the FAA,
call<PHONE_NUMBER>.

    Issued in Des Moines, Washington, on April 20, 2018.
Michael Kaszycki,
Acting Director, System Oversight Division, Aircraft Certification
Service.
[FR Doc. 2018-09277 Filed 5-3-18; 8:45 am]
 BILLING CODE 4910-13-P


[Federal Register: October 21, 2010 (Volume 75, Number 203)]
[Proposed Rules]
[Page 64971-64972]
[DOCID:fr21oc10-19]

-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 71

[Docket No. FAA-2010-0837; Airspace Docket No. 10-ACE-10]

Proposed Establishment of Class E Airspace; Central City, NE

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of proposed rulemaking (NPRM).

-----------------------------------------------------------------------

SUMMARY: This action proposes to establish Class E airspace at Central
City, NE. Controlled airspace is necessary to accommodate new Standard
Instrument Approach Procedures (SIAP) at Central City Municipal--Larry
Reineke Field Airport. The FAA is taking this action to enhance the
safety and management of Instrument Flight Rules (IFR) operations for
SIAPs at the airport.

DATES: Comments must be received on or before December 6, 2010.

ADDRESSES: Send comments on this proposal to the U.S. Department of
Transportation, Docket Operations, 1200 New Jersey Avenue, SE., West
Building Ground Floor, Room W12-140, Washington, DC 20590-0001. You
must identify the docket number FAA-2010-0837/Airspace Docket No. 10-
ACE-10, at the beginning of your comments. You may also submit comments
through the Internet at http://www.regulations.gov. You may review the
public docket containing the proposal, any comments received, and any
final disposition in person in the Dockets Office between 9 a.m. and 5
p.m., Monday through Friday, except Federal holidays. The Docket Office
(telephone 1-800-647-5527), is on the ground floor of the building at
the above address.

FOR FURTHER INFORMATION CONTACT: Scott Enander, Central Service Center,
Operations Support Group, Federal Aviation Administration, Southwest
Region, 2601 Meacham Blvd., Fort Worth, TX 76137; telephone: (817) 321-
7716.

SUPPLEMENTARY INFORMATION:

Comments Invited

    Interested parties are invited to participate in this proposed
rulemaking by submitting such written data, views, or arguments, as
they may desire. Comments that provide the factual basis supporting the
views and suggestions presented are particularly helpful in developing
reasoned regulatory decisions on the proposal. Comments are
specifically invited on the overall regulatory, aeronautical, economic,
environmental, and energy-related aspects of the proposal.
Communications should identify both docket numbers and be submitted in
triplicate to the address listed above. Commenters wishing the FAA to
acknowledge receipt of their comments on this notice must submit with
those comments a self-addressed, stamped postcard on which the
following statement is made: ``Comments to Docket No. FAA-2010-0837/
Airspace Docket No. 10-ACE-10.'' The postcard will be date/time stamped
and returned to the commenter.

Availability of NPRMs

    An electronic copy of this document may be downloaded through the
Internet at http://www.regulations.gov. Recently published rulemaking
documents can also be accessed through the FAA's Web page at http://
www.faa.gov/airports_airtraffic/air_traffic/publications/airspace_
amendments/.
    You may review the public docket containing the proposal, any
comments received and any final disposition in person in the Dockets
Office (see ADDRESSES section for address and phone number) between 9
a.m. and 5 p.m., Monday through Friday, except Federal holidays. An
informal docket may also be examined during normal business hours at
the office of the Central Service Center, 2601 Meacham Blvd., Fort
Worth, TX 76137.
    Persons interested in being placed on a mailing list for future
NPRMs should contact the FAA's Office of Rulemaking<PHONE_NUMBER>, to
request a copy of Advisory Circular No. 11-2A, Notice of Proposed
Rulemaking Distribution System, which describes the application
procedure.

