The Agency administers the Thrift Savings Plan (TSP), which was established by the Federal Employees' Retirement System Act of 1986 (FERSA), Public Law 99-335, 100 Stat. 514. The TSP provisions of FERSA are codified, as amended, largely at 5 U.S.C. 8351 and 8401-79. The TSP is a tax-deferred retirement savings plan for Federal civilian employees and members of the uniformed services. The TSP is similar to cash or deferred arrangements established for private-sector employees under section 401(k) of the Internal Revenue Code (26 U.S.C. 401(k)).

Section 1605.13 of the Agency's regulations (5 CFR 1605.13) governs a participant's options for electing makeup contributions when he or she receives a back pay award or other retroactive pay adjustment. Paragraph (a) of section 1605.13 governs situations in which a participant was separated from Government service and subsequently reinstated. This interim final rule clarifies that paragraph (a) of section 1605.13 also governs situations in which an individual was not appointed to a position that is covered by FERS, CSRS, or an equivalent system under which TSP participation is authorized and was subsequently appointed to such position.

This rule also changes each occurrence of the term “Government employment” in section 1605.13 to the term “Government service.” This revision is non-substantive. It is intended to make the terminology in section 1605.13 consistent with the terminology in section 1690.1 of the Agency's regulations.

Section 1653.5 of the Agency's regulations (5 CFR 1653.5) contains the Agency's procedures for making retirement benefits court order payments. Paragraph (g) of section 1653.5 provides that the TSP will honor an order that awards multiple payees. It further provides that if the order does not specify an order of precedence for the payments, the TSP will pay a current or former spouse first, a dependent second, and an attorney third.

However, in 2004 the Agency amended Part 1653 to remove language that permitted an attorney to receive a payment pursuant to a retirement benefits court order.See69 FR 18294 (April 7, 2004). The Agency determined that “the security of a participant's immediate family is better preserved by conforming the TSP to the private sector practice of limiting court order payees to the participant's immediate family members, not by making tax-deferred retirement savings available for the payment of legal fees.”Id.Accordingly, this interim final rule removes the residual reference to attorneys in section 1653.5(g). It also amends an incorrect citation in paragraph (a) of section 1653.11.

Section 1653.4 of the Agency's regulations (5 CFR 1653.4) provides that a payee's entitlement under a retirement benefits court order will be credited with TSP investment earnings only if the court order expressly provides for earnings. Paragraphs (b) and (c) of section 1653.4 provide the date on which a payee's court-ordered award amount is calculated. If the court order awards a percentage or fraction of an account as of a specific date, the payee's entitlement is calculated based on the account balance as of that date. 5 CFR 1653.4(b). If the court order awards a percentage or fraction of an account but does not contain a specific date as of which to apply that percentage or fraction, the payee's entitlement is calculated based on the account balance as of the effective date of the court order. 5 CFR 1653.4(c).

Subparagraph (f)(3) of section 1653.4 describes how the TSP credits a payee's entitlement with investment earningswhen a court order awards earnings. If the court order does not specify an annual percentage rate or aper diemdollar amount to be added to the payee's entitlement, the TSP must calculate the earnings amount to be awarded by: (i) Determining the payee's award amount (e.g., the percentage or fraction of the participant's account); (ii) Determining, based on the participant's investment allocation as of the effective date of the court order, the number and composition of shares that the court-ordered award amount would have purchased as of the effective date; and (iii) Multiplying the price per share as of the payment date by that number and composition of shares. 5 CFR 1653.4(f)(3).

Determining the number and composition of shares as of the effective date of the court order, and not a later date, protects the payee from investment decisions made by the participant after the effective date of the court order. However, it fails to protect the payee from investment decisions made by the participant when the date used to calculate the payee's entitlement under section 1653.4(b) is earlier than the effective date of the court order. When the date used to calculate the payee's entitlement under section 1653.4(b) is earlier than the effective date of the court order, the current regulatory language appears to permit the TSP record keeper to either (1) reject the court order because it purports to require the TSP to calculate earnings in a manner that is inconsistent with its regulations, or (2) calculate the payee's entitlement amount using the date specified in the court order and calculate the amount of any earnings on that entitlement using the later effective date of the court order. The latter approach would result in a period of time between the date specified in the court order and the effective date of the court order during which the payee's entitlement may be affected by investment decisions made by the participant. This interim final rule remedies this shortcoming by replacing the references in 5 CFR 1653.4(f)(3)(ii) to “the effective date of the court order” with “the date used to calculate the entitlement.” It also amends section 1653.2(b) to provide that a retirement benefits court order is not qualifying if it requires the TSP to calculate the payee's entitlement or earnings in a manner that is inconsistent with section 1653.4.

This interim final rule ensures that the date used to compute earnings on a court-ordered distribution amount will always be the same as the date used to compute the payee's entitlement. It also makes it clear that a court order that provides otherwise will be rejected as a non-qualifying court order.

Under section 553(b) of the Administrative Procedure Act (APA) (5 U.S.C. 551et seq.) a general notice of proposed rulemaking is not required when an agency, for good cause, finds that notice and public comment thereon are impracticable, unnecessary, or contrary to the public interest. The Agency has determined that the revisions to sections 1605.13, regarding back pay awards, and 1653.4, regarding payments to attorneys, do not require prior notice and public comment because they merely clarify currently existing rules.

The Agency receives many retirement benefits court orders that award earnings to the payee as of a specified date which is earlier than the effective date of the court order. Under the Agency's regulations as they are currently written, it is unclear to the public whether the Agency will reject those court orders because they are non-qualifying, process them pursuant to the language of the court order, or process them by calculating earnings as of the effective date of the court order. Immediate guidance on this matter is necessary to ensure that individuals who draft retirement benefits court orders can do so without uncertainty regarding the consequences of the court order's language.

The Agency encourages public comments on this interim final rule. The Agency will consider post-effective public comments, will modify the rule in light of those comments, and will then adopt a final rule.

I certify that this regulation will not have a significant economic impact on a substantial number of small entities. This regulation will affect Federal employees and members of the uniformed services who participate in the Thrift Savings Plan, which is a Federal defined contribution retirement savings plan created under the Federal Employees' Retirement System Act of 1986 (FERSA), Public Law 99-335, 100 Stat. 514, and which is administered by the Agency. It will also affect individuals who receive a back pay award or other retroactive pay adjustment in connection with a Federal agency's failure to appoint that individual to a position that is covered by FERS, CSRS, or an equivalent system under which TSP participation is authorized. It will also affect spouses, former spouses, children, or dependents of TSP participants who become entitled to a portion of the participant's account pursuant to a qualifying retirement benefits court order.

I certify that these regulations do not require additional reporting under the criteria of the Paperwork Reduction Act.

Pursuant to the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 602, 632, 653, 1501-1571, the effects of this regulation on state, local, and tribal governments and the private sector have been assessed. This regulation will not compel the expenditure in any one year of $100 million or more by state, local, and tribal governments, in the aggregate, or by the private sector. Therefore, a statement under § 1532 is not required.

Pursuant to 5 U.S.C. 810(a)(1)(A), the Agency submitted a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States before publication of this rule in theFederal Register.This rule is not a major rule as defined at 5 U.S.C. 804(2).

For the reasons stated in the preamble, the Agency amends 5 CFR chapter VI as follows:

Accordingly, the final rule published at 76 FR 66849 on October 28, 2011 is corrected as follows:

I. Background II. Summary and Analysis of Public Comments on the Proposed Rule III. Discussion A. Technical Evaluation of the STPNOC Amendment to U.S. ABWR Design B. Regulatory and Policy Issues C. Changes to Appendix A to 10 CFR Part 52—Design Certification Rule for the U.S. Advanced Boiling Water Reactor IV. Section-by-Section Analysis A. Introduction (Section I) B. Definitions (Section II) C. Scope and Contents (Section III) D. Additional Requirements and Restrictions (Section IV) E. Applicable Regulations (Section V) F. Issue Resolution (Section VI) G. Processes for Changes and Departures (Section VIII) H. Records and Reporting (Section X) V. Agreement State Compatibility VI. Availability of Documents VII. Voluntary Consensus Standards VIII. Finding of No Significant Environmental Impact: Availability IX. Paperwork Reduction Act Statement X. Regulatory Analysis XI. Regulatory Flexibility Act Certification XII. Backfitting XIII. Congressional Review Act I. Background

Title 10 of theCode of Federal Regulations(10 CFR), part 52, “Licenses, Certifications, and Approvals for Nuclear Power Plants,” Subpart B, presents the process for obtaining standard design certifications. Section 52.63, “Finality of standard design certifications,” provides criteria for determining when the Commission may amend the certification information for a previously certified standard design in response to a request for amendment from any person. On June 30, 2009, the STPNOC tendered its application with the NRC for amendment of the U.S. ABWR standard plant design certification to comply with the requirements of 10 CFR 50.150, “Aircraft impact assessment” (ADAMS Accession No. ML092040048). The STPNOC submitted this application in accordance with 10 CFR 52.63. The STPNOC proposed several changes to the certified U.S. ABWR design to comply with 10 CFR 50.150, including the addition of an alternate feedwater injection system, the addition and upgrading of fire barriers and doors, and the strengthening of certain structural barriers. The NRC formally accepted the application as a docketed application for amendment to the U.S. ABWR design certification (Docket No. 52-001) on December 1, 2009 (74 FR 62829).

On June 12, 2009 (74 FR 28112), the NRC amended its regulations to require applicants for new nuclear power reactor designs to perform a design-specific assessment of the effects of the impact of a large commercial aircraft (the AIA rule). These new provisions in 10 CFR 50.150 require applicants to use realistic analyses to identify and incorporate design features and functional capabilities to ensure, with reduced use of operator actions, that (1) the reactor core remains cooled or the containment remains intact, and (2) spent fuel cooling or spent fuel pool integrity is maintained. When it issued the AIA rule, the Commission stated that the requirements in existence at that time, in conjunction with the March 2009 revisions to 10 CFR 50.54 to address loss of large areas of the plant due to explosions or fires, would continue to provide adequate protection of the public health and safety and the common defense and security. Nevertheless, the Commission decided to also require applicants for new nuclear power reactors to incorporate into their design additional features to show that the facility can withstand the effects of an aircraft impact. The Commission stated that the AIA rule to address the capability of new nuclearpower reactors relative to an aircraft impact is based both on enhanced public health and safety and enhanced common defense and security, but is not necessary for adequate protection. Rather, the AIA rule's goal is to enhance the facility's inherent robustness at the design stage.

The AIA rule requirements apply to various categories of applicants, including applicants for combined licenses (COLs) that reference a standard design certification issued before the effective date of the AIA rule, which has not been amended to comply with the rule. These COL applicants have two methods by which they can comply with 10 CFR 50.150. They can request an amendment to the certified design or they can address the requirements of 10 CFR 50.150 directly in their COL application. The STPNOC submitted an application for a COL on September 20, 2007. The STPNOC has requested this amendment to the U.S. ABWR-certified design to address the requirements of the AIA rule.

The NRC published the U.S. ABWR Aircraft Impact Design Certification Amendment proposed rule in theFederal Registeron January 20, 2011 (76 FR 3540). The public comment period for the proposed rule closed on April 5, 2011. The NRC received three comment letters on the proposed rule. Of those comments, one commenter, Nuclear Innovation North America, LLC (NINA), was in favor of the proposed amendment to the U.S. ABWR; one commenter, GE Hitachi Nuclear Energy (GEH), was against the proposed amendment to the U.S. ABWR, and one commenter, Thomas Shadis, addressed issues unrelated to the proposed amendment to the U.S. ABWR. The comments and responses are summarized in the following paragraphs.

Comment:The NRC should suspend the STPNOC amendment and review the proposed changes to the ABWR design certification as departures in the STP Units 3 and 4 combined license application, as is allowed by the AIA Rule, 10 CFR 50.150(a)(3)(v)(B) and the associated provision in 10 CFR 52.79(a)(47). The proposed rulemaking uses a regulatory approach solely for the purpose of supporting the combined license application for the STP Units 3 and 4. (GEH-1)

NRC Response:The NRC disagrees with the commenter's understanding that the “options” approach is being used in this proposed amendment of the U.S. ABWR DCR solely to support the COL application for the South Texas Project (STP) Units 3 and 4. On the contrary, as stated in the statements of consideration (SOC) for the proposed U.S. ABWR amendment, the NRC is proposing to use the “options” approach after a comprehensive review of a set of considerations. To reiterate the NRC's bases (as stated in the SOC for the proposed U.S. ABWR amendment), there is no statute or NRC regulation prohibiting the use of the “branches” approach, nor are there any statutory or NRC regulatory provisions which prohibit the use of the “options” approach. All of the NRC's safety and regulatory objectives are met under the “options” approach. The STPNOC is providing sufficient information to determine its technical qualifications to supply the STPNOC-sponsored amendments addressing the AIA rule to third party users (i.e.,users other than the STPNOC itself).

In addition, the NRC believes that there are no insurmountable issues in requiring the user (in most cases, the COL applicant referencing the U.S. ABWR and the STPNOC option) to prepare a single Design Control Document (DCD) integrating information from both the DCD developed by GE Nuclear Energy (GE) and the DCD developed by the STPNOC. The “options” approach avoids or addresses all of the STPNOC's concerns with the use of the “branches” alternative for its request to amend the U.S. ABWR. There would be a limited period in which the STPNOC option could be referenced by a future COL applicant, that is, until the renewal of the U.S. ABWR design certification. Finally, the “options” approach fully protects the legitimate proprietary and commercial interests of GE in the original U.S. ABWR design certification. Upon consideration of the information presented by the STPNOC in light of the NRC's technical and regulatory concerns, the NRC developed the “options” approach to address the STPNOC amendment. As was stated in the SOC, if the NRC receives other limited-scope design certification amendments (similar in scope to the STPNOC amendment request), it will consider whether the “branches” approach or the “options” approach offers the most effective and efficient regulatory option at that time based on the scope of the amendment and the specific circumstances associated with the particular application.

Inasmuch as the basis for the commenter's proposal is incorrect, the NRC declines to adopt the commenter's proposed course of action. No change was made to the final rule as a result of this comment.

Comment:The NRC should suspend the STPNOC amendment and review the proposed changes to the ABWR design certification as departures in the STP Units 3 and 4 combined license application, as is allowed by the AIA Rule, 10 CFR 50.150(a)(3)(v)(B) and the associated provision in 10 CFR 52.79(a)(47). The “options” and “branches” approaches introduce complexity and do not encourage standardization within a single design. (GEH-2)

NRC Response:The NRC agrees with the commenter that the adoption of both the “option” and “branches” approaches to amendment (and renewal) of a DCR will introduce complexity to the regulatory scheme. However, the commenter did not explain why the NRC's proposal to use the “options” approach was not the best alternative to address the circumstances raised by the STPNOC amendment, as discussed in the SOC of the proposed rule.

Moreover, the solution proposed by the commenter, viz., to process the amendment as a plant-specific departure for the STPNOC plants, ignores the following considerations. First, the “departure” concept itself may be regarded as movement away from standardization. The GEH did not present any argument why “departures” are preferable to “options” when considering the effect on standardization. Second, a departure, by its nature, represents a plant-specific dispensation from compliance with the standardized provisions of a design certification. A departure from the same design provision of a design certification could be different among different plants. By contrast, the option represents a single alternative to a provision of a design certification that would be used by every applicant/licensee referencing that option and is more in keeping with the standardization goal envisioned by the NRC under the design certification rulemaking process. Thus, the use of the “option” approach embodies the standardization concept more closely than the commenter's proposed use of departures. Third, the STPNOC wishes to be a supplier of the U.S. ABWR-certified design as is permitted by the current regulation. Processing the STPNOC amendment request as a “departure” would be inconsistent with the applicant's goals, and there appeared to be no significant issues or considerations which, considered individually or together, precluded theuse of the “options” approach as an acceptable approach for accommodating the STPNOC objectives. Finally, the “options” approach is limited in its “lifetime.” As discussed earlier, the STPNOC design changes, which are the subject of this U.S. ABWR amendment, are embodied in the proposed U.S. ABWR design certification renewal currently being pursued by the Toshiba Corporation. Upon renewal of the U.S. ABWR with the design changes requested by Toshiba Corporation in its renewal application, the STPNOC option cannot be referenced by any other applicant. These considerations were addressed in the SOC for the proposed U.S. ABWR rule, and the comment did not contain a critique of these considerations.

For these reasons, the NRC declines to adopt the commenter's proposed course of action. No change was made to the final rule as the result of this comment.

Comment:The “options” approach, as well as the “branches” approach, undermines the protection afforded by the Commission in its decision to use rulemaking to certify standard designs. (GEH-3)

NRC Response:The NRC disagrees with the comment. The commenter provided no basis for the assertion that the “branches” approach undermines the protection afforded by the design certification rulemaking concept. The comment included no analysis of the discussion in the SOC for the proposed U.S. ABWR amendment, which explains the NRC's bases for its view that protection of the original design certification applicant's legitimate commercial interests is afforded by the “branches” approach. No change was made to the final rule as the result of this comment.

Comment:If the NRC proceeds with the ABWR amendment, then the NRC should remove the SOC discussion regarding renewal of a design certification rule. The STPNOC is not an applicant for renewal, and the NRC need not make a decision at this time regarding how it will later treat multiple renewal applications for a single design certification. (GEH-4)

NRC Response:The NRC disagrees with the comment. The NRC believes that the most effective regulatory approach for addressing the multiple supplier issue is to consider all relevant technical, regulatory, and legal issues associated with multiple suppliers of a design the first time that the multiple supplier issue must actually be resolved by the NRC. The NRC regards such early consideration, with the view of establishing (to the extent that it is practical) a consistent regulatory approach on multiple suppliers at both amendment and renewal, to be desirable. Stakeholders will have the benefit of the NRC's position and may conduct their business accordingly. By focusing on the multiple supplier issue at one time, the NRC believes that its determination of the issue will integrate all known issues and considerations, and be accomplished in the most resource-efficient manner. Public understanding of the NRC's regulatory consideration and determination ensures public confidence in the NRC's approach. In short, NRC resolution in a comprehensive fashion of the multiple supplier issue is intended to provide regulatory stability, predictability, transparency, and public confidence.

The NRC concedes that the NRC is notlegallyrequired to make a decision, in the context of a DCR amendment raising the issue of multiple suppliers, to also address multiple suppliers at design certification renewal. However, the commenter did not assert that the NRC is legallyprohibitedfrom addressing the multiple supplier issues in a comprehensive fashion as part of the STPNOC amendment, and the NRC is not aware of any such prohibition.

For these reasons, the NRC declines to adopt the course of action proposed in the comment. No change was made to either the SOCs for the final STPNOC amendment or the final rule language as the result of this comment.

Comment:The NRC should remove all discussion regarding commercial value of a design certification, as the NRC has no direct knowledge regarding how potential customers would value a design certification. (GEH-5)

NRC Response:The NRC notes that the commenter did not cite specific portions of the SOC for the proposed rule which are objectionable nor did it cite specific portions of the SOC that should be removed. The NRC does not believe that the SOC actually attempts to characterize or place a “commercial value” of a design certification. The NRC also agrees with the commenter's implicit assertion that the character and magnitude of any “commercial value” to any particular design certification has no relevance to the NRC's resolution of the multiple suppliers' issue.

Thus, the NRC interprets this comment as requesting that the NRC remove references in the SOC with respect to the Commission's determination that the “branches” approach protects,inter alia,the “legitimatecommercial interests[emphasis added]” of the original design certification applicant. This discussion is set forth in the proposed rule's SOC. The NRC disagrees with the comment as understood. As discussed in the SOC, industry stakeholders in the original 10 CFR part 52 rulemaking opposed the use of rulemaking to approve (certify) designs because they felt that their legitimate commercial interests (including, but not limited to, protection of trade secrets and other proprietary information) would not be protected in rulemaking. Industry stakeholders repeated and amplified these concerns in the development of the U.S. ABWR and the System 80+, the first two DCRs. The NRC's response to industry stakeholder concerns were reflected in the regulatory approach adopted for the U.S. ABWR and System 80+, as discussed in the SOC for this amendment of the U.S. ABWR DCR. Hence, the NRC believes that it must address the protection of the (legitimate) commercial interests of the original design certification applicant where an entity intending to supply the certified design that is not the original applicant seeks either the amendment or the renewal of a DCR. Such NRC discussion simply recognizes the potential existence of the commercial interests of the original design certification applicant, as a reference for assuring that the proposed rulemaking does not significantly diminish or eliminate entirely those commercial interestswithout determining their actual existence or magnitude.

For these reasons, the NRC declines to adopt the commenter's suggestion. No change was made to either the SOCs for the final STPNOC amendment or the final rule language as the result of this comment.

Comment:Regardless of NRC regulatory provisions regarding use of an alternative vendor [a “supplier” under the NRC's proposed terminology] in a combined license proceeding, the NRC should treat an alternate entity's application as a new design certification under the provisions of 10 CFR 52.59(c). (GEH-6)

NRC Response:The NRC disagrees with the comment. The NRC did not intend, when it adopted 10 CFR 52.59(c) as part of the 2007 revision of 10 CFR part 52, for this provision to address the circumstance where multiple entities wish to supply the same certified design. Section 52.59 was intended to address a different issue: At what point would the changes requested by the design certification renewal applicant be “so extensive that the NRC concludes that an essentially new standard design is being proposed,” 72 FR 49352, 49444 (second column), August 28, 2007. Thus, the NRC does not regard § 52.59(c) as constituting the NRC's established approach for dealing withmultiple suppliers of the same certified design.

The NRC acknowledges that it may be possible to interpret § 52.59(c) in the manner suggested by the commenter. However, the commenter's proposed approach was considered and rejected by the NRC during the development of the proposed STPNOC design certification amendment rulemaking. The reasons for the NRC's rejection of a separate rulemaking were set forth in the SOC for the proposed rule. No comments on the proposed rule have caused the NRC to reconsider its favored approach to address multiple suppliers, as described in the proposed rule. The NRC notes that such re-interpretation may require additional notice and comment. The NRC declines to seek additional public comment on the commenter's proposed rulemaking approach because that approach was considered and rejected by the NRC in the development of the proposed U.S. ABWR rule amendment and the comment presented no new information that would cause the NRC to seek additional public comment.

For the reasons set forth above, the NRC declines to adopt the commenter's proposed course of action. No change was made to either the SOCs for the final STPNOC amendment or the final rule language as the result of this comment.

Comment:The notice of proposed rulemaking discusses policy issues that arise from having multiple suppliers for a single certified design, concludes that the “branches” alternative should be adopted, provides the rationale for concluding that this alternative meets all of the NRC's regulatory objectives, and explains the factors which support approval of the options approach for the STPNOC amendment. For the reasons set forth in the notice, the options approach is the only feasible rulemaking approach that would support application of the proposed amendment to STP 3&4 without jeopardizing the schedule for COL issuance, and is consistent with the NRC regulations and meets all of the NRC's safety and regulatory objectives. Consequently, application of the options approach to the proposed STPNOC amendment is fully justified. (NINA-6)

NRC Response:The NRC agrees with the comment. No change was made to the SOC or the language of the final rule as the result of this comment.

Comment:Amendment of the certified ABWR design would have the advantage of constituting final NRC approval of the AIA matters, which then can be referenced by other COL applications. This would be a significant benefit to NINA if it decides to develop other ABWRs, in addition to STP 3&4. (NINA-1)

NRC Response:The NRC agrees with this comment. Other COL applications referencing the amended U.S. ABWR and the STPNOC option would benefit from issue resolution with respect to AIA rule (10 CFR 50.150) compliance, in accordance with paragraph VI of the U.S. ABWR DCR, 10 CFR part 52, Appendix A, and 10 CFR 52.83. No change was made to the SOC or the language of the final rule as the result of this comment.

Comment:The STP 3&4 COLA references the application for amendment of the certified ABWR design. Without NRC adoption of the proposed rule, the STP 3 & 4 COLA would not meet the requirements of the AIA rule. Consequently, adoption of the proposed rule is of vital importance to the success of STP 3&4. (NINA-2)

NRC Response:The NRC agrees with the comment that without NRC adoption of the proposed rule, the STP Units 3 and 4 COL applications, as currently submitted, do not contain any direct information on compliance with the AIA rule. However, the STP Units 3 and 4 COL applicant may also comply with the AIA rule by submitting its plant-specific information for complying with the AIA rule, as is required under 10 CFR 50.150(a)(3)(v). The NRC expresses no opinion on whether the adoption of the STPNOC option is of “vital importance to the success of STP 3&4.” No change was made to the SOC or the language of the final rule as the result of this comment.

Comment:Adoption of the proposed rule also would be consistent with the standardization objective that underlies 10 CFR part 52. Its adoption obviously would increase standardization if other COL applicants that reference the certified ABWR design also reference the STPNOC amendment. (NINA-3)

NRC Response:The NRC agrees with the comment. Standardization with respect to design features and functional capabilities for complying with the AIA rule would be increased if COL applications referencing the U.S. ABWR also reference the STPNOC option. No change was made to the SOC or the language of the final rule as the result of this comment.

Comment:COL applicants referencing the ABWR design certification rule would have the option of addressing the AIA rule in their COL applications, and would not be required to reference the STPNOC amendment. Providing this option does not further standardization, but it does provide assurance that adoption of the amendment will not disadvantage any supplier of the certified design. In fact, adoption of the proposed rule as an option will be a benefit to every potential supplier of the certified ABWR design because it will demonstrate to entities that may be considering selection of the certified ABWR design for a new facility that it is feasible to modify that design to meet the requirements of the AIA rule. (NINA-4)

NRC Response:The NRC agrees with the commenter's assertion that COL applicants referencing the U.S. ABWR may elect to address the requirements of the AIA rule in their COL application, as opposed to referencing the STPNOC option. This is inherent in the existing U.S. ABWR design certification, which currently does not address the AIA rule's requirements.

The NRC also agrees with the commenter's observation that the proposed amendment does not disadvantage any supplier of the U.S. ABWR-certified design (including the original design certification applicant).

However, the NRC disagrees with the comment to the extent that affording the option does not further standardization. It is not unreasonable for the NRC to conclude that COL applicants may favor a design certification that the NRC has determined meets the requirements of the AIA rule. Thus, by approving the option meeting the AIA rule, the NRC believes that, as a practical matter, standardization will be enhanced. The NRC takes no position on the assertion that the adoption of the proposed rule will be a benefit to other potential suppliers, because it demonstrates to entities that it is feasible to modify the design to meet the AIA rule. Thus, the NRC does not rely upon such an assertion as the basis for adopting the STPNOC amendment to the U.S. ABWR DCR. No change was made to the SOC or the language of the final rule as the result of this comment.

Comment:Adoption of the proposed rule also would be consistent with the NRC's desire to provide the vendor whose design is certified with some assurance against “arbitrary amendment” of the certification rule. See 54 FR at 15375 (Apr. 18, 1989). In adopting the AIA rule, the NRC decided to require that certified designs be amended to comply with the AIA rule, either through rulemaking or departure from the certified design in any COL application that references that design. Thus, the proposed amendment would not be arbitrary, and since it would only provide an optional design alternative,it would not impose a mandatory design change (amendment) to the overall certified design. (NINA-5)

NRC Response:The NRC agrees with the comment. This rationale is included in the SOC for the final rule.

Comment:The proposed revision to Paragraph I. “Introduction,” and in the 10th line of proposed revision to Paragraph III.A.2, should be revised by changing “the South Texas Project Nuclear Operating Company” to “STP Nuclear Operating Company.” The STP Nuclear Operating Company is the full official name of STPNOC, the applicant for the amendment. (NINA-7)

NRC Response:The NRC agrees with the comment. This change is included in the SOC and rule language for the final rule.

Comment:Proposed new paragraph III.E should be deleted. This proposed new provision is unnecessary, and is not clear. It is unnecessary because, even without any such new provision, existing paragraph III.B will continue to state that the applicant is required to comply with the GE DCD, except to the limited extent otherwise provided in Appendix A to part 52. As a result, the only changes to the GE DCD that will be authorized by the proposed amendment are the changes described in the STPNOC DCD.

The notice indicates that the purpose of proposed new III.E is to address the situation in which an applicant discovers unintended consequences or unaddressed issues resulting from STPNOC's amendment, and that in such a situation the applicant would be expected to notify the NRC if the situation is not reportable under 10 CFR 21 or sections 52.6, 50.72 or 50.73. 76 FR at 3551, 3rd column. The notice does not explain, however, why there would be a regulatory need for the NRC to receive notice of information that does not meet any of these broad reporting requirements (e.g.,10 CFR 52.6 requires notice to the NRC of information that has “a significant implication for public health and safety or common defense and security”).

Proposed new paragraph III.E is not clear because it uses the undefined term “a design matter which implements the STPNOC certified design option but is not specifically described in the STPNOC DCD.” In particular, NINA is not aware of any definition of “design matter” or of any common understanding of this term. In addition, it is not clear how the proposed paragraph III.E could be interpreted as imposing the reporting requirement that the rulemaking notice describes as its purpose, when it does not even mention notice to the NRC. The purpose of the STPNOC DCD is to identify the necessary changes to the GE DCD to meet 10 CFR 50.150(a). Each such change represents a conflict between the GE DCD and the STPNOC DCD. Uncertainties about the meaning of “design matter” and the level of detail required for an item to be “described specifically” have the potential to lead to compliance issues that are not reasonably related to safety. (NINA-8)

NRC Response:The NRC agrees with the comment that the proposed paragraph III.E is unnecessary. The NRC's intent in proposing the reporting requirement was to ensure that the NRC is made aware of conflicts between the GE DCD and the STPNOC DCD, which may be identified by a referencing COL applicant or holder. Upon consideration of the comment, the NRC agrees that any material conflict identified by the COL applicant or holder would ultimately be brought to the attention of the NRC by virtue of the legally-binding need to comply with both DCDs. If there is a conflict, the referencing COL applicant or holder would seek resolution of the conflict, through: i) either taking or submitting a request for a departure (including a request for exemption as necessary); or ii) submitting a 10 CFR part 2, Subpart H rulemaking petition to amend the DCR in order to resolve the apparent conflict. In addition, reporting may also be required under 10 CFR 50.55(e), 10 CFR 50.72, 10 CFR 50.73, or 10 CFR part 21.

In addition, the NRC agrees with the commenter's discussion of the reporting obligation of the design certification applicants (both the original applicant, as well as the applicant for an amendment which leads to establishment of an option or “branch”). Thus, proposed paragraph III.E does not appear to be needed to ensure necessary reporting of such conflicts identified by either the original applicant or the applicant for an amendment, which leads to establishment of an option or “branch.” For these reasons, the proposed paragraph III.E is not included in the final rule.

Comment:Proposed new Paragraph IV.A.4 should be deleted. The proposed new paragraph would require an application to include information that already is required by 10 CFR § 52.73(a), and does not appear to be necessary for NRC approval of STPNOC's proposed amendment. (NINA-9)

NRC Response:The NRC disagrees with the comment. Section 52.73(a) does not clearly apply to the circumstance of a supplier of an “option” to a design certification. In addition, the “generic” provision of § 52.73(a) does not make clear, in the context of this specific design certification option, that both the STPNOC and Toshiba America Nuclear Energy (TANE) Corporation together are technically qualified to supply the STPNOC option addressing the AIA rule. Hence, the NRC believes that paragraph IV.A.4 is necessary for clarity and to ensure that there is no uncertainty with respect to the scope of the NRC's technical qualification finding with respect to the STPNOC option. For these reasons, the NRC declines to adopt the comment, and no change was made to the final rule.

Comment:Paragraph VI.A. should be revised to read (proposed language in bold):

Existing paragraph VI.A contains a reference to Section V that is not consistent with the proposed revision of Section V, which would renumber paragraph V.A to V.A.1, and add a new paragraph V.A.2. New paragraph V.A.2 refers to the NRC regulations as they will exist on the date of adoption of the proposed amendment. Those regulations will apply to the STPNOC DCD, but not to the GE DCD. The regulations that apply to the GE DCD are those that existed on May 2, 1997. Additionally, since the findings stated in paragraph VI.A form the basis for the resolution of issues in paragraph VI.B, paragraph VI.A should include findings sufficient to form the basis for the proposed provision in paragraph VI.B related to the STPNOC design option. (NINA-10)

NRC Response:The NRC agrees with the commenter's observation that paragraph VI.A does not accurately reflect the scope of the issue resolution accorded the STPNOC option and also does not properly reference the “applicable regulations” under paragraph V. However, the NRC does not agree with the commenter's proposed resolution of the matter. The NRC believes that a more appropriate approach is to define, in separate paragraphs, the scope of issue resolution accorded the original GE DCD, the scope of issue resolution accorded the STPNOC option, and the scope of issue resolution accorded the combination of the GE DCD and the STPNOC option. Accordingly, the final rule includes new paragraphs VI.A.1, VI.A.2, and VI.A.3, which describe the issue finality provided for nuclear safety issues for the GE DCD, for the STPNOC DCD, and for the combination of the GE DCD and the STPNOC DCD.

Comment:Paragraph VI.B.1, as proposed to be revised, should be further revised to delete “other” and insert a comma after “requirements,” so that these revised lines would read,

The reason to delete “other” is that it has no antecedent in the revised sentence, and appears to have been inadvertently retained during drafting. The relevant portion of existing paragraph VI.B.1 is: “nuclear safety issues, except for the generic technical specifications and other operational requirements, associated.” There, “the generic technical specifications” is the antecedent of “other.” Since there is no mention of the generic technical specifications in the proposed provision concerning the AIA amendment, there is nothing for the operational requirements to be “other than.”

The comma should be inserted after “requirements,” to indicate the end of the description of the exception. Without the comma, it would appear that the exception encompasses the information in the AIA FSER, Tier 1 or Tier 2. Inserting the comma will make it clearer that the matters that the Commission considers to be resolved include all nuclear safety issues, except for operational requirements, addressed in the AIA FSER and the other records mentioned in the revised paragraph. (NINA-11)

NRC Response:The NRC agrees with the change proposed by the commenter, for the reasons stated in the comment. The final rule has been revised, consistent with the comment.

Comment:Proposed new paragraph VIII.B.5.d should be revised to read as follows:

These changes would delete the references to the requirements to consider the effect of the departures and to document how the modified design would continue to meet the relevant regulation. Eliminating these references would make Section VIII.B.5.d more consistent with Sections VIII.B.5.b and c, which specify the standards for determining whether a departure requires a license amendment, but do not explicitly impose a requirement for an evaluation or for documentation of its results. Since existing Section X.A.3 already requires an applicant or licensee to prepare and maintain written evaluations which provide the bases for determinations required by Section VIII, there is no need to duplicate these requirements in new Section VIII.B.5.d. Eliminating this duplication will prevent inconsistent interpretations of the requirements for evaluation and documentation associated with new Section VIII.B.5.d. (NINA-12)

NRC Response:The NRC disagrees with the comment. Making the change suggested by the commenter would conflict with the Commission's position on how departures from AIA design features and functional capabilities should be addressed in DCRs, as set forth in the SOC accompanying the AIA final rule (74 FR 28112, June 12, 2009, at 28122):

Further, making the changes suggested by the commenter would effectively eliminate the requirement for the COL applicant or holder to consider the effect of proposed changes to AIA design features or functional capabilities on the original assessment required by 10 CFR 50.150(a). It would also eliminate the requirement to document how the modified design continues to meet the AIA rule. Because the changes proposed by the commenter are in direct conflict with the Commission's policy on implementation of the AIA rule for design certifications and because the commenter did not provide any compelling reasons why the Commission should consider changing its policy, the NRC declines to adopt the proposed changes. No change was made to the SOC or the language of the final rule as the result of this comment.

Comment:The proposed deletion of the current language of paragraph VIII.B.5.d and the substitution of language in the proposed rule should not be adopted. The deletion of the current language in paragraph VIII.B.5.d does not seem appropriate given the context of Paragraph VIII.B. Instead, the new language may be added as proposed, but existing paragraphs VIII.B.5.d and e should be redesignated as paragraphs VIII.B.5.e and f. (GEH-7)

NRC Response:The commenter has misinterpreted the proposed changes to paragraph VIII.B.5 in the proposed rule. The NRC is not proposing to delete the rule text in current paragraph VIII.B.5.d. As stated in the amendatory language for Appendix A to 10 CFR part 52 (76 FR 3559, second column), section VIII, paragraph B.5.b is revised, paragraphs B.5.d. e, and f are redesignated as paragraphs B.5.e, f, and g, respectively, and new paragraph B.5.d is added. As this is what the commenter suggested, no further changes were made to the final rule as a result of this comment.

Comment:In light of the recent events in Japan and the level of water repeatedly exposing the nuclear rods—isn't there a simpler solution to relying on pumps to supply the cooling water? If the plant was mandated to have areservoir of water that could gravity feed water via manual valves to keep the rods covered—diesel backups and battery backups would be a non issue. (Shadis-1)

NRC Response:The NRC staff interprets this comment to be in reference to the certified U.S. ABWR design, which is being amended in the rulemaking. Changes to the U.S. ABWR design that are not directly related to compliance with the NRC's AIA rule, which is the subject of this amendment, are outside of the scope of this rulemaking. With regard to the recent events at the Fukushima Daiichi Nuclear Plant in Japan, the NRC continues to believe that its regulatory framework and requirements provide for a rigorous and comprehensive license review process that examines the full extent of siting, system design, and operation of nuclear power plants. The recommendations of the NRC's task force that was established to examine lessons learned from the events in Japan will certainly be taken into account in the performance of the NRC's ongoing and future reviews of applications, as appropriate. Further, the NRC has the necessary regulatory tools to require changes to existing licenses or applications for certification should the NRC determine that changes are necessary. For example, any new requirements that may result from the task force's recommendations could be implemented in accordance with existing NRC policies that may involve rulemaking or backfitting. If the commenter believes that changes should be made to the U.S. ABWR-certified design, the proper vehicle for proposing such changes is to submit a petition for rulemaking under 10 CFR 2.802, “Petition for rulemaking.” No change was made to the final rule as a result of this comment.

STPNOC requested changes to the U.S. ABWR design in order to comply with the AIA rule, 10 CFR 50.150. This amendment takes credit for the design features and their functional capability(ies) to maintain core cooling and spent fuel integrity following a strike of a large commercial aircraft. These design features and their functional capability(ies) are summarized below:

• The primary containment structure protects the safety systems inside from impact.

• The location and design of the control building structure protects the north wall of the reactor building from impact.

• The location and design of the turbine building structure protects the north wall of the control building and reactor building from impact.

• The location and design of the reactor building structure protects the south wall of the control building and primary containment from impact.

• The location and design of the spent fuel pool and its supporting structure protect the spent fuel pool from impact.

• The physical separation of the Class 1E emergency diesel generators and an independent power supply prevent the loss of all electrical power to core cooling systems.

• The location and design of 3-hour fire barriers, including fire doors and watertight doors inside the reactor building and control building protect credited core cooling equipment from fire damage.

• The physical separation and design of the emergency core cooling system ensure core cooling.

• The design of the alternate feedwater injection system ensures core cooling.

• The design of the containment overpressure protection system ensures core cooling.

The acceptance criteria in 10 CFR 50.150(a)(1) are (1) The reactor core will remain cooled or the containment will remain intact, and (2) spent fuel pool cooling or spent fuel pool integrity is maintained. The applicant states that it has met 10 CFR 50.150(a)(1) by maintaining both core cooling and spent fuel pool integrity.

The applicant proposes to maintain core cooling using the safety-related and non-safety-related systems, which are specifically designed to ensure that the reactor can be shutdown and decay heat can be removed adequately from the reactor core. Some of this equipment is located (1) inside of the primary containment, (2) inside the reactor building, and (3) well away from the power block. Locations inside the primary containment are protected from structural, shock and fire damage by the design of the primary containment structure as well as the reactor building structure that limits the penetration of a large, commercial aircraft so that the primary containment is not perforated. Equipment inside the reactor building is protected by structural design features of the reactor building itself and by structures adjacent to the reactor building, including the turbine building and the control building. In addition, fire barriers are designed and located in the reactor building and control building to limit the spread of fire inside the buildings.

The applicant proposes to satisfy the spent fuel pool integrity acceptance criterion in 10 CFR 50.150(a)(1) due to the location and design of the spent fuel pool and its support structure. These key design features protect the structure from impact by a large commercial aircraft.

The NRC's review of the applicant's proposed amendment to the U.S. ABWR design certification confirmed that the applicant has complied with 10 CFR 50.150. Specifically, the NRC confirmed that the applicant adequately described key AIA design features and functional capabilities in accordance with the AIA rule and conducted an assessment reasonably formulated to identify design features and functional capabilities to show, with reduced use of operator action, that the facility can withstand the effects of an aircraft impact. In addition, the NRC determined that there will be no adverse impacts from complying with the requirements for consideration of aircraft impacts on conclusions reached by the NRC in its review of the original U.S. ABWR design certification. Finally, the NRC determined that the STPNOC and its contractors are technically qualified to perform the design work associated with the amended portion of the U.S. ABWR design represented by the STPNOC's application and to supply the amended portion of the U.S. ABWR design.

The STPNOC's amendment to the U.S. ABWR design has achieved the Commission's objectives of enhanced public health and safety and enhanced common defense and security through improvement of the facility's inherent robustness at the design stage.

In the 1989 10 CFR part 52 rulemaking, the Commission decided to approve standard reactor designs by rulemaking, as opposed to licensing, and stated that a DCR “does not, strictly speaking, belong to the designer” (54 FR 15327; April 18, 1989, at 15375, third column). Nonetheless, the Commission implicitly recognized the need to protect the commercial and proprietary interests of the original applicant who intends to supply the certified design, should there be another entity who intends to use the design in some fashion without approval or compensation to the original design certification applicant.Id.The protection was provided, in part, through the decision of the Commissionto protect “proprietary information”1 developed by the original design certification applicant, as well as by several other regulatory provisions in both 10 CFR part 52 and 10 CFR part 170.

Based upon the licensing experience with operating nuclear power plants, the Commission understood that portions of proposed design certifications, primarily in the area of fuel design, would likely be regarded as proprietary information (trade secrets) by future design certification applicants. To ensure that design certification applicants would not be adversely affected in their capability to protect this proprietary information as a result of the NRC's decision to approve designs by rulemaking rather than licensing, the Commission adopted 10 CFR 52.51(c), which stated, in relevant part, that notwithstanding anything in 10 CFR 2.390 to the contrary, proprietary information will be protected in the same manner and to the same extent as proprietary information submitted in connection with applications for licenses, provided that the design certification shall be published in Chapter I of title 10. Reference: 10 CFR 52.51(c) (1990, as originally promulgated in the 1989 10 CFR part 52 rulemaking,see54 FR 15372, April 18, 1989, at 15390).2

Having protected proprietary information developed by the design certification applicant, the Commission then adopted several additional rulemaking provisions in 10 CFR part 52 providing additional regulatory protection to the original design certification applicant against unfair use of the design certification by other suppliers. The Commission required the (original) design certification applicant, as well as the applicant for renewal of the design certification, to include in the application a level of design information sufficient to enable the Commission to judge the applicant's proposed means of assuring that construction conforms to the design and to reach a final conclusion on all safety questions associated with the design before the certification is granted. The information submitted for a design certification must include performance requirements and design information sufficiently detailed to permit the preparation of acceptance and inspection requirements by the NRC, and procurement specifications and construction and installation specifications by an applicant. Reference: 10 CFR 52.47(a)(2) (1990, as originally promulgated in the 1989 10 CFR part 52 rulemaking,see54 FR 15372; April 18, 1989; at 15390);3 10 CFR 52.57(a).

The Commission also adopted 10 CFR 52.63(c), requiring the applicant referencing the design certification to provide the information required to be developed by 10 CFR 52.47(a)(2) or its equivalent. It stated that the Commission will require, before granting a construction permit, combined license, operating license, or manufacturing license which references a design certification rule, that information normally contained in certain procurement specifications and construction and installation specifications be completed and available for audit if the information is necessary for the Commission to make its safety determinations, including the determination that the application is consistent with the certification information. This information may be acquired by appropriate arrangements with the design certification applicant. Reference: 10 CFR 52.63(c) (1990). By requiring a level of detailed information supporting the certified design to be developed and available for NRC audit at renewal and when the design was referenced for use, the Commission ensured (among other things) that entities who were not the original design certification applicant would not have an inordinate financial advantage when either supplying the certified design to a referencing user, or referencing the certified design in an application.

In adopting 10 CFR 52.73, the Commission also relied on its statutory authority under Section 182 of the Atomic Energy Act of 1954 (AEA), as amended, to make a technical qualifications finding. Section 52.73 effectively prohibits a COL applicant from referencing a certified design unless the entity that actually supplies the design to the referencing applicant is technically qualified to supply the certified design. It stated that in the absence of a demonstration that an entity other than the one originally sponsoring and obtaining a design certification is qualified to supply such design, the Commission will entertain an application for a combined license which references a standard design certification issued under Subpart B only if the entity that sponsored and obtained the certification supplies the certified design for the applicant's use. Reference: 10 CFR 52.73 (1990, as originally promulgated in the 1989 10 CFR part 52 rulemaking,see54 FR 15372; April 18, 1989, at 15393).4

Apart from the provisions discussed previously, the Commission also indicated in the SOC for the 1989 10 CFR part 52 rulemaking that the finality provisions in 10 CFR 52.63 provided some protection against arbitrary amendment or rescission of the design certification. Any proposed rescission or amendment of the design certification must be accomplished under notice and comment rulemaking procedures, as required by 10 CFR 52.63(a)(1). The original applicant would, accordingly, have the opportunity to comment on any proposed change to the design, including those changes initiated by other entities.

Finally, the Commission adopted, as part of the 1989 rulemaking, conforming amendments to 10 CFR 170.12(d) and (e). Under these provisions, entities other than the original design certification applicant who provide either the renewed or original certified design to a referencing applicant for a construction permit, operating license or COL must pay the applicable installment of the deferred NRC fee5 for review of the original or renewed design certification.

After the 1989 rulemaking, in each of the four existing DCRs in 10 CFR part 52, appendices A through D, the Commission adopted an additional provision serving to protect the proprietary information and safeguards information (SGI) developed by the original design certification applicant. Paragraph IV.A.3 of each rule required an applicant referencing the DCR to“physically include in the plant-specific DCD proprietary information and safeguards information referenced in the DCD.” The Commission's view was that by “physically” including the proprietary information and SGI developed by the original DCR applicant in the application, this would be demonstrative of the referencing applicant's rights to use that information; otherwise, the referencing applicant could provide the equivalent information (62 FR 25800; May 12, 1997, at 25818, third column).

In 2007, at the request of the Nuclear Energy Institute and other industry commenters, the word, “physically” was removed from paragraph IV of each of the four DCRs, to allow the DCR applicant more flexibility in how the proprietary information and SGI are included in the application referencing the DCR (72 FR 49352; August 28, 2007, at 49363-49365). This change was not intended to represent a retreat from the Commission's position that the referencing applicant has the appropriate commercial rights to reference the proprietary and SGI information or its equivalent. However, the NRC acknowledges that under the current language of paragraph IV.A.3, the NRC must do more to verify that the referencing applicant has the appropriate commercial rights to the proprietary and SGI information developed by the originating applicant (unless, of course, the referencing applicant indicates that it is supplying “equivalent” information).

The Commission did not describe in the 1989 rulemaking the particular regulatory approach and structure to be used for a DCR with two or more suppliers of the certified design. In the years after the 1989 10 CFR part 52 rulemaking, the Commission did not need to address the circumstance of multiple suppliers of the same certified design (multiple suppliers) to an end user.6 However, with the filing of the U.S. ABWR design certification amendment request by the STPNOC, as well as Toshiba's March 3, 2010, letter to the NRC stating that it intends to seek renewal of the U.S. ABWR design certification (ADAMS Accession No. ML100710026), the NRC must now determine the regulatory approach and structure for the amendment (and, for completeness, the renewal) of a certified design where there will be multiple suppliers.

When the NRC was advised of the STPNOC's intent to submit an amendment of the U.S. ABWR design certification, it began a process of identifying and considering possible regulatory alternatives, with the goal of identifying a single regulatory approach and structure to be used for all design certifications with multiple suppliers. The NRC considered three alternatives which it could reasonably select:

1.Separate rules:Develop separate DCRs for each supplier.

2.Branches:Develop one DCR with multiple branches, with each branch describing a complete design to be supplied by each supplier.

3.Options:Develop one DCR with options, with each option describing a portion of the certified design which may be selected by the user as an option to the original “reference” certified design.

Table 1 presents the NRC's current views with respect to the differences between these three alternatives.

In light of the Commission's past practice of protecting the proprietary information and legitimate commercial interests of the original design certification applicant wherever consistent with other applicable law, the NRC believes that it should consider that practice when evaluating possible alternatives for the approach and structure of a DCR with multiple suppliers. Upon consideration, the NRC concludes that the “branches” alternative should be adopted as the general approach for all renewals of design certifications and for major design certification amendments. The “branches” alternative: (1) Is consistent with all applicable law, (2) protects the proprietary information and legitimate commercial interests of the original design certification applicant (as well as the additional suppliers), and (3) meets the NRC's regulatory concerns. Each of these considerations is discussed separately below.

There is no statutory or other legal prohibition, explicit or otherwise, against use of the “branches” alternative in the AEA, the Administrative Procedure Act, the National Technology Transfer and Advancement Act, or other statutes applicable to the NRC. Design certification rulemaking is not specifically addressed in the AEA. The AEA provisions do not appear to circumscribe or prohibit the NRC's use of a regulatory approach of approving multiple suppliers of a set of closely-related certified designs in a single codified rule.

Moreover, nothing in 10 CFR part 52 compels the use of a particular alternative for addressing multiple suppliers. As discussed previously, the Commission contemplated that multiple suppliers could supply the same certified design from the time it first adopted the concept of design certification by rulemaking. However, the Commission did not mandate any specific regulatory approach for accommodating multiple suppliers of a certified design. Those provisions intended to protect proprietary information and the commercial interests of each supplier do not mandate any specific approach for accommodating multiple suppliers, and do not foreclose the use of the “branches” alternative.

The “branches” alternative fully protects the proprietary information and legitimate commercial interests of all suppliers. Under the “branches” alternative, each supplier is responsible for creating and maintaining its own DCD (including the non-public version of the DCD containing sensitive unclassified non-safeguards information (SUNSI),i.e.,proprietary information, and SGI developed by the supplier). Because each DCD is self-contained, the NRC does not foresee any circumstance that would require the NRC to provide the non-public DCD (or information supporting its DCD) prepared and supported by the original design certification applicant to the new supplier, or to provide the non-public DCD prepared and supported by the new supplier to the original applicant. Nor does the use of the “branches” alternative affect the legal issues associated with providing access to SUNSI (including proprietary information) and SGI to members of the public to facilitate public comment on a proposed design certification rulemaking adding a new supplier and branch.

The “branches” alternative has no effect on the legal applicability, or on the NRC's implementation of the 10 CFR parts 52 and 170 provisions discussed previously, which are directed at protecting the proprietary information and commercial interests of the original design applicant. These provisions, properly applied, should also protect the proprietary information and interests of all other suppliers of a subsequently-approved “branch.” Thus, the “branches” alternative provides all suppliers all of the protection of their proprietary information and commercialinterests, which the Commission intended to be afforded to these suppliers.

A rulemaking adopting a new “branch” (a “‘branch’ rulemaking”) would not disturb the issue resolution and finality accorded to the original certified design (as amended in any subsequent rulemakings), or to the certified design of any other suppliers in any previously approved branches. Nor would a “branch” rulemaking necessarily require the Commission to consider and address, in the final rulemaking adding the new “branch,” comments on the existing certified design. The NRC believes that each “branch” rulemaking is limited to adding the new “branch,” together with requirements and conditions specific to the new “branch.” Therefore, the NRC asserts that: (1) The nuclear safety and other associated matters (severe accident mitigation design alternatives (SAMDAs)) resolved in the preceding design certification rulemaking(s) continue to be effective and are not being re-examined in the “branch” rulemaking; and (2) comments on the existing certified design(s) are out-of-scope and should not be considered in the “branch” rulemaking.7

The “branches” alternative would not require the original supplier (or indeed any previously-approved supplier) of the certified design to modify their DCD or incur other costs as part of the “branch” rulemaking. Hence, there is no financial impact upon the pre-existing suppliers. The NRC has not identified any credible argument that could be raised by the original design certification applicant that an NRC decision allowing a new supplier to supply the certified design could be the proximate cause of any diminution in the commercial value of the original applicant's certified design. The concept of multiple suppliers of a single certified design is inherent in the concept of design certification by rulemaking. The Commission anticipated multiple suppliers of a single design certification when it was considering the regulatory approach for certification (rulemaking versus licensing), and afforded protection to the original applicant by various provisions of 10 CFR part 52. This protection was embodied in provisions included in each of the DCRs issued to date, and these provisions would continue to be included in future DCRs. Hence, no supplier—including the original design certification applicant—may reasonably claim that the approval of a new “branch” constitutes an unwarranted diminution in the commercial value of the certified design which it sponsored.

The NRC believes that any alternative and structure for a DCR with multiple suppliers must meet the following regulatory concerns. Any rule amendment (or renewal) which introduces a new supplier must minimize the possibility of re-opening the safety and regulatory conclusions reached by the NRC with respect to previously approved aspects of the design and supplier(s). In addition, if the new supplier is proposing changes to the actual certified design, then the substitute or new portions of the design,8 must to the maximum extent practical, be attributable solely to the “sponsoring” supplier, and therefore distinguishable from the “common” portions of the design which each supplier must support (the “branches” alternative adopting the premise that the supplier must be technically qualified to supply all of the certified design, including the “common” portions).9 The regulatory approach and structure must reflect a sound basis for allowing the NRC to make a technical qualifications finding with respect to the supplier. Finally, the approach and structure must allow for imposition of applicable NRC requirements on each supplier, and the legal ability of the NRC to undertake enforcement and regulatory action on each supplier.

The “branches” alternative meets all of these regulatory concerns. This alternative creates a separate branch for the design to be supplied by the new supplier in the rule and requires the new certified design to be described in a separate DCD created and supported by the new supplier. Therefore there is a strong basis for arguing that the certified design(s) already approved by the NRC are not affected and that the issue finality accorded to those certified designs (as controlled by 10 CFR 52.63) continues. Hence, in any rulemaking approving a new branch, the NRC need not consider any comments seeking changes to the existing certified design.

The use of a separate DCD to describe the new certified design, by its very nature, serves to (1) distinguish any substitute or new portions of the certified design sponsored only by the new supplier and (2) make clear that the substitute or new portions are being sponsored solely by the new supplier (because the other branches do not contain any reference to or mention of the substitute or new portions of the design sponsored by the new supplier). The use of a separate DCD describing the entire design is also consistent with the NRC's position that it must conduct a technical qualifications review of the new supplier and make a finding that the new supplier is technically qualified to provide the entire certified design. The NRC's recommendation to use a separate DCD, coupled with a structure of the DCR language (as codified in one of the appendices to 10 CFR part 52) that applies common regulatory requirements to all suppliers, allows for the NRC to take regulatory action against any supplier without regard to whether the supplier was the original design certification applicant.

For these reasons, the NRC concluded that its regulatory concerns are met under the “branches” alternative. However, during discussions with the STPNOC about the processing of its request to amend the U.S. ABWR design certification, the STPNOC proposed that the NRC adopt a process similar to the “options” approach for the STPNOC U.S. ABWR amendment.

The STPNOC request was based upon a number of factors that the NRC considered to be unique to the STPNOC's situation. First, under the “branches” approach, the STPNOC would have to supply the U.S. ABWR proprietary information (or its equivalent) which was originally developed by GE and approved by the NRC in the original U.S. ABWR design certification rulemaking. While the STPNOC has contractual rights from GEH to use the GE-developed U.S. ABWR proprietary information for STP Units 3 and 4, it does not have the right to supply the GE-developed U.S. ABWR proprietary information to other companies in connection with any other application for a COL that references the certified U.S. ABWR. In addition, neither the STPNOC nor its contractors would be in a position to provide complete information to substitute for the GE-developed U.S. ABWR proprietary information in time to support the schedule for issuance of the COLs for STP Units 3 and 4, should they be approved by the NRC. Second, the STPNOC indicated that some portion of the GE-developed U.S. ABWR proprietary information relates to fuel design, and the STPNOC does not intend to use the GE fuel design for initial operation of STP Units 3 and 4. Rather, the STPNOC intends to use another fuel design and obtain NRC approval via an application for a COL amendment (i.e.,after the issuance of the COLs). The GE-developed fuel design also would not be used to operate any of the possible six U.S. ABWRs that could be developed under the agreement between Toshiba and NINA, which has the right to develop four U.S. ABWRs in addition to STP Units 3 and 4. Finally, the STPNOC indicated that the “options” approach would not be used at renewal; the renewal application Toshiba was developing would reflect the use of the “branches” alternative (i.e.,Toshiba would be seeking approval of and supplying the entire U.S. ABWR design at renewal, including replacement proprietary information). Based on these factors, the STPNOC requested that it be considered the supplier for only that portion of the U.S. ABWR design certification necessary to comply with the AIA, and which is the subject of its amendment request.

Upon consideration, the NRC has decided to use the “options” approach for the STPNOC amendment of the U.S. ABWR design certification, based on the following considerations. As with the “branches” alternative, there is no statute or NRC regulation prohibiting the use of the “options” approach, nor is there any provision which prohibits the concurrent use of both alternatives—so long as the NRC is able to articulate a basis for doing so. Moreover, all of the NRC's safety and regulatory objectives are met. The STPNOC is providing sufficient information to determine its technical qualifications10 to supply the STPNOC-sponsored amendments addressing the AIA rule to third party users (i.e.,users other than the STPNOC itself). In addition, the NRC believes that there are no insurmountable issues in requiring the user (in most cases, the COL applicant referencing the U.S. ABWR and the STPNOC option) to prepare a single DCD integrating information from both the DCD developed by GE and the DCD developed by the STPNOC. The “options” approach also avoids or addresses all of the STPNOC's concerns with the use of the “branches” alternative for its request to amend the U.S. ABWR. The STPNOC does not have to develop and submit to the NRC information equivalent to the proprietary information developed by GE to support the STPNOC amendment application. Nor does the STPNOC have to demonstrate its technical qualifications to supply the entire U.S. ABWR-certified design; it has already demonstrated its technical qualifications to supply the STPNOC option. Toshiba has submitted an application for renewal of the U.S. ABWR design certification that is consistent with the “branches” approach. Thus, the STPNOC option will have a limited period in which it can be referenced by a future COL applicant, that is, until the renewal of the U.S. ABWR design certification. Finally, the “options” approach fully protects the legitimate proprietary and commercial interests of GE in the original U.S. ABWR design certification.

Based on these considerations, the NRC is adopting the “options” alternative for the STPNOC amendment of the U.S. ABWR design certification, but will regard the “branches” alternative as the default for all renewals of design certifications and for major design certification amendments. Under the “options” approach, applicants seeking amendments to already certified designs must be found to be qualified to supply the limited scope of the revisions they seek. If the NRC receives other limited-scope design certification amendments (similar in scope to the STPNOC amendment request), it will consider whether the “branches” approach or the “options” approach offers the most effective and efficient regulatory option at that time based on the scope of the amendment and the specific circumstances associated with the particular application.

By implementing the “options” approach for the STPNOC U.S. ABWR amendment, a COL applicant that references the U.S. ABWR standard design certification can meet the requirements of the AIA rule by referencing both the GE DCD and the STPNOC DCD or by referencing only the GE DCD and addressing the requirements of the AIA rule separately in its COL application.

I. Background

The Fair Debt Collection Practices Act (FDCPA) was enacted to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent state action to protect consumers against debt collection abuses.1 Prior to July 21, 2011, the FDCPA provided that the Federal Trade Commission (Commission) must by regulation exempt from the FDCPA requirements any class of debt collection practices within any state if the Commission determines that under the law of that state that class of debt collection practices is subject to requirements substantially similar to those imposed by the FDCPA, and that there is adequate provision for enforcement.2 Historically, procedures that states may use to apply for this exemption have been implemented by the Commission in 16 CFR Part 901. Under the FDCPA, the Commission did not have general authority to promulgate trade regulations or other regulations with respect to the collection of debts by debt collectors as defined in the FDCPA.

The Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act)3 amended a number of consumer financial protection laws, including the FDCPA. The Dodd-Frank Act transferred rulemaking authority related to the state exemptions under the FDCPA to the Bureau of Consumer Financial Protection (Bureau), effective July 21, 2011.4 Seesections 1061 and 1089 of the Dodd-Frank Act.5 Pursuant to the Dodd-Frank Act and the FDCPA, as amended, the Bureau is publishing for public comment an interim final rule establishing a new Regulation F (Fair Debt Collection Practices Act), 12 CFR Part 1006, implementing the FDCPA.

The interim final rule substantially duplicates the Commission's rule related to state exemptions under the FDCPA as the Bureau's new Regulation F, 12 CFR Part 1006, making only certain non-substantive, technical, formatting, and stylistic changes. Subpart A of Regulation F contains the rule related to state exemptions under the FDCPA. Subpart B is reserved for any future rulemaking by the Bureau under the FDCPA. To minimize any potential confusion, other than republishing the Commission's rule in 16 CFR Part 901 with the Bureau's part number, the Bureau is preserving where possible the numbering the Commission used in 16 CFR Part 901. Additionally, while this interim final rule generally incorporates the Commission's existing regulatory text, the rule has been edited as necessary to reflect nomenclature and other technical amendments required by the Dodd-Frank Act. Notably, this interim final rule does not impose any new substantive obligations on regulated entities.

Footnotes 1 and 2 in the Commission's rule (16 CFR 901.2) that provide guidance on the meaning of “state law” and “class of debt collection practices” respectively were moved to a newly-created subsection for definitions in § 1006.1. Footnote 3 in the Commission's rule (16 CFR 901.4) was moved to newly-created paragraph (a)(2) in § 1006.4, and other text in that section was renumbered accordingly. In § 1006.5, an address in the Commission's rule (16 CFR 901.5) is replaced with an address for the Bureau, indicating where interested parties may go to review applications submitted by states for exemptions from the FDCPA. In addition, the Commission's rule (16 CFR 901.6) indicated that the Commission would inform the appropriate official of any state that receives such an exemption of any subsequent amendments of the FDCPA (including the Commission's formal advisory opinions, and informal staff interpretations issued by an authorized official or employee of the Commission). In § 1006.6, the Bureau indicates that it will inform the appropriate official of any state that receives such an exemption of any subsequent amendments to the FDCPA or Regulation F. The Bureau anticipates that it will adopt any additional guidance on the FDCPA as part of Regulation F, instead of through formal advisory opinions or informal staff interpretations. In addition, references to the Commission and its administrative structure have been replaced with references to the Bureau. Conforming edits have been made to internal cross-references. Conforming edits have also been made to reflect the scope of the Bureau's authority pursuant to the FDCPA, as amended by the Dodd-Frank Act.

The Bureau is issuing this interim final rule pursuant to its authority under the FDCPA and the Dodd-Frank Act. Effective July 21, 2011, section 1061 of the Dodd-Frank Act transferred to the Bureau all of the Commission's authority under an enumerated consumer law to prescribe rules, issue guidelines, conduct studies, or issue reports.6 The FDCPA is an enumerated consumer law.7 Accordingly, effective July 21, 2011, the authority of the Commission to issue regulations related to state exemptions under the FDCPA transferred to the Bureau.8

The FDCPA, as amended, requires that the Bureau by regulation exempt from the requirements of the FDCPA any class of debt collection practices within any state if the Bureau determines that under the law of that state that class of debt collection practices is subject to requirements substantially similar to those imposed by the FDCPA, and that there is adequate provision for enforcement.9

The Administrative Procedure Act (APA)10 generally requires public notice and an opportunity to comment before promulgation of substantive regulations.11 The APA provides exceptions to notice-and-comment procedures, however, where an agency for good cause finds that such procedures are impracticable, unnecessary, or contrary to the public interest or when a rulemaking relates to agency organization, procedure, and practice.12 The Bureau finds that there is good cause to conclude that providing notice and opportunity for comment would be unnecessary and contrary to the public interest under these circumstances. In addition, substantially all the changes made by this interim final rule, which were necessitated by the Dodd-Frank Act's transfer of FDCPA authority from the Commission to the Bureau, relate to agency organization, procedure, and practice and are thus exempt from the APA's notice-and-comment requirements.

The Bureau's good cause findings are based on the following considerations. As an initial matter, the Commission's existing regulation was a result of notice-and-comment rulemaking to the extent required. Moreover, the interim final rule published today does not impose any new, substantive obligations on regulated entities. Rather, the interim final rule makes only non-substantive, technical changes to the existing text of the regulation, such as changing internal cross-references, replacing appropriatenomenclature to reflect the transfer of authority to the Bureau, and changing the address for reviewing applications submitted by state officials and notices. Given the technical nature of these changes, and the fact that the interim final rule does not impose any additional substantive requirements on covered entities, an opportunity for prior public comment is unnecessary. In addition, recodifying the Commission's regulation to reflect the transfer of authority to the Bureau will help facilitate compliance with FDCPA and its implementing regulations, and the new regulations will help reduce uncertainty the applicable regulatory framework. Using notice-and-comment procedures would delay this process and thus be contrary to the public interest.

The APA generally requires that rules be published not less than 30 days before their effective dates.See5 U.S.C. 553(d). As with the notice and comment requirement, however, the APA allows an exception when “otherwise provided by the agency for good cause found and published with the rule.” 5 U.S.C. 553(d)(3). The Bureau finds that there is good cause for providing less than 30 days notice here. A delayed effective date would harm consumers and regulated entities by needlessly perpetuating discrepancies between the amended statutory text and the implementing regulation, thereby hindering compliance and prolonging uncertainty regarding the applicable regulatory framework.13

In addition, delaying the effective date of the interim final rule for 30 days would provide no practical benefit to regulated entities in this context and in fact could operate to their detriment. As discussed above, the interim final rule published today does not impose any new, substantive obligations on regulated entities. Instead, the rule makes only non-substantive, technical changes to the existing text of the regulation. Thus, regulated entities that are already in compliance with the existing rules will not need to modify business practices as a result of this rule.

In developing the interim final rule, the Bureau has conducted an analysis of potential benefits, costs, and impacts.14 The Bureau believes that the interim final rule will benefit consumers and covered persons by updating and recodifying the Commission's rules in 16 CFR Part 901 to reflect the transfer of authority to the Bureau and certain other changes mandated by the Dodd-Frank Act. This will help reduce any uncertainty regarding the applicable regulatory framework. The interim final rule will not impose any new substantive obligations on consumers or covered persons and is not expected to have any impact on consumers' access to consumer financial products and services.

The interim final rule will have no unique impact on depository institutions or credit unions with $10 billion or less in assets as described in section 1026(a) of the Dodd-Frank Act. Also, the interim final rule will have no unique impact on rural consumers.

In undertaking the process of recodifying the Commission's rules in 16 CFR Part 901, as well as regulations implementing thirteen other existing consumer financial laws,15 the Bureau consulted the Federal Deposit Insurance Corporation, the Office of the Comptroller of the Currency, the National Credit Union Administration, the Board of Governors of the Federal Reserve System, the Federal Trade Commission, and the Department of Housing and Urban Development, including with respect to consistency with any prudential, market or systemic objectives that may be administered by such agencies.16 The Bureau also has consulted with the Office of Management and Budget for technical assistance. The Bureau expects to have further consultations with the appropriate Federal agencies during the comment period.

Although notice and comment rulemaking procedures are not required, the Bureau invites comments on this notice. Commenters are specifically encouraged to identify any technical issues raised by the rule. The Bureau is also seeking comment in response to a notice published at 76 FR 75825 (Dec. 5, 2011) concerning its efforts to identify priorities for streamlining regulations that it has inherited from other Federal agencies to address provisions that are outdated, unduly burdensome, or unnecessary.

The Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, requires each agency to consider the potential impact of its regulations on small entities, including small businesses, small governmental units, and small not-for-profit organizations.17 The RFA generally requires an agency to conduct an initial regulatory flexibility analysis (IRFA) and a final regulatory flexibility analysis (FRFA) of any rule subject to notice-and-comment rulemaking requirements, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities.18 The Bureau also is subject to certain additional procedures under the RFA involving the convening of a panel to consult with small business representatives prior to proposing a rule for which an IRFA is required.19

The IRFA and FRFA requirements described above apply only where a notice of proposed rulemaking isrequired,20 and the panel requirement applies only when a rulemaking requires an IRFA.21 As discussed above in part III, a notice of proposed rulemaking is not required for this rulemaking.

In addition, as discussed above, the rule imposes no new, substantive obligations on entities subject to Regulation F. Accordingly, the undersigned certifies that this interim final rule will not have a significant economic impact on a substantial number of small entities.

The Bureau has determined that this interim final rule does not impose any new recordkeeping or reporting requirements on covered entities or members of the public that would be collections of information requiring approval under 44 U.S.C. 3501,et seq.

For the reasons set forth above, the Bureau of Consumer Financial Protection adds part 1006 to Chapter X in Title 12 of the Code of Federal Regulations to read as follows:

I. Background

The Federal Deposit Insurance Act (FDIA),1 among other things, establishes the Federal Deposit Insurance Corporation which must insure the deposits of banks and savings associations entitled to the benefits of insurance under the FDIA. Not all depository institutions are required to maintain Federal deposit insurance. The FDIA requires that depository institutions lacking Federal deposit insurance make certain insurance-related disclosures in periodic statements, account records, locations where deposits are normally received, and advertising.2 The FDIA also requires such depository institutions to obtain a written acknowledgment from depositors regarding the institution's lack of Federal deposit insurance.3 Prior to July 21, 2011, the FDIA required that the Federal Trade Commission (Commission), by regulation or order, prescribe the manner and content of these disclosures.

Historically, the disclosure requirements required by the FDIA for depository institutions lacking Federal deposit insurance have been implemented by the Commission in 16 CFR Part 320. The Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act)4 amended a number of consumer financial protection laws, including the FDIA. In addition to various substantive amendments, the Dodd-Frank Act transferred rulemaking authority for implementing the disclosure requirements for depository institutions lacking Federal deposit insurance, as described above, to the Bureau of Consumer Financial Protection (Bureau), effective July21, 2011.5 Seesections 1061 and 1090 of the Dodd-Frank Act. Pursuant to the Dodd-Frank Act and the FDIA, as amended, the Bureau is publishing for public comment an interim final rule establishing a new Regulation I (Disclosure Requirements for Depository Institutions Lacking Federal Deposit Insurance), 12 CFR Part 1009, implementing the disclosure requirements in the FDIA for depository institutions lacking Federal deposit insurance.

The interim final rule substantially duplicates the Commission's rule in 16 CFR Part 320 as the Bureau's new Regulation I, 12 CFR Part 1009, making only certain non-substantive, technical, formatting, and stylistic changes. To minimize any potential confusion, other than republishing the Commission's existing rule in 16 CFR Part 320 with the Bureau's part number, the Bureau is preserving where possible the numbering the Commission used in its existing rule. Additionally, while this interim final rule generally incorporates the Commission's existing regulatorytext, the rule has been edited as necessary to reflect nomenclature and other technical amendments required by the Dodd-Frank Act. Notably, this interim final rule does not impose any new substantive obligations on regulated entities.

A paragraph that was not enumerated in the Commission's rule (16 CFR 320.5) is enumerated as paragraph (c)(2) in § 1009.5, and other provisions in § 1009.5 are renumbered accordingly. In § 1009.7, the provision specifying enforcement authority for the requirements set forth in Regulation I is revised from that in the Commission's rule (16 CFR 320.7) to reflect changes made to the enforcement authority by the Dodd-Frank Act. In addition, references to the Commission and its administrative structure have been replaced with references to the Bureau. Conforming edits have been made to internal cross-references. Conforming edits have also been made to reflect the scope of the Bureau's authority pursuant to the FDIA to issue implementing regulations for disclosures required of depository institutions lacking Federal deposit insurance, as amended by the Dodd-Frank Act.

The Bureau is issuing this interim final rule pursuant to its authority under the FDIA and the Dodd-Frank Act. Effective July 21, 2011, section 1061 of the Dodd-Frank Act transferred to the Bureau all of the Commission's authority under an enumerated consumer law to prescribe rules, issues guidelines, conduct studies, or issue reports.6 Section 43(b)-(f) of the FDIA is an enumerated consumer law.7 Accordingly, effective July 21, 2011, the authority of the Commission to issue regulations pursuant to section 43(b)-(f) of the FDIA transferred to the Bureau.8

Section 43(c) of the FDIA, as amended, provides that the Bureau, by regulation or order, must prescribe the manner and content of disclosures required under section 43 of the FDIA that must be given by depository institutions lacking Federal depository insurance.9 In addition, section 43(d) of the FDIA, as amended, authorizes the Bureau, by regulation or order, to make exceptions to certain disclosure requirements set forth in section 43(b) of the FDIA for any depository institution that, within the United States, does not receive initial deposits of less than an amount equal to the standard maximum deposit insurance amount from individuals who are citizens or residents of the United States, other than money received in connection with any draft or similar instrument issued to transmit money.10

The Administrative Procedure Act (APA)11 generally requires public notice and an opportunity to comment before promulgation of substantive regulations.12 The APA provides exceptions to notice-and-comment procedures, however, where an agency for good cause finds that such procedures are impracticable, unnecessary, or contrary to the public interest or when a rulemaking relates to agency organization, procedure, and practice.13 The Bureau finds that there is good cause to conclude that providing notice and opportunity for comment would be unnecessary and contrary to the public interest under these circumstances. In addition, substantially all the changes made by this interim final rule, which were necessitated by the Dodd-Frank Act's transfer of FDIA authority under section 43(c) and (d) from the Commission to the Bureau, relate to agency organization, procedure, and practice and are thus exempt from the APA's notice-and-comment requirements.

The Bureau's good cause findings are based on the following considerations. As an initial matter, the Commission's existing regulation was a result of notice-and-comment rulemaking to the extent required. Moreover, the interim final rule published today does not impose any new, substantive obligations on regulated entities. Rather, the interim final rule only makes non-substantive, technical changes to the existing text of the regulation, such as renumbering, changing internal cross-references, and replacing appropriate nomenclature to reflect the transfer of authority to the Bureau. Given the technical nature of these changes, and the fact that the interim final rule does not impose any additional substantive requirements on covered entities, an opportunity for prior public comment is unnecessary. In addition, recodifying the Commission's regulation to reflect the transfer of authority to the Bureau will help facilitate compliance with FDIA and its implementing regulations, and the new regulations will help reduce uncertainty regarding the applicable regulatory framework. Using notice-and-comment procedures would delay this process and thus be contrary to the public interest.

The APA generally requires that rules be published not less than 30 days before their effective dates.See5 U.S.C. 553(d). As with the notice and comment requirement, however, the APA allows an exception when “otherwise provided by the agency for good cause found and published with the rule.” 5 U.S.C. 553(d)(3). The Bureau finds that there is good cause for providing less than 30 days notice here. A delayed effective date would harm consumers and regulated entities by needlessly perpetuating discrepancies between the amended statutory text and the implementing regulation, thereby hindering compliance and prolonging uncertainty regarding the applicable regulatory framework.14

In addition, delaying the effective date of the interim final rule for 30 days would provide no practical benefit to regulated entities in this context and in fact could operate to their detriment. As discussed above, the interim final rule published today does not impose any new, substantive obligations on regulated entities. Instead, the rule makes only non-substantive, technical changes to the existing text of the regulation. Thus, regulated entities that are already in compliance with the existing rules will not need to modify business practices as a result of this rule.

In developing the interim final rule, the Bureau has conducted an analysis ofpotential benefits, costs, and impacts.15 The Bureau believes that the interim final rule will benefit consumers and covered persons by updating and recodifying the Commission's rules in 16 CFR Part 320 to reflect the transfer of authority to the Bureau and certain other changes mandated by the Dodd-Frank Act. This will help facilitate compliance with section 43(b)-(f) of the FDIA and its implementing regulations and help reduce any uncertainty regarding the applicable regulatory framework. The interim final rule will not impose any new substantive obligations on consumers or covered persons and is not expected to have any impact on consumers' access to consumer financial products and services.

Although not required by the interim final rule, covered entities may incur some costs in updating compliance manuals and related materials to reflect the new numbering and other technical changes reflected in the new Regulation I. The Bureau has worked to reduce any such burden by preserving the existing numbering to the extent possible and believes that such costs will likely be minimal. These changes could be handled in the short term by providing a short, standalone summary alerting users to the changes and in the long term could be combined with other updates at the firm's convenience. The Bureau intends to continue investigating the possible costs to affected entities of updating manuals and related materials to reflect these changes and solicits comments on this and other issues discussed in this section.

The interim final rule will have no unique impact on depository institutions or credit unions with $10 billion or less in assets as described in section 1026(a) of the Dodd-Frank Act. Also, the interim final rule will have no unique impact on rural consumers.

In undertaking the process of recodifying the Commission's rules in 16 CFR Part 320, as well as regulations implementing thirteen other existing consumer financial laws,16 the Bureau consulted the Federal Deposit Insurance Corporation, the Office of the Comptroller of the Currency, the National Credit Union Administration, the Board of Governors of the Federal Reserve System, the Federal Trade Commission, and the Department of Housing and Urban Development, including with respect to consistency with any prudential, market, or systemic objectives that may be administered by such agencies.17 The Bureau also has consulted with the Office of Management and Budget for technical assistance. The Bureau expects to have further consultations with the appropriate Federal agencies during the comment period.

Although notice and comment rulemaking procedures are not required, the Bureau invites comments on this notice. Commenters are specifically encouraged to identify any technical issues raised by the rule. The Bureau is also seeking comment in response to a notice published at 76 FR 75825 (Dec. 5, 2011) concerning its efforts to identify priorities for streamlining regulations that it has inherited from other Federal agencies to address provisions that are outdated, unduly burdensome, or unnecessary.

The Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, requires each agency to consider the potential impact of its regulations on small entities, including small businesses, small governmental units, and small not-for-profit organizations.18 The RFA generally requires an agency to conduct an initial regulatory flexibility analysis (IRFA) and a final regulatory flexibility analysis (FRFA) of any rule subject to notice-and-comment rulemaking requirements, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities.19 The Bureau also is subject to certain additional procedures under the RFA involving the convening of a panel to consult with small business representatives prior to proposing a rule for which an IRFA is required.20

The IRFA and FRFA requirements described above apply only where a notice of proposed rulemaking is required,21 and the panel requirement applies only when a rulemaking requires an IRFA.22 As discussed above in part III, a notice of proposed rulemaking is not required for this rulemaking.

In addition, as discussed above, this interim final rule has only a minor impact on entities subject to Regulation I. The rule imposes no new, substantive obligations on covered entities. Accordingly, the undersigned certifies that this interim final rule will not have a significant economic impact on a substantial number of small entities.

At the time it adopted its existing regulation (16 CFR Part 320), the Commission determined that the rule's disclosures and written acknowledgement statements were a “public disclosure of information originally supplied by the Federal Government to the recipient for the purpose of disclosure to the public,” and thus did not constitute a collection of information for purposes of the Paperwork Reduction Act, 44 U.S.C. 3501,et seq.,as set forth in the Office of Management and Budget regulations.23 The Bureau has determined that this interim final rule does not impose any new recordkeeping or reporting requirements on covered institutions or members of the public beyond those already imposed by the Commission's existing regulation. Accordingly, this interim final rule contains no collections of informationrequiring approval under 44 U.S.C. 3501,et seq.

I. Background

Congress enacted section 626 of the Omnibus Appropriations Act, 2009 (Omnibus Appropriations Act) on March 11, 2009 and directed the Federal Trade Commission (FTC) to commence a rulemaking proceeding within 90 days of enactment with respect to mortgage loans.1 On May 22, 2009, the enactment of the Credit Card Accountability Responsibility and Disclosure Act of 20092 clarified the FTC's rulemaking authority under the Omnibus Appropriations Act to specify that the FTC's rulemaking based on its authority pursuant to the Omnibus Appropriations Act “shall relate to unfair or deceptive acts or practices regarding mortgage loans,” which may involve loan modification and foreclosure rescue services.3

Discussion

On November 18, 2010, we issued AD 2010-24-12, amendment 39-16531 (75 FR 78588, December 16, 2010), for certain Model 777-200, -300, and -300ER series airplanes. That AD requires installing Teflon sleeving under the clamps of certain wire bundles routed along the fuel tank boundary structure, and cap sealing certain penetrating fasteners of the main and center fuel tanks. That AD resulted from fuel system reviews conducted by the manufacturer. We issued that AD to prevent electrical arcing on the fuel tank boundary structure or inside the fuel tanks, which could result in a fire or explosion.

Since we issued AD 2010-24-12, Amendment 39-16531 (75 FR 78588, December 16, 2010), the European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, asked that we specify if Model 777-200LR airplanes are affected by the existing AD, and clarify Note 1 of the existing AD. We have determined that Model 777-200LR airplanes were inadvertently excluded from the applicability of the existing AD. The subject airplanes are identified in the effectivity of Boeing Alert Service Bulletin 777-57A0059, dated October 30, 2008, which was referred to in the existing AD as the appropriate source of service information for accomplishing certain actions. In light of these facts, we have added Model 777-200LR airplanes to the applicability in this AD as they are subject to the identified unsafe condition.

We have also revised Note 1 of the existing AD to further clarify the applicability of the AD with regard to Model 777-200 airplanes.

We are issuing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

This AD retains all requirements of AD 2010-24-12, Amendment 39-16531 (75 FR 78588, December 16, 2010). This AD adds Model 777-200LR airplanes to the applicability of the existing AD, and adds paragraph (i) to this AD to specify the actions (cap sealing the fasteners) required for those airplanes.

The FAA has found that an additional airplane model has been identified which is subject to the same unsafe condition specified in AD 2010-24-12, Amendment 39-16531 (75 FR 78588, December 16, 2010). There are no U.S.-registered Model 777-200LR airplanes; therefore, we find that notice and opportunity for prior public comment are unnecessary and that good cause exists for making this amendment effective in less than 30 days.

This AD is a final rule that involves requirements affecting flight safety, and we did not provide you with notice and an opportunity to provide your comments before it becomes effective. However, we invite you to send any written data, views, or arguments about this AD. Send your comments to an address listed under theADDRESSESsection. Include the docket number FAA-2011-1317; and directorate identifier 2011-NM-193-AD; at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this 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 AD.

We estimate that this AD affects 129 airplanes of U.S. registry. This new AD adds no additional economic burden. The current costs for this AD are repeated for the convenience of affected operators, as follows:

Currently, there are no affected Model 777-200LR airplanes on the U.S. Register. However, if a Model 777-200LR airplane is imported and placed on the U.S. Register in the future, the required actions will take about 480 work hours, at an average labor rate of $85 per work hour. Required parts cost about $2,241 per product. Based on these figures, we estimate the cost of this AD for Model 777-200LR airplanes to be $43,041 per airplane.

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 ofthe FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.

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

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

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

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

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

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

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

Accordingly, under the authority delegated to me by the Administrator, the FAA amends part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:

On August 21, 2009, the FAA published a final rule entitled, “Pilot, Flight Instructor, and Pilot School Certification” (74 FR 42500). That final rule revised the training, qualification, certification, and operating requirements for pilots, flight instructors, ground instructors, and pilot schools. The FAA is now issuing a technical amendment to correct an error in § 61.23 and to clarify the original intent of § 61.64.

As part of the 2009 final rule, the FAA revised § 61.23 to set forth the medical certification requirements for persons serving as examiners and administering practical tests. As modified in the final rule, the current text of that section requires an examiner administering a practical test in an aircraft, other than a glider or balloon, to hold at least a third-class medical certificate.

During the rulemaking process, the FAA received a comment stating that examiners administering practical tests to applicants for a sport pilot certificate should not be required to hold a medical certificate. These tests—particularly those conducted in powered parachutes and weight-shift-control aircraft—are frequently conducted by examiners who hold only a sport pilot certificate. A person exercising the privileges of a sport pilot certificate may hold either a medical certificate or a U.S. driver's license to exercise those privileges. Although the preamble to the final rule acknowledged the comment, the regulatory text did not address the issue raised by the comment.

Although an examiner is generally not the pilot in command of an aircraft during a practical test, an examiner may, on occasion, need to act as pilot in command of an aircraft during the course of a practical test. Accordingly, the FAA believes that an examiner must meet the appropriate medical certification requirements to act as pilot in command of the aircraft in which the test is being conducted should the need arise. An examiner conducting a practical test for a sport pilot certificate in a light-sport aircraft other than a glider or balloon would therefore only need to hold either a medical certificate or a U.S. driver's license.

The technical amendment will revise § 61.23(c) to permit a person to serve as an examiner and administer a practical test for the issuance of a sport pilot certificate in a light-sport aircraft otherthan a glider or balloon if that person holds and possesses either a medical certificate issued under part 67 or a U.S. driver's license.

Section 61.57(c) sets forth the instrument recent flight experience requirements for a pilot to act as pilot in command under IFR or in weather conditions less than the minimums prescribed for VFR. Under that provision, a pilot must have performed and logged certain tasks and maneuvers within six calendar months preceding the month of the flight on which the pilot intends to serve as pilot in command. Section 61.57(d) sets forth the time when a pilot who does not meet the instrument recent experience requirements of paragraph (c) must accomplish an instrument proficiency check (IPC) before serving as pilot in command under IFR or in weather conditions less than the minimums prescribed for VFR.

In the 2009 final rule, the FAA modified the language in § 61.57(d) to remove confusing language (“within the prescribed time, or within 6 calendar months after the prescribed time”) and replaced it with language that a pilot must perform the instrument recent flight experience within a period of 12 months to avoid having to accomplish an IPC. The FAA acknowledges that the language as modified allows for interpretations inconsistent with the intent of the rule and contrary to the manner the rule has been historically applied.

In this technical amendment, the FAA is revising the language in paragraph (d) to clarify the intent of the rule. The revised language makes it clear that a pilot who has failed to maintain instrument currency for more than six calendar months may not serve as pilot in command under IFR or in weather conditions less than the minimums prescribed for VFR until completing an instrument proficiency check. A pilot whose instrument currency has been lapsed for less than six months may continue to reestablish instrument currency by performing the tasks and maneuvers required in paragraph (c).

Prior to issuance of the 2009 final rule, 14 CFR 61.63(e), (f), and (g) set forth the requirements for the use of flight simulators and flight training devices for a pilot seeking to add ratings to an existing pilot certificate other than the airline transport pilot certificate. Under former § 61.63(e), (f), and (g), any pilot who completed “all training and testing requirements” in a flight simulator for an additional rating on an existing pilot certificate other than an airline transport pilot certificate had to have specific flight experience (e.g., hold a type rating for a turbojet airplane of the same class of airplane for which the type rating is sought) to avoid having to fulfill a supervised operating experience requirement before acting as pilot in command of the aircraft for which the additional rating was sought.

The requirements for the use of flight simulators and flight training devices for obtaining an airline transport pilot certificate with a type rating or adding a type rating to an existing airline transport pilot certificate were covered by 14 CFR 61.157(g), (h), and (i). Under former § 61.157(h), (i) and (j), any pilot who completed “all of the training and the required practical test” in a flight simulator for a type rating on an airline transport pilot certificate had to have the same prior flight experience listed in former § 61.63 to avoid having to fulfill a supervised operating experience requirement before acting as pilot in command in the aircraft for which the type rating was sought.

In 2007, the FAA proposed to consolidate the requirements of §§ 61.63(e), (f), and (g) and 61.157(g), (h), and (i) into new § 61.64 (72 FR 5806; February 7, 2007). In the preamble to the final rule, the FAA stated that in consolidating these sections “[n]o substantive changes had been made” (74 FR 42500 and 74 FR 42522). One commenter objected because, as consolidated in § 61.64, a pilot would be required to meet one of the experience prerequisites if any portion of the practical test for a type rating was completed in a flight simulator. The commenter noted that this requirement differed from the existing rule which required a pilot to meet one of the experience prerequisites only if he or she completed the entire practical test in a simulator. Two months after the final rule was published, the FAA issued a technical correction that made several changes to § 61.64. 74 FR 53643 (Oct. 20, 2009). The correction did not affect the language identified by the commenter that could be construed as requiring a pilot to meet one of the experience prerequisites if a simulator was used for any portion of the practical test.

Although the FAA stated in the 2009 final rule that no substantive changes were being made in consolidating the requirements in §§ 61.63 and 61.157, the language of the consolidation resulted in apparent changes to the requirements for using flight simulation training devices (FSTD) to train and test for an additional rating on an existing pilot certificate. The consolidation of the two provisions into § 61.64 could be read to expand the number of pilots who would be subject to the supervised operating limitation because the regulatory text as written applies to a pilot who completes any training or testing in flight simulators to meet one of the listed experience requirements or receive a limitation. This result was not the FAA's intention in consolidating the provisions. The FAA, therefore, is modifying § 61.64 to reflect that a supervised operating limitation must be placed on a pilot certificate if the pilot applying for the rating uses a flight simulator for the entire practical test and fails to meet one of the listed flight experience requirements.

In making the changes to § 61.64, the FAA emphasizes that §§ 61.63 and 61.157 continue to set forth the training requirements for additional ratings and type ratings. Section 61.64 merely details the use of FSTD in training and testing for those ratings. We note that, if § 61.63 requires a pilot to meet the training requirements of another section, for example § 61.129 (commercial pilot), then the FSTD limitations set forth in § 61.129 will apply to that training and the pilot will not be able to train and test completely through simulation. In addition, pilots who train under the aeronautical experience requirements that limit the use of simulation for training (e.g., § 61.129; part 141 appendices) will continue to have the option of accomplishing a segmented practical test (see14 CFR 61.39(d); 14 CFR 61.45(a); and FAA Order 8900.1, Vol. 5, Chapter 1, Section 4).

This technical amendment also makes several clarifying changes to § 61.64, including (1) reinserting the language “except preflight inspection” to the provisions related to the requirement that the entire practical test take place in a Level C or higher flight simulator if an aircraft is not used, (2) modifying the language of the limitation, (3) rewording the language in paragraph (g) related to the manner in which the supervised operating experience must be obtained, and (4) clarifying the language in paragraph (g) related to the means by which the supervised operating limitation may be removed from a pilot certificate. The FAA has also made a conforming change to the applicability provision in § 61.61.

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

History

On September 13, 2011, the FAA published in theFederal Registera notice of proposed rulemaking (NPRM) to amend controlled airspace at Anaktuvuk Pass, AK (76 FR 56354). Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received. Reference to the adjustment to the geographic coordinates of the airport was inadvertently omitted in the NPRM, and is now noted.

Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9V dated August 9, 2011, and effective September 15, 2011, which is incorporated by reference in 14 CFR Part 71.1. The Class E airspace designations listed in this document will be published subsequently in that Order.

This action amends Title 14 Code of Federal Regulations (14 CFR) Part 71 by revising Class E airspace extending upward from 700 feet above the surface, at Anaktuvuk Pass Airport, to accommodate the creation of two standard instrument approach procedures. This action is necessary for the safety and management of IFR operations. This action also brings the coordinates for the Anaktuvuk Pass Airport into agreement with the FAA's aeronautical database.

The FAA has determined this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, Section 106 discusses the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it creates additional controlled airspace at Anaktuvuk Pass Airport, Anaktuvuk, AK.

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

The Department of Transportation issued a rule requiring that all airlines and ticket agents that advertise airfares or air tours must advertise the full fare to be paid for the air transportation or air tour, including all government-imposed taxes and fees. This rule changes the Department's past policy of permitting government taxes and fees imposed on a per-person basis, such as passenger facility charges and segment fees, to be stated separately from the advertised fare. The first time carriers and ticket agents must provide the full fare information in all fare advertisements, including their on-line reservations systems, is January 24, 2012. (76 FR 45181, July 28, 2011)

On December 8, 2011, American Airlines (American) submitted a motion to the Department requesting a change of the effective date of the rule from the 24th to the 26th of January, because the 24th falls on a Tuesday, which it states is its busiest internet traffic and revenue day each week and may be the busiest for other sellers of air transportation as well. The carrier seeks to avoid having the complexities of rolling out the new pricing system when traffic and revenue activity is heaviest and any problems with the new system would be exacerbated. American points out that it is not feasible to implement the change earlier due to the extremely tight schedule necessary to complete its reprogramming and testing effort and that the requested 2-day extension will have no material negative effect on consumers. American asks that the requested relief apply to the Web sites of any party affected by the new rule, as well as to advertising that refers customers to Web sites for booking, such as that which appears on-line, in print, on television, and radio. American states that it informally canvassed several carriers and that the responses received were favorable. In addition, Department staff has informally heard from several organizations representing travel agencies and consumers which state they have no objection to the short extension requested.

Other carriers as well as ticket agents have in the past advised us that reprogramming their on-linereservations systems to comply with the new rule is a complex undertaking. Indeed, in response to such concerns, we extended the effective date of this rule for 90 days, from October 24, 2011, to its present date of January 24, 2012. (76 FR 45181, July 28, 2011) We can appreciate that any errors that might occur the first day the new system is implemented would have a greater impact on carriers or ticket agents selling air transportation if that day happens to be their busiest business day. We are concerned that, similarly, any such problems may have a more wide-ranging negative effect on consumers, as well. For this reason, and because we agree that a two-day delay in the start of the new rule will not significantly affect consumers, we find that grant of American's petition is in the public interest. In order to avoid confusion over airfares advertised using various media, which include Web sites, email, print, television, and radio, this short two-day extension will apply to all fare advertisements.

On January 30, 2004, OST published a final rule adopting direct final rulemaking procedures intended to expedite the rulemaking process for noncontroversial rules. By using direct final rulemaking, OST can reduce the time necessary to develop, review, clear and publish a rule to which no adverse public comment is anticipated by eliminating the need to publish separate proposed and final rules (69 FR 4455).

OST anticipates that this regulation will not result in adverse or negative comment and, therefore, is issuing it as a direct final rule. Unless a written adverse or negative comment, or a written notice of intent to submit an adverse or negative comment is received within the comment period, the regulation will become effective on the date specified above. After the close of the comment period, if no adverse or negative comment or written notice of intent to submit such a comment is received, OST will publish a document in theFederal Registerindicating that no adverse or negative comments were received and confirming the date on which the final rule will become effective. If OST does receive, within the comment period, an adverse or negative comment, or written notice of intent to submit such a comment, a document withdrawing the direct final rule will be published in theFederal Register, and a notice of proposed rulemaking may be published with a new comment period.

Interested parties are invited to participate in this rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal.

This final rule is not a significant regulatory action under Executive Order 12866 and the Department of Transportation's Regulatory Policies and Procedures. Accordingly, this final rule has not been reviewed by the Office of Management and Budget (OMB).

Pursuant to section 605 of the Regulatory Flexibility Act (RFA), 5 U.S.C. 605(b), as amended by the Small Business Regulatory Enforcement and Fairness Act of 1996 (SBREFA), DOT certifies that this final rule does not have a significant impact on a substantial number of small entities. The final rule does not impose any duties or obligations on small entities.

This Final Rule does not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government, and therefore does not have federalism implications.

This Final Rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13084 (“Consultation and Coordination with Indian Tribal Governments”). Because the rule does not significantly or uniquely affect the communities of the Indian tribal governments or impose substantial direct compliance costs on them, the funding and consultation requirements of Executive Order 13084 do not apply.

The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501et seq.) requires that DOT consider the impact of paperwork and other information collection burdens imposed on the public and, under the provisions of PRA section 3507(d), obtain approval from the Office of Management and Budget (OMB) for each collection of information it conducts, sponsors, or requires through regulations. DOT has determined that there is no new information collection requirements associated with this final rule.

The Department has determined that the requirements of Title II of the Unfunded Mandates Reform Act of 1995 do not apply to this Final Rule.

The Entity List (Supplement No. 4 to Part 744) provides notice to the public that certain exports, reexports, and transfers (in-country) to entities identified on the Entity List require a license from the Bureau of Industry and Security and that the availability of license exceptions in such transactions is limited. Entities are placed on the Entity List on the basis of certain sections of part 744 (Control Policy: End-User and End-Use Based) of the EAR.

The ERC, composed of representatives of the Departments of Commerce (Chair), State, Defense, Energy and, when appropriate, the Treasury, makes all decisions regarding additions to, removals from, or other modifications to the Entity List. The ERC makes all decisions to add an entry to the Entity List by majority vote and all decisions to remove or modify an entry by unanimous vote.

This rule implements the decision of the ERC to add two persons to the Entity List on the basis of Section 744.11 (License requirements that apply to entities acting contrary to the national security or foreign policy interests of the United States) of the EAR. The two entries added to the Entity List consist of two persons located in the U.A.E.

The ERC reviewed Section 744.11(b) (Criteria for revising the Entity List) in making the determination to add the two persons located in the U.A.E. to the Entity List. Under that paragraph, persons for which there is reasonable cause to believe, based on specific and articulable facts, that the persons have been involved, are involved, or pose a significant risk of being or becoming involved in, activities that are contrary to the national security or foreign policy interests of the United States and those acting on behalf of such persons may be added to the Entity List pursuant to Section 744.11. Paragraphs (b)(1)-(b)(5) of Section 744.11 include an illustrative list of activities that could be contrary to the national security or foreign policy interests of the United States.

The two persons in the U.A.E. being added to the Entity List under this rule have been determined by the ERC to be involved in activities that could be contrary to the national security or foreign policy interests of the United States. Specifically, BIS's Office of Export Enforcement is investigating the presence of Blue Coat internet filtering devices in Syria and has developed evidence regarding the parties involved in the transfer of these devices to Syria. Waseem Jawad, using the company name Infotec, a.k.a., Info Tech, ordered multiple Blue Coat SG9000-20 Proxy devices in December 2010 from a Blue Coat authorized distributor in the U.A.E. That authorized distributor in turn placed an order for the devices with Blue Coat. A December 2010 email notification identified the end-user of the Blue Coat products for this order as the Ministry of Communication (National Telecom), Al Fadi Street, Baghdad, Iraq. In February 2011, the devices were shipped from the United States to the United Arab Emirates, and ownership was transferred to Waseem Jawad, Info Tech, RAKFTZ, U.A.E. Approximately three days later, the devices departed the U.A.E. for delivery to Syria. Several of these devices have been identified by serial number as the devices being used by the Syrian Telecommunications Establishment in Damascus, Syria. The investigation is ongoing and additional parties related to these transactions may be added to the Entity List in the future.

For the two persons added to the Entity List, the ERC specified a license requirement for all items subject to the EAR and established a license application review policy of a presumption of denial. The license requirement applies to any transaction in which items are to be exported, reexported, or transferred (in-country) to such persons or in which such persons act as purchaser, intermediate consignee, ultimate consignee, or end-user. In addition, no license exceptions are available for exports, reexports, or transfers (in-country) to those persons being added to the Entity List.

This final rule adds the following two persons under two entries to the Entity List:

(1)Infotec,a.k.a., Info Tech., Ras Al Khaimah Free Trade Zone (RAKFTZ), U.A.E.;and

(2)Waseem Jawad,Ras Al Khaimah Free Trade Zone (RAKFTZ), U.A.E.;andP.O. Box: 25123, Dubai U.A.E.

This rule also amends the Entity List on the basis of the annual review of the Entity List conducted by the ERC, in accordance with the procedures outlined in Supplement No. 5 to part 744 (Procedures for End-User Review Committee Entity List Decisions). The changes from the annual review of the Entity List that are approved by the ERC are implemented in stages as the ERC completes its review of entities listed under different destinations on the Entity List. This rule implements the results of the annual review for entities located in Malaysia, Singapore, and Taiwan.

This rule removes four entities from the Entity List, which consists of two entities from Singapore and two entities from Taiwan. Specifically, this rule implements the decision of the ERC to remove two entities, Strive Components and Synoptics Imaging Systems Pte Ltd., located in Singapore, and two entities, Christine Sun and In-Tech Company, a.k.a., In-Tech Telecom, located in Taiwan, from the Entity List on the basis of the annual review of the Entity List, as follows:

(1)Strive Components,Block 10 Toa Payoh Industrial Park Lor 8 #01-1221, Singapore, 319062;and

(2)Synoptics Imaging Systems Pte Ltd.,12 Lor Bakar Batu #06-09, Singapore, 348745.

(1)Christine Sun,7th Floor, Number 17, Zhonghua Rd., Sec 2, Xinzhuang City, Taipei, Taiwan;and

(2)In-Tech Company, a.k.a., In-Tech Telecom,Number 15, Lane 347, Jhongjheng Road, Sinjihuang City, Taipei, Taiwan,and7th Floor, Number 17, Zhonghua Rd., Sec 2, Xinzhuang City, Taipei, Taiwan.

The removal of the above-referenced four entities from the Entity List eliminates the existing license requirements in Supplement No. 4 to part 744 for exports, reexports and transfers (in-country) to the four entities. However, the removal of these four entities from the Entity List does not relieve persons of other obligations under part 744 of the EAR or under other parts of the EAR. Neither the removal of an entity from the Entity List nor the removal of Entity List-based license requirements relieves persons of their obligations under General Prohibition 5 in section 736.2(b)(5) of the EAR which provides that, “you may not, without a license, knowingly exportor reexport any item subject to the EAR to an end-user or end-use that is prohibited by part 744 of the EAR.” Additionally these removals do not relieve persons of their obligation to apply for export, reexport or in-country transfer licenses required by other provisions of the EAR. BIS strongly urges the use of Supplement No. 3 to part 732 of the EAR, “BIS's `Know Your Customer' Guidance and Red Flags,” when persons are involved in transactions that are subject to the EAR.

On the basis of a decision made by the ERC during the annual review, this rule amends one entry currently on the Entity List under Malaysia by adding an alternate address, as follows:

(1)VTE Industrial Automation SDN BHD,97C, Jalan Kenari 23, Puchong Jaya, Puchong, Selangor, Malaysia;and45-02, Jalan Kenari 19A, Puchong Jaya, 47100 Malaysia.

Shipments of items removed from eligibility for a License Exception or export or reexport without a license (NLR) as a result of this regulatory action that were on dock for loading, on lighter, laden aboard an exporting or reexporting carrier, or en route aboard a carrier to a port of export or reexport, on December 16, 2011, pursuant to actual orders for export or reexport to a foreign destination, may proceed to that destination under the previous eligibility for a License Exception or export or reexport without a license (NLR) so long as they are exported or reexported before January 3, 2012. Any such items not actually exported or reexported before midnight, on January 3, 2012, require a license in accordance with the EAR.

Although the Export Administration Act expired on August 20, 2001, the President, through Executive Order 13222 of August 17, 2001, 3 CFR, 2001 Comp., p. 783 (2002), as extended by the Notice of August 12, 2011, 76 FR 50661 (August 16, 2011), has continued the Export Administration Regulations in effect under the International Emergency Economic Powers Act. BIS continues to carry out the provisions of the Export Administration Act, as appropriate and to the extent permitted by law, pursuant to Executive Order 13222.

1. Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has been determined to be not significant for purposes of Executive Order 12866.

2. Notwithstanding any other provision of law, no person is required to respond to nor be subject to a penalty for failure to comply with a collection of information, subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501et seq.) (PRA), unless that collection of information displays a currently valid Office of Management and Budget (OMB) Control Number. This regulation involves collections previously approved by the OMB under control numbers 0694-0088, “Multi-Purpose Application,” which carries a burden hour estimate of 43.8 minutes for a manual or electronic submission. Total burden hours associated with the PRA and OMB control number 0694-0088 are not expected to increase as a result of this rule. You may send comments regarding the collection of information associated with this rule, including suggestions for reducing the burden, to Jasmeet K. Seehra, Office of Management and Budget (OMB), by email toJasmeet_K._Seehra@omb.eop.gov,or by fax to (202) 395-7285.

3. This rule does not contain policies with Federalism implications as that term is defined in Executive Order 13132.

4. The provisions of the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking, the opportunity for public comment and a delay in effective date are inapplicable because this regulation involves a military or foreign affairs function of the United States. (See5 U.S.C. 553(a)(1)). BIS implements this rule to protect U.S. national security or foreign policy interests by preventing items from being exported, reexported, or transferred (in country) to the persons being added to the Entity List. If this rule were delayed to allow for notice and comment and a delay in effective date, then entities being added to the Entity List by this action would continue to be able to receive items without a license and to conduct activities contrary to the national security or foreign policy interests of the United States. In addition, because these parties may receive notice of the U.S. Government's intention to place these entities on the Entity List once a final rule was published it would create an incentive for these persons to either accelerate receiving items subject to the EAR to conduct activities that are contrary to the national security or foreign policy interests of the United States and/or to take steps to set up additional aliases, change addresses, and take other steps to try to limit the impact of the listing on the Entity List once a final rule was published. Further, no other law requires that a notice of proposed rulemaking and an opportunity for public comment be given for this rule. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule by 5 U.S.C. 553, or by any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601et seq.,are not applicable.

Accordingly, part 744 of the Export Administration Regulations (15 CFR parts 730-774) is amended as follows:

Intervet, Inc., 556 Morris Ave., Summit, NJ 07901, filed NADA 141-325 that provides for the veterinary prescription use of INCURIN (estriol) Tablets for the control of estrogen-responsive urinary incontinence in ovariohysterectomized female dogs. The NADA is approved as of July 24, 2011, and the regulations are amended in 21 CFR part 520 to reflect the approval.

A summary of safety and effectiveness data and information submitted to support approval of this application may be seen in the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852, between 9 a.m. and 4 p.m., Monday through Friday.

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

Under section 512(c)(2)(F)(i) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 360b(c)(2)(F)(i)), this approval qualifies for 5 years of marketing exclusivity beginning on the date of approval.

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

Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs and redelegated to the Center for Veterinary Medicine, 21 CFR part 520 is amended as follows:

Virbac AH, Inc., 3200 Meacham Blvd., Fort Worth, TX 76137, filed NADA 141-330 for the veterinary prescription use of EASOTIC (hydrocortisone aceponate, miconazole nitrate, gentamicin sulfate) Suspension for the treatment of otitis externa in dogs associated with susceptible strains of yeast (Malassezia pachydermatis) and bacteria (Staphylococcus pseudintermedius). The NADA is approved as of October 31, 2011, and 21 CFR part 524 is amended to reflect the approval.

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

Under section 512(c)(2)(F)(ii) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 360b(c)(2)(F)(ii)), this approval qualifies for 3 years of marketing exclusivity beginning on the date of approval.

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

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

Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs and redelegated to the Center for Veterinary Medicine, 21 CFR part 524 is amended as follows:

In FR Doc. 2011-28274 on page 68084 in theFederal Registerof Thursday,November 3, 2011, an incorrect amendatory instruction published inadvertently creating duplicate paragraphs (b)(1)(ii) in § 1980.102. This document corrects that error.

Therefore, OSHA amends 29 CFR part 1980 by making the following correcting amendment:

Regulatory Information

The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because the Coast Guard did not receive necessary information about this year's Boca Raton Holiday Boat Parade until November 7, 2011. As a result, the Coast Guard did not have sufficient time to publish an NPRM and to receive public comments prior to the event. Any delay in the effective date of this rule would be contrary to the public interest because immediate action is needed to minimize potential danger to marine parade participants, participant vessels, spectators, and the general public.

For the same reason discussed above, under 5 U.S.C. 553(d)(3) the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in theFederal Register.

The legal basis for the rule is the Coast Guard's authority to establish special local regulations: 33 U.S.C. 1233.

The purpose of the rule is to insure safety of life on navigable waters of the United States during the Boca Raton Holiday Boat Parade.

On December 17, 2011, the City of Boca Raton is hosting the Boca Raton Holiday Boat Parade on the Intracoastal Waterway in Boca Raton, Florida. The marine parade will consist of approximately 60 vessels. The marine parade will begin at C-15 Canal and transit south on the Intracoastal Waterway to the Hillsborough Bridge. Although this event occurs annually, and special local regulations have been promulgated in the Code of Federal Regulations at 33 CFR 100.701, the date of the marine parade does not correspond with the date published in the Code of Federal Regulations, and the special local regulations have been modified. Therefore, the special local regulations set forth in 33 CFR 100.701 are inapplicable for this year's Boca Raton Holiday Boat Parade.

The special local regulations consist of a series of buffer zones around vessels participating in the Boca Raton Holiday Boat Parade. These buffer zones are as follows: (1) All waters within 75 yards of the lead marine parade vessel; (2) all waters within 75 yards of the last marine parade vessel; and (3) all waters within 50 yards of all other marine parade vessels. Notice of the special local regulations, including the identities of the lead marine parade vessel and the last marine parade vessel, will be provided prior to the marine parade by Local Notice to Mariners and Broadcast Notice to Mariners. These special local regulations will be enforced from 6 p.m. until 9 p.m. on December 17, 2011. Persons and vessels are prohibited from entering, transiting through, anchoring, or remaining within the buffer zones unless authorized by the Captain of the Port Miami or a designated representative. Persons andvessels desiring to enter, transit through, anchor in, or remain within any of the buffer zones may contact the Captain of the Port Miami by telephone at (305) 535-4472, or a designated representative via VHF radio on channel 16, to request authorization. If authorization to enter, transit through, anchor in, or remain within any of the buffer zones is granted by the Captain of the Port Miami or a designated representative, all persons and vessels receiving such authorization must comply with the instructions of the Captain of the Port Miami or a designated representative.

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

Executive Orders 13563, Improving Regulation and Regulatory Review, and 12866, Regulatory Planning and Review, direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has not been designated a significant regulatory action under section 3(f) of Executive Order 12866. Accordingly, the Office of Management and Budget has not reviewed this regulation under Executive Order 12866.

The economic impact of this rule is not significant for the following reasons: (1) The special local regulations will be enforced for only three hours; (2) although persons and vessels will not be able to enter, transit through, anchor in, or remain within the buffer zones without authorization from the Captain of the Port Miami or a designated representative, they may operate in the surrounding area during the enforcement period; (3) persons and vessels may still enter, transit through, anchor in, or remain within the buffer zones if authorized by the Captain of the Port Miami or a designated representative; and (4) the Coast Guard will provide advance notification of the special local regulations to the local maritime community by Local Notice to Mariners and Broadcast Notice to Mariners.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule may affect the following entities, some of which may be small entities: the owners or operators of vessels intending to enter, transit through, anchor in, or remain within that portion of the Intracoastal Waterway encompassed within the special local regulations from 6 p.m. until 9 p.m. on December 17, 2011. For the reasons discussed in the Regulatory Planning and Review section above, this rule will not have a significant economic impact on a substantial number of small entities.

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

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

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

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

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2-1, paragraph (34)(h), of the Instruction. This rule involves special local regulations issued in conjunction with a marine parade. Under figure 2-1, paragraph (34)(h), of the Instruction, an environmental analysis checklist and a categorical exclusion determination are not required for this rule.

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

The County of Alameda Public Works Agency has requested a temporary change to the operation of the Fruitvale Avenue Drawbridge, mile 5.61, over Oakland Inner Harbor, between the cities of Alameda and Oakland, Alameda County, CA. The drawbridge navigation span provides a vertical clearance of 15 feet above Mean High Water in the closed-to-navigation position. The draw opens on signal; except that, from 8 a.m. to 9 a.m. and 4:30 p.m. to 6:30 p.m. Monday through Friday except Federal holidays, the draw need not be opened for the passage of vessels. However, the draw shall open during the above closed periods for vessels which must, for reasons of safety, move on a tide or slack water, if at least two hours notice is given, as required by 33 CFR 117.181. Navigation on the waterway is commercial and recreational.

The drawspan will be secured in the closed-to-navigation position for seismic retrofitting during three time periods: (a) From 12:01 a.m., December 12, 2011 to 11:59 p.m. on December 23, 2011; (b) from 12:01 a.m., January 3, 2012 to 11:59 p.m. on January 12, 2012; and (c) from 12:01 a.m., January 23, 2012 to 11:59 p.m. on February 3, 2012. At all other times, the drawspan will promptly return to normal operation. This temporary deviation has been coordinated with waterway users. No objections to the proposed temporary deviation were raised.

Vessels that can transit the bridge, while in the closed-to-navigation position, may continue to do so at any time.

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

Regulatory Information

The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because the Coast Guard did not receive necessary information regarding the fireworks displays until December 2, 2011. As a result, the Coast Guard did not have sufficient time to publish an NPRM and to receive public comments prior to the fireworks displays. Any delay in the effective date of this rule would be contrary to the public interest because immediate action is needed to minimize potential danger to the public during the fireworks displays.

For the same reason discussed above, under 5 U.S.C. 553(d)(3) the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in theFederal Register.

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

The purpose of the rule is to protect the public from the hazards associated with the launching of fireworks over navigable waters of the United States.

Multiple fireworks displays are planned for New Year's Eve celebrations throughout the Captain of the Port Miami Zone. The fireworks will be launched from barges and will explode over navigable waters of the United States.

The Coast Guard is establishing three temporary safety zones for New Year's Eve fireworks displays on Saturday, December 31, 2011 on navigable waters of the Captain of the Port Miami Zone. The three safety zones are listed below.

1.Miami Beach, Florida.All waters within a 374 yard radius around the barge from which the fireworks will be launched, located 275 yards east of Bay Front Park. This safety zone will be enforced from 11:59 p.m. on December31, 2011 until 12:30 a.m. on January 1, 2012.

2.Miami Beach, Florida.All waters within a 234 yard radius around the barge from which the fireworks will be launched, located 650 yards north east of Star Island. This safety zone will be enforced from 11:59 p.m. on December 31, 2011 until 12:30 a.m. on January 1, 2012.

3.West Palm Beach, Florida.All waters within a 280 yard radius around the barge from which the fireworks will be launched, located 650 yards north of Royal Park Bascule Bridge. This safety zone will be enforced from 11:59 p.m. on December 31, 2011 until 12:30 a.m. on January 1, 2012.

Persons and vessels are prohibited from entering, transiting through, anchoring in, or remaining within any of the safety zones unless authorized by the Captain of the Port Miami or a designated representative. Persons and vessels desiring to enter, transit through, anchor in, or remain within any of the safety zones may contact the Captain of the Port Miami by telephone at (305) 535-4472, or a designated representative via VHF radio on channel 16, to request authorization. If authorization to enter, transit through, anchor in, or remain within any of the safety zones is granted by the Captain of the Port Miami or a designated representative, all persons and vessels receiving such authorization must comply with the instructions of the Captain of the Port Miami or a designated representative. The Coast Guard will provide notice of the safety zones by Local Notice to Mariners, Broadcast Notice to Mariners, and on-scene designated representatives.

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

Executive Orders 13563, Improving Regulation and Regulatory Review, and 12866, Regulatory Planning and Review, direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has not been designated a significant regulatory action under section 3(f) of Executive Order 12866. Accordingly, the Office of Management and Budget has not reviewed this regulation under Executive Order 12866.

The economic impact of this rule is not significant for the following reasons: (1) The safety zones will be enforced for a total of 31 minutes; (2) vessel traffic in the areas are expected to be minimal during the enforcement period; (3) although persons and vessels will not be able to enter, transit through, anchor in, or remain within any of the safety zones without authorization from the Captain of the Port Miami or a designated representative, they may operate in the surrounding areas during the enforcement period; (4) persons and vessels may still enter, transit through, anchor in, or remain within the safety zones during the enforcement period if authorized by the Captain of the Port Miami or a designated representative; and (5) the Coast Guard will provide advance notification of the safety zones to the local maritime community by Local Notice to Mariners and Broadcast Notice to Mariners.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule may affect the following entities, some of which may be small entities: The owners or operators of vessels intending to enter, transit through, anchor in, or remain within any of the three safety zones established by this regulation during the respective enforcement period. For the reasons discussed in the Regulatory Planning and Review section above, this rule will not have a significant economic impact on a substantial number of small entities.

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

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

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

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

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction. This rule involves establishing three temporary safety zones, as described in paragraph 34(g) of the Instruction, that will be enforced for a total of 31 minutes. An environmental analysis checklist and a categorical exclusion determination are available in the docket where indicated underADDRESSES.

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

Regulatory Information

The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when an agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under U.S.C. 553 (b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this. The final details for this project were not received by until less than four weeks before the start of the bridge rehabilitation project. Waiting for a comment period to run would prevent the Coast Guard from performing its statutory function of protecting life on navigable waters and thus would be impractical and contrary to the public interest.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in theFederal Register. Delaying the effective date would prevent the Coast Guard from performing its statutory function of protecting life on navigable waters and thus would be impractical and contrary to the public interest.

The rehabilitation of the Eisenhower Expressway Bridge will occur from 7 a.m. to 3 p.m. on December 23, 2011. The threat or possibility of falling debris associated with the replacement of the bridge leafs poses serious risks of injury to persons and property. As such, the Captain of the Port, Sector Lake Michigan, has determined that the rehabilitation project of the Eisenhower Expressway Bridge poses significant risks to public safety and property and that a safety zone is necessary.

This temporary safety zone will be enforced from 7 a.m. to 3 p.m. on December 23, 2011 to protect the public from dangers associated with the scheduled rehabilitation of the Eisenhower Expressway Bridge. If the rehabilitation project efforts are cancelled due to inclement weather, then this safety zone will be enforced between 7 a.m. and 3 p.m. on December 28, 2011. The temporary safety zone will encompass all U.S. navigable waters of the Chicago River South Branch in the vicinity of the Eisenhower Expressway Bridge between Mile Marker 324.8 and Mile Marker 325.1 of the Chicago River South Branch in Chicago, Illinois.

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

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

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

It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS). We conclude that this rule is not a significant regulatory action because we anticipate that it will have minimal impact on the economy, will not interfere with other agencies, will not adversely alter the budget of any grant or loan recipients, and will not raise any novel legal or policy issues. The safety zone around the bridge project will be relatively small and exist for a relatively short time. Thus, restrictions on vessel movement within that particular area are expected to be minimal. Under certain conditions, moreover, vessels may still transit through the safety zone when permitted by the Captain of the Port.

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

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

This rule will affect the following entities, some of which might be small entities: The owners or operators of vessels intending to transit or anchor on a portion of the Chicago River South Branch between 7 a.m. and 3 p.m. on December 23, 2011 or, in the event the rehabilitation project efforts are cancelled due to inclement weather, between 7 a.m. and 3 p.m. on December 28, 2011.

This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: This rule will only be enforced while unsafe conditions exist. Vessel traffic will be minimal due to the fact that the location of the safety zone is in an area that typically does not experience high volumes of vessel traffic during the hours of 7 a.m. and 3 p.m. Several commercial traffic entities have already been contacted concerning this closure and have confirmed that the effective period of the closure will not affect them in a negative way.

In the event that this temporary safety zone affects shipping, commercial vessels may request permission from the Captain of The Port, Sector Lake Michigan, or his or her on scene representative to transit through the safety zone. The Coast Guard will give notice to the public via a Broadcast to Mariners that the regulation is in effect.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we offer to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-(888) REG-FAIR (1-(888) 734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

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

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

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

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

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

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

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

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

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

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

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

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

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

Regulatory Information

The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when an agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under U.S.C. 553 (b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this. The final details for this project were not received by the Coast Guard until December 1, 2011, less than four weeks before the start of the submarine cable installation project. Waiting for a comment period to run would prevent the Coast Guard from performing its statutory function of protecting life on navigable waters and thus would be impractical and contrary to the public interest.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in theFederal Register.Delaying the effective date would prevent the Coast Guard from performing its statutory function of protecting life on navigable waters and thus would be impractical and contrary to the public interest.

The submarine cable installation project in the vicinity of the Madison Street Bridge will occur from 5 a.m. to 10 p.m. on December 16, 2011. This temporary safety zone is necessary to protect vessels from the hazards associated with those submarine cable installation efforts. The hazards associated with the installation of submarine cables pose serious risks of injury to persons and property. As such, the Captain of the Port, Sector Lake Michigan, has determined that the submarine cable installation project in the vicinity of the Madison Street Bridgedoes pose significant risks to public safety and property and that a safety zone is necessary.

The safety zone will encompass all U.S. navigable waters of the Chicago River South Branch in the vicinity of the Madison Street Bridge between Mile Marker 325.1 and Mile Marker 325.5 of the Chicago River South Branch in Chicago, Illinois.

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

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

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

It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS). We conclude that this rule is not a significant regulatory action because we anticipate that it will have minimal impact on the economy, will not interfere with other agencies, will not adversely alter the budget of any grant or loan recipients, and will not raise any novel legal or policy issues. The safety zone around the bridge project will be relatively small and exist for relatively short time. Thus, restrictions on vessel movement within that particular area are expected to be minimal. Under certain conditions, moreover, vessels may still transit through the safety zone when permitted by the Captain of the Port.

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

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

This rule will affect the following entities, some of which might be small entities: The owners or operators of vessels intending to transit or anchor in the vicinity of the Madison Street Bridge between Mile Marker 325.1 and Mile Marker 325.5 of the Chicago River South Branch between 5 a.m. and 10 p.m. on December 16, 2011.

This temporary safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: This rule will only be enforced while unsafe conditions exist. Vessel traffic will be minimal due to the fact that the location of the safety zone is in an area that typically does not experience high volumes of vessel traffic during the hours of 5 a.m. and 10 p.m. Several commercial traffic entities have already been contacted concerning this closure and have confirmed that the effective period of the closure will not affect them in a negative way.

In the event that this temporary safety zone affects shipping, commercial vessels may request permission from the Captain of The Port, Sector Lake Michigan, or his or her on scene representative to transit through the safety zone. The Coast Guard will give notice to the public via a Broadcast to Mariners that the regulation is in effect.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-(888) REG-FAIR (1-(888) 734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

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

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

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

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

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

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

This rule does not have tribal implications under Executive Order13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

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

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

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

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

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

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

The Coast Guard will enforce a segment of the Safety Zone; Brandon Road Lock and Dam to Lake Michigan including Des Plaines River, Chicago Sanitary and Ship Canal, Chicago River, Calumet-Saganashkee Channel, Chicago, IL, listed in 33 CFR 165.930, on all waters of the Chicago Sanitary and Ship Canal from Mile Marker 296.1 to Mile Marker 296.7 at the following times:

(1) On December 21-22, 2011, from 7 a.m. until 11 a.m. and from 1 p.m. until 5 p.m.

This enforcement action is necessary because the Captain of the Port, Sector Lake Michigan has determined that the U.S. Army Corps of Engineers' dispersal barrier maintenance and simultaneous operations of Barriers IIA and IIB pose risks to life and property. The combination of vessel traffic and the maintenance operations in the water makes the controlling of vessels through the impacted portion of the Chicago Sanitary and Ship Canal necessary to prevent injury and property loss.

In accordance with the general regulations in § 165.23 of this part, entry into, transiting, mooring, laying up or anchoring within the enforced area of this safety zone by any person or vessel is prohibited unless authorized by the Captain of the Port, Sector Lake Michigan, or his or her designated representative.

This notice is issued under authority of 33 CFR § 165.930 and 5 U.S.C. 552(a). In addition to this notice in theFederal Register, the Captain of the Port, Sector Lake Michigan, will also provide notice through other means, which may include, but are not limited to, Broadcast Notice to Mariners, Local Notice to Mariners, local news media, distribution in leaflet form, and on-scene oral notice.

Additionally, the Captain of the Port, Sector Lake Michigan, may notify representatives from the maritime industry through telephonic and email notifications.

Table of Contents I. Background for This Action II. Final Action III. Statutory and Executive Order Reviews I. Background for This Action

On February 20, 1986, the Commonwealth of Kentucky submitted provisions constituting its plan to address visibility impairment in Federal Class I areas as a revision to Kentucky's SIP. EPA approved Kentucky's February 20, 1986, SIP revision on September 1, 1989, except for the provisions related to the review of new sources in nonattainment areas. In that action, EPA revised 40 CFR 52.936 to expressly reject Kentucky's proposed nonattainment NSR provisions and substitute 40 CFR 52.28 by reference.

On September 2, 2004, and August 23, 2005, the Commonwealth of Kentucky submitted SIP revisions to address visibility in its nonattainment NSR program. EPA fully approved these SIP revisions on July 11, 2006.See71 FR 38990.

The aforementioned SIP revisions provide the necessary changes to Kentucky's plan for visibility impairment prevention for Class I areas from sources in nonattainment areas and satisfy EPA's requirements as set forth in 40 CFR 51.307(b) and (c). These visibility provisions also satisfy the settlement agreement with the Environmental Defense Fund,et al., Environmental Defense Fundv.Gorsuch,No. C-82-6850 RPA (N.D. Cal.) (Settlement Agreement), described at 49 FR 20647 on May 16, 1984.

The first part of the Settlement Agreement required Kentucky to develop visibility NSR and visibility monitoring provisions to meet the requirements of 40 CFR 51.305 and 51.307 and submit those provisions to EPA by May 6, 1985. This part of the Settlement Agreement further required EPA to approve the state submittal or to promulgate a FIP by January 6, 1986. Since Kentucky had not yet submitted a final visibility SIP, EPA promulgated a Federal program for Kentucky to meet the requirements of 40 CFR 51.305 and 51.307 on February 13, 1986 (51 FR 5504). The Federal program, which is covered by the Federal visibility monitoring strategy (40 CFR 52.26) and visibility NSR program (40 CFR 52.27 and 52.28), was promulgated as part of the Kentucky SIP. The provisions submitted by Kentucky on February 20, 1986, and approved by EPA on September 1, 1989, partially removed the Federal promulgation.See54 FR 36307.

The second part of the Settlement Agreement required EPA to propose and promulgate visibility FIPs addressing the general visibility plan provisions including implementation control strategies (40 CFR 51.302), integral vista protection (40 CFR 51.302 through 51.307), and long-term strategies (40 CFR 51.306) for those states whose SIPs EPA had determined to be inadequate with respect to the above provisions (seeJanuary 23, 1986, notice of deficiency (51 FR 3046) and March 12, 1987, notice proposing FIPs for deficient state's implementation plans (52 FR 7803)). However, as provided in the Settlement Agreement, a state could avoid the promulgation of said provisions by EPA in a FIP if it submitted a visibility SIP by August 31, 1987. The Commonwealth of Kentucky submitted a plan to satisfy the second part of the Settlement Agreement on August 31, 1987, and EPA approved the visibility SIP submittal for these elements on July 12, 1988.See53 FR 26253.

As mentioned above, the Commonwealth of Kentucky provided a SIP revision on February 20, 1986, constituting its plan to address visibility impairment in Federal Class I areas as a revision to Kentucky's SIP. On September 1, 1989, EPA approved Kentucky's SIP revision (submitted on February 20, 1986) except for those provisions related to the review of new sources in nonattainment areas. As a result of EPA's aforementioned 1988 and 1989 actions, these nonattainment NSR provisions were the only remaining non-approved provisions in Kentucky's plan to address visibility impairment. On September 2, 2004, and August 23, 2005, the Commonwealth of Kentucky submitted rules for addressing visibility in its NSR program in nonattainment areas. EPA fully approved Kentucky's September 2, 2004, and August 23, 2005, SIP revisions on July 11, 2006 (71 FR 38990), but inadvertently did not remove the federally-promulgated provisions in 40 CFR 52.936. Today's action corrects that oversight.

EPA is taking direct final action to correct an omission related to the visibility requirements for Kentucky. Specifically, EPA is removing the previous federally promulgated provisions in 40 CFR 52.936 for visibility from sources in nonattainment areas for Kentucky because the Commonwealth later submitted, and EPA approved, revisions covering visibility requirements for Kentucky. EPA is approving the aforementioned changes to the Kentucky SIP because they are consistent with the CAA and Agency requirements. EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. However, in the proposed rules section of thisFederal Registerpublication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision should adverse comments be filed. This rule will be effective February 14, 2012 without further notice unless the Agency receives adverse comments by January 17, 2012.

If EPA receives such comments, then EPA will publish a document withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period. Parties interested in commenting should do so at this time. If no such comments are received, the public is advised that this rule will be effective on February 14, 2012 and no further action will be taken on the proposed rule.

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 action merely approves state law as meeting Federal requirements and does not impose additional requirements beyondthose imposed by state law. For that reason, this action:

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by February 14, 2012. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today'sFederal Register,rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. This action may not be challenged later in proceedings to enforce its requirements. (Seesection 307(b)(2)).

40 CFR part 52 is amended as follows:

The NFIP enables property owners to purchase Federal flood insurance that is not otherwise generally available from private insurers. In return, communities agree to adopt and administer local floodplain management aimed at protecting lives and new construction from future flooding. Section 1315 of the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits the sale of NFIP flood insurance unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed in this document no longer meet that statutory requirement for compliance with programregulations, 44 CFR part 59. Accordingly, the communities will be suspended on the effective date in the third column. As of that date, flood insurance will no longer be available in the community. We recognize that some of these communities may adopt and submit the required documentation of legally enforceable floodplain management measures after this rule is published but prior to the actual suspension date. These communities will not be suspended and will continue their eligibility for the sale of insurance. A notice withdrawing the suspension of the communities will be published in theFederal Register.

In addition, FEMA publishes a Flood Insurance Rate Map (FIRM) that identifies the Special Flood Hazard Areas (SFHAs) in these communities. The date of the FIRM, if one has been published, is indicated in the fourth column of the table. No direct Federal financial assistance (except assistance pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act not in connection with a flood) may be provided for construction or acquisition of buildings in identified SFHAs for communities not participating in the NFIP and identified for more than a year on FEMA's initial FIRM for the community as having flood-prone areas (section 202(a) of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4106(a), as amended). This prohibition against certain types of Federal assistance becomes effective for the communities listed on the date shown in the last column. The Administrator finds that notice and public comment under 5 U.S.C. 553(b) are impracticable and unnecessary because communities listed in this final rule have been adequately notified.

Each community receives 6-month, 90-day, and 30-day notification letters addressed to the Chief Executive Officer stating that the community will be suspended unless the required floodplain management measures are met prior to the effective suspension date. Since these notifications were made, this final rule may take effect within less than 30 days.

National Environmental Policy Act.This rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Considerations. No environmental impact assessment has been prepared.

Regulatory Flexibility Act.The Administrator has determined that this rule is exempt from the requirements of the Regulatory Flexibility Act because the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits flood insurance coverage unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed no longer comply with the statutory requirements, and after the effective date, flood insurance will no longer be available in the communities unless remedial action takes place.

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

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

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

Paperwork Reduction Act.This rule does not involve any collection of information for purposes of the Paperwork Reduction Act, 44 U.S.C. 3501et seq.

Accordingly, 44 CFR part 64 is amended as follows: