FSA published a proposed rule on May 15, 2006, (71 FR 27978-27980) proposing to amend regulations governing fees on loans made in the Guaranteed Loan Program.

As specified in 7 CFR part 762, FSA provides guaranteed loans to eligible lenders (for example banks, Farm Credit System institutions, credit unions) with a guarantee of up to 95 percent of the loss of principal and interest on a loan in certain cases. Farmers and ranchers apply to an agricultural lender, who then applies for the guarantee. The FSA guarantee permits lenders to make agricultural credit available to farmers who do not meet the lender's normal underwriting standards.

FSA guaranteed loans may be made for farm ownership, conservation, and operating purposes. Guaranteed farm ownership loans (FO) generally may be made to purchase farmland, construct or repair buildings and other fixtures, develop farmland to promote soil and water conservation, or refinance debt. Guaranteed operating loans (OL) generally may be used to purchase livestock, farm equipment, pay for minor improvements to buildings, costs associated with land and water development, annual operating expenses, family living expenses, and to refinance debts under certain conditions. Guaranteed conservation loans (CL) may be made to implement conservation projects deemed necessary by a farmer's Natural Resources Conservation Service conservation plan. On May 13, 2011, aFederal Registernotice (76 FR 27986) announced that FSA is no longer accepting direct or guaranteed loan applications for CL Program due to a lack of funding. A notice will be published in theFederal Registerannouncing the date FSA will resume accepting direct and guaranteed loan applications for the CL Program if funding becomes available.

The authority for FSA to set the amount of the fee is through several laws. The Consolidated Farm and Rural Development Act (CONTACT) section 307(b) (7 U.S.C. 1927) authorizes fees on farm ownership loans. As specified in the CONACT, the fees are to be set at an amount as “the Secretary may require.” For the OL and CL Program, Title V of the Independent Offices Appropriations Act of 1952 (31 U.S.C. 9701) authorizes fees be prescribed for services or things of value to individuals or businesses provided by the Government.

FSA currently charges a one-time guarantee fee of 1 percent (1.0%) on guaranteed loans at the time of loan origination as specified in 7 CFR 762.130. FSA does not charge continuation fees for annual renewal of lines of credit (LOC) type OLs, loan servicing, or restructuring actions.

In the proposed rule, FSA proposed increasing the existing one-time guarantee fee from 1 percent to 1.5 percent and adding a new annual continuation fee of 0.75 percent for advances on LOCs. This rule will change the regulation for the one-time guarantee fee from a fixed rate of 1 percent to a calculated rate that will initially be set at 1.5 percent on October 1, 2011. The fee schedule with this new rate will be available athttp://www.fsa.usda.gov/Internet/FSA_File/loanschartoct11.pdfand at any FSA office and is subject to future necessary revisions.

The increase to 1.5 percent is required now because as proposed in the 2012 budget FSA will have less authority to fund guaranteed loans. Based on the proposed 2012 budget, the fee will need to be increased to 1.5 percent for FO, OL, and CL guarantees. FSA expects future budgets will result in occasional small increases in the future, but does not expect that routine annual increases would be required.

The assumptions used in the President's Fiscal Year (FY) 2012 Budget proposal included “Upfront fees” of 1.5 percent in calculating the subsidy costs for FO, OL, and CL guarantees. In addition, the 2012 budgetproposes a substantially lower budget authority for the Guaranteed Loan Program. Without the increase in the guarantee fee, there will be no budget authority to make any guaranteed FOs and very little budget authority to make guaranteed OLs.

The budget process for FSA loans is governed by the Federal Credit Reform Act (Credit Reform) of 1990. Credit Reform changed the way the costs of direct loans and loan guarantees are accounted for in the Federal Budget, placing the costs of credit programs on a budgetary basis equivalent to other Federal spending. These costs, referred to as subsidy costs, are developed based on criteria published in the Office of Management and Budget (OMB) Circular No. A-11, “Preparation, Submission, and Execution of the Budget.” Annual appropriations for the FSA Guaranteed Loan Program are based on these subsidy costs, not the actual principal of the loans guaranteed, and are recorded as budget authority.

In summary, the subsidy cost represents the cost to the Government for each dollar guaranteed and this is the amount of “budget authority” appropriated to the agency. For example, if the subsidy cost is $0.03 for each dollar guaranteed, the subsidy rate is 3 percent. The total principal amount that can be guaranteed by FSA in a fiscal year, referred to as “program authority,” is determined by dividing the budget authority by the subsidy rate (program authority = budget authority ÷ subsidy rate). FSA program authority is reduced if there is a decrease in budget authority, without a corresponding decrease in subsidy rate, or an increase in subsidy rate, without a corresponding increase in budget authority. Expenses such as employee salaries, office leases and supplies, and software development are excluded from the program's budget authority.

As discussed below in the discussion of comments, FSA reconsidered the proposed annual continuation fee of 0.75 percent for a LOC included in the proposed rule and is not implementing that proposed new continuation fee.

FSA received 619 comments on the proposed rule from individuals, employees, and the District of Columbia.

The following provides a summary of the issues raised in the comments to the proposed rule and our responses, including changes we are making to the regulations in response to the comments.

An overwhelming majority of the comments received opposed the rule change. Although most comments were specific about either the proposed fee increase or the new annual fee, other comments responded to the proposed rule in general.

The majority of the comments opposed adding an annual 0.75 percent fee to LOCs as an excessive and cumbersome fee to collect on an annual basis. FSA has taken into consideration the requirements of the budget and the burden this administrative fee will have on LOCs, and is not adding the proposed 0.75 percent annual continuation fee. For guaranteed LOCs the guarantee fee would still be due in the first year, but farmers would have access to funding in future years without any additional fee cost. Because FSA will not change the regulation regarding the LOC annual fee, the detailed discussion of comments and responses below focuses on the comments that include the proposed increase in the existing guarantee fee.

Several commenters supported the rule change suggesting that a guarantee fee of 1.5 percent would be manageable for FO, OL, and LOC. Several commenters supported the change noting that the costs of the guaranteed program have increased since the inception of the current pricing schedule in the early 1980s, and did not dispute increasing the fee to 1.5 percent on both term loans and lines of credit. The supporters believe the fee increase will not materially affect the borrower's cashflow because the 0.5 percent increase will be amortized over the term of the operating and farm ownership loans. Supporters indicated it would be better to charge a one-time fee rather than the annual continuation fee, even if the one-time fee was higher than the 1.5 percent.

Below are summarized issues raised in the comments FSA received regarding the guarantee fees:

Comment:Fees associated with the guarantee program may add from $1 to $7,000 to the cost of originating a loan, and in many cases may be the difference between a positive and negative cashflow. Increasing existing fees for operating and ownership loans up to the proposed 1.5 percent level would hurt a large number of producers.

Response:The 0.5 percent increase will have a greater impact on borrowers of LOCs and term OLs. For LOCs, the fee change has the greatest effect because the entire fee is paid by the farmer during the initial year of the loan; however, no additional fees will be charged in subsequent years when loan funds are readvanced. For term OLs, the fee increase has a lesser effect than with LOCs on the repayment requirements because the maximum term for these loans is 7 years, which limits the period over which the fee can be amortized. The impact on farmers receiving FO loans should be less significant. These are long term loans and amortization of the fee should have a minimal effect on cashflow. Based on a maximum loan of $1,119,000, the increase in the fee would be an additional $5,036 ($1,119,000 × 90 percent typical guarantee × 0.5 percent increase in fee) that could be amortized over the life of the loan. In FY 2010 the average fee was $2,544. If the fee on those loans were 1.5 percent, the average fee would have been $3,816. If the difference between the two fees is amortized over 7 years, at an interest rate of 5 percent, it would be an additional $220 annually. However, beginning farmers and socially disadvantaged (those who have been historically underserved) farmers who participate in the Downpayment Loan Program, along with borrowers who participate in the FSA Interest Assistance Program or a State Beginning Farmer Program and those direct FSA borrowers who are refinancing their direct loans will continue to have the one-time guarantee fee waived as provided in 7 CFR 762.130(d)(4)(iii)(C). In FY 2010, 13 percent of all guaranteed loans approved were not charged a fee under this regulation.

Comment:The proposed changes are burdensome on rural America. It is doubtful that FSA would cashflow with an additional 0.5 percent increase in guarantee fees. Therefore, the fee should stay as it is. While it is understood that the cost of doing business is increasing for everyone (including the Federal Government), proposing to increase costs targeting this segment of our population is unwise and ill-advised.

Response:The increase in the guarantee fee is not tied to expenses such as employees' salaries, office leases and supplies, and software development. The increase in the fee is necessary to insure that the guaranteed program has the funding necessary to implement the program and provide guarantee services to approved farm lenders. It is not to mitigate the above mentioned administrative expenses. Over the years, the cost of implementing the Guaranteed Loan Program has stayed relatively constant, which is attributed to the successful performance of the guaranteed lenders.

Comment:Instead of the proposed fee changes, change the guarantee fee to a 2 percent to 2.5 percent fee upfront.

Response:Based on the anticipated FY 2012 budget, the fee increase of 0.5 percent is the most appropriate increase at this time. This allows for a balancebetween increased cost to the borrower and funds available. As noted above, the fee schedule is available athttp://www.fsa.usda.gov/Internet/FSA_File/loanschartoct11.pdfand at any FSA office and may change in the future as needed.

Comment:Apply the proposed change only to new guarantees, not existing ones.

Response:There will be no changes to the existing loan guarantees. The guarantee fee change will take effect on October 1, 2011. For loans obligated before October 1, 2011, the existing 1 percent fee will be charged. Loans obligated after October 1, 2011, will pay the new 1.5 percent fee.

Comment:The proposed fee increase will make it harder for farmers to stay profitable, or ultimately survive. Increasing the fee on guaranteed loans only enhances the probability of default as fees would rise in excess of 350 percent on top of fees that are not being paid by other farmers. As an example, a five-year, $100,000 guaranteed LOC would now cost the operator an additional $3,500 (an extra 0.50 percent in 1 year + 0.75 percent for the remaining four years).

Response:As discussed above, FSA is not implementing the proposed 0.75 percent fee on annual advances for line of credits as presented in the proposed rule. Therefore in the above example ($100,000 loan) the guarantee fee would increase only by $450 ($100,000 loan × 0.90 typical guarantee × 0.005 increase in fee).

Comment:Without the new fee increases, many farmers could survive. However, with the fee increases, it may be the end of the road for many of these producers as they also face weather disasters and higher fuel and fertilizer expenses. With the economic crisis that producers are suffering, the last thing that they need is another expense.

Response:FSA is committed to providing the resources necessary to meet the challenges of rising operating expenses. FSA is aware of the unforeseen weather factors and the current state of the economy. FSA offers relief through loan servicing options and disaster or emergency loan assistance in the event weather conditions or other unforeseen circumstances prevent the borrower from meeting their financial obligations. FSA is dedicated to providing guaranteed credit to as many farmers as possible.

Comment:With higher fees, many farmers are not likely to meet the required loan terms to even qualify for the guaranteed loans. This puts more pressure on the direct loan program funding, which has had budget cuts over the years.

Response:FSA is limited by budgetary constraints and the increase in the guarantee fee is necessary to continue the program. Based on the average fee charged on loans closed in FY 2010, the proposed increase in the fee would equate to an additional $1,272 or $220 annually for a 7 year loan at 5 percent interest. Some operators with minimal cash flow margins will be unable to obtain guaranteed credit and may have to rely on the FSA direct loan program.

Comment:The proposed fee increase is an added expense to farmers and producers that they in turn cannot pass on to someone else.

Response:The guarantee fee is charged to and collected from the lender; however, FSA does allow the fee to be passed on to the borrower and, in practice, the fee is almost always passed on to the borrower and amortized in the loan. While this does increase the borrower's loan payments, budgetary constraints will not allow FSA to guarantee loans without the fee increase. FSA is not implementing the annual continuation fee that had been previously proposed.

Comment:USDA and FSA are taking advantage of a group of producers that do not have other options available to them.

Response:Some operators with minimal cash flow margins will be unable to obtain guaranteed credit. These operators would have the option and opportunity to apply for an FSA direct loan. However, to be able to continue to provide guaranteed credit to those farmers who do qualify for a guaranteed loan, FSA must increase the guarantee fee.

Comment:The fees would directly impact the most vulnerable farmers, namely, those who cannot qualify for receiving commercial loans. These farmers would be the least able to pay the new and higher fees. The result would be that these less credit-worthy farmers would have a very difficult time graduating to commercial credit, assuming they would even be able to remain in business in the first place.

Response:The guarantee fee is waived for loans involving interest assistance, loans where a majority of the funds are used to refinance an Agency direct loan (graduation), loans to beginning or socially disadvantaged farmers involved in the direct Downpayment Loan Program, and loans made through a qualified State Beginning Farmer Program per 7 CFR 762.130(d)(4)(iii)(c).

Comment:It is not fair for FSA to increase guaranteed loan fees as it would negatively impact the borrower's farming operation. FSA can generate additional revenues through some other means than increasing the cost of credit for the family farmers. FSA should find alternative ways to cut costs such as a reduction in staff. By increasing fees, FSA will be losing what presence it has with agricultural lenders not to mention the agriculture borrower.

Response:FSA's source to fund guaranteed loans is the subsidy provided by the budget, which takes into account payments made by the government to the public and payments made to the government by the public. Any savings recognized because of cuts in other areas would not alleviate the anticipated budget constraints within the funding levels of the guaranteed loan program. A reduction in FSA administrative costs, such as salaries, has no impact on the budget authority for loan funds. FSA budget for administrative costs is separate from the budget for funding the guaranteed loan program.

Comment:Increasing loan fees on the FSA guaranteed loan program is inconsistent with the goals of the program, which is to help those farmers and ranchers who could qualify for commercial credit if they had some additional support.

Response:The goal of the guaranteed loan program is to help farmers. By increasing the guarantee fee by only 0.5 percent, FSA will maintain the level of funds available to those farmers who could not qualify for commercial credit without a guaranteed loan. FSA is committed to serving the agriculture credit needs of all eligible farmers and ranchers. The fees charged will be lower than other government loan guarantee programs.

Comment:If the program becomes fee based, FSA would have to increase fees each year in order to provide the same level of funding. Without annual appropriations to support the guaranteed loan program, future fees could range widely from year to year.

Response:Guarantee fees could vary year to year however historically the cost of the guaranteed program has not varied greatly from year to year. FSA anticipates the guarantee fee will vary, but we believe it will not vary widely from year to year.

Comment:FSA should not have the authority to change fees in the future without formal promulgation of a change to theCode of Federal Regulations.

Response:The proposed rule provided that the level of fees charged for a guaranteed loan may change in the future without promulgation of a rule toamend the guaranteed loan regulations. To accurately predict future fee requirements would not be possible, and the change in the fees may be required quickly after the adoption of a budget; therefore, FSA will not publish the fee amount in the regulations and will not change the fee through rulemaking. The guarantee fee will be posted on the FSA Web site athttp://www.fsa.usda.gov/Internet/FSA_File/loanschartoct11.pdfand available at any FSA office. The guarantee fee will be adjusted when needed based on the budget authority for the fiscal year.

Comment:The Farm Credit System is required by law to provide financial services to young, beginning, and small farmers. Through the use of FSA guarantees, the Farm Credit System is able to provide financing to farmers that might not otherwise be assisted. To the extent the fee increases lessen participation in the Guaranteed Loan Program; the mission of the Farm Credit System is inhibited.

Response:Both FSA and the Farm Credit System are mutually committed to providing agriculture credit to the nation's farmers and ranchers. FSA does not believe the mission of the Farm Credit System will be inhibited by the increase in the guarantee fee. FSA believes that by implementing only the guarantee fee increase, the impact on a few farmers will be minimal when compared to the alternative of a reduction in available funds for all eligible farmers.

Comment:The fees will be a disincentive to attracting new banks into the FSA Guaranteed Loan Program. A number of banks will likely stop using the program and FSA will probably not find support for this fee increase in the banking industry. Fewer farmers and lenders using the program could cause the demise of the program.

Response:FSA believes that only a small percentage of lenders and farmers will choose not to participate, and will not have a significant impact on the sustainability of the program. The Guaranteed Loan Program offers risk management portfolio exposure to lenders. Many lenders value this aspect of the program, and will continue to use our program. Budget constraints will not allow FSA to operate at its current level without the guarantee fee increase.

Comment:The Small Business Administration (SBA) programs have experienced fewer banks and fewer rural customers using the program since increasing their fee structure.

Response:SBA makes direct business loans and guarantees loans to small businesses, as well as loans to victims of natural disasters. SBA also works to get government procurement contracts for small businesses and assists business owners with management and technical assistance and business training. In addition to loans for small business owners, SBA is authorized to provide loans for agriculturally related industries. Many of the customers that work with SBA are different from those customers that work with FSA. Both agencies charge guaranteed loan fees for participation in their programs, which can be passed on to the borrower. However, the fees charged by SBA are much higher than those that would be charged by FSA based on this rule. In both cases, the fees can be financed into the loan and amortized over the life of the loan resulting in minimal costs per year.

Comment:Offer a discount for the Preferred Lender Program (PLP).

Response:PLP was developed to recognize experienced lenders, who have demonstrated expertise in, and understanding of, agricultural lending and the FSA Guaranteed Farm Loan Program. PLP is beneficial to both lenders and FSA. The streamlined loan making and servicing processes in 7 CFR part 762 allow lenders to reduce administrative costs and provide a quick turnaround time and a higher level of service to their customers. These incentives are sufficient. PLP lenders must pay the loan origination fee just like the Standard Eligible Lenders (SEL) and Certified Loan Program (CLP) lenders. We are not making any change in response to this suggestion.

Since the publication of the proposed rule, there have been several Farm Loan Programs rule changes, and a few of those that implemented provisions of the Food, Conservation, and Energy Act of 2008(Pub. L. 110-246, referred to as “the 2008 Farm Bill”) require conforming changes in this rule.

The current regulation specifies several guaranteed loan transactions that are not charged the guarantee fee, one of these is loans to farmers involved in the Direct Downpayment Program (see 7 CFR 762.130(d)(4)(iii)(C)). At the time the exemption was established, the exemption was for loans to beginning farmers involved in the Direct Beginning Farmer Downpayment Program. On December 8, 2008, a final rule published in theFederal Register(73 FR 74343-74346) implemented provisions of the 2008 Farm Bill required for socially disadvantaged and beginning farmers. The changes to the regulations made by that final rule included expanding and renaming the Downpayment Program to include socially disadvantaged farmers. Therefore, we are making a conforming change by revising and expanding the exception in 7 CFR 762.130(d)(4)(iii)(C) to specify that the guarantee will not be charged for loans to beginning or socially disadvantaged farmers involved in the Direct Downpayment Program (or beginning farmers participating in a qualified State beginning farmer program as discussed below).

In addition, as specified in 7 U.S.C. 1929(i)(3), USDA may “not charge any person (including a lender) any fee with respect to the provision of any guarantee” under subsection (i) “Coordination of Assistance for Qualified Beginning Farmers and Ranchers.” Subsection (i) addresses requirements related to State beginning farmer programs. As defined in 7 U.S.C. 1929(i)(5), the term “State beginning farmer program” means:

Therefore, we are making a conforming change by revising and expanding the exception in 7 CFR 762.130(d)(4)(iii)(C) to specify that the guarantee will not be charged for loans to beginning farmers participating in a qualified State beginning farmer program.

On September 3, 2010, an interim rule was published in theFederal Register(75 FR 54005-54016) implementing the new CL Program, which was established by the 2008 Farm Bill. Therefore, we are making a conforming change by to specify that the guarantee fee also will be calculated for the CL Program guaranteed loans.

The Administrative Procedure Act (APA, 5 U.S.C. 553) provides generally that before rules are issued by Government agencies, the rule must be published in theFederal Register, and the required publication of a substantive rule is to be not less than 30 days before its effective date. One of the exceptions is when the agency finds good cause for not delaying the effective date. If the guarantee fee is not increased to 1.5 percent for FY 2012, then FSA will not be able to guarantee any new FOs and very few OLs. Therefore, FSA finds that there is good cause for making this rule effective less than 30 days after publication in theFederal Register. FSA has decided it is appropriate to issue its final policy as an interim rule to give the public more opportunity tocomment on the increase to the one-time guarantee fee and to understand better the need to increase the fee. Publishing this rule as an interim rule allows FSA to increase the guarantee fee and therefore maintain the Guaranteed Loan Program, while allowing time for public comment.

The Office of Management and Budget (OMB) designated this rule as not significant under Executive Order 12866 and therefore, OMB has not reviewed this interim rule.

The Regulatory Flexibility Act (5 U.S.C. 601-612), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to the notice and comment rulemaking requirements under the Administrative Procedure Act (5 U.S.C. 553) or any other statute, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. FSA has determined that this rule will not have a significant impact on substantial number of small entities for the reasons explained below. Therefore, FSA has not prepared a regulatory flexibility analysis.

All guarantee fees are charged to and collected from the lender by FSA. FSA allows the fee to be passed on to the applicant and, in practice, the expense is almost always passed on to the borrower or applicant. All FSA guaranteed loan borrowers and all farm entities affected by this rule are small businesses according to U.S. Small Business Administration small business size standards. There is no diversity in size of the entities affected by this rule, and the costs to comply with it are the same for all sizes of entities. The costs of compliance with this rule are expected to be minimal. FSA certifies that this rule will not have a significant economic impact on a substantial number of small entities.

The environmental impacts of this rule have been considered in a manner consistent with provisions of the National Environmental Policy Act (NEPA, 42 U.S.C. 4321-4347), the regulations of the Council on Environmental Quality (40 CFR parts 1500-1508), and the FSA regulations for compliance with NEPA (7 CFR part 799). The changes to the guaranteed loan program that are identified in this rule are administrative in nature. Therefore, FSA has determined that no environmental assessment or environmental impact statement will be prepared.

Executive Order 12372, “Intergovernmental Review of Federal Programs,” requires consultation with State and local officials. The objectives of the Executive Order are to foster an intergovernmental partnership and a strengthened Federalism, by relying on State and local processes for State and local government coordination and review of proposed Federal Financial assistance and direct Federal development. For reasons set forth in the Notice to 7 CFR part 3015, subpart V (48 FR 29115, June 24, 1983), the programs and activities within this rule are excluded from the scope of Executive Order 12372.

This rule has been reviewed in accordance with Executive Order 12988, “Civil Justice Reform.” The provisions of this rule will not have preemptive effect with respect to any State or local laws, regulations, or policies that conflict with such provision or which otherwise impede their full implementation. The rule will not have retroactive effect. Before any judicial action may be brought regarding this rule, all administrative remedies in accordance with 7 CFR part 11 must be exhausted.

This rule has been reviewed under Executive Order 13132, “Federalism.” The policies contained in this rule do not have any substantial direct effect on States, the relationship between the Federal government and the States, or the distribution of power and responsibilities among the various levels of government. Nor does this rule impose substantial direct compliance costs on State and local governments. Therefore, consultation with the States is not required.

This rule has been reviewed for compliance with Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments.” This Executive Order imposes requirements on the development of regulatory policies that have tribal implications or preempt tribal laws. The USDA Office of Tribal Relations has concluded that the policies contained in this rule do not have Tribal implications that preempt Tribal law. FSA will provide government-to-government consultation with Tribal governments to discuss this interim rule. The Tribal consultation will be available through a teleconference. Leadership from all Federally recognized Tribes that have lands within the affected counties will be invited to the consultation. FSA will respond in a timely and meaningful manner to all Tribal government requests for Tribal consultation about this rule and will provide additional avenues, such as webinars and teleconferences, to periodically host collaborative conversations with Tribal leaders and their representatives about ways to improve this rule in Indian country. When Tribal consultation is complete, FSA will analyze the feedback and incorporate any required changes through the final rule.

Title II of the Unfunded Mandate Reform Act of 1995 (UMRA, Pub. L. 104-4) requires Federal agencies to assess the effects of their regulatory actions on State, local, or tribal governments or the private sector. Agencies generally must prepare a written statement, including a cost benefit analysis, for proposed and final rules with Federal mandates that may result in expenditures of $100 million or more in any 1 year for State, local, or tribal governments, in the aggregate, or to the private sector. UMRA generally requires agencies to consider alternatives and adopt the more cost effective or least burdensome alternative that achieves the objectives of the rule. This rule contains no Federal mandates as defined by Title II of UMRA for State, local, or tribal governments or for the private sector. Therefore, this rule is not subject to the requirements of sections 202 and 205 of UMRA.

The title and number of the Federal assistance programs, as found in the Catalog of Federal Domestic Assistance, to which this rule applies are:

The amendments to 7 CFR part 762 in this interim rule require no new collection or changes to the current information collections approved by OMB under the control number 0560-0155.

FSA is committed to complying with the E-Government Act, to promote the use of the Internet and otherinformation technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

For reasons discussed above, this rule amends 7 CFR part 762 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 December 2, 2010 (75 FR 75159), and proposed to supersede AD 2008-10-51, Amendment 39-15535 (73 FR 30752, May 29, 2008). That NPRM proposed to correct an unsafe condition for the specified products. The MCAI states:

The new inspections are eddy current inspections. The modification includes cold expansion of the former lower wing panel CAMLOC holes and installation of new attachment material. You may obtain further information by examining the MCAI in the AD docket.

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

EASA issued AD 2009-0194R1 on March 10, 2011, which was corrected on March 22, 2011. References have been updated in Note 1 and paragraph (p) of this AD to include this revision.

Garner CAD Technic Design Organization (GCT DO) Airworthiness Office requested that the 400-flight-cycle repetitive inspection interval be removed from paragraph (h) of the NPRM (75 FR 75159, December 2, 2010). GCT DO Airworthiness Office stated that, based on fatigue data, this repetitive inspection is not required, and is not specified in revised EASA AD 2009-0194R1, dated March 10, 2011, and corrected on March 22, 2011.

We agree. Based on fatigue data, we have determined that the 400-flight-cycle repetitive inspection interval should be removed from paragraph (h) of this AD. The repetitive inspection was removed from revised EASA AD 2009-0194R1, dated March 10, 2011, and corrected on March 22, 2011. Paragraph (h) of this AD has been changed accordingly. References to the 400-flight-cycle repetitive inspections also were removed from paragraphs (i) and (j) of this AD.

To ensure that operators get credit for the most recent inspection done in accordance with Dornier Alert Service Bulletin ASB-328J-57-015 or ASB-328-57-037, both Revision 1, both dated May 8, 2008; or 328 Support Services Alert Service Bulletin ASB-328J-57-015 or ASB-328-57-037, both Revision 2, both dated May 20, 2008; we have clarified paragraph (g) of this AD. We have replaced the phrase, “in accordance with the requirements of paragraph (h) of this AD,” with the phrase, “in accordance with Dornier Alert Service Bulletin ASB-328J-57-015 or ASB-328-57-037, both Revision 1, both dated May 8, 2008; or 328 Support Services Alert Service Bulletin ASB-328J-57-015 or ASB-328-57-037, both Revision 2, both dated May 20, 2008.”

GCT DO Airworthiness Office requested that the initial compliance time and repetitive inspection interval defined in paragraph (i) of the NPRM (75 FR 75159, December 2, 2010) be extended from 800 flight cycles to 1,500 flight cycles. GCT DO Airworthiness Office stated that this extension has been allowed based on fatigue data, and was specified in revised EASA AD 2009-0194R1, dated March 10, 2011, and corrected on March 22, 2011.

We agree to extend the initial compliance time and repetitive inspection intervals for the reasons given by the commenter. Paragraph (i) of this AD has been changed accordingly.

GCT DO Airworthiness Office requested that based on fatigue data, the threshold for the post-modification initial inspection be extended from 800 flight cycles to 25,000 flight cycles for the Model 328-100 airplane, and from 800 flight cycles to 20,000 flight cycles for Model 328-300 airplanes, and that the repetitive inspections be extended from 800 flight cycles to 1,500 flight cycles.

We agree to extend the threshold for post-modification initial inspections as requested. Based on fatigue data, the referenced EASA AD has included these extensions; therefore, we have added paragraph (k) to the AD to include the new compliance times.

The NPRM (75 FR 75159, December 2, 2010) would have allowed issuance of a special flight permit if a crack was found that “exceeds” 12.5 mm (0.49 inch). We have changed paragraph (o)(4)(ii) of this AD to change the wording from “exceeds” to “is less than or equal to.”

We reviewed the available data, including the comments 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 about 49 products of U.S. registry.

The actions that are required by AD 2008-10-51 and retained in this AD take about 2 work-hours per product, at an average labor rate of $85 per work-hour. Required parts cost about $0 per product. Based on these figures, the estimated cost of the currently required actions is $170 per product.

We estimate that it will take about 8 work-hours per product to comply with the new basic requirements of this AD. The average labor rate is $85 per work-hour. Required parts will cost about $11,600 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 $601,720, or $12,280 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 entitiesunder 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:

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 March 15, 2011 (76 FR 13926). That NPRM proposed to require repetitive high frequency eddy current or repetitive low frequency eddy current inspections for cracks on the area around certain fasteners of the access opening doubler on the left and right wing center spar lower cap, and repair, if necessary.

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

Boeing requested that we revise paragraph (h)(3) of the NPRM (76 FR 13926, March 15, 2011) to refer to “Method 101 and 104,” instead of “Method 101 or 104.” Boeing explained that Methods 101 and 104 should be used when using Section 57-10-16 of the McDonnell Douglas DC-8 Supplemental Inspection Document (SID) Report L26-011, Volume II, Revision 8, dated January 2005. Boeing stated that “Method 101 and 104” is correctly referenced in the service information.

We agree. We have clarified the reference as “Methods 101 and 104” in paragraph (h)(3) of the final rule for the reasons stated by Boeing.

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

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

We estimate that this AD would affect 41 airplanes of U.S. registry. We also estimate that it will take 12 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 $41,820, or $1,020 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.

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:

By order dated October 4, 2010 (Release No. 33-9149, 34-63031, IC-29456), the Securities and Exchange Commission stayed from November 15, 2010 until the resolution of the petition for review of Exchange Act Rule 14a-11 inBusiness Roundtable et al.v.Securities and Exchange Commission,No. 10-1305 (D.C. Cir., filed Sept. 29, 2010), the effective and compliance dates of amendments to the Federal proxy and related rules that the Commission adopted to facilitate the effective exercise of shareholders' traditional state law rights to nominate and elect directors to company boards of directors. On October 20, 2010, a notice of the stay was published in theFederal Register(75 FR 64641). That announcement stated that a notice of the effective and compliance dates of the final rules would be published in theFederal Registerfollowing the resolution of the petition for review. On July 22, 2011, the United States Court of Appeals for the District of Columbia Circuit issued an order vacating Rule 14a-11 and on September 14, 2011, the Court issued its mandate. Because the mandate concludes the litigation in the Court of Appeals, the stay expired by its terms. The Court's order did not affect the amendment to Rule 14a-8, which was not challenged in the litigation, or the related rules and amendments adopted concurrently with Rule14a-11 and the amendment to Rule 14a-8. Accordingly, those rules and amendments are effective upon publication of this notice in theFederal Register.

As discussed in the preamble above, the final rules noted in theDATESsection of this document and published on September 16, 2010 (75 FR 56668) amending Title 17, Chapter II of the Code of Federal Regulations, are effective September 20, 2011, with the exception, as noted, of Rule 14a-11 (17 CFR 240.14a-11).

This direct final rule is consistent with the rule currently published at 32 CFR part 321.13(h) and another rule is being published to remove and reserve 321.13(h).

DoD has determined this rulemaking meets the criteria for a direct final rule because it involves nonsubstantive changes dealing with DoD's management of its Privacy Progams. DoD expects no opposition to the changes and no significant adverse comments. However, if DoD receives a significant adverse comment, the Department will withdraw this direct final rule by publishing a notice in theFederal Register. A significant adverse comment is one that explains: (1) Why the direct final rule is inappropriate, including challenges to the rule's underlying premise or approach; or (2) why the direct final rule will be ineffective or unacceptable without a change. In determining whether a comment necessitates withdrawal of this direct final rule, DoD will consider whether it warrants a substantive response in a notice and comment process.

It has been determined that Privacy Act rules for the Department of Defense are not significant rules. The rules do not (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 these Executive orders.

It has been determined that this Privacy Act rule for the Department of Defense does not have significant economic impact on a substantial number of small entities because it is concerned only with the administration of Privacy Act systems of records within the Department of Defense.

It has been determined that Privacy Act rules for the Department of Defense impose no additional information collection requirements on the public under the Paperwork Reduction Act of 1995.

It has been determined that this Privacy Act rulemaking for the Department of Defense does not involve a Federal mandate that may result in the expenditure by State, local and Tribal governments, in the aggregate, or by the private sector, of $100 million or more and that such rulemaking will not significantly or uniquely affect small governments.

It has been determined that the Privacy Act rules for the Department of Defense do not have federalism implications. The rule does not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government.

Accordingly, 32 CFR part 311 is amended as follows:

Regulatory Information

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedures 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; notice and comment is impracticable because immediate action is necessary to ensure the safety of the public in the vicinity of construction operations being conducted in the Saugus River.

Serious damage to this pipeline bridge was caused during Tropical Storm Irene, which passed through Boston on 28 August, 2011. Currently, the pipeline is leaning over precariously and is in danger of collapsing. Two phases of work are needed for this pipeline: stabilization (which may include removal of the damaged segment), and then full removal at a later date. This rule addresses only emergency stabilization efforts. A separate rule will be promulgated with normal notice and comment periods for the longer term full repair project.

On September 1, 2011, General Electric, the pipeline operators, advised that the Energy Systems Pipeline bridge demolition project would require periodic closures of the Saugus River at mile 2.3 to remove the damaged piping support structure. The hazard that the damaged portion of the Energy Systems Pipeline bridge poses to the navigational channel necessitates that all mariners comply with this RNA. Immediate action is needed to control vessels operating in the restricted waterway in order to facilitate repairs and to protect the maritime public from the hazards associated with the stabilization of this damaged structure. Publishing a NPRM and waiting 30 days for comment would be contrary to the public interest since immediate action is needed to restrictvessel traffic to effect repairs and to protect the maritime public from the hazards associated with removal of the damaged section of the structure, including falling debris and the use of heavy machinery.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective fewer than 30 days after publication in theFederal Register. Any delay would be both impracticable and contrary to the public interest. Immediate action is necessary for the reasons discussed above, supporting good cause under 5 U.S.C. 553(b)(B).

Under the Ports and Waterways Safety Act, the Coast Guard has the authority to establish RNAs in defined water areas that are determined to have hazardous conditions and in which vessel traffic can be regulated in the interest of safety. See 33 U.S.C. 1231 and Department of Homeland Security Delegation No. 0170.1.

The purpose of this temporary rule is to facilitate the removal of the damaged piping support structure for the Energy Systems Pipeline Bridge located at approximately mile 2.3 of the Saugus River in Lynn, MA. Establishing this temporary rule will allow the necessary stabilization work to be completed and will protect the maritime public from the hazards associated with the demolition of this damaged structure. This structure is in danger of collapse and its stabilization allows for the future safe transit of vessels in the area.

This action is intended to prohibit vessel traffic on a portion of the Saugus River, when necessary for the safety of navigation, while work is done on the Energy Systems Pipeline Bridge on the Saugus River in Lynn, MA. The regulated area encompasses all waters within 100 yards of either side of the Energy Systems Pipeline Bridge. The Coast Guard may close the area described in this rule to all vessel traffic during any circumstance, planned or unforeseen, that poses a threat to waterway users operating in the area. Complete waterway closures will be made with as much advance notice as possible.

The project consists of stabilization, cutting and removal of damaged abandoned pipeline and associated steel support structure. Demolition operations will temporarily block the navigable channel due to positioning of a barged-based lifting crane, a deck barge, and an associated towing vessel.

Entry into this RNA during a closure is prohibited unless authorized by the Sector Boston Captain of the Port (COTP). In the event of an emergency, all construction equipment shall be removed from the channel to allow for emergency vessels to pass. Any violation of this rule is punishable by, among others, civil and criminal penalties, in rem liability against the offending vessel, and the initiation of suspension or revocation proceedings against Coast Guard-issued merchant-mariner credentials.

The Captain of the Port (COTP) Boston will cause notice of enforcement, suspension of enforcement, or closure of the waterway to be made by all appropriate means for the widest distribution among the affected segments of the public. Such means of notification may include, but are not limited to, Broadcast Notice to Mariners and Local Notice to Mariners.

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

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order.

The economic impact of this rule will be severely limited for the following reasons: (1) The actual waterway restriction imposed by this RNA is expected to last no longer than 12 hours at a time; (2) demolition work that restricts the navigational channel will be scheduled when there is limited demand for this navigational channel; and (3) advance notification will be made to the maritime community via Local Notice to Mariners, Broadcast Notice to Mariners, and on the Internet athttp://homeport.uscg.mil/boston.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which may be small entities: the owners or operators of vessels intending to transit in a portion of the Saugus River during periods of construction until the Energy Systems Pipeline bridge has been structurally stabilized. Several small marinas up-river from the damaged pipeline may also be affected.

This rule will not have a significant economic impact on a substantial number of small entities for the following reasons: although the regulated navigation area will apply to the entire width of the Saugus River navigational channel, restriction of vessel traffic will be limited to not more than 12 hours at a time and response to traffic demand will be coordinated in advance by the Captain of the Port Boston in consultation with the harbormaster of Lynn, MA. Before the effective period, we will issue maritime advisories widely available to users of the waterway. Additionally, because of the dangerous and unstable nature of the damaged pipeline, many vessel operators may have independently reached the conclusion that it is too dangerous to pass underneath. Therefore, the inherent danger of the damaged pipeline is probably already preventing vessel operators from passing through.

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. TheOmbudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

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

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

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

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

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

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

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

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

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

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

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

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

The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when an 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 notice of this golfing event 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 in that it would prevent the Coast Guard from protecting the public and vessels on navigable waters from the hazards associated with golf balls being hit from land onto a stationary barge in the river.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in theFederal Register. For the same reasons discussed in the preceding paragraph, a 30-day notice period would also be impracticable and contrary to the public interest.

The Ryder Cup Captain's Duel Golf Shot event takes place on the Chicago River near Chicago, Illinois from 4 p.m. to 5 p.m. on September 26, 2011. The Captain of the Port, Sector Lake Michigan has determined that this event may present significant hazards to public safety and property due to the fact that six golf balls will be hit from the 16th floor of the Trump Tower, onto a stationary barge located in the middle of the Chicago River.

Because of the aforesaid hazards, the Captain of the Port, Sector Lake Michigan has determined that a temporary safety zone is necessary to ensure the safety of spectators and vessels during the golfing event. The safety zone will encompass all waters of the Chicago River, near Chicago, Illinois, between the North Columbus Drive Bascule Bridge, located at approximate position 41°53′19″ N, 087°37′13″ W and the Michigan Avenue bridge, located at approximate position 41°53′21″ N, 087°37′28″ W. (NAD 83).

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

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

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

We conclude that this rule is not a significant regulatory action because we anticipate that it will have minimal impact on the economy, will not interfere with other agencies, will not adversely alter the budget of any grant or loan recipients, and will not raise any novel legal or policy issues.

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

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

This rule will affect the following entities, some of which might be small entities: the owners or operators of vessels intending to transit or anchor in a portion of the Chicago River, Chicago, IL between 4 p.m. and 5 p.m. on September 26, 2011.

This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: the safety zone will only be in effect for one hour on a single day and vessels will be allowed to pass through the safety zone when no conditions exist. In the event that this temporary safety zone affects shipping, commercial vessels may request permission from the Captain of The Port, Sector Lake Michigan, to transit through the safety zone. The Coast Guard will give notice to the public via a Broadcast to Mariners that the regulation is in effect.

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

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

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

A temporary 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 temporary rule elsewhere in this preamble.

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

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

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

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

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

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

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

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

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

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

Regulatory Information

The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule. Notice of this fireworks display 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 maritime fireworks displays.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in theFederal Register. For the same reasons discussed in the preceding paragraph, waiting for a 30 day notice period to run would be impracticable and contrary to the public interest.

On September 24, 2011, a private party is holding a land based wedding that will include fireworks launched from a point on Lake St. Clair. The fireworks display will occur between 10 p.m. and 10:30 p.m., September 24, 2011. The Captain of the Port Detroit has determined that fireworks displays launched on or in the vicinity of navigable waters pose hazards to the boating public. Such hazards include obstructions to the waterway that may cause marine casualties, explosive danger of fireworks, and debris falling into the water that may cause death or serious bodily harm and property damage.

Because of the aforementioned hazards, the Captain of the Port Detroit has determined that this temporary safety zone is necessary to ensure the safety of spectators and vessels during the setup, loading, and launching of the Giannangeli Wedding Fireworks Display. The safety zone will encompass all waters on Lake St. Clair within a 420 foot radius of the fireworks barge launch site located off the shore of Harrison Township, MI at position 42°36′31″ N, 082°48′2″ W from 10 p.m. until 10:30 p.m. on September 24, 2011. All geographic coordinates are North American Datum of 1983 (NAD 83).

All persons and vessels shall comply with the instructions of the Coast Guard Captain of the Port or the designated onscene patrol personnel. 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 or his designated on scene representative may be contacted via VHF Channel 16.

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

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

We conclude that this rule is not a significant regulatory action because we anticipate that it will have minimal impact on the economy, will not interfere with other agencies, will not adversely alter the budget of any grant or loan recipients, and will not raise any novel legal or policy issues. The safety zone around the launch platform will be relatively small and exist for only a minimal time. Thus, restrictions on vessel movement within any particular area of Lake St. Clair are expected to be minimal. Under certain conditions, moreover, vessels may still transit through the safety zone when permitted by the Captain of the Port.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule 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 this portion of Lake St. Clair between 10 p.m. through 10:30 p.m. on September 24, 2011.

This safety zone will not have a significant economic impact on a substantial number of small entities because vessels can easily transit around the zone. The Coast Guard will give notice to the public via a Broadcast Notice to Mariners that the regulation is in effect.

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

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

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

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

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

This rule will not 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 ofManagement 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 because it involves the establishment of a temporary safety zone. An environmental analysis checklist and a categorical exclusion determination will be available in the docket where indicated underADDRESSES.

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

Regulatory Information

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

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in theFederal Registerbecause the safety zone is immediately necessary to help ensure the safety of the response workers and the maritime public due to the ongoing worksite cleanup operations.

The remaining cofferdam at the M/V DAVY CROCKETT removal sight is located on the Washington State side of the Columbia River at approximately river mile 117. The Coast Guard, other state and federal agencies, and federal contractors are continuing a worksite cleanup following the removal of M/V DAVY CROCKETT. The cleanup operations require a minimal wake in the vicinity of the cofferdam to help ensure the safety of response workers. Only authorized persons and/or vessels can be safely allowed in the worksite cleanup area.

A 300 ft safety zone is necessary to keep vessels clear of the ongoing worksite cleanup in and around the cofferdam. The previous 300 ft safety zone will expire on August 31, 2011.

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

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

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

The Coast Guard has made this determination based on the fact that the safety zones created by this rule will not significantly affect the maritime public because the areas covered are limited in size and/or have little commercial or recreational activity. In addition, vessels may enter the safety zones with the permission of the Captain of the Port, Columbia River or his designated representative.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule may affect the following entities some of which may be small entities: The owners and operators of vessels intending to operate in the areas covered by the safety zones created in this rule. The safety zones will not have a significant economic impact on a substantial number of small entities because the areas covered are limited in size. In addition, vessels may enter the safety zones with the permission of the Captain of the Port, Columbia River or his designated representative.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I. Background

On July 15, 2011 (76 FR 41742), EPA published a notice of proposed rulemaking (NPR) for the Commonwealth of Pennsylvania. The NPR proposed approval for the control of particulate matter emissions from the operation of OWBs. The formal SIP revision was submitted by the Pennsylvania Department of the Environmental Protection (PADEP) on October 20, 2010. No public comments were received on the NPR.

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 to 25 Pa. Code Chapter 123 (Standards for Contaminants) Particulate Matter Emissions, Section 123.14 (Outdoor Wood-Fired Boilers). The emissions standard established in this SIP revision is the Phase 2 emissions standard described in the EPA voluntary OWB program. The SIP revision is also based on the Northeast States for Coordinated Air Use Management (NESCAUM) model rule.

The new regulation (Section 123.14) applies to the following: (1) To a person, manufacturer, supplier or distributor who sells, offers for sale, leases or distributes an outdoor wood-fired boiler for use; (2) a person who installs an outdoor wood-fired boiler; and (3) a person who purchases, receives, leases, owns, uses or operate an outdoor wood-fired boiler. The new regulation consists of the following: (1) Exemptions for a non-Phase 2 OWB; (2) Phase 2 OWB provisions; (3) setback requirements for new Phase 2 OWBs; (4) stack height requirements for new Phase 2 OWBs; (5) allowed fuels; (6) prohibited fuels; and (7) applicable laws and regulatory requirements. Other specific requirements for the control of particulate matter emissions from the operation of OWBs and the rationale for EPA's proposed action are explained in the NPR and will not be restated here.

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 25 Pa. Code Chapter 123 (Standards for Contaminants) Particulate Matter Emissions, Section 123.14 (Outdoor Wood-Fired Boilers) 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 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 November 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 particulate matter emissions from the operation of outdoor wood-fired boilers, may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR part 52 is amended as follows:

I. Background

On June 30, 2011 (76 FR 38334), EPA published a notice of proposed rulemaking (NPR) for the District of Columbia, the State of Maryland, and the Commonwealth of Virginia. The NPR proposed approval of the 2002 base year emissions inventory, the RFP plan, RFP contingency measure, and RACM analysis for the Washington, DC-MD-VA moderate 1997 8-hour ozonenonattainment area. These SIP elements were part of the “Plan to Improve Air Quality in the Washington, DC-MD-VA Region, State Implementation Plan (SIP) for 8-Hour Ozone Standard, Moderate Area SIP” (the Washington Area 8-hour ozone plan), which the District of Columbia Department of the Environment (DDOE), the Maryland Department of the Environment (MDE), and the Virginia Department of Environmental Quality (VADEQ) developed jointly. The Washington Area 8-hour ozone plan was formally submitted to EPA as a SIP revision by DDOE on June 12, 2007, by MDE on June 4, 2007, and by VADEQ on June 12, 2007. The NPR also proposed approval of the transportation conformity 2008 MVEBs associated with this revision.

The SIP revision addresses emissions inventory, RACM, RFP, and RFP contingency measures requirements for the 1997 8-hour ozone NAAQS for the Washington, DC-MD-VA 1997 8-hour moderate ozone nonattainment area. The SIP revision also establishes MVEBs for 2008. Other specific requirements of the Washington Area 8-hour ozone plan 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 “required 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 2002 base year emissions inventory; the 2008 ozone projected emission inventory; the 2008 RFP plan; RFP contingency measures; RACM analysis; and 2008 transportation conformity budgets for the Washington, DC-MD-VA 1997 8-hour moderate ozone nonattainment area, and the Washington Area 8-hour ozone plan, which were submitted to EPA as a SIP revision by DDOE on June 12, 2007, by MDE on June 4, 2007, and by VADEQ onJune 12, 2007. The SIP revision satisfies the requirements for 1997 8-hour ozone NAAQS nonattainment areas classified as moderate and demonstrates further progress in reducing ozone precursors.

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 orsafety 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 November 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 the 2002 base year emissions inventory, the 2008 ozone projected emission inventory, the 2008 RFP plan; RFP contingency measures, RACM analysis, and 2008 transportation conformity budgets for the Washington, DC-MD-VA 1997 8-hour moderate ozone nonattainment area, may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR part 52 is amended as follows:

Throughout this document, whenever “we,” “us,” or “our” is used, we mean EPA. On May 9, 2011 (76 FR 26679), EPA published a notice of proposed rulemaking (NPR) for the State of Delaware. The NPR proposed approval of NOXas a precursor to ozone in the requirements for preconstruction review for PSD areas in Delaware. The formal SIP revision was submitted by Delaware on April 1, 2010.

This SIP revision approval will add the current regulations found in Regulation 1125, section 3.0, Requirements for Preconstruction Review, Prevention of Significant Deterioration (Regulation 1125, section 3.0) as of April 11, 2010 which established NOXas a precursor to ozone, but will keep intact the formally approved Delaware SIP increments for NOXfound in theFederal Registernotice for Delaware dated July 27, 1993 (58 FR 40065) for permitting and the construction of new major stationary sources and the significant modification of existing major stationary sources of air pollutants in areas designated attainment or non-classifiable for the National Ambient Air Quality Standards (NAAQS).

As required by 40 CFR part 51, Subpart I—“Review of New Sources and Modifications,” this rule adopts criteria and procedures for the prevention of significant deterioration of air quality that are consistent with the governing Federal regulation at 40 CFR 51.166. Promulgation of this rule by the State Legislature was necessary for the State to fulfill its responsibilities under 40 CFR part 51 and the CAA, as amended. Revisions to the State's rule were also necessary to ensure that the SIP provides for the attainment and maintenance of the NAAQS. This SIP approval action addresses changes needed in the part C PSD permit program. This SIP submission also corrects deficiencies identified by EPA in the March 27, 2008Federal Registeraction entitled, “Completeness Findings for section 110(a) State Implementation Plans for the 8-hour Ozone National Ambient Air Quality Standards (1997 Ozone NAAQS)” (73 FR 16205). EPA's approval of this SIP submission addresses Delaware's compliance with the portion of CAA section 110(a)(2)(C) & (J) relating to the CAA's part C permit program for the 1997 Ozone NAAQS, because this approval action will establish NOXas a precursor to ozone in Delaware's SIP in accordance with theFederal Registeraction dated November 29, 2005 (70 FR 71612) that finalized the NOxas a precursor for ozone regulations set forth at 40 CFR 51.166 and in 40 CFR 52.21. As such, this approval action will add NOxas a precursor to ozone in the Delaware SIP and Delaware will be in compliance with the portion of CAA section 110(a)(2)(C) and (J) relating to the CAA's part C permit program for the 1997 ozone NAAQS.

Other specific requirements of NOxas a precursor to ozone 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 the addition of nitrogen oxides (NOX) as a precursor to ozone for PSD as a revision to the Delaware SIP and is making a determination that Delaware is in compliance with the portion of CAA section 110(a)(2)(C) and (J) relating to the CAA's part C permit program for the 1997 ozone NAAQS.

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

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 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 to add nitrogen oxides (NOX) as a precursor to ozone into the Delaware SIP may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR part 52 is amended as follows:

DoD published a proposed rule in theFederal Register(75 FR 56961) on September 17, 2010, to amend DFARS Appendix F, Material Inspection and Receiving Report, to provide new coverage on the use, preparation, and distribution of the electronic WAWF receiving report, which is the primary method for documenting acceptance of supplies and services and for electronic invoicing. The rule also addressed WAWF capability to provide the following:

• Item Unique Identification (IUID). When the clause at DFARS 252.211-7003, Item Identification and Valuation, is used in the contract and requires reporting of IUID data, WAWF captures the IUID data and forwards the data to the IUID registry after acceptance. WAWF may be used to report Unique Item Identifiers (UIIs) at the line item level and also UIIs embedded at the line item level.

• Radio Frequency Identification (RFID). When the clause at DFARS 252.211-7006, Radio Frequency Identification, is used in the contract, WAWF will capture the RFID information and forward the data to the receiving location.

Using WAWF is the only way a contractor can comply with the clause to furnish RFID data via an Advance Shipping Notice. Insertion of the new WAWF coverage into Appendix F necessitates relocating and renumbering existing coverage for use, preparation, and distribution of the DD Form 250 Material Inspection and Receiving Report, and the DD Form 250-1 Tanker/Barge Material Inspection and Receiving Report.

In response to the proposed rule, DoD received comments from five respondents. A discussion of the comments follows.

Comment:Two respondents suggested changing the text at F-103(b)(2) for the transfer of Government property using the property transfer function. Another respondent recommended adding where training for the preparation of document types is available.

Response:These recommendations are incorporated into the final rule.

Comment:A respondent asked if there was a limit on the quantity of embedded items at the line item level that may be reported in WAWF.

Response:A quantity limit of 100 embedded items currently exists in the software capability, however, this limitis subject to change in future versions of WAWF.

Comment:A respondent suggested adding clarification on the use of RFID information.

Response:As suggested, paragraph F-103(e)(2) is revised to clarify that the RFID information can be added either at submission or via the “WAWF Pack Later” functionality.

Comment:A respondent asked about the meaning of “consigned to” at F-104(a)(4) and for clarification regarding use of a continuation sheet. The respondent stated that they have no control over how the continuation sheet appears or prints from WAWF.

Response:The phrase “consigned to” is the one to whom a line item is given, transferred, or delivered for control. In regard to use of a continuation sheet, the format printed out from WAWF will suffice as long as the required contractor information is entered.

Comment:Two respondents suggested, at paragraph F-301(a)(1), replacing “contractor” with “vendor” to be consistent with the label used on the training Web site provided in the proposed rule. A respondent suggested: (1) Revising F-301(a)(2) to reflect the creation of an extension to the prime Commercial and Government Entity (CAGE); (2) replacing, at paragraph F-301(a)(4), “official DoD sites” with “DoD definitive sources”; (3). adding text at paragraph F-301(b)(1)(iii) to clarify that comments in the miscellaneous information tab will appear in the comments section of the printed WAWF receiving report; (4). changing, at paragraph F-301(b)(1)(iv), “DoD contract number” to “DoD contract number and delivery order number”; and, (5) updating paragraph F-301(b)(3) to correctly refer to the data field as “Estimated” and reflect that data entry is a drop-down box.

Response:The final rule is revised to incorporate these recommendations.

Comment:A respondent requested at paragraph F-301(b)(2)(i), SHIPMENT NO., that contractors must always provide packaging documentation in their shipment containers. If contractors choose to provide their own packaging documentation they must ensure their documentation includes their shipment number data. The respondent recommended the addition of a statement that any document utilized as a packing list must include the shipment number information. Additionally, the respondent suggested revising the text with an example to clarify that the shipment number format requires first three data positions to be alpha, fourth position alpha-numeric and last three positions are numerice.g.,DFAR001 or DAR0001.

Response:The recommendations are incorporated into the final rule.

Comment:A respondent requested at paragraph F-301(b)(3), Date Shipped, that a “MIRR clause does not identify electronic data submission timeline.” The respondent recommended the DFARS MIRR language include the statement that the contractor will submit the completed MIRR via WAWF within one business day of material shipment. The respondent stated that material shipments missing shipment numbered data causes manual research in order to process the receipt acceptance.

Response:The MIRR is completed at the time of delivery of goods or services and, for both WAWF and paper DD form 250s, copies of the MIRR accompany the shipment. Paragraph F-301(b)(3) is revised to add a reference to “see F-303).”

Comment:A respondent requested at paragraph F-305, Invoice instructions, adding a statement that contractors should ensure the packaging documentation includes a Government signed receiving report when the contract requires origin inspection and acceptance. The respondent further stated that contractors must include the signed document indicating material receipt acceptance has occurred in the container with the exception of material shipments that are approved for Alternate Release Procedures.

Response:The final rule is revised to incorporate the recommendations.

Comment:A respondent stated, at paragraph F-301(b)(4)(i), that bills of lading are obtained when an item is being scheduled to ship, and thus may not be available until after the item has been source inspected/accepted. The respondent recommended clearly stating that the field is not required prior to source inspection and acceptance, nor, in their opinion, should a receiving report correction be issued only for adding a bill of lading after it has been obtained. Further, the respondent suggested revising F-301(b)(4), to enter the commercial or Government bill of lading number after “BL.”

Response:Currently, the “Bill of Lading Number” field is not a mandatory field in WAWF. Additional changes to the Bill of Lading functionality may be made later on.

Comment:One respondent suggested at paragraph F-301(b)(5), Line Haul Mode, that this is an item that may not be stated accurately until after signature, when the item is scheduled for shipment, and recommended that this field not be required prior to source inspection/acceptance.

Response:There is flexibility in WAWF regarding this entry as “Line Haul Mode” field is not a mandatory field.

Comment:Two respondents suggested that paragraph F-301(b)(6), Inspection and Acceptance Point, be changed from “WAWF allows acceptance at Other” to “WAWF allows acceptance at Other (O).” Two respondents suggested adding, that for purposes of conforming to contract, “0” is equivalent to “D”.

Response:The final rule is revised to incorporate the recommendations.

Comment:A respondent suggested at paragraphs F-301(b)(7), Prime Contractor/Code, F-301(b)(9), Shipped From/Code, and F-301(b)(11), Payment Will Be Made By/Code, that these codes must match the contract, however, the street address is not required to match the contract. The respondents further opined that WAWF does not require the entry of an address code in either WAWF 4.2 or 5.0, and concluded that the requirement of an address should be clarified.

Response:No clarification is needed in the rule. Contractors can fulfill contracts with shipments from their location or from subsidiaries or subcontractors. Therefore, the shipped from code doesn't necessarily need to match the contract. Further, the receiving report is used for services as well as supplies where there will be no ship-from code.

Comment:One respondent requested clarification at paragraph F-301(b)(13), Marked For/Code, concerning the “Marked For Address.” Previously, textual marking information associated with the “Marked For DoDAAC” was placed in the address lines of the “Marked For DoDAAC.” Now that DoD is moving away from paper documents, the respondent wanted confirmation touse the data fields as labeled using the code area for the “Marked For DoDAAC” and address only, and the “Mark For Rep” and “Mark For Secondary” fields used for the text information.

Response:The respondent is correct concerning use of these fields. No change to the rule is required.

Comment:A respondent requested revisions at paragraph F-301(b)(13) to reflect that a “Marked For Code” cannot be a CAGE code, only a DoDAAC or Military Assistance Program Address Codes.

Response:No revision is required in response to this comment since a CAGE code can be entered in the “Mark For Code” field.

Comment:A respondent recommended at paragraph F-301(b)(15)(1)(A) clarifying that in the “Type” drop-down field, that the user is to select the corresponding type for the data entered, and that if no National Stock Number or other valid “Type” is available, the word “None” may be entered for the Stock/Part Number, with a corresponding “Type” of any value other than the National Stock Number selected from the drop-down box. Another respondent stated that if the contract contains NSNs as well as other identification (e.g.,part numbers), a contractor should place the NSN information in the Stock Part Number field and the remaining numbers in the line item description field.

Response:The paragraph is revised accordingly to incorporate the first recommendation. In regards to the second comment concerning NSNs as well as other identifying information, the respondent is correct in how this process works. The text is revised to ensure this meaning is understood.

Comment:A respondent asked whether or not at paragraph F-301(b)(15)(ii), if exceeding 20 characters in the description field is a cause for the rejection of a receiving report. Further, the respondent requested clarification on whether or not the description refers to what is defined in the payment system as a “service” line item as opposed to a “supply” line item. A WAWF RR for a repair is for acceptance of the repair and not of the item repaired. However, repair line items are frequently defined as “supply” line items and therefore the ship-to location is the actual ship-to of the repaired item.

Response:Exceeding 20 characters in the description is not a cause for rejection of a receiving report. In response to the second comment, the respondent is correct that the description refers to the designation in the payment system as a “service” line item as opposed to a “supply” line item.

Comment:A respondent suggested that clarification at paragraph F-301(b)(15)(iv)(E) is required for how the text relates to the GFE drop-down box, and whether or not the drop-down box is insufficient for this situation. The correct use of GFE drop-down box needs to be fully explained. If it is not the same as the entry of “GFP” in the description text, the differences must be clarified.

Response:The drop-down GFE box is not related to this section. It is obsolete and no longer used and will be deleted in a future version of WAWF. The GFP drop-down box is sufficient for use of GFP.

Comment:Two respondents stated that at paragraph F-301(b)(18), the proposed text is identical to that used in the current Appendix F for unit price (see F-301, block 19, on current Appendix F). They further stated that this document will never be used as an invoice; thus, in their opinion, there should not be a requirement to fill in a unit price, except in the cases listed. Further, one respondent recommended at paragraph F-301(b)(18)(i) the addition of the text to clarify the handling of unit prices and property transfer. Another respondent had a concern with unit prices that were as little as twenty cents and not being accepted by the Government agency. This respondent also noted that an estimated price can be entered in the description field, but the Government contracting office expects the price entered in the price field, even though WAWF does not accept the entry the way the agency had requested. The respondent went on to state that the DFARS does not address the electronic aspect of WAWF and billing.

Response:The unit price is required. In regard to the intent of the paragraph on the WAWF initiated property transfer, the purpose is to alert the contractor that a property transfer will be generated as a result of the completion of the WAWF RR. In regard to the unit price, it is required when the clause at DFARS 252.211-7003, Item Identification and Valuation, is used; otherwise the use of the field is optional and at the discretion of the vendor. When used for item unique identification, the unit price does not necessarily reflect the billing price on the contract. The DFARS addresses electronic billing at 252.232.7003, Electronic Submission of Payment Requests and Receiving Reports. No change in the rule is required in response to these comments.

Comment:One respondent suggested at paragraph F-301(b)(20)(ii), that the term “execute” is misleading and will cause confusion. The respondent also stated that removing the quotation marks will ensure a clear direction. The respondent further suggested at paragraphs F-301(b)(20)(iv)(A)(3) and (v) the steps described should match the actual step taken in WAWF to electronically sign the document and recommended the text be revised.

Response:The quotation marks used for the term “execute” are removed. In regard to the electronic signatures, the text has been revised accordingly to match the actual steps taken in WAWF.

Comment:One respondent suggested paragraph F-301(b)(21) should be referenced as the COMMENTS block and/or MISC INFO tab.

Response:The title is revised to incorporate “MISC. INFO” as suggested.

Comment:One respondent recommended at paragraph F-306(b), that the text be revised to clarify that if a signed copy is required by the contractor, the contractor will print the WAWF RR only after a signature is applied by the Government Inspector or Acceptor in WAWF.

Response:This text is revised accordingly to incorporate the suggestion.

Comment:One respondent stated that in Part 4 there are multiple references to section F-301 and recommended, where appropriate, the references be updated to the corresponding F-401 reference. The respondent also suggested that at paragraph F-401(b)(2), “Starting over with 0001” cannot be used in an electronic world, and that the DD Form 250 needs to conform to the same requirement (F-301(b)(2)) as the WAWF RR.

Response:Part 4 references in the final rule are updated as required. Inregard to shipment numbering, the system will not allow the shipment number to start over with 0001 as any duplication of the combined contract number, delivery order number, and shipment number results a duplication error. In these cases, WAWF requires a change in the shipment number prefix. While on a paper DD Form 250, it is possible to start over with 0001 when the series is completely used, a change in the shipment number prefix should be required for consistency. The text at F-401(b)(2) is revised to clarify this process.

Comment:A respondent commented on Part 5 concerning the “alternate” release procedure. The respondent noted that all other references in the document are to “alternative” release procedure, and would like to know which is correct.

Response:The final rule is revised in Part 5 to refer to “alternative” in lieu of “alternate.”

Comment:A respondent stated there are a number of changes incorporated in the latest WAWF release that impact MIRR data entry. The respondent noted that changes include removal of “other” as an acceptance point and replacing it with more specific data entries for inspection, acceptance, and ship to DoDAAC codes.

Response:There is no need to change paragraph F-301(b)(6) as “Other” will remain an option for the inspection and acceptance point. DoD adopted business rules regarding the inspection, acceptance, and ship-to fields but kept the source, destination, and other inspection and acceptance points. Therefore, no change is necessary.

Comment:One respondent stated that Appendix F addresses the use of the MIRR in WAWF, yet multiple types of receiving and performance transactions exist. Examples include:

○ Receiving Report.

○ Receiving Report—COMBO.

○ Invoice 2-in-1 (Services Only).

Response:Appendix F only provides instruction for use of the MIRR. Invoice 2-in-1 (services only) is used to document acceptance of services when a MIRR is not required. The COMBO transaction in WAWF allows for the vendor to do one set of data entry that is split in the system into both a receiving report, identical to the non-COMBO receiving report, and an invoice. The instructions for the data entry in the COMBO are the same as the data fields for the receiving report.

Comment:A respondent suggested at paragraph F-301 rewording to state that Electronic Document Access (EDA) will automatically populate all available and applicable contract data.

Response:This change is incorporated at F-301(a)(3) in the final rule.

Comment:A respondent stated that they had received multiple rejections of receiving reports due to a formatting issue. In one case, the receiving report was rejected due to a dash being dropped out of the line item stock number upon loading to WAWF. In the respondent's opinion, the missing dash should not be a reason for rejection. The respondent requested adding specific language to F-301(b)(15) to indicate that missing dashes are acceptable in the line item stock number.

Response:The respondent indicates a dash was missing from the part number. This changes the item identification significantly. There are no known concerns with the National Stock Number functionality.

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

DoD does not expect this final rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601,et seq.The final rule provides guidance on the preparation and use of the electronic WAWF Receiving Report which is now required for use in most contracts. Additionally, the rule addresses the WAWF capability and instructions to comply with reporting requirements for IUID and RFID data submissions. DoD has prepared a Final Regulatory Flexibility Analysis, which is summarized as follows:

The objective of the rule is to facilitate maximum use of WAWF by providing detailed guidance. DFARS Subpart 232.70, Electronic Submission and Processing of Payment Requests and Receiving Reports, prescribes policies for submitting and processing payment requests in electronic form to comply with 10 U.S.C. 2227, Electronic Submission and Processing of Claims for Contract Payments. WAWF is the DoD system for contractors to submit payment and receiving reports in an electronic format. This final rule affects all DoD contractors who are not exempt from using WAWF. Exempt classes of contracts are those that are listed under the seven categories of contracts at DFARS 232.7002, Policy. Record keeping required is limited to that necessary to properly invoice and record shipping and receiving information under Government contracts. The preparation of these records requires clerical and analytic skills to create the documents and input them into the electronic WAWF system.

The rule does not duplicate, overlap, or conflict with any other Federal rules. There are no known significant alternatives to the rule that would meet the requirements of 10 U.S.C. 2227, Electronic Submission and Processing of Claims for Contract Payments. Any impact on small business is expected to be beneficial by providing detailed use, preparation and distribution guidance for electronic submission in lieu of preparing and submitting paper invoices and receiving records.

The Paperwork Reduction Act (44 U.S.C. chapter 35) applies. The Appendix F information collection requirements in this rule are approved under Office of Management and Budget Control Number 0704-0248, DFARS Appendix F, Material Inspection and Receiving Report. The current approval took into consideration use of the automated WAWF system, so inclusion of the WAWF guidance into Appendix F adds no new information collection requirements.

Therefore, 48 CFR chapter 2 is amended by revising appendix F to read as follows:

This rule is based on a request from Headquarters NATO Training Mission—Afghanistan (NTM-A) to permit the designation of non-U.S. Government employees as contracting officer's representatives (CORs) in support of the NTM-A's efforts to train the Afghan National Security Force (ANSF). The NTM-A supports the growth of the ANSF through numerous activities including the contracting of civilian mentoring services. These contracts for mentoring services to the ANSF require the contractor to deploy teams throughout the joint area of operations and interact with non-U.S. coalition partners exclusively. To provide assurance that contractual requirements are being met, it is crucial that contract performance information be submitted to the contracting officer by those coalition units with insight of contractor activities.

Contracting officers supporting contingency operations abroad require the flexibility to ensure the proper oversight of contract performance, such as at locations where there is no U.S. presence or the designation of a U.S. Government COR is not viable. This rule provides that flexibility by clarifying at DFARS 201.602-2 that a COR must be an employee, military or civilian, of the U.S. Government, a foreign government, or a NATO/coalition partner. CORs must meet all training and experience qualifications commensurate with the delegated responsibilities per DFARS 201.602-2(2)(ii). In addition, the rule makes clear that contractor personnel may not serve as CORs. Contractor personnel may, however, continue to perform technical oversight functions on behalf of the contracting officer, excluding those that are inherently governmental (see FAR 7.5).

DoD has issued this rule as a final rule because this rule does not have a significant effect beyond the internal operating procedures of DoD and does not have a significant cost or administrative impact on contractors or offerors. Therefore, public comment is not required in accordance with 41 US.C. 1707.

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

The Regulatory Flexibility Act does not apply to this rule. This final rule does not constitute a significant DFARS revision within the meaning of FAR 1.501, and public comment is not required in accordance with 41. U.S.C. 1707.

The final rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under Paperwork Reduction Act (44 U.S.C. chapter 35).

Therefore, 48 CFR part 201 is amended as follows:

I. Background

On January 4, 2011, Public Law 111-350 enacted a new codified version of Title 41, United States Code (U.S.C.), entitled “Public Contracts.” The purpose of this final rule is to update all references to Title 41 in the DFARS to conform to the recodification.

DoD has issued a final rule because this rule does not have a significant effect beyond the internal operating procedures of DoD and does not have a significant cost or administrative impact on contractors or offerors. Therefore public comment is not required in accordance with 41 U.S.C. 1303.

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

The Regulatory Flexibility Act does not apply to this rule. This final rule does not constitute a significant DFARS revision within the meaning of FAR 1.501 and public comment is not required in accordance with 41 U.S.C. 1707.

The rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

Therefore, 48 CFR parts 201, 209, 212, 215, 219, 232, 237, 243, 252 and appendix I to chapter II are amended as follows:

I. Background

DoD published a proposed rule in theFederal Registerat 76 FR 21847 on April 19, 2011, to add DFARS language that provides offerors the opportunity to propose an alternative line item structure in solicitations for commercial items and initial provisioning spares. This DFARS change will allow offerors to provide information about their products that may not have been known to the Government prior to issuance of the solicitation. No public comments were received regarding the proposed rule.

DoD identified the need to propose an alternative line item structure during process reviews and working group sessions that assessed destination-acceptance procedures. The process reviews performed by DoD cross-service working groups, which were chartered by the Defense Finance and Accounting System, examined issues causing problems in the receipt and acceptance phase for contract deliverables and payments.

This group determined that the level of detail in the requirements description and line item structure is not always sufficient for delivery, payment, and subsequent inventory management of the items delivered. For example, the contract line item may be for a desktop computer, but the actual items delivered, invoiced, and inventoried may reflect a separate monitor, keyboard, and central processing unit. The resultant misalignment of transaction detail (i.e.,contract line item, invoiced unit, delivery and inventory unit) is the cause of failures in the electronic processes of the DoD's business enterprise requiring manual intervention with potential delays in contractor payment.

To address this recurring problem, this rule establishes and standardizes a process to enable offerors to propose changes in their offer to the solicitation's line item structure. Establishing such a process is a first step towards managing variation in these transactions by eliminating or reducing manual intervention.

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

DoD certifies that this final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601,et seq.,because the rule does not impose any additional requirements on small businesses. Further, this change does not add to, or delete from existing requirements or authorities for entities to include alternative line item structures in their offers. This rule is formalizing a process to facilitate offerors' ability to request changes to the line item structure.

The rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

Therefore, 48 CFR parts 204, 212, and 252 are amended as follows:

(B) Use the provision at 252.209-7001, Disclosure of Ownership or Control by the Government of a Terrorist Country, as prescribed in 209.104-70(a).

(C) Use the clause at 252.211-7003, Item Identification and Valuation, as prescribed in 211.274-4.

(D) Use the clause at 252.211-7006, Radio Frequency Identification, as prescribed in 211.275-3.

(E) Use the provision at 252.225-7010, Commercial Derivative Military Article—Specialty Metals Compliance Certificate, as prescribed in 225.7003-5(b).

(F) Use the clause at 252.225-7040, Contractor Personnel Authorized to Accompany U.S. Armed Forces Deployed Outside the United States, as prescribed in 225.7402-4.

(G) Use the clause at 252.225-7043, Antiterrorism/Force Protection Policy for Defense Contractors Outside the United States, in solicitations and contracts that include the clause at 252.225-7040.

(H) Use the clause at 252.232-7009, Mandatory Payment by Governmentwide Commercial Purchase Card, as prescribed in 232.1110.

(I) Use the clause at 252.232-7010, Levies on Contract Payments, as prescribed in 232.7102.

(J) Use the clause at 252.232-7011, Payments in Support of Emergencies and Contingency Operations, as prescribed in 232.908.

(K) Use the clause at 252.246-7003, Notification of Potential Safety Issues, as prescribed in 246.371.

(L) Use the provision at 252.247-7026, Evaluation Preference for Use of Domestic Shipyards—Applicable to Acquisition of Carriage by Vessel for DoD Cargo in the Coastwise or Noncontiguous Trade, as prescribed in 247.574(e).]

(M) Use the clause at 252.247-7027, Riding Gang Member Requirements, as prescribed in 247.574(f).

DFARS 204.1202 prescribes use of DFARS provision 252.204-7007, Alternate A, Annual Representations and Certifications, in contracts that also incorporate Federal Acquisition Regulation (FAR) provision 52.204-8, Annual Representations and Certifications. FAR 52.204-8 was changed to add a new paragraph (c), which lists the applicable representations and certifications in the Online Representations and Certifications Application (ORCA). This FAR change necessitated a similar modification of DFARS 252.204-7007.

DoD published a proposed rule in theFederal Registerat 75 FR 71646, on November 24, 2010, to update DFARS 204.1202 and 252.204-7007. The public comment period closed January 24, 2011. Two respondents submitted comments on the proposed rule. A discussion of the comments is provided below.

Comment:A respondent recommended DFARS 252.212-7000, Offeror Representations and Certifications—Commercial Items, be retained in the list of representations and certification at 204.1202(2) that are not to be included in the solicitation when using the provision DFARS 252.204-7007, because that provision is to be used in non-commercial solicitations only. Another respondent recommended that DFARS 204.1202(2) include provisions that are applicable to solicitations, rather than those not applicable, similar to FAR 52.204-8.

Response:The first respondent is correct that DFARS provision 252.212-7000 is for commercial solicitations only and will not be included in solicitations that include DFARS 252.204-7007, because that provision is used when FAR 52.204-8 is included, and that FAR provision is not used in solicitations issued under FAR part 12 for acquisition of commercial items. However, inclusion of DFARS 252.212-7000 on the list at DFARS 204.1202(2) is not appropriate, because the list at DFARS 204.1202(2) should include only provisions that are listed in 252.204-7007, Alternate A, Annual Representations and Certifications. Therefore, the final rule does not retain 252.212-7000 on the list at 204.1202(2). Further, DFARS 204.1202(2) introductory text was amended to clarify that the listed provisions will not be included separately in the solicitation, because the appropriate representations and certifications will be covered by inclusion of DFARS 252.204-7007 in the solicitation.

Comment:A respondent recommended the representations at DFARS 252.216-7003 and DFARS 252.239-7011 be retained in the list of representations and certifications at DFARS 252.204-7007 because the Contractor is asked to make a representation about itself.

Response:DFARS 252.216-7003 will be retained in the list. DFARS 252.239-7011, however, will not be included because the clause requires contractors to make certain representations during contract performance concerning reimbursement of special construction and equipment costs. According to DFARS 239.7408-1(a), “special construction normally involves a common carrier giving a special service or facility related to the performance of the basic telecommunications service requirements.” Since these are costs that occur during contract performance, the contractor would not be able to make a proper representation prior to award.

Comment:A respondent recommended modifying the second sentence of DFARS 252.204.7007(e) by removing “as indicated in (d) and (e) of this provision” and adding “as well as those in (d) above” after “posted electronically.”

Response:When using the alternate at DFARS 252.204-7007, paragraphs (d) and (e) replace paragraph (d) of FAR 52.204-8. DFARS 252.204-7007(e) provides that by submission of an offer, the offeror verifies that the FAR 52.204-8(c) representations and certifications and the DFARS 252.204-7007(d) representations and certifications are up to date in ORCA. Accordingly, the language in paragraph (e) was changed to include the statement “as indicated in FAR 52.204-8(c) and paragraph (d) of this provision.”

Comment:A respondent commented that the second to last line of 252.204-7007(e) should say “provision number” instead of “clause number.”

Response:The term “clause number” was changed to “provision number” in the second to last line of 252.204-7007(e) and in the first block of the table provided.

DFARS 252.209-7001, Disclosure of Ownership or Control by the Government of a Terrorist Country, which was inadvertently omitted from the listing of provisions, has been added to 204.1202(2)(i) and 252.204-7007(d)(1)(i). The Alternates for 252.225-7020, Trade Agreements Certificate, and 252.225-7035, Buy American Act-Free Trade Agreements-Balance of Payments Program Certificate, were added to 252.204-7007(d)(2)(iii), and (vi), respectively.

Additionally, to further clarify applicability of the various provisions, 252.204-7007(d) was reformatted into two sections to separately list the DFARS provisions that the contracting officer may individually select if one of the provisions applies for a particularprocurement. Additionally, the prescription for use of 252.204-7007 was reformatted to include it as a lead in to the provision rather than being a part of the provision.

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

DoD certifies that this final rule will not have a significant economic impact on a substantial number of small entities within the meaning for the Regulatory Flexibility Act, 5 U.S.C. 601,et seq.,because the rule does not impose any additional requirements on small businesses.

A proposed rule published in theFederal Registerat 75 FR 73997, on November 30, 2010, invited comments from small businesses and other interested parties. No comments were received from small entities on the affected DFARS subpart with regard to small businesses.

The rule does not impose any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

Therefore, 48 CFR parts 204 and 252 are amended as follows:

When using the provision at FAR 52.204-8, Annual Representations and Certifications—

(1) Use the provision with 252.204-7007, Alternate A, Annual Representations and Certifications; and

(2) Do not include separately in the solicitation the following provisions, which are included in DFARS 252.204-7007:

(i) 252.209-7001, Disclosure of Ownership or Control by the Government of a Terrorist Country.

(ii) 252.209-7005, Reserve Officer Training Corps and Military Recruiting on Campus.

(iii) 252.209-7002, Disclosure of Ownership or Control by a Foreign Government.

(iv) 252.216-7003, Economic Price Adjustment—Wage Rates or Material Prices Controlled by a Foreign Government.

(v) 252.225-7000, Buy American Act—Balance of Payments Program Certificate.

(vi) 252.225-7020, Trade Agreements Certificate.

(vii) 252.225-7022, Trade Agreements Certificate—Inclusion of Iraqi End Products.

(viii) 252.225-7031, Secondary Arab Boycott of Israel.

(ix) 252.225-7035, Buy American Act—Free Trade Agreements—Balance of Payments Program Certificate.

(x) 252.225-7042, Authorization to Perform.

(xi) 252.229-7003, Tax Exemptions (Italy).

(xii) 252.229-7005, Tax Exemptions (Spain).

(xiii) 252.247-7022, Representation of Extent of Transportation by Sea.

DoD published a proposed rule in theFederal Registerat 76 FR 9714 on February 26, 2011, in response to a request of the Office of Logistics and Materiel Readiness of the Office of the Secretary of Defense (Acquisition, Technology, and Logistics) to update requirements relating to the use of passive radio frequency identification (RFID).

DoD received comments from two respondents in response to the proposed rule. One respondent expressed general support for the rule.

Comment:A respondent stated that RFID tags will play an expanded role in inventory management and asset protection for the DoD and expanded use should occur soon.

Response:DoD agrees that RFID use in inventory management is expanding and will continue to expand.

Comment:A respondent stated that RFID tracking is not the current industry standard for inventory management of pharmaceuticals and that adding this requirement would cost the suppliers and DoD a significant amount of time and money to implement. This respondent believes that the current use of 2D barcodes is sufficient for tracking pharmaceuticals and that the DoD should not require the use of passive RFID.

Response:DoD agrees and the final rule does not include a requirement for passive RFID use for pharmaceuticals.

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

DoD has prepared a Final Regulatory Flexibility Analysis (FRFA) consistent with the Regulatory Flexibility Act, 5 U.S.C. 601,et seq.The FRFA is summarized as follows.

The DFARS previously listed approximately 20 specific DoD activity addresses and provides the authority for using other ship-to locations “outside the contiguous United States” under certain circumstances. However, the Defense Logistics Agency and the Navy proposed adding more than 200 additional sites, making it impracticable to list all DoD passive RFID addresses in the DFARS text or its associated clause. Instead, this rule adds a Web site for contractors to find the RFID Identifier for each specific DoD ship-to address that uses RFID technology. Including the Web site in the DFARS has the added benefit of enabling the addition of new ship-to addresses in the future as necessary without the need to revise the DFARS in each case. This final rule amends the revised, shortened list of ship-to addresses at DFARS 211.275-2(a)(2) to allow contracting officers to add tagging requirements to contract deliverables shipping to DoDAACs not specifically included in the list as they deem necessary.

The current OMB information collection justification for the clause associated with the current DFARS, 252.211-7006, entitled “Radio Frequency Identification,” lists the number of contractors impacted by the RFID requirement as 25,500. While each contractor has multiple submissions (one for each shipment), it takes only 1.12 seconds per response. The rule changes impact, if any, should decrease the response time and not increase it.

There are information collection requirements associated with the use of RFIDs. However, there will be no substantive change to the existing information collection requirements currently approved under OMB Information Control Number 0704-0434, DFARS; Radio Frequency Identification Advance Shipment Notices. Therefore, DoD has determined that the final rule has no material impact on the approved collection.

Therefore, 48 CFR parts 211 and 252 are amended as follows:

I. Background

This final rule amends the Defense Federal Acquisition Regulation Supplement (DFARS) to implement section 802(b) of the FY 2007 National Defense Authorization Act (NDAA) (Pub. L. 109-364) and section 815 of the FY 2008 NDAA (Pub. L. 110-181). Section 802(b) modified 10 U.S.C. 2321(f)(2) with regard to the presumption of development at private expense for major systems. Section 815 revised 10 U.S.C. 2321(f)(2) to exempt commercially available off-the-shelf items from the requirements that section 802(b) established for major systems.

This final rule implements special requirements and procedures related to the validation of a contractor's or subcontractor's asserted restrictions on technical data and computer software. More specifically, the final rule affects these validation procedures in the context of two special categories of items: Commercial items (including commercially available off-the-shelf items), which may be referred to as the “Commercial Rule;” and major systems (including subsystems and components of major systems), which may be referred to as the “Major Systems Rule.”

DoD published a proposed rule with a request for comments in theFederal Registeron May 7, 2010 (75 FR 25161). Two respondents provided comments.

A discussion of the comments and the changes made to the rule as a result of those comments are provided as follows.

Comment:Two respondents described the prescriptions at DFARS 227.7102-3(b) and 227.7103-6(a) as new requirements that exceed the changes necessary to implement the statute.

Response:The operative elements of the clause prescription at DFARS 227.7102-3(b) were a part of the last major revision of Part 227 in 1995. The substance of the prescription has not changed in the proposed rule; the requirement was redesignated as DFARS 227.7102-(4)(b) and revised to cross-reference the prescription added to DFARS 227.7103-6(a). This follows DFARS drafting principles to use only a single prescription for each clause, using cross-references when necessary. As such, the prescription at DFARS 227.7103-6(a) serves as the primary source for prescribing all uses of the clause at DFARS 252.227-7013, with a cross-reference at 227.7102-(4)(b).

Comment:A respondent recommended that the criteria “or will pay any portion of the development costs” should be eliminated because the Government should not receive the benefit of something it may or may not pay for in the future outside of the contract.

Response:The “will pay” criterion has been used since 1995. The term “will” is used to denote an anticipated future action or result, and there is no evidence that this criterion has been or should be interpreted as seeking to be used in a contract when the criteria used to invoke the clause has not, and is not, expected to occur during the contract.

Comment:Two respondents outlined specific concerns that prescribing use of the noncommercial clause for technical data related to a commercial item is unnecessarily burdensome with regard to the noncommercial marking requirements. One respondent argued that this could result in the contractor unintentionally forfeiting its intellectual property rights by delivering with commercial markings that do not comply with the DFARS noncommercial marking requirements.

Response:The prescription for the use of the clause at DFARS 252.227-7013 in this scenario already exists. Use of commercial restrictive markings would not directly result in the forfeiture of the contractor's intellectual property rights in cases in which the noncommercial marking rules were used. The restrictive marking required by the clause at DFARS 252.227-7015(d) for technical data related to commercial items should be sufficient to: (1) Preserve the contractor's rights under the noncommercial clause procedures for correcting “nonconforming” markings (see DFARS 252.227-7013(h)(1)) or (2) validate asserted restrictions under DFARS 252.227-7037, which is used regardless of whether the clauses at DFARS 252.227-7013 or 252.227-7015 are included.

The final rule is amended to address concerns about the desirability of requiring noncommercial markings for the entire technical data package, in cases where the Government may have funded only a small portion of the development. The final rule revises the prescriptions at DFARS 227.7102-4(b) and 227.7103-6(a), to clarify that in cases when the Government “will have paid” for any portion of the development of a commercial item, both the commercial clause at DFARS 252.227-7015 and the noncommercial clause at DFARS 252.227-7013 should be used together. In these cases, the noncommercial clause will apply only to the technical data related to those portions of the commercial item that were developed in some part at Government expense, and the commercial clause will remain applicable to the rest of the data. This preserves the preexisting allocation of rights between the parties, but avoids the necessity of applying noncommercial markings to data related to commercial technologies that were developed exclusively at private expense. In addition, the flowdown requirements of DFARS clause 252.227-7013(k) and clause 252.227-7015(e) are clarified to enable the use of the appropriate clause(s) to lower-tier subcontracts.

Comment:Two respondents commented that the proposed revisions result in a commercial item losing its commercial item status. One of these respondents recommended the elimination of the “developed exclusively at private expense” component of the proposed revisions to the clause at DFARS 252.227-7019, to avoid the application of the noncommercial clauses to commercial technologies.

Response:The prescription for the use of the clause at DFARS 252.227-7013 does not affect the commercial status of an item that otherwise meets the definition of commercial item at FAR 2.101 (based on 41 U.S.C. 403(12), and 10 U.S.C. 2302(3)(I)). If the item still qualifies as a commercial item, then it is a commercial item. If that commercial item was not developed exclusively at private expense, then the rules apply that govern the treatment of technical data deliverables and associated license rights related to that commercial item.

Comment:Two respondents identified several ways in which the prescribed use of the clause at DFARS 252.227-7013, instead of 252.227-7015, appears to be inconsistent with FAR and DFARS policies regarding data deliverables and data rights in commercial technologies. The respondents noted that DFARS 227.7102-1 states DoD's basic policy that DoD shall acquire only the technical data deliverables that are customarily provided to the public, with a few exceptions.

Response:The prescription for the use of the clause at DFARS 252.227-7013, when the item has been developed in part at Government expense but the item still qualifies as commercial, does not change the applicability of this policy statement. The policy provides exceptions, one of which allows the Government to require the delivery of technical data that describes modifications made at Government expense even if such data is not typically provided to the public (see DFARS 227.7102-1(a)(3)).

Comment:A respondent recommended the elimination of the “developed exclusively at private expense” component of the proposed revisions to the clause at DFARS 252.227-7019, to avoid the application of the noncommercial clauses to commercial technologies.

Response:The respondent's basis for concern is unclear in view of the limited applicability of the clause at DFARS 252.227-7019 to only noncommercial computer software, and the proposed revisions address only the noncommercial aspects of the Major Systems Rule. Accordingly, the proposed revisions to the validation procedures for noncommercial computer software at DFARS 227.7203-13 and 252.227-7019 are retained in the final rule.

Comment:One respondent noted that DFARS 227.7202-1 states the basic policy governing commercial computer software and computer software documentation is that the Government acquires the licenses customarily provided to the public unless such licenses are inconsistent with Federal procurement law or do not otherwise satisfy the agency's needs.

Response:The proposed rule creates no issues or conflicts with this policy since there are no changes proposed for any DFARS coverage related to commercial computer software or documentation.

Comment:Two respondents recommended that 10 U.S.C. 2320 and 10 U.S.C. 2321 not be removed from the list of statutes set forth in DFARS 212.504(a), which prohibits their application to subcontracts for commercial items. One respondent concluded that removing these statutes from the list appears to “unilaterally overturn the express intent of Congress and the FAR Council” and that the proposed rule did not explain the basis for the decision to remove the statutes from the list.

Response:The proposed rule explains the basis for this determination. The decision to remove these statutes from the list is based on the appropriate statutory determinations that doing so is in the best interest of the Government. The proposed revisions to DFARS 212.504(a) are retained in the final rule.

Comment:A respondent argued that the proposed rule should not make any changes to the validation procedures for computer software; in particular, the clause at DFARS 252.227-7019, “Validation of Asserted Restrictions—Computer Software,” should not be amended to include the proposed new paragraph (f) that implements the “Major Systems Rule.” In addition, a respondent contended that the decision to cover software was flawed because: (1) There is no statutory basis for the change and (2) not all rights determinations are “black and white.”

Response:(1) Although 10 U.S.C. 2320 and 2321 apply only to technical data and not to computer software, it is longstanding DoD policy and practice toapply the same or analogous requirements to computer software, whenever appropriate. Accordingly, the proposed rule implements revisions to the validation procedures for computer software only to the extent that those procedures are based on the technical data validation procedures that are affected by the statutory changes. The result is that it is only the Major Systems Rule that is adapted for application only to noncommercial computer software. (2) The new Major Systems Rule is applicable only to challenges of contractor assertions that development was exclusively at private expense. Thus, the proposed adaptation of the new Major Systems Rule to noncommercial software validation also is not applicable to assertions based on mixed funds, and does not in any way restrict the ability to segregate mixed-funding development into its privately-funded and Government-funded portions.

Comment:One respondent stated that the proposed rule creates two separate standards for civilian and DoD agencies in that “the practical result could be that an item will be treated as commercial for purposes of intellectual property rights by civilian agencies, and as non-commercial by the agencies of DoD.”

Response:Without analyzing the required treatment under the FAR of a commercial item by a civilian agency when the Government has paid a portion of the development costs, the proposed rule has not changed the criteria for whether an item is a commercial item (i.e.,under the definition at FAR 2.101). Since 1995, DFARS 227.7102-3(b) has required the use of the noncommercial clause at 252.227-7013 in lieu of the commercial clause at 252.227-7015 if the Government will pay any portion of the development costs of the commercial item. Although the proposed revision of the DoD validation scheme to include a “Commercial Rule” and a “Major Systems Rule” may have no equivalent in the civilian validation scheme, DoD's process is driven by the changes to 10 U.S.C. 2321, for which there is no equivalent in the civilian agency statute (41 U.S.C. 253d). No revisions are necessary.

Comment:A respondent identified a citation error, which seeks to remove and reserve 212.504 paragraphs (a)(v) 10 U.S.C. 2324, Allowable Costs Under Defense Contracts and (a)(vi) 10 U.S.C. 2327, Reporting Requirements Regarding Dealings with Terrorist Countries, when it appears that the intent is to remove paragraphs (a)(iii) 10 U.S.C. 2320, Rights in Technical Data and (iv) 10 U.S.C. 2321, Validation of Proprietary Data Restrictions.

Response:The respondent is correct. This change is reflected in the final rule.

Comment:A respondent recommended changing the cross-reference in the second sentence of DFARS 252.227-7037(c) from paragraph (b) to (b)(1) for further clarification.

Response:The respondent is correct. This change is reflected in the final rule.

Changes made in the final rule based on the public comments received, include the following:

• Removed DFARS 212.504 paragraphs (a)(iii) 10 U.S.C. 2320, Rights in Technical Data, and (a)(iv) 10 U.S.C. 2321, Validation of Proprietary Data Restrictions, instead of DFARS 212.504 paragraphs (a)(v) 10 U.S.C. 2324, Allowable Costs Under Defense Contracts and (a)(vi) 10 U.S.C. 2327, Reporting Requirements Regarding Dealings with Terrorist Countries.

• Revised the prescriptions at DFARS 227.7102-4(b) and 227.7103-6(a) to clarify that in cases when the Government “will have paid” for any portion of the development of a commercial item, both the commercial clause at DFARS 252.227-7015 and the noncommercial clause at DFARS 252.227-7013 shall be used together.

• Revised 252.212-7001(b) to add 252.227-7013 and 252.227-7037 to be used, as applicable.

• Revised 252.212-7001(c) to add 252.227-7013, 252.227-7015 and 252.227-7037 to be flowed down to subcontractors, as applicable.

• Revised the clause flowdown requirements of DFARS 252.227-7013(k) and 252.227-7015(e) to enable the use of the appropriate clause(s) to lower tier subcontracts.

• Changed the cross reference in the second sentence of the clause at DFARS 252.227-7037(c) from paragraph (b) to (b)(1).

• Revised 252.244-7000 to add 252.227-7015 and 252.227-7037 to be flowed down to subcontractors, as applicable.

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

DoD certifies that this final rule will not have significant economic impact on a substantial number of small entities within the meaning for the Regulatory Flexibility Act, 5 U.S.C. 601,et seq.,because major systems or subsystems are generally not developed by small businesses. The rule only applies in the limited circumstances that there is a challenge to a use or release restriction for a major system or subsystem that the contractor or subcontractor claims was developed exclusively at private expense.

The rule does not impose any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

Therefore, 48 CFR parts 212, 227, and 252 are amended as follows:

I. Background

DoD published a proposed rule in theFederal registerat 76 FR 21849 on April 19, 2011, to add language to Defense Federal Acquisition Regulation Supplement (DFARS) 213.306(a)(1)(A) to include purchases of marine fuel, oil, and refueling-related items up to the simplified acquisition threshold using the Ships Bunkers Easy Acquisition (SEA) Card® in lieu of the SF 44, Purchase Order-Invoice-Voucher. Additionally, this section is revised to include additional ground refueling-related services when using the AIR Card®. These changes for use of the AIR Card® and SEA Card® will improve the refueling capability of aircraft and smaller vessels at non-contract locations. No public comments were received in response to the proposed rule.

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

A final regulatory flexibility analysis has been prepared consistent with the Regulatory Flexibility Act, 5 U.S.C. 601,et seq.,and is summarized as follows:

This is a final rule to revise the Defense Federal Acquisition Regulation Supplement (DFARS) at 213 to permit the use of U.S. Government fuel cards in lieu of an SF 44, Purchase Order-Invoice-Voucher, for fuel, oil, and refueling-related items for purchases not exceeding the simplified acquisition threshold. The objective of this rule is to amend DFARS 213.306(a)(1)(A) to (1) Permit the purchase of marine fuel using the Ships' bunkers Easy Acquisition (SEA) Card® in lieu of the SF44, Purchase Order-Invoice-Voucher, up to the simplified acquisition threshold and (2) provide additional ground refueling-related services when using the AIR Card®. The legal basis is 41 U.S.C. 1303 and 48 CFR chapter 1.

Purchases of aviation fuel are on-the-spot, over the counter transactions (“gas and go”), but generally exceed the micro-purchase threshold due to the price of aviation fuel and oil fuel tank capacities. Previously, the threshold for SF44/AIR Card® purchases of fuel and oil was set at the simplified acquisition threshold at DFARS 213.306(a)(1)(A)) under DFARS Case 2007-D017 (see final rule published at 72 FR 6484 on February 12, 2007).

The military services and the U.S. Coast Guard have small vessels that fulfill valid mission needs in direct support of national security. Unlike larger vessels, small vessels' movements and needs are often unpredictable. These small vessels must procure fuel away from their home stations, but because of their smaller size and unique mission requirements are unable to use the Defense Logistics Agency energy bunkers contracts available at major seaports. Due to port restrictions, bunkering merchants do not typically provide support to smaller vessels. Instead, these smaller vessels frequent non-contract merchants or “marina-type merchants” that otherwise serve civilian recreational watercraft and similar needs.

No public comments were received in response to the initial regulatory flexibility analysis.

Approximately 80% of “marina-type merchants” are considered small businesses. Marina-type merchants accepting the SEA Card® will pay a normal fee to the banking institution or processing center, similar to VISA charges these merchants incur from other credit card clients. In addition, merchants are expected to benefit from accelerated payments, since they will be paid by the banking institution in accordance with their merchant agreement. The rule facilitates open market purchases, benefits merchants by making it much easier for merchants to do business with the military and will not have a significant cost or administrative impact on contractors, subcontractors, or offerors.

DoD does not expect this rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601,et seq.,because the rule does not have a significant effect beyond DoD's internal operating procedures, substituting the use of a fuel card (AIR Card® and SEA Card®) in lieu of the SF44, Purchase Order-Invoice-Voucher.

This rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

Therefore, 48 CFR part 213 is amended as follows:

I. Background

DoD published a proposed rule at 75 FR 71647 on November 24, 2010, to implement the recommendation of the DoD Source Selection Joint Analysis Team (JAT) to strongly encourage the use of discussions in all competitive negotiated procurements over $100 million. The period for public comment closed on January 24, 2011, and three respondents provided comments.

The rule proposed to amend DFARS part 215 to strongly recommend, for acquisitions of more than $100 million, that contracting officers hold discussions rather than use the authority at FAR 52.215-1 to award on initial offers without discussions.

Comment:One respondent said that the proposed rule is “overkill.”

Response:No change was made in the final rule in response to this comment. The JAT advises that data shows that the number of protests filed against the award of competitive negotiated contracts and orders over $100 million is substantially higher when discussions are not held. A preference for holdingdiscussions is recognition of a best practice.

Comment:One respondent wrote that requiring discussions could have negative effects, such as added Government and industry cost due to the significant increase in the source selection schedule and reduced solicitation and proposal quality due to a mindset that problems can be fixed during discussions.

Response:The JAT data demonstrates that procurement lead time is significantly extended when protests occurred. The second concern raised by the respondent, that proposals will be of lower quality, is unrealistic because the offeror that chooses to submit an inferior proposal always runs the risk of not making the competitive range and therefore not being considered for award.

Comment:A respondent wanted to change the reference from 215.203-71 to 215.306(d) because the latter deals with discussions, which are covered at FAR 15.306(d).

Response:DoD agrees with the recommendation. The statement about holding discussions for actions of $100 million or more is relocated in the final rule to DFARS subpart 215.306(c) from 215.2.

Comment:A respondent proposed deleting the phrase “with offerors in the competitive range” at the end of the sentence “(F)or source selections when the procurement is $100 million or more, contracting officers should conduct discussions with offerors in the competitive range.” The respondent noted that FAR 15.306(c)(1) and (d), read together, require the conduct of discussions with all offerors in the competitive range in every case.

Response:DoD agrees with respondent that the FAR already mandates discussions with all offerors whose proposals have been selected for the competitive range. The intent of this rule is to expand the situations in which discussions are held beyond those situations where they may be already mandated. The language in the proposed rule at DFARS 215.203-71 is relocated to 215.306(c)(1) in the final rule and revised to state “For source selections, when the procurement is $100 million or more, contracting officers should conduct discussions. Follow the procedures at FAR 15.306(c) and (d).”

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

DoD does not expect that this final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because the final rule does not add to or delete existing regulations on discussions for DoD procurements under $100 million, the majority of DoD procurements. For procurements of at least $100 million, any increase in discussions is anticipated to benefit all offerors, including small businesses, by providing them an opportunity to explain details of the offer and address their particular capabilities.

A final regulatory flexibility analysis was performed and is summarized as follows. This rule was initiated at the request of the Director, Defense Procurement and Acquisition Policy, to implement a recommendation of the Department of Defense (DoD) Source Selection Joint Analysis Team (JAT). The JAT, which was tasked to revise the DoD Source Selection Procedures, determined that there is a significant positive correlation between high-dollar source selections conducted without discussions and the number of protests sustained. In order to improve the quality of high-dollar, complex source selections, and reduce turbulence and inefficiency resulting from sustained protests, the policy is changed to strongly encourage discussions prior to the award of source selections estimated at $100 million or more.

DoD research has indicated that meaningful discussions with industry prior to contract award on high-dollar, complex requirements improves both industry's understanding of solicitation requirements and the Government's understanding of industry issues. By identifying and discussing these issues prior to submission of final proposals, the Government is often able to issue clarifying language. The modified requirements documentation allows industry to tailor proposals and better describe the offeror's intended approach, increases the probability that the offeror's proposal satisfies the Government requirements, and often results in better contract performance. Asking contracting officers to conduct discussions with industry provides a reasonable approach to recognizing and addressing valid industry concerns and a constructive alternative to protests resulting from industry frustration over misunderstood requirements. The legal basis is 41 U.S.C. 1303 and 48 CFR chapter 1.

Data were reviewed for the most recent year available, Fiscal Year 2009. While there is no data source available that tabulates the number of offers received from small businesses, DoD determined that 620 new contracts and 252 new task orders or delivery orders of $100 million or more were awarded to small businesses during Fiscal Year 2009. Therefore, DoD estimates that at least 872 small businesses could benefit from this policy change.

There is no reporting, recordkeeping, or other compliance requirement associated with the proposed rule. Therefore, there is no impact, positive or negative, on small businesses in this area. Thus, there are no additional professional skills necessary on the part of small businesses in this area. There are no direct costs to small business firms to comply with this rule. Conversely, small businesses that might have previously filed a protest against an award when discussions were not held may now be able to avoid the costs associated with protesting.

The rule does not duplicate, overlap, or conflict with any other Federal rules.

There are no practical alternatives that will accomplish the objectives of the proposed rule. When a solicitation includes the provision at FAR 52.215-1, Instructions to Offerors—Competitive Acquisitions, paragraph (f)(4) of the clause states that the “Government intends to evaluate proposals and award a contract without discussions.” If, however, the solicitation includes FAR 52.215-1 with its Alternate I, then the revised paragraph (f)(4) states that the “Government intends to evaluate proposals and award a contract after conducting discussions with offerors whose proposals have been determined to be within the competitive range.” Use of the clause without Alternate I will not accomplish the stated objectives;only the clause with its Alternate I will accomplish the purpose of this case.

No comments were received from small entities on this rule.

The final rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

Therefore, 48 CFR part 215 is amended as follows:

I. Background

This DFARS case was initiated by DoD to perform a comprehensive review of DFARS subpart 217.1, Multiyear Contracting. On March 2, 2011, the DoD published a proposed rule to update and clarify the requirements relating to multiyear contracting. This final rule reorganizes and updates existing coverage for multiyear acquisitions.

A minor editorial change was made to the final rule at DFARS 217.170 to remove the redundant introductory sentence that had been proposed at 217.170(a) and to revert to the original paragraph numbering of this section. At DFARS 217.172(f)(1), the references to 217.172(g)(4) and (5) were corrected to refer to 217.172(g)(3) and (4). Coverage at 217.175 was renumbered to 217.174 to follow in sequence, and this required a reference citation change at 241.103. No changes to existing DoD policy, including implementation of any statutorily mandated acquisition-related thresholds, are being made in this rule.

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

DoD certifies that this rule will not have a significant economic impact upon a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601,et seq.,because the rule does not change the existing requirements of subpart 217.1. Furthermore, these requirements are primarily internal procedures for DoD. No comments were received from small entities concerning the existing regulations in subparts affected by this rule in accordance with 5 U.S.C. 610.

This rule does not impose any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

Therefore, 48 CFR parts 217 and 241 are amended as follows:

I. Background

This rule removes the requirement to use DoD-unique forms to document contractor past performance for construction and Architect-Engineer services. On April 19, 2011, DoD published a proposed rule in theFederal Registerat 75 FR 21851 to delete outdated procedures and references to obsolete DD forms. No public comments were received in response to the proposed rule.

One editorial change is being made to the final rule. The references to “A-E” are revised to read “architect-engineer” in sections 236.102, 236.602-70, 236.606-70, and in 236.609-70.

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

A final regulatory flexibility analysis has been prepared consistent with the Regulatory Flexibility Act, 5 U.S.C. 601,et seq.,and is summarized as follows.

DoD is amending the DFARS to reflect the current automated process being used by and delete outdated procedures and references to obsolete DD forms. The objective of this rule is to remove the requirement to use DD Form 2626, Performance Evaluation (Construction), and DD Form 2631, Performance Evaluation (Architect-Engineer), to evaluate contractor performance.

The Contractor Performance Assessment Report System (CPARS) is now the Governmentwide system for electronically collecting past performance data; there is no need to specify separate DoD forms to collect the data. Accordingly, this rule removes the requirement to use DD forms 2626 and 2631 from the DFARS.

On April 19, 2011, DoD published a proposed rule at 75 FR 21851. The period for public comments closed on June 20, 2011. DoD made no changes to the proposed rule because public comments were not received in response to the initial regulatory flexibility analysis.

There are no reporting, recordkeeping, or other compliance requirements associated with this rule. Thus, there are no professional skills necessary on the part of small businesses. In a like manner, there are no direct costs to small entities to comply with this rule other than the cost of internet access should small entities choose to comment on their past performance evaluation entered into CPARS by Government personnel.

There are no known relevant Federal rules that may duplicate, overlap or conflict with this rule. Instead, the rule aligns the DFARS to the Federal Acquisition Regulation (FAR) ensuring that agencies submit past performance reports electronically per FAR 42.15 eliminating the need for paper reports.

No mitigation steps were taken, since the rule does not have a significant adverse economic impact on small entities.

This rule does not impose any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

Therefore, 48 CFR part 236 is amended as follows:

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

The C season allowance of the 2011 total allowable catch (TAC) of pollock in Statistical Area 610 of the GOA is 8,729 metric tons (mt) as established by the final 2011 and 2012 harvest specifications for groundfish of the GOA (76 FR 11111, March 1, 2011). In accordance with § 679.20(a)(5)(iv)(B) the Administrator, Alaska Region, NMFS (Regional Administrator), hereby decreases the C season pollock allowance by 123 mt to reflect the total amount of pollock TAC that has been caught prior to the C season in Statistical Area 610. Therefore, the revised C season allowance of the pollock TAC in Statistical Area 610 is 8,606 mt (8,729 mt minus 123 mt).

In accordance with § 679.20(d)(1)(i), the Regional Administrator has determined that the C season allowance of the 2011 TAC of pollock in Statistical Area 610 of the GOA will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 8,506 mt, and is setting aside the remaining 100 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for pollock in Statistical Area 610 of the GOA.

After the effective date of this closure the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of pollock in Statistical Area 610 of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of September 14, 2011.

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

This action is required by § 679.20 and is exempt from review under Executive Order 12866.