The Proposal

    This action proposes to amend title 14, Code of Federal Regulations
(14 CFR), part 71 by establishing Class E airspace extending upward
from 700 feet above the surface for SIAPs operations at Central City
Municipal--Larry Reineke Field Airport, Central City, NE. Controlled
airspace is needed for the safety and management of IFR operations at
the airport.
    Class E airspace areas are published in Paragraph 6005 of FAA Order
7400.9U, dated August 18, 2010 and effective September 15, 2010, which
is incorporated by reference in 14 CFR 71.1. The Class E airspace
designation listed in this document would be published subsequently in
the Order.
    The FAA has determined that this proposed regulation only involves
an established body of technical regulations for which frequent and
routine amendments are necessary to keep them operationally current.
It, therefore, (1) is not a ``significant regulatory action'' under
Executive Order 12866; (2) is not a ``significant rule'' under DOT
Regulatory Policies and Procedures (44 FR 11034; February 26, 1979);
and (3) does not warrant preparation of a Regulatory Evaluation as the
anticipated impact is so minimal. Since this is a routine matter that
will only affect air traffic procedures and air navigation, it is
certified that this rule, when promulgated, will not have a significant
economic impact on a substantial number of small entities under the
criteria of the Regulatory Flexibility Act.
    The FAA's authority to issue rules regarding aviation safety is
found in title 49 of the U.S. Code. Subtitle 1, section 106 describes
the authority of the FAA Administrator. Subtitle VII, Aviation
Programs, describes in more detail the scope of the agency's authority.
This rulemaking is promulgated under the authority described in
subtitle VII, part A, subpart I, section 40103. Under that section, the
FAA is charged with prescribing regulations to assign the use of
airspace necessary to ensure the safety of aircraft and the efficient
use of airspace. This regulation is within the scope of that authority
as it would establish controlled airspace at Central City Municipal--
Larry Reineke Field Airport, Central City, NE.

List of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (Air).

The Proposed Amendment

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

PART 71--DESIGNATION OF CLASS A, B, C, D, AND E AIRSPACE AREAS; AIR
TRAFFIC SERVICE ROUTES; AND REPORTING POINTS

    1. The authority citation for part 71 continues to read as follows:

    Authority: 49 U.S.C. 106(g); 40103, 40113, 40120; E.O. 10854, 24
FR 9565, 3 CFR, 1959-1963 Comp., p. 389.

Sec.  71.1  [Amended]

    2. The incorporation by reference in 14 CFR 71.1 of FAA Order
7400.9U, Airspace Designations and Reporting Points, dated August 18,
2010, and effective September 15, 2010, is amended as follows:

Paragraph 6005 Class E Airspace areas extending upward from 700
feet or more above the surface of the earth.

* * * * *

ACE NE E5 Central City, NE [New]

Central City Municipal--Larry Reineke Field Airport, IL
    (Lat. 41[deg]06'42'' N., long. 98[deg]03'05'' W.)

    That airspace extending upward from 700 feet above the surface
within a 6.3-mile radius of Central City Municipal--Larry Reineke
Field Airport.

    Issued in Fort Worth, TX, on September 27, 2010.
Anthony D. Roetzel,
Manager, Operations Support Group, ATO Central Service Center.
[FR Doc. 2010-26570 Filed 10-20-10; 8:45 am]
BILLING CODE 4901-13-P


quality modeling analyses.'' UARG at 1, 14-15. UARG notes that the
regulation does not require States to use modeling for section 107(d)
designations or for section 110(a)(1) SIPs. Id. at 16. ``Given the
difference between the preamble discussion and the actual regulatory

language,'' UARG asks that EPA clarify that the regulatory language
reflects how EPA intends the NAAQS to be implemented. Id.
    NEDA/CAP contrasts the regulatory text of 40 CFR 50.17(b) and of
Appendix T, which apply to situations where monitoring is used, to
EPA's guidance discussion regarding modeling, echoing UARG's view that
the final regulation ``nearly mirrors'' the proposed regulatory text.
NEDA/CAP at 2-3. NEDA/CAP asserts that ``the rule is therefore
internally inconsistent and confusing,'' and similarly requests that
EPA clarify that the NAAQS will be implemented according to the
regulatory text. Id. at 3. ASARCO argues that the revised regulatory
text, like the prior SO2 NAAQS' text at 40 CFR 50.4, refer
to attainment for SO2 based on measuring ambient air
concentrations through monitoring. ASARCO at 4. ASARCO then endorses
UARG's view that the preamble discussion is inconsistent with ``the
plain language of the Final Rule.'' Id. at 10, n. 12.
    TCEQ contrasts the regulatory text not just with the general
preamble guidance discussion but also with specific preamble language
addressing the relationship of the regulatory text applicable to
monitoring situations to other possible methods for assessing
SO2 levels. TCEQ at 5, 9-10. TCEQ asserts that EPA's
statement recognizing that the monitoring-specific language does not
speak to other measurement approaches ``commits EPA to interpret [its]
adopted rule language in a way that inherently conflicts with the plain
language of the rule,'' which TCEQ says the Agency may not do. Id. at
9-10. TCEQ claims EPA undertook this ``change in its interpretation''
without notice and comment procedures in contravention of Paralyzed
Veterans of America, et al., v. D.C. Arena L.P., 117 F.3d 579, 586
(D.C. Cir. 1997), and that EPA's ``error is compounded by the fact that
EPA interprets the rule language as permissive, while stating elsewhere
in the Final Rule that monitoring data demonstrating attainment will
not be deemed adequate'' absent confirming modeling data. Id. at 10, n.
37.
    North Dakota and South Dakota also claim the guidance discussion is
inconsistent with the regulatory provisions, and ask EPA to clarify how
it intends States to implement the NAAQS. ND and SD at 2-3, 4, 7. Like
the other petitioners, they focus on the regulatory text that
specifically addresses situations in which monitors are required to be
used. Id. at 4. ADEQ endorses North Dakota's and South Dakota's
position. ADEQ at 1. WVDEP takes a different approach from other
petitioners, characterizing the final regulatory text of 40 CFR
50.17(b) as a ``substantive alteration'' that ``implies that monitored
air quality data cannot represent, for regulatory purposes, an area
larger than the site boundaries,'' which WVDEP calls a ``fundamental,
disturbing change from past practice.'' WVDEP at 1.

B. Responses to the Petitioners' Statutory and Regulatory Arguments

    As stated earlier, EPA regards it as impossible for our non-binding
preamble guidance to have an effective ``conflict'' with the CAA or our
regulations, as it is not final and imposes no independent
requirements. Only in subsequent designations actions under section 107
or in SIP actions under sections 110 or 192 would the objections
petitioners raise relate to final actions that could theoretically
represent the ``conflicts'' that petitioners allege. Thus, we respond
to petitioners' arguments conditionally, while reserving the right to
reach different final conclusions than are reflected in our
preliminary, non-final responses provided here, if petitioners were to
raise these and other objections in the context of future final actions
such as designations or SIP approvals.
    Regarding the claimed conflict with federalism principles
underlying the CAA that place primary responsibility for implementation
on States and restrict EPA's roles, EPA has taken no action that can be
characterized as encroaching in States' roles in future implementation.
As EPA explained in the preamble, decisions on what data should be used
to support individual designations or SIP actions will be made on case-
by-case bases and through future rulemaking, and States are not
restricted by our non-binding guidance from recommending designations
based on monitoring, modeling, or a combination. We have, however, as
we commonly do in advance of designations under revised NAAQS, provided
guidance regarding what we currently expect would provide the most
accurate data to support those actions, and we expect to provide
further guidance. Even the petitioners, in their objections, concede
that providing guidance for stakeholders to subsequently use is an
appropriate role for EPA. It is difficult to understand how this can
result in EPA having presently usurped States' roles in future
implementation. Moreover, EPA notes that although it is true that
States have the initial role of recommending designations under CAA
section 107(d) and in developing and submitting for approval SIPs under
sections 110 and 192 to show implementation, attainment, maintenance
and enforcement of the SO2 NAAQS, EPA has the ultimate
responsibility to make final decisions in these actions, whether or not
States even fulfill their own initial roles. See, e.g., CAA sections
107(d)(1)(B)(ii), 107(d)(3)(E), and 110(c)(1)(A)-(B). Moreover, as the
DC Circuit explained in response to similar arguments that EPA guidance
in the designations process ``impermissibly encroaches on states'
statutory prerogative to have a first-say on area designations within
their borders,'' although EPA indeed must wait its turn following the
period for States to recommend designations before EPA makes any
individual designations, ``nothing in section 107(d)(1) prevents EPA
from developing general principles to govern its exercise of discretion
when the time comes, or from announcing those general principles before
the states submit their initial designations. To the extent petitioners
think that EPA owes the states a measure of substantive deference under
section 107(d)(1) [* * *] we disagree. Though EPA may, of course, go
along with states' initial designations, it has no obligation to give
any quantum of deference to a designation that it `deems necessary' to
change.'' Catawba County v. EPA, 571 F.3d at 40 (emphasis in original).
    Similarly, EPA does not agree that its guidance discussion can
presently pose a ``conflict'' with either the terms of CAA section 107
or the Agency's past practice in issuing designations and re-
designations, as petitioners assert. EPA has not yet taken any
designation action that arguably ``departs'' from our past practice,
and as petitioners concede, the final regulation itself does not impose
a binding requirement that States conduct modeling in the manner to
which petitioners object. EPA observes, however, that the Agency has
previously extensively used modeling to support designation and re-
designation decisions for the SO2 primary NAAQS, as
explained in the preamble, and that our long-standing guidance supports
this approach for SO2 NAAQS, particularly in the absence of
monitoring data. See, e.g., Memorandum from John S. Seitz, Director,
Office of Air Quality Planning and Standards, to Regional Office Air
Division Directors, ``Redesignation of Sulfur Dioxide Nonattainment
Areas in the Absence of Monitored Data,'' Oct. 18, 2000; Memorandum
from Sheldon Meyers, OAQPS Director, ``Section 107 Designation Policy
Summary,'' April 21, 1983. [Available at: http://www.epa.gov/ttn/naaqs/so2/so2_tech_res.html].

    EPA does not agree that the preamble discussion of the possible
approach of implementing CAA section 110(a)(1) actually imposes a
requirement to demonstrate attainment with the revised NAAQS on a
specific schedule as a consequence of the final rule. As petitioners
observe, we have not promulgated such a requirement, and the
application of this approach in a future section 110(a)(1) SIP approval
or disapproval action would be the first instance in which EPA could
allegedly act in conflict either with the applicable provisions of
section 110(a)(1) itself or with our prior practice regarding this
provision for SO2 or any other NAAQS pollutant. If any
interested party objects to such an approach that EPA might propose in
such a future action, EPA will respond to that objection then. In the
meantime, we note that section 110(a)(1) is fairly straightforward in
providing that following revision of a NAAQS States are to adopt and
submit SIPs that ``provide[] for implementation, maintenance, and
enforcement'' of the NAAQS, and EPA is required on a case-by-case basis
to take action under CAA section 110(k)(3) to approve or disapprove
such a SIP based on whether it meets the applicable requirements of the
Act. EPA has not yet ``significantly changed'' how this statutory
requirement applies.
    As for the argument that the 1990 CAA amendment to section 171(2)'s
definition of ``nonattainment area'' forces a conflict with the EPA's
preamble discussion, again, EPA does not consider it possible for non-
binding guidance to create such a conflict. Petitioners should present
this argument, if at all, in the context of an actual implementation
action that could theoretically cause such a conflict. Moreover,
petitioners' argument appears to make the remarkable claim that because
the amended section 171(2) definition removed explicit reference to
both monitoring and modeling, it somehow follows that EPA may use the
former type of non-referenced data to support nonattainment
designations but may not use the latter. It is not clear how the
statutory text can compel this result, and the legislative history
cited by petitioners appears to endorse the use of both monitoring and
modeling, as necessary and appropriate, on a case-by-case basis.
Clearly, the opportunity to endorse or object to the use of either
monitoring or modeling (or some combination) will be available in
future implementation actions, but it is not apparent that Congress
issued an absolute prohibition on the use of modeling that EPA's
guidance in advance of such an action could violate.
    In response to the arguments that the preamble guidance conflicts
with the promulgated regulatory text of the final rule, again EPA
points out that there can be no such effective conflict between
promulgated final action (the regulations) and non-binding guidance
discussions that address how EPA may act in future. The final
regulatory text is binding, as are the final preamble explanations of
how that specific regulatory text must be implemented, but the rest of
EPA's implementation discussion is not.
    In any case, EPA addressed the relationship of the regulatory
provisions in section 50.17 (b) referring to ``at an ambient monitoring
site'' and similar provisions in Part 50 Appendix T related to when the
primary NAAQS for SO2 ``are met at an ambient air quality
monitoring site'' and the non-binding guidance elsewhere in the
preamble relating to potential implementation strategies. EPA stated
that the references to monitoring in the rule ``makes clear that the
regulatory text refers to situations where compliance with a NAAQS is
measured by means of monitoring. This text does not restrict or
otherwise address approaches which EPA or States may use to implement
the new 1-hour NAAQS, which may include, for example, use of
modeling.'' 75 FR at 33582. There consequently is no such conflict as
petitioners allege, even if EPA's implementation discussions were other
than non-binding initial guidance. Thus, where monitoring is used,
sections 50.17 and the corresponding provisions in Part 50 Appendix T
are to be followed. But where on case-by-case bases additional tools
are used to accurately assess SO2 concentrations, such as
where monitoring would not yield reliable data of the maximum 1-hour
daily concentrations in an area or location, it is clear that States
and EPA may make use of those tools separate from the regulatory
provisions governing monitoring's use to evaluate whether the ambient
air quality exceeds the NAAQS for SO2, as defined by the
specified level, averaging time, and form. Nothing in the Act prohibits
this approach. See, e.g., CAA sections 107(d)(3) (any ``air quality
data'' may be used for redesignations); 110(a)(1) (does not address the
issue of the types of data States may use in devising plans for
implementation, maintenance, and enforcement of a primary NAAQS);
192(a) (does not specify the types of data that may support a
demonstration that a non-attainment area has attained a NAAQS). Again,
only in those possible future actions would it be possible to evaluate
whether the State's or EPA's implementation actually then ``conflicts''
with the regulatory text.
    Finally, it must be repeated that whether monitoring or modeling is
used in assessing compliance with the NAAQS, all elements of the NAAQS
must be satisfied so that the ultimate determination remains identical:
whether the three-year average of the 99th percentile of daily maximum
1-hour average concentrations of SO2 exceed 75 ppb. The
preamble discussion of implementation approaches is consistent with,
and does not affect, this requirement.

