Under the 1984 amendment, perishable agricultural commodities, inventories of food or other derivative products, and any receivables or proceeds from the sale of such commodities or products, are to be held in a non-segregated floating trust for the benefit of unpaid sellers. This trust is created by operation of law upon the purchase of such goods, and the produce buyer is the statutory trustee for the benefit of the produce seller. To preserve its trust benefits, the unpaid supplier, seller, or agent must give the buyer written notice of intent to preserve its rights under the trust within 30 calendar days after payment was due. Alternatively, as provided in the 1995 amendments to the PACA, a PACA licensee may provide notice of intent to preserve its trust rights by including specific language as part of its ordinary and usual billing or invoice statements.

The trust is a non-segregated “floating trust” made up of all of a buyer's commodity-related assets, under which there may be a commingling of trust assets. As each supplier gives ownership, possession, or control of perishable agricultural commodities to a buyer, and preserves its trust rights, that supplier becomes a participant in the trust. Thus, trust participants remain trust beneficiaries until they have been paid in full.

Under current 7 CFR 46.46(e)(2), only transactions with payment terms of 30 days from receipt and acceptance, or less, are eligible for trust protection. Section 46.46(e)(1) of the regulations (7 CFR 46.46(e)(1)) requires that any payment terms beyond “prompt” payment as defined by the regulations, usually 10 days after receipt and acceptance in a customary purchase and sale transaction, must be expressly agreed to, and reduced to writing, before entering into the transaction. A copy of the agreement must be retained in the files of each party and the payment due date must be disclosed on the invoice or billing statement.

Over the past few years, several federal courts have invalidated the trust rights of unpaid creditors because these creditors agreed in writing, and in some cases, by oral agreement, after default on payment, to accept payments over time from financially troubled buyers. In general, these courts have invalidated the seller's previously perfected trust rights because the agreements were deemed to extend payment terms beyond 30 days.1

The court decisions at issue have held that any post-default agreement, whether oral or written, that extends the buyer's obligation to pay the seller's invoices beyond 30 days after receipt and acceptance of the produce abrogates the produce seller's PACA trust rights. These decisions have held that (1) when a seller enters into the post-default agreement, the agreement modifies any valid payment agreement entered into prior to the transaction and therefore voids the trust protection,2 and (2) post-default agreements that allow for installment payments exceeding 30 days from receipt of produce violate the PACA prompt-pay provisions.3

Many of the court decisions at issue have been based on an interpretation of § 46.46(e) of the regulations (7 CFR 46.46(e)). Section 46.46(e)(1) (7 CFR 46.46(e)(1)) requires that parties who elect to use different times for payment must reduce their agreement to writing before entering into the transaction. Current § 46.46(e)(2) (7 CFR 46.46(e)(2)) states that the maximum time for payment for a shipment to which a seller can agree and still qualify for coverage under the trust is 30 days after receipt and acceptance of the commodities. It is our interpretation that § 46.46(e)(2), like paragraph (e)(1) of the regulations (7 CFR 46.46(e)(1) and (e)(2)), addresses pre-transaction agreements only.

This interpretation of our regulations is consistent with the Secretary's unwillingness to impute a waiver of trust rights as illustrated in the policies established by the Secretary and upheld by the courts in the context of the trust provisions of the Packers and Stockyards Act (7 U.S.C. 181et seq.), after which the PACA trust provisions are largely modeled.4 In the context of the PACA trust, the right to make a claim against the trust are vested in the seller, supplier, or agent who has met the eligibility requirements of paragraphs (e)(1) and (2) of § 46.46 (7CFR 46.46(e)(1) and (2)). The seller, supplier, or agent remains a beneficiary of the PACA trust until the debt owed is paid in full as stated in section 5(c)(4) of the statute. An agreement to pay the antecedent debt in installments is not considered payment in full. Thus, we do not believe that a post-default payment agreement should constitute a waiver of a seller's previously perfected trust rights.

In response to the Fruit and Vegetable Advisory Committee's request that the Secretary of Agriculture address the impact of post-default payment agreement on PACA trust eligibility, a proposed rule to amend PACA regulations was published in theFederal Registeron June 8, 2010, [75 FR 32306].5 The proposal sought to amend Title 7, Part 46 to ensure that qualified PACA trust beneficiaries maintain their trust protection after entering into a post-default agreement. The comment period initially closed on August 9, 2010. However, the comment period was reopened and extended an additional 30 days. The reopening of the comment period was published in theFederal Registeron August 23, 2010, [75 FR 51693]. The comment period closed a second time on September 22, 2010.

The proposal sought to amend 7 CFR 46.46(e)(2) by adding the words “prior to the transaction.” This change would clarify that the 30-day maximum time period for payment for a shipment to which a seller can agree and still qualify for coverage under the trust relates back to paragraph (e)(1) which refers to pre-transaction agreements.

The proposal also added a new paragraph (e)(3) to 7 CFR 46.46. The new paragraph provided that in circumstances of a default in payment as defined in § 46.46(a)(3), a seller, supplier, or agent who has met the eligibility requirements of § 46.46 paragraphs (e)(1) and (2) could agree in writing to a schedule for payment of the past due amount and still remain eligible under the trust. The post-default payment agreement could not extend beyond 180 days from the default date.

AMS received 130 timely comments. The commenters substantially approved of the proposed rule, except in regard to the limits on the length of post-default payment agreements and on collection activities. They expressed concerns that the suggested wording in the proposed regulation may itself create the same confusion, uncertainty, and need for costly litigation that the new regulation aims to eliminate. Eighty-nine of the 130 commenters offered alternative language for the amendment, four of which included the rationale for the suggested alternative language. These 89 commenters favored the removal of the requirement of a written post-default agreement and recommended the deletion of the last three sentences of § 46.46(e)(3) of the proposed rule which (1) set a 180-day limitation on post-default agreements, (2) limited collection activities in cases of bankruptcy and civil actions, and 3) stated that the remaining unpaid amount under the scheduled payment agreement continued to qualify for trust protection.

Twenty-three of the 130 comments raised legitimate concerns about the proposed changes to the regulations, stating:

1. It is contrary to the law—only full payment ends a supplier's trust rights. The commenters suggested that the proposed rule conflicts with the statutory language that a trust creditor remains eligible for trust benefits until it has received full payment.

2. The regulation cements a post-default waiver rule in the regulations. The commenters reason that if the Secretary acknowledges in the regulations that some post-default agreements can forfeit trust rights, this could be interpreted by the courts to prohibit all post-transaction agreements.

3. The proposed regulation will result in more problems than currently exist. The comments noted that there is no problem in the industry with post-default agreements to collect trust assets outside of litigation, so, no regulatory action is required over such agreements.

4. Routine past due collection efforts will jeopardize trust rights. The language in the proposed rule would necessitate that every time there is a past due debt, sellers will have to consult a PACA lawyer.

5. All claims in trust cases would be subject to extensive litigation about post-default collection efforts. Commenters noted that initially, produce suppliers try to resolve past due payments over the phone, thus, under the proposed rule, every subsequent trust claim will be the subject of the same expensive litigation to determine if there was a forfeiture due to an oral post default agreement.

We recognize the serious nature of the concerns the comments raise: That the proposed regulation, as written, is contrary to the plain language of the statute that trust creditors remain eligible until fully paid; that the proposed regulation could be interpreted broadly to prohibit all post-transaction agreements; that it creates new problems; that routine collection activities could jeopardize trust rights and give rise to extensive litigation. Because we agree with these comments, we are revising the regulation.

Twenty-eight of the 130 commenters specifically requested that the 180-day cap for post-default payment plans be stricken from the proposed rule, indicating that it may be unrealistic under a multitude of circumstances, and that the time limitation would create new challenges to the trust eligibility of a creditor who attempts to collect on a past due debt. We agree.

In addition, we agree that Congress intended that the seller, supplier, or agent remains a beneficiary of the PACA trust until the debt owed is paid and, recognizing that a 180-day limitation would create a new time limitation and new opportunity for litigation and misinterpretation of the regulations. Therefore, we are removing the 180-day limitation of post default agreements from the final rule.

Commenters noted that initially, produce suppliers try to resolve past due payments over the phone, thus, under the proposed rule, every subsequent trust claim will be the subject of the same expensive litigation to determine if there was a forfeiture due to an oral post default agreement. Because we agree with the comments that it is typical for produce suppliers to attempt to resolve past due payments over the telephone and, a requirement for a written post-default agreement would be burdensome and unnecessary, we are removing the requirement that a post-default agreement must be in writing from the final rule.

It is our interpretation of the statute and regulations that post-default agreements are not an extension of the 30-day maximum time period for pre-transaction agreements that would result in a waiver of the seller's trust rights; post-default payment agreements are an attempt to collect a debt that remains due until fully paid. The Secretary has long recognized a significant difference between the relative positions of buyers and sellers before a transaction, versus their positions after a buyer defaults on payment. The Secretary has observed that “produce sellers are not in an equal bargaining position with produce purchasers who are in possession of the produce seller's perishable agriculturalcommodities.”6 After a buyer has defaulted on payment, the seller is at the buyer's mercy since produce deteriorates rapidly, leaving no collateral. Any agreement reached after default is not an arm's length transaction. The trust is intended to provide protection to the unpaid seller whose bargaining position has changed for the worse after delivering its produce to a buyer. We do not believe that a seller's perfected trust rights should be lost because the seller enters into a payment arrangement, in an attempt to collect a debt, after the buyer has violated the PACA's prompt payment requirement.

We also agree with the comments from a California law firm that specializes in PACA law regarding the proposal to limit collection activities in cases of bankruptcy and civil actions. The commenter reminded us that limits on collection activities in cases of bankruptcy and civil actions are “already amply controlled under existing laws and procedures administered by the United States district and bankruptcy courts* * *.” Because laws already exist to ensure that a buyer in bankruptcy and civil actions cannot continue to make preferential payments to select creditors, we are eliminating the third and fourth sentences in § 46.46, paragraph (e)(3) of the final rule.

One commenter, a New Jersey based attorney specializing in PACA, recommended that the Secretary withdraw the proposed new regulation and solicit further suggestions for alternate language. USDA opted not to implement this recommendation. This commenter also included a suggestion for changes to § 46.46 (c)(1), § 46.2(aa)(11). The commenter suggested a new paragraph in § 46.46 to address payment terms with a debtor who has entered into a post-default agreement. We do not adopt the suggestion, as it presents significant problems of implementation and interpretation by bringing separate, subsequent transactions into the analysis. USDA also opted not to adopt this suggestion because it is beyond the scope of the proposed rule.

The courts have expressed concern that post-default agreements could undermine the enforcement of the prompt pay provisions of the PACA. No commenters echoed the courts' concerns. When a buyer defaults on payment for produce, it has committed a violation of section 2(4) of the PACA (7 U.S.C. 499b(4)). The defaulting buyer's license is then subject to suspension or revocation, or the buyer may be assessed a civil penalty for its violations of the PACA. Allowing a seller who has perfected its trust rights to enter into a post-default payment agreement with the defaulting buyer does not negate the buyer's violations of the Act. The trust is a means to protect the seller's right to payment for produce, not to enforce the prompt payment provisions of the Act. The Secretary can still initiate an enforcement action against the buyer to seek the appropriate sanction for violations of the Act without regard to any post-default agreement entered into between the unpaid seller and the buyer in default.

Based on full consideration of comments received during the initial and reopened comment periods, USDA has determined that it is appropriate to simplify the language of the final rule in order to avoid creating any additional confusion, uncertainty, and unnecessarily protracted, costly litigation about post-default agreements and collection efforts. New § 46.46(3) will be amended to delete the last three sentences of the proposal, and permit post-default agreements made in any manner. Furthermore, accepting partial payments after default would not affect a seller's trust rights.

No comments addressed the proposal to amend § 46.46(e)(2) by adding the words “prior to the transaction.” This change would clarify that the 30-day maximum time period for payment for a shipment to which a seller can agree and still qualify for coverage under the trust relates back to paragraph (e)(1) which refers to pre-transaction agreements. Therefore, this change is finalized as proposed.

This final rule has been determined to be not significant for the purposes of Executive Order 12866, and therefore, has not been reviewed by the Office of Management and Budget. This final rule has been reviewed under Executive Order 12988, Civil Justice Reform, and is not intended to have retroactive effect. This final rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule. There are no administrative procedures that must be exhausted prior to any judicial challenge to the provisions of this final rule.

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601et seq.), USDA has considered the economic impact of this final rule on small entities. The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened. The Small Business Administration (SBA) has defined small agricultural service firms (13 CFR 121.601) as those whose annual receipts are less than $7,000,000. There are approximately 14,400 firms licensed under the PACA, a majority of which could be classified as small entities.

The final regulations would clarify that a trust beneficiary who has perfected its trust rights does not forfeit those rights by entering into a post-default agreement to accept partial or installment payments on the amount past due. This language would provide companies of all sizes with clear regulatory guidance on this matter, thereby reducing the time and expense associated with litigating matters involving post-default agreements and trust right preservation under the PACA. Therefore, we believe that this final rule will not have a significant economic impact on a substantial number of small entities.

In accordance with OMB regulations (5 CFR part 1320) that implement the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the information collection and recordkeeping requirements that are covered by this final rule are currently approved under OMB number 0581-0031.

USDA is committed to complying with the E-Government Act, which requires Government agencies in general to provide the public the option of submitting information or transacting business electronically to the maximum extent possible. Forms are available on our PACA Web site athttp://www.ams.usda.gov/pacaand can be printed, completed, and faxed. Currently, forms are transmitted by fax machine, postal delivery and can be accepted by e-mail.

For the reasons set forth in the preamble, 7 CFR part 46 is amended as follows:

Background

The Federal Meat Inspection Act (FMIA) (21 U.S.C. 601et seq.) and the Poultry Products Inspection Act (PPIA) (21 U.S.C. 451et seq.) provide for mandatory Federal inspection of livestock and poultry slaughtered at official establishments and of meat and poultry processed at official establishments. The Egg Products Inspection Act (EPIA) (21 U.S.C. 1031et seq.) provides for mandatory inspection of egg products processed at official plants. FSIS bears the cost of mandatory inspection provided during non-overtime and non-holiday hours of operation. Official establishments and official egg products plants pay for inspection services performed on holidays or on an overtime basis.

Under the Agricultural Marketing Act of 1946 (AMA), as amended (7 U.S.C. 1621et seq.), FSIS provides a range of voluntary inspection, certification, and identification services to assist in the orderly marketing of various animal products and byproducts. These services include the certification of technical animal fats and the inspection of exotic animal products, such as antelope and elk products. The AMA provides that FSIS may assess and collect fees to recover the costs of the voluntary inspection, certification, and identification services it provides.

Also under the AMA, FSIS provides certain voluntary laboratory services that establishments and others may request the Agency to perform. Laboratory services are provided for four types of analytic testing: Microbiological testing, residue chemistry tests, food composition tests, and pathology testing. Again, the AMA provides that FSIS may collect fees to recover the costs of providing these services.

FSIS also accredits non-Federal analytical laboratories under its Accredited Laboratory Program. Such accreditation allows laboratories to conduct analyses of official meat and poultry samples. The Food, Agriculture, Conservation, and Trade Act of 1990, as amended, mandates that laboratory accreditation fees cover the costs of the Accredited Laboratory Program. This same Act mandates an annual payment of an accreditation fee on the anniversary date of each accreditation.

On October 8, 2009, FSIS published a proposed rule to amend its regulations to establish formulas for calculating the rates it charges meat and poultry establishments, egg products plants, and importers and exporters for providing voluntary, overtime, and holiday inspection, and identification, certification, and laboratory services (74 FR 51800). FSIS also proposed to keep the annual fee for its Accredited Laboratory Program at $4,500 for FY 2009, 2010 and 2011, and increase it to $5,000 for FY 2012 and FY 2013 (74 FR 51802).

As FSIS explained in the proposed rule, historically, the Agency amended its regulations annually to change the rates and fees. However, because the rulemaking process is lengthy, the fiscal year repeatedly would partially elapse before the Agency could publish a final rule to amend its rates and fees. As a result, the Agency was unable to recover the full cost of the services it provided.

To address the delays in recovering the cost of services, in January 2006, FSIS amended its regulations to provide for multiple annual rate and fee increases in one action (71 FR 2135). With this rulemaking, the rates and fees for 2006-2008 were increased and FSIS established criteria for determining the rate and fee increases on a multi-year basis. While this solution enabled the Agency to increase rates and fees each year, estimates used to establish the annual rates and fees were imprecise and have left the Agency collecting too little, and thus, not fully recovering itscosts. Because of the duration of the rulemaking process, rate increases have not been available until approximately three-fourths of the way into the fiscal year. This has resulted in a considerable monetary loss for FSIS.

In 2009, the Agency performed a cost analysis using actual FY 2008 data. On the basis of that analysis, the October 2009 proposed rule set forth the various rates FSIS projected it needed to charge in order to recover its costs. FSIS developed proposed formulas in consultation with a private accounting firm to determine the rates for FY 2010 and future years. FSIS also proposed raising its fees for the Accredited Laboratory Program to cover its increased direct overhead costs, including salary increases, employee benefits, inflation, and bad debt, and to maintain an adequate operating reserve.

In this final rule, FSIS is amending its regulations to codify, with modifications, the proposed formulas for calculating and establishing the rates for basetime, overtime, holiday, and laboratory services set forth in the proposed rule. FSIS has also made changes to the proposed regulatory text to correct inadvertent inconsistencies in terminology. For example, the preamble to the proposed rule referred to “fees” for the basetime, overtime, holiday, and laboratory services rates. In this preamble, FSIS is consistently using the term “rate” for the basetime, overtime, holiday, and laboratory services rates, and “fee” for the laboratory accreditation fee.

In the proposed rule, the Agency stated that the basetime, overtime, holiday, and laboratory services rates would be determined “For each fiscal year and based on previous fiscal year's actual costs and hours” (proposed 9 CFR 391.2(a), 391.3, 391.4(a), 590.126, 590.128, 592.510(a), 592.520, 592.530). Because of the time necessary to obtain previous fiscal year data and to calculate the formulas, in this final rule FSIS is specifying that the rates will be determined for each calendar year, as opposed to for “each fiscal year,” based on the previous fiscal year's (ending on September 30) actual costs and hours data, except for the cost of living and inflation percentages. FSIS is also specifying that the cost of living and inflation percentages included in the formulas will be based on economic assumptions for the calendar year in which the rates will apply.

The proposed provisions for the “overhead rate” (9 CFR 391.2(b)(3) and 592.510(b)(3)) stated that the rate is based on the “average information technology (IT) costs from the previous two years in the Public Health Data Communication Infrastructure System Fund.” The Agency proposed the two year average because of excessively high 2007 IT costs. However, in this final rule, to maintain consistency with the timeframes used in the other rate calculations, the Agency is amending 9 CFR 391.2(b)(3) and 592.510(b)(3) to refer to the “information technology costs from the previous fiscal year.” In addition, the preamble discussion of the overhead rate stated that the rate included “provision for the operating balance”. This language was not included in the proposed codified text. This final rule corrects the codified text to include the addition of the provision for the operating balance.

The proposed regulatory text for the “benefits” and “travel and operating rates” (9 CFR 391.2(b)(1) and (2), and 592.510(b)(1) and (2)) did not specify that the applicable costs would be divided by the applicable hours. The proposed regulatory text did not clearly state that the percentage of the cost of living increase (for the basetime, overtime, holiday, laboratory services, and benefits rate) and the percentage of inflation (for the travel and operating and overhead rates) adjustments are added to the quotients of pay divided by hours in the rate formulas. However, FSIS did provide examples in the preamble which indicated that costs would be divided by the hours, and demonstrated how the percent of cost of living and inflation are calculated, then added in the formulas to determine the appropriate rates. In this final rule, the regulatory text has been modified to clearly state that applicable costs would be divided by applicable hours and the cost of living and inflation percentage adjustments are added to the quotients in the formulas to determine the rates.

The proposed rule's discussion of the “Proposed Formulas” (FR 74 51801) and the codified text (9 CFR 391.2(a), 391.3(a) and (b), 391.4(a), 590.126, 590.128, 592.510(a), 592.520, and 592.530) used the terms “regular hours” and “hours worked” interchangeably. In this final rule, the Agency is amending the codified text to use consistently the term “regular hours.” The term “regular hours” refers to the hours during regular working time (not including holiday or overtime hours) that are associated with on-site food product inspection.

In addition, the proposed rule's preamble (74 FR 51801) and codified text included the term “salaries paid” (9 CFR 391.2(a), 391.3(a) and (b), 391.4(a), 590.126, 590.128, 592.510(a), 592.520, and 592.530). In thisnal rule, for clarity, the term “salaries paid” is being replaced by “regular direct pay” because this is the pay for “regular hours.”

FSIS intends to announce future annual rate changes, using the formulas in this final rule, inFederal Registernotices approximately 30 days prior to the start of each new calendar year. FSIS will apply the new rates at the start of the first FSIS pay period each new calendar year. The 2011 rates in this final rule will be applied starting May 22, 2011, the first pay period 30 days after the publication of the rule.

This final rule adopts the proposed fees for the accredited laboratory program. FSIS will propose changes to the laboratory accreditation fees in future rulemakings when necessary.

The rates published in the October 2009 proposed rule were calculated using the best data and economic analyses available at the time. These rates were based upon actual FY 2008 data. The proposed rule stated that the rates would be based on the previous year's actual costs and hours. Fiscal Year 2010 ended on September 30, 2010, and the Agency's FY 2010 actual cost data are now available. In addition, since the publication of the proposed rule, the Office of Management and Budget (OMB) released updated projected economic assumptions, “Analytical Perspectives, Budget of the United States Government, Fiscal Year 2011.” The economic assumptions in the “Economic and Budget Analyses” section,http://www.whitehouse.gov/sites/default/files/omb/budget/fy2011/assets/econ_analyses.pdfinclude the projected overall average civilian Federal pay raises and locality pay adjustments for future calendar years.

Therefore, the rates for 2011 in this final rule have been recalculated based on the previous fiscal year costs and hours (FY 2010), the calendar year percentage of cost of living increase and inflation (calendar year 2011), and, as discussed above, the IT costs from the previous fiscal year (FY 2010). Table 1 lists the recalculated 2011 rates and the projected 2012 rates, Table 2 lists the rates FSIS currently assesses, and Table 3 lists the rates from the October 2009 proposed rule.

The “travel and operating rate” and the “overhead rate” used in the proposed rule calculations were inadvertently transposed. In this final rule, the Agency has corrected this error in all of the preamble calculations below that include “travel and operating rate” or “overhead rate.”

FSIS is amending its regulations to provide the following formulas for the basetime, overtime, holiday, and laboratory services rates. The rates provided in Table 1, “2011 ADJUSTED RATE (PER HOUR PER EMPLOYEE) BY TYPE OF SERVICE” are based on calculations using unrounded numbers for the components, e.g., benefits, travel and operating, and overhead. The calculations provided below are for illustration and the components of the rates may not appear to be rounded correctly. However, the final rates are rounded correctly. In addition, all of the final rates have been rounded to make the amount divisible by the quarter hour (15 minutes). Fifteen minutes is the minimum charge for the services covered by these rates.

FSIS is amending 9 CFR 391.2 and 592.510 to establish the following formula to calculate the basetime rate per hour per program employee:

Basetime Rate= The quotient of dividing the Office of Field Operations (OFO) plus Office of International Affairs (OIA) inspection program personnel's previous fiscal year's regular direct pay by the previous fiscal year's regular hours, plus the quotient multiplied by the calendar year's percentage of cost of living increase, plus the benefits rate, plus the travel and operating rate, plus the overhead rate, plus the allowance for bad debt rate.

The calculation for the 2011 basetime rate per hour per program employee is:

[FY 2010 OFO and OIA Regular Direct Pay divided by the previous fiscal year's Regular Hours ($406,663,564/15,164,875)] = $26.82 + ($26.82 * 1.4% (calendar year 2011 Cost of Living Increase)) = $27.20 + $8.30 (benefits rate) + $.89 (travel and operating rate) + $17.52 (overhead rate) + $.01 (bad debt allowance rate) = $53.92.

Following the discussion of the “Laboratory Services Rate” is an explanation of how the benefits rate, travel and operating rate, overhead rate, and bad debt allowance rate were calculated.

FSIS is amending 9 CFR 391.3, 590.126, 590.128, 592.520, and 592.530, to establish the following formulas for overtime and holiday rates per hour per program employee:

Overtime Rate= The quotient of dividing the Office of Field Operations (OFO) plus Office of International Affairs (OIA) inspection program personnel's previous fiscal year's regular direct pay by the previous fiscal year's regular hours, plus the quotient multiplied by the calendar year's percentage of cost of living increase, multiplied by 1.5, plus the benefits rate, plus the travel and operating rate, plus the overhead rate, plus the allowance for bad debt rate.

The calculation for the 2011 overtime rate per hour per program employee is:

Holiday Rate= The quotient of dividing the Office of Field Operations (OFO) plus Office of International Affairs (OIA) inspection program personnel's previous fiscal year's regular direct pay by the previous fiscal year's regular hours, plus the quotient multiplied by the calendar year's percentage of cost of living increase, multiplied by 2, plus the benefits rate, plus the travel and operating rate, plus the overhead rate, plus the allowance for bad debt rate.

The calculation for the 2011 holiday rate per hour per program employee calculation is:

FSIS is amending 9 CFR 391.4, to establish the following formula for thelaboratory services rate per hour per program employee:

Laboratory Services Rate= The quotient of dividing the Office of Public Health Science (OPHS) previous fiscal year's regular direct pay by the OPHS previous fiscal year's regular hours, plus the quotient multiplied by the calendar year's percentage cost of living increase, plus the benefits rate, plus the travel and operating rate, plus the overhead rate, plus the allowance for bad debt rate.

The calculation for the 2011 laboratory services rate per hour per program employee is:

FSIS is amending 391.2 and 592.510 to provide the formulas for calculating the Benefits, Travel and Operating, Overhead, and Allowance for Bad Debt Rates. These rates are components of the basetime, overtime, holiday, and laboratory services rates formulas.

Benefits Rate:The quotient of dividing the previous fiscal year's direct benefits costs by the previous fiscal year's total hours (regular, overtime, and holiday), plus the quotient multiplied by the calendar year's percentage cost of living increase. Some examples of direct benefits are health insurance, retirement, life insurance, and Thrift Savings Plan basic and matching contributions.

The calculation for the 2011 benefits rate per hour per program employee is:

Travel and Operating Rate:The quotient of dividing the previous fiscal year's total direct travel and operating costs by the previous fiscal year's total hours (regular, overtime, and holiday), plus the quotient multiplied by the calendar year's percentage of inflation.

The calculation for the 2011 travel and operating rate per hour per program employee is:

Overhead Rate:The quotient of dividing the previous fiscal year's indirect costs plus the previous fiscal year's information technology (IT) costs in the Public Health Data Communication Infrastructure System Fund plus the previous fiscal year's Office of Management Program cost in the Reimbursable and Voluntary Funds plus the provision for the operating balance less any Greenbook costs (i.e., costs of USDA support services prorated to the service component for which fees are charged) that are not related to food inspection by the previous fiscal year's total hours (regular, overtime, and holiday) worked across all funds, plus the quotient multiplied by the calendar year's percentage of inflation.

The calculation for the 2011 overhead rate per hour per program employee is:

Allowance for Bad Debt Rate= Previous fiscal year's total allowance for bad debt (for example, debt owed that is not paid in full by plants and establishments that declare bankruptcy) divided by previous fiscal year's total hours (regular, overtime, and holiday) worked.

The 2011 calculation for bad debt rate per hour per program employee is:

Consistent with the proposed rule, FSIS is also amending 9 CFR 391.5 to keep the laboratory accreditation fee at $4,500.00 for fiscal year 2011 and to increase it to $5,000.00 beginning in fiscal year 2012. FSIS will propose changes to the laboratory accreditation fees through future rulemakings when necessary.

As discussed in the proposed rule (74 FR 51802), FSIS needs to raise the fee for this program to cover its increased direct overhead costs, including those for salary increases, employee benefits, inflation, and bad debt, and to maintain an adequate operating reserve. Furthermore, FSIS must maintain a “carryover” amount each year as a reserve to cover the contractual costs that the Accredited Laboratory Program must pay at the beginning of each fiscal year. The increases are also necessary to cover salaries and other operating expenses during the first two to three months of the fiscal year. Less than 5% of the program's income is received during the first two months of a fiscal year. Approximately 75% of the program's income is received in late December and early January; the remainder of the program's income is received about evenly across the rest of the fiscal year. Maintaining an adequate reserve is therefore essential for the Accredited Laboratory Program to be fully functional during the first quarter of any fiscal year.

FSIS received seven comments in response to the proposed rule. The commenters included meat trade associations, private citizens, and a meat processor.

Most commenters acknowledged that codified formulas in the regulations for these rates would afford the Agency the ability to raise rates based on pay increases for Federal employees and inflation.

Comments:One comment from a meat processor expressed concern that the first-year overtime rate increase is above the rate of inflation and above the wage based increase in the commenter's geographical area. Another comment from a trade association expressed concern that the overtime rate for the first year is approximately a 10% increase.

Response:The existing basetime, overtime, holiday, and laboratory services rates have not increased for more than three years, since October 1, 2007. FSIS developed the current overtime rate in 2005, using an estimated Annual General Increase (AGI) of 2.3% per year for 2006-2008. The actual AGI during 2006-2008 averaged 2.9%. The Agency absorbed the difference between the projected and actual increase, including the costs of benefits that have increased at an average of 4.6% each year. In addition, the rates established in the 2006 final rule are still being used in calendar year 2010. The higher rates are necessary because of increased salary costs across several years and current overhead costs.

Comments:One meat processor and two trade associations opposed the methodology of adding travel, benefits, overhead, and bad debt costs to the overtime and holiday inspection rates and stated that the proposed formulas were not clear.

Response:The methodology of adding travel, benefits, overhead and bad debts costs to overtime and holiday inspection rates has been used to establish the rates for previous years. FSIS has always been reimbursed by industry for the salaryand overhead costs for both overtime work and work on Federal holidays. Contrary to one commenter's concern, the calculations do not multiply travel, benefits, overhead, and bad debt costs by 1.5 and 2.0 for overtime and holiday rates, respectively. As illustrated in the calculations, these costs are added to the adjusted salary amounts for overtime and holiday pay.

The Agency contracted with a large world-wide accounting firm to ensure that the methodology for the fee calculations was sound and without flaws. The accounting firm's analysis of the methodology was performed in accordance with the “Standards for Consulting Services,” established by the American Institute of Certified Public Accountants. Consistent with the proposed rule, the final rule specifies all cost components used to calculate the rates. In this final rule, the Agency has clarified and made consistent the terminology used in the proposal.

Comments:One trade association encouraged the Agency to acknowledge the impact that the holiday rate change would have on small and very small meat processors. Another trade association expressed concern that the overtime fee increase would disproportionately affect small and medium sized businesses that are not able to run two shifts but rely on overtime to meet consumer demand.

Response:Overtime and holiday inspection services are generally sought by the 370 large establishments and plants that have a large production volume of approximately 162,500,000 pounds of product per year. These establishments have greater complexity and diversity in the products they produce than the 5,140 small and very small Federal establishments whose low production volume averages 1,400,000 pounds of product per year.1 Establishments or plants with lower production volume are unlikely to use a significant amount of overtime and holiday inspection services, except on those occasions when demand exceeds supply for their products. In addition, the costs that industry would incur as a result of the increase in rates are similar to other increases that the industry faces because of inflation and wage increases.

Comments:One meat processor opposed the holiday inspection service rate because establishments do not recognize the same holidays as the Federal government.

Response:FSIS follows the schedule of Federal holidays identified by the Office of Personnel Management, as well as any additional Federal holidays authorized by the President. FSIS has no authority to mandate which days will be “holidays” for establishments or plants. When an establishment chooses to remain open and requires reimbursable inspection services from FSIS on a Federal holiday, then FSIS must pay its inspection workforce accordingly. FSIS inspectors are paid double time for holiday work. Therefore, consistent with the proposed rule, the final rule provides a holiday rate of two times the employee's hourly rate of base pay.

Comments:Three trade associations expressed concern regarding how the Agency assesses overtime inspection rates. They contend that, because establishments are required to operate under Hazard Analysis Critical Control Point (HACCP) systems, processing establishments should be able to freely operate at any appropriate time, with FSIS providing a level of inspection to fit accordingly. The commenters believe this would negate the need for overtime inspection.

Response:This rule establishes the rate for overtime inspection service. The commenters' concern relates to a separate issue that is whether HACCP systems in plants should permit plants to freely operate at any time without being assessed “overtime fees.” Sections 9 CFR 307.4(c), 381.37(c), and 590.124 provide that official establishments shall be provided inspection service, without charge, for up to 8 consecutive hours per shift during the workweek. The regulations also provide that the workweek is 5 consecutive days. Inspection service provided outside of these bounds is, by definition, overtime service.

Comment:One trade association questioned the 30-day comment period for the proposed rule and stated that the comment period should have been longer.

Response:The Agency must recover the actual cost of these inspection services for its continued sound financial management. To expeditiously solicit comments on the proposed rule and make the rulemaking effective so that FSIS's costs can be recovered as quickly as possible, the Administrator determined that 30 days for public comment was sufficient. A 30-day comment period is not uncommon when the Agency needs timely responses. For example, the July 2005 proposed rule “Changes in Fees for Meat, Poultry, and Egg Products Inspection Services Fiscal Years 2005-2008,” solicited comments within 30 days (70 FR 41635).

This final rule was reviewed by the Office of Management and Budget under Executive Order 12866 and was determined to be significant. The proposed rule was determined to be not significant.

This final rule establishes the formulas FSIS will use to calculate the rates that it charges meat and poultry establishments, egg products plants, and importers and exporters for providing voluntary inspection, identification and certification services, overtime and holiday inspection services, and laboratory services. This final rule also increases the annual fee that FSIS assesses for its Accredited Laboratory Program for FY 2012 and FY 2013. This rule is necessary to ensure that FSIS recovers its cost of providing these voluntary inspection and laboratory accreditation services.

By codifying formulas to calculate future annual rates, the Agency will streamline the rulemaking process to help ensure that the new rates are effective at the beginning of each calendar year. The rates will be determined for each calendar year, based on the previous fiscal year's (ending on September 30) actual costs and hours data, and the upcoming year's projected cost of living and inflation percentages. The new rates will be adjusted to reflect inflation and federal pay raises but will not support any new budgetary initiatives. If rates increase, the costs that industry will experience are similar to other increases that the industry will experience because of inflation and wage increases.

The total volume of meat and poultry slaughtered under Federal inspection in 2009 was about 90.9 billion pounds (2009-8 Livestock, Dairy, Meat, and Poultry Outlook Report, Economic Research Service, USDA). The total volume in egg product production in 2009 was about 2.6 billion pounds (2009 National Agricultural Statistical Service, USDA). The increase in cost per pound of product associated with the new rates is, in general, $.002. Even in competitive industries such as meat, poultry, and egg products, this amount of increase in costs would have an insignificant impact on profits and processes.

Even though the increases in the basetime, overtime, and holiday ratesare negligible, the industry is likely to pass along a significant portion of the rate increases to consumers because of the inelastic nature of the demand curve facing consumers. Research has shown that consumers are unlikely to reduce demand significantly for meat, poultry, and egg products when prices increase. Huang estimates that quantity demanded of meat, poultry, and egg products would fall by .36 percent for a one percent increase in price (Huang, Kao S., A Complete System for Demand for Food. USDA/ERS Technical Bulletin No. 1821, 1993, p. 24). Because of the inelastic nature of demand and the competitive nature of the industry, individual firms are not likely to experience any change in market share in response to an increase in inspection fees.

Table 4 (below) represents the revenues the Agency collected in FY 2009 and FY 2010, and the projected revenues for FY 2011 and FY 2011. For basetime, overtime, holiday, and laboratory services, the Agency collected $146.5 million in FY 2009 and $148.9 million in FY 2010, and based on the new rate structure, is projecting to collect $164.2 million in FY 2011, and $171.9 million in FY 2012.

For the Accredited Laboratory Program, the Agency collected $317,250 in FY 2009 and $293,000 in FY 2010. The fee will increase from $4,500 (the current rate) to $5,000 per entity in FY 2012. The Agency expects to collect approximately $270,000 in FY 2011, and $300,000 in FY 2012.

The total revenue amounts for the basetime, overtime, holiday, and laboratory services rates with the Accredited Lab Fees for FY 2009 and FY 2010 (actual amounts), and FY 2011 and FY 2012 (projected amounts) are shown in Table 4 (below).

The FSIS Administrator certifies that, for the purposes ofthe Regulatory Flexibility Act (5 U.S.C. 601-602), the final rule will not have a significant impact on a substantial number of small entities in the United States. As explained further below, while this action will affect a substantial number of small entities, the action will likely not have a significant effect on these small entities.

The changes in this final rule will affect those entities in the United States that slaughter or process meat, poultry, and egg products for consumption. There are about 2,320 small federally inspected establishments (with more than 10 but less than 500 employees) and 2,720 very small establishments (with fewer than 10 employees) based on HACCP Classification. Therefore, a total of 5,040 small and very small establishments (or 83 percent of the establishments) could be possibly affected by this rule. These small and very small establishments are categorized in the following North American Industry Classification System (NAICS) codes: 311611—Animal (except Poultry) Slaughtering; 311612—Meat Processed from Carcasses; 311613—Rendering and Meat Byproduct Processing; 311615-Poultry Processing; and 311999—All other Miscellaneous Food Manufacturing (Egg products). These codes can be found in The U.S. Small Business Administration Table of Small Business Size Standards Matched to the NAICS3 as modified by the Office of Management and Budget in 2007(effective August 22, 2008). The size threshold for these industries is 500 employees. All establishments that have 500 or fewer employees are considered small.

These small and very small establishments like the 1,031 large establishments would incur the rates from 2011-2012 and in perpetuity only if they incur voluntary inspection, overtime and holiday inspection services, identification and certification services, or laboratory services.

Alternative 1: Amend the regulations to publish the basetime, overtime, holiday, and laboratory services rates and laboratory accreditation fees on a multiple year basis (current approach).

Under this alternative, the Agency would continue to publish proposed and final rules to establish rates and fees for multiple consecutive years. However, the projected rates and fees are based on economic factors, such as inflation and cost of living, and other factors such as employee benefits and travel and operating costs, that change on a yearly basis. While this solution has enabled the Agency to increase rates and fees on a multiple year basis, the estimates used to establish the annual rates and fees were imprecise and have left the Agency collecting too little, and thus, not fully recovering its costs. Therefore, the Agency rejects this alternative because it would continue to create unnecessary uncertainty and inflexibility to update fees based on economic conditions.

Alternative 2: Amend the regulations to update the rates and fees on an annual basis.

Under this alternative, the Agency would amend its regulations annually to update the rates and fees using currentdata and economic factors. This alternative was used prior to the current approach of establishing the rates and fees on a multiple year basis (Alternative 1). However, because the rulemaking process is lengthy, the fiscal year repeatedly elapsed before the Agency could publish the final rule to amend the rates and fees. As a result, the Agency was unable to recover its full costs. This action would be the least costly to small entities because they would not pay the adjusted rates and fees until they were published, which would in effect cause a shortfall in the Agency's budget. Therefore, the Agency rejects this alternative.

Alternative 3: Establish formulas for calculating rates and publish the rates in aFederal RegisterNotice prior to the start of the calendar year.

Under this alternative, FSIS would establish formulas for calculating rates that it charges for basetime, overtime, holiday, and laboratory services, and publish the rates annually in aFederal RegisterNotice prior to the start of each calendar year. The Agency would continue to publish the laboratory accreditation fees on an as needed basis. This action would enable the Agency to recover its costs for providing voluntary inspection, overtime and holiday inspection services, identification and certification services, and laboratory services on a yearly basis, and would notify small entities of the new rates prior to the beginning of the calendar year, so that the entities can budget for these new fees. Therefore, the Agency has selected this alternative.

As discussed in the Economic Effects of New Fees section, in 2009, there was a total volume of 90.9 billion pounds slaughtered of meat and poultry and 2.6 billion pounds of egg products processed. According to the FSIS Animal Disposition Reporting System, in 2009 the 5,040 small and very small Federal establishments' production volume averaged 1,400,000 pounds of product per year, or a total of 7.1 billion pounds per year or approximately 7 percent of the total production.

In FY 2009, there were a total of 146,000 hours charged from voluntary inspection (basetime) service, 2.1 million hours charged from reimbursable overtime, 218,000 hours charged from holiday inspection services, and 7 hours charged for laboratory services.4 There are not enough data to definitively determine the number of these hours that were incurred by small and very small entities, and therefore their direct cost as a result of this rule. However, if we used the 7 percent from the total production and apply it to the hours, small and very small entities would incur 147,000 hours out of 2.1 million hours of reimbursable overtime and 15,300 hours of holiday inspection services, and at a rate of $58.93, per hour (2009 rate), the total cost will be $9.6 million ((15,300 + 147,000)* $58.93), compared to $127 million for large entities.

For the voluntary inspection (basetime), if we used the 7 percent from the total production and apply it to the hours, small and very small entities would incur 10,200 hours out of 146,000 hours and at a rate of $49.93, the total cost would be $510,000 dollars compared to $6.8 million for the large entities. Dividing the total cost of $10.1 million ($9.6 million plus $510,000) by 5,040 small and very small entities would incur a cost of an average of $2,000 per small and very small entity.

Likewise, if we apply the 2011 rates, the 5,040 small and very small entities would incur a cost of $10.5 million (155,800 hours * $67.52) for overtime, $787,000 (9,712 hours * $81.08) for holiday, and $528,000 (9,800 hours * $53.92) for voluntary services (basetime). The total cost incurred by small and very small entities for the 2011 year would be $11.8 million ($10.5 million plus $787,000 plus $528,000) or $2,341 ($11.8 million/5,040 entities) per entity.

Comparing the average cost of $2,000 per small and very small entity (2009) to $2,341 per entity (2011 rate), the total increase in fees and impact of the final rule on small and very small entities would be about $341 per entity.

The Accredited Laboratory program has a total of 60 labs5 participating, of which an estimated 40 labs are considered small. The Accredited Lab fee for each lab will increase by $500, from $4,500 in FY 2011 to $5,000 in FY 2012. This fee is necessary to have a carry over amount each year as a reserve to cover the contractual costs that the Accredited Laboratory Program must pay at the beginning of each fiscal year and to cover salaries and other operating expenses during the first two to three months of the fiscal year. Without this fee, the Agency would not have enough funds to cover the cost incurred during this period. The laboratory fee is a mandatory cost of doing business with FSIS and without the FSIS accreditation the labs would not be permitted to analyze official meat and poultry samples for establishments. These small entities would likely recover this cost by passing it along to the establishments, who pay for their services.

Therefore, the Agency believes that the final rule will not have a significant economic impact on a substantial number of small entities, whether establishments or laboratories.

This rule does not contain any new information collection or record keeping requirements that are subject to the Office of Management and Budget (OMB) approval under the Paperwork Reduction Act, 44 U.S.C. 3501et seq.

FSIS and USDA are committed to achieving the purposes of the E-Government Act (44 U.S.C. 3601,et seq.) by, among other things, promoting the use of the Internet and other information technologies and providing increased opportunities for citizen access to Government information and services, and for other purposes.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule: (1) Has no retroactive effect; and (2) does not require administrative proceedings before parties may file suit in court challenging this rule. However, the administrative procedures specified in 9 CFR 306.5, 381.35, and 590.300 through 590.370, respectively, must be exhausted before any judicial challenge may be made of the application of the provisions of the final rule, if the challenge involves any decision of an FSIS employee relating to inspection services provided under the FMIA, PPIA, or EPIA.

This final rule has been reviewed in accordance with the requirements of Executive Order 13175, Consultation and Coordination with Indian Tribal Governments. The review reveals that this regulation will not have substantial and direct effects on Tribal governments and will not have significant Tribal implications.

Public awareness of all segments of rulemaking and policy development is important. Consequently, in an effort to ensure that minorities, women, and persons with disabilities are aware of this rule, FSIS will announce it online through the FSIS Web page located at http://www.fsis.usda.gov/regulations_&_policies/Federal_Register_Publications_&_Related_Documents/index.asp.

FSIS will also make copies of thisFederal Registerpublication available through the FSIS Constituent Update, which is used to provide information regarding FSIS policies, procedures, regulations, Federal Register notices, FSIS public meetings, and other types of information that could affect or would be of interest to constituents and stakeholders. The Update is communicated via Listserv, a free electronic mail subscription service for industry, trade and farm groups, consumer interest groups, allied health professionals, and other individuals who have asked to be included. The Update is also available on the FSIS Web page. Through the Listserv and Web page, FSIS is able to provide information to a much broader and more diverse audience. In addition, FSIS offers an e-mail subscription service which provides automatic and customized access to selected food safety news and information. This service is available athttp://www.fsis.usda.gov/News_&_Events/Email_Subscription/.

Options range from recalls to export information to regulations, directives and notices. Customers can add or delete subscriptions themselves, and have the option to password protect their accounts.

The U.S. Department of Agriculture (USDA) prohibits discrimination in all its programs and activities on the basis of race, color, national origin, gender, religion, age, disability, political beliefs, sexual orientation, and marital or family status. (Not all prohibited bases apply to all programs.)

Persons with disabilities who require alternative means for communication of program information (Braille, large print, audiotape, etc.) should contact USDA's Target Center at 202-720-2600 (voice and TTY).

To file a written complaint of discrimination, write USDA, Office of the Assistant Secretary for Civil Rights, 1400 Independence Avenue, SW., Washington, DC 20250-9410 or call 202-720-5964 (voice and TTY). USDA is an equal opportunity provider and employer.

For the reasons set forth in the preamble, FSIS is amending 9 CFR Chapter III as follows:

On September 8, 1998, we issued AD 98-19-12, Amendment 39-10754 (63 FR 49416, September 16, 1998), for RR RB211-Trent 700 series turbofan engines. That AD requires, for the SAGB, repositioning of the oil metering jet up into the oil distributor within the bevel gearshaft, followed by initial and repetitive visual inspections of the MCD. That AD resulted from reports of uncommanded engine shutdowns caused by failure of the SAGB driving bevel gearshaft ball bearing due to oil starvation. We issued that AD to prevent in-flight engine shutdowns caused by SAGB driving bevel gearshaft ball bearing failure.

Since we issued AD 98-19-12, RR has demonstrated that the repositioning of the oil metering jet eliminates the need for the repetitive inspections. Also, since we issued that AD, Rolls Royce put into service, its RB211-Trent 772B-60 model turbofan engine, which does not have the unsafe condition that AD sought to correct. Since the AD applicability states that it is for RB211-Trent 700 series turbofan engines, that applicability includes the RB211-Trent 772B-60 engines, and it shouldn't.

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

This AD retains the oil metering jet repositioning requirements of AD 98-19-12. This AD also eliminates the initial and repetitive visual inspections of the MCD, required by AD 98-19-12. This AD also corrects the applicability from RB211-Trent 700 series turbofan engines, to, RB211-Trent 768-60 turbofan engines prior to serial No. 41052, and RB211-Trent 772-60 turbofan engines prior to serial No. 41052.

Since no domestic operators use RB211-Trent 768-60 or RB211-Trent 772-60 turbofan engines, we find that notice and opportunity for prior public comment are unnecessary and that good cause exists for making this amendment effective in less than 30 days.

This AD is a final rule that involves requirements affecting flight safety, and we did not provide you with notice and an opportunity to provide your comments before it becomes effective. However, we invite you to send any written data, views, or arguments about this AD. Send your comments to an address listed under theADDRESSESsection. Include the docket number FAA-2011-0233 and Directorate Identifier 98-ANE-10-AD at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD because of those comments.

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

We estimate that this AD affects no engines installed on airplanes of U.S. registry. The elimination of visual inspection requirements by this AD, adds no additional economic burden.

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

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

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

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

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

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

(3) Will not affect intrastate aviation in Alaska, and

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

Accordingly, under the authority delegated to me by the Administrator, the FAA amends part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:

We issued a supplemental notice of proposed rulemaking (SNPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That SNPRM published in theFederal Registeron December 17, 2010 (75 FR 78937). The original notice of proposed rulemaking (74 FR 67829, December 21, 2009) proposed to require removing power turbine blades, part number (P/N) 4-141-084-06 from service, using a drawdown schedule. The SNPRM proposed to require expanding and clarifying the applicability to include more engine models and power turbine blade P/Ns that could have the unsafe condition, and clarifying the applicability by specifying power turbine rotor P/Ns instead of the blade P/Ns.

We gave the public the opportunity to participate in developing this AD. We received no comments on the SNPRM.

We reviewed the relevant data and determined that air safety and the public interest require adopting the AD as proposed.

We estimate that this AD will affect 240 engines installed on aircraft of U.S. registry. We also estimate that it will take about 30 work-hours per engine to perform the actions, and that the average labor rate is $85 per work-hour. If all removed power turbine rotors get replaced, required parts will cost about $70,000 per engine. Based on these figures, we estimate the total cost of the AD to U.S. operators to be $17,412,000.

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

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

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

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

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

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

(3) Will not affect intrastate aviation in Alaska, and

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

The FAA received a notice from its Aeronautical Products office that the Kutztown Airport, PA, has been listed as abandoned as per NFDD09-240 (12/16/2009). After evaluation it was decided the Class E airspace associated with the Kutztown Airport is no longer required.

Since this action eliminates the impact of controlled airspace on users of the National Airspace System in the vicinity of the Kutztown Airport, notice and public procedure under 5 U.S.C. 553(b) are unnecessary. Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9U dated August 18, 2010, and effective September 15, 2010, which is incorporated by reference in 14 CFR 71.1. The Class E designation listed in this document will be removed from publication subsequently in the Order.

This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 removes Class E airspace at Kutztown Airport, Kutztown, PA, as the airport has been abandoned and all instrument approach procedures cancelled.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore, (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.

This rulemaking is promulgated under the authority described in subtitle VII, part A, subpart I, section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it removes controlled airspace at Kutztown, PA.

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

In response to a petition from the National Electrical Manufacturers Association (NEMA), on December 29,2010 (75 FR 81943), the Commission published aFederal RegisterNotice proposing to extend the effective date of new labeling rules for light bulbs to January 1, 2012.1 The new labeling rules, originally scheduled to become effective on July 19, 2011, apply to general service lamps (i.e.,medium screw base incandescent, compact fluorescent (CFL), and light-emitting diode (LED) products) and feature a “Lighting Facts” label disclosing bulb brightness, annual energy cost, life, color appearance, and energy use.2

Based on concerns about the original deadline, NEMA asked the Commission to: (1) Extend the new label's effective date for all covered bulbs, except CFLs, to January 1, 2012; (2) extend the effective date for CFLs to January 1, 2013; and (3) exempt all incandescent bulbs that will be phased out by 2014 due to revised Federal energy efficiency standards. After considering NEMA's petition, as well as responses from the Natural Resources Defense Council and Earthjustice, the Commission proposed extending the effective date for all covered bulbs to January 1, 2012, and exempting bulbs phased out by Federal efficiency standards in place by 2013 (e.g.,75-watt bulbs). The proposal did not include NEMA's request for an additional extension for CFLs, nor did it exempt incandescent bulbs that will be phased out by the 2014 Federal efficiency standards (i.e.,60- and 40-watt bulbs). The Commission received ten comments on these proposals.3

The Commission extends the effective date for the new labeling requirements to January 1, 2012, for all covered bulbs to provide manufacturers additional implementation time. The Commmission is not providing an additional extension for CFLs because such a delay would deprive consumers of the new label's benefits for these widely available high efficiency bulbs just as new efficiency standards become effective. Finally, consistent with its proposal, the Commission is not requiring the new label for incandescent bulbs phased out by 2012 and 2013 Federal efficiency standards (i.e.,75-watt reflector bulbs and bulbs subject to 2012 DOE efficiency standards) but is requiring the new label for 60- and 40-watt bulbs subject to 2014 standards.4

As proposed in the December 29, 2010 Notice, the final rule extends the effective date for all covered bulbs to January 1, 2012. The extension is warranted by legitimate industry concerns raised after the effective date was originally established.

In reaching this decision, the Commission considered several comments which found the proposed extension reasonable, another which found it too short, and others which found it too long. Specifically, IMERC, NRDC, IKEA of Sweden, and Universal Lighting Systems supported the proposed extension. Both IMERC and IKEA, for instance, argued that the extension is reasonable because, a wide variety of manufacturers need more time to re-label packages given the complexities of global supply chains.

However, NEMA argued that the extension only provides minimal relief to manufacturers and does not solve the difficulties outlined in its petition. NEMA noted that manufacturers and retailers conduct annual “product reviews,” which presumably involve the development of new or revised packaging, during the third quarter of the calendar year in advance of the retail “lighting season,” which takes place during the fourth and first quarters of the calendar year. Thus, according to NEMA, the proposed extension is effectively much shorter than six months because manufacturers must implement any packaging changes as part of their product reviews to complete them in time for the “lighting season.”

Finally, Earthjustice argued against any extension, reiterating its earlier concerns that NEMA's petition provided no new evidence justifying a delay, and asserting that the new label is necessary as soon as possible to help consumers make informed purchasing decisions.5 Also, Earthjustice noted that NEMA's petition demonstrates that manufacturers can meet the current effective date for LED and halogen products with no exceptions or delays, and thus no extension is warranted for these products.

The Commission adopts the proposed extension to address the logistical challenges industry faces in implementing the new label. As the Commission explained in the December 2010 Notice, and as detailed in NEMA's petition, the large number of packaging styles involved, the difficulties posed by overseas manufacturing and packaging, and the extensive nature of the label changes required for each package weigh in favor of providing manufacturers with additional time to comply. In addition, the new January 1, 2012, effective date coincides with the effective date for new Federal efficiency standards that will begin to phase out inefficient incandescent bulbs. Thus, even with the extension, consumers will have the new label to help with this transition.

The Commission declines to grant NEMA's request for additional time. As noted earlier, NEMA's comments suggest that any package changes must be completed several months before January 1, 2012, to coincide with manufacturers' “product reviews” in anticipation of the retail “lighting season.” However, NEMA offers no details about the “lighting season” and its impact on labeling. Indeed, NEMA only describes the season's duration generally, stating that it covers “the 4th and 1st quarters of a calendar year.” This half-year window appears to give manufacturers sufficient time to revise bulb packaging. Manufacturers could complete package revisions by the January 1, 2012, label deadline and still introduce their products during the remaining three months of the “lighting season.” NEMA's comment does not indicate otherwise. Nor did NEMA's comment propose an alternative effective date that would alleviate its perceived problems.

Moreover, the Commission now has provided bulb manufacturers with considerable time to plan theirpackaging changes. Specifically, the Commission provided initial notice of potential package changes in 2008, announced the details of those changes in June 2010, and recently proposed the extension it is now making final.

Finally, the Commission also declines to set an earlier effective date for LEDs and new incandescent halogen products as suggested by Earthjustice because an earlier date likely would have little impact on labeling for those products. As noted in the December 2010 Notice, manufacturers are likely to use the new label for these products as they enter the market over the next year. Thus, an earlier effective date for these products is not necessary.

As proposed in the December 29, 2010 Notice, the Commmission declines to extend the effective date for CFLs to January 1, 2013. Such a delay would deprive consumers of the new label's benefits for these widely-available bulbs during an important transition period. With the exception of NEMA, the commenters supported the Commission's proposal not to provide additional time for CFL labeling. NEMA reiterated its request for a CFL extension, but without providing additional information or argument.

As explained in the December 2010 Notice, further delaying the new CFL label would hinder consumers' ability to compare CFLs to new, efficient incandescent halogens and LEDs as those technologies become more available. Moreover, further delay for the market's most prevalent high efficiency bulbs may hamper ongoing efforts to help consumers understand the new label and use it in purchasing decisions. In addition, extending the effective date for all covered bulbs to January 1, 2012, along with the exemption of certain incandescent bulbs as discussed below in subsection C, should ease the burden of labeling CFLs.

As proposed in the December 29, 2010 Notice, the final rule maintains the new Lighting Facts label for 60- and 40-watt incandescent bulbs but exempts from the label requirements 75-watt incandescent bulbs, and reflector bulbs that do not meet DOE's July 14, 2012, standards.6

Industry commenters sought exemptions for all incandescents affected by the EISA standards, while other comments urged fewer exemptions than proposed. Specifically, NEMA restated that manufacturers have been reducing investment in incandescent products phased out by EISA and that new labeling requirements will force them to make additional capital investments in products that will soon exit the market. Similarly, Universal Lighting Systems explained that the general public already knows these bulbs are inefficient, and thus requiring new labeling for the short time these products remain available is unnecessary and a waste of resources.

In contrast, NRDC, Earthjustice, IMERC, and IKEA of Sweden urged the Commission to reconsider the proposed exemption for 75-watt bulbs. In particular, Earthjustice argued that the Commission has assigned unwarranted significance to the shorter time period the 75-watt bulb may be available after the new effective date.7 Earthjustice also argued that the FTC should not consider the relatively low market share of 75-watt bulbs because the Commission has previously stated that 75-watt bulb labeling will benefit consumers. IMERC argued that NEMA failed to present sufficient information to make a compelling argument for the exemption.

In addition, citing the recent phase-out of 100-watt incandescent bulbs in California and Europe, NRDC asserted that 75-watt bulbs will remain on store shelves well after January 1, 2013, due to manufacturer and retailer stockpiling. Moreover, Earthjustice stated that, with the phase-out of 100-watt bulbs, consumers looking for the brightest bulbs would gravitate to 75-watt bulbs given their tendency to equate watts with brightness. Earthjustice asserted that the new label on 75-watt bulbs would help consumers in determining that such bulbs may, in fact, be less bright than some higher efficiency alternatives. Similarly, Earthjustice asserted that, without the new label, consumers will confuse old 75-watt (∼1,100 lumen) bulbs with new 72-watt incandescent halogens that have a higher lumen rating.

Furthermore, NRDC also argued that the modest package revision cost associated with relabeling 75-watt bulbs would be offset by the economic and environmental benefits resulting from consumers using the new label to select more efficient bulbs, particularly given 75-watt bulbs' higher energy costs. Finally, NRDC and IKEA of Sweden noted that requiring the new label on inefficient incandescents may provide incentives to speed the phase out of incandescent bulbs prior to the effective date of the new efficiency standards.

After considering these comments, the Commission now exempts 75-watt and certain reflector bulbs as proposed in the December 2010 Notice. The new label is necessary for 60- and 40-watt bulbs because these bulbs may remain in production for two years after the new label's introduction and occupy a much greater market share than other inefficient incandescents such as 75-watt bulbs.8 Moreover, the commenters offered no information to refute that the benefits to consumers of requiring the new label for 60- and 40-watt bulbs outweigh “reinvestment” concerns raised by NEMA.

Despite concerns raised by commenters, the Commission, as detailed below, does not believe the new label is warranted for 75-watt bulbs because they will remain available for a relatively short time and manufacturers can redirect resources to label other bulbs. When it issued the new labeling rule in July 2010, the Commission chose to require the new label for traditional incandescent bulbs remaining in production for more than a year after the Rule's effective date, including 75-watt bulbs, which would have stayed in production for a year and half after the original effective date. However, the new six-month extension shortens the period that 75-watt bulbs will remain in production after the effective date, reducing the benefits of re-labeling these soon-to-be obsolete products. As NRDC notes, 75-watt bulbs may continue to appear on store shelves even after the end of production. However, it is reasonable to assume that these bulbs will not be prevalent on shelves for an extended period given their limited market share, manufacturerdisinvestment in traditional incandescent technologies as indicated in NEMA's petition, and the increasing availability of more efficient incandescent halogen bulbs that have similar performance characteristics. Finally, the exemption will allow manufacturers to focus their labeling resources on products that will remain in the market well into the future, such as CFLs.

The current Rule contains recordkeeping, disclosure, testing, and reporting requirements that constitute “information collection requirements” as defined by 5 CFR 1320.7(c), the regulation that implements the Paperwork Reduction Act (PRA).9 OMB has approved the Rule's existing information collection requirements through May 31, 2011 (OMB Control No. 3084-0069). The amendments in this document will not increase and, in fact, likely will reduce somewhat the previously estimated burden for the lamp labeling amendments.

The Regulatory Flexibility Act (RFA), 5 U.S.C. 601-612, requires that the Commission provide an Initial Regulatory Flexibility Analysis (IRFA) with a Proposed Rule, and a Final Regulatory Flexibility Analysis (FRFA) with the final rule, unless the Commission certifies that the Rule will not have a significant economic impact on a substantial number of small entities.10

The Commission does not anticipate that these amendments will have a significant economic impact on a substantial number of small entities. The Commission recognizes that some of the affected manufacturers may qualify as small businesses under the relevant thresholds. However, the Commission does not expect that the economic impact of the proposed amendments will be significant. If anything, the changes will reduce the Rule's burden on affected entities.

In its July 19, 2010 Notice (75 FR at 41711), the Commission estimated that the new labeling requirements will apply to about 50 product manufacturers and an additional 150 online and paper catalog sellers of covered products. The Commission expects that approximately 150 qualify as small businesses.

Although the Commission certified under the RFA that the amendments would not, if promulgated, have a significant impact on a substantial number of small entities, the Commission has determined, nonetheless, that it is appropriate to publish an FRFA in order to explain the impact of the amendments on small entities as follows:

Section 321(b) of the Energy Independence and Security Act of 2007 (Pub. L. 110-140) requires the Commission to conduct a rulemaking to consider the effectiveness of lamp labeling and to consider alternative labeling approaches. The Commission has issued an extension to the Rule's effective date to provide industry members with additional compliance time.

The Commission did not receive any comments specifically related to the impact of the final amendments on small businesses.

Under the Small Business Size Standards issued by the Small Business Administration, lamp manufacturers qualify as small businesses if they have fewer than 1,000 employees (for other household appliances the figure is 500 employees). Lamp catalog sellers qualify as small businesses if their sales are less than $8.0 million annually. The Commission estimates that there are approximately 150 entities subject to the final rule's requirements that qualify as small businesses.11

The final amendments will not increase any reporting, recordkeeping, or other compliance requirements associated with the Commission's labeling rules (75 FR 41696). The amendments will only extend the effective date for complying with the new lamp's labeling requirements previously issued at 75 FR 41696. The final amendments will also exempt from those requirements incandescent bulbs that fail to meet Federal energy efficiency standards by 2013 (e.g.,75-watt bulbs).

The Commission has not identified any other Federal statutes, rules, or policies that would duplicate, overlap, or conflict with the final amendments.

The Commission sought comment and information on the need, if any, for alternative compliance methods that, consistent with the statutory requirements, would reduce the economic impact of the rule on small entities. In extending the effective date for the new labeling requirements and exempting certain bulbs from those requirements, the Commission is currently unaware of the need for special provisions to enable small entities to take advantage of the proposed extension or exemption. The Commission expects that the proposed amendments will reduce or defer, rather than increase, the economic impact of the rule's requirements for all entities, including small entities.

I. Background

On May 17, 2010 (75 FR 27512), EPA published a notice of proposed rulemaking (NPR) for the District. The NPR proposed approval of the District's submittals that provide the basic program elements specified in the CAA sections 110(a)(2)(A), (B), (C), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M) necessary to implement, maintain, and enforce the 1997 8-hour ozone and PM2.5NAAQS and the 2006 PM2.5NAAQS. The formal submittals submitted by the District Department of the Environment on December 6, 2007 and January 11, 2008 addressed the section 110(a)(2) requirements for the 1997 8-hour ozone NAAQS; the submittals dated August 25, 2008 and September 22, 2008 addressed the section 110(a)(2) requirements for the 1997 PM2.5NAAQS; and the submittal dated September 21, 2009 addressed the section 110(a)(2) requirements for the 2006 PM2.5NAAQS.

The above referenced submittals address the infrastructure elements specified in the CAA section 110(a)(2). These submittals refer to the implementation, maintenance and enforcement of the 1997 8-hour ozone, the 1997 PM2.5NAAQS, and the 2006 PM2.5NAAQS. The rationale supporting EPA's proposed action is explained in the NPR and the technical support document (TSD) and will not be restated here. No public comments were received on the NPR. However, the portion of the TSD relating to section 110(a)(2)(D)(ii) is being revised because the TSD did not give the correct reason for the proposed approval. The TSD is available on line athttp://www.regulations.gov, Docket number EPA-R03-OAR-2010-0139.

EPA is approving the District's submittals that provide the basic program elements specified in CAA sections 110(a)(2)(A), (B), (C), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M) necessary to implement, maintain, and enforce the 1997 8-hour ozone and PM2.5NAAQS and the 2006 PM2.5NAAQS.

EPA made completeness findings for the 1997 8-hour ozone NAAQS on March 27, 2008 (73 FR 16205) and on October 22, 2008 (73 FR 62902) for the 1997 PM2.5NAAQS. These findings pertained only to whether the submissions were complete, pursuant to section 110(k)(1)(A), and did not constitute EPA approval or disapproval of such submissions. Each of these findings noted that the District failed to submit a complete SIP addressing the portions of (C) and (J) relating to the Part C permit programs for the 1997 8-hour ozone and the 1997 PM2.5NAAQS.

The District has not submitted a permit program required under sections 110(a)(2)(C) and (J). Therefore, EPA is not approving the submissions with respect to sections 110(a)(2)(C) and (J) relating to the Part C permit programs for the 1997 8-hour ozone, the 1997 PM2.5NAAQS or the 2006 PM2.5NAAQS. However, these requirements with respect to the permit programs have already been addressed by a Federal Implementation Plan (FIP) that remains in place (see 40 CFR 52.499), and therefore this action will not trigger any additional FIP obligation with respect to this requirement.

Two elements identified in section 110(a)(2) are not governed by the three year submission deadline of section 110(a)(1) because SIPs incorporating necessary local nonattainment area controls are not due within three years after promulgation of a new or revised NAAQS, but rather are due at the time the nonattainment area plan requirements are due pursuant to section 172. These elements are: (1) Submissions required by section 110(a)(2)(C) to the extent that subsection pertains to a permit program in Part D Title I of the CAA; and (2) any submissions required by section 110(a)(2)(I), which pertain to the nonattainment planning requirements of Part D Title I of the CAA. This action does not cover these specific elements. This action also does not address the requirements of section 110(a)(2)(D)(i) for the 1997 8-hour ozone NAAQS and 1997 PM2.5NAAQS, since they have been addressed by separate findings issued by EPA.SeeApril 25, 2005 (70 FR 21147) and June 9, 2010 (75 FR 32673).

This notice does not take any action to approve or disapprove any existing state provisions with regard to excess emissions during startup, shutdown, or malfunction (SSM) of operations at a facility. EPA believes that a number of states have SSM provisions which are contrary to the CAA and existing EPAguidance (August 11, 1999 Steven Herman and Robert Perciasepe Guidance Memorandum, “State Implementation Plans: Policy Regarding Excess Emissions During Malfunctions, Startup, and Shutdown”) and EPA plans to address such state regulations in the future. In the meantime, EPA encourages any state having a deficient SSM provision to take steps to correct it as soon as possible.

This notice also does not take any action to approve or disapprove any existing state rules with regard to Director's discretion or variance provisions. EPA believes that a number of states have such provisions which are contrary to the CAA and existing EPA guidance (52 FR 45109, November 24, 1987), and EPA plans to take action in the future to address such state regulations. In the meantime, EPA encourages any state having a Director's discretion or variance provision which is contrary to the CAA to take steps to correct the deficiency as soon as possible.

Under the CAA, 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 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. 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 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.

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 CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by June 13, 2011. 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 pertaining to the District of Columbia's section 110(a)(2) infrastructure requirements for the 1997 8-hour ozone and PM2.5NAAQS, and the 2006 PM2.5NAAQS, may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR part 52 is amended as follows:

I. Background II. EPA's Analysis of How Florida's Revisions Satisfy the Terms of the Conditional Approval III. Final Action IV. Statutory and Executive Order Reviews I. Background

On February 3, 2006, FDEP submitted a revision to its PSD regulations in response to the 2002 NSR Reform Rules for EPA approval into the Florida SIP.1 The February 3, 2006, SIP revision included changes to the Florida SIP, specifically in Florida Administrative Code (F.A.C.) Rules, Chapters 62-204—Air Pollution Control—General Provisions, 62-210—Stationary Sources—General Requirements, and 62-212—Stationary Source—Preconstruction Review, which became state-effective on February 2, 2006, and February 12, 2006. EPA proposed to conditionally approve these PSD SIP rules under section 110 of the CAA on April 4, 2008.See73 FR 18466. In the April 4, 2008 rulemaking, EPA determined that portions of Florida's February 3, 2006 SIP revision were not consistent with the federal PSD regulations set forth at 40 CFR 51.166. Therefore, EPA proposed to conditionally approve Florida's PSD program which established a commitment from FDEP to adopt the necessary regulations for consistency with federal PSD provisions to obtain full approval. EPA did not receive any comments on the proposal. EPA finalized its conditional approval of F.A.C. Chapters 62-204, 62-210, and 62-212, into the Florida SIP on June 27, 2008.See73 FR 36435.

On June 17, 2009, FDEP submitted the revision to its SIP incorporating the changes required by EPA as outlined in the conditional approval. See 73 FR 18466. Specifically, the June 17, 2009, SIP revision changes definitions in F.A.C Chapter 62-210.200 for “new emissions unit,” “regulated air pollutant,” and “significant emissions rate” as well as the recordkeeping requirements in F.A.C. Chapter 62-212.300(3)(a)1. In addition, Florida provided a clarification that the significant emissions rate for mercury in the Florida regulations is considered a state-only provision and is not intended to be incorporated into the Florida SIP. After consideration, EPA concludes that the June 17, 2009, SIP revision satisfies the conditions listed in EPA's June 27, 2008, conditional approval. Today, EPA is converting the June 27, 2008, conditional approval to a full approval.

In response to EPA`s June 27, 2008, conditional approval, Florida made three changes to its PSD requirements. These changes were required to ensure that Florida's PSD program is consistent with the federal PSD regulations (at 40 CFR 51.166) to obtain full approval of the program. First, Florida changed the definition of “new emissions unit” in F.A.C. Chapter 62-210.200 to indicate that it is a unit “ * * * that has existed for less than 2 years from the date such emissions unit first operated.” This definition is consistent with the federal definition of “New Emissions Unit” found at 40 CFR 51.166(b)(7)(i). Second, Florida changed the definitions of “Regulated Air Pollutant” and “Significant Emissions Rate” in F.A.C. Chapter 62-210.200 to include ozone depleting substances. This change is consistent with the federal definition of “Significant” in 40 CFR 51.166(b)(23). Third, Florida changed its recordkeeping requirements in F.A.C. Chapter 62-212.300(3)(a)1 to clarify that the applicant must provide a record of the amount of emissions excluded pursuant to the projected actual emissions requirements, an explanation as to why these emissions were excluded, and any netting calculations if applicable. This change is consistent with the federal recordkeeping requirements at 40 CFR 51.166(r)(6).

In addition, Florida provided a clarification that the significant emissions rate for mercury is considered a state-only provision and is not intended to be incorporated into the Florida SIP. EPA has determined that this clarification satisfies the condition listed in EPA's conditional approval.

As explained above, FDEP submitted changes to the definition of “new emissions unit,” “regulated air pollutant,” and “significant emissions rate” in F.A.C. Chapter 62-210.200 and the recordkeeping requirements in F.A.C. Chapter 62-212.300(3)(a)1. In addition, FDEP provided a clarification that the significant emissions rate for mercury in the Florida regulations is intended to apply as a state-only requirement only and is not intended to be incorporated into the Florida SIP. FDEP has satisfied the conditions listed in EPA's conditional approval. Therefore, EPA is taking direct final action to convert its conditional approval of Florida's SIP revisions to a full approval of Florida's PSD program.

As a result of Florida's June 17, 2009, SIP revision satisfying the conditional approval requirements and EPA's conversion to a full approval, the conditional approval language at § 52.519 of 40 CFR part 52, included in EPA's final conditional approval published June 27, 2008 (73 FR 36435), is no longer necessary. This action removes the conditional approval language relating to Florida's PSD program from the CFR to reflect that the program has been approved. EPA is publishing this rulemaking to remove and reserve § 52.519 of 40 CFR part 52.

EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. However, in the proposed rules section of thisFederal Registerpublication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision should adverse comments be filed. This rule will be effective June 13, 2011 without further notice unless the Agency receives adverse comments by May 12, 2011.

If EPA receives such comments, then EPA will publish a document withdrawing the final rule and informing the public that the rule will not take effect. All public commentsreceived will then be addressed in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period. Parties interested in commenting should do so at this time. If no such comments are received, the public is advised that this rule will be effective on June 13, 2011 and no further action will be taken on the proposed rule.

Under the CAA, 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 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. 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 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.

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 CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by June 13, 2011. 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'sFederal 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 may not be challenged later in proceedings to enforce its requirements. (Seesection 307(b)(2)).

40 CFR part 52 is amended as follows:

Throughout this document, “we,” “us” and “our” refer to EPA.

On October 5, 2010 (75 FR 61369), EPA proposed to approve portions of the Permit to Operate for the Kiefer Landfill into the California SIP. The submitted portions of the Permit to Operate for the Kiefer Landfill (Permit No. 17359), which was issued by the Sacramento Metropolitan Air Quality Management District (SMAQMD), relate to the control of NOXemissions from the air pollution control landfill gas flare. The SMAQMD originally issued Permit No. 17359 on August 7, 2006, and later revised it on November 13, 2006. We are proposing to act on the submitted portions of Permit No. 17359, as revised on November 13, 2006. The California Air Resources Board (CARB) submitted this SIP revision to EPA on July 11, 2007.

We proposed to approve the submitted conditions of SMAQMD Permit No. 17359 into the SMAQMD portion of the California SIP because we determined that they complied with the relevant CAA requirements for SIP approval. Our proposed action contains more information on the submitted portions of the permit and our evaluation.

EPA's proposed action provided a 30-day public comment period. During this period, we did not receive any comments.

No comments were submitted that change our assessment that the submitted conditions of SMAQMD Permit No. 17359 comply with the relevant CAA requirements. Therefore, as authorized in section 110(k)(3) of the Act, EPA is fully approving these conditions into the California SIP. Specifically, we are approving permit conditions 1, 6, 10, 11, 16, 20, 27, 28, and 29, or portions thereof, which together establish an enforceable NOXlimitation satisfying RACT for the air pollution control landfill gas flare at the Kiefer Landfill.Please seethe docket for a copy of the complete submitted document.

Under the CAA, 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 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. 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 AdvancementAct 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 disproportionate human health or environmental effects with practical, appropriate, 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 CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by June 13, 2011. 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 may not be challenged later in proceedings to enforce its requirements (see section 307(b)(2)).

Part 52, Chapter I, Title 40 of the Code of Federal Regulations is amended as follows:

I. Background—The October 26, 2010, Proposed Rule

On October 26, 2010, the Corporation published a proposed rule (45 CFR part 2553) in theFederal Register(Vol. 75, No. 206) to regulate the competitive grantmaking process for the Retired and Senior Volunteer Program (RSVP).

The proposed rule implements RSVP re-competition statutory requirements set forth in the Edward M. Kennedy Serve America Act (Serve America Act), which President Obama signed into law on April 21, 2009. The Serve America Act reauthorizes and expands national service programs administered by the Corporation for National and Community Service (Corporation) by amending the National and Community Service Act of 1990 (NCSA) and the Domestic Volunteer Service Act of 1973 (DVSA).

The Serve America Act amended the DVSA by requiring the Corporation to develop a competitive process for selecting grant recipients for the RSVP Program, beginning in fiscal year 2013. The competitive process, as directed by statute, will include the use of peer review panels with expertise in senior service and aging, site inspections, as appropriate, and evaluations of existing grantees. The amended statute requires that, beginning in fiscal year 2013, RSVP grants be awarded for a period of 3 years, with an option for renewal of 3 years if the grantee meets the performance measures established in its grant award, as well as complying with the terms and conditions of the grant.

In theFederal Registerof October 26, 2010 (45 CFR part 2553), the Corporation published the proposed rule, with a 60-day comment period. The Corporation received a total of 21 comments from twelve commenters, including one association that represents several hundred members. Comments are discussed in detail in Part III.

In general, most of the comments supported the proposed regulations.

The current competitive process for selecting RSVP grantees only occurs when there is new money above the appropriated base funding for RSVP grants. The future competitive process for selecting RSVP grantees will include the same elements specified in the amended DVSA that have been used for previous competitive processes. The elements specified in the amended DVSA are discussed below.

A. Peer review panels [DVSA § 201(e)(2)(B)(i); 45 CFR 2553.71(b)]:Asof 2013, RSVP grant applications will be reviewed by blended peer review panels that will include members with specialized expertise in senior service and aging, as well as Corporation staff, who will offer their expert opinions concerning each application. The use of blended peer review panels is well established at the Corporation and is currently part of the process of selecting grantees for other programs such as AmeriCorps and Learn and Serve America. The Corporation also has considerable experience in using outside reviewers with expertise in senior service and aging on selection panels for Senior Corps grants, including RSVP. The Corporation's existing processes for announcing peer review opportunities, registering potential reviewers, selecting reviewers for particular competitions, managing review panels, and considering peer review opinions in making the final selection of grantees will be adapted to meet the requirements for RSVP grant competitions.

B. Site inspections [DVSA § 201(e)(2)(B)(ii); 45 CFR 2553.71(b)]:As appropriate, on-going RSVP grant applicants or proposed project sites may be visited by Corporation representatives as part of the competitive selection process. While such site inspections would normally not be needed, circumstances could arise during the grantee selection process where on-site observations or meetings might be helpful, for example, in clarifying aspects of an application or validating the capacity of an organization to administer a federal grant.

C. Performance Measures, Outcomes, and Other Criteria [DVSA §§ 201(e)(2)(B)(v) and 201(g); 45 CFR 2553.12(l) and Subpart J]:As a part of the competitive process, the Corporation will develop performance measures, outcomes, and other criteria that will be used in the evaluation of applicants. The performance measures will be established in the Notification of Funding Availability and may be different than those incorporated in current grants. These performance measures, outcomes, and criteria will reflect the different needs of rural and urban communities. These performance measures, outcomes, and criteria will be used in conducting the competitive process and in developing assessment reports as described in paragraph D, below.

Pursuant to section 201(g)(2)(A) & (B) of the Serve America Act, prior to Fiscal Year 2014 that is, the first year after initiation of the competitive process, the performance measures, outcomes, and other criteria established for the competitive process may not be updated or modified, except when the Corporation determines that a performance measure, outcome, or criterion has become operationally problematic. In such cases, after consulting with RSVP project directors, sponsor executives, and others as appropriate, and notifying the authorizing committees, the Corporation may eliminate that performance measure, outcome, or criterion, or modify it.

D. Assessments of existing RSVP projects [DVSA §§ 201(f) and (g); 45 CFR 2553(f)]:The Corporation has set up a mechanism for consulting with RSVP project directors during the development and implementation of the assessment process. All existing RSVP grants will receive a report from the Corporation in a standardized format that assesses program strengths and weaknesses in a way that can assist the grantee with program improvement. This report will guide the Corporation's training and technical assistance for the project. The standardized report will, in addition to assessing the program's strengths and weaknesses, include:

1. An assessment of the extent to which the grantee meets or exceeds the performance measures, outcomes, and other criteria established for its grant;

2. An assessment of whether the project has adequately addressed the needs of the population and community it serves;

3. An assessment of the grant's efforts to collaborate with other community organizations, units of government, and entities providing services to seniors;

4. An assessment of the project's compliance with requirements for appropriate use of Federal funds, based on use of a protocol for fiscal management; and

5. An assessment of whether the project is in conformity with eligibility, outreach, enrollment, and other RSVP programmatic requirements.

To the maximum extent practicable, the report for each project will take into account input received from individuals who are knowledgeable about RSVP, including current or former employees of the Corporation and representatives of the communities served by RSVP volunteers.

The process of assessing existing RSVP grants will begin in Fiscal Year 2010 and run through Fiscal Year 2012, with the objective of completing the assessment and resulting training and technical assistance prior to conducting the initial cycle of grant competitions in Fiscal Year 2013.

E. Maintenance of volunteers and geographic service areas [DVSA § 201(e)(2)(B)(iv)]:The Corporation will ensure that (a) grants awarded as a result of the competitive selection process beginning in Fiscal Year 2013 are for at least the same number of volunteers annually as were supported for the service area during the previous grant cycle and (b) maintain a similar program distribution as was maintained during the previous grant cycle. In addition, the Corporation will minimize any disruption to RSVP volunteers that might result from implementing the competitive process of grantee selection.

F. Program Termination [DVSA § 201(g)(3); 45 CFR 2553.31]:Until 2013, the Corporation will continue to initiate termination or denial of an application for refunding in the event that a grantee does not meet one or more of the performance measures, outcomes, and other criteria established as described above. Any such termination or denial of refunding will follow the notification and due process currently followed in such cases, in accordance with Section 412 of the DVSA, as implemented by 45 CFR part 1206 Grants and Contracts—Suspension and Termination and Denial of Application for Refunding, except that after initiation of competition in FY 2013, the provisions governing denial of refunding will not apply to a grant that has been competed in accordance with 45 CFR 2553.71, and where the grantee has also completed its optional three-year renewal term.

G. Technical Assistance [DVSA § 201(h) and (j); 45 CFR 2553.71(f)]:The Corporation will develop procedures for providing technical assistance, including regular monitoring visits, to assist grantees in meeting the established performance measures, outcomes, and criteria. One component of such technical assistance, which was launched in October 2009, is an online resource guide available athttp://www.nationalserviceresources.org/rsvp-online-resource-guide.The Corporation updates this online guide from time to time with examples of high-performing RSVP projects and other information.

H. Grant Extension for Purpose of New Competition [DVSA § 201(i); 2553.71(e)]:To minimize disruption to volunteers and services, if a grantee fails to meet one or more of the established performance measures, outcomes, and other criteria, the Corporation will continue to fund the current grantee for up to 12 months if the competition for a replacement sponsor has not resulted in a replacement sponsor. During those 12 months, the Corporation will conduct a new competition to serve the geographic area served by the currentgrantee and reach out to other potential sponsors. The current grantee will be eligible for the new competition and, during the 12-month period, the Corporation may continue to provide training and technical assistance in meeting established performance measures.

All provisions of part 2553 not modified by the amendments described below will remain in effect, including the provision in § 2553(a) that a “Corporation grant may be awarded to fund up to 90 percent of the total project cost in the first year, 80 percent in the second year, and 70 percent in the third and succeeding years.” Thus, the Corporation will continue to require that a current grantee applying for a new grant must contribute from non-Corporation funds at least 30 percent of the total project cost. A new applicant, on the other hand, will be required to contribute 10 percent in the first year of the grant, 20 percent in the second year, and 30 percent in the third and succeeding years.

Of the 21 comments received, the vast majority of the comments pertained to clarification of the implementation of the proposed regulation but generally supported the regulation. The comments and our responses are set forth below.

Comment:Seven comments stated that specifying the “blended peer review panels that will include members with specialized expertise in senior service” is insufficient and encouraged the Corporation to utilize peer reviewers with specialized knowledge applicable to RSVP grants.

Response:The Corporation agrees and will engage peer review panelists that possess the appropriate expertise and knowledge base to meet the requirements of the SAA, and to participate in a robust and transparent competitive review process.

Comment:Seven comments suggested that site inspections be preceded by prior notice, as well as explicitly state that the purpose of the site visits is constructive, and not intended to be an evaluation of the particular program.

Response:The Corporation will clarify that the site inspections are a part of the competitive review intended to assist the Corporation during competition in clarifying aspects of an application or validating the capacity of an organization to administer a Federal grant, as well as other elements of the application review process, and are not part of technical assistance nor intended as a continuous improvement tool.

Comment:Twelve comments expressed concern that the development of performance measures would not be consistent with the Corporation's larger goals, nor would they reflect grantees' specific circumstances and local needs.

Response:The Corporation agrees that coordination between national standard measures and grantee initiated measures is essential. The Corporation's new strategic plan will help to inform how the overall performance measures will fit within a structure of national and local measures.

Comment:Nine comments suggested that if the Corporation consults meaningfully with grantees when providing the required pre-competition assessment, the process will go more smoothly and the results will be better. In addition, the process will be more efficient and more widely supported if the report for each project includes input not only from Corporation but from community representatives who actually work with, and benefit from, RSVP as well.

Response:The Corporation agrees with this comment, as the process for disseminating the pre-competition assessments to existing RSVP grantees includes one-on-one consultation between state program officers and grantee project directors, occurring upon the grantee's receipt of the assessment, and is designed to ensure the grantee receives appropriate technical assistance to maximize the effectiveness of the assessment. Additionally, the Community Stakeholder Survey was provided to all current grantees as a tool to measure how effectively an RSVP project builds meaningful, interactive community partnerships and identifies and addresses community needs from the perspective of the project's community stakeholders. The survey is designed to be completed by the group whom the grantee feels is the most appropriate.

Comment:Four comments stated support of the Corporation's intention to enroll at least the same number of volunteers as were supported during the previous grant cycle, but also inquired about the sponsor's corresponding responsibilities. Specifically, a commenter expressed concern about a sponsor's program responsibilities with regard to maintaining the number of volunteers, stating that the proposed language misinterprets Congressional intent in that the commenter believes the language in the statute is directed to the Corporation, not to the program sponsor.

Response:The Corporation believes that, as the grant-making entity, it has the responsibility and authority to require a program sponsor that is being replaced by a subsequent program sponsor to maintain the current requirements concerning the maintenance of volunteers and geographic service areas. The Corporation also maintains that the statutory requirement is not mutually exclusive, in that both the Corporation and project sponsors who are being replaced by subsequent sponsors have separate, independent responsibilities, in regard to the implementation of the competitive process, to “make every effort to minimize the disruption to volunteers.” Therefore, § 2553.23(i) is merely the Corporation's implementation of this Congressional mandate.

Comment:Six comments stated that grantees should be able to work with the Corporation on the substance of the technical assistance provided to grantees.

Response:The Corporation agrees with this comment and has convened, and will continue to convene, a working group of project directors to consult on many aspects of preparing for competition, including technical assistance.

Comment:Six comments disagreed with the level of non-Corporation matching funds, which requires current grantees to maintain their required matching funds at a minimum of 30 percent of the total project cost.

Response:The proposed policy of requiring non-Corporation matching funds to be at a minimum of 30 percent of the total project cost when the incumbent is awarded another grant reflects an internal alignment with Corporation policy. The underlying rationale for the policy is that the incumbent has already achieved a level of program operations that supports the grant. New applicants are provided a comparable opportunity to achieve the same level of program operations.

The final rule takes effect July 11, 2011.

The Corporation has determined that this rule is not an “economically significant” rule within the meaning of E.O. 12866 because it is not likely to result in: (1) An annual effect on the economy of $100 million or more, or an adverse and material effect on a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or state, local, or tribal government or communities; (2) the creation of a serious inconsistency or interference with anaction taken or planned by another agency; (3) a material alteration in the budgetary impacts of entitlement, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) the raising of novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in E.O. 12866. It is, however, a significant rule and has been reviewed by the Office of Management and Budget in accordance with E.O. 12866.

Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has been designated a “significant regulatory action” although not economically significant, under section 3(f) of E.O. 12866. Accordingly, the rule has been reviewed by the Office of Management and Budget.

As required by the Regulatory Flexibility Act of 1980, 5 U.S.C. 605 (b), the Corporation certifies that this rule will not have a significant economic impact on a substantial number of small entities. This regulatory action will not result in (1) an annual effect on the economy of $100 million or more; (2) a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; or (3) significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets. Therefore, the Corporation has not performed the initial regulatory flexibility analysis that is required under the Regulatory Flexibility Act, 5 U.S.C. 601et seq.,for major rules that are expected to have such results.

For purposes of Title II of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531-1538, as well as Executive Order 12875, this regulatory action does not contain any federal mandate that may result in increased expenditures in either federal, state, local, or tribal governments in the aggregate, or impose an annual burden exceeding $100 million on the private sector.

This rule contains no information collection requirements and is therefore not subject to the requirements of the Paperwork Reduction Act of 1980 (44 U.S.C. 3501et seq.).

Executive Order 13132,Federalism,prohibits an agency from publishing any rule that has Federalism implications if the rule either imposes substantial direct compliance costs on state and local governments and is not required by statute, or the rule preempts state law, unless the agency meets the consultation and funding requirements of section 6 of the Executive Order. The rule does not have any Federalism implications, as described above.

For the reasons set forth in the preamble, the Corporation for National and Community Service amends 45 CFR part 2553 as follows:

This is a synopsis of the Commission'sReport and Order,MB Docket No. 10-264, adopted March 29, 2011, and released March 30, 2011. The full text of this document is available for public inspection and copying during normal business hours in the FCC's Reference Information Center at Portals II, CY-A257, 445 12th Street, SW., Washington, DC 20554. This document will also be available via ECFS (http://fjallfoss.fcc.gov/ecfs/). This document may be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 1-800-478-3160 or via the company's Web site,http://www.bcipweb.com.To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an e-mail tofcc504@fcc.govor call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).

This document does not contain information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any information collection burden “for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198,see44 U.S.C. 3506(c)(4). Provisions of the Regulatory Flexibility Act of 1980 do not apply to this proceeding.

The Commission will send a copy of thisReport and Orderin a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional review Act,see5 U.S.C. 801(a)(1)(A).

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 73 as follows:

The Federal Communications Commission considers this rule to be a procedural rule change which is exempt from notice-and-comment under 5 U.S.C. 553(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, the Federal Communications Commission certifies that these regulatory amendments will not have a significant impact on small business entities.

The Commission will not send a copy of this item pursuant to the Congressional Review Act,see5 U.S.C. 801(a)(1)(A), because the changes made involve only the year in which broadcast station licenses expire. There are no substantive or procedural changes to any rule.

This document does not contain proposed information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any proposed information collection burden “for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198,see44 U.S.C. 3506(c)(4).

For the reasons set forth in the preamble, amend part 73 of title 47 of the Code of Federal Regulations as follows:

The Department published a proposed rule, Public Notice 5992 at 72 FR 64980, November 19, 2007, with a request for comments. The rule was proposed to implement the contractor personal identification requirements of Homeland Security Presidential Directive 12 (HSPD-12), and Federal Information Processing Standards Publication (FIPS PUB) Number 201, Personal Identity Verification (PIV) of Federal Employees and Contractors. (See 71 FR 208, January 3, 2006). As specified in the proposed rule, the DOSAR clause directs contractors to an Internet Web site document that outlines the personal identity verification procedures for various types of contractors (cleared and uncleared), location of performance (domestic and overseas facilities), and the access requirements (physical and/or logical). The rule was discussed in detail in Public Notice 5992. No public comments were received. The Department is now promulgating a final rule with no changes from the proposed rule.

The Department of State does not consider this rule to be a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review. In addition, the Department is exempt from Executive Order 12866 except to the extent that it is promulgating regulations in conjunction with a domestic agency that are significant regulatory actions. The Department has nevertheless reviewed the regulation to ensure its consistency with the regulatory philosophy and principles set forth in that Executive Order.

The Department of State, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving it, certifies that this rule will not have a significant economic impact on a substantial number of small entities.

This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any year and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Act of 1995.

This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Act of 1996. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign based companies in domestic and import markets.

The Department of State does not consider this rule to be a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review, as amended by Executive Order 13563. In addition, the Department is exempt from Executive Order 12866 except to the extent that it is promulgating regulations in conjunction with a domestic agency that are significant regulatory actions. The Department has nevertheless reviewed the regulation to ensure its consistency with the regulatory philosophy and principles set forth in that Executive Order.

This rule will not 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. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to require consultations or warrant the preparation of a federalism summary impact statement.

Information collection requirements have been approved under the Paperwork Reduction Act of 1980 by OMB, and have been assigned OMB control number 1405-0050.

Accordingly, for reasons set forth in the preamble, title 48, chapter 6 of the Code of Federal Regulations is amended as follows:

The theft prevention standard applies to (1) all passenger car lines; (2) all multipurpose passenger vehicle (MPV) lines with a gross vehicle weight rating (GVWR) of 6,000 pounds or less; (3) low-theft light-duty truck (LDT) lines with a GVWR of 6,000 pounds or less that have major parts that are interchangeable with a majority of the covered major parts of passenger car or MPV lines; and (4) high-theft light-duty truck lines with a GVWR of 6,000 pounds or less.

The purpose of the theft prevention standard (49 CFR part 541) is to reduce the incidence of motor vehicle theft by facilitating the tracing and recovery of parts from stolen vehicles. The standard seeks to facilitate such tracing by requiring that vehicle identification numbers (VINs), VIN derivative numbers, or other symbols be placed on major component vehicle parts. The theft prevention standard requires motor vehicle manufacturers to inscribe or affix VINs onto covered original equipment major component parts, and to inscribe or affix a symbol identifying the manufacturer and a common symbol identifying the replacement component parts for those original equipment parts, on all vehicle lines subject to the requirements of the standard.

Section 33104(d) provides that once a line has become subject to the theft prevention standard, the line remains subject to the requirements of the standard unless it is exempted under § 33106. Section 33106 provides that a manufacturer may petition annually to have one vehicle line exempted from the requirements of § 33104, if the line is equipped with an antitheft device meeting certain conditions as standard equipment. The exemption is granted if NHTSA determines that the antitheft device is likely to be as effective as compliance with the theft prevention standard in reducing and deterring motor vehicle thefts.

The agency annually publishes the names of those LDT lines that have been determined to be high theft pursuant to 49 CFR part 541, those LDT lines that have been determined to have major parts that are interchangeable with a majority of the covered major parts of passenger car or MPV lines and those vehicle lines that are exempted from the theft prevention standard under section 33104. Appendix A to Part 541 identifies those LDT lines that are or will be subject to the theft prevention standard beginning in a given model year. Appendix A-I to Part 541 identifies those vehicle lines that are or have been exempted from the theft prevention standard.

For MY 2012, there are no new LDT lines that will be subject to the theft prevention standard in accordance with the procedures published in 49 CFR part 542. Therefore, Appendix A does not need to be amended.

For MY 2012, the list of lines that have been exempted by the agency from the parts-marking requirements of Part 541 is amended to include nine vehicle lines newly exempted in full. The nine exempted vehicle lines are the BMW Carline X1, Chrysler Fiat 500, Ford Fusion, Chevrolet Sonic, Range Rover Evoque, Outlander Sport, Suzuki Kizashi, Toyota Corolla and the VW Audi A8.

We note that the agency removes from the list being published in theFederal Registereach year certain vehicle lines that have been discontinued more than 5 years ago. Therefore, the Buick LeSabre, Buick Park Avenue (1992-2005), Buick Regal/Century, Chevrolet Cavalier, Chevrolet Classic, Oldsmobile Alero, Oldsmobile Aurora, Pontiac Bonneville, Pontiac GrandAm, Pontiac Sunfire, Acura CL, Acura NSX, Acura RL, Isuzu Axiom and the Mazda Millennia have been removed from the Appendix A-I listing. The agency will continue to maintain a comprehensive database of all exemptions on our Web site. However, we believe that re-publishing a list containing vehicle lines that have not been in production for a considerable period of time is unnecessary.

The vehicle lines listed as being exempt from the standard have previously been exempted in accordance with the procedures of 49 CFR part 543 and 49 U.S.C., 33106. Therefore, NHTSA finds for good cause that notice and opportunity for comment on these listings are unnecessary. Further, public comment on the listing of selections and exemptions is not contemplated by 49 U.S.C. Chapter 331. For the same reasons, since this revised listing only informs the public of previous agency actions and does not impose additional obligations on any party, NHTSA finds for good cause that the amendment made by this notice should be effective as soon as it is published in theFederal Register.

A. Executive Order 12866 and DOT Regulatory Policies and Procedures Executive Order 12866, “Regulatory Planning and Review” (58 FR 51735, October 4, 1993), provides for making determinations whether a regulatory action is “significant” and therefore subject to Office of Management and Budget (OMB) review and to the requirements of the Executive Order. The Order defines a “significant regulatory action” as one that is likely to result in a rule that may:

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

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

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

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

This final rule was not reviewed under Executive Order 12866. It is not significant within the meaning of the DOT Regulatory Policies and Procedures. It will not impose any new burdens on vehicle manufacturers. This document informs the public of previously granted exemptions. Since the only purpose of this final rule is to inform the public of previous actions taken by the agency no new costs or burdens will result.

The Regulatory Flexibility Act of 1980 (5 U.S.C. 601et seq.) requires agencies to evaluate the potential effects of their rules on small businesses, small organizations and small governmental jurisdictions. I have considered the effects of this rulemaking action under the Regulatory Flexibility Act and certify that it would not have a significant economic impact on a substantial number of small entities. As noted above, the effect of this final rule is only to inform the public of the agency's previous actions.

NHTSA has analyzed this final rule for the purposes of the National Environmental Policy Act. The agency has determined that implementation of this action will not have any significant impact on the quality of the human environment. Accordingly, no environmental assessment is required.

The agency has analyzed this rulemaking in accordance with the principles and criteria contained in Executive Order 13132 and has determined that it does not have sufficient Federal implications to warrant consultation with State and local officials or the preparation of a federalism summary impact statement.

The Unfunded Mandates Reform Act of 1995 requires agencies to prepare a written assessment of the costs, benefits and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local or tribal governments, in the aggregate, or by the private sector, of more than $100 million annually ($120.7 million as adjusted annually for inflation with base year of 1995). The assessment may be combined with other assessments, as it is here.

This final rule will not result in expenditures by State, local or tribal governments or automobile manufacturers and/or their suppliers of more than $120.7 million annually. This document informs the public of previously granted exemptions. Since the only purpose of this final rule is to inform the public of previous actions taken by the agency, no new costs or burdens will result.

Pursuant to Executive Order 12988, “Civil Justice Reform”1 the agency has considered whether this final rule has any retroactive effect. We conclude that it would not have such an effect. In accordance with § 33118 when the Theft Prevention Standard is in effect, a State or political subdivision of a State may not have a different motor vehicle theft prevention standard for a motor vehicle or major replacement part. 49 U.S.C. 33117 provides that judicial review of this rule may be obtained pursuant to 49 U.S.C. 32909. Section 32909 does not require submission of a petition for reconsideration or other administrative proceedings before parties may file suit in court.

The Department of Transportation has not submitted an information collection request to OMB for review and clearance under the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. Chapter 35). This rule does not impose any new information collection requirements on manufacturers.

In consideration of the foregoing, 49 CFR Part 541 is amended as follows:

Extensive Supplementary Information was provided in the proposed rule for this activity, which was published in theFederal Registeron Tuesday, July 7, 2009 (74 FR 32264). This information will not be reprinted here in its entirety; rather, all sections from the proposed rule will be represented herein and will contain either a summary of the material presented in the proposed rule or a note referencing the page(s) in the proposed rule where the information may be found. Any information that has changed since the proposed rule was published will be addressed herein. Additionally, this final rule contains a section that responds to the comments received during the public comment period.

Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361et seq.) direct the Secretary of Commerce (Secretary) to allow, upon request, the incidental, but not intentional taking of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) during periods of not more than five consecutive years each if certain findings are made and regulations are issued or, if the taking is limited to harassment, notice of a proposed authorization is provided to the public for review.

Authorization shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses, and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such taking are set forth.

NMFS has defined “negligible impact” in 50 CFR 216.103 as an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.

The NDAA (Pub. L. 108-136) removed the “small numbers” and “specified geographical region” limitations and amended the definition of “harassment” as it applies to a “military readiness activity” to read as follows (Section 3(18)(B) of the MMPA): Any act that injures or has the significant potential to injure a marine mammal or marine mammal stock in the wild [Level A Harassment]; or any act that disturbs or is likely to disturb a marine mammal or marine mammal stock in the wild by causing disruption of natural behavioral patterns, including, but not limited to, migration, surfacing, nursing, breeding, feeding, or sheltering, to a point where such behavioral patterns are abandoned or significantly altered [Level B Harassment].

On May 15, 2008, NMFS received an application from the Navy requesting authorization for the take of 5 species of marine mammals incidental to the RDT&E activities within the NAVSEA NUWC Keyport Range Complex Extension over the course of 5 years. These RDT&E activities are classified as military readiness activities. On April 29, 2009, NMFS received additional information and clarification on the Navy's proposed NAVSEA NUWC Keyport Range Complex Extension RDT&E activities. The Navy states that these RDT&E activities may cause various impacts to marine mammal species in the proposed action area. The Navy requests an authorization to take individuals of these marine mammals by Level B Harassment. Please refer to Tables 6-23, 6-24, 6-25, and 6-26 of the Navy's Letter of Authorization (LOA) application for detailed information of the potential marine mammal exposures from the RDT&E activities in the Keyport Range Complex Extension per year. However, due to the proposed mitigation and monitoring measures and standard range operating procedures in place, NMFS estimates that the take of marine mammals is likely to be lower than the amount requested. NMFS does not expect any marine mammals to be killed or injured as a result of the Navy's proposed activities, and NMFS is not proposing to authorize any injury or mortality incidental to the Navy's proposed RDT&E activities within the Keyport Range Complex Extension.

The proposed rule contains a description of the Navy's mission, their responsibilities pursuant to Title 10 of the United States Code, and the specific purpose and need for the activities for which they requested incidental take authorization. The descriptioncontained in the proposed rule has not changed (74 FR 32264; July 7, 2009; pages 32264-32265).

The proposed rule contains a complete description of the Navy's specified activities that are covered by these final regulations, and for which the associated incidental take of marine mammals will be authorized in the related LOAs. The proposed rule describes the nature and levels of the RDT&E activities and the proposed range extension. These RDT&E activities consist of testing that involves active acoustic devices such as general range tracking, unmanned undersea vehicle (UUV) tracking systems, torpedo sonars, range targets and special tests, special sonars, sonobuoys and helicopter dipping sonar, side scan sonar, and other acoustic sources (acoustic modem, target simulators, navigation aids, sub-bottom profilers, and vessel engines,etc.); and testing that involves non-acoustic activities such as magnetic, oceanographic sensor, laser imaging detection and ranging, and inert mine hunting and inert mine clearing exercises. Since NMFS does not believe that those range activities involving non-acoustic testing will have adverse impacts to marine mammals, they were not analyzed further and will not be covered under this rule.

The proposed regulations were drafted in such a way that the Navy's specified actions were strictly defined by the amounts of each type of sound source utilized (e.g.,hours of source use) over the course of the 5-year regulations. Following the issuance of the proposed rule, the Navy realized that their evolving RDT&E programs necessitate greater flexibility in both thetypesandamountsof sound sources that they use.

The Navy regularly modifies or develops new technology, often in the way of sound sources that are similar to, but not exactly the same as, other sources. In this final rule, we increase flexibility by inserting language into § 218.170(c) that will allow for authorization of take incidental to the previously identified specified activities and sources or to “similar activities and sources,” provided that the implementation of these changes in annual LOAs does not result in exceeding the incidental take analyzed and identified in the final rules.

Regarding amounts of sound source use, the proposed regulations only allowed for the authorization of take incidental to a 5-yr maximum amount of use for each specific sound source, even though in most cases our effects analyses do not differentiate the impacts from the majority of the different types of sources. Specifically, although some sonar sources are louder or put more acoustic energy into the water in a given amount of time, which results in more marine mammal takes, we do not differentiate between the individual takes that result from one source versus another. In this final rule, we increase flexibility by including language in § 218.170(c)(2) that allows for inter-annual variability in the amount of source use identified in each annual LOA (i.e.,one year the Navy could use a lot of one source, and little of another, and the next year those amounts could be reversed), provided it does not result in exceeding the incidental take analyzed and identified in the final rules. These technical regulatory modifications do not change the analyses conducted in the proposed rule.

No other changes have been made in this section from the proposed rule (74 FR 32264; July 7, 2009; pages 32265-32268). Tables 1 through 4 summarize the projected days of use by range site, primary acoustic sources commonly used within the NAVSEA NUWC Keyport Range Complex and their operating hours, and the proposed annual range activities and operations, respectively.

The information on marine mammals and their distribution and density are based on data gathered from NMFS, United States Fish and Wildlife Service (USFWS) and recent references, literature searches of search engines, peer review journals, and other technical reports, to provide a regional context for each species. The data were compiled from available sighting records, literature, satellite tracking, and stranding and by-catch data.

A total of 24 cetacean species and subspecies and 4 pinniped species are known to occur in Washington State waters; however, several are seen only rarely. Seven of these marine mammal species are listed as Federally-endangered under the Endangered Species Act (ESA) occur or have the potential to occur in the proposed action area: Blue whale (Balaenoptera musculus), fin whale (B. physalus), Sei whale (B. borealis), humpback whale (Megaptera novaengliae), north Pacific right whale (Eubalaena japonica), sperm whale (Physeter macrocephalus), and the southern resident population of killer whales (Orcinus orca). The species, Steller sea lion (Eumetopias jubatus), is listed as threatened under the ESA. The Description of Marine Mammals in the Area of the Specified Activities section has not changed from what was in the proposed rule (74 FR 32264; July 7, 2009; pages 32268-32273). Lists of marine mammal species known to occur or potentially occur within the Keyport, DBRC, and QUTR sites are shown in Tables 4, 5, and 6, respectively.

An understanding of the basic properties of underwater sound is necessary to comprehend many of the concepts and analyses presented in this document. A detailed description of this topic was provided in the proposed rule (74 FR 32264; July 7, 2009; pages 32273-32274) and is not repeated herein.

With respect to the MMPA, NMFS' effects assessment serves four primary purposes: (1) To prescribe the permissible methods of taking (i.e.,Level B Harassment (behavioral harassment), Level A Harassment (injury), or mortality, including an identification of the number and types of take that could occur by Level A or B harassment or mortality) and to prescribe other means of effecting the least practicable adverse impact on such species or stock and its habitat (i.e.,mitigation); (2) to determine whether the specified activity will have a negligible impact on the affected species or stocks of marine mammals (based on the likelihood that the activity will adversely affect the species or stock through effects on annual rates of recruitment or survival); (3) to determine whether the specified activity will have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses; and (4) to prescribe requirements pertaining to monitoring and reporting.

In the Potential Impacts to Marine Mammal Species section of the proposed rule, NMFS included a qualitative discussion of the different ways that sonar operations may potentially affect marine mammals.See74 FR 32264; July 7, 2009; pages 32274-42281. Marine mammals may experience direct physiological effects (such as threshold shift), acoustic masking, impaired communications, stress responses, and behavioral disturbance. The information contained in Potential Impacts to Marine Mammal Species from sonar operations section from the proposed rule has not changed.

Additional analyses on potential impacts to marine mammals from vessel movement within the NAVSEA NUWC Keyport Range Complex Study Area are added below.

There are limited data concerning marine mammal behavioral responses to vessel traffic and vessel noise, and a lack of consensus among scientists with respect to what these responses mean or whether they result in short-term or long-term adverse effects. In those cases where there is a busy shipping lane or where there is large amount of vessel traffic, marine mammals may experience acoustic masking (Hildebrand, 2005) if they are present in the area (e.g.,killer whales in Puget Sound; Footeet al.,2004; Holtet al.,2008). In cases where vessels actively approach marine mammals (e.g.,whale watching or dolphin watching boats), scientists have documented that animals exhibit altered behavior such as increased swimming speed, erratic movement, and active avoidance behavior (Bursk, 1983; Acevedo, 1991; Baker and MacGibbon, 1991; Trites and Bain, 2000; Williamset al.,2002; Constantineet al.,2003), reduced blow interval (Ritcheret al.,2003), disruption of normal social behaviors (Lusseau, 2003; 2006), and the shift of behavioral activities which may increase energetic costs (Constantineet al.,2003; 2004)). A detailed review of marine mammal reactions to ships and boats is available in Richardsonet al.(1995). For each of the marine mammal's taxonomy groups, Richardsonet al.(1995) provided the following assessment regarding marine mammal reactions to vessel traffic:

Toothed whales:“In summary, toothed whales sometimes show no avoidance reaction to vessels, or even approach them. However, avoidance can occur, especially in response to vessels of types used to chase or hunt the animals. This may cause temporary displacement, but we know of no clear evidence that toothed whales have abandoned significant parts of their range because of vessel traffic.”

Baleen whales:“When baleen whales receive low-level sounds from distant or stationary vessels, the sounds often seem to be ignored. Some whales approach the sources of these sounds. When vessels approach whales slowly and nonaggressively, whales often exhibit slow and inconspicuous avoidance maneuvers. In response to strong or rapidly changing vessel noise, baleen whales often interrupt their normal behavior and swim rapidly away. Avoidance is especially strong when a boat heads directly toward the whale.”

Pinnipeds:“In general, evidence about reactions of seals to vessels is meager. The limited data, plus the responses of seals to other noisy human activities, suggest that seals often show considerable tolerance of vessels. It is not known whether these animals are truly unaffected or are subject to stress. This uncertainty applies to many human activities and all marine mammals.” In addressing walruses, Richardsonet al.(1995) states, “walrus reactions to ships include waking up, head-raises, and entering the water. Females with young seem more wary than adult males. Walruses in open water are less responsive than those on ice pans, usually showing little reaction unless the ship is about to run over them.”

It is important to recognize that behavioral responses to stimuli are complex and influenced to varying degrees by a number of factors such as species, behavioral contexts, geographical regions, source characteristics (moving or stationary, speed, direction,etc.), prior experience of the animal, and physical status of the animal. For example, studies have shown that beluga whales reacted differently when exposed to vessel noise and traffic. In some cases, naïve beluga whales exhibited rapid swimming from ice-breaking vessels up to 80 km away, and showed changes in surfacing, breathing, diving, and group composition in the Canadian high Arctic where vessel traffic is rare (Finleyet al.,1990). In other cases, beluga whales were more tolerant of vessels, but differentially responsive by reducing their calling rates, to certain vessels and operating characteristics (especially older animals) in the St. Lawrence River where vessel traffic is common (Blane and Jaakson, 1994). In Bristol Bay, Alaska, beluga whales continued to feed when surrounded by fishing vessels and resisted dispersal even when purposefully harassed (Fish and Vania, 1971).

In reviewing more than 25 years of whale observation data, Watkins (1986) concluded that whale reactions to vessel traffic were “modified by their previous experience and current activity: Habituation often occurred rapidly,attention to other stimuli or preoccupation with other activities sometimes overcame their interest or wariness of stimuli.” Watkins noticed that over the years of exposure to ships in the Cape Cod area, minke whales (Balaenoptera acutorostrata) changed from frequent positive (such as approaching vessels) interest to generally uninterested reactions; finback whales (B. physalus) changed from mostly negative (such as avoidance) to uninterested reactions; right whales (Eubalaena glacialis) apparently continued the same variety of responses (negative, uninterested, and positive responses) with little change; and humpbacks (Megaptera novaeangliae) dramatically changed from mixed responses that were often negative to often strongly positive reactions. Watkins (1986) summarized that “whales near shore, even in regions with low vessel traffic, generally have become less wary of boats and their noises, and they have appeared to be less easily disturbed than previously. In particular locations with intense shipping and repeated approaches by boats (such as the whale-watching areas of Stellwagen Bank), more and more whales had P [positive] reactions to familiar vessels, and they also occasionally approached other boats and yachts in the same ways.”

In the case of the NAVSEA NUWC Keyport Range Complex Study Area, naval vessel traffic is expected to be much lower than in areas where there are large shipping lanes and large numbers of fishing vessels and/or recreational vessels. Nevertheless, the proposed action area is well traveled by a variety of commercial and recreational vessels, so marine mammals in the area are expected to be habituated to vessel noise.

As described in the proposed rule, typical vessel movement occurring at the surface includes the deployment or towing of mine counter-measure equipment, retrieval of equipment, and clearing and monitoring for non-participating vessels. As shown in Table 1, the projected annual days of range use amount to a total of 306 days for all range sites (60 days for Keyport Range Site, 200 days for DBRC Site, 16 days for offshore QUTR Site, and 30 days for surf zone QUTR Site).

Moreover, naval vessels transiting the study area or engaging in RDT&E activities will not actively or intentionally approach a marine mammal or change speed drastically. In addition, range craft would not be permitted to approach within 100 yards (91 m) of marine mammals, to the extent practicable considering human and vessel safety priorities. This includes marine mammals “hauled-out” on islands, rocks, and other areas such as buoys.

In order to issue an incidental take authorization (ITA) under Section 101(a)(5)(A) of the MMPA, NMFS must prescribe regulations setting forth the “permissible methods of taking pursuant to such activity, and other means of effecting the least practicable adverse impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.” The NDAA amended the MMPA as it relates to military readiness activities and the incidental take authorization process such that “least practicable adverse impact” shall include consideration of personnel safety, practicality of implementation, and impact on the effectiveness of the “military readiness activity.” The NUWC Keyport Range Complex's RDT&E activities are considered military readiness activities.

NMFS reviewed the Navy's proposed NUWC Keyport Range Complex's RDT&E activities and the proposed NUWC Keyport Range Complex's mitigation measures presented in the Navy's application to determine whether the activities and mitigation measures were capable of achieving the least practicable adverse effect on marine mammals.

Any mitigation measure prescribed by NMFS should be known to accomplish, have a reasonable likelihood of accomplishing (based on current science), or contribute to the accomplishment of one or more of the general goals listed below:

(1) Avoidance or minimization of injury or death of marine mammals wherever possible (goals (2), (3), and (4) may contribute to this goal).

(2) A reduction in the numbers of marine mammals (total number or number at biologically important time or location) exposed to underwater detonations or other activities expected to result in the take of marine mammals (this goal may contribute to (1), above, or to reducing harassment takes only).

(3) A reduction in the number of times (total number or number at biologically important time or location) individuals would be exposed to underwater detonations or other activities expected to result in the take of marine mammals (this goal may contribute to (1), above, or to reducing harassment takes only).

(4) A reduction in the intensity of exposures (either total number or number at biologically important time or location) to underwater detonations or other activities expected to result in the take of marine mammals (this goal may contribute to (1), above, or to reducing the severity of harassment takes only).

(5) A reduction in adverse effects to marine mammal habitat, paying special attention to the food base, activities that block or limit passage to or from biologically important areas, permanent destruction of habitat, or temporary destruction/disturbance of habitat during a biologically important time.

(6) For monitoring directly related to mitigation—an increase in the probability of detecting marine mammals, thus allowing for more effective implementation of the mitigation (shut-down zone,etc.).

NMFS reviewed the Navy's proposed mitigation measures, which included a careful balancing of the likely benefit of any particular measure to the marine mammals with the likely effect of that measure on personnel safety, practicality of implementation, and impact on the “military-readiness activity.”

The Navy's proposed mitigation measures were described in detail in the proposed rule (74 FR 32264, pages 32293-32294). The Navy's measures address personnel training, marine observer responsibilities, operating procedures for RDT&E activities using sonar, and mitigation related to vessel traffic. The following additional requirements were added based on comments from the Marine Mammal Commission, Natural Resources Defense Council, and NMFS scientists:

(i) If there is clear evidence that a marine mammal is injured or killed as a result of the proposed Navy RDT&E activities, the Naval activities shall be immediately suspended and the situation immediately reported by personnel involved in the activity to the Range Officer, who will follow Navy procedures for reporting the incident to NMFS through the Navy's chain-of-command.

(j) For nighttime RDT&E activities of active acoustic transmissions in the Keyport Range proposed extension area, the Navy shall conduct passive acoustic monitoring within the Agate Pass and south of University Point in southern Port Orchard Reach. If Southern Resident killer whales are detected in the vicinity of the Keyport Range Site, the Range Office shall be notified immediately and the active acoustic sources must be shutdown if killer whales are confirmed to approach at 1,000 yards from the source.

In addition, in response to information provided by the Navy, therequirement for general passive acoustic monitoring was modified to reflect the feasibility and practicability of PAM when used as a mitigation measure for the proposed RDT&E activities. The Navy indicated, and NMFS agreed, that the blanket requirement for PAM contained in the proposed rule will not be practicable due to limitation of assets at the Keyport Range Complex. Further, NMFS believes that the revised PAM would not change the results of the analysis on the effects of the proposed Keyport RDT&E activities on marine mammals. Therefore, the proposed mitigation measure concerning PAM has been modified as follows:

(g) Passive acoustic monitoring for cetaceans will be implemented throughout the NUWC Keyport Range Complex during RDT&E testing activities involving active sonar transmissions and when passive acoustic monitoring capabilities are being operated during the testing activity.

No other changes have been made to the mitigation measures described in the proposed rule.

In order to issue an ITA for an activity, Section 101(a)(5)(A) of the MMPA states that NMFS must set forth “requirements pertaining to the monitoring and reporting of such taking.” The MMPA implementing regulations at 50 CFR 216.104 (a)(13) indicate that requests for LOAs must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of thevel of taking or impacts on populations of marine mammals that are expected to be present.

Monitoring measures prescribed by NMFS should accomplish one or more of the following general goals:

(1) An increase in the probability of detecting marine mammals, both within the safety zone (thus allowing for more effective implementation of the mitigation) and in general to generate more data to contribute to the analyses mentioned below.

(2) An increase in our understanding of how many marine mammals are likely to be exposed to levels of HFAS/MFAS (or explosives or other stimuli) that we associate with specific adverse effects, such as behavioral harassment, TTS, or PTS.

(3) An increase in our understanding of how marine mammals respond to HFAS/MFAS (at specific received levels), explosives, or other stimuli expected to result in take and how anticipated adverse effects on individuals (in different ways and to varying degrees) may impact the population, species, or stock (specifically through effects on annual rates of recruitment or survival) through any of the following methods:

• Behavioral observations in the presence of HFAS/MFAS compared to observations in the absence of sonar (need to be able to accurately predict received level and report bathymetric conditions, distance from source, and other pertinent information).

• Physiological measurements in the presence of HFAS/MFAS compared to observations in the absence of sonar (need to be able to accurately predict received level and report bathymetric conditions, distance from source, and other pertinent information), and/or

• Pre-planned and thorough investigation of stranding events that occur coincident to naval activities.

• Distribution and/or abundance comparisons in times or areas with concentrated HFAS/MFAS versus times or areas without HFAS/MFAS.

(4) An increased knowledge of the affected species.

(5) An increase in our understanding of the effectiveness of certain mitigation and monitoring measures.

A detailed description of monitoring measures is provided in the proposed rule (74 FR 32264, pages 32294-32297). The monitoring procedures require the Navy to conduct visual surveys (including shore-based and vessel surveys), passive acoustic monitoring, and marine mammal observers on Navy vessels.

During the public comment period on past proposed rules for Navy actions (such as the Hawaii Range Complex (HRC), and Southern California Range Complex (SOCAL) proposed rules), NMFS received a recommendation that a workshop or panel be convened to solicit input on the monitoring plan from researchers, experts, and other interested parties. The NAVSEA NUWC Keyport Range Complex RDT&E proposed rule included an adaptive management component and both NMFS and the Navy believe that a workshop would provide a means for Navy and NMFS to consider input from participants in determining whether (and if so, how) to modify monitoring techniques to more effectively accomplish the goals of monitoring set forth earlier in the document. NMFS and the Navy believe that this workshop is valuable in relation to all of the Range Complexes and major training exercise rules and LOAs that NMFS is working on with the Navy at this time, and consequently this single Monitoring Workshop will be included as a component of all of the rules and LOAs that NMFS will be processing for the Navy in the next year or so.

The Navy, with guidance and support from NMFS, will convene a Monitoring Workshop, including marine mammal and acoustic experts as well as other interested parties, in 2011. The Monitoring Workshop participants will review the monitoring results from the previous two years of monitoring pursuant to the NAVSEA NUWC Keyport Range Complex RDT&E rule as well as monitoring results from other Navy rules and LOAs (e.g.,AFAST, SOCAL, HRC, and other rules). The Monitoring Workshop participants would provide their individual recommendations to the Navy and NMFS on the monitoring plan(s) after also considering the current science (including Navy research and development) and working within the framework of available resources and feasibility of implementation. NMFS and the Navy would then analyze the input from the Monitoring Workshop participants and determine the best way forward from a national perspective. Subsequent to the Monitoring Workshop, modifications would be applied to monitoring plans as appropriate.

In addition to the site-specific Monitoring Plan for the NAVSEA NUWC Keyport Range Complex Study Area, the Navy will complete the Integrated Comprehensive Monitoring Program (ICMP) Plan by the end of 2009. The ICMP is currently in development by the Navy, with the Chief of Naval Operations Environmental Readiness Division (CNO-N45) having the lead. The program does not duplicate the monitoring plans for individual areas (e.g.,AFAST, HRC, SOCAL); instead it is intended to provide the overarching coordination that will support compilation of data from both range-specific monitoring plans as well as Navy funded research and development (R&D) studies. The ICMP will coordinate the monitoring program's progress towards meeting its goals and developing a data management plan. A program review board is also being considered to provide additional guidance. The ICMP will be evaluated annually to provide a matrix for progress and goals for the following year, and will make recommendations on adaptive management for refinement and analysis of the monitoring methods.

The primary objectives of the ICMP are to:

• Monitor and assess the effects of Navy activities on protected species;

• Ensure that data collected at multiple locations is collected in a manner that allows comparison between and among different geographic locations;

• Assess the efficacy and practicality of the monitoring and mitigation techniques;

• Add to the overall knowledge-base of marine species and the effects of Navy activities on marine species.

The ICMP will be used both as: (1) A planning tool to focus Navy monitoring priorities (pursuant to ESA/MMPA requirements) across Navy Range Complexes and Exercises; and (2) an adaptive management tool, through the consolidation and analysis of the Navy's monitoring and watchstander/marine observer data, as well as new information from other Navy programs (e.g.,R&D), and other appropriate newly published information.

In combination with the 2011 Monitoring Workshop and the adaptive management component of the NAVSEA NUWC Keyport Range Complex RDT&E rule and the other planned Navy rules (e.g.,Virginia Capes Range Complex, Jacksonville Range Complex, Cherry Point Range Complex,etc.), the ICMP could potentially provide a framework for restructuring the monitoring plans and allocating monitoring effort based on the value of particular specific monitoring proposals (in terms of the degree to which results would likely contribute to stated monitoring goals, as well as the likely technical success of the monitoring based on a review of past monitoring results) that have been developed through the ICMP framework, instead of allocating based on maintaining an equal (or commensurate to effects) distribution of monitoring effort across range complexes. For example, if careful prioritization and planning through the ICMP (which would include a review of both past monitoring results and current scientific developments) were to show that a large, intense monitoring effort in Hawaii would likely provide extensive, robust and much-needed data that could be used to understand the effects of sonar throughout different geographical areas, it may be appropriate to have other range complexes dedicate money, resources, or staff to the specific monitoring proposal identified as “high priority” by the Navy and NMFS, in lieu of focusing on smaller, lower priority projects divided throughout their home range complexes.

The ICMP will identify:

• A means by which NMFS and the Navy would jointly consider prior years' monitoring results and advancing science to determine if modifications are needed in mitigation or monitoring measures to better effect the goals laid out in the Mitigation and Monitoring sections of the NAVSEA NUWC Keyport Range Complex RDT&E rule.

• Guidelines for prioritizing monitoring projects.

If, as a result of the workshop and similar to the example described in the paragraph above, the Navy and NMFS decide it is appropriate to restructure the monitoring plans for multiple ranges such that they are no longer evenly allocated (by rule), but rather focused on priority monitoring projects that are not necessarily tied to the geographic area addressed in the rule, the ICMP will be modified to include a very clear and unclassified record-keeping system that will allow NMFS and the public to see how each range complex/project is contributing to all of the ongoing monitoring programs (resources, effort, money,etc.).

The final regulations governing the take of marine mammals incidental to Navy's NAVSEA NUWC Keyport Range Complex RDT&E activities contain an adaptive management component. The use of adaptive management will give NMFS the ability to consider new data from different sources to determine (in coordination with the Navy) on an annual basis if mitigation or monitoring measures should be modified or added (or deleted) if new data suggests that such modifications are appropriate (or are not appropriate) for subsequent annual LOAs.

The following are some of the possible sources of applicable data:

• Results from the Navy's monitoring from the previous year (either from NAVSEA NUWC Keyport Range Complex Study Area or other locations)

• Findings of the Workshop that the Navy will convene in 2011 to analyze monitoring results to date, review current science, and recommend modifications, as appropriate to the monitoring protocols to increase monitoring effectiveness

• Compiled results of Navy-funded research and development (R&D) studies (presented pursuant to the ICMP, which is discussed elsewhere in this document)

• Results from specific stranding investigations (either from NAVSEA NUWC Keyport Range Complex Study Area or other locations)

• Results from general marine mammal and sound research (funded by the Navy or otherwise)

• Any information which reveals that marine mammals may have been taken in a manner, extent or number not authorized by these regulations or subsequent Letters of Authorization

Mitigation measures could be modified or added (or deleted) if new data suggest that such modifications would have (or do not have) a reasonable likelihood of accomplishing the goals of mitigation laid out in this final rule and if the measures are practicable. NMFS would also coordinate with the Navy to modify or add to (or delete) the existing monitoring requirements if the new data suggest that the addition of (or deletion of) a particular measure would more effectively accomplish the goals of monitoring laid out in this final rule. The reporting requirements associated with this rule are designed to provide NMFS with monitoring data from the previous year to allow NMFS to consider the data and issue annual LOAs. NMFS and the Navy will meet annually, prior to LOA issuance, to discuss the monitoring reports, Navy R&D developments, current science and whether mitigation or monitoring modifications are appropriate.

In order to issue an ITA for an activity, Section 101(a)(5)(A) of the MMPA states that NMFS must set forth “requirements pertaining to the monitoring and reporting of such taking.” Effective reporting is critical to ensure compliance with the terms and conditions of a LOA, and to provide NMFS and the Navy with data of the highest quality based on the required monitoring. As NMFS noted in its proposed rule, additional detail has been added to the reporting requirements since they were outlined in the proposed rule. The updated reporting requirements are all included below. A subset of the information provided in the monitoring reports may be classified and not releasable to the public.

Navy personnel will ensure that NMFS (regional stranding coordinator) is notified immediately (or as soon as operational security allows) if an injured or dead marine mammal is found during or shortly after, and in the vicinity of, any Navy RDT&E activities. The Navy will provide NMFS with species or description of the animal(s), the condition of the animal(s) (includingcarcass condition if the animal is dead), location, time of first discovery, observed behaviors (if alive), and photo or video (if available).

The NAVSEA NUWC Keyport Range Complex shall submit a report annually on October 1 describing the RDT&E activities conducted and implementation and results of the NAVSEA NUWC Keyport Range Complex Monitoring Plan (through June 1 of the same year) and RDT&E activities. The report will, at a minimum, include the following information:

(1) RDT&E Information:

• Date and time test began and ended

• Location

• Number and types of active sources used in the test

• Number and types of vessels, aircraft,etc.,participated in the test

• Total hours of observation effort (including observation time when sonar was not operating)

• Total hours of all active sonar source operation

• Total hours of each active sonar source

• Wave height (high, low, and average during the test)

(2) Individual Marine Mammal Sighting Info

• Location of sighting

• Species

• Number of individuals

• Calves observed (y/n)

• Initial detection sensor

• Indication of specific type of platform observation made from

• Length of time observers maintained visual contact with marine mammal(s)

• Wave height (in feet)

• Visibility

• Sonar source in use (y/n)

• Indication of whether animal is <200 yd, 200-500 yd, 500-1,000 yd, 1,000-2,000 yd, or >2,000 yd from sonar source above

• Mitigation implementation—Whether operation of sonar sensor was delayed, or sonar was powered or shut down, and how long the delay was

• Observed behavior—Marine observers shall report, in plain language and without trying to categorize in any way, the observed behavior of the animals (such as animal closing to bow ride, paralleling course/speed, floating on surface and not swimming,etc.)

• An evaluation of the effectiveness of mitigation measures designed to avoid exposing marine mammals to mid-frequency sonar. This evaluation shall identify the specific observations that support any conclusions the Navy reaches about the effectiveness of the mitigation.

The Navy will submit to NMFS a draft report that analyzes and summarizes all of the multi-year marine mammal information gathered during HFAS/MFAS activities for which annual reports are required as described above. This report will be submitted at the end of the fourth year of the rule (December 2014), covering activities that have occurred through July 1, 2014. The Navy will respond to NMFS comments on the draft comprehensive report if submitted within 3 months of receipt. The report will be considered final after the Navy has addressed NMFS' comments, or three months after the submittal of the draft if NMFS does not comment by then.

On July 7, 2009, NMFS published a proposed rule (74 FR 32264) in response to the Navy's request to take marine mammals incidental to conducting RDT&E activities in the NAVSEA NUWC Keyport Range Complex Study Area and requested comments, information and suggestions concerning the request. During the 30-day public comment period, NMFS received comments from the Marine Mammal Commission (Commission), the Natural Resources Defense Council (NRDC), Friends of the Earth, and two private citizens. The comments are addressed below.

Comment 1:Citing that most North American marine mammal biologists are in the field and that the general public is engaged in recreational activities during the period when the proposed rule was published for public comments, the Friends of the Earth requests NMFS to extend the comment period for a minimum of 30 days for the proposed rule.

Response:There is no prescribed minimum timeframe for public comment on proposed rules in the Administrative Procedure Act (APA) or section 101(a)(5)(A) of MMPA. NMFS routinely strives to ensure that the public is afforded at least a 30-day public comment period on all MMPA rules and believes that such a duration is reasonable for this particular rule making.

Whenever NMFS develops proposed regulations under the MMPA, the agency is required to first publish a notice of receipt of a request for the implementation of regulations and LOAs governing the incidental taking. This process typically affords the public up to 30 days to comment on a requester's application and provide NMFS with information and suggestions that will be considered in developing MMPA regulations.See50 CFR 216.104. On July 3, 2008, NMFS published its “Notice; receipt of application for a Letter of Authorization (LOA); request for comments and information” for the Navy's NAVSEA NUWC Keyport Range Complex and solicited input for 30 days (See73 FR 38183).

The public was also afforded 30 days to comment on the Keyport Range Complex proposed rule. For the proposed MMPA rulemaking for the Navy training and RDT&E activities, thirty days was appropriate in this instance because of: (1) The tight deadline of the scheduled RDT&E or training activities identified in the Navy's schedule; and (2) the fact that NMFS anticipated only low impacts to marine mammals with the implementation of mitigation and monitoring measures. Therefore, NMFS does not believe an additional 30-day comment period is warranted.

Comment 2:The Commission recommends that NMFS: (1) Work with the Navy to ensure that the final rule and any LOA issued under that rule provide authorization for the taking of all marine mammal species that could occur in the study area (including those listed under the Endangered Species Act) and that may be exposed to Level A or Level B harassment as a result of the proposed activities; and (2) either reconsider its decision to exclude endangered and threatened species from the authorization or provide a well-reasoned, science-based explanation for its apparent belief that the proposed mitigation measures will be much more effective for listed species than for unlisted species.

Response:First, NMFS worked with the Navy to ensure that the rule provides authorization for animals that are likely to be taken in the area, but NMFS does not agree with the Commission's recommendation that NMFS' final rule and LOAs should authorize takes of all marine mammal species that are known to occur in the Keyport Range Complex Study Area, regardless of how infrequently they occur. Second, to clarify, NMFS does not believe that the proposed mitigation measures will be much more effective for listed species than for unlisted species, rather, all of the listed species fell into a larger group of marine mammals that occur rarely and infrequently in Keyport and are unlikely to be exposed to the Navy sound sourcesat all and, therefore, unlikely to be taken.

As described in the proposed rule (74 FR 32264; July 7, 2009), the annual estimated number of exposures from acoustic sources are given for each species, based on the abundance, distribution, and density of these species. NMFS is not authorizing the take of every marine mammal species that could potentially occur in the Keyport Range Complex Study Area, since many of these species (all ESA-listed species and some non-listed) occur rarely (e.g.,blue whale, fin whale, sei whale, North Pacific right whale, minke whale, killer whale, and striped dolphin) or occur infrequently (e.g.,humpback whale, Baird's beaked whale, Hubb's beaked whale, Stejneger's beaked whale, Risso's dolphin, short-beaked common dolphin, sperm whale, dwarf sperm whale, pygmy sperm whale, northern elephant seal, and Steller sea lion). In fact, none of the ESA-listed species are commonly found in the Keyport Range Complex Study Area, and NMFS' Biological Opinion for Keyport and NWTRC also indicates that these species will not be taken by the Keyport activities.

The estimates of 11,283 takes of harbor porpoises, 44 takes of northern fur seal, 114 takes of California sea lions, and 5,569 takes of harbor seals by Level B harassment as a result of the proposed Keyport Range Complex RDT&E activities are based on scientific modeling for acoustic sources using the risk function methodology, coupled with the analysis of the abundance, distribution, and density of marine mammal species in the action area.

Comment 3:The Commission requests NMFS describe the “specified events” that would involve or require special surveys at the Dabob Bay Range site (74 FR 32264; July 7, 2009; page 32295).

Response:According to the Navy, a “specified event” is a test or run plan well suited for monitoring because certain operational and environmental parameters are in place (e.g.,high level of activity, bottom mounted hydrophone in place, controlled environment,etc.; see74 FR 32264; July 7, 2009; page 32295). As an RDT&E facility, it is important to maintain an open perspective of what kind of mid and high frequency events may be best for a special survey. Examples of the types of scenarios that would be considered for monitoring scenarios are those utilizing the high frequency systems that were modeled such as sources S6, S7, or S8 described in the proposed rule (74 FR 32264; July 7, 2009; page 32288). These may include a test unit and a launch and recovery craft and associated tracking sonar. For monitoring an activity with a mid frequency source, a range target operating at the lower end of its frequency range (5-100 kHz) at source level of 238 microPa @ 1 m or a countermeasure under test with an output frequency between 1 and 10 kHz may be the appropriate type of test to use for monitoring.

Comment 4:The Commission requests NMFS require the Navy to suspend an activity if a marine mammal is killed or seriously injured and the death or injury could be associated with the Navy's activities, and resumption of the activity should be contingent upon a review by NMFS of the circumstances of the death or injury and the Navy's plans for avoiding additional mortalities. If, upon review, those plans are deemed inadequate, then the Navy should be required to halt its operations until it has obtained the necessary authorization.

Response:Without detailed examination by an expert, it is usually not feasible to determine the cause of injury or mortality in the field. Therefore, NMFS has required in its final rule that if there is clear evidence that a marine mammal is injured or killed as a result of the proposed Navy RDT&E activities, the Naval activities shall be immediately suspended and the situation immediately reported by personnel involved in the activity to the Range Officer, who will follow Navy procedures for reporting the incident to NMFS through the Navy's chain-of-command.

For any other sighting of injured or dead marine mammals in the vicinity of any Navy RDT&E activities utilizing underwater active acoustic sources for which the cause of injury or mortality cannot be immediately determined, the Navy personnel will ensure that NMFS (regional stranding coordinator) is notified immediately (or as soon as operational security allows). The Navy will provide NMFS with species or description of the animal(s), the condition of the animal(s) (including carcass condition if the animal is dead), location, time of first discovery, observed behaviors (if alive), and photo or video (if available).

If NMFS determines that further investigation is appropriate, once investigations are completed and determinations made, NMFS would use the resulting information, if appropriate, to help reduce the likelihood that a similar event would happen in the future and to move forward with necessary steps to ensure environmental compliance for the Navy under the MMPA.

Comment 5:Stating that waters out to at least the 100-meter isobath represent vital habitat for a discrete population of harbor porpoises, the Oregon/Washington Coast stock, that the species has acute sensitivity to acoustic sources, and that the offshore population of approximately 37,745 would be exposed over 11,000 times, representing nearly 99 percent of all take authorized for QUTR under the proposed rule, the NRDC recommends establishing a protection area within waters landward of the 100-meter isobath. In addition, the NRDC recommends a buffer zone reflecting the sensitivity of the species should be applied beyond the 100-meter isobath, optimally ensuring that exposure levels within the 100-meter isobath do not exceed 120 dB. The NRDC recommends that NMFS ask the Navy to prepare a nominal propagation analysis for the coast to determine what stand-off distances are necessary to reduce exposure levels below this threshold.

Response:In order to determine the appropriate mitigation measures for a particular activity, NMFS must balance the benefit of the measure to the species, the likely effectiveness of a given measure, and the practicability of the measure for applicant implementation.

First, the estimated incidental takes of harbor porpoises are expected to be non-injurious, short-term Level B harassment. It is reasonable to expect high numbers of takes due to multiple takes of one individual in a year (not every estimated take represents a different individual). Given the nature of the activity, it is more likely that a percentage of the population (as opposed to the entire population) would be taken with each event, and that over time multiple repetitions of exposure to these short-term exercises would occur.

Regarding NRDC's recommendation, a buffer zone applied beyond the 100-meter isobaths is not practicable for this activity and would seriously affect the Navy's proposed RDT&E activities. While it is true that most Oregon/Washington Coast stock harbor porpoises occur in waters shallower than 100-m, excluding these regions would not be practicable, as it would mean that large regions of the Keyport Range Complex Study Area would be off limits for the proposed RDT&E activities. For example, the 100-m isobaths in the W237A Area of the QUTR Range Site extend off shore for more than 7 miles. With such large areas and all of the area of that specific depth range off limits to the proposed RDT&E activities, the Navy would not be able tofulfill its mission activities. It is also not practicable to recommend a “do not exceed 120 dB” level within the 100-m isobath, as some of the active sources have received levels reaching 120 dB at ranges over 66 km (Table 7).

The majority of the harbor seals take numbers include exposures close to this 120-dB threshold level (rather than at a higher exposure level), due to the large Level B harassment isopleths. The effects of exposures to this lower level are expected to be comparatively less severe. Also, none of these exposures are expected to affect the stock through effects on annual rates of survival and reproduction.

As stated in this document, exposures to marine mammals are expected to be limited to Level B harassment, and the seemingly large takes of harbor porpoise do not represent the individual animals that would be taken, instead, some individuals may be taken multiple times. Among these multiple takes, only 1 animal is expected to be exposed once to received levels that could cause minor TTS. Further, the NRDC's proposed mitigation of limiting the RDT&E activities to water deeper than 100-m isobaths would compromise the Navy's ability to accomplish their mission with limited added benefit to the species. Mitigation and monitoring measures, such as establishing and monitoring exclusion zones and shutdown measures, are expected to achieve the least practicable adverse impacts to marine mammals in the vicinity of the proposed project area.

Separately, NOAA has committed to convene a workshop of marine mammal experts in 2010/2011 to identify cetacean hotspots (areas of specifically important use or high density) using both field data and habitat modeling, as appropriate. The workshop results, in turn, could potentially support the need to designate protected areas in which Navy activities could potentially be limited, depending on NMFS' analysis of the benefit to the species of limiting activities in the area, the likely effectiveness of the measure, and the practicability of implementation. The adaptive management provisions in the Keyport rule would allow for the application of these protected areas, as appropriate.

Comment 6:The NRDC requests NMFS provide additional protection from the use of mid- and high-frequency acoustic sources within the Olympic Coast National Marine Sanctuary (NMS). Specifically, for those activities that do not require QUTR's instrumentation, NMFS should include measures to prohibit such activities from taking place in sanctuary waters. If this proves impracticable, the NRDC urges NMFS to substantially limit the number of RDT&E activities taking place by requiring prior approval from Pacific Fleet Command or other means to minimize sonar use in the area.

Response:NMFS has been working with the Navy throughout the rulemaking process to develop a series of strict mitigation and monitoring measures regarding the use of active acoustic sources in the Keyport Range Complex, which overlaps with the Olympic Coast NMS. These measures include the use of trained Navy marine observers who will conduct marine mammal monitoring to avoid collisions with marine mammals and the use of exclusion zones that avoid exposing marine mammals to levels of sound likely to result in temporary hearing loss, injury or death of marine mammals. However, prohibition of RDT&E activities and/or substantially limiting the number of RDT&E activities within the Olympic Coast NMS would compromise the Navy's mission and is impracticable for the proposed activities. The area and the number of the RDT&E events that were proposed to be carried out were carefully planned to have the least practicable adverse impacts to marine mammals while still meeting the Navy's RDT&E mission activity. In addition, the level and number of RDT&E events authorized are the maximum activities allowed within the five-year rule period; the actual number of events could be fewer than proposed.

Comment 7:The NRDC recommends that NMFS establish a seasonal protection area in certain canyons and banks on QUTR that represent important foraging habitat particularly for humpback whales. Citing Calambokidiset al.(2004), the NRDC states that humpback whales occur mostly in the northern part of the area, in a region informally known as the “Prairie.” The NRDC further states that sonar impacts on beaked whales are also a concern in QUTR because these species have a general preference for waters of the lower continental slope. The NRDC requests NMFS to advocate avoidance, or a reduction of RDT&E activities, within areas between 500 and 2,000 meters depth with unusual bottom topography (such as canyons).

Response:There are no canyons or banks in the currently instrumented test range within the QUTR range site and its associated depth is limited to 91 meters. The proposed extension of the QUTR range site would expand the range boundaries to the full extent of range area W-237A, which does include canyons and banks and the varied topography. W-237A was determined to be a vital asset by the Navy to perform its RDT&E mission, and the proposed extension of the existing QUTR range site into the entire W-237A area is critical to fulfill the Navy's RDT&E mission activity. In addition, seasonal variability of oceanic conditions was also considered an important component of the Navy's RDT&E mission, and activities must be able to occur year round. Therefore, a restriction on seasonal use of the canyon and banks and making the areas between 500 and 2,000 meters off-limits to the proposed Keyport RDT&E operations would severely limit the Navy's mission activities, and will not be a practicable measure.

Although NMFS recognizes that the extended QUTR range site would include known feeding habitat for certain species of marine mammals including humpback whales, and the undersea canyon and banks of the type that are known to be used by beaked whales for feeding, the proposed RDT&E activities to be conducted within the extended QUTR range site would only take 16 days per year at its offshore area, with total operation time for all active acoustic sources adding up to approximately 507 hours, and the range tests would be comprised of low intensity mid- and high-frequency active acoustic sources (see Description of Specific Activities section above). In addition, humpback whales and beaked whales are rare within the proposed Keyport Range Complex. Scientific modeling on take calculations shows that the take of these species, even by Level B behavioral harassment, is very unlikely.

Lastly, as mentioned above, NMFS has been working with the Navy throughout the rulemaking process to develop a series of mitigation and monitoring measures so that adverse impact to marine mammals and theirhabitat will be the least that is practicable. These measures include the use of trained Navy marine observers who will conduct marine mammal monitoring to avoid collisions with marine mammals and the use of exclusion zones that avoid exposing marine mammals to levels of sound likely to result in injury or death of marine mammals. The determination of appropriate mitigation measures includes consideration of benefit of the proposed measure to marine mammals, the likely effectiveness of the measure, and the practicability of the measure for applicant implementation. NMFS believes that the measures required of the Navy will result in the least practicable adverse impact.

Comment 8:The NRDC requests NMFS bar the use of mid- and high-frequency acoustic sources in those portions of the Keyport Range that extend into designated critical habitat for Southern Resident killer whales because these waters in Puget Sound are one of the most important habitats for the Southern Resident community of killer whales (and their near-exclusive habitat in summer/autumn months).

Response:The occurrence of Southern Resident killer whales (SRKW) in waters in the vicinity of the Keyport Range Site is rare (NMFS, 2006). The Navy conducted a density estimate of killer whales in inland waters of the Keyport Range Complex and concluded that density is zero for the Keyport Range Site (Navy, 2008). No take of SRKWs is expected or authorized. Therefore, NMFS does not agree with NRDC's recommendation.

The Keyport Range Complex has been at this site since 1914, and the existing Keyport Range Site was excluded from NMFS' 2006 critical habitat designation after a balancing of conservation benefits against national security considerations. The proposed Keyport Range Site extension would expand the existing range into the Southern Resident killer whale critical habitat. The extension would increase the area of the Keyport Range Site from 1.5 nm2to 1.7 nm2(5.1 km2to 5.9 km2). The area in critical habitat is therefore approximately 0.2 nm2(0.8 km2).

The Navy is required to shut down any active acoustic sources when any whale or dolphin is detected within 1,000 yards of the source. Modeling of three of the most powerful sources at the Keyport Range Site indicates that the received level at 1,000 yards drops down to 145 dB re 1 microPa, which is the level at which the risk function indicates a very small percentage of exposed animals would be harassed. Therefore, NMFS does not believe that the proposed RDT&E activities in the vicinity of SRKW critical habitat would result in the take this species if the shut-down mitigation measure is implemented.

Killer whales are mid-sized cetacean species with distinctive large dorsal fins and can be detected from a large distance, which allows mitigation and monitoring measures to be effectively carried out. However, to account for nighttime activities, NMFS has included an additional measure that will provide further assurance that no SRKW would be taken in the vicinity of the Keyport Range site. This additional measure requires the Navy to place a passive acoustic monitoring system at the northern and southern approaches to Port Orchard Reach and to conduct passive acoustic monitoring within the Agate Pass and south of University Point in southern Port Orchard Reach for nighttime RDT&E activities conducted in the Keyport Range Site Extension. If Southern Resident killer whales are detected in the vicinity of the Keyport Range Site, the Range Office shall be notified immediately and, in accordance with the required mitigation for all cetaceans, the active acoustic sources must be shutdown if killer whales are confirmed to approach at 1,000 yards from the source. NMFS considers passive acoustic monitoring for SRKW to be an effective way to supplement detection of this population in low light conditions, given that they are known to be more vocal compared to transient killer whales (Deeckeet al.,2005).

Comment 9:Citing that the exclusion zone for cetaceans is 1,000 yards and the exclusion zone for pinnipeds is 100 yards, the NRDC states that NMFS fails to explain why pinnipeds should be afforded less protection than cetaceans, especially as it notes that harbor seals will experience TTS onset at 183 dB, while cetaceans generally will experience TTS onset at 195 dB. The NRDC requests NMFS require a 1,000 yard exclusion zone for all marine mammals.

Response:Pinnipeds are abundant in the Keyport and Dabob current and proposed extensions. Given the limited operating area, close shore proximity and abundance of animals residing at the ranges, a greater standoff for pinnipeds would result in a large majority of activities interrupted, postponed or cancelled. As a result, the Keyport Range Complex would not meet its mission requirements, making such a measure impracticable. On the other hand, cetaceans are not as numerous as pinnipeds, and they are more easily detected at larger distances, allowing for the practicable implementation of a larger standoff distance.

The range to 183 dB re 1 microPa2(onset of TTS for harbor seal) for the mid frequency active acoustic source S5, which has a source level at 233 dB re 1 microPa @ 1 m (the highest of all active acoustic sources being used at Keyport Range Complex) is approximately 464 m. The total operation time for range target, which is under the S5 source type designation, is 9 hours per year for the entire Keyport Range Complex. All other active acoustic sources have lower source levels and thus the ranges to 183 dB 1 microPa2are expected to be much shorter. Although it is estimated that more than 2,000 harbor seals would incur Level B harassment which could cause TTS, the TTS is expected to be short-term in duration and of a low level (due to the modeled received levels, see Keyport Range Complex FEIS/OEIS, Navy, 2009). Even if TTS occurs in harbor seals, it is expected in the much higher frequency in their communication range. Additionally, no takes by Level A harassment are anticipated, based on the modeling results.

Sonar operations within the Keyport Range Complex have been ongoing for over 50 years and evidence shows that the pinniped populations remain abundant.

Comment 10:The NRDC request that NMFS require long-term monitoring of local populations on all ranges to see if any populations reflect habitat displacement or exhibit other negative impacts.

Response:NMFS agrees with the NRDC's suggestion. The Keyport Range Complex maintains a database of marine mammal sighting since 2003. NMFS is working and will continue to work with the Navy to develop and implement monitoring plans to help better understand the impacts of all Naval RDT&E and training activities that have the potential to adversely affect marine mammal species and their habitat. For the proposed Keyport Range Complex RDT&E activities, various monitoring measures will be implemented and are described in the Monitoring section of this document.

Comment 11:The Commission requests that NMFS require the Navy to develop and implement a detailed plan to verify the performance of the visual monitoring, passive acoustic monitoring, and other monitoring and mitigation measures being proposed to enable the Navy, NMFS, and otherinterested parties to evaluate their effectiveness.

Response:NMFS has worked with the Navy throughout the rulemaking process to develop a series of mitigation, monitoring, and reporting protocols that will effect the least practicable adverse impact and increase our understanding of the impact of these activities on marine mammals. These monitoring and reporting measures include, but are not limited to: (1) The use of trained Navy marine observers who will conduct marine mammal monitoring to avoid collisions with marine mammals; (2) the use of exclusion zones that avoid exposing marine mammals to levels of sound likely to result in injury or death of marine mammals; (3) the use of MMOs/Navy marine observers to conduct vessel and shore-based surveys; and (4) annual monitoring reports and comprehensive reports to provide insights regarding impacts to marine mammals.

NMFS will evaluate the effectiveness of these measures through review and analyses of the Navy's annual monitoring reports, the annual adaptive management meetings required by the final 5-year rule, as well as a required Monitoring workshop that will be convened in 2011 to solicit detailed input from experts regarding the effectiveness of the Navy's monitoring. NMFS will, through this established adaptive management process, work with the Navy to determine whether additional mitigation and monitoring measures are necessary. In addition, with the ICMP, which is a comprehensive monitoring planning and prioritization tool, and the planned Monitoring Workshop in 2011, NMFS will work with the Navy and other interested parties to further improve its monitoring and mitigation plans for its future activities.

Comment 12:Two individuals expressed general opposition to Navy testing and bombing activities and NMFS' issuance of an MMPA authorization because of the danger of killing marine life.

Response:NMFS appreciates the commenters' concern for the marine mammals that live in the area of the proposed activities. However, the proposed Keyport Range Complex activities do not include bombing or any explosive detonations. The proposed activities, as described in detail in the Proposed Rule (74 FR 32264; July 7, 2009), include the use of active acoustic sources to conduct the Navy's RDT&E activities. In addition, the MMPA allows individuals to take marine mammals incidental to specified activities if NMFS can make the necessary findings required by law (i.e.,negligible impact, unmitigable adverse impact on subsistence users,etc.). As explained throughout this rulemaking, NMFS has made the necessary findings under 16 U.S.C. 1371(a)(5)(A) to support issuance of the final rule.

As mentioned previously, with respect to the MMPA, NMFS' effects assessments serve four primary purposes: (1) To prescribe the permissible methods of taking (i.e.,Level B Harassment (behavioral harassment), Level A Harassment (injury), or mortality, including an identification of the number and types of take that could occur by Level A or B harassment or mortality) and to prescribe other means of effecting the least practicable adverse impact on such species or stock and its habitat (i.e.,mitigation); (2) to determine whether the specified activity will have a negligible impact on the affected species or stocks of marine mammals (based on the likelihood that the activity will adversely affect the species or stock through effects on annual rates of recruitment or survival); (3) to determine whether the specified activity will have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (however, there are no subsistence communities in the NAVSEA NUWC Keyport Range Complex Study Area; thus, there would be no effect to any subsistence user); and (4) to prescribe requirements pertaining to monitoring and reporting.

In the Estimated Take of Marine Mammals section of the proposed rule, NMFS related the potential effects to marine mammals from sonar operations to the MMPA regulatory definitions of Level A and Level B Harassment and assessed the effects to marine mammals that could result from the specific activities that the Navy intends to conduct. The subsections of this analysis are discussed in the proposed rule (74 FR 32264; July 7, 2009; pages 32281-32290).

In the Estimated Exposures of Marine Mammals section of the proposed rule, NMFS described in detail how the take estimates were calculated through modeling (74 FR 32264; July 7, 2009; pages 32290-32292). A summary of potential exposures from active acoustic sources (per year) for marine mammals in the NAVSEA NUWC Keyport Range Complex Study Area is listed in Table 8. No change has been made to the final rule.

NMFS' NAVSEA NUWC Keyport Range Complex proposed rule included a section that addressed the effects of the Navy's activities on Marine Mammal habitat (74 FR 32264; July 7, 2009; pages 32292-32293). NMFS concluded that the Navy's activities would have minimal effects on marine mammal habitat. No changes have been made to the discussion contained in this section of the proposed rule.

NMFS' NAVSEA NUWC Keyport Range Complex proposed rule included a section that addressed the analysis and negligible impact determination of the Navy's activities on the affected species or stocks (74 FR 32264; July 7, 2009; pages 32298-32300).

The Navy's specified activities have been described based on best estimates of the planned RDT&E activities the Navy would conduct within the proposed NAVSEA NUWC Keyport Range Complex Extension. The acoustic sources proposed to be used in the NAVSEA NUWC Keyport Range Complex Extension are low intensity and total proposed sonar operation hours are under 1,570 hours. Taking the above into account, along with the fact that NMFS anticipates no mortalities and injuries to result from the action, the fact that there are no specific areas of reproductive importance for marine mammals recognized within the Keyport Range Complex Extension study area, the sections discussed below, and dependent upon the implementation of the proposed mitigation measures, NMFS has determined that Navy RDT&E activities utilizing underwater acoustic sources will have a negligible impact on the affected marine mammal species and stocks present in the proposed action area.

As discussed in the Potential Effects of Exposure of Marine Mammals to HFAS/MFAS and illustrated in the conceptual framework, marine mammals can respond to HFAS/MFAS in many different ways, a subset of which qualifies as harassment. One thing that the take estimates do not take into account is the fact that most marine mammals will likely avoid strong sound sources to some extent. Although an animal that avoids the sound source will likely still be taken in some instances (such as if the avoidance results in a missed opportunity to feed, interruption of reproductive behaviors,etc.) in other cases avoidance may result in fewer instances of take than were estimated or in the takes resulting from exposure to a lower received level than was estimated, which could result in a less severe response. The Keyport Range Complex application involves mid-frequency and high frequency active sonar operations shown in Table 2, and none of the tests would involve powerful tactical sonar such as the 53C series MFAS. Therefore, any disturbance to marine mammals resulting from MFAS and HFAS in the proposed Keyport Range Complex RDT&E activities is expected to be significantly less in terms of severity when compared to major sonar exercises (e.g.,AFAST, HRC, SOCAL). In addition, high frequency signals tend to have more attenuation in the water column and are more prone to lose their energy during propagation. Therefore, their zones of influence are much smaller, thereby making it easier to detect marine mammals and prevent adverse effects from occurring.

There is limited information available concerning marine mammal reactions to MFAS/HFAS. The Navy has only been conducting monitoring activities since 2006. From the four major training exercises (MTEs) of HFAS/MFAS in the SOCAL Study Area for which NMFS has received training and monitoring reports, no instances of obvious behavioral disturbance were observed by the Navy watchstanders. The proposed activities in the Keyport Range Complex are RDT&E activities, which are much smaller in scale when compared with major training events in SOCAL. One cannot conclude from these results that marine mammals were not harassed from HFAS/MFAS, as a portion of animals within the area of concern may not have been seen (especially those more cryptic, deep-diving species, such as beaked whales orKogiasp.) and some of the non-biologist watchstanders might not have had the expertise to characterize behaviors. However, the data demonstrate that the animals that were observed did not respond in any of the obviously more severe ways, such as panic, aggression, or anti-predator response.

In addition to the monitoring that will be required pursuant to these regulations and subsequent LOAs, which is specifically designed to help us better understand how marine mammals respond to sound, the Navy and NMFS have developed, funded, and begun conducting a controlled exposure experiment with beaked whales in the Bahamas.

As noted previously, many animals perform vital functions, such as feeding,resting, traveling, and socializing on a diel cycle (24-hr cycle). Substantive behavioral reactions to noise exposure (such as disruption of critical life functions, displacement, or avoidance of important habitat) are more likely to be significant if they last more than one diel cycle or recur on subsequent days (Southallet al.,2007). Consequently, a behavioral response lasting less than one day and not recurring on subsequent days is not considered particularly severe unless it could directly affect reproduction or survival (Southallet al.,2007).

In the previous section, we discussed the fact that potential behavioral responses to HFAS/MFAS that fall into the category of harassment could range in severity. By definition, the takes by Level B behavioral harassment involve the disturbance of a marine mammal or marine mammal stock in the wild by causing disruption of natural behavioral patterns (such as migration, surfacing, nursing, breeding, feeding, or sheltering) to a point where such behavioral patterns are abandoned or significantly altered. These reactions would, however, be more of a concern if they were expected to last over 24 hours or be repeated in subsequent days. Different sonar testing may not occur simultaneously. Some of the marine mammals in the Keyport Range Complex Study Area are residents and others would not likely remain in the same area for successive days, it is unlikely that animals would be exposed to HFAS/MFAS at levels or for a duration likely to result in a substantive response that would then be carried on for more than one day or on successive days.

NMFS and the Navy have estimated that individuals of some species of marine mammals may sustain some level of TTS from HFAS/MFAS operations. As mentioned previously, TTS can last from a few minutes to days, be of varying degree, and occur across various frequency bandwidths. The TTS sustained by an animal is primarily classified by three characteristics:

• Frequency—Available data (of mid-frequency hearing specialists exposed to mid to high frequency sounds—Southallet al.,2007) suggest that most TTS occurs in the frequency range of the source up to one octave higher than the source (with the maximum TTS at1/2; octave above).

• Degree of the shift (i.e.,how many dB is the sensitivity of the hearing reduced by)—generally, both the degree of TTS and the duration of TTS will be greater if the marine mammal is exposed to a higher level of energy (which would occur when the peak dB level is higher or the duration is longer). The threshold for the onset of TTS > 6 dB) for Navy sonars is 195 dB (SEL), which might be received at distances of up to 275-500 m from the most powerful MFAS source, the AN/SQS-53 (the maximum ranges to TTS from other sources would be less). An animal would have to approach closer to the source or remain in the vicinity of the sound source appreciably longer to increase the received SEL, which would be difficult considering the marine observers and the nominal speed of a sonar vessel (10-12 knots). Of all TTS studies, some using exposures of almost an hour in duration or up to 217 dB SEL, most of the TTS induced was 15 dB or less, though Finneranet al.(2007) induced 43 dB of TTS with a 64-sec exposure to a 20 kHz source (MFAS emits a 1-s ping 2 times/minute).

• Duration of TTS (Recovery time)—see above. Of all TTS laboratory studies, some using exposures of almost an hour in duration or up to 217 dB SEL, almost all recovered within 1 day (or less, often in minutes), though in one study (Finneranet al.,2007), recovery took 4 days.

Based on the range of degree and duration of TTS reportedly induced by exposures to non-pulse sounds of energy higher than that to which free-swimming marine mammals in the field are likely to be exposed during HFAS/MFAS testing activities, it is unlikely that marine mammals would sustain a TTS from MFAS that alters their sensitivity by more than 20 dB for more than a few days (and the majority would be far less severe). Also, for the same reasons discussed in the Diel Cycle section, and because of the short distance within which animals would need to approach the sound source, it is unlikely that animals would be exposed to the levels necessary to induce TTS in subsequent time periods such that their recovery were impeded. Additionally, though the frequency range of TTS that marine mammals might sustain would overlap with some of the frequency ranges of their vocalization types, the frequency range of TTS from MFAS (the source from which TTS would more likely be sustained because the higher source level and slower attenuation make it more likely that an animal would be exposed to a higher level) would not usually span the entire frequency range of one vocalization type, much less span all types of vocalizations.

As discussed above, it is also possible that anthropogenic sound could result in masking of marine mammal communication and navigation signals. However, masking only occurs during the time of the signal (and potential secondary arrivals of indirect rays), versus TTS, which occurs continuously for its duration. Masking effects from HFAS/MFAS are expected to be minimal. If masking or communication impairment were to occur briefly, it would be in the frequency range of MFAS, which overlaps with some marine mammal vocalizations; however, it would likely not mask the entirety of any particular vocalization or communication series because the pulse length, frequency, and duty cycle of the HFAS/MFAS signal does not perfectly mimic the characteristics of any marine mammal's vocalizations.

The Navy's model estimated that no marine mammal would be taken by Level A harassment (injury, PTS included) or mortality due to the low intensity of the active sound sources being used.

Based on the aforementioned assessment, NMFS determines that there would be the following number of takes: 11,283 harbor porpoises, 44 northern fur seals, 114 California sea lions, 14 northern elephant seals, and 5,569 harbor seals (5,468 Washington Inland Waters stock and 101 Oregon/Washington Coastal stock) by Level B harassment (TTS and sub-TTS) as a result of the proposed Keyport Range Complex RDT&E sonar testing activities. These numbers very likely do not represent the number of individuals that would be taken, since it's most likely that many individual marine mammals would be taken multiple times. However, if each take represents a different animal, these take numbers represent approximately 29.89%, 0.01%, 0.05%, 0.01%, 37.42%, and 0.41% of the Oregon/Washington Coastal stock harbor porpoises, Eastern Pacific stock northern fur seals, U.S. stock California sea lions, California breeding stock northern elephant seals, Washington Inland Waters stock harbor seals, and Oregon/Washington Coastal stock harbor seals, respectively, in the vicinity of the proposed Keyport Range Complex Study Area (calculation based on NMFS 2007 U.S. Pacific Marine Mammal Stock Assessments and 2007 U.S. Alaska Marine Mammal Stock Assessments).

No Level A take (injury, PTS included) or mortality would occur as the result of the proposed RDT&E and range extension activities for the Keyport Range Complex.

Based on these analyses, NMFS has determined that the total taking over the 5-year period of the regulations and subsequent LOAs from the Navy's NAVSEA NUWCX Keyport Range Complex RDT&E and range extension activities will have a negligible impact on the marine mammal species and stocks present in the Keyport Range Complex Study Area. No changes have been made to the discussion contained in this section of the proposed rule.

NMFS has determined that the total taking of marine mammal species or stocks from the Navy's mission activities in the Keyport Range Complex study area would not have an unmitigable adverse impact on the availability of the affected species or stocks for subsistence uses, since there are no such uses in the specified area.

There are eight marine mammal species/stocks, one sea turtle species, and four fish species over which NMFS has jurisdiction that are listed as endangered or threatened under the ESA that could occur in the NAVSEA NUWC Keyport Range Complex study area: Blue whale, fin whale, sei whale, humpback whale, North Pacific right whale, sperm whale, Southern Resident killer whale, Steller sea lions, leatherback sea turtle, Puget Sound Chinook salmon, Hood Canal summer-run chum salmon, Puget Sound Steelhead trout, and Coastal-Puget Sound bull trout.

Pursuant to Section 7 of the ESA, the Navy has consulted with NMFS on this action. NMFS has also consulted internally on the issuance of regulations under section 101(a)(5)(A) of the MMPA for this activity. NMFS' Biological Opinion concludes that the proposed RDT&E activities are not likely to jeopardize the continued existence of the threatened and endangered species listed under the ESA under NMFS jurisdiction.

NMFS participated as a cooperating agency on the Navy's Final Environmental Impact Statement (FEIS) for the NAVSEA NUWC Keyport Range Complex, published on May 12, 2010. NMFS has adopted the Navy's EIS/OEIS in connection with this MMPA rulemaking and has prepared a record of decision.

Based on the analysis contained herein and in the proposed rule (and other related documents) of the likely effects of the specified activity on marine mammals and their habitat and dependent upon the implementation of the mitigation and monitoring measures, NMFS finds that the total taking from the NAVSEA NUWC Keyport Range Complex's RDT&E activities utilizing active acoustic sources (including MFAS/HFAS) over the 5 year period will have a negligible impact on the affected species or stocks and will not result in an unmitigable adverse impact on the availability of marine mammal species or stocks for taking for subsistence uses. NMFS has issued regulations for these exercises that prescribe the means of effecting the least practicable adverse impact on marine mammals and their habitat and set forth requirements pertaining to the monitoring and reporting of that taking.

This action does not contain a collection of information requirement for purposes of the Paperwork Reduction Act.

This proposed rule has been determined by the Office of Management and Budget to be not significant for purposes of Executive Order 12866.

Pursuant to the Regulatory Flexibility Act, the Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration at the proposed rule stage that this rule, if adopted, would not have a significant economic impact on a substantial number of small entities, and published such certification in theFederal Registernotice of proposed rulemaking. No changes have been made that affect that certification. Accordingly, no final regulatory flexibility analysis is required, and none has been prepared.

The Assistant Administrator for Fisheries has determined that there is good cause under the Administrative Procedure Act (5 U.S.C. 553(d)(3)) to waive the 30-day delay in effective date of the measures contained in the final rule. The Navy has a compelling national policy reason to continue military readiness activities without interruption in the Keyport Range Complex. As discussed below, suspension/interruption of the Navy's ability to conduct RDT&E activities disrupts adequate and realistic testing of military equipment, vehicles, weapons, and sensors for proper operation and suitability for combat essential to our national security.

In order to meet its national security objectives, the Navy must continually maintain its ability to operate in a challenging at-sea environment, conduct military operations, control strategic maritime transit routes and international straits, and protect sea lines of communications that support international commerce. To meet these objectives, the Navy must identify, develop, and procure defense systems by continually integrating test and evaluation support throughout the defense acquisition process and providing essential information to decision-makers. Such testing and evaluation is critical in determining that a defense system performs as expected and whether these systems are operationally effective, suitable, survivable, and safe for their intended use.

In order to effectively fulfill its national security mission, the Navy has a need to conduct RDT&E activities covered by this final rule as soon as possible. The defense acquisition process is structured to be responsive and acquire quality products that satisfy user needs with measurable improvements on mission capability and operational support in a timely manner. Test and evaluation confirms performance of platforms and systems against documented capability needs and adversary capabilities. Delays in acquisition test and evaluation affect the Navy's need to meet its statutory mission to deploy worldwide naval forces equipped to meet existing and emergent threats. The Navy has and will be unable to plan to conduct activities covered by this final rule in the immediate future due to the uncertainties in the planning process and the fiscal and other consequences of planning for, preparing for, and then cancelling a major testing event. A 30-day delay furthers the amount of time the Navy is unable to plan for and execute an activity covered by this rule. Further, should an immediate national security requirement to use the range complex arise, the 30 day delay would prevent the Navy from meeting its mission. This would have adverse national security consequences.

Waiver of the 30-day delay of the effective date of the final rule will allow the Navy to continue to integrate RDT&E activities into the defense acquisition process to meet test and evaluation requirements, and to put capability into the hands of U.S. Sailors and Marines quickly.

For reasons set forth in the preamble, 50 CFR part 218 is amended as follows.