Federal Register / Vol. 78, No. 62 / Monday, April 1, 2013 / Rules and Regulations 19421 

reduced pursuant to § 1.704(b) for 

failing to reply to a rejection, objection, 

argument, or other request within three 

months of the date of mailing of the 

Office communication notifying the 

applicant of the rejection, objection, 

argument, or other request must be filed 

prior to the issuance of the patent. This 

time period is not extendable. Any 

request for reinstatement of all or part 

of the period of adjustment reduced 

pursuant to § 1.704(b) under this 

paragraph must also be accompanied by: 

* * * * * 

Date: March 25, 2013. 

Teresa Stanek Rea, 

Acting Under Secretary of Commerce for 

Intellectual Property and Acting Director of 

the United States Patent and Trademark 

Office. 

[FR Doc. 2013–07429 Filed 3–29–13; 8:45 am] 

BILLING CODE 3510–16–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R03–OAR–2013–0082; FRL–9795–6] 

Approval and Promulgation of Air 

Quality Implementation Plans; Virginia; 

Transportation Conformity Regulations 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Direct final rule. 

SUMMARY: EPA is taking direct final 

action to approve revisions to the State 

Implementation Plan (SIP) submitted by 

the Commonwealth of Virginia. This 

revision amends Virginia’s 

transportation conformity requirements 

in order to be consistent with EPA’s 

revised transportation conformity 

requirements. EPA is approving these 

revisions in accordance with the 

requirements of the Clean Air Act 

(CAA). 

DATES: This rule is effective on May 31, 

2013 without further notice, unless EPA 

receives adverse written comment by 

May 1, 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–2013–0082, by one of the 

following methods: 

A. www.regulations.gov. Follow the 

online instructions for submitting 

comments. 

B. Email: fernandez.cristina@epa.gov 

C. Mail: EPA–R03–OAR–2013–0082, 

Cristina Fernandez, Associate Director, 

Office of Air Program Planning, 

Mailcode 3AP30, U.S. Environmental 

Protection Agency, Region III, 1650 

Arch Street, Philadelphia, Pennsylvania 

19103. 

D. Hand Delivery: At the previouslylisted 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– 

0082. 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 Commonwealth’s 

submittal are available at the Virginia 

Department of Environmental Quality, 

629 East Main Street, Richmond, 

Virginia 23219. 

FOR FURTHER INFORMATION CONTACT: 

Gregory Becoat, (215) 814–2036, or by 

email at becoat.gregory@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

Transportation conformity is required 

under section 176(c) of the CAA to 

ensure that Federally supported 

highway, transit projects, and other 

activities are consistent with (conform 

to) the purpose of the SIP. Conformity 

currently applies to areas that are 

designated nonattainment and those 

redesignated to attainment after 1990 

(maintenance areas), with plans 

developed under section 175A of the 

CAA for the following transportation 

related criteria pollutants: ozone, fine 

particulate matter (PM2.5) and coarse 

particulate matter (PM10), carbon 

monoxide (CO), and nitrogen dioxide 

(NO2). Conformity to the purpose of the 

SIP means that transportation activities 

will not cause new air quality 

violations, worsen existing violations, or 

delay timely attainment of the relevant 

national ambient air quality standards 

(NAAQS). 

On March 14, 2012 (77 FR 14979), 

EPA promulgated various 

administrative amendments to the 

Federal transportation regulation. As a 

result of this rulemaking, under 40 CFR 

51.390, Virginia is required to submit a 

SIP revision that establishes conformity 

criteria and procedures consistent with 

the transportation conformity regulation 

promulgated in 40 CFR part 93. 

II. Summary of SIP Revision 

In order to implement the Federal 

transportation conformity requirements, 

the Commonwealth of Virginia’s 

regulation must reflect the recent 

revisions made to the Federal 

regulations. On October 1, 2012, the 

Virginia Department of Environmental 

Quality (VADEQ) submitted a revision 

to its SIP for Transportation Conformity 

purposes. The SIP revision consists of 

amendments to the Commonwealth 

Regulation for Transportation 

Conformity (9VAC5 Chapter 151). This 

SIP revision addresses provisions of the 

EPA Conformity Rule required under 40 

CFR part 93. The revision amends 

9VAC5–151–40, entitled ‘‘General,’’ in 

order to change the date of the specific 

version of the provisions incorporated 

by reference from 40 CFR part 93 (2010) 

in effect July 1, 2010 to 40 CFR part 93 

(2012) in effect July 1, 2012. The SIP 


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revision also amends 9VAC5–151–70, 

entitled ‘‘Consultation,’’ in order to 

change conformity tests and 

methodologies for isolated rural 

nonattainment and maintenance areas 

as required by 40 CFR 93.109(n)(2)(iii) 

to those required by 40 CFR 

93.109(g)(2)(iii). 

EPA’s review of Virginia’s SIP 

revisions indicates that it is consistent 

with EPA’s Conformity Rule. Virginia 

met the requirements under 40 CFR 

51.390 to establish conformity criteria 

and procedures consistent with the 

transportation conformity regulation 

promulgated by EPA under 40 CFR part 

93. In order to implement the Federal 

transportation conformity requirements, 

Virginia’s regulation must reflect the 

most recent rulemaking promulgated by 

EPA on March 14, 2012 (77 FR 14979). 

III. 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 (1) 

That: 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 

§ 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. 

IV. Final Action 

EPA is approving the Virginia SIP 

revision for transportation conformity, 

which was submitted on October 1, 

2012. 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 May 31, 2013 without 

further notice unless EPA receives 

adverse comment by May 1, 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. Please note that 

if EPA receives adverse comment on an 

amendment, paragraph, or section of 

this rule and if that provision may be 

severed from the remainder of the rule, 

EPA may adopt as final those provisions 

of the rule that are not the subject of an 

adverse comment. 

V. 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 


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Federal Register / Vol. 78, No. 62 / Monday, April 1, 2013 / Rules and Regulations 19423 

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 Clean 

Air Act, petitions for judicial review of 

this action must be filed in the United 

States Court of Appeals for the 

appropriate circuit by May 31, 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 to approve the Virginia 

Transportation Conformity Regulation 

may not be challenged later in 

proceedings to enforce its requirements. 

(See CAA section 307(b)(2).) 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Carbon monoxide, 

Incorporation by reference, 

Intergovernmental relations, Nitrogen 

dioxide, Ozone, Particulate matter, 

Reporting and recordkeeping 

requirements. 

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

Dated: March 20, 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 

■ 1. The authority citation for 40 CFR 

part 52 continues to read as follows: 

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

Subpart VV—Virginia 

■ 2. In § 52.2420, the table in paragraph 

(c) is amended by revising the entries 

for Sections 5–151–40 and 5–151–70. 

The revised text reads as follows: 

§ 52.2420 Identification of plan. 

* * * * * 

(c) * * * 

EPA–APPROVED VIRGINIA REGULATIONS AND STATUTES

State citation Title/subject State effective 

date EPA approval date Explanation [former SIP citation] 

* * * * * * * 

Chapter 151 (9 VAC 5) Transportation Conformity 

* * * * * * * 

Part III Criteria and Procedures for Making Conformity Determinations 

5–151–40 ..................................... General ........................................ 8/15/12 4/1/13 [Insert page number where the document 

begins].

* * * * * * * 

5–151–70 ..................................... Consultation ................................. 8/15/12 4/1/13 [Insert page number where the document 

begins].

Section D.1.f. is amended. 

* * * * * * * 


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19424 Federal Register / Vol. 78, No. 62 / Monday, April 1, 2013 / Rules and Regulations 

* * * * * 

[FR Doc. 2013–07384 Filed 3–29–13; 8:45 am] 

BILLING CODE 6560–50–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Parts 1, 22, 24, 27 and 90 

[WT Docket Nos. 06–150, 01–309, 03–264, 

06–169, 96–86, 07–166, CC Docket No. 

94,102, PS Docket No. 06–229; FCC 13–29] 

Service Rules for the 698–746, 747–762 

and 777–792 MHz Bands; Revision of 

the Commission’s Rules To Ensure 

Compatibility With Enhanced 911 

Emergency Calling Systems; et al. 

AGENCY: Federal Communications 

Commission. 

ACTION: Final rule; petition for 

reconsideration. 

SUMMARY: The Memorandum Opinion 

and Order on Reconsideration (MO&O) 

denies or dismisses petitions seeking 

reconsideration of certain decisions 

made by the Commission in the 700 

MHz Second Report and Order, relating 

to the 698–806 MHz Band, including 

decisions regarding performance 

requirements, the auction and 

competitive bidding rules, the open 

platform rules, public safety 

narrowband relocation procedures, and 

the decisions not to impose wholesale 

requirements, eligibility restrictions, 

and spectrum aggregation limits. This 

MO&O also dismisses as moot petitions 

for reconsideration of rules establishing 

a Public/Private Partnership between 

the Upper 700 MHz D Block (D Block) 

licensee and the Public Safety 

Broadband Licensee in the 763–768 

MHz and 793–798 MHz bands. 

DATES: Effective May 1, 2013. 

FOR FURTHER INFORMATION CONTACT: 

Peter Trachtenberg at (202) 418–7369 or 

peter.trachtenberg@fcc.gov, Wireless 

Telecommunications Bureau, Spectrum 

and Competition Policy Division. 

SUPPLEMENTARY INFORMATION: This is a 

summary of the Commission’s 

Memorandum Opinion and Order on 

Reconsideration, WT Docket Nos. 06– 

150, 01–309, 03–264, 06–169, 96–86, 

07–166, CC Docket No. 94,102, PS 

Docket No. 06–229; FCC 13–29, adopted 

February 28, 2013 and released March 1, 

2013. The full text of this document is 

available for inspection and copying 

during normal business hours in the 

FCC Reference Center (Room CY–A257), 

445 12th Street SW., Washington, DC 

20554. The complete text of this 

document also may be purchased from 

the Commission’s copy contractor, Best 

Copy and Printing, Inc., 445 12th Street 

SW., Room, CY–B402, Washington, DC 

20554. The full text may also be 

downloaded at: www.fcc.gov. People 

with Disabilities: To request materials in 

accessible formats for people with 

disabilities (braille, large print, 

electronic files, audio format), send an 

email to fcc504@fcc.gov or call the 

Consumer & Governmental Affairs 

Bureau at 202–418–0530 (voice), 202– 

418–0432 (tty). 

I. Introduction 

1. In this MO&O, the Commission 

addresses petitions that were filed 

seeking reconsideration of certain 

decisions made by the Commission in 

the 700 MHz Second Report and Order 

at 72 FR 48814, Aug. 24, 2007, relating 

to the 698–806 MHz Band (herein, the 

700 MHz Band). 

II. Discussion 

A. Performance Requirements 

2. Below the Commission discusses 

the issues raised by petitioners with 

respect to the performance requirements 

that the Commission established in the 

700 MHz Second Report and Order. 

After careful consideration of the 

arguments raised in the petitions for 

reconsideration, the Commission denies 

the requests to modify the existing 

performance requirements. 

1. Geographic-Based Coverage 

Requirements for CMA and EA Licenses 

3. Blooston Rural Carriers (Blooston), 

MetroPCS Communications, Inc. 

(MetroPCS), and Rural 

Telecommunications Group, Inc. (RTG) 

filed petitions for reconsideration 

challenging various aspects of the 

geographic-based performance 

requirements. 

4. The Commission denies the 

petitioners’ requests to alter the 

geographic-based coverage 

requirements. First, the Commission is 

unpersuaded by Blooston’s arguments 

that a geographic-based performance 

requirement on CMA licensees (i.e. 

licensees in Lower 700 MHz B Block) is 

arbitrary and unworkable and should be 

supplemented with the option of 

meeting a population-based benchmark. 

The Commission provided reasonable 

justifications for its decision to adopt a 

geographic-based build-out requirement 

for CMA and EA licenses, and the 

Commission finds nothing in the record 

to persuade it to change this decision. 

The Commission particularly noted that: 

[b]ecause [the Commission] adopt[s] smaller 

geographic license areas such as CMAs to 

facilitate the provision of service * * * in 

rural areas, [it] also adopt[s] performance 

requirements that are designed to ensure that 

such service is offered to consumers in these 

areas. 

The Commission further found that: 

the uniqueness of the 700 MHz spectrum 

justifies the use of geographic benchmarks 

* * *. 

Blooston argues that the Commission 

arbitrarily discriminated against CMA 

licenses by providing population-based 

requirements on both EA and REAG 

licensees. In fact, the Commission 

imposed identical geographic-based 

requirements on EA and CMA licenses, 

and it reasonably justified its decision to 

adopt a different approach for the much 

larger REAG licenses. Blooston argues 

that for some licenses, meeting the 

geographic-based benchmarks will be 

impractical, and offers analysis of nine 

CMAs out of the 734 in Lower 700 MHz 

B Block. For specific cases of hardship, 

however, providers can seek waiver 

relief. Blooston offers no evidence 

demonstrating that a geographic-based 

benchmark is inherently impractical in 

the usual case. 

5. Indeed, the results of the auction of 

Lower 700 MHz B Block licenses 

provide further support for the 

reasonableness of the Commission’s 

geographic-based performance 

requirements. In the 700 MHz Second 

Report and Order, the Commission 

decided that, if those geographic-based 

requirements caused a reduction in the 

monetary value of the licenses to such 

an extent that bidding in the auction 

resulted in the Lower 700 MHz B Block 

failing to meet its applicable aggregate 

reserve price, the licenses for that block 

would be re-auctioned subject to 

population-based performance 

requirements. Thus, the Commission 

relied in part on the auction results as 

a final check on whether its geographicbased performance requirements were 

in the public interest. When the licenses 

were auctioned in Auction 73, the 

Commission received provisionally 

winning bids on 728 out of 734 Lower 

700 MHz B Block licenses and the 

aggregate amount of the provisionally 

winning bids far exceeded the 

applicable aggregate reserve price. 

Accordingly, the Commission reaffirms 

the geographic-based coverage 

requirement for Lower 700 MHz B Block 

licensees and the Commission denies 

Blooston’s request to add an optional 

population-based benchmark to Lower 

700 MHz B Block. For similar reasons, 

the Commission rejects the requests of 

various commenters for a populationbased buildout option for EA licensees. 

6. The Commission also rejects 

arguments that the Commission should 

broaden the exclusions from the 


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