V. Impact on Final Standard Issue

A. Petitioners' Arguments

    Several petitioners claim that EPA's guidance discussion has a
present impact on the promulgated NAAQS, either to make it more
stringent, of the wrong ``form,'' or impossible to measure compliance
with. UARG asserts that the guidance ``has the effect of making the new
standard more stringent than the lower end of the range of the standard
in the Proposed SO2 Rule because of the conservatism of
modeling analyses.'' UARG at 18. Later, however, UARG states that ``the
new 1-hour standard for SO2 could effectively become more
stringent than the lower end of the 50 to 100 ppb range that was
proposed for comment based on studies that relied on monitored
SO2 levels.'' Id. at 28 (emphasis added). ``EPA's
recommended approaches for modeling of sources of SO2--
including EPA's insistence on the use of peak emission rates for all
modeled sources--will in all likelihood substantially over-predict
concentrations of SO2 thereby possibly falsely indicating
violations of the new 1-hour SO2 NAAQS.'' Id. at 28-29
(emphasis added). UARG continues that ``[m]odeled predictions of source
impacts will also likely be unrealistically high because of the
approaches that are being used to determine the regional background
values that should be added to predicted source impacts. [* * *]
Although EPA does not require States to use this approach, the Agency's
failure to have in place rules that suggest better options make[s] it
likely that States could continue their current practice.'' Id. at 29
(emphasis added). ``In short,'' UARG argues, ``because models routinely
over-predict short-term concentrations of SO2, the use of
modeling to assess compliance with the new SO2 standard
could have the effect of making the new SO2 standard--as
implemented--more stringent than 75 ppb and, indeed,

could effectively make the standard more stringent than even the lower
end of the 50 to 100 ppb range that EPA'' proposed. Id. (emphasis
added).
    ASARCO cites Appalachian Power Co. v. EPA, 208 F.3d at 1027, and
Donner Hanna Coke Corp., 464 F. Supp. At 1304, for the proposition that
the method of determining compliance can affect the stringency of the
standard or the level of performance needed to meet the standard.
ASARCO at 11. ASARCO notes that it commented on the proposed rule to
claim that current modeling is conservative and that there is a
discrepancy between modeling and monitoring data. Id. ``How attainment
must be demonstrated similarly can affect the stringency of the
standard and the requirements that may be imposed on sources within the
area,'' ASARCO asserts. Id. (emphasis added).
    TCEQ, with the endorsement of ADEQ (see ADEQ at 2), makes a
different kind of argument, alleging that EPA's guidance discussion
lacks an explanation for ``why dispersion modeling is an appropriate
comparison or `fit' for the form of the standard,'' and that EPA's
actual promulgation of 40 CFR 50.17(b) governing compliance shown by
monitoring is itself arbitrary and capricious. TCEQ at 3. The guidance
results in ``an inappropriate form of the standard,'' TCEQ claims,
which it asserts is ``probabilistic'' as opposed to ``deterministic,''
which it considers EPA's generally preferred modeling method to be. Id.
at 5-9. TCEQ states that in the REA, EPA developed a statistical model
to determine 5-minute peak SO2 concentrations and concluded
that at a given level of SO2, a 99th percentile form of a 1-
hour standard is effective at limiting 5-minute peak SO2
concentrations. Id. at 5-6. TCEQ characterizes the form of the final
NAAQS as ``the 3-year average of the 99th percentile of the annual
distribution of daily maximum 1-hour average concentrations,'' as set
forth in 40 CFR 50.17(b) applicable to situations in which monitoring
is used. Id. at 6. TCEQ states that following the proposed
SO2 NAAQS, EPA issued guidance regarding implementation of
the PM2.5 and NO2 NAAQS which indicates there is difficulty
integrating modeling and monitoring data, which ``would also be true
for the SO2 standard.'' Id. at 6-7. TCEQ complains that EPA
has, like for PM2.5 and NO2, adopted a ``form'' of the
SO2 NAAQS for which the Agency has not yet explained how to
translate the modeling results into a form appropriate for comparison
to the new standard. Id. at 7. TCEQ asserts EPA must refine modeling
procedures to ``realistically address the frequency of peak short-term
impacts in order to appropriately implement the new 1-hour
SO2 NAAQS,'' and that the ``joint frequency of worst-case
cumulative emissions and adverse dispersion conditions become more
important for probabilistic ambient standards.'' Id.
    EPA's preferred model for SO2 implementation,
``AERMOD,'' instead, is a ``deterministic'' model that provides point
estimates based on a worst-case set of input parameters that TCEQ
argues is not appropriate for probabilistic standards. Id. at 7-8. Use
of peak emissions for all sources on a continuous basis will lead to
overestimates of the frequency of peak total impacts, TCEQ claims,
while a model should instead consider the use of a frequency
distribution of emissions for the sources being considered in order to
``match'' the adopted form of the standard. Id. at 8. TCEQ recognizes
that EPA allows States to propose to use other models than AERMOD, but
complains that EPA ``requires an arduous demonstration before [it] will
approve the use of other models.'' Id. TCEQ claims that EPA's preferred
air dispersion models have not been developed to predict short-term
locations of maximum concentration or account for a probabilistic
standard. Id. TCEQ claims that where the probability of simultaneous
occurrence of peak emissions and worst-case meteorology is low,
standard modeling will exaggerate ambient concentrations, particularly
where sources do not operate continuously and make ``overly
conservative'' modeled projections inappropriate for use in
designations. Id. at 8-9.

