On November 18, 2010, the U.S. Office of Personnel Management (OPM) issued a proposed rule (75 FR 70616) to redefine Adams and Waushara Counties, WI, from the Southwestern Wisconsin wage area to the Madison, WI, wage area. These changes are based on consensus recommendations of the Federal Prevailing Rate Advisory Committee to best match the above counties to a nearby FWS survey area. The proposed rule had a 30-day comment period during which OPM received no comments.

I certify that these regulations will not have a significant economic impact on a substantial number of small entities because they will affect only Federal agencies and employees.

Accordingly, the U.S. Office of Personnel Management amends 5 CFR part 532 as follows:

The Cumberland, Maine, nonappropriated fund (NAF) Federal Wage System (FWS) wage area is presently composed of one survey county, Cumberland County, ME, and seven area of application counties, Aroostook, Hancock, Kennebec, Knox, Penobscot, Sagadahoc, and Washington Counties, ME. Under section 532.219 of title 5, Code of Federal Regulations, the U.S. Office of Personnel Management (OPM) may establish an NAF wage area when there are a minimum of 26 NAF wage employees in the survey area, the local activity has the capability to host annual local wage surveys, and the survey area has at least 1,800 private enterprise employees in establishments within survey specifications. The Department of Defense (DOD) notified OPM that the imminent closure of the Naval Air Station Brunswick will leave the Cumberland NAF wage area without an activity having the capability to conduct a local wage survey. The NAF FWS employment in Cumberland County is currently 10 employees at the Navy Exchange, 17 employees at Morale, Welfare, and Recreation, and 2 employees at the Coast Guard Exchange System. DOD recommended that OPM abolish the Cumberland NAF FWS wage area and redefine Cumberland, Kennebec, and Penobscot Counties, ME, to the York, ME, NAF wage area.

Since Cumberland, Kennebec, and Penobscot Counties will have continuing NAF employment and do not meet the regulatory criteria under 5 CFR 532.219 to be separate survey areas, they must be areas of application. In defining counties as area of application counties, OPM considers the following criteria:

(i) Proximity of largest facilities activity in each county;

(ii) Transportation facilities and commuting patterns; and

(iii) Similarities of the counties in:

(A) Overall population;

(B) Private employment in major industry categories; and

(C) Kinds and sizes of private industrial establishments.

In selecting a wage area to which Cumberland, Kennebec, and Penobscot Counties should be redefined, all criteria favor the York NAF wage area. Based on the application of the regulatory criteria, OPM is defining Cumberland, Kennebec, and Penobscot Counties as area of application counties to the York NAF wage area.

OPM is removing Aroostook, Hancock, Knox, Sagadahoc, and Washington Counties from the wage area definition. There are no longer NAF FWS employees working in Aroostook, Hancock, Knox, Sagadahoc, and Washington Counties. Under 5 U.S.C. 5343(a)(1)(B)(i), NAF wage areas “shall not extend beyond the immediate locality in which the particular prevailing rate employees are employed.” Therefore, Aroostook, Hancock, Knox, Sagadahoc, and Washington Counties should not be defined as part of an NAF wage area.

The York NAF wage area would consist of one survey county, York County, ME, and five area of application counties: Cumberland, Kennebec, and Penobscot Counties, ME; Rockingham County, NH; and Windsor County, VT. FWS employees remaining in the Cumberland wage area will be transferred to the York wage area schedule on the first day of the first applicable pay period beginning on or after July 25, 2011. The Federal Prevailing Rate Advisory Committee, the national labor-management committee responsible for advising OPM on matters concerning the pay of FWS employees, has reviewed and recommended these changes by consensus.

Pursuant to 5 U.S.C. 553(b)(3)(B) and (d)(3), OPM finds that good cause exists to waive the general notice of proposed rulemaking. Also pursuant to 5 U.S.C. 553(d)(3), OPM finds that good cause exists for making this rule effective in less than 30 days. This notice is being waived and the regulation is being made effective in less than 30 days because the imminent closure of the Naval Air Station Brunswick will leave the Cumberland wage area without an activity having the capability to conduct a local wage survey and the remaining NAF FWS employees in Cumberland, Kennebec, and Penobscot Counties must be transferred to a continuing wage area as soon as possible.

OPM certifies that these regulations will not have a significant economic impact on a substantial number of small entities because they will affect only Federal agencies and employees.

Accordingly, the U.S. Office of Personnel Management is amending 5 CFR part 532 as follows:

Executive Order 12866 and 12988

The Office of Management and Budget has waived the review process required by Executive Order 12866 for this action. This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This action is not intended to have retroactive effect. There are no administrative procedures which must be exhausted prior to any judicial challenge to the provisions of the rule.

Pursuant to the requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612) and in the Paperwork Reduction Act (PRA), AMS has considered the economic impact of the amended actions on small entities. The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Accordingly, AMS has prepared this final regulatory flexibility analysis. Interested parties are invited to submit information on the regulatory and informational impacts of these actions on small businesses.

This rule revises the U.S. Standards for Grades of Potatoes that were issued under the Agricultural Marketing Act of 1946 (7 U.S.C. 1621-1627). Standards issued under the 1946 Act are voluntary.

Small agricultural service firms, which include handlers and importers, have been defined by the Small Business Administration (SBA) (13 CFR 121.201) as those having annual receipts of less than $7,000,000, and small agricultural producers are defined as those having annual receipts of less than $750,000. Using annual data from the National Agricultural Statistics Service (NASS), the average potato crop value for 2006-2008 was $3.482 billion. Dividing that figure by 15,014 farms yields an average potato crop value per farm of just under $232,000. Since this is well under the SBA threshold of annual receipts of $750,000, it can be concluded that the majority of these producers may be classified as small entities. Furthermore, there are approximately 180 handlers of potatoes and approximately 168 importers of potatoes that may be classified as small entities and may be affected by this rule.

Additional evidence comes from closely examining the Agricultural Census acreage breakdown. Out of a total of 15,014 potato farms in 2007, 19 percent were less than 10 acres and 66 percent were less than 100 acres. An estimate of the number of acres that it would take to produce a crop valued at $750,000 can be made by dividing the 2006-08 average crop value of $3.482 billion by the three-year average bearing acres of 1.097 million, yielding an average potato revenue per acre estimate of $3,174. Dividing $750,000 by $3,174 shows that farms with 236 acres received at least the average price in 2006-08 producing crops valued at $750,000 or more, and would therefore be considered large potato farms under the SBA definition. Looking at farm numbers for additional census size categories shows that 11,718 potato farms (78 percent) are under 220 acres and 11,994 (80 percent) are less than 260 acres. Since a farm with 236 acres of potatoes falls within this range, it can be concluded that the proportion of small potato farms under the SBA definition is between 78 and 80 percent of all U.S. potato farms. The effects of this rule are not expected to be disproportionately greater or smaller for small handlers, producers, or importers than for larger entities.

This rule will amend the similar varietal characteristic requirement, add restrictive tolerances for permanent defects in the enroute/at destination tolerances, remove the definition for injury, and clarify the scoring guides for sprouts. Additionally, this rule will add table numbers to the definitions of “Damage,” “Serious Damage,” and “External Defects,” amend table headings, replace omitted language in the definition for bruises, and amend the tolerance section to ensure soft rot tolerances are applied correctly. These actions will make the standard more consistent and uniform with marketing trends and practices. These actions will not impose any additional reporting or recordkeeping requirements on either small or large potato producers, handlers, or importers.

USDA has not identified any Federal rules that duplicate, overlap, or conflict with this rule. However, there are marketing programs which regulate the handling of potatoes under 7 CFR parts 945-948 and 953. Potatoes under a marketing order have to meet certain requirements set forth in the grade standards. In addition, potatoes are subject to section 8e import requirements under the Agricultural Marketing Act of 1937, as amended (7 U.S.C. 601-674) which requires imported potatoes to meet grade, size, and quality under the applicable marketing order (7 CFR part 980).

Alternatives to this rule were considered including the option of not issuing the rule. However, the need for revision has increased as a result of changing market characteristics, and this final rule represents input from the potato industry.

A proposed rule regarding these revisions to the United States Standards for Grades of Potatoes was published in theFederal Registeron April 30, 2010 [75 FR 22707]. A comment period of thirty days was issued which closed June 1, 2010.

In response to the request for comments, AMS received comments from nine respondents. Six comments were from national or state trade associations representing potato growers, shippers, and receivers, of which two supported the proposal and four partially supported the proposal. One supporting comment was from a nationwide produce retail chain. Another supporting comment was from a foreign government agency representing its agricultural inspection service. One comment came from a non-supporting consumer, who opposed the proposal in general without providing any specific information. Additionally, one national trade association proposed an additional revision.

AMS proposed to amend the similar varietal characteristic requirement to allow mixed colors and/or types of potatoes when designated as a mixed or specialty pack. Supporting comments were received from five national or state trade associations representing potato growers, shippers, and receivers, one nationwide produce retail chain, and one foreign government agency. One supportive commenter stated that there should only be a U.S. No. 1 mixed or specialty pack as allowing a U.S. No. 2 mixed or specialty pack downgrades the pack. The same commenter also suggested only allowing mixed colors and not mixed types of potatoes. AMS believes that allowing for both U.S. No. 1 and No. 2 mixed grade potatoes and to be mixed colors and/or types of potatoes allows for the appropriate amount of flexibility within the industry to meet current demand of consumers. Therefore, no changes were made to the standards based on these suggestions.

One objection came from a state trade association that believes consumers will prepare potatoes from the same container using one cooking step. This respondent does not find it acceptable for packers and repackers of Idaho potatoes to allow mixed types that perform differently, when cooked, to be packed in one bag. However, there were seven supporting commenters that believed that allowing mixed colors and/or types of potatoes when designated as a mixed or specialty pack will bring the standards in sync with current marketing practices and consumer demands in the United States and Canada. AMS agrees with these seven commenters. Therefore, AMS is revising the similar varietal characteristic requirement as proposed.

AMS also proposed to add restrictive tolerances for permanent defects in the en route/at destination tolerances. Two national trade associations representing potato growers and receivers and one nationwide produce retail chain supported the proposal. Four national and state trade associations representing potato growers and shippers opposed this revision. The opposing commenters believe that the new language will add confusion to the standards by causing market inspectors to misinterpret the difference between condition and permanent defects. Also, since permanent defects do not change over time, these commenters believe the restrictive tolerances are unnecessary.

On March 21, 2008, a final rule was published in theFederal Register(73 FR 15052) that added “en route” or “at destination” tolerances to the U.S. No. 1 and No. 2 grades. Prior to that rulemaking, there were only shipping point tolerances: For U.S. No. 1 a total of 8 percent, and for U.S. No. 2 a total of 10 percent. En route/at destination tolerances added for U.S. No. 1 potatoes allowed a total of 10 percent permanent defects, and for U.S. No. 2 potatoes a total of 12 percent permanent defects. AMS did not add restrictive tolerances to the en route/at destination tolerances in the 2008 final rule. Therefore 2 percent more permanent defects were allowed for both U.S. No. 1 and No. 2 between shipping point and at destination. This rulemaking adds a restrictive tolerance of not more than 8 percent for permanent defects in the U.S. No. 1 tolerances and not more than 10 percent for permanent tolerances in U.S. No. 2 that will ensure that shipping point and en route/at destination tolerances are properly the same.

In addition, AMS proposed to clarify the scoring guide for sprouts. Two national trade associations representing growers and receivers, one nationwide produce retail chain, and one foreign government agency were in favor of, but four national or state trade associations expressed concern regarding the phrase “or have numerous individual and/or clusters of sprouts which materially detract from the appearance of the potato.” Those commenters opposed to the change stated that the wording is too subjective and may nullify the length requirements for shipping point and destination. Currently, the wording in the standards can be interpreted to allow any cluster, no matter how small, to not only be scored as damage but also as serious damage. To ensure clarity, AMS proposed that clusters must be numerous and must materially or seriously detract from the appearance before being scored. Further, numerous individual sprouts that do not exceed the length requirements were also included. AMS believes that even though a potato may have sprouts, either individuals and/or clusters, not exceeding the length requirements, the appearance can be materially or seriously affected due to the sprouts being so numerous. Additionally, scoring numerous individual and/or clusters of sprouts based on materially or seriously detracting from the appearance does not nullify the length requirements for single individual sprouts or clusters. Therefore, AMS is revising the scoring guideline for sprouts as proposed.

Finally, one commenter pointed out that although AMS proposed to replace the omission of “or 6 oz.” in the definition of bruises in Table III—External Defects, it appears to be already included in this definition within the Standards. Upon further analysis, AMS determined that “or 6 oz.” was never omitted, and therefore does not need to be added back into the standards. However, the language “21/2inch or” in the bruises definition was in fact inadvertently omitted as part of a previous rulemaking (73 FR 70585; November 21, 2008) but appear in the Standards. This rulemaking action is intended to rectify this error.

Therefore, AMS will revise the following as proposed: Remove the definition for injury, add table numbers to the definitions of “Damage,” “Serious Damage,” and “External Defects,” amend table headings, replace omission of “21/2inch or” in the definition for bruises, and amend language in the tolerance section to ensure soft rot tolerances are applied correctly.

In addition to the comments on these proposed revisions, one national trade association representing potato receivers suggested that AMS reinstitute the 1 percent soft rot en route/at destination tolerance for the U.S. No. 1 and U.S. No. 2 grades. This proposal is outside the scope of this rulemaking but may be considered at a later time.

For reasons set forth in the preamble, 7 CFR part 51 is amended as follows:

This final rule has been reviewed under Executive Order 12866. This rule has been determined to be not significant and, therefore, has not been reviewed by the Office of Management and Budget (OMB).

The final rule has been reviewed under Executive Order 12988, Civil Justice Reform. It is not intended to have a retroactive effect. The rule will not preempt any State or local laws, regulations, or policies unless they present an irreconcilable conflict with this rule. There are no administrative procedures that must be exhausted prior to judicial challenge to the provision of this rule.

AMS has certified that this action will not have a significant impact on a substantial number of small entities as defined in the Regulatory Flexibility Act (5 U.S.C. 601-612). Many small entities ship seed in interstate commerce. There are about 3,095 interstate shippers. Small agricultural service firms, which include interstate shippers, are defined by the Small Business Administration as those whose annual receipts are less than $7,000,000 (13 CFR 121.201). We estimate that about 90 percent of the interstate shippers are small entities.

Shippers, including small entities, usually test and subsequently package and label seed to comply with both the FSA and State seed laws. This is possible because the testing requirements of the State laws are similar or the same as those of the FSA. Therefore, a single test provides information necessary to comply with both State seed laws and the FSA. Changing the seed testing and seed certification regulations will reconcile State and Federal seed testing and seed certification procedures. Moreover, using similar or the same testing procedures will reduce the burden on small entities shipping seed in interstate commerce because a test used for interstate commerce could also be used in intrastate commerce.

Adding four species to the list of seeds that are noxious in seed shipped in interstate commerce will not significantly impact small entities by adding additional costs for seed testing, because all seed must currently be examined for 93 noxious-weed seeds listed in the FSA regulations and those listed in the State laws to be compliant with the FSA. (The FSA requires that seed shipped in interstate commerce comply with the noxious-weed seed requirements of that State into which the seed is shipped.) Therefore, any examination for the weed seeds being added will be in conjunction with examinations that already occur for State noxious-weed seeds. Updating the noxious-weed seed tolerances to be uniform with those required by Statelaws will make FSA and State regulatory action uniform and will not increase the burden on small entities shipping seed in interstate commerce.

Removing the exemption in the FSA regulations for labeling freshly harvested Kentucky bluegrass seed and sugar beet seed shipped in interstate commerce during July, August, and September for germination will not add additional costs for seed testing because this testing and subsequent labeling is required by State seed laws and regulations. Also, much of the seed handled by small entities is already tested by their suppliers. There will be no effect on the competitive position of small entities in relation to larger entities since both will have to comply with the same regulations.

This rule will not impose any additional reporting or recordkeeping requirements. Such requirements are currently approved by OMB under Control No. 0581-0026.

This final rule has been reviewed in accordance with the requirements of Executive Order 13132, Federalism. USDA has determined that this rule conforms to the Federalism principles set forth in the Executive Order, and that this rule does not have Federalism implications.

The FSA, Title II (7 U.S.C. 1571-1575) regulates agricultural and vegetable planting seeds in interstate commerce. Agricultural and vegetable seeds shipped in interstate commerce must be labeled with certain quality information. The labeling information and any advertisements pertaining to the seed must be truthful.

A notice of proposed rulemaking was published in theFederal Register(75 FR 78932) on December 17, 2010. Interested parties were invited to submit written comments until February 15, 2011. USDA received no comments. A hearing on the proposed rule was held in Gastonia, NC, on January 21, 2011, to discuss the revisions. No one attended the hearing.

AMS proposed to revise and update the nomenclature of many of the kinds of agricultural and vegetable seeds listed in §§ 201.2(h) and 201.2(i) to conform to current usage on the International Code of Botanical Nomenclature. AMS also proposed to add “bunching onion” and “radicchio” as acceptable synonyms for “Welch onion” and “chicory,” respectively, in § 201.2(i). “Bunching onion” and “radicchio” are commonly used and accepted kind names by companies selling and labeling seed. USDA received no comments. The changes to these sections, as published in the proposed rule, are incorporated in the final rule.

Under the Federal Noxious Weed Act (FNWA) of 1974 (7 U.S.C. 2801-2814) the Secretary has identified certain noxious weeds that are prohibited movement into or through the United States. AMS proposed to amend § 201.16(b) of the FSA regulations to designate seeds of four additional species of noxious weeds listed under the FNWA as noxious in agricultural and vegetable seed shipped in interstate commerce under the FSA. In addition, AMS proposed to amend the FSA regulations to remove two species no longer cited in the FNWA and revise the nomenclature of four species to be consistent with the nomenclature in the FNWA. The USDA, Animal and Plant Health Inspection Service (APHIS) enforces both the FNWA and Title III, the Foreign Commerce provisions of the FSA. However, the FNWA does not apply to seeds for planting which are subject to the FSA and does not apply to any noxious weed seeds that may contaminate seed subject to the provisions of the FSA. Thus, AMS cannot currently take regulatory action when seeds of the four species classified as noxious under the FNWA are found in planting seed. Therefore, by recognizing them as noxious weeds under the FSA, AMS will act in an orderly way to prevent their spread on those rare occasions that they are found in planting seeds. Noxious weeds that are not listed under the FSA may still be restricted under the FSA in some cases. Each State has a list of weed seeds that are noxious in planting seed. Weed seeds that are designated noxious by each State are also noxious under the FSA when present in seed shipped into that State. USDA received no comments. The changes to these sections, as published in the proposed rule, are incorporated in the final rule.

AMS proposed to update the FSA seed testing regulations to include testing to reflect improvements in seed testing technology and the current standards of usage within the industry as outlined below. The Association of Official Seed Analysts (AOSA) has already adopted these changes in their “Rules for Testing Seed,” the testing rules used by most State and commercial seed analysts. Including these changes in the FSA regulations will eliminate potential conflicts between the testing rules used in interstate commerce and those used by the States. This will eliminate the need to do separate tests to ensure that seed labeling complies with both Federal and State laws. It will also facilitate seed trade and reduce cost to the seed industry and to seed buyers.

AMS proposed that §§ 201.48(g) and 201.51(b) specify a change in the FSA regulations for determining pure seed and inert matter for 18 grass seed kinds. The change will require pure seed of these 18 kinds to have a caryopsis at least one-third the length of the palea. The change will also require seeds of these 18 grass kinds to be classified as inert matter if the caryopsis development is less than one-third the length of the palea. Currently, all seeds of these 18 grass kinds are considered pure seed if the caryopsis has some degree of endosperm development. USDA received no comments. The changes to these sections, as published in the proposed rule, are incorporated in the final rule.

AMS proposed to update the FSA seed testing regulations to reflect improvements in the noxious-weed seed tolerances using modern statistical applications. The AOSA has already adopted these changes in their “Rules for Testing Seed,” the rules used by most State and commercial seed analysts. Including these changes will eliminate potential conflicts between FSA and State regulatory action. USDA received no comments. The changes to this section, as published in the proposed rule, are incorporated in the final rule.

AMS proposed to update the certified seed regulations. Sections 201.74 and 201.75 will be amended to permit the option of printing the lot number, kind, and variety name (if certified to variety) on the seed container in a position to be viewed in conjunction with the official certification label. A sentence in §§ 201.74 and 201.75, pertaining to small containers of seed, will be deleted because these containers are covered in the amendment. The Association of Official Seed Certifying Agencies (AOSCA), the organization that develops rules for use by its members to certify seed for varietal purity, has already amended its rules to allow the option of printing certain required labeling information on seed containers outside the confines of the certificationlabel. This will reflect that change in the AOSCA rules and current industry practices. In addition, this option will allow seed companies to realize a financial savings by purchasing seed bags with preprinted certification labels in large quantities and add the required information pertinent to each seed lot. USDA received no comments. The changes to these sections, as published in the proposed rule, are incorporated in the final rule.

AMS proposed to add the term “(Environmental Protection Agency Toxicity Category I)” after references to “mercurials and similarly toxic substances” in § 201.31a(c)(1), 201.31a(c)(2), and 201.31a(d).

The current FSA regulations refer to the most toxic class of chemical seed treatments as “mercurials and similarly toxic substances.” However, mercury-based compounds are no longer used by the seed industry for treating seeds. Further, the current classification by the Environmental Protection Agency (EPA) of the most toxic chemical compounds used as seed treatments is “Toxicity Category I.” Chemicals of this toxicity, sold in bulk for treating seed, are required by EPA to be labeled as Toxicity Category I compounds. Therefore, adding the term “(Environmental Protection Agency Toxicity Category I)” to the FSA regulations will clarify the labeling requirements for seed treated with the most toxic class of chemical compounds used by the seed industry, reduce the possibility of mislabeling chemically treated seed shipped in interstate commerce, and provide consistency with classification terms used by EPA.

AMS proposed to update § 201.20 by removing the exemption from labeling freshly harvested Kentucky bluegrass and sugar beet seed sold in July, August, and September for germination. Germination labeling is required for all other kinds of seeds regulated by the FSA. This exemption is no longer needed because current industry practice is to label all kinds of seed for germination prior to shipment and sale. Since State seed laws require labeling of all seed for germination, removing this exemption will eliminate conflict between the FSA regulations and State seed labeling requirements. USDA received no comments. The changes to these sections, as published in the proposed rule, are incorporated in the final rule.

For reasons set forth in the preamble, 7 CFR part 201 is amended as follows:

The Energy Policy and Conservation Act (EPCA), as amended by section 312(c) of the Energy Independence and Security Act (EISA 2007), requires the Department of Energy (DOE) to prescribe a test procedure to measure the energy use of walk-in coolers and freezers (collectively, walk-ins). See 42 U.S.C. 6314(a). DOE recently satisfied this requirement by issuing a final rule establishing a test procedure for manufacturers to use when measuring the energy use of a walk-in unit. See 76 FR 21580 (April 15, 2011).

Since the publication of that rulemaking, it was recently discovered that an error is present in Appendix A of the regulatory text, which governs, among other things, the test conditions for walk-in coolers and freezers. That text, within the context of assessing the long-term thermal resistance of the insulating foam contained in the panel components used to construct a walk-in freezer container, uses, incorrectly and inconsistent with the statute, a prescribed test temperature of 35 °F ± 1 °F for freezers. The temperature that should have been inserted in that provision is 20 °F ± 1 °F. Periods should also have been included after that provision and the one following it that sets the temperature test condition for panels used in coolers. This document corrects these errors.

As published, the current provisions of 10 CFR part 431, Subpart R, Appendix A, include the incorrect testing temperature for manufacturers touse when measuring the long-term insulation performance of the foam insulation used in a walk-in freezer unit. The published temperature, 35 °F ± 1 °F—a temperature that exceeds the safe storage of frozen perishable items—conflicts with the mandatory 20 °F requirement that Congress had prescribed as part of the EISA 2007 amendments governing the testing of insulation foam used in walk-in freezers. See 42 U.S.C. 6314(a)(9)(A)(iii) (indicating that the insulation value of the foam used with walk-in freezers shall be calculated using a temperature of 20 °F). This higher temperature also exceeds the temperature at which a walk-in freezer unit would normally operate. Additionally, the temperature conditions specified throughout the remaining portions of the recently promulgated test procedure for walk-in freezers are consistent with the operation of a freezer and substantially lower than 35 °F. See,e.g.10 CFR part 431, subpart R, Appendix A, Sec. 5.3(a)(2)(i) (specifying the air temperature for freezer internal cooling conditions at -10 °F). DOE also notes that the preamble to the final rule explained that, consistent with the statute, a 20 °F requirement was being adopted in the regulations when testing the long-term performance of insulating foam for walk-in freezer applications. Another necessary correction to the text is that a period is needed for both conditions to clarify that the two conditions pertain to two situations—one for freezers and one for coolers.

In light of the applicable statutory requirement, the clear inconsistency between the currently published temperature testing condition and the actual temperatures at which the tested products operate, and the fact that DOE specifically stated in the final rule's preamble that the rule would apply a 20 °F requirement for walk-in freezer applications, DOE finds that there is good cause under 5 U.S.C. 553(b)(B) to not provide prior notice and an opportunity for public comment on the changes contained in this document. For the reasons discussed above, providing prior notice and an opportunity for public comment would be unnecessary and contrary to the public interest.

Accordingly, this correction document revises the temperature requirement specified in 10 CFR part 431, subpart R, Appendix A, section 5.2(a)(1)(i) to specify a 20 °F requirement for testing the insulation performance of walk-in freezer insulation foam and adds a period at the end of 10 CFR part 431, subpart R, Appendix A, sections 5.2(a)(1)(i) and 5.2(a)(1)(ii).

For the reasons stated in the preamble, DOE corrects 10 CFR part 431 as set forth below.

We are adopting a new AD for the Sikorsky Model S-92A helicopters. This AD requires an NDI, eddy current or FPI, of each MGB upper housing assembly rib on the left, right, and forward MGB mounting foot for a crack because it cannot be detected visually. This AD is prompted by a report of a crack found on the MGB upper housing assembly left mounting foot forward rib during removal of an MGB that had reached its life limit of 1,000 hours TIS. The MGB mounting foot has a history of two types of cracks. The visual inspection for these two types of cracks is required in AD 2010-24-04 (75 FR 70812, November 19, 2010). The discovery of a third type of crack on the left mounting foot forward rib may not be reliably detected by visual inspection. This condition, if not detected and corrected, could result in loss of the MGB, and subsequent loss of control of the helicopter.

We reviewed Sikorsky Alert Service Bulletin No. 92-63-025A, Revision A, dated May 12, 2011 (ASB). The ASB specifies a one-time NDI of the MGB assembly at the mounting foot ribs for cracks.

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

This AD requires, at specified intervals based on the MGB upper housing assembly hours TIS, eddy current or FPI inspecting the left, right, and forward MGB upper housing mounting foot ribs for a crack. If there is a crack, the AD requires replacing the MGB upper housing assembly with an airworthy MGB upper housing assembly. This AD requires accomplishing the actions by following the specified portions in the ASB.

We refer to “flight hours” as “hours TIS.” This AD requires the inspection to be done by an ASNT Level 2 or equivalent inspector and this AD requires recurring inspections.

An unsafe condition exists that requires the immediate adoption of this AD. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because of the short compliance time required to NDI certain MGB upper housing assembly mounting foot ribs for a crack. Therefore, we find that notice and opportunity for prior public comment are impracticable and that good cause exists for making this amendment effective in less than 30 days.

This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment. However, we invite you to send any written data, views, or arguments about this AD. Send your comments to an address listed under theADDRESSESsection. Include the docket number FAA-2011-0548 and Directorate Identifier 2011-SW-025-AD at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD because of those comments.

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

We estimate that this AD affects 29 helicopters of U.S. registry.

We estimate the following costs to comply with 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.

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 andresponsibilities 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) Does not warrant making distinction for 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:

Discussion

This amendment adopts a new AD for the specified fire extinguisher. This action requires replacing each portable fire extinguisher containing unapproved, contaminated Halon 1211 with a portable fire extinguisher containing approved Halon 1211. This amendment is prompted by an ongoing investigation that has established that unapproved Halon 1211 has been used to fill L'Hotellier portable fire extinguishers that are likely to be onboard various model helicopters. This condition, if not corrected, may reduce fire suppression and release toxic fumes that would endanger the safety of the helicopter and its occupants.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA AD No. 2009-0277R1, dated February 5, 2010, to correct an unsafe condition for L'Hotellier portable fire extinguishers, part number (P/N) 863520-00. EASA reports that the Civil Aviation Authority of the United Kingdom (UK) has informed them that significant quantities of Halon 1211 gas, determined to be outside the required specification, have been supplied to the aviation industry for use in fire extinguishers. Halon 1211 is used in portable fire extinguishers, usually fitted or stowed in aircraft passenger cabins and flight decks. An ongoing investigation has established that LyonTech Engineering Ltd, a UK-based company, has supplied unapproved Halon 1211 to L'Hotellier. This Halon 1211 has subsequently been used to fill certain portable fire extinguishers that are likely to be installed in or carried on various model helicopters including Eurocopter France Model EC120B; AS350B, BA, B1, B2, B3, and D; AS355E, F, F1, N, and NP; and SA341G and 342J helicopters, with a portable fire extinguisher, P/N 863520-00, with a serial-number listed in the L'Hotellier service information.

L'Hotellier has issued Service Bulletin 863520-26-001, dated December 21, 2009 (SB). The SB specifies returning each affected serial-numbered fire extinguisher to L'Hotellier. The SB also specifies that if a label containing, among other information, “Application of SBA 863520-26-001” is installed on a fire extinguisher, indicating that it has been reconditioned with pure Halon 1211 according to L'Hotellier internal procedure ITR70030-00, that reconditioned or new fire extinguisher can be placed in the helicopter. EASA classified this SB as mandatory and issued EASA AD No. 2009-0277R1, dated February 5, 2010, to ensure the continued airworthiness of these helicopters.

These products have been approved by the aviation authority of France and are approved for operation in the United States. Pursuant to our bilateral agreement with France, EASA, their technical representative, has notified us of the unsafe condition described in the MCAI AD. We are issuing this AD because we evaluated all information provided by EASA and determined the unsafe condition exists and is likely to exist or develop on other products of these same type designs.

We require a 60-day compliance time because we have determined that 60 days will ensure an acceptable level of safety versus allowing a 6-month compliance time. We have included the affected serial numbers of the fire extinguishers in the AD rather than referring to the SB for the serial numbers.

This unsafe condition is likely to exist or develop on other helicopters of these same type designs. Therefore, this AD is being issued to replace unairworthy fire extinguishers with airworthy fire extinguishers to prevent using contaminated gas that may reduce fire suppression and release toxic fumes that would endanger the safety of the helicopter and its occupants.

The short compliance time involved is required because the previously described critical unsafe condition can adversely affect the controllability and structural integrity of the helicopter in the event of a fire. Therefore, replacing each unairworthy fire extinguisher with an airworthy fire extinguisher is required within 60 days, and this AD must be issued immediately.

Since a situation exists that requires the immediate adoption of this regulation, it is found that notice and opportunity for prior public comment hereon are impracticable, and that good cause exists for making this amendment effective in less than 30 days.

We estimate that this AD will affect about 1,000 helicopters. We also estimate that it will take about 1work-hour per helicopter to inspect and replace the fire extinguisher. The average labor rate is $85 per work-hour. Required parts will cost about $212 to replace each fire extinguisher. Based on these figures, we estimate the cost of this AD on U.S. operators is $297,000, assuming the fire extinguishers are replaced on the estimated fleet.

This AD is a final rule that involves requirements that affect flight safety and was not preceded by notice and an opportunity for public comment; however, we invite you to submit any written data, views, or arguments regarding this AD. Send your comments to an address listed underADDRESSES. Include “Docket No. FAA-2011-0506; Directorate Identifier 2010-SW-020-AD” at the beginning of your comments. We specifically invite comments on theoverall regulatory, economic, environmental, and energy aspects of the AD. We will consider all comments received by the closing date and may amend the AD in light 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 with FAA personnel concerning this AD. Using the search function of the docket Web site, you can find and read the comments to any of our dockets, including the name of the individual who sent the comment. You may review the DOT's complete Privacy Act Statement in theFederal Registerpublished on April 11, 2000 (65 FR 19477-78).

We have 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 that the regulation:

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

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

3. 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.

We prepared an economic evaluation of the estimated costs to comply with this AD. See the AD docket to examine the economic evaluation.

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.

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

Discussion

Recent analysis by the FAA on the Viking Air Limited Model DHC-3 (Otter) airplanes equipped with a Honeywell TPE331-10 or -12JR turboprop engine installed per Supplemental Type Certificate (STC) SA09866SC revealed that airspeed limitations for the affected airplanes are not adjusted for the installation of a turboprop engine as stated in the regulations. 14 CFR 23.1505 paragraph (c) applies to turbine engine airplanes and includes the following: “* * * a maximum operating limit speed (VMO/MMO-airspeed or Mach number, whichever is critical at a particular altitude) must be established as a speed that may not be deliberately exceeded in any regime of flight (climb, cruise, or descent) unless a higher speed is authorized for flight test or pilot training operations. VMO/MMO must be established so that it is not greater than the design cruising speed VC/MC and so that it is sufficiently below VD/MD and the maximum speed shown under 23.251 to make it highly improbable that the latter speeds will be inadvertently exceeded in operations. The speed margin between VMO/MMO and VD/MD or the maximum speed shown under 23.251 may not be less than the speed margin established between VC/MC and VD/MD under 23.335(b), or the speed margin found necessary in the flight test conducted under 23.253.”

The FAA has discovered that the affected airplanes, as currently certificated, have airspeed indicators with color band markings that do not comply with 14 CFR 23.1505(c). This could result in reduced safety margins that may result in an unsafe condition.

Based on further analysis with application of the regulations, the FAA has determined that an airspeed limitation of 134 miles per hour (mph) for airplanes with floats and 144 mph for basic land airplanes would address the concern for the unsafe condition.

This condition, if not corrected, could result in loss of airplane structural integrity due to the affected airplanes being able to operate at speeds that exceed the speeds established in the Federal aviation regulations for safe operation.

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

This AD requires incorporating revised airspeed limitations and marking the airspeed indicator accordingly. There is also a requirement for the installation of a temporary placard until the airspeed indicator can be modified but not to exceed a certain period of time.

An unsafe condition exists that requires the immediate adoption of this AD. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because it could result in loss of airplane structural integrity due to the affected airplanes being able to operate at speeds that exceed the speeds established in the Federal aviation regulations for safe operation. Therefore, we find that notice and opportunity for prior public comment are impracticable and that good cause exists for making this amendment effective in less than 30 days.

This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment. However, we invite you to send any written data, views, or arguments about this AD. Send your comments to an address listed under theADDRESSESsection. Include the docket number FAA-2011-0543 and Directorate Identifier 2011-CE-018-AD at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD because of those comments.

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

We estimate that this AD affects 25 airplanes of U.S. registry

We estimate the following costs to comply with 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.

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:

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an airworthiness directive (AD) that would apply to the specified products. That NPRM published in theFederal Registeron September 24, 2010 (75 FR 58340). That NPRM proposed to require determining if affected seats and seating systems and their components are compliant with certain FAA regulations, and removing those seats, seating systems, and their components that are shown to be unsafe from the affected fleet.

On October 14, 2010, during two separate meetings, we met to discuss the NPRM with the European Aviation Safety Association (EASA), Japanese Civil Airworthiness Bureau (JCAB), Airbus, and Boeing, as well as with other national airworthiness authorities and operators. On October 20, 2010, we had a similar meeting with additional authorities and operators. We emphasized that the meetings were not a substitute for the formal comment process and would consider comments made through the comment process identified in the NPRM. Summaries of these meetings are posted in the AD docket on the Internet athttp://www.regulations.gov.

We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the proposal and the FAA's response to each comment.

Several commenters either inferred or specifically requested that we withdraw the NPRM.

The Association of European Airlines (AEA) stated that the combined safety analysis carried out by EASA/FAA for the NPRM is fundamentally flawed because it assumes “a catastrophic failure.” The AEA also stated that new test data are available to the FAA. AEA added that Koito (witnessed by the JCAB) has carried out extensive retesting of the seats to prove they are safe and meet all of the certification criteria. AEA concluded that these data have not been evaluated by the FAA, which could negate the issuance of an FAA AD.

The Association for Asia Pacific Airlines (AAPA), China Airlines, and Japan Transocean Airlines (JTA) stated that the evaluation and use of JCAB data could negate the justification for the NPRM.

Koito Industries (Koito) respectfully questioned the basis for the NPRM moving forward, absent FAA verification and support that an unsafe condition exists. Koito stated it deeply regrets the circumstances surrounding this AD. Koito submitted that no actual unsafe condition has been verified even for production seats where discrepancies existed between drawings and materials used to show compliance. Koito added that the NPRM states only that a potential unsafe condition could exist. Koito submitted that non-compliance with regulations does not necessarily equate to an unsafe condition. Koito stated that the testing results will provide much-needed data for the FAA to make the required determination under section 39.5 of the Federal Aviation Regulations (14 CFR 39.5), and then the FAA will be able to determine whether a safety-of-flight issue exists that is sufficient to warrant an AD in accordance with the requirements of section 39 of the Federal Aviation Regulations (14 CFR 39). Koito concluded that issuing an AD prior to reviewing forthcoming testing data to determine whether an unsafecondition exists could result in unnecessary burdens on aircraft manufacturers and affected airlines.

Nippon Cargo Airlines (NCA) stated it could not accept the issuance of an AD prior to completion of all appropriate actions (including re-testing, conformity assessment, and establishment of the refurbishment plan) that should be performed by Koito. NCA stated that we should establish a feasible compliance period based on service bulletin recommendations and status of parts availability. We infer NCA is requesting we withdraw the NPRM.

EVA Airways stated that it preferred an alert service bulletin be issued instead of an AD because a service bulletin would minimize the impact on daily operation and minimize the cost impact on operators.

We do not agree to withdraw the NPRM. It is a fact that some seats have failed during testing. Failure of the seat, in combination with an emergency landing, is considered catastrophic. The purpose of the required initial determination (testing) is to determine which seats might fail. The purpose of an AD is to restore the affected fleet to an acceptable level of safety. Only those seats that fail the testing will be required to be removed from service. EASA and the FAA have reviewed the data generated by Koito, under the oversight of JCAB, and we have determined that this AD is necessary to address the identified unsafe condition. In addition, certification of these seats was obtained through false pretenses, and thus, until the seats are re-certified in whole, they need to be appropriately marked and actions must be done in accordance with this AD. We have not revised the AD in this regard.

Multiple commenters requested an extension of the comment period, and most wanted the extension in order to allow review of the Koito/JCAB data. AAPA, All Nippon Airways (ANA), The Boeing Company, China Airlines, Continental Airlines, Copa Airlines, EVA Air, Japan Airlines International (JAL), JTA, Jett8 Airlines, Kuwait Airways, NCA, Thai Airways, and Virgin Blue International Airlines (V Australia) requested that the comment period be extended by 90 days in order to provide time for the parties concerned to better understand the Koito/JCAB test data. The AAPA and AEA stated that because the JCAB is the primary certification and design authority for the Koito seats, and has been able to confirm that production drawings were retained by Koito and checked for conformity, the new JCAB data should be given credit. The AAPA and China Airlines stated that the failure to do so would ignore the huge potential burden the NPRM would impose on national airworthiness authorities providing oversight and air carriers. Continental requested that the FAA work with the JCAB to determine the validity of the data and accept data that demonstrate compliance on specific seat models to reduce the potential burden on the operators.

AEA requested an extension of the comment period for six months. AEA commented that the NPRM calls for in-service seats to be used for testing, but that the same goal can be achieved by carrying out a conformity evaluation of in-service seats against those tested by Koito, under JCAB supervision.

Koito requested an extension of the comment period for three months. Koito stated that it is confident that its comprehensive safety testing, conducted under strict JCAB supervision and in cooperation with Airbus, Boeing, and JCAB-regulated airlines, will assist the FAA and EASA in preparing a more targeted and effective AD, without compromising in any way the level of safety that the AD seeks to ensure. Koito added that once the FAA and EASA have thoroughly evaluated Koito's testing methodology, procedures, and results, and are satisfied that Koito's testing can be a reliable basis for determining the safety of in-service seats, the testing results could be widely shared among all the parties affected by the AD. Koito noted that this would allow the affected parties to provide the FAA with more precise and targeted comments before the AD is adopted. Koito also stated that the FAA itself could gain important insights from reviewing Koito's testing methodology and testing results before issuing a final AD.

Airbus commented that the comment period should be extended (but did not specify the length of the requested extension) to allow review of the Koito/JCAB tests results.

Singapore Airlines did not request an extension of the comment period; however, Singapore Airlines requested that JCAB data be evaluated by the FAA. Singapore Airlines stated that JCAB showed that all design changes made to in-service seat models have been identified and analyzed, with no problem identified relating to metallic parts, and no significant differences between seats manufactured and production drawings.

We disagree with extending the comment period. As stated previously, we have discussed the data in briefings with EASA and the operators. EASA and the FAA have since reviewed the data generated by Koito, under the oversight of JCAB, and concluded that test data from new-build test articles can be used to demonstrate compliance to the static strength requirements of the AD; we have added Notes 3 through 10 to this AD to provide clarification on testing. Test data from new-build test articles can also be used for the flammability requirements in combination with conformity of in-service seat cushions. The purpose of this AD is to restore the affected fleet to an acceptable level of safety. To delay this action would be inappropriate, since we have determined that an unsafe condition exists and that the actions required by this AD must be conducted to ensure continued safety. Failure of the seat in combination with an emergency landing is considered catastrophic. The required initial determination (testing) will determine if seats do not meet FAA regulations and those that do not could fail. Only those seats that fail the testing will be required to be removed from service. We have not changed this AD in this regard.

AAPA, China Airlines, EVA Airways, JAL, Jett8 Airlines, NCA, and Thai Airways requested a follow-up briefing session be made to carriers similar to the follow-up session agreed on in Cologne for carriers in the Asian-Pacific (ASPAC) region. Kuwait Airways requested a follow-up briefing session be made to carriers similar to the follow-up session agreed on in Cologne for concerned carriers. ANA requested a follow-up briefing session be made to carriers similar to the follow-up session agreed on in Singapore.

We agree it is beneficial for affected parties to meet again. We plan on organizing a meeting with affected parties shortly after the AD is published. No change to the AD is necessary regarding this issue.

JAL and JCAB requested consistency between the applicability of the FAA NPRM and the EASA PAD because the NPRM applies to the component and the PAD applies to airplanes having the component. JAL stated that in the FAA NPRM, the proposed AD is to be applied to passenger seats manufactured by Koito; however, the EASA PAD is applied to airplanes equipped with passenger seats manufactured by Koito. JAL requested a unified applicability to avoid unexpected burdens on theairlines/operators. JCAB stated the applicability between the FAA NPRM and EASA PAD should be further harmonized so as to avoid confusion among authorities and operators of countries outside the U.S. and Europe.

We acknowledge the importance of harmonizing with EASA. The FAA has granted an approval for the seats themselves, and so the seats are the basis of the applicability of the FAA AD. This is different in the EASA system, where the approval is based on airplane installation. Although the description of the applicability is different, the overall effect of the two ADs should be essentially the same. Nonetheless, while it is thought that all the seat models have been identified, there may be models not identified. Commenters have also noted that the NPRM did not address several older types of seats, approved under technical standard order (TSO) TSO-C39, TSO-C39a, and TSO-C127, as well as non-TSO models. We intend to supersede this AD to address any affected seats that are determined to not be covered by this AD. However, we have not revised this AD in this regard.

Several commenters requested that the affected seats in our applicability match those in the EASA PAD. JCAB identified 74 models listed in the NPRM that are not produced under TSO-C39b, TSO-C39c, or TSO-C127a: 15 models that are approved under TSO-C127, 22 models that are approved under TSO-C39a, and 37 models that do not have TSO approvals. JCAB noted that seats models approved under TSO-C39a and TSO-C127 and those without TSO approval are not covered by the proposed AD by its current text. JCAB requested that we harmonize our applicability with EASA's applicability.

JCAB also stated that there are seat models listed in table 1 of the NPRM that are not approved under TSO-C39b, TSO-C39c, or TSO-C127a, as specified in paragraph (c) of the NPRM. JCAB requested that we revise table 1 and paragraph (c) of the NPRM to clarify the intent of the NPRM for these seat models.

Koito stated that the NPRM contains 32 seat model numbers that were not produced under TSO-C39b, TSO-C39c, or TSO-C127a and should be removed.

Boeing requested that TSO-C127 be added to the applicability of the NPRM if the intent of the AD is to be applicable to all Koito seats. Boeing stated that some Koito seats were certified to TSO-C127 prior to the release of TSO-C127a.

We agree that certain seat models that should be covered by the FAA AD were not explicitly covered by the applicability of the NPRM. However, we do not agree to revise the applicability of this AD. Adding seats models to the applicability would require issuance of a supplemental NPRM instead of a final rule. To delay this action would be inappropriate, since we have determined that an unsafe condition exists and that the actions required by this AD must be done to ensure continued safety. We might issue further rulemaking to address other seat models, including models approved under other TSOs and those without TSO approval. The future rulemaking might revise the applicability of the AD to include all seat models produced by Koito, installed on any aircraft by any means. We have not revised this AD in this regard.

JCAB stated that 11 models of Koito seats have seat cushions provided by another TSO holder (TSO-C72c). We infer JCAB is requesting that seat cushions made by another manufacturer be removed from table 1 of the NPRM.

We do not agree. The JCAB did not identify which seat models were issued with TSO-C72c seat cushions provided by an outside source (non-Koito produced). Seats for which the cushion approval is independent of the Koito TSO authorization can show compliance with the cushion flammability requirements using the third-party approval basis under TSO-C72c. As it is possible for the seat to be modified by a third party to procure seat cushions by Koito, we have not revised this AD in this regard. The TSO-C72c seat cushion is a requirement of TSO-C127a.

JCAB requested that seat models for Mitsubishi YS-11 and Fokker F-27 airplanes, which were designed and manufactured well before the mid-1980s, be removed from table 1 of the NPRM. JCAB stated that according to the conclusions of the investigation conducted by Koito Manufacturing, a parent company of Koito Industries, the fraudulent activities by Koito Industries started in the mid-1980s. JCAB stated its investigation revealed the same results, and therefore, it is believed that those seats designed and manufactured before the mid-1980s were properly certified and need not be the subject of ADs.

We acknowledge the commenter's request. However, we have not received data to identify seats certified without falsified data. In addition, as discussed previously, certain seats might not be part of the applicability of this AD because this AD only applies to seats and seating systems having certain models numbers that are approved under TSO-C39b, TSO-C39c, or TSO-C127a. However, under the provisions of paragraph (l) of this AD, we will consider requests for approval of an alternative method of compliance (AMOC) if sufficient data are submitted to substantiate that the new AMOC would provide an acceptable level of safety. We have not revised this AD in this regard.

Airbus requested the NPRM list both the seat model and generic part number in the AD applicability.

We disagree. The commenter did not justify its request. We have determined that, to capture all Koito seats, including third-party modified seats and second-hand seats, reference to the model alone is appropriate for the applicability of the AD. The affected model numbers are identified in table 1 of this AD. We have not revised this AD in this regard.

Fokker Services B.V. requested we remove “Fokker Services B.V.” from table 2 of the NPRM. Fokker Services B.V. indicated that it did not certificate the installation of seats or seating systems by Koito, nor was it aware of any Koito seats installed on aircraft types on which Fokker Services B.V. is the type certificate holder.

We disagree. All operators must confirm whether the affected seats and seating systems are installed. Table 2 of this AD is a non-inclusive list of manufacturers on which the seats and seating systems may be installed. JCAB has identified seat model AFS-105 installed at one time on Fokker aircraft (type certificate data sheet A-817). Although it is probable that this model has been removed and destroyed, it has not been verified. We have not revised this AD in this regard.

An anonymous commenter requested that we clarify the effect of the NPRM on imported airplanes. The commenter questioned whether an operator of a non-U.S. registered airplane can obtain a certificate of airworthiness from the FAA after the AD is released without re-testing Koito seats. The commenter stated that for a newly imported airplane, the seats would be affected by the “Parts Installation” requirement specified in paragraph (h) of the NPRM, which does not allow installation of a non-retested Koito seat after the effective date of the AD.

We agree to clarify the effect of this AD on imported airplanes. When an operator imports an airplane onto the U.S. Register, the airplane is subject to all applicable FAA ADs. Moving an airplane from one register to another would not be classified as a new installation if there is no physical design change to the subject airplane. An imported airplane is subject to the compliance times in this AD. We have not revised this AD in this regard.

Multiple commenters requested that we extend the compliance times specified in the NPRM.

ANA requested that we extend the compliance times to do the testing and to remove non-compliant seats, seating systems, and components. ANA stated that a longer compliance time is needed to do the required tests because it will not be able to accomplish them within two years. AAPA, ANA, and China Airlines commented that the NPRM would require operators to take actions that are normally beyond their responsibility and competence. China Airlines added that the NPRM ignores the economic and operational burden that will be faced by air carriers. ANA argued that air carriers are not experts in seat design and indicated that any seat testing would have to be performed by a seat vendor or public test facility.

AAPA, China Airlines, JTA, and Thai Airways requested that the compliance time of 2 years specified in paragraph (g) of the NPRM for determining compliance with FAA regulations (testing) be extended to 5 years. The commenters stated that it is the responsibility of the primary design and certificating authority (the JCAB) with the support of Koito, in collaboration with EASA and FAA, to develop a plan of action to ensure compliance of in-service Koito seats. The commenters added that agencies capable of performing the testing of in-service seating are limited and may not have sufficient resources to support the affected air carriers. The commenters also stated that seat providers do not necessarily have the resources or spare capacity to support requests from air carriers required to change their seats, especially within the 2-year compliance period operators have for seats that have failed the testing. JTA pointed out that, as a consequence of the problems with Koito seats, airplanes have been and are grounded. JTA stated that airlines have no suitable pragmatic solution available due to the lack of certified spares and the long lead-time of sourcing replacement seats.

AAPA, China Airlines, and JTA also requested that we extend the 6-year compliance time for removing non-compliant seating systems (specified in paragraph (g)(3) of the NPRM) to 15 years. AAPA, China Airlines, and JTA questioned the safety analysis used by the FAA to establish the NPRM compliance time. JTA requested we consider that, based on a new finding of the JCAB and 16g test results stored in Koito computers, it can be concluded that even non-compliant seats still offer a high level of protection. JTA also asked that we consider there is no justification to assume this potential non-compliance will result in an increase of fatalities and noted there have been no reported seat failures that resulted in fatalities. JTA also stated that there are no historical data to support that the safety analysis takes into account the potential of seat failures resulting from high-level turbulence events.

AAPA, AEA, China Airlines, and JTA requested that we reconsider the compliance times based on a revised catastrophe rate and stated that using an accident rate of 0.15·10−7is a more realistic base for the safety analysis. AEA added that the affected seats would have a reduction in performance of 10% compared to the certification requirement.

AEA and Thai Airways commented that the lack of certified spares and the long lead time of sourcing seats make the replacement of seats difficult and asked for a longer compliance time to perform seat testing and seat replacement. AEA noted that a 2-year compliance time would ground airplanes. Thai Airways requested that the compliance time of 2 years specified in the NPRM be extended to 5 years. Thai Airways noted that there are a large number of seats in-service, and FAA and EASA test facilities do not currently exist. Thai Airways stated that replacement seats are not interchangeable because they are customized for items such as in-flight entertainment.

Boeing requested that the 2-year compliance time be extended to 5 years. Boeing stated that retrofit programs take at least 2 years to certify. Boeing also stated that all the falsified tests showed that the forward dynamic test pulses were greater than 14g. Boeing noted that although not 16g, the test results indicate a level of safety higher than that of 9g-only seats.

Cathay Pacific Airways and V Australia requested that the 2-year compliance time be extended to 4 years. Cathay Pacific stated the extended compliance time would allow sufficient time to carry out seat replacement during its scheduled heavy maintenance checks. Cathay Pacific also noted it takes 18 to 24 months for a typical seat development. V Australia noted that seat acquisition programs typically take 18 to 21 months. Cathay Pacific also stated that seat suppliers might not have sufficient capacity to cope with the high demand from all the affected operators.

Copa Airlines stated it is concerned about the compliance times of the NPRM. EVA Airways, JAL, Singapore Airlines, and V Australia stated the compliance times are not feasible. Copa Airlines, EVA Airways, and JAL stated there are no step-by-step service bulletin or original equipment manufacturer (OEM) instructions and that the NPRM should include clear guidance on means of compliance, work instructions, and/or requirements for facilities to conduct the tests. Copa Airlines, EVA Airways, and Singapore Airlines stated that the high demand for replacement parts might exceed the capacity of suppliers. Copa Airlines and JAL added there is insufficient time to replace the seats if they fail the testing since a new seat program takes 18 to 24 months. V Australia also stated there is insufficient time to replace seats. Singapore Airlines added that for airlines with a large fleet having affected seats, the 2-year compliance time is not pragmatic because vendors need time to design, manufacture, and install new seats. EVA Airways and JAL also questioned the availability of test facilities. Singapore Airlines stated that the 2-year time limit to replace seats that fail the 16g and 9g tests would pose a hardship for operators.

Koito suggested that we add explicit wording to paragraph (g) of the NPRM that would allow airlines to start their testing plan with a static performance test according to “14 CFR 25.562(b)(3)(ii) and (iii)” within 2 years (to get approval for seats to remain in service for 6 years) and continue it later with a dynamic testing according to sections 25.562(b)(2) and (c)(7) of the Federal Aviation Regulations (14 CFR 25.562(b)(2) and (c)(7)) within 6 years. Koito stated it understands that the FAA considers this phased testing structure as an acceptable testing plan, but also understands that this flexibility is important to Koito's customers.

We acknowledge that the compliance times specified in the NPRM could bemisinterpreted. We also acknowledge that air carriers are not experts in seat design and that testing most likely would be done by the seat manufacturer or at a test facility.

We have revised paragraphs (g), (g)(1), (g)(2), (g)(3), and (g)(4) of this AD to clarify the compliance times by removing the 2-year compliance time that was specified in paragraph (g) of the NPRM and including the applicable compliance times for the determination and removal in paragraphs (g)(1), (g)(2), (g)(3), and (g)(4) of this AD. Paragraph (g)(3) of this AD allows 6 years for the determination for certain seating systems specified in that paragraph. Paragraph (g)(4) of this AD allows three years for the determination for components specified in that paragraph. It was not our intent to require the determinations specified in paragraphs (g)(3) and (g)(4) of this AD within the 2-year compliance time.

We have also revised paragraph (g)(2) of this AD and added paragraph (h) of this AD to clarify the actions and compliance times for seating systems approved under TSO-C127a that are shown to be compliant with sections 25.562(b)(2) and 25.562(c)(7) of the Federal Aviation Regulations (14 CFR 25.562(b)(2) and 14 CFR 25.562(c)(7)), but are shown to exhibit sharp or injurious surfaces. Instead of removing non-compliant seating systems, operators may determine if the seating systems are compliant with sections 25.561(b)(3)(ii) and 25.561(b)(3)(iii) of the Federal Aviation Regulations (14 CFR 25.561(b)(3)(ii) and 14 CFR 25.561(b)(3)(iii)) and do not exhibit sharp or injurious surfaces. The removal of seating systems within the initial 2-year compliance time will only be required in the event that the seat model is not capable of withstanding the minimum static forward and side loads. We have not extended any other compliance times specified in this AD.

However, under the provisions of paragraph (l) of this AD, we will consider requests for approval of an extension of the compliance time if sufficient data are submitted to substantiate that the new compliance time would provide an acceptable level of safety.

In regard to one commenter's justification for extending the compliance time, we do not agree with the suggestion that there is evidence the level of safety offered by Koito seats is only 10% below the applicable certification requirements. The FAA risk assessment does not assume 100% failure in the event of a survivable emergency landing and post-emergency landing fire, and includes both worldwide and U.S. fleet accident rates. Seats that do not pass the static requirements pose a significant airworthiness risk in the event of an accident and also in the event of high-turbulence loads. Seats, seating systems, and components that fail to meet the requirements specified in this AD must be removed; this AD does not require replacement of seats, seating systems, and components.

In regard to the Koito data, we have reviewed the data available to us and have determined this AD is necessary to address the identified unsafe condition. As previously stated in the NPRM section “The Role of the Airframe Manufacturers (Airbus and Boeing) in Helping Airlines Establish the Status of Their Seats,” it will take cooperation among the airlines, the seat manufacturer, and the authorities to minimize the effects of this AD.

Several commenters requested that we revise the compliance times for removal of seats and seating systems that have sharp or injurious surfaces (specified in paragraph (g)(4) of the NPRM). ANA requested clarification of the sharp edge issue or limitation for use (TSO-C127 & TSO-C127a). ANA stated that in the case where the static test is performed without the sharp edge as the first confirmation test, it will be able to use the seat for 6 years. However, ANA stated that in case it performs the 16g test as the first confirmation test and finds sharp edges, the seat must be removed within 2 years. Based on the above, ANA considered that the current AD description has an inconsistency.

JAL stated that the NPRM requires that determination of compliance or removal of the non-compliant seats against the sharp or injurious surfaces criteria be accomplished within 2 years after the effective date of the AD for the seats approved under TSO-C127a. However, JAL suggested that since the compliance time for the dynamic testing requirements in section 25.562 of the Federal Aviation Regulations (14 CFR 25.562) would be 6 years once the seats have passed the static testing requirements in section 25.561 of the Federal Aviation Regulations (14 CFR 25.561), the compliance time to determine if there are sharp or injurious surfaces in dynamic testing should be 6 years for consistency with the dynamic testing.

JAL also stated the NPRM does not specify the requirements and method of compliance for the sharp or injurious surfaces. Accordingly, JAL requested that the FAA clarify those requirements and methods by specifying the applicable section(s) of the regulation(s) and/or providing clear guidance information.

We agree that the compliance time for removing seats and seating systems that have sharp or injurious surfaces should be revised. We have removed paragraph (g)(4) of the NPRM and added the determination of sharp or injurious surfaces to the actions specified in paragraphs (g)(1), (g)(2), (g)(3), and (h)(2) of this AD, as discussed previously. The compliance times in this AD are based on the relative risk to safety resulting from non-compliance with the different standards; it is acceptable that the sharp edge determination be correlated with the particular type of test (static or dynamic) being performed. Thus, we agree that both assessments should have the same compliance time.

As noted in the NPRM, the sharp edge determination can be made from photographic evidence of the original Koito tests. In addition, as noted above, the FAA will accept the determination of an FAA designee who witnessed the test(s).

Two commenters requested that we revise the compliance times for removing seats, seating systems, and components that are not compliant. ANA requested that if structural failure is found, then the compliance time for the required removal should be counted from the test confirmation date. JAL requested that the FAA consider revising the commencement date of the compliance time for removing seats, seating systems, and components that are not compliant from “the effective date of the AD” to “the date when the non-compliance is determined.”

We disagree. The commenters provide no technical justification for revising the compliance time for removal. Operators must comply with the actions in this AD within the compliance times specified in this AD in order to address the identified unsafe condition. However, under the provisions of paragraph (l) of this AD, we will consider requests for approval of an extension of the compliance time if sufficient data are submitted to substantiate that the new compliance time would provide an acceptable level of safety. We have not revised this AD in this regard.

ANA also asked to be excluded from the requirements of the NPRM by providing a plan to replace the seats within 10 years or sell the airplanes within 4 to 5 years.

We disagree. The commenter did not provide justification for its request. As stated previously, operators must comply with the actions in this AD within the compliance times specified in this AD in order to address the identified unsafe condition. However, under the provisions of paragraph (l) of this AD, we will consider requests for approval of an alternative method of compliance if sufficient data are submitted to substantiate that the new AMOC would provide an acceptable level of safety. We have not revised this AD in this regard.

Sami Kazi requested that we clarify whether the 2-, 3-, and 6- year compliance time requirements start after the 2-year compliance time specified in paragraph (g) of the NPRM. Sami Kazi stated that “For example if the AD is released on January 1, 2011 then the compliance findings must be completed by Dec. 31, 2012. Then 2, 3 or 6 years time periods of `Table—Summary of Proposed Actions and Requirements' start after Dec. 31, 2012.”

We agree to provide the following clarification of the compliance times. The compliance times in this AD for removing non-compliant seats, seating systems, and components do not start on the date of the compliance findings. All compliance times in this AD are measured from the effective date of the AD. For example, if an AD has a compliance time of “within 2 years after the effective date of this AD” and the AD has an effective date of July 1, 2011, the deadline for compliance for actions required within 2 years is July 1, 2013.

Boeing requested that paragraphs (g)(1) and (g)(2) of the NPRM be revised to ensure that TSO-C39b and TSO-C39c seats installed on airplanes having 14 CFR 25.562 as their certification basis are tested to the 14 CFR 25.562 regulations.

We disagree. We acknowledge that TSO-C39b and TSO-C39c seats that are installed on airplanes having 14 CFR 25.562 as their certification basis should be tested to the 14 CFR 25.562 regulations. However, we have not revised this AD in this regard at this time. Revising these actions would require the issuance of a supplemental NPRM instead of a final rule. To delay this action would be inappropriate, since we have determined that an unsafe condition exists and that the actions required by this AD must be conducted to ensure continued safety. We might consider further rulemaking to address this issue.

AAPA, China Airlines, EVA Airways, JTA, Singapore Airlines, and Thai Airways requested that we harmonize with EASA on the remaining time in-service for Koito seats. AAPA and China Airlines stated that EASA and FAA are widely recognized by national airworthiness authorities as leading regulatory authorities, especially in the areas of safety, type certification, and design. AAPA and China Airlines added that it is also well understood that the FAA's and EASA's jurisdiction covers only those air carriers operating aircraft on the U.S. Register and in the 27 countries in the European Union, respectively. AAPA, China Airlines, and JTA explained that it is common practice for airworthiness authorities to adopt either the EASA or FAA airworthiness directive; however, on implementing an AD, some regulators elect to apply an FAA AD to the Boeing fleet and the corresponding EASA AD to the Airbus fleet. AAPA, China Airlines, and JTA concluded that consequently, since there is a lack of harmonization between the FAA and the EASA proposed ADs, the end result will be a mixed standard fleet.

AAPA, China Airlines, JTA, and Thai Airways noted that, unlike the FAA's NPRM, the equivalent EASA PAD 10-101 will include a 10-year maximum limit on continued service of in-service seats, even after air carriers have successfully passed all test requirements. EVA Airlines stated that in the FAA NPRM, the seats may remain in service if they meet amendment level 25-64 of sections 25.562(b)(2) and (c)(7) of the Federal Aviation Regulations (14 CFR 25.562(b)(2) and (c)(7)). AAPA, China Airlines, and JTA argued that this difference is not driven by safety and is an unjustified cost burden. AAPA and China Airlines, and EVA Airways and JTA urged the FAA to ask EASA to remove this 10-year requirement to ensure harmonization.

Singapore Airlines requested that we recommend to EASA to allow seats to continue operation without limitation if they pass the confidence tests—similar to the FAA.

JCAB noted that harmonization efforts may be made to avoid possible confusion among authorities and operators of the countries and regions outside the U.S. and Europe. JCAB previously stated that it does not have any plan to issue its own AD because the FAA and EASA are in a better position to make fleet-wide risk analysis and to come up with possible fleet-wide actions.

We acknowledge the importance of harmonizing with EASA, and we have coordinated with EASA on our respective ADs. However, EASA's 10-year limiting requirement is a result of its regulatory requirements, and the FAA is not in a position to recommend changes to this. We have determined that seats, seating systems, and components that meet the FAA regulations specified in this AD do not need to be removed and, therefore, this AD does not have a 10-year limiting requirement. While harmonization is a goal, EASA is obligated to follow its own regulatory guidance. Given the age of many of the seats in service, it is arguable whether the EASA 10-year requirement will have a significant effect on airplanes affected by EASA's PAD. We have not changed this AD in this regard.

Several commenters requested that we extend the time for spare parts eligibility for installation specified in paragraph (h) of the NPRM.

AAPA, China Airlines, and JTA stated that since the announcement by the JCAB of the problems associated with Koito seats, all spare parts have been deemed not approved until Koito has finalized a recertification process. Furthermore, AAPA, China Airlines, and JTA stated that Koito is not permitted to make spares available even if it has them in stock. AAPA, China Airlines, and JTA stated that, as a consequence, air carriers are under significant pressure as they are unable to adequately support in-service seats, and sourcing of parts manufacturer approval (PMA) parts is a possibility, but not widely accepted. AAPA, China Airlines, and JTA pointed out that in order to support the requirements of the AD, spare parts are essential. AAPA, China Airlines, and JTA urged the FAA, EASA, and JCAB to determine the best way forward by agreeing on an approach that offers flexibility for air carriers to source spare parts.

Continental Airlines requested that the current inventory of spare parts be allowed to remain eligible for installation without additional testingfor two years from the effective date of the AD since the requirement for replacement components places an unreasonable burden on the operators to recertify or purge current inventory of spare parts within the timeframe specified.

We disagree with extending the time for spare parts eligibility for installation specified in paragraph (i) of this AD (referred to as paragraph (h) in the NPRM). However, we did intend to allow Koito seats and seating systems as “direct” spares for the same part number seats or seating systems based on guidance in the component maintenance manual (a “direct” spare has the same part number of the part it replaces). Therefore, we have revised paragraph (i) of this AD and a new Note 11 to add this exception and definition.

We have also added new paragraph (j) to this AD to allow re-arrangement of the existing installed seats if the re-arrangement follows the same installation instructions and limitations as the original certification. In addition, we have added new paragraph (k) to this AD to clarify the parts installation requirements for components of seats and seating systems (we had included components in paragraph (h) of the NPRM).

Under the provisions of paragraph (l) of the final rule, we will consider requests for approval of an extension of the compliance time if sufficient data are submitted to substantiate that the change would provide an acceptable level of safety.

Boeing stated many of the tests of the suspect seats were witnessed by FAA “delegates” (designated engineering representatives (DERs) or authorized representatives (ARs)); thus, the seats were already reviewed for sharp edges. Boeing also stated that even after DERs discontinued witnessing TSO tests, the photos from the tests were provided in the test report, which was provided to the installer. Boeing concluded that had any of the photos exhibited sharp edges, the AR would have questioned this and required additional data or tests in order to make the compliance finding on the installation. We infer that Boeing is requesting that we remove the requirement to determine if seats and seating systems have sharp or injurious surfaces, as specified in paragraphs (g) and (g)(4) of the NPRM.

We disagree with the request because determining if there are sharp or injurious surfaces is necessary to address the identified unsafe condition. Photographic evidence is not sufficient since often times it is not close enough and the angle can readily hide defects that are not a blatant failure. In addition, if testing was done at a lower pulse than required, the low pulse may not show a hidden defect that would have been evident at the required pulse. We have not changed this AD in this regard.

AEA, EVA Airways, and Koito requested that we revise the Costs of Compliance section of the NPRM. AEA stated that there are significant impacts and costs involved: hundreds of million of dollars in retrofitting seats including months—possibly years—of ground time if seats cannot be sourced. Koito stated that the NPRM not only underestimates the cost of the proposed AD, but in some cases acknowledges that the cost cannot be determined. Koito noted that the FAA did not appear to consider the replacement costs for seats, seating systems, and their components that are found to be non-compliant. Koito stated that the FAA should not ignore the costs of replacing seats, seating systems, and their components that are found to be non-compliant. EVA Airways stated the NPRM specifies a cost estimate of approximately $875,000 for 40,365 passenger seats installed on airplanes in the U.S. fleet. EVA Airways added that since there is no way to know how many tests will be done and how many seats will be modified or replaced, it is very difficult to estimate the exact cost of this NPRM; however, because the cost for one dynamic test is about $20,000 to $50,000, the NPRM estimate of $875,000 is low.

We do not agree to revise the Cost of Compliance section of this AD. We have included the estimated cost of the actions required by this AD, which is applicable to the U.S. fleet. The AD requires a determination and removal of non-compliant parts, and we have included those costs. While this AD does not require replacement we recognize that operators could choose to replace non-compliant seating systems. However, we are unable to make an assessment of how many seats would be required to be replaced based on the findings of the AD. We did provide an estimated cost of replacement seats in the table “Seat Replacement Cost Estimates” in the preamble of the NPRM and this final rule in the Costs of Compliance section.

We also do not consider it appropriate to attribute the costs associated with aircraft “down time” to the AD. Normally, compliance with the AD will not necessitate any additional down time beyond that of a regularly scheduled maintenance hold. Even if additional down time is necessary for some airplanes in some cases, we do not have sufficient information to evaluate the number of airplanes that may be so affected or the amount of additional down time that may be required. Therefore, attempting to estimate such costs would be futile. We have not revised this AD in this regard.

Koito requested that the NPRM be reviewed by the DOT and OMB, as required by Executive Order 12866 (“E.O. 12866”) (58 FR 51735, October 4, 1993) and Department of Transportation (“DOT”) Order 2100.5 (44 FR 11034, February 26, 1979). Koito stated that under DOT Order 2100.5, where a rulemaking “concerns a matter on which there is substantial public interest or controversy,” it should be classified as a “significant” rulemaking and receive DOT Office of the Secretary (“OST”) and Office of Management and Budget, Office of Information and Regulatory Affairs (“OMB-OIRA”) review, consistent with E.O. 12866. Koito stated that under DOT Order 2100.5, the FAA may only avoid cost-benefit analysis if it determines that the cost impact of the proposal is so minimal as to not require full review.

Koito stated that the FAA did not address the possibility that the NPRM may adversely affect in a material way a sector of the economy, which would have a significant impact and require further review. Koito added that this is true especially where, as in this case, the number of aircraft and airlines are potentially large, and where the direct and indirect effects, including any inadvertent effect on competition due to differences in approach in the AD requirements of EASA and the FAA, are unknown or not taken fully into account.

Koito noted that the FAA has witnessed very substantial public interest and controversy, not only in the comments filed to date, but in two widely attended public meetings in Cologne, Germany, and Singapore. Koito concluded that under these circumstances, it would appear appropriate to categorize this rulemaking as significant and in need of DOT OST and OMB-OIRA review.

China Airlines urged the FAA to recognize that the problem is not limited to U.S.-registered carriers and any AD will have global ramifications.

We do not agree that this AD requires a review by the DOT OST and OMB-OIRA because we have determined that this AD is not a `significant' rulemaking. ADs in general do not require an OMB review. However, when the cost of an AD exceeds $100 million and, therefore, is economically significant, we do coordinate the AD in accordance with all applicable DOT and OMB requirements. For the purposes of these requirements, the costs of an AD are based on the U.S. domestic fleet. For the purposes of the requirements, this AD has a total cost for the U.S. fleet of $875,000 and thus is not economically significant. In addition, ADs correct identified unsafe conditions, rather than raise the level of safety and cannot be assessed in terms of benefits balancing costs, as would be the case for amendments to the airworthiness standards. This AD does not have an annual effect on the U.S. economy of $100 million or more nor does it adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or state, local, or Tribal governments or communities; it does not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; it does not materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; and it does not raise novel legal or policy issues arising out of legal mandates, the President's priorities, or principals set forth in E.O. 12866.

We do recognize this AD could affect the non-U.S.-registered fleet if mandated by airworthiness authorities of other countries. However, this AD does not directly impact non-U.S. operators and, therefore, the cost review is not required for the non-U.S.-registered fleet. We have not changed this AD in this regard.

Airbus, AEA, ANA, Continental, JAL, JCAB, and Singapore Airlines requested that we provide guidance on testing seat cushions. Airbus requested that the NPRM define test pass/fail criteria and provide guidance on how the seat cushion could be tested per section 25.853(c) of the Federal Aviation Regulations (14 CFR 25.853(c)). Airbus stated its concern that it is impossible to prepare a test article per Appendix F of part 25 of the Federal Aviation Regulations (14 CFR part 25) without gluing parts of the cushion. Airbus concluded that an in-service test cushion is likely to have degraded flammability characteristics and, thus, is not able to pass requirement criteria.

AEA and ANA stated that the flammability test of cushions cannot be accomplished by using a cushion removed from an in-service seat and added that there are no test criteria for the use of used cushions. AEA requested that we provide a practical means to allow operators and type certificate holders to conform and procure foam test samples. AEA added that an operator should be allowed to deviate from the test criteria. ANA also added that testing is not feasible because it cannot obtain the correct results due to effects of the material aging and could result in new cushions (made per Koito drawings) being used for the test.

Continental requested that we work with the JCAB and Koito to determine the specific part numbers or foam compositions in question that led to this requirement being applied across all seat models. Continental stated that the NPRM should identify the flammability concerns by seat model and only those models with questionable oil burn data should be included in the NPRM.

JAL stated that the used cushions (cushions returned from service) should not be used for the testing campaign and newly fabricated seat cushions that conform to their original TSO design should be used instead for the following reasons:

• Used cushions do not represent the new ones due to contamination and/or deterioration and/or compression while in service;

• Cushions vary in condition;

• Due to its complexities of constructions and natures of used materials, it may be impossible to fabricate the required quantity of consistent test samples by using an actual cushion (by “cut and bond” method); and

• Since the condition of each used cushion could be different and no clear criterion for representative samples has been specified, conformity determination of each cushion for testing cannot be accomplished.

JCAB stated that the burden on affected operators should be minimized because operators are not expected to have in-depth technical knowledge about certification of seats or seating systems. JCAB noted that it is extremely important to have technical support from the airplane manufacturer. JCAB also stated that one of its efforts is to advise and supervise Koito in conducting re-testing of in-service models. JCAB expressed its firm belief that the result of the re-testing of in-service seat models by Koito is technically acceptable and should be fully utilized by the affected operators in showing compliance with the requirements of the NPRM.

NCA stated that the results of the tests currently underway by Koito should be considered valid because the test is being done under JCAB supervision and is in accordance with FAA requirements.

JCAB said that without data derived from re-testing, operators would have difficulty certifying seats or seating systems and completing all necessary re-testing within the 2-year compliance time, which could result in operators needing to ground airplanes from which seats are removed for re-testing. JCAB also stated that the use of in-service seats for re-testing is not technically fair, since the requirements cited in the NPRM are for newly produced test articles. JCAB added that the performance of used seats is degraded and cannot be at the same level as newly produced test articles. JCAB also stated that even if the test results are good, there may be no seats to re-install on the aircraft from which the tested seats were removed because after the testing, the seats may be deformed.

JCAB stated the proposed test for flammability is too stringent and needs improvements, including adding background information. JCAB requested that we provide more clarification on how the requirements of the NPRM can be met so as to make the process more efficient and effective. JCAB stated that it is necessary to have guidance on how the number of tests can be minimized. JCAB also questioned if, for seats with TSO-C39a approvals, it would not be necessary to do the flammability test that was introduced in TSO-C39b.

Singapore Airlines stated that we need to provide better clarity of test instructions, such as approval of test planes, if there is a need for authorities to be present during testing and to accept test results. Singapore Airlines recommended that the FAA and EASA set up a mechanism for airlines to work with EASA or the FAA through the operators' local civil aviation authorities for approving a test plan, witnessing, and reviewing test results to testify compliance to the FAA NPRM and EASA PAD.

Singapore Airlines stated that in-service seat cushions could be contaminated and are therefore not representative of initial flammability certification conditions. The commenter recommended that new test cushion coupons that are built according to the approved drawings for testing be used.

AEA, AAPA, China Airlines, Continental, JCAB, Singapore Airlines, and Thai Airways requested that we allow data from new-build test articles to be used.

AEA and Continental stated that the JCAB determined that metallic parts were not affected by the discrepancies with Koito seats, and therefore the dynamic/static tests performed on new seats that were produced in accordance with the production drawing should also be accepted. AAPA, China Airlines, JCAB, Singapore Airlines, and Thai Airways stated that no problems have been identified related to the metallic parts provided by suppliers and used in the construction of Koito seats. Several commenters also noted that the results of tear-down inspections have demonstrated that there were no significant differences. Thai Airways also stated that the JCAB has been able to confirm all production drawings were retained by Koito and checked for conformity and all design changes made to each in-service seat model have been identified, checked, and analyzed.

Thai Airways stated that the FAA, EASA, and JCAB should update all data for seat testing results together in order to initiate clear and concise instructions and to support operators in decreasing the number of applicable seat part number testing to ensure the seat integrity of in-service seats.

Koito respectfully requested that its testing efforts and results be effectively reflected in the AD. Koito stated this would facilitate and expedite compliance by airline operators with the AD requirements, without compromising safety.

We agree to provide guidance on seat cushion testing. Evaluation of the Koito oil burner test has determined that the facility did not comply with the requirements of Appendix F, part II, of part 25 of the Federal Aviation Regulations (14 CFR part 25). Although other civil airworthiness authorities are not required to follow U.S. regulations, the flammability rule affects U.S. operators and was developed based on survivable accidents in which there was loss of life. The retrofit for all transport category airplanes operating under parts 121 and 135 of the Federal Aviation Regulations (14 CFR 121 and 14 CFR 135) required fire-blocked seat cushions in accordance with this flammability rule. When TSO-C39b was issued, seats and berths approved prior to the issuance of the TSO were allowed to be manufactured under the provisions of their original approval. However, a specific exception was identified. This exception was that the seat cushions must comply with section 25.853 of the Federal Aviation Regulations (14 CFR 25.853), including the requirements of section 25.853(c) of the Federal Aviation Regulations (14 CFR 25.853(c)), and Appendix F, part II, of part 25 of the Federal Aviation Regulations (14 CFR part 25). The retrofit of the entire U.S. fleet was accomplished in 3 years.

We have added Notes 3 through 10 to this AD to provide some guidance on testing. The guidance includes allowing for new-build test articles (with in-service article conformity), test plans, and test reports, which must be presented to the FAA for approval. Test data from new-build test articles can be used to demonstrate compliance to the static requirements of the AD. Test data from new-build test articles can also be used for the flammability requirements in combination with conformity of in-service seat cushions. Any difficulties encountered with test articles and resultant interpretations can be discussed with the FAA. Consideration will be given to aging effects on test results.

AEA, ANA, Continental, EVA Airways, JAL, Koito, and V Australia requested that newly manufactured seats produced in accordance with Koito drawings be used as a representative case of in-service seats.

JAL stated that use of newly produced seats should be accepted for testing. JAL stated that, in its presentation in the Singapore meeting, JCAB confirmed the results of the tear-down inspection; the results indicated that using seats that conformed to the production drawings would have no significant differences that could impact the testing. Furthermore, JAL stated that conformity determination of each seat for testing cannot be accomplished since the condition of each seat in service could be different.

We partially agree with the commenters. We have added Note 4 and Note 8 to this AD to clarify we will allow the test of new-build test articles in lieu of in-service seats for the static requirements in section 25.561 of the Federal Aviation Regulation (14 CFR 25.561). However, for the dynamic requirements in section 25.562 of the Federal Aviation Regulations (14 CFR 25.562), the in-service seats will still be required to be tested, as non-conformities in production cannot be adequately represented.

Also, we cannot accept all Koito data obtained under JCAB oversight because of several factors including the fact that the maximum weight of all the seats in a group was not tested. In addition, the results of the re-testing of seat cushions for flammability at the Koito laboratory are invalid due to non-compliance of the test facility.

Copa Airlines, EVA Airways, and JAL stated there are no step-by-step service bulletin or OEM instructions and that the NPRM should include clear guidance on means of compliance, work instructions, and/or requirements for facilities to conduct the tests.

NCA requested that a service bulletin be issued, and that the AD should refer to the service bulletin. NCA stated that operators are not in a position to take responsibility for the manufacturer and that Koito should issue a service bulletin. China Airlines stated that for “regional airworthiness authorities” to provide effective oversight, comprehensive accomplishment instructions should be provided instead of the high-level requirements in the NPRM.

We do not agree that waiting for a service bulletin to be issued is appropriate. There are many entities in industry that are able to determine if the seats comply with the AD. An operator may outsource this determination. We do not consider that delaying this action until after the release of a manufacturer's service bulletin is warranted. To delay this action would be inappropriate, since we have determined that an unsafe condition exists and the actions required by this AD must be performed to ensure continued safety. We have not revised this AD in this regard.

JCAB requested that we consider the data found in Koito computers. JCAB added that raw data, mainly dynamic tests, are stored in computers of Koito and because those data are not believed to be falsified, with technical analysis those data may be used to show compliance with the proposed requirements of the NPRM, if certain conditions are met.

We do not agree that the data found in Koito computers should be used to show compliance with this AD because we cannot confirm the validity of the data at this time. However, if additional data are provided that confirms the validity of the data, we will consider the data. We have not revised this AD in this regard.

AAPA, ANA, China Airlines, Eva Airways, JAL, JTA, NCA, and Singapore Airlines requested that we allow identifying seats by grouping or family. Several commenters questioned who will do the identification. EVA Airways indicated that operators are not capable of identifying seat models by groups to enable testing by similarity to reduce cost, and requested that EASA and the FAA work with Airbus and Boeing to group seats. Thai Airways stated that the number of sampling seats in each applicable part number to be selected for testing has not been defined.

AAPA, China Airlines, and JTA requested that we modify the NPRM to clearly indicate that a collective approach by airlines is an acceptable approach to responding to the requirements of the AD. AAPA stated that such an approach would allow air carriers in coordination with airframe manufacturers to carry out a sampling of seat family/models and the resultant data would then be considered as acceptable justification to demonstrate compliance to the NPRM.

JAL stated that since the airlines/operators cannot accomplish their tasks without technical support from the airplane manufacturers, especially in cases where a seat family extends between operators and between the manufacturers, it requests that the FAA clearly define the airplane manufacturers' roles. Furthermore, JAL stated that if the FAA expects Koito to take any roles, those roles should also be specified in the NPRM. JCAB noted that it is in a position to assist operators in complying with the NPRM.

We agree with the commenters and confirm that seat grouping will be allowed to show compliance with the AD; work is ongoing by the type certificate holders to define seat groups. However, we have not revised this AD to specify how and who should do the work. It is expected that the type certificate holders or suitable qualified organizations can assist in the clustering of seat models. Seat model grouping is not essential for compliance with the AD, but is recognized by FAA as a means to reduce the economic burden.

AEA, Airbus, ANA, and EVA Air requested we provide guidance on how to perform a conformity inspection of the seats.

We disagree with revising this AD to include instructions on conformity inspections because there are numerous ways to accomplish this, and we want to provide flexibility for operators. This AD requires the determination for compliance with certain FAA regulations of seats, seating systems, and components in accordance with a method approved by the FAA. We will provide guidance during the FAA review and approval of the test plans submitted. Changes to the design might have occurred between when the product was accepted for a TSO and when production started. A simple instruction to establish conformity through comparison to the component maintenance manual is not a sufficient way for operators to determine airworthiness. We have not revised this AD in this regard.

AAPA, AEA, ANA, China Airlines, Continental Airlines, JAL, JTA, JCAB, Koito, and Boeing requested that the TSO certification level be commensurate with the testing requirement at the time of the original aircraft type certification.

AEA stated that operators should only be obliged to comply with the original type certification basis of the aircraft. AEA also stated that testing the seats to the latest or later requirements cannot be justified and would increase the risk of failures dramatically as the original seat design would not allow for this.

JAL stated that the NPRM requires the airlines/operators to determine compliance with the latest static structural requirements under section 25.561(b) of the Federal Aviation Regulations (14 CFR 25.561(b)) at Amendment 25-64. However, JAL and AEA stated that the side load factor defined in section 25.561(b)(3)(iii) of the Federal Aviation Regulations (14 CFR 25.561(b)(3)(iii)) should be consistent with the airplane certification basis because “new” seats were tested to 4g requirements at Amendment 25-64 of that regulation, whereas the “old” seats were tested to 1.5g requirements at Amendment 25-23 or 25-0 of that regulation in the course of original TSO design approvals.

JCAB questioned whether it correctly understands that re-tests can be conducted in accordance with the certification basis of airplanes/seats. JCAB noted that for older airplanes/seats, the side load requirement in static seats is 1.5g, while the newer requirement is 3g/4g. JCAB also noted there is a -2g pulse shape introduced in TSO-C127a.

Koito stated that a more appropriate level of compliance for the requirements of the NPRM would be to the certification basis of the aircraft or a higher amendment level, whichever an affected operator chooses. Koito noted that it took the FAA 17 years to finalize the regulations at Amendment 25-64 (to address retrofitting), in large part because of technical difficulties in certifying seats to the 16g standard, which were more sophisticated and complex than 9g seats. Koito pointed out that when the regulations at Amendment 121-315 were adopted, it required full compliance only for new production airplane models. Therefore, Koito submits that requiring compliance to the most recent amendment levels is not supported and is inconsistent with the FAA's approach to addressing retrofitting aircraft to the higher standards at Amendment 25-64 of the regulations. Alternatively, Koito stated that an airplane may have a certification basis that does not include section 25.562 of the Federal Aviation Regulations (14 CFR 25.562) and requested that the FAA relieve the requirements of sections 25.562(b)(2) and (c)(7) of the Federal Aviation Regulations (14 CFR 25.562(b)(2) and (c)(7)).

We partially agree with the commenters. We agree that certain TSO seats can be tested at the level that the TSO was issued. We have revised paragraph (g)(1) of this AD to clarify the certification basis. For TSO-C39b and TSO-C39c seats, the certification basis when determining (testing) if the seats meet section 25.561 of the Federal Aviation Regulations (14 CFR 25.561) is the certification basis of the TSO; however, for TSO-C127a seating systems, the testing remains the same.

Boeing also requested that a note be added regarding pulse shape to allow the use of the pulse shape that was acceptable at the time of TSO approval or type certification or supplemental type certification.

We disagree with Boeing's request that a note be added regarding pulse shape to allow the use of the pulse shape that was acceptable at the time of TSO approval or type certification or supplemental type certification. The current criteria for the pulse shape meets the original intent of section 25.562(b)(2) of the Federal Aviation Regulations (14 CFR 25.562(b)(2)).

AEA requested that we accept the use of Koito interface loads reports for theanalysis to determine which seats are tested. AEA stated that if structure testing is to be conducted for showing compliance with the applicable portions of the NPRM, one method to determine the “critical” seat(s) for testing is mentioned in Appendix 3 of FAA Advisory Circular 25.562-1B, dated January 10, 2006. AEA stated that one element in this determination is taking into account the highest loaded seat leg of a seat within a “family of seats,” which can be concluded from the calculated interface loads for those seats. AEA noted that since falsification involved “static, dynamic and flammability testing, as well as uncontrolled changes to production data (material and dimensional),” we accept the use of Koito Interface Loads Reports for the analysis to determine for which seat(s) testing is required.

We agree that the use of Koito interface loads reports may be acceptable for the determination of compliance to FAA regulations required by this AD. We note that the use of advisory circular material may be allowed, thus Koito analysis of interface loads may be allowed. We have added this information to Note 6 of this AD.

Several commenters requested we allow testing to be done at lower testing requirements. AEA requested that all seats that pass the 9g requirement can remain in service. AEA stated that according to the NPRM, seats with a 16g certification basis that fail the 16g test are required to carry out a 9g test, and receive a 6-year grace period if the test is passed. AEA stated that during the 16g rulemaking it was determined that the 16g rule was not made retroactive to seats that met the earlier 9g certification basis. Therefore, AEA stated that all seats that pass the 9g test have shown compliance to the minimum standard and can therefore remain in service.

ANA stated that 16g seats (TSO-C127a) may be installed on an airplane that itself does not have a 16g requirement. ANA asked that the 9g confirmation test be considered sufficient.

We disagree. This AD requires compliance with certain provisions of the TSO. If a seat is TSO-C127a then the requirements of that TSO apply. In addition the FAA's operational and airworthiness regulations do not allow a downgrade of the certification basis of airplanes to an older standard. We have not changed this AD in this regard.

Also, Boeing stated that the certification basis of various models of airplanes is different regarding the static side load case. Boeing stated that airplanes (such as Boeing Model 747-400 and 767-300 airplanes) have a certification basis lower than the standards at Amendment 25-64 of the regulations, and as such, a 1.5g side load would be appropriate.

We disagree. A seating system that is approved under TSO-C127a must also meet section 25.562 of the Federal Aviation Regulations (14 CFR 25.562), even if the airplane has a lower certification basis. We have not changed this AD in this regard.

AEA requested that we waive the Bunsen burner requirement when operators elect to perform a complete re-qualification program, as mentioned under Note 1 of the NPRM. AEA stated that during the question and answer session in Cologne, it was stated that relevance of Bunsen burner test results is negligible and that absence of such test data does not lead to an unsafe condition.

We disagree. The comments made by EASA and FAA during the meeting in Cologne might need further clarification. It was not stated that compliance with section 25.853(a) of the Federal Aviation Regulations (14 CFR 25.853(a)), commonly referred to as the Bunsen burner test, has no influence on the determination of the unsafe condition. It was stated that Bunsen burner testing is not a required element of the flammability tests to show compliance to this AD. If requalification is chosen, showing compliance with all aspects of the applicable TSO is required in accordance with part 21 of the Federal Aviation Regulations (14 CFR 21). We have not changed this AD in this regard.

Airbus, AEA, APA, Boeing, China Airlines, JAL, JTA, Koito, and Thai Airways requested that we clarify when re-installing seats after removal or reconfiguration is allowed. Airbus requested that we allow provisions for filling the gap in the cabin following removal of seats for confidence tests (by allowing production and installation of complete seats of the same design) or allow reconfiguration of the cabin without full requalification of the seats. Koito agreed with Airbus that we should allow provisions for filling the gap. Thai Airways stated that after removing seats for testing, there are no instructions to address deviations from the aircraft configuration type certificate.

Boeing requested that we clarify the text in the “Limitations on Seats Found Not to Be Fully Compliant, but Are Safe to Remain in Service” section of the preamble of the NPRM because a couple of sentences conflict with each other. Boeing stated that one sentence would allow the use of direct spares (i.e.,same part number) to be re-installed in an airplane, but a different sentence specifies that any removed seat is to be destroyed. Boeing stated this would mean that no spare seat would exist, as indicated by the earlier sentence. Boeing suggested the section include “unless retained as a direct spare as noted above. The direct spares can be re-installed in any previously certified layout using that seat part number.” Boeing recommended the paragraph read as follows:

Boeing stated that the additional text clarifies that the airlines can continue to re-configure their airplanes from, for example, their previously certified summer layout (with lots of economy class) to their previously certified winter layout (with less economy class) and vice-versa.

Boeing also recommended we clarify that re-configuration is acceptable and suggested adding the following text:

Boeing stated that although re-pitching is not a simple solution, removing a seat for testing without allowing for a solution produces a “hole” or unused space in the airplane. Boeing noted that the re-pitch will be equally as safe as the seats were before the removal of the test seat and, in addition, leaving a “hole” or unused space in the airplane leaves passengers without tray tables (which were seat-back-mounted on the removed seat). Boeing further stated that the “hole” also leaves the electrical daisy-chain interrupted, which eliminates reading lights, attendant call, and in-flight entertainment (IFE) to the seat assemblies beyond the missing one.

AEA and Koito stated that the preamble of the NPRM states the seats that pass the test and remain on the airplane are “limited on how they can be used.” AEA also stated that the FAA has clarified this means that seats have to remain in the currently approved configuration and cannot be changed, moved, or re-pitched. AEA noted that in order to remain competitive in today's changing market, it is essential for operators to have the ability to amend the configuration of their aircraft to suit the market needs. AEA, AAPA, and China Airlines requested that the FAA clarify the wording so that operators would be allowed to reconfigure airplanes containing Koito seats. Koito stated that it echoed the concerns raised by AEA. AEA provided the following justification:

• Seats that have passed the confidence test will have been shown to be safe.

• Certain reconfigurations may actually improve safety.

• Reconfigurations are usually supplemental type certificates (STCs); in addition, all changes (including minor) related to Koito seats are FAA-approved.

• FAA has previously stated that Koito data are approved.

• In order to provide test specimens, some operators will need to remove seats from in-service airplanes, and this will leave a large gap in these aircraft unless the remaining seats can be re-pitched.

Koito stated that preventing operators from reconfiguring seats that are part of a supplemental type certificate would be unnecessarily restrictive and would provide no safety benefit—nor would it be necessary to correct a potential unsafe condition.

JAL requested that the FAA accept the use of newly produced seats to fill in gaps left by seats removed for testing in case newly produced seats are not allowed for testing.

We agree to clarify when seats and seating systems can be installed and rearranged. We have added a new Parts Installation paragraph (paragraph (j) of this AD) to allow certain reconfigurations. We will consider allowing reconfiguration within the same installation instructions and limitations as the original certification. Operators may request approval of an AMOC in accordance with the procedures specified in paragraph (l) of this AD. We have not revised the “Limitations on Seats Found Not to Be Fully Compliant, but Are Safe to Remain in Service” section because that section of the NPRM is not restated in this final rule.

JAL requested the FAA accept the use of newly produced seats to fill gaps left by seats removed for testing in case newly produced seats are not allowed for testing.

Boeing requested that the following be added to the “Replacement Components” paragraph in the preamble of the NPRM:

“* * * Entire seat assemblies may also be produced and installed to explicitly replace any seat removed from the fleet for testing under this AD.”

Boeing stated that removing a seat for testing without allowing for a new replacement seat assembly to be produced leaves a “hole” or unused space in the airplane. Boeing stated the replacement seat will be identical, or at least representative of the one removed for testing, which achieves an identical or representative level of safety between the newly installed seat and others on the airplane.

Additionally, Boeing reported that leaving a “hole” or unused space in the airplane leaves passengers without tray tables (which were seat-back-mounted on the removed seat). Boeing noted the “hole” also leaves the electrical daisy-chain interrupted, which eliminates reading lights, attendant call, and IFE to the seat assemblies beyond the missing one.

We agree. The FAA's intent is to allow new Koito seats with the same part number to be installed to replace in-service seats used as test articles. We have revised paragraph (i) of this AD to clarify this issue by specifying that seats and seating systems may be removed from service and re-installed and that new seats and seating systems may be installed as direct spares for the same part number seats or seating systems. The new Koito seats and seating systems are subject to this AD.

AEA requested that we consider what to do if there is a minor failure of the seats. AEA stated an example is a seat experiencing a `minor' failure of a structural test. AEA stated in the case where a 9g seat is tested the NPRM implies that if it fails in any way it would require replacement in 2 years. AEA requested that a logical, safety-based approach be applied to tests and a maximum allowed grace period be granted should a failure be deemed as minor.

We disagree that there is such a thing as a `minor' failure. Existing pass/fail criteria already include consideration of the amount of damage that is considered a failure and these criteria continue to be valid. This AD requires that a determination be made to ensure that seats, seating systems, and components are compliant with certain regulations and removed if necessary. The compliance time for removal is dependent on the failure criteria as identified in the AD. AEA stated that replacement is required; however, this AD only requires removal of seats, seating systems, and components that are non-compliant. We have not revised this AD in this regard.

Two commenters requested that we allow alternative action for “replacement.” Thai Airways stated that remedial action does not exist if seats fail the test and the only recommendation is replacement. ANA requested that we allow modification to comply with the NPRM.

We do not agree. Seats, seating systems, and components that are non-compliant must be removed, as required by the AD. However, under the provisions of paragraph (l) of this AD, we will consider requests for approval of an AMOC if sufficient data are submitted to substantiate that the new methods would provide an acceptable level of safety. We have not revised this AD in this regard.

AEA requested that we confirm and clarify that a 100% conformity inspection of all seats installed is not required and that based on analysis the recertification of a representative test article is acceptable. AEA stated that according to Note 1 of the NPRM, it must be determined if the seats and seating systems and their components are compliant with FAA regulations. Note 1 refers to recertification,i.e.,re-qualify to the TSO.

We agree to clarify this issue. We confirm that 100% conformity of the in-service fleet is not required to comply with the AD in most cases because a sampling approved by the FAA will be allowed. The AD does not require re-qualification of the seats and seating systems, which would involve showing compliance with all aspects of the applicable TSOs, such as measurement and reporting of permanentdeformations and lumbar load requirements. The AD requires a determination if the seats are compliant to the specific requirements set forth in the AD.

Several commenters requested guidance on replacement cushions. AEA requested that we allow similar bottom cushions to be accepted instead of tested. AEA stated that according to paragraph (g)(2) of the NPRM, for seating systems approved under TSO-C127a, dynamic testing is limited to a 16g forward load condition; however, strict adherence to the referenced guidance of FAA Advisory Circular 25.562-1B, Appendix 3, paragraph 9 (reference paragraph (g)(5) of the NPRM) would require conducting a 14g down lumbar load test, if the original bottom cushion material (i.e.,foam) is not available for the manufacturing of replacement cushions. AEA stated that since it is accepted that in-service seats might not meet the 14g down lumbar load requirement, it would be unreasonable to require the showing of full compliance with this part of the regulations in case an operator is forced to replace bottom cushions because of non-compliance with the oil burner test or because spare cushions cannot be obtained.

Therefore, AEA requested that we accept similar bottom cushions with respect to stiffness and density (measured according to accepted industry standards) to show that the performance of a replacement bottom cushion is not worse than that of the in-service cushion.

ANA noted that in paragraph (g)(5) of the NPRM, the reference for the replacement is AC 25.562-1B; however, this is for a TSO-C127a seat only, and not for TSO-C39b and TSO-C39c seats. ANA requested that we revise this reference.

We agree that the requirement for replacement cushions is too restrictive for certain seating systems. We revised paragraph (g)(4) of this AD (referred to as paragraph (g)(5) in the NPRM) to clarify that the requirement is only for seat cushions affected by FAA Advisory Circular 25.562-1B, dated January 10, 2006 (i.e.,seat cushions replaced on airplanes required to meet section 25.562 of the Federal Aviation Regulations (14 CFR 25.562) either by their original certification basis or post-type certificate modifications). We have also clarified that compliance with section 25.562(c)(2) of the Federal Aviation Regulations (14 CFR 25.562(c)(2)),i.e.lumbar load, does not need to be shown.

Boeing requested that we add Note 4 after paragraph (g) of the NPRM to provide information that pass/fail criteria for cracks may be acceptable on a case-by-case basis,i.e.,front fitting acceptable, rear fitting not acceptable.

We disagree. This information is not necessary to comply with this AD. Guidance on acceptable damage is contained in Advisory Circular 25.562-1B. We have not changed this AD in this regard.

Boeing requested that a note be added as follows: “If the test article consists of a seat from the fleet (or from spares), conformity should consist of matching the seat part number to that noted in the test plan, of noting the general condition of the seat, of noting revisions/modifications that have been made to the seat (typically noted on modification placards), and of verifying the date of manufacture.”

We agree with the intent of the suggestion. We have added Notes 5, 6, 9, and 10 to this AD to provide guidance.

AEA requested that we specify specific cushions in paragraph (g)(5) of the NPRM. AEA requested that although not explicitly mentioned in paragraph (g)(5) of the NPRM, the FAA should limit the applicability of this paragraph to seat bottom and seat back cushions only, as these represent the majority of foams on the seats. AEA stated that legrest cushions and headrest cushions are significantly smaller when compared to bottom and back cushions. AEA added that it is nearly impossible to manufacture representative test sample sets of these small-sized cushions on in-service seats.

We agree to specify cushion types. Headrest and legrest cushions typically have much less mass than bottom and back cushions. While the requirements of section 25.853(c) of the Federal Aviation Regulations (14 CFR 25.853(c)) also apply to headrest and legrest cushions, non-compliance of these types of cushions would not have as much effect on safety as would non-compliance of the bottom and back cushions. We have determined that addressing only bottom and back cushions provides an adequate level of safety. We have revised paragraph (g)(4) of this AD to specify that seat bottom and seat back cushion assemblies must be shown to be compliant as specified in the AD.

Singapore Airlines requested that we work with EASA and the JCAB to harmonize parts replacement to facilitate Koito's production and shipment of spares to airlines. Singapore stated this is especially important to airlines that expect to continue operations with Koito seats if their seats pass the confidence tests stipulated by EASA and the FAA. Singapore stated that without JCAB's approval for Koito to produce spare seats for replacement of in-service seats for the confidence testing, airlines might end up with a “hole” in the airplane (impacting IFE systems and wiring), having to approve a new configuration, having seats destroyed during testing that cannot be re-installed, and having a commercial impact that may affect route performance and viability.

Thai Airways stated that Koito could manufacture seats and seat accessories according to FAA TSO and deliver them to the operators as spare parts. Thai Airways requested we coordinate with the JCAB to clarify and reconsider authorizing export of those seats as spare parts.

As previously stated it is the FAA's intent to allow new Koito seats with the same part number to be installed to replace in-service seats used as test articles. However, we do not have authority over the production approval of Koito spare parts. JCAB is the authority and they are aware of this issue. We have not revised this AD in this regard.

The JCAB requested that we allow the replacement of non-conforming seats. The JCAB stated that if operators chose to correct non-compliance found during the determination (testing) specified in the NPRM, the seats in question have to be modified so they fully meet all applicable requirements. The JCAB stated that there would be Koito seats that comply with the requirements of the NPRM while not meeting the full requirements under Part 25 of the Federal Aviation Regulations (14 CFR 25); and there would also be seats that failed to comply with the NPRM requirements and would require modifications to achieve compliance with the NPRM requirements. The JCAB noted that after the modifications, the latter seats are at the same level of safety as the former seats and, therefore,should be allowed to continue operation without further actions. The JCAB argued that requiring the full compliance for the latter seats is not fair, and it may be more reasonable if operators are allowed to continue to use seats that are modified.

We disagree. This AD requires determining if the seats and seating systems and their components are unsafe, based on the failure to comply with certain key performance standards in the TSO. As clarified in Note 1 of this AD, this determination may be made by independent re-qualification of the affected TSO article that has thorough control of the design and production process. Seats and seating systems that fail the determination (tests) required in the AD will be subject to the associated limitations. Any future design change to the seats or seating systems requires full re-certification of the seats or seating systems. We have not revised this AD in this regard.

Boeing requested that we add a note allowing the use of re-designed parts to be installed after test failure. Boeing stated that retrofitting an entire family of seats with a new design is perceived as a quicker path to safety and is non-punitive to airlines.

We disagree that such a note in the AD is necessary. Seats and seating systems that fail the determination (tests) required in the AD will be subject to the associated limitations. Any future design change to the seats or seating systems requires full re-certification of the seats or seating systems. We have not revised this AD in this regard.

ANA and JAL requested that we harmonize with EASA on replacement parts. JAL commented that the FAA NPRM requires that replacement parts meet applicable airworthiness requirements, whereas the EASA PAD requires replacement parts to be compliant with the requirements of the AD. JAL requested that the NPRM reflect compliance similar to the EASA PAD since operators might have to conduct further testing to show compliance with requirements other than flammability and injury prevention provisions. Accordingly, JAL requested that the FAA consider revising the requirements for the replacement parts so they are consistent with the ones in the EASA PAD. JAL noted that airlines/operators might have to conduct further testing to show compliance to regulations other than the flammability and injury prevention provisions. ANA stated there are differences regarding parts replacement between the FAA and EASA, and ANA requested the use of the EASA description.

We disagree. We cannot harmonize on this issue because EASA has a proposed 10-year removal date whereas the FAA does not. Since our AD allows seats, seating systems, and components that are compliant to remain on the airplane, our AD refers to the applicable airworthiness requirements for replacement parts. We have not revised this AD in this regard.

Several commenters requested that we allow the replacement of actuators, hydrolocks, and other structural parts. ANA stated that after the AD is effective, the AD requires that replacement parts comply with the requirements of the AD. ANA added that for the structural member, basically the new part is obviously much healthier than the existing one (installed on seat). ANA concluded that it is not necessary to include requirements for the spare (replacement) parts, including an actuator, a hydrolock, and so on, which are the standardized manufacturing parts.

JAL stated that it is currently proposed that only wear-out components and non-structural members may be manufactured and installed on the seats affected by the NPRM. JAL requested that we consider exempting the mechanical reclining control actuators even though they may be part of structural members. JAL stated the actuators are a type of wear-out component replaced often during maintenance. JAL added that the ones used on the Koito seats have many suppliers, their quality and performance were unlikely to be adversely affected by falsification, and the replacement of actuators improves, not degrades, the performance of existing seats.

Koito stated that the NPRM provides only for the replacement of wear-out component parts, such as food trays, arm rest covers, and non-structural members. Koito stated that this strict limitation may be disproportional as the replacement of certain parts of in-service seats can ensure appropriate safety levels while allowing the airlines to extend the use of these seats without having to replace them. Thus, Koito suggested including an explicit section in the NPRM describing possible avenues for airlines to upgrade seat performance (e.g.,through service bulletins and kits developed by Koito) to ensure they meet the safety requirements foreseen in the NPRM. Koito considered this would adequately ensure safety performance, while minimizing the burden on airlines.

We partially agree. We disagree with the ANA request to allow other structural parts “and so on” because ANA did not list specific parts. We agree that certain parts may be allowed. The intent of this AD is to allow Koito spares based on guidance in the component maintenance manual. Seat cushions would need to be in compliance with the AD. A seat, seating system, or component that fails the determination (tests) required in the AD is subject to the associated limitations. Any future design change (such as upgrade kit and associated Koito service bulletin) would require full re-certification of the seat.

EVA Airways commented that the NPRM contains inconsistent statements. EVA Airways stated that the NPRM reads that as of the effective date of this AD, a seat, seating system, or component may be re-installed on the airplane from which it was originally removed, provided it is removed from service within the applicable compliance time specified in this AD. EVA Airways also stated that the NPRM specifies these seats can be used as direct spares for the same part number seats. We infer that the commenter is requesting clarification of the limitations on seats, seating systems, and components remaining in service.

We agree to provide clarification. As specified in paragraphs (i) and (k) of this AD, a seat, seating system, or component that is removed to conduct testing can be replaced with a newly built part of the same part number or a used part of the same part number. All seats, seating systems, and components, whether new or used, must be in compliance with the AD within the appropriate compliance times of the AD.

AEA requested that we revise paragraph (h) of the NPRM. AEA commented that paragraph (h) of the NPRM is very restrictive to operators who cannot obtain spare parts. ANA stated that it did not have spare seats based on the fact that there are many seat part numbers. Koito agreed with AEA that this provision is very restrictive and stated that such a significant limitation would prevent reconfiguration of airplanes containingKoito seats. AEA requested that the wording of paragraph (h) of the NPRM be amended to allow non-compliant seats and their components to be used as direct spares for the same part number seat or component as follows:

We do not agree to allow installation of seats, seating systems, and components as direct spares between other airlines and authorities. The intent of paragraphs (i) and (k) of this AD (referred to as paragraph (h) in the NPRM) is to limit the introduction of known bad parts into the worldwide fleet. Non-compliant seats, seating systems, and components are subject to the limitations of the AD. However, we have revised paragraphs (i) and (k) of this AD to allow installation of parts as direct spares on another airplane for a given operator, provided the operator complies with the requirements of the AD.

Boeing requested that we revise the “Data the FAA Will Accept to Demonstrate Compliance with the Proposed AD” section of the preamble of the NPRM. Boeing suggested that we replace the wording “* * * As noted above, tests conducted as part of the JCAB investigation may be acceptable if the conformity of the seats in service can be verified” with the wording “* * * Tests conducted as part of the JCAB investigation are acceptable if the seat model in question is part of the family of the tested seat and if the tested seat included the highest loaded leg * * *” Boeing stated that the JCAB reported that falsification of data did not relate to the structural components of the seat and, as such, testing of test articles that are manufactured to the level of drawings at the time of production can establish a level of safety for the fleet.

We disagree with revising the wording because all tests might not be acceptable. Tests conducted as part of the JCAB investigation may be acceptable if the conformity of the seats in service can be verified. Operators may include not only the highest loaded leg but also such things as the rationale for why the seat model is the critical seat in the determined group/cluster in any proposed test plan. That section of the NPRM is not restated in the final rule. We have not revised this AD in this regard.

JAL, Continental, and Koito requested clarification on the validity of TSO design approvals and tagging. JAL requested the status and validity of TSO design approvals of Koito seats and PMAs as replacement parts be unchanged by the AD.

JAL requested that the FAA define the disposition of TSOs/PMAs when operators decide to acquire new seat cushions.

Continental stated the NPRM should include a provision to allow the TSO to remain intact for any seats which are shown to meet the original TSO requirements or for any seats that are brought into full compliance.

Koito indicated the NPRM proposes to require modification of existing TSO tags prior to reinstallation to indicate non-compliance with the TSO, the AD number, and applicable removal date; however, the FAA has not proposed to revoke or suspend the TSOs. Koito requested the NPRM only require that a tag be added to the TSO marking that specifies the number of the AD, identifies the AD paragraphs it is in compliance with, and a removal date, if applicable. Koito concluded that only seats that do not comply with any requirements of the NPRM should have all TSO markings obliterated.

We agree to provide clarification. This AD does not address action against the manufacturer and we have not revoked the letter of design authorization for the TSO. However, none of the TSO markings on existing articles produced under TSO authorizations specified in this AD are considered valid because they were obtained in violation of the TSO process. This includes falsified Bunsen burner tests, oil burner tests, static tests, dynamic tests, and material certificates. If a seat model is fully re-qualified by the TSO holder, a seat may be entitled to a new TSO marking, with a new date, but the existing marking cannot be validated after the fact. The JCAB stated that the models identified in the AD have data that was either falsified or is suspected to have been falsified. The obliteration of the TSO identification (‘TSO-XXX’) is therefore required for all seats and seating systems affected by this AD.

The operator/owner may elect to show full compliance to the TSO as indicated by Note 1 of this AD (Note 1 indicates that it is possible for operators to redesign if they have a failure provided they re-qualify the affected TSO article through a thorough control of the design and production process). This permits the seat to remain in service in compliance with the AD but does not negate the fact that the TSO authorization was obtained fraudulently.

Acquisition or use of new seat cushions that comply with section 25.853 of the Federal Aviation Regulations (14 CFR 25.853) is one way to replace affected seat cushions. Also, use of third-party PMA seat cushions that are obtained through test and computation is a way to do this. PMA holders with compliance data may wish to request approval for an alternative method of compliance with this AD. PMA seat cushions that are obtained through “identicality” might not comply with the AD as the Koito data to which the PMA is identical might have been falsified. This AD does not address third-party PMA parts, except as replacement parts, which are subject to the requirements specified in “Parts Installation—Components of Seats and Seating Systems” in paragraph (k) of this AD. We might consider further rulemaking to address PMA parts obtained through identicality.

Boeing requested that we add a note for paragraphs (g)(1), (g)(2), and (g)(3) of the NPRM to provide guidance on dynamic testing, including details on maximum seat weight for family, ballast, surrogate parts in a non-load path, and the use of the highest loaded leg.

We acknowledge that this sort of information needs to be addressed; however, it is appropriate for a test plan. There are current FAA guidelines that address these items that are found in FAA AC 25.562-1B. This level of detail is not necessary for this AD. The AD requires that operators determine compliance in accordance with a method approved by the FAA and each test plan may vary. We have not revised this AD in this regard.

Aeroflot submitted an e-mail in which the operator requested Koito fill out an FAA Statement of Compliance with Airworthiness Standards Form 8100-9. Koito responded to Aeroflot that Koito was not able to issue the form and has never issued this form to date. Aeroflot stated it needed approval of repairs andspare parts. We infer Aeroflot is requesting how to show compliance with the requirements of the AD for a specific repair for Model ARS-417 and ARS-418 seats.

We disagree with providing specific repair information. U.S. operators must do the actions in this AD in accordance with a method approved by the FAA. Non-U.S. operators are not subject to this AD unless it is mandated by their respective airworthiness authorities. We have not revised this AD in this regard.

In paragraph (h) of the NPRM we specified that parts are not eligible for installation “by another airline or any other aviation entity.” We have removed the sentence containing that phrase in paragraphs (i) and (k) of this AD (which correspond with paragraph (h) of the NPRM). Instead, we have added the phrase “on airplanes operated by the same operator” to the sentences in paragraphs (i)(1) and (k)(1) of this AD.

We also revised the description of the unsafe condition in the Summary of this AD to match the description of the unsafe condition in paragraph (e) of this AD.

We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting the AD with the changes described previously. We also determined that these changes will not increase the economic burden on any operator or increase the scope of the AD.

We estimate that this AD affects 40,365 passenger seats installed on airplanes in the U.S. fleet. There are 278 airplanes of U.S. registry. The average labor rate is $85 per work-hour.

The estimated cost to determine if the affected seats and seating systems and their components are in compliance (i.e.,estimate the cost of static, dynamic and flammability testing, labor) is approximately $100,000 for the U.S. fleet. The estimated cost of the consumed article such as the seat row and materials consumed for flammability testing is approximately $490,000 for the U.S. fleet. The estimated cost to remove affected seats and seating systems and their components is approximately $285,000 for the U.S. fleet (this estimate assumes that the removal of all seats and seating systems in the fleet). The total estimated cost of this AD for the U.S. fleet is $875,000.

Operators might need to replace only certain components. It is not feasible to include the cost of individual components in this AD because we have no way of determining which components might need replacement.

Operators might need to replace the affected seat with a new seat. The following table provides the estimated costs for U.S. operators to replace the different types of seats. We have no way of determining how many seats might need to be replaced after testing is done to determine if the seats are in compliance. Certain operators might need to replace any type of seat that are generalized by description and estimated per-seat cost in the following table.

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:

This action amends Title 14 Code of Federal Regulations (14 CFR) Part 71 by adjusting the geographic coordinates, within Class D airspace, of the Cabaniss NOLF, Corpus Christi, TX, to coincide with the FAAs aeronautical database. This is an administrative change and does not affect the boundaries, altitudes, or operating requirements of the airspace, therefore, notice and public procedures under 5 U.S.C. 553(b) are unnecessary.

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 ispromulgated 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 Cabaniss NOLF, Corpus Christi, TX.

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

History

On January 10, 2011, the FAA published in theFederal Registera notice of proposed rulemaking to amend Class E airspace for Mosby, MO, reconfiguring controlled airspace at Midwest National Air Center Airport (76 FR 1377) Docket No. FAA-2010-0608. 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 for the Mosby, MO area. Decommissioning of the Mosby NDB and cancellation of the NDB approach at Midwest National Air Center Airport has made this action 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 at Midwest National Air Center Airport, Mosby, MO.

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

Background

On September 17, 2003, the FAA published a final rule entitled, “Regulation of Fractional Aircraft Ownership Programs and On-Demand Operations” (68 FR 54520).

In that final rule the FAA updated and revised the regulations governing operations of aircraft in fractional ownership programs.

This technical amendment makes one revision to the final rule. The language in § 91.1091(f)(2) incorrectly uses the term “check pilot” when the term “flight instructor” should have been used. Accordingly, this amendment revises § 91.1091(f)(2).

Because the section title applies to flight instructors it is obvious that the use of the term “check pilot” in (f)(2) should have been “flight instructor”. This technical amendment corrects an incorrect term and we find good cause exists under 5 U.S.C. 553(d)(3) to make the amendment effective in less than 30 days.

In consideration of the foregoing, the Federal Aviation Administration amends chapter I of title 14, Code of Federal Regulations as follows:

I. Background

Title 19, Code of Federal Regulations (CFR), sets forth at Part 122 the regulations relating to the entry and clearance of aircraft in international commerce and the transportation of persons and cargo by aircraft in international commerce.

Generally, a civil aircraft arriving from a place outside of the United States is required to land at an airport designated as an international airport. Alternatively, the pilot of a civil aircraft may request permission to land at a specific airport, and, if landing rights are granted, the civil aircraft may land at that landing rights airport.

Section 236 of Public Law 98-573 (the Trade and Tariff Act of 1984), codifiedat 19 U.S.C. 58b, created an option for civil aircraft desiring to land at an airport other than an international airport or a landing rights airport. A civil aircraft arriving from a place outside of the United States may ask for permission to land at an airport designated by the Secretary of Homeland Security as a user fee airport.

Pursuant to 19 U.S.C. 58b, an airport may be designated as a user fee airport if the Commissioner of CBP as delegated by the Secretary of Homeland Security determines that the volume of business at the airport is insufficient to justify customs services at the airport and the governor of the state in which the airport is located approves the designation. Generally, the type of airport that would seek designation as a user fee airport would be one at which a company, such as an air courier service, has a specialized interest in regularly landing.

As the volume of business anticipated at this type of airport is insufficient to justify its designation as an international or landing rights airport, the availability of customs services is not paid for out of appropriations from the general treasury of the United States. Instead, customs services are provided on a fully reimbursable basis to be paid for by the user fee airport on behalf of the recipients of the services.

The fees which are to be charged at user fee airports, according to the statute, shall be paid by each person using the customs services at the airport and shall be in the amount equal to the expenses incurred by the Commissioner of CBP in providing customs services which are rendered to such person at such airport, including the salary and expenses of those employed by the Commissioner of CBP to provide the customs services. To implement this provision, generally, the airport seeking the designation as a user fee airport or that airport's authority agrees to pay a flat fee for which the users of the airport are to reimburse the airport/airport authority. The airport/airport authority agrees to set and periodically review the charges to ensure that they are in accord with the airport's expenses.

The Commissioner of CBP designates airports as user fee airports pursuant to 19 U.S.C. 58b. If the Commissioner decides that the conditions for designation as a user fee airport are satisfied, a Memorandum of Agreement (MOA) is executed between the Commissioner of CBP and the local responsible official signing on behalf of the state, city or municipality in which the airport is located. In this manner, user fee airports are designated on a case-by-case basis. The regulation pertaining to user fee airports is 19 CFR 122.15. It addresses the procedures for obtaining permission to land at a user fee airport, the grounds for withdrawal of a user fee designation and includes the list of user fee airports designated by the Commissioner of CBP in accordance with 19 U.S.C. 58b. Periodically, CBP updates the list of user fee airports at 19 CFR 122.15(b) to reflect those that have been recently designated by the Commissioner. On January 28, 2011, the Commissioner signed an MOA approving the designation of user fee status for Dallas Love Field Municipal Airport. This document updates the list of user fee airports by adding Dallas Love Field Municipal Airport, in Dallas, Texas, to the list.

Because this amendment merely updates the list of user fee airports to include an airport already designated by the Commissioner of CBP in accordance with 19 U.S.C. 58b and neither imposes additional burdens on, nor take away any existing rights or privileges from, the public, pursuant to 5 U.S.C. 553(b)(B), notice and public procedure are unnecessary, and for the same reasons, pursuant to 5 U.S.C. 553(d)(3), a delayed effective date is not required.

Because no notice of proposed rulemaking is required, the provisions of the Regulatory Flexibility Act (5 U.S.C. 601et seq.) do not apply. This amendment does not meet the criteria for a “significant regulatory action” as specified in Executive Order 12866.

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

The rule will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.

This document is limited to technical corrections of CBP regulations. Accordingly, it is being signed under the authority of 19 CFR 0.1(b).

Part 122, Code of Federal Regulations (19 CFR part 122) is amended as set forth below:

DEA's Legal Authority

DEA implements the Comprehensive Drug Abuse Prevention and Control Act of 1970, often referred to as the Controlled Substances Act (CSA) and Controlled Substances Import and Export Act (21 U.S.C. 801-971), as amended. DEA publishes the implementing regulations for these statutes in Title 21 of the Code of Federal Regulations (CFR), parts 1300 to end. These regulations are designed to ensure that there is a sufficient supply of controlled substances for legitimate medical purposes and to deter the diversion of controlled substances to illegal purposes. The CSA mandates that DEA establish a closed system of control for manufacturing, distributing, and dispensing controlled substances. Any person who manufactures, distributes, dispenses, imports, exports, or conducts research or chemical analysis with controlled substances must register with DEA (unless exempt) and comply with the applicable requirements for the activity. The CSA, as amended, also requires DEA to regulate the manufacture, distribution, importation, and exportation of chemicals that may be used to manufacture controlled substances. Listed chemicals that are classified as List I chemicals are important to the manufacture of controlled substances. Those classified as List II chemicals may be used to manufacture controlled substances.

In this rule, DEA is finalizing concentration limits on chemical mixtures containing red phosphorus and/or hypophosphorous acid and its salts. This rule is being finalized as proposed. Chemical mixtures containing either of these listed chemicals at or below the concentration limit will be automatically exempt from CSA regulatory controls. Mixtures containing these chemicals above the concentration limit will be regulated as List I chemicals. DEA did not propose automatic exemption for chemical mixtures containing white phosphorus. Unless otherwise exempted, all material containing white phosphorus shall be subject to CSA chemical regulatory controls regardless of concentration.

The Chemical Diversion and Trafficking Act of 1988 (Pub. L. 100-690) (CDTA) created a definition for the term “chemical mixture” (21 U.S.C. 802(40)). The CDTA also established 21 U.S.C. 802(39)(A)(vi) to exclude “any transaction in a chemical mixture” from the definition of a “regulated transaction.” This exemption was exploited by those that traffic chemicals for illicit purposes in that it provided an unregulated source for obtaining listed chemicals for use in the illicit manufacture of controlled substances.

In April 1994, the Domestic Chemical Diversion Control Act of 1993 (Pub. L. 103-200) (DCDCA) corrected this situation by subjecting such chemical mixtures to CSA regulatory requirements, unless specifically exempted by regulation. These requirements included recordkeeping, reporting, and security for all regulated chemical mixtures with the additional requirement of registration for handlers of List I chemicals including regulated chemical mixtures. The DCDCA also provided the Attorney General with the authority to establish regulations to exempt chemical mixtures from the definition of a “regulated transaction.” A chemical mixture can be granted exemption “based on a finding that the mixture is formulated in such a way that it cannot be easily used in the illicit production of a controlled substance and that the listed chemical or chemicals contained in the mixture cannot be readily recovered” (21 U.S.C. 802(39)(A)(vi)). This authority has been delegated to the Administrator of DEA by 28 CFR 0.100 (Subpart R).

DEA has treated all regulated chemical mixtures as non-regulated chemicals until such time that it promulgates a final rule that identifies concentration limits, above which the chemical mixtures are regulated. This served to prevent the immediate regulation of all qualified mixtures, which is not necessary. It also allowed DEA to gather information to implement regulations pursuant to 21 U.S.C. 802(39)(A)(vi).

21 U.S.C. 802(40) defines the term “chemical mixture” as “a combination of two or more chemical substances, at least one of which is not a List I chemical or a List II chemical, except that such term does not include any combination of a List I chemical or a List II chemical with another chemical that is present solely as an impurity.” Therefore, a chemical mixture contains any number of listed chemicals in combination with any number of non-listed chemicals.

DEA does not consider a chemical mixture to mean the combination of a listed chemical and an inert carrier. An inert carrier can be any chemical that does not modify the function of the listed chemical but is present to aid in the delivery of the listed chemical. Examples include, but are not limited to, dilutions in water, alcohol, or the presence of a carrier gas.

In determining which chemical mixtures shall be subject to control, DEA considers the actual and potential clandestine use of such material. 21 U.S.C. 802(39)(A)(vi) states that an exemption can be granted if “the mixture is formulated in such a way that it cannot be easily used in the illicit production of a controlled substance and that the listed chemical or chemicals contained in the mixture cannot be readily recovered.” It should be noted that the requirements described by statute do not allow for exemptions based on such business practices as selling only to known customers, the cost of the mixture, the customer's knowledge of the product's chemical content, packaging, or such related topics.

In 2003, DEA published a Final Rule (68 FR 23195, May 1, 2003) thatidentified exempt mixtures containing the chemicals ephedrine, N-methylephedrine, N-methylpseudoephedrine, norpseudoephedrine, phenylpropanolamine, and pseudoephedrine. The effective date of this Final Rule was June 2, 2003. In a second Final Rule (69 FR 74957, December 15, 2004; corrected at 70 FR 294, January 4, 2005) DEA finalized regulations which addressed the exemption of chemical mixtures for 27 of the remaining 38 listed chemicals. However, chemical mixtures containing phosphorus were not included. The effective date for that Final Rule was January 14, 2005.

Chemical mixtures that contain red phosphorus are used in the manufacture of plastics, flame retardants, pyrotechnics, striker plates (e.g.,for safety matches and flares), incendiary shells, smoke bombs, and tracer bullets. Chemical mixtures containing hypophosphorous acid salts (e.g.,hypophosphite salts) function as catalysts, stabilizers, and growth inhibitors. They are used in plastics, films, paints, paper products, and fibers with applications that include automotive parts, furniture, wiring, containers, and housings for appliances and power tools. DEA has not identified any chemical mixtures containing white phosphorus.

Regulated phosphorus plays an important role in the chemical reaction to produce methamphetamine, a schedule II controlled substance for which the public health consequences of the manufacture, trafficking, and abuse are well known and documented. DEA has documented that the predominant method for the illicit manufacture of methamphetamine utilizes phosphorus.

DEA has identified chemical mixtures containing red phosphorus at domestic illicit methamphetamine manufacturing sites. Traffickers sometimes utilize the striker plates of safety matchbooks or boxes or road flares as a source of red phosphorus. The coating on the striker plate contains from 25 to 60 percent red phosphorus. An estimated 20 to 400 striker plates are needed to obtain one gram of red phosphorus. One gram of red phosphorus could yield approximately 1.5 grams of methamphetamine hydrochloride, which is the end product of clandestine manufacturing.

DEA is establishing concentration limits for chemical mixtures containing phosphorus. All chemical mixtures that have a concentration at or below the established concentration limit shall be automatically exempt from CSA chemical regulatory controls. Those chemical mixtures having a concentration above the concentration limit shall be List I regulated chemicals and subject to the chemical regulatory requirements of the CSA.

DEA is not aware of any chemical mixtures containing white phosphorus. It is believed that few chemical mixtures in this chemical exist because it is too reactive and unstable when mixed with other chemicals. Since DEA has not identified any white phosphorus mixtures, DEA did not propose a concentration limit for white phosphorus, and, therefore, any chemical mixture containing white phosphorus shall be subject to CSA regulatory control.

Hypophosphorous acid is marketed in aqueous solutions of 50 percent and can be readily used in the illicit manufacture of methamphetamine. Such aqueous solutions of hypophosphorous acid, however, are not considered chemical mixtures and are, therefore, currently subject to DEA chemical regulations, regardless of concentration. (As stated earlier, DEA does not consider a chemical mixture to mean the combination of a listed chemical and an inert carrier. An inert carrier can be any chemical that does not modify the function of the listed chemical but is present to aid in the delivery of the listed chemical. Examples include, but are not limited to, dilutions in water, alcohol, or the presence of a carrier gas.) No chemical mixtures containing hypophosphorous acid have been identified by DEA.

Traffickers use hypophosphite salts and hypophosphorous acid similarly. DEA has identified several chemical mixtures containing hypophosphite salts in combination with other chemicals for use as mold and mildew inhibitors. Additionally, DEA has identified at least one industrial product where sodium hypophosphite is in a chemical mixture in combination with resins. The concentration of hypophosphite salts within these chemical mixtures does not exceed 20 percent.

The above chemical mixtures have limited potential for use in a clandestine laboratory because of the: (a) Low concentrations of the hypophosphite salts, and (b) interference from other chemicals in the mixtures. Therefore, DEA is establishing a 30 percent concentration limit for hypophosphorous acid and its salts (hypophosphite salts).

It is important to clarify, again, that DEA does not consider a chemical mixture to mean the combination of a listed chemical and an inert carrier. Therefore, solutions of hypophosphorous acid or hypophosphite salt in water, alcohol, or another inert carrier are not considered chemical mixtures and are, therefore, currently subject to DEA chemical regulatory controls regardless of concentration.

As discussed above, only the smallest clandestine methamphetamine laboratories use chemical mixtures obtained from matchbook striker plates as a source of red phosphorus. Although concerned about this type of diversion, DEA determined that the regulation of matchbook striker plates is impractical and will create undue administrative burdens for both law enforcement and the regulated sector.

DEA is establishing an 80 percent concentration limit for red phosphorus. DEA has determined that chemical mixtures containing over 80 percent red phosphorus are useful in large scale methamphetamine production and, therefore, should not be automatically exempt from regulatory controls.

A chemical mixture having a regulated form of phosphorus at or below the concentration limit can still be a regulated chemical mixture if another listed chemical is present above its concentration limit. The exemption of chemical mixtures from regulatory controls does not remove criminal liability for persons who knowingly sell or possess any products containing regulated phosphorus for use in violation of the CSA.

In response to the June 25, 2010, Notice of Proposed Rulemaking (75 FR 36306), DEA received two comments. The first comment was received from a large chemical company. This firm indicated that they have one product which they export which shall become subject to regulation. However, the firm stated that they will not be significantly impacted by this rulemaking and supported the mixture criteria proposed in the rule. Furthermore, the comment commended DEA for taking a reasonable approach.

DEA Response.DEA appreciates this comment and believes that the concentration limits finalized in thisrule are reasonable based on the illicit uses of phosphorus mixtures.

The second comment was from an association representing full-service wholesale healthcare distributors. Their members distribute more than 9 million prescription and healthcare products. The comment stated that they reached out to their members in an attempt to identify specific products containing phosphorus which would be subject to the proposed regulatory controls. Their review indicated that they do not believe that any healthcare product distributors' products are subject to the proposed rule. However, the association expressed concern that wholesale distributors may be subjected to a rule without sufficient ability to provide meaningful public comment. The commenter posited that, during the comment period, other public comments may be received that would contain further information about products that could be subject to the rule and which may also pertain to products distributed by healthcare product distributors. The association recommended that DEA reopen the rule's comment period if the notice and comment period resulted in DEA obtaining further information relevant to the chemical mixtures or products potentially subject to the rule.

DEA Response.As DEA did not receive other comments to the NPRM identifying chemical mixtures containing listed forms of phosphorus, DEA believes that it has thoroughly examined the number and types of mixtures potentially affected by this rule and has adequately addressed the impact of this rule on the regulated community. DEA notes, in fact, that the only other commenter to this rule supported the rule as proposed. This conclusion is consistent with information developed by DEA, through DEA's research and comments received in response to the Advanced Notice of Proposed Rulemaking published January 31, 2003, (68 FR 4968) which specifically sought such information from interested parties. DEA does not believe that any products distributed by healthcare distributors will fall under the regulatory controls being finalized here. Therefore, DEA does not believe that this final rule will have any impact on this association's members.

After careful consideration of the comments received, DEA is hereby finalizing these regulatory controls exactly as proposed in the June 25, 2010, Notice of Proposed Rulemaking (75 FR 36306).

DEA recognizes that the concentration limits established in this rule may not identify all phosphorus mixtures that should receive exemption status. DEA has implemented an application process to exempt additional mixtures (21 CFR 1310.13). This application process was finalized in the Final Rule (68 FR 23195) published May 1, 2003. Under the application process, manufacturers may submit an application for exemption for those mixtures that do not qualify for automatic exemption. Exemption status can be granted if DEA determines that the mixture is formulated in such a way that it cannot be easily used in the illicit production of a controlled substance and the listed chemical cannot be readily recovered (i.e.,it meets the conditions in 21 U.S.C. 802(39)(A)(vi)). An application may be for a single or a multiple number of formulations. All chemical mixtures which are granted exemption via the application process will be listed in 21 CFR 1310.13(i).

This rulemaking also establishes changes to the existing application process. 21 CFR 1310.13(e) provides that within 30 days after the receipt of an application for an exemption, the Administrator will notify the applicant of acceptance or rejection of the application. This paragraph is being modified in order to clarify that this acceptance or rejection only pertains to the acceptance or rejection of the application “for filing” and does not pertain to the granting or denial of the application based upon the merits of the application. Furthermore, DEA is modifying this paragraph by removing the 30 day timeframe for notification, and instead, specify that such notification be “in writing” and “within a reasonable period of time”.

Regulated phosphorus compounds do not have a threshold as described in 21 CFR 1310.04(g)(1). Thus, all transactions in regulated phosphorus, including its regulated chemical mixtures, are regulated transactions. Certain transactions, described in 21 CFR 1310.08 are excluded from the definition of a regulated transaction. These are domestic and international return shipments of reusable containers from customer to producer containing residual quantities of red phosphorus or white phosphorus in rail cars and intermodal tank containers which conform to International Standards Organization specifications (with capacities greater than or equal to 2500 gallons in a single container). This exclusion also applies to regulated chemical mixtures containing red phosphorus or white phosphorus.

Persons interested in handling List I chemicals, including regulated chemical mixtures containing List I chemicals, must comply with the following:

Registration.Any person who manufactures, distributes, imports, or exports a List I chemical, or proposes to engage in the manufacture, distribution, importation, or exportation of a List I chemical, must obtain a registration pursuant to the CSA (21 U.S.C. 823, 957). Regulations describing registration for List I chemical handlers are set forth in 21 CFR part 1309.

Separate registration is required for manufacturing, distribution, importing, and exporting. Different locations operated by a single entity require separate registration if any location is involved with the manufacture, distribution, import, or export of a List I chemical. Any person manufacturing, distributing, importing, or exporting a regulated List I chemical mixture is subject to the registration requirement under the CSA. DEA recognizes, however, that it is not possible for persons who manufacture, distribute, import, or export regulated phosphorus compounds to immediately complete and submit an application for registration and for DEA to issue registrations immediately for those activities. Therefore, to allow continued legitimate commerce in the compounds, DEA is establishing in 21 CFR 1310.09 a temporary exemption from the registration requirement for persons desiring to manufacture, distribute, import, or export regulated phosphorus compounds, provided that DEA receives a properly completed application for registration on or before July 5, 2011. The temporary exemption for such persons will remain in effect until DEA takes final action on their application for registration.

The temporary exemption applies solely to the registration requirement; all other chemical control requirements, including recordkeeping and reporting, will remain in effect. Additionally, the temporary exemption does not suspend applicable Federal criminal laws relating to the phosphorus compounds, nor does it supersede state or local laws or regulations. All handlers of these materials must comply with their state and local requirements in addition to the CSA and other Federal regulatory controls.

DEA notes that warehouses are exempt from the requirement of registration and may lawfully possess List I chemicals, if the possession of those chemicals is in the usual course of business (21 U.S.C. 822(c)(2), 21 U.S.C. 957(b)(1)(B)). For purposes of this exemption, the warehouse must receive the List I chemical from a DEA registrant and shall only distribute the List I chemical back to the DEA registrant and registered location from which it was received. All other activities conducted by a warehouse do not fall under this exemption; a warehouse that distributes List I chemicals to persons other than the registrant and registered location from which they were obtained is conducting distribution activities and is required to register as such (21 U.S.C. 802(39)(A)(ii)).

Records and Reports.The CSA (21 U.S.C. 830) requires that certain records be kept and reports be made that involve listed chemicals. Regulations describing recordkeeping and reporting requirements are set forth in 21 CFR Part 1310. A record must be made and maintained for two years after the date of a transaction involving a listed chemical, provided the transaction is a regulated transaction.

Each regulated bulk manufacturer of a regulated mixture shall submit manufacturing, inventory and use data on an annual basis (21 CFR 1310.05(d)). Bulk manufacturers producing the mixture solely for internal consumption,e.g.,formulating a non-regulated mixture, are not required to submit this information. Existing standard industry reports containing the required information are acceptable, provided the information is readily retrievable from the report.

Title 21 CFR 1310.05 requires that each regulated person shall report to DEA any regulated transaction involving an extraordinary quantity of a listed chemical, an uncommon method of payment or delivery, or any other circumstance that the regulated person believes may indicate that the listed chemical will be used in violation of the CSA. Regulated persons are also required to report to DEA any proposed regulated transaction with a person whose description or other identifying information has been furnished to the regulated person. Finally, regulated persons are required to report any unusual or excessive loss or disappearance of a listed chemical.

Import/Export.All imports/exports of a listed chemical shall comply with the CSA (21 U.S.C. 957 and 971). Regulations for importation and exportation of List I chemicals are described in 21 CFR Part 1313. Separate registration is necessary for each activity (21 CFR 1309.22).

Security.All applicants and registrants shall provide effective controls against theft and diversion of chemicals as described in 21 CFR 1309.71.

Administrative Inspection.Places, including factories, warehouses, or other establishments and conveyances, where regulated persons may lawfully hold, manufacture, or distribute, dispense, administer, or otherwise dispose of a regulated chemical/chemical mixture, or where records relating to those activities are maintained, are controlled premises as defined in 21 CFR 1316.02(c). The CSA (21 U.S.C. 880) allows for administrative inspections of these controlled premises as provided in 21 CFR part 1316 subpart A.

The goal of this rulemaking is to deny traffickers access to regulated phosphorus compounds while minimizing the burden on legitimate industry. Persons who obtain a regulated chemical, but do not distribute the chemical, are end users. End users are not subject to CSA chemical regulatory control provisions such as registration or recordkeeping requirements. Some examples of end users are those who chemically react phosphorus compounds and change them into non-listed chemicals, formulate phosphorus compounds into exempt chemical mixtures or consume them in industrial processes.

While preparing the June 25, 2010 Notice of Proposed Rulemaking, DEA became aware that references to Section 1018 of the Act (21 U.S.C. 971) were inadvertently omitted from 21 CFR 1310.12(a) and 1310.13(i). Therefore, DEA proposed the amendment of these sections by adding this citation. This Final Rule implements that modification. This insertion is a clarification and does not alter the current treatment of exempt chemical mixtures under the CSA.

As DEA discussed in its December 15, 2004, Final Rule (specifically 69 FR 74963, comment 10) all chemical mixtures not exempt from CSA regulatory controls are subject to all aspects of those controls, including importation and exportation requirements. Thus, chemical mixtures that are exempt under 21 CFR 1310.12 and 1310.13 are also exempt from the requirements of Section 1018 of the Act (21 U.S.C. 971). The requirements of 21 U.S.C. 971 apply to “each regulated person, who imports or exports a listed chemical.” Since a person distributing an exempt chemical mixture is not a “regulated person” as defined by 21 U.S.C. 802(38), that person is exempt from the requirements of 21 U.S.C. 971.

DEA notes that this is a technical correction only. All exempt chemical mixtures have been treated as such for import and export purposes, and all regulated mixtures have been treated as regulated transactions for import and export purposes. DEA is merely including a reference which was inadvertently omitted from this regulatory language.

