The regulations contained in 7 CFR part 319, Foreign Quarantine Notices, prohibit or restrict the importation into the United States of certain plants and plant products to prevent plant pests and noxious weeds from being introduced into and spread within the United States.

These regulations are administered and enforced by the Plant Protection and Quarantine program (PPQ) of the Animal and Plant Health Inspection Service (APHIS) under the authority of the Plant Protection Act (7 U.S.C. 7701et seq.). The regulations in part 319 designate specific articles as prohibited or restricted, and assign conditions to their movement, if allowed, into the United States according to the risks posed by each article to agriculture in the United States.

The current regulations contain provisions for several different means of authorizing the importation of plants and plant products. These means of authorization have been used to allow restricted articles to be imported under conditions that differ from the generally applicable provisions of the particular subpart; other types have been used to authorize the importation of articles that would otherwise be prohibited under the regulations.

The means of authorizing these types of movements that is most commonly found in the regulations is the departmental permit. In § 319.40-1, we define a departmental permit as “a document issued by the Administrator authorizing the importation of a regulated article for experimental, scientific, or educational purposes.” The departmental permit has been used to allow researchers and scientists affiliated with the United States Department of Agriculture (USDA) to import prohibited or restricted articles for scientific, analytical, experimental, or research purposes. It is currently available under several subparts of the regulations. In other areas of the regulations, we have referred to the departmental permit when we have stated that a regulated article may be allowed to be imported “by the U.S. Department of Agriculture for experimental or scientific purposes.” In still other areas of the regulations, the regulations state that, under certain circumstances, regulated articles may be imported under conditions “modified to be less stringent” than those contained in the regulations.

In recent years, the number of requests to import, for research purposes, articles that are otherwise prohibited or restricted has increased as the number and types of possible uses for such articles in the United States has expanded. Also, entities requesting to import these articles now include private scientific and academic laboratories and researchers, and commercial and other nongovernmental organizations.

We recognize that research and investigations concerning restricted or prohibited plant material may benefit agricultural interests in the United States in several ways. Such benefits may include the introduction of plants or varieties or cultivars of plants adaptable to certain environments or resistant to domestic plant pests in the United States, suitable to consumers in the United States, or with value to certain markets. Other benefits may include the establishment of new markets, the introduction of new plant varieties, or trade opportunities.

We are committed to making our permit procedures found in the various subparts of the regulations consistent according to the plant pest risks associated with the plant material and its intended use. We are also committed to making our regulations moretransparent and easier to use and implement.

Therefore, we are proposing to amend the regulations in part 319 to standardize the type of authorization used to permit the importation of plants and plant products for experimental, therapeutic, or developmental purposes. We would also amend these portions of the regulations that contain outdated language or that refer to procedures for importation that we believe pose unnecessary risks to agriculture in the United States.

We are proposing to establish the controlled import permit (CIP) as the permit that would be used in place of departmental permits and the other types of authorizations discussed previously that we have used to allow the importation of otherwise prohibited articles or of articles under different conditions than those found in the regulations. We are also proposing to use the CIP as the form of permit required for the importation of plant materials for postentry quarantine.

We propose to definecontrolled import permitas “a written or electronically transmitted authorization issued by APHIS for the importation into the United States of otherwise prohibited or restricted plant material for experimental, therapeutic, or developmental purposes, under controlled conditions as prescribed by the Administrator in accordance with § 319.6.”

The CIP would be issued based on consideration of the plant pest risks of the imported plant material, whether such risks can be mitigated sufficiently, the intended use of the plant material, and the plant pest risks associated with such use. We would also consider the taxon of the plant material and country of origin. The CIP would be available to all entities in the United States and no longer limited to researchers and scientists affiliated with the USDA.

The CIP would be issued only for articles subject to the regulations in part 319; we would not provide for the issuance of a CIP for the movement of plant pests regulated under 7 CFR part 330, genetically engineered plant material regulated under 7 CFR part 340, noxious weeds regulated under 7 CFR part 360, or seeds regulated under 7 CFR part 361. We believe that the restrictions imposed on the movement of these articles by the regulations in parts 330, 340, 360, and 361 are effective in preventing the introduction and dissemination of plant pests or noxious weeds into or within the United States.

We would add a new “Subpart—Controlled Import Permits” (§ 319.6) that would contain the general requirements regarding the proposed CIP.

In paragraph (a) of § 319.6, we would define the termsAdministrator, developmental purposes, experimental purposes,andtherapeutic purposes,the latter three being the purposes for which the CIP may be issued. We would defineAdministratoras the Administrator of the Animal and Plant Health Inspection Service, United States Department of Agriculture, or any employee of the United States Department of Agriculture delegated to act in his or her stead.Developmental purposeswould be defined as the evaluation, monitoring, or verification of plant material for plant health risks and/or the adaptability of the material for certain uses or environments.Experimental purposeswould be defined as scientific testing of plant material which utilizes collected data and employs analytical processes under controlled conditions to create qualitative or quantitative results. We would definetherapeutic purposesas the application of specific scientific processes designed to eliminate, isolate, or remove potential plant pests or diseases.

An application for a CIP could be obtained through any of the means currently available for applying for other types of permits to import regulated plant material,i.e.,through the Internet using the APHIS ePermits Web site or using applications obtained from APHIS headquarters or from local offices of PPQ; paper applications could be submitted by fax or by mail. The regulations in § 319.6(c) would provide the necessary mailing address, fax number, and the address of the APHIS ePermits Web site. An application would have to be submitted at least 60 days prior to the proposed arrival of the article at the port of entry.

The application for a CIP would have to contain the following information:

• Name, address in the United States, and contact information of the applicant;

• Identity (common and botanical [genus and species] names) of the plant material to be imported; country of origin and country shipped from;

• Intended experimental, therapeutic, or developmental purpose for the importation; and

• Intended ports of departure and entry; quantity of importation; means of conveyance; estimated date of arrival.

This information would allow us to evaluate the risks associated with the proposed importation. A CIP would be issued only if APHIS determines that the plant pest risks associated with the plant material and the intended experimental, therapeutic, or developmental use of the plant material can be effectively mitigated. The CIP would contain the applicable conditions for importation and subsequent handling of the plant material if it is deemed eligible for importation into the United States.

With limited exceptions, plant material to be offered for importation under a CIP would have to be selected from apparently disease-free and pest-free sources, and be free of foreign matter or debris, other prohibited plants, noxious weed seeds, soil, living organisms such as parasitic plants, pathogens, insects, snails and mites, and other prohibited matter. The plant material would also have to be free of fungicide, insecticide, pesticide, coating, dipping, spraying, or other applied treatments that would make the consignment difficult or hazardous to inspect. Similarly, plant materials could not be wrapped or otherwise packaged in a manner that impedes or prevents adequate inspection or treatment at the port of entry.

Although we would generally require all material imported under a CIP to be apparently disease-free and pest-free, under certain circumstances and for specific purposes, we may permit plant material to be imported under a CIP for scientifically approved treatment therapies. For example, we may permit the importation under a CIP of plant material not considered free of plant pests to an approved facility capable of applying approved scientific techniques to eliminate plant pests and verifying freedom from plant pests.

All plant material offered for importation under a CIP would have to be moved in an enclosed container or one completely enclosed by a covering adequate to prevent the possible escape or introduction of plant pests during shipment. Any packing material used in the consignment would have to meet the requirements of § 319.37-9, and wood packing material used in the consignment would have to meet the requirements of § 319.40-3(b) and (c). The CIP would identify the manner in which the consignment is to be shipped (e.g.,as cargo, by mail, as air freight). Under certain circumstances, we may allow the plant material to be hand-carried.

The plant material would have to be offered for importation at the port of entry or plant inspection station specified in the CIP. A copy of the CIP and an invoice or packing list indicatingthe contents of the consignment would have to accompany each consignment. All consignments would be required to be labeled as specified in the permit, and to bear a tag provided with the CIP.

Depending on the intended purpose of the plant material presented for importation and the risks associated with such importation, we may require that the plant material be transported from the plant inspection station for release only to preapproved facilities. We would assess a facility prior to issuing a permit to ensure that it has the infrastructure and equipment identified by APHIS as being necessary to manage the risks associated with the imported plant material.

At the approved facility, the plant material imported under a CIP would have to be identified and labeled as quarantined material to be used only in accordance with a valid CIP. Such plant material would have to be maintained in a secure place and be under the supervision and control of the permit holder, and could not be moved or distributed without prior written permission. During regular business hours, properly identified officials, either Federal or State, would have to be allowed to inspect the plant material and the facility in which the plant material is maintained.

The permit holder would be required to keep the permit valid for the duration of the authorized experimental, therapeutic, or developmental activity. A CIP would be valid for a period of 1 year and could be renewed if we believed the additional time was necessary to complete the experimental, therapeutic, or developmental purpose for which the permit was issued.

In the event the permit holder leaves the institution in which the plant material is kept, another person would be required to assume responsibility for the continued maintenance of the plant material and obtain a new CIP for the material or it would have to be destroyed.

Any conditions of the CIP or assigned safeguarding or mitigation measures would be clearly explained in the CIP. Failure to comply with all of the conditions specified in the CIP or any applicable regulations or administrative instructions, or forging, counterfeiting or defacing permits or shipping labels, may result in immediate revocation of the permit, denial of future permits, and civil or criminal penalties for the permit holder.

Proposed paragraph (g) of § 319.6 would address the circumstances under which an application for a CIP may be denied or a CIP may be revoked after issuance. Under these provisions, the Administrator would deny an application for a CIP permit when the Administrator determines that:

• No safeguards adequate or appropriate to prevent the dissemination of a plant pest or plant disease can be implemented;

• The applicant, as a previous permittee, failed to maintain the safeguards or otherwise comply with all the conditions prescribed in a previous permit and failed to demonstrate the ability or intent to observe them in the future;

• The application for a permit is found to be false or deceptive in any material particular;

• Such an importation would involve the potential dissemination of a plant pest or plant disease which outweighs the probable benefit that could be derived from the proposed importation and use of the regulated plant material;

• The importation is adverse to the conduct of an APHIS eradication, suppression, control, or regulatory program; or

• The government of the State or Territory into which the plant material would be imported objects to the proposed importation and provides a written explanation of its concerns based on plant pest risks.

The Administrator would revoke any outstanding CIP when the Administrator determines that information is received subsequent to the issuance of the CIP of circumstances that would constitute cause for the denial of an application described above, or the permittee fails to maintain the safeguards or otherwise observe the conditions specified in the CIP or in any applicable regulations or administrative instructions.

All denials of an application for a permit, or revocation of an existing permit, would be provided to the applicant or permittee in writing. The reasons for the denial or revocation would be stated in writing as promptly as circumstances permit.

We would require that, upon revocation of a permit, the permittee must either:

• Surrender all regulated plant material covered by the revoked CIP to an APHIS inspector;

• Destroy all regulated plant material covered by the revoked CIP under the supervision of an APHIS inspector; or

• Remove all regulated plant material covered by the revoked CIP from the United States.

We would provide for the appeal of the denial or revocation of a CIP. Any person whose application for a permit has been denied or whose permit has been revoked may appeal the decision in writing to the Administrator within 10 days after receiving written notification of the denial or revocation. The appeal would have to state all facts and reasons upon which the person was relying to show that the CIP was wrongfully denied or revoked. The Administrator would grant or deny the appeal, in writing, as promptly as circumstances permit, and would state in writing the reason for the decision. If there is a conflict as to any material fact, a hearing would be held to resolve such conflict. Rules of practice concerning such a hearing would be adopted by the Administrator. The permit denial or revocation would remain in effect during the resolution of the appeal.

We are proposing to use the CIP to authorize the importation of certain prohibited or restricted plant material for experimental, therapeutic, or developmental purposes in the current regulations in part 319. In doing so, we would replace the current provisions for importations for these purposes.

In the paragraphs that follow, we discuss the changes we are proposing and cite the specific areas of the regulations we are proposing to change.

•Foreign cotton and covers regulated under §§ 319.8 through 319.8-26.In § 319.8, which establishes a notice of quarantine for parts or products of plants of the genusGossypium,we would replace the current text, which is dated and difficult to follow, with a clear statement that the importation of the plants and plant products listed in the section is prohibited unless they are imported in accordance with the regulations of the subpart or imported for experimental, therapeutic, or developmental purposes under the provisions of a CIP. We would remove and reserve §§ 319.8-19 and 319.8-20, as provisions for the importation of plant material regulated by the subpart for experimental or scientific purposes would be covered in the revised § 319.8.

•Sugarcane regulated under § 319.15.In § 319.15(a), we would remove the provision that sugarcane and its related products may be imported for scientific or experimental purposes under a departmental permit only by the USDA, and provide that these articles may be moved under the conditions specified in a CIP.

•Citrus fruit and nursery stock regulated under §§ 319.19 and 319.28.In §§ 319.19(b) and 319.28(d) we would remove the provision that plants or plant parts of the botanical family Rutaceae may be imported for scientific or experimental purposes under conditions as prescribed by the APHISAdministrator or the PPQ Deputy Administrator, and instead provide that these articles may be moved under the conditions specified in a CIP. We would also remove the statement that the paragraph's provisions apply only to importations by the USDA.

•Indian corn or maize and related plants and their seeds regulated under §§ 319.24 through 319.24-5 (the corn diseases subpart), and §§ 319.41 through 319.41-6 (the Indian corn or maize, broomcorn, and related plants subpart).In § 319.24(b) we would remove the provision that portions of Indian corn or maize and related plants may be imported into Guam under conditions less stringent than those of the subpart as prescribed by the Deputy Administrator, and the statement that the paragraph's provisions apply only to USDA importers and instead provide that these articles may be moved under the conditions specified in a CIP. Paragraph (c) of § 319.41 has an identical provision regarding importations into Guam which we would also remove and instead provide that the articles may be moved under the conditions specified in a CIP.

•Nursery stock, plants, roots, bulbs, seeds, and other plant products regulated under §§ 319.37 through 319.37-14.In § 319.37-1 we would remove the definition ofDeputy Administratorand add definitions ofAdministratorandcontrolled import permitfor use in the subpart. In § 319.37-2(c)(1), we would add that importations for experimental, therapeutic, or developmental purposes may be allowed under the conditions of a CIP, and remove the statement that the paragraph's provisions apply only to importations by the USDA. In paragraphs (c)(3) through (c)(5) we would replace references to a departmental permit with references to the CIP. In § 319.37-3, we would add a new paragraph (g) requiring that the importation of restricted articles into the United States for experimental, therapeutic, or developmental purposes would require application for a CIP in accordance with § 319.6, and add a new paragraph (h) indicating that restricted articles imported into the United States that are required to be grown under postentry quarantine provisions must be accompanied by a CIP obtained in accordance with § 319.6.

Section 319.37-7 contains provisions governing postentry quarantine activities. Postentry quarantine is required for an established length of time following importation of certain restricted plants so they may be investigated and monitored for freedom from plant pests of foreign origin. Current paragraphs (a)(2) and (d) of this section require that an importer of the listed restricted articles from the designated regions complete and submit to PPQ a postentry quarantine growing agreement and an application for a written permit for the importation of the article in accordance with § 319.37-3. Section 319.37-3 designates articles whose importation requires a permit and indicates the information a permit application must contain, how a permit is issued, and under which circumstances a permit may be withdrawn.

We are proposing to amend § 319.37-7(a)(2) and (d) to state that the CIP is the form of permit required to accompany a postentry quarantine growing agreement. We believe that the information required in the application for a CIP will allow us to make a more informed decision about the specific article submitted for the postentry quarantine program, and allow us to provide more specific conditions for the issuance of the permit. It will also allow us more control over the plant material selected for the postentry quarantine program.

As noted above, current § 319.37-7(a)(2) and (d) require that the application for the written permit be made in accordance with § 319.37-3. We would add a new paragraph (h) to § 319.37-3, which would require that the importation of restricted articles into the United States to be grown under the postentry quarantine provisions of § 319.37-7 must be authorized by a CIP obtained in accordance with § 319.6. Since we are proposing to change the type of permit required by § 319.37-7(a)(2) and (d) to accompany a postentry quarantine growing agreement to the CIP, we would amend those provisions to require that a CIP, as provided for in the newly added § 319.37-3(h), be obtained.

•Logs, lumber, and other unmanufactured wood articles regulated under §§ 319.40-1 through 319.40-11.In § 319.40-1 we would add a definition ofcontrolled import permitfor use in the subpart, and remove that ofdepartmental permit.In § 319.40-2(d)(1), we would add that importations for experimental, therapeutic, or developmental purposes may be allowed under the conditions of a CIP, and we would remove the statement that the paragraph's provisions apply only to importations by the USDA. In paragraphs (d)(2) and (d)(3), we would replace the references to a Departmental permit with references to a CIP.

•Rice regulated under §§ 319.55 through 319.55-7.In § 319.55(c), we would remove the provision that all seed or paddy rice, rice straw, and rice hulls may be imported, when public interests will permit, into Guam under conditions less stringent than those of the subpart as prescribed by the Deputy Administrator, and in its place provide that the articles may be moved under the conditions specified in a CIP.

•Plant material subject to wheat diseases regulated under §§ 319.59-1 through 319.59-4.In § 319.59-1 we would add a definition for thecontrolled import permitfor use in the subpart. In paragraph (b) of § 319.59-2 we would remove the statement that the paragraph's provisions apply only to importations by the USDA and in its place provide that the articles may be moved under the conditions specified in a CIP. We would replace the references to a departmental permit with references to a CIP in paragraphs (b)(2), (b)(3), and (b)(4).

•Packing materials regulated under §§ 319.69 through 319.69-5.Section 319.69 prohibits certain plants and plant products and restricts certain others for use as packing materials. In paragraph (c) we would replace outdated language with the statement that the importation of those prohibited or restricted plant products may be imported for experimental, therapeutic, or developmental purposes under the provisions of a CIP.

•Cut flowers regulated under §§ 319.74-1 through 319.74-4.In § 319.74-1 we would add a definition for thecontrolled import permitfor use in the subpart. We would remove the provision that regulated articles may be imported for experimental or scientific purposes if moved under conditions prescribed by the Deputy Administrator in § 319.74-3 and instead provide that the articles may be moved under the conditions specified in a CIP.

•Articles restricted in order to prevent the entry of khapra beetle under §§ 319.75 through 319.75-9.In § 319.75(c), we would remove the statement that the paragraph's provisions apply only to importations by the USDA and would replace references to a departmental permit with references to a CIP.

We believe that these proposed changes would consolidate and harmonize requirements for obtaining a permit for the importation of plant material imported for scientific or certain other purposes, and therefore make the requirements of part 319 clearer and easier to use and implement.

In addition to these specific proposed changes regarding the CIP, we are also proposing to update the subparts discussed above by replacing references to “Deputy Administrator” whereverthey still appear with references to the Administrator. In some subparts, this would include removing a definition ofDeputy Administratorand adding one forAdministrator.Most APHIS regulations refer to the Agency's Administrator rather than the Deputy Administrators of specific programs like PPQ. This proposed change would make the regulations in part 319 consistent with other APHIS regulations.

This proposed rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget.

We have prepared an economic analysis for this proposed rule, which is set out below. The analysis provides a basis for our determination that this action would not have a significant economic impact on a substantial number of small entities.

For the purpose of this analysis and following the Small Business Administration (SBA) guidelines, we note that a major segment of entities potentially affected by the proposed changes are classified within the following industries: Nursery and Tree Production (NAICS 111421), and Floriculture Production (NAICS 111422). The nursery and floriculture industries are representative of other agricultural and nonagricultural industries in terms of being comprised largely of small entities. According to the Census of Agriculture, these two categories included 52,845 farms in 2007, and represented 3 percent of all farms in the United States. These entities are considered small by SBA standards if their annual sales are $750,000 or less. Over 93 percent of the farms in these industries had annual sales of less than $500,000.

Research and development establishments within Physical, Engineering, and Life Sciences (NAICS 541711) that provide professional, scientific, and technical services may also be affected by this proposed rule. These entities are considered small by SBA standards if they employ not more than 500 persons. According to the 2002 Economic Census, 82 percent of these establishments are small.

The CIP would replace the departmental permit and other forms of authorizations that have been in use. Because this is an administrative change, we do not anticipate that the replacement would have any significant economic impact on the concerned entities. From January 1, 2007, to December 31, 2009, a total of 108 postentry quarantine permits and 1,012 departmental permits were issued. The proposed rule is not expected to affect the number of permits issued.

Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action would not have a significant economic impact on a substantial number of small entities.

This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. If this proposed rule is adopted: (1) All State and local laws and regulations that are inconsistent with this rule will be preempted; (2) no retroactive effect will be given to this rule; and (3) administrative proceedings will not be required before parties may file suit in court challenging this rule.

In accordance with section 3507(d) of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501et seq.), the information collection or recordkeeping requirements included in this proposed rule have been submitted for approval to the Office of Management and Budget (OMB). Please send written comments to the Office of Information and Regulatory Affairs, OMB,Attention:Desk Officer for APHIS, Washington, DC 20503. Please state that your comments refer to Docket No. APHIS-2008-0055. Please send a copy of your comments to: (1) APHIS-2008-0055, Regulatory Analysis and Development, PPD, APHIS, Station 3A-03.8, 4700 River Road, Unit 118, Riverdale, MD 20737-1238, and (2) Clearance Officer, OCIO, USDA, Room 404-W, 14th Street and Independence Avenue, SW., Washington, DC 20250. A comment to OMB is best assured of having its full effect if OMB receives it within 30 days of publication of this proposed rule.

APHIS is proposing to amend the regulations concerning the importation of plants and plant products by establishing the controlled import permit as a single type of authorization for the importation into the United States of otherwise prohibited or restricted plant material for experimental, therapeutic, or developmental purposes. Currently, some sections of the regulations provide for those articles to be imported under a departmental permit, while other sections provide for their importation under administrative instructions or conditions specified by the Administrator or Deputy Administrator. This action would consolidate and harmonize the conditions for obtaining authorization for the importation of otherwise prohibited or restricted plant material for scientific or certain other purposes.

This proposed rule will require the use of a controlled import permit, annual inspection report, and the identification of the commodity being imported.

We are soliciting comments from the public (as well as affected agencies) concerning our proposed information collection and recordkeeping requirements. These comments will help us:

(1) Evaluate whether the proposed information collection is necessary for the proper performance of our agency's functions, including whether the information will have practical utility;

(2) Evaluate the accuracy of our estimate of the burden of the proposed information collection, including the validity of the methodology and assumptions used;

(3) Enhance the quality, utility, and clarity of the information to be collected; and

(4) Minimize the burden of the information collection on those who are to respond (such as through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology;e.g.,permitting electronic submission of responses).

Estimate of burden:Public reporting burden for this collection of information is estimated to average 0.8125 hours per response.

Respondents:Researchers, for-profit organizations, and foreign government officials.

Estimated annual number of respondents:1,200.

Estimated annual number of responses per respondent:6.667.

Estimated annual number of responses:8,000.

Estimated total annual burden on respondents:6,500 hours. (Due to averaging, the total annual burden hours may not equal the product of the annual number of responses multiplied by the reporting burden per response.)

Copies of this information collection can be obtained from Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 851-2908.

The Animal and Plant Health Inspection Service is committed to compliance with the E-Government Act to promote the use of the Internet and other information technologies, to provide increased opportunities for citizen access to Government information and services, and for other purposes. For information pertinent toE-Government Act compliance related to this proposed rule, please contact Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 851-2908.

Accordingly, we propose to amend 7 CFR part 319 as follows:

Background

The regulations in “Subpart-Fruits and Vegetables” (7 CFR 319.56-1 through 319.56-52, referred to below as the regulations) prohibit or restrict the importation of fruits and vegetables into the United States from certain parts of the world to prevent the introduction and dissemination of plant pests within the United States.

The national plant protection organization (NPPO) of Vietnam has requested that the Animal and Plant Health Inspection Service (APHIS) amend the regulations to allow fresh litchi (Litchi chinensisSonn.) and longan (Dimocarpus longanLour.) to be imported from Vietnam into the continental United States. The NPPO of Vietnam also proposed that the litchi and longan fruit be treated with irradiation at the 400 Gy dose approved to neutralize most insect pests, except pupae and adults of the order Lepidoptera.

As part of our evaluation of that request, we prepared a pest risk assessment identifying all quarantine pests of litchi and longan in Vietnam and a risk management document (RMD) that recommends risk mitigation measures to prevent the quarantine pests associated with these commodities from being introduced into the United States. Copies of the pest risk assessment and the RMD may be obtained from the person listed underFOR FURTHER INFORMATION CONTACTor viewed on the Regulations.gov Web site (seeADDRESSESabove for instructions for accessing Regulations.gov).

The pest risk assessment identified 16 pests of quarantine significance present in Vietnam that could be introduced into the United States through the importation of fresh litchi:

The pest risk assessment also identified 17 pests of quarantine significance present in Vietnam that could be introduced into the United States through the importation of fresh longan:

APHIS has determined that measures beyond standard port-of-entry inspection are required to mitigate the risks posed by these plant pests. Therefore, we are proposing to allow the importation of litchi and longan fruit from Vietnam into the continental United States only if they are produced in accordance with a systems approach to mitigate pest risk as outlined below. We are proposing to add the systems approach to the regulations in a new § 319.56-54 governing the importation of litchi and longan fruit from Vietnam.

Paragraph (a) of proposed § 319.56-54 would require that the litchi fruit be grown in orchards registered with and monitored by the NPPO of Vietnam. Requiring the NPPO of Vietnam to monitor fields where litchi is produced for export will ensure application of disease control measures and that the litchi are produced free of disease caused byP. litchii.

Paragraph (b) of proposed § 319.56-54 would set out treatment requirements for litchi and longan fruit exported to the United States. Fourteen of the pests of litchi and 16 of the pests of longan are insect pests. A minimum absorbed dose of 400 Gy is approved to neutralize all these insect pests, except pupae and adults of the order Lepidoptera.

Three of the insect pests associated with litchi and longan belong to the order Lepidoptera. Although the generic irradiation treatment is not approved for Lepidopteran pupae and adults, those life stages are unlikely to be associated with litchi and longan. Due to their mobility, Lepidopteran adults either feed externally, where they would be easily detected, or do not attack mature fruit. In most of the genera of concern, the pupae are either associated with plant parts other than fruit or they occur externally on their host's plant parts, where they would be easily detected. If the pupae do occur inside the fruit or seed of their host plants, they would be associated with premature fruit drop or obvious damage and symptoms and would be culled at the packinghouse or detected through inspection.

Also, except for two interceptions ofConopomorphaspp. in permit cargo with litchi fruit, inspectors at U.S. ports of entry have never intercepted pupae of the other quarantine Lepidoptera genera with commercial shipments of any type of fruit. This lack of interceptions is evidence of the low likelihood of any of the Lepidoptera pupae following the pathway of commercial fruit.

Therefore, irradiation treatment, along with standard post-harvest processes, would mitigate the risks from all the insect pests.

The litchi rust mite,A. litchii,is another pest of litchi and longan. The mite is primarily a pest of foliage and flower parts but is also sometimes associated with the fruit. Mites are external pests on the fruit, and because of the damage they cause on fruit, inspection and culling of the damaged fruit are considered effective in mitigating risk from such pests.

Although it is unlikely that commercially produced fruit is a pathway for the litchi rust mite, the pest's small size prevents its detection during inspection. Therefore, we would prohibit shipments of litchi and longan from Vietnam from being imported into or distributed to Florida, where litchi and longan fruit are grown, to protect that State's commercial litchi and longan production from litchi rust mite. Paragraph (c) of proposed § 319.56-54 would require the cartons containing the litchi or longan fruit to be stamped “Not for importation into or distribution in Florida.” This is consistent with other import programs where shipments of litchi or longan fruit are prohibited into Florida for the same pest.

Paragraph (d) of proposed § 319.56-54 would state that only commercial consignments of litchi and longan fruit would be allowed to be imported. Commercial consignments, as defined in § 319.56-2, are consignments that an inspector identifies as having been imported for sale and distribution. Such identification is based on a variety of indicators, including, but not limited to: Quantity of produce, type of packaging, identification of grower or packinghouse on the packaging, and documents consigning the fruits or vegetables to a wholesaler or retailer. Produce grown commercially is less likely to be infested with plant pests than noncommercial consignments. Noncommercial consignments are more prone to infestations because the commodity is often ripe to overripe, could be of a variety with unknown susceptibility to pests, and is often grown with little or no pest control.

The last pest of litchi is the fungusP. litchii.Requiring the NPPO of Vietnam to monitor fields where litchi is produced for export as in paragraph (a) of proposed § 319.56-54 will ensure application of disease control measures for this fungus. Most infected litchi fruit will be culled because trained harvesters, packinghouse personnel, and plant quarantine inspectors can easily detect the distinctive signs of the disease on fruit.

Infected, nonsymptomatic fruit may go undetected, but the likelihood of introduction via the few fruit that may escape detection is very low. It is highly unlikely that commercial fruit will be in a situation to introduce the disease because free water is required for the spores to infect a host. Additionally, there is no record of interception of this disease on litchi imported into the United States from other countries in regions where this pathogen is present. Therefore, no measures are necessary to mitigate the risk posed by this pathogen beyond certification of freedom based on inspection.

Accordingly, proposed paragraph (e) of § 319.56-54 would require each consignment of litchi or longan fruit to be accompanied by a phytosanitary certificate issued by the NPPO of the exporting country certifying that the provisions of the proposed regulations have been met. In addition, the phytosanitary certificate accompanying each consignment of litchi would also have to include an additional declaration stating that the consignment was inspected in Vietnam and found free ofP. litchii.

This proposed rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget.

In accordance with 5 U.S.C. 603, we have performed an initial regulatory flexibility analysis, which is summarized below, regarding the economic effects of this proposed rule on small entities. Copies of the full analysis are available by contacting the person listed underFOR FURTHER INFORMATION CONTACTor on the Regulations.gov Web site (seeADDRESSESabove for instructions for accessing Regulations.gov).

Based on the information we have, there is no reason to conclude that adoption of this proposed rule would result in any significant economic effect on a substantial number of small entities. However, we do not currently have all of the data necessary for a comprehensive analysis of the effects of this proposed rule on small entities. Therefore, we are inviting comments on potential effects. In particular, we are interested in determining the number and kind of small entities that may incur benefits or costs from the implementation of this proposed rule.

This proposed rule is in response to a request from the NPPO of Vietnam to export fresh litchi and longan to the continental United States. In the United States, these two fruits are commercially produced in Florida and, to a lesserextent, in Hawaii. Production in California is still largely in the developmental stage. Annual U.S. production volumes in 2008 were about 535 metric tons (MT) for litchi and 776 MT for longan. Virtually all U.S. farms that grow litchi and longan are believed to be small entities based on the Small Business Administration (SBA) standard of annual receipts of not more than $750,000.

Our review of available information suggests that the proposed rule may have a negative economic impact on longan growers and, to a lesser extent, on litchi growers, particularly when the fruit is sold in Asian and Hispanic markets where the demand for produce tends to be more price-sensitive. The annual quantities of litchi and longan that Vietnam expects to export to the United States, namely, 600 MT and 1,200 MT, would be equivalent to about 18 percent and more than 100 percent, respectively, of U.S. import levels for these two fruits in 2010. Negative impacts for U.S. producers would be moderated to the extent that imports from Vietnam displace imports from other foreign sources.

For the proposed rule, APHIS does not have an alternative to the proposed systems approach for allowing the importation of fresh litchi and longan fruit from Vietnam. Widely ranging prices for litchi and longan among U.S. markets and consumers' varying purchasing criteria in regard to price, quality, and sustainability may indicate opportunities for domestic growers to alleviate negative effects of increased foreign competition through alternative marketing arrangements or marketing channels.

This proposed rule would allow litchi and longan fruit to be imported into the United States from Vietnam. If this proposed rule is adopted, State and local laws and regulations regarding litchi and longan fruit imported under this rule would be preempted while the fruit is in foreign commerce. Fresh fruits are generally imported for immediate distribution and sale to the consuming public and would remain in foreign commerce until sold to the ultimate consumer. The question of when foreign commerce ceases in other cases must be addressed on a case-by-case basis. If this proposed rule is adopted, no retroactive effect will be given to this rule, and this rule will not require administrative proceedings before parties may file suit in court challenging this rule.

In accordance with section 3507(d) of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501et seq.), the information collection or recordkeeping requirements included in this proposed rule have been submitted for approval to the Office of Management and Budget (OMB). Please send written comments to the Office of Information and Regulatory Affairs, OMB, Attention: Desk Officer for APHIS, Washington, DC 20503. Please state that your comments refer to Docket No. APHIS-2010-0116. Please send a copy of your comments to: (1) Docket No. APHIS-2010-0116, Regulatory Analysis and Development, PPD, APHIS, Station 3A-03.8, 4700 River Road, Unit 118, Riverdale, MD 20737-1238, and (2) Clearance Officer, OCIO, USDA, Room 404-W, 14th Street and Independence Avenue, SW., Washington, DC 20250. A comment to OMB is best assured of having its full effect if OMB receives it within 30 days of publication of this proposed rule.

APHIS is proposing to amend the fruits and vegetables regulations to allow the importation of litchi and longan fruit from Vietnam into the continental United States. As a condition of entry, litchi and longan fruit from Vietnam would be subject to a systems approach that would include requirements from treatment and inspection and restrictions on the distribution of the fruit. This action would allow for the importation of litchi and longan fruit from Vietnam into the United States while continuing to provide protection against the introduction of quarantine pests.

Allowing the importation of litchi and longan fruit from Vietnam into the continental United States will require the completion of a phytosanitary certificate with a declaration, orchard registration, and labeling of boxes.

We are soliciting comments from the public (as well as affected agencies) concerning our proposed information collection and recordkeeping requirements. These comments will help us:

(1) Evaluate whether the proposed information collection is necessary for the proper performance of our agency's functions, including whether the information will have practical utility;

(2) Evaluate the accuracy of our estimate of the burden of the proposed information collection, including the validity of the methodology and assumptions used;

(3) Enhance the quality, utility, and clarity of the information to be collected; and

(4) Minimize the burden of the information collection on those who are to respond (such as through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology;e.g.,permitting electronic submission of responses).

Estimate of burden:Public reporting burden for this collection of information is estimated to average 0.2554 hours per response.

Respondents:NPPO of Vietnam and importers of litchi and longan fruit from Vietnam.

Estimated annual number of respondents:3.

Estimated annual number of responses per respondent:334.

Estimated annual number of responses:1,002.

Estimated total annual burden on respondents:256 hours. (Due to averaging, the total annual burden hours may not equal the product of the annual number of responses multiplied by the reporting burden per response.)

Copies of this information collection can be obtained from Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 851-2908.

The Animal and Plant Health Inspection Service is committed to compliance with the E-Government Act to promote the use of the Internet and other information technologies, to provide increased opportunities for citizen access to Government information and services, and for other purposes. For information pertinent to E-Government Act compliance related to this proposed rule, please contact Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 851-2908.

Accordingly, we propose to amend 7 CFR part 319 as follows:

Background

The regulations in “Subpart—Fruits and Vegetables” (7 CFR 319.56-1 through 319.56-52, referred to below as the regulations) prohibit or restrict the importation of fruits and vegetables into the United States from certain parts of the world to prevent the introduction and dissemination of plant pests that are new to or not widely distributed within the United States.

The national plant protection organization (NPPO) of Australia has requested that the Animal and Plant Health Inspection Service (APHIS) amend the regulations to allow fresh mangoes from Australia to be imported into the continental United States.

As part of our evaluation of Australia's request, we prepared a pest risk assessment (PRA), titled “Importation of Fresh Fruit of Mango,Mangifera indicaL., from Australia into the Continental United States, A Pathway-Initiated Risk Analysis” (June 2011). The PRA evaluated the risks associated with the importation of mangoes into the continental United States from Australia.

The PRA identified 21 pests of quarantine significance present in Australia that could be introduced into the United States through the importation of mangoes:

•Bactrocera aquilonis

•B. cucumis

•B. frauenfeldi

•B. jarvisi

•B. kraussi

•B. murrayi

•B. neohumeralis

•B. opiliae

•B. tryoni

•Ceratitis capitata

• Red wax scale (Ceroplastes rubens)

• Green scale (Coccus viridis)

• Mango seed weevil (Sternochetus mangiferae)

•Cytosphaera mangiferae

•Fusariumspp. complex (associated with mango malformation disease)

•Lasioddiplodia pseudotheobraomae

•Neofusicoccum mangiferae

•Neoscytalidium novaehollandiae

•Phomopsis mangiferae

•Pseudofusicoccum adansoniae

•Xanthomonas campestrispv.mangiferaeindicae

According to our PRA, for pests rated high risk (C. rubens, C. capitata,and the nineBactroceraspp. fruit flies), specific phytosanitary measures beyond standard port-of-entry inspection are strongly recommended. For pests rated medium risk (C. viridis, C. mangiferae, L. pseudotheobraomae, N. mangiferae, N. novaehollandiae, P. adansoniae, S. mangiferae,andX. campestrispv.mangiferaeindicae), specific phytosanitary measures beyondstandard port-of-entry inspection may be necessary. For pests rated as low risk (theFusariumspp. complex andP. mangiferae), specific phytosanitary measures beyond standard port-of-entry inspection are not required. To recommend specific measures to mitigate the risk posed by the pests identified in the PRA, we prepared a risk management document (RMD). Copies of the PRA and RMD may be obtained from the person listed underFOR FURTHER INFORMATION CONTACTor viewed on the Regulations.gov Web site (seeADDRESSESabove for instructions for accessing Regulations.gov).

Based on the recommendations of the RMD, we are proposing to allow the importation of mangoes from Australia into the continental United States only if they are produced in accordance with a systems approach. The systems approach we are proposing would require that mangoes be imported only under the conditions described below. These conditions would be added to the regulations in a new § 319.56-54.

Mangoes would have to be imported in commercial consignments. Produce grown commercially is less likely to be infested with plant pests than noncommercial shipments. Noncommercial shipments are more prone to infestations because the commodity is often ripe to overripe, could be of a variety with unknown susceptibility to pests, and is often grown with little or no pest control. Commercial consignments, as defined in § 319.56-2, are consignments that an inspector identifies as having been imported for sale and distribution. Such identification is based on a variety of indicators, including, but not limited to: Quantity of produce, type of packaging, identification of grower or packinghouse on the packaging, and documents consigning the fruits or vegetables to a wholesaler or retailer.

The mangoes would have to be treated for insect pests, except pupae and adults of the order Lepidoptera, with irradiation in accordance with 7 CFR part 305, which contains the phytosanitary treatments regulations. The Plant Protection and Quarantine Treatment Manuel, which lists minimum absorbed irradiation doses for plant pests and classes of plant pests, includes a 400-gray dose for such pests. None of the pests associated with mangoes from Australia belong to the order Lepidoptera; therefore, this treatment would successfully mitigate the risk of all 13 insect pests associated with mangoes from Australia.

Within part 305, § 305.9 contains a number of other requirements for irradiation treatment, including monitoring by APHIS inspectors and safeguarding of the fruit. Treatment could be conducted at an approved facility in Australia or in the United States.

The required irradiation treatment would not mitigate the risks posed by the fungusC. mangiferae.In order to mitigate the risks posed byC. mangiferae,which we consider to be of medium risk of introduction and dissemination within the continental United States, we are proposing three options: (1) The mangoes be treated with a broad-spectrum post-harvest fungicidal dip, (2) the mangoes originate from an orchard that was inspected prior to the beginning of harvest during the growing season and the orchard was found free ofC. mangiferae,or (3) the mangoes originate from an orchard that was treated with a broad-spectrum fungicide during the growing season and was inspected prior to harvest and the fruit was found free ofC. mangiferae.

Symptoms ofC. mangiferaecan be easily seen and detected in the field on mango leaves and fruit during pre-harvest inspection. Post-harvest diseases do not occur without the presence of fungal symptoms on leaves in the field. Orchard application of broad-spectrum fungicide sprays protects fruit from infection by aerial spores produced on leaves or stems. In Australia, spraying of mango plants with broad-spectrum fungicides during the growing season is a common practice to control fungal diseases.

Prior to export from Australia, the fruit would have to be inspected by the NPPO of Australia and found free ofC. mangiferae, L. pseudotheobraomae, N. mangiferae, N. novaehollandiae, P. adansoniae, P. mangiferae, Fusariumspp., andX. campestrispv.mangiferaeindicae.Symptoms of these pathogens are easily discernible with the naked eye and would most likely be detected during visual inspection of the fruit at the packinghouse. These practices would effectively remove these pathogens of concern from the pathway.

Each consignment of fruit would have to be accompanied by a phytosanitary certificate (PC) issued by the NPPO of Australia with additional declarations that would confirm that: (1) The mangoes were subjected to one of the pre- and post-harvest mitigation options forC. mangiferaedescribed earlier and (2) the mangoes were inspected prior to export and found free ofC. mangiferae, L. pseudotheobraomae, N. mangiferae, N. novaehollandiae, P. adansoniae, P. mangiferae, Fusariumspp., andX. campestrispv.mangiferaeindicae.

In addition, if the fruit is treated with irradiation outside the United States, each consignment of fruit would have to be inspected jointly by APHIS and the NPPO of Australia, and the PC would have to include an additional declaration that the fruit received the irradiation treatment.

Mangoes imported from Australia into the United States would also be subject to inspection at the port of entry.

This proposed rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has been reviewed by the Office of Management and Budget.

We have prepared an economic analysis for this rule. The economic analysis provides a cost-benefit analysis, as required by Executive Order 12866, and an analysis of the potential economic effects of this action on small entities, as required by the Regulatory Flexibility Act. The economic analysis is summarized below. Copies of the full analysis are available by contacting the person listed underFOR FURTHER INFORMATION CONTACTor on the Regulations.gov Web site (seeADDRESSESabove for instructions for accessing Regulations.gov).

The United States produces approximately 3,000 metric tons of mangoes per year, about one-hundredth of 1 percent of world production. While U.S. mango production is limited, the United States is the world's leading importer of fresh mangoes, receiving 33 percent of imports worldwide. Currently, Australia produces 60,000 metric tons of mangoes during the mid-September to mid-April season. Mango imports from Australia are expected to total about 1,200 metric tons per year. This represents approximately 0.5 percent of total U.S. mango imports. U.S. consumers will benefit from increased access to another variety of fresh mangoes. In addition, because the Australian mango season is opposite that of the United States, fresh mango imports would not compete with domestic production and U.S. consumers can have access to mangoes the entire year.

Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action would not have a significant economic impact on a substantial number of small entities.

This proposed rule would allow mangoes to be imported into the United States from Australia. If this proposedrule is adopted, State and local laws and regulations regarding mangoes imported under this rule would be preempted while the fruit is in foreign commerce. Fresh fruits are generally imported for immediate distribution and sale to the consuming public and would remain in foreign commerce until sold to the ultimate consumer. The question of when foreign commerce ceases in other cases must be addressed on a case-by-case basis. If this proposed rule is adopted, no retroactive effect will be given to this rule, and this rule will not require administrative proceedings before parties may file suit in court challenging this rule.

In accordance with section 3507(d) of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501et seq.), the information collection or recordkeeping requirements included in this proposed rule have been submitted for approval to the Office of Management and Budget (OMB). Please send written comments to the Office of Information and Regulatory Affairs, OMB, Attention: Desk Officer for APHIS, Washington, DC 20503. Please state that your comments refer to Docket No. APHIS-2011-0040. Please send a copy of your comments to: (1) Docket No. APHIS-2011-0040, Regulatory Analysis and Development, PPD, APHIS, Station 3A-03.8, 4700 River Road, Unit 118, Riverdale, MD 20737-1238, and (2) Clearance Officer, OCIO, USDA, Room 404-W, 14th Street and Independence Avenue, SW., Washington, DC 20250. A comment to OMB is best assured of having its full effect if OMB receives it within 30 days of publication of this proposed rule.

APHIS is proposing to amend the fruits and vegetables regulations to allow, under certain conditions, the importation into the United States of commercial consignments of fresh mangoes from Australia. The conditions for the importation of fresh mangoes from Australia include requirements for pest exclusion at the production site, irradiation treatment, pest-excluding packinghouse procedures and port-of-entry inspections. The mangoes would also be required to be accompanied by a phytosanitary certificate issued by the national plant protection organization (NPPO) of Australia with an additional declaration confirming that the mangoes had been produced in accordance with the proposed requirements. This action would allow for the importation of fresh mangoes from Australia while continuing to provide protection against the introduction of injurious plant pests into the United States.

We are soliciting comments from the public (as well as affected agencies) concerning our proposed information collection and recordkeeping requirements. These comments will help us:

(1) Evaluate whether the proposed information collection is necessary for the proper performance of our agency s functions, including whether the information will have practical utility;

(2) Evaluate the accuracy of our estimate of the burden of the proposed information collection, including the validity of the methodology and assumptions used;

(3) Enhance the quality, utility, and clarity of the information to be collected; and

(4) Minimize the burden of the information collection on those who are to respond (such as through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology; e.g., permitting electronic submission of responses).

Estimate of burden:Public reporting burden for this collection of information is estimated to average 0.5 hours per response.

Respondents:Foreign business.

Estimated annual number of respondents:20.

Estimated annual number of responses per respondent:5.

Estimated annual number of responses:100.

Estimated total annual burden on respondents:50 hours. (Due to averaging, the total annual burden hours may not equal the product of the annual number of responses multiplied by the reporting burden per response.)

Copies of this information collection can be obtained from Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 851-2908.

The Animal and Plant Health Inspection Service is committed to compliance with the E-Government Act to promote the use of the Internet and other information technologies, to provide increased opportunities for citizen access to Government information and services, and for other purposes. For information pertinent to E-Government Act compliance related to this proposed rule, please contact Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at (301) 851-2908.

Accordingly, we propose to amend 7 CFR part 319 as follows:

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under theADDRESSESsection. Include “Docket No. FAA-2011-1093; Directorate Identifier 2010-NM-149-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments.

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

We received a report of extensive corrosion of the ballscrew of the drive mechanism of the horizontal stabilizer trim actuator (HSTA). Boeing previously initiated a design review and safety analysis of the ballscrews used on all Model 757 airplanes as a result of an MD-80 airplane accident which occurred in January 2000. The cause of that accident was attributed to an in-flight failure of the horizontal stabilizer jackscrew assembly caused by inadequate maintenance. Jackscrews and ballscrews are similar in function and have similar airplane level failure modes. During this review a Model 757 airplane operator reported the subject corrosion. This condition, if not corrected, could result in undetected failure of the primary and secondary load paths for the ballscrew in the horizontal stabilizer, which could lead to loss of control of the horizontal stabilizer and consequent loss of control of the airplane.

We have reviewed Boeing Alert Service Bulletins 757-27A0144 (for Model 757-200, -200CB, and 200PF series airplanes) and 757-27A0145 (for Model 757-300 series airplanes), both Revision 1, both dated January 20, 2010. These service bulletins describe procedures for repetitive detailed inspections for discrepancies of the horizontal stabilizer ballscrew assembly (including but not limited to, damage, cracking, corrosion, or wear); repetitive lubrication of the horizontal stabilizer trim control system; and repetitive measurements of the ballscrew to ballnut freeplay for discrepancies.

We have also reviewed Subject 27-41-10, “Stabilizer Trim Ballscrew Freeplay,” of Chapter 27, “Flight Controls,” of the Boeing 757 Airplane Maintenance Manual (AMM), Revision 101, dated May 20, 2011, which describes procedures for accomplishing the subject inspections and freeplay measurements, and applicable corrective actions.

We are proposing this AD because we evaluated all relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design. This proposed AD would require accomplishing the actions specified in the service information described previously, except as discussed under “Differences Between the Proposed AD and the Service Information.”

Boeing Alert Service Bulletins 757-27A0144 and 757-27A0145, both Revision 1, both dated January 20, 2010, do not specify corrective actions for airplanes on which the measured freeplay is less than .004 inch and the freeplay check was done correctly. However, this proposed AD requires corrective action that includes replacement of the HSTA before further flight with a new or overhauled HSTA, if the freeplay measurement is less then 0.002 inch. No action is required for freeplay measurements greater then or equal to 0.002 inch but less then 0.004 inch after verifying the measurement was performed correctly.

Boeing Alert Service Bulletins 757-27A0144 and 757-27A0145, both Revision 1, both dated January 20, 2010, do not specify conditions for replacing the HSTA if that replacement is necessary as corrective action. This proposed AD requires any replacement HSTA be new or overhauled if replaced as corrective action. Any replacement HSTA that is not new or overhauled must be inspected before further flight in accordance with the requirements of this proposed AD.

Boeing Alert Service Bulletins 757-27A0144 and 757-27A0145, both Revision 1, both dated January 20, 2010, do not give credit for airplanes on which the HSTA ballscrews were overhauled after removing the HSTA from the airplane as part of a “hard-time” replacement program. The proposed AD includes credit for airplanes on which any HSTA is overhauled before the effective date of this AD, or within the compliance time specified in paragraph (g), (h), or (i) of this AD, as applicable, as part of a “hard-time” replacement program that includes removal of the HSTA from the airplane and overhaul of the stabilizer ballscrew using original equipment manufacturer instructions. Therefore, any such HSTA is considered acceptable for compliance with the initial accomplishment of the actions specified in paragraphs (g), (h), and (i) of this AD, as applicable, and the repeat interval for those actions may be determined from the performance date of that overhaul.

Boeing Alert Service Bulletins 757-27A0144 and 757-27A0145, both Revision 1, both dated January 20, 2010, do not specify the initial compliance times for airplanes on which the detailed inspection or lubrication tasks have not been performed; however, this proposed AD provides those compliance times.

Boeing Alert Service Bulletins 757-27A0144 and 757-27A0145, both Revision 1, both dated January 20, 2010, specify the initial compliance time for the stabilizer ballscrew to ballnut freeplay check for Group 1, Configuration 1, and Group 1, Configuration 3 airplanes based on total flight hours, within 18 months from the date of Boeing Alert Service Bulletins 757-27A0144 and 757-27A0145, both Revision 1, both dated January 20, 2010. This proposed AD requires the initial freeplay check before the accumulation of 15,000 total flight hours, or within 18 months after the effective date of this AD, whichever occurs later.

We have coordinated the differences discussed above with Boeing.

We estimate that this proposed AD would affect 730 airplanes of U.S. registry. We also estimate that it would take about 13 work-hours per product to comply with this proposed AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of this proposed AD to the U.S. operators to be $806,650, or $1,105 per product.

We estimate that it would take about 26 work-hours to do any HSTA replacement that would be required based on the results of the proposed inspection. We have no way of determining the number of aircraft that might need these replacements. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of this proposed replacement to the U.S. operators to be $2,210 per product; excluding parts cost, which varies depending on airplane configuration.

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

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

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

For the reasons discussed above, I certify this proposed regulation:

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

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

(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 proposes to amend 14 CFR part 39 as follows:

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under theADDRESSESsection. Include “Docket No. FAA-2011-1091; Directorate Identifier 2011-NM-037-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments.

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

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2011-0010, dated January 20, 2011 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

You may obtain further information by examining the MCAI in the AD docket.

Airbus Military has issued Section 76-10-00, “Power and Condition Control,” Block 601 (Configuration 1), “Inspection/Check,” Paragraph 1.B.; and Section 76-10-12, “Power and Control Cables,” Block 401 (Configuration 1),“Removal/Installation,” Paragraph 3.; of the CN-235 Aircraft Maintenance Manual, Revision 57, dated July 15, 2010. The actions described in this aircraft maintenance manual are intended to correct the unsafe condition identified in the MCAI.

This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.

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

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

Based on the service information, we estimate that this proposed AD would affect about 7 products of U.S. registry. We also estimate that it would take about 2 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $1,190, or $170 per product.

In addition, we estimate that any necessary follow-on actions would take about 12 work-hours and require parts costing $1,087, for a cost of $2,107 per product. We have no way of determining the number of products that may need these actions.

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

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

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

For the reasons discussed above, I certify this proposed regulation:

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

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

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

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

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

Comments Invited

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under theADDRESSESsection. Include “Docket No.FAA-2009-0994; Directorate Identifier 2009-NE-39-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments.

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

On May 20, 2011, we issued AD 2011-11-08, Amendment 39-16707 (76 FR 30529, May 26, 2011), for all RR RB211-535E4-37, -535E4-B-37, -535E4-B-75, and -535E4-C-37 turbofan engines. That AD requires performing an initial FPI on the LP turbine stage 1, 2, and 3 discs at the next engine shop inspection after the effective date of that AD. That AD also requires repetitive inspections at each engine shop visit after accumulating 1,500 cycles since last inspection of the LP turbine stage 1, 2, and 3 discs. That AD resulted from several findings of cracking at the firtrees of LP turbine discs. We issued that AD to detect cracks in the LP turbine stage 1, 2, and 3 discs, which could result in an uncontained release of LP turbine blades and damage to the airplane.

Since we issued AD 2011-11-08, Amendment 39-16707 (76 FR 30529, May 26, 2011), we found that the definition of “shop visit” in the AD is too restrictive, in that it would require operators to inspect more often than required to ensure safety.

We estimate that this proposed AD would affect about 588 RB211-535 series turbofan engines installed on airplanes of U.S. registry. We also estimate that it would take about 30 work-hours per product to comply with this proposed AD. The average labor rate is $85 per work-hour. No parts are required. Based on these figures, we estimate the cost of this proposed AD on U.S. operators to be $1,499,400.

We are proposing this AD because we evaluated all the relevant information and determined that the definition of shop visit is too restrictive, and to correct the unsafe condition described previously. This condition is likely to exist or develop in other products of the same type design.

This AD requires accomplishing the same requirements as AD 2011-11-08 (76 FR 30529, May 26, 2011), except the definition of shop visit has been redefined.

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

For the reasons discussed above, I certify that the proposed regulation:

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

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

(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 proposes to amend 14 CFR part 39 as follows:

I. Background

On July 21, 2010, President Obama signed the Dodd-Frank Act into law.1 Title VII of the Dodd-Frank Act amends the CEA2 to establish a comprehensive new regulatory framework for swaps. The legislation was enacted to reduce risk, increase transparency, and promote market integrity within the financial system by, among other things: (1) Providing for the registration and comprehensive regulation of swap dealers and major swap participants; (2) imposing clearing and trade execution requirements on standardized derivative products; (3) creating robust recordkeeping and real-time reporting regimes; and (4) enhancing the rulemaking and enforcement authorities of the Commission with respect to, among others, all registered entities and intermediaries subject to the Commission's oversight.3

Section 754 of the Dodd-Frank Act states that, unless otherwise provided, the provisions of subtitle A of title VII of the Dodd-Frank Act4 “shall takeeffect on the later of 360 days after the date of the enactment of this subtitle or, to the extent a provision of this subtitle requires a rulemaking, not less than 60 days after publication of the final rule or regulation implementing such provision of this subtitle.” Thus, the general effective date for provisions of title VII that do not require a rulemaking was July 16, 2011. This includes the provisions that repealed several provisions of the CEA as in effect prior to the Dodd-Frank Act that excluded or exempted, in whole or in part, certain transactions from Commission oversight.5

Section 712(d)(1) of the Dodd-Frank Act requires the Commission and the SEC to undertake a joint rulemaking to “further define” certain terms used in title VII, including the terms “swap,” “swap dealer,” “major swap participant,” and “eligible contract participant.”6 Section 721(c) requires the Commission to adopt a rule to “further define” the terms “swap,” “swap dealer,” “major swap participant,” and “eligible contract participant” to prevent evasion of statutory and regulatory obligations.7 The Commission has issued two notices of proposed rulemaking that address these further definitions.8

The Commission's final rulemakings further defining the terms in sections 712(d) and 721(c) were not expected to be in effect as of July 16, 2011 (i.e.,the general effective date set forth in section 754 of the Dodd-Frank Act). Accordingly, the Commission on July 14, 2011 exercised its exemptive authority under CEA section 4(c)9 and its authority under section 712(f) of the Dodd-Frank Act by issuing the July 14 Order.10 In so doing, the Commission sought to address concerns that had been raised about the applicability of various regulatory requirements to certain agreements, contracts, and transactions after July 16, 2011, and thereby ensure that current practices will not be unduly disrupted during the transition to the new regulatory regime.11

The July 14 Order groups the relevant provisions of the Dodd-Frank Act into four categories and provides temporary exemptive relief, set to expire no later than December 31, 2011, with respect to Categories 2 and 3. A summary of the four categories of provisions follows.

Category 1 covers statutory provisions which by their express terms require rulemaking to implement. Because, under section 754 of the Dodd-Frank Act, these provisions do not become effective until at least 60 days after the final rule is published, no exemptive relief from the general effective date is necessary. Category 1 provisions include, among others, the further definitions of terms regarding swap entities or instruments as required by the Dodd-Frank Act (such as the terms “swap,” “swap dealer,” “major swap participant,” or “eligible contract participant”). Category 1 also includes, among others: (1) Registration, capital and margin requirements, and business conduct standards for swap dealers and major swap participants; (2) provisions prohibiting agricultural swaps except pursuant to CFTC rules; (3) rules regarding swap execution facilities; and (4) various swap data recordkeeping and reporting requirements. A complete list of the Category 1 provisions is included in the appendix to the July 14 Order.

The first part of the relief provided for in the July 14 Order reaches those Dodd-Frank Act provisions (“Category 2 provisions”) that are self-effectuating (i.e.,do not require a rulemaking) and that reference one or more of the terms for which the Commission and SEC are required to provide further definition, including “swap,” “swap dealer,” “major swap participant,” “eligible contract participant,” and “security-based swap agreement” (collectively, the “referenced terms”). These Category 2 provisions include, for example, the trade execution requirement of CEA section 2(h)(8), as amended by Dodd-Frank Act section 723. A complete list of the Category 2 provisions is included in the appendix to the July 14 Order. Because the Category 2 provisions would have taken effect on July 16, 2011 pursuant to section 754, the Commission granted temporary relief from those provisions, but only to the extent that the requirements in such provisions specifically relate to a referenced term that is not yet further defined. Thus, if a Category 2 provision also applies to futures or options on futures, the provision took effect on July 16 with respect to futures or options on futures. The exemption for Category 2 provisions expires on the earlier of: (1) The effective date of the applicable final rule further defining the relevant term; or (2) December 31, 2011.

In part two of the July 14 Order, the Commission provides temporary exemptive relief from the provisions of the CEA that may apply to certain agreements, contracts, and transactions in exempt or excluded commodities (generally, financial, energy and metals commodities) as a result of the repeal of the CEA exemptions and exclusions in former CEA sections 2(d), 2(e), 2(g), 2(h), and 5d as of July 16, 2011 pursuant to sections 723(a)(1) and 734(a) of the Dodd-Frank Act (the “Category 3 provisions”). As explained in the July 14 Order, this relief is based on the Commission's existing “part 35” exemptive rules.12

Part 35 originally was promulgated in 1993 pursuant to, among others, the Commission's general exemptive authority in CEA section 4(c) and its plenary options authority under section 4c(b),13 and provides a broad-based exemption from the CEA for “swapagreements” in any commodity. Specifically, part 35 exempts “swap agreements,” as defined therein, from most of the provisions of the CEA if: (1) They are entered into by “eligible swap participants” (“ESPs”);14 (2) they are not part of a fungible class of agreements standardized as to their material economic terms; (3) the creditworthiness of any party having an actual or potential obligation under the swap agreement would be a material consideration in entering into or determining the terms of the swap agreement, including pricing, cost, or credit enhancement terms; and (4) they are not entered into or traded on a multilateral transaction execution facility.

Under part two of the relief provided for in the July 14 Order, the Commission stated that transactions in exempt or excluded commodities (and persons offering, entering into, or rendering advice or rendering other services with respect to such transactions) are temporarily exempt from provisions of the CEA that may apply to such transactions if such transactions comply with part 35, notwithstanding that: (1) The transaction may be executed on a multilateral transaction execution facility; (2) the transaction may be cleared; (3) persons offering or entering into the transaction may be eligible contract participants as defined in the CEA (prior to the enactment of the Dodd-Frank Act); (4) the transaction may be part of a fungible class of agreements that are standardized as to their material economic terms; and/or (5) no more than one of the parties to the transaction is entering into the transaction in conjunction with its line of business, but is neither an eligible contract participant nor an ESP, and the transaction was not and is not marketed to the public.15

Thus, for certain transactions, the July 14 Order provides relief notwithstanding that the transaction may not satisfy certain part 35 requirements (e.g.,cleared, executed on a multilateral trade execution facility, entered into by certain persons that are not eligible contract participants,etc.). The Commission stated in the July 14 Order that this relief is limited to transactions in exempt and excluded commodities, and does not extend to transactions in agricultural commodities, because transactions in agricultural commodities were not covered by the applicable statutory exclusions and exemptions in effect prior to July 16, 2011.16 The exemption in part two of the July 14 Order expires on the earlier of: (1) The repeal, withdrawal or replacement of part 35; or (2) December 31, 2011.

Category 4 contains those Dodd-Frank Act provisions for which the Commission determined not to issue relief, and which therefore went into effect on July 16, 2011. A complete list of the Category 4 provisions is included in the appendix to the July 14 Order.

The temporary exemptions issued in the July 14 Order are subject to several conditions. These conditions provide that the July 14 Order shall not: (1) Limit in any way the Commission's anti-fraud or anti-manipulation authority under the CEA; (2) apply to any provision of the Dodd-Frank Act or the CEA that became effective prior to July 16, 2011; (3) affect any effective date or compliance date set forth in any rulemaking issued by the Commission to implement provisions of the Dodd-Frank Act; (4) limit the Commission's authority under Dodd-Frank Act section 712(f) to issue rules, orders, or exemptions prior to the effective date of any provision of the Dodd-Frank Act and the CEA, in order to prepare for such effective date; and (5) affect the applicability of any provision of the CEA to futures contracts or options on futures contracts, or to cash markets.17

The Commission is proposing to amend the July 14 Order in two ways. First, the Commission is proposing to amend the July 14 Order to extend the potential latest expiry dates. With respect to provisions covered in the first part of the relief in the July 14 Order, the Commission is proposing that the temporary exemptive relief expire upon the earlier of: (1) The effective date of the applicable final rule further defining the relevant referenced term; or (2) July 16, 2012.18 This amendment addresses the potential that, as of December 31, 2011, the CFTC-SEC joint rulemakings “further defining” the referenced terms will not yet be effective. The Commission also is proposing to amend the July 14 Order to extend the expiry date of the second part of the relief in the July 14 Order until the earlier of:(1) July 16, 2012; or (2) such other compliance date as may be determined by the Commission. For the same reason stated by the Commission with respect to the second part of the relief provided in the July 14 Order, the proposed extension of this exemptive relief “will allow markets and market participants to continue to operate under the regulatory regime as in effect prior to July 16, 2011, but subject to various implementing regulations that the Commission promulgates and applies to the subject transactions, market participants, or markets.”19

Second, the Commission is proposing to include within the second part of the relief any agreement, contract or transaction that fully meets the conditions in part 35 as in effect on December 31, 2011. This amendment addresses the fact that such transactions, which were not included within the scope of the July 14 Order because the exemptive rules in part 35 covered them at that time, now require temporary relief because part 35 will no longer be available after December 31, 2011.20 Accordingly, to ensure that theexemptive relief currently available for these transactions continues to be available after December 31, 2011, the Commission proposes to amend the July 14 Order to incorporate by reference the part 35 relief available as of December 31, 2011. Whereas the relief provided in part two of the July 14 Order was (and would remain) limited to transactions in excluded or exempt commodities, this proposed amendment also would include, beginning on January 1, 2012, transactions in agricultural commodities that fully meet the conditions in part 35 as in effect on December 31, 2011.21 The Commission proposes that this further amendment to the July 14 Order is necessary to ensure that the same scope of the exemptive relief available before December 31, 2011 is available to all swaps and extends through July 16, 2012, at the latest.

In proposing these amendments, the Commission continues to strive to ensure that current practices will not be unduly disrupted during the transition to the new regulatory regime. As stated above, the proposed July 16, 2012 date coincides with the potential transitional period provided in sections 723(c) and 734(c) of the Dodd-Frank Act.22 Further, should the Commission deem it appropriate to terminate or extend any exemptive relief under part two of the July 14 Order, the Commission will be in a better position to comprehensively evaluate and consider any tailored exemption at that time.

The Commission believes it is in the interest of the public and market participants to continue to provide regulatory certainty regarding the applicability of the Dodd-Frank Act. There have been no disruptions to the market resulting from the July 14 Order, nor has the Commission received any request for additional relief beyond that provided for in the July 14 Order. Accordingly, the Commission believes the scope of the existing relief is appropriate and is proposing here only to amend that relief in the aforementioned ways. The Commission notes, for example, that Category 1 provisions—i.e.,those for which a rulemaking is required—will continue to be addressed outside the scope of the July 14 Order. Further, where appropriate, the Commission expects to phase-in compliance with its final rules over a period of time as part of the Commission's ongoing commitment to ensuring an orderly transition to the new regulatory regime.

The Commission requests and will only consider comments on the amendments to the July 14 Order that are proposed in this notice of proposed amendment.

The Paperwork Reduction Act (“PRA”)23 imposes certain requirements on Federal agencies (including the Commission) in connection with conducting or sponsoring any collection of information as defined by the PRA. These proposed amendments, if approved, would not require a new collection of information from any persons or entities that would be subject to the proposed amendments.

Section 15(a) of the CEA24 requires the Commission to consider the costs and benefits of its action before issuing an order under the CEA. CEA section 15(a) further specifies that costs and benefits shall be evaluated in light of five broad areas of market and public concern: (1) Protection of market participants and the public; (2) efficiency, competitiveness, and financial integrity of futures markets;(3) price discovery; (4) sound risk management practices; and (5) other public interest considerations. The Commission may in its discretion give greater weight to any one of the five enumerated areas and could in its discretion determine that, notwithstanding its costs, a particular order is necessary or appropriate to protect the public interest or to effectuate any of the provisions or to accomplish any of the purposes of the CEA.

This notice of proposed amendment proposes to amend the existing July 14 Order by extending the currently available temporary relief to no later than July 16, 2012, and by accounting for the repeal of part 35 of the Commission's regulations. As such, and because this proposal does not change the nature or limit the scope of relief granted in the July 14 Order, the costs and benefits set forth in the July 14 Order may be incorporated by reference in this proposal.25 Nevertheless, the Commission seeks comment on whether these proposed amendments would impose any costs or confer any benefits beyond the July 14 Order.

The Commission proposes the following amendments to the July 14 Order:

The Commission, to provide for the orderly implementation of the requirements of Title VII of the Dodd-Frank Act, pursuant to sections 4(c) and 4c(b) of the CEA and section 712(f) of the Dodd-Frank Act, hereby issues this Order consistent with the determinations set forth above, which are incorporated in this Final Order, as amended, by reference, and:

(1) Exempts, subject to the conditions set forth in paragraph (3), all agreements, contracts, and transactions, and any person or entity offering, entering into, or rendering advice or rendering other services with respect to, any such agreement, contract, or transaction, from the provisions of the CEA, as added or amended by the Dodd-Frank Act, that reference one or more of the terms regarding entities or instruments subject to further definition under sections 712(d) and 721(c) of the Dodd-Frank Act, which provisions are listed in Category 2 of the Appendix to this Order;provided, however,that the foregoing exemption:

a. Applies only with respect to those requirements or portions of such provisions that specifically relate to such referenced terms; and

b. With respect to any such provision of the CEA, shall expire upon the earlier of: (i) The effective date of the applicable final rule further defining the relevant term referenced in the provision; or (ii) July 16, 2012.

(2) Exempts, subject to the conditions set forth in paragraph (3), all agreements, contracts, and transactions, and any person or entity offering, entering into, or rendering advice or rendering other services with respect to, any such agreement, contract, or transaction, from the provisions of the CEA, if the agreement, contract, or transaction complies with part 35 of the Commission's regulations as in effect as of December 31, 2011, including anyagreement, contract, or transaction in an exempt or excluded (but not agricultural) commodity that complies with such provisions then in effect notwithstanding that:

a. The agreement, contract, or transaction may be executed on a multilateral transaction execution facility;

b. The agreement, contract, or transaction may be cleared;

c. Persons offering or entering into the agreement, contract or transaction may not be eligible swap participants, provided that all parties are eligible contract participants as defined in the CEA prior to the date of enactment of the Dodd-Frank Act;

d. The agreement, contract, or transaction may be part of a fungible class of agreements that are standardized as to their material economic terms; and/or

e. No more than one of the parties to the agreement, contract, or transaction is entering into the agreement, contract, or transaction in conjunction with its line of business, but is neither an eligible contract participant nor an eligible swap participant, and the agreement, contract, or transaction was not and is not marketed to the public;

Provided, however,that: (i) Such agreements, contracts, and transactions (and persons offering, entering into, or rendering advice or rendering other services with respect to, any such agreement, contract, or transaction) fall within the scope of any of the existing CEA sections 2(d), 2(e), 2(g), 2(h), and 5d provisions or the line of business provision as in effect prior to July 16, 2011; and (ii) the foregoing exemption shall expire upon the earlier of: (I) July 16, 2012; or (II) such other compliance date as may be determined by the Commission.

(3) Provides that the foregoing exemptions in paragraphs (1) and (2) above shall not:

a. Limit in any way the Commission's authority with respect to any person, entity, or transaction pursuant to CEA sections 2(a)(1)(B), 4b, 4o, 6(c), 6(d), 6c, 8(a), 9(a)(2), or 13, or the regulations of the Commission promulgated pursuant to such authorities, including regulations pursuant to CEA section 4c(b) proscribing fraud;

b. Apply to any provision of the Dodd-Frank Act or the CEA that became effective prior to July 16, 2011;

c. Affect any effective or compliance date set forth in any rulemaking issued by the Commission to implement provisions of the Dodd-Frank Act;

d. Limit in any way the Commission's authority under section 712(f) of the Dodd-Frank Act to issue rules, orders, or exemptions prior to the effective date of any provision of the Dodd-Frank Act and the CEA, in order to prepare for the effective date of such provision, provided that such rule, order, or exemption shall not become effective prior to the effective date of the provision; and

e. Affect the applicability of any provision of the CEA to futures contracts or options on futures contracts, or to cash markets.

In its discretion, the Commission may condition, suspend, terminate, or otherwise modify this Order, as appropriate, on its own motion. This Final Order, as amended, shall be effective immediately.

The following appendices will not appear in the Code of Federal Regulations.

Executive Order 13579 of July 11, 2011, calls on each independent regulatory agency to develop and release to the public, within 120 days of the date of the Executive Order, a plan under which the agency will periodically review its significant regulations to determine whether any such regulations should be modified, streamlined, expanded, or repealed so as to make the agency's regulatory program more effective or less burdensome in achieving regulatory objectives. The following is the Commission's Preliminary Plan for Retrospective Analysis of Existing Rules. The Commission welcomes comments from the public concerning this plan.

Instructions:All submissions received must include the agency name and the docket number (MISC-038) for this proceeding. All comments received will be posted without change tohttp://www.usitc.gov,including any personal information provided. For paper copies, a signed original and 14 copies of each set of comments, along with a cover letter stating the nature of the commenter's interest in the proposed rulemaking, should be submitted to James Holbein, Secretary, U.S. International Trade Commission, 500 E Street, SW., Room 112, Washington, DC 20436. Comments, along with a cover letter, may be submitted electronically to the extent provided by Sec. 201.8 of the Commission's rules. This rule may refer commenters to the Handbook for Electronic Filing Procedures (seehttp://www.usitc.gov/secretary/edis.htm). For those submitting comments by mail, it is advisable to mail comments in advance of the due date since Commission mail will be delayed due to necessary security screening.

Docket:For access to the docket to read comments received, go tohttp://www.usitc.govor U.S. International Trade Commission, 500 E Street, SW., Room 112, Washington, DC 20436.

Executive Orders 13579 and 13563 recognize the importance of maintaining a consistent culture of retrospective review and analysis throughout the Federal government. Executive Order 13579 calls on each independent regulatory agency to develop and release to the public a plan, consistent with law and reflecting the agency's resources and regulatory priorities and processes, under which the agency will periodically review its significant regulations to determine whether any such regulations should be modified, streamlined, expanded, or repealed so as to make the agency's regulatory program more effective or less burdensome in achieving the regulatory objectives.

Pursuant to Executive Order 13579, the U.S. International Trade Commission developed this preliminary plan for retrospective analysis of its regulations. The plan is designed to create a defined method and schedule for identifying and reconsidering certain significant rules that are obsolete, unnecessary, unjustified, excessively burdensome, or counterproductive. Its review processes are intended to facilitate the identification of rules that warrant repeal or modification, or the strengthening, complementing, or modernizing of rules where necessary or appropriate.

The Commission is an independent, quasi-judicial Federal agency with broad investigative responsibilities on matters of trade. It investigates the effects of dumped and subsidized imports on domestic industries, conducts global safeguard investigations, and adjudicates cases involving imports that allegedly infringe intellectual property rights. The Commission also serves as a Federal resource where trade data and other trade policy-related information are gathered and analyzed. The information and analysis are provided to the President, the Office of the United States Trade Representative (USTR), and Congress to facilitate the development of sound and informed U.S. trade policy. The Commission makes most of its information and analysis available to the public to promote understanding of international trade issues. The Commission also maintains theHarmonized Tariff Schedule of the United States (HTS).

Thus, the Commission is not primarily a regulatory agency, and its regulations generally serve to govern the process of its statutory investigative responsibilities. In carrying out its mission, the Commission issues rules of practice and procedure relating to the conduct of its investigations. The Commission's rules are codified in Title 19 of the Code of Federal Regulations.

• Part 201 of the Commission's rules are rules of general application relating to the functions and activities of the Commission.

• Part 202 sets out rules pertaining to investigations of costs of production under section 336 of the Tariff Act of 1930, as amended (19 U.S.C. 1336).

• Part 204 contains rules pertaining to investigations of effects of imports on agricultural programs under section 22 of the Agricultural Adjustment Act, as amended (7 U.S.C. 624).

• Part 205 covers rules pertaining to investigations to determine the probable economic effect on the economy of the United States of proposed modifications of duties or any other barrier to (or other distortion of) international trade or of taking retaliatory actions to obtain the elimination of unjustifiable or unreasonable foreign acts or policies which restrict U.S. commerce.

• Part 206 pertains to investigations relating to global and bilateral safeguard actions, market disruption, trade diversion, and review of relief actions.

• Part 207 sets out rules for the conduct of antidumping and countervailing duty investigations conducted under title VII of the Tariff Act of 1930, as amended (19 U.S.C. 1671et seq.).

• Part 208 contains rules pertaining to investigations with respect to the commercial availability of textile fabric and yarn in Sub-Saharan African countries.

• Part 210 sets out rules for the conduct of investigations of unfair practices in import trade under section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 337).

• Part 212 establishes rules for the implementation of the Equal Access to Justice Act (5 U.S.C. 504).

In the course of its investigations, the Commission also generally issues questionnaires seeking business and financial information from domestic and foreign firms. These questionnaires are frequently revised and adapted, with the input of affected parties wherever possible.

The Commission also maintains several documents that provide guidance to parties involved in its investigations, including its “Antidumping and Countervailing Duty Handbook,” “An Introduction to Administrative Protective Order Practice in Import Injury Investigations,” and the “Handbook on Electronic Filing Procedures.” The documents are maintained in electronic form on the Commission's Web site and are reviewed and updated periodically.

This Plan covers existing regulations, existing information collections, and significant guidance documents.

Fostering a Culture of Retrospective Analysis.The Commission intends to strengthen its culture of retrospective analysis by informing all of its employees of the Plan and periodically seeking input from them.

Prioritization.The Commission has identified selection criteria for the rules it will review retrospectively. It will endeavor to review rules that:

• Have been affected by subsequent legal developments;

• Overlap, duplicate, or conflict with other Federal rules;

• Are the subject of public comments, from individuals and entities that appear before the Commission, and from Congressional and other Executive Branch sources;

• Require outdated reporting practices; or

• Have been in place for a long time, so that updating may be appropriate.

Structure and Staffing.The following Commission official will be responsible for overseeing the retrospective review of existing rules:James R. Holbein, Secretary,e-mail:secretary@usitc.gov.

Process for Retrospective Review.Every two years, the Commission's General Counsel will send a memorandum to the Commission's Secretary, office directors, and administrative law judges asking them for input on rules suitable for modification or elimination. The Commission will also seek input from the public at that time. Based on responses to this memorandum and comments from the public, and in consultation with Commissioners, staff of the General Counsel's office will make recommendations to the Commission regarding the possible modification or elimination of existing regulations. Once an appropriate rule change has been identified, the Commission will publish a notice of proposed rulemaking and solicit public comment on the proposed change.

On October 18, 2011, the Commission issued a notice to be published in theFederal Registerand posted on the homepage of its Web sitehttp://www.usitc.gov/,seeking public comment on the design of this Plan and the identification of specific rules to be included in the Plan.See http:// www.usitc.gov/.

Even before the issuance of Executive Order 13579, Commission staff periodically review existing regulations with a view to updating and improving them, and eliminating redundant or unnecessary regulations. For example, this year the Commission undertook to revise its rules to provide that most documents filed with the agency will be filed by electronic means.See76 FR 61937 (Oct. 6, 2011). In addition, the Commission staff constantly adapts the questionnaires that it issues in its investigations to reflect the specific circumstances of each investigation. Wherever possible, the staff seek preliminary input from firms that will be asked to complete these questionnaires. In light of these efforts, the Commission is well-positioned to implement a more systematic plan for retrospective review of its regulations.

The Commission has preliminarily identified the following aspects of its existing rules for review over the next two years:

1. General review of existing regulations in 19 CFR parts 201, 207, and 210. The Commission will seek to determine whether any such regulations shall be modified, streamlined, expanded or repealed so as to make the agency's regulations more effective or less burdensome.

2. Employee Responsibilities and Conduct, 19 CFR part 200. The Commission intends to review its regulations addressing employee responsibilities and conduct, to assess whether these regulations can be modified or repealed, in light of the issuance of similar regulations by the Office of Government Ethics.

3. National Security Information, 19 CFR part 201, subpart F. The Commission intends to review its regulations addressing national security information, to assess whether theseregulations should be modified, in light of Executive Order 13526 (Dec. 29, 2009).

4. Investigations With Respect to Commercial Availability of Textile Fabric and Yarn in Sub-Saharan African Countries, 19 CFR part 208. The Commission intends to review its regulations addressing investigations with respect to the commercial availability of textile fabric and yarn in Sub-Saharan African countries, to assess whether these regulations can be repealed, in light of the repeal of section 112(c)(2) of the African Growth and Opportunity Act (AGOA), which required the Commission to make determinations with respect to the commercial availability and use of regional textile fabric or yarn in lesser developed beneficiary sub-Saharan African countries in the production of apparel articles receiving U.S. preferential treatment under AGOA (see section 3(a)(2)(B) of Public Law 110-436, October 16, 2008, 122 Stat. 4980).

The Commission will publish this plan in theFederal Registerand on the agency's Web site, athttp:// www.usitc.gov.The Web site includes a page on the Commission's Rules of Practice and Procedure, athttp://www.usitc.gov/secretary/fed_reg_notices/rules/.This Rules page will include a link to the plan. Members of the public will be able to post comments about the plan via a link on the page. Commenters may also choose to file comments in paper form to the Secretary to the Commission, room 112, 500 E Street, SW., Washington, DC 20436.

We last published final rules making comprehensive revisions to the multiple body systems listings on August 30, 2005.1 These listings are scheduled to expire on October 31, 2013. However, we decided to propose these revisions now to reflect our program experience and to address adjudicator questions we have received since 2005.2

Most of the proposed rules are substantively the same as the current ones. We propose to clarify and reorganize them. We also propose to revise some rules to simplify them and to revise the listings to include different methods for establishing the existence of non-mosaic Down syndrome and other congenital disorders that affect multiple body systems under the listings. We do not expect any decisional differences due the revisions in this body sytem.

We propose to:

• Revise the name of the body system from “Impairments That Affect Multiple Body Systems” to “Congenital Disorders That Affect Multiple Body Systems”;

• Reorganize and revise the introductory text for the adult listings (section 10.00) and the childhood listings (section 110.00);

• Revise adult listing 10.06 and childhood listing 110.06 for non-mosaic Down syndrome; and

• Make editorial changes in childhood listing 110.08 for catastrophic congenital disorders.

We are proposing to change the name of this body system from “Impairments That Affect Multiple Body Systems” to “Congenital Disorders That AffectMultiple Body Systems” to clarify that we consider only certain congenital disorders in this body system. We evaluate other disorders that affect more than one body system under the listings that address their specific effects. We evaluate congenital disorders with single effects under other body systems.

The following chart provides a comparison of the current introductory text for adults and the proposed introductory text:

As the chart illustrates, we are proposing to make minor revisions to terms in the introductory text (for example, changing the word “impairment” to “disorder”) and to reorganize the information in the text. We are also proposing to make other changes that we discuss below.

In proposed section 10.00A, we explain that, although there are two forms of Down syndrome, we evaluate only the non-mosaic form under the listing. Non-mosaic Down syndrome occurs when a person has three copies of chromosome 21 in all of their cells or an extra copy of chromosome 21 attached to a different chromosome in all of their cells. Mosaic Down syndrome occurs when some cells have an extra copy of chromosome 21 and other cells are normal, with only two copies of the chromosome. The mosaic form is much less common than the non-mosaic form, and its effects are less likely to be of listing-level severity. In section 10.00D of the proposed rules, we clarify our guidance in current 10.00A4b that we will evaluate impairment(s) caused by mosaic Down syndrome in the appropriate body system, or if the disorder does not meet a listing, consider whether the impairment(s) medically equals the listings.

In proposed section 10.00B, we describe non-mosaic Down syndrome and its effects. We propose to replace the term “mental retardation” with the term “intellectual disability” to conform with recent legislation that revised certain Federal statutes that referred to “mental retardation” to use the term “intellectual disability” instead.3

In proposed section 10.00C1, we explain that we need a copy of a laboratory report of karyotype analysis to establish that a claimant's non-mosaic Down syndrome meets proposed listing 10.06A. Karyotype analysis clarifies whether the Down syndrome is the non-mosaic or mosaic form. The report must either be signed by a physician or, if unsigned, accompanied by a statement from a physician indicating that the person has Down syndrome.

In proposed section 10.00C1, we explain that:

• We will not purchase karyotype analysis, consistent with our longstanding policy that we will not purchase genetic testing, and

• We will not accept the fluorescence in situ hybridization (FISH) test—a screening test—and that it is not equivalent to the requirement for karyotype analysis.

Our rules require evidence from an “acceptable medical source” to establish the existence of a medically determinable impairment, and a physician is the only acceptable source for establishing that a person has Down syndrome.4 The physician does not need to provide any additional information to establish the existence of the disorder, as we explain in proposed section 10.00C1c.

Proposed section 10.00C2 corresponds in part to current section 10.00B3 and explains the evidence we need to establish that a claimant's non-mosaic Down syndrome meets the criteria of proposed listing 10.06B or 10.06C.

• In proposed section 10.00C2a, we explain how we would establish that non-mosaic Down syndrome meets proposed listing 10.06B. This proposed listing covers claimants who have had definitive laboratory testing, but who have not provided us with a copy of their laboratory reports. Our current rules require detailed evidence describing a person's physical appearance and other evidence that is “persuasive” that the claimant has non-mosaic Down syndrome. Since the great majority of people with Down syndrome have the non-mosaic form, we will no longer require the physician to describe the person's physical features. Instead, to meet proposed listing 10.06B, a physician must report that (1) The claimant has Down syndrome that is consistent with prior karyotype analysis and (2) the claimant has the distinctive physical features of the disorder.

• In proposed section 10.00C2b, we explain a new method for establishing disability based on non-mosaic Down syndrome under proposed listing 10.06C. The proposed listing, which is also based on our adjudicativeexperience, allows for a finding of disability when the claimant has not had definitive laboratory testing or we have no information about karyotype analysis results even if the person did have a test. Because we do not have definitive test results, we would require a more detailed description of the clinical features of the disorder and evidence that the claimant's functioning is consistent with a diagnosis of non-mosaic Down syndrome. The proposed provision would allow us to find that a claimant does not have non-mosaic Down syndrome if we have other evidence that is inconsistent with a diagnosis of the disorder. This provision is similar to current 10.00B3 that provides “the report must be consistent with other evidence in your case record.” While we do not need to obtain additional evidence, we must consider any other evidence in the case record to ensure that it is consistent with the diagnosis.

We propose to revise current listing 10.06,Non-mosaic Down syndrome,to make it more specific. A claimant can demonstrate that he or she meets proposed listing 10.06 in one of three ways.

• Under proposed listing 10.06A, a claimant can demonstrate that he or she meets the listing based solely on a laboratory report of karyotype analysis that a physician signed or on a laboratory report of karyotype analysis that is not signed by a physician but is accompanied by a physician's statement that the person has Down syndrome;

• Under proposed listing 10.06B, a claimant can demonstrate that he or she meets the listing based on a physician's statement that the claimant has Down syndrome that is consistent with prior karyotype analysis demonstrating chromosome 21 trisomy or chromosome 21 translocation and that the person has the distinctive physical features of Down syndrome; and

• Under proposed listing 10.06C, a person can meet the listing when we do not have a copy of, or information about, laboratory testing, but we have a physician's report that the person has Down syndrome with distinctive physical features and evidence that the person functions at a level consistent with non-mosaic Down syndrome.

The following chart provides a comparison of the current introductory text for children and the proposed introductory text:

We propose to reorganize and revise the introductory text as in the adult rules. Since we are proposing the same changes in the childhood rules that correspond to the adult rules, we do not summarize them here. Proposed section 110.00C is identical to proposed section 10.00C and includes a reference to a child's “work history.” We included this phrase in the child rules because the listings in part B are for people up to the age of 18, and some older adolescents have worked.

As under the current listings, the proposed childhood listings include a listing that we do not include in the adult rules—proposed listing 110.08 for “catastrophic” congenital disorders. We propose to reorganize and clarify the introductory text that explains listing 110.08 as follows:

• In proposed section 110.00D, we briefly explain the kinds of disorders we would evaluate under proposed listing 110.08 and provide some examples of these disorders. In the current rules, we include these examples in listing 110.08. We propose to move them to the introductory text so there is no implication that the examples in current listings 110.08A and B are the sole disorders covered by these listings.

• Proposed section 110.00E corresponds to current section 110.00B3. We propose changes in this section to make it similar to proposed sections 10.00C and 110.00C for non-mosaic Down syndrome. For example, the current rule requires both a clinical description of the diagnostic physical features of the disorder and the report of the definitive laboratory study establishing the diagnosis. Since the second requirement is for adefinitivelaboratory study, we do not believe that we also need a description of the diagnostic clinical features in such cases. We believe that we can simplify the rule and make some favorable determinations more quickly.

We propose to revise current listing 110.06,Non-mosaic Down syndrome,in the same way as proposed adult listing 10.06. We would revise listings 110.08A and B by moving the examples from these current listings to proposed section 110.00D in the introductory text. We would also replace the phrase “profoundly impaired” in listing 110.08A with the phrase “very serious interference” the same phrase we use in proposed listing 110.08B. Both listings should have the same severity criterion. The criterion we propose is based on current listing 110.08B, which uses the phrase “interferes very seriously” and is a term we use in other rules. We would also clarify in proposed section 110.00D that “very seriously” has the same meaning as our definition of the term “extreme” in our rules for determining functional equivalence for children.5

The Act authorizes us to make rules and regulations and to establish necessary and appropriate procedures to implement them. Sections 205(a), 702(a)(5), and 1631(d)(1).

If we publish these proposed rules as final rules, they will remain in effect for 5 years after the date they become effective, unless we extend them, or revise and issue them again.

Executive Order 12866, as supplemented by Executive Order 13563, requires each agency to write all rules in plain language. In addition to your substantive comments on these proposed rules, we invite your comments on how to make them easier to understand.

For example:

• Would more, but shorter, sections be better?

• Are the requirements in the rules clearly stated?

• Have we organized the material to suit your needs?

• Could we improve clarity by adding tables, lists, or diagrams?

• What else could we do to make the rules easier to understand?

• Do the rules contain technical language or jargon that is not clear?

• Would a different format make the rules easier to understand,e.g.,grouping and order of sections, use of headings, paragraphing?

We will not use these rules until we evaluate public comments and publish final rules in theFederal Register. All final rules we issue include an effective date. We will continue to use our current rules until that date. If we publish final rules, we will include a summary of those relevant comments we received along with responses and an explanation of how we will apply the new rules.

We have consulted with the Office of Management and Budget (OMB) and determined that this NPRM meets the criteria for a significant regulatory action under Executive Order 12866, as supplemented by Executive Order 13563. Therefore, OMB reviewed it.

We certify that this NPRM will not have a significant economic impact on a substantial number of small entities because they affect individuals only. Therefore, the Regulatory Flexibility Act, as amended, does not require us to prepare a regulatory flexibility analysis.

These rules do not create any new or affect any existing collections, and therefore, do not require Office of Management and Budget approval under the Paperwork Reduction Act.

For the reasons set out in the preamble, we propose to amend 20 CFR part 404 subpart P as set forth below:

A notice of proposed rulemaking by cross-reference to temporary regulations and a notice of public hearing that appeared in theFederal Registeron Friday, July 22, 2011 (76 FR 43957), announced that a public hearing was scheduled for October 27, 2011, beginning at 10 a.m. in the auditorium of the Internal Revenue Building, 1111 Constitution Avenue, NW., Washington, DC. The subject of the public hearing is under section 1001 of the Internal Revenue Code.

The public comment period for a notice of proposed rulemaking by cross-reference to temporary regulations expired on October 20, 2011. Outlines of topics to be discussed at the hearing were due on October 20, 2011. A notice of propose rulemaking by cross-reference to temporary regulations and notice of public hearing instructed those interested in testifying at the public hearing to submit an outline of the topics to be addressed. As of Friday, October 21, 2011, no one has requested to speak. Therefore, the public hearing scheduled for October 27, 2011 is cancelled.

Subchapter K is intended to permit taxpayers to conduct joint business activities through a flexible economic arrangement without incurring an entity-level tax. To achieve this goal of a flexible economic arrangement, partners are generally permitted to decide among themselves how a partnership's items will be allocated. Section 704(a) of the Internal Revenue Code provides that a partner's distributive share of income, gain, loss, deduction, or credit shall, except as otherwise provided, be determined by the partnership agreement.

Section 704(b) places a significant limitation on the general flexibility of section 704(a). Specifically, section 704(b) provides that a partner's distributive share of income, gain, loss, deduction, or credit (or item thereof) shall be determined in accordance with the partner's interest in the partnership (determined by taking into account all facts and circumstances) if the allocation to a partner under the partnership agreement of income, gain, loss, deduction, or credit (or item thereof) does not have substantial economic effect. Thus, the statute provides that partnership allocations either must have substantial economic effect or must be in accordance with the partners' interests in the partnership.

Section 1.704-1(b)(2)(i) provides that the determination of whether an allocation of income, gain, loss, or deduction to a partner has substantial economic effect involves a two-part analysis that is made as of the end of the partnership taxable year to which the allocation relates. First, the allocation must have economic effect within the meaning of § 1.704-1(b)(2)(ii). Second, the economic effect of the allocation must be substantial within the meaning of § 1.704-1(b)(2)(iii).

For an allocation to have economic effect, it must be consistent with the underlying economic arrangement of the partners. This means that, in the event that there is an economic benefit or burden that corresponds to the allocation, the partner to whom the allocation is made must receive such economic benefit or bear such economic burden. See § 1.704-1(b)(2)(ii). Generally, an allocation of income, gain, loss, or deduction (or item thereof) to a partner will have economic effect if, and only if, throughout the full term of the partnership, the partnership agreement provides: (1) for the determination and maintenance of the partners' capital accounts in accordance with § 1.704-1(b)(2)(iv); (2) for liquidating distributions to the partners to be made in accordance with the positive capital account balances of the partners; and (3) for each partner to be unconditionally obligated to restore the deficit balance in the partner's capital account following the liquidation of the partner's partnership interest. In lieu of satisfying the third criterion, the partnership may satisfy the qualified income offset rules set forth in § 1.704-1(b)(2)(ii)(d).

Section 1.704-1(b)(2)(iii)(a) provides as a general rule that the economic effect of an allocation (or allocations) is substantial if there is a reasonable possibility that the allocation (or allocations) will affect substantially the dollar amounts to be received by the partners from the partnership, independent of tax consequences. This section further provides that, even if the allocation affects substantially the dollar amounts, the economic effect of the allocation (or allocations) is not substantial if, at the time the allocation (or allocations) becomes part of the partnership agreement: (1) The after-tax economic consequences of at least one partner may, in present value terms, be enhanced compared to such consequences if the allocation (or allocations) were not contained in the partnership agreement, and (2) there is a strong likelihood that the after-tax economic consequences of no partner will, in present value terms, be substantially diminished compared to such consequences if the allocation (or allocations) were not contained in the partnership agreement.

The de minimis partner rule in § 1.704-1(b)(2)(iii)(e) (TD 9398, 73 FR 28699-01) was promulgated on May 19, 2008, as part of final regulations with respect to partners that are look-through entities. The de minimis partner rule provides that for purposes of applying the substantiality rules, the tax attributes of de minimis partners need not be taken into account and defines a de minimis partner as any partner, including a look-through entity that owns, directly or indirectly, less than 10 percent of the capital and profits of a partnership, and who is allocated less than 10 percent of each partnership item of income, gain, loss, deduction, and credit. The intent of the de minimis partner rule was to allow partnerships to avoid the complexity of testing the substantiality of insignificant allocations to partners owning very small interests in the partnership. It was not intended to allow partnerships to entirely avoid the application of the substantiality regulations if the partnership is owned by partners each of whom owns less than 10 percent of the capital or profits, and who are allocated less than 10 percent of each partnership item of income, gain, loss, deduction, and credit. The IRS and the Treasury Department have determined that the de minimis partner rule should be removed in order to prevent unintended tax consequences. The IRS and the Treasury Department request comments on how to reduce the burden of complying with the substantial economic effect rules, with respect to look-through partners, without diminishing the safeguards the rules provide.

These regulations are proposed to be effective the date final regulations are published in theFederal Register.

It has been determined that this notice of proposed rulemaking is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It has also been determined that § 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations, and because the regulation does not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to § 7805(f) of the Internal Revenue Code, this notice of proposed rulemaking has been submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.

Before the proposed regulations are adopted as final regulations, consideration will be given to any written (a signed original and eight (8) copies) or electronic comments that are submitted timely to the IRS. The IRS and the Treasury Department request comments on the clarity of the proposed rules and how they can be made easier to understand. All comments will be available for public inspection and copying. A public hearing may be scheduled if requested in writing by any person that timely submits written or electronic comments. If a public hearing is scheduled, notice of the date, time, and place for the public hearing will be published in theFederal Register.

The principal author of these regulations is Michala Irons, Office of the Associate Chief Counsel (Passthroughs and Special Industries). However, other personnel from the IRS and the Treasury Department participated in its development.

Accordingly, 26 CFR Part 1 is proposed to be amended as follows:

Throughout this document, “we,” “us,” or “our” refer to EPA. This section provides additional information by addressing the following questions:

EPA is proposing to conditionally approve a SIP revision submitted by the State of Missouri to EPA on January 17, 2007, and June 1, 2011. The purpose of these revisions is to control the emissions of VOCs, consistent with Control Techniques Guidelines (CTGs) issued by EPA. EPA is also proposing to approve several VOC rules approved by Missouri and submitted to EPA in a letter dated August 16, 2011 for approval into its SIP. The purpose of these rules is to satisfy the RACT requirements of the CAA for the Missouri portion of the St. Louis metropolitan 8-hour ozone nonattainment area. As explained further below, at this time, EPA is unable to fully approve the State's RACT SIP revision because the current submittal does not yet meet all RACT requirements. Specifically, at this time, Missouri has not submitted a RACT rule for inclusion into the Missouri SIP to address one CTG: Solvent Cleanup Operations. However, based on Missouri's commitment to do so by December 31, 2012,1 pursuant to section 110(k)(4) of the CAA, EPA is proposing to conditionally approve Missouri's proposed SIP revision at this time. Under that section, EPA may approve a SIP revision based on a commitment of the State to adopt specific enforceable measures by a date certain, but not later than 1 year after the date of approval of the SIP. This conditional approval would be treated as a disapproval if Missouri fails to comply with this commitment.

We are proposing to conditionally approve these revisions because they represent RACT under the 8-hour ozone NAAQS. These requirements are based on (1) Missouri's RACT analysis and certification that previously adopted RACT controls in Missouri's SIP that were previously approved by EPA under the 1-hour ozone NAAQS continue to represent RACT; (2) the adoption by Missouri of new or more stringent regulations that represent RACT control levels for CTGs issued by EPA after 2006; and (3) a negative declaration that certain categories of sources that do not exist in Missouri.

CAA section 172(c)(1) requires that SIPs for nonattainment areas “provide for the implementation of all reasonably available control measures as expeditiously as practicable (including such reductions in emissions from existing sources in the area as may be obtained through the adoption, at a minimum, of reasonably available control technology) and shall provide for attainment of the national primary ambient air quality standards.” The St. Louis metropolitan area—which includes the counties of Franklin, Jefferson, St. Charles and St. Louis and the city of St. Louis in Missouri—is currently designated as a moderate nonattainment area under the 8-hour ozone standard. For areas in moderate nonattainment with the ozone NAAQS, section 182(b)(2) requires states to submit SIP revisions to EPA that require sources of VOCs that are subject to a CTG issued by EPA, and all other major stationary sources,2 in the nonattainment area to implement RACT.

EPA has defined RACT as the lowest emissions limitation that a particular source is capable of meeting by the application of control technology that is reasonably available, considering technological and economic feasibility. 44 FR 53761 (Sept. 17, 1979). EPA provides states with guidance concerning what types of controls could constitute RACT for a given source category through the issuance of a CTG.See71 FR 58745, 58747 (Oct. 5, 2006).

Section 182(f) of the CAA requires that all SIP provisions required for major stationary sources of VOCs shall also apply to major stationary sources of Nitrogen Oxides (NOX). With respect to NOX, section 182(f) authorizes EPA to exempt the sources in an area from the NOXRACT requirements through a “waiver,” if EPA finds that additional reductions of NOXwould not contribute to attainment of the NAAQS for ozone in that area. On June 9, 2011, EPA published a final determination that the St. Louis Metropolitan area has attained the 8-hour ozone standard based on three years of complete, quality assured ambient air quality monitoring data.See76 FR 33647. On July 21, 2011, EPA approved Missouri's request for such a“NOXwaiver,” effective September 19, 2011. 76 FR 43598. Based on this rule, on September 9, 2011, Missouri withdrew the portion of its 2007 submission relating to NOXRACT. Therefore, today's action only addresses Missouri's RACT obligations for VOCs.

On January 17, 2007, Missouri Department of Natural Resources (MDNR) submitted to EPA proposed SIP revisions demonstrating compliance with the RACT requirements set forth by the CAA under the 8-hour ozone NAAQS. This submittal addressed all source categories for which a CTG had been issued by EPA at the time, and addressed the controls in place for all other major stationary sources in the nonattainment area. Since the initial submittal, EPA has issued a number of new CTGs in 2006, 2007, and 2008.3

On October 5, 2006, EPA issued four CTGs which states were required to address by October 5, 2007 (71 FR 58745): Lithographic Printing and Letterpress Printing Materials;Flexible Packaging Printing Materials; Flat Wood Paneling Coatings; and Industrial Cleaning Solvents. Also, on October 9, 2007, EPA issued three CTGs which states were required to address by October 9, 2008 (72 FR 57215): Paper, Film, and Foil Coatings; Metal Furniture Coatings; and Large Appliance Coatings. Furthermore, on October 7, 2008, EPA issued four CTGs which states were required to address by October 7, 2009 (73 FR 58481): Miscellaneous Metal and Plastic Parts Coatings; Auto and Light-Duty Truck Assembly Coatings; Fiberglass Boat Manufacturing Materials; and Miscellaneous Industrial Adhesives. As a result of these new CTGs, Missouri submitted an amendment to its prior RACT demonstration on June 1, 2011. In addition, on August 16, 2011, Missouri submitted proposed revisions to its SIP to EPA. These revisions will ensure that the requirements of the new CTGs will be incorporated into the VOC RACT rules for the St. Louis moderate ozone nonattainment area.

Missouri's SIP submittals dated January 17, 2007, and June 1, 2011, include an analysis of its VOC rules for the Missouri portion of the St. Louis metropolitan 8-hour ozone NAAQS nonattainment area. Table 1 summarizes the CTGs issued by EPA both prior to 2006 and after 2006, and the corresponding Missouri VOC rules which address these CTGs.

With respect4 to Missouri's VOC RACT rules that address CTGs issued by EPA prior to 2006, EPA has previously approved these rules into the Missouri SIP as RACT for the 1-hour ozone standard. In its June 1, 2011, submittal to EPA, MDNR reviewed all of the St. Louis area VOC rules and certified that they still satisfy RACT requirements for the 8-hour ozone standard by the application of control technology that is reasonably available considering technological and economic feasibility. EPA is proposing to approve this certification in today's rulemaking.

With respect to addressing CTGs issued by EPA after 2006, Missouri submitted three revised rules to EPA for inclusion into the Missouri SIP. EPA has reviewed these new VOC rule revisions with respect to the RACT requirements and the recommendations in the new CTGs and proposes to find that these revisions meet RACT. A brief description of the VOC rules that are proposed for approval in this action is provided below.

This rule amendment exempts facilities that are regulated under other rules that limit emissions of VOCs and incorporates changes in RACT for surface coating operations in the St. Louis ozone nonattainment area to be consistent with the current federal RACT CTGs. Compliance with these rules is required by March 1, 2012.

These revised requirements are based on and consistent with the following CTG documents issued by EPA since 2006:

This rule amendment adds specific limits of VOCs for flexible package printing operations in the St. Louis ozone nonattainment area. The rule amendment will add stricter emission limits and lower applicability limits, as well as add flexible package printing presses as a source subcategory. These changes are intended to make the limits consistent with the current federal RACT CTGs. Compliance with these rules is required by March 1, 2012.

These revised requirements are based on and consistent with the following CTG document issued by EPA since 2006:

This rule amendment adds specific emission limits of VOCs for both offset lithographic and letterpress printing operations in the St. Louis ozone nonattainment area. The rule also lowers the applicability limit and adds letterpress printing as a new category. These changes are intended to make the limits consistent with the current Federal RACT CTGs. Compliance with these rules is required by March 1, 2012.

These revised requirements are based on and consistent with the following CTG document issued by EPA since 2006:

At this time, Missouri has not submitted this proposed rule revision to EPA for approval into the Missouri SIP. However, in a letter dated September 30, 2011, Missouri has committed to submit this rule to EPA by December 31, 2012 for inclusion into the SIP. The intent of this rule is to reduce the VOC emissions from industrial cleaning operations that use organic solvents. The rule amendment will lower the allowable emissions threshold for VOCs released per day from the use, storage and disposal of industrial cleaningsolvents. It will also add requirements for facilities that have VOC emission levels that exceed the threshold, including placing limitations on the VOC content of the cleaning materials.

Major sources not subject to a specific CTG, but for which RACT is required, are referred to as non-CTG sources. Table 2 summarizes the Missouri's VOC rules that address non-CTG sources. All of these rules have previously been approved by EPA into the Missouri SIP.

In particular, Missouri promulgated 10 CSR 10-5.520 (Control of Volatile Organic Compound Emissions from Existing Major Sources). This generic rule applies to all major sources of VOC located in the St. Louis ozone nonattainment area that are not subject to individual RACT rules and have the potential to emit greater than 100 tons per year of VOCs. Sources subject to this rule must submit a detailed engineering RACT proposal to MDNR for each VOC emission unit at the facility. In its submittal to EPA, MDNR noted that in the St. Louis ozone nonattainment area, no sources have been identified that are subject to this generic RACT rule. Therefore, the State believes that the requirements of section 182(b)(2)(C) have been met.5

In addition, the June 1, 2011, submittal from MDNR also states that Missouri has made a negative declaration that there are no applicable sources of VOC located in the St. Louis portion of the ozone nonattainment area for the following CTG categories identified by EPA in CTG documents:

1. Fiberglass Boat Manufacturing Materials (EPA-453/R-08-004).

2. Shipbuilding and Ship Repair Operations (See61 FR 44050).

3. Petroleum Refinery Equipment (EPA-450/2-78-036).

4. Application of Agriculture Pesticides (EPA-453/R-92-011).

5. Pneumatic Rubber Tires (EPA-450/2-78-030).

6. Natural Gas/Gasoline Processing Plants (EPA-450/3-83-007).

7. Plywood Veneer Dryers (EPA-450/3-83-012).

The purpose of Missouri's RACT rules in the St. Louis area is to establish reasonable controls on the emissions of ozone precursors. As new RACT rules have been added and other RACT rules have been expanded with new source categories or stricter limits, Missouri has continuously reviewed and updated its VOC rules in order satisfy all RACT requirements. Based on EPA's review of Missouri's submittal, EPA is proposing to find that for the CTG and non-CTG source categories included in this rulemaking, Missouri has RACT-level controls.

In today's rulemaking, EPA is proposing several actions. First, with respect to Missouri's VOC RACT rules that EPA previously approved into Missouri's SIP under the 1-hour ozone standard, EPA is proposing to approve Missouri's certification that these RACT controls continue to represent RACT under the 8-hour ozone standard. Second, EPA is proposing to approve revisions to three of Missouri's VOC rules (10 CSR 10-5.330; 10 CSR 10-5.340; 10 CSR 10-5.442) into Missouri's SIP, as these rules satisfy RACT for the Missouri portion of the St. Louis nonattainment area. Third, pursuant to CAA section 110(k)(4), EPA is proposing to conditionally approve the Missouri SIP revisions that addresses the requirements of RACT under the 8-hour ozone NAAQS. Missouri would have up to twelve months from the date of EPA's final conditional approval of the SIP revisions in which to revise its rules to be consistent with the CAA. This conditional approval shall be treated as a disapproval if Missouri fails to comply with this commitment.

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

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

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

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

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

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

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

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

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

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

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

Frankenia johnstoniiwas listed August 7, 1984 (49 FR 31418), as an endangered species under the Endangered Species Act of 1973, as amended (16 U.S.C. 1531et seq.). At the timeF. johnstoniiwas listed, we determined that designation of critical habitat was not prudent because if localities were published in theFederal Register,the species might be additionally threatened by taking and vandalism. A recovery plan was completed forF. johnstoniiin 1988 (http://ecos.fws.gov/docs/recovery_plan/880524.pdf), but it did not quantify criteria for downlisting or delisting due to a lack of knowledge about the species (Service 1988, p. 14). Threats identified in the recovery plan were the small number of individuals, the restricted distribution, the low reproductive potential, and the impacts of heavy grazing and land management practices, such as road construction or maintenance and bulldozing of woody vegetation (Service 1988, p. 11).

Since the recovery plan was completed, our knowledge ofF. johnstoniihas greatly increased. Based on what we learned about the species' known range, the number of newly discovered populations, the life history requirements of this species, clarification of the degrees of threats, and the protection offered by several landowners who control those populations, we proposed delisting theF. johnstoniion May 22, 2003 (68 FR 27961), due to recovery. Please see the May 22, 2003 (68 FR 27961), proposed delisting rule (also posted on our Web sites) for a detailed analysis of factors affecting the species. Because of the amount of time that has lapsed since the 2003 delisting proposal, we are reopening the public comment period for that proposal, and inviting comment on new information presented in this announcement as well as on the draft post-delisting monitoring plan for Johnston's frankenia (Frankenia johnstonii).

In this document, we will only discuss new information pertinent to the proposed delisting ofFrankenia johnstonii.For a more detailed description ofF. johnstonii,its current status and its threats, please refer to the May 23, 2003, proposed rule to delist the species (68 FR 27961 and posted on our Web sites with this docket; seeADDRESSESabove) and the recovery plan (http://ecos.fws.gov/docs/recovery_plan/880524.pdf).

At the time of listingF. johnstonii,5 populations were known, 4 in Texas and 1 in Mexico, and the total number of individual plants was estimated to be approximately 1,500. Threats to the species at the time of listing were considered to be small number of plants, their restricted distribution, the impacts of grazing on them, and low reproductive potential (49 FR 31418).

The May 22, 2003 (68 FR 27961), proposal to removeFrankenia johnstoniifrom the List of Endangered and Threatened Plants was based on results of field work conducted between 1993 and 1999 that included extensive population surveys, landowneroutreach, and biological and ecological research. The culmination of these efforts showedF. johnstoniito be much more widespread and abundant than was known at the time of listing (Janssen 1999, pp. 5-160). Research results also helped to alleviate concerns about threats associated with the species' low reproductive potential and competition from nonnative, invasive grasses (Janssen 1999, pp. 161-166, 208-212). In addition, the Texas Parks and Wildlife Department had already negotiated signed, voluntary conservation agreements with private landowners that helped to ensure habitat integrity for a number of the populations into the future. Since 2003 several other landowners have signed agreements as well.

Frankenia johnstoniiis endemic to Webb, Zapata, and Starr Counties in southern Texas and an adjacent area in northeastern Mexico. The range ofF. johnstoniiin Texas is currently estimated at approximately 2,031 square miles (5,260 square kilometers), extending from northwestern Webb County on the north, to central Starr County at the species' most southern distribution point (Janssen 1999, p. 4; Priceet al.2006, pp. 2-3). The results of status surveys have dramatically increased the known numbers of individual plants, from approximately 1,500 at the time of listing in 1984 to greater than 4 million in 1999 (Janssen 1999, pp. 5-160). Based on earlier reviews of Janssen's 1999 data, we initially estimated the number of individuals around 9 million and stated this in the 2003 proposed rule (68 FR 27961). However, after more thorough review of Janssen's 1999 data, we estimate the number of individual plants to have been greater than 4 million at that time (Janssen 1999, pp. 5-160). In addition, 58 U.S. populations were reported in 1999 (Janssen 1999, p. 8). Additional populations have been discovered subsequently.

For a summary of factors affecting the species, please refer to the May 23, 2003, proposed rule to delist the species (68 FR 27961). We conclude that new data have clarified the significance of threats to the species, and several large populations are now covered under signed voluntary conservation agreements with Texas Parks and Wildlife Department or under conservation management agreements between the landowner and the Nature Conservancy of Texas. Taken together this information leads to the conclusion that the potential impacts due to destruction or modification of habitat are significantly reduced. After reviewing the status of the species, we determine that the species is not in danger of extinction throughout all or a significant portion of its range, nor is it likely to become in danger of extinction within the foreseeable future throughout all or a significant portion of its range.

During the comment period following the May 23, 2003, proposed rule to delist the species (68 FR 27961), we received comments from four independent biologists with expertise in the ecology ofFrankenia johnstonii.The comments from those peer reviewers will be considered and incorporated as appropriate into our final determination on the status of the species. In addition, we will also request peer review of the draft post-delisting monitoring plan.

The majority of relevant information that has become available since our 2003 proposal to delistFrankenia johnstoniihas resulted from additional surveys that documented new populations (Priceet al.2006, pp. 1-3; Janssen 2007, pers. comm.). From 2003 to 2006, Priceet al.(2006, pp. 1-3) surveyed for several rare south Texas plants, includingF. johnstonii.AdditionalF. johnstoniipopulations were located in Webb, Zapata, and Starr Counties, Texas, although measurements of these populations, including areal extent and numbers of plants, were not collected (Priceet al.2006, p. 10 in Attachment B and pp. 2-5 in Attachment C). Subsequently, G. Janssen conducted a 2007 survey on a ranch in southern Starr County, north of Escobares, where new populations ofF. johnstoniiwere documented (Janssen 2007, pers. comm.). Also, The Nature Conservancy (TNC) conducted surveys on a Webb County ranch (adjacent to the most northern known population) in 2007, where new populations ofF. johnstoniiwere also found (Janssen 2010, pp. 5-6). Adding these newly documented populations to those described in Janssen's 1999 report brings the total number of known populations in Texas to approximately 84, depending on whether some occurrences constitute separate populations or are instead scattered subpopulations of one or more metapopulations.

Beyond documenting new populations, climate change was not analyzed in the 2003 proposal to delist. Although climate change may be a concern for many sensitive species, we do not believe it will have much of an impact onFrankenia johnstoniieither now or into the foreseeable future. According to the Intergovernmental Panel on Climate Change (IPCC 2007, p. 5), “Warming of the climate system is unequivocal, as is now evident from observations of increases in global average air and ocean temperatures, widespread melting of snow and ice, and rising global average sea level.” The average Northern Hemisphere temperatures during the second half of the 20th century were very likely higher than during any other 50-year period in the last 500 years and likely the highest in at least the past 1,300 years (IPCC 2007, p. 5). It is very likely that over the past 50 years, cold days, cold nights, and frosts have become less frequent over most land areas, and hot days and hot nights have become more frequent (IPCC 2007, p. 8). Data suggest that heat waves are occurring more often over most land areas, and the frequency of heavy precipitation events has increased over most areas (IPCC 2007, pp. 8, 15). The IPCC (2007, pp. 12, 13) predicts that changes in the global climate system during the 21st century will very likely be larger than those observed during the 20th century. For the next 2 decades a warming of about 0.2 °C (0.4 °F) per decade is projected (IPCC 2007, p. 12).

In addition, Seageret al.(2007, p. 1181) showed that there is a broad consensus among climate models that southwestern North America will get drier in the 21st century and that the transition to a more arid climate is already under way. Only 1 of 19 models has a trend toward a wetter climate in the Southwest (Seageret al.2007, p. 1181). A total of 49 projections were created using the 19 models, and all but 3 predicted a shift to increasing aridity (dryness) in the Southwest as early as 2021 to 2040 (Seageret al.2007, p. 1181). These research results indicate that southwestern North America can be expected to be hotter and drier in the future.

Nevertheless, we believe that increasing global temperatures and drought conditions will likely have little impact onFrankenia johnstoniibecause this species is well adapted to the warm, arid landscape of south Texas. In fact, it may be reasonable to assume that climate change may actually benefitF. johnstoniiby making the landscape more arid, thus reducing competition with other less physiologically adapted plants. However, we lack sufficient certainty to know specifically how climate change will affect the species. We have not identified, nor are we aware of, any data on an appropriate scale to evaluate habitat or population trends for theF. johnstoniiwithin its range, or to make predictions on future trends and whether the species will actually be impacted. We lack predictive local or regional models on how climate change will specificallyaffect theF. johnstoniior its habitat, and we have no certainty regarding the timing, magnitude, or effects of impacts. Therefore, based on the best available information, we do not consider climate change to be a threat to theF. johnstoniinow or in the foreseeable future.

In summary, based on our analysis of the new information that has become available since our original 2003 proposal to delistFrankenia johnstonii,we continue to believe that the data supporting the original classification were incomplete and that new data have clarified the significance of threats to the species. Moreover, the signing of voluntary conservation agreements or conservation management agreements for a number of populations indicates landowner interest in conservation of the species and their intent to protect the species and its habitat has significantly reduced potential impacts due to destruction or modification of habitat. After reviewing the status of the species, we determine that the species is not in danger of extinction throughout all or a significant portion of its range, nor is it likely to become in danger of extinction within the foreseeable future throughout all or a significant portion of its range.

Section 4(g)(1) of the Act requires us, in cooperation with the States, to implement a monitoring program for not less than 5 years for all species that have been recovered and delisted (50 CFR 17.11, 17.12). The purpose of this post-delisting monitoring (PDM) is to verify that the species remains secure from risk of extinction after it has been removed from the protections of the Act. The PDM is designed to detect the failure of any delisted species to sustain itself without the protective measures provided by the Act. If, at any time during the monitoring period, data indicate that protective status under the Act should be reinstated, we can initiate listing procedures, including, if appropriate, emergency listing under section 4(b)(7) of the Act. Section 4(g) of the Act explicitly requires cooperation with the States in development and implementation of PDM programs, but we remain responsible for compliance with section 4(g) and, therefore, must remain actively engaged in all phases of PDM. We also seek active participation of other entities that are expected to assume responsibilities for the species' conservation post-delisting.

The Service has developed a draft PDM plan forFrankenia johnstoniiin cooperation with the TPWD, U.S. International Boundary and Water Commission, TNC, and the Texas Department of Transportation. The PDM plan is designed to verify thatF. johnstoniiremains secure from risk of extinction after removal from the list of endangered species. With this notice, we are soliciting public comments and peer review on the draft PDM plan. All comments on the draft PDM plan from the public and peer reviewers will be considered and incorporated into the final PDM plan as appropriate.

The following is a brief summary of the draft PDM plan. Please see the plan, available athttp://www.fws.gov/southwest/es/Library/orhttp://www.regulations.gov,for more details. In essence, the PDM plan for theFrankenia johnstoniiwill be implemented for 9 years, and will include habitat evaluation using remote sensing of 20 populations and on-site monitoring of 10 populations. Habitat assessments with remote sensing will occur about every 2 or 3 years, depending on when updated aerial photography is available. Onsite assessments will be conducted in the fall every 3 years for a total of three visits during the 9-year PDM period. Potential impacts to the species are habitat loss from vegetation clearing associated with construction of roads and buildings for residential and commercial development, and clearing and construction associated with oil and gas development (seismic exploration and road, pipeline, and well pad construction). A site visit will be triggered from remote sensing analysis when a 30 percent loss of habitat is detected within any monitored polygon when compared to 2008 baseline data. A second way to trigger site visits is if the overall area being assessed shows a habitat loss of 30 percent or more compared to the 2008 baseline.

If onsite monitoring reveals any cause for concern, such as reduced numbers of plants or decreased extent of a population, a more comprehensive ground assessment of the monitored populations, or addition of extra monitoring sites, may be necessary. If monitoring concerns become sufficiently high, we will conduct a full status review of the species to determine if relisting is warranted.

We intend that any final action resulting from this proposal will be based on the best scientific and commercial data available and will be as accurate and effective as possible. To ensure our determination is based on the best available scientific and commercial information, we request information on theFrankenia johnstoniifrom governmental agencies, Native American Tribes, the scientific community, industry, and any other interested parties. We request comments or suggestions on our May 22, 2003 (68 FR 27961), proposal to delist theF. johnstonii,on the new information presented in thisFederal Registernotice, on the draft post-delisting monitoring plan forF. johnstonii,and on any other information. Specifically, we seek information on:

(1) The species' biology, range, and population trends, including:

(a) Life history, ecology, and habitat use of theF. johnstonii;

(b) Range, distribution, population size, and population trends;

(c) Positive and negative effects of current and foreseeable land management practices onF. johnstonii,including conservation efforts.

(2) The factors, as detailed in the May 22, 2003 (68 FR 27961), that are the basis for making a listing/delisting/downlisting determination for a species under section 4(a) of the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531et seq.), which are:

(a) The present or threatened destruction, modification, or curtailment of its habitat or range;

(b) Overutilization for commercial, recreational, scientific, or educational purposes;

(c) Disease or predation;

(d) The inadequacy of existing regulatory mechanisms; or

(e) Other natural or manmade factors affecting its continued existence.

(3) The draft post-delisting monitoring plan.

You may submit your information concerning this status review by one of the methods listed inADDRESSES. If you submit information viahttp://www.regulations.gov,your entire submission—including any personal identifying information—will be posted on the Web site. If you submit a hardcopy that includes personal identifying information, you may request at the top of your document that we withhold this personal identifying information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy submissions onhttp://www.regulations.gov.

Information and supporting documentation that we received and used in preparing this proposal and other listing determinations for the species, will be available for you to review athttp://www.regulations.gov,or you may make an appointment during normal business hours at the Service's Southwest Regional Office, Ecological Services Division (seeFOR FURTHER INFORMATION CONTACT).

If you submitted comments or information previously on the May 22, 2003, proposed rule (68 FR 27961), please do not resubmit them. These comments have been incorporated into the public record and will be fully considered in the preparation of our final determination.

The Service will finalize a new listing determination after we have completed our review of the best available scientific and commercial information, including information and comments submitted during this comment period.

A complete list of references cited is available on the Internet athttp://www.regulations.govand upon request from the Service's Southwest Regional Office, Ecological Services (seeFOR FURTHER INFORMATION CONTACT).

The primary author of this notice is staff of the Service's Southwest Regional Office, Ecological Services (seeFOR FURTHER INFORMATION CONTACT).

The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531et seq.).

The fisheries for reef fish, red drum, shrimp, and coral and coral reefs of the Gulf of Mexico (Gulf) are managed under their respective FMPs. The FMPs were prepared by the Council and are implemented through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).

The 2006 revisions to the Magnuson-Stevens Act require that by 2011, for fisheries determined by the Secretary of Commerce (Secretary) to not be subject to overfishing, NMFS establish ACLs and AMs at a level that prevents overfishing and helps to achieve OY. This mandate is intended to ensure fishery resources are managed for the greatest overall benefit to the nation, particularly with respect to providing food production and recreational opportunities, and protecting marine ecosystems.

By removing selected stocks from certain FMPs, this rule would defer to other entities management of those stocks. The rule would also remove 10 species that do not require conservation and management from the Reef Fish FMP; create and revise the species groupings for reef fish; modify the framework procedures; and establish ACLs and AMs for the required species within the Generic ACL Amendment.

Some stocks currently managed by FMPs are uncommon in Gulf Federal waters. These stocks are also primarily harvested within areas under the jurisdiction of the South Atlantic Fishery Management Council (South Atlantic Council). National Standard 7 of the Magnuson-Stevens Act states that, to the extent practicable, conservation and management measures shall avoid unnecessary duplication. The proposed rule would remove Nassau grouper from the Reef Fish FMP, and the Council will request that the Secretary designate the South Atlantic Council as the responsible council for Nassau grouper.If this provision of the Generic ACL Amendment is approved and the South Atlantic Council is designated as the lead council, the South Atlantic Council will need to amend its Snapper-Grouper FMP to extend authority over Nassau grouper into Gulf Federal waters. Given the time necessary to implement these measures, NMFS intends to delay the effective date for removing the prohibition on the harvest of Nassau grouper until the South Atlantic Council has implemented the changes to the Snapper-Grouper FMP. This delay will prevent any lapse in the protective regulations necessary for the species. Similarly, the rule would remove octocorals from the Coral and Coral Reefs FMP. Most octocorals are harvested in waters under the jurisdiction of the South Atlantic Council, which will continue to manage octocorals in their region. Octocorals harvested in the Gulf are primarily taken in Florida state waters; Florida manages octocorals in its state waters, and has notified the Council that it will assume management of octocorals in Gulf Federal waters as well.

Approximately 50 species of fish are under consideration for management actions in the Generic ACL Amendment. Many uncommonly harvested species were originally placed in fishery management plans for data monitoring purposes, rather than because they were considered to be in need of Federal management. This rule would remove 10 of the less frequently landed species in the Reef Fish FMP, because the Council determined these species are not in need of Federal management. Species proposed for removal include those species for which average landings are less than 15,000 lb (6,804 kg) annually, or that are harvested primarily in state waters, and include: anchor tilefish, misty grouper, sand perch, dwarf sand perch, blackline tilefish, schoolmaster, red hind, rock hind, dog snapper, and mahogany snapper.

In some cases, groups of stocks share a common habitat and are caught with the same gear in the same area at the same time. Some species groupings, such as shallow-water grouper (SWG), deep-water grouper (DWG), and tilefishes, are already managed in in Gulf Federal water. The Council determined that grouping together species with similar fishery characteristics would allow for more effective management of those lesser caught species because individual single species information is often insufficient. This rule would modify existing species groupings and create the following additional groupings: other SWG (black grouper, scamp, yellowmouth grouper, and yellowfin grouper); DWG (warsaw grouper, snowy grouper, speckled hind, and yellowedge grouper); tilefishes (golden tilefish, blueline tilefish, and goldface tilefish); jacks (almaco jack, banded rudderfish, and lesser amberjack); and mid-water snapper (silk snapper, wenchman, blackfin snapper, and queen snapper).

To facilitate timely adjustments to harvest parameters and other management measures, the Council has added the ability to adjust ACLs and AMs, and to establish and adjust annual target catch (ACT) levels, to the current framework procedures. These adjustments or additions may be accomplished through a regulatory amendment which is less time-intensive than an FMP amendment. By including ACLs, AMs, and ACTs in the framework procedures, the Councils and NMFS would have the flexibility to more promptly alter those harvest parameters as new scientific information becomes available. The proposed addition of other management options into the framework procedures would also add flexibility and the ability to more timely respond to certain future Council decisions through the framework procedures.

This rule would establish 13 initial ACLs for 26 species or species groups, 8 ACLs for individual species, and 5 ACLs for stock complexes. Individual ACLs would be established for vermilion snapper, lane snapper, gray snapper, hogfish, cubera snapper, mutton snapper, yellowtail snapper, and royal red shrimp. Species complex ACLs would be established for deep-water grouper, other shallow-water grouper, tilefishes, jacks, and mid-water snappers. Additionally, the ACL for the other SWG complex would be revised.

The rule would also establish allowable biological catch (ABC) limits in the Gulf Council's area of jurisdiction for several species managed separately by both the Gulf and South Atlantic Councils, but for which only single stock assessments, and single ABCs covering both Council's areas of jurisdiction, were provided. Based on historical landings and recommendations from their respective SSC's, the two councils have agreed to apportion those overarching ABCs between them. This proposed rule would establish commercial and recreational harvest allocations for black grouper for the Gulf based upon historical landings.

The ACLs to be implemented have been developed based upon the Magnuson-Stevens Act National Standards 1 guidelines that state that the Council must establish an ABC control rule based on scientific advice from the Council's Scientific and Statistical Committee (SSC). Additionally, the ABC should be based, when possible, on the probability that an actual catch equal to the stock's ABC would not result in overfishing. The Council selected the ABC control rule based upon SSC recommendations to use varying levels of scientific uncertainty in setting the ACL.

Standard methods for determining the appropriate ABC allow the Council's SSC to determine an objective and efficient assignment of ABC at or less than the overfishing limit (OFL). The SSC's selection of an ABC takes into account scientific uncertainty regarding the harvest levels that would lead to overfishing. The quality and quantity of landings information varies according to the stock in question, thus separate control rules are needed for data-adequate and data-poor stocks. In some cases, the nature of the fishery or other management considerations may require a separate control rule for a given stock. The default buffer level for each stock is to set the ABC at 75 percent of the OFL unless a different risk level is determined by the Council. The Generic ACL Amendment describes the process by which the ABC would be established for the applicable species.

Under the Magnuson-Stevens Act, ACTs are optional management targets intended to help constrain harvest to levels so that the ACL is not exceeded. Establishing control rules for setting these catch levels would provide guidance to the Council on setting an objective and efficient assignment of ACLs that takes into account the potential for management uncertainty. As with the ABC control rule, different levels of landings information about catch levels and management of stocks may require separate control rules for data-adequate and data-poor stocks. The ACT control rule was also developed by the SSC and provided to the Council. It uses assessment information and characterization of uncertainty to develop a percentage for calculating the ACT from the ACL. There are nine ACTs that would be established through this rule. National Standard 1 guidelines recommend that an ACT be used forstocks when in-season AMs are not used.

Accountability measures (AMs) may be used for both in-season and post-season management of a stock to control or mitigate harvest levels with respect to the ACL.

With the exception of royal red shrimp, the stocks and stock complexes requiring AMs are in the reef fish fishery management unit.

The reef fish species requiring AMs within the Generic ACL Amendment are contained in two categories. The first category is for reef fish stocks and stock complexes where the commercial sector is managed under the individual fishing quota (IFQ) program for Gulf groupers and tilefishes, but the recreational sector does not currently have an AM in place. For these species, a portion of the ACL has been apportioned to the commercial sector for IFQ allocation within the IFQ program. For species within the commercial sector of a Gulf IFQ program, this rule would make the IFQ program itself the AM for the commercial sector because commercial landings are closely monitored and IFQ participants are limited to their specific IFQ allocation each fishing year. Thus, if the stock ACL were exceeded, the reason for the overage would be attributable to an excessive harvest by the recreational sector. Therefore, this rule would implement AMs for the recreational sector in the event of a stock ACL overage for the IFQ related species. The three stock complexes whose commercial sectors are managed under an IFQ program but whose recreational sectors do not currently have AMs in place are tilefishes, other SWG, and DWG.

The second category of species or species groups that would have AMs implemented through this rule are those species or species groups that do not currently have AMs in place for either the commercial or recreational sector. This rule would implement new ACLs and AMs in both sectors for the following: Vermilion snapper, lane snapper, mid-water snappers (silk snapper, wenchman, blackfin snapper, and queen snapper), mutton snapper, yellowtail snapper, gray snapper, cubera snapper, hogfish, jacks (lesser amberjack, almaco jack, and banded rudderfish), and royal red shrimp.

For this second category of stocks, with the exception of royal red shrimp and vermilion snapper, if a stock or stock complex exceeds its ACL in a given fishing year, then during the following fishing year, if the sum of commercial and recreational landings reaches or is projected to reach the stock ACL, the commercial and recreational sectors would be closed for the remainder of that fishing year. There is no federally managed recreational sector for royal red shrimp, so the ACL only applies to the commercial sector. The AM for royal red shrimp would apply if commercial landings exceed the ACL in a given fishing year. In that case then during the following fishing year, if the commercial landings reach, or are projected to reach, the ACL, the commercial sector would be closed for the remainder of that fishing year.

In the case of vermilion snapper, in any fishing year, if the combined commercial and recreational landings reach or exceed the stock ACL during the fishing year, then both the commercial and recreational sectors would be closed for the remainder of that fishing year.

For stocks for which an ACL would be set through this rulemaking, none are currently overfished, in a rebuilding plan, or undergoing overfishing. Therefore, there is a reduced likelihood an ACL would be exceeded.

The Generic ACL Amendment proposes to retain Federal management for, and keep within their respective fishery management units, several species that will not have specifically codified ACLs and AMs. These species are red drum, goliath grouper, and corals (excluding octocorals). Harvesting these species is currently prohibited in Gulf Federal waters, and they therefore have a functional ACL of zero. Additionally, the harvest prohibition serves as a functional AM to manage the ACL.

Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with the Generic ACL Amendment, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.

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

NMFS prepared an IRFA for this rule, as required by Regulatory Flexibility Act, 5 U.S.C. 603. The IRFA describes the economic impact that this rule, if adopted, would have on small entities. A description of the rule, why it is being considered, and the objectives of, and legal basis for the rule are contained at the beginning of this section in the preamble and in theSUMMARYsection of the preamble. A copy of the full analysis is available from the Council (seeADDRESSES). A summary of the IRFA follows.

The rule would remove octocorals from the Coral and Coral Reefs FMP; remove Nassau grouper from the Reef Fish Fishery FMP; and remove species that have average annual landings of 15,000 lb (6,804 kg) or less or those that are primarily harvested in state waters, including anchor tilefish, blackline tilefish, red hind, rock hind, misty grouper, schoolmaster, dog snapper, and mahogany snapper, sand perch and dwarf sand perch from the Reef Fish Fishery FMP. The rule would also create the additional species groups other shallow-water groupers (black grouper, scamp, yellowmouth grouper, and yellowfin grouper), deep-water groupers (warsaw grouper, snowy grouper, speckled hind, and yellowedge grouper), tilefishes (golden tilefish, blueline tilefish, and goldface tilefish), jacks (almaco jack, banded rudderfish, and lesser amberjack), and mid-water snapper (silk snapper, wenchman, blackfin snapper, and queen snapper), without using any indicator species within each group.

The rule would adopt an ABC control rule providing separate guidance in setting ABC for Tier 1 species (assessed stocks with estimates of MSY and probability distribution around the estimate), Tier 2 species (assessed stocks without estimates of MSY or its proxy), Tier 3a (unassessed stocks but deemed stable over time), and Tier 3b (unassessed stocks with current fishing levels deemed by the SSC as not sustainable). The rule would additionally establish an initial estimate of ACL/ACT, based on a spreadsheet method and followed by a review by the Council's Socioeconomic Panel, for seven individual reef fish species (vermilion snapper, lane snapper, gray snapper, hogfish, cubera snapper, mutton snapper, and yellowtail snapper) and five reef fish species complexes (other shallow-water grouper, deep-water grouper, tilefishes, jacks, and mid-water snappers). The rule would also adopt a generic framework procedure by modifying existing framework procedures under the Reef Fish, Gulf Shrimp, and Red Drum Fishery FMPs and establishing a framework procedure for the Coral and Coral Reefs FMP; and would specify an ACL of 334,000 lb (151,500 kg) of tails for royal red shrimp based on the overfishing limit of 392,000 lb (177,808 kg) of tails as recommended by the SSC.

Moreover, the rule would establish the ABCs in the Gulf Council's area ofjurisdiction for several species managed separately by both the Gulf and South Atlantic Councils, but for which only single stock assessments, and single ABCs covering both Council's areas of jurisdictions, were provided. The amendment would set the following apportionment of those overarching ABC's: 47 percent of the black grouper ABC for the South Atlantic Council and 53 percent for the Gulf Council; 75 percent of the yellowtail snapper for the South Atlantic Council and 25 percent for the Gulf Council; 82 percent of the mutton snapper ABC for the South Atlantic Council and 18 percent for the Gulf Council. The rule would also further allocate the Gulf Council's black grouper ACL into 27 percent for the recreational sector and 73 percent for the commercial sector; set annual ACLs and optional ACTs based on the ACL/ACT control rule, with ACL being equal to ABC, unless otherwise specified by the Council. The rule would implement in-season AMs for vermilion snapper by closing the commercial and recreational sectors when the stock ACL is reached or projected to be reached within a fishing year; implement in-season AMs for other reef fish species without an existing AM and royal red shrimp if the stock ACL is exceeded in the previous year; set the trigger for post-season AMs when landings exceed the ACL without applying any overage adjustment to the following year's ACL.

The purpose of this rule is to implement the National Standard 1 guidelines to establish the methods for implementing ACLs, AMs and associated parameters for stocks managed by the Gulf Council, along with initial specifications of an ACL that may be changed under the framework procedures for specifying an ACL. Additionally, this rule is intended to improve management capability to prevent or end overfishing and to maintain stocks at healthy levels, and to do so in a consistent and structured manner across all FMPs.

The Magnuson-Stevens Act provides the statutory basis for this rule.

The rule would not establish any new reporting or record-keeping requirements. However, the AMs may constitute a new compliance requirement and are analyzed later in the IRFA. No duplicative, overlapping, or conflicting Federal rules have been identified for this rule. Management of certain species affected by this rule was developed with explicit consideration of applicable rules in the state of Florida and the South Atlantic Council.

The rule is expected to directly affect commercial harvesting and for-hire fishing vessels that harvest reef fish, royal red shrimp, red drum, or octocorals in the Gulf. It should be noted that harvest and possession of red drum in the Gulf EEZ is currently prohibited. The Small Business Administration has established size criteria for all major industry sectors in the U.S. including fish harvesters and for-hire operations. A business involved in fish harvesting is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual receipts not in excess of $4.0 million (NAICS code 114111, finfish fishing) for all its affiliated operations worldwide. For for-hire vessels, all the above qualifiers apply except that the annual receipts threshold is $7.0 million (NAICS code 713990, recreational industries).

In 2009, there were 999 vessels with Gulf commercial reef fish permits and 430 vessels with Gulf royal red shrimp permits. There is no entity possessing a Federal permit for harvesting red drum or octocorals in the Gulf EEZ. Based on home states, as reported in Federal permit applications, vessels with commercial reef fish permits were distributed as follows: 37 vessels in Alabama, 814 vessels in Florida, 48 vessels in Louisiana, 15 vessels in Mississippi, 77 vessels in Texas, and 8 vessels in other states. The corresponding distribution of vessels with royal red shrimp permits is as follows: 57 vessels in Alabama, 65 vessels in Florida, 88 vessels in Louisiana, 25 vessels in Mississippi, 152 vessels in Texas, and 43 vessels in other states. In 2008 and 2009, the maximum annual commercial fishing revenue by an individual vessel with a commercial Gulf reef fish permit was approximately $606,000 (2008 dollars). The maximum revenue by an individual vessel in the royal red shrimp or coral fisheries was far less than $606,000.

The for-hire fleet is comprised of charterboats, which charge a fee on a vessel basis, and headboats, which charge a fee on an individual angler (head) basis. In 2009, there were 1,419 for-hire vessels that were permitted to operate in the Gulf reef fish fishery. These vessels were distributed as follows: 141 vessels in Alabama, 876 vessels in Florida, 100 vessels in Louisiana, 52 vessels in Mississippi, 232 vessels in Texas, and 18 vessels in other states. The for-hire permit does not distinguish between headboats and charter boats, but in 2009 the headboat survey program included 79 headboats. The majority of headboats were located in Florida (43), followed by Texas (22), Alabama (10), and Louisiana (4). The average charterboat is estimated to earn approximately $88,000 (2008 dollars) in annual revenues, while the average headboat is estimated to earn approximately $461,000 (2008 dollars).

Based on the foregoing revenue estimates, all commercial and for-hire vessels expected to be directly affected by this rule are determined for the purpose of this analysis to be small business entities. Some fleet activity (i.e.,multiple vessels owned by a single entity) may exist in the for-hire sector but its extent is unknown, and all vessels are treated as independent entities in this analysis.

Because all entities expected to be directly affected by this rule are small business entities, no disproportionate effects on small entities relative to large entities are expected because of this rule.

Removing octocorals from the Coral and Coral Reefs FMP is mainly administrative in nature and would have no direct effects on the profitability of small business entities. Removing Nassau grouper from the Reef Fish Fishery FMP, with eventual management of the species being assumed by the South Atlantic Council, has no direct effects on the profits of small entities, given the current prohibition on the harvest of this species. Removing species from the Reef Fish Fishery FMP which have average annual landings of 15,000 lb (6,804 kg) or less (except those misidentified as another species or those exhibiting a trend landings that may indicate a change is status), or those mainly harvested in state waters, such as anchor tilefish, blackline tilefish, red hind, rock hind, misty grouper, schoolmaster, dog snapper, mahogany snapper, sand perch, and dwarf sand fish, would not directly change the current harvest or use of a resource, and therefore would not affect the profitability of small entities. Similarly, rearranging species into species groupings would not directly change the current harvest or use of a resource, and therefore would not affect the profitability of small entities.

The establishment of an ABC control rule is not anticipated to directly affect the harvest and other typical uses of the resource since this action is administrative in nature. As such, this management action is not expected to result in any direct effects on the profits of small entities.

The establishment of an ACL/ACT control rule is an administrative action and would not affect the harvest and other customary uses of the resource. Therefore, this action has no directconsequence on the profitability of small entities.

Modifications to the framework procedure are also administrative in nature. Since these modifications would not affect the harvest and other customary uses of the resource, they would have no direct consequence on the profitability of small entities.

Any management actions enacted through the modified framework procedure would be evaluated as to their effects on the profits of small entities at the time of their implementation. Initial ACL specification for royal red shrimp would set the ACL for the species at 334,000 lb tails (151,500 kg) which are significantly above the historical landings (138,116 lb (62,648 kg) in 2008). This action, therefore, would not affect harvests and profits of small entities in the foreseeable future.

Apportioning black grouper between the Gulf and South Atlantic Council's jurisdictional areas would result in an increase of profits (producer surplus) to the commercial sector ranging from approximately $90,000 to $113,000 annually for all vessels combined. The effects on for-hire profits are expected to be positive but cannot be quantified with available information. The apportionment of yellowtail snapper between the Gulf and South Atlantic Council's jurisdictional areas is very close to the recent landings ratio of the species between the two jurisdictional areas. Thus, this management action is expected to have minimal effects on the profits of small entities in both areas.

The apportionment of mutton snapper between the Gulf and South Atlantic Council's jurisdictional areas would favor the Gulf fishing fleet and thus would be expected to increase the profits of the Gulf fishing fleet. The effects on the profits of the South Atlantic fishing fleet would, in turn, decrease. In the absence of sufficient information to quantify the effects of this action, its net effects on the fishing fleets of both areas cannot be determined.

The apportionment of black grouper in the Gulf between the commercial and recreational sectors would tend to favor the commercial over the recreational sector. In this sense, the commercial sector is expected to experience profit increases ranging from approximately $11,000 to $14,000 annually for all vessels combined. The negative effects on the for-hire fleet cannot be estimated with available information. Potential effects on small entities anticipated from the implementation of ACLs and/or ACTs for reef fish stocks and stock groupings would depend on the extent to which ACLs and ACTs under consideration would affect the harvest or other customary uses of the resource. While this action does not set any reef fish species and stock groupings ACLs or ACTs for the recreational sector, aggregate catch limits and targets and the ACLs and ACTs specified for the commercial sector would allow for an increased harvest levels for both sectors. Therefore, positive effects on the profits of small entities would be expected to result from this action in the near future.

Specifying in-season AMs for vermilion snapper when the ACL is reached or projected to be reached within the fishing year would result in short-term negative effects on the profits of small entities. The expectation, however, over the medium and long-term is for profits of these small entities to increase or at least not be further impaired due to increased protection for the stock. Implementing AMs for royal red shrimp and other reef fish species that do not currently have AMs enacted the following year after their ACLs are exceeded would negatively affect the short-term profits of small entities. Again, the expectation is for this action to improve medium and long-term profitability.

Three alternatives, including the preferred alternative, were considered for the management of octocorals. The first alternative, the no action alternative, would retain the management of species under the Gulf Coral and Coral Reefs FMP. The second alternative would remove the species from the FMP, with eventual management of the species being the responsibility of the South Atlantic Council. Similar to the preferred alternative, these two other alternatives would have no direct effects on the profits of small entities. The second alternative would mainly entail additional administrative cost on the part of the South Atlantic Council.

Three alternatives, including the preferred alternative, were considered for the management of Nassau grouper. The first alternative, the no action alternative, would retain the management of the species under the Gulf Reef Fish FMP. The second alternative would remove the species from the FMP, with eventual management of the species being the responsibility of the South Atlantic Council. Similar to the preferred alternative, these two other alternatives would have no direct effects on the profits of small entities. The second alternative would mainly entail additional administrative cost on the part of the South Atlantic Council.

Four alternatives, including the preferred alternative, were considered for the management of yellowtail snapper. The first alternative would remove the species from the Gulf Reef Fish FMP. The second alternative would remove the species from the FMP, with eventual management of the species being the responsibility of the South Atlantic Council. The third alternative would add the species to a joint plan with the South Atlantic Council. Similar to the preferred no action alternative, these three other alternatives would have no effects on the profits of small entities. The second alternative would mainly entail additional administrative cost on the part of the South Atlantic Council.

Four alternatives, including the preferred alternative, were considered for the management of mutton snapper. The first alternative would remove the species from the Gulf Reef Fish FMP. The second alternative would remove the species from the FMP, with eventual management of the species being the responsibility of the South Atlantic Council. The third alternative would add the species to a joint plan with the South Atlantic Council. Similar to the preferred no action alternative, these three other alternatives would have no direct effects on the profits of small entities. The second alternative would mainly entail additional administrative cost on the part of the South Atlantic Council while the third alternative would entail additional administrative costs on both Councils.

Five alternatives, of which two are the preferred alternatives, were considered for removing stocks from the Reef Fish FMP. The first alternative, the no action alternative, would not remove any species from Gulf Reef Fish FMP. This alternative would have no direct effects on the short-term profitability of small entities, but over time this is more likely to result in profit reduction than the preferred alternative when certain species with historically low landings become subject to restrictive measures. The second alternative would remove species with average landings of 100,000 lb (45,359 kg) or below from the Reef Fish FMP, except for species that are long-lived, may be misidentified as another species, or have trends in landings that may indicate a change in status. This alternative would have no direct short-term effects on profits of small entities, but with a relatively high historical landings threshold certain species may not be well protected for long-term sustainability. This could then eventually lead to lower harvest and lower profits to small entities over time. The third alternative wouldremove species from the Reef Fish FMP if Federal waters are at the edge of the species distribution. This alternative would not directly affect the profitability of small entities, and could possibly have similar long-term effects as the preferred alternative.

Five alternatives, of which two with one sub-alternative are the preferred alternatives, were considered for species groupings. The first alternative, the no action alternative, would maintain the current species groupings. This alternative would have no direct short-term economic effects on small entities. The second alternative would revise the species groupings by adding groupings when life history and landings data may be too sparse to set individual catch limits. Although this alternative would have no direct consequence on the economic status of small entities, it would provide for a greater number of groupings. The third alternative would use species groupings based on NMFS analysis, which uses fishery-dependent data from multiple sectors over multiple years and life history data when available creating complexes and sub-complexes. This alternative would have no direct effects on the economic status of small entities, but it would provide for more groupings than the preferred alternative. In addition to these alternatives, two other sub-alternatives were considered regarding the selection of an indicator species within each grouping, noting that the preferred sub-option is not to use any indicator species. The first sub-option is to use as an indicator species the most vulnerable stock in the group based on productivity-susceptibility analysis. This sub-option would likely result in more restrictive environment that would condition the implementation of ACLs and other management measures. The second sub-option would use the assessed species as an indicator species. This sub-option has similar effects as the first sub-option but it would be relatively less constrictive.

Three alternatives, including the preferred alternative, were considered for the ABC control rule. The first alternative, the no action alternative, would not specify an ABC control rule. This alternative would have no immediate effects on the economic status of small entities, but it may not comply with the Magnuson-Stevens Act National Standard 1 guidelines, which require Councils to establish an acceptable ABC control rule. The second alternative would adopt an ABC control rule fixing the buffer between the overfishing limit and ABC at a level such that ABC is equal to 75 percent of the overfishing limit or ABC is equal to the yield at 75 percent of FMSY(fishing mortality at maximum sustainable yield). Although this alternative is simpler than the preferred alternative, it lacks the stock specificity contained in the preferred alternative.

Five alternatives, including the preferred alternative, were considered for the ACL/ACT control rule. The first alternative, the no action alternative, would not establish an ACL/ACT control rule. The second alternative would establish an initial estimate of ACL/ACT based upon a flow chart method that reviews data availability, data timeliness, and data quality to develop the ACT buffer percentage, and followed by a review by the Council's Socioeconomic Panel. This alternative would have economic effects similar to the preferred alternative, but it would produce a less conservative buffer when comparing stock complexes or stocks with high dead discard levels. Therefore, this alternative may result in less adverse economic impacts in the short term than the preferred alternative. The third alternative would set the buffer between ACL and ACT at a fixed percentage of 25 percent for all sectors, 0 percent for IFQ (individual fishing quota) fisheries and 25 percent for all other sectors, or 2 percent for IFQ fisheries and 25 percent for all other sectors, and followed by a review by the Council's Socioeconomic Panel. This alternative may result in lower economic benefits than the preferred alternative, because it would establish control rules that may not take account of stock specificity. The fourth alternative would set the buffer between ACL and ACT at a fixed percentage of 0 percent, 10 percent, 15 percent, or 25 percent, followed by a review by the Council's Socioeconomic Panel. This alternative has about the same economic implications as the third alternative, except possibly when dealing with IFQ species, so that it would also tend to provide lower economic benefits than the preferred alternative.

Four alternatives, including the preferred alternative, were considered for the generic framework procedures. The first alternative, the no action alternative, would retain the current framework procedures for implementing management measures. The second alternative would add modifications that would make the framework procedures broader than the preferred alternative while the third alternative would make the framework procedures narrower than the preferred alternative. Similar to the preferred alternative, these three other alternatives would have no direct economic effects on small entities.

Three alternatives, including the preferred alternative, were considered for specifying ACL for royal red shrimp. The first alternative, the no action alternative, would not set an ACL for the species. This alternative is the least likely to affect the profits of small entities but it would not meet the legal requirements for establishing an ACL by 2011. The second alternative would set an ACL for the species based on average landings from 1962-2008 (141,379 lb (64,128 kg) of tails), from the last 5 years (191,860 lb (87,026 kg) of tails), or from the last 10 years (233,182 lb (105,770 kg) of tails). This alternative would likely result in a harvest reduction and profit reduction as well, except when the ACL is set at the highest of the three sub-options. Other sub-options would set the ACL equal to 75 percent of ABC (250,500 lb (113,625 kg)) or set the ACL corresponding to the ACL/ACT control rule. These sub-options would be unlikely to result in short-term profit reductions although they are more restrictive than the preferred alternative/sub-alternative.

Three alternatives, including the preferred alternative, were considered for establishing the Gulf portion of the jurisdictional apportionment of the black grouper ABC, as agreed upon by both councils. The first alternative, the no action alternative, would not apportion the species ABC between the Gulf and South Atlantic Councils. This alternative would tend to maintain the distribution of landings and potentially the economic benefits between the Gulf and South Atlantic fishing fleets. The second alternative would evenly apportion the species ABC between the Gulf and South Atlantic Councils. The resulting effects of this alternative on small entities would be lower profits than the preferred alternative.

Four alternatives, including the preferred alternative, were considered for establishing the Gulf portion of the jurisdictional apportionment of the yellowtail snapper ABC, as agreed upon by both councils. The first alternative, the no action alternative, would not apportion the species ABC between the Gulf and South Atlantic Councils. This alternative would tend to maintain the distribution of landings and potentially the economic benefits between the Gulf and South Atlantic fishing fleets. The second alternative would apportion 73 percent of the species ABC to the South Atlantic Council and 27 percent to the Gulf Council. This alternative would potentially yield higher profits to the Gulf fishing fleet than the preferred alternative, but the difference in the profit outcome of the two alternatives would be relatively small. The thirdalternative would apportion 77 percent to the South Atlantic Council and 23 percent to the Gulf Council. This alternative would result in lower profits to the Gulf fishing fleet than the preferred alternative, although the difference in profit outcome between the two alternatives would be relatively small.

Three alternatives, including the preferred alternative, were considered for establishing the Gulf portion of the jurisdictional apportionment of the mutton snapper ABC, as agreed upon by both councils. The first alternative, the no action alternative, would not apportion the species ABC between the Gulf and South Atlantic Councils. This alternative would tend to maintain the distribution of landings and potentially economic benefits between the Gulf and South Atlantic fishing fleets. The second alternative would apportion 79 percent of the species ABC to the South Atlantic Council and 21 percent to the Gulf Council. This alternative would result in lower profits to Gulf fishing fleet than the preferred alternative, although the difference in profit outcome between the two alternatives would be relatively small.

Four alternatives, including the preferred alternative, were considered for the sector allocation of black grouper. The first alternative, the no action alternative, would not establish sector allocation of the species. This alternative would tend to maintain the distribution of landings and potentially economic benefits between the commercial and recreational sectors. The second alternative would allocate 18 percent of the species ACL to the recreational sector and 82 percent to the commercial sector. This alternative would result in higher profit increases to the commercial sector than the preferred alternative. However, it would also result in higher profit reductions to the for-hire fleet. The net effects of this alternative cannot be estimated with available information. The third alternative would allocate 24 percent of the species ACL to the recreational sector and 76 percent to the commercial sector. This alternative would provide slightly higher profitability to the commercial sector and lower profitability to the for-hire sector than the preferred alternative. The net effects of this alternative cannot be estimated with available information.

Three alternatives, including the preferred alternative, and two sub-options, one of which is the preferred sub-option, were considered for specifying ACLs/ACTs for reef fish stocks and stock groupings. The first alternative, the no action alternative, would not set an annual ACL/ACT for stocks or stock groups, but this would not meet the legal requirements for establishing an ACL by 2011. The second alternative would set a 10 percent buffer between the ABC and ACL or between the ACL and ACT if ACL is equal to ABC. This alternative would likely result in lower profits to small entities than the preferred alternative. The second sub-option would set the ABC equal to the value specified in the ACL/ACT control rule, with the ACT not being used unless specified otherwise by the Council. This alternative would likely result in profits to small entities that would be equal to or less than those of the preferred alternative.

Four alternatives, of which two are the preferred alternatives, and five sub-options, of which two are the preferred sub-options, were considered for AMs. The first alternative, the no action alternative, would not create new AMs for reef fish and royal red shrimp. This alternative would likely result in higher profits to small entities than the preferred alternative, but it would not be consistent with the requirement to establish AMs for stocks managed by the Council. The second alternative would implement only post-season AMs for stocks and sectors that do not currently have AMs should the ACL for a year be exceeded. This alternative would likely result in larger profit reductions in the short-term than the preferred alternative due to possibly more restrictive corrective actions being implemented to address ACL overages. The first sub-option would set the trigger for post-season AMs if the average landings for the past 3 years exceed the ACL. This sub-option would likely result in lower short-term profit reductions than the preferred alternative, although over time it would result in larger profit reductions due to more restrictive actions to remedy the overages. The second sub-option would set the trigger for post-season AMs if average landings for the past 5 years, after excluding the highest and lowest values, exceed the ACL. This alternative would have nearly similar effects as the second alternative. The third sub-option would provide for an overage adjustment if the ACL for the stock or sector is exceeded and the stock is under a rebuilding plan. The amount of adjustment would equal the full amount of the overage, unless the best scientific information shows a lesser amount is needed to mitigate the effects of exceeding the ACL. This sub-option would result in larger profit reductions in the short-term than the preferred alternative due to harvest reductions that would be implemented to mitigate the overages.

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