B. EPA's Response

    First, as UARG's arguments suggest by their own terms, and as we
have explained regarding the other procedural and substantive
objections petitioners raise, the claims that EPA's discussion has an
impact on the promulgated standard ignore the fact that the guidance is
not final binding action that has any immediate and direct effect on
anything. As UARG appears to recognize, future implementation actions
using EPA's ``recommended'' approaches which EPA ``does not require''
``could'' have an impact by ``possibly'' or ``likely'' resulting in
States using modeling in a way to ``likely'' overestimate
SO2 emissions only if, in fact all of that actually occurs,
which it may not. Thus, UARG's claim as presented necessarily concedes
that any arguable impact on NAAQS compliance of the guidance discussion
is speculative at this point. There is no reason to accept this result
as inevitable, and if, in a given case (such as PSD permitting), UARG
believes that a particular modeling method is over-predicting
SO2 emissions in a manner that is not representative of a
source's potential to cause or contribute to a NAAQS exceedance, it
will in that future action be able to object based on the facts then
presented. But here there are no such facts to dispute, and it is
therefore not possible for the guidance itself, as expressed in EPA's
preamble, to have any impact on the NAAQS.
    Likewise, ASARCO's objection raises an issue that does not
presently exist, as the final rule does not in fact provide that
modeling ``must'' be used to demonstrate attainment, but instead leaves
for future actions the decision whether in specific cases monitoring or
modeling or some combination of the two will best measure ambient
SO2 concentrations. If EPA were to determine in a given
action that the monitoring data were not sufficient to determine an
area's attainment status, and thus that the area would have to be
categorized as unclassifiable until sufficient monitoring data or
modeling results were available, that designation would be the result
of the insufficiencies in the data, not of anything that EPA has done
in the final rule or discussed in the preamble guidance. Although it
might seem to petitioners that monitoring, where actually conducted,
should be inherently more accurate than modeling, this is not
necessarily the case with respect to SO2. In fact, ``[i]n
the past, EPA used a combination of modeling and monitoring for
SO2 during permitting, designations and re-designations in
recognition of the fact that a single monitoring site is generally not
adequate to fully characterize ambient concentrations, including the
maximum ground level concentrations, which exist around stationary
SO2 sources.'' 75 FR at 35559. This is especially important
because ``[t]he 1-hour NAAQS is intended to provide protection against
short-term (5 minute to 24 hour) peak exposures.'' Id. See American
Lung Ass'n v. EPA, 134 F. 3d at 392-93 (remanding EPA's determination
that such exposures to SO2 do not constitute a threat to
public health) and 75 FR at 35536 (5-10 minute SO2 exposures
can result in adverse health effects to asthmatics).
    TCEQ's more detailed and alternative argument claiming that the
discussion of modeling makes the form of the standard when monitoring
is to be used unlawful must be similarly rejected, since at this point
it is entirely

speculative as to whether the alleged poor ``fit'' between modeling and
the standard will in fact occur in any specific instances. TCEQ has
presented no facts to support a claim that the guidance discussion
itself compels that this result has already or must inevitably occur.
Moreover, TCEQ presents no argument as to why the form of the standard
is inappropriate. See 75 FR at 35539-41 (discussing and justifying at
length EPA's choice of a 99th percentile form for the new 1-hour
standard). Like UARG and ASARCO, TCEQ appears to implicitly object to
the fact that EPA did not in the final rule either require modeling to
be used in all cases or promulgate specific requirements regarding
modeling's use from which States may not deviate or to which no
alternatives may be recommended in future implementation. Ironically,
the petitioners thus appear to complain of the flexibility that they
and States will have in future implementation actions to recommend data
measurement tools that they believe will more accurately predict
SO2 emissions concentrations. Certainly such flexibility, no
matter how ``arduous'' it seems in application, cannot be the basis for
a claim that a guidance discussion has any present and immediate impact
on the promulgated NAAQS.

VI. Stay of Final Rule Issue

A. Summary of Petitioners' Requests

    Nearly all of the petitioners requested that EPA stay the
effectiveness of the final SO2 NAAQS pending some period of
reconsideration. UARG at one point requests a stay of the final NAAQS
``pending completion of rulemaking,'' and at another asks for a stay
``while EPA decides whether to reconsider key portions of the Rule,''
but ultimately requests a stay ``for a period of three months'' with
the possibility of being extended. UARG at 3, 30, 32. UARG bases its
request for a stay under CAA sections 307(d)(7)(B) and 301(a) on the
perceived hardships that could befall pollution sources if they are
required to achieve increasingly lower emissions rates, at increasingly
higher costs, on the asserted restriction of State discretion resulting
from EPA's guidance discussion, and on States' future burden of having
to adopt and submit SIPs that show attainment via modeling. Id. at 30-
31. NEDA/CAP requests a stay of the SO2 NAAQS pending
``agency review and action on'' its petition to ``prevent confusion and
to conserve resources in responding to the final rule's requirements
for initial attainment/nonattainment designations.'' NEDA/CAP at 6.
ASARCO claims EPA ``should stay the effective date of the rule to
provide adequate notice and opportunity to comment on the rulemaking,''
and therefore ``fully supports'' UARG's request for a stay. ASARCO at
12.
    TCEQ argues EPA should stay the NAAQS under APA section 705's
authority to postpone the effective date of action, pending judicial
review, when an agency finds that justice so requires. TCEQ at 15.
Under this standard, TCEQ argues, it is not required to demonstrate
irreparable harm to support granting a stay. Id. at 15-16. North Dakota
and South Dakota, ``because of the hardships that could result from
implementation of EPA's 1-hour SO2 Standard in the manner
described in the Final Rule's preamble,'' asks for a three-month stay,
followed by an extension through the completion of rulemaking if EPA
decides to change the rule. ND and SD at 9-10. ADEQ, in supporting the
petitions of TCEQ and North Dakota and South Dakota in general, appears
to also seek a stay. ADEQ at 2.

B. EPA's Response

    Consistent with our position in the litigation on the final
SO2 Primary NAAQS in response to the motion filed by North
Dakota to judicially stay the rule, EPA concludes that there is no
basis for an administrative stay of the final SO2 Primary
NAAQS. Under CAA section 307(d)(7)(B), EPA may issue a stay for up to
three months if it grants a petition and initiates reconsideration of a
final rule. Since we are denying the petitions to reconsider, an
administrative stay is not warranted under that authority. In addition,
a stay is not otherwise warranted. First, the petitioners have not made
a strong showing of likelihood of success on the merits, for all of the
reasons we present above for denying the petitions to reconsider.
Second, the petitioners' speculative arguments do not show that they
will suffer irreparable harm (as no implementation actions have yet
been taken reflecting EPA's discussed possible approaches), and they
fail to account for the non-binding nature of the final rule preamble's
implementation guidance discussion, the opportunities for interested
parties to assert their views in the future implementation actions
about which petitioners are concerned, and EPA's stated intention to
provide further implementation guidance. Third, petitioners' arguments
that a stay would not harm other parties flatly ignore the harm to the
public that would occur from delayed attainment of the SO2
Primary NAAQS and deferred public health benefits, and they therefore
fail to show that such a stay would not be contrary to the public
interest.
    In addition, it is not necessary for EPA to grant a stay under CAA
section 301(a) to carry out the Agency's functions in denying the
petitions for reconsideration, since EPA intends to take no further
action regarding the petitions following this denial. APA section 705
authorizes an agency to postpone the effective date of an agency action
pending judicial review when the agency finds that justice so requires.
In this case, the revised SO2 Primary NAAQS was effective as
of August 23, 2010. TCEQ's request for an administrative stay relying
upon APA section 705 was submitted by petition on that same day that
the SO2 Primary NAAQS became effective. Even if EPA believed
that an administrative stay was warranted under TCEQ's theory that the
total absence of irreparable harm is not an impediment to granting an
administrative stay in this matter, which it does not, it is not clear
whether EPA would have authority under APA section 705 to stay an
agency action that has already gone into effect. Postponing an
effective date implies action before the effective date arrives.

VII. Conclusion

    For all of the reasons discussed above, the petitions to reconsider
the final revised SO2 Primary NAAQS are denied, as are the
petitions for an administrative stay.

    Dated: January 14, 2011.
Lisa P. Jackson,
Administrator.
[FR Doc. 2011-1353 Filed 1-25-11; 8:45 am]
BILLING CODE 6560-50-P


             Joanna
             Swanson/RTP/USEP
             A/US                                                    To
<EMAIL_ADDRESS>
             04/12/2007 10:34                                        cc
             AM<EMAIL_ADDRESS>Juan
                                      Santiago/RTP/USEPA/US@EPA, Pam
                                      Long/RTP/USEPA/US@EPA, Bill
                                      Harnett/RTP/USEPA/US@EPA, JohnB
                                      Chamberlin/DC/USEPA/US@EPA, Lynn
                                      Hutchinson/RTP/USEPA/US@EPA
                                                                Subject
                                      Revised ethanol package

Dear Amy,

Attached is the latest version of the ethanol rulemaking that
incorporates your last comment of a few minutes ago.  It is a clean copy
as you requested.

Many thanks for your review.
Joanna

(See attached file: EthanolFRN4-12-07OMBcleanc.doc)

Joanna C. Swanson
U.S. EPA, OAQPS, AQPD, OPG
919-541-5282

 EthanolFRN4-12-07OMBcleanc.doc