On January 31, 2002, we issued AD 2002-02-07, Amendment 39-12635 (67 FR 6370, February 12, 2002). That AD required actions intended to address an unsafe condition on all Model A330 and A340 series airplanes.

Since we issued AD 2002-02-07, Airbus has received certification on two new models: Model A330-223F and -243F airplanes. We are issuing this AD to include them in the requirements of that earlier AD. The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2010-0135, dated July 5, 2010 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

The required actions include repetitive detailed inspection and operational checks of the spring function of the emergency exit door slider mechanism, and applying corrosion inhibitor. Corrective actions include repairing or replacing the slider with a new part. You may obtain further information by examining the MCAI in the AD docket.

We have revised the applicability of this AD to coordinate with the applicability of the EASA airworthiness directive by specifying the model designations as identified in the U.S. Type Certificate Data Sheets. Model A340-541 and -642 airplanes that were included in the prior FAA AD are not included in this AD, because we have determined that those models are not affected by the identified unsafe condition.

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

There are no products of this type currently registered in the United States. However, this rule is necessary to ensure that the described unsafe condition is addressed if any of these products are placed on the U.S. Register in the future.

We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information.

We might also have required different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a Note within the AD.

Since there are currently no domestic operators of this product, notice and opportunity for public comment before issuing this AD are unnecessary.

This AD is a final rule that involves requirements affecting flight safety, and we did not precede it by notice and opportunity for public comment. We invite you to send any written relevant data, views, or arguments about this AD. Send your comments to an address listed under theADDRESSESsection. Include “Docket No. FAA-2011-0311; Directorate Identifier 2010-NM-232-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.

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.

We determined that 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 this AD:

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

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

(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 14 CFR part 39 as follows:

We issued a supplemental notice of proposed rulemaking (SNPRM) (the “second supplemental NPRM”) to amend 14 CFR part 39 to include an airworthiness directive (AD) that would apply to the specified products. That second SNPRM was published in theFederal Registeron January 20, 2011 (76 FR 3564). That second SNPRM proposed to require inspecting the fuselage surface for corrosion and cracking behind the external adapter plate of the antennae installation, and repair if necessary.

We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM or on the determination of the cost to the public.

We have revised the applicability of the supplemental NPRM to identify model designations as published in the most recent type certificate data sheet for the affected models.

We reviewed the relevant data and determined that air safety and the public interest require adopting the AD with the change described previously. We also determined that this change will not increase the economic burden on any operator or increase the scope of the AD.

We estimate that this AD affects 201 airplanes of U.S. registry. The inspection will take about 4 work-hours per airplane, at an average labor rate of $85 per work hour. Based on these figures, the estimated cost of the AD for U.S. operators is $68,340, or $340 per airplane.

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 14 CFR part 39 as follows:

On January 31, 2011, the FAA published in theFederal Registera notice of proposed rulemaking to amend Class E airspace for Terre Haute, IN, creating additional controlled airspace at Union Hospital Heliport (76 FR 5302) Docket No. FAA-2010-1034. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received. 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 airspace designations listed in this document will be published subsequently in the Order.

This action amends Title 14 Code of Federal Regulations (14 CFR) part 71 by amending Class E airspace extending upward from 700 feet above the surface to accommodate the new COPTER RNAV (POINT-IN-SPACE) standard instrument approach procedures at Union Hospital Heliport, Terre Haute, IN. This action will enhance the safety and management of IFR operations at the heliport.

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. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in subtitle VII, part A, subpart I, section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it creates controlled airspace at Union Hospital Heliport, Terre Haute, IN.

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

On December 28, 2010, the FAA published in theFederal Registera notice of proposed rulemaking to amend Class E airspace for Point Lookout, MO, creating additional controlled airspace at M. Graham Clark—Taney Field Airport (75 FR 81514) Docket No. FAA-2010-1172. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received. 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 airspace designations listed in this document will be published subsequently in the Order.

This action amends title 14 Code of Federal Regulations (14 CFR) part 71 by creating Class E airspace extending upward from 700 feet above the surface to accommodate new standard instrument approach procedures at M. Graham Clark—Taney Field Airport, Point Lookout, MO. This action is necessary for the safety and management of IFR operations at the airport.

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. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA's authority to issue rules regarding aviation safety is found in title 49 of the U.S. Code. Subtitle 1, section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in subtitle VII, part A, subpart I, section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it creates controlled airspace at M. Graham Clark—Taney Field Airport, Point Lookout, MO.

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

History

On January 31, 2011, the FAA published in theFederal Registera notice of proposed rulemaking to amend Class E airspace for the Carizzo Springs,Glass Ranch Airport, TX, airspace area, creating additional controlled airspace at Faith Ranch Airport (76 FR 5303) Docket No. FAA-2010-0877. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received. 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 airspace designations listed in this document will be published subsequently in the Order.

This action amends Title 14 Code of Federal Regulations (14 CFR) part 71 by amending Class E airspace extending upward from 700 feet above the surface in the Carrizo Springs, Glass Ranch Airport, TX, area, to accommodate new standard instrument approach procedures at Faith Ranch Airport, Carizzo Springs, TX. This action is necessary for the safety and management of IFR operations at the airport.

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. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in subtitle VII, part A, subpart I, section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends controlled airspace for the Carizzo Springs, Glass Ranch Airport, TX airspace area.

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

On January 31, 2011, the FAA published in theFederal Registera notice of proposed rulemaking to amend Class E airspace for Bedford, IN, creating additional controlled airspace at Bedford Medical Center Heliport (76 FR 5301) Docket No. FAA-2010-1026. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received. 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 airspace designations listed in this document will be published subsequently in the Order.

This action amends Title 14 Code of Federal Regulations (14 CFR) part 71 by amending Class E airspace extending upward from 700 feet above the surface to accommodate the new COPTER RNAV (POINT-IN-SPACE) standard instrument approach procedures at Bedford Medical Center Heliport, Bedford, IN. This action is necessary for the safety and management of IFR operations at the heliport.

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. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA's authority to issue rules regarding aviation safety is found in title 49 of the U.S. Code. Subtitle 1, section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in subtitle VII, part A, subpart I, section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends controlled airspace at Bedford Medical Center Heliport, Bedford, IN.

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

On January 10, 2011, the FAA published in theFederal Registerasupplemental notice of proposed rulemaking to expand Class E airspace to include Regional Health System Heliport, as well as amending existing Class E airspace at Kokomo Municipal Airport, Kokomo, IN. (76 FR 1378) Docket No. FAA-2010-0605. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received. 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 airspace designations listed in this document will be published subsequently in the Order.

This action amends Title 14 Code of Federal Regulations (14 CFR) Part 71 by adding Class E airspace extending upward from 700 feet above the surface to accommodate COPTER RNAV standard instrument approach procedures at Regional Health System Heliport, Kokomo, IN, and amends existing Class E airspace extending upward from 700 feet above the surface at Kokomo Municipal Airport. Adjustments to geographic coordinates will be made, as well as the name change of Logansport Municipal Airport to Logansport/Cass County Airport. This action is necessary for the safety and management of IFR operations within the National Airspace System.

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. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in subtitle VII, part A, subpart I, section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends controlled airspace at Kokomo Municipal Airport and Regional Health System Heliport, Kokomo, IN.

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

On January 31, 2011, the FAA published in theFederal Registera notice of proposed rulemaking to amend Class E airspace for Indianapolis Executive Airport, IN, creating additional controlled airspace at Clarian North Medical Center Heliport and Methodist Hospital of Indiana Heliport (76 FR 5306) Docket No. FAA-2010-1027. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received. Subsequent to publication, an error was found in the geographic coordinates for Clarion North Medical Center Heliport. This rule will make the correction to be in concert with the FAAs aeronautical database.

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 airspace designations listed in this document will be published subsequently in the Order.

This action amends Title 14 Code of Federal Regulations (14 CFR) part 71 by amending Class E airspace extending upward from 700 feet above the surface to accommodate the new COPTER RNAV (POINT-IN-SPACE) standard instrument approach procedures at Clarian North Medical Center Heliport, Indianapolis Executive Airport, IN. This action is necessary for the safety and management of IFR operations at the heliport. This action also corrects the geographic coordinates listed in the airspace designation and regulatory text for Clarion North Medical Center Heliport. With the exception of editorial changes and the changes described above, this action is the same as that proposed in the NPRM.

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. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in subtitle VII, part A, subpart I, section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends controlled airspace for the Indianapolis Executive Airport, IN, airspace area.

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

On January 31, 2011, the FAA published in theFederal Registera notice of proposed rulemaking to amend Class E airspace for Cable Union, WI, reconfiguring controlled airspace at Cable Union Airport (76 FR 5300) Docket No. FAA-2010-1169. Interested parties were invited to participate inthis rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received. 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 airspace designations listed in this document will be published subsequently in the Order.

This action amends Title 14 Code of Federal Regulations (14 CFR) part 71 by amending Class E airspace extending upward from 700 feet above the surface for the Cable Union, WI area. Decommissioning of the Seely NDB and cancellation of the NDB approach at Cable Union Airport has made this action necessary for the safety and management of IFR operations at the airport. Geographic coordinates will also be adjusted in accordance with the FAA's Aeronautical Products.

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. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in subtitle VII, part A, subpart I, section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends controlled airspace at Cable Union Airport, Cable Union, WI.

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

On January 31, 2011, the FAA published in theFederal Registera notice of proposed rulemaking to amend Class E airspace for Raton, NM, creating additional controlled airspace at Raton Municipal Airport/Crews Field (76 FR 5305) Docket No. FAA-2010-1239. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received. 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 airspace designations listed in this document will be published subsequently in the Order.

This action amends title 14 Code of Federal Regulations (14 CFR) part 71 by amending Class E airspace extending upward from 700 feet above the surface to accommodate new RNAV standard instrument approach procedures at Raton Municipal Airport/Crews Field, Raton, NM. This action is necessary for the safety and management of IFR operations at the airport.

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. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in subtitle VII, part A, subpart I, section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends controlled airspace at Raton Municipal Airport/Crews Field, Raton, NM.

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

On December 16, 2010, the FAA published in theFederal Registera notice of proposed rulemaking to amend Class E airspace for Kenton, OH, creating additional controlled airspace at Hardin County Airport (75 FR 78645) Docket No. FAA-2010-1054. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received. Subsequent to publication, an error was found in the regulatory text noting incorrect geographic coordinates. This rule will make the correction.

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 airspace designations listed in this document will be published subsequently in the Order.

This action amends title 14 Code of Federal Regulations (14 CFR) part 71 by creating Class E airspace extending upward from 700 feet above the surface to accommodate new standard instrument approach procedures at Hardin County Airport, Kenton, OH. This action is necessary for the safety and management of IFR operations at the airport. This action also corrects the geographic coordinates listed in the regulatory text for Kenton, OH. With the exception of editorial changes and the changes described above, this action is the same as that proposed in the NPRM.

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. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA's authority to issue rules regarding aviation safety is found in title 49 of the U.S. Code. Subtitle 1, section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in subtitle VII, part A, subpart I, section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it creates controlled airspace at Hardin County Airport, Kenton, OH.

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

The Bureau of Industry and Security (BIS) is amending the Export Administration Regulations (EAR) to implement the understandings reached at the annual plenary meeting of the Australia Group (AG) that was held in Paris, France, from May 31 through June 4, 2010. The AG is a multilateral forum consisting of 40 participating countries that maintain export controls on a list of chemicals, biological agents, and related equipment and technology that could be used in a chemical or biological weapons program. The AG periodically reviews items on its control list to enhance the effectiveness of participating governments' national controls and to achieve greater harmonization among these controls.

Consistent with the understandings reached at the 2010 AG Plenary, this final rule amends Export Control Classification Number (ECCN) 2B350 (Chemical manufacturing facilities and equipment) on the Commerce Control List (CCL) (Supplement No. 1 to Part 774 of the EAR) to reflect the addition of two parenthetical phrases that describe types of “materials” contained in items on the AG “Control List of Dual-Use Chemical Manufacturing Facilities and Equipment and Related Technology and Software.” Specifically, this rule adds a parenthetical phrase to ECCN 2B350.a .3, .b.3, .c.3, .d.3, .e.3, .g.3, .h.3., and .i.3 to clarify the meaningof the term “fluoropolymers” in connection with the types of “materials” from which certain chemical manufacturing equipment is made. This parenthetical phrase describes “fluoropolymers” as “polymeric or elastomeric materials with more than 35% fluorine by weight.” This rule also adds a parenthetical phrase in ECCN 2B350.i.11 (under the listing for “pumps”) to clarify that the “material” “ferrosilicon” refers to “high silicon iron alloys.”

In addition to the AG Plenary changes described above, this rule amends ECCN 1C351 (human and zoonotic pathogens and “toxins”) and ECCN 1C352 (animal pathogens) on the CCL by updating ECCN 1C351 and clarifying ECCN 1C352 consistent with the controls described in the AG “List of Biological Agents for Export Control” and the AG “List of Animal Pathogens for Export Control,” respectively. Specifically, this rule revises the listing for “Chlamydia psittaci” in ECCN 1C351.c.7 by updating the name of the bacterium to read “Chlamydophilapsittaci (formerly known as Chlamydia psittaci).” This rule also revises the listing for the “Lyssa virus” in ECCN 1C352.a.8 by adding a parenthetical phrase to indicate that the virus is also known as “Rabies.”

This rule also makes two clarifications to ECCN 2B350, consistent with the controls described in the AG “Control List of Dual-Use Chemical Manufacturing Facilities and Equipment and Related Technology and Software.” First, this rule amends the introductory text of ECCN 2B350.g (“valves”) to clarify that the ECCN controls valves specified therein that are used in the “production” of chemicals, as well as valves that are used in the “processing” or “containment” of chemicals. Second, this rule revises the description of the material “Glass or glasslined (including vitrified or enameled coatings)” in ECCN 2B350.g.4 to read “Glass (including vitrified or enameled coating or glass lining)” to clarify the extent to which valves containing this type of material are controlled under this ECCN.

None of the changes made by this rule alters the scope of the controls in ECCNs 1C351, 1C352, or 2B350.

Although the Export Administration Act expired on August 20, 2001, the President, through Executive Order 13222 of August 17, 2001, 3 CFR, 2001 Comp., p. 783 (2002), as extended by the Notice of August 12, 2010, 75 FR 50681 (August 16, 2010), has continued the Export Administration Regulations in effect under the International Emergency Economic Powers Act.

1. 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). Executive Order 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 Executive Order 12866. Accordingly, the rule has been reviewed by the Office of Management and Budget.

2. Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501et seq.) (PRA), unless that collection of information displays a currently valid Office of Management and Budget (OMB) Control Number. This rule contains a collection of information subject to the requirements of the PRA. This collection has been approved by OMB under Control Number 0694-0088 (Multi-Purpose Application), which carries a burden hour estimate of 58 minutes to prepare and submit form BIS-748. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing the burden, to Jasmeet Seehra, Office of Management and Budget (OMB), and to the Regulatory Policy Division, Bureau of Industry and Security, Department of Commerce, as indicated in theADDRESSESsection of this rule.

3. This rule does not contain policies with Federalism implications as that term is defined in Executive Order 13132.

4. The provisions of the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking, the opportunity for public participation, and a delay in effective date, are inapplicable because this regulation involves a military and foreign affairs function of the United States (See 5 U.S.C. 553(a)(1)). Immediate implementation of these amendments is non-discretionary and fulfills the United States' international obligation to the Australia Group (AG). The AG contributes to international security and regional stability through the harmonization of export controls and seeks to ensure that exports do not contribute to the development of chemical and biological weapons. The AG consists of 40 member countries that act on a consensus basis and the amendments set forth in this rule implement agreements reached at the June 2010 plenary session of the AG and other changes that are necessary to ensure consistency with the controls maintained by the AG. Since the United States is a significant exporter of the items in this rule, implementation of this provision is necessary for the AG to achieve its purpose. Any delay in implementation will create a disruption in the movement of affected items globally because of disharmony between export control measures implemented by AG members, resulting in tension between member countries. Export controls work best when all countries implement the same export controls in a timely and coordinated manner.

Further, no other law requires that a notice of proposed rulemaking and an opportunity for public comment be given for this final rule. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule under the Administrative Procedure Act or by any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601et seq.) are not applicable.Therefore, this regulation is issued in final form.

Accordingly, part 774 of the Export Administration Regulations (15 CFR parts 730-774) is amended as follows:

A. Background: Section 104(b) of the Consumer Product Safety Improvement Act

The Consumer Product Safety Improvement Act of 2008 (“CPSIA”, Pub. L. 110-314) was enacted on August 14, 2008. Section 104(b) of the CPSIA requires the Commission to promulgate consumer product safety standards for durable infant or toddler products. The law requires that these standards are to be “substantially the same as” applicable voluntary standards or more stringent than the voluntary standards if the Commission concludes that more stringent requirements would further reduce the risk of injury associated with the product. The term “durable infant or toddler product” is defined in section 104(f) of the CPSIA as a durable product intended for use, or that may be reasonably expected to be used, by children under the age of 5 years. Toddler beds are one of the products specifically identified in section 104(f)(2) of the CPSIA as a durable infant or toddler product.

In this document, the Commission is issuing a safety standard for toddler beds. The standard is largely the same as a voluntary standard developed by ASTM International (formerly the American Society for Testing and Materials), ASTM F 1821-09,Standard Consumer Safety Specification for Toddler Beds,but with several modifications that strengthen the standard.

In theFederal Registerof April 28, 2010, the Commission published a notice of proposed rulemaking that proposed to incorporate by reference ASTM F 1821-09,Standard Consumer Safety Specification for Toddler Beds,with several modifications. 75 FR 22291. The final rule is very similar to the proposed rule. We summarize the proposed rule in section F of this preamble and discuss the final rule (including differences between the proposal and the final rule) in section G of this preamble. The information discussed in this preamble comes from CPSC staff's briefing package for the toddler bed final rule, which is available on the CPSC's Web site athttp://www.cpsc.gov/library/foia/foia11/brief/toddlerfinal.pdf.

The ASTM voluntary standard defines a toddler bed as any bed sized to accommodate a full-size crib mattress having minimum dimensions of 515/8inches in length and 271/4inches in width and that is intended to provide free access and egress to a child not less than 15 months of age and weighing no more than 50 pounds. The standard includes cribs that can be converted into a toddler bed using a full-size crib mattress.

CPSC staff estimates that there are currently at least 73 known manufacturers or importers supplying toddler beds and/or convertible cribs to the U.S. market. Approximately 48 suppliers are domestic manufacturers (66 percent); 13 are domestic importers (18 percent); 11 are foreign manufacturers (15 percent); and the remaining firm is a foreign supplier that imports from other countries and exports to the United States.

Based on information from a 2005 survey conducted by the American Baby Group, CPSC staff estimates annual convertible crib sales to number about 776,000 and annual sales of toddler beds to total about 819,000. Thus, a total of approximately 1.6 million units (convertible cribs and toddler beds) sold per year might be affected by the toddler bed standard.

The preamble to the proposed rule summarized the data for incidents related to toddler beds for the period 2005 to 2009. During this period of time, CPSC staff is aware of 4 fatalities and 81 nonfatal incidents (with and without injuries) related to toddler beds. The data were drawn from two databases: (1) Actual injuries and fatalities of which the Commission is aware; and (2) estimates derived from reports of emergency room treatment in a statistical sample of hospitals that makes up the National Electronic Injury Surveillance System (“NEISS”). More information concerning those incidents is provided in the preamble to the proposed rule. 75 FR 22292 (April 28, 2010).

While preparing the final rule, CPSC staff conducted a new search of CPSC's epidemiological databases and found that 41 toddler bed-related incidents were reported between June 23, 2009 and December 12, 2010. None of these were fatalities. Seventeen incidents reported an injury (primarily bumps, bruises, sprains, and lacerations). One report was of a child nearly choking on loose hardware; another report was of a child suffering a dental injury from falling on the bed; and another report was of a possible case of lead poisoning of a child from chewing paint on the toddler bed. While most of these injuries did not require any major medical intervention, one child was hospitalized for a fractured limb.

In 31 of the 41 incidents, the age of the child was reported. In four of those incidents, a child younger than 15 months was involved. The majority of the incidents (17 out of 31) reported the child's age to be between 17 months and 2 years old. It was not always clear, however, that the age reported pertained to the child who was the regular user of the toddler bed. Occasionally, an incident report stated specifically that the injured child was playing on a sibling's toddler bed; a few others reported that the injured child was playing or climbing on a toddler bed. This indicates that the reported victim's age was not always the age of the regular user of the bed.

Among the 41 incident reports, the following hazards were identified:

• Broken, loose, or detached components of the bed, such as the guardrail, hardware, or other accessories (14 incidents, 3 of which involved injuries);

• Entrapment, mostly of a limb (10 incidents, 8 of which resulted in injuries ranging from fractures and sprains to bruises);

• Product integrity issues, mostly the integrity of the mattress support (4 incidents, 1 of which also reported a finger injury to the child);

• Inadequate mattress fit issues (3 incidents, no injuries);

• Miscellaneous issues, such as a sharp surface, lead paint, bed height/clearance, guardrail inadequacy, and bed accessory involvement (9 reports, 4 of which reported associated injuries).

CPSC staff reviewed data from NEISS for injuries related to toddler beds for 2009 and 2010. A total of 32 such injuries, and no deaths, were reported through NEISS from January 1, 2009 through December 12, 2010. (The number of reported incidents was too small for NEISS to publish national injury estimates for injuries related to toddler beds.) The most frequent characteristics of the 32 toddler bed-related injuries reported through NEISS were:

• Hazard: falls out of the toddler bed to a lower level (78%);

• Injured body part: head and face (59%) and limbs (25%);

• Injury type: head injury (31%) and fractures (22%); and

• Disposition: treated and released (97%).

About 9 percent of the patients were reported to be younger than 15 months old, while about 69 percent were reported to be between 17 months and 2 years old. As was the case for incident data reported through sources other than NEISS, it was not always clear whether the patient injured was the usual user of the toddler bed.

ASTM F 1821,Standard Consumer Safety Specification for Toddler Beds,was first approved in 1997, and revised in 2003 and 2006. The current version, ASTM F 1821-09, was approved on April 1, 2009, and published in May 2009. ASTM has been working on revisions to the standard, but has not approved a subsequent version as of the date of this final rule.

Requirements in the ASTM F 1821-09 Standard for toddler beds include:

• Toddler beds must comply with the CPSC's regulations at 16 CFR part 1303 (ban of lead in paint); 1500.48 (sharp points); 1500.49 (sharp edges); 1500.50 through 1500.53 (use and abuse tests); and part 1501 (small parts that present choking, aspiration, or ingestion hazards), both before and after the product is tested according to the standard.

• Toddler beds must not present scissoring, shearing, or pinching hazards.

• Openings must meet specified dimensions to prevent finger entrapment.

• Openings that will permit passage of a specified block with a wedge on one end are prohibited to protect against torso entrapment.

• The distance that corner posts may extend above the upper edge of an end or side panel is limited.

• Protective components must not be removable with a specified force after torque and tension tests.

• There are requirements for marking and labeling each bed and its retail carton and for warning statements on the bed. There are requirements for the permanency of labels and warnings.

• The mattress must be supported and contained so that it does not move horizontally to cause an opening that will allow the passage of the wedge block when tested.

• There are tests for the physical integrity of the mattress support system and its attachments and the side rails.

• There are wedge block tests for openings in the guardrails and end structures to test whether they could cause entrapment.

• There is a probe test to protect against entrapment in partially bounded openings in the bed.

• Instructions must be provided with the bed.

• Warning statements are required on the bed to address entrapment and strangulation hazards.

In theFederal Registerof April 28, 2010, we published a proposed rule for toddler beds (75 FR 22291). We received 13 comments on the proposed rule. Four of the comments stated general support for the proposed rule, with minor changes in wording to emphasize the hazard. The other nine comments raised specific issues that are addressed by topic below.

We describe and respond to the comments in section E of this document and also describe the final rule. To make it easier to identify the comments and our responses, the word “Comment,” in parentheses, will appear before the comment's description, and the word “Response,” in parentheses, will appear before our response. We also have numbered each comment to help distinguish between different comments. The number assigned to each comment is purely for organizational purposes and does not signify the comment's value, or importance, or the order in which it was received.

(Comment 1)—One commenter addressed guardrail designs for toddler beds. The commenter suggested that replacing spindles on the toddler bed guardrails with a full piece of wood or material would decrease the risk of children getting a body part entrapped in the guardrail.

(Response 1)—We acknowledge that currently, some manufacturers use solid panel guardrails on their toddler beds. However, mandating that all guardrails be solid panels may limit the utility of converting some types of cribs to toddler beds. Although limb entrapments might be reduced if guardrails were limited to solid panels, the incident data reported in the preamble to the proposed rule (75 FR at 22292) indicate that only three of the reported injuries involving entrapment between slats were fractures of limbs, and the majority of the injuries were bumps and bruises. Only one fracture directly involved a guardrail. This occurred when the occupant fell from the bed after the occupant's leg became entrapped in the guardrail slats. The other two fractures involved entrapment between slats located on the headboard and footboard. Therefore, we encourage manufacturers to consider solid panel guardrails, but decline to make this a requirement in the final rule.

(Comment 2)—One commenter disagreed with the guardrail height specified in the proposed rule. (The proposed rule stated that the guardrail height must be 5 inches above the top of the mattress.) The commenter suggested specifying that the guardrail must be 9 inches above the mattress support.

(Response 2)—We disagree with a guardrail height of 9 inches above the mattress support. Because the majority of full-size crib mattresses are approximately 6 inches thick, a guardrail height of 9 inches above the mattress support would provide a barrier of only 3 inches approximately, which is not sufficient to prevent children from rolling/falling off the bed. Similarly, guardrails on bunk beds are intended to prevent children from rolling/falling off the bed. ASTM F 1427-07,Standard Consumer Safety Specification for Bunk Beds,requires a 5-inch barrier above the top of the mattress to prevent a sleeping child from rolling and falling off the bed. Therefore, the final rule does not change the proposed guardrail height provision, except to specify that, if no maximum mattress thickness is stated, the guardrail height is to be based on a 6 inch thick mattress.

(Comment 3)—One commenter disagreed with the proposed test methodology for guardrail structural integrity. The commenter suggested: (1) Testing at the most onerous point instead of at three locations; (2) specifying the contact area of the force and how far from the top of the rail this force should be applied; and (3) specifying the height of the bed rail or measuring from the mattress support platform so the measurement will be consistent.

(Response 3)—We agree with the commenter's suggested test methodology for applying the test force to the guardrail. The language in the proposed rule was adopted from the portable bed rail structural integrity test, as stated in section 8.1 of ASTM F 2085-09,Standard Consumer Safety Specification for Portable Bed Rails.After the proposed rule had been published, an ASTM task group developed the alternative language that the commenter suggests. This suggested language is more applicable to the typical geometry of toddler bed guardrails as opposed to portable bed rails. For example, the proposed rule would require applying a horizontal force at three points along the uppermost horizontal edge of the rail (i.e.,in the center of the upper rail and on the sides of the rail directly above each of the outermost legs). The majority of toddler bed guardrails only have one outermost leg or free end. The other end of a toddler bed guardrail typically is secured to a corner post attaching the headboard to the guardrail. Each of the guardrail failure incidents that have been reported involved a guardrail detaching or fracturing at the corner post attachment point. We agree with the commenter that applying a single force above the rail's free end is more onerous than the proposed test and exerts the greatest force on the guardrail's attachment points. Furthermore, the commenter's suggestion provides improved test repeatability by specifying a procedural method for applying the test force to a guardrail free end with a significantly contoured geometry. The final rule uses the language suggested by the commenter instead of the proposed wording for the guardrail structural integrity test (§ 1217.2(c)(5)(i)).

(Comment 4)—Another commenter stated that there was not sufficient justification for the proposed 50-pound force requirement and suggested a 40-pound force instead. The commenter stated that the incident data only refers to two injuries from broken components and that the incidents do not mention that guardrails were involved. The commenter further stated that only a fraction of a 50-pound force would be used by a sleeping child inadvertently rolling off the bed, and that a child pulling on the guardrail from outside of the bed in play would tip most toddler beds over before reaching the proposed 50-pound force.

The commenter also requested an exemption for removable guardrails or guardrails that could be removed without the use of tools.

(Response 4)—We disagree with replacing the 50-pound force requirement with a 40-pound force requirement and disagree with the commenter's claim that there have not been any incidents involving a guardrail breaking or detaching from a toddler bed. In one reported incident, the occupant fell to the floor and received a bruise and laceration to the head. We also disagree with the commenter that 50 pounds is an excessive amount of force. We have received several detailed reports of children climbing on, or leaning against, guardrails, which resulted in subsequent structural failure of the guardrail or its means of attachment.

We tested several different makes and models of toddler beds to the 50-pound force requirement, incorporating the commenter's suggested test methodology and applying the test force 11 inches above the top of the mattress support. We used the guardrail structural integrity test suggested by the commenter and the language in the proposed rule to test five toddler beds: two plastic and three wooden beds. Two of the five toddler beds chosen for testing had been involved in incidents where the guardrail detached or broke when the occupant leaned on the guardrail. The guardrails on all five toddler beds successfully withstood the application of 40 pounds (the force suggested by the commenter). Conversely, when performing the test as stated in the proposed rule, only the guardrails on the three toddler beds that had not been involved in incidents were able to withstand application of the 50-pound force. The guardrail on one toddler bed that had been involved in an incident broke at one of its attachment points at approximately 42 pounds. The guardrail of the other bed that had been involved in an incident withstood the initial application of 50 pounds, but detached from the toddler bed within the first 3 seconds after maintaining 50 pounds. Based on this testing, we concluded that the 50-poundforce is appropriate and adequate to identify guardrails that could be susceptible to detachment. The final rule retains the 50-pound force requirement.

Finally, we disagree with exempting removable guardrails from the guardrail structural integrity test. A guardrail should be attached to a toddler bed with sufficient means to provide substantial rigidity. Guardrails that would require only the consumer's strength to install would be susceptible to the foreseeable forces that a toddler could apply to the guardrail. Such a guardrail would not be sufficient to protect a child.

(Comment 5)—Two comments addressed the testing requirements for the spindles/slats. One commenter suggested that language in the toddler bed standard regarding slat strength should match the language in the CPSC's new crib standards. A second commenter agreed with the proposal to test 25 percent of slats at 80 pound-force, but questioned the rationale for testing the remaining 75 percent of slats at 60 pound-force.

(Response 5)—We agree that the toddler bed spindle/slat strength test should be consistent with the full-size and non-full-size crib spindle/slat strength requirements in ASTM F 1169-10 and ASTM F 406-10a, respectively, referenced in the recently published mandatory requirements, 75 FR 81766 (Dec. 28, 2010), to be codified at 16 CFR part 1219 and 16 CFR part 1220, respectively. This will harmonize the spindle/slat strength requirements for cribs and toddler beds and provide consistency and clarity because many toddler beds are converted from cribs, and many toddler bed manufacturers also manufacture cribs. Therefore, the final rule modifies the spindle/slat strength test language to reflect the changes made in the full-size and non-full-size crib standards. Changing the spindle/slat strength requirement to be consistent with the requirement in the crib standard means that no slats would be tested at 60 pound-force (the crib standard requires testing 25 percent of slats at 80 pound-force and then another 25 percent of slats at 80 pound-force if needed, with no more than 50 percent of the slats tested).

(Comment 6)—One commenter requested that the mattress retention requirements, corresponding tests, and related warning labels be removed from the standard because they are now obsolete.

(Response 6)—We agree with the commenter that the mattress retention sections 6.1, 6.1.1, 6.1.2, test method section 7.1, and warning section 8.4.4.2, as identified in ASTM F 1821-09 and referenced in the proposed rule, are obsolete. Accordingly, we have removed those sections from the final rule. The original intent of these sections was to ensure that the mattress did not horizontally or vertically dislocate enough to allow a child access to potentially dangerous mattress support openings, which could entrap a child's torso or head, possibly resulting in a fatality. The current ASTM standard, ASTM F 1821-09, includes provisions to reduce entrapment hazards by testing for hazardous openings, not only in the mattress support system, but also in the bed's guardrails and end structures, including the headboard, footboard, and any point where these components could be joined. These requirements are more stringent than the mattress retention requirements, making the mattress retention provisions unnecessary. Accordingly, we have eliminated these requirements from the final rule.

(Comment 7)—Two commenters recommended that the full-size crib and toddler bed standards be harmonized with respect to the required warnings because many full-size cribs convert into toddler beds and, therefore, would require the warnings specified in both standards. The commenters argued that such harmonization would eliminate redundant warning statements, making the warnings more effective. One of these commenters suggested that specifying the content, but not the exact wording of the required warnings in the proposed toddler bed rule, would be one method of harmonizing these standards.

(Response 7)—We agree that failing to harmonize warnings in the toddler bed rule and in the full-size crib standard could introduce redundant and extraneous warnings on convertible cribs, and that this might diminish the effectiveness of the warnings. For example, the strangulation warning requirements for toddler beds specified in the proposed rule are redundant with the strangulation warning requirements specified in section 8.4.1.2 of ASTM F 1169-10,Standard Consumer Safety Specification for Full-Size Baby Cribs.Additionally, the entrapment warning requirements for toddler beds specified in the proposed rule do not apply to full-size cribs that might convert to a toddler bed. Thus, we have revised the final rule's entrapment and strangulation warning requirements for toddler beds to apply only to toddler beds that do not convert from a crib. Toddler beds that convert from a crib must use the warnings specified in ASTM F 1169-10, incorporated by reference at 16 CFR part 1219,Safety Standard for Full-Size Baby Cribs,with additional text that specifies the minimum mattress thickness, as detailed below.

The proposed rule for toddler beds, shortened the warning for the minimum mattress size that appears in section 8.4.4.1 of ASTM F 1821-09 to state: “ONLY use full-size crib mattress of the recommended size,” based on our understanding that section 8.3.2 of that standard already required both the bed and its retail carton to be clearly and legibly marked with the intended mattress size (75 FR at 22294 through 22295). Since then, we have discovered that section 8.3.2 of ASTM F 1821-09 only requires the retail carton to be marked with the intended mattress size. Given this, we believe that it would be reasonable to maintain a mattress size warning similar to that specified in section 8.4.4.1 of ASTM F 1821-09 in the final rule. Section 8.1.3 of the full-size crib standard, ASTM F 1169-10, specifies the exact wording of a warning statement regarding the intended mattress size. The language used in this warning is very similar to the warning content specified in 8.4.4.1 of ASTM F 1821-09.

Therefore, the final rule provides the following mattress size warning requirement:

Because full-size cribs that convert to toddler beds require the exact warning statement specified in section 8.1.3 of the full-size crib standard, ASTM F 1169-10, requiring the warning statement on all toddler beds would mean that convertible cribs would need two warning statements about mattress size that are largely redundant. Thus, as in the case of the entrapment and strangulation warnings, the final rule provides that the warning requirement for mattress size for toddler beds apply only to toddler beds that do not convert from a crib. To address the fact that the full-size crib standard specifies a maximum mattress thickness of 6 inches, but the toddler bed standard specifies a minimum mattress thickness of 4 inches, the final rule provides that toddler beds that convert from a crib must include additional text indicating that a minimum mattress thickness of 4 inches is required. This language would be included at the end of the warning statement specified in section 8.1.3 of the full-size crib standard, ASTM F 1169-10.

(Comment 8)—One commenter generally supported the proposed warning requirements but suggested that the statement, “ALWAYS follow assembly instructions,”is not useful on the product itself. The commenter suggested that it would be more appropriate for this statement to be located on the packaging and at the top of the assembly instructions.

(Response 8)—We disagree with the commenter's assessment and believe that locating this warning statement on the product would be more beneficial than locating it either on the packaging or at the top of the assembly instructions. Generally, a warning should be located where the consumer is likely to be looking when the warning is needed. The warning is intended to alert consumers of the need to follow the assembly instructions, and the target audience for the message would be consumers who otherwise would not follow such instructions. For this reason, a warning located at the top of the assembly instructions is unlikely to be noticed or read by those who need the information most. A warning located on the product itself, however, is more likely to be noticed by these consumers because all consumers must interact with the product to assemble it, even if they do not examine the assembly instructions or product packaging beforehand. The final rule does not make any changes related to the placement of this warning statement.

(Comment 9)—One commenter suggested that the warning statement specified in section 8.4.4.2 of ASTM F 1821-09 and referenced in the preamble to the proposed rule (75 FR at 22294), concerning the use of a guardrail as a means of containing the mattress, should be removed from the final rule. The commenter asserted that the warning statement, as well as the mattress retention requirements on which the warning statement is based (specified in sections 6.1, 6.1.1, and 6.1.2), are now obsolete.

(Response 9)—We agree that the warning requirement regarding the use of a guardrail to contain the mattress is obsolete. The proposed rule would specify two alternative entrapment warnings because of the requirement of a warning about guardrail use. Therefore, removing this obsolete warning statement about guardrail use eliminates the need for two alternative warning labels that address the entrapment hazard.

(Comment 10)—A commenter objected to incorporating the ASTM standard by reference into the published regulation, arguing that the law requires that the terms of legal requirements must be freely available to the public, citingBanksv.Manchester,128 U.S. 244, 9 S. Ct. 36, 40 (1888). The commenter also citedVeeckv.Southern Building Code Congress International, Inc. (“SBCCI”),293 F.3d 791 (5th Cir. 2002).

(Response 10)—The cases to which the commenter refers do not apply to the rules issued under section 104 of the CPSIA. InBanks,the court held that a reporter authorized by the State of Ohio to publish the state's judicial opinions was not authorized by Federal law to obtain a copyright on the opinions because he was not the author of those opinions. That is not an issue here where ASTM already has copyright protection for its standards. In theVeeckcase, Veeck posted the local building codes of two Texas towns on his Web site. The text of the building codes was created and copyrighted by a building code organization and was adopted by the towns as law. The court stated: “Aslaw,the model codes enter the public domain and are not subject to the copyright holder's exclusive prerogatives. As model codes, however, the organization's works retain their protected status.”Id.at 793 (emphasis in the original).

The building code organization had encouraged local government entities to adopt its code into law without any cost to the government entity.Id.at 794. In contrast, ASTM has not given its permission for the CPSC to adopt its standards. Thus, the cases cited by the commenter do not require us to publish the copyrighted ASTM standard in the Code of Federal Regulations. Because the U.S. government is not immune from suit for copyright infringement,see Schnapperv.Foley,667 F.2d 102 (DC Cir. 1981,cert. denied,102 S. Ct. 1448, the CPSC could be subject to a legal challenge if it copied the ASTM standard and published it in theFederal Registerwithout permission from ASTM.

(Comment 11)—One commenter observed that the majority of the incident data concerning fatalities involved children who were less than 15 months old (i.e.,the intended minimum age for toddler beds) or involved a cord that was a strangulation risk. The commenter noted that the preamble to the proposed rule had acknowledged this, but the commenter expressed concern that CPSC staff appeared to be “inflating the number of incidents and that data cited as `related to' or `associated with' are insufficient to rely upon in the absence of data and analysis that establishes that the products proximately caused the incident or injury complained of.”

A second commenter expressed concern that although the current standard is intended to address children “not less than 15 months and weighing no more than 50 pounds,” the “National Injury Estimates reported in the NPR identified victims between 4 months and 6 years.” The commenter believed that this difference could affect the basis for the standard.

(Response 11)—The commenters misinterpret the discussion of incident data in the preamble to the proposed rule. The discussion was intended to provide an overall view of problems associated with toddler beds that are reported to the CPSC. The discussion of the four fatalities noted that three of the decedents were under the age intended for use of the product and explained that the product involvement in the fourth fatality was incidental. The “National Injury Estimates” are used to identify the injuries associated with toddler beds; they are not used to change the age/weight designations in the standard. Age requirements for users and placement of toddler beds in relation to window cords are addressed in the warning labels specified in the current voluntary standard; therefore, these issues are relevant in evaluating the voluntary standard. In addition, the discussion in the proposed rule used appropriate qualifying statements (such as “associated with” and “related to”). These statements are intended to qualify the types of incidents reported to the CPSC and do not “inflate” the data. This approach reflects the statutory directive of section 104 of the CPSIA to issue a consumer product safety standard for toddler beds that is substantially the same as, or more stringent than, the voluntary standard. The portions of the final rule that are more stringent than the ASTM standard are based upon human factors and engineering analyses, which concluded that the more stringent provisions would reduce further the identified risks of injury associated with toddler beds.

When the Commission issued its notice of proposed rulemaking in April 2010, the Commission proposed incorporating by reference ASTM F 1821-09,Standard Consumer Safety Specification for Toddler Beds,with four modifications that are described below.

The Commission proposed that guardrails be a minimum height of 5 inches above the manufacturer's recommended sleeping surface. This requirement was intended to help prevent falls from the bed.

The Commission proposed to add a test for the overall stability of guardrails. The proposed test requires applying a 50-pound force to the center along the length of the guardrail and directly over each of the outermost legs of the guardrail. The test was intended to keep children from falling out of bed and to ensure that guardrails remain intact when children lean against them or use them to climb into bed. The basis for selecting a 50-pound force was that 50 pounds is the maximum weight of a child intended to use a toddler bed.

The Commission proposed modifying the ASTM standard's test for spindles/slats on guardrails, side rails, and end structures. ASTM F 1821-09 uses a torso wedge and a 25-pound force on guardrails and end structures in the most adverse orientation to ensure that slats and spindles do not break and allow an opening in which a child could become entrapped. The Commission proposed modifying this provision to test 25 percent of all slats (rather than just those on the end structure and guardrails) using an 80-pound force. The 80-pound force was selected based on tests that CPSC staff performed on 20 cribs or toddler beds. (Details of this testing are provided in the preamble to the proposed rule, 75 FR 22293 (April 28, 2010).) The Commission proposed that the remaining 75 percent of slats be tested with a 60-pound force.

The Commission also proposed changes to the warning requirements in ASTM F 1821-09. The Commission proposed: (1) Changing the warning specified in 8.4.3 of ASTM F 1821-09 to separate this into two warnings, one for entrapment and one for strangulation; (2) providing two options for entrapment warnings: one for beds where the guardrail is the means of mattress containment and one where the guardrail is not; and (3) removing provisions in 8.4.4 of ASTM F 1821-09 concerning warning statements addressing issues (but not specifying wording and layout) because these warnings would be redundant and unclear with the warnings the Commission proposed to specify.

Section 104(b) of the CPSIA requires the Commission to assess the effectiveness of the voluntary standard in consultation with representatives of consumer groups, juvenile product manufacturers, and other experts. This consultation process for the toddler bed standard began in late 2009, before we published the proposed rule. Our consultations with ASTM are ongoing.

While most requirements of ASTM F 1821-09 are sufficient to reduce the risk of injury posed by toddler beds, we have determined that modifying or adding several provisions to the standard will make the requirements more stringent and further reduce the risk of injury. The following discussion describes the final rule, including changes to the ASTM requirements, and notes any changes from the proposed rule.

The final rule states that part 1217 establishes a consumer product safety standard for toddler beds manufactured or imported on or after a date which would be six months after the date of publication of a final rule in theFederal Register. We received no comments on this provision and are finalizing it without change.

Section 1217.2(a) provides language to incorporate by reference ASTM F 1821-09,Standard Consumer Safety Specification for Toddler Beds.The standard also incorporates by reference the labeling requirements in section 8 of ASTM's full-size crib standard (ASTM F 1169-10,Standard Consumer Safety Specification for Full-Size Baby Cribs) because CPSC's toddler bed standard requires toddler beds that convert from cribs to comply with the labeling requirements in the ASTM crib standard. Section 1217.2(a) also provides information on how to obtain a copy of the ASTM standards or to inspect a copy of the standards at the CPSC.

We received no comments on this provision. We are changing it to include the language necessary to incorporate by reference the labeling provisions of the ASTM crib standard.

The final rule removes provisions concerning mattress retention (in the ASTM standard, these are performance provisions in sections 6.1 through 6.1.2; test method provisions in sections 7.1.2 through 7.1.6; warning provision in section 8.4.4.2). As explained in response to a comment in section E.5 of this preamble, the mattress retention provisions are no longer necessary because of other changes in the standard that better address entrapment protection, which was the purpose of the mattress retention provisions. This is a change from the proposed rule.

The final rule makes several additions or modifications to ASTM F 1821-09 to strengthen the guardrail provisions. Asin the proposal, the final rule requires that the upper edge of the guardrail be at least 5 inches above the manufacturer's recommended sleeping surface. The final rule adds a sentence to clarify that if the manufacturer does not specify a mattress thickness, the guardrail height must be based on a mattress thickness of 6 inches. We chose 6 inches because many toddler beds convert from cribs, and the full-size crib standard specifies 6 inches as the maximum thickness allowed for a crib mattress. In response to a comment discussed in section E.3 of this preamble, the final rule modifies the test methodology that we had proposed. These changes, suggested by a commenter, make the test more suitable for the geometry of a guardrail (as opposed to that of a portable bed rail) and improve repeatability of the test. With these changes, the test is better suited to toddler bed guardrails and thus, will better address the risk of injury.

As discussed in section F of this preamble, we had proposed adding requirements for testing the spindles/slats on guardrails, side rails, and end rails. These provisions in the final rule are largely the same as proposed. However, we received a comment (discussed in section E.4 of this preamble) asking that spindle/slat requirements for toddler beds match such requirements for cribs, which are stated in ASTM's full-size crib standard, ASTM F 1169-10. In response to this comment, we have revised the spindle/slat requirements so that these provisions are more consistent with the requirements for cribs. Like the crib rule, the final rule requires testing 25 percent of spindles/slats at 80 pound-force and then another 25 percent of spindles/slats at 80 pound-force, if needed, with no more than 50 percent of the spindles/slats tested. The 80 pound-force is applied for a period of 2 to 5 seconds midway between the top and bottom of the spindle/slat being tested and is maintained for 10 seconds. The final rule also specifies, as provided in the crib standard, how to test toddler beds that may contain folding sides. The modifications make the standard in the final rule more stringent than ASTM F 1821-09 because ASTM F 1821-09 does not contain any requirements concerning spindle/slat strength.

As noted in the preamble to the proposed rule, the warning provisions in ASTM F 1821-09 are confusing and redundant,see75 FR 22293-96. We proposed that the warning be separated into two warnings, one to address entrapment, and one to address strangulation.

Like the proposal, the final rule requires that specified warnings addressing entrapment and strangulation appear on toddler beds. The final rule also requires a specified warning concerning mattress size to address potential entrapment in gaps surrounding the mattress. As noted in section E.6 of this preamble, the Commission agrees with a commenter who asked that warning labels on toddler beds be harmonized with warning labels required for cribs because many toddler beds convert from cribs. Accordingly, the final rule requires toddler beds that convert from cribs to meet the warning requirements specified in the full-size crib standard, ASTM F 1169-10 (incorporated by reference at 16 CFR part 1219,Safety Standard for Full-Size Baby Cribs) instead of using the warnings specified in the toddler bed standard. The mattress thickness requirements are different for cribs and for toddler beds. In order to avoid requiring a convertible crib to have two warnings concerning mattress size (one to address the crib requirements and one to address the toddler bed requirements), the final rule provides that toddler beds that convert from cribs must provide the mattress size warning required by the crib standard and add a line to the warning specifying that the minimum mattress thickness is 4 inches. The modifications to ASTM F 1821-09 make the standard more stringent. Separating the strangulation and entrapment warnings should increase consumers' understanding of the connection between the relevant behaviors and hazards. In addition, the entrapment hazard warning emphasizes the group most at risk and the consequences of the hazard, as well as provides a more explicit description of how the entrapment hazard occurs.

The Administrative Procedure Act (“APA”) generally requires that the effective date of a rule be at least 30 days after publication of the final rule. 5 U.S.C. 553(d). The preamble to the proposed rule indicated that the standard would become effective six months after publication of a final rule (75 FR at 22296). We did not receive any comments on the proposed six-month effective date. The final rule provides a six-month effective date (as measured from the date of publication of this final rule in theFederal Register).

The Regulatory Flexibility Act (“RFA”) generally requires that agencies review proposed rules for their potential economic impact on small entities, including small businesses, and prepare an initial regulatory flexibility analysis. 5 U.S.C. 603. The RFA further requires agencies to consider comments they receive on the initial regulatory flexibility analysis and prepare a final regulatory flexibility analysis describing the impact of the final rule on small entities and identifying alternatives that could reduce that impact.Id.604. This section summarizes CPSC staff's final regulatory flexibility analysis for the toddler bed standard. (CPSC staff's final regulatory flexibility analysis can be found at Tab F of the staff's briefing package.)

There are currently at least 73 known manufacturers or importers supplying toddler beds (including convertible cribs) to the U.S. market. Approximately 48 suppliers are domestic manufacturers (66 percent); 13 are domestic importers (18 percent); 11 are foreign manufacturers (15 percent); and the remaining firm is a foreign supplier who imports from other countries and exports to the United States.

Under U.S. Small Business Administration (“SBA”) guidelines, a manufacturer of toddler beds or convertible cribs is small if it has 500 or fewer employees; an importer is considered small if it has 100 or fewer employees. Based on these guidelines, 11 of the domestic importers and 34 domestic manufacturers known to be supplying the U.S. market are small. There are an additional eight domestic manufacturers of unknown size, most (at least seven) of which are likely to be small. However, there are probably additional unknown small manufacturers and importers operating in the U.S. market as well.

The Juvenile Products Manufacturers Association (“JPMA”), the major U.S. trade association that represents juvenile product manufacturers and importers, runs a voluntary certification program for several juvenile products. Approximately 29 firms supplying toddler beds and/or convertible cribs to the U.S. market make or import products that comply with ASTM F 1821-09 (40 percent). Of the small domestic businesses, 11 manufacturers (27 percent) and 6 importers (55 percent) make or import products that are JPMA-certified as ASTM compliant.Additionally, there are two small manufacturers that claim compliance with the ASTM standard that are not part of the JPMA Certification Program.

The most recent U.S. birth data shows that there are approximately 4.2 million births per year (this figure has been updated since publication of the proposed rule). The majority of these babies eventually use cribs for sleeping purposes, although there is some evidence that play yards are becoming a common substitute. In fact, according to a 2005 survey conducted by the American Baby Group (2006 Baby Products Tracking Study), 22 percent of new mothers own convertible cribs. Approximately 16 percent of convertible cribs were handed down or purchased secondhand. If these rates remained constant, this suggests annual convertible crib sales would be about 776,000 (0.22 × 0.84 × 4.2 million births per year) currently. (These estimates are intended to provide a general characterization of the market. They are not intended to provide estimates of future sales.) Of those consumers with nonconvertible cribs, some proportion of them eventually will use toddler beds when their children get older. However, consumers may choose to use a twin or larger bed (and possibly use portable bed rails) rather than a separate toddler bed. Assuming that approximately 50 percent of consumers elect to use toddler beds, and assuming that approximately 50 percent buy them new, this would mean that around 819,000 toddler beds are sold per year (0.78 percent nonconvertible cribs × 4.2 million births × 0.5 percent use toddler beds × 0.5 percent buy them new). Adding this number to the estimate of convertible cribs, yields a total of approximately 1.6 million units (convertible cribs and toddler beds) sold per year that might be affected by the toddler bed standard.

There are 73 firms currently known to be marketing toddler beds and/or convertible cribs in the United States. Of these, 6 are large domestic manufacturers; 1 is a domestic manufacturer of unknown size; 2 are large domestic importers; and 12 are foreign firms. The impact on the remaining 52 small firms (34 small domestic manufacturers, 7 presumed to be small domestic manufacturers, and 11 small domestic importers) is the focus of the remainder of this analysis.

For the most part, the impact of the final rule on small manufacturers will differ based on whether they currently make products that comply with the voluntary ASTM standard. If they do not, as is the case with 28 firms, the impact on them could be significant. These firms likely would have to undergo product redevelopment. As explained below, the cost of such an effort for toddler beds/convertible cribs is unknown, but could be substantial for some firms.

Product development costs include: product design, development, and marketing staff time; product testing; and focus group expenses. These costs can be very high, particularly when there are multiple products; but they can be treated as new product expenses and amortized. Other one-time costs include the retooling of manufacturing equipment, which could also be recouped gradually over the sales of numerous units. There also are expected to be increased costs of production. Producing toddler beds and convertible cribs that have greater structural integrity, stronger slats/spindles, and higher guardrails may require additional raw materials or possibly heavier materials. In addition to increasing the costs of production, this could increase shipping costs as well.

Even if these firms are able to pass on some of their increased costs to consumers, the impact still could be considerable. This is because firms manufacturing toddler beds and convertible cribs are not simply competing against other producers of toddler beds and convertible cribs. They are competing against producers of substitute products as well, firms that would not be covered under the recommended standard. Toddler beds compete with twin (or possibly larger) beds, which can be used with portable guardrails. Similarly, convertible cribs compete with adult-size beds when children are older and with standard cribs for younger children.

There is expected to be less impact on the 13 firms that are known to produce products that comply with the current voluntary standard. It is believed that at least some of these firms may be able to comply with the new requirements without modifying their products (except for labeling). The remaining firms may opt to redesign their product(s) as well, which again would result in some one-time costs, as well as a possible increase in production costs. It is also possible, however, that they may be able to select a potentially less expensive option to address some of the requirements that differ from the ASTM standard; modifying the materials used may be sufficient for many products, and the associated cost is not expected to exceed a few dollars per unit.

Two of the 28 manufacturers supplying noncompliant products would be affected differently by the final rule. They are firms that take already-manufactured toddler beds and convertible cribs, decorate them (often with original artwork), and sell them as a final product. Because these firms do not make the underlying toddler beds/convertible cribs, the impact of the final rule on them will be the same as on an importer. They would need to find a new supplier of compliant products if their current supplier does not make the necessary modifications. The new products presumably would be higher quality, as well as more expensive, because some of the original manufacturer's production costs (and possibly redevelopment costs) will be passed on to these firms.

The scenario described above assumes that only those firms that produce products which are JPMA-certified or claim ASTM compliance will pass the voluntary standard's requirements. This is not necessarily the case. We have identified many cases in which products not certified by JPMA actually comply with the relevant ASTM standard. However, there is insufficient evidence of this for toddler beds/convertible cribs to quantify this impact. To the extent that some products may already comply with non-U.S. standards, the effect of the new and modified requirements may be less substantial than outlined above. However, there is insufficient information to quantify this effect.

The majority of small domestic importers (6 out of 11) supply products that comply with the current voluntary standard. We believe that at least some of these firms will not need to make any additional product modifications to meet the final rule (except for labeling). However, those whose products do require modifications will need to find an alternate supplier if their existing one does not come into compliance. The new products presumably will be more expensive, as well as higher in quality. However, the actual price increase is unknown and is likely to vary based upon the degree of modifications required. All of the remaining five firms supplying products that do not comply with the ASTM voluntary standard would need to find suppliers whose products comply with the standard or ensure that their current supplier made the modifications necessary to comply. Depending upon the degree to which their toddler beds and convertible cribs are out of compliance with the voluntary standard, the price increase(as well as the increases in quality and safety) could be relatively high. To the extent that some of these firms actually may comply with ASTM F 1821-09 or one or more of the new/modified requirements in the final standard, the impact of the final rule would be lower.

For the most part, the impact on importers tends to be smaller than on manufacturers. Even if importers respond to the rule by discontinuing the import of their noncomplying toddler beds and convertible cribs, either replacing them with a complying product or another juvenile product, deciding to import an alternative product would be a reasonable and realistic way to offset any lost revenue. The one exception would be firms for which convertible cribs/toddler beds and their associated products (i.e.,matching furniture) form the core of their product line. For these firms, a substantial price increase possibly could drive them out of business or require them to rebuild their business based on alternative products.

Under section 104 of the CPSIA, the primary alternative that would reduce the impact on small entities is to make the voluntary standard mandatory with no modifications. For small domestic manufacturers that already meet the requirements of the voluntary standard, adopting the standard without modifications may reduce their costs relative to the final rule, but only marginally. Similarly, limiting the requirements of the rule to those already in the voluntary standard probably would have little beneficial impact on small manufacturers that do not currently meet the requirements of the voluntary standard. This is because, for these firms, most of the cost increases would be associated with meeting the requirements of ASTM F 1821-09, rather than the changes associated with the final rule. The difference for importers also is likely to be minimal, whether they supply products that comply with the voluntary standard or not,

A second alternative would be to set a later effective date. This would allow suppliers additional time to modify and/or develop compliant toddler beds and convertible cribs, thereby spreading the associated costs over a longer period of time.

It is possible that the final rule could have a significant impact on a substantial number of small entities. Firms supplying products that already comply with the voluntary standard may not need to make any product modifications to meet the final rule, but this group is known to include only 42 percent of the small firms identified. Some of these firms and all other firms will need to make at least some modifications to their toddler beds and convertible cribs to comply with the final rule. The extent of these costs is unknown; but because product redevelopment likely would be necessary in many cases, it is possible that the costs could be large and have the potential to reduce firms' ability to compete with substitute products.

A few small businesses have product lines consisting entirely or primarily of toddler beds, convertible cribs, and related products (such as accompanying furniture). These firms may be affected disproportionately by any standard. If the cost of developing (or importing) a compliant product proves to be a barrier for these firms, the loss of toddler beds and convertible cribs as a product category could be significant and may not be mitigated easily by the sale of other juvenile products.

The Commission's regulations provide a categorical exclusion for the Commission's rules from any requirement to prepare an environmental assessment or an environmental impact statement because they “have little or no potential for affecting the human environment.” 16 CFR 1021.5(c)(2). This rule falls within the categorical exclusion, so no environmental assessment or environmental impact statement is required.

This rule contains information collection requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The preamble to the proposed rule (75 FR at 22296 through 22297) discussed the information collection burden of the proposed rule and specifically requested comments on the accuracy of our estimates. We did not receive any comments concerning the information collection burden of the proposal, and the final rule does not make any changes to that burden. We have applied to the U.S. Office of Management and Budget (OMB) for a control number for this information collection, and we will publish a notice in theFederal Registerproviding the number when we receive approval from the OMB.

Section 26(a) of the CPSA, 15 U.S.C. 2075(a), provides that where a “consumer product safety standard under [the CPSA]” is in effect and applies to a product, no state or political subdivision of a state may either establish or continue in effect a requirement dealing with the same risk of injury unless the State requirement is identical to the Federal standard. (Section 26(c) of the CPSA also provides that states or political subdivisions of states may apply to the Commission for an exemption from this preemption under certain circumstances.) Section 104(b)(1)(B) of the CPSIA refers to the rules to be issued under that section as “consumer product safety standards,” thus implying that the preemptive effect of section 26(a) of the CPSA would apply. Therefore, a rule issued under section 104 of the CPSIA will invoke the preemptive effect of section 26(a) of the CPSA when it becomes effective.

Section 14(a) of the CPSA imposes the requirement that products subject to a consumer product safety rule under the CPSA, or to a similar rule, ban, standard, or regulation under any other act enforced by the Commission, be certified as complying with all applicable CPSC requirements. 15 U.S.C. 2063(a). Such certification must be based on a test of each product, or on a reasonable testing program or, for children's products, on tests on a sufficient number of samples by a third party conformity assessment body accredited by the Commission to test according to the applicable requirements. As noted in the discussion above concerning preemption, section 104(b)(1)(B) of the CPSIA refers to standards issued under that section as “consumer product safety standards.” By the same reasoning, such standards also would be subject to section 14 of the CPSA. Therefore, any such standard would be considered a consumer product safety rule, to which products subject to the rule must be certified.

Because toddler beds are children's products, they must be tested by a third party conformity assessment body whose accreditation has been accepted by the Commission. Elsewhere in this issue of theFederal Register, we have issued a notice of requirements to explain how laboratories can become accredited as third party conformity assessment bodies to test to the new toddler bed standard. (Toddler beds also must comply with all other applicable CPSC requirements, such as the lead content requirements of section 101 of the CPSIA, the phthalate content requirements in section 108 of the CPSIA, the tracking label requirement insection 14(a)(5) of the CPSA, and the consumer registration form requirements in section 104 of the CPSIA.)

For the reasons stated above, and under the authority of 5 U.S.C. 553, and sections 3 and 104 of Public Law 110-314, 122 Stat. 3016 (August 14, 2008), the Consumer Product Safety Commission amends Title 16 of the Code of Federal Regulations by adding part 1217 to read as follows:

Section 14(a)(3)(B)(vi) of the CPSA, as added by section 102(a)(2) of the Consumer Product Safety Improvement Act of 2008 (CPSIA), Public Law 110-314, directs the CPSC to publish a notice of requirements for accreditation of third party conformity assessment bodies to assess children's products for conformity with “other children's product safety rules.” Section 14(f)(1) of the CPSA defines “children's product safety rule” as “a consumer product safety rule under [the CPSA] or similar rule, regulation, standard, or ban under any other Act enforced by the Commission, including a rule declaring a consumer product to be a banned hazardous product or substance.” Under section 14(a)(3)(A) of the CPSA, each manufacturer (including the importer) or private labeler of products subject to those regulations must have products that are manufactured more than 90 days after theFederal Registerpublication date of a notice of the requirements for accreditation, tested by a third party conformity assessment body accredited to do so, and must issue a certificate of compliance with the applicable regulations based on that testing. Section 14(a)(2) of the CPSA, as added by section 102(a)(2) of the CPSIA, requires that certification be based on testing of sufficient samples of theproduct, or samples that are identical in all material respects to the product. The Commission also emphasizes that, irrespective of certification, the product in question must comply with applicable CPSC requirements (see, e.g.,section 14(h) of the CPSA, as added by section 102(b) of the CPSIA).

This notice provides the criteria and process for Commission acceptance of accreditation of third party conformity assessment bodies for testing pursuant to the safety standard for toddler beds, which appears elsewhere in this issue of theFederal Register. The standard for toddler beds will be codified at 16 CFR part 1217. The standard contains the test methods that conformity assessment bodies will use to assess toddler beds. The Commission is recognizing limited circumstances in which it will accept certifications based on product testing conducted before the toddler bed standard becomes effective in six months. The details regarding those limited circumstances can be found in part IV of this document below.

Although section 14(a)(3)(B)(vi) of the CPSA directs the CPSC to publish a notice of requirements for accreditation of third party conformity assessment bodies to assess conformity with “all other children's product safety rules,” this notice of requirements is limited to the regulation identified immediately above.

The CPSC also recognizes that section 14(a)(3)(B)(vi) of the CPSA is captioned: “All Other Children's Product Safety Rules,” but the body of the statutory requirement refers only to “other children's product safety rules.” Nevertheless, section 14(a)(3)(B)(vi) of the CPSA could be construed to require a notice of requirements for “all” other children's product safety rules, rather than as a notice of requirements for “some” or “certain” children's product safety rules. However, whether a particular rule represents a “children's product safety rule” may be subject to interpretation, and Commission staff is continuing to evaluate which rules, regulations, standards, or bans constitute “children's product safety rules.” The CPSC intends to issue additional notices of requirements for other rules that the Commission determines to be “children's product safety rules.”

This notice of requirements applies to all third party conformity assessment bodies as described in section 14(f)(2) of the CPSA. Generally speaking, such third party conformity assessment bodies are: (1) Third party conformity assessment bodies that are not owned, managed, or controlled by a manufacturer or private labeler of a children's product to be tested by the third party conformity assessment body for certification purposes; (2) “firewalled” conformity assessment bodies (those that are owned, managed, or controlled by a manufacturer or private labeler of a children's product to be tested by the third party conformity assessment body for certification purposes and that seek accreditation under the additional statutory criteria for “firewalled” conformity assessment bodies); and (3) third party conformity assessment bodies owned or controlled, in whole or in part, by a government.

The Commission requires baseline accreditation of each category of third party conformity assessment body to the International Organization for Standardization (ISO)/International Electrotechnical Commission (IEC) Standard 17025:2005, “General Requirements for the Competence of Testing and Calibration Laboratories.” The accreditation must be by an accreditation body that is a signatory to the International Laboratory Accreditation Cooperation—Mutual Recognition Arrangement (ILAC-MRA), and the scope of the accreditation must include testing for any of the test methods identified earlier in part I of this document for which the third party conformity assessment body seeks to be accredited.

(A description of the history and content of the ILAC-MRA approach and of the requirements of the ISO/IEC 17025:2005 laboratory accreditation standard is provided in the CPSC staff briefing memorandum, “Third Party Conformity Assessment Body Accreditation Requirements for Testing Compliance With 16 CFR Part 1501 (Small Parts Regulations),” dated November 2008, and available on the CPSC's Web site athttp://www.cpsc.gov/library/foia/foia09/brief/smallparts.pdf.)

The Commission has established an electronic accreditation registration and listing system that can be accessed via its Web site athttp://www.cpsc.gov/about/cpsia/labaccred.html.

As stated in part I of this document, the Commission, elsewhere in this issue of theFederal Register, is issuing a new standard for toddler beds that will be codified at 16 CFR part 1217. This notice of requirements is effective on April 20, 2011. The final rule announcing the Safety Standard for Toddler Beds is effective on October 20, 2011. The effect of these twin publications is that each manufacturer (including the importer) or private labeler of a product subject to 16 CFR part 1217 must have any such product manufactured on or after October 20, 2011, tested by a third party conformity assessment body accredited to do so and must issue a certificate of compliance with 16 CFR part 1217 based on that testing.

This notice of requirements is exempt from the notice and comment rulemaking requirements of the Administrative Procedure Act, 5 U.S.C. 553 (seesection 14(a)(3)(G) of the CPSA, as added by section 102(a)(2) of the CPSIA (15 U.S.C. 2063(a)(3)(G))).

For a third party conformity assessment body to be accredited to test children's products for conformity with the test methods identified earlier in part I of this document, it must be accredited by an ILAC-MRA signatory accrediting body, and the accreditation must be registered with, and accepted by, the Commission. A listing of ILAC-MRA signatory accrediting bodies is available on the Internet athttp://ilac.org/membersbycategory.html.The accreditation must be to ISO Standard ISO/IEC 17025:2005, “General Requirements for the Competence of Testing and Calibration Laboratories,” and the scope of the accreditation must expressly include testing to the test method for toddler beds included in 16 CFR part 1217, Safety Standard for Toddler Beds. A true copy, in English, of the accreditation and scope documents demonstrating compliance with these requirements must be registered with the Commission electronically. The additional requirements for accreditation of firewalled and governmental conformity assessment bodies are described in parts II.B and II.C of this document below.

The Commission will maintain on its Web site an up-to-date listing of third party conformity assessment bodies whose accreditations it has accepted and the scope of each accreditation. Once the Commission adds a third party conformity assessment body to that list, the third party conformity assessment body may commence testing of toddler beds to support certification by the manufacturer or private labeler of compliance with the test methods identified earlier in part I of this document.

In addition to the baseline accreditation requirements in part II.A of this document, firewalled conformity assessment bodies seeking accreditedstatus must submit to the Commission copies, in English, of their training documents showing how employees are trained to notify the Commission immediately and confidentially of any attempt by the manufacturer, private labeler, or other interested party to hide or exert undue influence over the third party conformity assessment body's test results. This additional requirement applies to any third party conformity assessment body in which a manufacturer or private labeler of a children's product to be tested by the third party conformity assessment body owns an interest of 10 percent or more. While the Commission is not addressing common parentage of a third party conformity assessment body and a children's product manufacturer at this time, it will be vigilant to determine whether this issue needs to be addressed in the future.

As required by section 14(f)(2)(D) of the CPSA, the Commission must formally accept, by order, the accreditation application of a third party conformity assessment body before the third party conformity assessment body can become an accredited firewalled conformity assessment body. The Commission's order must also find that accrediting the firewalled conformity assessment body would provide equal or greater consumer safety protection than the manufacturer's or private labeler's use of an independent conformity assessment body.

In addition to the baseline accreditation requirements of part II.A of this document above, the CPSIA permits accreditation of a third party conformity assessment body owned or controlled, in whole or in part, by a government if:

• To the extent practicable, manufacturers or private labelers located in any nation are permitted to choose conformity assessment bodies that are not owned or controlled by the government of that nation;

• The third party conformity assessment body's testing results are not subject to undue influence by any other person, including another governmental entity;

• The third party conformity assessment body is not accorded more favorable treatment than other third party conformity assessment bodies in the same nation who have been accredited;

• The third party conformity assessment body's testing results are accorded no greater weight by other governmental authorities than those of other accredited third party conformity assessment bodies; and

• The third party conformity assessment body does not exercise undue influence over other governmental authorities on matters affecting its operations or on decisions by other governmental authorities controlling distribution of products based on outcomes of the third party conformity assessment body's conformity assessments.

The Commission will accept the accreditation of a governmental third party conformity assessment body if it meets the baseline accreditation requirements of part II.A of this document and meets the additional conditions stated here. To obtain this assurance, CPSC staff will engage the governmental entities relevant to the accreditation request.

The Commission has established an electronic accreditation acceptance and registration system accessed via the Commission's Web site athttp://www.cpsc.gov/about/cpsia/labaccred.html.The applicant provides, in English, basic identifying information concerning its location, the type of accreditation it is seeking, and electronic copies of its ILAC-MRA accreditation certificate and scope statement, and firewalled third party conformity assessment body training document(s), if relevant.

Commission staff will review the submission for accuracy and completeness. In the case of baseline third party conformity assessment bodies and government-owned or government-operated conformity assessment bodies, when that review and any necessary discussions with the applicant are completed satisfactorily, the third party conformity assessment body in question is added to the CPSC's list of accredited third party conformity assessment bodies athttp://www.cpsc.gov/about/cpsia/labaccred.html.In the case of a firewalled conformity assessment body seeking accredited status, when the staff's review is complete, the staff transmits its recommendation on accreditation to the Commission for consideration. (A third party conformity assessment body that ultimately may seek acceptance as a firewalled third party conformity assessment body may initially request acceptance as a third party conformity assessment body accredited for testing of children's products other than those of its owners.) If the Commission accepts a staff recommendation to accredit a firewalled conformity assessment body, the firewalled conformity assessment body then will be added to the CPSC's list of accepted third party conformity assessment bodies. In each case, the Commission will notify the third party conformity assessment body electronically of acceptance of its accreditation. All information to support an accreditation acceptance request must be provided in the English language.

Once the Commission adds a third party conformity assessment body to the list, the third party conformity assessment body then may begin testing of children's products to support certification of compliance with the regulation identified earlier in part I of this document for which it has been accredited.

Elsewhere in this issue of theFederal Register, the Commission is publishing a new safety standard for toddler beds, which will be codified at 16 CFR part 1217. The effect of this notice of requirements and the final rule is that each manufacturer (including the importer) or private labeler of a product subject to 16 CFR part 1217 must have any such product manufactured on or after October 20, 2011, tested by a third party conformity assessment body accredited to do so and must issue a certificate of compliance with 16 CFR part 1217 based on that testing.

To ease the transition to the new standards and avoid a “bottlenecking” of products at conformity assessment bodies at or near the effective date of 16 CFR part 1217, the Commission will accept certifications based on testing that occurred prior to the effective date of the new standard in certain prescribed circumstances. However, any such testing must comport with all CPSC requirements, including:

1. The product1 was tested by a third party conformity assessment body that was ISO/IEC 17025 accredited by a signatory to the ILAC-MRA at the time of the test. For firewalled conformity assessment bodies, the firewalled conformity assessment body must be one that the Commission has accredited by order at or before the time theproduct was tested, even if the order did not include the test methods specified in this notice. If the third party conformity assessment body has not been accredited as a firewalled conformity assessment body by a Commission order, the Commission will not accept a certificate of compliance based on testing performed by the third party conformity assessment body before it is accredited, by Commission order, as a firewalled conformity assessment body;

2. The third party conformity assessment body's application is accepted by the CPSC by October 20, 2011, as established by the Commission;

3. The test results show compliance with 16 CFR part 1217;

4. The product was tested on or after April 20, 2011 and before October 20, 2011; and

5. The third party conformity assessment body's accreditation remains in effect through the effective date for mandatory third party testing and manufacturer/private labeler certification for the subject product's respective regulation.

The Coast Guard will enforce the Special Local Regulation for the annual National Maritime Week Tugboat Races, Seattle, WA in 33 CFR 100.1306 on May 14, 2011 from 12:00 p.m. through 4:30 p.m. This regulation can be found in the April 27, 1996 issue of theFederal Register(61 FR 16710).

A regulated area is established on that portion of Elliott Bay along the Seattle waterfront in Puget Sound bounded by a line beginning at: 47°37′36″ N, 122°22′42″ W; thence to 47°37′24.5″ N, 122°22′58.5″ W; thence to 47°36′08″ N, 122°20′53″ W; thence to 47°36′21″ N, 122°20′31″ W; thence returning to the origin. This regulated area resembles a rectangle measuring approximately 3,900 yards along the shoreline between Pier 57 and Pier 89, and extending approximately 650 yards into Elliott Bay. Temporary floating markers will be placed by the race sponsors to delineate the regulated area. [Datum: NAD 1983]

No person or vessel may enter or remain in the regulated area except for participants in the event, supporting personnel, vessels registered with the event organizer, and personnel or vessels authorized by the Coast Guard Patrol Commander.

The Coast Guard will establish a patrol consisting of active and auxiliary Coast Guard vessels and personnel in the regulated area described above. The patrol shall be under the direction of a Coast Guard officer or petty officer designated by the Captain of the Port as the Coast Guard Patrol Commander. The Patrol Commander may forbid and control the movement of vessels in this regulated area.

A succession of sharp, short blasts from whistle or horn from vessels patrolling the area under the direction of the Patrol Commander shall serve as a signal to stop. Vessels signaled shall stop and comply with the orders of the patrol vessel. Failure to do so may result in expulsion from the area, citation for failure to comply, or both.

The Coast Guard may be assisted by other Federal, State, or local law enforcement agencies in enforcing this regulation.

This notice is issued under authority of 33 CFR 100.1306 and 5 U.S.C. 552(a). If the Captain of the Port determines that the regulated area need not be enforced for the full duration stated in this notice, he or she may use a Broadcast Notice to Mariners to grant general permission to enter the regulated area.

The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because doing so would be contrary to the public interest due to the emergency nature under which this safety zone is being established and would hinder the protection of the public.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in theFederal Register. Good cause for making this rule effective less than 30 days after publication exists because delaying the execution of the rule would be contrary to the public interest due to the emergency nature under which this safety zone is being established and would hinder the protection of the public.

This temporary safety zone is necessary to ensure the safety of the public from hazards involved with the flooding of the Red River. Restricted access to the Red River by the public will help ensure the safety of persons and property along the Red River.

Flooding conditions along the Red River have created serious dangers to the boating public. The strong currents and floating debris associated with the flooding of the Red River necessitate the Coast Guard limiting access to the portions of the river affected by this rule in order to protect the public. This rule is effective from 5 p.m. on April 7, 2011 until 5 p.m. on July 15, 2011. The Captain of the Port Duluth may stop enforcement of this safety zone before 5 p.m. on July 15, 2011 if river conditions change such that enforcement of the safety zone is no longer necessary for the public's safety. The Captain of the Port Duluth will notify the public via a Broadcast Notice to Mariners.

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

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which may be small entities: the owners or operators of vessels intending to transit or anchor in the portions of the Red River affected by this safety zone. This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons because few small business entities operate on the affected portion of the river and because this rule will be in effect only until the Red River is deemed safe to transit.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk tohealth or risk to safety that may disproportionately affect children.

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.

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

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction. This rule involves the establishment of a safety zone. An environmental analysis checklist and a categorical exclusion determination are available in the docket where indicated underADDRESSES.

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

The Coast Guard will enforce the Safety Zone; Chicago Harbor, Navy Pier Southeast, Chicago, IL listed in 33 CFR 165.931 for the following events:

All vessels must obtain permission from the Captain of the Port, Sector Lake Michigan, or his or her on-scene representative to enter, move within or exit the safety zone. Vessels and persons granted permission to enter the safety zone shall obey all lawful orders or directions of the Captain of the Port, Sector Lake Michigan, or his or her on-scene representative. While within a safety zone, all vessels shall operate at the minimum speed necessary to maintain a safe course.

This notice is issued under authority of 33 CFR 165.931 and 5 U.S.C. 552(a). In addition to this notice in theFederal Register, the Coast Guard will provide the maritime community with advance notification of these enforcement periods via broadcast Notice to Mariners or Local Notice to Mariners. The Captain of the Port, Sector Lake Michigan, will issue a Broadcast Notice to Mariners notifying the public when enforcement of the safety zone established by this section is suspended. If the Captain of the Port, Sector Lake Michigan, determines that the safety zone need not be enforced for the full duration stated in this notice, he or she may use a Broadcast Notice to Mariners to grant general permission to enter the safety zone. The Captain of the Port, Sector Lake Michigan, or his or her on-scene representative may be contacted via VHF Channel 16.

For the purpose of this document, we are giving meaning to certain words or initials as follows:

(i) The words or initialsActorCAAmean or refer to the Clean Air Act, unless the context indicates otherwise.

(ii) The wordsEPA, we, usorourmean or refer to the United States Environmental Protection Agency.

(iii) The initialsSIPmean or refer to State Implementation Plan.

(iv) The wordsColoradoandStatemean the State of Colorado.

On July 18, 1997, EPA promulgated new NAAQS for 8-hour ozone and for fine particulate matter (PM2.5). This action is being taken in response to the promulgation of the 1997 8-hour ozone and PM2.5NAAQS. Section 110(a)(1) of the CAA requires states to submit SIPs to address a new or revised NAAQS within 3 years after promulgation of such standards, or within such shorter period as EPA may prescribe. Section 110(a)(2) lists the elements that such new SIPs must address, as applicable, including section 110(a)(2)(D)(i), which pertains to interstate transport of certain emissions.

Section 110(a)(2)(D)(i) of the CAA requires that a SIP must contain adequate provisions prohibiting any source or other type of emissions activity within the state from emitting any air pollutant in amounts which will: (1) Contribute significantly to nonattainment of the NAAQS in any other state; (2) interfere with maintenance of the NAAQS by any other state; (3) interfere with any other state's required measures to prevent significant deterioration of air quality; or (4) interfere with any other state's required measures to protect visibility.

On June 11, 2008, the State of Colorado submitted to EPA an Interstate Transport SIP addressing all four elements of the interstate transport requirements of CAA section 110(a)(2)(D)(i) for the 1997 ozone andPM2.5NAAQS. In response to EPA's concerns regarding the June 11, 2008 submission, the State later submitted two superceding interstate transport SIP revisions: (a) A June 18, 2009 submission addressing the requirements of elements (1) and (2) of section 110(a)(2)(D)(i) for the 1997 ozone NAAQS; and (b) a March 31, 2010 submission addressing the requirements of elements (3) and (4) for the 1997 8-hour ozone NAAQS and of elements (1) through (4) for the 1997 PM2.5NAAQS.

On February 14, 2011, EPA published a notice of proposed rulemaking (NPR) for the State of Colorado. The NPR proposed approval of the sections of the Colorado Interstate Transport SIP submitted March 31, 2010 that address the section 110(a)(2)(D)(i)(II) “interference with visibility protection” requirement for the 1997 ozone and PM2.5NAAQS.

EPA is partially approving the sections of the Colorado Interstate Transport SIP submitted March 31, 2010 that address the section 110(a)(2)(D)(i)(II) “interference with visibility protection” requirement for the 1997 ozone and PM2.5NAAQS. On January 13, 2010, the Colorado Air Quality Control Commission (AQCC) adopted interstate transport SIP revisions addressing the requirements of CAA section 110(a)(2)(D)(i)(II) for the 1997 ozone NAAQS, and the requirements of CAA section 110(a)(2)(D)(i)(I) and (II) for the 1997 PM2.5NAAQS. Colorado submitted these revisions to EPA on March 31, 2010. In thisFederal Registeraction EPA is proposing to approve the sections of the March 31, 2010 submissions that address element (4), “interference with visibility protection,” of section 110(a)(2)(D)(i).

As noted earlier, in this rulemaking EPA is evaluating only the Colorado SIP revisions of the March 31, 2010 submission that address the requirements of element (4), prohibiting sources in Colorado from emitting pollutants from interfering with any other state's measures to protect visibility, for the 1997 ozone and PM2.5NAAQS. EPA has already taken final action on elements (1) and (2) for ozone (see 75 FR 31306 and 75 FR 71029, respectively). EPA will be taking action on elements (1)-(3) for PM2.5and element (3) for ozone in a separate action.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601et seq.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it 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).

This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does 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, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it approves a state rule implementing a Federal standard.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501et seq.).

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 rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in theFederal Register. A major rule cannot take effect until 60 days after it is published in theFederal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by June 20, 2011. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule 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).)

40 CFR part 52 is amended to read as follows:

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

The proposed Sentinel Energy Project is designed to be a nominally rated 850 megawatt electrical generating facility covering approximately 37 acres within Riverside County, adjacent to Palm Springs, California. EPA's proposal for this action contained a detailed description of the project and the Clean Air Act's (CAA) requirements for offsets during New Source Review permitting. 76 FR 2294 (January 13, 2011) With our proposal to approve this SIP revision, EPA attached the complete list of PM10and SOXoffsetting emission reductions that are being transferred in the AB 1318 Tracking System to our Technical Support Document (TSD). Documentation for each of the offsetting emission reductions listed in the attachment to the TSD was included in the docket for the proposal in hard copy at EPA's offices as well as other locations. For additional background information please see the January 13, 2011 proposed notice for this action. (76 FR 2294)

EPA is finalizing a SIP revision for the South Coast portion of the California SIP. The SIP revision will be codified in 40 CFR 52.220 by incorporating by reference the Offset Requirements for the Proposed CPV Sentinel Power Plant, including the CPV Sentinel Energy Project AB 1318 Tracking System, as adopted by the District.

The SIP revision provides a federally approved and enforceable mechanism for the District to transfer PM10and SOXoffsetting emissions reductions from the District's internal bank to the Sentinel Energy Project and to track those emissions credits through the AB 1318 Tracking System.

In response to our January 13, 2011 proposed rule, we received four comments, one each from the South Coast Air Quality Management District (District), Michael Carroll of Latham & Watkins LLP, the Natural Resources Defense Council (NRDC), and the Law Offices of Angela Johnson-Mezaros on behalf of California Communities Against Toxics and Communities for a Better Environment (jointly referred to herein as “CCAT”). Copies of each comment letter have been added to the docket and are accessible atregulations.gov.The comment from the District supported EPA's analysis and proposed source-specific SIP revision and provided an errata sheet correcting minor typos and the amount of SOXoffsets available in the AB1318 Tracking System (reduced the quantity by 92 lbs). The comment from Latham & Watkins was also supportive of our proposed action. The comment from NRDC generally opposed the SIP revision but did not provide any specific grounds for its opposition or raise any specific issues. To the extent that NRDC generally opposes the SIP revision, our response to its general opposition is included below with our response to CCAT's more specific comments. We have summarized CCAT's comments (based on the structure of their comment letter) and provide our response to each comment below.

Comment I:CCAT comments that EPA did not allow meaningful public participation on the SIP revision for several reasons and that approval of the SIP revision based on the available information would be arbitrary and capricious.

Comment I.A:CCAT contends the regulatory text of the SIP revision is toovague and incomplete to be federally enforceable. CCAT contends that the SIP revision consists of preambular or background language and that the list of emissions credits being transferred is not included in the SIP revision.

Response I.A:CCAT is incorrect on both points. EPA's proposed approval quoted the text of the proposed source-specific revision in the section of the proposal entitled “What is in the SIP Revision?” (76 FR at 2295) and also posted the text in the docket at Index No. I-B. Upon finalizing the approval, EPA will codify this revision at 40 CFR 52.220. The SIP revision, therefore, consists of the regulatory text that was quoted in EPA's proposed rule. Before quoting the language in the proposed approval, we identified the language stating: “The text of the proposed source-specific SIP revision is * * *” 76 FR at 2295. This is the language that will be incorporated by reference in 40 CFR 52.220. Therefore it is not preambular or background language as stated by CCAT. The SIP revision language was available to the public. This comment contains other conclusory statements such as characterizing the SIP revision as being too vague to be enforceable because it does not provide an enforceable mechanism for generating emissions credits. These additional statements are generally repeated elsewhere in the comment letter with more specificity. We have responded to the more detailed comments rather than the very general and conclusory statements in this section of the comment letter.

The full list of the credits that will be transferred is incorporated by reference into the SIP revision. Incorporation by reference of materials such as the list of the emissions credits being transferred is permissible and there is no requirement for EPA to include the list of credits in the regulatory text that will be published in the Code of Federal Regulations. See Use of Incorporation by Reference as a Mechanism for Shortening Federal Register Notices, from Gerald H. Yamada, Principal Deputy General Counsel to Regulatory Policy Group, dated Jan. 12, 1995. See also 1 CFR part 51.

The comment also contends that the SIP revision is insufficient because it does not contain a “mechanism for generating and validating the credits”. The SIP revision does not purport to provide a mechanism for generating credits. This SIP revision provides an enforceable mechanism for the District to transfer previously generated emissions credits and incorporates the list of those emissions credits. The Sentinel Energy Project is a source that is not authorized to receive emissions credits from the District's internal accounts in the absence of this SIP revision because it is not a source category or type of project listed in Rule 1304 as exempt or in Rule 1309.1 as a priority reserve source. Thus, the general assertions submitted by CCAT that the public did not have adequate notice for a variety of reasons does not provide any basis for EPA to alter its proposed approval of this SIP revision.

Comment I.B:CCAT contends theFederal RegisterNotice and TSD are unclear and provide an inconsistent description of the proposed SIP revision.

Response I.B:EPA disagrees with the comment and notes that CCAT has not provided any specific examples in which the proposal and TSD are vague or inconsistent. CCAT also contends that AB 1318 is of minor relevance to this action. EPA agrees with this comment. EPA did not propose approval of this action based on the State legislation and has discussed that action only as background. EPA proposed to approve this SIP revision because it complies with the requirements of the CAA.

Within this comment, CCAT also asserts that EPA's record for proposing approval of the District's SIP revision provides an inadequate justification. CCAT contends that EPA's record is deficient because it does not acknowledge or explain that the proposed SIP revision purportedly does three separate things: first, codify in Federal law an entirely new method for the SCAQMD to generate emission credits; second, apply that generation method to specific reductions dating back to 1999; and third, transfer the credits out of the SCAMQD's internal bank. See CCAT Letter at 3.

CCAT's first contention is that EPA does not explain or acknowledge that it is codifying into Federal law a new method for the District to generate emissions credits. The problem with CCAT's comment is that EPA is not codifying a new method for the District to generate emissions credits.1 The emissions credits the District is transferring pursuant to its AB 1318 Tracking System are emission credits that existed in the District's internal accounts. The AB 1318 Tracking System contains the District's accounting of these specific credits and a mechanism for transferring these emissions credits from the District's internal account to Sentinel. The SIP revision does not establish a new method for the District to generate emission credits. EPA reviewed the submitted documentation demonstrating that a sufficient number of these specific emissions credits being transferred meet the Federal integrity criteria required by section 173 of the CAA.

CCAT's second contention is that the District is now generating credits from emissions reductions that occurred up to two decades ago and also that the District's internal bank accounts have negative balances. While some of the emissions credits that the District is transferring arose from events in 1999, most occurred after 2003, therefore characterizing 1999 as being two decades ago may be technically correct but somewhat misleading. CCAT also states that no evidence of the actual dates of when the reductions occurred is contained in the public record. This is incorrect. The support documentation, which is voluminous and was available for review in hard copy, explicitly contains this information. In any event, we have reviewed the documentation for the emissions reductions, including those associated with events that occurred in 1999 and consider those 1999 emissions credits to meet the requirements of section 173 of the CAA.

CCAT also contends the District has “negative balances” in its internal accounts. For the purposes of this SIP revision, the balance of the District's internal accounts is not relevant, since EPA examined each of the specific emission reduction actions that are the basis for the credits being transferred pursuant to this SIP revision and found a sufficient quantity—compared to the amount needed for the CPV Sentinel Energy Project, to meet the CAA offset requirements.

CCAT, NRDC and associated groups raised the same issue in a Petition to the Administrator in December 2010. In responding to the Petition, the Administrator examined the emission credits in the District's internal accounts following passage of SB 827. SB 827 was a companion bill to AB 1318 which directed the District to transfer emissions credits from their internal accounts to exempt sources covered by Rule 1304 and priority reserve sources covered by Rule 1309.1 beginning in January 2011. A copy of the Administrator's petition response letteris attached to and incorporated into this Response to Comments because the same general issues arise with respect to AB 1318 and SB 827. The Administrator's letter details the Agency's determination that the District may use emissions reductions from previously shutdown sources, including minor source orphan shutdowns, to fund its internal accounts. The Administrator's letter also disagrees with assertions that the District's internal accounts have negative balances. Thus, for all of the reasons set forth in the Administrator's letter, EPA disagrees with CCAT that this SIP revision constitutes codifying a new system of generating emissions credits, that the District's internal accounts have negative balances or that the emission credits are invalid because they were created more than two decades ago.

CCAT's third contention is that this SIP revision allows the District to transfer ownership of emission credits out of the District's internal bank. EPA agrees with this contention but CCAT has not raised any specific reason that such a transfer is contrary to the requirements of the CAA and this comment does not provide any basis for EPA to alter its proposal to approve the SIP revision providing a Federal mechanism to enforce the transfer of ownership of these emission credits. The District's decision to transfer valid emission credits is a policy decision.

CCAT states that the project description of the SIP revision is confusing because it does not “admit” that EPA is approving a revision to SIP-approved Rules 1303 and 1309.1. CCAT's assertion that this action constitutes a revision of either Rule 1303 or 1309.1 is incorrect. Instead, as stated in the actual SIP revision, the action is providing an additional federally enforceable mechanism for the District to transfer emission credits from its internal bank to the Sentinel project. But the District has not revised and EPA is not approving a revision to Rules 1303 and 1309.1.

Comment I.C:CCAT asserts that EPA did not include critical documents in the docket for this proposed rulemaking.

Response I.C:CCAT appears to be criticizing the fact that scanned copies of voluminous records documenting the validity of each pound of emissions credits being transferred from the District bank to Sentinel were not provided in electronic form on the regulations.gov Web site. These documents consist of the “Offset Source Calculation/Verification Form” and supporting documentation for each form. The District's submittal consisted of a CD, with 62 separate documents, comprising more than 1,000 pages. The forms show a facility's name, the type of equipment that had been operated, the emission inventory data for the two years prior to shut down, the date when the facility's permit was inactivated, verification of the shutdown and various emissions calculations using this data. EPA's proposed approval of the SIP revision relied on these documents to demonstrate that a sufficient number of the emissions credits the District transferred met the integrity criteria in Section 173 of the CAA.

Our proposed approval of this SIP revision stated that we had attached a “complete list of PM10and SOxoffsetting emissions reductions” to our Technical Support Document and that “[d]ocumentation for each of these offsetting emission reductions is included in the docket for this proposal.” EPA's proposed approval also stated: “While all documents in the docket are listed in the index, some information may be publicly available only at the hard copy location (e.g.,copyrighted material), and some may not be available in either location (e.g.,CBI). To inspect the hard copy materials, please schedule an appointment during normal business hours with the contact listed in theFOR FURTHER INFORMATION CONTACTsection.” (76 FR 2294) Therefore, the proposed approval provided notice to the public to contact EPA to inspect the documentation for each offsetting emission reduction listed in the attachment to our Technical Support Document.

EPA is not required to post all of the documents in its docket for a proposed rulemaking to the regulations.gov Web site, otherwise known as the “EDOCKET”. The hard copy documents in the Region's office are the official docket for the rulemaking. We post many documents from the official docket to the EDOCKET for the convenience of the public but there is no requirement to post all of the documents. EPA did not post the voluminous Offset Source Calculation/Verification Forms on the EDOCKET although a hard copy was readily available in our offices. A copy of the documents was also available at the District and CARB offices.

CCAT also contends that EPA was required to specifically list the Offset Source Calculation/Verification Forms in the index to the docket. There is no legal requirement for EPA to provide an index to the docket. We frequently provide an index as a courtesy to the public. If we provide an index, we are not required to identify every background or supporting document provided in a submitted SIP revision.

Because EPA cannot anticipate every question the public may have on our proposed rulemakings, EPA'sFederal Registernotice proposing to approve this SIP revision contained contact information for EPA staff who would be knowledgeable about the proposal and could provide copies of the specific documents in our docket. CCAT did not try to contact any EPA staff to obtain a copy of the Offset Source Calculation/Verification Forms or request EPA to provide further specificity in the docket index. Finally, the same records were provided to CCAT by the District long before our proposed approval was published. (South Coast Public Records Response #61991 and #61991B)

In summary, CCAT has not provided any authority indicating that the Offset Source Calculation/Verification Forms were required to be identified in the index we posted on the EDOCKET or posted electronically in the EDOCKET. These documents were available in hard copy at the District's office, at the offices of the California Air Resources Board as part of the SIP submission and EPA's office in San Francisco.

CCAT suggests that EPA may be treating some of the information in the records as confidential. The suggestion is incorrect. None of the information in the record for this SIP revision approval is confidential and all of the information on which EPA based its proposed approval has been available to the public. EPA does acknowledge that some information, such as the individual evaluation record for each emission reduction, was only available in hard copy. However, if CCAT had requested copies of these records, EPA would have made them available in our office for review, as theFederal Registerstated, or we could have mailed a CD with the documents, since they were too large to send by e-mail.

Comment II:CCAT asserts that EPA's approval of the SIP revision would be arbitrary and capricious because EPA fails to explain the basis for its decision.

Response II:CCAT in this comment points to a background paragraph in EPA's TSD and argues that EPA's proposal to approve this SIP revision constitutes approving a “new but equivalent” process for generating offsets. EPA disagrees. The “new but equivalent” method referred to in theFederal Registernotice was not a new process for generating credits, but instead an additional way for a source to comply with the Rule 1303 requirements that offsets be provided pursuant to Rule 1309 or by allocations from the Priority Reserve in accordancewith the provisions of Rule 1309.1. That is the intent of a source-specific SIP revision: to revise the existing SIP to account for an action that only applies to a single source. See,e.g.76 FR 2263 (January 8, 2011) CCAT also cites aNRDCv.EPA,571 F.3d 1245 (D.C. Cir. 2009). However, nothing in the decision or in this SIP revision can provide a basis for CCAT to challenge EPA's action in 1996 on Regulation XIII. The time for challenging EPA's action in 1996 has past and our action in this SIP revision does not change or revise Regulation XIII.

Comment III:CCAT asserts that the SIP revision is a violation of CAA section 173(c) and 40 CFR 51.165(a)(3)(ii)(C)(1)(i)-(ii).

Comment III (1):CCAT contends the District's emission credits are not real because the District's internal accounts are “balanced in the aggregate” and there is a “negative balance”.

Response III (1):EPA disagrees that the District's internal accounts are balanced in the aggregate. Instead, a more accurate description is that the District demonstrates that their local NSR program provides at least as many offsets “in the aggregate” as would otherwise be required under a strictly Federal NSR program, on a project by project basis. The emissions credits that are the subject of this action represent “real” emissions reductions that occurred from sources in the District. The District provided comprehensive documentation for each emission credit, including documentation of when the source was shutdown, verification that it was actually shutdown, actual emission inventory data for each source for the two years prior to shutdown, and other supporting information. The emission credits transferred to the AB 1318 Tracking System were individually subtracted from the District's internal accounts and are not included in the District's annual “in the aggregate” equivalency demonstration. CCAT also alleges that the District's accounts have a negative balance. This allegation has been thoroughly addressed in EPA Administrator Jackson's letter dated September 23, 2010, which we are incorporating by reference into this response. Administrator Jackson's letter sets forth the background during which EPA requested the District to remove pre-1990 emission credits for which the District did not have adequate documentation from its internal accounts. However, the District could replace those subtractions with previously uncounted emissions reductions from minor source orphan shutdowns. See p. 7-8. Therefore, the District's internal bank is adequately funded and does not have “negative balances.” The support cited by CCAT for the proposition that the District's balances are insufficient is an opinion in CCAT's State court litigation pertaining to the California Environmental Quality Act (CEQA), which is not relevant to EPA's evaluation of this SIP revision. Finally, CCAT contends that there is insufficient documentation to demonstrate the emission reductions occurred. EPA disagrees. The District's documentation provides the name and location of the source that made the reduction, when the source was shutdown, verification that it was actually shutdown, the amount of the reduction, including documentation of actual emission inventory data for each source for the two years prior to shutdown, and other supporting information.

Comment III (2):CCAT contends that the emission reductions are not quantifiable.

Response III (2):EPA disagrees. The District provided documents with the SIP revision showing precisely how many pounds of pollutant had been reduced or eliminated to support each emission credit. These amounts were based on actual emission inventory data or production records for each source. This issue was also raised in conjunction with SB 827 and the Administrator's letter dated September 23, 2011 contains our further response.

Comment III (3):CCAT alleges that the emissions reductions are not surplus.

Response III (3):EPA disagrees. Emission credits would need to be adjusted to ensure they are surplus to any new or modified standards for PM10and/or SOxemissions from power plants, aggregate operations, spray booths, etc. The District has not promulgated new rules or standards that would apply to these types of sources, and thus no adjustments to the credits were required.

Comment III (4):CCAT contends that the emission reductions are not enforceable, citing the Ninth Circuit's decision inEl Comite para el Bienestar de Earlimartv.Warmerdam,539 F.3d 1062 (9th Cir. 2008).

Response III (4):EPA disagrees. In this action the emission reductions will be enforceable because EPA's SIP revision has incorporated by reference the transfer of a specific amount of emission credits. In Warmerdam, EPA had not incorporated by reference certain letters between CARB and EPA into the SIP. Here, the language that EPA is placing into the SIP clearly incorporates by reference all the individual emission reductions being transferred to the Sentinel Energy Project. While ultimately the Director of the Federal Register Office must determine that incorporation by reference complies with the requirements of 1 CFR 51.7, this type of material is generally within the type accepted for such treatment. See Use of Incorporation by Reference as a Mechanism for Shortening Federal Register Notices, from Gerald H. Yamada, Principal Deputy General Counsel to Regulatory Policy Group, dated Jan. 12, 1995. CCAT can enforce the District's transfer of the emission credits and can also confirm that the permit from which the emission credit was created has been inactivated or review the conditions of a permit revised to create the emission reductions.

Comment III (5):CCAT asserts that some of the emissions reductions are not creditable.

Response III (5):EPA disagrees. Emission reductions are considered creditable if they have not been relied upon to demonstrate attainment, RFP or any other permit action. The District accounts for the use credits from their internal accounts by adding the average annual quantity of ERCs used over the last eight years to the projected inventory for years 2014 and 2020,i.e.,the AQMP assumes that these emissions are in the air. By including such emissions in the inventory, the attainment plan has not relied on these emission reductions, thus they remain creditable for other purposes, such as NSR offsets. In addition, these emission reductions are being transferred from the Districts internal offset account and are therefore not available for any other permit action.

Comment IV:CCAT contends that EPA cannot approve the District's transfer of the emission credits to the Sentinel Energy Project because the emission reductions have been relied upon in other permitting actions and for demonstrating attainment.

Comment IV.A.1:CCAT asserts that the offsets being transferred do not meet the requirements of Federal law because the District's internal accounts have negative balances.

Response IV.A.1:This portion of CCAT's comment letter is a repetition of prior comments. With respect to the purported negative balance, EPA has responded previously. We repeat that the District does not have a negative balance. As fully set forth in the Administrator's petition response letter dated September 23, 2010, EPA requested the District to remove any pre-1990 emission credits for which the District did not have adequate documentation. The District did so andthen added in credits from minor source orphan shutdowns that it had not previously counted. EPA has determined that funding the District's bank with minor source orphan shutdowns complies with the CAA. The District's balance of credits for each pollutant is positive when credits from minor orphan shutdowns are included.

Comment IV.A.2:CCAT also contends that the emissions credits being transferred that were based on shut-down equipment may not be used if they were shut down before the base year for the SIP planning process.

Response IV.A.2:CCAT contends that the District has relied on the emission reduction credits generated from shutdown sources which occurred before the 2002 baseline in the 2007 AQMP. EPA disagrees. As explained in Response III (5), the District adds in a portion of the pre-baseline banked emission credits into the inventory for each future year. The amount added for each pollutant is determined based on historical usage of offsets in the basin. Since the baseline inventory is adjusted to account for an adequate number of pre-baseline emission reductions due to shutdowns, the District is complying with the requirements of 40 CFR 51.165(a)(3)(ii)(C)(1)(ii) and may use such reductions as current offsets.

Comment IV.A.3:CCAT contends that “crediting these purported emission reductions to the SCAQMD's Offset Accounts Violates CCA [sic] section 110(l)”.

Response IV.A.3:Under section 110(l) of the CAA, EPA may not approve any SIP revision that would interfere with attainment, reasonable further progress (RFP) or any other CAA requirement.

In our proposed approval, EPA stated that this revision will not interfere with attainment or RFP because the emission credits in the AB 1318 Tracking System are not relied on for attainment or RFP in the District's most recent attainment demonstrations. We also indicated that this revision did not interfere with any other CAA requirement. In addition, we stated that the District supplied a copy of its air quality analysis for the CPV Sentinel Energy Project which shows that operation of the facility will not interfere with the ability of the District to reach attainment.2 CCAT has provided no specific information to refute this discussion regarding CAA 110(l) from our proposal.

Comment IV.A.3.i:CCAT again contends that the emission reductions have been relied upon by the District in past permitting actions and in its 2007 AQMP, therefore not making them available for the Sentinel Energy Project.

Response IV.A.3.i:Please see earlier responses on these same points in responses III(5) and IV.A.2.

Comment IV.A.3.ii:CCAT contends that it is inadequate for EPA to meet its burden for rational decision-making regarding compliance with section 110(l) by not being aware of interference the proposed action would have with other CAA requirements.

Response IV.A.3.ii:EPA disagrees. The TSD (pages 5-6) discusses how the project complies with the CAA requirements that this SIP action is subject to, and this statement is simply affirming that there are no other CAA requirements for which the action is subject.

Comment IV.A.3.iii:CCAT contends that EPA fails to describe the “new but equivalent mechanism * * * for satisfying the offset requirements of CAA § 173”, and that the record does not provide any proof, facts or analysis that EPA engaged in a rational consideration of all facts for its decision.

Response IV.A.3.iii:EPA disagrees. The TSD (pages 5-6) provides a discussion of all five of the CAA § 173 offset integrity criteria, and explains the rationale for EPA's conclusion that the proposed offsets meet these criteria. The “new but equivalent mechanism” EPA was referring to in the FR notice was not for generating credits, but instead refers to the ability of the source to provide emission reduction credits for their project which were not provided pursuant to Rule 1309 or allocations from Rule 1309.1.

Comment IV.A.3.iii:CCAT contends that in an analysis undertaken by the California Energy Commission, staff concluded that the Sentinel facility would contribute to existing exceedences in the area, and supplied the text from the CEC analysis.

Response IV.A.3.iii:The submitted CEC modeling does not evaluate the impacts of the project on the District's ability to attain the PM10standard, which is the required evaluation criteria, but instead models a worst case scenario assuming the highest background concentrations, the highest PM10emission rate from the plant and the worst meteorological conditions would all occur at the same time and at the same location. CEC staff acknowledges that all of these worst case conditions are “not likely to occur.” In addition, the modeling did not take into account the reductions expected from other District control measures or the offsets provided for this project. The air quality analysis prepared by the District is consistent with EPA guidance for determining the impacts of projects on an area's ability to attain a NAAQS.

Comment IV.A.3.iv:CCAT contends that EPA must analyze this submission together with the District's recently approved Rule 1315.

Response IV.A.3.iv:EPA disagrees. We note that the District has submitted and EPA will be taking action in the future on District Rule 1315. Rule 1315 provides in regulatory language the District methodology for debiting and crediting offsets for sources that qualify under Rules 1304 and 1309.1. Rule 1315 is not the subject of, nor is it related to this rulemaking in anyway. The merits of Rule 1315 will be considered in a separate action which will be subject to public notice and comment.

CCAT has not provided any specific comments showing that the factual statements in our proposed approval were incorrect or insufficient. CCAT merely repeats general and conclusory allegations of violations of section 110(l). That provision is not a general bar to revising a SIP. Accordingly, section 110(l) does not prevent us from taking final action to approve this source-specific SIP revision independent of action on Rule 1315.

Comment V.:CCAT contends that through this source-specific SIP revision EPA has re-opened its 1996 approval of the California SIP's creation of a SCAQMD internal bank, and how the credits in the bank are generated, tracked and validated.

Response V:EPA approved Regulation XIII in 1996. Regulation XIII comprised the District's comprehensive new source review program, including two provisions that allowed the District to provide offsets from its internal bank of emission credits to certain exempt and priority reserve sources which would otherwise be required to obtain offsets for meeting Federal CAA requirements. Our approval of Regulation XIII was not challenged following our rulemaking action in 1996.

CCAT's contention that our approval of this source-specific SIP revision re-opens our 1996 approval of Regulation XIII is without merit. This source-specific SIP revision allows the District to transfer certain emissions credits to one stationary source, the Sentinel Energy Project. The action does not modify or revise any provision of Regulation XIII. CCAT notes that it has litigation in the Court of Appeals regarding its belief that District Rule 1309 applies to the District's internal bank. This source-specific SIP revision is unrelated. In this action, we have found that the specific amount of emission credits the District istransferring to Sentinel meet the integrity criteria of Federal law in the amounts calculated to offset Sentinel's emissions increases.

CCAT's comment also contends that this action is establishing “an alternate generation system.” We disagree, as noted previously.

Comment V.1.:CCAT lastly alleges that the source-specific SIP revision violates CAA section 172(e).

Response V.1.:CCAT has not explained how this source-specific SIP revision triggers the requirements in section 172(e) that apply to the Administrator following promulgation of a national ambient air quality standard. CCAT states that any emission credits that are not “generated” according to Rule 1309 “must accrue to the benefit of air quality” apparently based on section 172(e). EPA does not agree that section 172(e) establishes such an obligation.

This source-specific SIP revision complies with all relevant CAA requirements and is consistent with EPA's guidance for NSR. Therefore, as authorized in section 110(k)(3) of the Act, EPA is fully approving this source-specific SIP revision into the California SIP.

This action will approve the source-specific SIP revision known as the CPV Sentinel Energy Project AB 1318 Tracking System into the California SIP. This type of action is exempt from review under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011).

This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501et seq.Burden is defined at 5 CFR 1320.3(b).

The Regulatory Flexibility Act (RFA) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions.

This rule will not have a significant impact on a substantial number of small entities because SIP approvals under section 110 and subchapter I, part D of the CAA do not create any new requirements but simply approve requirements that the State is already imposing. Therefore, because the Federal SIP approval does not create any new requirements, I certify that this action will not have a significant economic impact on a substantial number of small entities.

Moreover, due to the nature of the Federal-State relationship under the CAA, preparation of flexibility analysis would constitute Federal inquiry into the economic reasonableness of State action. The CAA forbids EPA to base its actions concerning SIPs on such grounds.Union Electric Co.,v.U.S. EPA,427 U.S. 246, 255-66 (1976); 42 U.S.C.7410(a)(2).

Under sections 202 of the Unfunded Mandates Reform Act of 1995 (“Unfunded Mandates Act”), signed into law on March 22, 1995, EPA must prepare a budgetary impact statement to accompany any proposed or final rule that includes a Federal mandate that may result in estimated costs to State, local, or tribal governments in the aggregate; or to the private sector, of $100 million or more. Under section 205, EPA must select the most cost-effective and least burdensome alternative that achieves the objectives of the rule and is consistent with statutory requirements. Section 203 requires EPA to establish a plan for informing and advising any small governments that may be significantly or uniquely impacted by the rule.

EPA has determined that the approval action proposed does not include a Federal mandate that may result in estimated costs of $100 million or more to either State, local, or tribal governments in the aggregate, or to the private sector. This Federal action proposes to approve pre-existing requirements under State or local law, and imposes no new requirements. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, result from this action.

Federalism(64 FR 43255, August 10, 1999) revokes and replaces Executive Orders 12612 (Federalism) and 12875 (Enhancing the Intergovernmental Partnership). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that has federalism implications and that preempts State law unless the Agency consults with State and local officials early in the process of developing the proposed regulation.

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, as specified in Executive Order 13132, because it merely approves a State rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” This proposed rule does not have tribal implications, as specified in Executive Order 13175. It will not have substantial direct effects on tribal governments, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes. Thus, Executive Order 13175 does not apply to this rule.

EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the Executive Order has the potential to influence the regulation. This rule is not subject to Executive Order 13045, because it approves a State rule implementing a Federal standard.

This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866.

Section 12 of the National Technology Transfer and Advancement Act (NTTAA) of 1995 requires Federal agencies to evaluate existing technical standards when developing a new regulation. To comply with NTTAA, EPA must consider and use “voluntary consensus standards” (VCS) if available and applicable when developing programs and policies unless doing so would be inconsistent with applicable law or otherwise impractical.

The EPA believes that VCS are inapplicable to this action. Today's action does not require the public to perform activities conducive to the use of VCS.

Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes Federal executive policy on environmental justice. Its main provision directs Federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States.

EPA lacks the discretionary authority to address environmental justice in this rulemaking.

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

This action is directed to the public in general. It simply announces the submission of a draft final rule to the U.S. Department of Agriculture (USDA) and the Department of Health and Human Services (HHS) and does not otherwise affect any specific entities. This action may, however, be of particular interest if you are a producer of pesticide products (NAICS 32532), antifoulants (NAICS 32551), antimicrobial pesticides (NAICS 32561), wood preservatives (NAICS 32519), importers of such products, or any person or company who seeks to register an antimicrobial, antifoulant coating, ballast water treatment, wood preservative pesticide, or to obtain a tolerance for such a pesticide. Since other entities may also be interested, the Agency has not attempted to describe all the specific entities that may be interested in this action. If you have any questions regarding this action, consult one of the persons listed underFOR FURTHER INFORMATION CONTACT.

Section 25(a)(2) of FIFRA requires the Administrator to provide the Secretary of Agriculture with a copy of any final regulation at least 30 days before signing it for publication in theFederal Register. Similarly, section 21(b) of FIFRA provides that the Administrator must provide the Secretary of Health and Human Services with a copy of any draft final rule pertaining to a public health pesticide at least 30 days before signing it for publication in theFederal Register. The draft final rule is not available to the public until after it has been signed by EPA. If either Secretary comments in writing regarding the draft final rule within 15 days after receiving it, the Administrator shall include the comments of the Secretary, if requested by the Secretary, and the Administrator's response to those comments in the final rule when published in theFederal Register. If the Secretary does not comment in writing within 15 days after receiving the draft final rule, the Administrator may sign the final rule for publication in theFederal Registeranytime after the 15-day period.

No. This document is not a rule; it is merely a notification of submission to the Secretaries of Agriculture and Health and Human Services. As such, none of the regulatory assessment requirements apply to this document.

No. This action is not a rule for purposes of the Congressional Review Act (CRA), 5 U.S.C. 804(3), and will not be submitted to Congress and the Comptroller General. EPA will submit the final rule to Congress and the Comptroller General as required by the CRA.

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

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

You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Printing Office's e-CFR site athttp://www.gpoaccess.gov/ecfr. To access the harmonized test guidelines referenced in this document electronically, please gohttp://www.epa.gov/ocsppand select “Test Methods and Guidelines.”

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2006-0481 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before June 20, 2011. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit a copy of your non-CBI objection or hearing request, identified by docket ID number EPA-HQ-OPP-2006-0481, by one of the following methods:

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

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

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

In theFederal Registerof February 4, 2010 (75 FR 5790) (FRL-8807-5), EPA issued a notice pursuant to section 408(d)(3) of FFDCA, 21 U.S.C. 346a(d)(3), announcing the filing of pesticide petitions (PP 9F7617 and 9F7568 by Valent U.S.A, 1600 Riviera Ave., Walnut Creek, CA 94596-8025). The petitions requested that 40 CFR 180.627 be amended by establishing tolerances for residues of the fungicide, fluopicolide, and its metabolites, in or onBrassica,leafy greens, subgroup 5B at 20 parts per million (ppm) (9F7617). Additionally, Valent U.S.A. has proposed establishing tolerances for residues of the fluopicolide metabolite, BAM on cattle, goat, horse and sheep meat at 0.02 ppm; cattle, goat, horse and sheep fat at 0.05 ppm; cattle, goat, horse and sheep meat byproducts at 0.05 ppm; and milk at 0.01 ppm (9F7568). These notices referenced a summary of the petitions prepared by Valent U.S.A., the registrant, which is available in the docket,http://www.regulations.gov.

Valent U.S.A. previously submitted petition 5F7016 to the Agency for consideration of uses on tuberous and corm vegetables and tolerance for indirect or inadvertent tolerances resulting from rotation to wheat. The Interregional Research Project No 4 (IR-4) submitted petition 7E7172 which included uses on root and tuber vegetables. In theFederal Registerof May 28, 2008 (73 FR 30492) (FRL-8363-7), and theFederal Registerof June 27, 2007 (72 FR 35237) (FRL-8133-4), EPA issued notices pursuant to section 408(d)(3) of FFDCA, 21 U.S.C. 346a(d)(3), announcing the filing of these petitions. The Agency reviewed the submitted petitions and concluded that due to data deficiencies, commodities that had associated animal feed items were not, at that time, supported by adequate data. Therefore, while the Agency approved the majority of new uses requested in the petition 5F7016, the Agency did act on the request for uses on potato, sugar beets and carrots, and on the request to allow rotation to wheat.

Valent U.S.A. subsequently submitted additional data to address deficiencies cited in the Agency reviews for the petition 5F7016, including supporting data for the animal metabolism study, a BAM feeding study, confirmatory analytical method and documentation that a BAM reference standard is available; and requests that 40 CFR 180.627 be amended by establishing tolerances for residues of the fungicide fluopicolide in or on vegetable, tuberous and corm subgroup 1C at 0.02 ppm; potato, processed potato waste at 0.05 ppm; vegetable root, subgroup 1A at 0.15 ppm. The petitioner also requested the establishment of tolerances for indirect or inadvertent residues of fluopicolide in or on wheat, forage at 0.20 ppm; wheat, grain at 0.02 ppm; wheat, hay at 0.50 ppm; wheat, milled byproducts at 0.07 ppm; wheat, straw at 0.50 ppm; wheat, aspirated grain fractions at 0.07 ppm. Concurrently with establishing the crop subgroup 1A tolerance, the petitioner proposed to delete the current tolerance on the “vegetable root, subgroup 1A, except sugar beet and carrot” since the new 1A unrestricted tolerance will cover the existing commodity tolerances as well as tolerances needed for the new uses on sugar beets and carrots. Additionally, concurrently with establishing the crop supgroup 1C “vegetable, tuberous and corm subgroup,” the petitioner proposed to delete the current tolerance on “vegetable, tuberous and corm (except potato) subgroup 1D tolerance, since the new 1C subgroup tolerance will cover the existing commodity tolerances listed under 1C as well as the tolerance needed for the new use on potatoes.

There were no comments received in response to these notices of filings.

Based upon review of the data supporting the petition, EPA has modified the tolerances proposed for vegetable, brassica (cole) leafy subgroup 5B. The appropriate tolerance for vegetable brassica (cole) leafy subgroup 5B is 18 ppm. The reason for this change is explained in Unit IV.D. EPA has not established the requested BAM tolerances because the relevant data showed that no new tolerances for BAM are required for animal commodities. The reasons for these changes are explained in Unit IV.D.

Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.”Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue.* * *”

Consistent with section 408(b)(2)(D) of FFDCA, and the factors specified in section 408(b)(2)(D) of FFDCA, EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for fluopicolide and separately for the fluopicolide metabolite, BAM, including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with fluopicolide and separately, the fluopicolide metabolite BAM follows.

EPA has evaluated the available toxicity data for fluopicolide and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.

The toxicological database indicates that technical grade fluopicolide has relatively low acute toxicity. Fluopicolide is not a dermal sensitizer, primary eye irritant, or primary skin irritant. The subchronic and chronic toxicity studies showed that the primary effects of fluopicolide are in the liver. Kidney and thyroid toxicity were observed in rats only. Fluopicolide is not neurotoxic, carcinogenic, nor mutagenic. Developmental toxicity in the rabbit occurred only at doses that caused severe maternal toxicity (including death). In the rat, developmental effects were seen only at high dose levels (700 milligrams/kilogram/day (mg/kg/day)) in the presence of maternal toxicity. Similarly, offspring effects (body weight, kidney) occurred only at levels causing toxicity in parents of the multi-generation reproductive toxicity study. There is no evidence of increased quantitative susceptibility of rat or rabbit fetuses toin uteroor postnatal exposure to fluopicolide. No toxic effects were observed in studies in which fluopicolide was administered by the dermal routes of exposure. The toxicological profile for fluopicolide suggests that increased durations of exposure do not significantly increase the severity of observed effects. The rabbit developmental and rat chronic/cancer studies were therefore considered for all exposure scenarios.

Specific information on the studies received and the nature of the adverse effects caused by fluopicolide as well as the no observed adverse effect level (NOAEL) and the lowest observed adverse effect level (LOAEL) from the toxicity studies can be found athttp://www.regulations.govin documentFluopicolide and its Metabolite, 2,6-Dichlorobenzamide (BAM). Human Health Risk Assessment to Support New Section 3 Uses on Brassica Leafy Greens Subgroup 5B, Potatoes, Sugar Beets, Carrots and to Allow Rotation to Wheatin the docket ID number EPA-HQ-OPP-2006-0481.

BAM (AE C653711) is a common metabolite and/or environmental degradate of fluopicolide as well as the herbicide dichlobenil. Because the toxicological endpoints for BAM and fluopicolide are different, a separate human health risk assessment is required which addresses risks from exposure to BAM residues. The BAM risk assessment considers residues resulting from both fluopicolide and dichlobenil uses. However, BAM residues generated from fluopicolide uses are expected to be significantly lower than BAM residues from dichlobenil uses.

EPA has evaluated the available toxicity data for BAM and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.

The BAM toxicity database indicates that BAM has moderate acute toxicity via the oral route of exposure. In subchronic and chronic toxicity studies, the primary oral effects seen in the rat and dog were body weight changes. Adverse liver effects were also observed. There is no evidence that BAM is either mutagenic or clastogenic nor is there evidence of endocrine mediated toxicity. BAM is considered to be neurotoxic. In the absence of carcinogenicity study data for a second species, the Agency has assumed that BAM's carcinogenic potential is similar to that of dichlobenil, the parent compound having the greatest carcinogenicity potential. Dichlobenil is classified as “Group C, possible human carcinogen.” Quantification of cancer risk for BAM is based on the reference dose (RfD) approach which requires comparison of the chronic exposure to the RfD. Using this methodology will adequately account for all chronic toxic effects, including carcinogenicity, likely to result from exposure to BAM. Specific information regarding the metabolite of fluopicolide can be found in the document entitled2,6-Dichlorobenzamide (BAM) as a Metabolite/Degradate of Fluopicolide and Dichlobenil. Human Health Risk Assessment for Proposed Uses of Fluopicolide on Tuberous and Corm Vegetables, Leafy Vegetables (except brassica), Fruiting Vegetables, Cucurbit Vegetables, Grapes, Turf, and Ornamentals, and for Indirect or Inadvertent Residues on the Rotational Crop Wheat (PC Codes: 027402 BAM and 027412 (fluopicolide), Petition No: 5F7016at regulations.gov).Both referenced documents are available in the docket established for this action, which is described underADDRESSES, and is identified as docket ID number EPA-HQ-OPP-2006-0481. A quantitative reassessment of the BAM risk for the new uses associated with the petitions 9F7617 and 9F7568 was not conducted because the new uses do not add significantly to the BAM dietary exposure; therefore, the conclusions from the most recently conducted BAM human health risk assessment remain unchanged.

Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to asa population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, seehttp://www.epa.gov/pesticides/factsheets/riskassess.htm.

The selected toxicological endpoints used for fluopicolide are presented below.

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

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

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

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

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

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

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

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

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

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

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

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

Accordingly, 44 CFR part 65 is amended to read as follows:

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

NMFS closed directed fishing for Pacific cod by catcher vessels using trawl gear in the BSAI under § 679.20(d)(1)(iii) on April 14, 2011 (76 FR 20891).

As of April 13, 2011, NMFS has determined that approximately 2,000 metric tons remain in the directed fishing allowance of Pacific cod allocated to catcher vessels using trawl gear in the BSAI. Therefore, in accordance with §§ 679.25(a)(1)(i), (a)(2)(i)(C), and (a)(2)(iii)(D), and to fully utilize the B season allowance of the 2011 TAC of Pacific cod allocated to catcher vessels using trawl gear in the BSAI, NMFS is terminating the previous closure and is reopening directed fishing Pacific cod by catcher vessels using trawl gear in the BSAI. The Administrator, Alaska Region, NMFS, (Regional Administrator) considered the following factors in reaching this decision: (1) The current catch of Pacific cod by catcher vessels using trawl gear in the BSAI and, (2) the harvest capacity and stated intent on future harvesting patterns of vessels in participating in this fishery.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the opening of directed fishing for Pacific cod by catcher vessels using trawl gear in the BSAI. Immediate notification is necessary to allow for the orderly conduct and efficient operation of this fishery, to allow the industry to plan for the fishing season, and to avoid potential disruption to the fishing fleet and processors. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of April 13, 2011.

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

Without this inseason adjustment, NMFS could not allow the B season allowance of the 2011 TAC of Pacific cod allocated to catcher vessels using trawl gear in the BSAI to be harvested in an expedient manner and in accordance with the regulatory schedule. Under § 679.25(c)(2), interested persons are invited to submit written comments on this action to the above address until May 2, 2011.

This action is required by § 679.25 and is exempt from review under Executive Order 12866.