The U.S. Office of Personnel Management (OPM) is issuing final regulations to implement section 565(b)(1) of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2010 (Pub. L. 111-84, October 28, 2009). Section 565(b)(1) amended 5 U.S.C. 6382(a)(1) by inserting a new subparagraph (E) that adds qualifying exigencies to the circumstances or events that entitle Federal employees to up to 12 administrative workweeks of unpaid leave under the Family and Medical Leave Act (FMLA) during any 12-month period. The regulations amend OPM's current regulations at 5 CFR part 630, subpart L, to cover qualifying exigencies that arise when the spouse, son, daughter, or parent of an employee is on covered active duty in the Armed Forces or has been notified of an impending call or order to covered active duty. As required by 5 U.S.C. 6387, the final regulations are, to the extent appropriate, consistent with the regulations prescribed by the Secretary of Labor to carry out the family medical leave entitlement for employers covered under title I of the FMLA, which primarily applies to employers in the private sector, but also includes some Federal entities, such as the U.S. Postal Service. Similar to the Department of Labor (DOL) regulations, OPM provides for eight categories of qualifying exigencies in its regulations: short-notice deployments, military events and related activities, childcare and school activities, financial and legal arrangements, counseling, rest and recuperation, post-deployment activities, and additional activities not encompassed in the other categories when the agency and employee agree they qualify as exigencies and agree to the timing and duration of the leave.

OPM published proposed regulations on the qualifying exigency leave entitlement for Federal employees for public comment on November 19, 2010, at 75 FR 70845 (http://www.gpo.gov/fdsys/pkg/FR-2010-11-19/pdf/2010-29275.pdf). We received comments from three Federal labor organizations and two agencies that are addressed below.

One agency asked for clarification of the proposed regulations at § 630.1204(a)(5), which provide that employees may take qualifying exigency leave to attend counseling provided by someone other than a healthcare provider for the employee him or herself, for the covered military member, or for a child, provided that the need for counseling arises from the covered active duty or call to covered active duty status of a covered military member. The agency recommended including examples of other types of counseling that might be provided by someone other than a healthcare provider.

OPM expects that most counseling will be provided by a healthcare provider and fall under the existing FMLA provisions, but recognizes that there may be circumstances where counseling that is non-medical in nature will be provided by someone other than a healthcare provider. For example, this could include counseling provided by a military chaplain, pastor, or minister, or counseling offered by the military or a military service organization. We believe that providing these examples in this supplementary information portion of the regulations is sufficient and do not believe it is necessary to add these examples to the regulatory text.

One labor organization said it supported the regulations, but recommended that OPM clarify certain provisions pertaining to the certification requirements under the regulations. The union referred to proposed § 630.1209(b) published November 19, 2010, at 75 FR 70850.

The commenter stated that § 630.1209 requires a substantial amount of information to certify exigencies, some of which involve sensitive and privileged subjects such as legal services, counseling, child care, and education. For example, the labor organization stated that the regulations “would require a Federal employee who needs time off to attend a parent-teacher conference to submit a signed statement of the need for the exigency leave, along with a signed document from the school confirming the meeting, in addition the name of the parties met with, their titles, their organizations, addresses, phone numbers, fax numbers and e-mail addresses.” The commenter noted obstacles to obtaining this information, such as a school prohibition on documenting these conferences, schools not having appropriate letterhead, or school staff not having time to fill out the certification. The commenter also expressed concern regarding an employee's ability to gather and, where necessary, pay for the documentation needed to comply with certification requirements when the employee is otherwise burdened as a result of the deployment or death of a family member. The union said employees in these circumstances might not have time to pursue documentation for the number of exigencies for which they are now solely responsible.

To address these concerns, the commenter recommended that OPM permit employees to provide a statement of facts regarding the qualifying exigency along with either the supporting documentation described under § 630.1209(b)(1) or the third party contact information described under § 630.1209(b)(5), but not require both. The labor organization feels this will give Federal employees some flexibility in dealing with sensitive issues or uncooperative service providers.

OPM modeled its regulations on qualifying exigency leave to be consistent, to the extent appropriate, with DOL's regulations. Section 630.1209 of OPM's regulations corresponds to 29 CFR 825.309 of DOL's regulations. DOL addressed this issue in its final regulations. (See discussion at 73 FR 68023-68025.) DOL strove to achieve an appropriate balance between providing employers with a reasonable amount of information to demonstrate the validity of the qualifying exigency and ensuring that employees are not overburdened with unnecessary steps that do not enhance the utility of the certification. They also stated that for certification purposes, “[w]here applicable, this information should be readily available to the employee and should not impose a significant obstacle.” (73 FR 68024.)

We believe that the certification requirements for qualifying exigency leave under the regulations do not overly burden employees. Section 630.1209(b)(1) states only that the certification statement include “any available written documentation” that supports the leave request, and provides such examples as a meeting announcement, an appointment confirmation, or a copy of a bill for legal or financial services. The regulations do not require the employee to obtain a letter or signature from a school, sponsoring organization, or other party, or provide any documentation that would be prepared at a cost to the employee. The employee's statement of facts regarding the qualifying exigency should include, whenever possible, only documentation that is already on hand or is easily obtainable.

Under section 630.1209(b)(5), agencies may require employees to provide contact information for individuals or entities with whom the employee is meeting so that agencies may verify, as necessary, the information described under section 630.1209(c). We believe it is important that agencies have discretion to require that employees provide this contact information even when the statement of facts is complete, sufficient, and fully documented. Agencies must have the option to verify the information described in paragraphs (c)(1) and (2) in order to prevent abuse of the qualifying exigency leave entitlement. However, in most cases, we do not anticipate that agencies will contact third parties to verify the information under paragraph (c) if the employee provides sufficient documentation of the qualifying exigency with his or her statement of facts. We also note that the contact information listed in parentheses in paragraph (b)(5) is illustrative; employees need provide only the information appropriate for the contact (e.g.,in many cases, address and fax number may not be necessary). Therefore, OPM has not adopted this recommendation and has made no changes to the regulations in this section.

Another labor organization expressed concerns about the potential privacy implications of the certification requirement, citing as an example a meeting with a bankruptcy counselor. As noted previously, employers must be provided a reasonable amount of information to demonstrate the validity of the qualifying exigency; however, that information may be described in general terms on the certification.

In regard to the verification provisions in § 630.1209(c), the same labor organization recommended that agencies not be permitted to request that third parties describe the nature of employee visits. The labor organization also recommended that the verification be conducted and kept confidential by agency human resources staff, not by the direct supervisor of the employee. Another labor organization commented on the verification provisions, recommending that OPM address management access to an employee's medical records in regard to the Privacy Act. This labor organization also said that agencies should inform an employee before a verification contact so that the employee can alert the third party as to the importance of the contact to the employee's qualifying exigency leave entitlement.

Based on the comments received by the labor organizations, it is apparent that the verification provisions in § 630.1209(c) of the proposed regulations did not clearly describe the information an agency may verify. Specifically, where the proposed regulations state that an agency may verify the nature of a meeting, the intent was not to permit an agency to ask for detailed information about an employee's medical circumstances or other personal matters, but to permit the agency to verify the information the employee already provided in his or her statement under § 630.1209(b)(1) regarding the nature of the qualifying exigency. As an example of a verification contact (paraphrased from DOL's discussion in its November 17, 2008, regulations), an agency might call a school to confirm that a meeting took place between the employee and the teacher of a child of a covered military member. Therefore, we have clarified in § 630.1209(c) of the final regulations that agencies may verify only the information provided by the employee in his or her statement and may not request additional information.

In light of this clarification, we believe the recommendation from the labor organizations that the verification be conducted and kept confidential by agency human resources staff and not by the direct supervisor of the employee should no longer be an issue. The employee's direct supervisor must be able to manage the workload for his or her workgroup, which includes the approval of leave requests. The verification of information regarding the employee's qualifying exigency leave entitlement is therefore pertinent to decisions the supervisor must make in scheduling work and approving leave requests. Therefore, we believe it is appropriate for the employee's direct supervisor to conduct the verification of the information in the employee's request or at least be fully apprised of the results of the verification.

Regarding the comment on addressing management access to an employee's medical records under the Privacy Act, the qualifying exigency leave regulations do not require any collection of medical records. (We note, however, that access to medical records is subject to the provisions of 5 CFR part 293. See 5 CFR 630.1208(k) of these final regulations.) Regarding the comment stating that agencies should inform an employee before making a verification contact, we believe that the requirement for an employee to provide third party contact information is sufficient notice to the employee that the agency may contact the third party.

One agency expressed concern with the verification provisions in § 630.1209(c) of the proposed regulations which provide that an agency may contact an appropriate unit of the Department of Defense to request verification that a covered military member is on covered active duty or a call to covered active duty status. The agency suggested that before the regulations are implemented, it would be helpful for OPM and DOD to agreeon a procedure for agencies to obtain this information and share these procedures. The agency further stated that its experience has been that DOD will not provide information on an employee's military service without written consent from the employee, and under the regulations, the covered military member is likely not an employee of the agency.

When the Department of Labor was developing the military portions of its FMLA regulations (i.e, the qualifying exigency and leave to care for a covered servicemember entitlements) it consulted with the Department of Defense (DOD), the Department of Veterans Affairs (VA), and a number of military service organizations to provide regulations that would both meet the intent of Congress and not place an undue burden on employees seeking to use these entitlements. OPM therefore believes that the verification process outlined in 5 CFR 630.1209(c)(1), which is the same procedure as in the DOL FMLA regulations, should function appropriately. We understand that the covered military member may have to provide written consent for release of this information, but that may also be the case when an employee seeks FMLA leave to care for a family member who has a serious health condition. We also believe that in most circumstances, an agency will find the covered servicemember's active duty orders sufficient proof that a covered military member is on covered active duty or call to covered active duty status and will not feel a need to verify the certification. However, if an agency has any doubt about the active duty orders, we believe the verification process will provide a useful tool for agencies to use to verify the certification information given to them.

One labor organization asked if any distinctions exist between District of Columbia (DC) employees and other employees under OPM's qualifying exigency leave regulations. There are no distinctions made between Federal employees working in DC compared to those who work outside of the District. OPM's qualifying exigency FMLA regulations apply to any employees covered under title II of the FMLA (5 U.S.C. 6381). Employees who work for the District of Columbia government are not covered by title II of FMLA.

For employees covered by DOL's FMLA regulations, DOL has developed an optional form (Form WH-384) for employees' use in obtaining a certification that meets the qualifying exigency certification requirements. (Seehttp://www.dol.gov/whd/forms/WH-384.pdf.) On March 5, 2010, OPM issued CPM 2010-06 to Heads of Executive Departments and Agencies regarding “Recent Changes to the Family and Medical Leave Act” to reflect the changes made by the FY 2010 NDAA. As part of this memorandum, we provided Federal agencies the option to choose to use this form as a guide in administering FMLA leave for qualifying exigencies for their employees. This optional form reflects certification requirements so as to permit the employee to furnish appropriate information to support his or her request for leave because of a qualifying exigency. At that time, we stated that employing agencies could use Form WH-384 or another document containing the same basic information for qualifying exigency purposes. In our proposed regulations, we requested comments on whether OPM should develop a certification form similar to DOL's WH-384 for use by Federal employees covered by title II of the FMLA.

We received one comment outside of the public comment period in support of developing an OPM form. The commenting agency felt that an OPM form would provide more specific information to Federal employees, including applicable regulatory citations. Currently the WH-384 references the DOL citations for title I employees, who are primarily employed in the private sector.

We have considered developing a separate form for Federal agencies to use with specific citations to OPM's FMLA regulations. The DOL form is optional and reflects certification requirements so as to permit the employee to furnish appropriate information to support his or her request for leave because of a qualifying exigency. Currently, we state that employing agencies could use Form WH-384 or another document containing the same basic information for qualifying exigency purposes. Absent any comments or concerns raised by agencies, we have concluded that there is little to be gained by creating another optional form that would mostly duplicate the DOL form.

As mentioned in our previous guidance, it should be noted that Form WH-384 contains citations to DOL's regulations, which are not the applicable authority for Federal employees governed by OPM's FMLA authorities. It should also be noted that since WH-384 was issued, the NDAA for FY 2010 added a definition of “covered active duty” at 5 U.S.C. 6381(7) to mean duty of a member of a regular component of the Armed Forces during deployment to a foreign country, and duty of a member of a reserve component of the Armed Forces to a foreign country under a call or order to active duty under a provision of law referred to in 10 U.S.C. 101(a)(13)(B). Currently the WH-384 requests documentation to confirm that a covered servicemember's active duty (or call to active duty) is in support of a contingency operation. Federal agencies should continue to use the WH-384 as a tool; however, agencies do not need to document that the covered service member's active duty is in support of a contingency operation, but instead may request information to ensure that the active duty is to a foreign country.

The Office of Management and Budget has reviewed this rule in accordance with E.O. 13563 and E.O. 12866.

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

Accordingly, OPM is amending 5 CFR part 630 as follows:

On October 5, 2010, the MSPB published an interim rule amending 5 CFR 1201.117. (75 FR 61321) The interim rule amended 5 CFR 1201.117(c) to make clear that the Board may, in its discretion, include discussion of issues raised in an appeal in a nonprecedential Order and amended 5 CFR 1201.117(b) to make clear that the Board may issue a final decision and, when appropriate, order a date for compliance with that decision.

The Board received comments concerning this interim rule from two individuals. The first commenter expressed unease with 5 CFR 1201.117(a)(5) and feared that this provision could be used to “scuttle” cases and asked that this provision be amended to state clearly that it would not be used to the detriment of employees and applicants for Federal positions. The interim rule did not amend 5 CFR 1201.117(a)(5). The Board has considered this comment and declines to amend this section.

A second commenter offered several observations. First, this commenter noted that there was no need for a separate class of nonprecedential Orders because the Board has in the past used footnotes to provide additional information in cases summarily denying petitions for review. The Board has considered this comment, but has determined that the goal of giving parties greater insight into the Board's reasoning in a particular case, without requiring the Board to issue a precedential decision, is best served by the issuance of nonprecedential Orders. This commenter also expressed the concern that if the Board's purpose was to avoid publication of nonprecedential Orders on the Board's Web site or by other reporting services, this goal would likely be thwarted by commercial reporting services with the result that two classifications of Board decisions would be published and ultimately cited by parties. The Board's goal was not to avoid publication of nonprecedential Orders. The Board will post nonprecedential Orders on its Web site. In addition, this final rule contains specific guidelines for the citation of nonprecedential Orders. Finally, this commenter opined that issuance and publication of nonprecedential Orders would complicate legal research, lead to confusion, and not serve the goal of open government. As noted above, the Board has included specific guidelines for the citation of nonprecedential Orders. Further, the Board is convinced that the issuance and publication of nonprecedential Orders will serve the goal of openness in the Board's decision-making by giving parties greater insight into the Board's reasoning.

The amendments in this final rule affect only 5 CFR 1201.117(c) and include updated procedures for the issuance of Opinions and Orders andnonprecedential Orders, explain that parties may cite nonprecedential Orders, and also explain that the Board is not bound by nonprecedential Orders in its future decisions.

The Board believes that issuing and publishing nonprecedential Orders that include a substantive review of issues presented in an appeal will serve the useful purpose of informing parties of the Board's reasoning in a particular appeal. In addition, the new regulation should ensure the maximum degree of transparency in the Board's decision-making to the greatest extent possible.

Accordingly, the Board amends 5 CFR part 1201 as follows:

Dodd-Frank (Pub. L. 111-203), sets forth rules that apply to employees of the OFR. This interim rule establishes 12 CFR chapter XVI, consisting of part 1600, which generally prohibits the Director of the OFR and any employee of the OFR who has had access to the transaction or position data maintained by OFR's Data Center or other business confidential information about financial entities required to report to the OFR from being employed by or providing advice or consulting services to a financial company, for a period of one year after last having had access in the course of official duties to such transaction or position data or business confidential information, regardless of whether that entity is required to report to the OFR.

The OFR was established by section 152 of Dodd-Frank (Public Law 111-203). Section 152(g) of Dodd-Frank provides that:

The Department is adding this regulation to explain the circumstances under which an OFR employee, who has had access to the transaction or position data maintained by OFR's Data Center or other business confidential information about financial entities required to report to the OFR, is prohibited from being employed by or providing advice or consulting services to a financial company, regardless of whether the financial company is required to report to the OFR, for a period of one year after last having had access in the course of official duties to transaction or position data or business confidential information maintained by the Data Center.

The new rule permits all OFR employees whose access to business confidential information was limited to seek a waiver from the Designated Agency Ethics Official.

Under 5 U.S.C. 553(a)(2), rules relating to agency management or personnel are exempt from the proposed rulemaking requirements of the Administrative Procedure Act (APA). As set forth in the description of the interim rule, this rule affects only the OFR and its personnel. Nonetheless, the Department is issuing this interim rule for comment and welcomes comments from the public on all aspects of the rule. Even if this rulemaking were subject to APA proposed rulemaking procedures, the Department finds good cause, pursuant to 5 U.S.C. 553(b) and (d), to waive the requirements for notice and comment and 30-day delayed effective date because the rule affects only the OFR and its employees. It is in the public interest that this rule, which concerns matters of agency management, personnel, organization, practice and procedure, and in part relieves certain restrictions placed on OFR employees, become effective on the date of publication.

Because no notice of proposed rulemaking is required, the provisions of the Regulatory Flexibility Act (5 U.S.C. 601et seq.) do not apply.

This interim rule is not a “significant regulatory action” for the purposes of Executive Order 12866.

Section 202 of the Unfunded Mandates Reform Act of 1995 (Unfunded Mandates Act) requires an agency to prepare a budgetary impact statement before promulgating a rule that includes a Federal mandate that may result in expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year. If a budgetary impact statement is required, section 205 of the Unfunded Mandates Act also requires an agency to identify and consider a reasonable number of regulatory alternatives before promulgating a rule. This rule addresses restrictions on OFR employees regarding certain post-employment activities. The Department therefore has determined that the rule will not result in expenditures by State, local or Tribal governments or by the private sector of $100 million or more. Accordingly, the Department has not prepared a budgetary impact statement or specifically addressed the regulatory alternatives considered.

For the reasons set forth in the preamble, the Department, with the concurrence of OGE, establishes 12 CFR chapter XVI, consisting of part 1600, to read as follows:

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede airworthiness directive (AD) 2010-17-05, Amendment 39-16395 (75 FR 50859, August 18, 2010). That AD applies to the specified products. The NPRM published in theFederal Registeron December 20, 2010 (75 FR 79317). That NPRM proposed to continue to require replacement of the power control relays in the P91 and P92 power distribution panels for the fuel boost and override pumps with new, improved relays having a ground fault interrupter (GFI) feature, or installation and maintenance of universal fault interrupters (UFIs) using a certain supplemental type certificate. That NPRM also proposed to specify which relays may be replaced by GFIs or UFIs.

We have been informed that referring to TDG Aerospace UFIs, as provided in paragraph (g)(2)(ii) of the NPRM (75 FR 79317, December 20, 2010), violates Office of the Federal Register (OFR) regulations (1 CFR part 51) for approval of optional materials “incorporated by reference” in rules. We have revised paragraph (g)(2)(ii) of this AD to specify that installation of TDG Aerospace UFIs, as provided in that paragraph, must be done in accordance with a method approved by the Manager, Seattle Aircraft Certification Office (ACO), FAA. We have also added Note 2 to this AD to specify that additional guidance on installing TDG Aerospace UFIs can be found in TDG Aerospace Supplemental Type Certificate (STC) ST02076LA.

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

Continental Airlines (CAL) requested that paragraph (h) of the proposed AD(75 FR 79317, December 20, 2010) be revised to add credit for work done according to STC ST02076LA prior to the effective date of the AD. CAL claimed that operators who accomplished that STC before the effective date of the AD would be required to request an AMOC to show compliance with the proposed AD and get credit for those actions. CAL pointed out that paragraph (h) of the proposed AD provides credit for accomplishment of Boeing Alert Service Bulletin 737-28A1201, dated February 19, 2007.

We agree to provide clarification. Paragraph (h) of the proposed AD (75 FR 79317, December 20, 2010) (paragraph (j) in this final rule) provided credit for an earlier revision of the service information required in paragraph (g) of this AD. There is no earlier version of STC ST02076LA, which was issued on October 26, 2007, that operators might have used to accomplish actions required by this AD. Paragraph (f) of this AD provides relief to operators that might have accomplished the actions required in this AD before the effective date of this AD (i.e.,used Boeing Alert Service Bulletin 737-28A1201, Revision 1, dated May 28, 2009, before the effective date of the AD). However, because STC ST02076LA is no longer provided as a means of compliance within the text of the AD, operators are required to apply for an AMOC if they want credit for work done according to that STC. We have not changed the AD in this regard.

All Nippon Airways (ANA) suggested that we revise AD 2010-17-05, Amendment 39-16395 (75 FR 50859, August 18, 2010), instead of issuing a new AD. ANA believed that correcting the STC number from STC ST02079LA to STC ST02076LA did not require issuing a new AD.

We agree to provide clarification. The incorrect STC number was not the primary reason to issue a new AD to supersede AD 2010-17-05, Amendment 39-16395 (75 FR 50859, August 18, 2010). Paragraph (f) of AD 2010-17-05 allowed actions accomplished according to STC ST02079LA to be acceptable for all power control relays. However, installation and maintenance of UFIs using STC ST02076LA may be an acceptable method of compliance for the center tank override pumps only. Such a change to paragraph (f) of AD 2010-17-05 to restrict the use of STC ST02076LA to installation and maintenance of UFIs on only the center tank override fuel pumps requires a new AD. We have not changed this AD in this regard.

American Airlines (AA) requested that the proposed AD be revised to allow modification of the P91 and P92 panels (replacing the power control relays for the fuel boost pumps and override pumps) while the panels are removed and reworked outside the airplane. AA noted that the Accomplishment Instructions of Boeing Alert Service Bulletin 737-28A1201, Revision 1, dated May 28, 2009, specify accomplishing the modification of the panels while the panels are still installed on the airplane. AA explained that allowing the panels to be modified or reworked outside the airplane will allow better access to the relay installation locations.

We agree. The P91 and P92 power distribution panels are “line replaceable units,” and reworking those panels in a shop environment instead of on the airplane may provide better access to the panels and control of the applicable modifications. We have added paragraph (h) to this AD to provide this alternative.

AA requested that we allow use of a locally manufactured label that includes an indelible means of marking the modified P91 and P92 panels in lieu of the part marking process specified in Note (a) in Figures 1 and 2 of Boeing Alert Service Bulletin 737-28A1201, Revision 1, dated May 28, 2009. AA explained that the note describes a process to use laser-etched identification labels, which involves submitting a digital photograph of the existing identification label and ordering a new label from Honeywell.

We agree. The intent of this AD is to provide procedures to verify the changes to the panels, not to specify the part marking method. While part marking of the panels is needed for configuration control, the AD was not intended to specify the exact method of part marking. We have added paragraph (i) to this AD to specify that any industry-accepted method of marking the part number is acceptable for compliance.

Delta Air Lines (DAL) requested that the Note specified in the proposed AD (75 FR 79317, December 20, 2010) be revised to clarify that the Honeywell service bulletins have no bearing on the installation of the TDG Aerospace UFI relays. DAL noted that the note is not applicable if an operator complies with paragraph (g)(2)(ii) of the proposed AD. DAL suggested that the following phrase be added to the end of the sentence: “as given in paragraphs (g)(1) and (g)(2)(i).”

We agree that Note 1 of this AD does not apply to the TDG Aerospace installation of UFI relays using STC ST02076LA referenced in paragraph (g)(2)(ii) of the proposed AD (75 FR 79317, December 20, 2010) (referenced in Note 2 of this AD). However, we do not agree to revise Note 1 of this AD as suggested. As it is written, Note 1 of this AD already states that Boeing Alert Service Bulletin 737-28A1201, Revision 1, dated May 28, 2009, references Honeywell Service Bulletins 1151932-24-61 and 1151934-24-62, both Revision 5, both dated May 25, 2009, as additional sources of guidance for replacing the power control relays in the P91 and P92 panels. There is no mention of STC ST02076LA in that note. Because that STC is not referenced in that note, that STC does not provide for Honeywell Service Bulletins 1151932-24-61 and 1151934-24-62, both Revision 5, both dated May 25, 2009, to be used as additional sources of guidance, and Note 1 of this AD does not apply to paragraph (g)(2)(ii) of this AD. We have not revised this AD in this regard.

DAL requested that the contact information for TDG Aerospace be included in paragraph (k) of the proposed AD (75 FR 79317, December 20, 2010) because STC ST02076LA is an acceptable method of compliance for certain requirements of this AD. DAL noted that paragraph (k) of the proposed AD provides contact information for Boeing service information, but did not provide contact information for the TDG Aerospace STC ST02076LA.

We agree partially. We do not agree to revise paragraph (k) of the proposed AD (75 FR 79317, December 20, 2010), because that paragraph is not restated in this final rule. However, we do agree to provide contact information for TDG Aerospace. We have revised theADDRESSESsection of this AD to include this contact information.

Boeing requested a change to a word in paragraph (h) of the proposed AD (75 FR 79317, December 20, 2010) (paragraph (j) in this final rule) from “is” to “were” in the phrase “ is used as an additional * * *.”

We agree. We revised paragraph (j) of this AD as requested.

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

• Are consistent with the intent that was proposed in the NPRM (75 FR 79317, December 20, 2010) for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM.

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

We estimate that this AD affects 754 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

The new requirements of this AD add no additional economic burden.

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

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

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

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

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

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

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

On July 29,2011, the FAA published in theFederal Registera notice of proposed rulemaking to establish Class E airspace at Bumpass, VA (76 FR 45479) Docket No. FAA-2011-0377. Interested parties were invited to 2 participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received. Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9V dated August 9, 2011, and effective September 15, 2011, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

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

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

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

This rulemaking is promulgated under the authority described in subtitle VII, part A, subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it establishes controlled airspace at Lake Anna Airport, Bumpass, VA.

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

On Friday, July 29, 2011, the FAA published a notice of proposed rulemaking (NPRM) in theFederal Registerto revise Class E airspace at Northway, AK (76 FR 45475).

Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA. One comment was received that the Northway VORTAC and coordinates should not be referred to in the E5 airspace designation. The FAA found merit in that and removes reference to the Northway VORTAC and its coordinates from the E5 airspace description in this rule. Subesequent to publication, the FAA found that the geographic coordinates of the airports needed to be adjusted. This action makes the adjustment.

The Class E airspace areas are published in paragraphs 6002 and 6005, respectively, of FAA Order 7400.9V,Airspace Designations and Reporting Points,signed September 9, 2011, and effective September 15, 2011, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order. With the exception of editorial changes, and the changes described above, this rule is the same as that proposed in the NPRM.

This action amends Title 14 Code of Federal Regulations (14 CFR) part 71 by revising Class E airspace at the Northway Airport, Northway, AK, to accommodate the amendment of a standard instrument approach procedure. This Class E surface airspace and Class E airspace extending upward from 700 and 1,200 feet above the surface is necessary for the safety and management of IFR operations at the airport. The rule also adjusts the coordinates for the Northway Airport to bring them in concert with those on record in the FAA's aeronautical database.

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle 1, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.

This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart 1, Section 40103, Sovereignty and use of airspace. Under that section, the FAA is charged with prescribing regulations to ensure the safe and efficient use of the navigable airspace. This regulation iswithin the scope of that authority because it creates Class E airspace sufficient in size to contain aircraft executing instrument procedures for the Northway Airport and represents the FAA's continuing effort to safely and efficiently use the navigable airspace.

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

I. Background

The MTOR prohibits sellers from soliciting mail or telephone order sales unless the sellers have a reasonable basis to expect that they will be able to ship the ordered merchandise within the time stated on the solicitation, or, if no time is stated, within 30 days of receipt of an order. The MTOR further requires a seller to seek the buyer's consent to the delayed shipment when the seller learns that it cannot ship within the time stated or, if no time is stated, within 30 days. If the buyer does not consent, the seller must promptly refund all money paid for the unshipped merchandise.

The Commission originally promulgated the Mail Order Rule (as the Rule was originally known) in 1975 in response to complaints that many mail order sellers failed to ship ordered merchandise, failed to ship merchandise on time, or failed to provide prompt refunds for unshipped merchandise. The Commission issued the Rule pursuant to its authority under sections 5 and 18 of the Federal Trade Commission Act (“FTC Act”), 15 U.S.C. 45 and 57a, to proscribe these deceptive and unfair acts or practices.1

A second proceeding, ending in 1993, demonstrated that consumers who ordered merchandise by telephone experienced the same shipment and refund problems. Accordingly, the Commission amended the Rule to cover merchandise ordered by telephone and renamed the Rule the “Mail or Telephone Order Merchandise Rule.”2

The Commission reviews all its rules and guides periodically to obtain information about their costs and benefits and their economic and regulatory impact. As part of this review process, the Commission published a request seeking public comments on the costs and benefits of the Rule and the continuing need for the Rule.3 Inaddition, the Commission suggested technical revisions reversing the order of MTOR sections 435.1 and 435.2 and organizing the Rule's definitions alphabetically.Id.

The Commission received four comments, all identifying a continuing need for the Rule.4 Two major trade associations representing direct marketers affected by the Rule, the National Retail Federation (“NRF”)5 and the Direct Marketing Association (“DMA”),6 supported retaining the MTOR. According to NRF, the MTOR “creates explicit competition among retailers to minimize and validate shipping times for consumers' benefit.” NRF at 2. NRF further stated that “[i]n short, the Rule is a well designed balance of competitive incentives that benefits retailers and their customers alike.”Id.DMA strongly supported “the continued uniform FTC regulation of merchandise orders by mail, telephone, fax, computer, and the Internet.” DMA at 2. DMA commented that the Rule has “been effective in enhancing consumer confidence in the growth of distance selling, which is critical to the development of electronic commerce,” and that the Rule's requirements “make good business sense and are well-integrated into the business practices of our members.”Id.

The Commission also received comments supporting the Rule from two individuals, Paul T. Dearing (“Dearing”) and Oriyomi Nwokeji (“Nwokeji”). Dearing commented that the Rule provides buyers with “basic rights and expectations regarding the receipt of their merchandise” ordered by mail, telephone, or the Internet. Dearing at 1. Similarly, Nwokeji commented that the Rule “safeguards the rights of * * * customers” and is a “cautionary restraint against * * * overzealous merchants.” Nwokeji at 1. He also commented that “[c]onsumers need [the] MTOR” because it provides for prompt refunds and ascertainable shipment dates, thereby enhancing easy, fast, affordable, varied, and convenient shopping by mail or telephone.Id.

The Commission requested comments on the costs associated with the Rule, but none of the commenters identified any specific costs or burdens associated with complying with the Rule's requirements. This absence of comments identifying specific costs or burdens, coupled with the support for the Rule voiced by two major trade associations representing industry members, suggests that the Rule's benefits to industry members significantly outweigh its costs.7 The Commission thus concludes there is a continuing need for the Rule.

The Commission also invited comments regarding reorganizing the Rule by: (1) Alphabetizing the definitions, and (2) placing the definitions before the Rule's substantive provisions. DMA stated that such a change would make the Rule easier to navigate, DMA at 4, and no commenters opposed the proposed reorganization. The Commission therefore amends the Rule as proposed.8

Pursuant to the Administrative Procedure Act (“APA”), the Commission finds “good cause” for foregoing public comment because the rule amendments are technical and public comment is “unnecessary.” 5 U.S.C. 553(b)(3)(B). In addition, because the rule revisions do not change the obligations of entities subject to the Rule, there is “good cause” for the revisions to take effect immediately.See5 U.S.C. 553(d)(3).

In its request for public comments, the Commission invited the public to suggest Rule changes. In response, NRF proposed amending the Rule to: (1) Allow sellers to substitute materially different merchandise from what the buyer ordered in certain circumstances, and (2) exempt sellers of custom-made or occasionally produced merchandise from the Rule's requirements. In the absence of any evidence supporting the need for NRF's suggested changes, and because the Commission has previously determined that these practices cause buyer injury, the Commission is not proposing the changes advocated by NRF.

NRF suggested that the Commission amend the Rule to permit sellers to substitute, without buyers' consent, merchandise that materially differs from what buyers ordered for: (1) “seasonal substitutions,” and (2) “gifts with purchase” (“GWPs”).

NRF suggested that the Commission amend the Rule to allow sellers to ship substitute merchandise without the buyer's prior express agreement to the substitution when there is: (1) Unanticipated demand during “a particular season for certain goods,” and (2) “it may be too late for a customer who receives a delay notice to select another item.” NRF at 6.

Substitution of materially different merchandise is a unilateral alteration of a material term of the sale.9 In fact, theCommission previously brought an action identifying substitution as violating the Rule.See United Statesv.Smith d/b/a Salesco,No. 01-10962 (C.D. Cal. 2001). Nothing in the record supports changing the Commission's approach. Thus, the Commission does not propose amending the Rule as NRF suggests.

NRF also suggested that the Rule permit unilateral substitutions when a seller: (1) Offers a specific GWP, (2) clearly discloses that the GWP supply is “limited,” (3) has exhausted its GWP supply, and (4) wants to provide buyers with a GWP of equal or greater value than what it initially offered. NRF at 6.

Where buyers order merchandise with a GWP, the GWP is a material part of the merchandise order. Indeed, in 1975 the Commission identified many complaints about unsent GWPs worth less than $10 and rejected a suggestion that the Rule exempt such GWPs.Promulgation of Rule: Correction,40 FR at 51594. Since then, the Commission has enforced the Rule against sellers for violations related to GWPs.United Statesv.Iomega Corp.,No. 98-00141C (D. Utah 1998);United Statesv.Ralston Purina Co.,No. 92-01088 (E.D. Mo. 1992); andUnited Statesv.Del Monte Corp.,No. 85-5213 (N.D. Calif. 1985).

The unilateral substitution of GWP merchandise violates the Rule. Nothing in the record indicates that prohibiting unilateral substitutions creates burdens on sellers that are not outweighed by the benefits to buyers. Thus, the Commission does not propose amending the Rule to permit sellers to substitute GWPs without buyers' prior express consent.

NRF also suggested that the Commission amend the Rule to permit indefinite shipment representations for: (1) Custom-made or handcrafted merchandise; or (2) merchandise produced by the supplier occasionally within a given year. NRF at 7. NRF said that marketers of these items find it difficult to determine accurate shipment times and risk either overstating shipment time and unnecessarily discouraging sales, or understating shipment time and running afoul of the Rule.Id.NRF suggested distinguishing these products from other merchandise by identifying them as “artisanal, custom, or infrequently produced.”Id.

Manufacturers of made-to-order and customized merchandise made similar arguments while seeking exemption from the Rule during the original 1975 rulemaking proceeding.Promulgation of Rule: Correction,40 FR at 51595. The Commission rejected their request, finding that “no industry spokesman explained persuasively why such merchandisers cannot affirmatively disclose the estimated shipping time in their solicitations.”Id.NRF has not presented evidence of changed circumstances, and the Commission therefore does not propose such an exemption now.10

As explained above, these final amendments are purely technical and non-substantive in nature. They do not expand or otherwise substantively alter the Rule's requirements, and thus do not require notice and comment under section 18 of the FTC Act or the APA.Seesection 18(d)(2)(B) of the FTC Act, 15 U.S.C. 57a(d)(2)(B) (prescribing procedures for “substantive” amendments); APA, 5 U.S.C. 553(b)(B) (notice and comment not required where impracticable, unnecessary, or contrary to the public interest). Further, the Commission believes the amendments will have no economic or other impact on the economy, prices, or regulated entities or consumers. For these reasons, no regulatory analysis is required by section 22 of the FTC Act.See15 U.S.C. 57b-3. For the same reasons, no regulatory flexibility analysis is required by the Regulatory Flexibility Act (“RFA”).See5 U.S.C. 601(2), 604(a).

Under section 22 of the FTC Act, 15 U.S.C. 57b, the Commission must issue a regulatory analysis for a proceeding to amend a rule only when it: (1) Estimates that the amendment will have an annual effect on the national economy of $100,000,000 or more, (2) estimates that the amendment will cause a substantial change in the cost or price of certain categories of goods or services, or (3) otherwise determines that the amendment will have a significant effect upon covered entities or upon consumers. Because the Commission retains the MTOR as previously promulgated without making any substantive change, it has determined that the amendments to the Rule will not have such effects on the national economy, on the cost of ordering merchandise by mail or telephone, or on covered parties or consumers.

The RFA, 5 U.S.C. 601-612, also does not require that the Commission conduct an analysis of the anticipated economic impact of the amendments on small entities. Section 605 of the RFA, 5 U.S.C. 605, provides that the agency need not perform the analysis normally required under the Act if the agency head certifies that the regulatory action will not have a significant economic impact on a substantial number of small entities, or where public notice and comment on the amendments is not required under the APA,see5 U.S.C. 601(2), 604(a). The Commission certifies that amending the MTOR will not have a significant economic impact on a substantial number of small businesses, because the technical reorganization of the rules' provisions, as explained earlier, imposes no significant economic impact, if any, on small entities. As noted earlier, public notice is not required under the APA because the Commission has found “good cause” to forego that requirement. Accordingly, for these reasons, no regulatory analysis under the RFA is required.

The MTOR contains various information collection requirements for which the Commission has obtained clearance under the Paperwork Reduction Act (“PRA”), 44 U.S.C. 3501et seq.(see note 6). As discussed above, the Commission amends the Rule by reorganizing it. The amendments do not impose any additional “collection of information” requirements. Consequently, the amendments will not affect the PRA burden associated with the Rule's requirements.

For the reasons set out in the preamble, the Commission is revising 16 CFR part 435 to read as follows:

The Department published the Wage Rule on January 19, 2011, 76 FR 3452. The Wage Rule revised the methodology by which we calculate the prevailing wages to be paid to H-2B workers and United States (U.S.) workers recruited in connection with a temporary labor certification used in petitioning the Department of Homeland Security to employ a nonimmigrant worker in H-2B status. The Department originally set the effective date of the Wage Rule for January 1, 2012. However, due to a court ruling that invalidated the January 1, 2012 effective date of the Wage Rule,1 we issued a Notice of Proposed Rulemaking (NPRM) on June 28, 2011, which proposed that the Wage Rule take effect 60 days from the date of publication of a final rule resulting from the NPRM. 76 FR 37686, June 28, 2011. After a period of public comment, we published a Final Rule on August 1, 2011, which set the new effective date for the Wage Rule of September 30, 2011 (the Effective Date Rule).

Both the Wage Rule and the Effective Date Rule recently were challenged in two separate lawsuits2 seeking to bar their implementation. In consideration of the two pending challenges to the Wage Rule and its new effective date, and the possibility that the litigation will be transferred to another court,3 the Department issued a final rule published in theFederal Registeron September 28, 2011, postponing the effective date of the rule from September 30, 2011, until November 30, 2011, in accordance with the Administrative Procedure Act, 5 U.S.C. 705.

In anticipation of the September 30, 2011 effective date, the Office of Foreign Labor Certification issued supplemental wage determinations based on the new prevailing wage methodology set forth in the Wage Rule for approximately 3,500 previously certified H-2B applications. However, in light of our recent decision to postpone the effective date of the Wage Rule until November 30, 2011, any employer who has received a supplemental H-2B prevailing wage determination in anticipation of the September 30, 2011 effective date is not required to pay, and the Department's Wage and Hour Division will not enforce, the wage provided in that supplemental prevailing wage determination for any work performed beginning September 30, 2011 through November 29, 2011 by H-2B workers or U.S. workers recruited in connection with the H-2Bapplication process. The employer is expected to continue to pay at least the prevailing wage as promised in the employer's labor certification (ETA Form 9142) for any work performed before November 30, 2011. However, employers who received a supplemental H-2B prevailing wage determination must pay at least that wage to any H-2B worker and any U.S. worker recruited in connection with the labor certification for work performed on or after November 30, 2011.

Ivy Laboratories, Division of Ivy Animal Health, Inc., 8857 Bond St., Overland Park, KS 66214, filed a supplement to ANADA 200-422 for use of HEIFERMAX 500 (melengestrol acetate) and RUMENSIN (monensin, USP) single-ingredient Type A medicated articles to make two-way, combination drug Type C medicated feeds for heifers fed in confinement for slaughter. The supplemental ANADA provides for use of increased dose levels of melengestrol acetate and monensin. The supplemental application is approved as of July 1, 2011, and the regulations in 21 CFR 558.342 are amended to reflect the approval and minor revisions.

In accordance with the freedom of information provisions of 21 CFR part 20 and 21 CFR 514.11(e)(2)(ii), a summary of safety and effectiveness data and information submitted to support approval of this application may be seen in the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852, between 9 a.m. and 4 p.m., Monday through Friday.

The Agency has determined under 21 CFR 25.33 that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808.

Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs and redelegated to the Center for Veterinary Medicine, 21 CFR part 558 is amended as follows:

The collection of information contained in these final regulations has been reviewed and approved by the Office of Management and Budget in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) under control number 1545-2059. The collection of information in these final regulations is in §§ 1.181-1, 1.181-2, and 1.181-3. This information is required to enable the IRS to verify that a taxpayer is entitled to the deduction.

An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid control number.

Books and records relating to a collection of information must beretained as long as their contents might become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.

This document contains amendments to 26 CFR part 1 to provide regulations under section 181 of the Internal Revenue Code of 1986 (Code). Section 181 permits the deduction of certain production costs by the producer of a qualified film or television production.

Section 181 was added to the Code by section 244 of the American Jobs Creation Act of 2004, Public Law 108-357 (118 Stat. 1418) (October 22, 2004), and was modified by section 403(e) of the Gulf Opportunity Zone Act of 2005, Public Law 109-135 (119 Stat. 2577) (December 21, 2005).

On February 9, 2007, the IRS and the Treasury Department published in theFederal Register(TD 9312, 72 FR 6155) temporary regulations relating to deductions for the costs of producing film and television productions under section 181. On the same date, the IRS published a notice of proposed rulemaking related to this topic in theFederal Register(REG-115403-05, 72 FR 6190). No public hearing was requested or held. Several written comments were received. All comments are available athttp://www.regulations.govor upon request. After consideration of all the comments received, the proposed regulations are adopted as amended by this Treasury decision, and the corresponding temporary regulations are removed. The revisions to the proposed regulations are discussed in this preamble. Unless otherwise specifically stated, references to the temporary regulations are to TD 9312.

Section 502 of the Tax Extenders and Alternative Minimum Tax Relief Act of 2008, Public Law 110-343 (122 Stat. 3765) (October 3, 2008) further modified section 181 for film and television productions commencing after December 31, 2007, and extended section 181 to film and television productions commencing before January 1, 2010. Section 181 was extended again to film and television productions commencing before January 1, 2012, by section 744 of the Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010, Public Law 111-312 (December 17, 2010). The IRS and the Treasury Department intend to publish in theFederal Registerproposed and temporary regulations pertaining to film and television productions commencing after December 31, 2007.

Congress enacted section 181 to promote film and television production in the United States. For a qualified film or television production commenced before January 1, 2008 (a “pre-amendment production”), section 181 permits an owner to elect to deduct production costs paid or incurred by that owner in the taxable year the costs are paid or incurred, in lieu of capitalizing the costs and recovering them through depreciation allowances, if the aggregate production costs do not exceed $15 million ($20 million if a significant amount of the aggregate production costs are paid or incurred in certain designated areas) for each qualifying production (the “aggregate production costs limit”). A film or television production (a “production”) is a qualified film or television production if 75 percent of the total compensation for the production is compensation for services performed in the United States by actors, directors, producers, and other production personnel.

The final regulations use the term “pre-amendment production” to distinguish productions that are subject to the maximum aggregate production costs limit in section 181 as added by the American Jobs Creation Act of 2004 and modified by the Gulf Opportunity Zone Act of 2005 from productions that are subject to the maximum production costs deduction limit in the Tax Extenders and Alternative Minimum Tax Relief Act of 2008. Several provisions of the final regulations are specific to pre-amendment productions and are designated accordingly.

In response to a comment, the final regulations use the term “aggregate production costs” as the total production costs paid or incurred by any person without regard to whether that person deducted (or was an owner entitled to deduct) those costs under section 181. As suggested by the same comment, the final regulations clarify that costs paid on behalf of an owner (for example, participations and residuals paid by a distributor) are included in aggregate production costs, notwithstanding that such costs are not deductible production costs for the owner. Thus, the amount of an owner's deductible costs under section 181 may be less than the aggregate production costs. Further, costs are not deductible under section 181 for a pre-amendment production with aggregate production costs in excess of the aggregate production costs limit of $15 million (or, if applicable, $20 million), even if the owner's production costs are less than the aggregate production costs limit.

In response to a comment, the final regulations clarify that, for purposes of the aggregate production costs limit, participations and residuals are calculated based on amounts actually paid or incurred rather than upon the amount the owner would include in basis under section 167(g)(7)(A) based on the estimated income from the production. This clarification is consistent with the limitation that the owner may claim as a deduction only participations and residuals actually paid or incurred.

Several commentators suggested that requiring owners to include participations and residuals in aggregate production costs in determining whether the aggregate production costs limit is exceeded creates uncertainty concerning whether the election is available for the production (and whether recapture may ultimately apply), and that this uncertainty will discourage persons interested in the benefits of section 181 from investing in potential qualified productions. This issue is addressed prospectively by section 502 of the Tax Extenders and Alternative Minimum Tax Relief Act of 2008, which replaces the aggregate production costs limit with a deduction limit for productions commencing on or after January 1, 2008. However, absent a specific statutory directive to the contrary, all costs required to be capitalized to cost basis under section 263A, including participations and residuals, must be included in the aggregate production costs of pre-amendment productions for purposes of determining if the aggregate production costs limit is exceeded.

In response to a comment, the final regulations provide that, solely for purposes of determining if the higher aggregate production costs limit for productions in certain areas is available for a production, all compensation costs for actors, directors, producers, and other production personnel, are allocated entirely to first-unit principal photography rather than allocating a portion of these costs to rehearsal and other preproduction activities.

The deduction under section 181 is subject to the passive loss limitations imposed by section 469 and the at-risk rules imposed by section 465. An ownermay claim the section 181 deduction against ordinary income under the rules of section 469 only if that owner materially participates in the production process; otherwise, the deduction is available only against passive income. Furthermore, an owner may only claim the section 181 deduction to the extent that the owner is at-risk within the meaning of section 465. Several commentators suggested that the final regulations exempt the deduction under section 181 from the passive loss and at-risk limitations, or that the final regulations otherwise determine that these limitations do not apply for section 181. Because there is no specific statutory direction specifying that these limitations do not apply, the section 181 deduction continues to be subject to the passive loss and at-risk limitations.

To ensure that multiple persons do not claim aggregate deductions in excess of the deduction limit, the final regulations retain language from the temporary regulations recognizing that some productions are produced by multiple persons that have not entered into a partnership agreement and do not file as a partnership. However, the IRS is not bound by the reporting position of these persons; whether the activities of these persons rise to the level of a partnership will be determined in accordance with § 301.7701-3 of this chapter.

Commentators asked whether there is a time limit between when a production is set for production and the time expected for commencement of principal photography and whether a minimum budget for production costs is required. Neither section 181 nor the final regulations impose such a time limit or minimum budget requirement.

Generally, a motion picture film or video tape (including digital video) for which the production costs are subject to capitalization under section 263A, or would be subject to capitalization if section 263A applied to the owner of the production, is a production for purposes of section 181. Thus, in response to a comment, the final regulations provide that a motion picture film or video tape (including digital video) acquired after “initial release or broadcast” is not a production. The final regulations define “initial release or broadcast” as the first commercial exhibition or broadcast to an audience. The object of this provision is to maximize the availability of the election under section 181 to advance the goal of the statute (to promote film and television production in the United States) while preventing the use of section 181 in cases that do not advance the goal of the statute, such as the purchase of an existing film library. Under the final regulation, the term “initial release or broadcast” does not include certain limited exhibitions primarily for purposes of publicity, marketing to potential purchasers or distributors, determining the need for further production activity, or raising funds for the completion of production. This exception is added to permit producers to exhibit productions at film festivals to interested buyers without compromising the ability of those buyers to use section 181, as well as to permit producers to test audience reaction to the production in order to determine if further production activities are needed. A person acquiring a completed motion picture film or video tape (including digital video) prior to its initial release or broadcast is considered an owner for purposes of section 181 and may treat the acquired asset as a production, even if the acquiring person does not pay or incur costs that are subject to section 263A.

A commentator asked whether video games or computer games are productions for purposes of section 181. They are not because they are not motion picture films or video tapes. However, to the extent that a game producer produces or acquires (prior to initial release or broadcast) a motion picture film or video tape (including digital video) the production costs of which are subject to capitalization under section 263A (or that would be subject to capitalization if section 263A applied to the owner of the production) for inclusion in a game (for example, as a cinematic within the game), then the cost of producing that motion picture film or video tape may be eligible for section 181.

The IRS and the Treasury Department rejected a suggestion that, rather than allocating the cost of production services to the place where the principal photography occurs for purposes of determining whether the production is a qualified production, the final regulations should instead require that the majority of principal photography occur in the United States. The statute defines the term “qualified film or television production” with reference to “qualified compensation,” defined as the amount of compensation for services paid to certain persons. The final regulations use the same definition, and require the owner to allocate compensation for services to those persons to the place where principal photography occurs in determining the amount of qualified compensation for the production. This approach is consistent with the statute and simplifies the calculation for the owner and prevents uncertainty that would otherwise arise from allocations to rehearsal and other preproduction activities.

The final regulations clarify that an owner must recapture the entire amount of any section 181 deduction when the owner sells a production prior to the initial release or broadcast in order to preserve the buyer's ability to deduct the acquisition cost of the production under section 181.

These final regulations apply to qualified film and television productions for which principal photography or, for an animated production, in-between animation, commenced on or after September 29, 2011. The owner of a qualified film or television production for which principal photography or, for an animated production, in-between animation, commenced on or after October 22, 2004, and before February 9, 2007, or on or after January 1, 2009, and before September 29, 2011, may apply the proposed regulations published on February 9, 2007, or, in the alternative, may apply these final regulations.

It has been determined that this Treasury decision is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) and (d) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations. It is hereby certified that this regulation will not have a significant economic impact on a substantial number of small entities. The final regulations impose a collection of information on small entities in order to demonstrate eligibility for tax benefits under the statute, and this collection of information will require recordkeeping. This collection of information is discussed elsewhere in this preamble. However, the recordkeeping required by this collection of information does not differ significantly from the recordkeeping that a taxpayer must perform in order to determine whether the taxpayer is eligible to claim a deduction under the statute. Consequently, the economic impact onsmall entities resulting from the recordkeeping required under this regulation is de minimis. Accordingly, a regulatory flexibility analysis is not required. Pursuant to section 7805(f) of the Internal Revenue Code, the notice of proposed rulemaking preceding these final regulations was submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.

The principal author of these regulations is Bernard P. Harvey, Office of Associate Chief Counsel (Income Tax and Accounting). However, other personnel from the IRS and the Treasury Department participated in their development.

Accordingly, 26 CFR parts 1 and 602 are amended as follows:

The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because delaying the rule for the purpose of publishing an NPRM would be contrary to the public interest. Immediate action is needed to minimize potential dangers to the participants by transiting vessels during the event. Approximately three thousand participants are expected be in the water during the event, which traverses land and sea. It is in the public interest to have these regulations in effect for the protection of participants and mariners, alike. The Coast Guard will issue broadcast notice to mariners to advise vessel operators of navigational restrictions. On scene Coast Guard and local law enforcement vessels will also provide actual notice to any mariners who might be unaware of this widely publicized event.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in theFederal Register. The potential dangers posed to participants by transiting vessels make a regulatory action necessary, but the preparations for the event make rescheduling impractical. Delaying the effective date would be contrary to the public interest, since immediate action is needed to ensure the safety of the approximately three thousand event participants in the event area. However, the Coast Guard will provide advance notifications to users of the affected waterways via marine information broadcasts, local notice to mariners, along with sponsor event notifications using commercial radio stations and area newspapers.

Approximately three thousand persons are expected to participate in the Wilmington YMCA “Beach 2 Battleship Full and Half Iron Distance Triathlon”, scheduled for October 29, 2011. Those participants will engage in a three-part race, including run, bike, and swim portions. During the swim portion of the event, two groups of 1600 swimmers will enter the waters of Banks Channel and swim northeast to Seapath Marina. Those swimmers will be in the path of potential mariners wishing to transit the area on October 29, 2011. Therefore, this regulation in intended to restrict vessel traffic in the race areas during the performance of the race. Restricting vessel traffic will ensure the safety of those persons participating in the event as well as those spectators and others transiting thearea.

On October 29, 2011, the Wilmington YMCA will sponsor the “Beach 2 Battleship Full and Half Iron Distance Triathlon” on the waters of Banks, Motts and Wrightsville Channels adjacent to Wrightsville Beach, North Carolina. The swim portion of the event will consist of two groups of 1600 swimmers entering Banks Channel southwest of the Coast Guard Station and swimming northeast along Wrightsville Channel and Motts Channel to Seapath Marina. A fleet of spectator vessels are expected to gather near the event site to view the competition. To provide for the safety of the participants, spectators and other transiting vessels, the Coast Guard will temporarily restrict vessel traffic in the event area during this event.

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

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

Although this regulation prevents traffic from transiting a portion of Banks, Motts, and Wrightsville Channels during the event, the effect of this regulation will not be significant due to the limited duration that the regulated area will be in effect. Extensive advance notification will be made to the maritime community via marine information broadcast, area newspapers, local radio and television stations so mariners can adjust their plans accordingly. Additionally, the regulated area has been narrowly tailored to impose the least impact on general navigation yet provide the level of safety deemed necessary. Vessel traffic will be able to transit the regulated area between races, when the Coast Guard Patrol Commander deems it is safe to do so.

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

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

The rule will affect the following entities, some of which may be small entities: The owners and operators of vessels intending to transit this section of Banks, Motts and Wrightsville Channel, from 7 a.m. to 11 a.m. on October 29, 2011.

This rule will not have a significant economic impact on substantial number of small entities for the following reasons. Although the regulated area will apply to Banks, Motts and Wrightsville Channels, traffic may be allowed to pass through the regulated area with the permission of the Coast Guard Patrol Commander. In the case where the Patrol Commander authorizes passage through the regulated area, vessels shall proceed at the minimum speed necessary to maintain a safe course that minimizes wake near the swim course. The Patrol Commander will allow non-participating vessels to transit the event area after all swimmers are safely clear of navigation channels and vessel traffic areas. Before the enforcement period, the Coast Guard will issue maritime advisories so mariners can adjust their plans accordingly.

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

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

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

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

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

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2-1, paragraph (34)(h) of the Instruction. The special local regulation is necessary to provide for the safety of the general public and event participants from potential hazards associated with vessels. We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

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

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 100 as follows:

CSX Transportation requested a temporary deviation from the operating schedule for the Swing Span Bridge across Chickasaw Creek, mile 0.0, in Mobile, Alabama. The bridge has a vertical clearance of 6 feet above mean high water in the closed-to-navigation position and unlimited in the open-to-navigation position.

In accordance with 33 CFR 117.5, the bridge currently opens on signal for the passage of vessels. This deviation allows the bridge to remain closed to navigation from 7 a.m. until 5 p.m. on Sunday, October, 30, 2011. At all other times, the bridge will open on signal for the passage of vessels.

The closure is necessary in order to effect repairs to structural members of the bridge. This maintenance is essential for the continued operation of the bridge. Notices will be published in the Eighth Coast Guard District Local Notice to Mariners and will be broadcast via the Coast Guard Broadcast Notice to Mariners System.

Navigation on the waterway consists mainly of tugs with tows and ships. Coordination between the Coast Guard and the waterway users determined that there should not be any significant effects on these vessels. There are no alternate routes available to vessel traffic. The bridge will not be able to open for emergencies.

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

The Oceanic Bridge, across the Navesink (Swimming) River, mile 4.5, between Oceanic and Locust Point, New Jersey, has a vertical clearance in the closed position of 22 feet at mean high water and 24 feet at mean low water. The drawbridge operation regulations are listed at 33 CFR 117.734.

The vessel traffic that normally transits the bridge are seasonal recreational vessels.

The owner of the bridge, County of Monmouth New Jersey, requested a temporary deviation from the regulations to facilitate bridge rehabilitation repairs. During the bridge repairs only one moveable span can be opened for the passage of vessel traffic.

The navigation channel under the bridge provides 75 feet of horizontal clearance with unobstructed vertical clearance in the open position.

During this temporary deviation the horizontal clearance in the main channel will provide 37.5 feet of horizontal clearance keeping one moveable span in the closed position.

The Coast Guard believes that this temporary deviation meets the reasonable needs of navigation because the recreational users that normally use this bridge do not operate during the winter months when this deviation will be in effect and the 37.5 feet of horizontal clearance should be sufficient for the seasonal recreational vessel traffic that uses this waterway.

Under this temporary deviation the Oceanic Bridge may open only one of the two moveable spans for the passage of vessel traffic between October 31, 2011 and April 27, 2012.

Vessels that can pass under the bridge in the closed position may do so at any time.

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

The Smith Point Bridge, across Narrow Bay, mile 6.1, between Smith Point and Fire Island, New York, has a vertical clearance in the closed position of 16 feet at mean high water and 18 feet at mean low water. The drawbridge operation regulations are listed at 33 CFR 117.799(d).

The waterway users are recreational vessels of various sizes.

The owner of the bridge, Suffolk County Department of Public Works, requested a temporary deviation from the regulations to facilitate bridge rehabilitation, repairs to the bascule spans. During the bridge repairs only one moveable span will be opened for the passage of vessel traffic.

The main navigation channel provides 55 feet of horizontal clearance with unobstructed vertical clearance during a bridge opening.

During this temporary deviation the main channel will only provide 27.5 feet of horizontal clearance with unobstructed vertical clearance during a bridge opening.

The Coast Guard believes that this temporary deviation should meet the reasonable needs of navigation because the recreational users that normally use this bridge are recreational vessels that can safely pass through a 27.5 foot horizontal clearance due to their relative small size. In addition, most of the above recreational vessels do not operate during the fall and winter months when this deviation will be in effect.

Under this temporary deviation the Smith Point Bridge may open only one of the two moveable spans for the passage of vessel traffic between September 26, 2011 and December 21, 2011.

Vessels that can pass under the bridge in the closed position may do so at any time.

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

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)(3)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule. The Coast Guard received notice on August 22, 2011 that McKinney Salvage and Heavy Lift Inc. would be continuing maritime salvage operations in the vicinity of Baton Rouge. Due to the salvage of three separate barges and two equipment failures, the operation and required safety zone will require more time and encompass two more river miles than provided in the safety zone previously implemented at docket USCG-2011-0747. Short notice for the original safety zone was based on the river levels falling to a required height enabling the salvage operation to take place and, since then, the operation incurred two equipment failures. Publishing a NPRM would be impracticable because it would delay the immediate action necessary to protect the salvage crew, vessels, and mariners from the hazards associated with ongoing maritime salvage 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 Register. The Coast Guard received notice on August 22, 2011 that McKinney Salvage and Heavy Lift Inc. would be continuing maritime salvage operations in the vicinity of Baton Rouge. Due to the salvage of three separate barges and two equipment failures, the operation and required safety zone will require more time and encompass two more river miles than provided in the safety zone previously implemented at docket USCG-2011-0747. Short notice for the original safety zone was based on the river levels falling to a required height enabling the salvage operation to take place and, since then, the operation incurred two equipment failures. Providing 30 days notice is impracticable because immediate action is needed to protect the salvage crew, vessels, and mariners from the hazards associated with ongoing maritime salvage operations.

The Captain of the Port New Orleans has implemented a safety zone from mile marker 230 to 234, Lower Mississippi River to protect those vessels and mariners from the hazards associated with ongoing maritime salvage operations.

The Captain of the Port New Orleans will implement a temporary safety Zone on the Lower Mississippi River (LMR) extending the entire width of the river from Mile Marker (MM) 230 to MM 234. Mariners will be subject to requirements that will be listed in Marine Safety Information Bulletins from 7 a.m. August 28, 2011 and continue to 7 a.m. November 25, 2011. This operation will continue 24 hours a day. Mariners must request permission to transit through the area from Vessel Traffic Service Lower Mississippi River in New Orleans on VHF channel 12 or 67. The temporary check-in points are no lower than MM 239 for southbound vessels and no higher than MM 228 for northbound vessels.

The Safety Zone is needed due to McKinney Salvage and Heavy Lift Inc. conducting ongoing maritime salvage operations in the vicinity of MM 230 to MM 234 on the LMR. The operations that will be conducted are critical to maintaining safe navigation on the LMR. Any wake, beyond that created at minimum safe speed, or external force exerted on the salvage platform can compromise the safety of the salvage crew.

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

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

This rule establishes a temporary safety zone on the Mississippi River from mile marker 230 to mile marker 234, in the vicinity of Baton Rouge, Louisiana. The additional safety restrictions do not prevent safe transit through the area. Due to its duration and limited scope, it does not pose a significant regulatory impact.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which may be smallentities: The owners or operators of vessels intending to transit the Mississippi River between mile markers 230 to 234 from 7 a.m. CST on August 28, 2011 until 7 a.m. CST on November 25, 2011. This temporary safety zone will not have a significant economic impact on a substantial number of small entities because vessels are still able to transit the area under the safety restrictions listed in Marine Safety Information Bulletins and this rule will be in effect for only a short period of time. If you are a small business entity, contact LT Chris Norton, Marine Safety Unit Baton Rouge, at (225) 298-5400 orChristopher.R.Norton@uscg.mil.

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

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

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

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

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction. This rule establishes a temporary safety zone on the Mississippi River to protect persons and vessels from the potential safety hazards associated with maritime salvage operations and are over one week in duration. Under figure 2-1, paragraph 34(g), of the Instruction, an environmental analysis checklist and a categorical exclusion determination will be prepared and submitted to the docket.

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

This rule concerns Clean Air Act (CAA) restrictions on the consumption, production, and use of methyl bromide (a Class I, Group VI controlled substance) for critical uses during calendar year 2011. Under the Clean Air Act, methyl bromide consumption (consumption is defined under the CAA as production plus imports minus exports) and production was phased out on January 1, 2005, apart from allowable exemptions, such as the critical use exemption and the quarantine and preshipment (QPS) exemption. With this action, EPA is finalizing the uses that qualify for the 2011 critical use exemption as well as specific amounts of methyl bromide that may be produced, imported, or sold from pre-phaseout inventory for proposed critical uses in 2011.

Entities potentially regulated by this action are those associated with the production, import, export, sale, application, and use of methyl bromide covered by an approved critical use exemption. Potentially regulated categories and entities include producers, importers, and exporters of methyl bromide; applicators and distributors of methyl bromide; and users of methyl bromide that applied for the 2011 critical use exemption including farmers of vegetable crops, fruits and nursery stock and owners of stored food commodities and structures such as grain mills and processors. This rulemaking does not affect applications for future control periods.

This list is not intended to be exhaustive, but rather to provide a guide for readers regarding entities likely to be regulated by this action. To determine whether your facility, company, business, or organization could be regulated by this action, you should carefully examine the regulations promulgated at 40 CFR part 82, subpart A. If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding section.

Methyl bromide is an odorless, colorless, toxic gas which is used as a broad-spectrum pesticide and is controlled under the CAA as a Class I ozone-depleting substance (ODS). Methyl bromide was once widely used as a fumigant to control a variety of pests such as insects, weeds, rodents, pathogens, and nematodes. Information on the phaseout of methyl bromide can be found athttp://www.epa.gov/ozone/mbr.

Methyl bromide is also regulated by EPA under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and other statutes and regulatory authority, as well as by states under their own statutes and regulatory authority. Under FIFRA, methyl bromide is a restricted use pesticide. Restricted use pesticides are subject to federal and state requirements governing their sale, distribution, and use. Nothing in this rule implementing the Clean Air Act is intended to derogate from provisions in any other federal, state, or local laws or regulations governing actions including, but not limited to, the sale, distribution, transfer, and use of methyl bromide. Entities affected this rule must continue to comply with FIFRA and other pertinent statutory and regulatory requirements for pesticides (including, but not limited to, requirements pertaining to restricted use pesticides) when importing, exporting, acquiring, selling, distributing, transferring, or using methyl bromide for critical uses. The provisions in this action are intended only to implement the CAA Title VI restrictions on the production, consumption, and use of methyl bromide for critical uses exempted from the phaseout of methyl bromide.

The regulatory requirements of the stratospheric ozone protection program that limit production and consumption of ozone-depleting substances are in 40 CFR part 82, subpart A. EPA initially published the regulatory program in theFederal Registeron August 12, 1988 (53 FR 30566), in response to the 1987 signing and subsequent ratification of the Montreal Protocol on Substances that Deplete the Ozone Layer (Montreal Protocol). The Montreal Protocol is the international agreement aimed at reducing and eliminating the production and consumption of stratospheric ozone-depleting substances. The U.S. was one of the original signatories to the 1987 Montreal Protocol and the U.S. ratified the Protocol on April 12, 1988. Congress then enacted, and President George H.W. Bush signed into law, the Clean Air Act Amendments of 1990 (CAAA of 1990) which included Title VI on Stratospheric Ozone Protection, codified as 42 U.S.C. chapter 85, Subchapter VI, to ensure that the United States could satisfy its obligations under the Protocol. EPA issued regulations to implement this legislation and has since amended the regulations as needed.

Methyl bromide was added to the Protocol as an ozone-depleting substance in 1992 through the Copenhagen Amendment to the Protocol. The Parties to the Montreal Protocol (Parties) agreed that each industrialized country's level of methyl bromide production and consumption in 1991 should be the baseline for establishing a freeze in the level of methyl bromide production and consumption for industrialized countries. EPA published a final rule in theFederal Registeron December 10, 1993 (58 FR 65018), listing methyl bromide as a Class I, Group VI controlled substance, freezing U.S. production and consumption at this 1991 baseline level of 25,528,270 kilograms, and setting forth the percentage of baseline allowances for methyl bromide granted to companies in each control period (each calendar year) until 2001, when the complete phaseout would occur. This phaseout date was established in response to a petition filed in 1991 under Sections 602(c)(3) and 606(b) of the CAAA of 1990, requesting that EPA list methyl bromide as a Class I substance and phase out its production and consumption. This date was consistent with Section 602(d) of the CAAA of 1990, which for newly listed Class I ozone-depleting substances provides that “no extension [of the phaseout schedule in section 604] under this subsection may extend the date for termination of production of any class I substance to a date more than 7 years after January 1 of the year after the year in which the substance is added to the list of class I substances.”

At the Seventh Meeting of the Parties (MOP) in 1995, the Parties made adjustments to the methyl bromide control measures and agreed to reduction steps and a 2010 phaseout date for industrialized countries with exemptions permitted for critical uses. At that time, the U.S. continued to have a 2001 phaseout date in accordance with Section 602(d) of the CAAA of 1990. At the Ninth MOP in 1997, the Parties agreed to further adjustments to the phaseout schedule for methyl bromide with reduction steps leading to a 2005 phaseout in industrialized countries and a 2015 phaseout for developing countries.

In October 1998, the U.S. Congress amended the Clean Air Act (CAA) to prohibit the termination of production of methyl bromide prior to January 1, 2005, to require EPA to bring the U.S. phaseout of methyl bromide in line with the schedule specified under the Protocol, and to authorize EPA to provide certain exemptions. These amendments were contained in Section 764 of the 1999 Omnibus Consolidatedand Emergency Supplemental Appropriations Act (Pub. L. 105-277, October 21, 1998) and were codified in section 604 of the CAA, 42 U.S.C. 7671c. The amendment that specifically addresses the critical use exemption appears at section 604(d)(6), 42 U.S.C. 7671c(d)(6). EPA revised the phaseout schedule for methyl bromide production and consumption in a direct final rulemaking on November 28, 2000 (65 FR 70795), which allowed for the phased reduction in methyl bromide consumption specified under the Protocol and extended the phaseout to 2005 while creating a placeholder for critical use exemptions. EPA again amended the regulations to allow for an exemption for quarantine and preshipment (QPS) purposes on July 19, 2001 (66 FR 37751), with an interim final rule and with a final rule on January 2, 2003 (68 FR 238).

On December 23, 2004 (69 FR 76982), EPA published a final rule (the “Framework Rule”) that established the framework for the critical use exemption; set forth a list of approved critical uses for 2005; and specified the amount of methyl bromide that could be supplied in 2005 from stocks and new production or import to meet the needs of approved critical uses. EPA subsequently published rules applying the critical use exemption framework for each of the control periods from 2006 to 2010. Under authority of section 604(d)(6) of the CAA, this action lists approved critical uses in 2011 and specifies the amount of methyl bromide that may be produced, imported, or supplied from inventory to satisfy those uses.

This rule reflects Decision XXI/11, taken at the Twenty-First Meeting of the Parties in November 2009. In accordance with Article 2H(5), the Parties have issued several Decisions pertaining to the critical use exemption. These include Decisions IX/6 and Ex. I/4, which set forth criteria for review of proposed critical uses. The status of Decisions is addressed inNRDCv.EPA,(464 F.3d 1, DC Cir. 2006) and in EPA's “Supplemental Brief for the Respondent,” filed inNRDCv.EPAand available in the docket for this action. In this rule on critical uses for 2011, EPA is honoring commitments made by the United States in the Montreal Protocol context.

The critical use exemption is designed to permit the production and import of methyl bromide for uses that do not have technically and economically feasible alternatives and for which the lack of methyl bromide would result in significant market disruption (40 CFR 82.3). Article 2H of the Montreal Protocol established the critical use exemption provision. At the Ninth Meeting of the Parties (1997) the criteria for the exemption appeared in Decision IX/6. In that Decision, the Parties agreed that “a use of methyl bromide should qualify as `critical' only if the nominating Party determines that: (i) The specific use is critical because the lack of availability of methyl bromide for that use would result in a significant market disruption; and (ii) there are no technically and economically feasible alternatives or substitutes available to the user that are acceptable from the standpoint of environment and public health and are suitable to the crops and circumstances of the nomination.” These criteria are reflected in EPA's definition of “critical use” at 40 CFR 82.3.

In response to EPA's request for critical use exemption applications published in theFederal Registeron May 2, 2008 (73 FR 24282), applicants provided data on the technical and economic feasibility of using alternatives to methyl bromide. Applicants also submitted data on their use of methyl bromide, research programs into the use of alternatives, and efforts to minimize use and emissions.

EPA's Office of Pesticide Programs reviews the data submitted by applicants, as well as data from governmental and academic sources, to establish whether there are technically and economically feasible alternatives available for a particular use of methyl bromide, and whether there would be a significant market disruption if no exemption were available. In addition, EPA reviews other parameters of the exemption applications such as dosage and emissions minimization techniques and applicants' research or transition plans. This assessment process culminates in the development of a document referred to as the critical use nomination (CUN). The U.S. Department of State has submitted a CUN annually to the United Nations Environment Programme (UNEP) Ozone Secretariat. The Methyl Bromide Technical Options Committee (MBTOC) and the Technology and Economic Assessment Panel (TEAP), which are advisory bodies to Parties to the Montreal Protocol, review the CUNs of the Parties and make recommendations to the Parties on the nominations. The Parties then take Decisions to authorize critical use exemptions for particular Parties, including how much methyl bromide may be supplied for the exempted critical uses. As required in section 604(d)(6) of the CAA, for each exemption period, EPA consults with the United States Department of Agriculture (USDA) and other departments and institutions of the Federal government that have regulatory authority related to methyl bromide, and provides an opportunity for public comment on the amounts of methyl bromide that the Agency is proposing to exempt for critical uses and the uses that the Agency is proposing as approved critical uses.

More on the domestic review process and methodology employed by the Office of Pesticide Programs is available in a detailed memorandum titled “Development of 2003 Nomination for a Critical Use Exemption for Methyl Bromide for the United States of America,” contained in the docket for this rulemaking. While the particulars of the data continue to evolve and administrative matters are further streamlined, the technical review itself remains rigorous with careful consideration of new technical and economic conditions.

On January 23, 2009, the U.S. Government (USG) submitted the seventhNomination for a Critical Use Exemption for Methyl Bromide for the United States of Americato the Ozone Secretariat of the UNEP. This nomination contained the request for 2011 critical uses. In February 2009, MBTOC sent two sets of questions to the USG concerning technical and economic issues in the 2011 nomination, one for post-harvest uses and one for pre-plant uses. The USG transmitted responses to MBTOC on April 10, 2009. These documents, together with reports by the advisory bodies noted above, are in the public docket for this rulemaking. The critical uses and amounts in this rule reflect the analysis contained in those documents.

EPA sought comment on the technical analysis contained in the U.S. nomination (available for public review in the docket to this rulemaking), and information regarding changes to the registration or use of alternatives that have transpired after the 2011 U.S. nomination was written. EPA did not propose to estimate uptake of Iodomethane in California in 2011 due to uncertainties created by the California label. Specifically, the California label has larger buffer zones and lower use rates than the Federal label. EPA does not have efficacy studies at the California label's lower use rates and is uncertain how widely it will be adopted without that data.Two commenters agreed that the California label and other state regulations constrain the adoption of iodomethane in that state. The registrant of iodomethane stated that they are continuing to work with California Department of Pesticide Regulations to improve applicability of iodomethane in that state. The comment, however, did not include any data on which EPA could base an estimate of uptake of iodomethane in California in 2011. Therefore, EPA is not reducing the amount of new production for 2011 for the uptake of iodomethane in California.

EPA received a comment stating the difficulty pet food facilities have using alternatives including longer periods of downtime needed to effectively use those fumigants or the presence of electronics that may corrode if exposed to phosphene. The commenter also noted that the use of sulfuryl fluoride for pet food is low given that pet food is not listed on the sulfuryl fluoride label as a commodity that can be fumigated. EPA's critical use nomination for structures includes these specific concerns about these alternatives and they, in part, form the basis for pet food being recognized as a critical use in 2011.

One commenter stated that some growers are having problems with pre-plant alternatives, specifically the re-emergence of plant pests after several years of fumigating with alternatives. The commenter requested that a survey of Florida growers that had been submitted to EPA in June 2011 in support of the 2013 CUN be added to the docket for this rule. EPA received these data too late to consider them for the 2011 rule but EPA is reviewing the data in support of the 2013 CUN. The contents of the survey are claimed CBI and therefore will be added to the confidential portion of a future rulemaking docket.

The December 23, 2004, Framework Rule (69 FR 76982) established the framework for the critical use exemption program in the U.S., including definitions, prohibitions, trading provisions, and recordkeeping and reporting obligations. The preamble to the Framework Rule included EPA's determinations on key issues for the critical use exemption program.

Since publishing the Framework Rule, EPA has annually promulgated regulations to exempt from the phaseout of methyl bromide specific quantities of production and import for each control period (each calendar year), to determine the amounts that may be supplied from pre-phaseout inventory, and to indicate which uses meet the criteria for the exemption program for that year. See 71 FR 5985 (calendar year 2006), 71 FR 75386 (calendar year 2007), 72 FR 74118 (calendar year 2008), 74 FR 19878 (calendar year 2009), and 75 FR 23167 (calendar year 2010).

In Decision XXI/11, taken in November 2009, the Parties to the Protocol agreed “to permit, for the agreed critical use categories for 2011 set forth in table C of the annex to the present decision for each Party, subject to the conditions set forth in the present decision and decision Ex. I/4 to the extent that those conditions are applicable, the levels of production and consumption for 2011 set forth in table D of the annex to the present decision which are necessary to satisfy critical uses * * *” The following uses are those set forth in table C of the annex to Decision XXI/11 for the United States:

EPA is modifying the table in 40 CFR part 82, subpart A, appendix L to reflect the agreed critical use categories identified in Decision XXI/11. The amendments to the table of critical uses is based in part on the technical analysis contained in the 2011 CUN that assesses data submitted by applicants to the CUE program. EPA is removing ornamental growers in New York. MBTOC did not recommend this use for 2011, concluding that alternatives are available for replacing methyl bromide use inAnemone coronaria.The Parties did not authorize this use. EPA agrees with the Parties' conclusion, and is not listing this use as critical for 2011. Second, EPA is removing Michigan cucurbit growers, Michigan eggplant growers, Michigan ornamental growers (specifically, herbaceous perennial growers), Michigan tomato growers, Michigan pepper growers, and members of the Western Raspberry Nursery Consortium operating in Washington State. These users did not submit applications and were not part of the CUN. The Parties have not authorized them as critical uses for 2011 and EPA is not listing these uses as critical for this control period.

EPA received one comment agreeing that the listed critical uses have a continuing need for access to methyl bromide under a 2011 CUE. EPA also received two comments that there should be no uses of methyl bromide given its toxicity and effect on the stratospheric ozone layer. EPA disagrees that all methyl bromide use should stop. EPA's CUN addresses the need for methyl bromide for the proposed critical uses. In addition, the proposed critical uses were reviewed by the technical bodies to the Ozone Secretariat and authorized by the Parties to the Montreal Protocol. Concerns about the toxicity of methyl bromide are addressed under FIFRA and other authorities and are beyond the scope of this rulemaking. EPA is finalizing the proposed changes to the table.

EPA repeats the following clarifications made in previous years for ease of reference. The “local township limits prohibiting 1,3-dichloropropene” are prohibitions on the use of 1,3-dichloropropene products in cases where local township limits on use of this alternative have been reached. In addition, “pet food” under subsection B of Food Processing refers to food for domesticated dogs and cats. Finally, “rapid fumigation” for commodities is when a buyer provides short (two working days or fewer) notification for a purchase or there is a short period after harvest in which to fumigate and there is limited silo availability for using alternatives.

Table C of the annex to Decision XXI/11 lists critical uses and amounts agreed to by the Parties to the Montreal Protocol in 2009 as critical uses for 2011. When added together, the total authorized critical use for 2011 is 2,055,200 kg, which is equivalent to 8.1% of the U.S. 1991 methyl bromide consumption baseline. The maximum amount of new production or import authorized by the Parties is 1,855,200 kg (7.3% of baseline) as set forth in Table D of the annex to Decision XXI/11. The difference between the total authorized amount and the authorized amount of new production is the minimum that the Parties expect the U.S. to use from pre-phaseout inventory. This difference is 200,000 kg (0.8% of baseline). EPAproposed to allocate 482,333 kg (1.9% of baseline) in the form of Critical Stock Allowances (CSA) for sale of existing pre-phaseout inventory for critical uses in 2011. EPA also proposed to exempt limited amounts of new production and import of methyl bromide for critical uses for 2011 in the amount of 1,500,000 kg (5.9% of baseline). EPA is finalizing the amount of new production and import contained in the proposed rule. For the reasons discussed below, EPA is increasing the CSA allocation from 482,333 kg to 555,200 kg (2.2% of baseline). Thus the total allocation for 2011 is 2,055,200 (8.1% of baseline).

As discussed in the proposed rule, EPA calculated the allocation amounts differently than in past CUE allocation rulemakings. Initially, EPA used the methodology established in the 2008 CUE Rule to determine the level of “available stocks,” from which the CSA and CUA allowances are calculated. As described in previous CUE allocation rules, one input to this methodology is the previous year's inventory drawdown. Consistent with past practice, EPA prepared an estimate of the pre-phaseout inventory on December 31, 2010.

Due to the timing of the 2011 CUE rulemaking, EPA issued a No Action Assurance letter December 22, 2010, to allow Critical Use Allowance holders to continue producing and importing methyl bromide beyond December 31, 2010, in the absence of allowances, subject to certain conditions. The amounts authorized in the December 22, 2010, letter, and a subsequent clarification letter dated January 13, 2011, were based on the estimates of the 2010 inventory drawdown. Specifically, EPA clarified that producers and importers “may assume that the allocations for production and import will equal at least 1,500 MT.” After EPA issued the No Action Assurance letter, companies submitted their annual end of year reports to EPA containing data about how much pre-phaseout inventory they held on December 31, 2010. These data show that the pre-phaseout inventory is greater than the estimated amounts that formed the basis of the No Action Assurance letter. If EPA were to use these data in the existing methodology for calculating “available stocks,” this would result in more “available stocks” and fewer allowances for new production or import as compared to the December 2010-January 2011 estimates. However, because regulated entities have been acting on the estimate developed for the No Action Assurance letter in good faith, EPA proposed the amount provided for in the No Action Assurance letter, as clarified by the January 2011 letter.

EPA received one comment about the increasing lateness of the CUE rules. The commenter described how producers and distributors need advanced notice of their allowances so they may plan their production and import schedule. Growers also need the approval of critical uses before fumigating with critical use methyl bromide. EPA is aware of the delay and is developing the 2012 CUE rule as quickly as possible. However, the Agency must conduct a notice and comment rulemaking for each year's allocation which takes a significant amount of time. The commenter encouraged EPA to move to a two-year allocation schedule, suggesting that we nominate two years together and issue a rule to address both years. To date the Parties have only approved critical uses through 2012 and the U.S. government has only submitted nominations through 2013. Therefore, EPA would be unable to write a rule covering the 2012 and 2013 control periods before 2012. In addition, moving to a two-year nomination system would require the U.S. to project the needs of critical users several years in advance. As a result, the nominations would be less accurate for that second year.

EPA received two comments that the total allocation for 2011 should be 2,055,200 kg, which is the amount the Parties authorized, rather than 1,982,333, which is what EPA proposed. The commenters expressed frustration that the EPA reduces the allocated amounts from those authorized by the Parties. One of the commenters states that it is inconceivable that since the nomination was submitted less than 18 months ago, EPA has developed sufficient scientific and objective information that supports a reduction. In past CUE Rules, EPA has made reductions after considering several factors. First, EPA considers new data on alternatives such as the registration of a new alternative not considered when the CUN was submitted to UNEP. EPA does not have new data regarding the uptake of alternatives and is not reducing the total CUE amount on that basis. Second, in some past years, EPA has made reductions to the new production/import amount equal to the amounts approved by the Parties specifically for research. As discussed below, the U.S. did not nominate any separate additional amount for research for 2011 and therefore EPA is not making reductions for that purpose.

Third, EPA has made reductions to the new production/import amount to account for amounts of methyl bromide produced in one control period but not sold in that control period. This amount is referred to as the “carryover.” Quantities of methyl bromide produced, imported, exported, or sold to end-users under the critical use exemption in a control period must be reported to EPA the following year. EPA uses these reports to calculate the amount of methyl bromide produced or imported under the critical use exemption, but not exported or sold to end-users in that year. In past CUE rules, EPA deducted an amount equivalent to this carryover from the total level of allowable new production and import in the year following the year of the data report. Companies reported that the carryover from 2009 to 2010 was 72,867 kg. In the proposed 2011 CUE Rule, however, EPA did not propose to reduce the amount of new production and import by 72,867 kg because EPA proposed to honor the amounts allowed in the No Action Assurance letter. Instead, EPA proposed to reduce the total authorization by this carryover amount.

Based on the comments received, EPA is not reducing the total authorization by the carryover amount in this final rule, because the only means to do so would be through an adjustment to the CSA amount. Carryover is separate from “stockpiled” methyl bromide, which is material that was produced prior to the phaseout in 2005. EPA does not believe it is necessary to reduce the number of critical stock allowances to account for the carryover of critical use methyl bromide produced but not sold in 2009. On the contrary, EPA seeks to encourage the use of pre-phaseout inventory. Therefore, as compared to the proposal, EPA is increasing the CSA allocation by 72,867 kg to a total of 555,200 kg. EPA does not believe that this will result in the accumulation of critical use methyl bromide. Due to the timing of this year's CUE rule, EPA has data indicating that the full 72,867 kg of carryover from 2009 was sold in 2010. In addition, EPA has since received end of year data for 2010 showing that there is no carryover from the 2010 control period either. Therefore, EPA is finalizing a total allocation that matches the Parties' authorization for 2011.

Three commenters stated that EPA should not be allocating fewer CUEs than the amount authorized by the Parties given EPA's January 19, 2011, proposal to grant objections to the tolerances established for sulfuryl fluoride and fluoride under section 408 of the Federal Food, Drug, and Cosmetic Act (76 FR 3422). This CUE Rule is based on the current status of alternatives and is limited to 2011. The proposed revocation of tolerances forsulfuryl fluoride has not been finalized and does not apply to use in 2011. Therefore, EPA has not based the allocation amounts in the 2011 CUE Rule on that proposal. In addition, commenters should note that EPA proposed a staggered implementation for withdrawal of the affected tolerances (76 FR 3447).

EPA also took comment on how to account for the fact that the critical use allowance allocation of 1,500,000 kg is greater than what would be allocated if it were based on the “available stocks” calculation using end of year inventory data. The proposal stated that EPA could reduce critical use allowances for new production and import in the 2012 allocation rule. EPA received one comment that while the distribution between stocks and new production is different than the result produced by the framework calculation, the total amount is unaffected. In addition, the commenter stated that the calculations in the 2012 rule will automatically compensate for the lesser drawdown of inventory in 2011. EPA will address this issue further in the notice of proposed rulemaking for the 2012 CUE rule.

EPA is allocating 2011 critical use allowances for new production or import of methyl bromide up to the amount of 1,500,000 kg (5.9% of baseline) as shown in the table at 40 CFR 82.8(c)(1). Each critical use allowance (CUA) is equivalent to 1 kg of critical use methyl bromide. These allowances expire at the end of the control period and, as explained in the Framework Rule, are not bankable from one year to the next. The CUA allocation is subject to the trading provisions at 40 CFR 82.12, which are discussed in section V.G. of the preamble to the Framework Rule (69 FR 76982).

One commenter objected to EPA allocating only 1,500,000 kg for new production or import. The commenter stated that Decision XXI/11 authorized 1,855,200 kg for new production and import. EPA disagrees with the commenter's interpretation of Decision XXI/11. In Table D of Decision XXI/11, the Parties authorized 1,855,200 kg for new production and import “minus available stocks.” EPA is acting consistently with Decision XXI/11by considering “available stocks.” How EPA determines “available stocks” is discussed in the next section.

Paragraph three of Decision XXI/11 states “that Parties shall endeavor to license, permit, authorize or allocate quantities of critical-use methyl bromide as listed in tables A and C of the annex to the present decision.” This is similar to language in Decisions authorizing prior critical uses. The language from these Decisions calls on Parties to endeavor to allocate critical use methyl bromide on a sector basis. The Framework Rule proposed several options for allocating critical use allowances, including a sector-by-sector approach. The Agency evaluated the various options based on their economic, environmental, and practical effects. After receiving comments, EPA determined that a lump-sum, or universal, allocation, modified to include distinct caps for pre-plant and post-harvest uses, was the most efficient and least burdensome approach that would achieve the desired environmental results, and that a sector-by-sector approach would pose significant administrative and practical difficulties. For the reasons discussed in the preamble to the 2009 CUE rule (74 FR 19894), the Agency believes that under the approach adopted in the Framework Rule, the actual critical use will closely follow the sector breakout listed in the Parties' decisions, but continues to welcome comments on this issue.

One commenter stated that the demand for methyl bromide exceeds the supply granted to the post-harvest sector. That commenter requested that their uses receive priority over other post harvest uses. It would be counter to EPA's past practice to grant priority for some critical uses over others. EPA does not have a system in place for ranking critical uses against each other. Rather, EPA allows the market to determine the distribution of methyl bromide among critical uses in the post-harvest or pre-plant sectors.

Finally, one commenter noted a typographical error in the table in 40 CFR 82.8(c)(1). The proposed post-harvest amount for ICL-IP was listed as 12,267 kg but should have read 16,267 kg. The final rule corrects this error.

An approved critical user may purchase methyl bromide produced or imported with CUAs as well as limited inventories of pre-phaseout methyl bromide, the combination of which constitute the supply of “critical use methyl bromide” intended to meet the needs of agreed critical uses. The Framework Rule established provisions governing the sale of pre-phaseout inventories for critical uses, including the concept of CSAs and a prohibition on the sale of pre-phaseout inventories for critical uses in excess of the amount of CSAs held by the seller. It also established trading provisions that allow CUAs to be converted into CSAs.

When determining the CSA amount for a year, EPA considers what portion of existing stocks is “available” for critical uses. As discussed in prior CUE rulemakings, the Parties to the Protocol recognized in their Decisions that the level of existing stocks may differ from the level of available stocks. For example, Decision IX/6 states that “production and consumption, if any, of methyl bromide for critical uses should be permitted only if * * * methyl bromide is not available in sufficient quantity and quality from existing stocks.” Previous decisions refer to use of “quantities of methyl bromide from stocks that the Party has recognized to be available.” Thus, it is clear that individual Parties have the ability to determine their level of available stocks. Decision XXI/11 reinforces this concept by including the phrase “minus available stocks” as a footnote to the United States' authorized level of production and consumption in Table D. Section 604(d)(6) of the CAA does not require EPA to adjust the amount of new production and import to reflect the availability of stocks; however, as explained in previous rulemakings, making such an adjustment is a reasonable exercise of EPA's discretion under this provision.

In the Framework Rule (69 FR 52366), EPA issued CSAs in an amount equal to the difference between the total authorized CUE amount and the amount of new production or import authorized by the Parties. In each of the subsequent CUE Rules, EPA allocated CSAs in amounts that represented not only the difference between the total authorized CUE amount and the amount of authorized new production and import but also an additional amount to reflect available stocks. After determining the CSA amount, EPA reduced the portion of CUE methyl bromide to come from new production and import in each of the 2006-2010 control periods such that the total amount of methyl bromide exempted for critical uses did not exceed the total amount authorized by the Parties for that year.

EPA views the inclusion of these additional amounts in the calculation of the year's overall CSA level as an appropriate exercise of discretion. The Agency is not required to allocate the full amount of authorized new production and consumption. The Parties only agree to “permit” a particular level of production and consumption; they do not—and cannot—mandate that the U.S. authorize this level of production and consumption domestically. Nor does theCAA require EPA to allow the full amount permitted by the Parties. Section 604(d)(6) of the CAA does not require EPA to exempt any amount of production and consumption from the phaseout, but instead specifies that the Agency “may” create an exemption for critical uses, providing EPA with substantial discretion.

In this final rule, EPA is allocating the equivalent of 555,200 kg in the form of CSAs. This amount is greater than EPA proposed but less than the amount of “available stocks.” The aggregate amount of pre-phaseout methyl bromide reported as being in inventory at the beginning of 2011 was 1,802,705 kg. EPA's analysis of “available stocks” shows that there are 610,715 kg of stocks available for use in 2011. In the proposal, EPA took the total U.S. authorization as a starting point, subtracted the new production and import amount stated in the No Action Assurance provided to industry in December 2010, and then subtracted a carryover amount before reaching the tentative conclusion that the CSA amount should be the equivalent of 482,333 kg. EPA received comments, discussed above, that the total CUE amount should not be less than the U.S. authorization. After considering those comments and evaluating its approach to carryover in the specific circumstances of this year's allocation, EPA has determined that the CSA amount should be the difference between the total U.S. authorization and the proposed new production and import amount, which is the equivalent of 555,200 kg. Because at least 555,200 kg of stocks are available, EPA is increasing the CSA allocation in the final rule so that the CSA and CUA allocations taken together equal the total U.S. authorization.

Two commenters also stated that the Agency is incorrect to assume that 482,333 kg of pre-phaseout inventory will be available for critical uses in 2011. Instead, the commenters stated that EPA should allocate only 200,000 kg from stocks, which is the difference between the total authorization and the maximum authorized new production amount. The commenters also say that the distributors that own stocks are free to sell them for any purpose, including for non-CUE uses, and that EPA cannot control how or whether inventory is sold.

EPA agrees that the allocation system allows distributors of inventory to respond to market conditions instead of requiring them to sell inventory to critical users. EPA issues CSAs as a mechanism to track the use of stocks for critical uses. Under section 82.4(p), stocks may not be sold for use on critical uses if the seller does not hold the corresponding amount of CSAs. Critical users may purchase either newly produced or imported critical use methyl bromide or stocks sold through the expenditure of CSAs. EPA chose this approach, at least in part, to promote market flexibility and efficiency. The fact that distributors can choose to sell to non-critical users does not mean that the inventory is unavailable to critical users. End of year reported data show that the inventory on December 31, 2010, was 1,802,715 kg. Of this amount, EPA estimates that 610,715 kg of stocks are available for use in 2011. While EPA is allocating more critical stock allowances than proposed, the amount is still less than the “available stocks.” EPA expects that holders of pre-phaseout inventory will be able to expend the full amount of CSA allocations in order to satisfy the needs of critical users.

Two commenters stated that inventory was disproportionately distributed among fewer distributors and thus is unavailable to critical users. EPA collects information annually on the number of companies that hold inventory. These data support the comment that some companies no longer maintain any pre-phaseout inventory. However, there has not been a significant change in the overall distribution of inventory among companies. Inventory is still held by companies in large amounts in both California and the Southeast, the two largest markets for critical use methyl bromide. If some critical users were unable to purchase inventory, that is due to market decisions by distributors, not the quantity of methyl bromide held in inventory.

One commenter stated that the CSA allocation failed to consider the effect of a catastrophic failure in the domestic supply of methyl bromide, either for 2011 or for future years. The commenter states that the critical stock allowance levels undercut EPA's own analysis that the amount necessary to address a catastrophic failure could be as much as 58% of the critical need. EPA disagrees with the commenter's conclusion. EPA's supply chain factor calculation for 2011 indicates that 1,192,000 kg (2,055,200 kg × 0.58) is the maximum amount of inventory that would be needed in the event of a supply disruption. With 1,802,715 kg of existing inventory for 2011, EPA's analysis of “available stocks” shows that there are 610,715 kg of stocks available for use in 2011. EPA is actually allocating only the equivalent of 555,200 kg in the form of CSAs due to the No Action Assurance provided to industry in December 2010.

EPA also disagrees with the comment that it did not consider the effect of this rule on availability of stocks for supply disruptions in the future. The supply chain factor is proportional to the CUE amount. The authorization for 2012 and potential authorization for 2013 continue to decline in pace with both the inventory and the supply chain factor. In 2012, the U.S. was authorized 1,022,826 kg of critical use methyl bromide. EPA estimates that the SCF will be 429,000 kg for 2012, which is less than the estimated amount of stocks in 2012. EPA will discuss this in more detail in the proposed 2012 CUE rule.

EPA reiterates that the SCF is not a “reserve” or “strategic inventory” of methyl bromide. Rather, it is merely an analytical tool used to provide greater transparency regarding how the Agency determines CSA amounts, in cases where CSA amounts are greater than the amounts stipulated by the Parties. EPA does not guarantee that critical users will have access to inventory in the event of a supply disruption. The timely distribution of pre-phaseout stocks would depend upon business decisions made by suppliers. However, the SCF is large enough to give suppliers the opportunity to provide uninterrupted distribution in the analyzed scenario.

EPA is allocating CSAs to the entities shown in the table for the 2011 control period in the amount of 555,200 kg (2.2% of baseline). EPA is updating the table by incorporating information from recent mergers. Therefore, EPA is listing a single entry for Royster Clark, UAP Southeast (NC), and UAP Southeast (SC) called Crop Production Services. The CSA allocation for Crop Production Services is the sum of the three allocations that would have gone to Royster Clark and the two UAP Southeast entities.

EPA's allocation of CSAs is based on each company's proportionate share of the aggregate inventory. In 2006, the United States District Court for the District of Columbia upheld EPA's treatment of company-specific methyl bromide inventory information as confidential.NRDCv.Leavitt,2006 WL 667327 (D.D.C. March 14, 2006). Therefore, the documentation regarding company-specific allocation of CSAs is in the confidential portion of the rulemaking docket and the individual CSA allocations are not listed in the table in 40 CFR 82.8(c)(2). EPA will inform the listed companies of their CSA allocations in a letter following publication of the final rule.

As stated in the final 2006 CUE Rule, if an inventory shortage occurs, EPAmay consider various options including authorizing the conversion of a limited number of CSAs to CUAs through a rulemaking, bearing in mind the upper limit on U.S. production/import for critical uses. As explained in the 2008 CUE Rule, the Agency intends to continue releasing the aggregate of methyl bromide stockpile information reported to the Agency under the reporting requirements at 40 CFR 82.13 for the end of each control period. In past years, EPA has noted that if the number of competitors in the industry were to decline appreciably, EPA would revisit the question of whether the aggregate is entitled to treatment as confidential information and whether to release the aggregate without notice. A commenter to the 2008 CUE Rule stated that the aggregate data should be confidential if there are fewer than three competitors. More than three companies continue to sell pre-phaseout inventory. While EPA is not adopting a definitive threshold number of companies at this point, EPA has not received any information suggesting that the number of companies has declined to the point that EPA should consider treating the aggregate as confidential information. Therefore, EPA will continue making aggregate inventory information available. The aggregate information for 2003 through 2010 is available in the docket for this rulemaking.

Paragraphs 2 and 6 of Decision XXI/11 request Parties to ensure that the conditions or criteria listed in Decisions Ex. I/4 and IX/6, paragraph 1, are applied to exempted critical uses for the 2011 control period. A discussion of the Agency's application of the criteria in paragraph 1 of Decision IX/6 appears in sections V.C, V.D. and V.E. of this preamble. The CUNs detail how each proposed critical use meets the criteria listed in paragraph 1 of Decision IX/6, apart from the criterion located at (b)(ii), as well as the criteria in paragraphs 5 and 6 of Decision Ex. I/4.

The criterion in Decision IX/6(1)(b)(ii), which refers to the use of available stocks of methyl bromide, is addressed in section V.F. of this preamble. The Agency has previously provided its interpretation of the criterion in Decision IX/6(1)(a)(i) regarding the presence of significant market disruption in the absence of an exemption, and EPA refers readers to the 2006 CUE final rule (71 FR 5989) as well as to the memo on the docket titled “Development of 2003 Nomination for a Critical Use Exemption for Methyl Bromide for the United States of America” for further elaboration.

The remaining considerations, including the lack of available technically and economically feasible alternatives under the circumstance of the nomination; efforts to minimize use and emissions of methyl bromide where technically and economically feasible; the development of research and transition plans; and the requests in Decision Ex. I/4(5) and (6) that Parties consider and implement MBTOC recommendations, where feasible, on reductions in the critical use of methyl bromide and include information on the methodology they use to determine economic feasibility, are addressed in the nomination documents.

Some of these criteria are evaluated in other documents as well. For example, the U.S. has further considered matters regarding the adoption of alternatives and research into methyl bromide alternatives, criterion (1)(b)(iii) in Decision IX/6, in the development of the National Management Strategy submitted to the Ozone Secretariat in December 2005 and in ongoing consultations with industry. The National Management Strategy addresses all of the aims specified in Decision Ex. I/4(3) to the extent feasible and is available in the docket for this rulemaking.

EPA received one comment that the Agency should adjust production and import levels in the 2011 CUE Rule to account for research amounts. The commenter implied that EPA had a previous policy of adjusting the production and import level upward to provide an allocation for research. This is not an accurate characterization of EPA's policy. Prior to 2010, the U.S. Nomination did contain a separate amount for research. While the Parties approved research as a critical use, their decisions encouraged the use of inventory to meet critical research needs. In the corresponding CUE rules, EPA responded to the Parties' decisions by reducing the new production/import amounts by the research amount, leaving the research portion of the total critical use exemption to be met through the use of CSAs. In the CUN for the 2011 control period, as in the CUN for the 2010 control period, the U.S. government did not nominate a separate, additional amount specifically for research purposes. Nonetheless, both the 2010 and 2011 nominations were broad enough to cover both research and non-research uses. While EPA continues to encourage use of inventory for research purposes, EPA is not reducing the CUA level as it did in pre-2010 CUE rules to subtract a research amount because no specific research amount has been identified. EPA also is not increasing the CUA allocation because the Parties did not authorize specific amounts for this purpose in addition to the authorization for pre-plant and post-harvest uses. EPA understands the Parties' decision as including the research amounts in the amounts authorized for pre-plant and post-harvest uses. As discussed in the preamble to the 2010 CUE rule (75 FR 23179), research is a key element of the critical use process. EPA is retaining research on the crops shown in the table in Appendix L to subpart A as a critical use of methyl bromide. While EPA encourages use of pre-phaseout inventory for research purposes, researchers may use either newly produced methyl bromide or pre-phaseout inventory for field, post-harvest, and emission minimization studies requiring the use of methyl bromide.

Previous decisions have stated that Parties shall request critical users to employ emission minimization techniques such as virtually impermeable films, barrier film technologies, deep shank injection and/or other techniques that promote environmental protection, whenever technically and economically feasible. Through the recent Reregistration Eligibility Decision (RED) for methyl bromide, the Agency requires that methyl bromide applications be tarped except for California orchard replant where EPA instead requires deep (18 inches or greater) shank applications. The RED also encourages the use of high-barrier tarps, such as virtually impermeable film (VIF), by providing credits that applicators can use to minimize their buffer zones. In addition to minimizing emissions, use of high-barrier tarps has the benefit of providing pest control at lower application rates. The amount of methyl bromide nominated by the USG reflects the lower application rates necessary when using high-barrier tarps, where such tarps are allowed. Emissions minimization efforts should not be limited to pre-plant fumigations. While the RED addresses emissions minimization only in the context of pre-plant fumigation, EPA also urges users to reduce emissions from structures and port facilities through the use of recapture technologies.

Users of methyl bromide should continue to make every effort to minimize overall emissions of methyl bromide to the extent consistent with State and local laws and regulations.The Agency encourages researchers and users who are successfully utilizing such techniques to inform EPA of their experiences and to provide such information with their critical use applications.

Under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993), this action is a “significant regulatory action.” This action is likely to result in a rule that may raise novel legal or policy issues. Accordingly, EPA submitted this action to the Office of Management and Budget (OMB) for review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011) and any changes made in response to interagency recommendations have been documented in the docket for this action.

This action does not impose any new information collection burden. The application, recordkeeping, and reporting requirements have already been established under previous Critical Use Exemption rulemakings and this action does not change any of those existing requirements. The Office of Management and Budget (OMB) has previously approved the information collection requirements contained in the existing regulations at 40 CFR part 82 under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501et seq.and has assigned OMB control number 2060-0482. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9.

The RFA generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice-and-comment rulemaking requirements under the Administrative Procedure Act 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. Small entities include small businesses, small organizations, and small governmental jurisdictions. For purposes of assessing the impacts of this rule on small entities, small entity is defined as: (1) A small business as defined by the Small Business Administration's regulations at 13 CFR 121.201; (2) a small business that is identified by the North American Industry Classification System (NAICS) Code in the Table below; (3) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (4) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.

Agricultural producers of minor crops and entities that store agricultural commodities are categories of affected entities that contain small entities. This rule only affects entities that applied to EPA for an exemption to the phaseout of methyl bromide. In most cases, EPA received aggregated requests for exemptions from industry consortia. On the exemption application, EPA asked consortia to describe the number and size distribution of entities their application covered. EPA estimated that 3,218 entities petitioned EPA for an exemption for the 2005 control period. EPA revised this estimate in 2008 down to 2,000 end users of critical use methyl bromide. EPA believes that the number continues to decline as growers stop applying for critical uses. Since many applicants did not provide information on the distribution of sizes of entities covered in their applications, EPA estimated that, based on the above definition, between one-fourth and one-third of the entities may be small businesses. In addition, other categories of affected entities do not contain small businesses based on the above description.

After considering the economic impacts of this rule on small entities, EPA certifies that this action will not have a significant economic impact on a substantial number of small entities. In determining whether a rule has a significant economic impact on a substantial number of small entities, the impact of concern is any significant adverseeconomic impact on small entities, since the primary purpose of the regulatory flexibility analyses is to identify and address regulatory alternatives “which minimize any significant economic impact of the proposed rule on small entities.” (5 U.S.C. 603-604). Thus, an Agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves a regulatory burden, or otherwise has a positive economic effect on all of the small entities subject to the rule. Since this rule would exempt methyl bromide for approved critical uses after the phaseout date of January 1, 2005, this action would confer a benefit to users of methyl bromide. We have therefore concluded that this rule would relieve regulatory burden for all small entities.

This action contains no Federal mandates under the provisions of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531-1538 for State, local, or Tribal governments or the private sector. The action imposes no enforceable duty on any State, local or Tribal governments or the private sector. Instead, this action provides an exemption for the manufacture and use of a phased out compound and does not impose any new requirements on any entities. Therefore, this action is not subject to the requirements of sections 202 or 205 of the UMRA. This action is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments.

This action does not have federalism implications. It does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This rule primarily affects producers, suppliers, importers, and exporters and users of methyl bromide. Thus, Executive Order 13132 does not apply to this rule. In the spirit of Executive Order 13132, and consistent with EPA policy to promote communications between EPA and State and local governments, EPA specifically solicited comment on this action from State and local officials.

This action does not have Tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). This rule does not significantly or uniquely affect the communities of Indian Tribal governments nor does it impose any enforceable duties on communities of Indian Tribal governments. Thus, Executive Order 13175 does not apply to this action.

EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the EO has the potential to influence the regulation. This action is not subject to EO 13045 because it does not establish an environmental standard intended to mitigate health or safety risks.

This rule is not a “significant energy action” as defined in Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)) because it does not have a significant adverse effect on the supply, distribution, or use of energy. This rule does not pertain to any segment of the energy production economy nor does it regulate any manner of energy use. Therefore, we have concluded that this rule does not have any adverse energy effects.

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104-113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g.,materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. This rule does not involve technical standards therefore EPA did not consider the use of any voluntary consensus standards.

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

EPA has determined that this rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations, because it affects the level of environmental protection equally for all affected populations without having any disproportionately high and adverse human health or environmental effects on any population, including any minority or low-income population. Any ozone depletion that results from this rule will impact all affected populations equally because ozone depletion is a global environmental problem with environmental and human effects that are, in general, equally distributed across geographical regions.

The Congressional Review Act, 5 U.S.C. 801et seq.,as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in theFederal Register. A Major rule cannot take effect until 60 days after it is published in theFederal Register. This action not a “major rule” as defined by 5 U.S.C. 804(2). This rule will be effective September 30, 2011.

For the reasons stated in the preamble, 40 CFR part 82 is amended as follows:

The modified BFEs are not listed for each community in this interim rule. However, the address of the Chief Executive Officer of the communitywhere the modified BFE determinations are available for inspection is provided.

Any request for reconsideration must be based on knowledge of changed conditions or new scientific or technical data.

The modifications are made pursuant to section 201 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001et seq.,and with 44 CFR part 65.

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

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

These modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities. The changes in BFEs are in accordance with 44 CFR 65.4.

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

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

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

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

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

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

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

Each year, the printed editions of Titles 46 and 49 of the Code of Federal Regulations are recodified on October 1. This rule, which becomes effective September 30, 2011, makes technical and editorial corrections throughout Titles 46 and 49. This rule does not create any substantive requirements.

This rule amends 46 CFR 1.03-15 to change the addressee for appeals involving decisions or actions of the Director, Great Lakes Pilotage from CG-5 to CG-55 to better reflect the agency organization of the Coast Guard.

This rule amends 46 CFR 2.10-20 by changing the mailing address for payment of fees related to vessel inspections. We also reformatted the paragraph by creating separate paragraphs broken down by type of fee, i.e., one subparagraph for payment of Certificate of Inspection and Certificate of Compliance fees and a second subparagraph for payment of Overseas Inspection fees. We then created subparagraphs broken down by method of payment, i.e., credit card, check by postal service, and check by overnight courier. This reformatting does not change any substantive requirements, but was done to make it easier to find the correct mailing address for the type of inspection and the method of payment.

This rule amends 46 CFR 4.05-1 so that it refers to § 160.204, the section for definitions, instead of referring to section 160.203, the section for exemptions.

This rule amends 46 CFR 62.35-5 to change the word “then” to “than” and to remove the reference to subparagraph (a) in the citation to § 62.35-35(a) as this subparagraph no longer exists.

This rule amends 46 CFR 111.79-9 by removing the reference to § 111.79-7, which no longer exists, and replacing it with §§ 111.79-1(d) and 111.79-3 where the requirements of former § 111.79-7 were moved by the Coast Guard's “Amendment to Electrical Engineering Requirements for Merchant Vessels” 61 FR 28260 (June 4, 1996).

This rule amends 46 CFR 120.312 by removing the reference to 46 CFR 111.10-11, which no longer exists.

This rule amends 46 CFR 129.510 to remove the reference to subpart 160.115 which does not exist, and put in its place subpart 160.151, which is the correct subpart related to inflatable liferafts.

This rule amends 46 CFR 133.135 to change the approval series number from 160.056 to 160.156, the correct approval series number. The 160.156 approval series number was published correctly in 1996 in the Coast Guard's “Lifesaving Equipment Rule” 61 FR 25272, at 25308, May 20, 1996, but was erroneously changed in the 2000 Coast Guard “Technical Amendment” 65 FR 58455, at 58463, September 29, 2000.

This rule amends 46 CFR 401.110 by replacing the reference to the Department of Transportation with the Department of Homeland Security in the definition of “Secretary” because the Coast Guard is no longer an agency of the Department of Transportation (DOT), and is now an agency of the Department of Homeland Security (DHS).

This rule amends 46 CFR 402.210 to correct a grammatical error by replacing the word “or” with the word “to”.

This rule amends 49 CFR parts 450, 451, 452, and 453 to correct theauthority citations in each part to remove the reference to the statutes at large citation as unnecessary and duplicative and to replace the official code citation of 46 U.S.C. 1503 with 46 U.S.C. 80503 to reflect the recodification of Title 46.

We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 14 of these statutes or executive orders.

Executive Orders 12866 (“Regulatory Planning and Review”) and 13563 (“Improving Regulation and Regulatory Review”) direct agencies to assess the 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 final rule has not been designated a “significant regulatory action” under section 3(f) of Executive Order 12866. Accordingly, the final rule has not been reviewed by the Office of Management and Budget. A regulatory analysis was not prepared because this rulemaking involves only technical and administrative changes.

This final rule makes non-substantive changes throughout Titles 46 and 49 of the Code of Federal Regulations. The purpose of this rule is to make conforming amendments and technical corrections to Coast Guard shipping and transportation regulations. This rule will have no substantive effect on the regulated public.

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

This final rule makes non-substantive changes throughout Titles 46 and 49 of the Code of Federal Regulations. The purpose of this rule is to make conforming amendments and technical corrections to Coast Guard shipping and transportation regulations. We estimate that this rule will not impose additional costs and should have little or no impact on small entities because the provisions of this rule are technical and non-substantive. Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that this final rule will not have a significant economic impact on a substantial number of small entities.

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. If the proposed rule would affect your small business, organization, or governmental jurisdiction, and you have questions concerning its provisions or options for compliance, please consult Paul Crissy, Coast Guard; telephone 202-372-1093, e-mailPaul.H.Crissy@uscg.mil.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.

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).

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 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, as supplemented by Executive Order 13563, 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 that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded under section 2.B.2, figure 2-1, paragraphs (34)(a) and (b) of the Instruction. This rule involves regulations that are editorial, procedural, and involve internal agency functions. An environmental analysis checklist and a categorical exclusion determination are available in the docket where indicated underADDRESSES.

For the reasons discussed in the preamble, the Coast Guard amends 46 CFR parts 1, 2, 4, 62, 111, 120, 129, 133, 401, and 402 and 49 CFR parts 450, 451, 452, and 453 as follows:

The Federal Communications Commission published a document in theFederal Registerof May 2, 2011 (76 FR 24376), adding 47 CFR 0.111(a)(24). In FR Doc. 2011-24259, published in theFederal Registerof September 23, 2011 (76 FR 59192), 47 CFR 0.111(a)(24) was inadvertently amended. This rule should stand as is in the current CFR. This correction removes the amendment to 47 CFR 0.111(a)(24) published on September 23, 2011 and instead adds 47 CFR 0.111(a)(25).

In rule FR Doc. 2011-24259, published September 23, 2011 (76 FR 59192), make the following correction. On page 59232, in the first column,revise amendatory instruction 2 to read as follows:

TSA invites interested persons to participate in this action by submitting written comments, data, or views on the proposed fee range and the methodology used to develop the fee for the processing of security threat assessments detailed in the final rule. SeeADDRESSESabove for information on where to submit comments.

With each comment, please identify the docket number, TSA-2009-0018, at the beginning of your comments. TSA encourages commenters to provide their names and addresses. The most helpful comments reference a specific portion of the document, explain the reason for any recommended change, and include supporting data. You may submit comments and material electronically, in person, by mail, or by fax as provided underADDRESSES, but please submit your comments and material by only one means. If you submit comments by mail or delivery, submit them in an unbound format, no larger than 8.5 by 11 inches, suitable for copying and electronic filing.

If you would like TSA to acknowledge receipt of comments submitted by mail, include with your comments a self-addressed, stamped postcard on which the docket number appears. We will stamp the date on the postcard and mail it to you.

TSA will file all comments to our docket address, as well as items sent to the address or e-mail underFOR FURTHER INFORMATION CONTACT, in the public docket, except for comments containing confidential information and sensitive security information (SSI).1 Should you wish your personally identifiable information be redacted prior to filing in the docket, please so state. TSA will consider all comments that are in the docket on or before the closing date for comments and will consider comments filed late to the extent practicable. The docket is available for public inspection before and after the comment closing date.

Do not submit comments that include trade secrets, confidential commercial or financial information, or SSI to the public regulatory docket. Please submit such comments separately from other comments on the action. Comments containing this type of information should be appropriately marked as containing such information and submitted by mail to the address listed inFOR FURTHER INFORMATION CONTACTsection.

TSA will not place comments containing SSI in the public docket and will handle them in accordance with applicable safeguards and restrictions on access. TSA will hold documents containing SSI, confidential business information, or trade secrets in a separate file to which the public does not have access, and place a note in the public docket explaining that commenter's have submitted such documents. TSA may include a redacted version of the comment in the public docket. If an individual requests to examine or copy information that is not in the public docket, TSA will treat it as any other request under the Freedom of Information Act (FOIA) (5 U.S.C. 552) and the Department of Homeland Security's (DHS') FOIA regulation found in 6 CFR part 5.

Please be aware that anyone is able to search the electronic form of all comments in any of our dockets by the name of the individual who submitted the comment (or signed the comment, if an association, business, or labor union submitted the comment). You may review the applicable Privacy Act Statement published in theFederal Registeron April 11, 2000 (65 FR19477) and modified on January 17, 2008 (73 FR 3316).

You may review TSA's electronic public docket on the Internet athttp://www.regulations.gov.In addition, DOT's Docket Management Facility provides a physical facility, staff, equipment, and assistance to the public. To obtain assistance or to review comments in TSA's public docket, you may visit this facility between 9 a.m. to 5 p.m., Monday through Friday, excluding legal holidays, or call (202) 366-9826. This docket operations facility is located in the West Building Ground Floor, Room W12-140 at 1200 New Jersey Avenue, SE., Washington, DC 20590.

You can get an electronic copy using the Internet by—

(1) Searching the electronic Federal Docket Management System (FDMS) Web page athttp://www.regulations.gov;

(2) Accessing the Government Printing Office's Web page athttp://www.gpoaccess.gov/fr/index.html;or

(3) Visiting TSA's Security Regulations Web page athttp://www.tsa.gov and accessing the link for “Research Center” at the top of the page.

In addition, copies are available by writing or calling the individual in theFOR FURTHER INFORMATION CONTACTsection. Make sure to identify the docket number of this rulemaking.

On August 18, 2011, TSA published the Air Cargo Screening final rule in a separate Part III of theFederal Register(76 FR 51848). The rule included a proposed new fee range of $31-$51 for security threat assessments (STAs). The final rule provided a 30-day comment period that ended on September 19, 2011, for public comments on the proposed fee range for the processing of STAs, and on the proposed fee range and the methodology used to develop the fee.

In the preamble “Fee Range” section to the final rule, TSA stated that additional detailed information regarding the fee determination had been provided in the “Air Cargo Screening Security Threat Assessment Fee Development Report.” 76 FR 51858. The final rule stated that this report had been placed in the public docket established for this rulemaking. TSA inadvertently omitted to place this report in the public docket, and therefore the information in the report was not available for review during the comment period. TSA has since placed the report in the docket and is reopening the comment period for an additional 30 days on the proposed fee range of $31 to $51. This will allow interested parties the opportunity to provide substantive input on the additional information regarding the fee determination in the report.

The TSA determines that reopening the comment period is in the public interest. Accordingly, the comment period for the final rule “Air Cargo Screening” is reopened for an additional 30 days until October 31, 2011. This reopening will allow industry and other interested entities and individuals additional time to complete their comments on the fee range and methodology.

Once this additional comment period closes, TSA will publish a notice in theFederal Registerannouncing the final fee, and will respond to comments received during both public comment periods on the proposed fee range in the Air Cargo Screening final rule.