The Administrator hereby certifies that this rulemaking has been drafted in accordance with the Regulatory Flexibility Act (5 U.S.C. 601-612). The RFA requires agencies to determine whether a rulemaking could have a significant economic impact on a substantial number of small entities. DEA sought comment on two separate occasions regarding this action. On January 31, 2003, DEA published in theFederal Registeran ANPRM (68 FR 4968) to solicit input from industry regarding chemical mixtures containing regulated phosphorus. DEA received three responses to this request, all from industrial firms. In addition, DEA obtained information on types of formulations containing regulated phosphorus and their uses separate from the ANPRM. All three commenters to the ANPRM informed DEA of commercial applications for their chemical mixtures containing regulated phosphorus. The commenters also informed DEA of concentration ranges for red phosphorus and salts of hypophosphorous acid (e.g.hypophosphite salts). In the NPRM, DEA sought information from manufacturers about the impact of setting concentration limits for chemical mixtures containing phosphorus. Only two comments were received in response to the NPRM. Neither of these comments noted information to change DEA's belief that the cost of compliance with this rule is low and is unlikely to impose a significant cost on any manufacturing, distributing, importing, or exporting firm. DEA has not identified any chemical mixtures containing hypophosphorous acid or white phosphorus either through industry comments or as a result of DEA research. It is possible, therefore, that there are no entities that will be subject to DEA's requirements because of thisrule. Nonetheless, DEA provides the following discussion describing small businesses that might potentially handle these chemical mixtures.

The rules for listed chemicals apply to chemical manufacturers, distributors, importers, and exporters. The chemical manufacturers that would handle mixtures containing phosphorus would probably be classified in the all other basic inorganic chemical manufacturers sector (NAICS 325188). The average value of shipments for chemical manufacturers in this sector with 1-9 employees ranges from $2 million to $5.6 million. Because the recordkeeping requirements can be met with standard business records and most firms maintain adequate security to meet DEA's regulations, the only cost directly associated with this rule for a chemical manufacturer would be the DEA registration fee of $2,293, which represents approximately 0.1 percent of the value of shipments for the smallest firm. DEA assumes that chemical distributors, importers, and exporters that would handle mixtures containing phosphorus fall into the other chemical and allied products merchant wholesalers sector (NAICS 424690). The average revenue of chemical wholesalers with 1-4 employees is approximately $2.5 million. The only cost directly associated with this rule for a chemical distributor, importer, or exporter would be the DEA registration fee of $1,147, which represents approximately 0.04 percent of revenue for the smallest chemical wholesalers. Based on both the lack of entities identified that may be subject to this regulation and the low cost of the rule, DEA certifies that the rule will not have a significant economic impact on a substantial number of small entities.

This regulation has been developed in accordance with the principles of Executive Orders 13563 and 12866 and has been reviewed by the Office of Management and Budget. The information DEA received in response to the ANPRM and NPRM indicate that few phosphorus mixtures will be subject to the regulation. Those mixtures appear to be produced by current DEA registrants on whom the rule will impose no new requirements.

As stated earlier in this rulemaking the vast majority of the chemical mixtures that will become subject to this rulemaking have large industrial uses. Regulated chemical mixtures are not items having common household uses. Although concerned about the diversion of matchbook striker plates, DEA determined that the regulation of matchbook striker plates is impractical and will create undue administrative burdens for both law enforcement and the regulated sector.

Benefits.Phosphorus is a chemical important in the clandestine manufacture of methamphetamine and amphetamine. This rule seeks to eliminate the use of certain chemical mixtures whose high concentrations of phosphorus make them valued by traffickers seeking this chemical for their clandestine laboratory operations.

The surge in methamphetamine abuse and the manufacture of the drug in clandestine laboratories have caused serious law enforcement and environmental problems, particularly in rural communities.

This rule is intended to continue the trend of reducing the number of clandestine laboratories. This trend will reduce the cost to state and local governments as well as the hazard to law enforcement officers and others from exposure to the toxic chemicals left behind.

This regulation meets the applicable standards set forth in Sections 3(a) and 3(b)(2) of Executive Order 12988 Civil Justice Reform to eliminate ambiguity, minimize litigation, establish clear legal standards and reduce burden.

This rulemaking does not preempt or modify any provision of State law; nor does it impose enforcement responsibilities on any State; nor does it diminish the power of any State to enforce its own laws. Accordingly, this rulemaking does not have federalism implications warranting the application of Executive Order 13132.

This rule will not result in the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of $126,400,000 or more (adjusted for inflation) in any one year, and will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

This rule is not a major rule as defined by Section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996 (Congressional Review Act). This rule will not result in an annual effect on the economy of $100,000,000 or more; a major increase in cost or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

This rule will not have Tribal implications and will not impose substantial direct compliance costs on Indian Tribal governments.

This rule establishes regulations stating that chemical mixtures containing 80 percent and less of red phosphorus or 30 percent and less of hypophosphorous acid or its salts are automatically exempt from CSA regulatory controls pertaining to chemicals and that no automatic exemption be established for chemical mixtures containing white phosphorus. Under this method of automatic exemption, persons who handle these exempt chemical mixtures will not be subject to CSA regulatory controls, including the requirement to register with DEA, the requirement to report manufacturing activities to DEA annually, and the requirement to file importation and exportation advance notification and return declaration information with DEA. For persons handling regulated chemical mixtures, DEA anticipates granting some of these mixtures exempt status by the application process (21 CFR 1310.13).

Given comments received in response to the NPRM, DEA does not believe that the impact will be significant. DEA anticipates that some chemical mixtures would be granted exemptions based on the application process.

For the reasons set out above, 21 CFR part 1310 is amended as follows:

We did not publish a notice of proposed rulemaking (NPRM) for this rule. Under 5 U.S.C. 553(b)(A) the Coast Guard finds this rule is exempt from notice and comment rulemaking requirements because these changes involve rules of agency organization, procedure, or practice. In addition, the Coast Guard finds notice and comment procedures are unnecessary under 5 U.S.C. 553(b)(B) as this rule consists only of corrections and editorial, organizational, and conforming amendments and these changes will have no substantive effect on the public. Under 5 U.S.C. 553(d)(3), the Coast Guard finds that, for the same reasons, good cause exists for making this rule effective upon publication in theFederal Register.

Each year, the printed edition of Title 33 of the Code of Federal Regulations is recodified on July 1. This rule, which becomes effective June 2, 2011, makes technical and editorial corrections throughout Title 33. This rule does not create any substantive requirements.

This rule amends 33 CFR part 1 to reflect changes in agency organization by removing § 1.01-60(a)(1)(ii) and combining § 1.01-60(a)(1)(i) with § 1.01-60(a)(1). Because the Coast Guard is no longer a component of the Department of Transportation (DOT), DOT Order 5610.1C (Procedures for Considering Environmental Impacts) no longer applies.

This rule revises 33 CFR part 27. The Coast Guard is adjusting fines and other civil monetary penalties to reflect the impact of inflation. These adjustments are made in accordance with the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended by the Debt Collection Improvement Act of 1996, and implement the provisions of these statutes. These statutes require the Coast Guard to periodically adjust the civil monetary penalties for inflation by a method that is specifically prescribed within these statutes and which allows no discretion. The statutory method specifies the inflation measure to be used, the method for the calculation of the inflation adjustment, and the method for the numerical rounding of the results. The last inflation adjustments were made in 2010.

The changes in Civil Penalties for calendar year 2011 are based on the change in CPI-U from June 2009 to June 2010. The recorded change in CPI-U during that period was 1.05%. Because of the small change in CPI-U and the required rules for rounding, there was no change to any of the maximum penalty amounts from the previous adjustment.

This rule amends § 115.05 by replacing the term “builder” with the term “applicant” to clarify the Coast Guard's intent and make the affected provision consistent with other provisions in this section and other sections of part 115. This rule also corrects grammatical errors and details established requirements regarding the information needed on the plan sheets that accompany a bridge permit request. This rule removes § 115.50(d) because the information it provides is already explained throughout the section.

This rule amends 33 CFR part 117 to correct the names of the S14 Bridge and the S1 Bridge and to provide an updated phone number to the Kansas City Southern automated bridge. Also “Pelican Island Causeway” is removed from the title of § 117.977 and the section is redesignated to follow the alphabetical order of state waterways set out in this subpart.

This rule amends parts 135, 140, 148, and 150 of Title 33 with an organizational name change from the Minerals Management Service (MMS) to the Bureau of Ocean Energy Management Regulation and Enforcement (BOEMRE).

This rule amends paragraph 161.15(a) to correct a typographical error that erroneously omitted the words “within a”. The correction to the section is not substantive and does not impose any new requirement, but clarifies the meaning of this portion of part 161.

This rule amends 33 CFR part 164 to remove LORAN C from the list of options for vessel electronic position fixing devices. Removing LORAN C from 33 CFR part 164 will have no substantive effect on the public because the use of LORAN C has not been supported by the Coast Guard since February 2010, and this section is no longer applicable.

This rule amends Title 33 to correct latitude/longitude coordinates of the Galveston Entrance Anchorage Areas in part 166 and the Chesapeake Bay: Eastern approach in part 167.

This rule amends Title 33 to update internal Coast Guard office designations as well as certain personnel titles. Changes in personnel titles included in this rule are only technical revisions reflecting changes in agency procedure and organization, and do not indicate new authorities.

This rule amends Title 33 to update various physical addresses for Coast Guard offices as well as those offices' contact information.

Finally, this rule corrects non-substantive, typographical errors throughout Title 33.

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. Because this rule involves non-substantive changes and internal agency practices and procedures, it will not impose any additional costs on the public.

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.

We estimate that the cost of this rule is minimal and should have little or no impact on small entities because the provisions of this rule are technical and non-substantive, and will have no substantive effect on the public and will impose no additional costs. Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that this final rule will not have a significant economic impact on a substantial number of small entities.

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, eliminates ambiguity, and reduces 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 to health 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 haveconcluded that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded under section 2.B.2, figure 2-1, paragraph (34)(a) of the Instruction. This rule involves regulations which are editorial, procedural, such as those updating addresses or establishing application procedures. An environmental analysis checklist and a categorical exclusion determination areavailable in the docket where indicated underADDRESSES.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR parts 1, 27, 96, 101, 107, 115, 117, 135, 140, 148, 150, 151, 160, 161, 162, 164, 166, 167, and 169.

Marinis Bros. Inc., on behalf of Delaware Department of Transportation, has requested a temporary deviation from the current operating regulation of the SR 13 Bridge across the Nanticoke River, mile 39.6, at Seaford, DE. The requested deviation is to accommodate painting and cleaning of the bridge. The vertical clearance of this single-leaf bascule bridge is three feet at mean high water (MHW) in the closed position and unlimited in the open position. During this deviation period, the vertical clearance will be limited to one foot at MHW due to the scaffolding that will be used for the maintenance of the bridge. Monday through Friday from 7 a.m. until 6 p.m. the bridge is able to open if at least four hours of notice is given and from 6 p.m. to 7 a.m. the bridge will be left in the closed-to-navigation position. On Saturdays and Sundays and on July 4, 2011 the bridge will be left in the open position and vessels will be able to pass through at any time. The bridge will be able to open for emergencies if at least four hours of notice is given. There are no alternate routes available to vessels.

The current operating schedule for the bridge is set out in 33 CFR 117.243(b). In the months of June and July the regulation requires the bridge to open on signal, except from 6 p.m. to 8 a.m., if at least four hours notice is given.

Logs from June and July 2010 have shown that most of the openings were on the weekends and on July 4th and all of the openings were between the hours of 7 a.m. and 6 p.m. This deviation will have no impact for mariners traveling through the bridge on the weekends and on July 4th because the bridge will be left in the open position on these days. Mariners transiting through the bridge on weekdays should have minimal delay given that the bridge can open for vessels if at least four hours notice is given. The majority of the vessel traffic is recreational boaters. The Coast Guard will inform the users of the waterway through our Local and Broadcast Notices to Mariners so that mariners can arrange their transits to minimize any impact caused by the temporary deviation. The Coast Guard will also require the bridge owner to post signs on either side of the bridge notifying mariners of the temporary regulation change.

In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the designated time period. This deviation from the operating regulations is authorized under 33 CFR 117.35.

On April 18, 2011, we published a notice of proposed rulemaking (NPRM) entitled Safety Zones; Annual Events requiring safety zones in the Captain of the Port Sault Sainte Marie zone, in theFederal Register(76 FR 21677). We received 0 public submissions commenting on this rule. No public meeting was requested, and none was held.

This rule will add 33 CFR 165.918 Safety Zones; Annual Events requiring safety zones in the Captain of the Port Sault Sainte Marie zone. Many of these events recur in the same location on or about the same date each year. Also, these events pose hazards to the public. Such hazards include obstructions to navigable channels, explosive dangers associated with fireworks, debris falling into the water, and general congestion of waterways. To minimize these and other hazards, this rule will establish twenty safety zones, each related to a specific recurring marine event.

The Coast Guard received 0 public submissions commenting on this rule.

This rule and its associated safety zones are necessary to ensure the safety of vessels and people during each of the annual marine events discussed herein. Although this rule will remain in effect year round, the safety zones will be enforced only immediately before, during, and after each corresponding event.

The Captain of the Port Sault Sainte Marie will notify the public when these safety zones will be enforced. In keeping with 33 CFR 165.7(a), the Captain of the Port Sault Sainte Marie will use all appropriate means to notify the affectedsegments of the public. This will include, as practicable, Broadcast Notice to Mariners, and Local Notice to Mariners. The Captain of the Port will, as practicable, issue a Broadcast Notice to Mariners notifying the public when any enforcement period is cancelled.

Entry into, transiting, or anchoring within each of the below safety zones is prohibited unless authorized by the Captain of the Port Sault Sainte Marie or his or her designated representative. All persons and vessels permitted to enter one of the safety zones established by this rule shall comply with the instructions of the Coast Guard Captain of the Port or the designated representative. The Captain of the Port or his or her designated representative may be contacted via VHF Channel 16.

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. We conclude that this rule is not a significant regulatory action because we anticipate that it will have minimal impact on the economy, will not interfere with other agencies, will not adversely alter the budget of any grant or loan recipients, and will not raise any novel legal or policy issues. The safety zones created by this rule will be relatively small and enforced for a relatively short time. Also, each safety zone is designed to minimize its impact on navigable waters. Furthermore, each safety zone has been designed to allow vessels to transit unrestricted to portions of the waterways not affected by the safety zones. Thus, restrictions on vessel movement within any particular area are expected to be minimal. Under certain conditions, moreover, vessels may still transit through each safety zone when permitted by the Captain of the Port. On the whole, the Coast Guard expects insignificant adverse impact to mariners from the activation of these safety zones.

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 would not have a significant economic impact on a substantial number of small entities. On April 18, 2011, the Coast Guard published a notice of proposed rulemaking (NPRM) entitled Safety Zones; Annual Events requiring safety zones in the Captain of the Port Sault Sainte Marie zone, in theFederal Register(76 FR 21677). The Coast Guard received 0 public submissions commenting on the impact to small entities by this rule. There have been no changes made to the rule as proposed. This rule would affect the following entities, some of which might be small entities: the owners and operators of vessels intending to transit or anchor in any one of the below established safety zones while the safety zone is being enforced. Each of the safety zones, with one exception, will be in effect only once per year. Furthermore, these safety zones have been designed to allow traffic to pass safely around each zone. Moreover, vessels will be allowed to pass through each zone at the discretion of the Captain of the Port.

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

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. On April 18, 2011, the Coast Guard published a notice of proposed rulemaking (NPRM) entitled Safety Zones; Annual Events requiring safety zones in the Captain of the Port Sault Sainte Marie zone, in theFederal Register(76 FR 21677). The Coast Guard received 0 public submissions commenting on the proposed rule.

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. On April 18, 2011, the Coast Guard published a notice of proposed rulemaking (NPRM) entitled Safety Zones; Annual Events requiring safety zones in the Captain of the Port Sault Sainte Marie zone, in theFederal Register(76 FR 21677). The Coast Guard received 0 public submissions commenting on the proposed rule. There have been no changes made to the rule as proposed.

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. On April 18, 2011, the Coast Guard published a notice of proposed rulemaking (NPRM) entitled Safety Zones; Annual Events requiring safety zones in the Captain of the Port Sault Sainte Marie zone, in theFederal Register(76 FR 21677). The Coast Guard received 0 public submissions commenting on the proposed rule. There have been no changes made to the rule as proposed.

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. On April 18, 2011, the Coast Guard published a notice of proposed rulemaking (NPRM) entitled Safety Zones; Annual Events requiring safety zones in the Captain of the Port Sault Sainte Marie zone, in theFederal Register(76 FR 21677). The Coast Guard received 0 public submissions commenting on the proposed rule. There have been no changes made to the rule as proposed.

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children. On April 18, 2011, the Coast Guard published a notice of proposed rulemaking (NPRM) entitled Safety Zones; Annual Events requiring safety zones in the Captain of the Port Sault Sainte Marie zone, in theFederal Register(76 FR 21677). The Coast Guard received 0 public submissions commenting on the proposed rule. There have been no changes made to the rule as proposed.

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. On April 18, 2011, the Coast Guard published a notice of proposed rulemaking (NPRM) entitled Safety Zones; Annual Events requiring safety zones in the Captain of the Port Sault Sainte Marie zone, in theFederal Register(76 FR 21677). The Coast Guard received 0 public submissions commenting on the proposed rule. There have been no changes made to the rule as proposed.

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. On April 18, 2011, the Coast Guard published a notice of proposed rulemaking (NPRM) entitled Safety Zones; Annual Events requiring safety zones in the Captain of the Port Sault Sainte Marie zone, in theFederal Register(76 FR 21677). The Coast Guard received 0 public submissions commenting on the proposed rule. There have been no changes made to the rule as proposed.

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. On April 18, 2011, the Coast Guard published a notice of proposed rulemaking (NPRM) entitled Safety Zones; Annual Events requiring safety zones in the Captain of the Port Sault Sainte Marie zone, in theFederal Register(76 FR 21677). The Coast Guard received 0 public submissions commenting on the proposed rule. There have been no changes made to the rule as proposed.

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 because it involves the establishment of a safety zone. A final 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 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 immediate action is needed to minimize potential danger to the public during the event. The potential dangers posed by fireworks displays conducted near the Currituck Sound with other vessel traffic makes a safety zone necessary to provide for the safety of participants, spectator craft and other vessels transiting the event area. For the safety concerns noted, it is in the public interest to have these regulations in effect during the event. The Coast Guard will issue broadcast notice to mariners to advise vessel operators of navigational restrictions. On scene Coast Guard and local law enforcement vessels will also provide actual notice to mariners.

Recurring fireworks displays are frequently held on or adjacent to the navigable waters within the boundary of the Fifth Coast Guard District. For a description of the geographical area of each Coast Guard Sector—Captain of the Port Zone, please see 33 CFR 3.25.

The regulation listing annual fireworks displays within the Fifth Coast Guard District and their regulated locations is 33 CFR 165.506. A Table to § 165.506 identifies fireworks displays by COTP zone, with the COTP North Carolina zone listed in Portion “d” of the Table.

The township of Corolla, North Carolina, sponsors an annual fireworks display held on July 4th over the waters of Currituck Sound at Corolla, North Carolina. The Table to § 165.506, at Portion “d” event Number “5”, established the enforcement date and regulated location for this fireworks event.

The location listed in the Table has the fireworks display originating from a fireworks barge on Currituck Sound. However, this temporary final rule changes the fireworks launch location on July 4, 2011, to a position on shore at latitude 36°22′23.8″ N, longitude 075°49′56.3″ W.

A fleet of spectator vessels is anticipated to gather nearby to view the fireworks display. Due to the need for vessel control during the fireworks display vessel traffic will be temporarily restricted to provide for the safety of participants, spectators and transiting vessels. Under provisions of 33 CFR 165.506, during the enforcement period, vessels may not enter the regulated area unless they receive permission from the Coast Guard Patrol Commander.

The Coast Guard will temporarily suspend the regulation listed in Table to § 165.506, at Portion “d” event Number “5”, and will insert this new temporary regulation at Table to § 165.506, at Portion “d” as event Number “14”, in order to reflect that the fireworks display will originate from a point on shore and therefore the regulated area is changed. This change is needed to accommodate the sponsor's event plan. No other portion of the Table to § 165.506 or other provisions in § 165.506 shall be affected by this regulation.

The regulated area of this safety zone includes all water of the Currituck Sound within a 300 yards radius of latitude 36°22′23.8″ N, longitude 075°49′56.3″ W.

This safety zone will restrict general navigation in the regulated area during the fireworks event. Except for persons or vessels authorized by the Coast Guard Patrol Commander, no person or vessel may enter or remain in the regulated area during the effective period. The regulated area is needed to control vessel traffic during the event to enhance the safety of participants and transiting vessels.

The enforcement period for this safety zone does not change from that enforcement period listed in § 165.506(d). Therefore, this safety zone will be enforced from 5:30 p.m. on July 4, 2011 through 1 a.m. on July 5, 2011.

In addition to notice in theFederal Register, the maritime community will be provided extensive advance notification via the Local Notice to Mariners, and marine information broadcasts so mariners can adjust their plans accordingly.

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.

This rule prevents traffic from transiting a portion of the Currituck Sound during the specified event, the effect of this regulation will not be significant due to the limited duration that the regulated area will be in effect and the extensive advance notifications that will be made to the maritime community via marine information broadcasts, local radio stations and area newspapers so mariners can adjust their plans accordingly. Additionally, this rulemaking changes the regulated area for the Currituck Sound fireworks demonstration for July 4, 2011 only and does not change the permanent regulated area that has been published in 33 CFR 165.506, Table to § 165.506 at portion “d” event Number “5”. In some cases vessel traffic may be able to transit the regulated area when the Coast Guard Patrol Commander deems it is safe to do so.

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 would affect the following entities, some of which might be small entities: the owners or operators of vessels intending to transit or anchor in the Currituck Sound where fireworks events are being held. This regulation will not have a significant impact on a substantial number of small entities because it will be enforced only during the fireworks display event that has been permitted by the Coast Guard Captain of the Port. The Captain of the Port will ensure that small entities are able to operate in the regulated area when it is safe to do so. In some cases, vessels will be able to safely transit around the regulated area at varioustimes, and, with the permission of the Patrol Commander, vessels may transit through the regulated area. Before the enforcement period, the Coast Guard will issue maritime advisories so mariners can adjust their plans accordingly.

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 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 affect 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 to health 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 which 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 establishes 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:

Regulatory Information

The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) because it would be impracticable to delay this rule because the event would occur before the rulemaking process would be completed. Because of the dangers posed by the pyrotechnics used in these fireworks displays, the immediate action is necessary to provide for the safety of event participants, spectators, spectator craft, and other vessels transiting the event area. For the safety concerns noted, it is in the public interest to have these regulations in effect during the event.

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. Any delay in the effective date of this rule would expose mariners to the dangers posed by the pyrotechnics used in the fireworks display.

The City of Eureka will sponsor the 28th Annual Humboldt Bay Festival Fireworks Display. The fireworks display is for entertainment purposes. This safety zone establishes a temporary restricted area on the waters 100 feet surrounding the fireworks loading, transit and launch sites, and extends the safety zone to 1,000 feet of the launch site during the fireworks display. This safety zone is necessary to protect spectators, vessels, and other property from the hazards associated with pyrotechnics on the fireworks barges. The Coast Guard has granted the event sponsor a marine event permit for the fireworks displays.

The City of Eureka will sponsor the 28th Annual Humboldt Bay Festival Fireworks Display from 11:45 a.m. on July 3, 2011 until 10:45 p.m. on July 4, 2011, on the navigable waters of Humboldt Bay located 200 yards off the South end of Woodley Island in Eureka, California. From 12 p.m. until 8 p.m. on July 3, 2011, pyrotechnics will be loaded onto a barge at Schneider Pier. From 3 p.m. until 4 p.m. on July 4, 2011 the loaded barge will be transiting from Schneider Dock to the launch site located at position 40°48′35.30″ N, 124°09′56.47″ W (NAD 83). The temporary safety zone will extend 100 feet from the nearest point of the barge during the loading, transit, and arrival of the pyrotechnics from Schneider Pier to position 40°48′35.30″ N, 124°09′56.47″ W (NAD 83). The fireworks display will occur from 10 p.m. on July 4, 2011 until 10:25 p.m., during which the safety zone will extend 1,000 feet from the nearest point of the barge at position 40°48′35.30″ N, 124°09′56.47″ W (NAD 83). At 11 p.m. on July 4, 2011 the safety zone shall terminate.

The effect of the temporary safety zones will be to restrict navigation in the vicinity of the fireworks sites while the fireworks are set up, and until the conclusion of the scheduled displays. Except for persons or vessels authorized by the Coast Guard Patrol Commander, no person or vessel may enter or remain in the restricted area. These regulations are needed to keep spectators and vessels a safe distance away from the fireworks barges to ensure the safety ofparticipants, spectators, and transiting vessels.

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.

Although this rule restricts access to the waters encompassed by the safety zones, the effect of this rule will not be significant because: (1) The entities most likely to be affected are pleasure craft engaged in recreational activities; (2) the rule will only restrict access for a limited time; and (3) the Public Broadcast Notice to Mariners will notify the users of local waterway to ensure that the safety zone will result in minimum impact.

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 and operators of pleasure craft engaged in recreational activities and sightseeing intending to transit the designated area of Humboldt Bay between 11:45 a.m. on July 3, 2011 and 10:45 p.m. July 4, 2011.

This safety zone will not have a significant economic impact on a substantial number of small entities for several reasons: (i) This rule will encompass only a small portion of the waterway for a limited period of time; (ii) vessel traffic can pass safely around the area; (iii) vessels engaged in recreational activities and sightseeing have ample space outside of the affected areas of San Francisco, CA to engage in these activities; and (iv) the maritime public will be advised in advance of this safety zone via Broadcast Notice to Mariners.

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 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 effect 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 to health 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; samplingprocedures; 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 0023.1 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 which 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 establishing 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 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 goodcause 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 immediate action is necessary to ensure the safety of vessels transiting in the vicinity of where the exercise will be conducted by Navy personnel. This exercise is necessary to train and qualify Navy personnel in the use of weapons. This training is necessary to ensure that Navy personnel located within the Fifth Coast Guard District are properly trained and qualified before conducting military and national security operations for use in securing ports and waterways. Navy policy requires that Navy personnel meet and maintain certain qualification standards before being allowed to carry weapons on board vessels. Failure to conduct this required training at this time will result in a lapse in personnel qualification standards and, consequently, the inability of Navy personnel to carry out important national security functions at any time. Publishing a NPRM and waiting 30 days for comment would be contrary to the public interest because any delay in the effective date of this rule would expose mariners, the boating public, and divers to the potential hazards associated with the Navy's live fire and explosive training exercises.

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. Delaying the effective date would be contrary to the public interest since immediate action is needed to ensure the safety of vessels transiting the area.

Coast Guard Sector Hampton Roads was notified that the U.S. Navy will conduct a live fire and explosive training event onboard the M/V Del Monte in the vicinity of the James River Reserve Fleet. The event is scheduled to take place from June 6, 2011 until June 10, 2011. Due to the need to protect mariners transiting on the James River in the vicinity of the exercise from the hazards associated with live fire and explosive events, the Coast Guard is establishing a safety zone bound by a 1500 foot radius around approximate position 37°06′11″ N/076°38′40″ W (NAD 1983). Access to this area will be temporarily restricted for public safety purposes.

The Coast Guard is establishing a 1500 foot radius safety zone on specified waters of James River around approximate position 37°06′11″ N/076°38′40″ W (NAD 1983) in the vicinity of the James River Reserve Fleet. This safety zone is being established in the interest of public safety during the live fire and explosive training exercise and will be enforced from 11 a.m. on June 6, 2011 until 4 p.m. on June 10, 2011. Access to the safety zone will be restricted during the specified dates and times. Except for vessels authorized by the Captain of the Port or his Representative, no person or vessel may enter or remain in the safety zone.

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. Although this regulation restricts access to the safety zone, the effect of this rule will not be significant because: (i) The safety zone will be in effect for a limited duration; (ii) the zone is of limited size; (iii) mariners may transit the waters in and around this safety zone at the discretion of the Captain of the Port or designated representative; and (iv), the Coast Guard will make notifications via maritime advisories so mariners can adjust their plans accordingly.

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.

The rule would affect the following entities, some of which might be small entities: The owners or operators of vessels intending to transit or anchor in a portion of the James River from 11 a.m. on June 6, 2011 until 4 p.m. on June 10, 2011.

This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: (i) The safety zone will only be in place for a limited duration and is of a limited size. (ii) Before the enforcement period, maritime advisories will be issued allowing mariners to adjust their plans accordingly.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (seeADDRESSES) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

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 havedetermined 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 affect 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 to health 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 which 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 a temporary safety zone that will be in effect for only five days and is intended to keep mariners safe from the hazards associated with live fire and explosive exercises. An environmental analysis checklist and a categorical exclusion determination will be available in the docket where indicated underADDRESSES.

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

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 waiting for a comment period to run would be impracticable and contrary to the public interest because it would prevent the Captain of the Port Detroit from keeping the public safe from the hazards associated with a maritime fireworks displays.

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. Waiting for a 30-day effective period to run is impracticable and contrary to the public interest for the reasons discussed in the preceding paragraph.

The Put-in-Bay Fireworks displays will occur between 9:15 p.m. and 9:45 p.m. on June 19, June 27, and September 17, 2011. This temporary safety zone is necessary to ensure the safety of vessels and spectators from hazards associated with fireworks displays. Such hazards include obstructions to the waterway, the explosive danger of fireworks, and debris falling into the water, all of which may cause death or serious bodily harm.

Because of the aforesaid hazards, the Captain of the Port, Sector Detroit has determined that a temporary safety zone is necessary to ensure the safety of spectators and vessels during the setup, loading, and launching of the Put-in-Bay Fireworks Accordingly, the safety zone will encompass all U.S. navigable waters of Lake Erie within a 50-yard radius of the fireworks launch site located at position 41°39′17″ N, 082°48′57″ W. All geographic coordinates are North American Datum of 1983 (NAD 83).

All persons and vessels shall comply with the instructions of the Coast Guard Captain of the Port, Sector Detroit or the designated patrol personnel. Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port, Sector Detroit or his designated representative. The Captain of the Port, Sector Detroit or his designated representative may be contacted via VHF Channel 16.

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 section6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS). We conclude that this rule is not a significant regulatory action because we anticipate that it will have minimal impact on the economy, will not interfere with other agencies, will not adversely alter the budget of any grant or loan recipients, and will not raise any novel legal or policy issues.

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 and operators of vessels intending to transit or anchor in a portion of the Lake Erie, South Bass Island, Put-In-Bay, OH between 9:15 p.m. and 9:45 p.m. on June 19, June 27, and September 17, 2011.

This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: this rule will only be in effect for ninety minutes total and commercial vessels can request permission to transit through the safety zone. The Coast Guard will give notice to the public via a Broadcast Notice to Mariners that the regulation is in effect.

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 affect 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 to health 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 Commandant Instruction M16475.lD and Department of Homeland Security Management Directive 023-01, 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 which 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 because it involves the establishment of a temporary safety zone. This rule involves the establishment of a safety zone and is therefore categorically excluded under paragraph 34(g) of the Instruction. 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 listed in 33 CFR 165.935, Safety Zones, Milwaukee Harbor, Milwaukee, WI, at the following time for the following events:

(1)Pridefest fireworks displayon June 11, 2011 from 9:15 p.m. through 10 p.m.

(2)Polish Festival fireworks displayon June 18,2011 from 10:15 p.m. through 11 p.m.;

(3)Summerfest fireworks displayon June 29, 2011 from 9:15 p.m. through 10:30 p.m.

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 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 165.935 Safety Zone, Milwaukee Harbor, Milwaukee, WI 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 or his or her on-scene representative may be contacted via VHF Channel 16.

On April 7, 2011, we published a notice of proposed rulemaking (NPRM) entitled: Safety Zone; Commencement Bay, Tacoma, WA, in theFederal Register(76 FR 19290). We received zero comments on the proposed rule. We received zero requests for a public meeting and one was not held.

The Coast Guard is expanding the boundaries of the safety zone established in 33 CFR 165.1305. Due to the growth of the event, sponsors have requested a larger safety zone in order to safely accommodate additional aircraft and displays while protecting the safety of crews, spectators, participants of the event, participating vessels, and other vessels and users of the waterway during the event. In addition, expanding the zone will allow safety vessels to patrol inside the safety zone; reducing any vessel traffic along the shoreline that could impede movement of safety vessels.

The Tacoma Freedom Fair Air Show is an annual air show in Tacoma, WA. The show involves demonstrations by civilian, Navy, Air Force, Marine Corps, and Coast Guard aircraft, to include rescue simulations performed by low-flying helicopters. This rule expands the safety zone codified in 33 CFR 165.1305. This expansion accommodates the growth of the air show since its 1995 debut and ensures the safety of crews, spectators, participants of the event, participating vessels, and other vessels and users of the waterway during the event.

No comments on the proposed rulemaking were received and no changes are being made to the rule.

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.

The Coast Guard bases this finding on the fact that the safety zone is small in size, short in duration, and maritime traffic will be able to safely transit the area outside of this safety zone. Maritime traffic may also request permission to transit through the zone from the Captain of the Port, Puget Sound or Designated Representative.

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 might be small entities: the owners or operators of vessels intending to enter or transit through a portion of Commencement Bay, Tacoma, Washington on July 4th from 2 p.m. until 12:30 a.m. July 5th, annually. This safety zone will not have a significant economic impact on a substantial number of small entities, because the safety zone is short in duration, minimal in size, and maritime traffic will be allowed to transit through the safety zone with permission.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), in the NPRM we offered to assist small entities in understanding the rule so that they could 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 to health or risk to safety that might 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 which 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 changing 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:

This document corrects a technical error included in a document announcing the final Impact Aid Discretionary Construction program regulations that the Department published in theFederal Registeron April 28, 2011 (76 FR 23712). Specifically, the RIN number provided on the first page of the April 28, 2011 (76 FR 23712) document is changed to 1810-AB11, which is the correct RIN number for the final regulations published on April 28, 2011 (76 FR 23712).

Electronic Access to This Document:The official version of this document is the document published in theFederal Register. Free Internet access to the official edition of theFederal Registerand the Code of Federal Regulations is available via the Federal Digital System at:http://www.gpo.gov/fdsys.At this site you can view this document, as well as all other documents of this Department published in theFederalRegister, in text or Adobe Portable Document Format (PDF). To use PDF you must have Adobe Acrobat Reader, which is available free at the site.

You may also access documents of the Department published in theFederal Registerby using the article search feature at:http://www.federalregister.gov.Specifically, through the advanced search feature at this site, you can limit your search to documents published by the Department.

Section 182(b)(2) of the CAA, 42 U.S.C. 7511a(b)(2), requires that States having moderate nonattainment areas for ozone revise their SIP to include provisions requiring the implementation of RACT for certain sources, including categories of Volatile Organic Compound (VOC) sources covered by a CTG document issued by the Administrator between November 15, 1990 and the date of attainment. EPA originally developed CTG standards for flat wood paneling surface coating processes in 1978 and revised them in 2006. Pennsylvania subsequently made changes to its SIP which adopted EPA's CTG standards for flat wood paneling surface coating processes. The formal SIP revision was submitted by Pennsylvania to EPA on January 4, 2011. On March 14, 2011 (76 FR 13567), EPA published a notice of proposed rulemaking (NPR) for Pennsylvania. The NPR proposed approval of Pennsylvania's SIP revision for adoption of the CTG standards for flat wood paneling surface coating processes. The formal SIP revision was submitted by Pennsylvania on January 4, 2011.

On January 4, 2011, PADEP submitted to EPA a SIP revision concerning the adoption of the CTG standards for flat wood paneling surface coating processes. EPA develops CTGs as guidance on control requirements for source categories. States can follow the CTGs or adopt more restrictive standards. Pennsylvania has adopted EPA's CTG standards for flat wood paneling surface coating processes. These regulations are in Chapter 121—General Provisions and in Chapter 129—Standards for Sources, in Title 25 of the Pennsylvania Code. Specifically, this revision amends the existing regulations at sections 121.1, 129.51, 129.66, and adds new section 129.52c. Several definitions were added in section 121.1, and section 129.51 was amended to extend coverage to flat wood paneling surface coating processes. The new section 129.52c includes VOC emission limits, work practices, and recordkeeping and reporting requirements, all of which are consistent with EPA's CTG for flat wood paneling surface coating processes. The emission limits of VOCs for flat wood paneling surface coatings are shown in Table 1. These emission limits apply if the total actual VOC emissions from all flat wood paneling surface coating operations at the facility are equal to or greater than 15 pounds (lb) (6.8 kilograms (kg)) per day, before consideration of controls.

Other specific requirements concerning this rulemaking and the rationale for EPA's action are explained in the NPR and the Technical Support Document (TSD) and will not be restated here. No public comments were received on the NPR.

EPA is approving Pennsylvania's adoption of the CTG requirements for flat wood paneling surface coating processes as a revision to the Pennsylvania SIP.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501et seq.);

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601et seq.);

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

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

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

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

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

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

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

The Congressional Review Act, 5 U.S.C. 801et seq.,as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in theFederal Register. A major rule cannot take effect until 60 days after it is published in theFederal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 1, 2011. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action concerning Pennsylvania's adoption of a CTG for flat wood paneling surface coating processes may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR part 52 is amended as follows:

I. What action is EPA taking? II. What is the effect of this action? III. What is EPA's final action? IV. Statutory and Executive Order Reviews I. What action is EPA taking?

EPA is determining that the Macon Area (comprised of Bibb County in its entirety and a portion of MonroeCounty) has attaining data for the 1997 annual PM2.5NAAQS. This determination is based upon quality assured, quality controlled and certified ambient air monitoring data that shows the Area has monitored attainment of the 1997 annual PM2.5NAAQS based on the 2007-2009 data.

Other specific requirements of the determination and the rationale for EPA's action are explained in the notice of proposed rulemaking (NPR) published on March 22, 2011 (76 FR 15892). For summary purposes, the Macon-Allied Chemical monitor (13-021-0007) did not meet 75 percent completeness for the first quarter of 2008 and the Macon SE monitor (13-021-0012) did not meet 75 percent completeness for the second and fourth quarters of 2008 and third quarter of 2009. The 3-year average annual concentrations for 2007-2009 without data substitution are 13.7 µg/m3for Macon Allied and 12.0 µg/m3for Macon SE. The 3-year average annual concentrations for 2007-2009 on this table with data substitution are 14.9 µg/m3for Macon Allied and 13.3 µg/m3for Macon SE. EPA proposed that the Macon Area is meeting the 1997 annual PM2.5NAAQS both with and without data substitution and is now meeting the 1997 annual PM2.5NAAQS. The design value without data substitution, 13.3 μg/m3, is considered to be the official design value. The comment period closed on April 21, 2011. No comments were received in response to the NPR.

This final action, in accordance with 40 CFR 51.1004(c), suspends the requirements for this Area to submit attainment demonstrations, associated RACM, RFP plans, contingency measures, and other planning SIPs related to attainment of the 1997 annual PM2.5NAAQS as long as this Area continues to meet the 1997 annual PM2.5NAAQS. Finalizing this action does not constitute a redesignation of the Macon Area to attainment for the 1997 annual PM2.5NAAQS under section 107(d)(3) of the Clean Air Act (CAA). Further, finalizing this action does not involve approving maintenance plans for the Area as required under section 175A of the CAA, nor does it involve a determination that the Area has met all requirements for a redesignation.

EPA is determining that the Macon Area has attaining data for the 1997 annual PM2.5NAAQS. This determination is based upon quality assured, quality controlled, and certified ambient air monitoring data showing that this Area has monitored attainment of the 1997 annual PM2.5NAAQS during the period 2007-2009. This final action, in accordance with 40 CFR 51.1004(c), will suspend the requirements for this Area to submit attainment demonstrations, associated RACM, RFP plans, contingency measures, and other planning SIPs related to attainment of the 1997 annual PM2.5NAAQS as long as the Area continues to meet the 1997 annual PM2.5NAAQS. EPA is taking this final action because it is in accordance with the CAA and EPA policy and guidance.

This action makes a determination of attainment based on air quality, and will result in the suspension of certain Federal requirements, and it will not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501et seq.);

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601et seq.);

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

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

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

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

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

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994). In addition, this 1997 PM2.5clean NAAQS data determination for the Macon Area does not have Tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on Tribal governments or preempt Tribal law.

The Congressional Review Act, 5 U.S.C. 801et seq.,as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in theFederal Register. A major rule cannot take effect until 60 days after it is published in theFederal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 1, 2011. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (Seesection 307(b)(2)).

40 CFR part 52 is amended as follows:

NHTSA published a final rule on June 16, 2008 (73 FR 33903, Docket No. NHTSA-08-0111) that responded to various petitions for reconsideration of a previous final rule1 incorporating a mid-size adult male crash test dummy, called the “ES-2re” test dummy, into 49 CFR part 572, Subpart U. The ES-2re is used in an upgraded Federal Motor Vehicle Safety Standard No. 214, “Side impact protection,” and in the agency's New Car Assessment Program. The June 16, 2008 final rule incorporated by reference a drawing package, parts list, and user's manual, all dated February 2008.

After publication of the June 16, 2008 final rule, NHTSA received requests from dummy manufacturers FTSS and Denton to correct errors in or make minor changes to the ES-2re drawing package. Many of these requested changes were wholly corrective, while others, although minor, were more substantive and notice of such changes appeared beneficial. Rather than respond to the requested changes piecemeal, the agency decided to address all the requested changes in a rulemaking proceeding that commenced with a notice of proposed rulemaking (NPRM) published February 5, 2010 (75 FR 5931; Docket No. NHTSA-2009-0194).

The February 5, 2010 NPRM provided a detailed discussion of the proposed changes to the ES-2re drawing package and parts list. In addition, the NPRM proposed to clarify the inclusion of load sensors and to correct dimensional errors in Figure 22 of 49 CFR part 572, which is a figure illustrating the pendulum used in the neck qualification test for the ES-2re and other adult crash test dummies (e.g.,the Hybrid III 50th percentile adult male).

NHTSA received no comments on the NPRM. We are adopting the changes proposed in the NPRM for the reasons discussed in that document.

NHTSA is making the following changes to the drawing package and parts list for the ES-2re dummy in response to FTSS. In the NPRM, NHTSA provided a detailed discussion of the changes requested by FTSS and our rationale underlying our tentative decision to grant or deny each request. In this final rule, the agency is adopting these amendments for the reasons discussed in the NPRM.

1. Drawing 175-1011, Top Plate UNLC Blank. NHTSA is removing the Ø symbol from the dimensions MØ5.0, MØ6.0, MØ6, and MØ2.5.

2. Drawing 175-3502, Pivot Stop Plate, Left. Note #4 is fixed by replacing RH with LH.

3. Drawing 175-6006, Pubic Symphysis Structural Replacement. The Part Mark located at the center of the part is removed from the drawing.

4. Drawing 175-6012, Hip Pivot Pin. Dimension “16.994 +0.000/− 0.011” is changed to “16.990 +0.000/−0.011.”

5. Drawing 175-6010, Iliac Wing Assembly, Left. Drawing dimension “17.0556” is changed to (17), a reference dimension. Dimension “R0.5” is added. Dimension “Ø20.03 ± 0.05” is changed to “Ø20.05 ± 0.05.” The material reference block is amended to specify the material to be “PU Resin” (polyurethane).

6. Drawing 175-6063, Femur Bearing Plate, Left. The “48.3000 ± 0.0001” dimension is changed to “48.3.” The 17.5000 dimension for hole depth in zone C-2 is changed to (17.5) to indicate a reference. Zone D-1 is amended by eliminating an extra “R” in the R23.5 dimension.

7. Drawing 175-6068, Femur Bearing Plate, Right. We are removing theparenthesis from around dimension “(48.3).”

8. Drawing 175-6002, Iliac Wing Assembly, Right. We are changing drawing dimension “Ø20.03” to “Ø20.05 ± 0.05.” We also add dimension “R0.5.”

9. Drawing 175-2003, Plate, Neck Head & Torso Interface. Section C-C of the drawing showing the thickness of the Helicoil is changed to M6 x 1 x 4.5. Item 1 on the parts list is changed to part number 5000729 Helicoil M6 x 1 x 4.5. We also add dimension “4X R3.2 to the Surface” on Detail Z.

10. Drawing 175-3011, CAM Buffer Pad. Drawing dimensions Ø5.0, 90.0, 5.0, and 21.2 ± 0.2 are replaced with dimensions Ø5, 90, 5, and 21.2 ± 0.3, respectively.

11. Drawing 175-7058, Friction Plate Retaining Stud. The Datum A tolerance of 0.0003 is changed to 0.003.

12. Drawing 175-7085-1, Knee Flesh, Left. The drawing is amended to add a definition for “A” to match drawing 175-7085-2, which specifies that “A = 13/4.”

13. Drawing 175-7090-1, Thigh Molded, Left. Drawing dimensions (2x ØØ24) is changed to (2x Ø24) and (2x Ø14) is changed to (2x14).

14. Drawing 175-9013, Bearing. Revision record B is corrected to read “ADDED REF. TO MATERIAL SPECIFICATION.”

15. Drawing 175-9014, Pin Machined. Revision indicator for revision “B” (REV B) is added next to the material reference.

16. Drawing SA572-571-1, Lower Neck Load Cell Assembly. The specification for load cell weight is made a reference. The drawing is also amended to indicate that the reference weight specification applies to item 1 (the lower neck load cell) only, and not the entire assembly.

NHTSA is making the following changes to the drawing package and parts list for the ES-2re dummy in response to Denton. The changes and reasons underlying these changes are fully discussed in the NPRM.

1. Drawing No. 175-1001, Skull Machined. The distance between the upper 2 holes is changed from 71.2 mm apart to 71.1 mm apart.

2. Drawing No. 175-4006, Rib Rail Assembly. We are amending the drawing to add an option to the drawing that allows use of a button head cap screw (BHCS) BHCS M3 x .5 x 8.

3. Drawing No. 175-4012, V-rail. The drawing is changed such that the tapped holes are specified as optional.

This final rule corrects several dimensional values in Figure 22, “Pendulum Specifications,” of 49 CFR part 572. This pendulum is used in neck qualification tests for the ES-2re as well as other adult crash test dummies, including the Hybrid III 50th percentile male and 5th percentile female frontal crash test dummies, the SID-IIsD 5th percentile female side impact dummy, and the SID and SID/HIII side impact crash test dummies. The dimensional corrections are listed below and shown in Figure 1 of this preamble, below:

• The 8.28 millimeter (mm) (32.6 inch (in)) dimension is changed to 828 mm (32.6 in);

• The 4.8 mm (188 in) dimension is changed to 4.8 mm (0.188 in);

• The 198.6 mm (7.75 in) dimension is changed to 196.8 mm (7.75 in).

This rulemaking action is not considered a significant regulatory action under E.O. 12866, E.O. 13563, or DOT's regulatory policies and procedures (44 FR 11034, February 26, 1979). This rule only corrects or makes slight changes to some of the drawings of the ES-2re test dummy and to the pendulum used in the neck qualification tests. These changes will not affect the cost of any of the part 572 test dummies. Because the economic impacts of this final rule are so minimal, no further regulatory evaluation is necessary.

Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601et seq.,as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), whenever an agency is required to publish a proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities (i.e.,small businesses, small organizations, and small governmental jurisdictions), unless the head of the agency certifies the rule will not have a significant economic impact on a substantial number of small entities. The Small Business Administration's regulations at 13 CFR part 121 define a small business,in part, as a business entity “which operates primarily within the United States.” (13 CFR 121.105(a)).

We have considered the effects of this rulemaking under the Regulatory Flexibility Act. I hereby certify that the rulemaking action will not have a significant economic impact on a substantial number of small entities. This action will not have a significant economic impact on a substantial number of small entities because correcting or making minor changes to the drawings and the specification for the pendulum does not impose any requirements on anyone. NHTSA does not require anyone to manufacture or use the test dummies.

NHTSA has analyzed this final rule for the purposes of the National Environmental Policy Act and determined that it will not have any significant impact on the quality of the human environment.

NHTSA has examined today's final rule pursuant to Executive Order 13132 (64 FR 43255, August 10, 1999) and concluded that no additional consultation with States, local governments or their representatives is mandated beyond the rulemaking process. The agency has concluded that the final rule does not have federalism implications because the rule 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.” This rule will not impose any requirements on anyone. Businesses will be affected only if they choose to manufacture or test with the dummy.

Further, no consultation is needed to discuss the preemptive effect of today's final rule. NHTSA's safety standards can have preemptive effect in two ways. This final rule amends 49 CFR part 572 and is not a safety standard.2 This part 572 final rule does not impose any requirements on anyone.

With respect to the review of the promulgation of a new regulation, section 3(b) of Executive Order 12988, “Civil Justice Reform” (61 FR 4729, February 7, 1996) requires that Executive agencies make every reasonable effort to ensure that the regulation: (1) Clearly specifies the preemptive effect; (2) clearly specifies the effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct, while promoting simplification and burden reduction; (4) clearly specifies the retroactive effect, if any; (5) adequately defines key terms; and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. This document is consistent with that requirement.

Pursuant to this Order, NHTSA notes as follows.

The issue of preemption is discussed above in connection with E.O. 13132. NHTSA notes further that there is no requirement that individuals submit a petition for reconsideration or pursue other administrative proceeding before they may file suit in court.

Under the Paperwork Reduction Act of 1995, a person is not required to respond to a collection of information by a Federal agency unless the collection displays a valid control number from the Office of Management and Budget (OMB). This rule will not have any requirements that are considered to be information collection requirements as defined by the OMB in 5 CFR part 1320.

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272) directs NHTSA to use voluntary consensus standards in its regulatory activities unless doing so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g.,materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs NHTSA to provide Congress, through OMB, explanations when the agency decides not to use available and applicable voluntary consensus standards. There are no voluntary consensus standards relevant to this final rule.

Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, requires Federal agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or Tribal governments, in the aggregate, or by the private sector, of more than $100 million annually (adjusted for inflation with base year of 1995). Before promulgating a NHTSA rule for which a written statement is needed, section 205 of the UMRA generally requires the agency to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule.

This final rule does not impose any unfunded mandates under the UMRA. This rule does not meet the definition of a Federal mandate because it does not impose requirements on anyone. It amends 49 CFR part 572 by correcting or making minor changes to some of the drawings for a test dummy that the agency uses and for a pendulum used to calibrate test dummies. This rule affects only those businesses that choose to manufacture or test with the dummy, and being corrective in nature, only affects them in a small way. It does not result in costs of $100 million or more to either State, local, or Tribal governments, in the aggregate, or to the private sector.

Executive Order 12866 requires each agency to write all rules in plain language. Application of the principles of plain language includes consideration of the following questions:

If you have any responses to these questions, please send them to NHTSA.

The Department of Transportation assigns a regulation identifier number (RIN) to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. You may use the RIN contained in the heading at the beginning of this document to find this action in the Unified Agenda.

In consideration of the foregoing, NHTSA amends 49 CFR part 572 as follows:

This document consists of a final rule to reclassify the tulotoma snail (Tulotoma magnifica) from endangered to threatened, under the authority of the Act.

It is our intent to discuss only those topics directly relevant to the reclassification of the tulotoma snail from endangered to threatened. For information on our proposeddetermination, refer to the proposed rule published in theFederal Registeron June 22, 2010 (75 FR 35424).

The tulotoma snail (Tulotoma magnifica), henceforth “tulotoma,” is a gill-breathing, operculate snail in the family Viviparidae. Operculate means that the snail has a rounded plate that seals the mouth of the shell while the snail is inside. The shell is spherical and can reach a size somewhat larger than a golf ball, and typically ornamented with spiral lines of knob-like structures (Herschleret al.1990, p. 815). Its adult size and ornamentation distinguish it from all other freshwater snails in the Coosa-Alabama River system.

The tulotoma is found only in the State of Alabama. It was described from the Alabama River in 1834 by T.A. Conrad, and collection records indicate a historical range of around 563 kilometers (km) (350 miles (mi)) in the Coosa and Alabama River drainages of Alabama from the Coosa River in St. Clair and Calhoun Counties, Alabama, to the Alabama River in Monroe County, Alabama (Herschleret al.1990, pp. 815-817). Historical collection localities in the Coosa River system included numerous sites on the river itself as well as the lower reaches of several of its large tributaries in St. Clair, Calhoun, Talladega, Shelby, Chilton, Coosa, and Elmore Counties, Alabama (Herschleret al.1990, pp. 815-817). In the Alabama River system, the tulotoma was recorded only from two collection localities: The type locality near Claiborne, Monroe County, Alabama, and Chilachee Creek southwest of Selma, Dallas County, Alabama (Herschleret al.1990, p. 815).

Tulotoma occur in cool, well-oxygenated, clean, free-flowing streams, including rivers and the lower portions of the rivers' larger tributaries (Herschleret al.1990, p. 822). This species is generally found in shoals (a shallow place in a body of water) and riffles (a rocky shoal lying just below the surface of the water) with moderate to strong currents. Although this species is typically associated with shoals and riffles, it inhabits rivers that rise and fall, and tulotoma have been collected at depths more than 5 meters (m) (15 feet (ft)) (Hartfield 1991, p. 7). The species is strongly associated with boulder, cobble, and bedrock stream bottoms and is generally found clinging tightly to the underside of large rocks or between cracks in bedrock (Christmanet al.1996, p. 28). Historical habitats included large coastal plain river, large high-gradient rivers, and multiple upland tributary streams.

Based on a study of the tulotoma life history in the Coosa River below Jordan Dam, Elmore County, Alabama, tulotoma produce live-born offspring year round, but reproduction peaks during the months of May to July, and at sizes of about 3 to 5 millimeters (mm) (0.1 to 0.2 inches (in)) height of last whorl (HLW) or coil in a tulotoma shell (Christmanet al.1996, pp. 45-59). They grow rapidly during their first year reaching sizes of 11 to 14 mm (0.4 to 0.5 in), with females producing an average of 16 offspring in their second year (Christmanet al.1996, pp. 45-59). Females that live beyond their second year grow more slowly and produce an average of 28 juveniles per year (Christmanet al.1996, pp. 45-59); few tulotoma survived longer than 2 years of life in the lower Coosa River (Christmanet al.1996, p. 61).

At the time of listing in 1991, the tulotoma was known from five localized areas in the lower Coosa River drainage (56 FR 797; January 9, 1991). These included approximately a 3-kilometer (km) (1.8-mile (mi)) reach (section of river) of the lower Coosa River between Jordan Dam and the City of Wetumpka (Elmore County, Alabama) and short reaches of four tributaries: 2 km (1.2 mi) of Kelly Creek (St. Clair and Shelby Counties, Alabama), 4 km (2.4 mi) of Weogufka Creek, and 3 km (1.8 mi) of Hatchet Creek (Coosa County, Alabama), and from a single shoal on Ohatchee Creek (Calhoun County, Alabama) (Herschleret al.1990, p. 819). Each river reach is considered a population, and a population can contain one or more colonies. A colony is defined as the tulotoma found under one rock or several adjacent rocks. A site is considered a specific location within the river reach, where specific colonies are located.

Spatial distribution and trends of four of these five tulotoma populations (all populations except Ohatchee Creek) were monitored annually between 1992 and 1995, and again in 1999, and 2004 (DeVries 2005, p. 3). The lower Coosa River population has expanded throughout a 10-km (6-mi) reach (Hartfield 1991, Christmanet al.1996, pp. 23-25; DeVries 2005, p. 14), and the species' numbers in this reach are estimated at more than 100 million tulotoma (Christmanet al.1996, p. 59). Habitat in the Coosa River below Jordan Dam has improved and expanded due to implementation of a minimum flow regime below the dam and installation of an aeration system (Christmanet al.1996, p. 59; Grogan 2005, p. 3).

Colony size and distribution of tulotoma within the tributaries have been monitored and appear to be stable within a 13.7-km (8.5-mi) reach of Weogufka Creek, a 14-km (8.8-mi) reach of Hatchet Creek, and a 5.8-km (3.6-mi) reach of Kelly Creek (DeVries 2005, pp.11-13). Habitat conditions within these three tributaries appear to have remained stable since listing (DeVries 2005, p. 4; 2008, pp. 5-9). The Kelly Creek tulotoma population has expanded into suitable habitat in an approximately 8-km (5-mi) reach of the middle Coosa River above and below the confluence of Kelly Creek (Garner 2003, Powell 2005, Lochamy 2005), likely as a result of implementation of pulsing flows below Logan Martin Dam to improve dissolved oxygen levels (Krotzer 2008).

No tulotoma have been rediscovered from the Ohatchee Creek shoal population for 15 years, and it is now believed to be extirpated (DeVries 2005, pp. 10). Impacts of nonpoint source pollution at the Ohatchee shoal, including excessive sedimentation and algal growth, have been observed (Hartfield 1992).

Since its listing in 1991, tulotoma populations have also been located at six additional locations: Three in the Coosa River drainage and three in the Alabama River. (Garner 2003, 2006, 2008; DeVries 2005, p. 7; Johnson 2008). In the lower Coosa River drainage the tulotoma has been discovered surviving in a 0.8-km (0.5-mi) reach of Choccolocco Creek, a 0.4-km (0.25-mi) reach of Yellowleaf Creek, and about 2 km (1.2 mi) of Weoka Creek (DeVries 2005, pp. 10-13). The tulotoma population's range, colony size, and habitat in Choccolocco Creek have remained relatively stable since monitoring began in 1995 (DeVries 2005, p. 4). Tulotoma colony sizes in Weoka Creek have reached higher densities than any other tributary population; however, population trends have been monitored for only 3 years (DeVries 2005, p. 5). The Yellowleaf Creek tulotoma population is extremely localized (found in a small area in the creek that is isolated from other populations) and has not been monitored; however, occasional spot checks show the species continues to persist (Johnson 2006).

The other three new populations were discovered in the Alabama River, one below each of three dams: Claiborne Lock and Dam (one colony), R.F. Henry Lock and Dam (three colonies), and Millers Ferry Lock and Dam (one colony). A single localized colony was discovered near the type locality in the lower Alabama River below Claiborne Lock and Dam, Monroe County, Alabama (Garner 2006). Additionally, dead tulotoma shells were found in appropriate habitat over a 1.6-km (1.0-mi) reach of the Alabama River (Garner2006). During the summer of 2008, two colonies were located near Selma, Dallas County, Alabama (Johnson 2008), and a single robust (healthy or vigorous) colony containing approximately 150 tulotoma was discovered below R.F. Henry Lock and Dam, Autauga and Lowndes Counties, Alabama (Garner 2008). Both juvenile and adult tulotoma were present at the three sites. A single localized colony was also discovered below Millers Ferry Lock and Dam, Wilcox County, Alabama (Powell 2008). For additional details about the expansion of the tulotoma range, see the Summary of Factors Affecting the Species section, below.

Federal actions for this species prior to June 22, 2010, are outlined in our proposed rule for this reclassification (75 FR 35424). Publication of the proposed rule opened a 60-day comment period, which closed on August 23, 2010.

Recovery plans are not regulatory documents and are instead intended to establish goals for long-term conservation of listed species, define criteria that may be used to determine when recovery is achieved, and provide guidance to our Federal, State, other governmental and nongovernmental partners on methods to minimize threats to listed species. There are many paths to accomplishing recovery of a species, and recovery may be achieved without all criteria being fully met. For example, one or more criteria may be exceeded while other criteria may not yet be accomplished. In that instance, we may determine that the threats are minimized sufficiently and the species is robust enough to reclassify from endangered to threatened or to delist. In other cases, recovery opportunities may be discovered that were not known when the recovery plan was finalized. These opportunities may be used instead of methods identified in the recovery plan. Likewise, information on the species may be learned that was not known at the time the recovery plan was finalized. The new information may change the extent that criteria need to be met for recognizing recovery of the species. Recovery of a species is a dynamic process requiring adaptive management that may, or may not, fully follow the guidance provided in a recovery plan.

In 1994, the recovery goal, criteria, and tasks for the tulotoma were first proposed in the Technical/Agency Draft Mobile River Basin Aquatic Ecosystem Recovery Plan (Technical Draft Recovery Plan) (U.S. Fish and Wildlife Service 1994, p. 21). The Technical Draft Recovery Plan stated that the tulotoma could be reclassified to threatened status when a population study, in progress at the time, documented a stable or increasing population size due to flow and habitat improvements in the Coosa River below Jordan Dam (Devries 2005).

The 1994 draft plan received wide review and interest, which resulted in the formation of the Mobile River Aquatic Ecosystem Coalition (Ecosystem Coalition), formed by representatives of State and Federal agencies, and business and citizen groups from throughout the Mobile River Basin. The first task of the Ecosystem Coalition was to produce a draft of an ecosystem plan addressing all listed aquatic species in the Mobile River Basin. By the time the final Mobile River Basin Aquatic Ecosystem Recovery Plan (Recovery Plan) was published (U.S. Fish and Wildlife Service 2000), studies had been completed showing that the status of tulotoma in the Coosa River had improved considerably due to habitat improvements (Christmanet al.1996, DeVries 2005). Therefore, the recovery criterion for reclassification of tulotoma to threatened status was modified to recommend reclassification to threatened status upon completion of a status review confirming a stable or increasing population of tulotoma in the Coosa River below Jordan Dam (U.S. Fish and Wildlife Service 2000, p. 21).

Our recent 5-year review of the tulotoma documented an increase in the extent and size of tulotoma populations in the Coosa River below Jordan Dam, an increase in range and number of colonies and individuals in 3 of 4 tributary populations known at the time of listing, and discovery of 6 previously unknown populations (U.S. Fish and Wildlife Service 2008).

The 2000 Recovery Plan addressed protecting habitat integrity and improving habitat quality, reducing impacts from permitted activities, promoting watershed stewardship, conducting basic research, establishing propagation programs if necessary, and monitoring species' population size and distribution for all species addressed in the Recovery Plan. Some recovery actions accomplished in the Coosa River under this plan include the establishment of minimum flows below Jordan Dam to improve habitat conditions in that reach and the implementation of pulsing flows below Logan Martin Dam to improve dissolved oxygen in that reach. Watershed management plans have also been developed to address nonpoint source pollution in the lower Coosa Basin and the Alabama River Basin. These and other recovery accomplishments addressing threats to the tulotoma are presented in more detail in the Summary of Factors Affecting the Species section, below.

During the open comment period for the proposed rule (75 FR 35424), we requested that all interested parties submit comments or information concerning the proposed reclassification of tulotoma from endangered to threatened. We directly notified and requested comments from the State of Alabama. We contacted all appropriate State and Federal agencies, county governments, elected officials, scientific organizations, and other interested parties and invited them to comment. We also published newspaper notices inviting public comment in the following newspapers:Daily Home,Talladega, Alabama;Monroe Journal,Monroe, Alabama;Montgomery Advertiser,Montgomery, Alabama; andSelma Times Journal,Selma, Alabama. During the comment period, we received no public comments.

In accordance with our peer review policy published in theFederal Registeron July 1, 1994 (59 FR 34270) and the Office of Management and Budget's (OMB) December 16, 2004, Final Information Bulletin for Peer Review (OMB 2004), we requested the independent opinions of four knowledgeable individuals with expertise on the tulotoma, freshwater mollusks, the Mobile River Basin, and conservation biology principles. The purpose of such review is to ensure that the reclassification is based on scientifically sound data, assumptions, and analyses, including input of appropriate experts and specialists. We received a single comment from a peer reviewer stating that the proposed rule was comprehensive and accurate, and recommending that we include reference to a summary journal article that was not cited in the proposed rule. This article has been referenced, where appropriate, in the Background section, above.

Section 4 of the Act and its implementing regulations (50 CFR part 424) set forth the procedures for listing, reclassifying, or removing species from the Federal Lists of Endangered and Threatened Species. “Species” isdefined by the Act as including any species or subspecies of fish or wildlife or plants and any distinct vertebrate population segment of fish or wildlife that interbreeds when mature (16 U.S.C. 1532(16)). Once the “species” is determined, we then evaluate whether that species may be endangered or threatened because of one or more of the five factors described in section 4(a)(1) of the Act. Those factors are: (A) Habitat modification, destruction, or curtailment; (B) overutilization of the species for commercial, recreational, scientific or educational purposes; (C) disease or predation; (D) inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. We must consider these same five factors in reclassifying or delisting a species. Listing, reclassifying, or delisting may be warranted based on any of the above threat factors, either singly or in combination.

For species that are already listed as threatened or endangered, an analysis of threats is an evaluation of both the threats currently facing the species and the threats that are reasonably likely to affect the species in the foreseeable future following the delisting or downlisting.

The following threats analysis examines the five factors currently affecting, or that are likely to affect, the listed tulotoma snail within the foreseeable future. For the purposes of this analysis, we will first evaluate whether the currently listed species, the tulotoma, should be considered threatened or endangered throughout its range. If we determine that the species is threatened, then we will consider whether there are any significant portions of the species' range where it is in danger of extinction or likely to become endangered within the foreseeable future.

Under section 3 of the Act, a species is “endangered” if it is in danger of extinction throughout all or a significant portion of its range and is “threatened” if it is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. The word “range” refers to the range in which the species currently exists, and the word “significant” refers to the value of that portion of the range being considered to the conservation of the species. The “foreseeable future” is the period of time over which events or effects reasonably can or should be anticipated, or trends extrapolated.

For the purposes of this analysis, we will evaluate all five factors currently affecting, or that are likely to affect, the tulotoma to determine whether the currently listed species is threatened or endangered. The five factors listed under section 4(a)(1) of the Act and their applications to tulotoma are presented below.

A.The present or threatened destruction, modification, or curtailment of its habitat or range.When listed in 1991, the tulotoma was believed to inhabit less than 2 percent (12 km (7.2 mi)) of its 563-km (350-mi) historical range. A Coosa River population of tulotoma was known to survive below Jordan Dam. Populations were also known from four Coosa River tributaries: Kelly, Weogufka, Hatchet, and Ohatchee Creeks. All of these populations were isolated by dams and impounded waters and considered to be vulnerable to nonpoint source pollution. Population trends were unknown, but were believed to be possibly declining.

At the time of listing, hydropower discharges were limiting the range and abundance of tulotoma to only a 3-km (1.8-mi) reach of the Coosa River below Jordan Dam. Water discharges for hydropower purposes were released from Jordan Dam for 2.25 hours per day; at all other times, flow consisted of only dam seepage. As a result of the low water quantity, water quality problems, particularly low dissolved oxygen and elevated temperatures, were a significant limiting factor to tulotoma below Jordan Dam. In 1992, the Alabama Power Company (APC) established minimum flows in the Coosa River below Jordan Dam, and later installed a draft tube aeration system to ensure maintenance of dissolved oxygen levels at or above State standards (Grogan 2005, pp. 2-3). The APC also initiated studies to document the range, numbers, demographics, and life history of tulotoma in the reach of the Coosa River below Jordan Dam and to determine the effects of the new minimum flow regime (Christmanet al.1996, p. 18). Other studies were also conducted to monitor long-term population trends in this reach of the Coosa River (e.g.,De Vries 2005). Numerous tulotoma colonies have been discovered as a result of the monitoring efforts. With increased flows, additional colonies have become established in the upper portion of the reach and, in the downstream areas, the tulotoma has extended its range laterally within the channel in habitats made available by the constant minimum flows. Thousands of colonies consisting of more than 100 million tulotoma now inhabit a 10-km (6-mi) reach of the Coosa River below the Jordan Dam (Christmanet al.1996, p. 59; DeVries 2004, pp. 8-10, 2005 p. 14).

In 1991, tulotoma were also known to occur in 2 km (1.2 mi) of Kelly Creek, 4 km (2.4 mi) of Weogufka Creek, 3 km (1.8 mi) of Hatchet Creek, and from a single shoal on Ohatchee Creek (Herschleret al.1990, p. 819). These four known tributary populations of tulotoma were considered to be extremely localized, vulnerable to water quality or channel degradation, and susceptible to decline and extirpation from effects of nonpoint source pollution and stochastic events within their respective watersheds. As a result of studies and surveys, we now know that the range of tulotoma is greater than estimated at the time of listing for three of these populations, and tulotoma is now known to occur in a 13.7-km (8.5-mi) reach of Weogufka Creek, a 14-km (8.8-mi) reach of Hatchet Creek, and a 5.8-km (3.6-mi) reach of Kelly Creek (DeVries 2005 pp. 11-13). Tulotoma colony sizes within these three populations have remained stable over a 12-year period (DeVries 2005, pp. 11-13). The Kelly Creek tulotoma population has expanded into an approximately 8-km (5-mi) reach of the middle Coosa River above and below the confluence of Kelly Creek (Garner 2003, Lochamy 2005, Powell 2005), likely as a result of implementation of pulsing flows below Logan Martin Dam to improve dissolved oxygen levels (Krotzer 2008). No tulotoma have been rediscovered in the Ohatchee Creek shoal population for 15 years, and, therefore, the population is now believed to be extirpated (DeVries 2005, p. 10).

Although the Ohatchee Creek population has apparently become extirpated since the time of listing (DeVries 2005, p. 10), other tributary stream surveys have located three populations in the Lower Coosa River drainage that were unknown at the time of listing. Tulotoma are now known from a 0.8-km (0.5-mi) reach of Choccolocco Creek, a 0.4-km (0.25-mi) reach of Yellowleaf Creek, and about 2 km (1.2 mi) of Weoka Creek (DeVries 2005, pp. 10-13). Although very localized, the Choccolocco Creek population has remained stable in colony size and numbers over the past decade (DeVries 2005, pp. 10-11). The Weoka Creek population has been sampled only twice since its discovery; however, tulotoma colonies are abundant in the stream reach, and average colony size is larger than any other tributary population (DeVries 2005, pp.13-14.) The Yellowleaf Creek population is localized, small, and has not been routinely monitored; however,occasional spot checks show the species continues to persist (Johnson 2006).

Tulotoma colonies have also been discovered at three locations in the Alabama River: Near the type locality below Claiborne Lock and Dam in Monroe County, Alabama (Garner 2006); below Millers Ferry Lock and Dam in Wilcox County, Alabama (Powell 2008); and below Robert F. Henry Lock and Dam at a location in Autauga and Lowndes Counties, Alabama (Garner 2008), and at a locality in Dallas County, Alabama (Johnson 2008). The presence of juvenile and adult tulotoma in these three river reaches indicates that the newly discovered colonies are self-maintaining.

The 1991 listing rule (56 FR 797) noted the vulnerability of localized (isolated) tributary populations to nonpoint source pollution, specifically siltation from construction activities. The extirpation of the Ohatchee Creek population is suspected to be due to sedimentation and nutrient enrichment from nonpoint sources in the watershed. Although other monitored tulotoma populations have remained stable or expanded since listing, they remain vulnerable to water and habitat quality degradation, particularly in the tributaries. Lower Choccolocco Creek is on the State list of impaired waters for organic pollution due to contaminated sediments (Alabama Department of Environmental Management (ADEM) 2006, p. 5). Yellowleaf Creek and several other lower Coosa River watersheds have been identified as High Priority Watersheds (i.e.,vulnerable to degradation) by the Alabama Clean Water Partnership (ACWP) (ACWP 2005a, Chapter 12) due to the high potential of nonpoint source pollution associated with expanding human population growth rates and urbanization. For example, the headwaters of Yellowleaf Creek are about 5 km (3 mi) southeast of the greater metropolitan area surrounding Birmingham, Alabama, and the watershed is highly dissected by county roads. High sediment discharge has been identified as an issue in Kelly Creek (ACWP in prep., p. 43), and potential fecal coliform problems have been documented at several locations in Choccolocco Creek (ACWP in prep., p. 38). However, the ACWP has also developed locally endorsed and supported plans to address nonpoint source pollution and maintain and improve water quality in the lower Coosa River Basin (ACWP 2005a, pp. 3.1-3.48) and in the middle Coosa River Basin (AWCP in prep., pp. 49-50) (see Factor D. below for further detail on monitoring plans). Full implementation of current programs and plans will reduce the vulnerability of tributary populations to nonpoint source pollution.

Summary of Factor A:The range of tulotoma has increased from 6 populations in 1991, occupying 2 percent of its historical range, to a total of 10 populations, occupying 10 percent of the historical range. In addition, these populations are found in a wide range of historically occupied habitats, including large coastal plain rivers, large high-gradient rivers, and multiple upland tributary streams. Populations known at the time of listing have been monitored, and with the exception of Ohatchee Creek, were found to be stable or increasing. Four of the six populations discovered since 1991 have been monitored for 2 to 12 years. The Choccolocco Creek population has remained stable for 12 years. The Yellowleaf Creek population has not been routinely monitored, and we cannot determine a population trend beyond mere presence or absence; however, occasional spot checks show the species continues to persist (Johnson 2006). The Weoka Creek and Lower Alabama River populations have been observed and monitored for a period of 4 and 2 years, respectively; however, this is not a sufficient amount of time to be able to determine a population trend.

Habitat-related threats have been addressed in the Coosa River through establishing minimum flows or pulsing flows below Jordan and Logan Martin Dam, respectively. Habitat conditions have improved; occupied habitat has expanded in the Coosa River below Jordan Dam; and tulotoma numbers are now estimated at greater than 100 million individuals. The ranges of tulotoma populations in Kelly, Weogufka, and Hatchet Creek have expanded 2- to 5-fold since listing. Tulotoma colony densities within these populations have remained stable or increased.

Tulotoma remains extirpated from approximately 90 percent of its historical range, and surviving populations remain isolated, localized, and vulnerable to nonpoint source pollution. These conditions are expected to continue for the foreseeable future. While monitored populations have persisted and expanded over the past two decades, and a program to address nonpoint source pollution in the Coosa and Alabama Rivers and their tributaries has been established by ACWP and ADEM, the tulotoma continues to be threatened by the destruction, modification, or curtailment of its habitat and range such that the tulotoma is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.

B.Overutilization for commercial, recreational, scientific, or educational purposes.Overutilization was not a threat when the species was listed in 1991, but the final listing rule noted the vulnerability and susceptibility of the localized populations to overcollecting should the tulotoma, with its ornate shell, become important to the commercial pet trade (56 FR 797; January 9, 1991). However, there has been no evidence to date that any commercial use in the pet trade industry has occurred.

In summary, overutilization for any purpose is not currently considered a threat to tulotoma, and is not likely to become a threat within the foreseeable future.

C.Disease or predation.The January 9, 1991, final rule (56 FR 797) listing the tulotoma found no evidence of disease or predation as a threat, and we are not aware of any evidence since listing that suggests tulotoma is currently threatened by disease or predation or likely to become so within the foreseeable future.

D.The inadequacy of existing regulatory mechanisms.At the time of the 1991 listing, existing laws were considered inadequate to protect the tulotoma. The species was not officially recognized by Alabama as needing any special protection or given any special consideration under other environmental laws when project impacts were reviewed.

Tulotoma are now protected from collection or commerce under Alabama Nongame Species Regulations 220-2-92. In addition, the Alabama Department of Conservation and Natural Resources (ADCNR) recognizes tulotoma as a Species of Highest Conservation Concern (Mirarchiet al.2004, p. 120; ADCNR 2005, p. 301). The persistence of tulotoma and the improvement of some populations over time is an indication that existing regulatory mechanisms are now providing some measure of consideration and protection of the species. For example, the Alabama Total Maximum Daily Load (TMDL) Program has been implemented to identify and reduce water pollution in impaired waters (ADEM 2007). Under this program, Choccolocco Creek has been identified as impaired, and plans are under development to remove contaminated sediments.

The ACWP has been organized to educate and coordinate public participation in water quality issues, particularly nonpoint source pollutionand implementation of TMDLs (http://www.cleanwaterpartnership.org). The ACWP, in coordination with ADEM, has developed a Lower Coosa River Basin Management Plan and an Alabama River Basin Management Plan to address nonpoint source pollution and watershed management issues (AWCP 2005a, p. I; AWCP 2005b, pp. xv-xvii). The Lower Coosa Plan includes the watersheds of the Yellowleaf, Weogufka, Hatchet, and Weoka Creek populations, along with the Coosa River below Jordan Dam, while the Alabama River Basin Plan includes the watersheds of the newly discovered Alabama River tulotoma population. A draft Middle Coosa River Basin Management Plan, which includes Choccolocco and Kelly Creeks, is under development (AWCP in prep., pp. i, v-vi, 43). These plans are a mechanism to identify water quality problems in the drainages, educate the public, and coordinate activities to maintain and improve water quality in the basins; however, they have yet to be fully implemented.

Federal status under the Act continues to provide additional protections to the tulotoma not available under State laws. For example, during recent water shortages due to an extended drought in the Southeast, emergency consultation under section 7 of the Act was conducted between the Service, Federal Energy Regulatory Commission (FERC), and APC representatives on efforts to conserve water by decreasing minimum flows below Jordan Dam. The consultation identified measures to be implemented to minimize impacts to tulotoma and monitor the effects of the reductions (e.g.,FERC 2007, pp. 1-8).

Summary of Factor D:Although additional regulatory mechanisms have been developed since listing including Alabama's regulations to prevent collection or commerce and various water quality programs and initiatives, tulotoma drainage populations require further regulations that would ensure improved water quality and water availability in some areas. At present, without the protections of the Act, the tulotoma remains threatened by the inadequacy of existing regulatory mechanisms such that it is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.

E.Other natural or manmade factors affecting its continued existence.Random or stochastic events such as droughts and chemical spills, and genetic drift were identified in the final listing rule as threats to the species due to its restricted range, isolation of the populations, and lack of genetic exchange between populations. The tulotoma's restricted range and isolation remain the greatest cause of concern for the species' continued existence and are factors that compound the effects of the other threats identified above. Within its respective watersheds, each population is vulnerable to changes in land use that might result in detrimental impacts (e.g.,urbanization and increased nonpoint source pollution). All populations also remain independently vulnerable to stochastic threats such as droughts or chemical spills. These threats, however, have been somewhat offset by the extension of the ranges of the populations known at listing and by the discovery of additional populations within the historical range of the species.

In general, larger populations are more resilient to stochastic events than extremely small populations. For example, due to the extended 2007 drought in the Southeast, minimum flows below Jordan Dam were reduced in order to conserve water in upstream reservoirs for water supply and hydroelectric production. The reduction in flows led to high amounts of suspended algal material and fine sediment, which are harmful to tulotoma (Powell 2008) and resulted in the stranding and estimated mortality of more than 73,000 tulotoma in the Coosa River below Jordan Dam (APC 2008, p. 43). Although this loss seems relatively insignificant in a population estimated at more than 100 million individual tulotoma, it demonstrates the vulnerability of range-restricted populations to stochastic events.

The documentation of more tulotoma populations (since listing) distributed in different watersheds makes rangewide extinction from localized activities or stochastic threats less likely. In addition, although populations remain isolated from each other, the robust size of most populations reduces the threat of genetic drift and bottlenecks. However, each tulotoma population remains vulnerable to natural or human-induced stochastic events within its respective watershed, as demonstrated by the loss of the Ohatchee Creek population. Assessments of tributary populations following the severe 2007 drought found little to no changes in distribution or density of the tulotoma in Kelly, Weogufka, Hatchet, or Choccolocco Creeks (DeVries 2008, p. 3-15). However, tulotoma recruitment was not observed in the Choccolocco Creek population (DeVries 2008, pp. 9-11), and colony densities had declined at Weoka Creek (DeVries 2008, p. 15). The assessment was unable to determine if the Weoka Creek tulotoma decline was attributed to the drought or human impacts (DeVries 2008, p. 15).

Summary of Factor E:Although extension of the ranges of tulotoma populations and discovery of additional populations makes rangewide extinction from localized activities or stochastic threats less likely, all tulotoma populations remain individually vulnerable to stochastic threats such as drought and chemical spills and threatened by changes in land use. Given the relatively small number of populations, Factor E is still a threat to the tulotoma such that it is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.

In developing this rule, we have carefully assessed the best scientific and commercial data available regarding the threats facing this species, as well as the ongoing conservation efforts. Although reduced, three of the five listing factors continue to pose a known threat to the tulotoma: The present or threatened destruction, modification, or curtailment of its habitat or range (Factor A); inadequacy of regulatory mechanisms (Factor D); and other natural or manmade factors affecting its continued existence (Factor E).

The Mobile River Basin Aquatic Ecosystem Recovery Plan (U.S. Fish and Wildlife Service 2000) (see “Recovery Achieved” above) states that the tulotoma should be considered for reclassification from endangered to threatened status when an updated status review of the species is completed and a stable or increasing tulotoma population in the Coosa River below Jordan Dam is confirmed. The 5-year review of the status of tulotoma, completed in 2008, documented an increase in extent and size of tulotoma populations in the Coosa River, Kelly Creek, Weogufka Creek, and Hatchet Creek (U.S. Fish and Wildlife Service 2008). Threats to the species have also been reduced through habitat improvements in the Coosa River, identification of six drainage populations of the species that were unknown at the time of listing, development of watershed management plans, and protection of tulotoma under State laws. However, delisting criteria for the tulotoma have not been met as watershed plans that protect and monitor water quality and habitat quality in occupied watersheds have not been fully implemented.

Recovery plans are intended to guide and measure recovery. Recovery criteria for downlisting and delisting are developed in the recovery planningprocess to provide measureable goals on the path to recovery; however, precise attainment of all recovery criteria is not a prerequisite for downlisting or delisting. Rather, the decision to change the status of a listed species under the Act is based on the analysis of the 5 listing factors identified in section 4 of the Act. The Act provides for downlisting from endangered to threatened when the best available data indicate that a species, subspecies, or distinct population segment is no longer in danger of extinction throughout all or a significant portion of its range.

Based on the analysis above and given the reduction in threats, the tulotoma is not currently in danger of extinction throughout all its range. In the section that follows, we consider whether it is in danger of extinction in a significant portion of its range.

Having determined that the tulotoma snail is no longer endangered throughout its range as a consequence of the threats evaluated under the five factors in the Act, we must next consider whether there are any significant portions of its range where the species is currently endangered. A portion of a species' range is significant if it is part of the current range of the species and is important to the conservation of the species as evaluated based upon its representation, resiliency, or redundancy.

The first step in determining whether a species is endangered in a significant portion of its range is to identify any portions of the range that warrant further consideration. The range of a species can theoretically be divided into portions in an infinite number of ways. However, there is no purpose to analyzing portions of the range that are not reasonably likely to be significant. To identify only those portions that warrant further consideration, we determine whether there is substantial information indicating that: (1) The portions may be significant, and (2) the species may be in danger of extinction there. In practice, a key part of this analysis is whether the threats are geographically concentrated in some way. If the threats to the species are essentially uniform throughout its range, no portion is likely to warrant further consideration. Moreover, if any concentration of threats applies only to portions of the range that are not significant to the conservation of the species, such portions will not warrant further consideration.

If we identify any portions that warrant further consideration, we then determine whether the species is in fact endangered in any significant portion of its range. Depending on the biology of the species, its range, and the threats it faces, it may be more efficient for the Service to address the significance question first, and in others the status question first. Thus, if the Service determines that a portion of the range is not significant, the Service need not determine whether the species is endangered there. Conversely, if the Service determines that the species is not endangered in a portion of its range, the Service need not determine if that portion is significant.

For the tulotoma we applied the process described above to determine whether any portions of the range warranted further consideration. Habitat quality is variable throughout the range of the tulotoma. However, the basic biological components necessary for the tulotoma to complete its life history are present throughout the areas currently occupied by each population, and there is no particular location or area that provides a unique or biologically significant function necessary for tulotoma recovery. The quantity of habitat available to each surviving population of tulotoma is also variable.

Although the threats identified above are common to all areas currently occupied by tulotoma, the magnitude of the threats are likely higher in the stream reaches where tulotoma colonies are currently extremely localized, such as Yellowleaf and Choccolocco Creeks and the Alabama River. However, due to habitat limitations and the resulting small range of tulotoma in each of these stream reaches (each less than 2 percent of currently occupied range) they are not significant to the species in a noticeable or measurable way. In addition, we concluded through the five-factor analysis that the existing or potential threats (Factors A, D, and E) are uniform throughout its range, and there is no portion of the range where one or more threats is geographically concentrated. Therefore, we have determined that there are no portions of the range that qualify as a significant portion of the range in which the tulotoma is in danger of extinction currently or within the foreseeable future.

As required by the Act, we considered the five potential threat factors to assess whether tulotoma is endangered or threatened throughout all or a significant portion of its range. Based on habitat improvements, the numbers of tulotoma populations now known (10 populations found in 8 discrete drainages), the robust size of most of these populations (numbering in the thousands to tens of millions of individual tulotoma), the stability of monitored populations over the past 15 years, and current efforts toward watershed quality protection, planning, and monitoring, we have determined that none of the existing or potential threats, either alone or in combination with others, are likely to cause the tulotoma to become in danger of extinction within the foreseeable future throughout all or a significant portion of its range. However, we have determined that threats to the tulotoma still exist, specifically as a result of water quality and quantity issues as discussed under Factors A, D, and E. Due to these continued threats, the tulotoma meets the definition of threatened in that it is likely to become endangered within the foreseeable future throughout all or a significant portion of its range. Therefore, we are reclassifying the tulotoma's status from endangered to threatened under the Act.

Conservation measures provided to species listed as endangered or threatened under the Act include recognition, recovery actions, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing increases public awareness of threats to the tulotoma, and promotes conservation actions by Federal, State, and local agencies, private organizations, and individuals. The Act provides for possible land acquisition and cooperation with the States, and provides for recovery planning and implementation. The protection required of Federal agencies and the prohibitions against taking and harm are discussed, in part, below.

Section 7(a) of the Act, as amended, requires Federal agencies to evaluate their actions with respect to the tulotoma. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. If a Federal action may affect the tulotoma or its habitat, the responsible Federal agency must consult with the Service to ensure that any action authorized, funded, or carried out by such agency is not likely to jeopardize the continued existence of the tulotoma. Federal agency actions that may require consultation include, but are not limited to, the carrying out or the issuance of permits for reservoir construction, stream alterations, discharges, wastewater facility development, water withdrawal projects, pesticide registration, mining, and road and bridge construction.

The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to all threatened wildlife. These prohibitions, codified at 50 CFR 17.21 and 50 CFR 17.31, in part, make it illegal for any person subject to the jurisdiction of the United States to take (includes harm, harass, and pursue, hunt, shoot, wound, kill, trap, capture or collect, or to attempt to engage in any such conduct), import or export, ship in interstate commerce in the course of commercial activity, or sell or offer for sale in interstate or foreign commerce any listed species of wildlife. It is also illegal to possess, sell, deliver, carry, transport, or ship any such wildlife that has been taken illegally. Certain exceptions apply to Service agents and agents of State conservation agencies.

We may issue permits to carry out otherwise prohibited activities involving threatened wildlife under certain circumstances. Regulations governing permits are codified at 50 CFR 17.32. Such permits are available for scientific purposes, to enhance the propagation or survival of the species, and for incidental take in the course of otherwise lawful activities. For threatened species, permits are also available for zoological exhibition, educational purposes, or special purposes consistent with the purposes of the Act.

Questions regarding whether specific activities will constitute a violation of section 9 of the Act should be directed to the U.S. Fish and Wildlife Service, Ecological Services Office, 1208-B Main Street, Daphne, Alabama 36526 (telephone 251/441-5181). Requests for copies of the regulations regarding listed species and inquiries about prohibitions and permits may be addressed to the U.S. Fish and Wildlife Service, Ecological Services Division, 1875 Century Boulevard, Suite 200, Atlanta, Georgia 30345 (telephone 404/679-7217, facsimile 404/679-7081).

This rule revises 50 CFR 17.11(h) to reclassify the tulotoma from endangered to threatened on the List of Endangered and Threatened Wildlife. However, this reclassification does not significantly change the protection afforded this species under the Act. Anyone taking, attempting to take, or otherwise possessing a tulotoma, or parts thereof, in violation of section 9 is subject to a penalty under section 11 of the Act. Pursuant to section 7 of the Act, all Federal agencies must ensure that any actions they authorize, fund, or carry out are not likely to jeopardize the continued existence of the tulotoma.

Recovery objectives and criteria for tulotoma will be revised in the Recovery Plan. Recovery actions directed at the tulotoma will continue to be implemented as outlined in the current Recovery Plan (U.S. Fish and Wildlife Service 2000), including: (1) Protecting habitat integrity and quality; (2) informing the public about recovery needs of tulotoma; (3) conducting basic research on the tulotoma and applying the results toward management and protection of the species and its habitats; (4) identifying opportunities to extend the range of the species; and (5) monitoring the populations.

Finalization of this rule does not constitute an irreversible commitment on our part. Reclassification of the tulotoma to endangered status would be possible if changes occur in management, population status, habitat, or other actions that would detrimentally affect the populations or increase threats to the species.

In developing this rule we did not conduct or use a study, experiment, or survey requiring peer review under the Data Quality Act (Pub. L. 106-554).

This rule does not contain any new collections of information that require approval by OMB under the Paperwork Reduction Act. This rule will not impose recordkeeping or reporting requirements on State or local governments, individuals, businesses, or organizations. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.

We have determined that we do not need to prepare an Environmental Assessment or Environmental Impact Statement, as defined in the National Environmental Policy Act of 1969 (42 U.S.C. 4321et seq.), in connection with regulations adopted pursuant to section 4(a) of the Endangered Species Act. We published a notice outlining our reasons for this determination in theFederal Registeron October 25, 1983 (48 FR 49244).

In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), Executive Order 13175, and the Department of Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. We have determined that there are no Tribal lands affected by this rule.

Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. This rule is not expected to significantly affect energy supplies, distribution, and use. Therefore, this action is not a significant energy action and no Statement of Energy Effects is required.

A complete list of references cited is available athttp://www.regulations.govin Docket No. FWS-R4-ES-2008-0119 and upon request from the Jackson, Mississippi Ecological Services Office (seeFOR FURTHER INFORMATION CONTACT).

The primary author of this document is Paul Hartfield, Jackson, Mississippi Ecological Services Office (seeFOR FURTHER INFORMATION CONTACT).

Therefore, for the reasons stated in the preamble, we amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as follows:

The reef fish fishery of the Gulf of Mexico is managed under the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico (FMP). The FMP was prepared by the Council and is implemented through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Act.

On April 21, 2011, in response to a finding that the gag resource continues to be overfished and experiencing overfishing, NMFS published a proposed temporary rule that is finalized here, and requested public comment on that proposal (76 FR 22345).

This final temporary rule reduces the commercial quota for gag from 1.49 million lb (0.68 million kg) to 430,000 lb (195,045 kg), reduces the commercial SWG quota from 6.22 million lb (2.82 million kg) to 5.16 million lb (2.34 million kg), suspends red grouper multi-use allocation in the Gulf grouper and tilefish IFQ program, and implements a recreational fishing season for gag from September 16 through November 15, with a 2-fish daily bag limit. The purpose of this final temporary rule is to reduce overfishing of the gag resource in the Gulf. No changes from the proposed temporary rule were made to this final rule as a result of public comment.

This action reduces the commercial quota for SWG species to 5.16 million lb (2.34 million kg) from the 6.22 million lb (2.82 million kg) SWG quota which was implemented through a regulatory amendment to the FMP on January 1, 2011 (75 FR 74656, December 1, 2011). Because a gag interim rule that reduced the SWG quota even further became effective that same day on January 1, 2011 (75 FR 74650, December 1, 2011), NMFS delayed effectiveness of the 6.22 million lb (2.82 million kg) quota until further notification in theFederal Register. This temporary final rule further delays the effectiveness of the 6.22 million lb (2.82 million kg) SWG quota and implements a reduced SWG quota of 5.16 million lb (2.34 million kg). After termination or expiration of this interim final rule, the timing of which is uncertain, NMFS will announce the effective date of the 6.22 million lb (2.82 million kg) SWG quota, unless this rule is superseded by subsequent rulemaking.

The following is a summary of the comments NMFS received on the proposed rule and NMFS' respective responses. During the comment period, NMFS received 24 comments on the proposed rule.Three comments from non-governmental organizations supported the management measures contained in the proposed temporary rule. The remaining comments came primarily from the recreational sector of the Gulf reef fish fishery, as well as one state agency and one commercial fisherman. Those comments opposed one or more of the management measures contained in the proposed temporary rule, and are addressed below.

Comment 1:A number of commenters questioned the scientific basis used to assess the gag stock and how scientific information was applied to support fishery management decisions. They indicated the data NMFS used were outdated or flawed, or in some cases data were ignored.

Response:Stock assessments are conducted under the scientifically peer reviewed Southeast Data, Assessment,and Review (SEDAR) process, which was initiated in 2002 to improve the quality and reliability of fishery stock assessments in the South Atlantic, Gulf of Mexico, and U.S. Caribbean. SEDAR seeks improvements in the scientific quality of stock assessments and supporting information available to address existing and emerging fishery management issues. This process emphasizes constituent and stakeholder participation in assessment development, transparency in the assessment process, and a rigorous and independent scientific review of completed stock assessments. SEDAR is organized around 3 workshops: data, assessment, and expert review. The data workshop documents, analyzes, and reviews datasets to be used for assessment analyses. The assessment workshop develops and refines quantitative population analyses and estimates population parameters. The final workshop is conducted by a panel of independent experts who review the data and the assessment and recommend the most appropriate values of critical population and management quantities. The 2006 gag assessment and 2009 update assessment were conducted using the SEDAR process, including 2010 assessment reanalyses to better account for discarded fish. All of these assessments were used in determining the management measures contained in this temporary rule. All workshops and Council-initiated meetings reviewing the assessment were open to the public and included constituent participation on the various SEDAR panels to ensure the transparency of the data and how it was applied in the assessments. In addition, the Council's Scientific and Statistical Committee (SSC) reviewed assessment results and made recommendations to the Council about the adequacy of the assessments and at what level to set the acceptable biological catch. The Council took all of this information into consideration when recommending the management measures contained in this temporary rule. The finding of the SSC and Council are therefore the result of rigorous application of scientific principles.

Comment 2:Several individuals questioned that red tide could be responsible for the 2005 mortality event modeled in the gag update assessment.

Response:Red tide is believed to have contributed to the 2005 episodic mortality event. In the 2009 update assessment, 10 models were run that varied different parameters within the assessment. The model with the best fit was one which took into account decreases in indices of abundance thought to have occurred because of the red tide event documented in 2005. Although this model cannot show a direct link between the red tide event and the decrease in gag abundance, it does indicate a variable was present in 2005 that depressed the stock size. The assessment panel felt that the 2005 red tide event was the factor that best explained this depressed stock.

Comment 3:Several commenters indicated gag are plentiful and, therefore, further management measures beyond those in place in 2010 are unnecessary. Other commenters indicated that although the gag population does seem depressed, the proposed management measures seem overly restrictive. Several commenters suggested alternative management measures including different seasonal closures, reduced bag limits, or increased size limits.

Response:The 2006 assessment and 2009 update assessment for gag used a variety of data including those from fishery dependent and fishery independent sources. Several models were used including models that took into account a 2005 episodic mortality event. These models consistently indicated the gag stock was depressed. The model recommended by the Council's SSC was the one that took into account the 2005 episodic mortality event, and that best explained the current estimated gag numbers. This model indicated the stock was overfished and undergoing overfishing, prompting NMFS to inform the Council of this condition and that, pursuant to the Magnuson-Stevens Act, the stock needs to be rebuilt. There was some question about the model results because of how discards were estimated in the model. A SEDAR panel was convened to address these questions and reanalyzed the 2009 update assessment. The reanalysis of the assessment did not substantially alter the assessment outcome, that the stock was overfished and undergoing overfishing.

In evaluating different management measures, the Council examined alternative seasonal closures, area closures, bag limits, and size limits. Because of the magnitude of discards by the recreational sector, only the seasonal closure alternatives would meet the required reductions. Bag limit changes would not substantially change season lengths. Reducing size limits would substantially shorten the season length, and increasing size limits would substantially increase the number of dead discards. Public testimony given at Council meetings either favored a summer or winter season, depending on where people fished. In general, fishermen from Texas and southwest and central Florida favored a winter season, and fishermen from other areas of the Gulf favored a summer season. In seeking a compromise, the Council recommended a fall season because it starts at the very end of the summer and comes very close to the winter months. A fall season maximizes the number of days gag would be open for fishing.

Comment 4:One commenter indicated regionalized gag management should be considered to allow a greater proportion of the gag harvest to occur in areas where gag are more abundant.

Response:Considering regionalized management is outside the scope of this rulemaking because such an approach would not directly reduce overfishing, as required by the Magnuson-Stevens Act. However, the Council continues to examine regionalized management for reef fish species. In the course of developing long-term management measures in Amendment 32 to the FMP, the Council is considering seasonal-area closures for grouper species which are considered to be a type of regionalized management.

Comment 5:Several commenters indicated the management actions contained in this temporary rule favor the commercial sector over the recreational sector. These commenters suggest that the commercial sector should either be closed, not be allowed to use longline gear, or only harvest gag when the recreational sector is open.

Response:When the allocation of gag harvest was developed for the recreational and commercial sectors in Amendment 30B to the FMP, it was based on average landings for each sector between 1986 and 2005. The resultant recreational and commercial allocation ratio is 61:39, respectively. The management measures contained in this temporary rule were designed to equally reduce the number of gag removals (harvest and dead discards) for each sector to maintain this allocation ratio. Thus, while the recreational regulations may seem more restrictive, they actually allow for a much greater recreational harvest than will be allowed for the commercial sector. It is beyond the scope of this temporary rule to change the allocation ratio. It is also beyond the scope of this temporary rule to ban longline gear; however, recently implemented management measures contained in Amendment 31 to the FMP have reduced the number of longline vessels and further limited where longline vessels can fish.

The commercial sector is managed under an IFQ program where individual fishermen are given an allocation of gagbased on the commercial quota and the number of IFQ shares owned by the fisherman. This individual allocation allows commercial fishermen more flexibility in how they can fish, including fishing year round as long as they still have allocation remaining. If the commercial sector was not allowed to keep gag when the recreational sector was closed, dead discards would increase. Because the commercial sector fishes in waters deeper than where most of the recreational sector fishes, the likelihood of catching undersized fish is less and the chance a discarded fish would die if released is very high. Therefore, by allowing the commercial sector to keep gag year-round as long as an individual fisherman still has allocation, gag could be counted towards the quota and not wasted.

Comment 6:Several commenters indicated fishing effort is down due to current economic conditions, including increased fuel prices.

Response:In developing fishing regulations to limit harvest, recent fishing effort levels are taken into account. Recent data would reflect trends in effort due to factors such as changes in the economy. For example, as described in the environmental assessment, effort in 2009 was below the 2005-2008 average, in part due to changing economic conditions. In addition, in recommending the management measures contained in this temporary rule, the Council heard testimony from constituents who described current conditions in the fishery, including the effects of the economic situation, and how they perceived the rule would affect them.

Comment 7:One commenter questioned why the proposed rule would remove § 622.34 paragraph (v) from the regulations and replace it with § 622.34 paragraph (w).

Response:Section 622.34, paragraph (v), was implemented through a 2010 temporary rule and prohibits the harvest and possession of gag in the Gulf exclusive economic zone (EEZ). The 2010 temporary measure expires on May 31, 2011, unless subsequent rulemaking supersedes this measure. Because the timing of implementation of this new temporary rule was uncertain at the proposed rule stage, the rule proposed to remove paragraph (v) and add paragraph (w) to § 622.34. However, because this new temporary rule will become effective on June 1, 2011, after the current temporary rule expires, NMFS can now add new paragraph (v) instead of paragraph (w) to § 622.34. The new paragraph (v) implements a recreational gag seasonal closure in the Gulf EEZ by setting the gag bag limit to zero from January 1 through September 15, and from November 16 through December 31. This would allow a recreational gag harvest from September 16 through November 15 under a 2-fish bag limit. This paragraph would also be temporary and would remain in effect for 180 days from the rule's publication date, and could be extended for up to an additional 186 days.

Comment 8:One commenter suggested one of the purposes of this proposed rule is to force catch shares on the recreational sector. Another commenter stated his opposition to IFQs in general.

Response:The development of catch shares and IFQ programs as management tools is completely unrelated to this rule. The purpose of this rule is to reduce overfishing of gag, as required by the Magnuson-Stevens Act. Catch shares, or changes to the IFQ program, if considered, would be examined through the deliberative Council system and evaluated through a plan amendment to the FMP.

Comment 9:Several commenters expressed concern over the magnitude of the economic effects on the recreational sector and associated shore-side businesses expected to occur as a result of the proposed temporary rule, and one comment stated that the economic assessment grossly and inadequately understated the economic effects of the recreational component of the proposed action.

Response:The magnitude of the expected economic effects on all affected entities provided in the assessment is consistent with the comments that expressed concern over the magnitude of the economic effects. Substantial gag harvest reductions are necessary, however, to reduce overfishing of the gag resource, and the actions selected are expected to result in the best social and economic outcome.

The comment that claimed the economic assessment grossly and inadequately understated the economic effects claimed that the proposed action would result in the loss of 5,000 jobs and $3 billion in economic activity per year in Florida. This comment also implied that the analysis for the proposed action determined that the total economic value of both gag and red grouper to the recreational fishing industry is only $118 million when the total economic value of saltwater fishing in west Florida is $23 billion.

The estimates of the expected losses in jobs and economic activity provided by this comment were unsubstantiated by either source or methodology, and the “$118 million” estimate of economic value, or a reasonable proxy, cannot be found in the analysis provided for the proposed temporary rule or associated environmental assessment. Therefore, the origin of any of these numbers is unknown.

The assessment of the expected economic effects of the recreational component of the proposed temporary rule included estimates of the expected changes in economic value, as measured by changes in consumer surplus (CS) to recreational anglers and net operating revenues (NOR) to for-hire businesses, and economic impact, also known as economic activity or business activity. Economic activity estimates provide a measure of how expenditures re-circulate through a geographic region and stimulate business sales in multiple production industries, wages and salaries, and jobs.

Both of the measures of economic value (CS and NOR), are net sums, meaning they equal the remaining portion of benefits to anglers and revenues to for-hire vessels after expenditures have been deducted. As described in the assessment, the expected change in economic value is the appropriate measure for the calculation of the costs and benefits to the nation of a proposed management change.

Estimates of changes in economic activity, though not an appropriate measure of economic value, were provided because they may be useful in characterizing potential community and shoreside effects of proposed management actions. Unlike economic value, however, measures of economic activity are not net sums. For example, in the case of business sales, total gross expenditures for an initial purchase of goods or services, as well as any expenditures that were necessary to produce those goods or services and that occurred within the same geographic area, are included in the measure of business activity. It should be clearly understood, therefore, that economic value and economic activity are not equivalent and it is incorrect to equate the two. This comment confuses the two measures and errs in characterizing the “$23 billion” as “economic value” when it should correctly have been labeled “economic activity.” As a result, comparisons of this total with others that may represent economic value, in the case of the “$118 million” figure, or that are measures of economic value, in the case of CS and NOR, are inappropriate and misleading.

Beyond the issue of comparing disjointed concepts, the primary issue associated with this comment is the difference in magnitude of the estimated effects of the proposed action whendealing with the common metric “economic activity.” Although details of the methodology utilized to produce the estimates provided in this comment were not given, the primary difference between the estimated effects provided in the assessment and those provided in this comment is likely the assumption of the number of trips that would be expected to be affected. Calculating this number is a key factor in the effects analysis.

Based on the documented model employed in NMFS' assessment, one full-time equivalent (FTE) job was estimated to be lost for every 1,800 angler trips cancelled in response to the proposed action. As described in the assessment, approximately 315,000 individual angler fishing trips could be cancelled due to this rule. These cancellations would result in the loss of 176 FTE jobs throughout the Gulf region, with 174 of these jobs occurring in Florida. These estimates do not include the effects of trip cancellations in the headboat sector because business activity estimates for this sector are not available. However, this estimate of potentially cancelled trips is considered an upper bound for cancellation in the shore, private, and charter sectors because it assumes all trips that normally would be expected to target gag during the affected period would be cancelled. In reality, many of these trips would be expected to continue and target alternative species or be shifted to the open season. As a result, the over-estimation of the number of affected trips in these other recreational sectors is expected to be sufficient to compensate for the absence of information on the headboat sector. Applying the same ratio of affected trips to jobs to the jobs estimate provided in this comment (5,000 jobs lost in Florida) results in an estimate of approximately 9 million cancelled fishing trips. Available data do not support this estimate. The average number of trips that target gag each year throughout the Gulf of Mexico is estimated to be less than 600,000 trips, while the average number of trips that catch gag is estimated to be less than 1.2 million. The total number of trips for all species in west Florida averages less than 17 million trips per year. As a result, there is no foundation to expect that more than 50 percent of all fishing trips in west Florida would be cancelled as a result of an approximate 10-month prohibition on the recreational harvest of gag.

This final rule contains a change in the codified text from the proposed rule. In the proposed rule, § 622.34 would be amended by removing and reserving paragraph (v), and adding paragraph (w). However, because this final rule will become effective on June 1, 2011, after the current interim rule that added paragraph (v) expires, NMFS no longer needs to add paragraph (w), and can add paragraph (v) back into the codified text instead.

The NMFS Assistant Administrator (AA) has determined that this temporary rule is necessary for the conservation and management of the Gulf gag resource. The AA has also determined that this final temporary rule is consistent with the national standards of the Magnuson-Stevens Act and other applicable laws. The rule may be extended for a period of not more than 186 days, as described in section 305(c)(3)(B) of the Magnuson-Stevens Act.

This final temporary rule has been determined to be not significant for purposes of Executive Order 12866.

NMFS prepared a final regulatory flexibility analysis (FRFA) for this rule. The FRFA incorporates the initial regulatory flexibility analysis (IRFA), a summary of the significant economic issues raised by public comments, NMFS' responses to those comments, and a summary of the analyses completed to support the action. A copy of the full IRFA is available from NMFS (seeADDRESSES). The FRFA follows.

The Magnuson-Stevens Act provides the statutory basis for this final temporary rule. No duplicative, overlapping, or conflicting Federal rules have been identified. This final temporary rule does not establish any new reporting, record-keeping, or other compliance requirements.

A statement of the need for and objectives of this final temporary rule is provided in the supplementary information section of this preamble and is not repeated here.

A summary of the comments received on the proposed temporary rule is provided in the previous section of this preamble. Although NMFS received no comments to the IRFA, some of the comments noted concerns about the effects this rule would have on small businesses. For example, several commenters expressed concern over the magnitude of the economic effects on the recreational sector and associated shore-side businesses expected to occur as a result of this temporary rule. One commenter claimed the economic assessment in the proposed temporary rule grossly and inadequately understated the economic effects that would result from the proposed temporary rule and provided alternative estimates of these effects.

NMFS responded to these comments in detail in the response to comments section of the preamble to this rule. Moreover, in the IRFA, NMFS analyzed the expected economic effects of the proposed action to the recreational sector components of anglers, for-hire businesses, and associated shore-side businesses. The effects of this temporary rule on anglers and shore-side businesses are not germane to the Regulatory Flexibility Act (RFA) analysis because anglers are not small entities within the context of the RFA (see discussion below) and shore-side entities would only be indirectly affected by the proposed action and the RFA does not require NMFS to examine indirect effects. NMFS agrees with the commenters that this rule will result in some economic effects on small (and large) entities. However, as discussed in greater detail below, there are no alternatives that would end overfishing of gag, as is required by the Magnuson-Stevens Act.

With respect to the criticism that NMFS understates the economic effects of this rule, as discussed in the previous section of this preamble, these alternative estimates are undocumented and unsupported by available data. NMFS' earlier response to this criticism is sufficient and is not repeated here.

This temporary final rule is expected to directly affect commercial harvesting and for-hire operations. The Small Business Administration (SBA) has established size criteria for all major industry sectors in the U.S., including fish harvesters. A business involved in fish harvesting is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual receipts not in excess of $4.0 million (NAICS code 114111, finfish fishing) for all its affiliated operations worldwide. For for-hire vessels, the other qualifiers apply and the receipts threshold is $7.0 million (NAICS code 713990, recreational industries).

This temporary final rule is expected to directly affect commercial fishing vessels whose owners possess gag quota shares and for-hire fishing vessels that harvest gag. As of October 1, 2009, 970 entities owned a valid commercial Gulf reef fish permit and were eligible for initial shares and allocation in thegrouper and tilefish IFQ program. Of these 970 entities, 908 received shares and allocation of grouper or tilefish, including 875 that received gag shares and an initial allocation of the commercial gag quota in 2010. These 875 entities are expected to be directly affected by this temporary final rule.

Of the 875 entities that initially received gag shares, 215 did not record commercial landings or revenues in 2008 or 2009. On average, these 215 entities received an initial allocation of 874 lb (397 kg) of gag in 2010. Eight of these 215 entities also received a bottom longline endorsement in 2010. These eight entities received a much higher initial allocation of gag in 2010 than all 215 entities, with an average of 3,139 lb (1,427 kg).

The other 660 entities that initially received gag shares and allocations in 2010 were active in commercial fisheries in 2008 or 2009. The maximum annual commercial fishing revenue in 2008 or 2009 by an individual vessel with commercial gag quota shares was approximately $606,000 (2008 dollars).

The average charter vessel is estimated to earn approximately $88,000 (2008 dollars) in annual revenue, while the average headboat is estimated to earn approximately $461,000 (2008 dollars).

Based on the average revenue values provided above, all commercial and for-hire fishing vessels expected to be directly affected by this temporary final rule are determined, for the purpose of this analysis, to be small business entities.

Of the 660 commercial fishing vessels with commercial landings in 2008 or 2009, 139 vessels did not have any gag landings in 2008 or 2009. The average annual gross revenue by these vessels in 2008 and 2009 was approximately $50,800 (2008 dollars). The vast majority of these vessels' commercial fishing revenue came from snapper, mackerel, dolphin, and wahoo landings. On average, these vessels received an initial allocation of 540 lb (245 kg) of gag quota in 2010.

The remaining 521 commercially active fishing vessels that initially received gag shares recorded landings of gag in 2008 or 2009. Over that 2-year period, these vessels averaged approximately $71,000 (2008 dollars) in annual gross revenue from commercial fishing. On average, these vessels had 2,375 lb (1,080 kg) and 1,300 lb (591 kg) of gag landings in 2008 and 2009, respectively, or 1,835 lb (834 kg) between the 2 years. Gag landings accounted for approximately 8 percent of these vessels' annual average gross revenue and, thus, these vessels were somewhat, though not significantly, dependent on revenue from gag landings. The average initial gag allocation in 2010 for these 521 vessels was 2,121 lb (964 kg). Therefore, on average, the 2008 gag landings for these vessels were very near their 2010 gag allocation, but their 2009 gag landings were considerably less than their 2010 allocation.

Of these 521 vessels, 52 vessels also received a bottom longline endorsement in 2010. The average annual revenue for these 52 vessels was approximately $156,000 (2008 dollars) in 2008 and 2009. Revenue from gag landings for these vessels decreased from approximately $15,900 in 2008 to approximately $8,400 in 2009 and, thus, these vessels became relatively less dependent on gag landings in 2009. These vessels, however, were highly dependent on revenue from red grouper landings, which accounted for 54 percent and 47 percent of their gross revenue in 2008 and 2009, respectively. Revenue from deep-water grouper (DWG) landings by these vessels decreased only slightly, from approximately $36,000 in 2008 to approximately $31,000 in 2009 and, thus, these vessels became relatively more dependent on revenue from DWG landings. The average initial 2010 allocation of gag for these vessels was approximately 5,507 lb (2,503 kg), while their average gag landings were 3,933 lb (1,788 kg) and 2,204 lb (1,002 kg) in 2008 and 2009, respectively. Thus, vessels that have a bottom longline endorsement have been harvesting well below their allocation in recent years, particularly in 2009.

The for-hire fleet is comprised of charter vessels, which charge a fee on a vessel basis, and headboats, which charge a fee on an individual angler (head) basis. The harvest of gag in the EEZ by for-hire vessels requires a charter vessel/headboat permit for Gulf reef fish. On March 23, 2010, there were 1,376 valid or renewable for-hire Gulf reef fish permits. A valid permit is a non-expired permit. Expired reef fish for-hire permits may not be actively fished, but are renewable for up to 1 year after expiration. Because of the extended permit renewal period, numerous permits may be expired but still renewable at any given time of the year. The majority (823, or approximately 60 percent) of the 1,376 valid or renewable permits were registered with Florida addresses. The registration address for the Federal permit does not restrict operation to Federal waters off that state; however, vessels would be subject to any applicable state permitting requirements. Although the permit does not distinguish between headboats and charter vessels, NMFS estimates that 79 headboats operate in the Gulf. The majority of these vessels (43, or approximately 54 percent) operate from Florida ports. Because nearly 99 percent of gag target effort and 97 percent of the economic impacts from recreational gag fishing in the Gulf occur in west Florida, NMFS assumed that the 823 for-hire vessels (780 charter vessels and 43 headboats) with permit registration addresses in Florida will be directly affected by this action.

The 215 entities with gag shares that did not participate in commercial fishing in 2008 or 2009 have no commercial fishing revenue and did not earn any profit from commercial fishing in those 2 years. The reduction in this rule of the commercial gag quota from 1.49 million lb (0.68 million kg) to 430,000 lb (195,045 kg) will reduce these vessels' average allocation of gag in 2011 from 952 lb (433 kg) to 275 lb (125 kg), or by approximately 677 lb (308 kg). Using the average 2008 gag price of $3.52 per pound, this loss in allocation could potentially represent a loss of nearly $2,400 (2008 dollars) in gross revenue per entity. Using the 2010 average price of $1.00 per pound of gag allocation, this loss in allocation could potentially represent a loss of $670 (2008 dollars) in net revenue per entity. For the eight entities within this group that also possess longline endorsements, their average allocation of gag in 2011 will be reduced from 3,418 lb (1,554 kg) to 987 lb (449 kg), or by 2,431 lb (1,105 kg). Thus, the potential loss in gross revenue and net revenue to these eight entities is estimated to be approximately $8,600 and $2,500 (2008 dollars), respectively.

However, in general, these potential losses in gross revenue and net revenue will only be realized if these 215 entities not only become active in commercial fishing, but also intend to harvest gag in 2011 at a level above their reduced allocation. That is, because they have not used their quota (and thus gained revenue to lose) in recent years, a reduction in allocation can only lead to a reduction in landings and, thus, gross revenue, if these entities intend to harvest at levels above their reduced allocation. Alternatively, these losses in gross and net revenue could accrue to a loss of ability by these entities to sell the allocations they will lose under the temporary action, though this possibility presumes that a demand for these allocations will exist. Regardless, the significance of these potential losses in gross and net revenue to these 215 entities cannot be evaluated because ofthe lack of information on potential gross revenue, net revenue, and profits from commercial fishing in general and specifically for gag.

Similarly, the 139 entities with gag shares that participated in commercial fisheries other than gag earned approximately $50,800 in annual gross revenue on average in 2008 and 2009. Profit estimates for these vessels are not currently available. However, because these entities did not have any gag landings in 2008 or 2009, none of their gross revenue or profit was the result of gag harvests. Under the temporary rule, the average allocation of gag in 2011 for these entities will be reduced from 588 lb (267 kg) to 170 lb (77 kg), or by 418 lb (190 kg). Using the average 2008 price of $3.52 per pound, this loss in allocation could potentially represent a loss of nearly $1,500 (2008 dollars) in gross revenue per entity. Using the 2010 average price of $1.00 per pound of gag allocation, this loss in allocation could potentially represent a loss of approximately $410 (2008 dollars) in net revenue per entity.

However, these potential losses in gross and net revenue will only lead to a loss in profits if these 139 entities intend to commercially harvest gag in 2011 at a level above their reduced allocation. That is, a reduction in allocation can only lead to a reduction in landings if these entities intend to harvest at levels above their reduced allocation. For example, if these vessels intended to harvest gag in 2011 at a level equivalent to their 2011 allocation, and this harvest was in addition to, rather than in place of, their recent commercial fishing activities, the reduction in allocation could lead to a maximum loss of approximately 3 percent in gross revenue, which could in turn reduce net revenue and profits. Alternatively, losses in gross and net revenue could be due to a potential inability to sell the allocations lost under the temporary final rule, though this possibility presumes that a demand for these allocations will exist.

The 521 entities with gag shares that commercially harvested gag in 2008 or 2009 earned an average gross revenue of approximately $71,000 (2008 dollars) per year. Profit estimates for these vessels are not currently available. However, gag landings accounted for approximately 8 percent of these vessels' average annual gross revenue. As a result, these vessels are somewhat, but not significantly, dependent on revenue from gag landings. Under the temporary final rule, the gag allocations for these vessels will be reduced from 2,310 lb (1,050 kg) to 667 lb (303 kg), or 1,643 lb (747 kg) on average. Because these vessels have been harvesting at levels near their 2010 allocation in recent years, on average, this reduction in gag allocation is likely to lead to an equivalent reduction in gag landings and, therefore, gross revenue. Using the average 2008 price of $3.52 per pound, it is estimated that these vessels could lose nearly $5,800 (2008 dollars), or approximately 8 percent, in annual gross revenue, on average. Using the 2010 average price of $1.00 per pound of gag allocation, these vessels could lose approximately $1,600 (2008 dollars) in net revenue, which is assumed to be representative of profit for commercial vessels, per entity under this temporary final rule.

However, 52 of these 521 vessels also received a bottom longline endorsement in 2010. The average annual gross revenue for these 52 vessels was approximately $156,000 (2008 dollars) in 2008 and 2009, with gag landings accounting for approximately 8 percent of gross revenue. These vessels are more dependent on revenue from red grouper than from gag. Under this action, the allocation of gag in 2011 for these vessels will decrease from 6,215 lb (2,825 kg) to 1,953 lb (888 kg), or by 4,262 lb (1,937 kg). Because these vessels have been harvesting gag at levels near their 2010 allocation on average in recent years, the reduction in gag allocation is expected to lead to an equivalent reduction in gag landings and gross revenue. Using the average 2008 price of $3.52 per pound, it is estimated that these vessels would lose approximately $15,000 (2008 dollars) in annual gross revenue, or nearly 10 percent, on average. Using the 2010 average price of $1.00 per pound of gag allocation, these vessels would lose approximately $4,200 (2008 dollars) in net revenue, which is assumed to be representative of profit, per entity.

No additional economic effects are expected to result from the revised SWG quota because this quota simply reflects the reduction in the commercial gag quota, the effects of which have already been discussed.

Minimal adverse economic effects are expected to result from the action to suspend the conversion of red grouper allocation into multi-use allocation valid toward the harvest of red grouper or gag. Multi-use allocation that has been converted from red grouper allocation can only be used to possess, land, or sell gag after an entity's gag and gag multi-use allocation has been landed, sold, or transferred. As a result of the reduction in the commercial gag quota that will occur under this temporary final rule, it is expected that vessels will exhaust their gag and gag multi-use allocations relatively quickly. Gag commands a higher market price. As a result, gross revenue from commercial fishing revenue and profit per vessel could be reduced as a result of the suspension of multi-use conversion.

NOR is assumed to be representative of profit for for-hire vessels. As previously discussed, it is assumed that 823 for-hire vessels, of which 780 are estimated to be charter vessels and 43 headboats, participate in the gag component of the recreational sector of the Gulf reef fish fishery. Estimates of NOR from recreational fishing for all species by these charter vessels and headboats are not available. However, on average, the NOR per year for vessels from trips targeting gag is estimated to be approximately $1.56 million for all charter vessels (approximately $2,000 per vessel) and approximately $91,300 for all headboats (approximately $2,100 per vessel), or approximately $1.65 million per year for all for-hire vessels.

During the periods when the recreational harvest of gag is prohibited, some trips that normally would be expected to target gag are expected to target other species, while other trips are expected to be cancelled. Estimates of NOR per trip by species targeted, however, are unavailable. Assuming the NOR per trip is constant regardless of the species targeted, for-hire operators will only lose NOR from cancelled trips and not trips directed towards alternative species. Estimates of the actual number of trips that would be expected to be cancelled as a result of the shortened gag season are not available. The following analysis assumes all for-hire trips that would normally be expected to target gag will be cancelled when the recreational sector is closed. Because not all of these trips are likely be cancelled, this analysis overestimates the actual reduction in NOR associated with a shorter season that is expected to occur and the following estimates of losses in NOR and profit for charter vessels and headboats should be considered maximum values.

The establishment of a recreational gag fishing season of September 16, 2011-November 15, 2011, is expected to result in a maximum reduction of NOR of approximately $435,000 and $28,000 from trips targeting gag on charter vessels and headboats, respectively, or approximately $463,000 across both fleets. These reductions translate into per-vessel averages of approximately $560 and $660 for charter vessels and headboats, respectively, or approximately 28 percent and 31 percent of profits. If this temporary finalrule is extended an additional 186 days, as allowed under the Magnuson-Stevens Act for interim or emergency measures, the reductions in NOR for charter vessels and headboats are estimated to be, in total over the entire period (366 days), approximately $1.41 million and $81,800, respectively, or $1,808 and $1,902 per charter vessel and headboat.

This temporary rule is not expected to affect the profit from charter vessel or headboat trips that do not target gag. For-hire vessel dependence on fishing for individual species cannot be determined with available data. Although some for-hire vessels are likely more dependent on trips that target gag than other for-hire vessels, overall, only approximately 3 percent of for-hire anglers are estimated to target gag. As a result, while shortening the gag season action is expected to substantially affect the NOR derived from gag trips, overall, gag trips do not comprise a substantial portion of total for-hire trips, nor are these trips, by extension, expected to account for a substantial portion of total fleet-wide for-hire NOR.

Two alternatives, including the status quo, were considered to setting the gag commercial quota at 430,000 lb (195,045 kg). The first alternative, the status quo, would have maintained the gag commercial quota at 1.49 million lb (0.68 million kg). This alternative is not consistent with the goals and objectives of the Council's plan to manage gag to achieve the mandates of the Magnuson-Stevens Act. Specifically, selection of this alternative would be inconsistent with current National Standard 1 guidance because the commercial quota would be above the commercial annual catch target (ACT) of 500,000 lb (226,796 kg), which is based on the Council's defined FOY(fishing mortality at the optimum yield) yield of 1.28 million lb (0.58 million kg) for 2011. In addition, this alternative would promote overfishing and slow recovery of the stock.

The second alternative would have set the gag commercial quota at 100,000 lb (45,539 kg). This alternative is based on the request made by the Council in August 2010 for the interim rule that published December 1, 2010, and reflects the uncertainty in the stock status at that time due to questions regarding how commercial and recreational discards were treated in the assessment update. When this commercial quota was recommended, it was unknown how revisions to the treatment of discards might influence the reanalysis of the updated stock assessment. If the reanalysis yielded a more pessimistic condition of the stock, then setting the harvest based on the FOYyield, estimated then at 390,000 lb (177,273 kg), would not reduce overfishing sufficiently to allow the stock to begin to recover within the maximum time frame allowed under the Magnuson-Stevens Act. The 100,000 lb (45.539 kg) commercial quota was recommended because some gag are expected to be incidentally caught by the commercial sector while fishing for other species. Further, most discarded gag die after being released due to the high discard mortality rate associated with fishing at deeper depths. Rather than waste all of these fish, the Council set the quota at a level that would allow some fish to be retained and be counted towards the commercial quota.

As of March 2, 2011, over 65 percent of the gag IFQ shareholders had less than 50 lb (23 kg) in allocation still available to them. Thus, if the commercial quota were not set at a level above 100,000 lb (45,539 kg), gag would likely be lost through dead discards rather than kept and counted towards the commercial quota as fishermen run out of allocation. However, the reanalysis of the assessment showed a slight increase in the projected yields under the FOYif Florida adopted compatible regulations for the recreational sector. Because Florida adopted compatible regulations for the recreational sector, a higher commercial quota is allowable.

One alternative, the status quo, was considered to suspending vessels' ability to convert red grouper allocation into multi-use allocation valid toward the harvest of red grouper or gag. This alternative would have continued to allow 4 percent of the red grouper allocation to be converted into multi-use allocation, and would be expected to result in gag harvests exceeding the annual catch limit, promote overfishing, and slow recovery of the stock, contrary to the Council's objectives. Further, this alternative would also be expected to result in greater adverse economic effects stemming from the corrective measures that would be implemented to address the over-harvesting of gag.

Three alternatives, including the status quo, were considered to establishing a recreational fishing season for gag of September 16, 2011, through November 15, 2011. The first alternative, the status quo, would maintain the recreational ACT at 2.20 million lb (1 million kg), and anglers would be able to harvest the 2-fish daily bag limit for gag starting June 1, 2011. Depending on whether 2006-08 or 2009 is used as the baseline, the estimated reduction in removals under this alternative would be between 15 percent and 20 percent, which is insufficient to allow the stock to rebuild, and would be inconsistent with the stock rebuilding plan being developed by the Council. In addition, this alternative is inconsistent with the Magnuson-Stevens Act and current National Standard 1 guidance because the expected level of harvest would be above the recreational ACT of 780,000 lb (353,802 kg), which is based on the Council's defined FOYyield of 1.28 million lb (0.58 million kg) for 2011. Further, this alternative would promote overfishing and slow recovery of the stock.

The second alternative would set the gag bag limit to zero and, thereby, prohibit the recreational harvest of gag. This alternative would reduce fishing mortality the most out of all the alternatives considered and, therefore, generate the greatest biological benefits for the gag stock. Although this alternative would not allow the recreational harvest of gag while the interim rule is in effect, the number of dead discards would also be expected to be reduced because no recreational fishing trips would be expected to target gag. Because Florida adopted compatible regulations, this alternative would reduce the harvest sufficiently in 2011 to be consistent with the Council's rebuilding plan in Amendment 30B to the FMP, as it would reduce removals between 58 percent and 67 percent and, as such, end overfishing. If Florida had not adopted compatible regulations, the estimated reduction in removals would be between 43 percent and 61 percent, which would reduce, but might not be sufficient to end, overfishing. Because no recreational harvest of gag would be allowed, this alternative would be expected to result in greater economic losses to the for-hire sector than this temporary rule. However, when the Council requested the current temporary rule, it intended to allow some recreational harvest of gag in 2011 and establish that level of harvest under the long-term management measures being developed in Amendment 32 to the FMP. This alternative would not accomplish that goal, and so was not selected.

The third alternative would establish a recreational fishing season for gag of July 1, 2011, through August 15, 2011, and, thus, would allow for some recreational harvest of gag in 2011 as the Council intended when it requested the current interim rule. This alternative would establish a 46-day recreational fishing season, which is less than the 61-day season under this temporary rule. This alternative also minimally overlaps with the red snapper season, which begins on June 1. This alternativewould provide for-hire vessels with a greater number of options when marketing summer trips. The reduction in removals under this alternative would be expected to be between 49 percent and 60 percent and, therefore, might be sufficient to end overfishing.

The Council heard public testimony regarding potential recreational seasons for gag at its February 2011 meeting. Participants in the recreational sector asked for either a summer or winter season depending on their geographic location. In general, recreational participants from Texas, southwest Florida, and central Florida favored a winter season, while recreational participants from other areas of the Gulf favored a summer season. In looking for a compromise, the Council recommended the proposed recreational season with no changes to the bag limit or size limit. The proposed recreational season would cover the end of the summer recreational fishing season and run through the beginning of the winter recreational fishing season. In addition, the estimated reductions in removals under the proposed recreational season are between 50 percent and 54 percent, which might be sufficient to end overfishing.

Pursuant to 5 U.S.C. 553(d)(3), NMFS finds that delaying this rule's effective date for 30 days is impracticable and contrary to the public interest, and therefore there is good cause to waive the 30-day delay in effectiveness of this rule.

A delay is impracticable, because it would contribute to overfishing of gag, which is contrary to National Standard 1 of the Magnuson-Stevens Act, which requires NMFS to conserve and manage ocean resources to prevent overfishing while achieving the optimum yield from each fishery. Without this rule, on June 1, 2011 the current gag temporary rule will expire, which would allow the commercial sector to harvest gag using red grouper multi-use allocation and the recreational sector to harvest gag in Federal waters. These harvests could result in further overfishing of gag, contrary to NMFS' statutory obligations. By implementing this rule immediately, red grouper multi-use allocation will be suspended and the recreational sector for gag will be closed to gag harvest until the 2-month gag season, which opens on September 16 and closes on November 15, 2011.

In addition, delaying the effectiveness of this rule for 30-days is contrary to the public interest. This rule replaces the current fishing season for gag with a 2-month recreational fishing season for gag in the fall. Recreational fishing businesses need to be able to plan for this season, and any delay in implementing this rule will delay their ability to plan for this new season, and risk economically injuring these entities. Moreover, many Gulf reef fish fishermen have already exhausted their gag allocation for the year, and this temporary rule will allow them to catch more gag. Without the increased allocation of gag, gag bycatch in the commercial sector would increase, leading in turn to a higher gag mortality rate, and a further reduction of the gag resource, which would be contrary to the public's interest.

Accordingly, the 30-day delay in effectiveness of the measures contained in this temporary rule is waived.

For the reasons set out in the preamble, 50 CFR part 622 is amended as follows:

Section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) provides authority for rulemaking to address an emergency. Under that section, a Regional Fishery Management Council may recommend emergency rulemaking, if it finds an emergency exists. At its June 2010 meeting, the North Pacific Fishery Management Council (Council) voted 10 to 1 to request that NMFS promulgate an emergency rule to exempt non-AFA trawl C/Ps and Amendment 80 cooperatives from the 2010 and 2011 GRS in the Bering Sea and Aleutian Islands management area (BSAI).

On December 15, 2010, NMFS published an emergency action to exempt the non-AFA trawl C/Ps and Amendment 80 cooperatives from regulations implementing the GRS program at 50 CFR 679.27(j)(1) through (4), through June 13, 2011 (75 FR 78172). NMFS invited public comments until January 14, 2011. NMFS received four public comments from two unique persons during the public comment period for the emergency rule exempting non-AFA trawl C/Ps and Amendment 80 cooperatives from the minimum GRS established under Amendment 79. The comments are summarized and responded to below; however, this emergency rule extension makes no changes to the exemptions contained in the initial emergency action.

This extension of the emergency rule exempting non-AFA trawl C/Ps and Amendment 80 cooperatives from regulations establishing the GRS minimum retention standards continues to remove all regulatory incentive for the Amendment 80 sector to meet or exceed retention standards for 2011. However, non-AFA trawl C/Ps and Amendment 80 cooperatives are still required to meet all applicable record keeping, monitoring, and permitting regulations, including but not limited to 50 CFR 679.93(c) and 679.7(g), which ensure proper catch accounting under the Amendment 80 quota-based catch share management program. The preamble to the emergency rule (75 FR 78172, December 15, 2010) provides additional background information.

Section 305(c)(3)(B) of the Magnuson-Stevens Act authorizes NMFS to extend the emergency action for up to 186 days beyond the June 13, 2011, expiration of the initial emergency action, provided the public has had an opportunity to comment on the emergency action and, in the case of a Council recommendation, the Council has recommended NMFS implement a regulatory amendment to address the emergency on a permanent basis.

The initial emergency rule exempted vessels from a portion of the 2011 fishing year and thereby precluded the calculation of compliance with the annual GRS; however, an extension is necessary to relieve these vessels from the requirement to retain groundfish at 85 percent or higher for 2011. This extension is necessary because any lapse in an exemption from the minimum retention regulations would require all non-AFA trawl C/Ps and Amendment 80 cooperatives to retain groundfish at the 85 percent minimum retention standard for 2011. With this emergency rule extension, owners and operators of vessels in the non-AFA trawl C/Ps and Amendment 80 cooperatives are exempt from 679.27(j)(1) through (4) through December 17, 2011.

At its February 2011 meeting, the Council recommended a preferred alternative to permanently address the emergency that would remove the GRS program and instead require annual reporting of retention rates. The emergency rule extension would provide relief for the non-AFA trawl C/Ps and Amendment 80 cooperatives in 2011 while the Council and NMFS prepare regulatory amendment documents for review by the Secretary of Commerce.

NMFS received four comments from two unique persons on the emergency rule exempting non-AFA trawl C/Ps and Amendment 80 cooperatives from the GRS for 2010 and 2011. Both commenters generally support NMFS emergency action. The comments are summarized and responded to as follows:

Comment 1:Both commenters support NMFS' emergency action and encourage NMFS to extend the emergency rule while an alternative program is developed by the Council. These letters described the economic burden of the GRS on the industry and they noted the inability to fully monitor and enforce the minimum standards as justification to extend the emergency rule.

Response:NMFS notes the support for emergency action and its extension. This rule may be extended for a period of not more than 186 days as described under section 305(c)(3)(B) of the Magnuson-Stevens Act; therefore, this emergency action would not exempt vessels from the GRS in the 2012 fishing year. At its February 2011 meeting, the Council took final action on a regulatory amendment to remove provisions of the GRS program and instead establish new reporting requirements for the non-AFA trawl C/Ps and Amendment 80 cooperatives. Based on experience with similar actions, NMFS expects this regulatory amendment to be effective by the start of the 2012 fishing year.

Comment 2:NMFS should have included the various monitoring requirements at § 679.27(j)(5) through (7) in the emergency rule exempting § 679.27(j)(1) through (j)(4). Several of these regulations could impose unnecessary and unneeded burden on the fleet. NMFS should correct these oversights by extending the emergency exemption to include all of § 679.27(j).

Response:NMFS disagrees. The Council recommended and NMFS concurred with taking emergency action to exempt non-AFA trawl C/Ps and Amendment 80 cooperatives from the minimum retention requirements. Emergency action was necessary because (1) the regulatory methodology used to calculate compliance with the annual GRS differs from the methodology the Council used to set the minimum retention standard and (2) the high enforcement and prosecution costs associated with the GRS.

To meet the objectives of this action, NMFS exempted non-AFA trawl C/Ps and Amendment 80 cooperatives from the GRS compliance calculations and the minimum retention schedule foundat § 679.27(j)(1) through (4). NMFS did not include the remaining paragraphs in this section because these regulations directly regulate the monitoring, recordkeeping, offloading, and reception of catch from other vessels and do not directly relate to the establishment of or calculations associated with the minimum retention standards under the GRS program. Removing these monitoring and enforcement requirements may affect the non-AFA trawl C/Ps and Amendment 80 cooperatives in ways not considered or intended by the Council at the time they recommended the emergency action.

Comment 3:The monitoring requirements at § 679.27(j)(5) were ordered vacated by the U.S. Court of Appeals for the District of Columbia Circuit in December 18, 2007. Please clarify whether these regulation are still effective.

Response:On December 18, 2007, the U.S. Court of Appeals for the District of Columbia Circuit issued a decision invalidating three monitoring and enforcement requirements associated with the Bering Sea and Aleutian Islands Groundfish Retention Standard Program that would have been effective on January 20, 2008 (No. 06cv00835;Fishing Company of Alaska, Inc.,v.Gutierrez, et al.). In accordance with the court's ruling, NMFS issued information bulletins (08-4) and (08-7), which announced that the regulation at 50 CFR 679.7(m)(5) is invalid and void, and would not be enforced by NMFS. NMFS also announced that the phrase, “at a single location” contained in the first sentence of 50 CFR 679.27(j)(5)(ii), and that the last sentence of 50 CFR 679.27(j)(5)(iii) are invalid and void, and will not be enforced by NMFS. Other regulations pertaining to the BSAI GRS were unaffected by the court's decision and have been in effect since January 20, 2008.

Although the regulatory text at § 679.27(j)(5)(i) through (iii) has not been modified to reflect the specific portions vacated by the U.S. Court of Appeals, NMFS notified Amendment 80 vessel owners and operators of the scope of the court's ruling in a letter dated January 7, 2008. NMFS clarifies that the remaining text of § 679.27(j)(5) remains applicable to the non-AFA trawl C/Ps and Amendment 80 cooperatives. For the purposes of complying with the regulatory change, vessel owners are advised to see the actual text in the Code of Federal Regulations athttp://www.gpoaccess.gov/cfr/index.html.

Comment 4:Regulations at § 679.27(j)(5) through (7) are redundant with regulations established for monitoring Amendment 80 program and are not effective. One commenter also suggested removing § 679.27(j)(7) from regulations in any proposed action to remove the GRS program.

Response:NMFS acknowledges that many objectives for establishing monitoring and enforcement regulations under Amendment 80 were similar to those under Amendment 79; however, regulations at § 679.27(j)(5) through (7) were not intended to be affected by this action; see response to Comment 2 of this preamble.

Furthermore, NMFS disagrees that the regulations implementing Amendment 80 are redundant with those at § 679.27(j)(5) through (7). The regulations implementing Amendment 80 established a rights-based quota management program that expanded the GRS program to include all non-AFA trawl C/Ps regardless of size and Amendment 80 cooperatives. The Council recommended and NMFS implemented enhanced monitoring and enforcement regulations because of the increased incentive for the non-AFA trawl C/Ps and Amendment 80 cooperatives to engage in presorting or “high grading” of catch prior to weighing under the quota-based catch share management plan. Although the regulations implementing Amendment 80 did not remove any of the monitoring and enforcement regulations established under the GRS program, the regulations implementing Amendment 80 provided additional measures to sufficiently minimize the under-reporting or misreporting of catch under that program.

The Assistant Administrator for Fisheries, NOAA, has determined that this emergency rule extension is consistent with the national standards and other provisions of the Magnuson-Stevens Act and other applicable laws. NMFS has the authority to extend the emergency action for up to 186 days beyond the June 13, 2011, expiration of the initial emergency action, as authorized under section 305(c)(3)(B) of the Magnuson-Stevens Act.

The Assistant Administrator for Fisheries, NOAA, finds good cause pursuant to 5 U.S.C. 553(b)(B) to waive prior notice and the opportunity for public comment because it would be impracticable and contrary to the public interest. In the initial emergency rule published on December 15, 2010 (75 FR 78172), NMFS requested public comment and received two unique letters containing four substantive public comments.

This action extends without change, the exemptions contained in the initial emergency action. If the initial emergency action were allowed to lapse, regulations at 50 CFR 679.27(j)(1) through (4) would require all non-AFA trawl C/Ps and Amendment 80 cooperatives to retain groundfish at the 85 percent minimum retention standard for 2011 and each following year. As described in the initial emergency action, exempting a vessel from a portion of the year precludes the calculation of annual compliance with the GRS. This lack of regulatory clarity could cause economic harm to fishery participants required to meet an unenforceable retention standard much higher than the Council recommended. Extending the exemptions of the emergency rule without additional notice and opportunity for public comment will ensure the 2011 groundfish fishery continues uninterrupted and will prevent unnecessary adverse economic impacts. Therefore, for the reasons outlined above, the Assistant Administrator finds it is unnecessary and contrary to the public interest to provide any additional notice and opportunity for public comment under 5 U.S.C. 553(b)(B) prior to publishing the emergency rule extension.

Because this rule relieves a restriction by exempting vessel owners and operators from the GRS minimum retention standards, it is not subject to the 30-day delayed effectiveness provision of the APA pursuant to 5 U.S.C. 553(d)(1).

This emergency rule extension has been determined to be not significant for purposes of Executive Order 12866. The regulatory impact review prepared for this action is available from NMFS (seeADDRESSES).

No duplication, overlap, or conflict between this action and existing Federal rules has been identified.

This emergency rule is exempt from the procedures of the Regulatory Flexibility Act because the rule is not subject to the requirement to provide prior notice and opportunity for public comment pursuant to 5 U.S.C. 553 or any other law.