On January 27, 2010 (75 FR 4259), the EDA published a final rule implementing certain revisions to its regulations. EDA is publishing this notice to amend the heading of 13 CFR part 301, subpart E, which in general addresses the application requirements and evaluation criteria for EDA investment assistance. This notice removes the words “Proposal and” in the heading of subpart E of part 301.

EDA makes this change to ensure that the heading accurately reflects the current application process. On October 1, 2008, EDA published a notice in theFederal Register(73 FR 57049) to introduce itsApplication for Investment Assistance(Form ED-900). Previously, applicants were required to complete and submit a proposal using thePre-Application for Investment Assistance(Form ED-900P), followed by anApplication for Investment Assistance(Form ED-900A), if EDA deemed that the proposed project merited further consideration. The Form ED-900 consolidates all EDA-specific requirements into a single application, and accordingly, effective November 1, 2008, EDA accepts only the Form ED-900, along with specific forms from the Standard Form 424 family. In line with the October 1, 2008 publication, the January 27, 2010 final rule removed references to the Form ED-900P in EDA's regulations, but inadvertently did not change the subpart heading. Accordingly, this notice corrects this error.

Prior notice and opportunity for public comment are not required for rules concerning public property, loans, grants, benefits, and contracts (5 U.S.C. 553(a)(2)). Because prior notice and an opportunity for public comment are not required pursuant to 5 U.S.C. 553, or any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601et seq.) are inapplicable. Therefore, a regulatory flexibility analysis has not been prepared.

It has been determined that this final rule is significant for purposes of Executive Order 12866.

This final rule is not major under the Congressional Review Act (5 U.S.C. 801et seq.)

Executive Order 13132 requires agencies to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in Executive Order 13132 to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” It has been determined that this final rule does not contain policies that have federalism implications.

This final rule contains collections-of-information subject to review and approval by OMB under the Paperwork Reduction Act (“PRA”). The OMB is required to clear all federally-sponsored data collections pursuant to the PRA. Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection-of-information subject to the requirements of the PRA, unless that collection-of-information displays a currently valid OMB control number.

The Federal Aviation Administration (FAA) published a final rule in theFederal Registeron December 12, 2007 (72 FR 70486), which amended 14 CFR parts 26, 121, and 129. That final rule requires holders of design approvals to make available to operators damage tolerance (DT) data for repairs and alterations to fatigue critical airplane structure. After issuing the final rule, the FAA determined that minor technical changes are needed to clarify the intent of and compliance with § 26.43(e) and § 26.45(b)(1) and (e)(1).

The change to § 26.43(e) clarifies that this section does not apply to type certificate (TC) holders of pending or future type certified airplane models, including any airplane model type certified after January 11, 2008. This change is relieving to TC holders and does not impact a TC holder's ability to comply with § 26.43(e). The FAA did not intend to require TC holders to develop repair evaluation guidelines (REG) for pending or future type certified airplane models. The purpose of the REG is to enable operators to obtain DT data for existing repairs for which DT data has not already been provided. Section 26.43(b), (c), and (d) already require all TC holders to develop and make available to operators DT data for all future repairs they develop that affect fatigue critical baseline structure. Operators, therefore, will have the DT data for TC holder repairs necessary to support their compliance with 14 CFR 121.1109(c)(2) of the Aging Airplane Safety rule. For repairs developed by the operator or third parties, operators are responsible for developing or obtaining the necessary DT data to comply with the certification bases for these airplanes; it would not be appropriate to impose this obligation on the TC holder.

The change to § 26.45(b)(1) clarifies that § 26.45(b)(1) applies to both existing and future alterations and corrects an inconsistency with § 26.45(b). This change does not require additional work, since § 26.45(b) already applies to existing and future alterations.

The change to § 26.45(e)(1) provides an appropriate compliance time for submitting a list of fatigue critical alteration structure for alteration data approved on or after January 11, 2008. This change is relieving and necessary to correct an oversight in the original regulatory text, which inadvertently imposes a compliance time that cannot be met for future alterations. For alteration data approved on or after January 11, 2008, this change would require that the list of fatigue critical structure be submitted before the alteration data is approved.

Since this action is relieving to holders of type certificates and clarifies the intent of the regulations, the FAA finds that notice and public comment under 5 U.S.C. 553(d) is unnecessary. For the same reason, the FAA finds good cause exists under 5 U.S.C. 553(d) for making this rule effective upon publication.

The technical amendment clarifies the applicability of § 26.43(e) and the scope of § 26.45(b)(1). This technical amendment also adds to § 26.45(e)(1) an appropriate compliance time for submitting fatigue critical alteration structure for alteration data approved on or after January 11, 2008.

This rule was not published in proposed form since it relates to agency procedure and practice. TVA considers this rule to be a procedural rule which is exempt from notice and comment under 5 U.S.C. 533(b)(3)(A). This rule is not a significant rule for purposes of Executive Order 12866 and has not been reviewed by the Office of Management and Budget. As required by the Regulatory Flexibility Act, TVA certifies that these regulatory amendments will not have a significant impact on small business entities. Since this rule is nonsubstantive, it is being made effective March 12, 2010.

I. Background

Throughout this document, whenever “we,” “us,” or “our” is used, we mean EPA.

On January 14, 2009, the Commonwealth of Virginia submitted a formal revision to its SIP. The SIP revision consists of a change in timing for the first phase of the Commonwealth's approved CAIR SO2trading budget. The start for the first phase of the SO2trading budget is changed from the control period in 2009 to the control period in 2010.

On October 22, 2009 (74 FR 54485), EPA published a Direct Final Rule (DFRN) to approve the January 14, 2009 SIP revision submitted by the Commonwealth of Virginia. On October 26, 2009, EPA received a comment, and on November 23, 2009 (74 FR 61037), EPA withdrew the DFRN and noted that the comment would be addressed in a final action based on the Notice of Proposed Rulemaking (NPR) published on October 22, 2009 (74 FR 54534). The comment period closed on November 23, 2009. No additional comments were received.

Comment:An anonymous commenter submitted the comment: “I am not sure about this rule.”

Response:The comment, while vaguely expressing a general uncertainty about the rule, does not identify any particular defect in the rule substance or adoption. Importantly, the comment does not oppose EPA's proposed full approval of the rule. EPA therefore believes that no additional response is necessary.

Virginia regulation 9 VAC 5-140-3400 originally required that the Commonwealth's CAIR SO2budget applied starting with the control period in 2009. However, the EPA-administered CAIR SO2trading programs under States' CAIR SIPs and under the CAIR FIP start on January 1, 2010, and the associated CAIR SO2trading budgets apply starting with the 2010 control period. To make the Virginia CAIR SO2trading program requirements consistent with the regional trading program requirements, Virginia revised regulation 9 VAC-5-140-3400 to change this date from 2009 to 2010. In the SIP revision, Virginia explains that this change corrects a technical error in its approved CAIR SIP. The SIP revision also includes a clarifying revision to the description of the State's SO2budget.

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) that are prepared independently of the assessment process; (3) that demonstrate a clear, imminent and substantial danger to the public health or environment; or (4) that 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 Section 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 languagerenders 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 Clean Air Act is likewise unaffected by this, or any, State audit privilege or immunity law.

EPA is approving the SIP revision submitted by the Commonwealth of Virginia on January 14, 2009. The SIP revision incorporates a timing change to the Commonwealth's CAIR SO2trading program that make it consistent with the regional CAIR SO2trading program, under which SO2trading budgets apply starting in 2010, as well as a clarifying revision to the description of the State's SO2budget.

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 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 Clean Air Act. 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. 3501et 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. 601et seq.);

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have Tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the State, and EPA notes that it will not impose substantial direct costs on Tribal governments or preempt Tribal law.

The Congressional Review Act, 5 U.S.C. 801et 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 theFederal Register. A major rule cannot take effect until 60 days after it is published in theFederal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 11, 2010. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action.

This action to approve a revision to Virginia's CAIR SO2Trading Program may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to:

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed underFOR FURTHER INFORMATION CONTACT.

You may access a frequently updated electronic version of 40 CFR part 180 through the Government Printing Office's e-CFR site athttp://www.gpoaccess.gov/ecfr.

Under section 408(g) of FFDCA, 21 U.S.C. 346a(g), any person may file an objection to any aspect of this regulationand may also request a hearing on those objections. The EPA procedural regulations which govern the submission of objections and requests for hearings appear in 40 CFR part 178. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2009-0127 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before May 11, 2010. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket that is described inADDRESSES. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit your copies, identified by docket ID number EPA-HQ-OPP-2009-0127, by one of the following methods:

•Federal eRulemaking Portal:http://www.regulations.gov. Follow the on-line instructions for submitting comments.

•Mail: Office of Pesticide Programs (OPP) Regulatory Public Docket (7502P), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001.

•Delivery: OPP Regulatory Public Docket (7502P), Environmental Protection Agency, Rm. S-4400, One Potomac Yard (South Bldg.), 2777 S. Crystal Dr., Arlington, VA. Deliveries are only accepted during the Docket Facility's normal hours of operation (8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays). Special arrangements should be made for deliveries of boxed information. The Docket Facility telephone number is (703) 305-5805.

In theFederal Registerof May 6, 2009 (74 FR 20946) (FRL-8411-2), EPA issued a notice pursuant to section 408(d)(3) of FFDCA, 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide tolerance petition (PP 8F7391) by Valent Biosciences Corporation, 870 Technology Way, Libertyville, IL 60048. The petition requested that 40 CFR 180.1281 be amended by establishing a permanent exemption from the requirement of a tolerance for residues of S-Abscisic Acid, (S)-5-(1-hydroxy-2,6,6-trimethyl-4-oxo-1-cyclohex-2-enyl)-3-methyl-penta-(2Z,4E)-dienoic Acid (hereafter referred to as ABA). This notice stated that a summary of the petition prepared by the petitioner Valent Biosciences Corporation could be found in the docket for this action, which is available to the public in the docket,http://www.regulations.gov. There were no substantive comments received in response to the notice of filing. Currently, there is a two-part temporary exemption from the requirement of a tolerance for residues of ABA. ABA is exempt from the requirement of a tolerance when used on grapes in accordance with Experimental Use permit 73049-EUP-4, which expires on October 1, 2010; and ABA is exempt when used on grapes, herbs and spices, leafy vegetables, pineapple, pome fruit and stone fruit in accordance with Experimental Use permit 73049-EUP-7, which expires on August 7, 2012. Valent Biosciences Corporation requested an amendment of this two-part temporary exemption to a permanent exemption in or on all food commodities.

Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the exemption is “safe.” Section 408(c)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Pursuant to section 408(c)(2)(B) of FFDCA, in establishing or maintaining in effect an exemption from the requirement of a tolerance, EPA must take into account the factors set forth in section 408(b)(2)(C) of FFDCA, which require EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .” Additionally, section 408(b)(2)(D) of FFDCA requires that the Agency consider “available information concerning the cumulative effects of a particular pesticide's residues” and “other substances that have a common mechanism of toxicity.”

EPA performs a number of analyses to determine the risks from aggregate exposure to pesticide residues. First, EPA determines the toxicity of pesticides. Second, EPA examines exposure to the pesticide through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings.

Consistent with section 408(b)(2)(D) of FFDCA, EPA has reviewed the available scientific data and other relevant information in support of this action and considered its validity, completeness, and reliability and the relationship of this information to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.

ABA is a plant regulator present in all vascular plants, algae, and some fungi. Its name derives from its purported role in abscission—the shedding of leaves, fruits, flowers, and seeds. As a plant hormone, ABA is known to be a strong actor in regulating plant growth by aiding in stress resistance, fruit set, ripening, and senescence. It is naturally present in fruits and vegetables at various levels, generally not in excess of 10 parts per million (ppm), and has always been a component of any diet containing plant materials. To date, no toxic effects to humans have been associated with the consumption of ABA in fruits and vegetables.

Summaries of the toxicological data submitted in support of this exemption from the requirement of a tolerance follows:

1.Acute toxicity. Acute toxicity studies, submitted to support the registration of the end-use product containing ABA, confirm a low toxicity profile and buttress the finding that this active ingredient poses no significant human health risk with regard to new food uses. Altogether, the acute toxicity data show virtual nontoxicity for all routes of exposure and suggest that any dietary risks associated with this naturally occurring plant regulator would be negligible.

i. The acute oral median lethal dose (LD50) in rats was greater than 5,000 milligrams per kilogram (mg/kg) and confirmed negligible toxicity through the oral route. There were no observed toxicological effects on the test subjects in the acute oral study submitted (Master Record Identification Number MRID No. 46895611). ABA is Toxicity Category IV for acute oral toxicity.

ii. The acute dermal LD50in rats was greater than 5,000 mg/kg. These data substantiated ABA's relative dermal nontoxicity to the general public (MRIDNo. 46895612). ABA is Toxicity Category IV for acute dermal toxicity.

iii. The acute inhalation median lethal concentration (LC50) was greater than 2.06 milligrams per liter (mg/L) in rats and showed no significant inhalation toxicity (MRID No. 46895613). ABA is Toxicity Category IV for acute inhalation toxicity.

iv. A skin irritation study on rabbits indicated that ABA was not irritating to the skin (MRID No. 46895615). ABA is Toxicity Category IV for dermal irritation.

v. Data indicated ABA is not a dermal sensitizer (MRID No. 46895616). Data indicate that ABA is not acutely toxic. No toxic endpoints were established, and no significant toxicological effects were observed in any of the acute toxicity studies.

2.Mutagenicity. Three mutagenicity studies, using ABA as the test substance, were performed. These studies are sufficient to confirm that there are no expected dietary or non-occupational risks of mutagenicity with regard to new food uses.

i. The Reverse Mutation Assay (MRID No. 47030901) showed that ABA did not induce mutant colonies relative to control groups.

ii. TheIn vitroMammalian Cells in Culture Assay (MRID No. 47005302) demonstrated that ABA did not damage chromosomes or the mitotic apparatus of hamster ovary cells.

iii. A Bone Marrow Micronucleus Assay (MRID No. 47005301) indicated no mutagenicity in the bone marrow cells of mice up to the limit dose of 2,000 mg/kg.

3.Subchronic toxicity. Based on its biodegradation properties, residues of ABA are not expected to result in significant dietary exposure beyond the levels expected in background dietary exposures. Nonetheless, two subchronic oral toxicity studies satisfied the data requirements for subchronic toxicity and indicated that ABA has no subchronic toxicological effect.

i. A 28-day Oral Toxicity Study (MRID No. 47470509) found no toxicological effects regarding mortality, clinical observations, neurotoxicity assessment, body weight, food consumption, hematology, clinical chemistry, organ weights, and macroscopic or microscopic observations. The no observable adverse effect level (NOAEL) was determined to be 20,000 milligrams per kilogram per day (mg/kg/day).

ii. A 90-day Oral Toxicity Study (MRID No. 47470510) found no statistical difference in hematology, clinical chemistry, or urinalysis between test subjects and the control. The NOAEL was determined to be 20,000 mg/kg/day.

4.Developmental toxicity. The data submitted to the Agency (MRID No. 47470511) demonstrate a clear lack of developmental toxicity and support the Agency's conclusion that there is no risk of developmental toxicity associated with new food uses. Data submitted to the Agency satisfy the data requirements for developmental toxicity and indicate that ABA poses negligible risk with regard to developmental toxicity.

A Prenatal Developmental Toxicity Study (MRID No. 47470512) found no significant treatment-related reproductive effects or fetal abnormalities and established a NOAEL of 1,000 mg/kg/day.

5.Effects on endocrine systems. There is no available evidence demonstrating that ABA is an endocrine disruptor in humans. As a result, the Agency is not requiring information on the endocrine effects of ABA at this time. However, the Endocrine Disruption Screening Program (EDSP) has established a protocol, which guides the Agency in selecting suspect ingredients for review, and the Agency reserves the right to require new information should the program require it. Presently, based on the lack of exposure and the negligible toxicity profile of ABA, no adverse effects to the endocrine are known or expected. Overall, the lack of evidence of endocrine disruption is consistent with ABA's low toxicity profile and supports this exemption from the requirement of a tolerance.

In examining aggregate exposure, section 408 of FFDCA directs EPA to consider available information concerning exposures from the pesticide residue in food and all other non-occupational exposures, including drinking water from ground water or surface water and exposure through pesticide use in gardens, lawns, or buildings (residential and other indoor uses).

ABA is a plant regulator present in all vascular plants, algae, and some fungi. It is naturally present in fruits and vegetables at various levels, generally not in excess of 10 ppm, and has always been a component of any diet containing plant materials. Because of the rapid degradation of ABA, the proposed preharvest uses of this active ingredient are not expected to result in dietary residues in or on food above the natural background levels. Even in a worst-case scenario, exposure to ABA residues would not be expected to exceed exposures expected in a vegetarian diet.

1.Food. Residues of ABA applied to food crops are expected to dissipate to background levels before they are distributed for consumption. Data submitted by the registrant confirm ABA's rapid dissipation through metabolization, photo-isomerization, and degradation (MRID No. 47131404). Data demonstrate that ABA residues on grape leaves are 95% degraded within 24 hours of application. Moreover, confirmatory data on the degradation of ABA on wheat leaves show a half-life ranging between 5 and 8 hours. Given ABA's preharvest application and rapid degradation, no significant residues are expected. Even in the unlikely event of dietary exposure to ABA residues, it is noted that ABA is naturally present in fruits and vegetables at various levels up to 10 ppm and has always been a component of any diet containing plant materials. No toxicological hazard has historically been associated with its consumption. In sum, while little to no dietary exposure from use of ABA as a pesticide is expected, dietary exposures would not be expected to pose any quantifiable risk, due to ABA's nontoxic profile as described in Unit III.

2.Drinking water exposure. Applications of ABA are made directly to terrestrial crops. Accordingly, no aquatic exposures are expected. While ABA residues might runoff after application, they are not expected to be able to reach surface water or to percolate through the soil to ground water because of the rapid biodegradation of ABA and the rapid metabolization of ABA by soil microbes (MRID No. 47131404). Modeling of estimated environmental concentrations (EECs) in water indicate that maximum residues in water resulting from an incidental offsite movement of ABA would not exceed the low parts per billion level - an amount that is indistinguishable from the natural level of ABA already found in our water. (Notably, the highest potential EECs in water are many orders of magnitude below the amounts that would be commonly found in a typical serving of fruit and vegetables.) In sum, the Agency concludes that any residues resulting from the application of ABA to crops are not expected to result in any significant drinking water exposure and that any incidental residues resulting from a drift or run-off event would be so negligible that they would not pose any quantifiable risk.

Non-occupational exposure is not expected because ABA is not approved for residential uses. The active ingredient is applied directly to food commodities and degrades rapidly. Furthermore, the Agency notes that health risks are not expected from any pesticidal exposure to this active ingredient, no matter the circumstances. A December 2009 Agency risk assessment of ABA clearly establishes that even prolonged and regular occupational exposures, which are associated with this active ingredient, pose negligible risks. In the event of incidental non-occupational exposure, no risks are expected due to ABA's low toxicity profile, nontoxic mode of action, and demonstrable lack of dietary effects.

1.Dermal exposure. Non-occupational dermal exposures to ABA are expected to be negligible because of its directed agricultural use. In the event of dermal exposure to residues, the nontoxic profile of ABA (as described in Unit III.) is not expected to result in any risks through this route of exposure.

2.Inhalation exposure. Non-occupational inhalation exposures are not expected to result from the agricultural uses of ABA. Any inhalation exposure associated with this new agricultural use pattern is expected to be occupational in nature.

Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.”

EPA has not found S-Abscisic Acid to share a common mechanism of toxicity with any other substances, and S-Abscisic Acid does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that S-Abscisic Acid does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's website athttp://www.epa.gov/pesticides/cumulative.

Health risks to humans, including infants and children, are considered negligible with regard to the pesticidal use of ABA. As illustrated in Unit III., acute toxicity studies indicate that ABA has negligible toxicity. Furthermore, it is ubiquitous in nature and present in all fruits and vegetables. To date, there is no history of toxicological incident involving its consumption. Of equal note, little to no exposure to the residues of ABA is expected. Pesticidal applications are applied directly to agricultural crops, and data suggest that significant residues are not expected beyond the time of harvest. Accordingly, little to no dietary exposure is expected. As such, the Agency has determined that this food use of ABA poses no foreseeable risks to human health or the environment. Thus, there is a reasonable certainty of no harm to the general U.S. population, including infants and children, from exposure to this active ingredient.

1.U.S. population. The Agency has determined that there is a reasonable certainty that no harm will result from aggregate exposure to residues of ABA to the U.S. population. This includes all anticipated dietary exposures and other non-occupational exposures for which there is reliable information. The Agency arrived at this conclusion based on the low levels of mammalian dietary toxicity associated with ABA, the natural ubiquity of ABA in foodstuffs, and information suggesting that the pesticidal use of ABA will not result in any significant exposure. For these reasons, the Agency has determined that ABA residues in and on all food commodities will be safe, and that there is a reasonable certainty that no harm will result from aggregate exposure to residues of ABA.

2.Infants and children. Section 408(b)(2)(C) of FFDCA provides that EPA shall assess the available information about consumption patterns among infants and children, special susceptibility of infants and children to pesticide chemical residues, and the cumulative effects on infants and children of the residues and other substances with a common mechanism of toxicity. In addition, section 408(b)(2)(C) of FFDCA provides that EPA shall apply an additional tenfold margin of exposure (safety) for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database unless the EPA determines that a different margin of exposure (safety) will be safe for infants and children. Margins of exposure (safety), which are often referred to as uncertainty factors, are incorporated into EPA risk assessments either directly or through the use of a margin of exposure analysis, or by using uncertainty (safety) factors in calculating a dose level that poses no appreciable risk. Based on all the information evaluated for ABA, the Agency concludes that there are no threshold effects of concern and, as a result, the provision requiring an additional margin of safety does not apply. Further, the considerations of consumption patterns, special susceptibility, and cumulative effects do not apply to pesticides, such as ABA, without a demonstrated significant adverse effect.

Through this action, the Agency proposes an exemption from the requirement of a tolerance of ABA when used on all food commodities without any numerical limitations for residues. EPA has determined that residues resulting from the pesticidal uses of ABA would be so low as to be virtually indistinguishable from natural background levels. As a result, the Agency has concluded that an analytical method is not required for enforcement purposes for ABA.

There are no codex maximum residue levels established for residues of ABA.

Based on the data submitted to support this tolerance exemption, and other information available to the Agency, EPA is amending the current temporary exemption from the tolerance requirements, pursuant to section 408(c) of FFDCA, to be a permanent exemption from the requirement for a tolerance for residues of ABA in or on all food commodities when applied pre-harvest as a plant regulator.

This final rule establishes a tolerance under section 408(d) of FFDCA in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitledRegulatory Planning and Review(58 FR 51735, October 4, 1993). Because this final rule has been exempted from review under Executive Order 12866, this final rule is not subject to Executive Order 13211, entitledActions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use(66 FR 28355, May 22, 2001) or Executive Order 13045, entitledProtection of Children from Environmental Health Risks and SafetyRisks(62 FR 19885, April 23, 1997). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501et seq., nor does it require any special considerations under Executive Order 12898, entitledFederal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations(59 FR 7629, February 16, 1994).

Since tolerances and exemptions that are established on the basis of a petition under section 408(d) of FFDCA, such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601et seq.) do not apply.

This final rule directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of section 408(n)(4) of FFDCA. As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitledFederalism(64 FR 43255, August 10, 1999) and Executive Order 13175, entitledConsultation and Coordination with Indian Tribal Governments(65 FR 67249, November 9, 2000) do not apply to this final rule. In addition, this final rule does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4).

This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note).

The Congressional Review Act, 5 U.S.C. 801et seq., generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of this final rule in theFederal Register. This final rule is not a “major rule” as defined by 5 U.S.C. 804(2).

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

The modified BFEs are not listed for each community in this notice. However, this final rule includes the address of the Chief Executive Officer of the community where the modified BFE determinations are available for inspection.

The modified BFEs are made pursuant to section 206 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001et seq.,and with 44 CFR part 65.

For rating purposes, the currently effective community number is shown and must be used for all new policies and renewals.

The modified BFEs are the basis for the floodplain management measures that the community is required either to adopt or to show evidence of being already in effect in order to qualify or to remain qualified for participation in the National Flood Insurance Program (NFIP).

These modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities.

These modified BFEs also are used to meet the floodplain managementrequirements of the NFIP and are also used to calculate the appropriate flood insurance premium rates for new buildings built after these elevations are made final, and for the contents in these buildings. The changes in BFEs are in accordance with 44 CFR 65.4.

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

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

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

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

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

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

The B season allowance of the 2010 TAC of pollock in Statistical Area 630 of the GOA is 2,891 metric tons (mt) as established by the final 2009 and 2010 harvest specifications for groundfish of the GOA (74 FR 7333, February 1, 2009) and inseason adjustment (74 FR 68713, December 29, 2009).

In accordance with § 679.20(d)(1)(i), the Regional Administrator has determined that the B season allowance of the 2010 TAC of pollock in Statistical Area 630 of the GOA will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 2,841 mt, and is setting aside the remaining 50 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for pollock in Statistical Area 630 of the GOA.

After the effective date of this closure the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of pollock in Statistical Area 630 of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of March 8, 2010.

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

This action is required by § 679.20 and is exempt from review under Executive Order 12866.

NMFS manages the GOA groundfish fisheries in the exclusive economic zone (EEZ) of the GOA under the FMP. The Council prepared the FMP under the authority of the Magnuson-Stevens Act, 16 U.S.C. 1801et seq.Regulations governing U.S.fisheries and implementing the FMP appear at 50 CFR parts 600, 679, and 680.

The FMP and its implementing regulations require NMFS, after consultation with the Council, to specify the total allowable catch (TAC) for each target species and for the “other species” category, the sum of which must be within the optimum yield (OY) range of 116,000 to 800,000 metric tons (mt). Section 679.20(c)(1) further requires NMFS to publish and solicit public comment on proposed annual TACs, halibut prohibited species catch (PSC) amounts, and seasonal allowances of pollock and inshore/offshore Pacific cod. Upon consideration of public comment received under § 679.20(c)(1), NMFS must publish notice of final specifications for up to two fishing years as annual target and “other species” TAC, per § 679.20(c)(3)(ii). The final specifications set forth in Tables 1 through 28 of this document reflect the outcome of this process, as required at 679.20(c).

The proposed 2010 and 2011 harvest specifications for groundfish of the GOA and Pacific halibut PSC allowances were published in theFederal Registeron November 30, 2009 (74 FR 62533). Comments were invited and accepted through December 30, 2009. NMFS received three letters of comment on the proposed specifications. The comments are summarized in the Response to Comments section of this action. In December 2009, NMFS consulted with the Council regarding the 2010 and 2011 harvest specifications. After considering public comments received, as well as biological and economic data that were available at the Council's December 2009 meeting, NMFS is implementing the final 2010 and 2011 harvest specifications, as recommended by the Council. For 2010, the sum of the TAC amounts is 292,087 mt. For 2011, the sum of the TAC amounts is 328,464 mt.

In December 2009, the Council, its Advisory Panel (AP), and its Scientific and Statistical Committee (SSC), reviewed current biological and harvest information about the condition of groundfish stocks in the GOA. This information was compiled by the Council's GOA Plan Team and was presented in the final 2009 SAFE report for the GOA groundfish fisheries, dated November 2009 (seeADDRESSES). The SAFE report contains a review of the latest scientific analyses and estimates of each species' biomass and other biological parameters, as well as summaries of the available information on the GOA ecosystem and the economic condition of the groundfish fisheries off Alaska. From these data and analyses, the Plan Team estimates an ABC for each species or species category.

The final ABCs and TACs are based on the best available biological and socioeconomic information, including projected biomass trends, information on assumed distribution of stock biomass, and revised methods used to calculate stock biomass. The FMP specifies the formulas, or tiers, to be used to compute ABCs and overfishing levels (OFLs). The formulas applicable to a particular stock or stock complex are determined by the level of reliable information available to fisheries scientists. This information is categorized into a successive series of six tiers to define OFL and ABC amounts, with tier one representing the highest level of information quality available and tier six representing the lowest level of information quality available. The SSC adopted the final 2010 and 2011 OFLs and ABCs recommended by the Plan Team for all groundfish species.

The final TAC recommendations were based on the ABCs as adjusted for other biological and socioeconomic considerations, including maintaining the sum of all TACs within the required OY range of 116,000 to 800,000 mt. The Council adopted the SSC's OFL and ABC recommendations and the AP's TAC recommendations. The Council recommended TACs for 2010 and 2011 that are equal to ABCs for pollock, deep-water flatfish, rex sole, sablefish, Pacific ocean perch, shortraker rockfish, rougheye rockfish, northern rockfish, pelagic shelf rockfish, thornyhead rockfish, demersal shelf rockfish, big skate, longnose skate, and other skates. The Council recommended TACs for 2010 and 2011 that are less than the ABCs for Pacific cod, flathead sole, shallow-water flatfish, arrowtooth flounder, other rockfish, Atka mackerel, and “other species.” None of the Council's recommended TACs for 2010 and 2011 exceed the final ABC for any species or species category. The 2010 and 2011 harvest specifications approved by the Secretary of Commerce (Secretary) are unchanged from those recommended by the Council and are consistent with the preferred harvest strategy alternative in the EIS (seeADDRESSES). NMFS finds that the Council's recommended OFLs, ABCs, and TACs are consistent with the biological condition of the groundfish stocks as described in the 2009 SAFE report and approved by the Council. NMFS also finds that the Council's recommendations for OFLs, ABCs, and TACs are consistent with the biological condition of groundfish stocks as adjusted for other biological and socioeconomic considerations, including maintaining the total TAC within the OY range. NMFS reviewed the Council's recommended TAC specifications and apportionments and approves these specifications under 50 CFR 679.20(c)(3)(ii). The apportionment of TAC amounts among gear types, processing sectors, and seasons is discussed below.

Tables 1 and 2 list the final 2010 and 2011 OFLs, ABCs, TACs, and area apportionments of groundfish in the GOA. The sums of the 2010 and 2011 ABCs are 565,499 mt and 605,086 mt, respectively, which are higher in 2010 and 2011 than the 2009 ABC sum of 516,055 mt (74 FR 7333, February 17, 2009).

As in prior years, the SSC and Council recommended that the method of apportioning the sablefish ABC among management areas in 2010 and 2011 include commercial fishery and survey data. NMFS stock assessment scientists believe the use of unbiased commercial fishery data reflecting catch-per-unit-effort provides rational input for stock distribution assessments. NMFS annually evaluates the use of commercial fishery data to ensure unbiased information is included in stock distribution models. The Council's recommendation for sablefish area apportionments also takes into account the prohibition on the use of trawl gear in the Southeast Outside (SEO) District of the Eastern Regulatory Area and makes available five percent of the combined Eastern Regulatory Area ABCs to trawl gear for use as incidental catch in other directed groundfish fisheries in the West Yakutat (WYK) District (§ 679.20(a)(4)(i)).

Since the inception of a State of Alaska (State) managed pollock fishery in Prince William Sound (PWS), the GOA Plan Team has recommended the guideline harvest level (GHL) for the pollock fishery in PWS be deducted from the ABC for the western stock of pollock in the GOA in the Western/Central/West Yakutat (W/C/WYK) Area. For the 2010 and 2011 pollock fisheries in PWS, the State's GHL is 1,650 mt.

The apportionment of annual pollock TAC among the Western and Central Regulatory Areas of the GOA reflects the seasonal biomass distribution and is discussed in greater detail below. The annual pollock TAC in the Western and Central Regulatory Areas of the GOA isapportioned among Statistical Areas 610, 620, and 630, as well as equally among each of the following four seasons: The A season (January 20 through March 10), the B season (March 10 through May 31), the C season (August 25 through October 1), and the D season (October 1 through November 1) (50 CFR 679.23(d)(2)(i) through (iv) and 679.20(a)(5)(iv)(A), (B)).

The SSC, AP, and Council recommended apportionment of the ABC for Pacific cod in the GOA among regulatory areas based on the three most recent NMFS summer trawl surveys. The 2010 and 2011 Pacific cod TACs are affected by the State's fishery for Pacific cod in State waters in the Central and Western Regulatory Areas, as well as in PWS. The Plan Team, SSC, AP, and Council recommended that the sum of all State and Federal water Pacific cod removals from the GOA not exceed ABC recommendations. Accordingly, the Council recommended reducing the 2010 and 2011 Pacific cod TACs from the ABCs in the Central and Western Regulatory Areas to account for State GHLs. Therefore, the 2010 Pacific cod TACs are less than the ABCs by the following amounts: (1) Eastern GOA, 356 mt; (2) Central GOA, 12,260 mt; and (3) Western GOA, 6,921 mt. The 2011 Pacific cod TACs are less than the ABCs by the following amounts: (1) Eastern GOA, 441 mt; (2) Central GOA, 15,174 mt; and (3) Western GOA, 8,566 mt. These amounts reflect the sum of the State's 2010 and 2011 GHLs in these areas, which are 15 percent, 25 percent, and 25 percent of the Eastern, Central, and Western GOA ABCs, respectively. The percentage of the ABC used to calculate the 2010 and 2011 GHL for the State-managed Pacific cod fishery in PWS fisheries has been increased from 10 percent in 2009 to 15 percent of the Eastern GOA ABC in 2010 and 2011.

NMFS establishes seasonal apportionments of the annual Pacific cod TAC in the Western and Central Regulatory Areas. Sixty percent of the annual TAC is apportioned to the A season for hook-and-line, pot, and jig gear from January 1 through June 10, and for trawl gear from January 20 through June 10. Forty percent of the annual TAC is apportioned to the B season for hook-and-line, pot, and jig gear from September 1 through December 31, and for trawl gear from September 1 through November 1 (§§ 679.23(d)(3) and 679.20(a)(12)).

NMFS establishes—for 2010 and 2011—an A season directed fishing allowance (DFA) for the Pacific cod fisheries in the GOA based on the management area TACs minus the recent average A season incidental catch of Pacific cod in each management area before June 10 (§ 679.20(d)(1)). The DFA and incidental catch before June 10 will be managed such that total harvest in the A season will be no more than 60 percent of the annual TAC. Incidental catch taken after June 10 will continue to accrue against the B season TAC. This action meets the intent of the Steller sea lion protection measures by achieving temporal dispersion of the Pacific cod removals and by reducing the likelihood of harvest exceeding 60 percent of the annual TAC in the A season.

The Council is developing an amendment to the FMP to comply with Magnuson-Stevens Act requirements associated with annual catch limits and accountability measures. That amendment may result in revisions to how total annual groundfish mortality is estimated and accounted for in the annual SAFE reports, which in turn may affect the OFLs and ABCs for certain groundfish species. NMFS will attempt to identify additional sources of mortality to groundfish stocks not currently reported or considered by the groundfish stock assessments in recommending OFL, ABC, and TAC for certain groundfish species. These changes would not be in effect until 2011, and could affect the 2011 OFLs, ABCs, and TACs contained in this action.

In October 2008, the Council adopted Amendment 34 to the Fishery Management Plan for Bering Sea/Aleutian Islands King and Tanner Crabs. Amendment 34 would amend the Bering Sea and Aleutian Islands Crab Rationalization Program (Crab Rationalization Program) to exempt additional fishery participants from harvest limits, called sideboards, which apply to some vessels and license limitation program (LLP) licenses that are used to participate in GOA Pacific cod and pollock fisheries. These particular sideboards are discussed under the subsequent section titled “Non-AFA Crab Vessel Groundfish Harvest Limitations.” Tables 19 and 20 specify the 2010 and 2011 sideboard amounts. If the Secretary approves Amendment 34, NMFS would revise the sideboard amounts specified in Tables 19 and 20.

In October 2009, the Council's recommendations for the proposed 2010 and 2011 harvest specifications (74 FR 62533, November 30, 2009) were based largely upon information contained in the final 2008 SAFE report for the GOA groundfish fisheries, dated November 2008 (seeADDRESSES). The Council proposed that the OFLs, ABCs, and TACs established for the groundfish fisheries in 2009 (74 FR 7333, February 17, 2009, see Table 2) be rolled over to 2010 and 2011, pending completion and review of the 2009 SAFE report at its December 2009 meeting.

The 2009 SAFE report, which was not available when the Council made its recommendations in October 2009, contains the best and most recent scientific information on the condition of the groundfish stocks. The Council considered this report in December 2009 when it made recommendations for the final 2010 and 2011 harvest specifications. The Council's final 2010 and 2011 TAC recommendations increase fishing opportunities for species for which the Council had sufficient information to raise TAC levels. Conversely, the Council reduced TAC levels to provide greater protection for some species. Based on the final 2009 SAFE report, the sum of the 2010 final TACs for the GOA (292,087 mt) is 7,399 mt higher than the sum of the proposed 2010 TACs (284,688 mt). The largest 2010 increases occurred for pollock, from 74,330 mt to 84,745 mt (14 percent increase); for rex sole, from 8,827 mt to 9,729 mt (10 percent increase); for Pacific ocean perch, from 15,098 mt to 17,584 mt (16 percent increase); for northern rockfish, from 4,173 mt to 5,098 mt (22 percent increase); and for pelagic shelf rockfish, from 4,465 mt to 5,059 mt (13 percent increase). The largest decreases occurred for deep-water flatfish, from 9,793 mt to 6,190 mt (37 percent decrease); for shallow-water flatfish, from 22,256 mt to 20,062 mt (10 percent decrease); for flathead sole, from 11,289 mt to 10,441 mt (8 percent decrease); for other rockfish, from 1,730 mt to 1,192 mt (31 percent decrease); for thornyhead rockfish, from 1,910 mt to 1,770 mt (7 percent decrease); and for demersal shelf rockfish, from 362 mt to 295 mt (18 percent decrease). The sum of the final 2011 TACs for the GOA (328,464 mt) is 43,776 mt higher than the sum of the proposed 2011 TACs (284,688 mt). The largest 2011 increases occurred for pollock, Pacific cod, rex sole, Pacific ocean perch, northern rockfish, and pelagic shelf rockfish. Concurrently, decreases occurred for sablefish, deep-water flatfish, shallow-water flatfish, flathead sole, other rockfish, demersal shelf rockfish, and thornyhead rockfish. Other increases or decreases in 2010 and 2011 are within 2 percent of the proposed specifications.

The changes in the final rule from the proposed rule are based on the most recent scientific information and implement the harvest strategy described in the proposed rule for the harvest specifications. Tables 1 and 2 list the 2010 and 2011, respectively, final OFL, ABC, and TAC amounts for GOA groundfish.

Section 679.20(b)(2) requires 20 percent of each TAC for pollock, Pacific cod, flatfish, and the “other species” category be set aside in reserves for possible apportionment at a later date during the fishing year. In 2009, NMFS reapportioned all the reserves in the final harvest specifications. For 2010 and 2011, NMFS proposed reapportionment of all the reserves in the proposed 2010 and 2011 harvest specifications published in theFederal Registeron November 30, 2009 (74 FR 62533). NMFS received no public comments on the proposed reapportionments. For the final 2010 and 2011 harvest specifications, NMFS reapportioned, as proposed, all the reserves for pollock, Pacific cod, flatfish, and “other species.” Specifications of TAC shown in Tables 1 and 2 reflect reapportionment of reserve amounts for these species and species groups.

Section 679.20(a)(4)(i) and (ii) require allocations of sablefish TACs for each of the regulatory areas and districts to hook-and-line and trawl gear. In the Western and Central Regulatory Areas, 80 percent of each TAC is allocated to hook-and-line gear, and 20 percent of each TAC is allocated to trawl gear. In the Eastern Regulatory Area, 95 percent of the TAC is allocated to hook-and-line gear, and five percent is allocated to trawl gear. The trawl gear allocation in the Eastern Regulatory Area may only be used to support incidental catch of sablefish in directed fisheries for other target species (§ 679.20(a)(1)). In recognition of the trawl ban in the SEO District of the Eastern Regulatory Area, the Council recommended (and NMFS concurs with) the allocation of five percent of the combined Eastern Regulatory Area sablefish TAC to trawl gear in the WYK District and the remainder of the WYK sablefish TAC be available to vessels using hook-and-line gear. As a result, NMFS allocates 100 percent of the sablefish TAC in the SEO District to vessels using hook-and-line gear. This recommendation results in an allocation of 210 mt to trawl gear and 1,410 mt to hook-and-line gear in the WYK District in 2010, an allocation of 2,580 mt to hook-and-line gear in the SEO District in 2010, and 189 mt to trawl gear in the WYK District in 2011. Table 3 lists the allocations of the 2010 sablefish TACs to hook-and-line and trawl gear. Table 4 lists the allocations of the 2011 sablefish TACs to trawl gear.

The Council recommended that the hook-and-line sablefish TAC be established annually to ensure that the Individual Fishery Quota (IFQ) fishery is conducted concurrent with the halibut IFQ fishery and is based on the most recent survey information. The Council also recommended that only atrawl sablefish TAC be established for two years so that retention of incidental catch of sablefish by trawl gear could commence in January in the second year of the groundfish harvest specifications. However, since there is an annual assessment for sablefish and the final harvest specifications are expected to be published before the IFQ season begins (typically, early March), the industry and Council recommended that the sablefish TAC be set on an annual basis so that the best and most recent scientific information could be considered in recommending the ABCs and TACs. Since sablefish is on bycatch status for trawl gear during the entire fishing year, and given that fishing for groundfish is prohibited prior to January 20, it is not likely that the sablefish allocation to trawl gear would be reached before the effective date of the final harvest specifications.

In the GOA, pollock is apportioned by season and area, and is further allocated for processing by inshore and offshore components. Pursuant to § 679.20(a)(5)(iv)(B), the annual pollock TAC specified for the Western and Central Regulatory Areas of the GOA is apportioned into four equal seasonal allowances of 25 percent. As established by § 679.23(d)(2)(i) through (iv), the A, B, C, and D season allowances are available from January 20 to March 10, March 10 to May 31, August 25 to October 1, and October 1 to November 1, respectively.

Pollock TACs in the Western and Central Regulatory Areas of the GOA are apportioned among Statistical Areas 610, 620, and 630, pursuant to § 679.20(a)(5)(iv)(A). In the A and B seasons, the apportionments are in proportion to the distribution of pollock biomass based on the four most recent NMFS winter surveys. In the C and D seasons, the apportionments are in proportion to the distribution of pollock biomass based on the four most recent NMFS summer surveys. For 2010 and 2011, the Council recommends, and NMFS approves, averaging the winter and summer distribution of pollock in the Central Regulatory Area for the A season. The average is intended to reflect the distribution of pollock and the performance of the fishery in the area during the A season for the 2010 and 2011 fishing years. Within any fishing year, the amount by which a seasonal allowance is under- or overharvested may be added to, or subtracted from, subsequent seasonal allowances in a manner to be determined by the Regional Administrator (§ 679.20(a)(5)(iv)(B)). The rollover amount of unharvested pollock is limited to 20 percent of the seasonal apportionment for the statistical area. Any unharvested pollock above the 20-percent limit could be further distributed to the other statistical areas, in proportion to the estimated biomass in the subsequent season in those statistical areas (§ 679.20(a)(5)(iv)(B)). The pollock TACs in the WYK and SEO District of 2,031 mt and 9,245 mt, respectively, in 2010, and 2,686 mt and 9,245 mt, respectively, in 2011, are not allocated by season.

Section 679.20(a)(6)(i) requires the allocation of 100 percent of the pollock TAC in all regulatory areas and all seasonal allowances to vessels catching pollock for processing by the inshore component after subtraction of amounts projected by the Regional Administrator to be caught by, or delivered to, the offshore component incidental to directed fishing for other groundfish species. Thus, the amount of pollock available for harvest by vessels harvesting pollock for processing by the offshore component is that amount that will be taken as incidental catch during directed fishing for groundfish species other than pollock, up to the maximum retainable amounts allowed by § 679.20(e) and (f). At this time, these incidental catch amounts of pollock are unknown and will be determined during the fishing year.

Tables 5 and 6 list the seasonal biomass distribution of pollock in theWestern and Central Regulatory Areas, area apportionments, and seasonal allowances. The amounts of pollock for processing by the inshore and offshore components are not shown.

Pacific cod fishing is divided into two seasons in the Western and Central Regulatory Areas of the GOA. For hook-and-line, pot, and jig gear, the A season is January 1 through June 10, and the B season is September 1 through December 31. For trawl gear, the A season is January 20 through June 10, and the B season is September 1 through November 1 (§ 679.23(d)(3)(i)). After subtraction of incidental catch from the A season, 60 percent of the annual TAC will be available as a DFA during the A season for the inshore and offshore components. The remaining 40 percent of the annual TAC will be available for harvest during the B season. Under § 679.20(a)(12)(ii), any overage or underage of the Pacific cod allowance from the A season may be subtracted from or added to the subsequent B season allowance.

Section 679.20(a)(6)(ii) requires allocation of the TAC apportionments of Pacific cod in all regulatory areas to vessels catching Pacific cod for processing by the inshore and offshore components. Ninety percent of the Pacific cod TAC in each regulatory area is allocated to vessels catching Pacific cod for processing by the inshore component. The remaining 10 percent of the TAC is allocated to vessels catching Pacific cod for processing by the offshore component. Tables 7 and 8 list the seasonal apportionments and allocations of the final 2010 and 2011 Pacific cod TACs, respectively.

The recommended 2010 and 2011 DSR TAC is 295 mt. In 2006, the Alaska Board of Fish (BOF) allocated the SEO District DSR TAC between the commercial fishery (84 percent) and the sportfish fishery (16 percent). This results in 2010 and 2011 allocations of 248 mt to the commercial fishery and 47 mt to the sportfish fishery. Alaska Department of Fish and Game (ADF&G) deducts estimates of incidental catch of DSR in the commercial halibut fishery from the DSR commercial fishery allocation. In 2009, this resulted in 115 mt being available for the directed commercial DSR fishery apportioned between four outer coast areas. Only two of these areas had GHLs large enough to support directed fisheries, totaling 78 mt. Of this amount, 76 mt were harvested in directed fisheries. DSR harvest in the halibut fishery is linked to the halibut quota; therefore the ADF&G cannot estimate potential DSR incidental catch in that fishery until those quotas are established. Federally permitted catcher vessels using hook-and-line or jig gear fishing for groundfish and Pacific halibut in the SEO District of the GOA are required Full retention of all DSR (§ 679.20(j)). The ADF&G announced the opening of directed fishing for DSR in January following the International Pacific Halibut Commission's (IPHC) annual January meeting.

Section 679.81(a)(1) and (2) require the allocation of the primary rockfish species TACs in the Central Regulatory Area, after deducting incidental catch needs in other directed groundfish fisheries, to participants in the Rockfish Program. Five percent (2.5 percent to trawl gear and 2.5 percent to fixed gear) of the final TACs for Pacific ocean perch, northern rockfish, and pelagic shelf rockfish in the Central Regulatory Area are allocated to the entry-level rockfish fishery; the remaining 95 percent are allocated to those vessels eligible to participate in the Rockfish Program. NMFS is setting aside—in 2010 and 2011—incidental catch amounts (ICAs) of 500 mt of Pacific ocean perch, 100 mt of northern rockfish, and 100 mt of pelagic shelf rockfish for other directed fisheries in the Central Regulatory Area. These amounts are based on recent average incidental catch in the Central Regulatory Area by these other groundfish fisheries.

Section 679.83(a)(1)(i) requires that allocations to the trawl entry-level fishery must be made first from the allocation of Pacific ocean perch available to the rockfish entry-level fishery. If the amount of Pacific ocean perch available for allocation is less than the total allocation allowable for trawl catcher vessels in the rockfish entry-level fishery, then northern rockfish and pelagic shelf rockfish must be allocated to trawl catcher vessels. Allocations of Pacific ocean perch, northern rockfish, and pelagic shelf rockfish to longline gear vessels must be made after the allocations to trawl gear.

Tables 9 and 10 list the final 2010 and 2011 allocations of rockfish in the Central GOA to trawl and longline gear in the entry-level rockfish fishery, respectively. Allocations of primary rockfish species TACs among participants in the Rockfish Program are not included in the final harvest specifications because applications for catcher/processor and catcher vessel cooperatives are due to NMFS on March 1 of each calendar year, thereby preventing NMFS from calculating final 2010 allocations. NMFS will post these allocations on the Alaska Region Web site (http://alaskafisheries.noaa.gov/sustainablefisheries/goarat/default.htm)when they become available in March 2010.

Section 679.21(d) establishes the annual halibut PSC limit apportionments to trawl and hook-and-line gear and permits the establishment of apportionments for pot gear. In December 2009, the Council recommended that NMFS maintain the 2009 halibut PSC limits of 2,000 mt for the trawl fisheries and 300 mt for the hook-and-line fisheries. Ten mt of the hook-and-line limit is further allocated to the DSR fishery in the SEO District. The DSR fishery is defined at § 679.21(d)(4)(iii)(A). This fishery has been apportioned 10 mt in recognition of its small-scale harvests. Most vessels in the DSR fishery are less than 60 ft (18.3 m) length overall (LOA) and are exempt from observer coverage. Therefore, observer data are not available to verify actual bycatch amounts. NMFS assumes the halibut bycatch in the DSR fishery is low because of the short soak times for the gear and duration of the DSR fishery. Also, the DSR fishery occurs in the winter when less overlap occurs in the distribution of DSR and halibut. Finally, much of the DSR TAC is not available to the directed DSR commercial fishery. ADF&G sets the GHLs after estimates of incidental catch in all fisheries (including halibut and subsistence) and allocation to the sportfish fishery have been deducted. Of the 362 mt TAC for DSR in 2009, 115 mt was available for the commercial fishery, of which 76 mt were harvested.

The FMP authorizes the Council to exempt specific gear from the halibut PSC limits. NMFS, after consultation with the Council, exempts pot gear, jig gear, and the sablefish IFQ hook-and-line gear fishery from the non-trawl halibut limit for 2010 and 2011. The Council recommended these exemptions because (1) the pot gear fisheries have low annual halibut bycatch mortality (averaging 18 mt annually from 2001 through 2009); (2) IFQ program regulations prohibit discard of halibut if any halibut IFQ permit holder on board a catcher vessel holds unused halibut IFQ (§ 679.7(f)(11)). Sablefish IFQ fishermen typically also hold halibut IFQ permits, so are required to retain the halibut they catch while fishing sablefish IFQ; and (3) halibut mortality for the jig gear fisheries is assumed to be negligible. Halibut mortality is assumed to be negligible in the jig gear fisheries given the small amount of groundfish harvested by jig gear (averaging 258 mt annually from 2001 through 2009), the selective nature of jig gear, and the high survival rates of halibut caught and released with jig gear.

Section 679.21(d)(5) authorizes NMFS to seasonally apportion the halibut PSC limits after consultation with the Council. The FMP and regulations require the Council and NMFS to consider the following information in seasonally apportioning halibut PSC limits: (1) Seasonal distribution of halibut; (2) seasonal distribution of target groundfish species relative to halibut distribution; (3) expected halibut bycatch needs on a seasonal basis relative to changes in halibut biomass and expected catch of target groundfish species; (4) expected bycatch rates on a seasonal basis; (5) expected changes in directed groundfish fishing seasons; (6) expected actual start of fishing effort; and (7) economic effects of establishing seasonal halibut allocations on segments of the target groundfish industry. The information to establish the halibut PSC limits was obtained from the 2009 SAFE report, NMFS, ADF&G, the IPHC, and public testimony.

NMFS concurs in the Council's recommendations listed in Table 11, which shows the final 2010 and 2011 Pacific halibut PSC limits, allowances, and apportionments. Sections 679.21(d)(5)(iii) and (iv) specify that any underages or overages of a seasonal apportionment of a PSC limit will be deducted from or added to the next respective seasonal apportionment within the fishing year.

Section 679.21(d)(3)(ii) authorizes further apportionment of the trawl halibut PSC limit to trawl fishery categories. The annual apportionments are based on each category's proportional share of the anticipated halibut bycatch mortality during the fishing year and optimization of the total amount of groundfish harvest under the halibut PSC limit. The fishery categories for the trawl halibut PSC limits are (1) a deep-water species category, comprised of sablefish, rockfish, deep-water flatfish, rex sole, and arrowtooth flounder; and (2) a shallow-water species category, comprised of pollock, Pacific cod, shallow-water flatfish, flathead sole, Atka mackerel, skates, and “other species” (§ 679.21(d)(3)(iii)). Table 12 lists the final 2010 and 2011 apportionments of Pacific halibut PSC trawl limits between the trawl gear deep-water and the shallow-water species categories.

The best available information on estimated halibut bycatch is data collected by observers during 2009. The calculated halibut bycatch mortality by trawl, hook-and-line, and pot gears through December 31, 2009, is 1,817 mt, 277 mt, and 7 mt, respectively, for a total halibut mortality of 2,101 mt. This mortality was calculated using groundfish and halibut catch data from the NMFS, Alaska Region's catch accounting system. This system contains historical and recent catch information compiled from each Alaska groundfish fishery.

Halibut bycatch restrictions seasonally constrained trawl gear fisheries during the 2009 fishing year. Table 13 displays the closure dates for fisheries that resulted from the attainment of seasonal or annual halibut PSC limits. NMFS does not know amount of groundfish that trawl gear might have harvested if halibut PSC limits had not restricted some 2009 GOA groundfish fisheries.

Federal regulations at 50 CFR part 679 implement the FMP and govern the groundfish fisheries in the BSAI. The North Pacific Fishery Management Council (Council) prepared the FMP, and NMFS approved it under the Magnuson-Stevens Act. General regulations governing U.S. fisheries also appear at 50 CFR part 600.

The FMP and its implementing regulations require NMFS, after consultation with the Council, to specify the total allowable catch (TAC) for each target species and for the “other species” category; the sum must be within the optimum yield (OY) range of 1.4 million to 2.0 million metric tons (mt) (see§ 679.20(a)(1)(i)). NMFS also must specify apportionments of TACs, prohibited species catch (PSC) allowances, and prohibited species quota (PSQ) reserves established by § 679.21, seasonal allowances of pollock, Pacific cod, and Atka mackerel TAC; Amendment 80 allocations, and Community Development Quota (CDQ) reserve amounts established by § 679.20(b)(1)(ii). The final harvest specifications set forth in Tables 1 through 16 of this action satisfy these requirements. The sum of TACs is 1,677,154 mt for 2010 and is 1,996,558 mt for 2011.

Section 679.20(c)(3)(i) further requires NMFS to consider public comment on the proposed annual TACs (and apportionments thereof) and PSC allowances, and to publish final harvest specifications in theFederal Register.The proposed 2010 and 2011 harvest specifications and PSC allowances for the groundfish fishery of the BSAI were published in theFederal Registeron December 2, 2009 (74 FR 63100). Comments were invited and accepted through January 4, 2010. NMFS received two letters with four comments on the proposed harvest specifications. These comments are summarized and responded to in the “Response to Comments” section of this rule. NMFS consulted with the Council on the final 2010 and 2011 harvest specifications during the December 2009 Council meeting in Anchorage, AK. After considering public comments, as well as biological and economic data that were available at the Council's December meeting, NMFS is implementing the final 2010 and 2011 harvest specifications as recommended by the Council.

The final ABC levels are based on the best available biological and socioeconomic information, including projected biomass trends, information on assumed distribution of stock biomass, and revised technical methods used to calculate stock biomass. In general, the development of ABCs and overfishing levels (OFLs) involves sophisticated statistical analyses of fish populations. The FMP specifies a series of six tiers to define OFL and ABC amounts based on the level of reliable information available to fishery scientists. Tier one represents the highest level of information quality available while tier six represents the lowest.

In December 2009, the Scientific and Statistical Committee (SSC), Advisory Panel (AP), and Council reviewed current biological information about the condition of the BSAI groundfish stocks. The Council's Plan Team compiled and presented this information in the 2009 SAFE report for the BSAI groundfish fisheries, dated November 2009. The SAFE report contains a review of the latest scientific analyses and estimates of each species' biomass and other biological parameters, as well as summaries of the available information on the BSAI ecosystem and the economic condition of groundfish fisheries off Alaska. The SAFE report is available for public review (see ADDRESSES). From these data and analyses, the Plan Team estimates an OFL and ABC for each species or species category.

In December 2009, the SSC, AP, and Council reviewed the Plan Team's recommendations. The SSC concurred with the Plan Team's recommendations, and the Council adopted the OFL and ABC amounts recommended by the SSC (Table 1). The final TAC recommendations were based on the ABCs as adjusted for other biologicaland socioeconomic considerations, including maintaining the sum of the TACs within the required OY range of 1.4 million to 2.0 million mt. The Council adopted the AP's 2010 and 2011 TAC recommendations. None of the Council's recommended TACs for 2010 or 2011 exceeds the final 2010 or 2011 ABCs for any species category. The final 2010 and 2011 harvest specifications approved by the Secretary are unchanged from those recommended by the Council and are consistent with the preferred harvest strategy alternative in the EIS (see ADDRESSES). NMFS finds that the Council's recommended OFLs, ABCs, and TACs are consistent with the biological condition of groundfish stocks as described in the 2009 SAFE report that was approved by the Council.

The Council is developing an amendment to the FMP to comply with Magnuson-Stevens Act requirements associated with annual catch limits and accountability measures. That amendment may result in revisions to how total annual groundfish mortality is estimated and accounted for in the annual SAFE reports, which in turn may affect the OFL, ABC, and TAC for certain groundfish species. NMFS will attempt to identify additional sources of mortality to groundfish stocks not currently reported or considered by the groundfish stock assessments in recommending OFL, ABC, and TAC for certain groundfish species. These additional sources of mortality may include recreational fishing, subsistence fishing, catch of groundfish during the NMFS trawl and hook-and-line surveys, catch taken under experimental fishing permits issued by NMFS, discarded catch of groundfish in the commercial halibut fisheries, use of groundfish as bait in the crab fisheries, or other sources of mortality not yet identified.

At its October 2009 meeting, the Council approved Amendment 95 to the FMP. This amendment would separate skates from the “other species” category so that individual OFLs, ABCs, and TACs may be established for skates. If the Secretary approves the amendment then the change would be in effect for the 2011 fishing year.

At its April 2009 meeting, the Council adopted Amendment 91 to the FMP. This amendment would establish new measures to minimize Chinook salmon bycatch in the Bering Sea pollock fisheries, including new Chinook salmon PSC limits that, when reached, would prohibit directed fishing for pollock. If approved, Amendment 91 could be effective by 2011.

In October 2009, the Council made its recommendations for the proposed 2010 and 2011 harvest specifications (74 FR 63100, December 2, 2009) based largely on information contained in the 2008 SAFE report for the BSAI groundfish fisheries. The 2009 SAFE report, which was not available when the Council made its recommendations in October 2009, contains the best and most recent scientific information on the condition of the groundfish stocks. In December 2009, the Council considered the 2009 SAFE report in making its recommendations for the final 2010 and 2011 harvest specifications. Based on the 2009 SAFE report, the sum of the 2010 and 2011 recommended final TACs for the BSAI (1,677,154 mt for 2010, and 1,996,558 mt for 2011) are higher than the sums of the proposed 2010 and 2011 TACs (1,585,000 mt each year). Compared to the proposed 2010 TACs, the Council's final TAC recommendations increase for species when the best and most recent scientific analysis supports a larger TAC. These changes increase fishing opportunities for fishermen and add economic benefits to the nation. Increased TACs are specified for BSAI sablefish, BSAI Atka mackerel, yellowfin sole, rock sole, arrowtooth flounder, flathead sole, Alaska plaice, BSAI Pacific ocean perch, northern rockfish, and “other species.” The Council reduced TAC levels to provide greater protection for several species including Bering Sea subarea pollock, Pacific cod, Greenland turbot, and rougheye rockfish.

The largest TAC reduction was for Pacific cod. The 2010 BSAI Pacific cod ABC was reduced 25,000 mt, and the corresponding TAC was reduced 24,250. While the Plan Team's selected model incorporating the latest catch and survey data results in a lower ABC and TAC than the proposed rule, the SSC noted that both the 2006 and 2008 year class appear to be strong, which should create an increasing population and biomass in the near future. For 2011, the model produces an ABC 15,000 mt higher than the proposed ABC.

The SSC concurred with the Plan Team's model choice for Bering Sea pollock, which when incorporated with updated survey and catch data results in an ABC and TAC 2,000 mt lower than the proposed harvest specifications for 2010. While the SSC notes that there are legitimate concerns over the Bering Sea pollock stock, the 2006 and 2008 year classes appear to be strong and there are several precautionary aspects incorporated into the current stock assessment. The SSC also notes that while the current model produces a 295,000 mt higher Bering Sea pollock ABC and TAC for 2011, these numbers are provisional and will be greatly affected by next year's data collection and analysis.

The changes in the final rule from the proposed rule are based on the most recent scientific information and implement the harvest strategy described in the proposed rule for the harvest specifications. These changes are compared in the following table: