I. Background

In accordance with section 513(f)(1) of the Federal Food, Drug, and Cosmetic Act (FD&C Act) (21 U.S.C. 360c(f)(1)), devices that were not in commercial distribution before May 28, 1976 (the date of enactment of the Medical Device Amendments of 1976), generally referred to as postamendments devices, are classified automatically by statute into class III without any FDA rulemaking process. These devices remain in class III and require premarket approval, unless and until the device is classified or reclassified into class I or II, or FDA issues an order finding the device to be substantially equivalent, in accordance with section 513(i) of the FD&C Act, to a predicate device that does not require premarket approval. The Agency determines whether new devices are substantially equivalent to predicate devices by means of premarket notification procedures in section 510(k) of the FD&C Act (21 U.S.C. 360(k)) and part 807 of the regulations (21 CFR part 807).

Section 513(f)(2) of the FD&C Act provides that any person who submits a premarket notification under section 510(k) of the FD&C Act for a device that has not previously been classified may, within 30 days after receiving an order classifying the device into class III under section 513(f)(1), request FDA to classify the device under the criteria set forth in section 513(a)(1). FDA will, within 60 days of receiving this request, classify the device by written order. This classification will be the initial classification of the device. Within 30 days after the issuance of an order classifying the device, FDA must publish a notice in theFederal Registerannouncing this classification.

In accordance with section 513(f)(1) of the FD&C Act, FDA issued an order on September 13, 2010, classifying the CLEAR 440 Series of hearing aids into class III, because it was not substantially equivalent to a device that was introduced or delivered for introduction into interstate commerce for commercial distribution before May 28, 1976, or a device that was subsequently reclassified into class I or class II. On October 13, 2010, Widex Hearing Aid Co. submitted a petition requesting classification of the CLEAR 440 Series of hearing aids under section 513(f)(2) of the FD&C Act. The manufacturer recommended that the device be classified into class II (Ref. 1).

In accordance with section 513(f)(2) of the FD&C Act, FDA reviewed the petition in order to classify the device under the criteria for classification set forth in section 513(a)(1). FDA classifies devices into class II if general controls by themselves are insufficient to provide reasonable assurance of safety and effectiveness, but there is sufficient information to establish special controls to provide reasonable assurance of the safety and effectiveness of the device for its intended use. After review of the information submitted in the petition and information submitted during interactive review, FDA determined that the device can be classified into class II with the establishment of special controls. FDA believes these special controls will provide reasonable assurance of the safety and effectiveness of the device.

The device is assigned the generic name wireless air-conduction hearing aid, and it is identified as a wearable sound-amplifying device, intended to compensate for impaired hearing, that incorporates wireless technology in its programming or use.

FDA has identified the following risks to health associated with this type of device and the measures required to mitigate these risks:

FDA believes that the following special controls, in addition to general controls, address the risks to health and provide reasonable assurance of the safety and effectiveness of the device: (1) Appropriate analysis/testing should validate EMC and safety of exposure to non-ionizing radiation; (2) Design, description, and performance datashould validate wireless technology functions; and (3) Labeling should specify appropriate instructions, warnings, and information relating to EMC and wireless technology and human exposure to non-ionizing radiation. Therefore, on March 31, 2011, FDA issued an order to the petitioner classifying the device into class II. FDA is codifying the classification of the device by adding § 874.3305.

Following the effective date of this final classification rule, any firm introducing a wireless air-conduction hearing aid into interstate commerce in the United States will need to comply with the special controls named in the regulation. However, the firm need only show that its device meets the recommendations of the special controls or in some other way provides equivalent assurance of safety and effectiveness.

Section 510(m) of the FD&C Act provides that FDA may exempt a class II device from the premarket notification requirements under section 510(k) if FDA determines that premarket notification is not necessary to provide reasonable assurance of the safety and effectiveness of the device. For this type of device, FDA has determined that premarket notification is not necessary to provide reasonable assurance of the safety and effectiveness of the device. Therefore, this device type is exempt from premarket notification requirements.

The Agency has determined under 21 CFR 25.34(b) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

FDA has examined the impacts of the final rule under Executive Order 12866, Executive Order 13563, the Regulatory Flexibility Act (5 U.S.C. 601-612), and the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). Executive Order 12866 directs Agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). The Agency believes that this final rule is not a significant regulatory action under Executive Order 12866.

The Regulatory Flexibility Act requires Agencies to analyze regulatory options that would minimize any significant impact of a rule on small entities. Because reclassification of this device from class III to class II will relieve manufacturers of the device of the cost of complying with the premarket approval requirements of section 515 of the FD&C Act (21 U.S.C. 360e), and may permit small potential competitors to enter the marketplace by lowering their costs, the Agency certifies that the final rule will not have a significant economic impact on a substantial number of small entities.

Section 202(a) of the Unfunded Mandates Reform Act of 1995 requires that Agencies prepare a written statement, which includes an assessment of anticipated costs and benefits, before proposing “any rule that includes any Federal mandate that may result in the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any one year.” The current threshold after adjustment for inflation is $136 million, using the most current (2010) Implicit Price Deflator for the Gross Domestic Product. FDA does not expect this final rule to result in any 1-year expenditure that would meet or exceed this amount.

FDA has analyzed this final rule in accordance with the principles set forth in Executive Order 13132. Section 4(a) of the Executive order requires Agencies to “construe * * * a Federal statute to preempt State law only where the statute contains an express preemption provision or there is some other clear evidence that the Congress intended preemption of State law, or where the exercise of State authority conflicts with the exercise of Federal authority under the Federal statute.” Federal law includes an express preemption provision that preempts certain state requirements “different from or in addition to” certain Federal requirements applicable to devices. (See section 521 of the FD&C Act (21 U.S.C. 360k); SeeMedtronicv.Lohr,518 U.S. 470 (1996);Riegelv.Medtronic, Inc.,552 U.S. 312 (2008). The special controls established by this final rule create “requirements” for specific medical devices under 21 U.S.C. 360k, even though product sponsors have some flexibility in how they meet those requirements. (SeePapikev.Tambrands, Inc.,107., 107 F.3d 737, 740-42 (9th Cir. 1997).)

FDA concludes that this final rule contains no new collections of information. Therefore, clearance by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520) is not required.

The following references have been placed on display in the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852, and may be seen by interested persons between 9 a.m. and 4 p.m., Monday through Friday.

1. Petition from Widex Hearing Aid Co., dated October 13, 2010.

Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, 21 CFR part 874 is amended as follows:

PBGC's regulations on Allocation of Assets in Single-Employer Plans (29 CFR part 4044) and Benefits Payable in Terminated Single-Employer Plans (29 CFR part 4022) prescribe actuarial assumptions—including interest assumptions—for valuing and paying plan benefits under terminating single-employer plans covered by title IV of the Employee Retirement Income Security Act of 1974. The interest assumptions in the regulations are also published on PBGC's Web site (http://www.pbgc.gov).

The interest assumptions in Appendix B to Part 4044 are used to value benefits for allocation purposes under ERISA section 4044. PBGC uses the interest assumptions in Appendix B to part 4022 to determine whether a benefit is payable as a lump sum and to determine the amount to pay. Appendix C to part 4022 contains interest assumptions for private-sector pension practitioners to refer to if they wish to use lump-sum interest rates determined using PBGC's historical methodology. Currently, the rates in Appendices B and C of the benefit payment regulation are the same.

The interest assumptions are intended to reflect current conditions in the financial and annuity markets. Assumptions under the asset allocation regulation are updated quarterly; assumptions under the benefit payments regulation are updated monthly. This final rule updates the benefit payments interest assumptions for July 2011 and updates the asset allocation interest assumptions for the third quarter (July through September) of 2011.

The third quarter 2011 interest assumptions under the allocation regulation will be 4.21 percent for the first 25 years following the valuation date and 4.34 percent thereafter. In comparison with the interest assumptions in effect for the second quarter of 2011, these interest assumptions represent an increase of five years in the select period (the period during which the select rate (the initial rate) applies), an increase of 0.25 percent in the select rate, and an increase of 0.02 percent in the ultimate rate (the final rate).

The July 2011 interest assumptions under the benefit payments regulation will be 2.25 percent for the period during which a benefit is in pay status and 4.00 percent during any years preceding the benefit's placement in pay status. In comparison with the interest assumptions in effect for June 2011, these interest assumptions represent a decrease of 0.25 percent in the immediate annuity rate and are otherwise unchanged.

PBGC has determined that notice and public comment on this amendment are impracticable and contrary to the public interest. This finding is based on the need to determine and issue new interest assumptions promptly so that the assumptions can reflect current market conditions as accurately as possible.

Because of the need to provide immediate guidance for the valuation and payment of benefits under plans with valuation dates during July 2011, PBGC finds that good cause exists for making the assumptions set forth in this amendment effective less than 30 days after publication.

PBGC has determined that this action is not a “significant regulatory action” under the criteria set forth in Executive Order 12866.

Because no general notice of proposed rulemaking is required for this amendment, the Regulatory Flexibility Act of 1980 does not apply. See 5 U.S.C. 601(2).

In consideration of the foregoing, 29 CFR parts 4022 and 4044 are amended as follows:

Regulatory Information

On November 16, 2010, we published a notice of temporary deviation request for comments entitled “Drawbridge Operation Regulation; Atlantic Intracoastal Waterway (AIWW), Elizabeth River, Southern Branch, VA” in theFederal Register(75 FR 69879) and a notice of proposed rulemaking (NPRM) entitled “Drawbridge Operation Regulation; Atlantic Intracoastal Waterway (AIWW), Elizabeth River, Southern Branch, VA” in theFederal Register(75 FR 69906). We received seven comments on the published deviation and NPRM. No public meeting was requested, and none was held.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective in less than 30 days after publication in theFederal Register. Making this rule effective in less than 30 days is necessary in order to continue the construction of the new Gilmerton Bridge Replacement Project without disruption. Additionally, delaying this final temporary could result in additional vehicular traffic congestion without providing any additional benefit to vessel traffic.

The City of Chesapeake, Virginia (the City), who owns and operates the lift-type Gilmerton (US13/460) Bridge, has requested a temporary change to the existing bridge regulations. The current regulation, set out in Title 33 CFR Part117.997(c), requires the Gilmerton (US13/460) Bridge, at AIWW mile 5.8, in Chesapeake to open on signal at anytime for commercial vessels carrying liquefied flammable gas or other hazardous materials. From 6:30 a.m. to 8:30 a.m. and from 3:30 p.m. to 5:30 p.m. Monday through Friday, except Federal holidays, the draw need not open for the passage of recreational or commercial vessels; except the draw shall open for commercial cargo vessels, including tugs, and tugs with tows, if two hours advance notice is given to the Gilmerton Bridge at (757) 545-1512. At all other times, the draw shall open on signal. The current operating schedule has been in effect since November 17, 2003.

The Gilmerton Bridge Replacement project, which is currently underway since November 2009, will provide a new vertical-lift type bridge over the Southern Branch of the Elizabeth River to replace the existing bridge that was constructed in 1938.

Due to the construction for the new Gilmerton Bridge, vehicular traffic is limited to one lane in each direction and the bridge and approaches have experienced back-ups, delays, and congestion. This temporary change will continue to allow, from June 19, 2011, to December 20, 2013, the draw of the Gilmerton (US13/460) Bridge to open on signal at anytime for commercial vessels carrying liquefied flammable gas or other hazardous materials, and at anytime for commercial cargo vessels, including tugs, and tugs with tows, if two hours advance notice is given to the Gilmerton Bridge at (757) 545-1512, but will extend by one-hour; from 6:30 a.m. to 9:30 a.m. and from 3:30 p.m. to 6:30 p.m., Monday through Friday, except Federal holidays; the time each day when the draw need not open for the passage of recreational or commercial vessels.

From 9:30 a.m. to 3:30 p.m. Monday through Friday and from 6:30 a.m. to 6:30 p.m. Saturdays, Sundays and Federal holidays, the draw shall open on signal hourly on the half hour; except the draw shall open anytime for commercial cargo vessels, including tugs, and tugs with tows, if two hours advance notice is given to the Gilmerton Bridge at (757) 545-1512. At all other times, the draw shall open on signal. By expanding the morning and evening rush hour periods on the weekdays and implementing scheduled bridge openings between the rush hour periods and on the weekends, we anticipated a decrease in vehicular traffic congestion during the daytime hours.

Concurrent with the publication of the Notice of Proposed Rulemaking (NPRM), a Test Deviation [USCG-2010-0879] was issued to allow the City to test the proposed schedule and to obtain data and public comments. The test deviation was in effect during the entire Notice of Proposed Rulemaking comment period. Also, a count of the delayed vessels during the closure periods was taken to ensure a future regulation would not have a significant impact on navigation. The NPRM was coordinated with the main commercial waterway user group, specifically, the Virginia Maritime Association who represents waterborne commerce in the Port of Hampton Roads, and there was no expectation of any significant impacts on navigation.

Vessel traffic on this waterway consists of pleasure craft, tug and barge traffic, and ships with assist tugs. There are no alternate routes for vessels transiting this section of the Atlantic Intracoastal Waterway and the drawbridge will be able to open in the event of an emergency.

According to records furnished by the City, there were a total of 6,195 bridge openings and 12,498 vessel passages occurring at the drawbridge between September 2009 and September 2010. (See Table A)

Under normal conditions, the Gilmerton (US13/460) Bridge is a vital transportation route for over 35,000 motorists per day. According to recent vehicular traffic counts submitted by the City, the average daily traffic volume decreased at the Gilmerton (US13/460) Bridge to approximately 20,000 cars a day. Due to construction, the I-64 High Rise Bridge is the suggested alternate route for motorists. Even with the alternative vehicular route, the Coast Guard anticipates continued vehicular traffic congestion over the Gilmerton Highway Bridge due to the reduction of highway lanes and anticipates that traffic congestion will subside once the new bridge is completed.

The Coast Guard received seven responses to the NPRM including two comments from the same respondent. Six comments were submitted online tohttp://www.regulations.gov,with one remark forwarded by e-mail.

The respondents, all mariners, expressed the following remarks and recommendations:

The first comment recommended operating procedures for inclusion in the regulatory language. The suggestions offered are the following:

1.If any vessel is approaching the bridge and cannot reach the draw exactly on the half hour, the draw tender may delay the opening up to 10 minutes past the half hour for passage of the approaching vessel and any other vessels that are waiting to pass.

The Coast Guard considered the proposal reasonable and will add the suggestion to the final rule.

2.If Norfolk & Southern RailroadBridge #7 adjacent to Gilmerton Bridge is closed at the time of a scheduled opening AND a vessel(s) is waiting that requires opening of the Gilmerton Bridge, the Gilmerton Bridge shall open as soon as Railroad Bridge #7 opens, to allow passage of the vessel(s) waiting from the scheduled opening time. Any other vessels that may have accumulated can pass through with the original vessel(s) that was delayed.

For these situations, the Coast Guard will make the following changes: If the Norfolk & Southern Railroad Bridge #7,at mile 5.8, is not opened during a particular scheduled opening for the Gilmerton Bridge and vessels were delayed, the draw tender at the Gilmerton Bridge may provide a single opening for waiting vessels once the Norfolk & Southern Railroad Bridge #7 reopens for vessels.

The second and third comments were opposed to the temporary regulations and suggested that the drawbridge opening restrictions during the weekday (between 6:30 a.m. to 9:30 a.m.) include one opening for vessels at 8:30 a.m. in order to coincide with the operation of the Dominion Boulevard (US 17) Bridge located across the Southern Branch of the Elizabeth River at AIWW mile 8.8 in Chesapeake VA. Both mariners stated in some measure that:In this way, Belhaven NC, which is approximately 135 miles from Norfolk VA, can be reached. Transiting through at 9:30 a.m. adds an extra day to the trip.

The Coast Guard does not believe that this request is reasonable since purpose of the test deviation and temporary regulations is to help reduce vehicle traffic congestion on the bridge during daytime hours, while providing for the reasonable needs of navigation during the construction of the new Gilmerton Bridge Replacement Project. The addition of a bridge opening at 8:30 would significantly disrupt vehicular traffic during “rush hour” without a corresponding benefit to vessel traffic. Further this is only a temporary change and once the new bridge is completed, the existing operating regulations, set out 33 CFR 117.997(c), will be reinstated.

The fourth comment disagreed with making the proposed bridge opening schedules permanent at this time and requested waiting to see how the traffic flows after the construction is completed. The fifth comment suggested that “We change the operation of the Dominion Boulevard (US 17) Bridge to open for vessels on the half-hour instead of on the hour and change the operation of the Gilmerton Bridge to open for vessels on the hour, because the Great Bridge locks and the Dominion Boulevard Bridge both open on the hour costing vessel traffic an extra hour. Even sailboats could make both bridges and the locks on the suggested schedule, saving congestion and fuel”.

For these comments, the Coast Guard responds by stating that this change is only temporary and will allow adjustments and set opening periods for the bridge to vessels during the day to continue from June 19, 2011 until December 20, 2013. At 6:30 p.m. on December 20, 2013, the temporary regulations will end and the existing operating regulations will be reinstated.

The sixth and seventh comments were submitted by the same respondent. This commenter is opposed to the temporary regulations, the delayed operation of the adjacent Norfolk & Southern Railway Bridge, and the ineffective operating staff at the Gilmerton Bridge.

For these comments, the Coast Guard again responds by stating that this change is only temporary and will allow adjustments and set opening periods for the bridge to vessels during the day to continue from June 19, 2011 until December 20, 2013. At 6:30 p.m. on December 20, 2013, the temporary regulations will end and the existing operating regulations, set out 33 CFR 117.997(c), will be reinstated.

In addition, there are general penalty procedures to facilitate the safe passage of vessels through bridges by deterring any inconvenience or impediment to navigation which may result from the ineffective operation of bridges across navigable waters of the United States. Complainants should forward a report of alleged violations to the district Bridge Program Manager who conducts an investigation to determine if there is sufficient evidence to establish a “prima facie” case. If the material then available indicates that there is not a prima facie case, yet a violation appears imminent, the district Bridge Program Manager may issue a cautionary notice by letter or telephone. If it is determined that a prima facie case does exist, a case file is prepared and forwarded to the Hearing Officer, with a recommended action.

The Coast Guard reviewed the bridge data supplied by the Virginia Department of Transportation (VDOT). The City gathered data during the month of April 2011 to analyze the effect of the temporary deviation on roadway and maritime traffic. According to the City, April was chosen as it falls during the “snowbird season”, when maritime traffic is at its peak. The test regulations had been in effect for three months, providing roadway and maritime traffic time to adjust to the new test regulations. The data was compared to data from April 2010. In summary, the data showed that in April 2011 the bridge made on average 0.7 fewer bridge lifts per day during morning rush hour restrictions (6:30 a.m. to 9:30 a.m.), 1.3 fewer lifts per day during the 9:30 a.m. to 3:30 p.m. timeframe, and 1.7 fewer lifts during the evening rush hour restrictions (3:30 p.m. to 6:30 p.m.).

Vehicular traffic count information, from the VDOT count station on Military Highway near Shell Road, showed an average daily traffic count of 24,717 vehicles crossing the structure during the weekdays in April 2011. This is an increase of approximately 4,700 vehicles per day crossing the bridge since the test regulations went into effect. In conclusion, the test regulation appears to be reducing the number of bridge openings during the weekdays, allowing more vehicles to cross the bridge, and therefore helping to reduce vehicular traffic congestion in the area. The test regulation also appears to be having a minimal impact on maritime traffic. The City would like to continue to institute this temporary regulation until construction on the new Gilmerton Bridge is completed sometime in 2013.

Based on the information provided, we will implement a final rule with minimal changes to the NPRM.

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, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders.

We reached this conclusion based on the fact that the changes are expected to have only a minimal impact on maritime traffic transiting the bridge. Mariners can plan their trips in accordance with the scheduled bridge openings to minimize delays.

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: Owners and operators of vessels other than certain commercial cargo vessels needing to transit the bridge. This rule will not have a significant economic impact on a substantial number of small entities because the rule only adds minimal restrictions to the movement of navigation, by expanding the morning and evening rush hour periods by one hour on the weekdays and implementing scheduled bridge openings between the rush hour periods on weekdays and on the weekends. Mariners who plan their transits in accordance with the scheduled bridge openings can minimize delay.

We received comments about delay issues and have determined that a 10-minute delay of the opening for vessels that are unable to make the half-hour opening is reasonable. In addition, for those vessels whose transit is delayed due to an opening of the Norfolk & Southern Railroad Bridge #7, the Gilmerton (US13/460) Bridge drawtender may provide a single opening after the Norfolk & Southern Railroad Bridge #7 reopens such that those vessels may continue their transit without further delay.

Though two comments were received regarding vessel transit time to Belhaven, NC: (i) This change is only temporary; (ii) this change only adds one hour in the morning and one hour in the evening when the draw need not open for recreational and some commercial vessels; (iii) mariners may pre-plan their trips in accordance with this regulation; (iv) this regulation has been tested for approximately the past three months, thereby providing additional notice to mariners and providing a time-period for them to acquaint themselves with any necessary scheduling alterations for their planned trips; and (v) this change is meant to assist with better facilitating rush hour vehicular traffic for the approximately 20,000 vehicles transiting the bridge while not unreasonably interfering with maritime transiting.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), 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 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, eliminates 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 would 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 would 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 M16475.1D, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), andhave concluded that 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 (32)(e) of the Instruction as this rule is related to the promulgation of operating regulations or procedures for drawbridges.

Under figure 2-1, paragraph (32)(e), of the Instruction, an environmental analysis checklist and a categorical exclusion determination are not required for this rule.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 117 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) with respect to this rule because to do so would be contrary to public interest since the event will have taken place by the time the notice could be published and comments taken.

Fireworks displays create hazardous conditions for the maritime public because of the large number of vessels that congregate near the displays as well as the noise, falling debris, and explosions that occur during the event. The establishment of a safety zone helps ensure the safety of the maritime public by prohibiting persons and vessels from coming too close to the fireworks display and other associated hazards.

This rule establishes four safety zones. The four safety zones are on the Columbia River, Willamette River, Lewis River, and the Pacific Ocean at the mouth of the Chetco River in the specific locations detailed in the rule. All persons and vessels will be prohibited from entering the safety zones during the dates and times they are effective unless authorized by the Captain of the Port or his designated representative.

We developed this rule after considering numerous statutes andexecutive 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 has made this determination based on the fact that the safety zones will only be in effect for three hours on one day in July and maritime traffic may be permitted to transit them with permission from the Captain of the Port or his 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 may affect the following entities some of which may be small entities: The owners or operators of vessels wishing to transit the safety zones established by this rule. The rule will not have a significant economic impact on a substantial number of small entities, however, because the safety zones will only be in effect for three hours on one day in July and maritime traffic may be permitted to transit them with permission from the Captain of the Port or his designated representative.

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

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

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

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

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

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

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

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk 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 that do not individually or cumulatively have a significant effect on the humanenvironment. This rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction. This rule involves the establishment of safety zones. An environmental analysis checklist and a categorical exclusion determination are available in the docket where indicated underADDRESSES.

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

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

(1)Navy Pier Fireworks;on July 2, 2011 from 10 p.m. through 10:30 p.m.; on July 4, 2011 from 9:15 p.m. through 9:45 p.m.; on July 6, 2011 from 9:15 p.m. through 9:45 p.m.; on July 9, 2011 from 10 p.m. through 10:30 p.m.; on July 13, 2011 from 9:15 p.m. through 9:45 p.m.; on July 16, 2011 from 10 p.m. through 10:30 p.m.; on July 20, 2011 from 9:15 p.m. through 9:45 p.m.; on July 23, 2011 from 10 p.m. through 10:30 p.m.; on July 27, 2011 from 9:15 p.m. through 9:45 p.m.; and on July 30, 2011 from 10 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 personsgranted permission to enter the safety zone shall obey all lawful orders or directions of the Captain of the Port, Sector Lake Michigan, or his or her on-scene representative. While within a safety zone, all vessels shall operate at the minimum speed necessary to maintain a safe course.

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

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 any delay encountered in this regulation's effective date by publishing a NPRM would be contrary to public interest since immediate action is needed to provide for the safety of life and property on navigable waters from the hazardous nature of fireworks including unexpected detonation and burning debris. We spoke with each event sponsor and each indicated they were unable and unwilling to move their event date to a later time for the following reasons. Sponsors for Sag Harbor, Mason's Island Yacht Club, Lawrence Beach Club, Cancer Center for Kids, Barnum Festival, Devon Yacht Club, Independence Day Celebration, Go 4th on the Bay, Dolan Family Fourth, City of Long Beach, Shelter Island, Point O'Woods Fire Company, South Bay Go 4th on the Bay Davis Park, North Bay Go 4th on the Bay, and Montauk Yacht Club Independence Day fireworks displays stated they are unwilling to reschedule these events because they are held in conjunction with the Fourth of July holiday and various holiday festivities. Many community members have made holiday plans based on these fireworks events, changing the date would cause numerous cancelations and hurt small businesses. Rescheduling would not be a viable option because most event venues, entertainers and venders have fully booked summer schedules making rescheduling nearly impossible. These fireworks displays are all reoccurring marine events with a proposed permanent rule currently in a public comment period under docket number USCG-2008-0384 titled, Special Local Regulations; Safety and Security Zones; Recurring Events in Captain of the Port Long Island Sound Zone. Additionally, the Coast Guard has ordered safety zones or special local regulations for all of these areas for past events and has not received public comments or concerns regarding the impact to waterway traffic from those events.

The sponsor of the Claim Shell Foundation Fireworks stated they are unwilling to reschedule their event due to other activities being held in conjunction with their fireworks display, including a large community fund raising festival and many festivals put on by local small businesses. Many community members have made plans based on these events and changing the date would cause numerous cancelations and hurt small businesses. This event is a reoccurring marine events with a proposed permanent rule currently in a public comment period under docket number USCG-2008-0384 titled, Special Local Regulations; Safety and Security Zones; Recurring Events in Captain of the Port Long Island Sound Zone. Additionally, the Coast Guard has ordered safety zones or special local regulations for this area for past events and has not received public comments or concerns regarding the impact to waterway traffic from events.

The sponsor for the Chezzam Entertainment Group Fireworks was not aware of the requirements for submitting a marine event application 135 days in advance resulting in a late notification to the Coast Guard. The sponsor is now aware of this for future events. It is not viable for the sponsor to reschedule the event due to other activities being held in conjunction with their fireworks display, including abirthday party celebration involving many out of town guests.

For the same reasons, 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 by first publishing a NPRM would be contrary to the rule's objectives of ensuring safety of life on the navigable waters during these scheduled events as immediate action is needed to protect persons and vessels from the hazardous nature of fireworks including unexpected detonation and burning debris.

The legal basis for the temporary rule is 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701, 3306, 3703; Public Law 107-295, 116 Stat. 2064; and Department of Homeland Security Delegation No. 0170.1, which collectively authorize the Coast Guard to define safety zones.

Marine events are frequently held on the navigable waters within the COTP Long Island Sound Zone. Based on accidents that have occurred in other Captain of the Port zones, and the explosive hazards of fireworks, the COTP Long Island has determined that fireworks launches proximate to watercrafts pose significant risk to public safety and property. The combination of increased numbers of recreation vessels, congested waterways, darkness punctuated by bright flashes of light, and debris falling into the water has the potential to result in serious injuries or fatalities. In order to protect the safety of all waterway users including event participants and spectators, this temporary rule establishes temporary safety zones for the time and location of each event.

This rule prevents vessels from entering, transiting, mooring or anchoring within areas specifically designated as regulated areas during the periods of enforcement unless authorized by the COTP, or designated on-scene patrol personnel.

This temporary rule creates safety zones for all navigable waters within a 1000 foot zone around each firework displays. These events are listed below in the text of the regulation.

Because large numbers of spectator vessels are expected to congregate around the location of these events, the regulated areas are needed to protect both spectators and participants from the safety hazards created by fireworks displays including unexpected detonation and burning debris. During the enforcement period of the regulated areas, persons and vessels are prohibited from entering, transiting through, remaining, anchoring or mooring within the zone unless specifically authorized by the COTP or his designated representatives. The Coast Guard may be assisted by other Federal, state and local agencies in the enforcement of these regulated areas.

The Coast Guard determined that these regulated areas will not have a significant impact on vessel traffic due to their temporary nature and limited size and the fact that vessels are allowed to transit the navigable waters outside of the regulated areas. Additionally, The Coast Guard has ordered safety zones or special local regulations for all of these 17 areas for past events and has not received public comments or concerns regarding the impact to waterway traffic from events.

Advanced public notifications will also be made to the local maritime community by the Local Notice to Mariners as well as Broadcast Notice to Mariners.

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

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, 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 determined that this rule is not a significant regulatory action for the following reasons: The regulated areas will be of limited duration, they cover only a small portion of the navigable waterways, and the events are designed to avoid, to the extent possible, deep draft, fishing, and recreational boating traffic routes. In addition, vessels requiring entry into the area of the regulated areas may be authorized to do so by the Captain of the Port.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which may be small entities: the owners or operators of vessels intending to transit or anchor in the designated regulated area during the enforcement periods stated for each event in the List of Subjects.

The temporary safety zones will not have a significant economic impact on a substantial number of small entities for the following reasons: The regulated areas will be of limited size and of short duration, and vessels that can safely do so may navigate in all other portions of the waterways except for the areas designated as regulated areas. Additionally, before the effective period, the Coast Guard will issue notice of the time and location of each regulated area through a Local Notice to Mariners and Broadcast Notice to Mariners.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 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; 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 the establishment of temporary safety zones. 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 contraryto 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 the Coast Guard did not receive necessary information about the event until May 10, 2011. As a result, the Coast Guard did not have sufficient time to publish an NPRM and to receive public comments prior to the event. Although this event occurs annually, and special local regulations for this event are in the Code of Federal Regulations at 33 CFR 100.701, this year the event host changed the date of the event from the third weekend in July to July 14 through July 17, thereby rendering the special local regulations set forth in 33 CFR 100.701 inapplicable for this year's event. Any delay in the effective date of this rule would be contrary to the public interest because immediate action is needed to minimize the potential danger to race participants, participant vessels, spectators, and the general public.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in theFederal Register. Delaying the effective date would be contrary to the public interest since immediate action is needed to ensure the safety of the event participants, spectator craft, and other vessels transiting the event area.

The legal basis for the rule is the Coast Guard's authority to establish regulated navigation areas and other limited access areas: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Public Law 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.

The purpose of the rule is to protect race participants, participant vessels, spectators, and the general public from the hazards associated with the high-speed boat races.

From July 14, 2011 through July 17, 2011 Augusta Southern Nationals, Inc. is hosting the Augusta Southern Nationals Drag Boat Race, a series of high-speed boat races. The races will take place from 7 a.m. until 7 p.m. If the event is postponed on any of these dates, then the event will also take place on July 18, 2011. The event will be held on the waters of the Savannah River south of Augusta, Georgia. Approximately 125 high-speed power boats will be participating in the races. The high speed of the participant vessels poses a safety hazard to race participants, participant vessels, spectators, and the general public.

The safety zone encompasses certain waters of the Savannah River in Augusta, Georgia. The safety zone will be enforced daily from 6 a.m. until 8 p.m. on July 14, 2011 through July 17, 2011. If the event is postponed due to inclement weather on any of these dates, then the safety zone will be enforced from 6 a.m. until 8 p.m. on July 18, 2011.

Persons and vessels are prohibited from entering, transiting through, anchoring in, or remaining within the safety zone unless authorized by the Captain of the Port Savannah or a designated representative. Persons and vessels desiring to enter, transit through, anchor in, or remain within the safety zone may contact the Captain of the Port Savannah by telephone at 912-652-4353, or a designated representative via VHF radio on channel 16, to request authorization. If authorization to enter, transit through, anchor in, or remain within the safety zone is granted by the Captain of the Port Savannah or a designated representative, all persons and vessels receiving such authorization must comply with the instructions of the Captain of the Port Savannah or a designated representative. The Coast Guard will provide notice of the safety zone by Local Notice to Mariners, Broadcast Notice to Mariners, and on-scene designated representatives.

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, as supplemented by Executive Order 13563, 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 economic impact of this rule is not significant for the following reasons: (1) The safety zone will be enforced for only 14 hours per day for five days; (2) persons and vessels may still enter, transit through, anchor in, or remain within the safety zone if authorized by the Captain of the Savannah or a designated representative; and (3) the Coast Guard will provide advance notification of the safety zone to the local maritime community by Local Notice to Mariners and Broadcast Notice to Mariners.

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 may affect the following entities, some of which may be small entities: The owners or operators of vessels intending to enter, transit through, anchor in, or remain within that portion of the Savannah River encompassed within the safety zone from 6 a.m. until 8 p.m. on July 14, 2011 through July 18, 2011. For the reasons discussed in the Executive Order 12866 and Executive Order 13563 section above, this rule will not have a significant economic impact on a substantial number of small entities.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 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; 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 the establishment of a temporary safety zone that will be enforced for a total of 56 hours. 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 regulation in 33 CFR 165.1315 for fireworks displays in the Columbia River Captain of the Port Zone during the dates and times listed inDATES.

Under the provisions of 33 CFR 165.1315 and 33 CFR 165 Subparts C, no person or vessel may enter or remain in the safety zones without permission of the Captain of the Port, Columbia River or his designated representative. See 33 CFR 165.1315 and 33 CFR 165 subparts C for additional information and prohibitions. Persons or vessels wishing to enter the safety zones may request permission to do so from the on-scene Captain of the Port representative via VHF Channel 16 or 13. The Coast Guard may be assisted by other Federal, State, or local enforcement agencies in enforcing this regulation.

This notice is issued under authority of 33 CFR 165.1315 and 5 U.S.C. 552(a). In addition to this notice in theFederal Register, the Coast Guard will provide the maritime community with notification of this enforcement period via the Local Notice to Mariners.

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 to do so would be contrary to public interest. The safety zone is immediately necessary to help ensure the safety of the response workers and the maritime public due to the ongoing salvage operations involving the M/V DAVY CROCKETT.

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 Registerbecause the safety zone is immediately necessary to help ensure the safety of the response workers and the maritime public due to the ongoing salvage operations involving the M/V DAVY CROCKETT.

The M/V DAVY CROCKETT, a 431 ft barge, is anchored on the Washington State side of the Columbia River at approximately river mile 117. The vessel is in a severe state of disrepair. The Coast Guard, other state and Federal agencies, and Federal contractors are working to remove the vessel. The salvage operations require a minimal wake in the vicinity of the vessel to help ensure the safety of response workers on or near the vessel and in the water. In addition, due the deleterious state of the vessel only authorized persons and/or vessels can be safely allowed on or near it.

A 300 ft safety zone is necessary to keep vessels clear of the ongoing salvage operations surrounding the M/V DAVY CROCKETT. The previous 300 ft safety zone expired on May 17, 2011.

The Coast Guard is extending the enforcement of the safety zone created by this rule until July 31, 2011. The safety zone will cover all waters of the Columbia River encompassed within the following four points: point one at 45°34′59.74″ N., 122°28′35.00″ W. on the Washington bank of the Columbia River then proceeding into the river to point two at 45°34′51.42″ N., 122°28′35.47″ W., then proceeding upriver to the third point at 45°34′51.02″ N., 122°28′07.32″ W., then proceeding to the shoreline to the fourth point on the Washington Bank at 45°34′56.06″ N., 122°28′07.36″ W., then back along the shoreline to point one. Geographically this encompasses all the waters within an area starting at approximately 300 ft upriver from the M/V DAVY CROCKETT extending to 300 ft abreast of the M/V DAVY CROCKETT and then ending 300 ft down river of the M/V DAVY CROCKETT.

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 has made this determination based on the fact that the safety zones created by this rule will not significantly affect the maritime public because the areas covered are limited in size and/or have little commercial or recreational activity. In addition, vessels may enter the safety zones with the permission of the Captain of the Port, Columbia River or his 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 may affect the following entities some of which may be small entities: The owners and operators of vessels intending to operate in the areas covered by the safety zones created in this rule. The safety zones will not have a significant economic impact on a substantial number of small entities because the areas covered are limited in size. In addition, vessels may enter the safety zones with the permission of the Captain of the Port, Columbia River or his designated representative.

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

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

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

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

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

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

This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminates 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 that do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction. This rule involves the creation of safety zones. 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 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 notice and comment period to run would be impracticable and contrary to the public interest in that it would inhibit the Captain of the Port (COTP) Buffalo from protecting the public and vessels from the hazards associated with fireworks displays on navigable waters.

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. For the same reasons discussed in the preceding paragraph, a 30-day notice period would also be impracticable and contrary to the public interest.

The Rochester Harbor Festival is an event intended to celebrate the Independence of the United States. The festival will include fireworks, which be launched on June 25, 2011 between 10 p.m. and 10:30 p.m. from a waterborne location. The COTP Buffalo has determined that waterborne fireworks displays present significant hazards to vessels and spectators in the vicinity of the lunch site.

Because of the aforesaid hazards, the COTP Buffalo 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 fireworks display. Accordingly, all waters within a 1,120-ft radius of 43°15′42.48″ N, 77°36′3.24″ W (NAD83) Genesee River, Rochester, NY.

All persons and vessels shall comply with the instructions of the COTP Buffalo or the designated representative. Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the COTP Buffalo or his designated representative. The COTP Buffalo 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 section 6(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 or operators of vessels intending to transit or anchor in the mouth of the Genesee River in Rochester, NY on June 25, 2011 from 10 p.m. until 10:30 p.m.

This safety zone will not have a significant economic impact on a substantial number of small entities because of the minimal amount of time in which the safety zone will be enforced. This safety zone will only be enforced for 90 minutes in a low vessel traffic area. Vessel traffic can pass safely around the zone. Before the effective period, we will issue maritime advisories, which include a 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 Ombudsmanand 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 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 may disproportionately affect children.

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

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

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

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

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

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

The Coast Guard will enforce the Seafair Blue Angels Air Show Performance safety zone in 33 CFR 165.1319 daily from 9 a.m. until 4 p.m. from August 4, 2011 through August 7, 2011 unless canceled sooner by the Captain of the Port.

Under the provisions of 33 CFR 165.1319, the following area is designated as a safety zone: All waters of Lake Washington, Washington State, enclosed by the following points: Near the termination of Roanoke Way 47°35′44″ N, 122°14′47″ W; thence to 47°35′48″ N, 122°15′45″ W; thence to 47°36′02.1″ N, 122°15′50.2″ W; thence to 47°35′56.6″ N, 122°16′29.2″ W; thence to 47°35′42″ N, 122°16′24″ W; thence to the east side of the entrance to the west high-rise of the Interstate 90 bridge; thence westerly along the south side of the bridge to the shoreline on the western terminus of the bridge; thence southerly along the shoreline to Andrews Bay at 47°33′06″ N, 122°15′32″ W; thence northeast along the shoreline of Bailey Peninsula to its northeast point at 47°33′44″ N, 122°15′04″ W; thence easterly along the east-west line drawn tangent to Bailey Peninsula; thence northerly along the shore of Mercer Island to the point of origin. [Datum: NAD 1983].

In accordance with the general regulations in 33 CFR Part 165, Subpart C, no person or vessel may enter or remain in the zone except for support vessels and support personnel, vessels registered with the event organizer, or other vessels authorized by the Captain of the Port or Designated Representatives. Vessels and persons granted authorization to enter the safety zone shall obey all lawful orders or directions made by the Captain of the Port or Designated Representative.

The Captain of the Port may be assisted by other Federal, state and local law enforcement agencies.

This notice is issued under authority of 33 CFR 165.1319 and 5 U.S.C. 552(a). If the COTP 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 regulated area.

The Coast Guard will enforce the following safety zones at the following dates and times:

This safety zone will be enforced from 9:30 p.m. to 11:30 p.m. on June 23, 2011. In the case of inclement weather on June 23, 2011, this safety zone will be enforced from 9:30 p.m. to 11:30 p.m. on June 24, 2011.

This safety zone will be enforced from 10 p.m. to 11 p.m. on June 24, 2011.

This safety zone will be enforced from 9:30 p.m. to 11 p.m. on June 24, 2011. In the case of inclement weather on June 24, 2011, this safety zone will be enforced from 9:30 p.m. to 11 p.m. on June 25, 2011.

The first safety zone will be enforced from 7 a.m. on June 24, 2011 to 6 p.m. on June 27, 2011. In the event of inclement weather, the first safety zone will be enforced from 7 a.m. to 6 p.m. on June 28, 2011.

The second safety zone will be enforced from 5 p.m. on June 27, 2011 through 12:15 a.m. on June 28, 2011. In the event of inclement weather, the second safety zone will be enforced from 5 p.m. on June 28, 2011 to 12:15 a.m. on June 29, 2011.

The third safety zone will be enforced from 8 p.m. on June 27, 2011 through 12:15 a.m. on June 28, 2011. In the event of inclement weather, the third safety zone will be enforced from 8 p.m. on June 28, 2011 to 12:15 a.m. on June 29, 2011.

This safety zone will be enforced from 9 p.m. to 10 p.m. on June 27, 2011.

This safety zone will be enforced daily from 9:30 p.m. to 11:30 p.m. on June 30, 2011, July 1, 2011, and July 2, 2011. In the case of inclement weather on June 30, 2011, July 1, 2011, and July 2, 2011, this safety zone will be enforced from 9:30 p.m. to 11:30 p.m. on July 3, 2011.

This safety zone will be enforced from 8 p.m. to 11:30 p.m. on July 2, 2011. In the case of inclement weather on July 2, 2011, this safety zone will be enforced from 8 p.m. to 11:30 p.m. on July 3, 2011.

This safety zone will be enforced from 9:30 p.m. to 11:15 p.m. on July 2, 2011. In the case of inclement weather on July 2, 2011, this safety zone will be enforced from 9:30 p.m. to 11:15 p.m. on July 3, 2011.

This safety zone will be enforced from 8 p.m. to 11:30 p.m. on July 3, 2011. In the case of inclement weather on July 3, 2011, this safety zone will be enforced from 8 p.m. to 11:30 p.m. on July 4, 2011.

This safety zone will be enforced from 9:45 p.m. to 10:45 p.m. on July 3, 2011.

This safety zone will be enforced from 9:30 p.m. to 11 p.m. on July 2, 2011. In the case of inclement weather on July 2, 2011, this safety zone will be enforced from 9:30 p.m. to 11 p.m. on July 3, 2011.

This safety zone will be enforced from 9:30 p.m. to 11 p.m. on July 2, 2011. In the case of inclement weather on July 2, 2011, this safety zone will be enforced from 9:30 p.m. to 11 p.m. on July 3, 2011.

This safety zone will be enforced from 9:30 p.m. to 11 p.m. on July 2, 2011. In the case of inclement weather on July 2, 2011, this safety zone will be enforced from 9:30 p.m. to 11 p.m. on July 3, 2011.

This safety zone will be enforced from 9:30 p.m. to 11 p.m. on July 3, 2011. In the case of inclement weather on July 3, 2011, this safety zone will be enforced from 9:30 p.m. to 11 p.m. on July 4, 2011.

This safety zone will be enforced from 9:30 p.m. to 11 p.m. on July 4, 2011. In the case of inclement weather on July 4, 2011, this safety zone will be enforced from 9:30 p.m. to 11 p.m. on July 5, 2011.

This safety zone will be enforced from 9:30 p.m. to 11 p.m. on July 4, 2011. In the case of inclement weather on July 4, 2011, this safety zone will be enforced from 9:30 p.m. to 11 p.m. on July 5, 2011.

This safety zone will be enforced from 10 p.m. to 11:30 p.m. on July 4, 2011. In the case of inclement weather on July 4, 2011, this safety zone will be enforced from 10 p.m. to 11:30 p.m. on July 5, 2011.

This safety zone will be enforced from 9:30 p.m. to 11 p.m. on July 4, 2011. In the case of inclement weather on July 4, 2011, this safety zone will be enforced from 9:30 p.m. to 11 p.m. on July 5, 2011.

This safety zone will be enforced from 9:30 p.m. until 11 p.m. on July 23, 2011.

This safety zone will be enforced from 9:30 p.m. until 11 p.m. on August 13, 2011.

This safety zone will be enforced from 9:30 p.m. to 11:30 p.m. on September 3, 2011. In the case of inclement weather on September 3, 2011, this safety zone will be enforced from 9:30 p.m. to 11:30 p.m. on September 4, 2011. In the case of inclement weather on September 4, 2011, this safety zone will be enforced from 9:30 p.m. to 11:30 p.m. on September 5, 2011.

Under the provisions of 33 CFR 165.23, entry into, transiting, or anchoring within anyone of these safety zones during the enforcement period is prohibited unless authorized by the Captain of the Port Detroit or his designated representative. Vessels that wish to transit through the safety zones may request permission from the Captain of the Port Detroit. Requests must be made in advance and approved by the Captain of Port before transits will be authorized. Approvals will be granted on a case by case basis. The Captain of the Port may be contacted via U.S. Coast Guard Sector Detroit on channel 16, VHF-FM. The Coast Guard will give notice to the public via a Local Notice to Mariners that the regulation is in effect.

This notice is issued under authority of 33 CFR 165.23 and 5 U.S.C. 552(a). If the Captain of the Port determines that any of these safety zones 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 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 an agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 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 notice and comment period to run would be impracticable and contrary to the public interest in that it would prevent the Coast Guard from protecting the public and vessels on navigable waters.

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. For the reasons discussed in the preceding paragraph, a 30-day notice period would be impracticable and contrary to the public interest.

The Truman-Hobbs alteration of the Elgin Joliet & Eastern Railroad Drawbridge will begin on June 23, 2011. This temporary safety zone is necessary to protect vessels from the hazards associated with those alteration efforts. The falling debris associated with the removal and replacement of the bridge spans poses a serious risk of injury to persons and property. As such, the Captain of the Port, Sector Lake Michigan, has determined that the alteration project of the Elgin Joliet & Eastern Railroad Drawbridge poses significant risks to public safety and property and that a safety zone is necessary.

The safety zone will encompass all U.S. navigable waters of the Illinois River in the vicinity of the Elgin Joliet & Eastern Railroad Drawbridge between Mile Marker 270.1 and Mile Marker 271.5 of the Illinois River in Morris, IL. [DATUM: NAD 83].

All persons and vessels shall comply with the instructions of the Coast Guard Captain of the Port, Sector Lake Michigan, or his or her designated representative. Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port, Sector Lake Michigan, or his or her designated representative. The Captain of the Port, Sector Lake Michigan, 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. 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. The safety zone around the bridge project will be relatively small and exist for relatively short duration. Thus, restrictions on vessel movement within that particular area are expected to be minimal. Under certain conditions, moreover, vessels may still transit through the safety zone when permitted by the Captain of the Port.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule will 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 transit or anchor on a portion of the Illinois River between 7 a.m. on June 23, 2011 and 7 a.m. on June 30, 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 enforced while unsafe conditions exist. Vessel traffic will be minimal due to the public and commercial outreach that has been made the by D8 Bridge Branch over the last 18 months.

In the event that this temporary safety zone affects shipping, commercialvessels may request permission from the Captain of The Port, Sector Lake Michigan, or his or her designated representative to transit through the safety zone. The Coast Guard will give notice to the public via a Broadcast 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 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 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 concern 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 the establishment of a safety zone and is therefore categorically excluded under paragraph 34(g) of the Instruction.

A final environmental analysis checklist and 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:

On April 12, 2011, the Postal Service filed a notice with the Postal Regulatory Commission to temporarily reduce the prices for certain types of First-Class Mail and Standard Mail that contain, in or on the mailpiece, a two-dimensional mobile barcode readable by consumer smartphones. The Commission has completed its review.

In this final rule, the Postal Service provides a description of the conditions for eligibility for the price reduction for the mobile barcode promotion, and the new mailing standards to implement the promotion. To be eligible, each mailpiece in the mailing (and listed on the postage statement) must have a qualifying two-dimensional mobile barcode on the outside of each piece or on the contents within each piece. The barcodes, when scanned, must be used for consumer interaction and be relevant to the contents of the mailpiece. The mobile barcodes must be used for marketing, promotional or educational purposes. They may not be used for internal corporate operational processes or for postage evidencing purposes. Barcodes that link consumers to sites that encourage enrollment to online bill paying or paperless statement services are not considered marketing, promotional or educational for the purposes of this initiative and are not eligible for the discount.

A price reduction of three percent of the total postage cost for a mailing in which all mailpieces contain a two-dimensional mobile (also known as a “QR” barcode) barcode that is readable by consumer smartphones will apply to presort and automation mailings of First-Class Mail cards, letters, and flats; and Standard Mail (including nonprofit) letters and flats. Commingled, co-mailed and combined mailings are allowed, but a separate postage statement is required for mailpieces with mobile barcodes. Eligible mailings must be accompanied by electronic documentation under existing mailing standards for submission of electronic documentation.

Other than the full-service Intelligent Mail® barcode discount, mailpieces are ineligible to receive any other incentive if claiming the mobile barcode promotion three percent discount.

The Postal Service will implement the promotion and temporary price reduction effective for mailings made on July 1, 2011 through August 31, 2011. Plant-verified drop shipment (PVDS) mailings may be accepted at origin on or after June 26, 2011 for mail to be entered at a destination facility on or after July 1. PVDS shipments accepted no later than August 31 may be entered at destinations through September 15, 2011. Program requirements, including updated FAQs, are available on the RIBBS® Web site athttps://ribbs.usps.gov/index.cfm?page=mobilebarcodeor by e-mail tomobilebarcode@usps.gov.

The Postal Service adopts the following changes toMailing Standards of the United States Postal Service,Domestic Mail Manual (DMM), which is incorporated by reference in theCode of Federal Regulations.See 39 CFR 111.1.

Accordingly, 39 CFR part 111 is amended as follows:

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

On July 18, 1997, EPA promulgated new standards for 8-hour ozone (62 FR 38856) and PM2.5(62 FR 38652). We are taking this action in response to the promulgation of these standards (the 1997 8-hour ozone NAAQS and 1997 PM2.5NAAQS) to address the requirements of CAA section 110(a)(2)(D)(i)(I). This action does not address the requirements of the 2006 PM2.5NAAQS or the 2008 8-hour ozone NAAQS; those standards will be addressed in future actions.

Section 110(a)(1) of the CAA requires States to submit SIPs to address a new or revised NAAQS within three years after promulgation of such standards, or within such shorter period as the EPA Administrator may prescribe. Section 110(a)(2) lists the elements that such new SIPs must address, as applicable, including section 110(a)(2)(D)(i), which pertains to interstate transport of certain emissions. On August 15, 2006, EPA issued a guidance memorandum thatprovides recommendations to States for making submissions to meet the requirements of section 110(a)(2)(D)(i) for the 1997 8-hour ozone and PM2.5standards (2006 Guidance).1

On November 16, 2007, the California Air Resources Board (CARB) submitted the “Proposed State Strategy for California's 2007 State Implementation Plan” to attain the 1997 8-hour ozone and PM2.5NAAQS (2007 State Strategy).2 Appendix C of the 2007 State Strategy, as modified by Attachment A,3 contains California's SIP revision to address the Transport SIP requirements of CAA section 110(a)(2)(D)(i) for the 1997 8-hour ozone and PM2.5NAAQS (2007 Transport SIP). The State based its submittal on EPA's 2006 Guidance. As explained in the 2006 Guidance, the “good neighbor” provisions in section 110(a)(2)(D)(i) require each State to submit a SIP that contains adequate provisions to prohibit emissions from sources within that State from adversely affecting another State in the ways contemplated in the statute. Section 110(a)(2)(D)(i) identifies four distinct elements related to the evaluation of impacts of interstate transport of air pollutants. In this rulemaking EPA is addressing the first two elements: (1) Significant contribution to nonattainment of these NAAQS in any other State, and (2) interference with maintenance of these NAAQS by any other State.

On March 17, 2011, EPA proposed to find that the California SIP is adequate to prevent significant contribution to nonattainment of, and interference with maintenance of, the 1997 8-hour ozone NAAQS and the 1997 PM2.5NAAQS in any other State, as required by CAA section 110(a)(2)(D)(i)(I).See76 FR 14616. Our proposed action did not address the remaining two elements of CAA section 110(a)(2)(D)(i) regarding interference with measures required to prevent significant deterioration of air quality or to protect visibility in another State. We intend to evaluate and act upon these remaining elements of California's SIP submittal in separate actions, subject to notice and comment and publication in theFederal Register.

For a more detailed discussion of the 2007 Transport SIP, the requirements of CAA section 110(a)(2)(D)(i), and the rationale for our proposed action, please see our March 17, 2011 proposed rule (76 FR 14616) and related Technical Support Document, both of which can be found in the docket for today's action.

The publication of EPA's proposed rule on March 17, 2011 (76 FR 14616) started a 30-day public comment period that ended on April 18, 2011. During this period, we received a comment letter from the Morongo Band of Mission Indians (Morongo) and a comment letter from the Pechanga Band of Luiseño Mission Indians (Pechanga). We have summarized the comments from the Morongo and Pechanga (collectively the “Tribes” or “commenters”) and provided our responses below.

Comment #1:The Tribes assert that neither California nor EPA analyzed potential impacts of transported ozone and PM2.5air pollution on their respective reservations or on other Indian country immediately downwind of California nonattainment areas, and that EPA did not acknowledge their existence as affected, downwind governments. The Tribes assert that they are each “comparable to a state” with respect to the effect of upwind emission sources in California, which contribute overwhelmingly to nonattainment in their reservations, and that they are both in the process of seeking “Treatment in the Same Manner as a State (TAS)” under the CAA. The Tribes also assert that they have either received TAS or completed the application process for TAS under the Clean Water Act. Finally, the Tribes claim that, if EPA were to require that the California SIP “treat the Tribe[s] equitably” in addressing the provisions of CAA section 110(a)(2)(D)(i)(I), then additional control measures for the South Coast Air Basin would be needed to prohibit emissions that would contribute significantly to nonattainment of the 1997 8-hour ozone and 1997 PM2.5NAAQS or interfere with maintenance of these standards in their respective reservations, analogous to the prohibition against having such effect in any other State.

Response #1:Section 110(a)(2)(D)(i)(I) of the CAA requires that each SIP contain adequate provisions to prohibit any source or other type of emissions activity within the State from “contribut[ing] significantly to nonattainment” of the NAAQS or “interfer[ing] with maintenance” of the NAAQS in “any other State.”4 The commenters provide no specific factual or analytical support for their claim that emissions from California sources contribute significantly to nonattainment or interfere with maintenance of the 1997 8-hour ozone or 1997 PM2.5NAAQS in their respective reservations or other Indian country, nor do they provide any support for their assertion that evaluation of such impacts under CAA section 110(a)(2)(D)(i) for these standards would have resulted in a requirement for California to adopt additional control measures for sources in the South Coast Air Basin.5 Nevertheless, in response to these comments, EPA has considered whether emissions from California sources could have the prohibited adverse impacts in the Morongo or Pechanga reservations in accordance with the methodologies we use to evaluate SIP submittals for these standards under section 110(a)(2)(D)(i) with respect to transport impacts on states. Based on this evaluation, we conclude that California's SIP currently contains adequate provisions to prohibit such impacts for the 1997 8-hour ozone and 1997 PM2.5NAAQS.

We began our analysis by reviewing the ozone and PM2.5air quality monitors that we identified as “receptor” locations for purposes of evaluating SIPs submitted to address the requirements of CAA section 110(a)(2)(D)(i) for the 1997 8-hour ozone or 1997 PM2.5NAAQS. As described in our proposed rule (76 FR 14616), EPA evaluated data from existing monitors over three overlapping 3-year periods (i.e.,2003-2005, 2004-2006, and 2005-2007), as well as air quality modeling data, todetermine which areas are predicted to be violating these NAAQS in 2012, and which areas are predicted potentially to have difficulty maintaining attainment as of that date. 76 FR 14616 at 14618. We identified as “nonattainment receptors” those monitoring sites that are projected to be violating the NAAQS in 2012, based on the average of these three overlapping periods. Id. Separately, we identified as “maintenance receptors” those monitoring sites that were violating the NAAQS based on the highestsinglethree-year period during 2003-2007, but not over the average of the three periods.Id.at 14619, 14623. We described these “maintenance receptors” as those monitoring sites that remain at risk of slipping into nonattainment in 2012 if there are adverse variations in meteorology or emissions.Id.

These methodologies for identifying “nonattainment receptors” and “maintenance receptors” take into account historic variability of emissions at specific monitoring sites to analyze whether or not the relevant areas are expected to be violating or attaining the NAAQS in 2012. In both the 1998 NOXSIP Call6 and the 2005 Clean Air Interstate Rule,7 EPA evaluated significant contribution to nonattainment as measured or predicted at monitors in a comparable fashion. EPA believes that this approach to evaluating significant contribution is correct under CAA section 110(a)(2)(D), and EPA's general approach to this threshold determination has not been disturbed by the courts.8 As explained in the proposal, EPA is addressing interference with maintenance separately in order to address concerns that the Agency had not previously given sufficient independent meaning to that requirement.

Consistent with these methodologies, to determine whether emissions from California sources contribute significantly to nonattainment or interfere with maintenance of the 1997 8-hour ozone or 1997 PM2.5NAAQS in any other State, EPA evaluated air quality monitoring data from the eastern portion of the U.S. under consideration in EPA's Transport Rule Proposal (75 FR 45210) without regard to the jurisdictional status of different areas within each State.See76 FR 14616 at 14618-14619. EPA conducted a similar analysis of air quality data for the western U.S. not covered by the Transport Rule Proposal.Id.This analysis for western States is embodied in the “Timin Memo.”9 10

Although by its terms CAA section 110(a)(2)(D)(i)(I) explicitly addresses impacts on States, in response to the commenters' concerns, EPA reviewed air quality monitoring data from monitors located on the Morongo Reservation and on the Pechanga Reservation. For both reservations, EPA found that ozone and PM2.5air quality monitoring data is not available for the full 2003-2007 period, the time period that provided the basis for our evaluation methodology under CAA section 110(a)(2)(D)(i) for the 1997 8-hour ozone and 1997 PM2.5NAAQS.11 Thus, neither reservation has a monitor for ozone or for PM2.5that EPA projected to be violating either NAAQS in 2012, based on the average of the three overlapping periods that EPA evaluated for these purposes (i.e.,2003-2005, 2004-2006, and 2005-2007). Additionally, neither reservation has a monitor that EPA projected to remain at risk of slipping into nonattainment of either NAAQS in 2012, based on the highestsinglethree-year period during 2003-2007.Id.EPA therefore did not identify any “nonattainment receptors” or “maintenance receptors” for these standards on either reservation.12 13

Because neither the Morongo Reservation nor the Pechanga Reservation contains any “nonattainment receptor” or “maintenance receptor” appropriate for purposes of evaluating California's 2007 Transport SIP in accordance with the requirements of CAA section 110(a)(2)(D)(i)(I) and the analytical approach that EPA is using to evaluate potential transport impacts between states, we do not have a basis for concluding that emissions from California sources “contribute significantly to nonattainment” or “interfere with maintenance” of the 1997 8-hour ozone or 1997 PM2.5NAAQS in either reservation at this time. The Tribes' comments provide no specific information to support such a conclusion.

Furthermore, we note that the Morongo Reservation and most of the Pechanga Reservation are located within the geographic borders of the Los Angeles-South Coast Air Basin in southern California, which is currently designated and classified as an “extreme” nonattainment area for the 1997 8-hour ozone NAAQS.See40 CFR 81.305;see also75 FR 24409 (May 5, 2010) (reclassifying South Coast Air Basin from “severe-17” to “extreme” nonattainment for 8-hour ozone NAAQS but deferring reclassification of Indian country pertaining to Morongo and Pechanga).14 As such, California is already subject to the most stringent air quality planning and control requirements for ozone nonattainment areas under subpart 2 of part D, title I of the CAA. For example, “extreme” ozone nonattainment areas are subject to the most stringent New Source Review regulatory threshold and offset ratio (CAA sections 182(e), 182(f)) and must require that certain electric utility andindustrial and commercial boilers either primarily burn low-polluting fuels or use advanced control technology to reduce emissions of NOX(CAA section 182(e)(3)).

The Los Angeles-South Coast Air Basin is also designated as nonattainment for the 1997 PM2.5NAAQS and, therefore, subject to stringent air quality planning and control requirements for PM2.5nonattainment areas under subpart 1 of part D, title I of the CAA. For example, CAA section 172(c)(1) requires that California adopt and implement all reasonably available control measures (including, at a minimum, reasonably available control technology for stationary sources) that will provide for attainment of the PM2.5NAAQS in this area as expeditiously as practicable.See40 CFR 51.1010. EPA is currently evaluating the nonattainment plans for the Los Angeles-South Coast Air Basin submitted by the State of California and the South Coast Air Quality Management District to meet these requirements of part D, title I of the CAA for the 1997 8-hour ozone NAAQS and the 1997 PM2.5NAAQS.

Although the fact that areas adjacent to the Morongo Reservation and Pechanga Reservation are subject to stringent planning and control requirements does not eliminate the possibility of pollution transport from these areas, the stringency of the control requirements in this particular geographic area would be an important element of EPA's analysis under CAA section 110(a)(2)(D)(i)(I). EPA evaluates “significant contribution to nonattainment” and “interference with maintenance” under section 110(a)(2)(D)(i)(I) by considering not only the potential for pollution transport and the amount of such transport if it exists, but also the level and cost of control in an upwind area that would be necessary to prohibit such transport to the downwind area.SeeTransport Rule Proposal, 75 FR 45210 at 45273-45274 (August 2, 2010) (citingNorth Carolinav.EPA,531 F.3d 896 at 908, 917-920 (DC Cir. 2008), in which the court confirmed that EPA may use cost of control as a factor in evaluating interstate transport). Thus, a technical finding that pollutants from an upwind area are transported to a downwind area does not, in itself, constitute a finding of “significant contribution to nonattainment” or “interference with maintenance” for regulatory purposes under section 110(a)(2)(D)(i)(I) of the CAA. Given these considerations, even if we were to conclude that emissions from California sources adversely impact air quality at monitors suitable for treatment as nonattainment receptors or maintenance receptors in the Pechanga or Morongo Reservations, section 110(a)(2)(D)(i)(I) of the CAA would not necessarily require that California adopt additional control measures to address such pollution impacts. We could not disapprove California's SIP submission without having completed that analysis and concluded that the state needed to impose additional controls in order to eliminate significant contribution or prevent interference with maintenance, which is a determination which is partially dependent upon the cost of control.

In sum, although by its terms section 110(a)(2)(D)(i)(I) explicitly addresses States, in response to these specific comments from Morongo and Pechanga, we have conducted a preliminary evaluation of potential impacts on the Tribes' reservations based on our current methodology for evaluating SIPs submitted to address the requirements of CAA section 110(a)(2)(D)(i)(I) for the 1997 8-hour ozone and 1997 PM2.5NAAQS. Based on this evaluation and available air quality monitoring data, we have determined that California's SIP contains provisions adequate to satisfy the requirements of CAA section 110(a)(2)(D)(i)(I) for these NAAQS. This determination does not, however, apply to California's obligations to address interstate transport of pollution under CAA section 110(a)(2)(D)(i)(I) for other NAAQS, which EPA intends to evaluate in separate actions, in accordance with applicable requirements and available air quality monitoring data, as appropriate. Moreover, if subsequent facts or analyses indicate that further action is necessary in this area to address nonattainment throughout the South Coast Air Basin, EPA can act at a later time after the initial section 110(a)(2)(D) submissions to call for revisions of the SIP to provide for additional emissions controls if such action is warranted. EPA recognizes the commenters' concerns about the impacts of air pollutant emissions throughout the South Coast Air Basin and is committed to working with the Tribes and the State to address these air quality concerns.

Comment #2:The Tribes assert that EPA failed to consult with them regarding potential impacts on their reservations or other Federally recognized tribal lands immediately downwind of California nonattainment areas, referencing EPA's “Proposed Final Policy on Consultation and Coordination With Indian Tribes,” 75 FR 78198 (December 15, 2010) in support of this comment. The Tribes assert that this failure to consult or to consider the Tribes as “affected `state[s]' subject to overwhelming transport emissions from California” is a major flaw in EPA's proposed rulemaking.

Response #2:EPA endeavors to consult with Federally recognized tribal governments when Agency actions and decisions may have “tribal implications” or affect tribal interests, pursuant to long-standing EPA policy on consultation and coordination with Indian Tribes.See“EPA Policy for the Administration of Environmental Programs on Indian Reservations” (November 8, 1984); Executive Order 13175, “Consultation and Coordination With Indian Tribal Governments,” 65 FR 67249 (November 9, 2000); “EPA Policy on Consultation and Coordination with Indian Tribes” (May 4, 2011).

Because the California SIP is not approved to apply in Indian country located in the State, this action has no regulatory consequences for emission sources in Indian country and will not impose substantial direct costs on tribal governments or preempt tribal law. We note, however, that EPA is currently consulting with both Morongo and Pechanga in response to their requests for boundary changes to establish separate nonattainment areas or, in the alternative, to extend the boundaries of adjacent, lower-classified nonattainment areas to include the Tribes' Indian country.See75 FR 24409, 24411 (May 5, 2010) (deferring reclassification of the Morongo and Pechanga Reservations within the South Coast Air Basin pending EPA's final decisions on the Tribes' boundary change requests). EPA has also initiated a process to consult with interested Indian Tribes on issues related to the Transport Rule Proposal (75 FR 45210, August 2, 2010) and will conclude this consultation before making final decisions on those issues.See76 FR 1109 at 1118 (January 7, 2011) (requesting comment on options for allocating allowances to covered units that might in the future be constructed in Indian country located within the Transport Rule region).

Due to a court-ordered deadline to take final action on California's 2007 Transport SIP by May 10, 2011,15 we are proceeding with this rulemaking action at this time. We encourage both Tribes, however, to participate in other processes that are already underway to address their concerns regarding cross-boundary air pollution impacts.

I. General Information A. Does this action apply to me?

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

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

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

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2010-0296 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before August 15, 2011. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit a copy of your non-CBI objection or hearing request, identified by docket ID number EPA-HQ-OPP-2010-0296, by one of the following methods:

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

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

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

In theFederal Registerof August 4, 2010 (75 FR 46924) (FRL-8834-9), EPA issued a notice pursuant to section 408(d)(3) of FFDCA, 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 9F7676) by Syngenta Crop Protection, Inc., P.O. Box 18300, Greensboro, NC 27419-8300. The petition requested that 40 CFR 180.475 be amended by establishing tolerances for residues of the fungicide difenoconazole, in or on carrot at 0.45 parts per million (ppm); chickpeas at 0.05 ppm; fruits, stone, group 12 at 2.5 ppm; soybean, seed, at 0.2 ppm; soybean, aspirated grain fraction at 95 ppm; strawberry at 2.5 ppm; turnip greens at 35 ppm; and increasing the existing milk tolerance from 0.01 to 0.08 ppm. Comments were received on the notice of filing. EPA's response to these comments is discussed in Unit IV.C.

Based upon review of the data supporting the petition, EPA has: Increased the proposed tolerance for carrot from 0.45 ppm to 0.50 ppm, and for chickpea from 0.05 ppm to 0.08 ppm; decreased the proposed soybean, seed tolerance from 0.20 ppm to 0.15 ppm; established a tolerance that was not proposed for soybean, hulls at 0.20 ppm; changed the proposed tolerance terminology for “soybean, aspirated grain fractions” to “aspirated grain fractions;” revised the toleranceexpression for animal commodities; increased the existing animal tolerances from 0.20 ppm to 0.40 ppm for the livers of cattle, goat, hog, horse, and sheep; decreased the existing tolerance for eggs from 0.10 ppm to 0.02 ppm; not granted the proposed tolerance increase for milk from 0.01 to 0.08 ppm. The reasons for these changes are explained in Unit IV.D.

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

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

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

Difenoconazole possesses low acute toxicity by the oral, dermal and inhalation routes of exposure. It is not an eye or skin irritant and is not a sensitizer. Subchronic and chronic studies with difenoconazole in mice and rats showed decreased body weights, decreased body weight gains and effects on the liver. In an acute neurotoxicity study in rats, reduced fore-limb grip strength was observed on day 1 in males and clinical signs of neurotoxicity were observed in females at the limit dose of 2,000 milligrams/kilograms (mg/kg). In a subchronic neurotoxicity study in rats, decreased hind limb strength was observed in males only at the mid- and high-doses. However, the effects observed in acute and subchronic neurotoxicity studies are transient, and the dose-response is well characterized with identified no observed adverse effect level (NOAELs). No systemic toxicity was observed at the limit dose in the most recently submitted 28-day rat dermal toxicity study.

There is no concern for increased qualitative and/or quantitative susceptibility after exposure to difenoconazole based on developmental toxicity studies in rats and rabbits, and a reproduction study in rats as fetal/offspring effects occurred in the presence of maternal toxicity. There are no indications in the available studies that organs associated with immune function, such as the thymus and spleen, are affected by difenoconazole.

In accordance with the Agency's current policy, difenoconazole is classified as “Suggestive Evidence of Carcingenic Potential” and EPA is using the Margin of Exposure (MOE) approach to assess cancer risk. Difenoconazole is not mutagenic, and no evidence of carcinogenicity was seen in rats. Evidence for carcinogenicity was seen in mice (liver tumors), but these tumors were only induced at doses which were considered to be excessively high for carcinogenicity testing. Based on excessive toxicity observed at the two highest doses in the study, the absence of tumors at the study's lower doses, and the absence of genotoxic effects, EPA has concluded that the chronic point of departure (POD) from the chronic mouse study will be protective of any cancer effects. The POD from this study is the NOAEL of 30 ppm (4.7 and 5.6 mg/kg/day in males and females, respectively) which was chosen based upon only those biological endpoints which were relevant to tumor development (i.e.,hepatocellular hypertrophy, liver necrosis, fatty changes in the liver and bile stasis).

Specific information on the studies received and the nature of the adverse effects caused by difenoconazole as well as the NOAEL and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found athttp://www.regulations.govin document “Difenoconazole Human Health Risk Assessment for Amended Section 3 Registration to Add Uses on Carrots, Chickpeas, Soybeans, Stone Fruits (Group 12), Strawberries, Turnip Greens and Golf Course Turf Grass,” pp. 13-19 in docket ID number EPA-HQ-OPP-2010-0296.

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

A summary of the toxicological endpoints for chemical name used for human risk assessment is shown in the Table of this unit.

1.Dietary exposure from food and feed uses.In evaluating dietary exposure to difenoconazole. EPA considered exposure under the petitioned-for tolerances as well as all existing difenoconazole tolerances in 40 CFR 180.475. EPA assessed dietary exposures from difenoconazole in food as follows:

i.Acute exposure.Quantitative acute dietary exposure and risk assessments are performed for a food-use pesticide, if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1-day or single exposure. Such effects were identified for difenoconazole. In estimating acute dietary exposure, EPA used food consumption information from the United States Department of Agriculture (USDA) 1994-1996 and 1998 Nationwide Continuing Surveys of Food Intake by Individuals (CSFII). As to residue levels in food, EPA assumed tolerance-level residues, 100 percent crop treated (PCT), and the available empirical or dietary exposure evaluation model (DEEMTM) (ver. 7.81) default processing factors.

ii.Chronic exposure.In conducting the chronic dietary exposure assessment EPA used the food consumption data from the USDA 1994-1996 and 1998 CSFII. As to residue levels in food, EPA assumed tolerance-level residues for some commodities, average field trial residues (i.e.,anticipated residues) for the majority of commodities, and the available empirical or DEEMTM(ver. 7.81) default processing factors, and 100 PCT.

iii.Cancer.EPA determines whether quantitative cancer exposure and risk assessments are appropriate for a food-use pesticide based on the weight of the evidence from cancer studies and other relevant data. Cancer risk is quantified using a linear or nonlinear approach. If sufficient information on the carcinogenic mode of action is available, a threshold or non-linear approach is used and a cancer RfD is calculated based on an earlier noncancer key event. If carcinogenic mode of action data are not available, or if the mode of action data determines a mutagenic mode of action, a default linear cancer slope factor approach is utilized. Based on the data summarized in Unit III.A., EPA has concluded that a nonlinear RfD approach is appropriate for assessing cancer risk difenoconazole. However, EPA determined that a quantitative cancer exposure assessment is unnecessary since the NOAEL (4.7 and 5.6 mg/kg/day in males and females, respectively) to assess cancer risk is higher than the NOAEL (0.96 and 1.27 mg/kg/day in males and females, respectively) to assess chronic risks and the cancer exposure assessment would not exceed the chronic exposure estimate. Therefore, the chronic dietary risk estimate will be protective of potential cancer risk.

Cancer risk was assessed using the same exposure estimates as discussed in Unit III.C.1.ii.

iv.Anticipated residue and percent crop treated (PCT) information.EPA did not use PCT information in the dietary assessment of difenoconazole. EPA used anticipated residues including average field trial residues for the majority of commodities, the available empirical or DEEMTM(ver. 7.81) default processing factors; and 100 PCT information in the chronic dietary assessment for difenoconazole.

Section 408(b)(2)(E) of FFDCA authorizes EPA to use available data and information on the anticipated residue levels of pesticide residues in food and the actual levels of pesticide residues that have been measured in food. If EPA relies on such information, EPA must require pursuant to FFDCA section 408(f)(1) that data be provided 5 years after the tolerance is established, modified, or left in effect, demonstrating that the levels in food are not above the levels anticipated. For the present action, EPA will issue such data call-insas are required by FFDCA section 408(b)(2)(E) and authorized under FFDCA section 408(f)(1). Data will be required to be submitted no later than 5 years from the date of issuance of these tolerances.

2.Dietary exposure from drinking water.The Agency used screening level water exposure models in the dietary exposure analysis and risk assessment for difenoconazole in drinking water. These simulation models take into account data on the physical, chemical, and fate/transport characteristics of difenoconazole. Further information regarding EPA drinking water models used in pesticide exposure assessment can be found athttp://www.epa.gov/oppefed1/models/water/index.htm.

Based on the Pesticide Root Zone Model/Exposure Analysis Modeling System (PRZM/EXAMS) and Screening Concentration in Ground Water (SCI-GROW) models the estimated drinking water concentrations (EDWCs) of difenoconazole for surface water are estimated to be 15.8 parts per billion (ppb) for acute exposures and 10.4 ppb for chronic exposures. For ground water, the EDWCs are estimated to be 0.0128 ppb for both acute and chronic exposures.

Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. The water concentration of 15.8 ppb and 10.4 ppb were used to assess the contribution to drinking water in the acute and chronic dietary risk assessments, respectively.

3.From non-dietary exposure.The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g.,for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets). Difenoconazole is currently registered for the following uses that could result in residential exposures: Application to ornamentals. There is a potential for exposure to difenoconazole during mixing, loading, and application activities through the dermal and inhalation routes. Difenoconazole products are applied by homeowners using handheld spray equipment. Exposure duration is considered short-term (1-30 days). In addition, residential post-application exposure to treated golf course turf is possible for recreational golfers. Further information regarding EPA standard assumptions and generic inputs for residential exposures may be found athttp://www.epa.gov/pesticides/trac/science/trac6a05.pdf.

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

Difenoconazole is a member of the triazole-containing class of pesticides. Although conazoles act similarly in plants (fungi) by inhibiting ergosterol biosynthesis, there is not necessarily a relationship between their pesticidal activity and their mechanism of toxicity in mammals. Structural similarities do not constitute a common mechanism of toxicity. Evidence is needed to establish that the chemicals operate by the same, or essentially the same, sequence of major biochemical events (EPA, 2002). With triazole type fungicides however, a variable pattern of toxicological responses is found. Some are hepatotoxic and hepatocarcinogenic in mice. Some induce thyroid tumors in rats. Some induce developmental, reproductive, and neurological effects in rodents. Furthermore, the conazoles produce a diverse range of biochemical events including altered cholesterol levels, stress responses, and altered DNA methylation. It is not clearly understood whether these biochemical events are directly connected to their toxicological outcomes. Thus, there is currently no evidence to indicate that conazoles share common mechanisms of toxicity and EPA is not following a cumulative risk approach based on a common mechanism of toxicity for the conazoles. For information regarding EPA's procedures for cumulating effects from substances found to have a common mechanism of toxicity, see EPA's Web site athttp://www.epa.gov/pesticides/cumulative.

Difenoconazole is a triazole-derived pesticide. This class of compounds can form the common metabolite 1,2,4-triazole and two triazole conjugates (triazolylalanine and triazolylacetic acid). To support existing tolerances and to establish new tolerances for triazole-derivative pesticides, including difenoconazole, EPA conducted a human health risk assessment for exposure to 1,2,4-triazole, triazolylalanine, and triazolylacetic acid resulting from the use of all current and pending uses of any triazole-derived fungicide. The risk assessment is a highly conservative, screening-level evaluation in terms of hazards associated with common metabolites (e.g.,use of a maximum combination of uncertainty factors) and potential dietary and non-dietary exposures (i.e.,high end estimates of both dietary and non-dietary exposures). In addition, the Agency retained the additional 10x FQPA safety factor for the protection of infants and children. The assessment includes evaluations of risks for various subgroups, including those comprised of infants and children. The Agency's complete risk assessment is found in the reregistration docket athttp://www.regulations.gov,docket ID number EPA-HQ-OPP-2005-0497.

1.In general.Section 408(b)(2)(C) of FFDCA provides that EPA shall apply an additional tenfold (10x) margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database on toxicity and exposure unless EPA determines based on reliable data that a different margin of safety will be safe for infants and children. This additional margin of safety is commonly referred to as the FQPA Safety Factor (SF). In applying this provision, EPA either retains the default value of 10x, or uses a different additional safety factor when reliable data available to EPA support the choice of a different factor.

2.Prenatal and postnatal sensitivity.EPA determined that the available data indicated no increased susceptibility of rats or rabbits toin uteroand/or postnatal exposure to difenoconazole. In the prenatal developmental toxicity studies in rats and rabbits and the 2-generation reproduction study in rats, toxicity to the fetuses/offspring, when observed, occurred at equivalent or higher doses than in the maternal/parental animals. In the prenatal developmental toxicity study in rats, maternal toxicity was manifested as decreased body weight gain and food consumption at the LOAEL of 85 mg/kg/day; the NOAEL was 16 mg/kg/day. The developmental toxicity was manifested as alterations in fetal ossifications at 171 mg/kg/day; the developmental NOAEL was 85 mg/kg/day. In a developmental toxicity study in rabbits, maternal and developmental toxicity were seen at the same dose level (75 mg/kg/day). Maternal toxicity in rabbits were manifested as decreased in body weight gain and decreased in food consumption, while developmental toxicity was manifested as decreased fetal weight. In a 2-generation reproduction study in rats, there were decreases in maternal body weight gain and decreases in body weights of F1males at the LOAEL of 12.5 mg/kg/day; the parental systemic and off spring toxicity NOAEL was 1.25 mg/kg/day.

3.Conclusion.EPA has determined that reliable data show the safety of infants and children would be adequately protected if the FQPA SF were reduced to 1x. That decision is based on the following findings:

i. The toxicity database for difenoconazole is adequate for conducting a FQPA risk assessment. At this time, an immunotoxicity study is not available. However, the toxicology database for difenoconazole does not show any evidence of treatment-related effects on the immune system. The overall weight of evidence suggests that this chemical does not directly target the immune system. An immunotoxicity study is now required as a part of new data requirements in the 40 CFR part 158 for conventional pesticide registration; however, the Agency does not believe that conducting a functional immunotoxicity study will result in a lower POD than that currently in use for overall risk assessment, and therefore, a database uncertainty factor (UFDB) is not needed to account for lack of this study.

ii. The acute and subchronic neurotoxicity studies in rats are available. These data show that difenoconazole exhibits some evidence of neurotoxicity in the database, but the effects are transient or occur at doses exceeding the limit dose. EPA concluded that difenoconazole is not a neurotoxic compound. Based on the toxicity profile, and lack of neurotoxicity, a developmental neurotoxicity study in rats is not required nor is an additional database uncertainty factor needed to account for the lack of this study.

iii. There is no evidence that difenoconazole results in increased susceptibility of rats or rabbit fetuses toin uteroand/or postnatal exposure in the developmental and reproductive toxicity data.

iv. There are no residual uncertainties identified in the exposure databases. A conservative dietary food exposure assessment was conducted. Acute dietary food exposure assessments were performed based on tolerance-level residues, 100 PCT, and the available empirical or DEEMTM(ver. 7.81) default processing factors.

Chronic dietary exposure assessments were based on tolerance-level residues for some commodities, average field trial residues for the majority of commodities, the available empirical or DEEMTM(ver. 7.81) default processing factors, and 100 PCT. These are conservative approaches and are unlikely to understate the residues in food commodities.

EPA also made conservative (protective) assumptions in the ground water and surface water modeling used to assess exposure to difenoconazole in drinking water. Post-application exposure of children as well as incidental oral exposure of toddlers is not expected. These assessments will not underestimate the exposure and risks posed by difenoconazole.

EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the acute PAD (aPAD) and chronic PAD (cPAD). For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate PODs to ensure that an adequate MOE exists.

1.Acute risk.An acute aggregate risk assessment takes into account acute exposure estimates from dietary consumption of food and drinking water. Using the exposure assumptions discussed in this unit for acute exposure, the acute dietary exposure from food and water to difenoconazole will occupy 19% of the aPAD for children, 1-2 years old, the population group receiving the greatest exposure.

2.Chronic risk. Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that chronic exposure to difenoconazole from food and water will utilize 49% of the cPAD for children 1-2 years old the population group receiving the greatest exposure.

3.Short-term risk.Short-term aggregate exposure takes into account short-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Difenoconazole is currently registered for uses that could result in short-term residential exposure, and the Agency has determined that it is appropriate to aggregate chronic exposure through food and water with short-term residential exposures to difenoconazole.

Using the exposure assumptions described in this unit for short-term exposures, EPA has concluded the combined short-term food, water, and residential exposures result in aggregate MOEs of 260. Because EPA's level of concern for difenoconazole is a MOE of 100 or below, these MOEs are not of concern.

4.Aggregate cancer risk for U.S. population.Based on the discussion in Unit III.A and the toxicological endpoints described in Unit III.B, EPA has concluded that the cPAD is protective of possible cancer effects; therefore, given the results of the chronic risk assessment described in this unit, cancer risk resulting from exposure to difenoconazole is not of concern.

5.Determination of safety.Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population, or to infants and children from aggregate exposure to difenoconazole residues.

An adequate enforcement method, gas chromatography/nitrogen- phosphorus detection (GC/NPD) method AG-575B, is available for the determination of residues of difenoconazoleperse in/on plant commodities. An adequate enforcement method, liquid chromatography mass spectrometry (LC/MS/MS) method REM 147.07b, is available for the determination of residues of difenoconazole and CGA-205375 in livestock commodities. Adequate confirmatory methods are also available. This is the first difenoconazole petition since the new livestock method (147.07b) was approved by the Agency and this new method has lower level of quantitation than the previous enforcement method.

The methods may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350;telephone number:(410) 305-2905; e-mail address:residuemethods@epa.gov.

In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint U.N. Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4)requires that EPA explain the reasons for departing from the Codex level.

Codex maximum residue levels (MRLs) for residues of difenoconazole per se have been established at 0.2 ppm for carrot; 0.02 ppm for soya bean (dry); 0.2 ppm for cherries and plums (including prunes); and 0.5 ppm for nectarines and peaches. Canadian and Mexican MRLs have been established for difenoconazole; however, no MRLs have been established for the commodities included in the current petition. Codex MRLs for residues of difenoconazole and its metabolite CGA-205375, expressed as difenoconazole have been established at 0.2 ppm for edible offal (mammalian) and 0.01 for eggs. Also, Canadian MRLs have been established for difenoconazole at 0.05 ppm for meat byproducts of cattle, goats, hogs, and sheep and at 0.05 ppm in eggs. Based on the submitted/available magnitude of the residue data, harmonization with established Codex MRLs is not possible for carrots, soya bean (dry), cherries, plums (including prunes), nectarines, peaches, edible offal (mammalian), and eggs because the Codex MRLs are too low, due to differences in the use patterns, called Good Agricultural Practices or GAPs.

Harmonization with the established Canadian MRLs for eggs and meat byproducts of cattle, goats, hogs, and sheep is not possible due to differences in the regulated residue expression.

One anonymous comment was received on August 7, 2010. This commenter opposes the establishment of any numerical tolerance other than zero. No information was submitted to support the commenter's position.

1. Tolerances for carrot, chickpea, and soybean, seed were corrected to use the recommendation from the EPA tolerance spreadsheet (January 2008 version).

2. No tolerance proposal was made for soybean, hulls, which is a regulated commodity. A tolerance is being established for this commodity, because difenoconazole residues concentrate in this commodity.

3. Commodity names for proposed tolerances are being corrected to be consistent with EPA's standard commodity vocabulary definitions: “Chickpeas” to “Chickpea;” “Soybean, aspirated grain fractions” to “Aspirated Grain Fractions;” “Fruits, stone, group 12” to “Fruit, stone, group 12”.

4. The animal commodity tolerance expression is being changed slightly to express the metabolite CGA 205375 as a difenoconazole stoichoimetric equivalent.

5. There are a number of livestock feedstuffs associated with the proposed uses and currently established livestock tolerances were reassessed. Due primarily to the significant change in the beef diet from the proposed use on soybeans and the residues of difenoconazole found in/on soybean aspirated grain fractions, the tolerance levels for residues of concern in liver of cattle, goat, hog, horse, and sheep need to be increased from 0.20 ppm to 0.40 ppm.

6. Although there was little change in the poultry diet from the proposed new uses, due to the lower level of quantitation from the new animal commodity enforcement analytical method (method 147.07b), the tolerance level for residues of concern in egg needs to be decreased from 0.10 ppm to 0.02 ppm. Furthermore, the existing commodity name for “eggs” is being corrected to “egg” consistent with EPA's standard commodity vocabulary definition.

7. The proposed increased tolerance for milk is not needed because the calculations for changes in the dietary burden due to the new uses indicate no change is needed.

Therefore, tolerances are established for residues of difenoconazole, 1-([2-[2-chloro-4-(4-chlorophenoxy)phenyl]-4-methyl-1,3-dioxolan-2-yl]methyl)-1H-1,2,4-triazole, in or on: Aspirated grain fractions at 95 ppm; carrot at 0.50 ppm; chickpea at 0.08 ppm; fruit, stone, group 12 at 2.5 ppm; soybean, hulls at 0.20; soybean, seed at 0.15; strawberry at 2.5 ppm; turnip greens at 35 ppm. The existing animal commodity tolerance expression is being revised, and tolerances are being increased for liver of cattle/goat/hog/horse/sheep from 0.20 ppm to 0.40 ppm. The existing egg tolerance is being decreased from 0.10 ppm to 0.02 ppm.

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

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

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

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

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

Therefore, 40 CFR chapter I is amended as follows:

I. Does this action apply to me?

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

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

This amendment makes changes in a number of areas within 40 CFR part 180, subpart C. In several sections within 40 CFR part 180, subpart C, there is a paragraph (c) to address tolerances with regional registrations that incorrectly cross-references 40 CFR 180.1(m) as providing the definition of the phrase “tolerances with regional registrations.” EPA recently made several changes to 40 CFR 180.1 that resulted in a redesignating of the paragraphs in the section, including changing 40 CFR 180.1(m) (defining the term “tolerances with regional registrations”) to 40 CFR 180.1(l). 75 FR 76284 (December 8, 2010) (FRL-8853-8). No amendments were made to the body of 40 CFR 180.1(m). In the same rulemaking that resulted in the redesignating of 40 CFR 180.1(m), EPA should have amended the cross-references to 40 CFR 180.1(m) that appear throughout part 180. That change, however, was inadvertently not done. In this rule, EPA is now correcting that cross-reference wherever it appears in 40 CFR part 180 by changing it from “§ 180.1(m)” to “§ 180.1(l).”

This amendment revises certain sections in 40 CFR part 180, subpart C, to remove those time-limited tolerances that have expired based on the terms set in the tolerance. Since the tolerance is expired, it is no longer effective and should not appear in the regulation.

This amendment reserves those paragraphs within specific sections in 40 CFR part 180, subpart C that no longer have any tolerances listed due to the removal of expired tolerances. In some cases, this also results in some paragraphs being redesignated as well.

This amendment removes those sections in 40 CFR part 180, subpart C that no longer have any tolerances listed due to the removal of expired tolerances.

Section 553 of the Administrative Procedure Act (APA), 5 U.S.C. 553(b)(3)(B), provides that, when an Agency for good cause finds that notice and public procedure are impracticable, unnecessary or contrary to the public interest, the Agency may issue a final rule without providing notice and an opportunity for public comment. EPA has determined that there is good cause for making this amendment final without prior proposal and opportunity for comment, because notice and public comment are unnecessary. EPA is making only technical changes to correct cross-references rendered incorrect by a prior rulemaking, remove expired tolerances, reserve paragraphs within sections, and remove sections for which there are no longer any tolerances. None of these changes have a substantive effect on any requirement, or otherwise impose any new requirement, EPA finds that this constitutes good cause under 5 U.S.C. 553(b)(3)(B).

This rule makes technical changes to 40 CFR part 180, subpart C to correct cross-references, remove expired tolerances, improve the presentation and format of the regulation, and make other minor, non-substantive improvements to the regulation. Other than clarifying EPA regulations, these amendments are not expected to have any impact on regulated parties or the public because they do not change existing requirements or impose any new requirements. Accordingly, these amendments were not designated a significant regulatory action under Executive Orders 12866 (58 FR 51735, October 4, 1993) and Executive Order 13653 (76 FR 3821, January 21, 2011). Nor does it impose or change any information collection burden that requires additional review by OMB under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501et seq.).

Because the agency has made a “good cause” finding that this action is not subject to notice-and-comment requirements under the Administrative Procedure Act or any other statute (See Unit III.), it is not subject to the regulatory flexibility provisions of the Regulatory Flexibility Act (5 U.S.C. 601et seq.), or to sections 202 and 205 of the Unfunded Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1531-1538). In addition, this action does not significantly or uniquely affect small governments or impose a significant inter-governmental mandate, as described in sections 203 and 204 of UMRA.

This rule will not have substantial direct effect on Tribal governments, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes, as specified in Executive Order 13175 (65 FR 67249, November 6, 2000). In addition, the agency has determined that his action will not have a substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999).

Since this action is not economically significant under Executive Order 12866, it is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), and Executive Order 13211 (66 FR 28355, May 22, 2001). Nor does it require any special considerations to address environmental justice under Executive Order 12898 (55 FR 7629, February 16, 1994).

In addition, this action does not involve technical standards that would require the consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272).

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

Therefore, 40 CFR chapter I is amended as follows:

To verify that GSA has met the requirements of the Federal Information Security Management Act of 2002 (FISMA), GSA's Office of the Inspector General (OIG) conducted an audit of GSA's information and information technology systems. In regards to the regulatory process, a recommendation was made by the OIG to strengthen the requirements in contracts and orders for information technology supplies, services and systems. Working with the Office of the Chief Information Officer (CIO), the Office of Acquisition Policy developed the policy, guidance and requirements that would be utilized to protect GSA's information and information technology systems, regardless of the location. The actual requirements are currently being utilized in solicitations, contracts and orders issued by the CIO; however, they were not included in the GSAR. By revising the GSAR to include these requirements, GSA is agreeing with the recommendation of the OIG and strengthens the protection of information and information systems.

The following are the changes to GSAR part 507, Acquisition Planning; Subpart 511.1, Selecting and Developing Requirement Documents; part 539,Acquisition of Information Technology; and part 552, Solicitation Provisions and Contract Clauses.

This interim rule amends the title of GSAM Subpart 507.70 to clarify that this part only applies to requirements for the purchase of information technology in support of national security systems involving weapons systems. The GSAM is a non-regulatory portion of the manual.

GSAM 511.102 is being added to provide the policy as it relates to contracts and orders for government data, information technology, supplies, services and systems in accordance with GSA policy and procedures guide. The GSAM is a non-regulatory portion of the manual.

GSAM 539.001 is amended to indicate that this subpart does not apply to information technology supplies, services and systems in support of national security systems. The GSAM is a non-regulatory portion of the manual.

New subpart 539.70 is added to provide the policy as it relates to contracts and orders for information technology supplies, services and systems that do not involve national security systems.

GSAR part 552 was amended to add a new provision, 552.239-70, Information Technology Security Plan and Security Authorization; and a new clause, 552.239-71, Security Requirements for Unclassified Information Technology Resources, that relates to the policy requirements described in GSAR Part 539.

Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is a significant regulatory action and, therefore, was subject to review under Section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

This interim rule may have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601et seq.,because the rule requires contractors, within 30 days after contract award to submit an IT Security Plan to the Contracting Officer and Contracting Officer's Representative that describes the processes and procedures that will be followed to ensure appropriate security of IT resources that are developed, processed, or used under the contract. The rule will also require that contractors submit written proof of IT security authorization six months after award, and verify that the IT Security Plan remains valid annually. Where this information is not already available, this may mean small businesses will need to become familiar with the requirements, research the requirements, develop the documents, submit the information, and create the infrastructure to track, monitor and report compliance with the requirements. However, GSA expects that the impact will be minimal, because the clause includes requirements that IT service contractors should be familiar with through other agency clauses, existing GSA IT security requirements, and Federal laws and guidance. Small businesses are active providers of IT services.

The Regulatory Secretariat has submitted a copy of the Initial Regulatory Flexibility Analysis (IRFA) to the Chief Counsel for Advocacy of the Small Business Administration. A copy of the IRFA may be obtained from the Regulatory Secretariat. The Councils invite comments from small business concerns and other interested parties on the expected impact of this rule on small entities.

GSA will also consider comments from small entities concerning the existing regulations in subparts affected by this rule in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 610 (GSAR Case 2011-G503) in correspondence.

The analysis is summarized as follows:

The Paperwork Reduction Act (44 U.S.C. chapter 35) applies because the interim rule contains information collection requirements. Accordingly, the Regulatory Secretariat will submit a request for approval of a new information collection requirement concerning Security Requirements for Unclassified Information Technology Resources (GSAR 552.239-70) to the Office of Management and Budget.

Public reporting burden for this collection of information is estimated to average 5 hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

The annual reporting burden is estimated as follows:

Respondents:147.

Responses per respondent:2.

Total annual responses:294.

Preparation hours per response:5.

Total response burden hours:1,470.

Submit comments, including suggestions for reducing this burden, not later than August 15, 2011 by any of the following methods:

•Regulations.gov: http://www.regulations.gov.

Submit comments via the Federal eRulemaking portal by inputting “GSAR case 2011-G503” under the heading “Enter Keyword or ID” and selecting “Search”. Select the link “Submit a Comment” that corresponds with “GSAR case 2011-G503”. Follow the instructions provided at the “Submit a Comment” screen. Please include yourname, company name (if any), and “GSAR case 2011-G503” on your attached document.

•Fax:202-501-4067.

•Mail:General Services Administration, Regulatory Secretariat (MVCB), 1275 First Street, NE., Washington, DC 20417. ATTN: Hada Flowers/GSAR case 2011-G503.

Instructions:Please submit comments only and cite GSAR case 2011-G503, in all correspondence related to this collection. All comments received will be posted without change tohttp://www.regulations.gov,including any personal and/or business confidential information provided.

Public comments are particularly invited on: Whether this collection of information is necessary for the proper performance of functions of the GSAR, and will have practical utility; whether our estimate of the public burden of this collection of information is accurate, and based on valid assumptions and methodology; ways to enhance the quality, utility, and clarity of the information to be collected; and ways in which we can minimize the burden of the collection of information on those who are to respond, through the use of appropriate technological collection techniques or other forms of information technology.

Requester may obtain a copy of the supporting statement from the General Services Administration, Regulatory Secretariat (MVCB), 1275 First Street, NE., 7th Floor, Washington, DC 20417. Please cite OMB Control Number 3090-0294, Title: Security Requirements for Unclassified Information Technology Resources (GSAR 552.239-71), in correspondence.

A determination has been made under the authority of the Administrator of General Services (GSA) that urgent and compelling reasons exist to promulgate this interim rule without prior opportunity for public comment. This action is necessary because GSA must provide information security for the information and information systems that support the operations and assets of the agency, including those provided or managed by another agency, contractor, or other source. Section 3544(a)(1)(A)(ii) of the Federal Information Security Management Act (FISMA) describes Federal agency security responsibilities as including “information systems used or operated by an agency or by a contractor of an agency or other organization on behalf of an agency.”

However, pursuant to 41 U.S.C. 418b and FAR 1.501, GSA will consider public comments received in response to this interim rule in the formation of the final rule.

Therefore, GSA amends 48 CFR parts 539 and 552 as set forth below:

On April 1, 2011, FRA published a final rule mandating specific requirements for effective concrete crossties, for rail fastening systems connected to concrete crossties, and for automated inspections of track constructed with concrete crossties. See 76 FR 18073. The effective date of this final rule was to be July 1, 2011. FRA received two petitions for reconsideration in response to the final rule that contain substantive issues requiring a detailed response from FRA. Accordingly, in order to allow FRA appropriate time to consider and fully respond to the petitions for reconsideration, this document delays the effective date of the final rule until October 1, 2011. Therefore, any requirements imposed by the final rule need not be complied with until October 1, 2011.

Background

The International Pacific Halibut Commission (IPHC) and NMFS manage fishing for Pacific halibut (Hippoglossus stenolepis) through regulations established under authority of the Northern Pacific Halibut Act of 1982 (Halibut Act). Sections 773c(a) and (b) of the Halibut Act provide the Secretary of Commerce (Secretary) with general responsibility to carry out the Convention between the United States and Canada for the Preservation of the Halibut Fishery of the North Pacific Ocean and Bering Sea and the Halibut Act. Section 773c(c) of the Halibut Act also authorizes the North Pacific Fishery Management Council (Council) to develop regulations, including limited access regulations, that are in addition to, and not in conflict with, approved IPHC regulations. Such Council-developed regulations may be implemented by NMFS only after approval by the Secretary. The Council has exercised this authority in the development of its limited access program for charter vessels in theguided sport fishery, codified at 50 CFR 300.67.

In March 2007, the Council recommended a limited access program for charter vessels in IPHC Regulatory Area 2C and Area 3A. The intent of the program was to manage growth of fishing capacity in the charter sector by limiting the number of charter vessels that may participate in the guided sport fishery for halibut in Areas 2C and 3A. NMFS published a final rule implementing the program on January 5, 2010 (75 FR 554). Under the program, NMFS initially issued a charter halibut permit (CHP) to qualified applicants. A person who was not initially issued a CHP may obtain a transferable CHP from another person by submitting a transfer application and meeting CHP transfer requirements. A permit holder may use a CHP onboard any vessel that meets Federal and state requirements to operate as a charter vessel in the guided sport fishery for halibut in Areas 2C and 3A.

Beginning February 1, 2011, any person operating a vessel on which charter vessel anglers catch and retain halibut in Area 2C or Area 3A must complete an ADF&G Saltwater Charter Logbook (charter logbook) that contains information on the CHP authorizing the charter vessel fishing trip. The preamble for the proposed rule to implement the charter halibut limited access program, published on April 21, 2009 (74 FR 18178), provided the rationale underlying this requirement. The Council originally recommended a prohibition on the leasing of CHPs. NMFS did not implement this prohibition because (1) the Council did not provide a specific definition of leasing; and (2) such a prohibition likely would have disrupted the operation of many charter businesses and be difficult to enforce. After additional consideration on this issue, the Council recommended three specific charter logbook reporting requirements, in place of the prohibition on leasing, to promote involvement by the CHP holder with the charter halibut fishing operation:

1. Prohibit the CHP from being used onboard a vessel unless that vessel is identified in an ADF&G Saltwater Charter Logbook;

2. Require that a charter vessel operator have onboard the vessel an ADF&G Saltwater Charter Logbook issued in the name of the CHP holder; and

3. Require the authorizing CHP number to be recorded in the ADF&G Saltwater Charter Logbook for each trip.

In the final rule implementing the charter halibut limited access program (75 FR 554, January 5, 2010), NMFS implemented the Council's charter logbook reporting recommendations in regulations at § 300.66(v). Section 300.66(v) states that is unlawful for any person to:

(v) Be an operator of a vessel in Area 2C or Area 3A with one or more charter vessel anglers onboard that are catching and retaining halibut without having onboard the vessel a State of Alaska Department of Fish and Game Saltwater Charter Logbook that specifies the following:

(1) The person named on the charter halibut permit or permits being used onboard the vessel;

(2) The charter halibut permit or permit number(s) being used onboard the vessel; and

(3) The name and State issued boat registration (AK number) or U.S. Coast Guard documentation number of the vessel.

This interpretive rule is administrative and clarifies that NMFS is relying on the regulatory text at § 300.66(v) for management purposes, and not the preamble text. This interpretive rule would not change requirements, or long standing procedures, for charter halibut businesses to obtain charter logbooks from ADF&G. The regulatory language in § 300.66(v)(1) does not explicitly require a charter vessel operator to have onboard the vessel a charter logbook issued in the name of the CHP holder, despite what was stated in the preamble to the limited access program proposed rule.

NMFS also determined that in some circumstances, a CHP holder may be unable to obtain a charter logbook for the vessel. This is because CHPs may be issued in the name of an individual, community quota entity, or other owners and not necessarily the business in which the charter logbooks are issued. The State of Alaska issues a charter logbook for a vessel in the name of the Sport Fishing Business on a charter operator's State of Alaska Business License. Although the State of Alaska Business License lists the names of the owner and business, only the business name is recorded in the 2011 charter logbook. It is ADF&G's policy that charter fishing activity on one vessel should be recorded in the charter logbook issued for that vessel. NMFS assigns a CHP to the individual or non-individual entity who was the owner of the business that qualified for the CHP or who received the CHP by transfer. The person named on the CHP may or may not have provided NMFS a business name associated with their CHP. Therefore the names on the CHP and the charter logbook may not match since CHP applicants were not required to provide the business name in which the charter logbook was issued. Consequently, the requirement for a charter vessel operator to have onboard the vessel a charter logbook issued in the name of the CHP holder may not be consistent with the manner in which ADF&G issues charter logbooks.

Additionally, requiring a charter vessel operator to have onboard the vessel a charter logbook issued in the name of the CHP holder, as stated in the Council's recommendation and in the preamble to the limited access program proposed rule, may compromise charter logbook data quality. For example, a charter operator may use multiple CHPs onboard a vessel to increase the number of anglers on a charter vessel fishing trip. If the CHPs onboard the vessel are issued to different persons, the operator would be required to record information for that charter vessel fishing trip in more than one charter logbook. This would result in information for one charter vessel fishing trip being recorded in multiple charter logbooks. ADF&G could receive data pages for charter trip information from each charter logbook, potentially resulting in duplicate data for halibut and other species. Duplicate data would increase the potential for data entry error and could ultimately result in less reliable charter harvest estimates. ADF&G uses the logbook data received from the charter vessel operators to project the charter harvest estimates for the season. This projection is presented to the Council and the IPHC in October each year.

This rule clarifies that Federal regulations in § 300.66(v)(1), (2), and (3) require operators of a vessel using one or more CHPs to complete the charter logbook as follows:

• Record the person(s) named on the CHP(s) on the front of the ADF&G Saltwater Charter Logbook in the space provided for the CHP holder name;

• Record the CHP number on the charter logbook page for the trip it was used. If multiple CHPs are used for the same charter vessel fishing trip, the operator should (1) check the box indicating “more than one CHP is being used on this trip”, (2) fill out a second page for the trip with the second CHP number, associated anglers, and activity, and (3) continue until all CHPs numbers, associated anglers, and activity for the trip are recorded on separate logbook pages.

• Verify that the name and state issued boat registration (AK number) or U.S. Coast Guard documentation number of the vessel on which the logbook is used is recorded in the charter logbook.

NMFS did not intend for the prohibition at § 300.66(v) to conflict with the collection of charter logbook data. It was meant to promote involvement by the CHP holder with the charter halibut fishing operation and the collection of accurate logbook data. The requirement to identify the vessel in the logbook was intended to be consistent with an existing ADF&G requirement that a charter vessel operator have onboard the vessel a charter logbook. Therefore, this interpretation clarifies that a charter vessel operator must record in the charter logbook issued for the vessel the person named on the CHP(s) and the CHP number(s) used for each charter vessel fishing trip.

The Assistant Administrator for Fisheries, NOAA has determined that this interpretation is consistent with the Halibut Act and other applicable law.

This action is administrative in nature and is exempt from the requirement to prepare an environmental assessment in accordance with NAO 216-6 because this interpretive rule will have no effect on the environment. As stated earlier in the preamble, this action ensures that the issuance of charter logbooks remains the same as before the implementation of the limited access program for guided sport charter vessels and clarifies confusion about who could be issued a charter logbook.

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

The notice and comment requirements and the 30-day delay in the effective date requirements of the Administrative Procedure Act do not apply to this interpretive rule asprovided in 5 U.S.C. 553(b)(A) and 5 U.S.C. 553(d)(2).

This interpretive rule is exempt from the procedures of the Regulatory Flexibility Act because the rule is issued without opportunity for prior notice and opportunity for public comment.

The snapper-grouper fishery of the South Atlantic is managed under the 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 Fishery Conservation and Management Act (Magnuson-Stevens Act).

On April 29, 2011, NMFS published a proposed rule for Regulatory Amendment 9 and requested public comment (76 FR 23930). The proposed rule and the regulatory amendment outline the rationale for the actions contained in this final rule. A summary of the actions implemented by this final rule are provided below.

This final rule sets the black sea bass recreational bag limit at 5-fish per person per day. This bag limit is projected to slow the rate of recreational harvest to allow for a longer recreational fishing season. The effective date for the implementation of the bag limit reduction is June 22, 2011, which is earlier than the effective date for the other actions within this final rule. This earlier date of implementation will allow for adequate notice to recreational fishers to plan their fishing activities without delaying the implementation of the bag limit reduction, and will minimize unnecessary economic impacts to snapper-grouper fisherman by allowing for a longer fishing season and more fishing trips.

To increase the probability of the greater amberjack commercial sector achieving OY, this final rule increases the commercial trip limit to 1,200 lb (544 kg). This increased trip limit is expected to increase harvest opportunities within the commercial sector.

This final rule implements commercial trip limits for vermilion snapper and gag. These commercial trip limits are intended to slow the rate of harvest, extend commercial harvest opportunities during the fishing year, and reduce the risk of commercial quota closures early in the fishing year.

This final rule also revises an outdated mailing address for the NMFS Southeast Regional Administrator (RA) and corrects two closed area coordinates published in the final rule implementing Comprehensive Ecosystem-Based Amendment 1 in the South Atlantic (CE-BA1) (75 FR 35330, June 22, 2010). The final rule for CE-BA1 contained one latitudinal and one longitudinal coordinate that were incorrectly identified. These additional measures are unrelated to the actions contained in Regulatory Amendment 9.

Under the Magnuson-Stevens Act, the Secretary of Commerce (Secretary) may approve, disapprove or partially approve an amendment upon submission of an amendment by the Council. The Secretary shall disapprove or partially approve an amendment if the Secretary finds that the amendment, or parts of the amendment, are inconsistent with the requirements of applicable law.

NMFS disapproved the proposed management measure that would have implemented split season quotas for commercial black sea bass because it finds the administrative record for that measure insufficient under the Administrative Procedure Act because NMFS received additional information that impacted its decision to implement a split season quota. The Council had proposed splitting the commercial quota into two 6-month seasons; from June-November the quota would be 128,547 lb (58,308 kg), and from December-May the quota would be 180,453 lb (81,852 kg), and any unharvested quota from the June-November season would be added to the quota for the following December-May season. During the comment period on the proposed rule, NMFS received several comments opposed to the split season quota. Two commenters were concerned about the proposed measure's possible negative impacts on North Atlantic right whales. North Atlantic right whales are listed as endangered under the Endangered Species Act, and the commenters indicated that right whales may be at particular risk to entanglement with vertical lines in the South Atlantic exclusive economic zone (EEZ). Splitting the commercial black sea bass quota to specifically allow for fishing in December through May would result in the presence of numerous vertical black sea bass pot buoy lines within the North Atlantic right whale winter migration route along the Southeast coast. The commenter additionally cited recent information from an April 2011 Atlantic Large Whale Take Reduction Team (ALWTRT) meeting that validated there is a risk to North Atlantic right whales from vertical black sea bass buoy gear in the South Atlantic EEZ. Another commenter indicated that implementation of a split season would increase the derby nature of the black sea bass commercial sector.

The information in these comments led NMFS to reconsider information regarding marine mammal entanglements in black sea bass pot gear. Recent scientific information suggests North Atlantic right whales are potentially more vulnerable to entanglements in South Atlantic fisheries gear than previously thought. New data suggest the coastal waters of South Carolina, North Carolina, and possibly Virginia may be used as birthing and calving areas for right whales, and that some right whales make multiple intra-season trips between the U.S. Northeast and Southeast regions. Saving the largest portion of the black sea bass commercial quota for the December through May time period would reintroduce vertical black sea bass pot buoy lines during the time of the year when the right whales are transiting and residing off the South Atlantic coast, and would undermine the ongoing efforts of the ALWTRT to reduce the entanglement risk for large whales.

Thus, while the administrative record for Regulatory Amendment 9 now contains the information discussed above, it is clear that the Council did not have the opportunity to consider this information prior to making their decision to approve the split season, thus overlooking an important aspect of the implications of a split season implementation. Therefore, after considering public comments opposed to the split season for socio-economic reasons, concerns undermining the efforts of the ALWTRT to reduce the risk of entanglement to large whales, and new information that has become available from the ALWTRT, NMFS has disapproved the commercial black sea bass split season action within Regulatory Amendment 9, and is not implementing that provision as indicated in the proposed rule.

As a result of the partial approval of Regulatory Amendment 9, the quota for the black sea bass commercial sector remains at 309,000 lb (140,160 kg) for the entire fishing year of June through May.

The following is a summary of the comments NMFS received on the proposed rule and Regulatory Amendment 9, and NMFS's respective responses. During the comment period, NMFS received a total of 22 comments from individuals, state and Federal agencies, and fishing associations. Of the 22 comments, two comments expressed general support, and eight individual comments opposed one or more actions contained in Regulatory Amendment 9. Two environmental organizations both provided a comment that was similar in its intent opposing one of the actions in Regulatory Amendment 9. NMFS received nine comments that did not support or oppose Regulatory Amendment 9, but suggested alternative means for managing components of the snapper-grouper fishery. One state and one Federal agency submitted comments on Regulatory Amendment 9. Specific comments related to the actions contained in the amendment and the rule as well as NMFS' respective responses, are summarized below.

Comment 1:Several commenters stated the data used to determine that black sea bass are overfished and undergoing overfishing are flawed because they are seeing numerous black sea bass while on fishing trips. One commenter stated the use of what is considered “the best science available” is a distorted interpretation of the true intent of the Magnuson-Stevens Act, and one commenter stated Regulatory Amendment 9 is an example of the Federal Government intruding into what should be considered a state issue.

Response:Black sea bass were most recently assessed through the Southeast, Data, Assessment, and Review process (SEDAR), the findings of which can be found in the 2006 SEDAR 2 update, which determined the black sea bass stock was overfished and undergoing overfishing.

SEDAR is a cooperative process 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 is managed by the Caribbean, Gulf of Mexico, and South Atlantic Regional Fishery Management Councils (Councils) in coordination with NMFS and the Atlantic and Gulf States Marine Fisheries Commissions. SEDAR seeks improvements in the scientific quality of stock assessments and greater relevance of information available to address existing and emerging fishery management issues. SEDAR 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 three workshops. The first is a data workshop where datasets are documented, analyzed, and reviewed and data for conducting assessment analyses are compiled. The second is an assessment workshop where quantitative population analyses are developed and refined and population parameters are estimated. The third is a review workshop where a panel of independent experts reviews the data and assessment, and recommends the most appropriate values of critical population andmanagement quantities. All SEDAR workshops are open to the public. Public testimony is accepted in accordance with each Council's standard operating procedures.

The findings and conclusions of each SEDAR workshop are documented in a series of reports, which are ultimately reviewed and discussed by the appropriate Council and its Scientific and Statistical Committee.

Recreational fishing data are collected by the Marine Recreational Fishing Statistics Survey (MRFSS), which conducts telephone surveys of coastal households and for-hire businesses, as well as in-person access-point angler intercept surveys. These surveys are used to collect information on recreational fishery participation, fishing effort and catch, in addition to the demographic, social, and economic characteristics of the participants. NMFS recognizes that within MRFSS data there may be uncertainty for infrequently encountered species and is working with recreational and for-hire fishermen to address this issue through the Marine Recreational Information Program (MRIP).

A new SEDAR stock assessment (SEDAR 25) is currently underway for black sea bass. This assessment is scheduled to be completed in October 2011. If results of SEDAR 25 indicate an increased level of commercial and recreational harvest could be allowed without negatively impacting rebuilding efforts, the Council may consider addressing black sea bass harvest limits in a future amendment.

National Standard 2 of the Magnuson-Stevens Act states: “Conservation and management measures shall be based upon the best scientific information available.” NMFS has not modified the intended interpretation of the National Standard 2 language. Black sea bass was assessed through the SEDAR process and the findings of the most recent SEDAR for black sea bass can be found in the SEDAR 2 2006 update. Additionally, vermilion snapper was assessed in SEDAR 17 (2008); gag was assessed in SEDAR 10 (2006); and greater amberjack was assessed in SEDAR 15 (2008). All SEDAR stock assessments can be found at the Internet site:http://www.sefsc.noaa.gov/sedar/. Though these stock assessments form the basis for many fishery management decisions, the actions in Regulatory Amendment 9 were largely supported by recent landings data derived from vessel logbooks, headboat logbooks, and MRFSS/MRIP data in order to determine which trip limits or bag limits would be most effective in extending fishing opportunities for the subject species. Landings data are provided by the NMFS Southeast Fisheries Science Center, which also certified the data used in Regulatory Amendment 9 as the best scientific information available in a memorandum dated May 2, 2011.

The Federal Government has jurisdiction over fisheries prosecuted in Federal waters,i.e.,the area 3 miles (4.8 km) to 200 miles (322 km) offshore in the South Atlantic. The snapper-grouper fishery, including black sea bass, gag, vermilion snapper, and greater amberjack, is included in the list of Federally-managed fisheries. Therefore, when modifications to Federal fisheries regulations are needed, NMFS, the government agency responsible for managing Federal fisheries, is the appropriate entity to carry out those changes.

Comment 2:One commenter opposed splitting the black sea bass commercial quota into two 6-month seasons because the December-May portion of the fishing year is likely to increase the risk of entanglement to endangered North Atlantic right whales that reside in the waters off the South Atlantic coast during the winter months. They additionally noted that a 2008 survey of black sea bass fishermen indicated black sea bass pots are deployed in closer proximity to each other during the winter months than during the summer months, which could increase the threat of entanglement in fishing gear to right whales. The commenter also lists ship strikes and entanglement in vertical lines as the top two factors responsible for preventing rebuilding of the North Atlantic right whale population. Furthermore, the ALWTRT convened a meeting in April 2011, where the issue of reducing risk to right whales from vertical lines in the South Atlantic was a significant focus of the meeting. The ALWTRT has determined that NMFS should reduce the risk of right whale entanglement associated with vertical line gear (which includes black sea bass pot buoy gear).

Response:NMFS has chosen not to approve the action to split the black sea bass commercial quota into two 6-month seasons. New information on the possible impacts of black sea bass pot fishing during the December through May split season was received by NMFS, after the Council had submitted Regulatory Amendment 9 for Secretarial approval, and NMFS has determined it is not appropriate to approve the split season commercial quota action at this time as previously explained. However, disapproval of the split season commercial quota in Regulatory Amendment 9 does not preclude the Council from considering the action in a future amendment, after a thorough analysis of all relevant data has been completed.

Splitting the commercial black sea bass quota to specifically allow for fishing in December through May would result in the presence of numerous vertical black sea bass pot buoy lines within the North Atlantic right whale winter migration route along the Southeast coast. The April 2011 ALWTRT meeting validated there is a risk to North Atlantic right whales from vertical black sea bass buoy gear in the South Atlantic EEZ.

Recent scientific information suggests North Atlantic right whales are potentially more vulnerable to entanglements in South Atlantic fisheries gear than previously thought. New data suggest the coastal waters of South Carolina, North Carolina, and possibly Virginia may be used as birthing and calving areas for right whales, and that some right whales make multiple intra-season trips between the U.S. Northeast and Southeast regions. Saving the largest portion of the black sea bass commercial quota for the December through May time period would reintroduce vertical black sea bass pot buoy lines during the time of the year when the right whales are transiting and residing off the South Atlantic coast, and would undermine the ongoing efforts of the ALWTRT to reduce the entanglement risk for large whales.

Comment 3:One commenter opposed splitting the commercial quota for black sea bass into two seasons without first implementing a catch share program or trip limits to prevent derby conditions in each of the two split seasons. Another commenter opposed splitting the black sea bass commercial quota because it would allow commercial fishing to occur while the black sea bass recreational sector is potentially closed.

Response:The Council considered commercial trip limits as part of the range of alternatives for addressing the derby nature of the black sea bass component of the snapper-grouper fishery. The trip limits analyzed in Regulatory Amendment 9 ranged from 340 lb (154.2 kg) gutted weight to 2,500 lb (1,134 kg) gutted weight. However, Amendment 18A to the FMP, currently under development by the Council and NMFS, includes a proposed action that would require fishermen to return pots to shore at the conclusion of a commercial fishing trip. If this action is implemented through subsequent rulemaking, there is a possibility that the trip limit could unintentionally be exceeded. As black sea bass pot fishermen go through the process ofretrieving the pots, they may find the trip limit has been met when only a portion of the pots they deployed have been retrieved. Therefore, the catch contained in each pot retrieved after the trip limit is met must be discarded, causing unnecessary biological and economic harm. For this reason, the Council did not select the alternative to implement a commercial trip limit for black sea bass in Regulatory Amendment 9.

Actions are under development by the Council and NMFS that could reduce the derby nature of the black sea bass commercial sector. In addition to the requirement of returning pots to shore at the conclusion of a commercial fishing trip, Amendment 18A to the FMP includes a proposed action to limit the number of black sea bass pots that can be fished. Additionally, a catch share program for several snapper-grouper species, including black sea bass, was under development in Amendment 21 to the FMP. However, at its March 2011 meeting, the Council reviewed public comments and testimony from scoping meetings held in January and February of 2011, and determined there was not enough public support to continue development of a catch share program for species in the snapper-grouper fishery. It is important to note, the Council's decision not to move forward with snapper-grouper catch shares at this time does not preclude the development of a catch share program in the future.

If the recreational sector were to meet the recreational annual catch limit (ACL) before the commercial sector reached the commercial quota during either of the two split seasons, there is a possibility that commercial fishing may occur while the recreational sector is closed. However, the previously established commercial and recreational ACLs would not change for either sector and, therefore, total allowable harvest would remain the same regardless of how the commercial season is configured or how quickly the recreational sector may harvest its ACL in a given fishing year.

Comment 4:Several commenters supported implementing split season commercial quotas for black sea bass and one commenter states the split season commercial quota for black sea bass would help rebuild the stock.

Response:NMFS agrees that split season quotas for the black sea bass component of the snapper-grouper fishery may benefit the fishing community by creating two distinct opportunities to fish for black sea bass rather than one season that has recently been relatively short. However, while split seasons may provide an opportunity for commercial harvest during some additional months of the year, the commercial quota has not increased. Therefore, if fishing effort remains consistent, the split season commercial quotas would be expected to be met early in each split season, which would result in periods of time where there would be no fishing for black sea bass with pots. These periods of no fishing effort would benefit the stock as would any early closure during the December-May season, which is when black sea bass are in spawning condition. However, for the reasons previously stated, NMFS is not approving the action to split the commercial black sea bass quota into two 6-month seasons.

Comment 5:Three commenters supported a black sea bass recreational bag limit reduction from 15-fish per person per day to 10-fish per person per day bag limit rather than 5-fish per person per day. One commenter supported reducing the black sea bass bag limit by the amount needed to avoid any recreational closure during the fishing year.

Response:Reducing the recreational bag limit to 10-fish per person per day would achieve a harvest reduction of between 2-4 percent, which is not enough to keep the recreational sector open significantly longer than the 2010-2011 recreational black sea bass season which closed in February 2011. A bag limit of 5-fish per person per day is expected to provide a reduction in recreational harvest of about 15.5 percent based on 2010 data, as well as extending the recreational fishing season through March. The Council had the option of choosing an even lower bag limit, in order to keep the recreational sector open longer than that expected under the 5-fish daily bag limit alternative. In order to keep the recreational sector open all year, the bag limit would need to be reduced from 15-fish per person per day to below 3-fish per person per day. However, the Council concluded a bag limit lower than five fish could remove the incentive to fish altogether for many potential passengers of for-hire vessels. Additionally, based on data indicating that a large percentage of recreational trips result in approximately five black sea bass being landed per person per day, and that the estimated closure date (based on a 5-fish bag limit) for the 2011-2012 season is the middle of March 2012, the Council chose to implement the 5-fish per person daily recreational bag limit. The Council considers the bag limit an interim measure to extend fishing opportunities farther into the fishing season until the SEDAR 25 stock assessment is completed. The Council may then chose to modify management measures for black sea bass based on the outcome of the new stock assessment.

Comment 6:Several commenters opposed the 5-fish per person daily bag limit for black sea bass, stating that it would be prohibitively expensive to run for-hire trips for such a small number of fish. One recreational fisher indicated he would not pay the same fishing trip cost when restricted to a 5-fish daily bag limit, implying that for-hire fishing operations may suffer negative economic consequences in the form of fewer paying passengers as a result of the lowered bag limit. One of the commenters opposed to the bag limit reduction stated that Regulatory Amendment 9 incorrectly states the length of time the smaller bag limit would extend the season, noting the trip limit is being reduced by two-thirds and therefore, the season should triple in length.

Response:The economic analysis conducted for Regulatory Amendment 9 evaluated the economic effects of the various bag limit alternatives relative to the no action alternative. The no action alternative consists of a 15-fish daily bag limit and an ACL based closure, which is longer than the closure would be under any of the lower bag limit alternatives. Although the for-hire sector would experience reduced profits due to the lower bag limit, it would gain profits through a closure of reduced duration with respect to the no action alternative. Profit gains due to a shorter closure relative to the profit losses due to the bag limit reduction under the 5-fish daily bag limit alternative were estimated to outweigh the profit losses due to the longer closed season experienced under the no action alternative. Based on actual catch of black sea bass by recreational fishermen, a reduction in the bag limit is expected to extend the recreational season through March in a June-May fishing year based on 2010 data. The Council decided that a bag limit of less than 5-fish per person might be too low to be worth taking a fishing trip and a bag limit greater than 5-fish per person would not extend the fishing season by a meaningful amount. Overall, profits of for-hire vessels under the 5-fish bag limit alternative with a shorter duration closure would be higher than those under the 15-fish daily bag limit with a longer duration closure.

The reduction in the black sea bass bag limit was considered by the Council to allow the recreational sector to operate over a longer season. Thismeasure would be expected to directly affect certain anglers who may eventually cancel fishing trips due to relatively higher fishing costs. However, a majority of anglers would remain relatively unaffected by the measure, because they did not catch more than five black seas bass on a fishing trip.

The reduction in harvest associated with a bag limit reduction is based on the actual catch of fishermen. According to the biological affects analysis, a reduction in the black sea bass bag limit from 15-fish per person to 5-fish per person would reduce recreational landings of black sea bass by 15.5 percent. The current recreational harvest would only be reduced by two-thirds under the bag limit reduction of 5-fish per person, if all fishermen caught the current bag limit of 15-fish per person per day.

Comment 7:Two commenters stated the intent of the bag limit reduction from 15-fish per person per day to 5-fish per person per day is to protect commercial fishermen at the expense of recreational fishermen. One of the same commenters recommends increasing the commercial minimum size limit from 10 inches (25.4 cm) to 12 inches (30.5 cm) total length, which is consistent with the recreational size limit.

Response:The intent of reducing the black sea bass bag limit is to extend recreational fishing opportunities farther into the fishing season than what is possible under the current 15-fish per person daily bag limit. Reducing the black sea bass bag limit is expected to extend recreational fishing for the species by approximately one and one-half months longer in the 2011-2012 season, compared to the closure in early February that occurred during the 2010-2011 fishing season. Because Amendment 17B to the FMP established separate ACLs for the commercial and recreational sectors, management measures that are implemented for one sector do not affect overall allowable harvest of the other sector. Therefore, adjustments to the black sea bass bag limit would independently affect the recreational sector and the commercial sector would not benefit from a reduced recreational bag limit.

Amendment 13C to the FMP increased the recreational minimum size limit for black sea bass from 10 inches (25.4 cm) to 12 inches (30.5 cm) total length and maintained the 10 inch (25.4 cm) size limit implemented in 1999 through Amendment 9 to the FMP for the commercial sector. The average size of black sea bass is largest for fish caught by commercial fishermen and smallest for black sea bass caught by the headboat component of the fishery. The black sea bass 2005 SEDAR Assessment Update #1, indicated that the 10 inch (25.4 cm) total length minimum size limit implemented in 1999 ensures that biomass persists even in a heavily fished environment because it is large enough to protect several year classes of spawning fish resulting in a spawning potential ratio equal to 25.8 percent. The Council did not consider adjusting the minimum size limit for commercially harvested black sea bass through Regulatory Amendment 9.

Comment 8:One commenter stated that lowering the black sea bass bag limit and implementing trip limits for other species would compel anglers to undertake more trips to catch the same amount of fish, thereby increasing their overall costs and exposing them to fishing hazards due to bad weather.

Response:The expectation is that the number of trips overall may increase, but that the trip limits for gag and vermilion snapper and a lower bag limit for black sea bass would effectively constrain the harvest of these three species so that reaching their respective ACLs would occur later in the fishing year than in 2011. For snapper-grouper commercial fishermen attempting to maintain overall harvest levels and associated profits, the number of trips may need to increase to compensate for lower catch-per-trip, which would increase overall costs.

In the case of black sea bass, for the majority of anglers who caught no more than 5-fish per trip, their relative cost of fishing would essentially remain the same. For for-hire vessels, the economic analysis compared the net operating (profit) losses under a higher bag limit with a longer closure against the 5-fish bag limit with a shorter closure. A major conclusion arrived at by this analysis is that profit losses would be lower under the 5-fish bag limit with shorter closure than under the 15-fish bag limit with longer closure. For the commercial sector, operating costs would be expected to increase if more trips are taken to compensate for lower per-trip harvest. The extent to which these costs may be affected is unknown and would fluctuate with fuel costs.

By extending the recreational season for black sea bass and the commercial fishing seasons for gag and vermilion snapper, anglers would be afforded a wider fishing window for undertaking trips so that they could schedule fishing trips to avoid hazardous inclement weather.

Comment 9:One commenter stated several of his for-hire passengers, who are part of a minority population, feel they are being discriminated against as a result of the reduced black sea bass bag limit in this final rule as well as the 2010-2011 early recreational seasonal closure for black sea bass.

Response:Executive Order 12898 requires Federal agencies to identify and address, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations. Appendix D of Regulatory Amendment 9 outlines the environmental justice considerations for the actions contained within the amendment, and a thorough social affects analysis was conducted for each action in the amendment. The regulation applies to all recreational sector participants in the South Atlantic region regardless of their socioeconomic or minority status. Available data does not indicate that minority or low-income populations comprise a disproportionate portion of the for-hire sector, or that minority or low-income populations are disproportionately dependent on black sea bass for subsistence consumption or other purposes. The commenter did not provide sufficient new information that alters NMFS' determination that no disproportionate impacts or environmental justice issues are anticipated as a result of the reduced bag limit.

Comment 10:One commenter supported changing the start date of the fishing year from June 1 to May 1 of each year in order to provide southern North Carolina for-hire vessels with greater opportunities to harvest a share of the recreational ACL.

Response:The June 1 start date for the black sea bass fishing year was implemented through Amendment 13C to the FMP with the intent that, if a closure should occur, it would most likely coincide with the black sea bass spawning season and thus, aid rebuilding efforts. The Council considered two start date alternatives, other than the no action alternative of maintaining the current start date for the fishing year. One alternative was a November 1 start date and the other was a January 1 start date. A May 1 start date was not considered as an alternative, and it would not be expected to significantly alter prosecution of the fishery when compared to the current June 1 start date for the fishing year. A January start date would provide more benefit to fishermen in Georgia and Florida, whereas a June start date would provide more benefit to fishermen in North Carolina and South Carolina. Without a system of regional or state-by-state quotas, different states are going to benefit from different fishing year startdates disproportionately. Further, NMFS and the Council are committed to exploring the option of a regional management program for black sea bass and potentially other snapper-grouper species.

Comment 11:Three commenters supported the option of closing the black sea bass commercial pot sector once 90 percent of the quota has been caught.

Response:Regulatory Amendment 9 contained one alternative that would close the pot portion of the commercial black sea bass component of the snapper-grouper fishery once 90 percent of the commercial quota is met. The Council chose not to implement this action because of time lags in the data reporting process. Also, the rate at which the black sea bass commercial quota is harvested would make it difficult to determine when the small amount of the remaining commercial quota (10 percent) would be met.

Comment 12:One commenter suggested NMFS prohibit the use of black sea bass pots because they create navigation hazards, they are left to soak too long, and too many are allowed per vessel.

Response:Prohibiting the use of black sea bass pots was not considered by the Council in Regulatory Amendment 9 as an alternative to address derby conditions in the commercial sector. Most black sea bass pot activity is concentrated off the coasts of North Carolina and South Carolina and, to a lesser extent, northern Florida. Amendment 17B to the FMP established separate ACLs for the commercial and recreational sectors for black sea bass. Amendment 18A to the FMP, currently under development, contains several actions that could affect the overall prosecution of the black sea bass component of the snapper-grouper fishery. Amendment 18A to the FMP could limit participation in the commercial sector through an endorsement program and limit the number of pots allowed onboard black sea bass vessels. Amendment 18A to the FMP may also require black sea bass trap fishermen to bring in their pots at the end of each trip.

Comment 13:Three commenters suggested a 1,500-lb (680-kg) commercial trip limit for black sea bass should be implemented.

Response:The Council chose not to specify a trip limit for the commercial black sea bass component of the snapper-grouper fishery because actions in Amendment 18A to the FMP, currently under development, such as requiring fishermen to return pots to shore at the conclusion of a trip, may result in fishermen exceeding the trip limit when retrieving pots. Once a fisherman recognizes the trip limit has been met, all black sea bass caught in the pots ready to be retrieved would have to be discarded, resulting in unnecessary biological harm to the stock and economic harm to the fisherman.

Comment 14:One commenter suggested creating a seasonal commercial closure for black sea bass at the same time as the current shallow-water grouper closure in order to simplify the closure regulations.

Response:The Council considered four different spawning season closure alternatives for black sea bass, with the intent to extend fishing opportunities during the fishing season. However, public opposition to a spawning season closure was significant when considered with respect to the other measures proposed in Regulatory Amendment 9. While many fishermen are in favor of reducing harvest during the spawning season, they felt it would be best accomplished through a modification to the fishing year start date. Additionally, since SEDAR 25 is ongoing, the Council chose not to implement a spawning season closure at this time but may consider additional future black sea bass management measures if the stock assessment indicates such changes are warranted.

Comment 15:Three commenters suggested reducing the commercial trip limit for vermilion snapper when 75 percent of the split season quota is met.

Response:Three alternatives were considered for a vermilion snapper stepped-down trip limit triggered when 75 percent of the quota is harvested. The Council determined that reducing the vermilion snapper commercial trip limit once 75 percent of the quota is reached is not likely to extend the fishing season by a meaningful length of time. In addition, it would be difficult to monitor the small remaining portion of the commercial quota and project when the commercial quota closure should be implemented. Furthermore, trip limit step-downs during the fishing season can disproportionately affect larger vessels because the stepped-down trip limit of 75 percent of the quota would likely be too small to make profitable trips possible. For these reasons in-season trip limit step-downs were not selected by the Council for the vermilion snapper commercial component of the snapper-grouper fishery.

Comment 16:Three commenters suggested implementing a 100-lb (45-kg) commercial trip limit for gag and greater amberjack during the January-April 4-month spawning season closure for shallow-water groupers and the 1-month (April) spawning season closure for greater amberjack to allow for retention of incidentally captured gag and greater amberjack.

Response:Allowing a 100-lb (45-kg) commercial trip limit for gag and greater amberjack during the spawning season closures was not an action considered by the Council during the development of Regulatory Amendment 9. The actions in Regulatory Amendment 9 focused on extending the fishing seasons for black sea bass, gag, and vermilion snapper, and maximizing fishing opportunities for greater amberjack. Gag and greater amberjack are part of a multispecies fishery. Therefore, allowing any harvest of gag and greater amberjack during the spawning season closures could increase the risk of incidentally capturing other species such as red grouper and scamp, the harvest of which are also prohibited during the 4-month seasonal closure for shallow-water groupers.

Comment 17:Three commenters supported the implementation of a 1,500-lb (680-kg) commercial trip limit for gag and greater amberjack.

Response:A 1,500-lb (680-kg) trip limit for gag was not considered by the Council as an alternative within Regulatory Amendment 9 because it would not sufficiently reduce the rate of harvest to extend opportunities to fish during the fishing season by a meaningful length of time. A trip limit of 1,500 lb (680 kg) was analyzed in Regulatory Amendment 9 for greater amberjack. Industry representatives indicated that the trip limit should be increased by only a modest amount in order to avoid market disruption and price fluctuations. The Council determined that increasing the trip limit from 1,000 lb (453 kg) to 1,200 lb (544 kg) would be enough of an increase to optimize per-trip harvest, yet small enough to avoid any market disruption that may be caused by increasing the trip limit more than 200 lb (91 kg).

Comment 18:Three commenters opposed increasing the commercial trip limit for greater amberjack to 1,200 lb (544 kg) because it will increase fishing pressure on the species and create an unfair advantage to commercial fishermen.

Response:Greater amberjack is not overfished or undergoing overfishing, and the commercial quota of 1,169,931 lb (530,672 kg) has never been met since the commercial quota was implemented in 1999. The 1,169,931 lb (530,672 kg) commercial quota represents 63 percent of 1995 landings, and therefore, includes a significant reduction inallowable harvest for the commercial sector from previous years. Increasing the trip limit for the commercial sector will not provide an unfair advantage to commercial fishermen since it does not increase the total amount they are allowed to harvest within a given fishing year, only their per-trip yield. Many commercially permitted snapper-grouper fishery participants have been negatively impacted by restrictive management measures recently implemented for red snapper and shallow-water grouper. Increasing the trip limit for greater amberjack by 200 lb (91 kg) will allow a portion of those affected fishermen to compensate for those impacts by increasing their per trip yield of greater amberjack.

Comment 19:Three commenters suggested reducing the recreational bag limits for all species addressed in Regulatory Amendment 9 when 75 percent of the recreational ACL is met or projected to be met.

Response:The current recreational landings data collection program is not capable of providing landings data in real-time for the purposes of tracking the recreational landings of species included in Regulatory Amendment 9. There is a time lag between the time fishermen report landings through the MRFSS/MRIP system and when fishery managers are notified of the estimated landings. This issue may be compounded in fisheries where the recreational ACL is caught very quickly, as is the case with black sea bass. Additionally, recreational landings data are associated with a degree of uncertainty that must be factored into final landings estimates. Therefore, it is not practical to implement in-season accountability measures (AMs) such as stepping-down the bag limits for the recreational sector of the snapper-grouper fishery at this time.

Comment 20:Three commenters suggested removing all size limits to manage the snapper-grouper species included in Regulatory Amendment 9.

Response:Removing the minimum size limits was not considered for any of the species addressed in Regulatory Amendment 9. Minimum size limits are generally used to maximize the yield of each fish recruited to the fishery and to protect a portion of a stock from fishing mortality. The idea behind maximizing yield through size limits is to identify the size that best balances the benefits of harvesting fish at larger, more commercially valuable sizes against losses due to natural mortality. Protecting immature and newly mature fish from fishing mortality provides them increased opportunities to reproduce and replace themselves before they are captured. The removal of minimum size limits is likely to increase the rate at which the quotas and ACLs are met, and is not likely to ease derby conditions for species addressed in Regulatory Amendment 9.

Comment 21:Two commenters, including the state of North Carolina, suggested dividing the commercial quotas and recreational ACLs on a state-by-state basis so that species can be managed for the greatest benefit to the citizens of each state.

Response:NMFS agrees that establishing state-by-state quotas for snapper-grouper species could be beneficial to fishery participants, including those in North Carolina. Due to winter weather conditions, many snapper-grouper species may not be available off North Carolina until well after the fishing season has begun and a large portion of the commercial quota or recreational ACL has been harvested. However, effectively managing and enforcing state-by-state quotas remains a key obstacle to implementing such a program. NMFS has identified the issue of the enforcement of interstate cross-boundary quotas as a concern in the South Atlantic region and the Council did not consider them as a reasonable alternative within Regulatory Amendment 9.

Comment 22:Three commenters suggested that for all species addressed in Regulatory Amendment 9, the AMs regarding any ACL overages should be deducted from the next season's ACL, and any unharvested portion of the ACL should be carried over to the next fishing season.

Response:AMs for black sea bass, gag, and vermilion snapper were addressed in Amendment 17B to the FMP. AMs for greater amberjack are being addressed in the Comprehensive ACL Amendment. The action to establish a split season quota for black sea bass in Regulatory Amendment 9 includes a provision to carry over any unused portion of the first split season quota to the second split season quota. However, any unharvested portion of the second split season quota would not be credited to the following fishing year. NMFS has determined it is inappropriate to approve the action to establish split season quotas for the commercial sector of the black sea bass component of the snapper-grouper fishery at this time, as previously explained.

The Council did implement a payback provision for the recreational sectors for black sea bass, gag, and vermilion snapper in Amendment 17B to the FMP for situations where the stock is overfished. If the recreational ACL for black sea bass, gag, or vermilion snapper is exceeded and the stock is overfished, the Regional Administrator will publish a notice to reduce the recreational ACL in the following year by the amount of the overage. A payback for any ACL overages for greater amberjack may be considered in the Comprehensive ACL Amendment, which is currently under development. The commercial sector for these three species does not currently have a payback provision in place for any ACL overages that may occur during the fishing year.

Comment 23:One commenter stated the development of derby conditions in the snapper-grouper fishery has led to safety at sea issues, which should be addressed through a system of trip limits.

Response:NMFS recognizes the safety issues associated with derby-style fishing (the race to fish), where during a short duration of increased effort, fishermen may engage in fishing activities during foul weather situations in order to ensure they are able to harvest their optimum share of the harvest prior to reaching the commercial quota. Regulatory Amendment 9 seeks to alleviate safety at sea issues to some degree through the implementation of trip limits for gag, and vermilion snapper, and modifying the trip limit for greater amberjack. Trip limits for the black sea bass commercial sector were considered, but the Council did not choose to implement a trip limit for the species as explained in previous responses. In short, there is a possibility that commercial black sea bass fishermen using black sea bass pots could exceed the trip limit when retrieving pots, particularly if they were required to bring all pots to shore as currently being considered in Amendment 18A to the FMP, which could cause negative biological and economic effects.

Comment 24:One commenter suggested limiting the days per week the species in Regulatory Amendment 9 could be harvested as an alternative to the management measures included in Regulatory Amendment 9.

Response:The Council did not consider specifying fishing days per week in the commercial or recreational sectors for the species addressed in Regulatory Amendment 9. Limiting commercial fishermen to only certain days of the week for harvesting black sea bass, gag, and vermilion snapper may create enforcement challenges, safety at sea issues, and interfere with a fisherman's ability to maintain steady income and market conditions since trips would be highly dependent on weather conditions on allowable fishing days. Black sea bass, gag, and vermilionsnapper are part of a multispecies fishery and they are often incidentally caught while fishermen target other co-occurring snapper-grouper species. Limiting the number of days per week a certain species may be recreationally harvested may result in higher rates of regulatory discards and bycatch mortality than if some level of recreational harvest is permitted each day.

Comment 25:Two commenters support the use of trip limits to address derby fishing conditions that have emerged for gag and vermilion snapper.

Response:NMFS agrees that implementation of trip limits for species, such as vermilion snapper, associated with derby-style fisheries will help to minimize the race to fish, slow the rate of harvest, and limit the progressive shortening of fishing seasons.

Comment 26:One commenter suggested conducting a true study of the effects of fishing bans on the Georgia area considering that boating and fishing are significant to the economy of Georgia.

Response:An economic analysis conducted for fishing regulations in the South Atlantic would generally combine the economic effects on Georgia with those of northeast Florida due to confidentiality issues. Fishing effort, particularly on headboat trips, is relatively low in Georgia so that combining Georgia effort with that of northeast Florida would avoid divulgence of confidential information specific to a particular area. However, NMFS and the Council would be supportive of economic studies on fishery management issues in Georgia.

This final rule revises an outdated mailing address for the NMFS Southeast Regional Administrator (RA).

This final rule revises commercial trip limit codified text for greater amberjack to be consistent with respect to the commercial quota. Reference language for closure provisions within the commercial trip limit section has been changed to refer to the quota instead of the fishing year quota.

This final rule also contains two corrections for coordinates contained in the final rule to implement Comprehensive Ecosystem-Based Amendment 1 for the South Atlantic region that published in theFederal Registeron June 22, 2010 (75 FR 35330). These additional measures are unrelated to the actions contained in Regulatory Amendment 9.

The NMFS Assistant Administrator has determined that the approved actions in the regulatory amendment are necessary for the conservation and management of snapper-grouper species in the South Atlantic and that they are consistent with the Magnuson-Stevens Act, and other applicable laws.

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

A final regulatory flexibility analysis (FRFA) was prepared. 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. The FRFA follows.

No public comments specific to the IRFA were received and therefore no public comments are addressed in this FRFA. However, several comments with socioeconomic implications were received and are addressed in the Comment and Responses section.

In response to public comments and new information that became available after the publication of the proposed rule, NMFS has chosen not to approve the proposed action to split the commercial quota for black sea bass into two 6-month seasons. The reason for this disapproval is discussed in the Supplementary Information and the Comments and Responses sections of the preamble, and is not repeated here.

With the exception of the disapproved action, NMFS agrees with the Council's choice of preferred alternatives as that which would be expected to best achieve the Council's objectives while minimizing, to the extent practicable, the adverse effects on fishers, support industries, and associated communities. The previous section of preamble to the final rule provides a summary of the actions contained within this final rule and is not repeated here.

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

This final rule is expected to directly affect commercial harvesting and for-hire fishing operations. The Small Business Administration has established size criteria for all major industry sectors in the U.S. including fish harvesters and for-hire operations. 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 annual receipts threshold is $7.0 million (NAICS code 713990, recreational industries).

From 2007-2009, an average of 895 vessels-per-year had valid permits to operate in the commercial sector of the snapper-grouper fishery. Of these 895 vessels, 751 held transferable permits and 144 held non-transferable permits. On average, 797 vessels landed snapper-grouper species, generating dockside revenues of approximately $14.514 million (2008 dollars). Each vessel, therefore, generated an average of approximately $18,000 annually in gross revenues from snapper-grouper commercial landings. Gross dockside revenues by state are distributed as follows: $4.054 million in North Carolina, $2.563 million in South Carolina, $1.738 million in Georgia/Northeast Florida, $3.461 million in central and southeast Florida, and $2.695 million in the Florida Keys. Vessels that operate in the snapper-grouper commercial sector may also operate in other fisheries; the revenues from the other fisheries cannot be determined with available data and thus are not reflected in these totals.

Based on revenue information, all commercial vessels affected by this final rule can be considered small entities.

From 2007-2009, an average of 1,797 vessels had valid permits to operate in the for-hire component of the snapper-grouper fishery. Of the 1,797 vessels, 82 are estimated to have operated as headboats. The for-hire fleet is comprised of charterboats, which charge a fee on a vessel basis, and headboats, which charge a fee on an individual angler (head) basis. The charterboat annual average gross revenue is estimated to range from approximately $62,000-$84,000 for Florida vessels, $73,000-$89,000 for North Carolina vessels, $68,000-$83,000 for Georgia vessels, and $32,000-$39,000 for South Carolina vessels. For headboats, the corresponding estimates are $170,000-$362,000 for Florida vessels, and $149,000-$317,000 for vessels in the other states.

Based on these average revenue figures, all for-hire operations that would be affected by the final rule can be considered small entities.

Some fleet activity,i.e.,multiple vessels owned by a single entity, may exist in both the commercial and for-hire snapper-grouper sectors but itsextent is unknown, and therefore, all vessels are treated as independent entities in this analysis.

This final rule is expected to directly affect all Federally permitted commercial and for-hire vessels that operate in the South Atlantic snapper-grouper fishery. All directly affected entities have been determined, for the purpose of this analysis, to be small entities. Therefore, it is determined that this final rule would affect a substantial number of small entities.

Because all entities that are expected to be affected by the final rule are considered small entities, the issue of disproportional effects on small versus large entities does not arise in the present case.

Relative to the no action alternative, the final rule to reduce the recreational bag limit to five black sea bass per person-per-day is expected to increase short-term for-hire vessel profits (NOR) annually from approximately $78,000 to $164,000 assuming no trip cancellations during the open season, or from approximately $45,000 to $131,000 assuming some trip cancellations during the open season. This expected increase in short-term profits would come from a shorter closure duration relative to the no action alternative.

The management measure to establish a 1,500-lb (680-kg) commercial trip limit for vermilion snapper is expected to reduce the gross revenues of commercial vessels by approximately $306,000 annually. Profits would be reduced accordingly. Among the trip limit alternatives, however, the preferred alternative is expected to result in the lowest revenue losses. Commercial fishing vessels in North Carolina and Georgia/Northeast Florida would experience the largest revenue losses compared to those of other states/areas in the South Atlantic.

The management measure to establish a 1,000-lb (454-kg) commercial trip limit for gag is expected to reduce the short-term gross revenues of the commercial fishing fleet by approximately $102,000 annually. Short-term fleet profits are also expected to decrease. However, relative to the no action alternative, the preferred alternative of establishing a 1,000 lb (454 kg) trip limit is expected to lengthen the commercial season so that revenues and profits could increase over time. The largest short-term revenue (and profit) reductions would fall on vessels in South Carolina and Georgia/Northeast Florida.

The management measure in this final rule to increase the commercial trip limit for greater amberjack to 1,200 lb (544 kg) is expected to increase short-term gross revenues of commercial vessels. Short-term profits are also expected to increase. Over time, the net result on vessel revenues and profits would depend on the resulting fishing season length under the higher trip limit.

Five alternatives, including the preferred alternative implemented through this final rule, were considered for modifying the black sea bass bag limit. The first alternative would have reduced the bag limit to 7-fish per person per day; the second, 5-fish per person per day; the third, 3-fish per person per day; the fourth, 2-fish per person per day; and the fifth, 1-fish per person per day. Relative to the 15-fish bag limit and depending on the baseline year used, the bag limit alternatives would have varying effects on the annual NOR of the for-hire fleet. The first alternative would result in increased NOR from approximately $19,000 to $129,000 annually; the second alternative would increase NOR from negative $62,000 to positive $48,000 annually; the third alternative would result in a decreased NOR of $97,000 annually; and, the fourth alternative would result in a decreased NOR of $226,000 annually. The effects of these five alternatives are less than the positive effects of the selected preferred alternative. The Council's decision to recommend the implementation of a 5-fish bag limit per person per day was based on public support and the fact that a large percentage of recreational trips result in approximately 5 black sea bass landed per person. Moreover, the Council intends to re-visit this bag limit when the final results of SEDAR 25 are available.

Seven alternatives, including the preferred alternative implemented through this final rule, were considered for the commercial vermilion snapper trip limit. The first alternative is the no action alternative. This alternative would not address concerns regarding derby fishing practices in the commercial sector of the vermilion snapper segment of the snapper-grouper fishery. The second alternative would establish a 1,000-lb (454-kg) commercial trip limit, with one sub-alternative that would reduce the trip limit to 500 lb (227 kg) when 75 percent of the commercial quota is met. This alternative would lengthen the commercial fishing season relative to the no action alternative, but it would bring about a reduction in short-term revenues of approximately $611,000 annually without the sub-alternative, or $752,000 annually with the sub-alternative. The reductions in the two alternatives are larger than those that would occur under the selected preferred alternative. The third alternative to the final rule would establish a 1,500-lb (680-kg) trip limit, and reduce the trip limit to 500 lb (227 kg) when 75 percent of the commercial quota is met. This alternative would bring about a reduction in short-term revenues of approximately $505,000. This revenue reduction is larger than what would occur under the selected preferred alternative. The fourth alternative would establish a 750-lb (340-kg) commercial trip limit, with one sub-alternative that would reduce the commercial trip limit to 400 lb (181 kg) when 75 percent of the commercial quota is met. Compared to the preferred alternative, this alternative would result in short-term revenue reductions of approximately $880,000 annually without the sub-alternative, or $1,013,000 annually with the sub-alternative. The fifth alternative would establish a 500-lb (227-kg) commercial trip limit. This alternative would result in short-term revenue reductions of approximately $1,302,000 annually, which is much larger than those resulting under the preferred alternative. The sixth alternative would establish a 400-lb (181-kg) commercial trip limit. Compared to the selected preferred alternative, this alternative would result in larger revenue reductions of approximately $1,528,000 annually. NMFS rejected these six alternatives because they result in larger reductions in revenue when compared with the preferred alternative.

Five alternatives, including the preferred alternative implemented through this final rule, were considered for the gag commercial trip limit. The first alternative is the no action alternative. This alternative would not address the derby concern in the gag commercial sector of the snapper-grouper fishery. The second alternative would establish a 1,000-lb (454-kg) commercial trip limit that would be reduced to a 100-lb (45-kg) trip limit when 75 percent of the commercial quota is projected to be met. This alternative would result in short-term revenue reductions of approximately $392,000 annually when based on 2007 landings, or $204,000 annually when based on 2009 landings. The third alternative would establish a 750-lb (340-kg) commercial trip limit, with one sub-alternative that would reduce the commercial trip limit to 100 lb (45 kg) when 75 percent of the commercial quota is projected to be met. This alternative would result in short-term revenue reductions of approximately $194,000 annually without the sub-alternative, or from $467,000 annually (based on 2007 landings) to $228,000 (based on 2009 landings) with the sub-alternative. The fourth alternative would establish a 1,000-lb (454-kg) commercial trip limit, with the fishing year starting annually on May 1, and reduce the trip limit to 100 lb (45 kg) when 90 percent of the gag commercial quota is projected to be met. This alternative would result in revenue reductions greater than $102,000 annually but less than $392,000 annually. All of these alternatives are expected to result in larger short-term revenue reductions than the selected preferred alternative, and therefore were rejected.

Two alternatives, including the preferred alternative implemented through this final rule, were considered for the greater amberjack commercial trip limit. The first alternative is the no action alternative, which specifies a 1,000-lb (454-kg) commercial trip limit. Under this trip limit alternative, the commercial quota for greater amberjack has not been fully taken, and given historical landings and effort, the quota is expected to not be fully taken in the near future. A trip limit increase was considered to allow the fishing fleet to harvest the entire commercial quota for greater amberjack in order to mitigate the adverse effects of increased restrictions applied in other fisheries prosecuted by the same fishermen. The second alternative consists of three sub-alternatives, one of which is the final action. The first sub-alternative would increase the greater amberjack commercial trip limit to 2,000 lb (907 kg) while the second sub-alternative would increase the greater amberjack commercial trip limit to 1,500 lb (680 kg). Each of these two trip limit alternatives would result in larger short-term revenue increases than the final action. However, they pose a higher risk that the commercial quota for greater amberjack would be met prior to the end of the fishing season, resulting in potentially larger revenue and profit reductions to the fishing fleet. In addition, these higher trip limits could result in sudden large increases in landings that could only lead to lower ex-vessel prices and lower overall revenues. Therefore, NMFS rejected these two alternatives.

The proposed action to split the commercial quota for black sea bass into two seasons has been disapproved by NMFS in response to public comments and new information that became available after publication of the proposed rule. In their deliberations regarding harvest management of black sea bass, the Council considered thirteen alternatives, two of which were proposed to be implemented through the proposed rule. One of those two is the preferred alternative on bag limit reduction implemented through this final rule and discussed above. The second is the disapproved proposed action on splitting the commercial quota for black sea bass into two seasons. A qualitative discussion of the effects of splitting the black sea bass commercial quota between the June-November and December-May sub-seasons indicates that profits to the commercial fishing fleet would not deteriorate, as would occur under the no action alternative of maintaining a single quota for the entire fishing year.

The first alternative to the proposed split season is the no action alternative. This alternative would not address the derby concern in the commercial sector of the black sea bass segment of the snapper-grouper fishery.

The second alternative to the proposed split season would establish a commercial trip limit, with 8 sub-alternatives. The first sub-alternative would be a 500-lb (227-kg) trip limit; the second, a 750-lb (340-kg) trip limit; the third, a 1,000-lb (454-kg) trip limit; the fourth, a 1,250-lb (567-kg) trip limit; the fifth, a 1,000-lb (454-kg) trip limit but reduced to 500 lb (227 kg) when 75 percent of the quota is met; the sixth, a 2,000-lb (907-kg) trip limit; the seventh, a 2,500-lb (1,134-kg) trip limit; and, the eighth, a 340-lb (154-kg) trip limit. Based on the input received from the public during public hearings, from the Council's Advisory Panel, and from the Council's Scientific and Statistical Committee, and the fact that the stock is undergoing an assessment through SEDAR 25, the results of which will be available by the end of 2011, the Council chose not to implement trip limits for the black sea bass commercial sector. The Council concluded the split season approach would best meet the purpose and need to prevent the progressive shortening of the fishing season while ensuring equity in harvest opportunities, promoting safety at sea, and minimizing adverse socioeconomic impacts.

The third alternative to the proposed split season would retain the fishing year (June 1 through May 31) and specify separate commercial quotas for the June-December and the January-May sub-seasons based on 2006-2009 landings. This is similar to the proposed split season, except that the first sub-season ends in December, with January being the starting month of the second sub-season. The effects of this alternative on small entities are comparatively the same as those of the proposed split season, except that the proposed split season would allow the second sub-season to start, with available quota, at the time when the traditional winter pot component of the commercial sector takes place in December.

The fourth alternative would change the black sea bass fishing year to November-October and specify separate commercial quotas for November-April and May-October. The Council recognized the distributional effects of changing the fishing year, and decided to address this issue, together with a regional approach to management of black sea bass, after the SEDAR 25 assessment is completed.

The fifth alternative to the proposed split season would change the black sea bass fishing year to January-December and specify separate commercial quotas for January-June and July-December. This alternative raises the same issue as the fourth alternative to the proposed split season for which the Council decided to consider the fishing year issue, together with regional approach to management, in the future.

The sixth alternative would add to alternatives two through five of the proposed split season, a measure that would allow a carry-over of unused portion of the quota from the second part of the fishing year to the next fishing year. This alternative has the potential to result in exceeding the commercial quota for the next year that would trigger application of AMs, resulting in revenue and profit losses to the commercial fishing fleet. In addition, this alternative could result in exceeding other fishery benchmarks and the stock could be considered to experience overfishing. More restrictive regulations could result that would only decrease revenues and profits to the fishing fleet.

The seventh alternative would add to alternatives two through five a measure that would close the black sea bass commercial pot gear component, but not other allowable gear types, when all but 100,000 lb (45,359 kg) of the commercial quota for the sub-season is harvested and would allow all allowable gear types to operate in the next sub-season. The Council decided not to impose specific gear restrictions at this time, partly due to the difficulty of monitoring catches by gear type on a timely basis.

The eighth alternative is similar to the seventh alternative to the proposed split season, except that 50,000 lb (22,680 kg) would be the amount of quota remaining to trigger the closure of the black sea bass commercial pot component. The Council decided not toimpose specific gear restriction at this time, partly due to the problem of monitoring catches by gear type on a timely basis.

The ninth alternative would close the black sea bass commercial pot component when 90 percent of the commercial quota is met. The Council decided not to impose specific gear restrictions at this time, partly due to the difficulty of monitoring catches by gear type on a timely basis.

The tenth alternative to the proposed split season would establish a spawning season closure, with four sub-alternatives. The first sub-alternative would implement a March-April closure applicable to both the commercial and recreational sectors; the second, an April-May closure; the third, a March-May closure; and, the fourth, a May closure. A spawning season closure for black sea bass that would affect both the commercial and recreational sectors was considered as a possible tool to extend the fishing season and benefit the stock. However, there was strong opposition from the public toward such a measure given other additional proposed measures within Regulatory Amendment 9. While many fishermen were in favor of curbing harvest during the spawning season, they stated that curbing harvest would be best accomplished with a modification to the fishing year. Moreover, the black sea bass stock is under a rebuilding schedule, there are indications that the stock is rebuilding, and a stock assessment is currently underway.

Pursuant to 5 U.S.C. 553(d)(3), the AA finds good cause to waive the 30-day delay in effective date for the black sea bass recreational bag limit reduction because it would be contrary to the public interest. The black sea bass fishing year opens June 1, and NMFS wants to give fisherman the longest fishing season possible. Under the reduced bag limit of 5-fish per person, the season is expected to be approximately 21/2months longer than under a 15-fish per person bag limit. If this rule were delayed to allow for a 30-day delay in effectiveness, the season would be reduced from the projected season length, resulting in a reduced fishing opportunity and lower angler benefits and for-hire profits. Therefore, waiving the 30-day delay in effectiveness will give fisherman the longest season possible, and reduce any economic impact of this rule.

However, NMFS is delaying implementation of the reduced bag limit for 7 days, instead of implementing the bag limit on the day of publication to allow NMFS the opportunity to notify the industry through a Fishery Bulletin, a NOAA Weather Radio announcement, and other means of constituent outreach.

Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as small entity compliance guides. As part of the rulemaking process, NMFS prepared a fishery bulletin, which also serves as a small entity compliance guide. The fishery bulletin will be sent to all vessel permit holders for the South Atlantic snapper-grouper fishery as well as other interested parties.

For the reasons set out in the preamble, 50 CFR parts 600 and 622 are amended as follows:

Pursuant to the Magnuson-Stevens Fishery Conservation and Management Act and Amendment 16 to the FMP (75 FR 18262; April 9, 2010), Framework Adjustment (FW) 44 to the FMP, which was published in theFederal Registeron April 9, 2010 (75 FR 18356), specified catch levels for 20 NE groundfish stocks for FY 2010-2012. In addition, FW 45 (April 25, 2011; 76 FR 23042) modified the 2011 ACLs for five stocks (Georges Bank (GB) haddock, GB cod, GB yellowtail flounder, white hake, and pollock). FW 45 also specified catch levels for various components of the groundfish fishery, including sub-ACLs for the common pool and sectors. These sub-ACLs were based on the catch history of the vessels enrolled in sectors, as of December 1, 2010.

On April 25, 2011, NMFS published an interim final rule approving FY 2011 sector operations plans and allocating ACE to sectors for FY 2011 (76 FR 23076; “sector rule”). The sector rule included FY 2011 sector sub-ACL information also reflected in FW 45, where the sum of the ACEs for each sector equals the sector sub-ACL. Unlike FW 45, though, the sector ACEs in the sector rule were derived from February 1, 2011, sector rosters. To provide increased flexibility to the fishing industry, vessels initially enrolled in sectors for FY 2011 were allowed to drop out and join the common pool fishery through April 30, 2011. Additional flexibility was also provided to allow NE multispecies permitted vessels purchased after the sector enrollment deadline of December 1, 2010, to enroll in a sector up through April 30, 2011. Because the sector ACEs, as well as the sector sub-ACLs (sum of ACEs for all sectors) and the common pool sub-ACL (groundfish sub-ACL minus sector sub-ACL), are based upon the specific membership of sectors, any changes in membership since FW 45 and the sector rule were implemented requires that NMFS revise the sector ACEs and sub-ACLs for the common pool and sectors. This rule adjusts the FY 2011 sector ACEs and sub-ACLs for the common pool and sectors based on the members of each sector roster as of May 1, 2011 (“final sector rosters”).

The preamble of the final rule implementing FW 45 informed the public that “NMFS intends to publish a rule in early May 2011 to modify these [common pool and sector] sub-ACLs and notify the public if these numbers change.” Through this temporary final rule, NMFS is revising FY 2011 ACEs for all approved sectors and for FY 2011 sub-ACLs for common pool and sector vessels, based on the final sector rosters. The final number of vessels electing to fish in sectors for FY 2011 is 829 (reduced by 7 vessels since the February 2011, rosters). All ACE and sub-ACL values for sectors assume that each NE multispecies vessel enrolled in a sector has a valid permit for FY 2011.

Additionally, this rule implements a revised definition of “unmarketable fish” for the purposes of a sector exemption first introduced in the interim final rule approving FY 2011 sector operations plans. NMFS requested comments on this definition (76 FR 23076), as well as comments on the final sector rosters. However, NMFS received no comments to the notice of final sector rosters, or to the definition of “unmarketable” fish, as included in the interim final rule. Therefore, the definition will remain as stated in the interim final rule.

Tables 1, 2, and 3 (below) explain the allocation of the FY 2011 ACE for each sector and stock, as a percentage and absolute amount (in metric tons and pounds), based on the final sector rosters. The regulations provide sectors two weeks following the completion of catch data reconciliation by NMFS to trade FY 2010 ACE in order to account for any overharvesting during that period. After the completion of two week trading window, accountability measures, specifically the reduction in FY 2011 ACE for sectors that exceeded their FY 2010 ACE, will be implemented. In addition, sectors that did not harvest their entire ACE of any particular stock are allowed to carry over up to 10 percent of their initial allocation to the next year. To discourage overfishing of the NE groundfish species, current regulations also require NMFS to reserve 20 percent of each sector's FY 2011 ACE until FY 2010 landings data are reconciled. Once the reconciliation of FY 2010 sector catch is complete, the remaining 20 percent of ACE withheld from sectors will be allocated, and any sector that still exceeded its FY 2010 after reconciliation will have its share of the withheld ACE reduced accordingly. NMFS will publish a follow-up rule detailing any FY 2011 sector ACE reductions resulting from FY 2010 ACEoverages, or FY 2011 ACE increases from FY 2010 ACE carryover.

Table 4 compares the preliminary FY 2011 sub-ACLs for common pool and sector vessels published in the final rule implementing FW 45, with the current revised sub-ACLs based on the final sector rosters as of May 1, 2011.

Changes in the sub-ACLs for stocks in sectors range from a decrease of 1.22 percent of SNE/MA yellowtail flounder, to an increase of 0.73 percent of GOM winter flounder. Adjustments of the sub-ACLs for stocks in the common poolrange between a 37.93 percent decrease in GOM haddock, to a 46.51 percent increase in GB haddock. The changes in the common-pool ACLs are greater because the common-pool has a significantly lower sub-ACL for all stocks, so even small changes appear large when viewed as a percent increase or decrease. There is also a large increase in both the common pool and sector sub-ACLs for GB yellowtail flounder because of a change in the U.S./Canada resource sharing agreement from the International Fisheries Agreement Clarification Act (2011) that dramatically increased the U.S. TAC of GB yellowtail flounder.

FW 45 specifies incidental catch TACs applicable to the NE multispecies Special Management Programs for FY 2011-2012, based on the ACLs, the FMP, and advice from the Council. Incidental catch TACs are specified for certain stocks of concern for common pool vessels fishing in the Special Management Programs, in order to limit the amount of catch of stocks of concern that can be caught under such programs. Since these incidental catch TACs are also based on the sub-ACLs for the common pool, they have changed based on the revised sub-ACLs. The incidental catch TACs for most stocks were based upon the Council's FW 44 Environmental Assessment (EA), while the incidental catch TACs for GB haddock, GB cod, GB yellowtail flounder, white hake, and pollock were based upon the Council's FW 45 EA.

Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), the NMFS Assistant Administrator has determined that this final rule is consistent with the NE Multispecies FMP, other provisions of the Magnuson-Stevens Act, and other applicable law.

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

Pursuant to 5 U.S.C. 553(b)(B) and (d)(3), there is good cause to waive prior notice and opportunity for public comment, as well as the delayed effectiveness for this action, because notice, comment, and a delayed effectiveness would be impractical and contrary to the public interest. Vessel owners that enroll in sectors could drop out of sectors through April 30 (the day before the beginning of the fishing year and sector enrollment period), and because NMFS allowed NE multispecies permitted vessels purchased after the sector enrollment deadline of December 1, 2010, to enroll in a sector until April 30, 2011, it is necessary to adjust sector ACEs and ACLs for sectors and the common pool to account for membership changes. This action makes those adjustments to the sector and common pool ACEs and ACLs. NMFS discussed and requested public comments on the need to and procedure for adjusting the sector and common pool ACEs and ACLs in FW 45 and the sector rule. The public offered no comments on these matters, and this rule simply implements the procedures previously set forth to adjust the ACEs and ACLs to account for changes in sector membership. Therefore, it is unnecessary at this point to provide a third opportunity to the public to comment on this adjustment. This issue was discussed in both the FY 2011 sector and FW 45 proposed and final rules.

Moreover, allowing public comment on these rules is contrary to the public interest. If the sector ACEs and sub-ACLs are not adjusted immediately, they will operate under incorrect specifications until the adjustments are implemented. The implications of delaying the date on which the specifications are corrected dependsupon the size of the ACE and sub-ACL, the size of the change in specification relative to the ACE and sub-ACL, and the rate of catch of the particular stock. If, for example, a sector were currently catching a particular stock for which they have a small ACE at a high rate, and that sector's ACE for that stock is adjusted downward in this rule, then a significant fraction of that sector's ultimate FY 2011 ACE could be harvested and the sector's fishing season shortened upon implementation of this rule. In the worst case scenario, excessive catch by sectors could lead to a sector catching more than its ACE for the applicable FY, and having to forego any additional fishing this year. Thus, delaying this rule's effectiveness and allowing for another round of public comment could cause negative economic impacts to the common pool and to the sectors.

Additionally, any delays for an additional public comment period or to the effectiveness of the rule would create uncertainty for the affected entities that would have negative economic implications, which are contrary to the public interest. Until the stock allocations are finally adjusted, the affected fishing entities will not know how many fish of a particular stock they can catch without going over their ultimate limits. Fishermen may make both short- and long-term business decisions based on the ACLs in a given sector or the common pool; thus, it is important to implement adjusted ACEs and sub-ACLs as soon as possible. Any delays in adjusting the ACLs and ACEs may cause the affected fishing entities to curtail, or speed up, their fishing activities during the interim period before the rule's effectiveness. Both of these reactions could negatively affect the fishery and the businesses and communities that depend on them; the former by delaying profits and potentially reducing harvests, the latter by increasing the potential for exceeding the ultimate fishing limits. Thus, a delay in this rule's effectiveness creates uncertainty in the fishing market that is contrary to the public's interest.

For these reasons, NMFS is waiving the public comment period and delay in effectiveness for this rule, pursuant to 5 U.S.C. 553(c) and (d).

On May 11, 2011, NMFS published a final rule to establish the 2011-2012 harvest specifications for most of the species in the groundfish fishery and management measures for that fishery off the coasts of Washington, Oregon, and California (76 FR 27508). That rule, in part, established the 2011 sablefish annual catch limit (ACL) for the area north of 36° N. lat. From the sablefish ACL, NMFS calculated the allocations, fishery harvest guidelines, and the sablefish cumulative limits for the limited entry fixed gear primary sablefish fishery. These values are specified in Federal regulations at 50 CFR 660, Subparts C, D and E. Sablefish cumulative limits for the limited entry fixed gear fishery are specified at 50 CFR 660.231(b)(3)(i), subpart E.

On May 18, 2011, NMFS was notified by the Executive Director of the Pacific Fishery Management Council (Council) that there was a mistake in the calculation of the 2011 and 2012 sablefish cumulative limits during the development of the 2011-2012 biennial specifications and management measures. The sablefish primary fishery cumulative limits contained in the November 3, 2010 proposed rule (75 FR 67810), and ultimately implemented through the May 11, 2011 final rule (76 FR 27508) are incorrect. Public comments were accepted during the development of the 2011-2012 groundfish harvest specifications and management measures, and no public comments were received regarding the cumulative limits in the primary sablefish fishery. The error subsequently identified in the Executive Director's letter overcompensated for discard mortality, and so the pool of fish that is used to calculate the sablefish primary fishery cumulative limits was too low; therefore, the cumulative limits were also too low. The Executive Director requested that NMFS correct the sablefish cumulative limits for the limited entry fixed gear primary fishery as quickly as possible because the 2011 primary fishery season opened on April 1 and some vessels are actively fishing on their cumulative limits.

Based on the information in the Executive Director's letter, and NMFS evaluation of the issues, NMFS is implementing a revision to the 2011 cumulative limits for sablefish in the limited entry fixed gear primary sablefish fishery in this interim final rule. These cumulative limits are specified at 50 CFR 660.231(b)(3)(i), subpart E, and are increased for 2011 from “Tier 1 at 41,379 lb (18,769 kg), Tier 2 at 18,809 lb (8,532 kg), and Tier 3 at 10,748 lb (4,875 kg)” to “Tier 1 at 47,697 lb (21,635 kg), Tier 2 at 21,680 lb (9,834 kg), and Tier 3 at 12,389 lb (5,620 kg).”

Increasing the 2011 cumulative limits for sablefish in the limited entry fixed gear primary sablefish fishery is anticipated to achieve but not exceed the 2011 fishery harvest guideline for the primary fishery of 1,598 mt. It is also not anticipated to, when combined with the projected impacts from other fisheries that catch sablefish, exceed the 2011 sablefish ACL of 5,515 mt. Increasing the 2011 cumulative limits for sablefish in the limited entry fixed gear primary sablefish fishery is not anticipated to increase the projected impacts to co-occurring overfished species above the levels analyzed in the EIS because the projected impacts to co-occurring overfished species were estimated assuming that the sablefish fishery harvest guideline would be achieved.

Delaying the increase to the sablefish cumulative limits could cause disruption to the primary fishery. Some vessels may fish their entire sablefish cumulative limit, thereby concluding their primary fishing season, and then move on to other fisheries (both groundfish and non-groundfish fisheries). Under normal circumstances once a vessel fishes their entire available sablefish cumulative limit the primary season is concluded for that vessel until the next year's primary season. When additional pounds of sablefish are made available with the increase to primary sablefish fishery cumulative limits, many of those vessels will desire to fish those additional pounds. This means that vessels will be moving back and forth in between the limited entry fixed gear primary sablefish fishery and other fisheries. Vessels that desire to resume fishing in the primary sablefish fishery upon the release of additional pounds may encounter difficulties, as regulations are not explicitly designed for the primary sablefish fishery to start, stop and start again during the same calendar year. Delaying the increase means that more vessels will have fished their entire initial sablefish cumulative limits, and more vessels will encounter disruption and confusion during their fishing activities in the primary sablefish fishery.

Additional movement of vessels between the primary sablefish fishery and other fisheries could also disrupt the Council's inseason tracking of sablefish catch in the limited entry fixed gear fishery. Disruptions to inseason tracking could cause increased uncertainty in total catch projections of sablefish in the groundfish fishery.

The Administrator, Northwest Region, NMFS, determined that the 2011 sablefish cumulative limits for the limited entry fixed gear primary fishery, which this interim final rule implements, are necessary for the conservation and management of the Pacific Coast groundfish fishery and that it is consistent with the Magnuson-Stevens Fishery Conservation and Management Act and other applicable laws.

Pursuant to the Administrative Procedure Act, 5 U.S.C. 553(b)(B), NMFS finds good cause to waive prior public notice and comment on the increase to the 2011 sablefish cumulative limits in the limited entry fixed gear primary fishery as delaying this rule would be contrary to the public interest. Correcting the mistake in the calculation and raising the cumulative limits in the limited entry fixed gear primary sablefish fishery allows additional harvest opportunities so that the fishery may achieve its fishery harvest guideline. Affording the time necessary to complete notice and comment rulemaking would mean that a higher number of vessels would have their normal fishing practices in the primary sablefish fishery disrupted. This would occur because vessels often achieve their initial sablefish cumulative limits, thereby “closing” this portion of their sablefish season, and move on to another fishery. Vessels choosing to participate in other fisheries after achieving the cumulative limits currently specified in regulation could face difficulty returning to the primary sablefish fishery due to regulatory restrictions on changes in vessel registration. Also, failure to increase sablefish cumulative limits in a timely manner could prevent the limited entry fixed gear primary fishery from attaining their 2011 fishery harvest guideline, and thus would result in unnecessary short-term adverse economic effects for the sablefish primary fishery vessels and the associated fishing communities.

For the same reasons, NMFS finds good cause to waive the 30-day delay in effectiveness pursuant to 5 U.S.C. 553(d)(3). As mentioned above, delaying the effectiveness of this rule would mean that a higher number of vessels would have their normal fishing practices in the primary sablefish fishery disrupted. Some vessels fish their entire sablefish cumulative limit, thereby concluding their primary fishing season, and then move on to other fisheries. Vessels choosing to participate in other fisheries after achieving the cumulative limits currently specified in regulation could face difficulty returning to the primary sablefish fishery due to regulatory restrictions on changes in vessel registration. Also, failure to increase sablefish cumulative limits in a timely manner could prevent the limited entry fixed gear primary fishery from attaining their 2011 fishery harvest guideline, and thus would result in unnecessary short-term adverse economic effects for the sablefish primary fishery vessels and the associated fishing communities. For these reasons, this interim final rule is made effective upon publication.

The environmental impacts associated with the sablefish harvest levels that are achieved by this action are within the impacts in the EIS for the 2011-2012 specification and management measures. In approving the 2011-2012 groundfish harvest specifications and management measures, NMFS issued a Record of Decision (ROD). The ROD was signed on April 27, 2011. Copies of the EIS and the ROD are available from NMFS (seeADDRESSES).

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

This rule is exempt from the Regulatory Flexibility Act because it was not subject to prior notice and opportunity for public comment. However, a final regulatory flexibility analysis (FRFA) was prepared for the 2011-2012 harvest specifications and management measures final rule (May 11, 2011, 76 FR 27508). The information provided in that FRFA is unchanged by this interim final rule, as this interim final rule only amends cumulative limits for sablefish in the primary fishery and does not make changes to the sablefish ACL, allocations, and fishery harvest guidelines that informed all of the relevant analyses presented in that FRFA.

There are no additional projected reporting, record-keeping, and other compliance requirements of this rule not already envisioned within the scope of current requirements.

No Federal rules have been identified that duplicate, overlap, or conflict with this action.

NMFS issued Biological Opinions under the Endangered Species Act (ESA) on August 10, 1990, November 26, 1991, August 28, 1992, September 27, 1993, May 14, 1996, and December 15, 1999 pertaining to the effects of the Pacific Coast groundfish FMP fisheries on Chinook salmon (Puget Sound, Snake River spring/summer, Snake River fall, upper Columbia River spring, lower Columbia River, upper Willamette River, Sacramento River winter, Central Valley spring, California coastal), coho salmon (Central California coastal, southern Oregon/northern California coastal), chum salmon (Hood Canal summer, Columbia River), sockeye salmon (Snake River, Ozette Lake), and steelhead (upper, middle and lower Columbia River, Snake River Basin, upper Willamette River, central California coast, California Central Valley, south/central California, northern California, southern California). These biological opinions concluded that implementation of the FMP for the Pacific Coast groundfish fishery was not expected to jeopardize the continued existence of any endangered or threatened species under the jurisdiction of NMFS, or result in the destruction or adverse modification of critical habitat.

NMFS reinitiated a formal section 7 consultation under the ESA in 2005 for both the Pacific whiting midwater trawl fishery and the groundfish bottom trawl fishery. The December 19, 1999, Biological Opinion had defined an 11,000 Chinook incidental take threshold for the Pacific whiting fishery. During the 2005 Pacific whiting season, the 11,000 fish Chinook incidental take threshold was exceeded, triggering reinitiation. Also in 2005, new data from the West Coast Groundfish Observer Program became available, allowing NMFS to complete an analysis of salmon take in the bottom trawl fishery.

NMFS prepared a Supplemental Biological Opinion dated March 11, 2006, which addressed salmon take in both the Pacific whiting midwater trawl and groundfish bottom trawl fisheries. In its 2006 Supplemental Biological Opinion, NMFS concluded that catch rates of salmon in the 2005 whiting fishery were consistent with expectations considered during prior consultations. Chinook bycatch has averaged about 7,300 fish over the last 15 years and has only occasionally exceeded the reinitiation trigger of 11,000 fish.

Since 1999, annual Chinook bycatch has averaged about 8,450 fish. The Chinook ESUs most likely affected by the whiting fishery have generally improved in status since the 1999 ESA section 7 consultation. Although these species remain at risk, as indicated by their ESA listing, NMFS concluded that the higher observed bycatch in 2005 does not require a reconsideration of its prior “no jeopardy” conclusion with respect to the fishery. For the groundfish bottom trawl fishery, NMFS concluded that incidental take in the groundfish fisheries is within the overall limits articulated in the Incidental Take Statement of the 1999 Biological Opinion. The groundfish bottom trawl limit from that opinion was 9,000 fish annually. NMFS will continue to monitor and collect data to analyze take levels. NMFS also reaffirmed its prior determination that implementation of the Groundfish FMP is not likely to jeopardize the continued existence of any of the affected ESUs.

Lower Columbia River coho (70 FR 37160, June 28, 2005) were recently listed and Oregon Coastal coho (73 FR 7816, February 11, 2008) were recently relisted as threatened under the ESA. The 1999 biological opinion concluded that the bycatch of salmonids in the Pacific whiting fishery were almost entirely Chinook salmon, with little or no bycatch of coho, chum, sockeye, and steelhead.

The Southern Distinct Population Segment (DPS) of green sturgeon was listed as threatened under the ESA (71 FR 17757, April 7, 2006). The southern DPS of Pacific eulachon was listed as threatened on March 18, 2010, under the ESA (75 FR 13012). NMFS has reinitiated consultation on the fishery, including impacts on green sturgeon, eulachon, marine mammals, and turtles. After reviewing the available information, NMFS has concluded that, consistent with sections 7(a)(2) and 7(d) of the ESA, the action would not jeopardize any listed species, would not adversely modify any designated critical habitat, and would not result in any irreversible or irretrievable commitment of resources that would have the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures.

Pursuant to Executive Order 13175, the 2011-2012 harvest specifications and management measures were developed after meaningful consultation and collaboration with Tribal officials from the area covered by the FMP. This interim final rule takes no action that directly affects the Tribal management measures, which were passed by the Council, and which were developed and proposed by the Tribes.

For the reasons set out in the preamble, 50 CFR part 660 is amended as follows: