NCUA reviews one-third of its regulations each year to “update, clarify and simplify existing regulations and eliminate redundant and unnecessary provisions.” NCUA Interpretive Ruling and Policy Statement (IRPS) 87-2, as amended by IRPS 03-2, Developing and Reviewing Government Regulations. In its 2011 review, NCUA determined minor revisions to parts 760 and 790 are necessary to reflect current agency practice. In addition, a similar update to part 701 is made.

This rule amends parts 701, 760 and 790 of NCUA's regulations to make minor technical corrections. The corrections are necessary to update and conform the sections to current agency practice. Specifically, section 701.31 is updated to reflect that the Board has redesignated the Office of Consumer Protection to hear discrimination complaints under the Fair Housing Act and Equal Credit Opportunity Act. The Office of Examination and Insurance previously was assigned this responsibility. The rule amends section 701.31 to remove references to “Office of Examination and Insurance” and to replace those references with “Office of Consumer Protection”. Section 760.6 is updated to replace the Federal Emergency Management Administration's mailing address with its Web site address. Section 790.2 is amended to add the Office of Minority and Women Inclusion1 to the list of office descriptions; remove the separate description of the Office of Capital Markets and Planning and incorporate it into the description of the Office of Examination and Insurance; change the title of Director to Chief Financial Officer in the description of the Office of the Chief Financial Officer; update the description of the Regional Offices to reflect that other offices are primarily involved in chartering and insurance issues; and update the contact address of Region II.

This rule provides minor technical corrections and will not cause any substantive changes.

The Board is issuing this rulemaking as a final rule, effective upon publication. Generally, the Administrative Procedure Act (APA) requires a rulemaking to be published as a notice of proposed rulemaking with the opportunity for public comment, unless the agency for good cause finds that notice and public comment are impracticable, unnecessary, or contrary to the public interest. 5 U.S.C. 553. The Board believes good cause exists for issuing these amendments without notice and public comment. The amendments in this rule are not substantive, but merely technical in that they make minor corrections to update the regulations and conform them to current agency practice.

Additionally, the APA requires that a final rule must have a delayed effective date of 30 days from the date of publication, except for good cause. 5 U.S.C. 553(d). The Board also finds good cause to waive the customary 30-day delayed effective date requirement under the APA. 5 U.S.C. 553(d)(3). Again, the technical changes conform the rules to current agency practice. This rule will, therefore, be effective immediately upon publication.

The Regulatory Flexibility Act requires NCUA to prepare an analysis to describe any significant economic impact a rule may have on a substantial number of small entities (primarily those credit unions under ten million dollars in assets). This rule does not impose any regulatory burden. It merely makes non-substantive technical changes to parts 701, 760 and 790 of NCUA's regulations. These changes will not have a significant economic impact on a substantial number of small credit unions. Therefore, a regulatory flexibility analysis is not required.

The Paperwork Reduction Act of 1995 (PRA) applies to rulemakings in which an agency by rule creates a new paperwork burden on regulated entities or modifies an existing burden. 44 U.S.C. 3507(d); 5 CFR part 1320. For purposes of the PRA, a paperwork burden may take the form of either a reporting or a recordkeeping requirement, both referred to as information collections. These technical amendments do not impose any new paperwork burden.

Executive Order 13132 encourages independent regulatory agencies to consider the impact of their actions on state and local interests. In adherence to fundamental federalism principles, NCUA, an independent regulatory agency as defined in 44 U.S.C. 3502(5), voluntarily complies with the executiveorder. These changes will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. NCUA has determined that these changes do not constitute a policy that has federalism implications for purposes of the executive order.

NCUA has determined that this rule will not affect family well-being within the meaning of section 654 of the Treasury and General Government Appropriations Act, 1999, Pub. L. 105-277, 112 Stat. 2681 (1998).

The Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121) (SBREFA) provides generally for congressional review of agency rules. A reporting requirement is triggered in instances where NCUA issues a final rule as defined by Section 551 of the APA. 5 U.S.C. 551. Based on similar technical changes to the NCUA regulations, we believe the Office of Management and Budget will determine that this rule is not a major rule for purposes of SBREFA. As required by SBREFA, NCUA will file the appropriate reports with Congress and the General Accounting Office so this rule may be reviewed.

For the reasons discussed above, NCUA amends 12 CFR parts 701, 760, and 790 of title 12, chapter VII, of the Code of Federal Regulations as follows:

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in theFederal Registeron October 19, 2011 (76 FR 64849), and proposed to correct an unsafe condition for the specified products. The MCAI states:

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

We gave the public the opportunity to participate in developing this AD. We considered the comment received. The commenter, Air Line Pilots Association, International, supports the NPRM (76 FR 64849, October 19, 2011).

We reviewed the available data, including the comment received, and determined that air safety and the public interest require adopting the AD as proposed, except for minor editorial changes. We have determined that these minor changes:

• Are consistent with the intent that was proposed in the NPRM (76 FR 64849, October 19, 2011) for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM (76 FR 64849, October 19, 2011).

We estimate that this AD will affect about 83 products of U.S. registry. We also estimate that it will take about 2 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these parts. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of this AD to the U.S. operators to be $14,110, or $170 per product.

In addition, we estimate that any necessary follow-on actions would take about 3 work-hours and require parts costing $0, for a cost of $255. We have no way of determining the number of products that may need these actions.

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

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

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

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

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

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

3. Will not affect intrastate aviation in Alaska; and

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

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

You may examine the AD docket on the Internet athttp://www.regulations.gov;or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains the NPRM (76 FR 64849, October 19, 2011), the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone (800) 647-5527) is in theADDRESSESsection. Comments will be available in the AD docket shortly after receipt.

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

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in theFederal Registeron December 22, 2011 (76 FR 79558). That NPRM proposed to require replacing a certain aluminum high pressure pipe with a new corrosion resistant stainless steel pipe. The MCAI states:

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

We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM (76 FR 79558, December 22, 2011) or on the determination of the cost to the public.

We have clarified that the models affected by Airbus Mandatory Service Bulletin A300-52-6065, Revision 01, dated July 5, 2010, are Model A300-600 series airplanes. We have changed paragraph (g) of this AD accordingly.

We have revised the heading for and the wording in paragraph (j) of this AD; this change has not changed the intent of that paragraph.

We reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed except for minor editorial changes and/or the changes described previously. We have determined that these minor changes:

• Are consistent with the intent that was proposed in the NPRM (76 FR 79558, December 22, 2011) for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM (76 FR 79558, December 22, 2011).

We estimate that this AD will affect 152 products of U.S. registry. We also estimate that it will take about 4 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Required parts will cost about $0 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these parts. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of this AD to the U.S. operators to be $51,680, or $340 per product.

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

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

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

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

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

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

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.

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

You may examine the AD docket on the Internet athttp://www.regulations.gov;or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains the NPRM (76 FR 79558, December 22, 2011), the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone (800) 647-5527) is in theADDRESSESsection. Comments will be available in the AD docket shortly after receipt.

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

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that wouldapply to the specified products. That NPRM was published in theFederal Registeron December 30, 2011 (76 FR 82205). That NPRM proposed to require modification of the drain installation of the tailcone stinger on the aft canted bulkhead, inspections for drain holes in the forward and aft frames, and modification of the drain holes.

We gave the public the opportunity to participate in developing this AD. We have considered the comment received. The National Transportation Safety Board supports the NPRM (76 FR 82205, December 30, 2011).

We reviewed the relevant data, considered the comment received, and determined that air safety and the public interest require adopting the AD as proposed-except for minor editorial changes. We have determined that these minor changes:

• Are consistent with the intent that was proposed in the NPRM (76 FR 82205, December 30, 2011) for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM (76 FR 82205, December 30, 2011).

We estimate that this AD affects 475 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

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

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

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

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

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

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

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

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

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

After a recent review of aeronautical data, the National Flight Data Center (NFDC) identified twenty-two compulsory reporting points listed in FAA Order (FAAO) 7400.9, Airspace Designations and Reporting Points that were no longer valid and not contained in the FAA's aeronautical database as reporting points. The reporting points included fourteen Domestic reporting points designated at all altitudes, two Alaskan low altitude and five Alaskan high altitude reporting points, and one Hawaiian reporting point designated at all altitudes. No regulatory actions were accomplished prior to these compulsory reporting points being removed from the FAA aeronautical database and seven of the reporting point names have since been reused for navigation fixes elsewhere within the NAS. To overcome confusion and flight safety issues associated with publishing outdated and conflicting compulsory reporting point information, the FAA is removing the twenty-two reporting points, as identified by NFDC, from Part 71, and removing them from FAAO 7400.9. Accordingly, since this is an administrative change and does not affect any current compulsory reporting points, notice and public procedures under Title 5 U.S.C. 553(b) are unnecessary.

The FAA amends Title 14 Code of Federal Regulations (14 CFR) part 71 by removing fourteen Domestic reporting points designated at all altitudes, two Alaskan low altitude and five Alaskan high altitude reporting points, and one Hawaiian reporting point. Specifically, the FAA removes the ABACO, ALLBA, BACUS, BRIMS, CARPS, CATFI, CRABI, EARNS, FLASH, FLORI, GATES, OHIOS, SMELT, and SQUID Domestic reporting points; the NESSY and SAVRY (both low altitude) and the AUGIN, ENCOR, KILLA, NESSY, and SAVRY (all high altitude) Alaskan reporting points; and the SHILA Hawaiian reporting point, from part 71.

Domestic Reporting Points designated at all altitudes are listed in paragraph 7003 of FAA Order 7400.9V dated August 9, 2011, and effective September 15, 2011, which is incorporated by reference in 14 CFR 71.1. Alaskan Low Altitude Reporting Points are listed in paragraph 7004 of FAA Order 7400.9V dated August 9, 2011, and effective September 15, 2011, which is incorporated by reference in 14 CFR 71.1. Alaskan High Altitude Reporting Points are listed in paragraph 7005 of FAA Order 7400.9V dated August 9, 2011, and effective September 15, 2011, which is incorporated by reference in 14 CFR 71.1. Hawaiian Reporting Points are listed in paragraph 7006 of FAA Order 7400.9V dated August 9, 2011, and effective September 15, 2011, which is incorporated by reference in 14 CFR 71.1. The reporting points listed in this document will be revised subsequently in the Order.

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

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

This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it removes Domestic, Alaskan, and Hawaiian Reporting Points contained in the NAS.

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

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

1. Pursuant to section 215 of the Federal Power Act (FPA),1 the Commission approves Reliability Standard PRC-023-2 (Transmission Relay Loadability) submitted by the North American Electric Reliability Corporation (NERC), the Electric Reliability Organization (ERO) certified by the Commission. The Reliability Standard requires transmission owners, generation owners, and distribution providers to set load-responsive phase protective relays according to specific criteria to ensure that the relays reliably detect—and protect the electric network from—fault conditions, but do not limit transmission loadability or interfere with system operators' ability to protect system reliability.2 The Commission also approves NERC Rules of Procedure Section 1700—Challenges to Determinations, which provides registered entities a means to challenge determinations made by planning coordinators under Reliability Standard PRC-023.

2. Protective relays are devices that detect and initiate the removal of faults on an electric system.3 They are designed to read electrical measurements, such as current, voltage, and frequency, and can be set to recognize certain measurements as indicating a fault. When a protective relay detects a fault on an element of the system under its protection, it sends a signal to an interrupting device(s) (such as a circuit breaker) to disconnect the element from the rest of the system. Impedance relays, which are the most common type of relays used to protect transmission lines, continuously measure voltage and current on the protected transmission line and operate when the measured magnitude and phase angle of the impedance (voltage/current) falls within the settings of the relay.

3. Currently effective Reliability Standard PRC-023-1 applies to relay settings on (1) all transmission lines and transformers with low-voltage terminals operated or connected at or above 200 kV; and (2) those transmission lines and transformers with low voltage terminals operated or connected between 100 kV and 200 kV that are designated by planning coordinators as critical to the reliability of the bulk electric system.4 The Reliability Standard consists of three Requirements and an Attachment A. Requirement R1 requires entities with certain transmission facilities to set their relays according to one of thirteen specific settings (sub-parts R1.1 through R1.13) designed to maximize loadability while maintaining Reliable Operation of the bulk electric system for all fault conditions. Requirement R2 provides additional obligations for entities that elect certain settings. Requirement R3 requires planning coordinators to designate facilities, operated between 100 kV and 200 kV, that are critical to the reliability of the bulk electric system and are therefore subject to Requirement R1. Attachment A specifies the protection systems that are subject to and excluded from the Standard's Requirements.

4. On March 18, 2010, the Commission issued a Final Rule approving Reliability Standard PRC-023-1 (Transmission Relay Loadability), that requires transmission owners, generator owners, and distribution providers set load-responsive phase protection relays according to specific criteria to ensure that the relays reliably detect and protect the electric network from all fault conditions, but do not operate during non-fault load conditions.5 In addition, under section 215(d)(5) of the FPA, the Commission directed the ERO to develop modifications to the Standard to address certain issues identified by the Commission.

5. Requirement R1 states that each transmission owner, generator owner, and distribution provider subject to Reliability Standard PRC-023-1 shall use one of the criteria prescribed in sub-parts R1.1 through R1.13 for any specific circuit terminal to prevent its phase protective relay setting from limiting transmission system loadability while maintaining reliable protection of the bulk electric system for all fault conditions.

6. In Order No. 733, the Commission directed the ERO, under section 215(d)(5) of the FPA, to develop modifications to Requirement R1 to: (1) Require that transmission owners, generator owners, and distribution providers give their transmission operators a list of transmission facilities that implement sub-part R1.2;6 (2) require entities that have protective relays set pursuant to sub-part R1.10 to verify that the limiting piece of equipment is capable of sustaining the anticipated overload for the longest clearing time associated with a fault;7 and (3) require the ERO to document, subject to audit by the Commission, and to make available for review to users, owners, and operators of the Bulk-Power System, by request, a list of those facilities that have protective relays set pursuant to sub-part R1.12.8

7. Requirement R2 states that transmission owners, generator owners, and distribution providers that use a circuit with the protective relay settings determined by the practical limitations described in specified R1 sub-parts must use the calculated circuit capability as the circuit's facility rating and must obtain the agreement of the planning coordinator, transmission operator, and reliability coordinator with the calculated circuit capability.

8. Requirement R3 requires planning coordinators to designate which transmission lines and transformers with low-voltage terminals operated or connected between 100 kV and 200 kV are critical to the reliability of the bulk electric system and therefore subject to Requirement R1. Sub-part R3.1 requires planning coordinators to have a process to identify critical facilities. Sub-part R3.1.1 specifies that the process mustconsider input from adjoining planning coordinators and affected reliability coordinators. Sub-parts R3.2 and R3.3 require planning coordinators to maintain a list of critical facilities and provide it to reliability coordinators, transmission owners, generator owners, and distribution providers within 30 days of initially establishing it, and within 30 days of any subsequent change.

9. In Order No. 733, the Commission directed the ERO to modify Requirement R3 to: (1) Apply an “add in” approach to sub-100 kV facilities that are owned or operated by currently registered entities or entities that become registered entities in the future, and are associated with a facility that is included on a critical facilities list defined by the Regional Entity;9 (2) specify the test that planning coordinators must use to determine whether a sub-200 kV facility is critical to the reliability of the Bulk-Power System;10 and (3) add the Regional Entity to the list of entities that receive a list of sub-200 kV facilities determined by the planning coordinator to be critical to the reliability of the bulk electric system.11 In addition, the Commission directed the ERO to develop an appeals process for entities to challenge a criticality determination.12

10. Attachment A to Reliability Standard PRC-023-1 specifies which protection systems are subject to and excluded from the Standard's Requirements. Section 1 of Attachment A provides that the Reliability Standard applies to any protective functions that can operate with or without time delay, on load current, including but not limited to: (1) Phase distance; (2) out-of-step tripping; (3) switch-on-to-fault; (4) overcurrent relays; and (5) communication-aided protection applications. Section 2 states that the Reliability Standard requires evaluation of out-of-step blocking schemes13 to ensure that they do not operate for faults during the loading conditions defined in the Standard's Requirements. Finally, section 3 expressly excludes certain relay elements and protection systems from the Reliability Standard's Requirements.

11. The Commission, in Order No. 733, directed the ERO to modify Attachment A to: (1) include section 2 as an additional Requirement with the appropriate violation risk factor and violation severity level in the Reliability Standard;14 and (2) include supervising relay elements on the list of relays and protection systems that are specifically subject to the reliability Standard.15

12. Reliability Standard PRC-023-1 established staggered effective dates for various Requirements and facilities. The Standard also included a footnote (exceptions footnote) to the “Effective Dates” section honoring temporary exceptions from enforcement actions approved by the NERC Planning Committee before NERC proposed the Reliability Standard.

13. In Order No. 733, the Commission directed the ERO, under section 215(d)(5), to modify the Reliability Standard to include an implementation plan for sub-100 kV facilities16 and to remove the exceptions footnote from the “Effective Dates” section of the Reliability Standard.17

14. In a March 18, 2011 Filing (March 18 Petition), NERC requests Commission approval of Reliability Standard PRC-023-2 (Transmission Relay Loadability) and NERC Rules of Procedure Section 1700—Challenges to Determinations.

15. In support of the March 18 Petition, NERC states that the proposed Reliability Standard requires transmission owners, generator owners, and distribution providers to verify relay loadability using methods that achieve “the reliability goal of this Standard in an effective and efficient manner familiar to the responsible entities.”18 In addition, NERC specifically identifies the benefits of proposed Reliability Standard PRC-023-2 as including (a) consistent identification of operationally critical circuits operated below 200 kV that must comply with the Requirements of the Standard, and (b) providing transmission operators, planning coordinators, reliability coordinators, and the ERO with more information regarding the criteria selected by entities for verifying relay loadability.19

16. Reliability Standard PRC-023-2 contains six requirements with the stated purpose of ensuring that protective relay settings do not limit transmission loadability, do not interfere with system operators' ability to take remedial action to protect system reliability, and are set to reliably detect all fault conditions and protect the electrical network from these faults.20 The proposed Reliability Standard also includes two attachments. Attachment A specifies the protection systems that are subject to and excluded from the Standard's Requirements. Attachment B specifies the criteria for determining the circuits which must comply with Requirements R1 through R5.

17. NERC describes Reliability Standard PRC-023-2 Requirement R1 as follows:

18. With the exception of clarifying language and the addition of criterion 10.1, proposed Requirement R1 retains the same criteria as currently existing PRC-023-1. Criteria 1 through 13 prescribe specific criteria to be used for certain transmission system configurations. These criteria account for the presence of devices such as series capacitors, and address circuit and transformer thermal capability.

19. Criterion 1 specifies transmission line relay settings based on the highest seasonal facility rating using the 4-hour thermal rating of a transmission line, plus a design margin of 150 percent. Criterion 2 allows transmission line relays to be set so that they do not operate at or below 115 percent of the highest seasonal 15-minute facility rating of a circuit, when a 15-minute rating has been calculated and published for use in real-time operations. Criterion 3 allowstransmission line relays to be set so that they do not operate at or below 115 percent of the maximum theoretical power capability. Criterion 4 may be applied where series capacitors are used on long transmission lines to increase power transfer. Criterion 5 applies in cases where the maximum end-of-line three-phase fault current is small relative to the thermal loadability of the conductor. Criterion 6 may be used for system configurations where generation is remote from load busses or main transmission busses.

20. Criterion 7 is appropriate for system configurations that have load centers that are remote from the generation center. Criterion 8 applies to system configurations that have one or more transmission lines connecting a remote, net importing load center to the rest of the system. Criterion 9 applies to the same system configuration, but applies to the load end. Criterion 10 is specific to transmission transformer fault protective relays and transmission lines terminated only with a transformer. Criterion 11 may be used for transformer overload protection relays when criterion 10 cannot be met. Criterion 12 may be used when the circuits have three or more terminals. The limited circuit loading capability established by this criterion will become the facility rating of the circuit. Finally, criterion 13 is intended to apply when otherwise supportable situations and practical limitations are not identified under criteria 1 through 12.

21. NERC explains that Reliability Standard PRC-023-2 modifies PRC-023-1 by adding criterion 10.1 to address the Commission's directive that entities with protective relays set pursuant to Requirement R1.10 of PRC-023-1, which is criterion 10 of Requirement 1 of PRC-023-2, must verify that the limiting piece of equipment is capable of sustaining the anticipated overload for the longest clearing time associated with a fault.22 The criterion requires coordination so that settings on a transformer's load responsive relay do not expose the transformer to a fault level and duration that exceeds the transformer's mechanical withstand capability.23 NERC further states in the March 18 Petition that it believes Requirement 10.1 is equally effective and efficient as the approach directed in Order No. 733.24

22. Proposed Reliability Standard PRC-023-2 adds a new Requirement R2 that requires each transmission owner, generation owner, and distribution provider to set its out-of-step blocking elements to allow tripping of phase protective relays for faults that occur during the loading conditions modeled under Requirement R1. NERC states in the March 18 Petition that Requirement R2 has been added to proposed Reliability Standard PRC-023-2 to address the Commission's directive to include section 2 of PRC-023-1 Attachment A as an additional Requirement with the appropriate violation risk factor and violation severity level.25 NERC has assigned this proposed Requirement a high violation risk factor and a severe violation severity level reflecting the impact to reliability of violating the Requirement.

23. Requirement R3 in Reliability Standard PRC-023-2 renumbers and makes conforming edits to Requirement R2 from PRC-023-1. Requirement R4 requires an entity that chooses to use Requirement R1 criterion 2 as the basis for verifying transmission line relay loadability to provide its planning coordinator, transmission operator, and reliability coordinator with an updated list of circuits associated with those transmission line relays at least once each calendar year. Similarly, Reliability Standard PRC-023-2 adds a new Requirement R5 that requires entities that set transmission line relays according to Requirement R1 criterion 12 to provide an updated list of the circuits associated with those relays to its Regional Entity at least once each calendar year, to allow the ERO to compile a list of all circuits that have protective relays settings that limit circuit capability. In the March 18 Petition, NERC states that new Requirements R4 and R5, respectively, address the Commission's directives relating to providing transmission operators a list of transmission facilities that implement criterion 2 and directing that the ERO create a list of those facilities that have protective relays set pursuant to criterion 12.26

24. Requirement R6 of Reliability Standard PRC-023-2 requires each planning coordinator to conduct an assessment at least once each calendar year (but no less frequently than every 15 months) by applying the criteria in Attachment B to determine the circuits in its planning coordinator area for which entities must comply with Requirements R1 through R5. Sub-part 6.1 requires the planning coordinator to maintain a list of circuits subject to PRC-023-2 per application of Attachment B identifying the year in which any criterion in Attachment B applies. Sub-part 6.2 requires the planning coordinator to provide the list to all Regional Entities, reliability coordinators, transmission owners, generators owners, and distribution providers within its planning coordinator area within 30 calendar days of establishing the initial list, and 30 days of any subsequent change thereto. NERC states in the March 18 Petition that the proposed sub-part 6.2, formerly Requirement R3.3 in PRC-023-1, modifies the Requirement in order to address the Commission's directive to add the Regional Entity to the list of entities that receive the list of critical facilities.27

25. Attachment A to Reliability Standard PRC-023-2 includes a new section 1.6 that extends the Standard's applicability to include phase overcurrent supervisory elements (i.e., phase fault detectors) associated with current-based, communication-assisted schemes (i.e., pilot wire, phase comparison, and line current differential) where the scheme is capable of inadvertent tripping for loss of communications, even if there is no fault on the line. In addition, conforming changes are made to proposed section 2.1, formerly section 3.1 of the PRC-023-1, to recognize that elements described in new section 1.6 are no longer excluded from the proposed Standard's scope. NERC states in the March 18 Petition that these changes have been made to address the Commission's directives to include supervising relay elements on the list of relays and protection systems that are specifically subject to the Reliability Standard.28 NERC further states that it believes section 1.6 of Attachment A is equally effective and efficient in addressing the Commission's concern as the approach directed in Order No. 733.29

In today's action, we are making a technical amendment to correct an erroneous codification of our 2003 boundary change rule with respect to the “California—NO2(1971 Annual Standard)” table in 40 CFR 81.305.1 As described in our October 7, 2003 final rule (68 FR at 57821 and 57824) redesignating certain air quality planning area boundaries in southern California, we intended to revise the entry in the table for “Riverside County (portion within SE. Desert AQMD) County” to “Riverside County (Coachella Valley planning area)” and to revise the entry for “Riverside County, non-AQMA portion County” to “Riverside County (portion not within South Coast Air Basin or Coachella Valley planning area).” However, the entry for “Riverside County (Coachella Valley planning area),” which was to become an entry in the table, is not found in the current version of the “California—NO2(1971 Annual Standard)” table whereas the entry for “Riverside County, non-AQMA portion County,” which was intended to be replaced, remains in the table. In today's action, we are making a technical amendment to ensure that the “California—NO2(1971 Annual Standard)” table in 40 CFR 81.305 to accurately reflect the intent of our 2003 boundary change action.

Today's technical amendment makes no change to the substance of our October 7, 2003 final rule.

With respect to the “California—Ozone (8-Hour Standard)” table in 40 CFR 81.305, we are making a number of technical amendments that stem from previous EPA rulemakings. All of the subject areas are located within the State of California.

On April 30, 2004, at 69 FR 23858, we published a final rule announcing and promulgating designations, classifications, and boundaries for areas in the country with respect to the 1997 8-hour ozone National Ambient Air Quality Standard (NAAQS) in accordance with the requirements of the Clean Air Act (CAA). In our April 30, 2004 final rule, we designated the Western Mojave Desert area as a moderate nonattainment area for the 1997 8-hour ozone National Ambient Air Quality Standard. See 69 FR 23858, at 23884-85 (April 30, 2004). Subsequently, on May 5, 2010, EPA published a final rule granting California's request for reclassification of several areas for the 1997 8-hour ozone standard. See 75 FR 24409 (May 5, 2010). The Western Mojave Desert was not among the areas that were the subject of EPA's May 5, 2010 final rule, but the changes made to the “California—Ozone (8-Hour Standard)” table to codify our May 5, 2010 final rule had the inadvertent effect of removing a portion of the definition of the Western Mojave Desert 8-hour ozone nonattainment area from the “California—Ozone (8-Hour Standard)” table. In today's action, EPA is making a technical amendment to re-insert the inadvertently removed portion of the definition of the Western Mojave Desert area into the “California—Ozone (8-Hour Standard)” table in 40 CFR 81.305.

Second, in codifying the designations in EPA's April 30, 2004 final rule, we inadvertently indented the title of the“Los Angeles-South Coast Air Basin, CA” in the “California—Ozone (8-Hour Standard)” table. Given the format of this table in the CFR, the inadvertent indentation of “Los Angeles-South Coast Air Basin, CA” in the “California—Ozone (8-Hour Standard)” table aligns the basin with the individual counties or portions thereof that comprise the basin and thus is potentially confusing. We are therefore making a technical amendment in today's action to properly format the title of the basin to show the proper relationship between the basin and the counties (or portions thereof) that comprise the basin.

Third, in our April 30, 2004 final rule, we inadvertently failed to list the Indian Wells Valley area (which is that portion of Kern County that lies in hydrologic unit number 18090205) as “Unclassifiable/Attainment” in the California table of designations and classifications for the 8-hour ozone standard. We provided an explanation for distinguishing the Indian Wells Valley area from the rest of eastern Kern County in the background documentation for the April 30, 2004 final rule, but did not include the appropriate listing in the California table. See pages 3-22 to 3-23 in Chapter 3 (“Justifications in Support of EPA's 8-Hour Ozone Designations”) of EPA's report in support of the final designations entitled, “Technical Support for State and Tribal Air Quality Designations and Classifications” (April 2004). In today's action, we are making a technical amendment to properly list the Indian Wells Valley portion of eastern Kern County as an “Unclassifiable/Attainment” area for the 1997 8-hour ozone standard.

Lastly, in EPA's April 30, 2004 final rule, EPA designated all of San Diego County in California as a nonattainment area for the 8-hour ozone standard but excluded from that nonattainment area a list of areas identified as La Posta Areas #1 and #2, Cuyapaipe Area, Manzanita Area, and Campo Areas #1 and #2. See 69 FR at 23887. We intended to designate the latter areas as “Unclassifiable/Attainment” and included our justification for their area designations and rationale for distinguishing them from the surrounding nonattainment area in the Technical Support Document for nationwide 8-hour ozone designations final rule. See pages 3-34 to 3-36 in Chapter 3 (“Justifications in Support of EPA's 8-Hour Ozone Designations”) of EPA's report in support of the final designations entitled, “Technical Support for State and Tribal Air Quality Designations and Classifications” (April 2004). However, the entries for these areas were inadvertently omitted from the table codifying designations and classifications for the 8-hour ozone standard within the State of California. In today's action, we are making a technical amendment to properly list the four tribal areas in eastern San Diego County as “Unclassifiable/Attainment” areas for the 1997 8-hour ozone standard.

Today's technical amendments make no change to the substance of EPA's April 30, 2004 or May 5, 2010 final rules.

Part 81, chapter I, title 40 of the Code of Federal Regulations is amended as follows:

The Patient Protection and Affordable Care Act (Pub. L. 111-148) was enacted on March 23, 2010, and the Health Care and Education Reconciliation Act of 2010 (Pub. L. 111-152) was enacted on March 30, 2010. We refer to the two statutes collectively as the Affordable Care Act. The Affordable Care Act reorganizes, amends, and adds to the provisions of Part A of Title XXVII of the Public Health Service (PHS) Act relating to group health plans and health insurance issuers in the group and individual markets.

Section 1560(c) of the Affordable Care Act provides that “nothing in this title (or an amendment made by this title) shall be construed to prohibit an institution of higher education (as such term is defined for purposes of the Higher Education Act of 1965) from offering a student health insurance plan, to the extent that such requirement is otherwise permitted under applicable Federal, State, or local law.”

On February 11, 2011, we published a proposed rule (76 FR 7767) regarding section 1560(c) entitled “Student Health Insurance Coverage.” In the preamble of the proposed rule, we explained that we interpreted section 1560(c) to mean that if particular requirements in the Affordable Care Act would have, as a practical matter, the effect of prohibiting an institution of higher education from offering a student health plan otherwise permitted under Federal, State or local law, such requirements would be inapplicable pursuant to section 1560(c). Accordingly, the proposed rule defined “student health insurance coverage” and specified that a small number of individual market requirements in the PHS Act and the Affordable Care Act would not apply to student health insurance coverage. We also asked for comments on how other Affordable Care Act requirements should apply in the case of student health insurance coverage. We received approximately one hundred comments in response to the proposed rule. They include comments from institutions of higher education and their associations, students and student organizations, faculty members, consumer organizations, health insurance issuers, and brokers.

The February 11, 2011 proposed rule included the following:

Definition.The proposed rule defined student health insurance coverage as a type of individual market health insurance coverage offered to students and their dependents under a written agreement between an institution of higher education and an issuer. Student health insurance coverage could not be offered to individuals other than students and their dependents, could not condition eligibility based on health status, and had to satisfy any additional requirements imposed under State law.

Exemptions from the PHS Act.The proposed rule would exempt student health insurance coverage from the guaranteed availability requirement of PHS Act section 2741(e)(1) and the guaranteed renewability requirement of PHS Act section 2742(b)(5). The proposed rule also would provide that student health insurance coverage could not establish an annual dollar limit on coverage lower than $100,000 for policy years beginning prior to September 23, 2012. The proposed rule would apply the generally applicable annual dollar limit requirements for individual health insurance coverage for subsequent policy years.

Student Administrative Health Fees.The proposed rule would clarify that student administrative health fees were not cost-sharing for purposes of PHS Act section 2713, which requires that certain preventive services be covered without cost-sharing. Student administrative health fees were defined as fees charged by institutions of higher education on a periodic basis to provide health care through school clinics, regardless of whether students utilize the clinics or enroll in student health insurance coverage.

Notice.The proposed rule would require that issuers give students a notice informing them of their coverage's exceptions from the specified PHS Act requirements. The notice would have to be prominently displayed in 14-point bold type on the front of the insurance policy or certificate and any other plan materials. Model language was provided.

Applicability.The proposed rule would be applicable to student health insurance coverage for policy years beginning on or after January 1, 2012.

We carefully considered all of the comments in drafting this final rule. The major comments are summarized below with our responses.

Comment:We received several comments concerning the proposed definition of student health insurance coverage in § 147.145(a). An issuer, a college association and a student advocacy group noted that, in addition to individual universities, consortia of universities and State boards of regents sometimes sponsor student health insurance coverage plans. In addition, they noted that student associations have sponsored insurance plans. A broker asked for clarification whether student health insurance coverage could encompass coverage sold to students attending high school. A college association requested clarification on what individuals can be included as dependents under student health insurance coverage. Lastly, an issuer proposed that temporary continuations of coverage following loss of student status be limited to 90 days.

Response:The proposed definition of student health insurance coverage would not prevent consortia of universities or State boards of regents from acting on behalf of an institution of higher education in entering into a written agreement with an issuer to provide student health insurance coverage since those bodies are either a collection of universities or part of the university system. Student associations sponsoring insurance plans are not institutions of higher education under the Higher Education Act of 1965, and therefore such coverage would not be student health coverage within the meaning of the proposed rule. However, depending on their circumstances, student associations may qualify as bona fide associations under § 144.103 which would allow them to be exempt from the current PHS Act guaranteed availability and guaranteed renewability requirements. The proposed definition would not include coverage provided under an agreement between an issuer and a high school, as the definition of an institution of higher education under the Higher Education Act does not include secondary institutions.

As discussed in the proposed rule's preamble, student health insurance plans have flexibility in determining which dependents, if any, are eligible for coverage under their plan terms. Similarly, student health insurance plans would have discretion under the proposed rule to allow temporary continuations of coverage upon events such as the loss of student status. For example, while a 90-day extension would be reasonable to allow a graduating student to transition to other coverage, a very lengthy extension, such as a 12-month extension, would not be consistent with the proposed requirement of § 147.145(a) that eligibility for student health insurance coverage be limited to students and their dependents. We are therefore adopting the proposed definition of student health insurance coverage in the final rule without change.

Comment:Nine colleges and universities urged that we allow student coverage, at least in some instances, to continue to be offered as short-term limited duration coverage. These commenters noted the temporary nature of student coverage, the fact that universities generally were issued a new policy each year, and the cost of compliance with the Affordable Care Act. Further, some universities and issuers asserted that student coveragewas not intended to provide comprehensive coverage and should rather be seen as part of the universities' risk mitigation strategies. A consumer group supported defining student health insurance as individual health insurance and noted the definition's consistency with past CMS statements. A higher education association recommended that any short-term limited duration policies issued to students be required to disclose that they do not comply with Affordable Care Act provisions.

Response:As discussed in the proposed rule's preamble, we understand that in the past many issuers have claimed that student health insurance coverage was short-term limited duration coverage and have not complied with the PHS Act. To that effect, issuers sometimes included coverage terms that were only minutes short of one year and placed disclaimers on the front pages of policies asserting non-renewable and short-term limited duration status. However, in practice, these policies often—(1) Allowed students to renew coverage as long as their schools had chosen to retain the policy (and, in some cases, the issuers cooperated with the universities in automatically renewing students who did not affirmatively opt out); (2) had significant numbers of students keep coverage for longer than one year; and (3) in some cases, even based annual and lifetime dollar limitations and preexisting condition exclusion limitation periods on students' coverage under the policies from the same issuer during prior academic years.

The effective date of this rule is intended to provide issuers and universities that operated with a reasonable belief that their policies were short-term limited duration coverage to come into compliance with the Affordable Care Act and the PHS Act. While there may be instances where short-term limited duration coverage is appropriately sold to students—for instance, foreign students studying for only one semester in the United States or U.S. citizens studying abroad for one summer—the short-term limited duration model does not apply to coverage that a student could have through the same health insurance issuer for one or more years during the course of his or her undergraduate or graduate education. CMS, along with the States, will monitor issuers' compliance with properly classifying student health insurance coverage following the effective date of this rule. Further, we point out that CMS has authority to impose penalties on health insurance issuers for failures to comply with the requirements of the PHS Act.

Comment:In the proposed rule, we specifically requested comments on the prevalence, structure, and State regulation of self-funded student health plans, given that the PHS Act does not provide authority for HHS to regulate such plans. In response, three consumer advocacy groups asked that we affirmatively encourage States to regulate self-funded student health plans to the extent permissible under Federal and State law. One issuer asserted that colleges would self-fund student health plans in response to a determination that insured student health plans fall under the Affordable Care Act, in order to avoid some of the requirements of the Affordable Care Act.

Response:From the comments to the proposed rule, it appears that there are approximately 200,000 students covered through student health plan arrangements that are self-funded through colleges and universities. While some commenters would prefer uniform regulation of all student plans; as stated in the proposed rule's preamble, however, we do not have the authority to regulate self-funded student health plans. The PHS Act and the Affordable Care Act give HHS regulatory authority over health insurance issuers in the group and individual markets and over non-Federal governmental group health plans, but self-funded student health plans do not fit into these categories. The proposed rule acknowledged that because self-funded student health plans are neither health insurance coverage nor group health plans, as those terms are defined in the PHS Act, HHS has no authority to regulate them, including extending Affordable Care Act policies to them. As explained in the proposed rule, these self-funded student health plans may be regulated by the States.

Comment:Nine issuers and four universities were concerned that eliminating annual and lifetime dollar limits would result in dramatic premium hikes for student plans and that many students will not be able to afford insurance. As a result, some commenters asserted that this elimination would cause universities to stop sponsoring student health insurance plans. An issuer opined that smaller schools would not have sufficiently large enrollments that could generate the premiums necessary to cover the risk exposure from unlimited maximums on plan dollar limits. These commenters proposed alternatives such as a slower phase-in of the annual limits rules, a permanent exception from these rules, and a waiver program under which universities could request exceptions from the generally-applicable rules.

Conversely, seven commenters, including some universities and consumer interest groups, supported the elimination of annual and lifetime dollar limits on student health insurance plans without a phase-in. Two commenters noted that while few students even come close to meeting these limits, the uncovered medical expenses could be catastrophic for those that do.

Response:In recognition of the considerable increase from $100,000 to $2 million in one year and in response to these comments, we have modified the proposed rule to the following schedule for restrictions on annual dollar limits—(1) annual limits of no less than $100,000 for policy years beginning on or after July 1, 2012 but before September 23, 2012; (2) annual limits of no less than $500,000 for policy years beginning on or after September 23, 2012, but before January 1, 2014; and (3) consistent with section 2711, no annual dollar limits for policy years beginning on or after January 1, 2014. The $500,000 annual dollar limit requirement for policy years beginning on or after September 23, 2012 provides student health insurance coverage a more gradual transition to full compliance with PHS Act section 2711 in 2014 but also protects students from catastrophic claims except in extreme cases. This schedule ensures persons with student health insurance coverage will be more fully protected from catastrophic claims within a few years, while allowing any costs associated with this important protection to be incorporated gradually. We point out that the student policies likely to see premium increases from this requirement are those policies that currently leave students with very significant financial exposure in the event of illness or accident.

Comment:Commenters, including universities, brokers, and issuers, generally recommended that preventive service coverage be provided at student health centers, unless referrals were needed to other providers. Industry and university commenters noted that student health insurance coverage benefits typically coordinate with services offered at the student health center and that this coordination eliminates duplication of benefits and makes student plans more affordable. Industry commenters noted that student health fees, separate from the studenthealth insurance coverage premiums, often cover access to certain preventive services from campus providers for both students enrolled in student health insurance coverage and other students who may have other or no coverage.

Response:Student health insurance coverage must include the preventive services specified under PHS Act section 2713 and the implementing regulations (45 CFR § 147.140). However, PHS Act section 2713 and the implementing regulations do not prevent student health insurance coverage from coordinating with student health centers to ensure the provision of these services. For example, an issuer can arrange for a student health center to serve as its in-network provider where students could receive preventive services without cost-sharing. This final rule also retains the clarification that student administrative health fees are not cost-sharing under section 2713 of the PHS Act. Student administrative health fees are those that are charged to all students enrolled at a college or university, regardless of whether a student enrolls in student health coverage or utilizes any services offered by the clinic, which gives all students access to a student health clinic's services and supports a number of services and activities that foster a healthier campus community.

Comment:Most commenters asserted that it would be inappropriate to apply section 2719A, which allows choice of certain health care professionals, to student health insurance coverage because of the unique nature of the student health system environment. More than two dozen commenters, including industry, university and consumer interest groups, noted the need to preserve the student health centers' role in providing care to students. Commenters emphasized the fact that student health insurance coverage's benefits are customized to take into account the services available from campus providers. Commenters also noted that campus providers serve as gatekeepers for care and as medical homes. Conversely, one consumer group asserted that it was not necessary to grant an exception from section 2719A to student health insurance coverage because students already are incentivized to use the geographically closest providers. Additionally, a consumer advocacy group noted that students would also need adequate access to health care when away from campus.

Response:The proposed rule does not prevent a student health insurance plan from designating providers at a student health center as its in-network providers and allowing students to choose from among those providers for purposes of satisfying section 2719A, provided that the centers have sufficient provider capacity and range of services available to support this designation. We believe that this provides an adequate incentive for students to obtain health care at the student health clinic while they are on campus, while also providing them with choice of providers when away from campus. We also note that student health centers vary in capacity and design, and some are not equipped to provide emergency services. Therefore, the final rule does not modify the proposed rule to grant student health insurance coverage exceptions from the provider choice requirements of section 2719A.

Comment:Commenters offered various approaches concerning how grandfather status should apply to student health insurance coverage. A university proposed that grandfather status apply to student health insurance coverage in the same manner that it applies to other individual health insurance coverage. Other commenters including issuers and brokers asserted that special treatment regarding grandfather status was advisable because issuers and universities were not able to predict the direction of this rule in advance and because the effective date of this rule as proposed (that is, policy years beginning on or after January 1, 2012) is much later than the Affordable Care Act's general date (March 23, 2010) for determining grandfather status. Commenters requested accommodations such as—(1) assessing grandfather status based on the student plan in place for the academic year 2011-2012; (2) setting grandfather status based on whether a university had the same or a similar policy within the parameters of the grandfather rule, not on a student-by-student basis, as a straight-forward application of the individual market rules would dictate; and (3) allowing issuers and universities a limited opportunity to revoke benefit changes that otherwise would trigger loss of grandfather status.

Response:While we understand the unique issues regarding grandfather status of student health insurance coverage, we do not have the legal discretion to alter the generally applicable grandfather rules. Grandfathering rules apply to health insurance issuers and plans across all markets. The rule defines student health insurance coverage to be a form of individual market coverage, and as such, grandfather status is determined as to the coverage in which each individual student was enrolled on March 23, 2010. Any coverage in which an individual student is newly enrolled after March 23, 2010 is non-grandfathered.

Comment:In response to the NPRM, a public health group, a women's rights organization, a student organization from a religiously-affiliated university, and an individual student commented on the importance of student health insurance coverage including benefits for contraception. The student organization and the individual student specifically noted that their schools' plans excluded coverage for contraceptive methods.

Subsequent to the NPRM on student health insurance coverage, on August 3, 2011, CMS, along with the Department of Labor and the Department of the Treasury (the Departments), published interim final rules (IFR) with request for comments (76 FR 46621) amending the Interim Final Rules Relating to Coverage of Preventive Services, codified at 45 CFR § 147.130. The August 3, 2011 amended IFR provided the Health Resources and Services Administration (HRSA) authority to exempt group health plans established or maintained by certain religious employers (and group health insurance coverage provided in connection with those group health plans) from any requirement to cover contraceptives required as a result of any HRSA guidelines.

In response to the August 3, 2011 amended IFR, the Departments received comments from a council of religiously-affiliated schools and from numerous religious-affiliated colleges and universities requesting that, among other suggestions, the exemption be broadened to include plans that meet the definition of a church plan under section 414(e) of the Internal Revenue Code and also to include student health insurance plans facilitated by religiously-affiliated colleges and universities. Conversely, the Departments received comments from women's advocacy organizations and from a constitutional rights organization requesting that the exemption either be stricken from the IFR or at least narrowed.

Response:With respect to certain non-profit institutions of higher education with religious objections to covering contraceptive services whose student health insurance plans are not grandfathered health plans, if the college or university and its student health insurance plan satisfy the terms applicable to an employer and its group health plan (and group health insurance coverage provided in connection withthat group health plan) under the Guidance released on February 10, 2012, establishing a temporary one-year enforcement safe harbor for group health plans established or maintained by certain non-profit, non-exempt employers with religious objections to covering contraceptive services (and group health insurance coverage provided in connection with those group health plans),1 the college or university and the issuer of the student health insurance coverage will also be subject to the temporary one-year enforcement safe harbor, and contraceptive benefits will not have to be provided in its student health insurance plan until policy years beginning on or after August 1, 2013. Satisfaction of such terms includes sending the requisite notice to the students enrolled in the student health insurance plan and the institution of higher education maintaining on file the requisite self-certification.

Before the end of the temporary enforcement safe harbor, the Departments will work with stakeholders to develop alternative ways of providing contraceptive coverage without cost-sharing to students of non-profit religious institutions of higher education with religious objections to such coverage. Specifically, the Departments plan to initiate rulemaking to require issuers to offer student health insurance plans without contraceptive coverage through such an institution and simultaneously to offer contraceptive coverage without cost-sharing directly to the student health insurance plan enrollees (and their dependents). Under this approach, the Department also will require that, in this circumstance, there be no charge for the contraceptive coverage. Actuaries, economists and experts have found that coverage of contraceptives is at least cost neutral when taking into account all costs and benefits in the health plan.

Comment:While commenters uniformly supported a notice requirement concerning how student health insurance coverage differs from other individual market coverage, they had various recommendations concerning the notice's content and appearance. Some consumer groups agreed with the proposed rule's specific approach. Other commenters, including provider associations, consumer advocacy groups and issuers, submitted a range of proposed changes to the notice, including that it—(1) Use terms likely to be understood by enrollees, such as using “new health reform law” in place of “PHS Act”; (2) provide contact information for State or local consumer assistance services; (3) clearly list exceptions from the PHS Act and the Affordable Care Act in a bulleted fashion; (4) be limited to one sentence in length; (5) use a conspicuous font and display; (6) permit font and display to conform more to the style of the document into which it is incorporated; (7) be provided in languages other than English; and (8) be allowed to be posted on schools' intranets. One consumer group suggested that notice regarding the special rules on guaranteed availability and renewability are unnecessary. In addition, two commenters recommended that the notice requirement sunset when the annual dollar limit requirement for student health insurance becomes consistent with that for all other individual health insurance coverage.

Response:While we retain the proposal that a notice should be provided to a student and any dependents describing how their coverage differs from other individual market coverage, and that the disclosure should be provided in the insurance policy or certificate and any other written materials for the coverage (for example, enrollment information), we include some modifications in the final rule in response to comments. We note that the proposed rule set out a model notice, with the intent of allowing health insurance issuers flexibility to create their own notice, provided that it met certain criteria.

In response to recommendations from commenters, the final rule modifies the content of the notice requirement, as well as simplifies the model notice. The content criteria was modified by removing the notice regarding guaranteed availability and guaranteed renewability, leaving only the content to inform students if the policy does not meet the annual limits restrictions. Additionally, the revised model notice in the final rule uses the term “health care reform law,” given that this phrase may be more understandable to consumers. Required language was also added advising students that they may be eligible for coverage under their parents' employer group health plan or a parent's individual market coverage if they are under the age of 26. This is important because coverage under a parent's employer or a parent's individual market plan may contain all of the protections of the Affordable Care Act, including adherence to the annual dollar limits requirements. In addition, we clarify that the notice must be provided in the insurance policy or certificate and in any other plan materials summarizing the terms of the coverage (such as a summary description document). Finally, the final rule sunsets the notice requirement when the annual limits requirement is consistent with other individual health insurance coverage.

Comment:One consumer advocacy group recommended that January 1, 2012 be the latest date for student health insurance coverage to comply with the individual market requirements. This commenter expressed concern that by establishing policy years beginning on or after January 1, 2012 as the effective date for the rule, most students will have to wait until the 2012-2013 school year to benefit from the rule. A related concern of the commenter was that this effective date allows issuers to increase premiums and collect as much profit as possible before the Federal MLR requirements take effect.

One issuer urged HHS to issue a final rule no later than August 1, 2011 or otherwise delay the effective date so that issuers have adequate time to prepare for compliance. The commenter explained that negotiations for and sales of 2012-2013 academic year policies will occur in the Fall of 2011.

Response:We recognize the concerns of issuers regarding timing, but we had to ensure that the final rule is consistent with other policies. We believe that the timing of this final rule provides sufficient time for issuers to comply with the new provisions for the 2012-2013 academic year.

Comment:Issuers and brokers raised several general issues concerning the applicability of the PHS Act and the Affordable Care Act to foreign students studying in the United States. They asserted that plans for inbound foreign students have unique administrative cost structures, benefit designs, and medical utilization patterns, which differ substantially from plans for domestic students. These commenters suggested that, because of these differences, schools should be allowed to offer separate plans for international students that are subject to different requirements than domestic health plans. One commenter asked that we exempt health plans for students who are not United States citizens from thePHS Act and the Affordable Care Act. In contrast, a consumer group and a school interest group urged HHS to subject international student plans to the same rules as all other individual market coverage.

Response:Health insurance coverage issued in a State, as that term is defined by the PHS Act and the Affordable Care Act, must comply with the applicable provisions of such Acts, without regard to the individuals being insured. However, as previously discussed, there may be circumstances where student coverage appropriately may still be sold on a short-term limited duration basis to foreign students, and thus the issuer would not have to comply with the PHS Act and the Affordable Care Act.

Comment:Issuers noted that the State Department's Bureau of Educational and Cultural Affairs requires students on J-1 Exchange Visitor visas to maintain health insurance coverage that includes medical benefits of at least $50,000 per accident or illness, includes a deductible of not more than $500 per accident or illness, and meets other requirements (22 CFR 62.14). One commenter requested that we ensure that our final rule and 22 CFR 62.14 do not conflict.

Response:We reviewed the requirements under 22 CFR 62.14 and believe that issuers will be able to comply both with those rules and this final rule.

Comment:Commenters offered a range of comments on the rule's interaction with State laws. A State insurance department requested a clarification that States could impose more stringent standards on student health insurance coverage than those under this rule. The State insurance department offered an example of a State requiring more detailed disclosures. One issuer requested this rule preempt State laws imposing additional standards on student health insurance coverage. On the other hand, several universities submitted a form letter urging that student health insurance coverage be subject only to State laws. A broker asserted that most States regulate student health insurance coverage as a form of blanket or group health insurance and urged that CMS allow States to continue to regulate student health insurance coverage in that fashion. Finally, several consumers expressed concern that student health insurance coverage would not be subject to rate review under PHS Act section 2794, as added by Affordable Care Act section 1003.

Response:As discussed in the preamble to the proposed rule, the PHS Act only preempts State standards and requirements to the extent that they prevent the application of a PHS Act requirement. (PHS Act sections 2724 and 2762). States may impose additional requirements on student health insurance (for example, additional disclosure requirements) and States may continue to regulate student health insurance coverage as a form of group or blanket health insurance, provided these standards do not prevent the application of the relevant individual market provisions of the PHS Act.

Section 1560(c) permits limited exemptions for student health insurance coverage from those generally applicable Affordable Care Act requirements that, as a practical matter, would prohibit the offering of student health insurance coverage. Section 1560(c) does not allow CMS to except student health insurance coverage from compliance with all Federal requirements. Further, many commenters pointed out the inadequacy of many current student health insurance plans, which suggests that compliance solely with State laws has failed to ensure that students had access to comprehensive coverage in the past.

Issuers must comply with the Federal rate review process in 45 CFR Part 154 for non-grandfathered health insurance coverage that is included under a State's definition of individual market coverage or small group market coverage.

Comment:While the proposed rule did not include a specific proposal as to how Federal medical loss ratio (MLR) requirements in PHS Act section 2718 would apply to student health insurance coverage, we specifically requested comments on this issue. Section 2718 provides for the calculation of an issuer's MLR based on the percentage of premium revenue that is spent on health care claims and quality improvement, and directs that rebates be paid if this amount does not meet the minimum standard. We specifically invited comments on whether to make an adjustment to the MLR methodology to reflect the “special circumstances” of student health coverage, as allowed under PHS Act section 2718(c). Pursuant to our request in the proposed rule, we received several comments on the Federal MLR requirements as they relate to student health insurance coverage.

One university and student advocates strongly supported applying Federal MLR requirements to student health insurance coverage in the same manner as they apply to individual market insurance generally. This would mean using the standard methodology for calculating the MLR and applying the 80 percent standard for individual market insurance to the MLR produced by this standard methodology.

A majority of the brokers, agents, TPAs and issuers, however, asserted that applying the Federal MLR requirements to student health coverage without any special circumstances adjustment would be inappropriate and would force issuers to leave the student health insurance market. These commenters asserted that it would be difficult for student coverage to meet the Federal MLR requirements because of the unique operational and administrative nature of such plans. Most issuers stated that if the standard method for calculating the Federal MLR were applied, their MLRs would be between 65 percent and 82 percent. One issuer commented that only large issuers would be able to fold student insurance into their overall individual market blocks of business and continue to operate at the required Federal MLR standard if no adjustment were made to the methodology for calculating the MLR.

Specific examples of the unique administrative costs cited by several commenters include—(1) The transient nature of the student population, leading to high turnover; (2) more frequent enrollment periods; (3) the level of plan design customization required by different schools; (4) the operation and administration of student waiver programs; and (5) special billing practices related to student health centers. Additionally, one issuer asserted that college students' unfamiliarity with the health care system increases the cost of administrative expenses for student health plans.

Several issuers also provided specific recommendations to address the application of the Federal MLR requirements. A majority of these commenters proposed developing a special MLR methodology for student coverage. Two issuers recommended that student coverage in effect should be held to no higher than a 70 percent or 75 percent MLR. Several commenters suggested that student plans should be aggregated nationally as their own pool, and a few requested that the MLR reporting year should be based on an academic year or a policy year because this is how student plans are sold. One issuer specifically noted that it does not sell other individual health insurance coverage and, therefore, would not have any other individual market business to aggregate with the student experience.Another issuer had specific comments regarding when rebates should be due, and who should receive them.

Lastly, two commenters including an educational association recommended that HHS research, either independently or through an independent organization, whether student health plans have unique administrative expenses that warrant special treatment.

Response:We considered the comments and have reviewed additional data that supports the claim that student health plans have special circumstances specifically relating to their administrative cost structures. Accordingly, this final rule amends 45 CFR Part 158 by expressly stating that issuers of student health insurance coverage are subject to the individual market reporting and rebate requirements of the MLR rule. While some commenters requested modifying the Federal MLR percentage standard for student plans, HHS does not have the authority to change the MLR percentage standard for plans. HHS does have authority under PHS Act section 2718(c), however, “to take into account the special circumstances of smaller plans, different types of plans, and newer plans” in determining the methodology for calculating an issuer's MLR. This amendment to Part 158 exercises this authority by recognizing the special circumstances of student plans for purposes of the application of the Federal MLR requirements. The amendment to Part 158 provides that the experience for student coverage is to be reported separately from other individual market coverage. Further, given that student health insurance coverage is provided a separate pool, apart from other individual market coverage, the amendment provides for national aggregation of student health insurance coverage.2 In addition, by taking into account the special circumstances of student health insurance coverage and helping to ensure continued access to student health insurance coverage, this amendment to Part 158 comports with section 1560(c) of the Affordable Care Act, which provides that nothing in Title I of the Affordable Care Act (or any amendments) be construed to prohibit universities from offering student health insurance plans.

Also in response to comments from issuers, universities and student advocates and data from issuers and the NAIC, this amendment to Part 158 provides that the calculation of incurred claims and quality improving activities is to be multiplied by 1.15 in 2013. HHS has determined that this phased-in adjustment to the numerator for student health insurance coverage for the MLR requirements is sufficient to account for the special circumstances of student health plans, specifically their unique administrative costs. As mentioned above, issuers of student health insurance coverage commented that, based on current operations and unique costs associated with student coverage, they currently meet a 70 percent to 75 percent MLR standard and, therefore, would need an adjustment to meet the 80 percent MLR standard and place them on a glide path to compliance in 2014. The student health plan-specific MLR methodology is in effect for MLR reporting year 2013, and no special treatment is provided in MLR reporting year 2014 and beyond. As mentioned above, issuers provided many examples of the unique administrative expenses in the student market. While some of the expenses are inherent in the nature of student coverage (such as, high enrollee turnover and manual claims processing for student clinics), there are other administrative costs where issuers can potentially gain efficiencies in their operations (such as, marketing and plan customization). The phase-in of the MLR requirements is intended to provide issuers additional time to become more efficient in their operations and meet the individual market MLR requirement of 80 percent. We believe that this policy is responsive to the concerns of commenters, while still maintaining the protections under the Affordable Care Act. The rule also provides that the MLR reporting year for student coverage will be on a calendar year basis, beginning January 1, 2013. We maintained the calendar year MLR reporting structure for student coverage because, under Part 158, issuers currently report other individual market coverage on a calendar year basis. In addition, issuers of student health insurance coverage will be subject to the rebate provisions in Part 158, consistent with other individual market coverage. Since student health insurance coverage is individual market coverage, the rebates will be distributed directly to the student in the same manner as rebates from other individual market coverage. Lastly, the amendment to Part 158 includes conforming changes clarifying how life-years and credibility adjustments are applied to the student market.

Comment:Pursuant to our request in the proposed rule for comments on the applicability of other Affordable Care Act provisions, we received a large number of comments on the interaction between student health insurance coverage and various Affordable Care Act reforms effective in 2014.

Five commenters argued that PHS Act section 2702 and 2703, the 2014 guaranteed availability and renewability provisions, should not apply to student health insurance coverage, consistent with the proposed rule's exemption from PHS Act section 2741 and 2742, the current HIPAA guaranteed availability and renewability requirements. One commenter further pointed out the need to have flexibility to limit guaranteed availability to open enrollment periods.

Three universities and a consumer advocacy group expressed concern that universities would stop sponsoring student health insurance due to coverage being available through the Affordable Insurance Exchanges. One university asserted students are better served purchasing coverage while enrolling for classes, while another university expressed concern that provider networks could be inadequate for students with coverage through an out-of-state Exchange. Four commenters requested that the subsidies available through the Affordable Insurance Exchanges be available for use with student health insurance coverage and self-funded student plans. On the other hand, three commenters opposed the offering of student health insurance coverage through the Affordable Insurance Exchanges, arguing that this would interfere with the administration of colleges' mandatory insurance requirements and that, in any event, most students' family income levels would disqualify them for subsidies.

Several commenters requested that student health insurance coverage and self-funded student health plans be specifically recognized as minimum essential coverage. Two commenters suggested that self-funded student health plans be required to meet the same coverage requirements as student health insurance coverage in order to be deemed minimum essential coverage.

Lastly, two commenters proposed that student health insurance coverage continue to have its experience separately pooled, notwithstanding the single risk pool requirement that otherwise goes into effect for the individual market in 2014, and one commenter proposed that student healthinsurance coverage be deemed large group coverage and therefore exempt from the essential health benefits package requirements.

Response:We considered the comments concerning those Affordable Care Act provisions that become effective in 2014 and have decided to address these issues with respect to student coverage in conjunction with final regulations concerning the Affordable Insurance Exchanges, the market requirements of the PHS Act, the definition of minimum essential coverage, tax credits for premium assistance, and other 2014 issues.

As noted, the proposed rule included exemptions for student health plans from the current guaranteed issue and renewability requirements of PHS Act sections 2741 and 2742 for policy years beginning on or after July 1, 2012.

For the most part, this final rule incorporates the provisions of the proposed rule. The provisions of this final rule that differ from the proposed rule are:

•Annual limits.We modified the phase-in schedule so that student health insurance coverage cannot have annual dollar limits on essential health benefits less than $500,000 for policy years beginning on or after September 23, 2012, but before January 1, 2014.

•Notice Requirement.We streamlined the content of the notice requirement by removing notice of the exemption regarding guaranteed availability and guaranteed renewability and simplified the model notice by using terms more easily understood by students and their dependents. Required language was also added advising students that they may be eligible for coverage under their parents' employer or individual market coverage if they are under the age of 26. In addition, we added a sunset provision to the notice in 2014 for when the annual limits requirements become consistent with other individual health insurance coverage.

•Medical Loss Ratio.We amended 45 CFR Part 158 by expressly stating that issuers of student health insurance coverage are subject to the reporting and rebate requirements of the MLR rule. However, as allowed by PHS Act section 2718(b)(1)(A)(ii), adjustments to the MLR numerators are provided for MLR reporting year 2013 due to their unique circumstances. In addition, we added specific provisions to § 158.120 providing that student coverage will be aggregated nationally as its own pool rather than on a State by State basis, and its experience will be reported separate from other policies. Lastly, the rule includes conforming changes regarding how credibility adjustments are applied to the student health insurance market.

Under the Paperwork Reduction Act of 1995, we are required to provide 30-day notice in theFederal Registerand solicit public comment before a collection of information requirement is submitted to the Office of Management and Budget (OMB) for review and approval. In order to fairly evaluate whether an information collection should be approved by OMB, section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 requires that we solicit comment on the following issues:

• The need for the information collection and its usefulness in carrying out the proper functions of our agency.

• The accuracy of our estimate of the information collection burden.

• The quality, utility, and clarity of the information to be collected.

• Recommendations to minimize the information collection burden on the affected public, including automated collection techniques.

We are soliciting public comment on each of these issues for 45 CFR 147.145(d), which contains information collection requirements (ICRs). Section 147.145(d)(1) requires issuers of student health insurance coverage to provide notice to enrollees that the policy does not meet the minimum annual limits requirement of the Affordable Care Act. In addition, the final regulation requires that the disclosure must be prominently displayed in clear, conspicuous 14-point bold type. Additionally, the final regulation provides model language that issuers of student health insurance coverage can use in order to be in compliance with the notice requirement. The model language is provided in 45 CFR 147.145(d)(2).

In order to provide the notices, the issuers of student health insurance coverage will need to review the model language or draft their own language, incorporate the plan or issuer's name into the model notice (or a notice that is similar to the model), and print the notice in any plan or policy documents that are regularly sent to student enrollees.

Minor changes in the notice requirement from the proposed rule create no additional burden beyond that calculated in the proposed rule. The final rule modifies the content of the notice requirement, as well as simplifies the model notice. The content was modified by removing the notice regarding guaranteed availability and guaranteed renewability and by using the term “health care reform law.” Required language was also added advising students that they may be eligible for coverage under their parents' employer or individual market coverage if they are under the age of 26. In this final rule, we are adopting the burden estimate in the student health insurance coverage proposed rule. This burden estimate encompasses the entire notice process which includes assembly of the notice. It is estimated that approximately 75 student health insurance coverage issuers will have to provide such notice.3 We estimate that it will take approximately 2 minutes per student enrollee or approximately 1,000 hours per student health insurance issuer to prepare and mail the notices to students. Including hourly wage and printing and mailing costs, we estimate the annual cost burden will be $40,840 per affected issuer for a total cost of $3,063,000. In some cases, actual burden per notice (for example, postage) may be lower because we expect that many issuers will insert the model language into the existing plan materials that they were already intending to send to enrollees each year.

This is a summary of anOrderreleased on February 1, 2012. The complete text of theOrder,including an attachment and related Commission documents, is available for public inspection and copying from 8 a.m. to 4:30 p.m. Eastern Time (ET) Monday through Thursday or from 8 a.m. to 11:30 a.m. ET on Fridays in the FCC Reference Information Center, 445 12th Street SW., Room CY-A257, Washington, DC 20554. TheOrderand related Commission documents also may be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc. (BCPI), 445 12th Street SW., Room CY-B402, Washington, DC 20554, telephone 202-488-5300, fax 202-488-5563, Web sitehttp://www.BCPIWEB.com. When ordering documents from BCPI, please provide the appropriate FCC document number, for example, FCC 12-12. TheOrderand related documents also are available on the Internet at the Commission's Web site:http://wireless.fcc.gov/auctions, or by using the search function for WT Docket No. 05-211 on the Commission's Electronic Comment Filing System (ECFS) Web page athttp://www.fcc.gov/cgb/ecfs/.

1. InCouncil Tree Communications, Inc.v.FCC,619 F.3d 235 (3d Cir. 2010),cert. denied,131 S. Ct. 1784 (2011), the U.S. Court of Appeals for the Third Circuit vacated two modifications the Federal Communications Commission (Commission) had made in 2006 to its competitive bidding rules for designated entities on the ground that the Commission had failed to provide the public an adequate opportunity for notice and comment. The Commission removes the two modifications in accordance with the Third Circuit's mandate.

2. The Third Circuit held that the Commission's impermissible material relationship rule in 47 CFR 1.2110(b)(3)(iv)(A) and its extension of the unjust enrichment period from five years to ten years in 47 CFR 1.2111(d)(2) had been adopted without the notice and opportunity for comment required by the Administrative Procedure Act. The Court thus vacated the impermissible material relationship rule and ordered reinstatement of the Commission's previous five year unjust enrichment payment schedule. The Court also denied Council Tree's petition for review with respect to the attributable-material-relationship rule articulated in 47 CFR 1.2110(b)(1) and (b)(3)(iv)(B).

3. TheOrderconforms Part 1 of the Commission's rules to the Court's mandate by amending 47 CFR 1.2110 to remove paragraph (b)(3)(iv)(A) and 47 CFR 1.2111 by removing paragraph (d)(2)(i) as no longer applicable and reinstating the previous version of the payment schedule in 47 CFR 1.2111(d)(2). TheOrderalso conforms other Part 1 rules, as necessary, to remove several references to impermissible material relationships.

4. The Commission finds that notice and comment are unnecessary for these rule amendments under 5 U.S.C. Section 553(b), because this is a ministerial order issued at the direction of the United States Court of Appeals for the Third Circuit.

5. The Commission will send a copy of theOrderto Congress and the Government Accountability Office pursuant to the Congressional Review Act,see5 U.S.C. 801(a)(1)(A).

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 1 as follows:

On November 26, 2010, PHMSA published a final rule in theFederal Register(75 FR 72878) titled: “Pipeline Safety: Updates to Pipeline and Liquefied Natural Gas Reporting Requirements.” That final rule added two new sections, 49 CFR 191.22 and 195.64, to the pipeline safety regulations that concerned the establishment of a national registry of pipeline and liquefied natural gas (LNG) operators. New operators use the national registry to obtain an Operator Identification (OPID) Number and existing operators use it to notify PHMSA of certain actions, including company name changes, certain construction activities, and project planning.

The national pipeline operator registry became effective on January 1, 2012. In compliance with the Paperwork Reduction Act requirements, PHMSA issued a 60-dayFederal Registernotice on December 13, 2010 (75 FR 77694), and a 30-dayFederal Registernotice onNovember 10, 2011 (76 FR 70217). The purpose of these notices was to gather and respond to comments on the actual forms used to collect information for the national pipeline operator registry.

PHMSA is issuing this advisory bulletin to clarify the implementation of the national pipeline operator registry.

To:Owners and Operators of Pipeline and LNG Facilities.

Subject:Implementation of the National Registry of Pipeline and LNG Operators.

Advisory:This notice advises owners and operators of pipeline facilities of PHMSA's plan for implementing the national registry of pipeline and LNG operators. This notice provides updates to the information contained in a PHMSA Advisory Bulletin on the same subject published on January 13, 2012 (77 FR 2126).

From January 1, 2012, to January 27, 2012, PHMSA collected fillable pdf versions of OPID Assignment Request (Form F 1000.1). Starting January 27, 2012, the Online Data Reporting System (ODES) is used by entities requesting a new OPID. PHMSA is entering the pdf versions of OPID Assignment Request forms into ODES and will notify requestors when the OPID has been established.

While subject to the pipeline safety regulations, operators of master meter systems or petroleum gas systems that serve fewer than 100 customers from a single source are not required to file annual reports (see 49 CFR 191.11(b)). There were several thousand master meter system operators and several hundred small liquefied petroleum gas (LPG) operators who fell within the scope of this exception as of December 31, 2011.

While also subject to the requirements of 49 CFR 191.22, PHMSA previously determined that the operators of these systems would not be required to obtain an OPID. Instead, PHMSA agreed to create OPIDs for these operators based on the existing data in the agency's files. That is currently underway and will be completed by May 1, 2012.

In light of this experience, PHMSA has decided that master meter and small LPG operators established after December 31, 2011, will be required to obtain an OPID in accordance with 49 CFR 191.22. On May 1, 2012, PHMSA will modify ODES to allow these master meter and small LPG operators to request an OPID.The requirement to request an OPID continues to not apply to master meter and small LPG operators in existence prior to December 31, 2011.

On January 1, 2012, PHMSA began collecting fillable pdf versions of Notifications (Form F 1000.2). Starting March 27, 2012, operators will be able to submit notifications online through ODES, and PHMSA will enter all of the pdf versions of the notifications into ODES shortly thereafter.

Hazardous liquid pipeline operators are advised to disregard the notification requirement in § 195.64(c)(1)(iii). That provision requires notification for construction of any new pipeline facility without regard to cost. Section 195.64(c)(1)(i) also requires notification for construction of a new pipeline facility, but only for those projects with a cost of $10 million or more. PHMSA only wants notification of hazardous liquid pipeline facility construction projects with a cost of $10 million or more and plans to remove § 195.64(c)(1)(iii) in a future rulemaking.

On March 27, 2012, operators will be able to complete the validation process online. PHMSA requests that all OPIDs issued prior to January 1, 2012, complete the validation process. As with OPID Assignment Requests, master meter and small LPG operators in existence prior to December 31, 2011, are not required to complete the validation process. Based on the delayed availability of the on-line validation process, PHMSA is extending the regulatory deadline for validation from June 30, 2012, to September 30, 2012. PHMSA recommends that operators submit calendar year 2011 annual reports at least five working days prior to completing the validation process.

Further details on how to submit reports to PHMSA are available athttp://opsweb.phmsa.dot.gov.Questions should be directed to the Office of Pipeline Safety operator helpline at 202-366-8075.

Specifications, as referred to in this rule, are the combined suite of commercial and recreational catch levels established for one or more fishing years. The specification process also allows for the modification of a select number of management measures, such as closure thresholds, gear restrictions, and possession limits. The Council's process for establishing specifications relies on provisions within the Fishery Management Plan (FMP) and its implementing regulations, as well as requirements established by the Magnuson-Stevens Act.

In developing these specifications, the Council considered the recommendations made by its Monitoring Committee and Scientific and Statistical Committee (SSC). Generally, the SSC recommends to the Council acceptable biological catch (ABC) levels that take into account scientific uncertainty regarding stock status and biological reference points, and the Council relies on that ABC recommendation to set other specifications. Here, in addition to specifications for each of the MSB species, the Council recommended adjusting the mackerel closure threshold, and adjusting gear requirements for the butterfish and longfin squid fisheries. The Council made its specification recommendations at its June 14-16, 2011, meeting in Port Jefferson, NY, and submitted these draft recommendations, along with the required analyses, for agency review on August 9, 2011, with final submission on September 15, 2011. A proposed rule for 2012 MSB specifications and management measures was published on October 26, 2011 (76 FR 66260), and the public comment period for the proposed rule ended on November 25, 2011. Details concerning the Council's development of these measures were presented in the preamble of the proposed rule and are not repeated here.

The structure of specifications for the mackerel and butterfish fisheries was revised by the Council's recently finalized regulations implementing its Annual Catch Limit and Accountability Measure Omnibus Amendment (Omnibus Amendment; 76 FR 60606, September 29, 2011), which established annual catch limit (ACL) and accountability measure (AM) provisions for all of the Council's FMPs. The ACL/AM requirements do not apply to the squid species because they have a life cycle of less than 1 year. Following the specification of ABC, the revised regulations at § 648.22 require the specification of ACLs, which, if exceeded, require payback deductions from the subsequent year's catch limit. In order to reduce the chance of ACL overages, and the associated paybacks when ACLs are exceeded, the regulations also require NMFS to specify annual catch targets (ACTs) to provide a buffer for management uncertainty. Several specifications, including domestic annual harvest (DAH), domestic annual processing (DAP), total allowable level of foreign fishing (TALFF), and joint venture processing for mackerel (JVP), were previously required in the implementing regulations for the FMP, and were unchanged by the Omnibus Amendment.

For mackerel, the Omnibus Amendment and Amendment 11 to the MSB FMP (76 FR 68642; November 7, 2011) created distinct allocations for the commercial and recreational mackerel fisheries. The revised mackerel regulations require the specification of ACTs for both the commercial and recreational mackerel fisheries. For butterfish, the regulations also require specification of the mortality cap on the longfin squid fishery.

The regulations governing specifications forIllexand longfin squid are largely unchanged from previous fishing years. For both squid species, regulations at § 648.22 require the specification of ABC, initial optimum yield (IOY), DAH, and DAP.

The Mid-Atlantic Research Set-Aside (RSA) Program allows research projects to be funded through the sale of fish that has been set aside from the total annual quota. The RSA may vary between 0 and 3 percent of the overall quota for each species. The Council has recommended that up to 3 percent of the total ACL for mackerel and butterfish, and up to 3 percent of the IOY forIllexand longfin squid, may be set aside to fund projects selected under the 2012 Mid-Atlantic RSA. NMFS awarded portions of available butterfish and longfin squid RSA to support several projects; there were no RSA awards of mackerel andIllex.The award amounts are included in the specification descriptions for butterfish and longfin squid below. Descriptions of the selected projects were published in the proposed rule (76 FR 66260) and are not repeated here.

This action specifies the mackerel U.S. ABC at 43,781 mt, based on the formula U.S. ABC = T − C. T, or total annual catch, is the yield associated with a fishing mortality rate (F) that is equal to the target fishing mortality rate. C is the estimated catch of mackerel in Canadian waters (36,219 mt) for the 2012 fishing year. The Transboundary Resources Assessment Committee (TRAC) could not establish biomass reference points or a target F at its March 2010 mackerel stock status assessment, and recommended that total annual catches not exceed the average total landings (80,000 mt) from 2006-2008 until new information is available. Thus, 80,000 mt minus 36,219 mt results in the 2012 U.S. ABC of 43,781 mt. The ACL for the mackerel fishery is set equal to the U.S. ABC.

Consistent with MSB Amendment 11, this action allocates 6.2 percent of the ACL (2,714 mt) to the recreational mackerel fishery. The recreational ACT of 2,443 mt (90 percent of 2,714 mt) is reduced from the recreational allocation to account for low precision and time lag of recreational catch estimates, as well as lack of recreational discard estimates. The recreational ACT is equal to the Recreational Harvest Limit (RHL), which is the effective cap on recreational catch.

The commercial mackerel fishery is allocated 93.8 percent of the U.S. ABC (41,067 mt, the portion of the ACL that was not allocated to the recreational fishery). The commercial ACT of 34,907 mt (85 percent of 41,067) reduces the commercial allocation to address uncertainty in estimated 2012 Canadian landings, uncertainty in discard estimates, and possible misreporting. The commercial ACT is further reduced by a discard rate of 3.11 percent (mean plus one standard deviation of discards from 1999-2008), to arrive at a DAH of 33,821 mt. The DAH is the effective cap on commercial catch, as it has been in past specifications.

This action maintains joint venture processing (JVP) allocation at zero (the most recent allocation was 5,000 mt of JVP in 2004). In the past, the Council recommended a JVP greater than zero because it believed U.S. processors lacked the ability to process the total amount of mackerel that U.S. harvesters could land. However, for the past 8 years, the Council has recommended zero JVP because U.S. shoreside processing capacity for mackerel has expanded. The Council concluded that processing capacity was no longer a limiting factor relative to domestic production of mackerel.

While a surplus existed between ABC and the mackerel fleet's harvesting capacity for many years, that surplus has disappeared due to downward adjustments of the specifications in recent years. Based on analysis of the state of global mackerel markets and possible increases in U.S. production levels, the Council concluded that specifying a DAH/DAP resulting in zero TALFF will yield positive social and economic benefits to both U.S. harvesters and processors, and to the Nation. For these reasons, NMFS is specifying DAH at a level that can be fully harvested by the domestic fleet (33,821 mt). TALFF is therefore not specified in order to support the U.S. mackerel industry.

Finally, this action provides that the commercial fishery be closed at 95 percent of the DAH. The current closure threshold of 90 percent of the DAH was designed to accommodate misreporting in the commercial fishery, and the lack of a distinct allocation for the recreational fishery. A 95-percent closure threshold is considered sufficient to prevent overages, given that a recreational allocation is now required by the FMP.

This action specifies theIllexABC at 24,000 mt for the 2012-2014 fishing years, subject to annual review. The ABC is reduced by a discard rate of 4.52 percent (the mean plus one standard deviation of the most recent 10 years of observed discards) to account for discards ofIllexthat result from the operation of commercial fisheries, which results in an IOY, DAH, and DAP of 22,915 mt for the 2012-2014 fishing years. The FMP does not authorize the specification of JVP and TALFF for theIllexfishery because of the domestic fishing industry's capacity to harvest and to process the OY from this fishery.

This action specifies a longfin squid ABC of 23,400 mt for the 2012-2014 fishing years, subject to annual review. The ABC is reduced by a discard rate of 4.08 percent (mean plus one standard deviation of the most recent 10 years of observed discards) to account for discards of longfin squid that result from the operation of commercial fisheries, and 226 mt is set aside for RSA, resulting in an IOY, DAH, and DAP of 22,219 mt for the 2012-2014 fishing years. The FMP does not authorize the specification of JVP and TALFF for the longfin squid fishery because of the domestic industry's capacity to harvest and process the OY for this fishery.

As was done in all fishing years since 2007, the 2012-2014 longfin DAH is allocated into trimesters, according to percentages specified in the FMP, as follows:

This action will allow Longfin Squid/Butterfish moratorium permit holders to possess longfin squid in excess of the 2,500-lb (0.93-mt) possession limit during any closures of the longfin squid fishery resulting from the butterfish mortality cap, provided that all trawl gear is stowed and not available for immediate use, in accordance with § 648.23(b). The butterfish mortality cap was designed to limit butterfish bycatch in the longfin squid trawl fishery, and jigging for squid is not expected to result in substantial butterfish bycatch.

Compared to 2011, the butterfish specifications in the proposed rule would have increased the butterfish ABC by 100 percent (to 3,622 mt), and would have resulted in a 117-percent increase in the butterfish DAH (1,087 mt), and a 70-percent increase in the butterfish mortality cap on the longfin squid fishery (2,445 mt). A public comment on the proposed rule submitted by the Herring Alliance, an environmental group that represents 42 Northeast Coast organizations concerned about the status of the Atlantic Coast's forage fish, accurately pointed out that the proposed increase to the butterfish ABC is prohibited by the Council's risk policy at § 648.21(d), which states: “If an overfishing level (OFL) cannot be determined from the stock assessment, or if a proxy is not provided by the SSC during the ABC recommendation process, ABC levels may not be increased until such time that an OFL has been identified.”

This provision only applies to species, such as butterfish, that are subject to the ACL/AM requirements implemented through the Council's Omnibus Amendment, and for which NMFS seeks to raise the ABC. Therefore the commenter's objections to the proposed butterfish ABC do not apply to the specification for mackerel, which does not reflect an increased ABC, nor does it apply toIllexor longfin squid, neither of which is subject ACL/AM requirements because they have life cycles of less than one year. In response to this comment, NMFS is implementing status quo specifications in an interim final rule, and will allow 30 days for public comments.

Accordingly, this action specifies the 2012 butterfish ABC and ACL at 1,811 mt, and the ACT at 1,630 mt (reduced 10-percent from ACL). Butterfish TALFF is only specified to address bycatch by foreign fleets targeting mackerel TALFF. Because there is no mackerel TALFF, butterfish TALFF is also set at zero. This action allocates just under 70 percent of the ACT to cover butterfish discards, and 15 mt of butterfish RSA to cover discards related to allocated longfin squid RSA, which results in a DAH/DAP for butterfish of 485 mt. The butterfish mortality cap on the longfin squid fishery is specified at 1,436 mt. These specifications are consistent with the regulatory structure implemented in the Council's Omnibus Amendment, and include the same ABC and mortality cap implemented for the 2011 fishing year.

While the proposed rule contained a provision to require a 3-inch (7.62 cm) minimum mesh size for vessels possessing 2,000 lb (907.2 kg) or more of butterfish in order to allow some portion of butterfish discards to be landed, the interim final rule instead maintains the status quo (3-inch (7.62 cm) minimum mesh required to possess 1,000 lb (453.6 kg) or more of butterfish).

NMFS received four comments on the proposed specifications: One on behalf of Seafreeze, Ltd.; one from the Garden State Seafood Association (GSSA); one from Lund's Fisheries Incorporated (Lund's Fisheries); and one from the Herring Alliance. Several issues not relevant to the specifications were raised by various commenters; only the comments relevant to the proposed specifications are addressed below.

Comment 1:The Herring Alliance commented that NMFS should implement annual specifications, rather than 3-year specifications, for all stocks in the MSB fisheries until biological reference points can be determined.

Response:This action implements annual specifications for mackerel and butterfish, and 2012-2014 specifications forIllexsquid and longfin squid. The FMP allows for specifications to be set for up to 3 years for any of the MSB species. The Council has not recommended 3-year specifications for any of the MSB species in previous years, but did so this year forIllexand longfin squid. Though OFLs are not available for either squid species, the SSC determined that the best available information on these fisheries suggests that maintaining catches at the recommended levels in future years should not have a negative impact on the stock. In addition, substantial new information is unlikely to be available for the squid species in the intervening years because neither squid species is on the assessment schedule for 2012, 2013 or 2014. Setting the squid specifications for 3 years streamlines the regulatory process because the Council will not need to take action in the event that the SSC's and Council's squid specifications recommendations remain the same for upcoming years, but in no way binds the Council to maintain the recommendations. Though specifications for the squid species are being implemented for 3 years, the SSC must still evaluate the performance of the squid specifications each year, and the Council may propose any necessary adjustments through annual specifications.

Comment 2:GSSA and Lund's Fisheries support the proposed U.S. ABC of 43,781 mt, but were disappointed that the process of setting the U.S. ABC does not provide a mechanism to increase the U.S. ABC if Canadian catches are smaller than predicted. Lund's Fisheries suggested that Canadian underages should be added to the U.S. ABC as an in-season adjustment.

Response:The addition of a mechanism to increase the U.S. ABC if Canadian catches are smaller than predicted represents a significant change to the commercial quota system for mackerel. This type of mechanism would have to be considered through the Council process in order to allow for full development and justification for the adjustment, economic and biological analysis, and public comment. If the Council were to consider such a mechanism in the future, it could only be implemented through a framework adjustment or an amendment to theFMP, rather than through the specifications process. This is because the regulations governing the specifications process do not allow for adjustments to the commercial quota system. The Council would therefore have to consider such a mechanism in a future action.

Comment 3:GSSA and Lund's Fisheries support the proposed recreational allocation, and the application of a 10-percent management buffer to this allocation, but believed that a discard rate should have been applied to the recreational allocation.

Response:As noted in the comment and in the proposed rule, reliable discard estimates for the recreational fishery are not available. From 2004-2010, the Marine Recreational Fisheries Statistical Survey (MRFSS) estimated that recreational landings averaged 900 mt, and that 9.2 percent of that mackerel was “released alive.” Based on release mortality rates for other Mid-Atlantic species, the EA provides a conservative assumption that 30 percent of released mackerel die. If the recreational ACT of 2,443 mt is fully attained, NMFS estimates that 247 mt of mackerel will be released, and 74 mt of that mackerel will die after release. A 10-percent buffer is more than three times the estimated potential dead discards. Given the past performance of the recreational fishery, and the 10-percent buffer, NMFS believes that the potential for discards is adequately accounted for. As improvements to recreational data collection continue to be implemented, the MSB Monitoring Committee will re-examine the recreational ACT and consider whether discards should be accounted for in an explicit deduction.

Comment 4:GSSA, Lund's Fisheries, and the Herring Alliance oppose the 15-percent uncertainty buffer between the commercial allocation (93.8 percent of ABC) and the commercial ACT, which was proposed to account for uncertainty in estimated 2012 Canadian landings, uncertainty in discard estimates, and possible misreporting. GSSA noted that it was unclear whether the buffer was applied due to scientific or management uncertainty. GSSA and Lund's Fisheries expressed their view that this buffer is unnecessary, given that neither the U.S. quota nor the projected Canadian landings have been exceeded in recent years. Lund's Fisheries suggested that the commercial ACT should have been set equal to the commercial ACL (zero buffer). Conversely, the Herring Alliance asserted that uncertainty in the status of the mackerel stock supports a buffer of 25 percent or greater.

Response:The buffer between ACL and ACT is intended to address management uncertainty, which is the ability of managers to constrain catch to a target and the uncertainty in quantifying the true catch. NMFS supported the Council's recommendation for a 15-percent buffer between the ACL and ACT because of the uncertainty surrounding expected Canadian mackerel catch, which can vary significantly from year to year. When applied to past years, the method Council staff used to estimate 2012 Canadian catch sometimes underestimated Canadian catch by as much as 21,000 mt, and sometimes overestimated Canadian catch by as much as 25,000 mt. The additional buffer helps reduce the likelihood that a severe underestimate of Canadian catch will result in landings in excess of the stockwide ABC. The Herring Alliance suggested that a larger buffer was needed because of uncertainty in the status of the mackerel stock. Uncertainty in stock status is scientific uncertainty, which was addressed by the SSC during its deliberation regarding specification of the stockwide mackerel ABC. Given recent performance of the fishery, NMFS determined that a 15-percent buffer between the commercial ACL and ACT is appropriate to prevent overages of both the U.S. ABC, and to provide additional protection for the possible event that 2012 Canadian catch has been underestimated.

Comment 5:GSSA and Lund's Fisheries support the proposed specifications for butterfish.

Response:As noted in the preamble, NMFS cannot implement the proposed specifications because increasing the butterfish ABC violates the Council's risk policy. The status quo specifications are detailed above.

Comment 6:GSSA remains concerned that the ABC for butterfish is too low and does not consider the high recruitment possibilities for this stock. They expressed concern that continued low estimates may cause serious management problems for fisheries that incidentally catch butterfish.

Response:GSSA's concern appears to be in reference to the butterfish mortality cap on the longfin squid fishery. Because the 2011 cap did not result in a closure of the longfin squid fishery during the 2011 fishing year, NMFS does not have reason to believe the status quo butterfish mortality cap will necessarily result in a closure of the longfin squid fishery due to the harvest of the mortality cap for the 2012 fishing year.

Comment 7:The Herring Alliance recommended that NMFS disapprove the butterfish specifications. It argued that the butterfish specifications violate National Standards 1 and 2 for because: Increases to the butterfish ABC will not ensure that overfishing does not occur; increases to the ABC for butterfish without an OFL or OFL proxy violates the regulations implementing the Council's Omnibus Amendment; the basis upon which the butterfish cap was increased is not supported by scientific analyses; and a 10-percent buffer between ABC and ACT is insufficient to account for management uncertainty for the butterfish fishery.

Response:The butterfish specifications have been adjusted to address the concern that the Council's original ABC recommendation violates the regulations implementing the Omnibus Amendment. This interim final rule implements the status quo ABC of 1,811 mt.

NMFS does not agree with the Herring Alliance's assertion that a 10-percent buffer between ABC and ACT is insufficient to account for management uncertainty in the butterfish fishery. Though management uncertainty is a concern for the butterfish fishery, the FMP has a number of mechanisms to mitigate uncertainties beyond the 10-percent buffer between ABC and ACT. The specifications include an explicit deduction to account for discards in other fisheries. In addition, the butterfish mortality cap, which will be in its second year of operation in 2012, is designed to cap butterfish catch in the longfin squid fishery—the single largest source of fishing mortality for the butterfish stock. The cap acts as an accountability measure to control butterfish catch (landings and discards) in the longfin squid fishery, and can result in a closure of the longfin squid fishery if it is exceeded. Finally, NMFS also closes the directed butterfish fishery when 80 percent of the DAH has been attained. Though this level was exceeded in the 2010 and 2011 fishing years, the increased DAH should reduce the likelihood of an overage in the 2012 fishing year.

Comment 8:The Herring Alliance commented that the role of butterfish as forage should have been taken into account when setting specifications. It noted that marine predators switch prey depending on relative abundance and distribution of forage species. The Herring Alliance concluded that, because the status of stocks such as Atlantic herring, Atlantic mackerel, Atlantic menhaden, river herring andshad species may be compromised, precautionary protection may be warranted.

Response:The impact of natural mortality on the butterfish stock, which includes predation, is taken into account during the butterfish assessment process, and is addressed during the specification of the ABC. The assessment does not consider potential future changes in butterfish predation because information is not available on future trends in forage.

Comment 9:A scientist commented on behalf of Seafreeze, Ltd., without submitting any information, that NMFS did not use all available scientific information in the assessment, and therefore that butterfish specifications neither protect the species nor provide for sufficient fishing opportunity.

Response:The commenter did not provide any evidence that indicates that the butterfish assessment used to set these specifications does not constitute the best available scientific information.

Comment 10:GSSA and Lund's Fisheries support the proposed specifications for longfin squid andIllexsquid for the 2012-2014 fishing years.

Response:NMFS is implementing the specifications as proposed.

Comment 11:Lund's Fisheries requested that the timing of theIllexgear exemption should include the month of October due to availability of theIllexresource that can occur during that month.

Response:This rulemaking only clarifies the regulatory text for the exemption. An extension of the exemption to include the month of October is a change to the regulations that would have to be considered by the Council in a future action such as a framework adjustment or an amendment to the FMP.

Comment 12:GSSA and Lund's Fisheries do not support the jigging exemption until language detailing trawl gear stowage can be developed.

Response:The gear stowage provisions that appear at § 648.23(b) define how trawl gear should be properly stowed below the deck, on-deck, or on-reel to show that it is not available for immediate use.

Comment 13:The Herring Alliance commented that NMFS should direct the Council to establish OY forIllexsquid. They noted that the Council cannot appropriately adjust theIllexquota for economic, social, or ecological factors because it failed to identify OY.

Response:Previous iterations of the Atlantic mackerel, squid and butterfish FMP specify the framework for establishing OY forIllex.The maximum OY is set not to exceed the catch associated with a fishing mortality rate of Fmsy. This is assessment driven, and a lower amount may be set if warranted by the assessment. The regulations at § 648.22 contemplate that the ABC will be set annually at the maximum OY or a lower amount if the potential yield from the fishery is less than this level. Since maximum OY cannot be specified due to the lack of reference points for the fishery, an ABC of 24,000 mt was selected, since it is a level of yield that has been supported by the fishery since 2000. The regulations allow the ABC to be modified annually based upon economic and social factors. However, the Council modified the ABC simply by deducting estimated discards to arrive at the DAH of 22,915 mt. In essence, the OY forIllex,is the ABC, as modified by the deduction of discards to specify DAH and RSA.

Comment 14:GSSA and Lund's Fisheries support setting aside 3 percent of the mackerel and butterfish ACLs, and 3 percent of the longfin squid andIllexIOYs to fund research. They also support the three preliminarily approved projects, since the inshore information gathered in the projects should add to existing information about distribution of key commercial species.

Response:NFMS issues 497,527 lb (225 mt) of longfin squid and 33,069 lb (15 mt) of butterfish for the RSA proposals detailed in the proposed rule.

There are no changes from the proposed rule to the mackerel, longfin squid, orIllexsquid specifications or management measures. Instead of the butterfish specifications and management measures put forward in the proposed rule, this interim final rule implements status quo butterfish specifications and management measures.

The Administrator, Northeast Region, NMFS, determined that these specifications are necessary for the conservation and management of the Atlantic mackerel, squid, and butterfish fisheries and that they are consistent with the Magnuson-Stevens Fishery Conservation and Management Act and other applicable laws.

The Council prepared an EA for the 2012 specifications, and the NOAA Assistant Administrator for Fisheries concluded that there will be no significant impact on the human environment as a result of this rule. A copy of the EA is available upon request (seeADDRESSES).

This action is authorized by 50 CFR part 648 and has been determined to be not significant for purposes of Executive Order 12866 (E.O. 12866).

NMFS, pursuant to section 604 of the Regulatory Flexibility Act, has prepared a FRFA, included in the preamble of this final rule, in support of the 2012 specifications and management measures. The FRFA describes the economic impact that this final rule, along with other non-preferred alternatives, will have on small entities.

The FRFA incorporates the economic impacts and analysis summaries in the IRFA, a summary of the significant issues raised by the public in response to the IRFA, and NMFS's responses to those comments. A copy of the IRFA, the RIR, and the EA are available upon request (seeADDRESSES).

This action implements 2012 specifications for mackerel and butterfish, and 2012-2014 specifications forIllexand longfin squid. It also modifies the closure threshold for the commercial mackerel fishery, adjusts the gear requirements for the butterfish fishery, and allows for the use of jigs to capture longfin squid, should the longfin squid fishery be closed due to reaching the butterfish mortality cap. A complete description of the reasons why this action is being considered, and the objectives of and legal basis for this action, are contained in the preamble to the proposed and final rules and are not repeated here.

There were no issues related to the IRFA raised in public comments.

Based on permit data for 2011, the numbers of potential fishing vessels in the 2012 fisheries are as follows: 351 longfin squid/butterfish moratorium permits; 76Illexmoratorium permits; 2,201 mackerel permits; 1,904 incidental squid/butterfish permits; and 831 MSB party/charter permits. Small businesses operating in commercial and recreational (i.e., party and charter vessel operations) fisheries have been defined by the Small BusinessAdministration as firms with gross revenues of up to $4.0 and $6.5 million, respectively. There are no large entities participating in this fishery, as that term is defined in section 601 of the RFA. Therefore, there are no disproportionate economic impacts on small entities. Many vessels participate in more than one of these fisheries; therefore, permit numbers are not additive.

There are no new reporting or recordkeeping requirements contained in any of the alternatives considered for this action. In addition, there are no Federal rules that duplicate, overlap, or conflict with this final rule.

The recently finalized Omnibus Amendment, which applies to mackerel and butterfish, changes the structure of specifications compared to that used in past years. In order to facilitate comparison of alternatives, the discussions of mackerel and butterfish specifications below will focus on the effective limit on directed harvest, regardless of the terminology used for the specification. The specifications and terminology forIllexand longfin squid are unchanged from those used in 2011.

The mackerel commercial DAH specified in this action (33,821 mt) represents a reduction from status quo (2011 DAH = 46,779 mt). Despite the reduction, the DAH is above recent U.S. landings; mackerel landings for 2008-2010 averaged 18,830 mt. Thus, the reduction does not pose a constraint to vessels relative to the landings in recent years. In 2011, there was a soft allocation of 15,000 mt of the mackerel DAH for the recreational mackerel fishery. The Omnibus Amendment and MSB Amendment 11 requires NMFS to establish an explicit allocation for the recreational fishery, and this action specifies a Recreational ACT/RHL of 2,443 mt. Because recreational harvest from 2008-2010 averaged 738 mt, it does not appear that the new, explicit allocation for the recreational fishery will constrain recreational harvest. Overall, this action is not expected to result in any reductions in revenues for vessels that participate in either the commercial or recreational mackerel fisheries.

The adjustment to the mackerel closure threshold, which requires the closure of the commercial mackerel fishery at 95 percent of the DAH, is a preventative measure intended to ensure that the commercial catch limit is not exceeded. The economic burden on fishery participants associated with this measure is expected to be negligible.

The butterfish DAH specified in this action (500 mt) is the same as status quo. The DAH has been fully attained during the 2010 and 2011 fishing years.

TheIllexIOY (22,915 mt) specified in this action represents a slight decrease compared to status quo (23,328 mt). Though annualIllexlandings have totaled over2/3of the IOY in the past 3 years (15,900 mt for 2008, 18,419 mt for 2009, and 15,825 for 2010), the landings were lower than the level being proposed. Thus, implementing this action should not result in a reduction in revenue or a constraint on expansion of the fishery in 2012.

The longfin squid IOY (22,445 mt) represents an increase from the status quo (20,000 mt). Because longfin squid landings from 2008-2010 averaged 9,182 mt, the specified IOY provides an opportunity to increase landings, though if recent trends of low landings continue, there may be no increase in landings despite the increase in the allocation. No reductions in revenues for the longfin squid fishery are expected as a result of this proposed action.

As discussed in the FRFA for MSB Amendment 10, the butterfish mortality cap has a potential for economic impact on fishery participants. The longfin squid fishery will close during Trimesters I and III if the butterfish mortality cap is reached. If the longfin squid fishery is closed in response to butterfish catch before the entire longfin squid quota is harvested, then a loss in revenue is possible. The potential for longfin squid revenue loss depends upon the size of the butterfish mortality cap. This interim final rule maintains the 2012 butterfish mortality cap at the level that was specified for 2011 (1,436 mt). The 2011 butterfish mortality cap did not result in a closure of the longfin squid fishery in Trimester I. At the end of Trimester III, just over 40 percent of the butterfish mortality cap was left unharvested, and the cap did not result in a closure of the longfin squid fishery during the 2011 fishing year. Given that the status quo cap did not constrain the longfin squid fishery in 2011, additional revenue losses are not expected as a result of this interim final action.

The jigging measure will allow Longfin Squid/Butterfish moratorium permit holders to possess longfin squid in excess of the possession limit during any closures of the longfin squid fishery resulting from the butterfish mortality cap. Jigging for longfin squid has been shown to be commercially infeasible. However, because butterfish bycatch in jig gear is expected to be very minimal, it seems reasonable to allow jig fishing for squid. If attempts to use jig gear for commercial longfin squid fishing are successful, the use of this gear could help mitigate economic impacts on fishery participants if the longfin squid fishery is closed due to reaching the mortality cap.

The Council analysis evaluated four alternatives to the specifications for mackerel. The first (status quo) and second non-selected alternatives were based on the specifications structure that existed prior to the implementation of the Omnibus Amendment, and were not selected because they no longer comply with the MSB FMP. The other alternatives differed in their specification of the stockwide ABC (80,000 mt in the preferred alternative). The same amount of expected Canadian catch (36,219 mt) was subtracted from the stockwide ABC in each alternative. The third alternative (least restrictive) would have set the U.S. ABC and ACL at 63,781 mt (100,000 mt stockwide ABC minus 36,219 mt Canadian catch), the Commercial ACT at 50,853 mt, the DAH and DAP at 49,271 mt, and the Recreational ACT at 3,559 mt. The fourth alternative (most restrictive) would have set the U.S. ABC and ACL at 23,781 mt (60,000 mt stockwide ABC minus 36,219 mt Canadian catch), the Commercial ACT at 18,961 mt, the DAH and DAP at 18,371 mt, and the Recreational ACT at 1,327 mt. These two alternatives were not selected because they were all inconsistent with the ABC recommended by the SSC.

The status quo closure threshold for the commercial mackerel fishery (90 percent) was considered overly precautionary when compared to the selected closure threshold (95 percent). The status quo closure threshold, which was designed in part because there was no distinct allocation for therecreational mackerel fishery, is no longer considered appropriate.

Three alternatives to the preferred action were considered forIllex,but were not selected by the Council. All alternatives would have established specifications for the 2012-2014 fishing years. The first alternative (status quo), shared the same 24,000-mt ABC as the proposed action. However, a discard rate of 2.8 percent was deducted to reach an IOY, DAH, and DAP at 23,328 mt rather than the 22,915 mt specified in this proposed action. The Council did not select the status quo alternative because it found the updated discard rate of 4.52 percent to be a more appropriate representation of discards in theIllexfishery. The second alternative (least restrictive) would have set ABC at 30,000 mt, and IOY, DAH, and DAP at 28,644 mt (ABC reduced by 4.52 percent for discards). This alternative was not selected because the higher specifications were inconsistent with the results of the most recent stock assessment. The third alternative (most restrictive) would have set ABC at 18,000 mt, and IOY, DAH, and DAP at 17,186 mt (ABC reduced by 4.52 percent for discards). The Council considered this alternative unnecessarily restrictive.

There were three alternatives to the selected action evaluated for longfin squid. All alternatives would have established specifications for the 2012-2014 fishing years. The first alternative (status quo) would have set the ABC at 24,000 mt, and the IOY, DAH and DAP at 20,000 mt. The second alternative (least restrictive) would have set the ABC at 29,250 mt, and the IOY, DAH, and DAP at 28,057 mt (ABC reduced by 4.08 percent for discards). The third alternative (most restrictive) would have set the ABC at 17,550 mt, and the IOY, DAH and DAP at 16,834 mt (ABC reduced by 4.08 percent for discards). These three alternatives were not selected because they were all inconsistent with the ABC recommended by the SSC.

The alternatives for longfin squid RSA would have allowed up to 1.65 percent (status quo) or up to 3 percent (preferred) of the longfin squid IOY to be used to fund research projects for the 2012-2014 fishing years. In 2011, butterfish RSA was only awarded to cover butterfish discards by vessels fishing for longfin squid RSA. The small amount of butterfish RSA available in 2011 (15 mt, or 3 percent of 500 mt butterfish DAH) was only sufficient to cover discards for an amount of longfin squid RSA equal to 1.65 percent of the IOY. The recommended increase in the 2012 butterfish quota will allow for enough butterfish RSA (3 percent of the 1,087 mt butterfish DAH) to accommodate discards for longfin squid RSA equal to 3 percent of the IOY.

For the jigging exemption, the status quo alternative prevents Longfin squid/Butterfish moratorium permit holders from possessing or landing over 2,500 lb (1.13 mt) of longfin squid if the directed fishery is closed because of the butterfish mortality cap. The preferred alternative would allow such vessel to possess and land over 2,500 lb (1.13 mt) if using jigging gear. If the use of jigs for commercial longfin squid fishery proves successful, the preferred alternative may help reduce the economic impacts of closures of the longfin squid fishery resulting from the butterfish mortality cap.

There were six alternatives to the preferred action for butterfish that were not selected. The first (status quo) and second non-selected were based on the specifications structure that existed prior to the implementation of the Omnibus Amendment, and were not selected because they no longer comply with the MSB FMP. The third alternative (Council preferred) would have set ABC and ACL at 3,622 mt, the ACT at 3,260 mt, the DAH and DAP at 1,087 mt, and the butterfish mortality cap at 2,445 mt. The fourth alternative (least restrictive) would have set the ABC and ACL at 4,528 mt, the ACT at 4,075 mt, the DAH and DAP at 1,358 mt, and the butterfish mortality cap at 3,056 mt. The fourth alternative would have set the ABC and ACL at 2,717 mt, the ACT at 2,445 mt, the DAH and DAP at 815 mt, and the butterfish mortality cap at 1,834 mt. These three alternatives were not selected because they would increase the butterfish ABC, which is prohibited by the Council's risk policy. The final non-selected alternative would have set ABC and ACL at 1,811 mt, the ACT at 1,630 mt, the DAH and DAP at 543 mt, and the butterfish mortality cap at 1,222 mt. This alternative was not selected because it is inconsistent with status quo.

There were two alternatives regarding the adjustment to the butterfish gear requirement. The status quo alternative (preferred) requires vessels possessing 1,000 lb (0.45 mt) or more of butterfish to fish with a 3-inch (76-mm) minimum codend mesh. The alternative in the proposed rule (3-inch (76-mm) mesh to possess 2,000 lb (0.9 mt)) could create some additional revenue in the form of butterfish landings for vessels using mesh sizes smaller than 3 inches (76 mm). The higher possession limit was contemplated in light of the proposed increases to the butterfish specifications, and is no longer appropriate if the status quo butterfish specifications are implemented.

For the reasons set out in the preamble, 50 CFR part 648 is amended as follows:

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

The B season allowance of the 2012 total allowable catch (TAC) of pollock in Statistical Area 620 of the GOA is 17,221 metric tons (mt) as established by the final 2012 and 2013 harvest specifications for groundfish of the GOA (77 FR 15194, March 14, 2012). In accordance with § 679.20(a)(5)(iv)(B), the Administrator, Alaska Region, NMFS (Regional Administrator), hereby decreases the B season pollock allowance by 106 mt to reflect the total overharvest of the A seasonal apportionment in Statistical Area 620. Therefore, the revised B season allowance of the pollock TAC in Statistical Area 620 is 17,115 mt (17,221 mt minus 106 mt)

In accordance with § 679.20(d)(1)(i), the Regional Administrator has determined that the B season allowance of the 2012 TAC of pollock in Statistical Area 620 of the GOA will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 17,000 mt and is setting aside the remaining 115 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for pollock in Statistical Area 620 of the GOA.

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

This action responds to the best available information recently obtained from the fishery. The Acting Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) and § 679.25(c)(1)(ii) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of directed fishing for pollock in Statistical Area 620 of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of March 15, 2012.

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

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

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

The 2012 TAC of pollock in the West Yakutat District of the GOA is 3,244 metric tons (mt) as established by the final 2012 and 2013 harvest specifications for groundfish of the GOA (77 FR 15194, March 14, 2012).

In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the 2012 TAC of pollock in the West Yakutat District of the GOA will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 3,200 mt and is setting aside the remaining 44 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for pollock in the West Yakutat District of the GOA.

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

This action responds to the best available information recently obtained from the fishery. The Acting Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of directed fishing for pollock in the West Yakutat District of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of March 15, 2012.

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

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