We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an airworthiness directive (AD) that would apply to the specified products. That NPRM published in theFederal Registeron October 20, 2010, (75 FR 64681). That NPRM proposed to require performing a fluorescent penetrant inspection at every shop visit when the LPT module assembly is separated from the engine.

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

Two commenters, the National Transportation Safety Board and The Boeing Company support the NPRM as written.

Two commenters, GE and MTU Maintenance Canada, asked us to define “LPT module.” The commenters feel the term LPT module could be confused with the LPT rotor assembly.

We agree. We changed paragraph (e) of the proposed AD to clarify that the intent of this AD is to inspect the LPT rotor stage 3 disk when the LPT module assembly separates from the engine for maintenance, and added new paragraphs (i) and (i)(1) that define the LPT module assembly.

One commenter, MTU Maintenance Canada, asked us to change the compliance time for the inspection. MTU stated the proposed AD requires stage 3 disk FPI at piece-part level regardless of the part utilization (cycles-since-last inspection) or operational history since the last inspection. MTU asked us to change the inspection to the next time the LPT module assembly is disassembled to piece-part level for certain engine conditions only.

We don't agree with the request for conditional inspections only. The intent of this AD is to require an FPI of the LPT rotor stage 3 disk forward spacer arm at each shop visit where the LPT module assembly is separated in a cyclic manner, regardless of the reason for the separation. The requirements for conditional piece-part FPI are already mandated by AD 2011-02-07. We didn't change the AD.

One commenter, Evergreen International Airlines, asked us to additionally require the inspection if the engine encountered excessive core vibration, or HPT blade separation or excessive material loss, or unserviceable LPT blade interlock wear, in addition to the repetitive inspections proposed in the NPRM.

We don't agree. The requirements for conditional piece-part FPI are already mandated by AD 2011-02-07. We didn't change the AD.

One commenter, Evergreen International Airlines, asked us to require inspections if the LPT rotor stage 3 disk hasn't been FPI inspected within the last 2,000 cycles or at all. Evergreen stated the separation of the LPT module is required when the maintenance of certain HPC, combustor, and HPT assemblies and parts need to be performed. Engines removed for maintenance of those components would require LPT rotor stage 3 disk cleaning and FPI regardless of the time interval since the last FPI per the proposed AD, which would be an unnecessary burden on the operators.

We partially agree. We agree with the request for a certain number of cycles since the last FPI to exclude the part from mandatory inspection. However, we do not find the number of 2,000 cycles since last inspection (CSLI) appropriate to ensure a desired level of safety. We find that an acceptable level of safety will be retained when the disk FPI inspection is skipped during the shop visit if the disk was inspected within the last 1,000 cycles. We changed paragraphs (f) and (g) to “(f) At the next shop visit after the effective date of this AD, clean and fluorescentpenetrant inspect the LPT rotor stage 3 disk forward spacer arm, including the use of a wet abrasive blast to eliminate residual or background fluorescence before inspecting. You can find guidance on cleaning the disk and performing the FPI in the CF6-50 Engine Manual, GEK 50481 72-57-02.” and “(g) Thereafter, clean and inspect the LPT rotor stage 3 disk forward spacer arm, as specified in paragraph (f), at each engine shop visit that occurs after 1,000 cycles since the last FPI of the LPT rotor stage 3 disk forward spacer arm.” We also added paragraphs (i) and (i)(2) that define an engine shop visit as follows: “An engine shop visit is the induction of an engine into the shop for maintenance involving the separation of the turbine mid-frame forward flange from the compressor rear frame aft flange, except that the separation of these engine flanges solely for the purposes of transportation without subsequent engine maintenance does not constitute an engine shop visit.”

One commenter, GE, asked us to consider changing the type of inspection from FPI to ultrasonic inspection (USI). GE stated that they have developed a USI technique and tooling which allow inspecting the LPT rotor stage 3 disk forward spacer arm without piece part disassembly of the LPT. Implementing the USI will detect cracks in the forward spacer arm, which might propagate during operation and would be a suitable alternative to the piece-part disassembly, cleaning, and FPI of the forward spacer arm in many situations.

We don't agree. We don't believe USI technique specified in GE SB CF6-50 S/B 72-1309 is a sufficient means of detecting flaws or microcracks on the inner surface of the LPT rotor stage 3 disk forward spacer arm. Paragraph E.(5) of SB CF6-50 S/B 72-1309 states “The new USI probe was specifically designed to detect flaws 0.030 inch (0.76 mm) deep or greater in the forward spacer arm of the stage 3 LPTR disk.” We find that a 0.030-inch deep surface crack size is unacceptable in that location, as it would have already propagated in a high-cycle fatigue mode. The intent of this AD is to detect cracks before they propagate. We made no change to the proposed AD.

Two commenters, MTU Canada and FedEx, asked us to re-evaluate the Costs of Compliance for the actions required by the proposed AD. The commenters state that cleaning the stage 3 disk and performing an FPI are done at the piece-part level, and that the costs of disassembling and reassembling the LPT module assembly, and of the inspections required by the engine manual for reinstalling the stage 3 blades must be added to the cost of cleaning and inspecting the disk.

We don't agree. Our estimated cost is the direct cost to comply with the AD, and doesn't include preparatory disassembly or reinstallation. We didn't change the AD.

One commenter, GE, asked us to change paragraph (f) of the proposed AD to use the words “including the use of” in place of the word “using”, where cleaning the LPT rotor stage 3 disk with wet-abrasive blast to eliminate residual or background fluorescence is required. GE doesn't consider a wet-abrasive blast alone sufficient to clean the LPT rotor stage 3 disk to allow performance of the FPI of the inner diameter of the forward cone body of the LPT rotor stage 3 disk.

We agree. We changed paragraph (f) of the proposed AD from “Clean the LPT rotor stage 3 disk, using a wet abrasive blast to eliminate residual or background fluorescence. You can find guidance on cleaning the disk in the cleaning procedure of CF6-50 Engine Manual, GEK 50481 72-57-02.” to “At the next engine shop visit after the effective date of this AD, clean and fluorescent-penetrant inspect the LPT rotor stage 3 disk forward spacer arm, including the use of a wet-abrasive blast to eliminate residual or background fluorescence before inspecting. You can find guidance on cleaning the disk and performing the FPI in the CF6-50 Engine Manual, GEK 50481 72-57-02.”

One commenter, Evergreen International Airlines, asked us to add definitions of “cleaning the LPT rotor stage 3 disk” and “FPI of the LPT rotor stage 3 disk,” with specific engine manual subtask references, to the proposed AD. The commenter states that the definitions will clarify the actions required by the proposed AD.

We don't agree. The reference provided in the proposed AD is sufficient to define the required actions. We made no changes to the proposed AD.

We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting the AD with the changes described previously.

We also determined that these changes will not increase the economic burden on any operator or increase the scope of the AD.

We estimate that this AD will affect 387 engines installed on airplanes of U.S. registry. We also estimate that it will take about 7 work-hours per engine to clean and FPI the disk 387 engines. The average labor rate is $85 per work-hour. No parts will be required. Based on these figures, we estimate the total cost of the AD to U.S. operators to be $230,265.

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

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

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

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

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

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

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

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

Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM published in theFederal Registeron May 11, 2011 (76 FR 27282). Investigation of a General Electric Company CF34-10E turbofan engine experiencing high fan frame vibrations led to removal of the fan rotor spinner. Eight of the twelve attachment lugs on the fan rotor spinner support were found cracked. The cause of the vibration was determined to be a non-synchronous vibration induced by a spinner redesign that removed an interference between the fan blade retainers and the spinner. That NPRM proposed to require removing from service certain fan rotor blade retainers, and removing from service the fan rotor spinner support that was installed with those fan rotor blade retainers. We are issuing this AD to prevent high-cycle fatigue cracking of the fan rotor spinner support attachment lugs, leading to separation of the fan rotor spinner assembly, uncontained failure of the engine, and damage to the airplane.

We gave the public the opportunity to participate in developing this AD. We received one comment which is presented below.

One commenter, Regionla Compagnie Aerienne Europeene, requests that we clarify the AD as to what parts are allowed to be reinstalled when affected parts are removed for either scheduled or unscheduled maintenance before the AD compliance time is reached.

We do not agree. When the affected parts are removed from the engine, paragraphs (h) and (i) of this AD are clear that those parts are not to be reinstalled into the engine. Any FAA-approved part except those prohibited by paragraphs (h) and (i), is eligible for installation. We did not change the AD.

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

We estimate that this AD will affect 164 engines installed on airplanes of U.S. registry. We also estimate that it will take about 2 work-hours per engine to perform the actions required by this AD, and that the average labor rate is $85 per work-hour. If all removed parts get replaced, required parts will cost about $10,458 per engine. Based on these figures, we estimate the total cost of the AD to U.S. operators to be $1,742,992.

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

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

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

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

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

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

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

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

Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in theFederal Registeron April 26, 2011 (76 FR 23218). That NPRM proposed to correct an unsafe condition for the specified products. The MCAI states:

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

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

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

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

We estimate that this AD will affect 46 products of U.S. registry. We also estimate that it will take about 17 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Required parts will cost about $0 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these parts. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of this AD to the U.S. operators to be $66,470, or $1,445 per product.

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

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

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

For the reasons discussed above, I certify this AD:

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

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

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

We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket.

You may examine the AD docket on the Internet athttp://www.regulations.gov; or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains the NPRM, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone (800) 647-5527) is in theADDRESSESsection. Comments will be available in the AD docket shortly after receipt.

Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in theFederal Registeron May 10, 2011 (76 FR 26959). That NPRM proposed to correct an unsafe condition for the specified products. The MCAI states:

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

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

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

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

We estimate that this AD will affect 101 products of U.S. registry.

We estimate that 85 products of U.S. registry will require the modification and that it will take about 9.5 work-hours per product to comply with the modification requirements of this AD. The average labor rate is $85 per work-hour. Required parts will cost about $1,550 per product.

Based on these figures, we estimate the cost of the modification requirement of this AD on U.S. operators to be $200,387.50, or $2,357.50 per product.

We estimate that 101 products of U.S. registry will require an inspection for sealant application. We estimate it will take .5 hour to comply with the inspection requirements of this AD.

Based on these figures, we estimate the cost of the inspection for the sealant application requirement of this AD on U.S. operators to be $4,292.50, or $42.50 per product.

In addition, we estimate that any necessary follow-on actions will take about 1.5 work-hours and require parts costing $50, for a cost of $177.50 per product. We have no way of determining the number of products that may need these actions.

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

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

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

For the reasons discussed above, I certify this AD:

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

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

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

We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD Docket.

You may examine the AD docket on the Internet athttp://www.regulations.gov;or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains the NPRM, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone (800) 647-5527) is in theADDRESSESsection. Comments will be available in the AD docket shortly after receipt.

Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:

We issued a supplemental notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That supplemental NPRM was published in theFederal Registeron April 6, 2011 (76 FR 18957). That supplemental NPRM proposed to correct an unsafe condition for the specified products. The MCAI states:

We gave the public the opportunity to participate in developing this AD. We considered the comments received.

American Eagle Airlines (AEA) requested that we revise the supplemental NPRM to allow operators to perform a records review in lieu of the inspection for part number, serial number, and repair status of each transcowl assembly, as required by paragraph (g) of the supplemental NPRM. AEA did not provide reasoning for this request.

We agree to allow operators to perform a records review in lieu of the inspection for part number, serial number, and repair status of each transcowl assembly. We have determined that a review of airplane maintenance records is acceptable in lieu of the inspection, if the part number, serial number, and repair status of each transcowl assembly can be conclusively determined from that review. We have revised paragraph (g) of the final rule accordingly.

AEA requested that we revise paragraph (g)(1) of the supplemental NPRM to remove the reference to paragraph (h) of the supplemental NPRM. AEA explained that the transcowls specified in paragraph (g)(1) of the supplemental NPRM are post-modified transcowls and do not need the inspections required by paragraph (h) of the supplemental NPRM. AEA reasoned that paragraph (h) of the supplemental NPRM should not apply to airplanes that have met the conditions specified in paragraph (g)(1)(i), (g)(1)(ii), or (g)(1)(iii) of the supplemental NPRM.

We agree to revise paragraph (g)(1) of the final rule to remove reference to paragraph (h) of the final rule. We have determined that only paragraph (k) of the final rule applies to post-modification transcowls. We have revised paragraph (g)(1) of the final rule accordingly.

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

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

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

We estimate that this AD will affect 361 products of U.S. registry. We also estimate that it will take about 8 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Required parts will cost about $0 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these parts. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of this AD to the U.S. operators to be $245,480, or $680 per product.

In addition, we estimate that any necessary follow-on actions would take between 4 and 8 work-hours and require parts costing $0, for a cost between $340 and $680 per product. We have no way of determining the number of products that may need these actions.

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

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

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

For the reasons discussed above, I certify this AD:

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

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

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

We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket.

You may examine the AD docket on the Internet athttp://www.regulations.gov;or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains the NPRM, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone (800) 647-5527) is in theADDRESSESsection. Comments will be available in the AD docket shortly after receipt.

Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an airworthiness directive (AD) that would apply to the specified products. That NPRM published in theFederal Registeron February 8, 2010 (75 FR 6162). That NPRM proposed to require repetitive inspections for cracking of the lower rear spar caps of the wings, and related investigative and corrective actions if necessary. That NPRM also proposed to require repetitive inspections of certain repaired areas.

The NPRM referred to Boeing Alert Service Bulletin MD80-57A242, dated May 8, 2009, as the appropriate source of service information for accomplishing the actions. Since issuance of the NPRM, Boeing has issued Alert Service Bulletin MD80-57A242, Revision 1, dated January 7, 2011. No more work is necessary for airplanes on which the original issue was used to accomplish the actions. Certain procedures specified in Revision 1 of this service bulletin have been clarified to provide additional instructions. Revision 1 of this service bulletin also added procedures for splice repair options and removed the instruction to contact Boeing for that repair. In addition, the term “temporary repair,” as specified in the original issue of this service bulletin, was changed to “doubler repair” in Revision 1 of this service bulletin. In addition, instead of contacting Boeing for repair instructions for Condition 3, Revision 1 of this service bulletin specifies three sub-conditions and provides corresponding doubler or splice repairs.

We have revised this AD to refer to Boeing Alert Service Bulletin MD80-57A242, Revision 1, dated January 7, 2011, as the appropriate source of service information for accomplishing the actions, and added a new paragraph (h) to this AD (and reidentified subsequent paragraphs) to give credit for using Boeing Alert Service Bulletin MD80-57A242, dated May 8, 2009, for accomplishing the actions. We also have replaced the word “temporary” in paragraphs (g)(2) and (j) of this AD with the word “doubler.” In addition, we have removed paragraph (i) of the NPRM, which specified contacting the FAA for the splice repair. Further, we have specified in paragraph (g)(1) of this AD that operators may still accomplish the required action in accordance with the procedures specified in paragraph (k) of this AD.

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

The Air Transport Association (ATA), on behalf of its member American Airlines (AAL), asked that applicable inspection requirements in AD 96-23-07 R1, Amendment 39-10110 (62 FR 44208, August 20, 1997); and AD 2004-11-07, Amendment 39-13653 (69 FR 13514, June 4, 2004); be included in the NPRM. ATA and AAL reiterated certain inspection/compliance requirements in those previous ADs, and stated that some of those requirements conflict with the requirements in this NPRM. ATA and AAL recommend incorporating those ADs into this NPRM to clarify, consolidate, and update the compliance requirements.

We do not agree to include the inspection requirements from previous ADs in this AD. Although the inspections in the previous ADs are similar, the root cause of the unsafe condition in this AD (i.e.,high-cycle fatigue in this AD versus manufacturing quality in the previous ADs) is different, which means the inspections and terminating actions are different as well, and do not conflict with the requirements specified in the existing ADs referenced by the commenter. Therefore, we have determined that the actions should be addressed in this “stand-alone” AD. We have not changed the AD in this regard.

ATA and AAL stated that the Relevant Service Information section of the NPRM specifies that no action is necessary for Group 1, Configuration 1 airplanes. The commenters added that this statement conflicts with paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin MD80-57A242, Revision 1, dated January 7, 2011 (which also is related to AD 96-23-07 R1). That service bulletin also specifies the following in a note: “Repeat inspections in accordance with Service Bulletin MD80-57-184, Paragraph 1.D.(5), “Compliance,” are still required.”

We agree that clarification is necessary. The NPRM clearly specifies that no action is necessary for Group 1, Configuration 1 airplanes. That statement is correct as it applies to this new AD. However, the note which appears in Boeing Alert Service Bulletin MD80-57A242, Revision 1, dated January 7, 2011, serves as a reminder that repetitive inspections are still required in accordance with AD 96-23-07 R1 for Group 1, Configuration 1 airplanes. For clarification purposes, we have revised paragraph (g) of this AD to exclude Group 1, Configuration 1 airplanes from the requirements of that paragraph.

ATA and AAL also stated that the Differences section of the NPRM specifies FAA- or Boeing Organization Designation Authorization (ODA)-approved repairs for any crack found (less than or equal to 2.0 inches) in a temporary repair done during the repetitive inspections. The commenters noted that paragraph (j) of the NPRM specifies, “[i]f any crack is found during any inspection of a temporary repair, before further flight, repair using a method approved in accordance with the procedures specified in paragraph (k) of this AD.” The commenters added that these requirements do not clearly detail the crack requirements and limitations; since the temporary repair is reinforcing an existing crack, a crack will always be found during subsequent inspections. The commenters also stated that the “any crack” statement conflicts with the requirements of paragraph (c)(3)(i) of AD 96-23-07 R1, which states, “[i]f any crack progression is found during any repetitive eddy current inspection following accomplishment of the temporary repair, contact the ACO.” Additionally, the commenters noted that the “any crack” statement conflicts with Boeing Drawing 3668B, Disposition A through D.

We disagree with the commenters. The requirement in this AD is to do repetitive eddy current inspections around the perimeter of the repair doublers; therefore, indications of the initially stop-drilled and repaired cracking would not be found during accomplishment of the repetitive inspections. We have not changed the AD in this regard.

In addition, ATA and AAL stated that the NPRM should further clarify the new requirements associated with Boeing Alert Service Bulletin MD80-57A242, dated May 8, 2009, and identified in two sections of the NPRM—the differences section in the preamble and the exceptions in paragraphs (h) and (i) of the NPRM.

Where the NPRM specifies that “crack length is longer than 2.0 inches or is located in the rear spar cap forward horizontal leg radius,” the commenters stated this could be further clarified by stating that this is Condition 3 in Boeing Alert Service Bulletin MD80-57A242, dated May 8, 2009, or by adding a table to the AD.

The commenters also stated that where paragraph (i) of the NPRM specifies that “If any crack is found during any inspection required by this AD and Boeing Alert Service Bulletin MD80-57A242, dated May 8, 2009, specifies contacting Boeing for repair * * *,” the phrase could be furtherclarified by adding a table to the AD that identifies the three conditions specified in Boeing Alert Service Bulletin MD80-57A242, dated May 8, 2009, the three sub-conditions under Condition 2, the temporary repair condition, and the associated AD requirements.

We find that some clarification is necessary. Condition 3 in Boeing Alert Service Bulletin MD80-57A242, Revision 1, dated January 7, 2011, provides clarification with regard to the cracking, as follows: ” * * * lower spar cap has a crack longer than 2.0 inches in length or crack in the rear spar cap forward horizontal leg radius.” No change to this AD is necessary in this regard because the differences section of the preamble of the NPRM is not restated in the final rule.

In addition, as explained previously we removed paragraph (i) of the NPRM from this final rule because Boeing Alert Service Bulletin MD80-57A242, Revision 1, dated January 7, 2011, now provides splice repair instructions. Therefore, it is no longer necessary to include an exception to this service bulletin. We have not changed the AD in this regard.

Additionally, ATA and AAL noted concerns that the proposed requirements of the NPRM specify accomplishing what AAL interpreted to be all the requirements in the service information. The commenters stated that the proposed AD should be clarified and further highlighted to indicate that only specific sections of the service bulletin are required by the proposed AD. AAL reiterated certain open and close procedures and noted that accomplishing those procedures should not affect compliance with the proposed AD. AAL asked that we include the following in the AD: “Only the SB procedures specified by the AD are affected by the FAA-AD. Other procedures such as preparation, open/close, and access procedures described by the SB are not affected by FAA-AD compliance requirements.” AAL also asked that we consider including the procedures that are or are not affected by the proposed AD in its content.

We acknowledge the commenters' concerns, but disagree with the request to change this AD. In Section 3.A., “General Information,” paragraphs 8 through 10 of Boeing Alert Service Bulletin MD80-57A242, Revision 1, dated January 7, 2011, additional procedures are defined that can be used for accomplishing certain actions. In addition, paragraph 13 of that section specifies, in part, that when the words “refer to” are used, and the operator has an accepted alternative procedure, the accepted alternative procedure can be used. Therefore, we have not changed the AD in this regard.

ATA and AAL noted that the criteria for crack findings specified in Boeing Alert Service Bulletin MD80-57A242, dated May 9, 2009, do not provide clear guidance regarding crack limitations. The commenters added that the procedures in this service bulletin do not describe criteria for a crack with the stop-drill configuration. The commenters asked that the criteria for crack findings be further clarified.

We agree that clarification is necessary. The measurement of the crack length is intended to be the total curvilinear crack length, which is consistent with standard maintenance practice; therefore, no additional measurement criteria are necessary. The effect of stop drills on crack length is not relevant because Boeing Alert Service Bulletin MD80-57A242, Revision 1, dated January 7, 2011, specifies actions based on the length of the unrepaired cracks, and not on repaired or stop-drilled cracks. We have not changed the AD in this regard.

ATA and AAL also noted that the procedures in Boeing Alert Service Bulletin MD80-57A242, dated May 9, 2009, are inconsistent regarding acceptable crack configurations for the forward horizontal leg radius for the lower and upper spar caps. The commenters stated that the procedures specify that a crack cannot be in the forward horizontal leg radius for the lower cap, and those procedures refer to Drawing J060271, Note 29. The commenter stated that this drawing does have this limitation for the lower cap as well as the upper cap. However, that service bulletin does not refer to Note 29 for the upper cap procedures. The commenter requested that clarification of the crack criteria for doubler repairs on the upper spar cap be provided.

We agree that clarification is necessary. Boeing Alert Service Bulletin MD80-57A242, Revision 1, dated January 7, 2011, clarifies the crack criteria for the upper cap using Drawing J060271, Note 29, for the crack criteria when determining whether doubler repair of the upper spar cap is allowed. We have included Boeing Alert Service Bulletin MD80-57A242, Revision 1, dated January 7, 2011, as an appropriate source of service information for accomplishing the actions required by this AD.

ATA and AAL expressed concern that Boeing Alert Service Bulletin MD80-57A242, dated May 8, 2009, did not have a validation program performed to ensure that data, instructions, and processes specified in that service bulletin are correct, clear, appropriate, and understood by maintenance personnel performing the work.

From this statement, we infer the commenters are requesting that the procedures specified in Boeing Alert Service Bulletin MD80-57A242, dated May 8, 2009, be validated by the airplane manufacturer. We agree that certain procedures in Boeing Alert Service Bulletin MD80-57A242, dated May 8, 2009, need clarification. However, Boeing Alert Service Bulletin MD80-57A242, Revision 1, dated January 7, 2011, provides clarification for certain instructions provided in the original issue of that service bulletin so the procedures are clear and concise and to ensure they are understood by maintenance personnel performing the work.

In addition, it should be noted that the inspections and repairs in Boeing Alert Service Bulletin MD80-57A242, Revision 1, dated January 7, 2011, are identical to those in AD 96-23-07 R1, although the compliance times and applicability are different. (AD 96-23-07 R1 referred to McDonnell Douglas MD-80 Service Bulletin 57-184, Revision 1, dated December 22, 1994, as the appropriate source of service information for accomplishing the actions.) In light of this information, a formal evaluation of Boeing Alert Service Bulletin MD80-57A242 was not deemed necessary. We have not changed the AD in this regard.

We have revised this AD to identify the name of the manufacturer as published in the most recent type certificate data sheet for the affected airplane models.

We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting the AD with the changes described previously. We have determined that these changes will neither increase the economic burden on any operator nor increase the scope of the AD.

Since issuance of the NPRM, we have increased the labor rate used in the Costs of Compliance from $80 per work-hour to $85 per work-hour. The Costs of Compliance information, below, reflects this increase in the specified labor rate.

We estimate that this AD affects 670 airplanes of U.S. registry. We also estimate that it will take about 4 work-hours per product to comply with this AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of this AD to the U.S. operators to be $227,800, or $340 per product, per inspection cycle.

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

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

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

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

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

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

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

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

Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:

On Monday, October 26, 2009, the FAA published in theFederal Registera notice of proposed rulemaking (NPRM) to establish area navigation route Q-37 (74 FR 54943). Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal. No comments were received.

This action amends Title 14, Code of Federal Regulations (14 CFR) part 71 by establishing high altitude area navigation route Q-37 between the Pueblo, CO, VORTAC, and the Fort Stockton, TX, VORTAC. The new route provides pilots and air traffic controllers with an efficient alternate route around potentially constrained airspace during convective weather events in west Texas. Additionally, the new route is being integrated into the existing severe weather national playbook routes to Houston, TX, terminal airports through Albuquerque Air Route Traffic Control Center's airspace, in lieu of the current process of coordinating tactical modifications to routings with the FAA Air Traffic Control Services Command Center.

In the NPRM, the points CAVRN and IMMAS were erroneously identified as a “WP” (waypoint). These points are being established and charted as navigation fixes; therefore, an editorial change is being made in this rule to replace “WP” with “Fix” in the description for CAVRN and IMMAS. With the exception of these changes, this amendment is the same as that proposed in the NPRM.

High altitude RNAV routes are published in paragraph 2006 of FAA Order 7400.9U dated August 18, 2010, and effective September 15, 2010, which is incorporated by reference in 14 CFR 71.1. The RNAV route listed in this document will be published subsequently in the Order.

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

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

This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it establishes an RNAV route to enhance the safe and efficient flow of traffic in the central United States.

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures,” paragraphs 311a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

History

On June 13, 2011, the FAA published in theFederal Registera notice of proposed rulemaking to establish Class E airspace at Forest, VA (76 FR 34196) Docket No. FAA-2011-0378. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received. Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9U dated August 18, 2010, and effective September 15, 2010, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 establishes the Class E airspace extending upward from 700 feet above the surface at Forest, VA, to provide the controlled airspace required to support the new RNAV GPS standard instrument approach procedures developed for New London Airport. This action is necessary for the safety and management of IFR operations at the airport.

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

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

This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it establishes controlled airspace at New London Airport, Forest, VA.

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

The FAA's authority to issue rules on aviation safety is found in Title 49 of the United States Code. Subtitle I, section 106 describes the authority of the FAA Administrator, to include the authority to issue, rescind, and revise regulations. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in subtitle VII, part A, chapter 447, Safety Regulation. Under section 44701(a) the FAA is charged with promoting the safe flight of civil aircraft in air commerce by prescribing regulations and minimum standards for other practices, methods, and procedures necessary for safety in air commerce and national security.

On March 5, 2008, the FAA proposed a $10.2 million civil penalty against a major airline for operating 46 airplanes without performing mandatory inspections for fuselage fatigue cracking. The FAA alleged that the airline operated 46 Boeing 737 airplanes on almost 60,000 flights from June 2006 to March 2007 while failing to comply with an existing FAA Airworthiness Directive (AD) that required repetitive inspections of certain fuselage areas to detect fatigue cracking.

Based on this event, on June 30, 2008, the Department of Transportation (DOT) Office of Inspector General issued a report on its review of the FAA's oversight of airlines and use of regulatory partnership programs. The report concluded that the FAA Certificate Management Office (CMO) overseeing the airline that failed to perform the required inspections had developed an overly collaborative relationship with the airline. The report recommended that the FAA should enhance management controls by implementing post-employment guidance that includes a “cooling-off” period to prohibit an air carrier from hiring an FAA Flight Standards Service Aviation Safety Inspector (AFS ASI) who previously inspected that air carrier from acting in any type of liaison capacity between it and the FAA. A full copy of the report is contained in the docket for this rulemaking.

On September 2, 2008, an independent review team, appointed by former Secretary of Transportation Mary E. Peters on May 1, 2008 to examine the FAA's safety culture and its implementation of safety management systems, issued its report titled, “Managing Risks in Civil Aviation: A Review of the FAA's Approach to Safety.” The report stated that “[t]he FAA, like all other regulators, faces the danger of regulatory capture. Capture occurs when a regulatory agency draws so close to those with whom it deals on a daily basis (i.e.the regulated) that the agency ends up elevating their concerns at the expense of the agency's core mission.” A full copy of the report may be found in the docket for this rulemaking.

The NPRM was published in theFederal Registeron November 20, 2009 (74 FR 60218) and the comment period closed on February 18, 2010. The NPRM proposed to prohibit any person holding a certificate to conduct operations under parts 121, 125, 133, 135, 137, 141, 142, 145 or 147 from knowingly employing, or making a contractual arrangement with, certain individuals to act as an agent or a representative of the certificate holder in any matter before the FAA under certain conditions. These restrictions would apply if the individual, in the preceding 2-year period: (1) Directly served as, or was directly responsible for the oversight of, an AFS ASI; and (2) had direct responsibility to inspect, or oversee the inspection of, the operations of the certificate holder. The NPRM also proposed to apply to persons who own or manage fractional ownership program aircraft that are used to conduct operations under subpart K of part 91. The FAA proposed to establish these restrictions to prevent potential organizational conflicts of interest which could adversely affect aviation safety.

The FAA received five comments on the proposed rule, all from individual commenters. The FAA did not receive comments from airlines, trade associations, or labor organizations. The three adverse comments addressed the applicability of the rule, and the potential burdens the rule could create. Two comments expressed support for the rule. Commenters also suggested changes, as discussed more fully in this section.

Two individual commenters stated that the provisions in the proposed rule should be expanded to include FAAregional and headquarters personnel. They commented that individuals in regional and headquarters positions exert power and influence and should also be covered by the provisions in the rule. Another individual noted the challenge of trying to regulate integrity and that, using the same justification as stated in the NPRM, all former FAA employees should never be allowed to become FAA Designees, such as Designated Engineering Representatives, Designated Airworthiness Representatives, Designated Manufacturing Inspection Representatives, Organizational Designated Airworthiness Representatives.

In the final rule, the FAA has limited the scope of employment restrictions to certain types of operations. The restrictions will apply to those persons conducting operations under parts 121, 125, 133, 135, 137, 141, 142, 145, 147, and subpart K of part 91 employing former FAA personnel who had oversight responsibilities for the operator [e.g.Office Managers, Assistant Office Managers, Branch Managers, Unit Supervisors, and Aviation Safety Inspectors assigned to a Flight Standards District Office (FSDO) or a CMO]. AFS ASIs directly engaged in certificate management typically develop close working relationships with other AFS ASIs with whom they share direct oversight responsibilities for a particular operator. The FAA believes that aviation safety could be compromised if a former AFS ASI, acting on behalf of the operator, is able to exert undue influence on current FAA employees with whom he or she had established close working relationships while working at a FSDO or a CMO.

In the final rule the FAA has not extended the restrictions to the employment of all former FAA regional and headquarters personnel. However, these individuals are not without restrictions regarding post-FAA employment, as there are currently restrictions that apply to FAA managers and executives. Section 207(a)(1) of Title 18, United States Code (18 U.S.C.) generally places a permanent restriction on former executive branch employees (including FAA employees) regarding their ability to represent a person in connection with a particular matter in which the United States government has a direct and substantial interest and in which that person participated personally and substantially.

The FAA has determined that the scope of the restrictions in the final rule is appropriate. FAA employees not directly engaged in certificate management typically do not develop those close working relationships that the agency believes would necessitate the imposition of post-employment restrictions on certificate holders set forth in this final rule. Operators can still employ former AFS ASIs in numerous positions. However, these former AFS ASIs may not represent the operator in any matter before the FAA if in the preceding 2-year period that person (1) directly served as, or was directly responsible for the oversight of an AFS ASI, and (2) had direct responsibility to inspect, or oversee the inspection of that operator.

Although a commenter stated that the rule should impose restrictions that would prohibit former FAA employees from becoming designees, FAA designees do not represent the interest of certificate holders, but rather serve as representatives of the Administrator. Additionally, the NPRM did not propose the establishment of such restrictions and the agency considers the comments to be outside the scope of the notice.

One commenter stated that the provisions in the proposed rule create a hardship for FAA employees who are leaving the agency, and suggested that the restriction on employment be reduced to 6 months, instead of the proposed 2 years. The same commenter also suggested that the restriction not be applied to anyone who was fired or has retired, and also suggested that the restriction be limited to part 121 operators since the FAA has no data indicating that this action is warranted for certificate holders engaged in activities under other parts.

The FAA selected a 2-year period for the duration of this restriction. This regulation will mirror a corresponding requirement found in current AFS policy which provides for a 2-year “cooling off” period for newly employed AFS ASIs. This AFS policy prohibits new ASIs from having certificate management responsibilities for their former aviation employer during this2-year period. The final rule will not change this longstanding FAA policy. It will, however, create a corresponding requirement applicable to operators who seek to employ certain former FAA AFS ASIs and those responsible for their oversight.

In response to the comment that the restriction not be applied to anyone who was fired or has retired, the FAA notes that the method by which an AFS ASI's employment is terminated does not have any bearing on potential conflicts of interest. Therefore, the restrictions apply regardless of the manner by which the AFS ASI terminates his or her employment with the agency.

In response to the comment that the provisions in the rule should be limited to part 121 certificate holders the FAA notes that close working relationships leading to potential conflicts of interest can occur regardless of the type of operation being conducted. Therefore, the FAA has determined these restrictions should apply to those persons conducting operations under parts 121, 125, 133, 135, 137, 141, 142, 145, and subpart K of part 91.

Two commenters stated that the proposed rule is necessary. One individual commented that a former AFS ASI should not be able to work directly for the companies that were under the AFS ASI's oversight for 2 years, but should be able to work for companies that were not under the AFS ASI's oversight. A second individual commented that airlines should not be allowed to hire aviation safety inspectors because it is clearly a conflict of interest and a danger to passengers.

The FAA recognizes the adverse safety effects of “regulatory capture” and conflict of interest when certain former FAA employees leave the FAA and are employed by an operation for which that person formerly had oversight duties. However, the FAA is also required to evaluate the safety benefits of the final rule against potential regulatory burdens. To achieve the safety benefits of this final rule, the FAA does not find it necessary to prohibit a former FAA employee from being hired for positions such as a pilot, flight attendant, mechanic, training instructor,etc. for an operation for which they formally had oversight, as long as the former FAA employee does not represent that operator to the FAA. In addition, the FAA does not find it necessary to permanently bar a former FAA employee from any job for any aviation employer after that former FAA employee has completed a 2-year “cooling off” period.

Therefore, in the final rule, these restrictions would only apply if the individual, in the preceding 2-year period: Directly served as, or was directly responsible for the oversight of, an AFS ASI; and had direct responsibility to inspect, or oversee the inspections of the operator and that individual acts as an agent or a representative of the operator in any matter before the FAA. The restrictions would not apply to operators for whose oversight the AFS ASI was not directly responsible.

This final rule will prohibit any person holding a certificate to conduct operations under parts 121, 125, 133, 135, 137, 141, 142, 145, or 147 from knowingly employing, or making a contractual arrangement with, certain individuals to act as an agent or a representative of the certificate holder in any matter before the FAA under certain conditions. These restrictions will apply if the individual, in the preceding 2-year period: directly served as, or was directly responsible for the oversight of, an AFS ASI; and had direct responsibility to inspect, or oversee the inspection of, the operations of the certificate holder. This final rule will also apply to persons who own or manage fractional ownership program aircraft that are used to conduct operations under subpart K of part 91. This final rule will establish these restrictions to prevent potential organizational conflicts of interests which could adversely affect aviation safety. The final rule is identical to the proposal.

The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that the FAA consider the impact of paperwork and other information collection burdens imposed on the public. The FAA has determined that there is no new requirement for information collection associated with this final rule.

In keeping with U.S. obligations under the Convention on International Civil Aviation, it is FAA policy to conform to International Civil Aviation Organization (ICAO) Standards and Recommended Practices to the maximum extent practicable. The FAA has determined that there are no ICAO Standards and Recommended Practices that correspond to these regulations.

Changes to Federal regulations must undergo several economic analyses. First, Executive Order 12866 directs that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354) requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (Pub. L. 96-39) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. In developing U.S. standards, the Trade Act requires agencies to consider international standards and, where appropriate, that they be the basis of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or Tribal governments, in the aggregate, or by the private sector, of $100 million or more annually (adjusted for inflation with base year of 1995). This portion of the preamble summarizes the FAA's analysis of the economic impacts of this rule.

Department of Transportation Order DOT 2100.5 prescribes policies and procedures for simplification, analysis, and review of regulations. If the expected cost impact is so minimal that a proposed or final rule does not warrant a full evaluation, this order permits that a statement to that effect and the basis for it to be included in the preamble if a full regulatory evaluation of the cost and benefits is not prepared. Such a determination has been made for this rule. The reasoning for this determination follows:

This final rule will affect current and future AFS ASIs and persons responsible for their oversight who would perform work after the effective date of the rule for an operator for which they had direct oversight responsibilities when employed by the FAA. It will also affect operators that would have hired former FAA employees who had direct oversight responsibilities for those operators. Finally, this rule will apply to fractional owners or fractional ownership program managers who conduct operations under subpart K of part 91.

The final rule's primary benefit will be to prevent potential organizational conflicts of interest. The non-quantifiable benefits resulting from this effect will be to minimize any potential public perception that: (1) An AFS ASI could compromise current aviation safety if that individual were to be promised post-FAA employment by an operator over which that individual has direct oversight responsibilities; and (2) a former FAA employee working for an operator were to attempt to exert undue influence on current FAA employees with whom that former employee had established close working relationships. This post-employment prohibition also applies to the more likely case of former AFS ASIs who would become consultants to the operator. By prohibiting such relationships, the public will have greater confidence in the FAA's independence from the aviation industry and in the integrity of the FAA inspection system. Such benefits from this increased public confidence in the integrity of the FAA inspection process cannot be quantified.

The final rule also creates some minor inefficiencies. An operator can benefit from employing a former AFS ASI who had direct oversight responsibilities for that operator because that AFS ASI not only knows more about FAA processes than someone who had not worked for the FAA, but also, would know more about the operator than other former AFS ASIs. Further, a former AFS ASI from a specific FSDO or CMO will have greater knowledge about that office (as well as be better acquainted with the people in that office) than would a former AFS ASI from a different office.

For example, some operators may believe that employing a former AFS ASI who recently had direct oversight responsibilities for their operations would reduce the time to obtain FAA approval for manual upgrades and revisions partially due to the personal relationships between the former AFS ASI and current FAA employees. In such a case, an operator would be more likely to employ this former AFS ASI than to employ a former AFS ASI who did not have direct oversight responsibilities for that operator. Due to the general similarities among the groups of operators, the potential inefficiencies from employing a former AFS ASI who did not have direct oversight responsibilities for that operator will not be significant. Thus, from the societal point of view, the overall losses to some individual former FAA inspectors will be largely offset by gains to other former FAA inspectors or other qualified personnel. Although the final rule will create income transfers among individuals, at this time, we cannot quantify this overall loss on an individual basis. From a societal basis, the safety differential paid for the incremental loss in knowledge will be very small. We received no public comments quantifying the amount of losses that any individual will face from this rule.

The number of former AFS ASIs who leave the FAA varies from year to year. We used fiscal year 2008 (October 1, 2008, through September 30, 2009), as a representative year-long period to evaluate the number of potentiallyaffected FAA employees. There were a total of 163 AFS ASIs who left FAA employment during this fiscal year. Fifteen of these were from FAA headquarters and not specifically assigned to a certificate holder. These AFS ASIs would not have been affected by the rule. As shown in Table 1, of the remaining 148 inspectors who left FAA employment, 103 voluntarily retired, 5 retired due to disability, 17 resigned, 1 was removed, 6 were terminated during their probation period, 2 had their appointments terminated, and 14 died. Thus, the maximum number of former inspectors who could have been affected had the rule been in effect are the 125 non-headquarters personnel who retired (voluntarily or with disability) or resigned.

As concluded in the NPRM, we stated that few of these former AFS ASIs will become involved in post-FAA retirement employment. We further stated that this overall economic impact will be minimal, with the potential benefits exceeding the costs. We requested comments on this economic analysis and received none.

Although the overall economic impact will be minimal, with the potential benefits exceeding the costs this rule is considered a “significant regulatory action” for other reasons as defined in section 3(f) of Executive Order 12866 and is “significant” as defined in DOT's Regulatory Policies and Procedures.

The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA) establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objectives of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the businesses, organizations, and governmental jurisdictions subject to regulation.

To achieve this principle, agencies are required to solicit and consider flexible regulatory proposals and to explain the rationale for their actions to assure that such proposals are given serious consideration.” The RFA covers a wide-range of small entities, including small businesses, not-for-profit organizations, and small governmental jurisdictions.

Agencies must perform a review to determine whether a rule will have a significant economic impact on a substantial number of small entities. If the agency determines that it will, the agency must prepare a regulatory flexibility analysis as described in the RFA.

However, if an agency determines that a rule is not expected to have a significant economic impact on a substantial number of small entities, section 605(b) of the RFA provides that the head of the agency may so certify and a regulatory flexibility analysis is not required. The certification must include a statement providing the factual basis for this determination, and the reasoning should be clear.

The final rule will only prevent an AFS ASI and persons responsible for their oversight from acting as an agent or representative of an operator before the FAA when those persons had direct oversight responsibilities for that operator in the preceding two years. The cost to an operator of being unable to employ a specific individual will be minimal because other individuals with similar professional qualifications as those possessed by the former AFS ASI will be available. Therefore the FAA certifies that this final rule will not have a significant economic impact on a substantial number of small entities.

Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (in 1995 dollars) in any one year by State, local, and Tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.” The FAA currently uses an inflation-adjusted value of $140.8 million in lieu of $100 million. This final rule does not contain such a mandate; therefore, the requirements of Title II of the Act do not apply.

The FAA has analyzed this final rule under the principles and criteria of Executive Order 13132, Federalism. We determined that this action will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government, and, therefore, will not have federalism implications.

FAA Order 1050.1E identifies FAA actions that are categorically excluded from preparation of an environmental assessment or environmental impact statement under the National Environmental Policy Act in the absence of extraordinary circumstances. The FAA has determined this final rulemaking action qualifies for the categorical exclusion identified in paragraph 312f and involves no extraordinary circumstances.

The FAA analyzed this final rule under Executive Order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use (May 18, 2001). The agency has determined that it is not a “significant energy action” under the executive order and it is not likely to have a significant adverse effect on the supply, distribution, or use of energy.

An electronic copy of a rulemaking document my be obtained by using the Internet—

1. Search the Federal eRulemaking Portal (http://www.regulations.gov);

2. Visit the FAA's Regulations and Policies Web page athttp://www.faa.gov/regulations_policies/or

3. Access the Government Printing Office's Web page athttp://www.gpoaccess.gov/fr/index.html.

Copies may also be obtained by sending a request (identified by notice, amendment, or docket number of this rulemaking) to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue, SW., Washington, DC 20591, or by calling (202) 267-9680.

Comments received may be viewed by going tohttp://www.regulations.govand following the online instructions to search the docket number for this action. Anyone is able to search the electronic form of all comments received into any of the FAA's dockets by the name of the individual submitting the comment (or signing thecomment, if submitted on behalf of an association, business, labor union,etc.).

The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 requires FAA to comply with small entity requests for information or advice about compliance with statutes and regulations within its jurisdiction. A small entity with questions regarding this document, may contact its local FAA official, or the person listed under theFOR FURTHER INFORMATION CONTACTheading at the beginning of the preamble. To find out more about SBREFA on the Internet, visithttp://www.faa.gov/regulations_policies/rulemaking/sbre_act/.

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

This rule amends Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) by amending the referenced SIAPs. The complete regulatory description of each SIAP is listed on the appropriate FAA Form 8260, as modified by the National Flight Data Center (FDC)/Permanent Notice to Airmen (P-NOTAM), and is incorporated by reference in the amendment under 5 U.S.C. 552(a), 1 CFR part 51, and § 97.20 of Title 14 of the Code of Federal Regulations.

The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in theFederal Registerexpensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, but refer to their graphic depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP contained in FAA form documents is unnecessary. This amendment provides the affected CFR sections and specifies the types of SIAP and the corresponding effective dates. This amendment also identifies the airport and its location, the procedure and the amendment number.

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP as amended in the transmittal. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained for each SIAP as modified by FDC/P-NOTAMs.

The SIAPs, as modified by FDC P-NOTAM, and contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these changes to SIAPs, the TERPS criteria were applied only to specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in a FDC NOTAM as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for all these SIAP amendments requires making them effective in less than 30 days.

Because of the close and immediate relationship between these SIAPs and safety in air commerce, I find that notice and public procedure before adopting these SIAPs are impracticable and contrary to the public interest and, where applicable, that good cause exists for making these SIAPs effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore— (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal regulations, part 97, 14 CFR part 97, is amended by amending Standard Instrument Approach Procedures, effective at 0901 UTC on the dates specified, as follows:

This rule amends Title 14 of the Code of Federal Regulations, part 97 (14 CFR part 97), by establishing, amending, suspending, or revoking SIAPS, Takeoff Minimums and/or ODPS. The complete regulators description of each SIAP and its associated Takeoff Minimums or ODP for an identified airport is listed on FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR 97.20. The applicable FAA Forms are FAA Forms 8260-3, 8260-4, 8260-5, 8260-15A, and 8260-15B when required by an entry on 8260-15A.

The large number of SIAPs, Takeoff Minimums and ODPs, in addition to their complex nature and the need for a special format make publication in theFederal Registerexpensive and impractical. Furthermore, airmen do not use the regulatory text of the SIAPs, Takeoff Minimums or ODPs, but instead refer to their depiction on charts printed by publishers of aeronautical materials. The advantages of incorporation by reference are realized and publication of the complete description of each SIAP, Takeoff Minimums and ODP listed on FAA forms is unnecessary. This amendment provides the affected CFR sections and specifies the types of SIAPs and the effective dates of the associated Takeoff Minimums and ODPs. This amendment also identifies the airport and its location, the procedure, and the amendment number.

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP, Takeoff Minimums and ODP as contained in the transmittal. Some SIAP and Takeoff Minimums and textual ODP amendments may havebeen issued previously by the FAA in a Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for some SIAP and Takeoff Minimums and ODP amendments may require making them effective in less than 30 days. For the remaining SIAPS and Takeoff Minimums and ODPS, an effective date at least 30 days after publication is provided.

Further, the SIAPs and Takeoff Minimums and ODPS contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPS and Takeoff Minimums and ODPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediaterelationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedures before adopting these SIAPS, Takeoff Minimums and ODPs are impracticable and contrary to the public interest and, where applicable, that good cause exists for making some SIAPs effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule ” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal Regulations, part 97 (14 CFR part 97) is amended by establishing, amending, suspending, or revoking Standard Instrument Approach Procedures and/or Takeoff Minimums and/or Obstacle Departure Procedures effective at 0902 UTC on the dates specified, as follows:

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

This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart III, Section 44701. Under that section, the FAA is charged with prescribing regulations promoting safe flight of civil aircraft in air commerce by prescribing minimum standards required in the interest of safety for the design and performance of aircraft; regulations and minimum standards of safety for inspecting, servicing, and overhauling aircraft; and regulations for other practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it prescribes new safety standards for the operation of certain airplanes used in air carrier service.

The FAA is creating new regulations in Title 14, Code of Federal Regulations (14 CFR) part 121 (Operating Requirements: Domestic, Flag, and Supplemental Operations) related to the operation of certain transport category airplanes in icing conditions. To improve the safety of these airplanes operating in icing conditions, the new regulations require either installation of ice detection equipment and procedures for its use, or changes to the airplane flight manual (AFM) to ensure timely activation of the airframe ice protection system.

The economic evaluation for the final rule shows that the benefits exceed the costs for the nominal, seven, and three percent present value rates. The estimated benefits are $27.2 million ($16.2 million present value). The total estimated costs are $12.7 million ($6.7 million present value). The following table shows these results.

On October 31, 1994, an accident involving an Avions de Transport Regional ATR 72 series airplane occurred in icing conditions. This prompted the FAA to initiate a review of aircraft safety in icing conditions and determine what changes could be made to increase the level of safety. In May 1996, we sponsored the International Conference on Aircraft Inflight Icing, where icing specialists made recommendations for increasing safety. We reviewed these recommendations and developed a comprehensive, multi-year icing plan. The FAA Inflight Aircraft Icing Plan, dated April 1997,1 described various activities we were considering for improving aircraft safety in icing conditions. In accordance with this plan, we tasked the Aviation Rulemaking Advisory Committee (ARAC) to consider the need for ice detectors or other means to give flightcrews early indication about action required for ice accumulating on critical surfaces of the airplane.2 The work was carried out by ARAC's Ice Protection Harmonization Working Group (IPHWG). Its recommendations may be found in the docket for this rulemaking (FAA-2009-0675).

On November 23, 2009, the FAA published a notice of proposed rulemaking (NPRM) based on ARAC's recommendations to the FAA (74 FR61055). That NPRM proposed changes to the regulations for operators of certain airplanes certificated for flight in icing conditions that are operated under 14 CFR part 121. It proposed requirements for installation of ice detection equipment and/or changes to the AFM to ensure timely activation of the airframe ice protection system. The comment period for that NPRM closed on February 22, 2010.

An appendix to the preamble of this rule gives definitions of the terms used here.

The FAA is currently engaged in rulemaking that would require operators of airplanes to exit icing conditions for which the airplane has not been certified. Supercooled large droplet icing conditions may be an example of such conditions.

The FAA received 56 comment documents in response to the NPRM. Some commenters submitted multiple comments.

• Twenty-two commenters (Boeing, Airbus, the Regional Airline Association (RAA), Air Line Pilots Association International (ALPA), and 16 private citizens) expressed support for the proposal in the NPRM.

• Twenty-nine private citizens offered general comments on icing and ice protection that did not specifically address the proposal in the NPRM. These commenters stated that the FAA had not done enough, early enough, to solve the safety problems of flight in icing conditions. Because these comments were beyond the scope of the NPRM's proposal, we are not responding to them in this preamble.

• BAE Systems, XCEL Jet Management, the National Transportation Safety Board (NTSB), and two private citizens provided critical or non-supportive comments to the proposal in the NPRM.

This final rule is identical to the rule proposed in the NPRM. Its goal is to ensure that ice protection systems are activated in a timely way. It does this by relieving the flightcrew of the need for judging when to activate the ice protection system. It gives the flightcrew—

• Primary ice detectors that will alert them to icing,

• Specific visual cues to indicate icing, supplemented by advisory ice detectors, or

• Specific air temperatures to check for which, in the presence of visible moisture, will indicate conditions conducive to icing and the need to follow icing procedures.

This rule applies to airplanes operating under part 121 rules with a certified maximum takeoff weight (MTOW) of less than 60,000 pounds. It requires—

a. A primary ice detection system and appropriate activation equipment and procedures to ensure timely activation of the ice protection system,

b. An advisory ice detection system plus substantiated visual cues and procedures to ensure timely activation and, if necessary, repeated operation of the ice protection system, or

c. If the airplane is not equipped to comply with either a or b above, that flightcrews activate and continuously or cyclically operate the ice protection system when in icing conditions during—

• The takeoff climb after second segment,

• En route climb,

• Holding,

• Maneuvering for approach and landing, and

• Any other operation at approach or holding airspeeds.

Icing conditions will be indicated by a specific air temperature and the presence of visible moisture. The flightcrew must operate the ice protection at the first sign of ice accumulation for any other phases of flight until after exiting the icing conditions. When the ice protection system is activated, the flightcrew must also initiate any additional procedures for operation in conditions conducive to icing specified in the AFM or the manual required by § 121.133. This third option of the rule permits compliance without additional equipment. It supports part 121 operations of existing airplanes that are not equipped with ice detectors and new airplanes designed in accordance with § 25.1419(e)(3). However, if the AFM prohibits these procedures, then compliance must be demonstrated with either of the first two options.

To eliminate any guesswork for the flightcrew in identifying icing conditions, this rule defines icing conditions as the presence of visible moisture in temperatures of 5° C or less static air temperature or 10° C or less total air temperature, unless the AFM defines it differently.

The rule requires that ice protection procedures be established in the AFM or the manual required by § 121.133, and that they address—

• Initial activation of the ice protection system,

• Operation of the ice protection system after initial activation, and

• Deactivation of the ice protection system.

These procedures must address whether, after initial activation, the ice protection system must be operated continuously or cycled automatically or manually. The rule also specifies that if an operator elects to install an ice detection system, it must be approved through an amended or supplemental type certificate in accordance with part 21.

The FAA considers this rule to be a necessary increase in the standard of safety because there have been accidents and incidents in which the flightcrew did not start the airframe ice protection system soon enough. In some cases, crews were completely unaware of ice accumulation on the airframe. In other cases, they knew that ice was accumulating, but thought it not significant enough to require activating the ice protection system. This rule is meant to prevent that from happening again by giving flightcrews a clear means of knowing when to activate the airframe ice protection system. Following are the comments requesting changes to the rule.

XCEL Jet Management commented that poor training and airmanship in relation to operating in icing conditions were responsible for both the Colgan Air3 and ATR accidents and that better pilot training was the solution. An individual commenter suggested that improved and more complete pilot training were the real solutions for reducing icing accidents and suggested that pilots should obtain a license endorsement for flight in icing. Neither of these commenters felt that this additional operating rule was warranted.

While icing conditions were present at the time of the Colgan accident, the NTSB did not find that these conditions either caused or contributed to the accident. Rather, the NTSB found that Colgan Air's inadequate procedures for airspeed selection and management during approaches in icing condition contributed to the accident. The Colgan Air flightcrew was operating the ice protection system properly, and the airplane stall occurred very close to the clean wing stall speed. The BombardierModel DHC-8-400 series airplane that those pilots were flying has an advisory ice detection system that helped them know when to activate the ice protection system. Pilots may fail to activate an ice protection system for any number of reasons that could include inattention, a heavy workload that causes ice monitoring vigilance to be reduced, or failure to detect the ice because of environmental conditions. Additional training may not effectively address any of those issues. Thus, we proposed a rule that will require either actively alerting the pilot to icing conditions or causing the pilot to activate the ice protection system when a certain temperature exists in conditions of visible moisture. The exception to this would be during the cruise phase, when activation of the ice protection system at the first sign of icing will be required. This will ensure safe flight in icing conditions independent of icing flight training. Therefore, the proposed rule is not changed based on these comments.

Note that many new training materials developed by National Aeronautics and Space Administration (NASA) have been released in order to ensure that pilots have access to information that will give them the knowledge and skills to safely and strategically fly in icing conditions.

An individual commenter indicated that the ice protection system should be turned on automatically but in a “sequence that would allow the crew to turn it off both before it activated and after it completed a cycle.”

We understand from this that the commenter thinks automatic activation should be mandatory, but with features that allow the pilot to intercede. While automatic activation has advantages, we have not determined it should be mandatory. The FAA does not dictate design of aircraft systems. Instead we provide performance-based rules. We believe it should be up to the operator/applicant to choose the best design for its aircraft. Under this approach, an automatic activation design would be acceptable. Examples of other safe and acceptable options include—

• Primary ice detection with manual ice protection system activation,

• Advisory ice detection and pilot monitoring with manual ice protection system activation, and

• Manual ice protection system activation based on temperature and visible moisture for non-cruise flight phases, as well as manual ice protection system activation during cruise at the first sign of icing.

We have not changed the rule based on this comment.

BAE stated that it is not clear whether the rule applies to airplanes for which previously proposed ADs were withdrawn. It is the FAA's intent that this new rule will apply to all airplanes with a certified MTOW less than 60,000 pounds, whether or not original ADs requiring ice protection system activation at the first sign of icing have been withdrawn. As discussed in the NPRM, the purpose of the ADs was to require that the ice protection system be activated at the first sign of icing. This assumes the flightcrew detects the icing. The fact that we concluded there was no need to prevent delayed activation on certain airplanes, and therefore withdrew those ADs, is irrelevant to the purpose of this rule. The purpose of this rulemaking is to ensure detection and activation or, if operating without an ice detection system, timely activation in non-cruise flight. The FAA also finds that, for airplanes not equipped with ice detectors, it is acceptable to activate the ice protection system at the first sign of icing for any phase not identified in § 121.321(a)(3)(i) (for example, cruise).

BAE stated that original certification of their airplanes for flight in icing was based on the most adverse accretions determined from Appendix C to part 25, and that the procedures established during this certification, including activation after accumulating one-half inch of ice on the airframe, do not result in an unsafe condition.

We agree that following the established procedures does not result in an unsafe condition, as long as the flightcrew detects the icing and activates the ice protection system in accordance with those procedures. But several accidents and incidents have occurred because of failure to activate the ice protection system in a timely fashion. In some of those cases, critical ice formed before the crew activated the ice protection system. Other cases have occurred when, for any number of reasons, there was a delay in activating the ice protection system. This rule is intended to ensure timely detection of icing on the airframe and activation of the ice protection system. It helps ensure that ice protection system activation procedures are followed. Therefore, the proposed rule is not changed based on this comment.

BAE suggested that the larger ice accretions assessed during certification might be safer than ice accumulated when operating the ice protection system in conditions conducive to icing, at the first sign of icing, and at regular intervals thereafter. BAE also expressed concern that aircraft handling qualities and performance have not been demonstrated with these new procedures. BAE does not recommend acceptance of this rule in its current form unless we can provide further justification for its adoption.

We believe there is ample justification for this rule. In the initial stages of the IPHWG's examination of the problems of flight in icing, there was great concern about activating boot ice protection systems at the first sign of icing because of a phenomenon known as ice bridging.4 We infer this is the reason BAE suggested larger ice accretions may be safer than those that would be formed under this rule. No one has reported ice bridging nor has it been seen during testing on modern deicing boots. Classical ice bridging was associated with older designs that had slow inflation and deflation rates; on the order of ten seconds. Modern systems, with their small-diameter inflation chambers and high inflation rates, ensure that bridging is not a concern. We also infer from this comment a concern that residual and intercycle ice might be more critical than allowing a certain depth of ice to accrete before ice protection system activation. This concern is limited to booted ice protection systems.

Persistent ice accretions occur in icing conditions even when pneumatic deicing boots are operating. Whether one-quarter or one-half inch of ice is allowed to accumulate before activation, or the icing boots are activated at the first sign of ice accumulation, or they are activated at annunciation by an ice detector system and periodically afterwards, residual and intercycle ice will exist. The procedure will minimize residual and intercycle ice accretions because the ice will shed when the minimum thickness or mass required for shedding is reached. Adverse airplane flying qualities resulting from ice accretions typically are affected by the thickness, shape, texture, and location of the ice. The thickness of the residual and intercycle ice resulting from thisprocedure is less than what is typically allowed to accumulate before deicing boot operation when the manufacturer has recommended delayed activation.

The FAA has written many ADs requiring airplane operators to include in their AFM procedures to activate deicing boots at the first sign of ice accumulation. The airplane models to which these ADs were directed have many different wing and stabilizer design characteristics and different deicing boot configurations. In addition, they represent a large proportion of the airplane fleet that is equipped with pneumatic deicing boots. We have not received any reports of these airplanes suffering adverse effects of ice from early activation of the deicing boots.

In addition, a number of airplane models are equipped with deicing boot systems with automatic operating modes. These systems automatically cycle at specific time intervals after being initially activated. Such automatic cycling has certainly resulted in operation of the boots with less than the recommended thickness of ice accretion originally included in the AFMs. We have received no reports indicating any adverse effects from use of the automatic mode. Boot ice protection systems operated early and often to remove ice, including intercycle and residual ice, have performed safely and effectively. We have not changed the rule based on this comment.

BAE noted that crews operating under § 121.321(a)(3) (without ice detectors) need to activate the ice protection system in conditions conducive to icing irrespective of whether ice is actually accreting. For aircraft that do not have an automatic mode to cycle the ice protection system, the continuous manual cycling of the system would result in an increased workload for the flightcrew. Section 121.321(d)(iv) requires that, for airplanes without automatic cycling modes, procedures will be needed for a specific time interval for repeated cycling of the ice protection system. BAE said that validation of this procedure could require further icing certification testing, and that this issue had not been raised in the NPRM.

With respect to increasing workload, currently pilots have to monitor for ice. Sometimes in these conditions it may be difficult to determine whether activation of the ice protection system is needed. This final rule requires that, after initial activation of the ice protection system, the pilot periodically activate the ice protection system. To do this, the pilot only has to monitor time, not ice accretion thickness. Therefore, we do not believe there will be any significant increase in workload, and that the workload may decrease in some circumstances.

With respect to BAE's comment that validating ice protection system cycling procedures and the potential for icing certification testing was not raised in the NPRM, every airplane that uses a manual deicing system has established procedures for its operation until the airplane has exited icing conditions. Models with periodic cycling procedures should require no incremental certification testing because they already have an approved periodic cycling procedure. For airplanes in which flightcrews have in the past activated boots based on ice accretion thickness, calculating a conservative cycling interval based on Appendix C to part 25 is a relatively straightforward process. It should not require flight testing. In addition, AC 121.321-X provides guidance recommending that intervals should not exceed three minutes. Thus, we do not believe that validation of this procedure should require additional certification testing.

The NTSB expressed support for the proposed rule. However, the NTSB stated that the rule should apply to all deicing-boot-equipped airplanes currently in service. This would include airplanes weighing more than 60,000 pounds. The NTSB also suggested that the Bombardier Model DHC-8-400 series airplane (which has a MTOW of slightly more than 60,000 pounds and was involved in the Colgan Air accident) might have been better protected if this rule had been applied to it.

The FAA appreciates the NTSB's support for the proposed rule. We do not believe, however, that it is necessary to expand the rule to cover airplanes with higher weights. The IPHWG data and analysis showed that only airplanes falling below the weight level in the rule have had problems associated with delayed activation of the ice protection system.

As for the Bombardier Model DHC-8-400 series airplane, while icing conditions were present at the time of the Colgan accident, the NTSB did not find that these conditions either caused or contributed to the accident. Rather, the NTSB found that Colgan Air's inadequate procedures for airspeed selection and management during approaches in icing condition contributed to the accident. In fact, the accident airplane had an ice detector and would have been in compliance with this rule through the majority of its flight profile. Therefore, increasing the maximum applicable weight to capture the Bombardier Model DHC-8-400 series airplane would have very little, if any, safety benefit. Increasing the rule's weight applicability to encompass other airplanes of this size and larger is not justified by available data. We have not changed the rule as a result of this comment.

Another reason the NTSB suggested that the rule should encompass heavier airplanes is that it believes such procedures would also help protect these airplanes in conditions that fall outside of Appendix C to part 25. This rule does not address conditions outside of Appendix C. In supercooled large droplet (SLD) conditions (which are not included in Appendix C), ice may form aft of the ice protection system equipment. To suggest that this rule may help address the SLD issue is not correct. The most significant item to consider, however, is that data show that these heavier airplanes have not had any safety problems associated with delayed activation of the ice protection system. Therefore, the rule is not changed as a result of this comment.

The NTSB supported applying the proposed rule to airplanes operated under part 121, but stated that a similar rule should also be levied on all airplanes operated under 14 CFR parts 91 and 135. The NTSB stated that on parts 91 and 135 airplanes with ADs directing flightcrews to activate the ice protection system at the first sign of icing, it can be difficult for crews to identify icing on the airplanes. The NTSB noted that a Circuit City Citation Model 560 series airplane involved in an icing accident was operated under part 91 and had an AD for activation of deicing boots at the first sign of icing, which had been withdrawn. This left the flightcrew to observe a prescribed amount of ice before activation. The NTSB believed that similar accidents may occur if parts 91 and 135 airplanes are not included in this rule.

We considered including parts 91 and 135 operations during deliberations of the IPHWG and during drafting of the NPRM. We determined, however, that the increased flexibility afforded by unscheduled operations (the types of operations governed by parts 91 and 135), coupled with appropriate direction on when pilots should activate the ice protection systems (usually at the first sign of icing or in conditions of visible moisture and specific temperatures), provides an adequatelevel of safety for ice protection system activation. Pilots flying scheduled operations, on the other hand, may not have the flexibility to avoid flying into weather that would otherwise be avoided. This rule ensures that part 121 operators of applicable airplanes will be directed to operate the ice protection systems appropriately.

The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that the FAA consider the impact of paperwork and other information collection burdens imposed on the public. According to the 1995 amendments to the Paperwork Reduction Act (5 CFR 1320.8(b)(2)(vi)), an agency may not collect or sponsor the collection of information, nor may it impose an information collection requirement unless it displays a currently valid Office of Management and Budget (OMB) control number.

This final rule will impose the following new information collection requirements. As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), the FAA has submitted these proposed information collection amendments to OMB for its review.

This final rule requires—

a. A primary ice detection system and appropriate activation equipment and procedures to ensure timely activation of the ice protection system,

b. An advisory ice detection system plus substantiated visual cues and procedures to ensure timely activation and, if necessary, repeated operation of the ice protection system, or

c. If the airplane is not equipped to comply with either a or b above, that flightcrews activate and continuously or cyclically operate the ice protection system when in icing conditions during—

• The takeoff climb after second segment,

• En route climb,

• Holding,

• Maneuvering for approach and landing, and

• Any other operation at approach or holding airspeeds.

This rule may require operators to revise their airplane flight manuals or the manual required by § 121.133. Adding these new procedures may require the addition of a page or two to those manuals. This is classified as a record keeping item and no data will be collected.

We have received no comments about the recordkeeping burden of this rule. The OMB control number for this information collection will be published in theFederal Registerafter the Office of Management and Budget approves it.

In keeping with U.S. obligations under the Convention on International Civil Aviation, it is FAA policy to conform to International Civil Aviation Organization (ICAO) Standards and Recommended Practices to the maximum extent practicable. The FAA has determined that there are no ICAO Standards and Recommended Practices that correspond to these regulations.

Changes to Federal regulations must undergo several economic analyses. First, Executive Order 12866 directs that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354) requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (Pub. L. 96-39) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. In developing U.S. standards, this Trade Agreements Act requires agencies to consider international standards and, where appropriate, that they be the basis of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or Tribal governments, in the aggregate, or by the private sector, of $100 million or more annually (adjusted for inflation with base year of 1995). This portion of the preamble summarizes the FAA's analysis of the economic impacts of this final rule. Readers seeking greater detail should read the full regulatory evaluation, a copy of which we have placed in the docket for this rulemaking.

In conducting these analyses, FAA has determined that this final rule: (1) Has benefits that justify its costs; (2) is not an economically “significant regulatory action” as defined in section 3(f) of Executive Order 12866; (3) has been designated as a “significant regulatory action” by the Office of Management and Budget, and is therefore “significant” under DOT's Regulatory Policies and Procedures; (4) will not have a significant economic impact on a substantial number of small entities; (5) will not create unnecessary obstacles to the foreign commerce of the United States; and (6) will not impose an unfunded mandate on State, local, or Tribal governments, or on the private sector by exceeding the threshold identified above. These analyses are summarized below.

The estimated cost of this final rule is about $12.7 million in nominal dollars ($6.7 million in seven percent present value terms). The estimated potential benefits of averting one accident and five fatalities are about $22.1 million in nominal dollars ($11.4 million in seven percent present value terms). Table 1 shows these results.

On May 1, 2009, the Commission implemented changes to Parts 3 and 4 of the agency's Rules of Practice.1 After further review of these changes and other aspects of Parts 3 and 4, the Commission is making new changes to the Rules of Practice, which are discussed below. The immediate implementation of this rule without prior notice and the opportunity for public comment is appropriate because this rule is one of agency procedure and practice and therefore is exempt from notice and comment rulemaking requirements and from the 30-day publication requirement under the Administrative Procedure Act, 5 U.S.C. 553(b)(A)-(B) & (d).2

The Commission is amending Section 3.31(a) to clarify that discovery demands cannot commence before the procedure set forth in Section 3.21(c). Under Section 3.21(c), the Administrative Law Judge,

In addition, the Commission is amending Section 3.31(c) to make clear that the section's rules regarding the scope of discovery apply to all discovery under Part 3 of the Rules of Practice. The Commission also is amending language in this paragraph to make clear that the section's overall limitations on discovery in paragraph (c)(2) and the restriction on discovery of electronically stored information in paragraph (c)(3) apply to discovery aimed at third parties, in addition to the parties to the proceeding.

The Commission is amending the Standard Protective Order at Section 3.31 App. A to make the following changes:

(1) Add the missing word “information” to the first sentence of the first paragraph;

(2) more clearly define in the second paragraph the scope of the confidentiality afforded to materials submitted by respondents or third parties during an investigation or administrative proceeding by referring, in addition to confidentiality protections provided by the Federal Trade Commission Act, to protections provided by “any other federal statute or regulation” and “any federal court or Commission precedent interpreting such statute or regulation” rather than referring to “any regulation, interpretation, or precedent concerning documents in the possession of the Commission”;

(3) more clearly state in the second paragraph that the Order's confidentiality protection extends to any information that “discloses the substance of the contents of any confidential materials derived from a document subject to this Order” given that “confidential materials” is defined in the Order's first paragraph, replacing the current description of protection for “information taken from any portion of such document[s]”;

(4) add to the fifth paragraph a missing reference to “Paragraph 1”; and

(5) clarify and make consistent language in the sixth paragraph regarding documents with “masked or otherwise redacted copies of documents [that] may be produced” by replacing “deleted” where used with “masked or redacted.”

The Commission is adding a new paragraph (e) to Section 3.31A regarding materials that the parties cannot discover. This new paragraph includes language from what was the last sentence of paragraph (d), which will now state that “[a] party may not discover facts known or opinions held by an expert who has been retained or specifically employed by another party in anticipation of litigation or preparation for hearing and who is not listed as a witness for the evidentiary hearing,” and new language that is nearly identical to language recently added to Federal Rule of Civil Procedure 26(b)(4)(B) and (C), which specifically prohibits discovery of expert report drafts and, with some exceptions, communications between a party's attorney and its experts. Adding to the limitation of what was the last sentence of paragraph (d), the new language taken largely from the Federal Rules specifically provides that parties may not discover drafts of any report required by Section 3.31A, regardless of the form in which the draft is recorded. In addition, the new language prohibits parties from discovering any communications, regardless of form, between another party's attorney and any of its testifying expert witnesses, unless the communication: (1) Relates to the expert's compensation for the study or testimony; (2) identifies facts or data provided by the party's attorney and considered by the expert in forming the opinions to be expressed; or (3) identifies assumptions provided by the party's attorney and relied on by the expert in forming the opinions to be expressed.

In addition, the Commission is adding a new paragraph (f) to Section 3.31A that allows the Administrative Law Judge, upon a finding of good cause, to alter the pre-hearing schedule for expert discovery set forth in Section 3.31A, but only if such an alteration would not affect the date of the evidentiary hearing noticed in the complaint. This changeallows the Administrative Law Judge to extend the expert discovery time line if needed, including where the parties mutually seek such an alteration, but would not change the overall time line for the administrative adjudication itself.

The Commission is changing Section 3.43(b) to specifically include expert reports as admissible hearsay evidence. In addition, the Commission is adding a new requirement to this paragraph regarding the admission of “prior testimony (including expert reports) from other proceedings where either the Commission or respondent did not participate,” though this requirement would not apply to “other proceedings where the Commission and at least one respondent did participate.” Such prior testimony could often be voluminous, and in recent enforcement actions such evidence was admitted that resulted in the inclusion of excessive, unhelpful materials in the record that burdened the non-admitting party. As a result, for such material, unless the parties consent to its admission, the Administrative Law Judge must first make a finding upon the motion of the party seeking the admission of such evidence that the prior testimony would not be duplicative, would not present unnecessary hardship to a party or delay to the proceedings, and would aid in the determination of the matter. However, this requirement for “prior testimony * * * from other proceedings” does not include the Commission staff's investigational hearings involving respondent, which shall be admitted without being subject to this new limitation.3

The Commission is amending the general requirement that “[t]he live oral testimony of each witness * * * be video recorded digitally.” The Commission had added this requirement in its 2009 amendments to the Part 3 Rules “to enable the Commission, which is tasked with reviewing the recordde novo,to independently assess witness demeanor when necessary.”4 However, recent experience and cost estimates have revealed that this video requirement is expensive, and the Commission has determined that the benefits of digital video recordings to its assessment of witness testimony do not outweigh these considerable costs.

Thus, the amendment allows for video recording of all witness testimony only by direction of the Administrative Law Judge upon a motion by a party. If the Administrative Law Judge issues an order finding good cause to permit video recording of all witness testimony, the moving party shall bear the costs for such recording. The rule contemplates that the reporter officially designated by the Commission to transcribe the proceeding shall also provide the video recording services, in order to minimize delay or disruption and ensure reliability. Where the moving party is not complaint counsel, the moving party shall independently contract with and reimburse the reporter directly for such additional recording services. The moving party may retain some other person or entity to make the recordings, such as when the designated reporter is unwilling or unable to perform these additional services, only where the Administrative Law Judge issues an order setting forth good cause for such substitution and prescribing standards and procedures to ensure that the video recording will serve as a complete and accurate record of the oral testimony being recorded. The Commission's contract with its reporter sets forth rates for obtaining copies of video recordings from the reporter. When the moving party is other than complaint counsel, that party must ensure that its contract with the reporter for video recording services requires that copies of such recordings be made available at no more than the maximum rates under the FTC's own contract, unless the Administrative Law Judge has authorized a person or entity other than the Commission's reporter to make the video recordings. In the case of such an authorization by the Administrative Law Judge, the maximum rates for copies shall be either the maximum rates that the Commission's reporter is authorized to charge for such copies under its Commission contract or the actual cost of duplication, whichever is higher.

The Commission is amending the language in Sections 3.45 and 4.2 that requires parties to identify the confidential or public nature of a document filed with the Commission on the document's first page. The new language requires parties to provide this designation on every page of the document to avoid the inadvertent release of individual pages of confidential documents.

The Commission is amending language in Sections 3.52(a)(1), (a)(2) and (b)(2) that provides a deadline for holding oral argument. In these paragraphs, the rule requires the Commission to “schedule oral argument” within a prescribed amount of days after the deadline for reply briefs or objections to the initial decision, depending on which paragraph applies. To clarify that these sentences require oral arguments to be held, and not merely scheduled for some later date, within the prescribed amount of days, the Commission is replacing “schedule” with “hold” in these sentences.

In addition, the Commission is amending the beginning of these sentences, which had set aside the deadlines for oral argument where “the Commission determines there shall be no oral argument.” Because the paragraph permits the Commission to “order” that no oral argument be held, the sentence now uses “orders” in place of “determines” to make these sentences more consistent with the previous language.

The Commission is correcting the citation to the Equal Access to Justice Act in Section 3.83(i). That Section provided that “[j]udicial review of final Commission decisions on awards may be sought as provided in 5 U.S.C. 503(c)(2).” The paragraph now correctly cites to 5 U.S.C. 504(c)(2).

For the reasons set forth in the preamble, the Federal Trade Commission amends Title 16, Chapter 1, Subchapter A of the Code of Federal Regulations, parts 3 and 4, as follows:

1. Earlier in this proceeding, the Commission issued a Final Rule (Order No. 710-B) revising its financial forms, statements, and reports for natural gas companies, contained in FERC Form Nos. 2, 2-A, and 3-Q, to provide greater transparency on fuel data by requiring the reporting of functionalized fuel data on pages 521a through 521c of those forms, and to include on those forms the amount of fuel waived, discounted or reduced as part of a negotiated rate agreement.1

2. In response to the Final Rule, the Interstate Natural Gas Association of America (INGAA) filed a request for rehearing raising eleven separate objections to the Final Rule. In this order on rehearing, we generally deny rehearing and reaffirm the findings we made in Order No. 710-B. We do, however, revise the burden estimate to more accurately account for initial start-up costs, grant rehearing on the issue of whether to include page 521d and we grant filers additional time before they must begin filing Form Nos. 2, 2-A, and 3-Q in accordance with the requirements established in Order No. 710-B and this rehearing order.

3. This matter began in 2008, when the Commission issued a Final Rule (Order No. 710) revising its financial forms, statements, and reports for natural gas companies, contained inFERC Form Nos. 2, 2-A, and 3-Q, to make the information reported in these forms more useful by updating them to reflect current market and cost information relevant to interstate natural gas pipelines and their customers.2 The information provided in these forms included data on fuel use, but did not require these data to be functionally disaggregated.

4. On rehearing, the American Gas Association (AGA) argued that the fuel data would be more useful if such data were broken out by different pipeline functions, including transportation, storage, gathering, and exploration/production, and should include, by function, the amount of fuel waived, discounted or reduced as part of a negotiated rate agreement. This argument was rejected in Order No. 710-A,3 but was reconsidered in a Notice of Proposed Rulemaking issued on June 17, 2010.4 AGA supported the Commission's proposal while INGAA opposed it. After considering all the comments and reply comments, the Commission issued a Final Rule adding additional transparency to the reporting of fuel data. Specifically, the Final Rule revised FERC Form Nos. 2, 2-A, and 3-Q, revising pages 521a, 521b, and page 520, and adding page 521c to FERC Form Nos. 2, 2-A, and 3-Q to include functionalized fuel data, including the amount of fuel waived, discounted or reduced as part of a negotiated rate agreement.5

5. In response to the Final Rule, INGAA filed a request for rehearing reiterating many of the concerns that it raised earlier in the proceeding (in its comments and reply comments on the June 2010 NOPR).

6. INGAA raises eleven separate objections to the Final Rule. First, INGAA argues that Order No. 710-B erred by finding that reporting of functionalized fuel data by contract rate category does not require tracking of fuel by individual contracts. Second, INGAA argues that adding this level of detail increases the reporting burden. Third, INGAA argues that the Commission erred by not adopting its alternative proposal which it maintains would have met the Commission's needs with a lesser burden to filers. Fourth, INGAA claims that the requirement to allocate lost and unaccounted for gas (LAUF) among negotiated, discounted and recourse transportation customers ignores fundamental nature of LAUF, forcing an allocation that is meaningless. Fifth, INGAA argues that the requirement to disclose the disposition of excess gas or gas acquired to meet deficiencies by contract rate category also is meaningless. Sixth, INGAA reiterates its objection to reporting discounted rates as a separate category, claiming that disclosing this information does not serve any regulatory purpose because pipelines are prohibited from discounting. Seventh, INGAA argues that the Commission erred by not granting the clarification requested by MidAmerican6 (that the rule should only cover (1) contracts with discounted and negotiated fuel rates and (2) headings should be changed to be “discounted fuel rate” and “negotiated fuel rate”). INGAA argues this would be less burdensome but would accomplish the Commission's stated goals. Eighth, INGAA argues that the Commission erred by assuming that MidAmerican's proposal would have excluded many contracts that otherwise would be reported. Ninth, INGAA argues that the Final Rule orders the collection of data too soon and that data under the new categories should not be required to be collected until calendar year 2012. Tenth, INGAA requests clarification that “backhaul service offered under tariff” means that, if tariff does not include a “backhaul” rate schedule, then nothing need be reported for this. Finally, INGAA argues that the Commission should keep blank page 521d, which was included in the June 2010 NOPR and omitted in the Final Rule. We will now examine each of these arguments.

7. INGAA argues that Order No. 710-B erred by finding that reporting of functionalized fuel data by contract rate category does not require the tracking of fuel by individual contracts.

8. INGAA states that, in Order No. 710-B, the Commission found that the reporting of functionalized fuel data by contract rate category does not require the tracking of fuel by individual contracts. INGAA disputes this finding and argues that such tracking would be necessitated, despite the Commission's finding to the contrary. We reject this interpretation. As we stated in Order No. 710-B, at paragraph 74:

9. Thus, it can be seen that, if a pipeline has twelve gas service contracts, the Final Rule is not requiring the pipeline to report the details of each of those contracts. Instead, the Final Rule is requiring the pipeline to report the totals for fuel (for all twelve contracts) by function which can be determined on an allocation of throughput or stated fuel rate. To accomplish this, however, the pipelines would need to continue their current practice of assessing shippers for services provided to each customer.

10. INGAA argues that adding the level of detail required by the Final Rule increases the reporting burden. In light of INGAA's concerns, we have further reviewed the burden estimate contained in the Final Rule and have determined that we can improve the accuracy of our burden estimate if we distinguish between the initial start-up costs, which include all of the work needed to identify and create a mechanism to report the information required to be reported under the Final Rule, as compared to the ongoing costs of reporting the information required to be reported under the Final Rule once the reporting mechanism is in place. This revised burden estimate is shown below in the Information Collection Statement that begins at paragraph 28 of this order.

11. INGAA argues that the Commission erred by not adopting its alternative proposal which it maintains would have met the Commission'sneeds with a lesser burden to filers. The Commission addressed this issue in Order No. 710-B, where we stated:

12. INGAA's rehearing reiterates arguments it advanced earlier in this proceeding that, for the reasons quoted above, the Commission rejected in Order No. 710-B. We reaffirm those findings and reject INGAA's proposal.

13. INGAA argues that Order No. 710-B suggests that fuel consumed in compressor stations, LAUF and fuel used in operations, which are all drawn from a commingled and fungible gas stream, can be traced back to individual shipper contracts. INGAA further argues that the requirement to allocate LAUF among negotiated, discounted and recourse transportation customers ignores fundamental nature of LAUF, forcing an allocation that is meaningless. INGAA also argues that, except in some limited and unique circumstances, such tracing is impractical, if not impossible.10

14. The reporting requirements established in the Final Rule do not require fuel use to be traced back to individual shipper contracts.11 The information reported on pages 521a and 521b—even before issuance of the Final Rule—already included a requirement for pipelines to report monthly fuel use by Dth. The Final Rule added the requirement for pipelines (on lines 1-65 on pages 521a and 521b) to allocate these totals among discounted rates, negotiated rates, and recourse rates. The Final Rule did not impose a requirement that these allocations be made based on a review of individual contracts. One reasonable approach would be to take the total volume of throughput and allocate it among the three contract categories (i.e.,contracts with discounted rates, contracts with negotiated rates, and contracts with recourse rates) based on the percentage of gas transported for each contract type, which is already known and available to a pipeline for invoicing shippers on a monthly basis. For example, if, hypothetically, a pipeline has a monthly transportation volume of 1000 Dth and 5 percent of its volume is associated with contracts with discounted rates, 10 percent is associated with negotiated rates contracts, and 85 percent associated with recourse rate contracts, then the pipeline could develop an allocation of fuel used at compressor stations, LAUF, and gas used in operations based on a ratio of the throughput. Such an allocation could be used for all the various allocations needed to complete pages 521a and 521b. Thus, it is evident that we are notrequiringpipelines to assess individual contracts to make this allocation.

15. In addition, while admittedly imperfect, allocating costs by function is a standard practice for pipelines for numerous cost categories. The allocation of fuel consumed in compressor stations, LAUF and fuel used in operations, and among negotiated, discounted and recourse transportation customers are a few, among many, of such cost allocations. The allocation of costs is a standard practice for pipeline companies to bill their customers for services rendered. The fact that such allocations are not 100 percent precise does not negate the necessity for such allocations being made. Pipelines collect fuel (including LAUF) from customers and the Final Rule requires the reporting of how that fuel is assigned.

16. INGAA's position is that the allocation of fuel costs required by this rule is “meaningless” given the nature of LAUF as gas that is lost and unaccounted for.12 We disagree. In our view, allowing customers to see exactly how fuel costs are assigned to various customers groups is important because it allows customers to assure themselves that the fuel costs being assigned to them are reasonable and do not cross-subsidize other customer groups. Thus, we find that making such allocations transparent is extremely meaningful.

17. INGAA raises the same objections to the reporting of the disposition of excess gas or the reporting of gas acquired to meet deficiencies that it raised regarding the reporting of the allocation of fuel used in compressor stations, LAUF, and fuel used in operations. Specifically, INGAA argues that,

18. As discussed above in paragraph 14, the allocations required by the Final Rule do not require an analysis of individual contracts. Moreover, while the allocations required by this rule may not be precise, few allocations are, and these allocations are routinely made for customer billing purposes.

19. The information reported in lines 38-65 would be useful in determiningamong which classes of shippers over and under recoveries of fuel are occurring (i.e.,recourse, negotiated, or discounted customers). For example, recourse rate shippers could provide more fuel than necessary and negotiated rate shippers could have a capped fuel rate such that recourse shippers may be subsidizing negotiated rate shippers. The recourse rate shippers should be in a position to fully understand whether over recovered fuel for recourse rate contracts is being used to make up a deficiency of fuel for negotiated rate contracts. Similarly, shippers should be aware to the extent a pipeline is purchasing gas associated with a fuel deficiency attributable to negotiated rate contracts. Additionally, while generally more applicable to pipelines with stated fuel rates, shippers should be in a position to know whether the disposition of excess fuel is being sold or if the gas is used for imbalances such that pipelines are recovering the cost through periodic imbalance cashout reports. We find that reporting this information provides useful transparency regarding the amount of fuel used to operate compressor stations, the disposition of excess gas and how the deficiency was acquired, and how fuel costs and LAUF are allocated among customers. Consequently, we deny rehearing of this issue.

20. INGAA reiterates its objection to reporting fuel assigned to discounted rates as a separate category, claiming that disclosing this information does not serve any regulatory purpose, because pipelines are prohibited from discounting fuel. Fuel expenses constitute a significant portion of the total expenses recovered by natural gas rates. Obscuring this information makes it harder for entities to track the reasonableness of these expenses. Contrary to INGAA's arguments, pipelines are not prohibited from discounting fuel under all circumstances.14 In addition, the additional transparency provided by this Final Rule serves the important regulatory objective of assuring that rates are just and reasonable. If a pipeline is not discounting fuel then it should simply report zero in Column (K), Volume (in Dth) Not Collected. This approach provides an affirmative confirmation that fuel is not being discounted. Combining the discount rate category with negotiated rates would eliminate this confirmation. Consequently, we will retain the separate discount rate category.

21. Additionally, based on its contention that there is no cross-subsidy in instances where a negotiated rate customer pays the same fuel rate as a recourse rate customer, INGAA argues that there is no need to separate the reporting of recourse and negotiated rate contracts. The Commission has long required pipelines to separately account for rate components associated with negotiated rates.15 We are not persuaded to modify that policy in this rule. Moreover, while INGAA points to certain circumstances where it argues that no cross-subsidy would occur, the reporting requirements of this rule apply to all negotiated rate contracts and thus INGAA's example does not suffice to contradict the need for this provision.

22. INGAA argues that the Commission erred by not granting the clarification requested by MidAmerican (that the rule should only cover (1) Contracts with discounted and negotiated fuel rates and (2) headings should be changed to be “discounted fuel rate” and “negotiated fuel rate”). INGAA argues this approach would be less burdensome but would accomplish the Commission's stated goals.

23. As we stated in Order No. 710-B,16 the proposal to limit the scope of the rule to only require the reporting of fuel costs in contracts that include a specific provision for discounted or negotiated fuel would elevate form over substance and would omit contracts with negotiated and discounted rates, unless they include a specific provision covering discounted or negotiated fuel. This is contrary to the objective of the Final Rule of enhancing the transparency of fuel costs and we deny rehearing. Also, given our finding on the required reporting of gas contracts with discounted or negotiated fuel, we affirm our finding on the appropriate headings to be used.17

24. INGAA argues that the Commission erred by assuming that MidAmerican's proposal would have excluded many contracts that otherwise would be reported. As we stated in Order No. 710-B, MidAmerican commented that, to its knowledge, very few discounted and negotiated rate agreements include a provision for discounted and negotiated fuel.18 We concluded that, if this were true or if future contracts are written to make it true, then excluding the reporting of contracts not including a specific provision identifying discounted and negotiated fuel would be problematic.19 INGAA argues that we erred in relying on MidAmerican's statement, but in no way rebuts it. Moreover, we were concerned that, even if contracts are not currently drafted in this fashion, future contracts could be rewritten to achieve this end and we do not wish to open this possibility. Accordingly, we deny INGAA's request for rehearing on this issue.

25. INGAA argues that the Final Rule orders the collection of data to begin too soon and that data under the new categories should not be required to be collected until calendar year 2012. We agree with INGAA that pipelines may not have the accounting systems in place to make the allocations of functionalized fuel by contract rate type required by the Final Rule and they may need to develop systems for making such allocations. We recognize some pipelines may not currently have in place the required accounting systems necessary to allocate fuel costs to negotiated, discounted and recourse transportation customers. In light of these considerations, we will grant rehearing and further delay the commencement of implementation of the filing requirements of the Final Rule until the fourth quarter period (“Q4”) of 2011. Thus, the data must be reported in the new format starting with the quarterly period October 1 through December 31, 2011 in Annual Report Forms 2 and 2-A with a due date of April 18, 2012. This should allow sufficient time for filers to develop the necessary data and perform the needed allocations. Individual pipeline companies may apply to the Commission for further extensions, based on their individual circumstances. Even if an extension is granted, the information will still berequired to be reported for the Q4 period of 2011 but, if an extension is granted, the due date for the filing of this information may be extended past the April 18, 2012 filing deadline. Pipeline companies seeking an extension must provide a detailed explanation of why (for example, an additional analysis of data is needed, or allocation factors are still being developed) they cannot meet the filing deadline. The Commission will evaluate these requests on a case-by-case basis, based on the facts presented.

26. INGAA requests clarification that “backhaul service offered under tariff” means that, if the tariff does not include a “backhaul” rate schedule, then nothing need be reported for this.20 A review of gas tariffs shows that many tariffs recover a charge for backhaul service, but do not necessarily provide for a separate backhaul rate schedule for that service. In many instances, the forwardhaul tariff permits backhaul service at or below the forwardhaul rate, with no separate backhaul rate schedule.21 If we exclude these backhaul volumes, then total backhaul volumes would be understated for these transactions. Thus, we reject the argument that information on backhauls should be limited to those instances when the tariff includes a separate backhaul rate schedule. INGAA's requested clarification would keep needed information hidden and could encourage tariffs to be drafted in a manner to avoid the reporting of this information. We note that the discussion in Order No. 710-B at paragraph 52 was addressing the narrow instances, such as with reticulated gas systems, where it is not possible to clearly determine what is a backhaul and what is a forwardhaul. We did not intend this to restrict the reporting of backhauls in systems where the gas flow path can be determined. Put differently, if the pipeline is unable to determine whether the volume is forwardhaul or backhaul, then the volume can be reported entirely as forwardhaul. Accordingly, we affirm the findings we made on this subject at paragraphs 50-52 of Order No. 710-B and deny the requested clarification.

27. Finally, INGAA argues that the Commission should retain the blank page 521d that we proposed in the June 2010 NOPR but omitted in Order No. 710-B. This omission was an oversight and we agree with INGAA that a filer would need this page to properly complete the Forms. Thus, we will correct this oversight and will include page 521d on the various forms.22 We, likewise, are including pages 521a-d in the FERC Form Nos. 2/2-A/3-Q Submission Software System.

28. The Office of Management and Budget's (OMB) regulations require approval of certain information collection requirements imposed by agency rules.23 Previously, the Commission submitted to OMB the information collection requirements arising from Order No. 710-B and OMB approved those requirements.24 In this order, the Commission is making no substantive changes to the content of the forms and the information that is required to be submitted. However, by adding in blank page 521d and re-estimating the reporting burden arising from Order No. 710-B, the Commission finds it necessary to make a formal submission to OMB for review and approval under section 3507(d) of the Paperwork Reduction Act of 1995.25

29. This order affects the following existing data collections:

Title:FERC Form No. 2, “Annual Report for Major Natural Gas Companies”; FERC Form No. 2-A, “Annual Report for Nonmajor Natural Gas Companies.

Action:Proposed information collection.

OMB Control Nos.1902-0028 (FERC Form No. 2); 1902-0030 (FERC Form No. 2-A).

Respondents:Businesses or other for profit.

Frequency of responses:Annually (FERC Form Nos. 2 and 2-A).

Necessity of the information:The information maintained and collected under the requirements of 18 CFR 260.1 and 18 CFR 260.2 is essential to the Commission's oversight duties. The data previously reported in the forms did not provide sufficient information to the Commission and the public to permit an evaluation of the filers' jurisdictional rates. Since the triennial restatement of rates requirement was abolished and pipelines are no longer required to submit this information, the need for current and relevant data is greater than in the past.

30. Without the information required in Order No. 710-B, it is difficult for the Commission and the public to perform an assessment of pipeline costs, and thereby help to ensure that rates are just and reasonable. Order No. 710-B accounts for the possibility that multiple pipelines may be required to develop and implement new procedures in order to provide the data in the revised forms. In any event, we believe the additional information required in Order No. 710-B will allow the Commission and form users to better analyze pipeline fuel costs, an important component in assessing the justness and reasonableness of pipelines' rates.

Burden Statement:As indicated in the above discussion, INGAA contends that the Commission underestimated the burden associated with implementing the changes mandated in Order No. 710-B. In light of INGAA's arguments, the Commission acknowledges that some filers may have to modify existing systems in order to collect the necessary data. To account for this, the Commission estimates a one-time burden of 80 hours per filer. This will increase the burden as follows:

InformationCollection Costs: 10,240 hours at $120/hour= $1,228,800.

31.Internal Review:The Commission has reviewed the proposed changes and has determined that the changes are necessary. These requirements conform to the Commission's need for efficient information collection, communication, and management within the energy industry. The Commission has assured itself, by means of internal review, that there is specific, objective support associated with the information requirements.

32. Interested persons may obtain information on the reporting requirements by contacting: Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426 [Attention: Ellen Brown, Office of the Executive Director, e-mail:DataClearance@ferc.gov,phone (202) 502-8663, fax: (202) 273-0873]. For submitting comments concerning the collections of information and the associated burden estimates, please submit comments to FERC in this Docket No. and to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street, NW., Washington, DC 20503 [Attention: Desk Officer for the Federal Energy Regulatory Commission, phone: (202) 395-4638, fax: (202) 395-7285]. Due to security concerns, comments should be sent electronically to the following e-mail address:oira_submission@omb.eop.gov.Please refer to OMB Control Nos. 1902-0028 (FERC Form No. 2), and 1902-0030 (FERC Form No. 2-A), and the docket number of this Final Rule in your submission.

33. The Regulatory Flexibility Act of 1980 (RFA)27 generally requires a description and analysis of final rules that will have significant economic impact on a substantial number of small entities.28 However, the RFA does not define “significant” or “substantial.” Instead, the RFA leaves it up to an agency to determine the effect of its regulations on small entities.

34. In Order No. 710-B the Commission certified that the additional reporting requirements would not have a significant economic impact on a substantial number of small entities.29 With the understanding that a one-time burden has now been added, the Commission affirms that the certification provided in Order No. 710-B remains accurate and no further justification is needed under the RFA.

The Commission orders:

(A) INGAA's request for rehearing is hereby denied in part and granted in part, as discussed in the body of this order.

(B) This order shall be published in theFederal Register.

This document amends the Procedure and Administration Regulations (26 CFR part 301) by adding rules relating to the suspension of interest, penalties, additions to tax, or additional amounts under section 6404(g). Section 6404(g) was added to the Code by section 3305 of the Internal Revenue Service Restructuring and Reform Act of 1998, Public Law 105-206 (112 Stat. 685, 743) (RRA 98), effective for taxable years ending after July 22, 1998. Section 6404(g) was amended by section 903(c) of the American Jobs Creation Act of 2004, Public Law 108-357 (118 Stat. 1418, 1652) (AJCA), enacted on October 22, 2004, and by section 303 of the Gulf Opportunity Zone Act of 2005, Public Law 109-135 (119 Stat. 2577, 2608-09) (GOZA), enacted on December 21, 2005. Section 8242 of the Small Business and Work Opportunity Tax Act of 2007, Public Law 110-28 (121 Stat. 190, 200), extended the eighteen-month period within which the IRS can, without suspension of interest, contact a taxpayer regarding possible adjustments to the taxpayer's liability to thirty-six months, effective for notices provided after November 25, 2007.

On June 21, 2007, the Treasury Department and the IRS published in theFederal Registera notice of proposed rulemaking and notice of public hearing (REG-149036-04), 2007-34 IRB 411 (72 FR 34199), corrected at (72 FR 41045) (July 26, 2007), under section 6404(g). The proposed regulations provided guidance regarding the suspension of interest, penalties, additions to tax, or additional amounts under section 6404(g). No comments were received in response to the notice of proposed rulemaking and no public hearing was requested or held. Therefore, the proposed regulations are adopted as amended by this Treasury decision. The revisions are discussed in this preamble.

On June 21, 2007, the Treasury Department and the IRS also published a separate set of temporary regulations (TD 9333), 2007-33 IRB 350 (72 FR 34176), corrected at 72 FR 41022, and a notice of proposed rulemaking by cross-reference to temporary regulations (REG-149036-04), 2007-33 IRB 365 (72 FR 34204), corrected at 72 FR 41045, under section 6404(g) concerning the suspension of interest, penalties, additions to tax, or additional amounts with respect to listed transactions or undisclosed reportable transactions. Those temporary and proposed regulations are not the subject of this Treasury decision, and were published as final regulations on June 16, 2010 (TD 9488), 2010-28 IRB 51 (75 FR 33992).

The final regulations include new § 301.6404-4(a)(5) to address the matters that were the subject of Notice 2007-93. In general, section 6404(g) provides that if an individual taxpayer files a Federal income tax return on or before the due date for that return (including extensions), and if the IRS does not timely provide a notice to that taxpayer specifically stating the taxpayer's liability and the basis for that liability, then the IRS must suspend any interest, penalty, addition to tax, or additional amount with respect to any failure relating to the return that is computed by reference to the period of time the failure continues and that is properly allocable to the suspension period. A notice is timely if provided before the close of the 18-month period (36-month period, in the case of notices provided after November 25, 2007, subject to the provisions of § 301.6404-4(a)(5)) beginning on the later of the date on which the return is filed or the due date of the return without regard to extensions. The suspension period begins on the day after the close of the 18-month period (or 36-month period) and ends 21 days after the IRS provides the notice. This suspension rule applies separately with respect to each item or adjustment.

Notice 2007-93 set forth a special rule for notices under section 6404(g)(1) that (i) are provided by the IRS on or after November 26, 2007, and (ii) relate to individual Federal income tax returns that were timely filed before that date. Under the special rule:

1. If, as of November 25, 2007, the 18-month notification deadline had passed and the IRS had not provided notice to the taxpayer, the suspension described in section 6404(g)(1)(A) would begin on the day after the close of the 18-month period. The suspension would end 21 days after the date on which the notice was provided.

2. In all other cases, the suspension would begin on the day after the close of the 36-month notification period described in section 6404(g)(1)(A) and end 21 days after the date on which the notice was provided.

The final regulations incorporate substantially without change the special rule of Notice 2007-93 at § 301.6404-4(a)(5).

In addition, § 301.6404-4(b)(2) was revised to remove the reference to section 6501(c)(1) and the meaning of fraud, as fraud is not defined in section 6501(c)(1) but is instead generally described under case law and other guidance. Thus, fraud for purposes of § 301.6404-4(b)(2) has the same meaning as that provided in case law and other guidance.

Finally, minor editorial changes were made to clarify the terms of section 6404(g) and to modify a reference to official IRS forms.

The following publication is obsolete as of August 22, 2011:

Notice 2007-93 (2007-48 IRB 1072).

It has been determined that this Treasury decision is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It has also been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations, and because these regulations do not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply.

Pursuant to section 7805(f) of the Code, the notice of proposed rulemaking preceding these regulations was submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.

The principal author of these regulations is Nathan Rosen of the Office of Associate Chief Counsel (Procedure and Administration).

Accordingly, 26 CFR part 301 is amended 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 the Coast Guard did not receive the application for this event in sufficient time to allow for publication of an NPRM, and any delay encountered in this regulation's effective date by publishing a NPRM would require either the cancellation of the event, or require that the event be held without a safety zone. Either course of action would be contrary to public interest since immediate action is needed to provide for the safety of life and property on navigable waters. Additionally, delaying the effective date would be contrary to the public interest since immediate action is needed to ensure the safety of the event participants, patrol vessels, spectator craft and other vessels transiting the event area. The potential dangers posed by drag boat racing, operating in speeds excess of 150 miles per hour, make special local regulations necessary. However, the Coast Guard will provide advance notifications to users of the effected waterways via marine information broadcasts, local notice to mariners, commercial radio stations and area newspapers. In addition, publishing an NPRM is unnecessary because this event is an annual event which mariners should be aware of taking place, as it has been published in theFederal Registersince 2009. The Coast Guard has never received any comments regarding this event.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in theFederal Register. Delaying the effective date would be contrary to the public interest since immediate action is needed to ensure the safety of the event participants, patrol vessels, spectator craft and other vessels transiting the event area. The potential dangers posed by drag boat racing, operating in speeds excess of 150 miles per hour, make special local regulations necessary. However, the Coast Guard will provide advance notifications to users of the effected waterways via marine information broadcasts, local notice to mariners, commercial radio stations and area newspapers. In addition, publishing an NPRM is unnecessary because this event is an annual event which mariners should be aware of taking place, as it has been published in theFederal Registersince 2009. The Coast Guard has never received any comments regarding this event.

The Mattaponi Volunteer Rescue Squad will be sponsoring a series of power boat racing events titled the “Mattaponi Madness Drag Boat Event.” The power boat races will be held on the following date: August 27, 2011, and in the case of inclement weather, the event will be rescheduled to August 28, 2011. The races will be held on the Mattaponi River immediately adjacent to the Rainbow Acres Campground in King and Queen County, Virginia. The power boat races will consist of approximately 45 vessels conducting high speed straight line runs along the river and parallel to the shoreline. A fleet of spectator vessels is expected to gather near the event site to view the competition. To provide for the safety of participants, spectators and other transiting vessels, the Coast Guard will temporarily restrict vessel traffic in the event area during the power boat races.

During this enforcement period, vessels may not enter the regulated area unless they receive permission from the Coast Guard Patrol Commander.

The Coast Guard is establishing special local regulations on specified waters of the Mattaponi River, in the vicinity of Wakema, Virginia. The regulated area includes all waters of Mattaponi River immediately adjacent to Rainbow Acres Campground in King and Queen County, Virginia. The regulated area includes a section of the Mattaponi River approximately three-fourths of a mile long and bounded in width by each shoreline, bounded to the east by a line that runs parallel along longitude 076°52′43″ W, near the mouth of Mitchell Hill Creek, and bounded to the west by a line that runs parallel along longitude 076°53′41″ W just north of Wakema, Virginia. The effect of this regulation would be to restrict general navigation in the regulated area during the drag boat races. This special local regulation will be enforced from 11 a.m. to 6 p.m. on August 27, 2011; and in the case of inclement weather, this special local regulation will be enforced from 11 a.m. to 6 p.m. on August 28, 2011. Except for persons or vessels authorized by the Coast Guard Patrol Commander, no person or vessel may enter or remain in the regulated area. Non-participating vessels will be allowed to transit the regulated area between races, when the Coast Guard Patrol Commander determines it is safe to do so. This regulation is needed to control vessel traffic during the event to enhance the safety of participants, spectators and transiting vessels.

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

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

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. Although this rule prevents traffic from transiting a portion of certain waterways during specified events, the effect of this regulation will not be significant due to the limited duration that the regulated area will be in effect and the extensive advance notifications that will be made to the maritime community via marine information broadcasts, local radio stations and area newspapers so mariners can adjust their plans.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

The rule would affect the following entities, some of which might be small entities: the owners or operators of vessels intending to transit or anchor in this section of Mattaponi River during the event from 11 a.m. to 6 p.m. on August 27 or from 11 a.m. to 6 p.m. on August 28, 2011.

Although this regulation prevents traffic from transiting a portion of Mattaponi River during the event, this rule would not have a significant economic impact on a substantial number of small entities for the following reasons. This rule would be in effect for only a limited period. Vessel traffic will be able to transit the regulated area between heats if the Coast Guard Patrol Commander deems it is safe to do so. Before the enforcement period, the Coast Guard will issue maritime advisories so mariners can adjust their plans accordingly.

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

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

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

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

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

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

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

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

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

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

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

The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards aretechnical 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)(h), of the Instruction. This rule involves implementation of regulations within 33 CFR part 100 that apply to organized marine events on the navigable waters of the United States that may have potential for negative impact on the safety or other interest of waterway users and shore side activities in the event area. The category of water activities includes but is not limited to sail boat regattas, boat parades, power boat racing, swimming events, crew racing, and sail board racing. Under figure 2-1, paragraph (34)(h), of the Instruction, 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 100 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 doing so would be impracticable and contrary to the public interest. Notice was not received in sufficient time for the Coast Guard to solicit public comments before the start of the event. Thus, waiting for a notice and comment period to run would be impracticable and contrary to the public interest because it would inhibit the Coast Guard's ability to protect the public from the hazardsassociated with this Coast Guard exercise.

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, waiting for the 30 day notice period to run rule would be impracticable and contrary to the public interest of ensuring the safety of spectators and vessels during this event and immediate action is necessary to prevent possible loss of life or property.

On August 23, 2011, an exercise will be conducted by the Coast Guard along with local facilities and response organizations.

This safety zone is necessary to ensure the safety of the public from the hazards associated with the Coast Guard Exercise. The exercise will occur between 8 a.m. and 3 p.m. on August 23, 2011. This rule will be in effect and the safety zone will be enforced from 8 a.m. to 3 p.m. on August 23, 2011.

The safety zone will begin at Ambassador Bridge to the western tip of Belle Isle and encompass all U.S. waters of the Detroit River starting at position 42°18′45″ N, 083°04′28″ W; to position 42°19′59″ N, 083°00′18″ W. All geographic coordinates are North American Datum of 1983 [NAD 83].

All persons and vessels shall comply with the instructions of the Captain of the Port Detroit or his designated on scene representative. Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Detroit or his designated on scene representative. The Captain of the Port Detroit or his designated on scene representative may be contacted via VHF Channel 21.

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

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

We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary. This determination is based on the short time that vessels will be restricted from the area of water impacted by the safety zone. Under certain conditions, moreover, vessels may still transit through the safety zone when permitted by the Captain of the Port. 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 during the short time this zone will be in effect, 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 or legal policy issue.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

This rule will affect the following entities, some of which may be small entities: the owners and operators of vessels intending to transit or anchor in a portion of the Detroit River between Ambassador bridge and the western tip of Belle Isle, between 8 a.m. and 3 p.m. on August 23, 2011.

This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: This rule will only be in effect and enforced for seven hours on one day. Vessels may also request permission from the Captain of the Port Detroit to transit through the safety zone. The Coast Guard will give notice to the public via a Broadcast Notice to Mariners that the regulation is in effect, allowing vessel owners and operators to plan accordingly.

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

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

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

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

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or Tribal government, in the aggregate, or by the private sector of $100,000,000 (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, tominimize 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 which will only be effective temporarily and is therefore categorically excluded under paragraph 34(g) of the Instruction.

A final environmental analysis checklist and a categorical exclusion determination are available in the docket where indicated underADDRESSES.

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

The Coast Guard will enforce the safety zone; 33 CFR 165.933-Chicago Harbor, Navy Pier East, Chicago, IL for the following events:

(1)Chicago Match Race;on August 12, 2011 from 8 a.m. through 8 p.m.; on August 13, 2011 from 8 a.m. through 8 p.m.; on August 14, 2011 from 8 a.m. through 8 p.m.; on September 28, 2011 from 8 a.m. through 8 p.m.; on September 29, 2011 from 8 a.m. through 8 p.m.; on September 30, 2011 from 8 a.m. through 8 p.m.; and on October 1, 2011 from 8 a.m. through 8 p.m.

All vessels must obtain permission from the Captain of the Port, Sector Lake Michigan, or his or her on-scene representative to enter, move within or exit the safety zone. Vessels and persons granted permission to enter the safety zone shall obey all lawful orders or directions of the Captain of the Port, 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 165.933 Safety Zone, Chicago Harbor, Navy Pier East, Chicago IL 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 doing so would be impracticable and contrary to the public interest. Notice was not received in sufficient time for the Coast Guard to solicit public comments before the start of the event. Thus, waiting for a notice and comment period to run would be impracticable and contrary to the public interest because it would inhibit the Coast Guard's ability to protect the public from the hazards associated with this Coast Guard exercise.

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, waiting for the 30-day notice period to run would be impracticable and contrary to the public interest because immediate action is necessary to prevent possible loss of life or property.

On August 21, 2011, a non-permitted public event has been advertised over various social-media sites in which a large number of persons may float down a segment of the St. Clair River using inner tubes and other similar floatation devices. This event took place in 2009/2010, though it did not receive a state or Federal permit, it drew in over 5,000 participants. Despite the plan put together by the Federal, state and local officials, emergency responders and LE officials were overwhelmed with medical emergencies, people drifting across the international border, and people trespassing on residential property when trying to get out of the water before the designated finish line. Promotional information for the event continues to be published, and more than 5,000 people are anticipated to float down the river this year.

Based on the amount of public participation and safety concerns identified in 2009 and 2010, the Captain of the Port Detroit has determined thatthe 2011 float-down poses significant risks to public safety and property. The likely combination of large numbers of participants, strong river currents, limited rescue resources, and difficult emergency response scenarios could easily result in serious injuries or fatalities to float-down participants and spectators. Establishing a safety zone to control movement at the location of the float-down will help ensure the safety of persons and property and minimize the associated risks.

This safety zone is necessary to ensure the safety of spectators, vessels, and the public from the hazards associated with the Port Huron Float Down. The 2011 float-down event will occur between about 1 and 5 p.m. on August 21, 2011. This rule will be in effect and the safety zone will be enforced from 12 to 8 p.m. on August 21, 2011.

The safety zone will begin at Lighthouse Beach and encompass all U.S. waters of the St. Clair River bound by a line starting at a point on land north of Coast Guard Station Port Huron at position 43°00′25″ N; 082°25′20″ W, extending east to the international boundary to a point at position 43°00′25″ N; 082°25′02″ W, following south along the international boundary to a point at position 42°54′30″ N; 082°27′41″ W, extending west to a point on land (just north of Stag Island) at position 42°54′30″ N; 082°27′58″ W, and following north along the U.S. shoreline to the point of origin. All geographic coordinates are North American Datum of 1983 [NAD 83].

All persons and vessels shall comply with the instructions of the Captain of the Port Detroit or his designated on scene representative. Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Detroit or his designated on scene representative. The Captain of the Port Detroit or his designated on scene representative may be contacted via VHF Channel 21.

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

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

We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary. This determination is based on the short time that vessels will be restricted from the area of water impacted by the safety zone.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

This rule will affect the following entities, some of which may be small entities: the owners and operators of vessels intending to transit or anchor in a portion of the St. Clair River near Port Huron, MI between 12 p.m. and 8 p.m. on August 21, 2011.

This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: this rule will only be in effect and enforced for eight hours on one day. Vessels may request permission from the Captain of the Port Detroit to transit through the safety zone. The Coast Guard will give notice to the public via a Broadcast Notice to Mariners that the regulation is in effect, allowing vessel owners and operators to plan accordingly.

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 (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 which will only be effective temporarily and is therefore categorically excluded under paragraph 34(g) of the Instruction.

A final environmental analysis checklist and a categorical exclusion determination are available in the docket where indicated underADDRESSES.

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

This document corrects minor technical errors included in the final regulations which were published in theFederal Registeron October 28, 2009 (74 FR 55626).

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

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

Accordingly, 34 CFR part 668 is corrected by making the following correcting amendments:

This document amends 38 CFR part 17 to conform certain sections with statutory amendments made by sections 511 through 513 of the Caregivers and Veterans Omnibus Health Services Act of 2010 (the Act), Public Law 163-111. Sections 512 and 513 of the Act amended statutory provisions affecting the enrollment of veterans in the VA health care system. VA's enrollment regulation, 38 CFR 17.36, must be revised accordingly.

First, section 512 of the Act amended 38 U.S.C. 1705(a)(3) to add “veterans who were awarded the [M]edal of [H]onor under [10 U.S.C.] 3741, 6241 or 8741 or [14 U.S.C.] 491” to the list of veterans included in enrollment priority category three. Accordingly, we have revised 38 CFR 17.36(b)(3), our regulation implementing enrollment priority category three, consistent with the amendment of section 1705 .

Second, section 513 of the Act amended 38 U.S.C. 1710(e) to prescribe August 2, 1990, through November 11, 1998, as the specific period of time for enrollment eligibility based on active duty service in the Southwest Asia theater of operations during the Gulf War. Consistent with the statutory amendment, we are amending § 17.36(a)(3) and (b)(6) to include those specific dates.

Third, section 511 of the Act amended title 38, United States Code (U.S.C.), to add section 1730A, which reads as follows: “Notwithstanding subsections (f) and (g) of [38 U.S.C. 1710 and 1722A(a)] or any other provision of law, the Secretary may not require a veteran who is catastrophically disabled, as defined by the Secretary, to make any copayment for the receipt of hospital care or medical services under the laws administered by the Secretary.” In current 38 CFR 17.108(d), VA exempts 10 classes of veterans from the copayment requirements for inpatient hospital care or outpatient medical care. In current 38 CFR 17.110(c), we exempt 8 classes of veterans from copayment requirements for medication. Finally, in current 38 CFR 17.111(f), we exempt 7 classes of veterans from payment requirements for extended care services. Consistent with section 1730A, we are amending each of these regulations to add the new exemption for catastrophically disabled veterans.

Regarding the copayment exemption for extended care services, we note that under section 1730A, VA may exempt copayments for extended care services that are considered hospital care or medical services. In 38 U.S.C. 1701(6)(E), Congress defined “medical services” as including“[n]oninstitutional extended care services, including alternatives to institutional extended care that the Secretary may furnish directly, by contract, or through provision of case management by another provider or payer.” VA has long defined “noninstitutional” as “a service that does not include an overnight stay.” We assume that Congress was aware of these definitions and intended that we would interpret section 1730A consistent with them. Accordingly, we interpret section 1730A as exempting catastrophically disabled veterans from copayments charged for adult day health care, non-institutional geriatric evaluation, and non-institutional respite care, as described in current 38 CFR 17.111. These are the only extended care services listed in § 17.111 that do not require an overnight stay. Copayments for all other extended care services still apply (including Nursing Home Care).

We note that VA provides a number of additional extended care services not listed in current 38 CFR 17.111. These services include, homemaker/home health aide, purchased skilled home care, home based primary care, and any other noninstitutional alternative extended care services. Despite not being listed under current § 17.111, the copayment exemption will apply to these services because VA considers them “medical services” under the definition in section 1701(6)(E). Catastrophically disabled veterans will be exempt from copayments for such services under new § 17.108(d)(11).

Current § 17.36(e) defines “catastrophically disabled” to mean “a permanent severely disabling injury, disorder, or disease that compromises the ability to carry out the activities of daily living to such a degree that the individual requires personal or mechanical assistance to leave home or bed or requires constant supervision to avoid physical harm to self or others.” This is the only definition of the term in VA's medical regulations. Although § 17.36(e) applies to enrollment, in section 1730A, Congress prescribed the exemptions for any catastrophically disabled veteran, “as defined by the Secretary.” We interpret section 1730A as requiring application of VA's current regulation defining the term. We note that there is no legislative history suggesting that Congress intended a different definition of the term for purposes of copayment exemptions. Rather, it is reasonable to conclude that Congress intended to liberalize the benefits for certain veterans enrolled by VA under § 17.36(e). Thus, consistent with our interpretation of section 1730A, we have explicitly incorporated the current definition of “catastrophically disabled” in 38 CFR 17.108(d)(11).

This final rule incorporates statutory provisions or interprets those provisions. Therefore, in accordance with 5 U.S.C. 553(b)(A), the provisions of the Administrative Procedure Act (APA) regarding notice of proposed rulemaking and opportunities for public participation are not applicable. Further, pursuant to section 553(d)(2), this final rule is exempt from the APA's 30-day delayed effective date requirement.

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 Executive Order classifies a regulatory action as a “significant regulatory action,” requiring review by the Office of Management and Budget (OMB) unless OMB waives such review, if it is a regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or state, local, or Tribal governments or communities; (2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

The economic, interagency, budgetary, legal, and policy implications of this final rule have been examined and it has been determined not to be a significant regulatory action under Executive Order 12866.

The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in expenditure by state, local, or Tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any given year. This final rule would have no such effect on state, local, or Tribal governments, or on the private sector.

This final rule does not contain any collections of information under the Paperwork Reduction Act (44 U.S.C. 3501-3520).

The Secretary hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. This rule will not cause a significant economic impact on health care providers, suppliers, or entities since only a small portion of the business of such entities concerns VA beneficiaries. Therefore, pursuant to 5 U.S.C. 605(b), this rule is exempt from the initial and final regulatory flexibility analysis requirements of §§ 603 and 604.

The Catalog of Federal Domestic Assistance numbers and titles are 64.009 Veterans Medical Care Benefits, 64.010 Veterans Nursing Home Care, and 64.011 Veterans Dental Care.

The Secretary of Veterans Affairs, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. John R. Gingrich, Chief of Staff, Department of Veterans Affairs, approved this document on July 6, 2011, for publication.

For the reasons stated in the preamble, the Department of VeteransAffairs amends 38 CFR part 17 as follows:

Under current 38 CFR 51.210(d), VA pays per diem to a State for providing nursing home care to eligible veterans in a State home if, among other things, all non-veteran residents of the home are spouses of veterans or parents of veterans all of whose children died while serving in the Armed Forces of the United States. In Public Law 111-246, Congress mandated that VA administer § 51.210(d) to permit a State home to provide services to “a non-veteran any of whose children died while serving in the Armed Forces.” This final rule implements Public Law 111-246 by amending § 51.210(d) to incorporate the language mandated by Congress. As amended, § 51.210(d) allows States to admit parents, “any” of whose children died while serving in the Armed Forces, to State homes without affecting VA per diem payments to States for care provided to veterans.

Title 38, Code of Federal Regulations, as revised by this final rule, represents VA's implementation of its exclusive legal authority on this subject. Other than future amendments to this regulation or governing statute or public law, no contrary rules or procedures are authorized. All existing or subsequent VA guidance must be read to conform with this rulemaking if possible or, if not possible, such guidance is superseded by this rulemaking.

These amendments incorporate a specific program requirement mandated by Congress. Accordingly, this rule is exempt from the prior notice-and-comment and delayed-effective-date requirements of 5 U.S.C. 553.

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 Executive Order classifies a regulatory action as a “significant regulatory action,” requiring review by the Office of Management and Budget (OMB) unless OMB waives such review, if it is a regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities; (2) create a serious inconsistency or otherwise interfere with an action taken orplanned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

The economic, interagency, budgetary, legal, and policy implications of this final rule have been examined and it has been determined not to be a significant regulatory action under Executive Order 12866.

The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in expenditure by State, local, or Tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any given year. This final rule would have no such effect on State, local, or Tribal governments, or on the private sector.

This document contains no provisions constituting a collection of information under the Paperwork Reduction Act (44 U.S.C. 3501-3520).

The initial and final regulatory flexibility analyses requirements of section 603 and 604 of the Regulatory Flexibility Act, 5 U.S.C. 601-612, are not applicable to this rule because a notice of proposed rulemaking is not required for this rule. Even so, the Secretary of Veterans Affairs hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act. The State homes referenced in this final rule are State government entities under the control of State governments. All State homes are owned, operated and managed by State governments except for a small number that are operated by entities under contract with State governments. These contractors are not small entities. Therefore, this final rule is also exempt, pursuant to 5 U.S.C. 605(b), from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.

The Catalog of Federal Domestic Assistance numbers and titles are 64.005, Grants to States for Construction of State Home Facilities; 64.009, Veterans Medical Care Benefits; 64.010, Veterans Nursing Home Care; 64.015, Veterans State Nursing Home Care; 64.018, Sharing Specialized Medical Resources; 64.019.

The Secretary of Veterans Affairs, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of theFederal Registerfor publication electronically as an official document of the Department of Veterans Affairs. John R. Gingrich, Chief of Staff, Department of Veterans Affairs, approved this document on July 7, 2011, for publication.

For the reasons stated in the preamble, VA amends 38 CFR part 51 as follows:

Throughout this document, whenever “we,” “us,” or “our” is used, we mean EPA. On September 27, 2010, the Commonwealth of Virginia Department of Environmental Quality (VADEQ) submitted a revision to its SIP, including technical corrections and revisions to the definition of acogeneration unit to ensure the Commonwealth's CAIR trading program is consistent with Federal CAIR requirements.

EPA approved Virginia's CAIR trading program on December 28, 2007 (72 FR 73602). In the notice of proposed rulemaking (NPR) for Virginia's CAIR trading program (72 FR 54385, September 25, 2007), EPA noted that it believed that Virginia clearly intended to replace the CAIR Federal Implementation Plan (FIP) with a State plan based on the CAIR model rule that would allow subject sources to participate in the EPA-administered regional CAIR trading program. However, EPA also noted that there were some provisions of Virginia CAIR regulations 9 VAC 5 Chapter 140, Parts II, III, and IV that could be interpreted in a way that might be inconsistent with the Commonwealth's intent. EPA determined that VADEQ's interpretations of these provisions, provided in its letter dated September 12, 2007, clarified the language of the Virginia regulations and were consistent with having the EPA-administered CAIR trading program become effective in Virginia. However EPA recommended, and VADEQ agreed to, promulgation of clarifying amendments to these provisions at the Commonwealth of Virginia's earliest opportunity.

Also, in a rulemaking dated October 19, 2007 (72 FR 59190), EPA changed the definition of “cogeneration unit” in CAIR, the CAIR model cap and trade rule, and the CAIR FIP with respect to the calculation methodology for the efficiency standard of a cogeneration unit, therefore Virginia was required to modify its CAIR SIP to be consistent with the revised Federal definition.

On September 27, 2010, VADEQ submitted a SIP revision that amended Virginia's CAIR regulations. The SIP revision incorporates the clarifying revisions specified in the September 25, 2007 NPR proposing approval of Virginia's CAIR regulations and the changes to the definition of “cogeneration unit” made in EPA's revised CAIR rulemaking dated October 19, 2007. On May 26, 2011 (76 FR 30600), the NPR was published for public comment. Other specific requirements and the rationale for EPA's proposed action are explained in the NPR and will not be restated here. No public comments were received on the NPR.

In 1995, Virginia adopted legislation that provides, subject to certain conditions, for an environmental assessment (audit) “privilege” for voluntary compliance evaluations performed by a regulated entity. The legislation further addresses the relative burden of proof for parties either asserting the privilege or seeking disclosure of documents for which the privilege is claimed. Virginia's legislation also provides, subject to certain conditions, for a penalty waiver for violations of environmental laws when a regulated entity discovers such violations pursuant to a voluntary compliance evaluation and voluntarily discloses such violations to the Commonwealth and takes prompt and appropriate measures to remedy the violations. Virginia's Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-1198, provides a privilege that protects from disclosure documents and information about the content of those documents that are the product of a voluntary environmental assessment. The Privilege Law does not extend to documents or information (1) That are generated or developed before the commencement of a voluntary environmental assessment; (2) that are prepared independently of the assessment process; (3) that demonstrate a clear, imminent and substantial danger to the public health or environment; or (4) that are required by law.

On January 12, 1998, the Commonwealth of Virginia Office of the Attorney General provided a legal opinion that states that the Privilege law, Va. Code Sec. 10.1-1198, precludes granting a privilege to documents and information “required by law,” including documents and information Arequired by Federal law to maintain program delegation, authorization or approval,” since Virginia must “enforce Federally authorized environmental programs in a manner that is no less stringent than their Federal counterparts * * * .” The opinion concludes that “[r]egarding § 10.1-1198, therefore, documents or other information needed for civil or criminal enforcement under one of these programs could not be privileged because such documents and information are essential to pursuing enforcement in a manner required by Federal law to maintain program delegation, authorization or approval.”

Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that “[t]o the extent consistent with requirements imposed by Federal law,” any person making a voluntary disclosure of information to a state agency regarding a violation of an environmental statute, regulation, permit, or administrative order is granted immunity from administrative or civil penalty. The Attorney General's January 12, 1998 opinion states that the quoted language renders this statute inapplicable to enforcement of any Federally authorized programs, since “no immunity could be afforded from administrative, civil, or criminal penalties because granting such immunity would not be consistent with Federal law, which is one of the criteria for immunity.”

Therefore, EPA has determined that Virginia's Privilege and Immunity statutes will not preclude the Commonwealth from enforcing its program consistent with the Federal requirements. In any event, because EPA has also determined that a state audit privilege and immunity law can affect only state enforcement and cannot have any impact on Federal enforcement authorities, EPA may at any time invoke its authority under the CAA, including, for example, sections 113, 167, 205, 211 or 213, to enforce the requirements or prohibitions of the state plan, independently of any state enforcement effort. In addition, citizen enforcement under section 304 of the CAA is likewise unaffected by this, or any, state audit privilege or immunity law.

EPA is approving the Virginia CAIR revisions submitted on September 27, 2010 as a revision to the Virginia SIP. The revisions are consistent with CAIR requirements.

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

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 21, 2011. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action approving revisions to Virginia's CAIR trading program may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR part 52 is amended as follows:

The SIP is a living document which the State revises as necessary to address its unique air pollution problems. Therefore, EPA, from time to time, must take action on SIP revisions containing new and/or revised regulations as being part of the SIP. On May 22, 1997 (62 FR 27968), EPA revised the procedures for incorporating by reference Federally-approved SIPs, as a result of consultations between EPA and the Office of the Federal Register (OFR). The description of the revised SIP document, IBR procedures and “Identification of plan” format are discussed in further detail in the May 22, 1997Federal Registerdocument. On November 1, 2004 (69 FR 69304), EPA published a document in theFederal Registerbeginning the new IBR procedure for Maryland. On February 2, 2006 (71 FR 5607), May 18, 2007 (72 FR 27957), March 11, 2008 (73 FR 12895), and March 19, 2009 (74 FR 11647), EPA published updates to the IBR material for Maryland.

Since the publication of the last IBR update, EPA has approved the following regulatory changes to the following Maryland regulations:

1. COMAR 26.11.10 (Control of Iron and Steel Production Installations), regulation .05—1 (Control of Carbon Monoxide Emissions from Basic Oxygen Furnaces).

2. COMAR 26.11.19 (Volatile Organic Compounds from Specific Processes), regulations .09-1 (Control of VOC Emissions from Industrial Solvent Cleaning Operations Other Than Cold and Vapor Degreasing), .10-1 (Flexible Packaging Printing), and .33 (Control of Volatile Organic Compounds (VOCs) from Flat wood Paneling Coatings).

3. COMAR 26.11.28 (Clean Air Interstate Rule)—all regulations (.01 through .08).

1. COMAR 26.11.01.01 (General Administrative Provisions—Definitions), section .01B(17) (definition of “fuel burning equipment”).

2. COMAR 26.11.09 (Control of Fuel Burning Equipment, Stationary Internal Combustion Engines, and Certain Fuel-Burning Installations), regulation .01B (removal of the definition of “fuel burning equipment”).

3. COMAR 26.11.19 (Volatile Organic Compounds from Specific Processes), regulations .06 (Large Appliance Coating), .07 (Paper, Fabric, Film, Foil, Vinyl, and Other Plastic Parts Coating), and .10 (Flexographic and Rotogravure Printing).

COMAR 26.11.10 (Control of Iron and Steel Production Installations), Regulation .06[2] (Carbon Monoxide).

In this action, EPA is doing the following:

Announcing the update to the IBR material as of August 1, 2011.

1. Removing the entry for COMAR 26.11.10.06[1], and replacing it with an entry for COMAR 26.11.10.06.

2. Correcting a typographical error in the title heading entry for COMAR 26.11.09.

3. Correcting typographical errors in the “Title/subject” column for the following entries: COMAR 26.11.19.07, 26.11.19.07-1, 26.11.19.09, 26.11.19.24, 26.11.29.11, and 11.14.08.22.

4. Correcting the date format in the “State effective date” column for the following entries: COMAR 26.11.24.04, and all 26 entries in COMAR 26.11.32.

5. Correcting the text in the “Additional explanation/citation at 40 CFR 52.1100” column for COMAR 26.11.01.01, 26.11.09.01, 26.11.19.10, and 26.11.29.09.

Correcting the date in the “State effective date” column for the entry “Potomac Electric Power Company (PEPCO)—Chalk Point Units #1 and #2.”

Correcting the date format for the following entries:

1. Carbon Monoxide Maintenance Plan—City of Baltimore—Regional Planning District 118 (“EPA approval date” column).

2. Carbon Monoxide Maintenance Plan—Montgomery County Election Districts 4, 7, and 13; Prince Georges County Election Districts 2, 6, 12, 16, 17, and 18 (“EPA approval date” column).

3. 1-hour Ozone Attainment Plan—Washington DC 1-hour ozone nonattainment area (“State effective date” column); and,

4. 8-Hour Ozone Maintenance Plan for the Kent and Queen Anne's Area (“State effective date” column).

EPA has determined that today's rule falls under the “good cause” exemption in section 553(b)(3)(B) of the Administrative Procedures Act (APA) which, upon finding “good cause,” authorizes agencies to dispense with public participation and section 553(d)(3) which allows an agency to make a rule effective immediately (thereby avoiding the 30-day delayed effective date otherwise provided for in the APA). Today's rule simply codifies provisions which are already in effect as a matter of law in Federal and approved State programs. Under section 553 of the APA, an agency may find good cause where procedures are “impractical, unnecessary, or contrary to the public interest.” Public comment is “unnecessary” and “contrary to the public interest” since the codification only reflects existing law. Immediate notice in the CFR benefits the public by removing outdated citations and incorrect table entries.

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

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

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

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

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

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

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

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

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

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

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

The Congressional Review Act, 5 U.S.C. 801et seq.,as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this 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 rule is not a “major rule” as defined by 5 U.S.C. 804(2).

EPA has also determined that the provisions of section 307(b)(1) of the CAA pertaining to petitions for judicial review are not applicable to this action. Prior EPA rulemaking actions for each individual component of the Maryland SIP compilations had previously afforded interested parties the opportunity to file a petition for judicial review in the United States Court of Appeals for the appropriate circuit within 60 days of such rulemaking action. Thus, EPA sees no need in this action to reopen the 60-day period for filing such petitions for judicial review for this “Identification of plan” update action for Maryland.

40 CFR part 52 is amended as follows:

On June 10, 2011 (76 FR 34021), EPA published a notice of proposed rulemaking (NPR) for the Commonwealth of Pennsylvania. The NPR proposed approval for the control of NOXemissions from glass melting furnaces. The formal SIP revision was submitted by the Pennsylvania Department of the Environmental Protection (PADEP) on July 23, 2010.

The SIP revision adds definitions and terms to Title 25 of the Pennsylvania Code (25 Pa. Code) Chapter 121.1, relating to definitions, used in the substantive provision of this SIP revision. In addition, the SIP revision adds a new regulation pertaining to the NOXemission standards in 25 Pa. Code Chapter 129 (Standard of Sources) sections 129.301 through 129.310 (Control of NOXEmissions from Glass Melting Furnaces). The new regulation applies to an owner or operator of a glass melting furnace that emits or has the potential to emit NOXat a rate greater than 50 tons per year in the Commonwealth of Pennsylvania, including the local air pollution control agencies in Philadelphia and Allegheny Counties. The new regulation consists of the following: (1) New definitions and terms; (2) exemptions that the emission requirements do not apply during periods of start-up, shutdown or idling, if the owner or operator complies with the start-up, shutdown and idling requirements; (3) emission requirements which provide the owner or operator of a glass melting furnace to determine allowable NOXemissions by multiplying the tons of glass pulled by each furnace; (4) start-up requirements where the start-up exemption identifies the control technologies or strategies to be used to minimize emissions; (5) shutdown requirements where the duration as measured from the time the furnace operation drops below 25 percent of the permitted production capacity or fuel use capacity to when all emissions from the furnace cease, will not exceed 20 days; (6) idling requirements that provide the owner or operator operate the emission control system whenever technologically feasible during idling to minimize emissions; (7) compliance determination by installing, operating and maintaining continuous emissions monitoring systems (CEMS); (8) compliance demonstration on a furnace-by-furnace basis, facility-wide emissions averaging basis, or a system-wide emissions averaging basis among glass melting furnaces; and (9) reporting and recordkeeping requirements where the owner or operator calculates and reports the CEMS data and glass production data used to show compliance with the allowable NOXemissions limitations on a quarterly basis no later than 30 days after the end of the quarter.

Other specific requirements for the control of NOXemissions from glass melting furnaces and the rationale for EPA's proposed action are explained in the NPR and will not be restated here. No public comments were received on the NPR.

EPA is approving 25 Pa. Code Chapter 121.1, relating to definitions used in the substantive provision of this SIP revision and the new regulation pertaining to the NOXstandards in 25 Pa. Code Chapter 129 (Standards for Sources)—Control of NOXEmissions from Glass Melting Furnaces (sections 129.301 through 129.310) as revisions to the Pennsylvania SIP.

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

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 21, 2011. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action.

This action, pertaining to Pennsylvania's control of NOXemissions from glass melting furnaces may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR part 52 is amended as follows:

Regulations governing the spiny dogfish fishery are found at 50 CFR part 648, subpart L. The regulations require annual specification of a commercial quota, which is allocated into two quota periods based upon percentages specified in the fishery management plan. The fishery is managed from Maine through Florida, as described in § 648.230.

The initial total commercial quota for spiny dogfish for the 2011 fishing year is 20 million lb (9,071.85 mt) (76 FR 32874, June 7, 2011). The commercial quota is allocated into two periods (May 1 through October 31, and November 1 through April 30). Vessel possession limits are set at 3,000 lb (1.36 mt) per trip for both Quota Periods 1 and 2. Quota Period 1 is allocated 11,580,000 lb (5,252.6 mt), and Quota Period 2 is allocated 8,420,000 lb (3,819.25 mt) of the commercial quota. The total quota cannot be exceeded, so landings in excess of the amount allocated to Period 1 have the effect of reducing the quota available to the fishery during Period 2.

The Administrator, Northeast Region, NMFS (Regional Administrator), monitors the commercial spiny dogfish quota for each quota period and, based upon dealer reports, state data, and other available information, determines when the total commercial quota will be harvested. NMFS is required to publish a notification in theFederal Registeradvising and notifying commercial vessels and dealer permit holders that, effective upon a specific date, the Federal spiny dogfish commercial quota has been harvested and no Federal commercial quota is available for landing spiny dogfish for the remainder of that quota period.

Section 648.4(b) provides that Federal spiny dogfish permit holders agree, as a condition of the permit, not to land spiny dogfish in any state after NMFS has published notification in theFederal Registerthat the commercial quota has been harvested and that no commercial quota for the spiny dogfish fishery is available. Therefore, effective 0001 hr local time, August 26, 2011, landings of spiny dogfish in coastal states from Maine through Florida by vessels holding commercial Federal fisheries permits will be prohibited through October 31, 2011, 2400 hr local time. The 2011 Period 2 quota will be available for commercial spiny dogfish harvest on November 1, 2011. Effective August 26, 2011, federally permitted dealers are also advised that they may not purchase spiny dogfish from vessels issued Federal spiny dogfish permits that land in coastal states from Maine through Florida.

This action is required by 50 CFR part 648 and is exempt from review under Executive Order 12866.

The Assistant Administrator for Fisheries, NOAA (AA), finds good cause pursuant to 5 U.S.C. 553(b)(B) to waive prior notice and the opportunity for public comment because it would be contrary to the public interest. This action closes the spiny dogfish fishery until November 1, 2011, under current regulations. The regulations at § 648.231 require such action to ensure that spiny dogfish vessels do not exceed the 2011 Period 1 quota. Data indicating the spiny dogfish fleet will have landed the 2011 Period 1 quota have only recently become available. If implementation of this closure is delayed to solicit prior public comment, the quota for Period 1 will be exceeded, thereby undermining the conservation objectives of the FMP. The AA further finds, pursuant to 5 U.S.C. 553(d)(3), good cause to waive the 30-day delayed effectiveness period for the reasons stated above.