The FAA's authority to issue rules on 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 III, section 44706, “Airport Operating Certificates”. 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, including issuing airport operating certificates that contain terms the Administrator finds necessary to ensure safety in air transportation. This regulation is within the scope of that authority because it would (i) enhance safety in airport operations by clarifying the applicability of part 139, and (ii) explicitly prohibit fraudulent or intentionally false statements in a certificate application or record required to be maintained by the certificate holder.

This final rule will:

• Clarify that the applicability of part 139 is based only on passenger seats in passenger-carrying operations, as determined by either the regulations or the aircraft type certificate (§ 139.1);

• Add a new § 139.115 that prohibits fraudulent or intentionally false statements concerning an airport operating certificate (AOC);

• Amend language in § 139.303 and § 139.329 for consistency, or to codify existing industry practice; and

• Amend the definition of joint-use airport in § 139.5 to correspond with statutory authority.

Although the FAA cannot quantify the benefits of this final rule, the FAA believes that the benefits will exceed the minimal unquantifiable costs imposed by this final rule because this final rule will provide consistent rule language and accurate reporting.

Part 139 prescribes the minimum standards for maintaining and operating the physical airport environment. The FAA issues AOCs under part 139 to certain airports serving commercial passenger-carrying operations based on the type of commercial operations and size of aircraft served. As of December 31, 2012, 544 of the four classes of airports (I, II, III, and IV) defined in part 139 hold FAA-issued AOCs.

On February 1, 2011, the FAA published a notice of proposed rulemaking (NPRM) on Safety Enhancements Part 139, Certification of Airports (76 FR 5510). In the NPRM, the FAA proposed to amend the airport certification standards in part 139 by:

(1) Clarifying the applicability of part 139,

(2) Explicitly prohibiting fraudulent or intentionally false statements in a certificate application or record required to be maintained,

(3) Requiring a Surface Movement Guidance Control System (SMGCS) plan if the certificate holder conducts low-visibility operations,

(4) Establishing minimum standards for training of personnel who access the airport non-movement area, and

(5) Requiring certificate holders to conduct pavement surface evaluations to ensure reliability of runway surfaces in wet weather conditions.

The comment period closed on April 4, 2011. On April 13, 2011, the FAA reopened the comment period until May 13, 2011, (76 FR 20570) because we learned that a number of airport operators were not aware that low-visibility approaches and departures had been approved for their airports. The FAA notified, by letter, those airports with approved low-visibility departures, and reopened the commentperiod to allow time for affected airports to receive notice from the FAA, review this NPRM, and adequately assess, prepare, and submit comments on the possible impact of this NPRM.

On June 3, 2011, the FAA again reopened the comment period until July 5, 2011, (76 FR 32105) because several industry groups requested the full economic evaluation the FAA developed for this rule. The FAA posted the full economic evaluation in the docket to allow industry time to review it, and adequately assess, prepare, and submit comments on the possible impact of this NPRM.

The FAA received 49 comment documents in response to the NPRM from the following commenters: Alaska DOT &PF; American Association of Airport Executives (AAAE); Airports Council International—North America (ACI-NA); Air Line Pilots Association, International (ALPA); Aircraft Owners and Pilots Association (AOPA); Broward County Aviation Department; Burlington International Airport; City of Atlanta Department of Aviation; City of Prescott; Clark County Department of Aviation; Dallas/Fort Worth International Airport; Denver International Airport; Experimental Aircraft Association (EAA); Fairbanks International Airport; Glynn County Airport Commission; Houston Airport System; Ithaca Tompkins Regional Airport; Kent County Department of Aeronautics; Lafayette Airport Commission; Los Angeles World Airport; Louisville Regional Airport Authority; Manchester-Boston Regional Airport; Maryland Aviation Administration; Mid Ohio Valley Airport; Municipal Airport Authority of the City of Fargo; Myrtle Beach International Airport; National Air Transportation Association (NATA); Omni Air International; Phoenix Sky Harbor International Airport; Port of Seattle; Portland International Airport; Rapid City Regional Airport; Salt Lake City International; Sarasota Manatee Airport Authority; Sioux Falls Regional Airport; Southwest Airlines; St. Petersburg-Clearwater International Airport; The Columbus Regional Airport Authority; The Port Authority of New York & New Jersey; Western Reserve Port Authority; and nine individuals. All of the commenters generally recommended changes to the proposal.

The table below shows the main topics covered by the proposals in the NPRM (indicated by a “YES”) and whether or not the proposal for that topic is in this final rule (indicated by either a “YES” or a “NO”).

In addition to the above, the FAA is adopting administrative changes and amending the definition of joint-use airport, as discussed below. The administrative changes will not require part 139 AOC holders to change their current operational practices.

Currently, § 139.1(a)(1) states that an airport must be certificated under part 139 to host scheduled passenger carrying operations of an air carrier operating aircraft designed for more than nine passenger seats, as determined by the aircraft type certificate issued by a competent civil aviation authority. The current wording of § 139.1 has created confusion regarding the operation of a particular aircraft type, the Cessna 208B Caravan (the “Caravan”). The standard high-density airline configuration for the Caravan features four rows of 1-2 seating behind the two seats in the cockpit. The Caravan is certificated as a single-pilot aircraft, but has two pilot seats. In non-revenue service, the second pilot seat may be occupied by a passenger. However, in scheduled passenger-carrying operations, § 135.113 prohibits passengers from occupying the second pilot seat, which means there are not more than nine passenger seats during those operations.

In the NPRM, the FAA proposed to clarify § 139.1 to state that the applicability of part 139 is based only on passenger seats in passenger-carrying operations as determined by either the regulations under which the operation is conducted or the aircraft type certificate.

No comments specifically objected to the proposal to clarify the applicability of part 139. The final rule adopts the language as proposed.

The FAA proposed a new § 139.115 that would prohibit fraudulent or intentionally false statements on an application for a certificate or other records required to be kept.

All comments regarding this section supported the FAA's proposal. To ensure the reliability of records maintained by a certificate holder and reviewed by the FAA, the FAA is adding a new § 139.115 that prohibits:

(1) The making of any fraudulent or intentionally false statement on an application for a certificate;

(2) The making of any fraudulent or intentionally false statement on any record or report required by the FAA; and

(3) The reproduction or alteration, for a fraudulent purpose, of any FAA certificate or approval.

The final rule allows the FAA to suspend or revoke an AOC if an owner, operator, or other person acting on behalf of the certificate holder violates any of these prohibitions. The FAA may also suspend or revoke any other FAA certificate issued to the person committing the act. This requirement is similar to the falsification prohibitions in 14 CFR parts 43, 61, 65, and 67.

The FAA proposed to amend § 139.203 to require that airport certification manuals contain a SMGCS plan for airports approved for operations below 1,200 feet runway visual range. A SMGCS plan would facilitate the safe movement of aircraft and vehicles on the airport by establishing more rigorous control procedures and requiring enhanced visual aids. Additionally, the ability to conduct low visibility operations allows a certificate holder to stay open during poor weather conditions, thus reducing flight delays and cancellations.

The basis for approving low-visibility operations for each runway would be incorporated in the certificate holder's SMGCS plan. Only certificate holders that conduct low-visibility operations would be required to develop and implement a SMGCS plan. These plans would vary among airports because of local conditions, and would be subject to FAA approval.

Twelve commenters stated that either the cost calculations in our proposal were not realistic, or the amount of time in low-visibility conditions did not warrant the investment. Additionally, several comments contended that the burden to airports would not be beneficial, and would require a largeinfrastructure investment. Based on comments and further cost analysis, this section of the rule is not currently cost beneficial to implement and the FAA is withdrawing the SMGCS proposal. However, the FAA may propose rulemaking in the future if it is determined to be necessary.

In the NPRM, the FAA proposed to require training for all persons authorized to access the non-movement area (with certain exceptions noted in the proposal). This training would complement the existing training for persons accessing the movement and safety areas, and could be combined with the training for persons accessing both the movement and non-movement areas.

Nearly all commenters expressed support for increasing safety. However, most commenters contended the proposal was unnecessary because airlines and ground servicing providers conduct safety training to satisfy the Occupational Safety and Health Administration (OSHA) requirements. They also stated the cost to the industry would be burdensome, and would take away time from other duties that produce greater safety benefits. Further, they stated the NPRM overstates the benefit and underestimates the lifecycle costs by not including costs for additional staff or facilities needed for training and record keeping. One airport included a cost case study, and other airports provided differing cost figures that were helpful in identifying all costs involved.

Based on comments and further analysis, the FAA is withdrawing the proposal covering non-movement area safety training. However, the FAA may propose rulemaking in the future if it is determined to be necessary.

The proposal also included substituting all “persons” for all “personnel” in § 139.303(c). We received no comments objecting to this change. The FAA adopts this change, and will also substitute all “persons” for “employee, tenant or contractor” in §§ 139.329 (b) and (e) for consistency. The FAA has determined this language provides greater clarity and is consistent with previous FAA interpretations.

Since 2007, the U.S. aviation community has initiated and completed significant short-term actions to improve safety at U.S. airports based on the FAA's “Call to Action.”1 As part of the Call to Action, the FAA Office of Airport Safety and Standards issued a change to AC 150/5210-20, Ground Vehicle Operations on Airports, on March 31, 2008. The AC change strongly recommended regular recurrent driver training for all persons with access to the movement area. This included voluntarily conducting recurrent annual movement area driver's training for all personnel who enter the movement area. All certificated airports voluntarily developed plans to require annual recurrent training for all individuals with access to the movement areas. As a result of the Call to Action, in 2010 the Office of Airports recorded that all airports were requiring recurrent training for non-airport employees such as Fixed-Base Operators (FBO) or airline mechanics.2 The FAA intended to propose a requirement in the NPRM that would make the existing industry practice mandatory. Given the universality of the training, the FAA has determined that it would be contrary to the public interest to initiate a separate rulemaking action just for this provision in order to provide an opportunity to comment. The existing level of training indicates that as a group certificated airports are willing to conduct the training, and that codifying existing industry practice adds no further costs.

This final rule now requires annual recurrent training for all persons in the movement and safety areas for Classes I through IV airports. Regulatory text is being added to § 139.329 to further clarify that all persons that have access to, and operate in, movement areas and safety areas require initial and recurrent drivers training (at least once every 12 consecutive calendar months). Additionally, since Class IV airports will be required to comply with this regulation, an “X” will be added in the Class IV column in § 139.203(b) manual element number 22.

In the NPRM, the FAA proposed amending § 139.305 to require airports to establish and implement a runway friction testing program for each runway used by jet aircraft. Under the proposal, a certificate holder would schedule periodic friction evaluations of each runway that accommodates jet aircraft. Components of the program would include a testing frequency that takes into consideration the volume and type of traffic as well as friction readings from continuous friction measuring equipment (CFME) operated by trained personnel. Corrective action would be required, as needed.

Ten commenters questioned whether the cost of the CFME or the tests required would provide significant benefit. Five commenters wanted to know who would be responsible for qualifying the trainers for the CFME operators. The remaining comments raised concerns about:

(i) Non-jet traffic;

(ii) The use of the CFME for winter operations;

(iii) What constitutes acceptable friction levels;

(iv) What is an acceptable testing frequency;

(v) Are there any funding sources;

(vi) What is the implementation time frame; and

(vii) Consideration of new equipment.

The FAA also proposed for § 139.305 that airport operators be required to locate potential hydroplaning areas as well as measure the depth and width of a runway's grooves to check for wear and damage. Airports would also establish and implement a program for testing performance of grooves and transverse slopes.

Four commenters stated that the NPRM did not provide enough detail for cross-slope inspection requirements. Three commenters felt that this issue was already considered in current part 139 regulations. Other commenters wanted the FAA to determine inspection specifics and acceptance levels. Two commenters thought that this proposal would increase costs.

Based on comments and further analysis, the FAA is withdrawing the proposals for § 139.305. The FAA notes that guidance currently exists addressing these issues and it will conduct outreach with certificate holders. Guidance on runway friction testing frequency and friction levels is in Advisory Circular 150/5320-12C Measurement, Construction, and Maintenance of Skid-Resistant Pavement Surfaces. Guidance on the use of CFME in contaminated conditions for operational purposes is found in Advisory Circular 150/5200-30C, Airport Winter Safety and Operations. Finally, the FAA notes that current part 139 requirements require airports to inspect runways for ponding problems. However, the FAA may propose rulemaking in the future if it is determined to be necessary.

The FAA is changing the definition of “joint use airport” in § 139.5 to correspond with the definition provided by Congress in the FAA Modernization and Reform Act of 2012 (49 U.S.C. 47175 (2012)). This change is not subject to notice and comment procedures because it meets the Administrative Procedure Act's good cause exception (5 U.S.C. 553).

Changes to Federal regulations must undergo several economic analyses. First, Executive Orders 12866 and 13563 direct that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354) requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (Pub. L. 96-39) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. In developing U.S. standards, this Trade Act requires agencies to consider international standards and, where appropriate, that they be the basis of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more annually (adjusted for inflation with base year of 1995). This portion of the preamble summarizes the FAA's analysis of the economic impacts of this final rule.

Department of Transportation Order DOT 2100.5 prescribes policies and procedures for simplification, analysis, and review of regulations. If the expected cost impact is so minimal that a proposed or final rule does not warrant a full evaluation, this order permits that a statement to that effect and the basis for it to be included in the preamble if a full regulatory evaluation of the cost and benefits is not prepared. Such a determination has been made for this final rule. The reasoning for this determination follows:

In conducting these analyses, the FAA has determined that this final rule:

(1) Imposes no incremental costs and provides benefits,

(2) Is not an economically “significant regulatory action” as defined in section 3(f) of Executive Order 12866,

(3) Is not significant as defined in DOT's Regulatory Policies and Procedures;

(4) Will not have a significant economic impact on a substantial number of small entities;

(5) Will not have a significant effect on international trade; and

(6) Will not impose an unfunded mandate on state, local, or tribal governments, or on the private sector by exceeding the monetary threshold identified.

These analyses are summarized below.

In response to public comments, the FAA is withdrawing some proposed NPRM requirements. This section analyzes the economic impacts of the provisions of this final rule.

This final rule will:

• Clarify that the applicability of part 139 is based only on passenger seats in passenger-carrying operations, as determined by the regulations or the aircraft type certificate (§ 139.1);

• Add a new § 139.115 that prohibits fraudulent or intentionally false statements concerning an AOC or other record required to be maintained;

• Amend language in §§ 139.303 and 138.329 for consistency or to codify current industry practice; and

• Amend the definition of joint-use airport in § 139.5 to correspond with statutory authority.

The benefits and costs of each of these sections of this final rule are discussed below.

This section of this final rule clarifies that the applicability of part 139 is based only on passenger seats in passenger-carrying operations, as determined by the regulations or the aircraft type certificate.

No quantitative benefits or costs are estimated for this section of the final rule because it simply clarifies existing FAA requirements.

This section of this final rule is intended to ensure the reliability of records maintained by a certificate holder and reviewed by the FAA by specifically prohibiting fraudulent or intentionally false statements concerning an AOC or other record required to be maintained.

This section of this final rule has positive qualitative benefits because it emphasizes the importance of accurate reporting of airport data. However, no quantitative benefits are estimated for this section of this final rule.

There are no costs for this section of this final rule because it simply formalizes the keeping and reporting of accurate airport data.

This requirement is similar to the falsification prohibitions in 14 CFR parts 43, 61, 65, and 67.

Currently, there are inconsistencies in the way people are referred to in these sections. This final rule will replace all references to people with the term persons. Additionally, the FAA will require annual recurrent training for all persons in the movement and safety areas and include Class IV airports to align with current industry practice.

The qualitative benefit of this portion of this final rule will be to provide consistent language within and between §§ 139.303 and 138.329. However, the FAA cannot provide a quantitative estimate of these benefits.

There are no costs for this portion of this final rule because this changed language is consistent with previous FAA interpretations.

Although the FAA cannot quantify the benefits of this final rule, the FAA believes that the benefits will exceed the minimal unquantifiable costs imposed by this final rule.

The Regulatory Flexibility Act of 1980 (RFA) establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objective of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the business, organizations, and governmental jurisdictions subject to regulation.” To achieve that principle, the RFA requires agencies to solicit and consider flexible regulatory proposals and to explain the rationale for their actions. The RFA covers a wide-range of small entities, including small businesses, not-for-profit organizations and small governmental jurisdictions.

Agencies must perform a review to determine whether a proposed or final rule will have a significant economic impact on a substantial number of small entities. If the agency determines that it will, the agency must prepare a regulatory flexibility analysis as described in the Act.

However, if an agency determines that a proposed or final rule is not expected to have a significant economic impact on a substantial number of small entities, section 605(b) of the RFA provides that the head of the agencymay so certify and a regulatory flexibility analysis is not required. The certification must include a statement providing the factual basis for this determination, and the reasoning should be clear.

Size standards for small entities are published by the Small Business Administration (SBA). The small entity size standard for municipalities, including those owning publicly-owned airports, is a population less than 50,000 people.

The population of municipalities owning airports ranges from many millions to a few thousand. Many part 139 airport owners are small entities. Therefore, this final rule will affect a large number of small entities. However, this final rule will not have a significant economic impact on any small entity because the final rule imposes no incremental costs.

Therefore, as the acting FAA Administrator, I certify that this final rule will not have a significant economic impact on a substantial number of part 139 airport owners.

The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal agencies from establishing standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Pursuant to these Acts, the establishment of standards is not considered an unnecessary obstacle to the foreign commerce of the United States, so long as the standard has a legitimate domestic objective, such as the protection of safety, and does not operate in a manner that excludes imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards.

The FAA has assessed the potential effect of this final rule and determined that it will have only a domestic impact and therefore will not create unnecessary obstacles to the foreign commerce of the United States.

Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (adjusted annually for inflation) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.” The FAA currently uses an inflation-adjusted value of $143.1 million in lieu of $100 million. This final rule does not contain such a mandate; therefore, the requirements of Title II do not apply.

The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that the FAA consider the impact of paperwork and other information collection burdens imposed on the public. In the NPRM, we provided data on the information collection requirements associated with the proposals in that document. However, the proposals that created these information collection requirements are not in this final rule. Therefore, the FAA has determined that there is no new requirement for information collection associated with this final rule.

(1) In keeping with U.S. obligations under the Convention on International Civil Aviation, it is FAA policy to conform to International Civil Aviation Organization (ICAO) Standards and Recommended Practices to the maximum extent practicable. The FAA has reviewed the corresponding ICAO Standards and Recommended Practices and has identified no differences with these regulations.

(2) Executive Order 13609, Promoting International Regulatory Cooperation, promotes international regulatory cooperation to meet shared challenges involving health, safety, labor, security, environmental, and other issues and to reduce, eliminate, or prevent unnecessary differences in regulatory requirements. The FAA has analyzed this action under the policies and agency responsibilities of Executive Order 13609, and has determined that this action would have no effect on international regulatory cooperation.

FAA Order 1050.1E identifies FAA actions that are categorically excluded from preparation of an environmental assessment or environmental impact statement under the National Environmental Policy Act in the absence of extraordinary circumstances. The FAA has determined this rulemaking action qualifies for the categorical exclusion identified in Chapter 3, paragraph 312d, and involves no extraordinary circumstances.

The FAA has analyzed this final rule under the principles and criteria of Executive Order 13132, Federalism. Most airports subject to this rule are owned, operated, or regulated by a local government body (such as a city or county government), which, in turn, is incorporated by or is part of a State. Some airports are operated directly by a State.

This final rule, which modifies an existing regulatory requirement, imposes no incremental costs and would not alter the relationship between certificate holders and the FAA as established by law. This final rule is not a significant regulatory action under the Unfunded Mandates Reform Act of 1995. Accordingly, the FAA has determined that this action does not have a substantial direct effect on the States. This final rule makes administrative amendments to existing regulatory requirements for certificate holders. These requirements are under existing statutory authority to regulate airports for aviation safety. Accordingly, there is no change in either the relationship between the Federal Government and the Sates, or the distribution of power among the various levels of government.

The FAA mailed a copy of the NPRM to each State government specifically inviting comment on Federalism issues. No comments were received.

The FAA analyzed this final rule under Executive Order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use (May 18, 2001). The agency has determined that it is not a “significant energy action” under the executive order and it is not likely to have a significant adverse effect on the supply, distribution, or use of energy.

An electronic copy of a rulemaking document may be obtained by using the Internet—

1. Search the Federal eRulemaking Portal (http://www.regulations.gov);

2. Visit the FAA's Regulations and Policies Web page athttp://www.faa.gov/regulations_policies/;or

3. Access the Government Printing Office's Web page athttp://www.gpo.gov/fdsys.

Copies may also be obtained by sending a request (identified by notice, amendment, or docket number of this rulemaking) to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue SW., Washington, DC 20591, or by calling (202) 267-9680.

Comments received may be viewed by going tohttp://www.regulations.govand following the online instructions to search the docket number for this action. Anyone is able to search the electronic form of all comments received into any of the FAA's dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.).

The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 requires FAA to comply with small entity requests for information or advice about compliance with statutes and regulations within its jurisdiction. A small entity with questions regarding this document, may contact its local FAA official, or the person listed under theFOR FURTHER INFORMATION CONTACTheading at the beginning of the preamble. To find out more about SBREFA on the Internet, visithttp://www.faa.gov/regulations_policies/rulemaking/sbre_act/.

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

The Entity List (Supplement No. 4 to Part 744) notifies the public about entities that have engaged in activities that could result in an increased risk of the diversion of exported, reexported, or transferred (in-country) items to weapons of mass destruction (WMD) programs. Since its initial publication, grounds for inclusion on the Entity List have expanded to activities sanctioned by the State Department and activities contrary to U.S. national security or foreign policy interests, including terrorism and export control violations involving abuse of human rights. Certain exports, reexports, and transfers (in-country) to entities identified on the Entity List require licenses from BIS and are usually subject to a policy of denial. The availability of license exceptions in such transactions is very limited. The license review policy for each entity is identified in the License Review Policy column on the Entity List and the availability of license exceptions is published in theFederal Registernotices adding persons to the Entity List. BIS places entities on the Entity List based on certain sections of part 744 (Control Policy: End-User and End-Use Based) of the EAR.

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

This rule implements a decision of the ERC to remove two persons, Laurence Mattiucci and Toulouse Air Spares SAS, both located in France, from the Entity List as a result of a successful request for removal from the Entity List. Based upon the review of the information provided in the removal request in accordance with § 744.16 (Procedure for requesting removal or modification of an Entity List entity), and after review by the ERC's member agencies, the ERC determined that these persons should be removed from the Entity List.

The ERC's decision to remove these two persons took into account their cooperation with the U.S. Government, as well as their assurances of future compliance with the EAR. In accordance with § 744.16(c), the Deputy Assistant Secretary for Export Administration has sent written notification to these two persons, informing these entities of the ERC's decision to remove them from the Entity List. This final rule implements the decision to remove the following two persons from the Entity List:

(1)Laurence Mattiucci,8 Rue de la Bruyere, 31120 Pinsaguel, Toulouse, France;and

(2)Toulouse Air Spares SAS,8 Rue de la Bruyere, 31120 Pinsaguel, Toulouse, France.

This rule also amends the Entity List on the basis of the annual review of the Entity List conducted by the ERC, in accordance with the procedures outlined in Supplement No. 5 to part 744 (Procedures for End-User Review Committee Entity List Decisions). The changes from the annual review of the Entity List that are approved by the ERC are implemented in stages as the ERC completes its review of entities listed under different destinations on the Entity List. This rule implements the results of the annual review for entities located in the United Arab Emirates (U.A.E.). The entities located Armenia, Cyprus, France, and Iran were also reviewed by the ERC, but no additional changes are being made to those entries as a result of the annual review of the Entity List.

This rule removes two entries from the Entity List on the basis of the annual review of the Entity List. The persons removed were determined to no longer meet the criteria for inclusion on the Entity List. Specifically, this rule implements the decision of the ERC to remove two persons located in the U.A.E., as follows:

(1)Abubakr Abuelazm,Dubai, U.A.E., 500100;and

(1)Advanced Technology General Trading Company,a.k.a, Advanced Technologies Emirates FZ-LLC, Office #124 1st Floor, Building #3, Dell Building, Sheikh Zayed Road, Dubai Internet City, Dubai, U.A.E.

The removal of the above-referenced two entities on the basis of annual review of the Entity List, and the removal of the two entities referencedabove on the basis of a § 744.16 removal request that was approved by the ERC, eliminates the existing license requirements in Supplement No. 4 to part 744 for exports, reexports, and transfers (in-country) to these four entities. However, the removal of these four entities from the Entity List does not relieve persons of other obligations under part 744 of the EAR or under other parts of the EAR. Neither the removal of an entity from the Entity List nor the removal of Entity List-based license requirements relieves persons of their obligations under General Prohibition 5 in § 736.2(b)(5) of the EAR which provides that, “you may not, without a license, knowingly export or reexport any item subject to the EAR to an end-user or end-use that is prohibited by part 744 of the EAR.” Additionally, these removals do not relieve persons of their obligation to apply for export, reexport, or in-country transfer licenses required by other provisions of the EAR. BIS strongly urges the use of Supplement No. 3 to part 732 of the EAR, “BIS's `Know Your Customer' Guidance and Red Flags,” when persons are involved in transactions that are subject to the EAR.

On October 9, 2012, BIS published a final rule, “Addition of Certain Persons to the Entity List” in theFederal Register(77 FR 61249). This rule amends the Entity List by revising one entry added on October 9 under Finland and by removing one redundant entry under Russia. Specifically, the spelling of the “Olkerboy Oy” entry under Finland is corrected to “Olkebor Oy” and the “Bolshaya Semenovskaya” entry under Russia is removed. This rule revises the Olkerboy Oy entry under Finland, as follows:

(1)Olkebor Oy/Nurminen Oy,231B Vanha Porvoontie, Vantaa, Finland 01380.

This rule also removes the Bolshaya Semenovskaya entry under Russia:

(1)Bolshaya Semenovskaya40/505, Moscow, Russia 107023;andUlitsa Metallurgov, 29, Str. 1, Komnata Pravleni, Moscow, Russia 111401.

Shipments of items removed from eligibility for a License Exception or export or reexport without a license (NLR) as a result of this regulatory action that were en route aboard a carrier to a port of export or reexport, on January 16, 2013, pursuant to actual orders for export or reexport to a foreign destination, may proceed to that destination under the previous eligibility for a License Exception or export or reexport without a license (NLR).

Although the Export Administration Act expired on August 20, 2001, the President, through Executive Order 13222 of August 17, 2001, 3 CFR, 2001 Comp., p. 783 (2002), as extended by the Notice of August 15, 2012, 77 FR 49699 (August 16, 2012), has continued the Export Administration Regulations in effect under the International Emergency Economic Powers Act. BIS continues to carry out the provisions of the Export Administration Act, as appropriate and to the extent permitted by law, pursuant to Executive Order 13222.

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

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

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

4. The provisions of the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking, the opportunity for public comment, and a 30-day delay in effective date are inapplicable because this regulation involves a military or foreign affairs function of the United States. (See5 U.S.C. 553(a)(1)). The U.S. Government's original basis for adding the entities affected by this rule to the Entity List was the entities' involvement in activities contrary to U.S. national security or foreign policy interests. BIS implements this rule to further protect U.S. national security and foreign policy interests by preventing items from being exported, reexported or transferred (in-country) to these persons listed on the Entity List and by ensuring that potential transactions with individuals no longer listed on the Entity List are not turned away to the detriment of U.S. economic interests. If this rule were delayed to allow for notice and comment and a 30-day delay in effective date, there is a chance that certain exporters, reexporters, and persons making transfers (in-country) to this listed person may inadvertently export, reexport or transfer (in-country) toOlkebor Oy/Nurminen Oybecause the exporter, reexporter or person making the transfer (in-country) did not realize the listed person was subject to the Entity List-based license requirement. There is also a chance an exporter, reexporter, or person making a transfer (in-country) may turn away a potential export, reexport, or transfer (in-country) because the customer remained a listed person on the Entity List after the ERC approved removal, thereby harming U.S. economic interests. The correction and removals provided in this rule may make clear that the persons are no longer subject to Entity List-based license requirements. For these reasons, there is a public interest that these changes be implemented as a final action. Further, no other law requires that a notice of proposed rulemaking and an opportunity for public comment be given for this rule. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule by 5 U.S.C. 553, or by any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601et seq.,are not applicable.

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

Validated end-users (VEUs) are designated entities located in eligible destinations to which eligible items may be exported, reexported, or transferred (in-country) under a general authorization instead of a license. The names of the VEUs, as well as the date they were so designated, and their respective eligible destinations and items are identified in Supplement No. 7 to part 748 of the EAR. Under the terms described in that supplement, VEUs may obtain eligible items without an export license from BIS. Eligible items may include commodities, software, and technology, except those controlled for missile technology or crime control reasons.

VEUs are reviewed and approved by the U.S. Government in accordance with the provisions of Section 748.15 and Supplement Nos. 8 and 9 to part 748 of the EAR. The End-User Review Committee (ERC), composed of representatives from the Departments of State, Defense, Energy and Commerce, and other agencies, as appropriate, is responsible for administering the VEU program. BIS amended the EAR in a final rule on June 19, 2007 (72 FR 33646) to create Authorization VEU.

In this rule, BIS amends Supplement No. 7 to part 748 of the EAR to update two eligible destinations for Advanced Micro Devices China, Inc.'s (AMD China). Specifically, BIS updates the address of Advanced Micro Devices (Shanghai) Co., Ltd. by adding the country name to the address, and the address of AMD Technology Development (Beijing) Co., Ltd. by removing the floor designation in the address.

In addition, BIS adds a new eligible destination, AMD Products (China) Co. Ltd., to AMD's current list of eligible destinations in the PRC, as follows:

In this rule, BIS amends Supplement No. 7 to part 748 to revise the eligible destinations and eligible items authorized for VEU Lam Research Corporation (Lam). Specifically, BIS updates the addresses of ten of Lam's existing eligible destinations and reformats Lam's existing eligible destinations into two groups, each with distinct lists of eligible items. The specific changes to Lam's authorization are as follows:

The items identified by ECCN below may be exported to the following eligible destinations:

• Lam Research International Sarl (Lam Shanghai Warehouse);

• Lam Research International Sarl (Lam Shanghai Warehouse; WGQ Bonded Warehouse);

• Lam Research International Sarl (Lam Beijing Warehouse);

• Lam Research International Sarl (Wuxi EPZ Bonded Warehouse);

• Lam Research International Sarl (Lam Beijing Warehouse); and

• Lam Research International Sarl (Wuhan TSS).

The items identified here may be exported to the Lam facilities listed immediately above: ECCNs 2B230, 2B350.c, 2B350.d, 2B350.g, 2B350.h, 2B350.i, 3B001.c and 3B001.e (items classified under ECCNs 3B001.c and 3B001.e are limited to specially designed components and accessories), 3D001 (limited to “software” (excluding source code) specially designed for the “development” or “production” of equipment controlled by ECCN 3B001), 3D002 (limited to “software” (excluding source code) specially designed for the “use” of equipment controlled by ECCN 3B001), and 3E001 (limited to “technology” according to the General Technology Note for the “development” of equipment controlled by ECCN 3B001).

The items identified by ECCN below may be exported to the following eligible destinations:

• Lam Research Service Co., Ltd.;

• Lam Research (Shanghai) Co., Ltd.;

• Lam Research Service Co., Ltd. (Beijing Branch);

• Lam Research Service Co., Ltd. Wuxi Representative Office;

• Lam Research Service Co., Ltd. Wuhan Representative Office; and

• Lam Research Semiconductor (Suzhou) Co., Ltd. (Suzhou).

The items identified here may be exported to the Lam facilities listed immediately above: ECCNs 2B230, 2B350.c, 2B350.d, 2B350.g, 2B350.h, 2B350.i, 3B001.c and 3B001.e (items classified under ECCNs 3B001.c and 3B001.e are limited to specially designed components and accessories), 3D001 (limited to “software” (excluding source code) specially designed for the “development” or “production” of equipment controlled by ECCN 3B001), 3D002 (limited to “software” (excluding source code) specially designed for the “use” of equipment controlled by ECCN 3B001), and 3E001 (limited to “technology” according to the General Technology Note for the “development” or “production” (limited to those stages that support integration, assembly (mounting), inspection, testing, and quality assurance) of equipment controlled by ECCN 3B001).

In this rule, BIS also amends the EAR to include the postcodes for the addresses of VEUs SK hynix Semiconductor (China) Ltd. and SK hynix Semiconductor (Wuxi) Ltd. (collectively, “SK hynix China”). The updated addresses are as follows:

BIS also removes ECCN 3B001.d from the list of eligible items in Supplement No. 7 to part 748 for SK hynix Semiconductor (China) Ltd. and SK hynix Semiconductor (Wuxi) Ltd. to conform with changes to the Commerce Control List (Supplement No. 1 to part 774 of the EAR) in “Wassenaar Arrangement 2011 Plenary Agreements Implementation: Commerce Control List, Definitions, New Participating State (Mexico) and Reports,” published July 2, 2012 (77 FR 39354).

3B001.a, 3B001.b, 3B001.c, 3B001.d, 3B001.e, and 3B001.f.

3B001.a, 3B001.b, 3B001.c, 3B001.e, and 3B001.f.

The amendments to the VEU authorizations for AMD China, Lam, and SK hynix China, as approved by the ERC, were prompted by factors arising from the companies' normal course of business or were requested by the companies. None of the amendments were the result of activities of concern by the companies.

Finally, this rule amends Supplement No. 7 to part 748 of the EAR to include language reminding exporters that the language in the Supplement does not supersede requirements elsewhere in the EAR. The new language reads as follows: “Nothing in this Supplement shall be deemed to contradict other provisions in the EAR, including but not limited to § 748.15(c).” This addition is intended to remind exporters that items controlled for missile technology and/or crime control reasons are not eligible for export, reexport or transfer (in-country) under Authorization VEU.

Since August 21, 2001, the Export Administration Act (the Act) has been in lapse and the President, through Executive Order 13222 of August 17, 2001 (3 CFR, 2001 Comp., p. 783 (2002)), as extended most recently by the Notice of August 15, 2012, 77 FR 49699 (August 16, 2012), has continued the EAR in effect under the International Emergency Economic Powers Act. BIS continues to carry out the provisions of the Act, as appropriate and to the extent permitted by law, pursuant to Executive Order 13222.

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

2. This rule involves collections previously approved by the Office of Management and Budget (OMB) under Control Number 0694-0088, “Multi-Purpose Application,” which carries a burden hour estimate of 43.8 minutes to prepare and submit form BIS-748; and for recordkeeping, reporting and review requirements in connection with Authorization VEU, which carries an estimated burden of 30 minutes per submission. This rule is expected to result in a decrease in license applications submitted to BIS. Total burden hours associated with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501et seq.) (PRA) and OMB Control Number 0694-0088 are not expected to increase significantly as a result of this rule.

Notwithstanding any other provisions of law, no person is required to respond nor be subject to a penalty for failure to comply with a collection of information, subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.

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

4. Pursuant to the Administrative Procedure Act (APA), 5 U.S.C. 553(b)(B), BIS finds good cause to waive requirements that this rule be subject to notice and the opportunity for public comment because such notice and comment here are unnecessary and contrary to the public interest. In determining whether to grant VEU designations, a committee of U.S. Government agencies evaluates information about and commitments made by candidate companies, the nature and terms of which are set forth in 15 CFR part 748, Supplement No. 8. The criteria for evaluation by the committee are set forth in 15 CFR 748.15(a)(2).

The information, commitments, and criteria for this extensive review were all established through the notice of proposed rulemaking and public comment process (71 FR 38313 (July 6, 2006) (proposed rule), and 72 FR 33646 (June 19, 2007) (final rule)). Given the similarities between the authorizations provided under the VEU program and export licenses (as discussed further below), the publication of this information does not establish new policy. In publishing this final rule, BIS simply amends four VEU authorizations by updating the eligible destinations of the four end-users and revising the eligible items of one of the four end-users. Additionally, BIS is adding language reminding exporters that the language in Supplement No. 7 to part 748 does not supersede requirements elsewhere in the EAR. These changes have been made within the established regulatory framework of the Authorization VEU program. Further, this rule does not abridge the rights of the public or eliminate the public's option to export under any of the forms of authorization set forth in the EAR.

Publication of this rule in other than final form is unnecessary because the authorizations granted in the rule are consistent with the authorizations granted to exporters for individual licenses (and amendments or revisions thereof), which do not undergo public review. In addition, as with license applications, VEU authorization applications contain confidential business information, which is necessary for the extensive review conducted by the U.S. Government in assessing such applications. Under the Export Administration Act, such information is withheld from public disclosure unless determined to be in the national interest. This information is extensively reviewed according to the criteria for VEU authorizations, as set out in 15 CFR 748.15(a)(2). Additionally, just as the interagency reviews license applications, the authorizations granted under the VEU program involve interagency deliberation and result from review of public and non-public sources, including licensing data, and the measurement of such information against the VEU authorization criteria. Given the nature of the review, and in light of the parallels between the VEU application review process and the review of license applications, public comment on this authorization and subsequent amendments prior to publication is unnecessary. Moreover, because, as noted above, the criteria and process for authorizing and administering VEUs were developed with public comments, allowing additional public comment on this amendment to individual VEU authorizations, which was determined according to those criteria, is unnecessary. Finally, allowing for prior public notice and comment is contrary to the public interest because it could cause confusion with the VEU status of the four companies identified in this rule due to the changes made to their addresses and items that may be exported, reexported or transferred (in-country) without a license to one of those companies. Regarding the addition of language to Supplement No. 7 to part 748 of the EAR, allowing for public comment and notice is unnecessary because the new language clarifies existing requirements; it does not create new requirements.

Section 553(d) of the APA generally provides that rules may not take effect earlier than thirty (30) days after they are published in theFederal Register. BIS finds good cause to waive the requirement of 5 U.S.C. 553(d)(3) to delay the effectiveness of this regulation, because such a delay is unnecessary. BIS is simply amending four VEU authorizations by updating the “Eligible Destinations” of the four end-users and revising the “Eligible Items (by ECCN)” of one of the four end-users, in addition to adding language reminding exporters that the language in the Supplement No. 7 to part 748 does not supersede requirements elsewhere in the EAR. These changes have been made within the established regulatory framework of the Authorization VEU program. Further, this rule does not abridge the rights of the public or eliminate the public's option to export under any of the forms of authorization set forth in the EAR. Delaying this action's effectiveness could cause confusion with the VEU status of the companies identified in this rule due to the changes made to their addresses and items that may be exported, reexported or transferred (in-country) without a license. Regarding the addition of language to Supplement No. 7 to part 748, delaying this action's effectiveness is unnecessary because the new language clarifies existing requirements; it does not create new requirements. Accordingly, it would be unnecessary and contrary to the public interest to delay this rule's effectiveness.

No other law requires that a notice of proposed rulemaking and an opportunity for public comment be given for this final rule. Because a notice of proposed rulemaking and an opportunity for public comment are not required under the APA or by any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601et seq.) are not applicable and no regulatory flexibility analysis has been prepared.

Accordingly, part 748 of the EAR (15 CFR parts 730-774) is amended as follows:

The final regulations and removal of temporary regulations (TD 9608) that are the subject of this correction are under section 7216 of the Internal Revenue Code.

As published, TD 9608 contains errors that may prove to be misleading and are in need of clarification.

Accordingly, the publication of the correction to final regulations and removal of temporary regulations (TD 9608), which was the subject of FR. Doc. 2012-31185, is corrected as follows:

1. On page 76403, column 2, in the preamble, under the paragraph heading “4. Effective Date of TD 9478”,third line, the language “2(o) of the temporary regulations”, is corrected to read, “2T(o) of the temporary regulations”.

2. On page 76403, column 2, in the preamble, under the paragraph heading “4. Effective Date of TD 9478,last line of the column, the language “§ 301.7216-2(o) was made effective only”, is corrected to read “§ 301.7216-2T(o) was made effective only”.

3. On page 76403, column 3, in the preamble, under the paragraph heading “4. Effective Date of TD 9478,line 4 from the top of the column, the language “provided for Notice 2009-13 nor those”, is corrected to read, “provided for in Notice 2009-13 nor those”.

4. On page 76403, column 3, in the preamble, under the paragraph heading “4. Effective Date of TD 9478,line 10 from the top of the column, the language “if § 301.7216-2(o) had not been, is corrected to read, “if § 301.7216-2T(o) had not been”.

The notice of final regulations (TD 9607) that is the subject of this correction is under section 704 of the Internal Revenue Code.

As published, TD 9607 contains an error that may prove to be misleading and is in need of clarification.

Accordingly, the publication of the correction to final regulations (TD 9607), which was the subject of FR. Doc. 2012-31155, is corrected as follows:

1. On page 76380, column 1, in the preamble, under the captionFOR FURTHER INFORMATION CONTACT, first line, the language “Rebecca Kahanel, at (202) 622-3050 (not”, is corrected to read “Rebecca Kahane, at (202) 622-3050 (not”.

For additional information on Military Commissions, see Military Commissions Act of 2009.

Table of Acronyms DHSDepartment of Homeland Security FRFederal Register NPRMNotice of Proposed Rulemaking A. Regulatory History and Information

The Coast Guard is issuing this final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because final details for this dredging operation were not provided until it was too late to solicit public comment. As such, it is impracticable to provide a fill comment period due to lack of time. The dredging will begin on December 20th, 2012 and will continue until January 31, 2013 unless completed earlier.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in theFederal Registerfor the reasons cited above. Delaying this regulation's effective date would be impracticable because immediate action is needed to provide for the safety of life and property from the hazards associated with the dredging operation.

The Great Lakes Dredging Company has been working with the Army Corps of Engineers on the Delaware River channel widening project. A portion of this project requires the use of submerged and floating pipelines crossing the lower portion of the Mantua Creek Anchorage. Due to the presence of the submerged pipeline, it is dangerous for vessels to anchor in the southern one-third of the anchorage. A safety zone is necessary because there will be an ongoing dredging operation to deepen the Delaware River channel in the Mifflin and Billingsport Ranges from December 20, 2012 until January 31, 2013. The Captain of the Port believes a safety zone is needed to ensure the safety of life and property of all mariners and vessels transiting the local area.

The Coast Guard Captain of the Port Delaware Bay is temporarily establishing a safety zone closing the southern one-third of the Mantua Creek Anchorage from on December 20, 2012 until January 31, 2013. This rule will be enforced until all dredging operations are competed, unless enforcement of the zones is cancelled earlier by the Captain of the Port. The Captain of the Port will reopen this portion of the anchorage once all submerged pipeline has been recovered and dredging operations are completed. At such time, notice that the temporary closure of the anchorage is no longer in effect will be broadcast to mariners.

The boundary line for the temporary safety zone includes the southern one-third portion of Mantua Creek Anchorage, beginning at position 39° 51.573 N-075° 13.557 W and extending to the southern boundary according to NOAA chart 12312. Vessels will not be permitted to anchor in this portion of Mantua Creek Anchorage unless they receive authorization from the Captain of the Port Delaware Bay or her representative. Such requests must be made 24 hours prior to the intended use of the Mantua Creek Anchorage. Vessels may contact the Captain of the Port Delaware Bay or her representative in order to obtain authorization by contacting Coast Guard Sector Delaware Bay at: (215) 271-4940. After evaluating the current conditions and status of dredging operation, the Captain of the Port Delaware Bay or her representative will notify the requesting vessel whether they are authorized to anchor in the safety zone within Mantua Creek Anchorage, and will provide any other directions for their request.

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

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, ImprovingRegulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders. Although this regulation will restrict access to the regulated area, the effect of this rule will not be significant because: (i) The Coast Guard will make extensive notification of the closure to the maritime public via maritime advisories so mariners can alter their plans accordingly; (ii) vessels may still be permitted to anchor in the safety zone with the permission of the Captain of the Port on a case-by-case basis; and (iii) this rule will be enforced for only the duration of dredging operations.

The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which may be small entities: The owners or operators of the vessels intending to anchor in the safety zone within Mantua Creek Anchorage from December 20, 2012 until January 31, 2012 or until all dredging operations are completed, unless cancelled earlier by the Captain of the Port.

This closure will not have a significant economic impact on a substantial number of small entities for the following reason: Vessels will be allowed utilize the upper two-thirds of the Mantua Creek Anchorage, and nearby anchorages with permission of the Coast Guard Captain of the Port Delaware Bay or her representative. Sector Delaware Bay will issue maritime advisories widely accessible to users of the Anchorage informing them of the safety zone.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in theFOR FURTHER INFORMATION CONTACT, above.

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

This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on 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. We have analyzed this rule under that Order and determined that this rule does not have implications for federalism.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in theFOR FURTHER INFORMATION CONTACTsection to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

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

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

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

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

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

This action is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.

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

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves implementation of regulations within 33 CFR Part 165, applicable to safety zones on the navigable waterways. This zone will temporarily restrict vessels from utilizing the southern one-third of Mantua Creek Anchorage in order to protect the safety of life and property on the waters while dredging operations are conducted. This rule is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. Anenvironmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated underADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

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

I. General Information A. Does this action apply to me?

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Printing Office's e-CFR site athttp://www.ecfr.gov/cgi-bin/text-idx?&c=ecfr&tpl=/ecfrbrowse/Title40/40tab_02.tpl.

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objectionor request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2011-0962 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before March 18, 2013. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b). In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2011-0962, by one of the following methods:

•Federal eRulemaking Portal: http://www.regulations.gov.Follow the online instructions for submitting comments. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute.

•Mail:OPP Docket, Environmental Protection Agency Docket Center (EPA/DC), (28221T), 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001.

•Hand Delivery:To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions athttp://www.epa.gov/dockets/contacts.htm.

Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available athttp://www.epa.gov/dockets.

In theFederal Registerof December 30, 2011 (76 FR 82238) (FRL-9331-1), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 1F7928) by Dow AgroSciences LLC, 9330 Zionsville Road, Indianapolis, IN 46268. The petition requested that 40 CFR 180.535 be amended by establishing tolerances for residues of the herbicide, fluroxypyr 1-MHE and its acid metabolite, fluroxypyr, in or on rice at 1.5 parts per million (ppm) and rice bran at 3.0 ppm. That document referenced a summary of the petition prepared by Dow AgroSciences LLC, the registrant, which is available in the docket,http://www.regulations.gov.There were no comments received in response to the notice of filing.

Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue * * *.”

Consistent with FFDCA section 408(b)(2)(D), and the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for fluroxypyr including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with fluroxypyr follows.

EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.

The active ingredient used in formulating end-use herbicide products is fluroxypyr 1-methylheptyl ester. However, since the ester form has been shown to rapidly hydrolyze to the acid form, the residues of fluroxypyr 1-methylheptyl ester along with its fluroxypyr acid metabolite (free and conjugated), are collectively expressed as “fluroxypyr” and are therefore regulated together for tolerance enforcement. In terms of toxicity, the ester and acid forms are considered the same.

Fluroxypyr has low acute toxicity by the oral and dermal routes of exposure and moderate to mild acute toxicity by the inhalation route of exposure, based on lethality studies. Fluroxypyr is not a dermal sensitizer, nor is it irritating to the skin; however, it is a mild eye irritant.

The kidney is the target organ for fluroxypyr following oral exposure to rats, mice, and dogs. In the rat, increased kidney weight, nephrotoxicity, and death were observed in both sexes in the 90-day feeding study, and increased kidney weight and microscopic kidney lesions were observed in both sexes in the chronic study. Increased kidney weight was also observed in maternal rats in the developmental toxicity study, and kidney effects (deaths due to renal failure; increased kidney weight, and microscopic kidney lesions) were observed in both sexes in the 2-generation reproduction study in rats. Although microscopic kidney lesions were observed in dogs in the 28-day feeding study, no kidney effects or other treatment related toxicity were seen in the chronic feeding study in dogs at the same doses used in the 28-day study. Microscopic kidney lesions were observed in mice following long-term exposure.

There was no evidence of increased susceptibility (quantitative/qualitative) followingin uteroexposure in rats and rabbits, or following pre and/or postnatal exposure in rats. Neither developmental toxicity nor reproductive toxicity was observed in rats. In rabbits, developmental toxicity was not observed following exposure to dose levels that resulted in maternal death; however, abortions were observed in rabbits following exposure to fluroxypyr at the limit dose. There was no evidence of neurotoxicity or neuropathology in any of the studies. An immunotoxicity study in rats found no indication of immunotoxicity. Fluroxypyr is classified “not likely to be carcinogenic to humans” due to lack of evidence to suggest carcinogenicity in the database, and there is no concern for its mutagenicity potential.

Specific information on the studies received and the nature of the adverse effects caused by fluroxypyr as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found athttp://www.regulations.govin document “Fluroxypyr. Human Health Risk Assessment to Support Proposed NewUse on Rice,” p. 15 in docket ID number EPA-HQ-OPP-2011-0962.

Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, seehttp://www.epa.gov/pesticides/factsheets/riskassess.htm.

A summary of the toxicological endpoints for fluroxypyr used for human risk assessment is shown in the Table of this unit.

1.Dietary exposure from food and feed uses.In evaluating dietary exposure to fluroxypyr, EPA considered exposure under the petitioned-for tolerances as well as all existing fluroxypyr tolerances in 40 CFR 180.535. EPA assessed dietary exposures from fluroxypyr in food as follows:

i.Acute exposure.Quantitative acute dietary exposure and risk assessments are performed for a food-use pesticide, if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1-day or single exposure.

No such effects were identified in the toxicological studies for fluroxypyr; therefore, a quantitative acute dietary exposure assessment is unnecessary.

ii.Chronic exposure.In conducting the chronic dietary exposure assessment EPA used the food consumption data from the U.S. Department of Agriculture's National Health and Nutrition Examination Survey, “What We Eat in America” (NHANES/WWEIA) dietary survey conducted in 2003-2008. As to residue levels in food, EPA assumed tolerance-level residues with 100 percent crop treated (PCT) for all existing and proposed crop uses and default processing factors for processed commodities.

iii.Cancer.EPA has concluded that fluroxypyr does not pose a cancer risk to humans. Therefore, a dietary exposure assessment for the purpose of assessing cancer risk is unnecessary.

iv.Anticipated residue and PCT information.EPA did not use anticipated residue and/or PCT information in the dietary assessment for fluroxypyr. Tolerance level residues and 100 PCT were assumed for all food commodities.

2.Dietary exposure from drinking water.The Agency used screening level water exposure models in the dietary exposure analysis and risk assessment for fluroxypyr in drinking water. These simulation models take into account data on the physical, chemical, and fate/transport characteristics of fluroxypyr. Further information regarding EPA drinking water models used in pesticide exposure assessment can be found at http://www.epa.gov/oppefed1/models/water/index.htm.

Based on the Tier 1 Rice Model and Screening Concentration in Ground Water (SCI-GROW) models, the estimated drinking water concentrations (EDWCs) of fluroxypyr for acute and chronic exposures are both estimated to be 540 parts per billion (ppb) for surface water and 0.055 ppb for ground water.

Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For acute and chronic dietary risk assessment, the water concentration value of 540 ppb was used to assess the contribution to drinking water.

3.From non-dietary exposure.The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets).

Fluroxypyr is currently registered for the following uses that could result in residential exposures: Residential turfgrass, golf courses, parks and sports fields. EPA assessed residential exposure using the following assumptions: Residential handler exposure is expected to be short-term. Intermediate-term exposures are not likely because of the intermittent nature of applications by homeowners. Since there are no toxicity findings for the short-term dermal route of exposure up to the limit dose, only inhalation exposure was assessed for residential handlers of fluroxypyr. The following exposure scenarios were assessed for residential handlers: Loading and applying liquids with manually pressurized hand-wands, hose-end sprayers, and backpack applicators.

For residential post-application exposure and risk estimates, EPA assumed that young children 1 to <2 years old may receive incidental oral post-application exposure to fluroxypyr from treated turf.

A residential bystander post-application inhalation exposure assessment was not performed for fluroxypyr at this time because the chemical has low vapor pressure, is applied at a low rate, and is not applied via airblast. Although a quantitative residential post-application inhalation exposure assessment was not performed as a result of pesticide drift from neighboring treated agricultural fields, an inhalation exposure assessment was performed for flaggers. This exposure scenario, for which no risks of concern were identified, is representative of a worse case inhalation (drift) exposure and may be considered protective of most outdoor agricultural and commercial post-application inhalation exposure scenarios. Further information regarding EPA standard assumptions and generic inputs for residential exposures may be found athttp://www.epa.gov/pesticides/trac/science/trac6a05.pdf.

4.Cumulative effects from substances with a common mechanism of toxicity.Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.” EPA has not found fluroxypyr to share a common mechanism of toxicity with any other substances, and fluroxypyr does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that fluroxypyr does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's Web site athttp://www.epa.gov/pesticides/cumulative.

1.In general.Section 408(b)(2)(C) of FFDCA provides that EPA shall apply an additional tenfold (10X) margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database on toxicity and exposure unless EPA determines based on reliable data that a different margin of safety will be safe for infants and children. This additional margin of safety is commonly referred to as the FQPA Safety Factor (SF). In applying this provision, EPA either retains the default value of 10X, or uses a different additional safety factor when reliable data available to EPA support the choice of a different factor.

2.Prenatal and postnatal sensitivity.There is no evidence of increased qualitative or quantitative susceptibility followingin uteroexposure in rats and rabbits or following pre and/or postnatal exposure in rats.

Fluroxypyr is neither a developmental nor a reproductive toxicant in rats. Fluroxypyr has been evaluated for potential developmental effects in the rat and rabbit (gavage administration). Maternal toxicity included death in rats and rabbits. There were no developmental effects in the rat, and while abortions were observed in the rabbit, they occurred only at the limit dose.

3.Conclusion.EPA has determined that reliable data show the safety of infants and children would be adequately protected if the FQPA SF were reduced to 1X. That decision is based on the following findings:

i. The toxicity database for fluroxypyr is complete.

ii. There is no indication that fluroxypyr is a neurotoxic chemical and there is no need for a developmental neurotoxicity study or additional UFs to account for neurotoxicity.

iii. There is no evidence that fluroxypyr results in increased susceptibility inin uterorats or rabbits in the prenatal developmental studies or in young rats in the 2-generation reproduction study.

iv. There are no residual uncertainties identified in the exposure databases. The chronic dietary food exposure assessment utilizes tolerance level residue estimates and assumes 100 PCT for all commodities. This assessment will not underestimate exposure/risk. EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to fluroxypyr in drinking water. EPA used similarly conservative assumptions to assess post-application exposure of children as well as incidental oral exposure of toddlers. These assessments will not underestimate the exposure and risks posed by fluroxypyr.

EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the acute PAD (aPAD) and chronic PAD (cPAD). For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate PODs to ensure that an adequate MOE exists.

1.Acute risk.An acute aggregate risk assessment takes into account acute exposure estimates from dietary consumption of food and drinking water. No adverse effect resulting from a single oral exposure was identified and no acute dietary endpoint was selected. Therefore, fluroxypyr is not expected to pose an acute risk.

2.Chronic risk.Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that chronic exposure to fluroxypyrfrom food and water will utilize 3.5% of the cPAD for all infants (<1 year old), the population group receiving the greatest exposure.

3.Short-term risk.Short-term aggregate exposure takes into account short-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Fluroxypyr is currently registered for uses that could result in short-term residential exposure, and the Agency has determined that it is appropriate to aggregate chronic exposure through food and water with short-term residential exposures to fluroxypyr.

Using the exposure assumptions described in this unit for short-term exposures, EPA has concluded the combined short-term food, water, and residential exposures result in aggregate MOEs of 2,500 for adult handlers using a backpack sprayer, and 2,400 for children's postapplication oral exposure. Because EPA's level of concern for fluroxypyr is a MOE of 100 or below, these MOEs are not of concern.

4.Intermediate-term risk.Intermediate-term aggregate exposure takes into account intermediate-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level). An intermediate-term adverse effect was identified; however, fluroxypyr is not registered for any use patterns that would result in intermediate-term residential exposure. Intermediate-term risk is assessed based on intermediate-term residential exposure plus chronic dietary exposure. Because there is no intermediate-term residential exposure and chronic dietary exposure has already been assessed under the appropriately protective cPAD (which is at least as protective as the POD used to assess intermediate-term risk), no further assessment of intermediate-term risk is necessary, and EPA relies on the chronic dietary risk assessment for evaluating intermediate-term risk for fluroxypyr.

5.Aggregate cancer risk for U.S. population.Based on the lack of evidence of carcinogenicity in two adequate rodent carcinogenicity studies, fluroxypyr is not expected to pose a cancer risk to humans.

6.Determination of safety.Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population, or to infants and children from aggregate exposure to fluroxypyr residues.

Adequate enforcement methodology (gas chromatography/electron capture detection (GC/ECD methods GRM 96.02 and 96.03)) are available to enforce the tolerance expression. Fluroxypyr was previously tested through FDA's Multiresidue Methodology, Protocols C, D, and E and was found to be recovered. The results have been published in the FDA Pesticide Analytical Manual, Volume I. The GRM 96.02 and 96.03 methods may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; email address:residuemethods@epa.gov.

In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.

There are no Maximum Residue Limits (MRLs) established by Codex, Canada, or Mexico for any of the proposed commodities for fluroxypyr.

Therefore, tolerances are established for the combined residues of fluroxypyr 1-MHE and its acid metabolite fluroxypyr, in or on rice at 1.5 ppm and rice bran at 3.0 ppm.

This final rule establishes tolerances under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this final rule has been exempted from review under Executive Order 12866, this final rule is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501et seq.), nor does it require any special considerations under Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994). Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601et seq.), do not apply.

This final rule directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this final rule. In addition, this final rule does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1501et seq.).

This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA) (15 U.S.C. 272 note).

Pursuant to the Congressional Review Act (5 U.S.C. 801et seq.), EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in theFederal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Therefore, 40 CFR chapter I is amended as follows:

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Printing Office's e-CFR site athttp://ecfr.gpoaccess.gov/cgi/t/text/text-idx?&c=ecfr&tpl=/ecfrbrowse/Title40/40tab_02.tpl.

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2012-0038 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before March 18, 2013.Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2012-0038, by one of the following methods:

•Federal eRulemaking Portal: http://www.regulations.gov.Follow the online instructions for submitting comments. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute.

•Mail:OPP Docket, Environmental Protection Agency Docket Center (EPA/DC), (28221T), 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001.

•Hand Delivery:To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions athttp://www.epa.gov/dockets/contacts.htm.

Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available athttp://www.epa.gov/dockets.

In theFederal Registerof April 4, 2012 (77 FR 20334-20337) (FRL-9340-4), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 1E7924) by Bayer CropScience, P.O. Box 12014, 2 T.W. Alexander Dr., Research Triangle Park, N.C. 27709. The petition requested that 40 CFR 180.607 be amended by establishing tolerances for residues of spiromesifen, (2-oxo-3-(2,4,6-trimethylphenyl)-1-oxaspiro[4.4]non-3-en-4-yl 3,3-dimethylbutanoate) and its enol metabolite (4-hydroxy-3-(2,4,6-trimethylphenyl)-1-oxaspiro[4.4]non-3-en-2-one), in or on tea, dried at 50 parts per million (ppm). That document referenced a summary of the petition prepared by Bayer CropScience, the registrant, which is available in the docket,http://www.regulations.gov.There were no comments received in response to the notice of filing. Based upon review of the data supporting the petition, EPA has changed the tolerance for tea, dried from 50 ppm to 40 ppm. The reason for this change is explained in Unit IV.D.

Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue * * *.”

Consistent with FFDCA section 408(b)(2)(D), and the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for spiromesifen including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with spiromesifen follows.

EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.

Spiromesifen was classified as having low acute toxicity via the oral, dermal and inhalation routes of exposure. It was neither an eye nor dermal irritant, but showed moderate potential as a skin contact sensitizer. In short- and long-term animal toxicity tests, the critical effects observed were loss of body weight, adrenal effects (discoloration, decrease in fine vesticulation, and the presence of cytoplasmic eosinophilia in zona fasciculata cells), thyroid effects (increased thyroid stimulating hormone, increased thyroxine binding capacity, decreased T3 and T4 levels, colloidal alteration and thyroid follicular cell hypertrophy), liver effects (increased alkaline phosphatase, alanine transaminase (ALT) and decreased cholesterol, and triglycerides), and spleen effects (atrophy, decreased spleen cell count, and increased macrophages). There were no developmental or reproductive effects of concern following oral administration of spiromesifen in rats or rabbits. EPA concluded that spiromesifen is not likely to be carcinogenic to humans based on a lack of evidence of cancer in bioassays in rats and mice. There were noin vivoorin vitromutagenic effects in mutagenicity testing with spiromesifen. Spiromesifen is not considered a neurotoxic chemical based on the chemical's mode of action and the available data from multiple studies, including acute and subchronic neurotoxicity studies.

Specific information on the studies received and the nature of the adverse effects caused by spiromesifen as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found athttp://www.regulations.govin document “Spiromesifen: Human-Health Risk Assessment for Request for Tolerance without U.S. Registration in/on Tea.” at pages 20 to 24 in docket ID number EPA-HQ-OPP-2012-0038.

Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, seehttp://www.epa.gov/pesticides/factsheets/riskassess.htm.

A summary of the toxicological endpoints for spiromesifen used for human risk assessment is shown in Table 1 of this unit.

1.Dietary exposure from food and feed uses.In evaluating dietary exposure to spiromesifen, EPA considered exposure under the petitioned-for tolerances as well as all existing spiromesifen tolerances in 40 CFR 180.607. EPA assessed dietary exposures from spiromesifen in food as follows:

i.Acute exposure.Quantitative acute dietary exposure and risk assessments are performed for a food-use pesticide, if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1-day or single exposure. No such effects were identified in the toxicological studies for spiromesifen; therefore, a quantitative acute dietary exposure assessment is unnecessary.

ii.Chronic exposure.In conducting the chronic dietary exposure assessment EPA used the food consumption data from the USDA 1994-1996 and 1998 Cumulative Survey of Food Intake by Individuals, CSFII. As to residue levels in food, EPA assumed tolerance-level residues for all commodities except for the leafy-green and leafy-Brassicavegetable subgroups (4A, 4B, and 5B), spearmint and peppermint tops and oil, and tea. For these commodities, residues were also based on tolerance levels; however, a correction factor was applied to the tolerance levels to account for BSN 2060-4-hydroxymethyl metabolites of spiromesifen included in the risk assessment for these commodities. The additional metabolites, BSN 2060-4-hydroxymethyl and BSN 2060-4-hydroxymethyl-glucoside, were observed in the metabolism studies of lettuce only, comprising 21% of the total radioactive residues. Since the toxicity of the BSN 2060-4-hydroxymethyl metabolites is expected to be comparable to the parent compound, it was included in the risk assessment for leafy crops (including tea, subgroups 4A, 4B, and 5B and spearmint and peppermint tops and oil). To account for this additional exposure, the recommended tolerance level was multiplied by a correction factor of 1.3X, where 1.3 = (Metabolites in Risk Assessment)/(Metabolites in Tolerance Expression; concentrations from the lettuce metabolism study). Dietary Exposure Evaluation Model (DEEM) 7.81 default processing factors and 100 percent crop treated were assumed.

iii.Cancer.Based on the data summarized in Unit III.A., EPA has concluded that spiromesifen does not pose a cancer risk to humans. Therefore, a dietary exposure assessment for the purpose of assessing cancer risk is unnecessary.

iv.Anticipated residue and percent crop treated (PCT) information.EPA did not use anticipated residue and/or PCT information in the dietary assessment for spiromesifen. As discussed in Unit III.C.1.ii., for the leafy-greens and leafyBrassicagreens subgroups (4A, 4B, and 5B) and spearmint and peppermint tops and oil, and tea, the residue values were adjusted upward to account for the metabolite BSN 2060-4-hydroxymethyl (free and conjugated).

2.Dietary exposure from drinking water.The Agency used screening level water exposure models in the dietary exposure analysis and risk assessment for spiromesifen in drinking water. These simulation models take into account data on the physical, chemical, and fate/transport characteristics of spiromesifen. Further information regarding EPA drinking water models used in pesticide exposure assessment can be found athttp://www.epa.gov/oppefed1/models/water/index.htm.

Based on the Provisional Cranberry Model and Screening Concentration in Ground Water (SCI-GROW) models the estimated drinking water concentrations (EDWCs) of spiromesifen for chronic exposures for non-cancer assessments are estimated to be 188 ppb for surface water and 86 ppb for ground water.

Modeled estimates of drinking water concentrations were directly enteredinto the dietary exposure model. For chronic dietary risk assessment, the water concentration of value 188 ppb was used to assess the contribution to drinking water.

3.From non-dietary exposure.The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets).

Spiromesifen is currently registered for the following uses that could result in residential exposures: Indoor and outdoor uses for the control of mites and whiteflies on ornamental plants in and around areas such as parks, golf courses, recreational areas, and residential and commercial buildings. EPA assessed residential exposure using the following assumptions: Residential handler inhalation exposure was assessed for adults mixing/loading/applying spiromesifen using handheld equipment to ornamentals. Details for the residential risk exposure and risk assessment are contained in the EPA public docket EPA-HQ-OPP-2012-0038 athttp://www.regulations.govin document “Spiromesifen: Human-Health Risk Assessment for Request for Tolerance Without U.S. Registration in/on Tea” on pp.15-19.

Further information regarding EPA standard assumptions and generic inputs for residential exposures may be found athttp://www.epa.gov/pesticides/science/USEPA-OPP-HED_Residential%20SOPs_Oct2012.pdf.

4.Cumulative effects from substances with a common mechanism of toxicity.Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.”

EPA has not found spiromesifen to share a common mechanism of toxicity with any other substances, and spiromesifen does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that spiromesifen does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's Web site athttp://www.epa.gov/pesticides/cumulative.

1.In general.Section 408(b)(2)(C) of FFDCA provides that EPA shall apply an additional tenfold (10X) margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database on toxicity and exposure unless EPA determines based on reliable data that a different margin of safety will be safe for infants and children. This additional margin of safety is commonly referred to as the FQPA Safety Factor (SF). In applying this provision, EPA either retains the default value of 10X, or uses a different additional safety factor when reliable data available to EPA support the choice of a different factor.

2.Prenatal and postnatal sensitivity.There is no evidence of increased susceptibility of rats or rabbits followingin uteroand/or postnatal exposure to spiromesifen. In the prenatal developmental toxicity studies in rats and rabbits and in the 2-generation reproduction study in rats, developmental toxicity to the offspring occurred at equivalent or higher doses than parental toxicity.

3.Conclusion.EPA has determined that reliable data show the safety of infants and children would be adequately protected if the FQPA SF were reduced to 1X. That decision is based on the following findings:

i. The toxicity database for spiromesifen is complete.

ii. There is no indication that spiromesifen is a neurotoxic chemical and there is no need for a developmental neurotoxicity study or additional UFs to account for neurotoxicity.

iii. There is no evidence that spiromesifen results in increased susceptibility inin uterorats or rabbits in the prenatal developmental studies or in young rats in the 2-generation reproduction study.

iv. There are no residual uncertainties identified in the exposure databases. The dietary food exposure assessments were performed based on 100% CT and tolerance-level residues. EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to spiromesifen in drinking water. EPA used similarly conservative assumptions to assess postapplication exposure of children as well as incidental oral exposure of toddlers. These assessments will not underestimate the exposure and risks posed by spiromesifen.

EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the acute PAD (aPAD) and chronic PAD (cPAD). For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate PODs to ensure that an adequate MOE exists.

1.Acute risk.An acute aggregate risk assessment takes into account acute exposure estimates from dietary consumption of food and drinking water. No adverse effect resulting from a single oral exposure was identified and no acute dietary endpoint was selected. Therefore, spiromesifen is not expected to pose an acute risk.

2.Chronic risk.Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that chronic exposure to spiromesifen from food and water will utilize 78% of the cPAD for all infants (<1 year old), the population group receiving the greatest exposure. Based on the explanation in Unit III.C.3., regarding residential use patterns, chronic residential exposure to residues of spiromesifen is not expected.

3.Short-term risk.Short-term aggregate exposure takes into account short-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Because no short-term adverse effect was identified, spiromesifen is not expected to pose a short-term risk.

4.Intermediate-term risk.Intermediate-term aggregate exposure takes into account intermediate-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Because no intermediate-term adverse effect was identified, spiromesifen is not expected to pose an intermediate-term risk.

5.Aggregate cancer risk for U.S. population.Based on the lack of evidence of carcinogenicity in two adequate rodent carcinogenicity studies, spiromesifen is not expected to pose a cancer risk to humans.

6.Determination of safety.Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population or to infants and childrenfrom aggregate exposure to spiromesifen residues.

Adequate enforcement methodology (high-performance liquid chromatography/tandem mass spectroscopy (HPLC/MS/MS)/Method BS001-P09-01 is available to enforce the tolerance expression.

The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; email address:residuemethods@epa.gov.

In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.

The Codex has not established a MRL for spiromesifen in/on dried tea.

There were no comments received.

Based on the analysis of the data supporting the petition, EPA has revised the proposed tolerance for tea, dried from 50 ppm to 40 ppm. EPA revised this tolerance level based on the highest-average field trial residue level and a processing factor for black tea.

Therefore, tolerances are established for residues of spiromesifen, (2-oxo-3-(2,4,6-trimethylphenyl)-1-oxaspiro[4.4]non-3-en-4-yl 3,3-dimethylbutanoate) its enol metabolite (4-hydroxy-3-(2,4,6-trimethylphenyl)-1-oxaspiro[4.4]non-3-en-2-one), in or on tea, dried at 40 ppm.

This final rule establishes tolerances under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this final rule has been exempted from review under Executive Order 12866, this final rule is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501et seq.), nor does it require any special considerations under Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994).

Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601et seq.), do not apply.

This final rule directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism”(64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this final rule. In addition, this final rule does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1501et seq.).

This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA) (15 U.S.C. 272 note).

Pursuant to the Congressional Review Act (5 U.S.C. 801et seq.), EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in theFederal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Therefore, 40 CFR chapter I is amended as follows:

On January 12, 2011, the National Marine Fisheries Service (NMFS) published a rule (76 FR 2011) establishing identification and certification procedures to address illegal, unreported, or unregulated (IUU) fishing activities and bycatch of protected living marine resources (PLMRs) pursuant to the High Seas Driftnet Fishing Moratorium Protection Act (Moratorium Protection Act) (50 CFR 300.200et seq.) (16 U.S.C. 1826h-k). This action modifies those identification and certification procedures to reflect amendments to the Moratorium Protection Act made by the Shark Conservation Act (Pub. L. 111-348), enacted on January 4, 2011.

On July 10, 2012, NOAA published a proposed rule establishing identification and certification procedures to implement the international provisions of the Shark Conservation Act. This rule also proposed changes to the definition of IUU fishing for purposes of the Moratorium Protection Act (see 50 CFR 300.201). The background information on this action was published in the proposed rule (77 FR 40553, July 10, 2012) and is not repeated here.

Briefly, under these regulations, in addition to identifying nations based on IUU fishing or bycatch of protected living marine resources, NMFS will identify a foreign nation in a biennial report to Congress if fishing vessels of that nation have been engaged during the preceding calendar year in fishing activities or practices in waters beyond any national jurisdiction that target or incidentally catch sharks and the nation has not adopted a regulatory program for the conservation of sharks. Such conservation measures must be comparable to those of the United States, taking into account different conditions.

A brief summary of how NMFS intends to apply Section 609 of the Moratorium Protection Act and its implementing regulations is repeated below.

In addition to the regulatory changes identified above, NMFS has reconsidered the manner in which it applies Section 609 of the Moratorium Protection Act and its implementing regulations. To date, NMFS has primarily applied this Act and implementing regulations to identify a nation when the nation's vessels were engaged in IUU fishing activity that was directly attributable to specific vessel conduct.

After two cycles of identification, NMFS has determined that these provisions could be applied more broadly. In order to more comprehensively address IUU fishing, we must consider not only the prohibited actions of fishing vessels but also non-compliance in the form of action or inaction at the national level that leads to IUU fishing. To further this goal, NMFS will identify a nation based on the nation's actions or inactions that lead to fishing by vessels registered under their flag that is not in accordance with regional fishery management organization (RFMO) conservation and management measures.

For example, under the approach adopted in this final rule, NMFS could identify a nation when the nation has failed to implement measures that are required by a RFMO to which the United States is a party, and as a result the fishing vessels of that nation operated in a manner inconsistent with the relevant RFMO conservation and management measures.

This approach is consistent with the plain language of the statutory guidelines provided in section 609(e)(3)(A) of the Moratorium Protection Act for the IUU fishing definition. These statutory guidelines specifically mention certain RFMO conservation and management measures, such as catch limits or quotas, that must be implemented by nations that are parties to the RFMO and cannot necessarily be attributed to specific fishing vessels. For example, RFMOs can establish quotas for their member nations. Each nation bears the responsibility for implementing and adhering to the quota it received. Individual fishing vessels, therefore, cannot be found in violation of the RFMO's quota, but action or inaction by the flag nation could result in fishing activity in violation of the quota. In addition to specific situations mentioned in the minimum statutory guidelines for the IUU fishing definition, there are other circumstances in which fishing activities might violate RFMO measures because of a nation's failure to govern its own fishing vessels or carry out its own responsibilities. For example, RFMOs require parties to implement data reporting requirements. In most cases, the nations, and not individual vessels, compile and report the requisite information to comply with RFMO conservation and management measures. Because many measures are inherently a nation's responsibility, Congress evidently intended NMFS to be able to identify a nation based on its failure to fulfill the requirements of the relevant RFMO and the operations of the nation's fisheries in light of this failure.

Under the approach adopted in this final rule, a nation could be identified for fishing activities that were illegal, unregulated, or unreported because of national action or inaction, including, consistent with the examples discussed above, fishing activities that resulted in the nation exceeding a harvest quota granted by the relevant RFMO because the nation failed to implement measures to prevent such overharvest, and fishing activities that were not reported because the nation failed to carry out its responsibilities for reporting to ensure collection of such information.

Responses to public comments received on the proposed rule are found below.

The final rule includes minor clarifications to procedures that apply when a nation fails to receive a positive certification under the Act. First, NMFS makes minor revisions to documentation requirements. Current regulations at 50 CFR 300.205(b)(2), 300.206(c), and 300.207(c) refer to “documentation of admissibility” that must be “executed” by a duly authorized official of an identified nation when fish or fish products are imported into the United States. In an effort to use language that is more clearly understood, this final rule replaces the word “executed” with “properly completed and signed.” To be consistent with the form that will accompany fish and fish products entering the United States for this rulemaking, this final rule changes the term “documentation” to “certification,” and clarifies that the certification must be signed by the importer of record prior to submission to NMFS. This final rule also includes a reminder that other import documentation requirements may apply in addition to this certification.

Second, the final rule clarifies the roles of the Departments of Treasury and Homeland Security consistent with Treasury Order 100-16. Under 50 CFR 300.205(b)(1) and (b)(4), the Secretary of Commerce is responsible for notifying the public of both the imposition and removal of trade restrictive measures, with the concurrence of the Secretary of State and in cooperation with the Secretary of Treasury. Treasury Order 100-16 provides that the Secretaries of Treasury and Homeland Security share certain responsibilities pertaining to trade restrictive measures. The final rule clarifies that the Secretary of Commerce will issue these notices in cooperation with the Secretaries of Treasury, Homeland Security, and State.

Finally, the rule now includes text from the High Seas Driftnet Fisheries Enforcement Act (16 U.S.C. 1826a) regarding the denial of port privileges. In describing the denial of port privileges, current regulations at 50 CFR 300.204(a) only include text from the High Seas Driftnet Fisheries Enforcement Act regarding the denial of entry of IUU fishing vessels into the navigable waters of the United States. However, the Act also includes a second provision on withholding or revoking clearance of vessels, which NMFS has included in the final rule.

NMFS received 17 public comments on the proposed rule. These comments came from several environmental non-governmental organizations, fishing industry groups, including fish importers, and foreign governments and trade organizations. NMFS did not make changes to the proposed rule in response to comments received, since many of the suggested changes were not consistent with statutory authority or were outside the scope of this rulemaking.

NMFS received several comments in support of the proposed regulations. Many commenters suggested that the regulation could help “level the playing field” for U.S. fishermen who are competing in a global market against foreign fishermen that are not required to abide by regulations as stringent as those in the United States.

Comment 1:One commenter asked NMFS to clarify that the regulation does not apply to U.S. vessels who may have committed minor infractions of domestic fisheries regulations.

Response:NMFS agrees that the final regulation does not apply to U.S. vessels. The Moratorium Protection Act directs the Secretary of Commerce to identify and certify only foreign nations for having vessels engaged in IUU fishing, bycatch of protected living marine resources, and shark catch on the high seas. U.S. fishermen are, however, subject to regulation under other domestic laws, including but not limited to, the Magnuson-Stevens Fishery Conservation and Management Act, the Marine Mammal Protection Act, the Endangered Species Act, and the Lacey Act.

Comment 2:One commenter raised concerns that language in the proposed rule will lead to inconsistent application of the regulations. In particular, the commenter recommended deleting language regarding NMFS taking into account different conditions when making decisions to identify nations for having vessels engaged in shark catch on the high seas if they do not have a comparable regulatory program to the United States. They asserted that NMFS must use standards consistently across all nations to comply with the World Trade Organization (WTO) Agreement.

Response:The Moratorium Protection Act, at 16 U.S.C. 1826k(a)(2)(B), requires that NMFS take into account different conditions when making identification decisions for nations whose vessels engaged in shark catch beyond any national jurisdiction. While NMFS cannot delete this requirement, NMFS is mindful of U.S. obligations under the WTO Agreement when implementing the provisions of the Moratorium Protection Act, and works with the Office of the U.S. Trade Representative to ensure that any actions taken under the Moratorium Protection Act are consistent with these obligations. Agency actions and recommendations under this final rule will be in accordance with U.S. obligations under applicable international law, including the WTO Agreement.

By taking into account different conditions in a nation's fishery, including conditions that could bear on the feasibility and effectiveness of certain bycatch mitigation measures, NMFS considers alternative measures implemented by the nation that are as effective or more effective than those applicable in U.S. fisheries. This flexibility helps to ensure that identification and certification determinations do not result in the imposition of trade-restrictive measures that are arbitrary or unjustifiably discriminatory because they hold a nation to a higher standard than measures applied in U.S. fisheries.

Comment 3:Commenters suggested broadening the scope of potential trade restrictive measures that could be applied to an identified nation that fails to receive a positive certification to, at a minimum, include all fish or fish products from such nation. If verifiable progress is not made by the nation to control the actions of its vessels, they suggested NMFS develop a process to expeditiously broaden the scope of trade restrictions to cover all goods from that nation that are imported into the United States.

Response:The Moratorium Protection Act limits the scope of import prohibitions that can initially be applied to an identified nation that fails to receive a positive certification. For a nation identified for IUU fishing, import prohibitions would be limited to fish and fish products managed under an applicable international fishery agreement. If there is no applicable international fishery agreement, such prohibitions would only apply to fish and fish products caught by vessels engaged in IUU fishing. For a nation identified for either bycatch or shark catch, import prohibitions would be limited to those that address the relevant fishing activities or practices for which such nations were identified in the biennial report.

However, if after six months following the imposition of import prohibitionsthe Secretary of Commerce certifies to the President that the prohibitions are insufficient to cause a nation to effectively address such IUU fishing activity, bycatch, or shark catch or that the nation has taken retaliatory action against the United States, the President may (under authority of the Pelly Amendment at 22 U.S.C. 1978a) direct the Secretary of the Treasury to prohibit the bringing or the importation into the United States of any products from the nation for any duration as the President determines appropriate and to the extent that such prohibition is sanctioned by the WTO.

Comment 4:Another commenter suggested the regulation make it clear that, in the case of an identified nation that fails to receive a positive certification, trade restrictive measures can be applied to all fisheries that are managed under the applicable regional fishery management organization (RFMO), regardless of whether catch of such fish triggered the nation's identification. They specifically requested the deletion of the following statement: “Such recommendation would address the relevant fishing activities or practices for which such nations were identified in the biennial report,” since they believe it could be misinterpreted to further limit the scope of potential sanctions by referring only to the fishing activities that give rise to the IUU violations.

Response:NMFS believes the current language does not unduly limit the scope of import prohibitions that can be put into place. Rather, the language ensures that any recommendations for import prohibitions will help address the activities for which the nation was identified. Under the Moratorium Protection Act, if an identified nation fails to receive a positive certification, import prohibitions may potentially be applied to fish and fish products managed under the applicable international fishery agreement.

Comment 5:One commenter was concerned that the proposed regulation does not specify which types of fish and fishing products could face market entry restrictions and raised concerns that the application of trade restrictive measures could be contrary to the spirit of international trade.

Response:The Moratorium Protection Act limits the scope of import prohibitions that can be applied, but does not specify which fisheries products would be prohibited from importation into the United States. This final regulation requires that the Secretary of Commerce recommend the imposition of import prohibitions with respect to fish and fish products associated with the fishing activity that served as the basis for the nation's identification. The regulation further provides that recommended import prohibitions be in accordance with U.S. obligations under applicable international trade law, including the WTO Agreement.

Comment 6:A few commenters suggested that NMFS and other governmental agencies continue to work towards traceability of imported fisheries products to monitor fisheries products coming into the United States and help implement the provisions of the Moratorium Protection Act.

Response:NMFS agrees. However, establishment of a broad traceability program for all fisheries products is beyond the scope of this rulemaking. Nonetheless, NMFS has taken steps under the Moratorium Protection Act and other laws to improve traceability of fisheries products. With respect to this rulemaking, if import prohibitions are put in place for an identified nation that has failed to receive a positive certification under the Moratorium Protection Act, fish and fish products from the identified nation entering the United States must be accompanied by a completed certification of admissibility available from NMFS. The certification of admissibility must be properly completed and signed by a duly authorized official of the identified nation. The certification must also be signed by the importer of record and submitted to NMFS in a format (electronic facsimile (fax), the Internet, etc.) specified by NMFS for validation.

To assist with the traceability of imported fisheries products, NMFS has implemented several import monitoring programs under other authorities. These include the Tuna Tracking and Verification Program (NOAA Form 370—Fisheries Certificate of Origin) implemented under the Dolphin Protection Consumer Information Act and Marine Mammal Protection Act. This program ensures that imported tuna products are correctly labeled as “dolphin-safe.” Similarly, we have implemented a bluefin tuna catch documentation scheme (now a paper-based system, but moving in 2013 to an electronic tracking system) pursuant to U.S. obligations as a Contracting Party to the International Convention for the Conservation of Atlantic Tunas (ICCAT) and under the authority of the Atlantic Tunas Convention Act (ATCA). ICCAT also has swordfish and bigeye tuna statistical document programs that are implemented under ATCA authority. NMFS has also implemented an Antarctic toothfish import monitoring program which requires a catch certificate and pre-approval for imports under the authority of the Antarctic Marine Living Resources Conservation Act.

Comment 7:One commenter encouraged NMFS to communicate the requirements of the Moratorium Protection Act proactively and as quickly as possible to the international community to ensure knowledge of the regulation and its implications.

Response:NMFS agrees and has widely shared information on the provisions of the Moratorium Protection Act with foreign governments at every opportunity, including meetings of RFMOs, the Food and Agriculture Organization of the United Nations (FAO), and other international fora, as appropriate. NMFS has also provided information to many countries during bilateral meetings and through the U.S. State Department.

Comment 8:One commenter expressed concern that information could be used as the basis for a nation's identification even if the information is not credible and is intended to harm a particular nation.

Response:NMFS makes every effort to validate allegations that a nation's vessels are engaged in fishing activities that could form the basis of identification under the Moratorium Protection Act. Nations are provided an opportunity to address such information before identification decisions are made.

Comment 9:One commenter suggested that when identifying nations, NMFS must identify nations that subsidize illegal fishing.

Response:NMFS does not have authority under the statute to address fishing subsidies. However, the United States fully participates in international negotiations to eliminate harmful fishing subsidies, including the subsidization of vessels identified as having engaged in IUU fishing.

Comment 10:One commenter suggested that when identifying nations, NMFS take a strong stance in specifying requirements for shark conservation measures when looking at a nation's comparable regulatory program.

Response:NMFS agrees that strong shark measures must be adopted domestically and strives to help ensure compliance with measures that are adopted internationally. NMFS will be taking a comprehensive look at eachnation's domestic regulatory program for sharks when determining whether that nation's regulatory program is comparable to the United States, taking into account different conditions.

Comment 11:One commenter suggested that NMFS amend the regulation so that it applies to shark catch in waters under national jurisdiction, as well as shark catch on the high seas.

Response:The Moratorium Protection Act, as amended by the Shark Conservation Act, only authorizes NMFS to identify nations for having vessels engaged shark catch beyond any national jurisdiction. Expanding the criteria for shark catch identifications to areas within any national jurisdiction would be outside the scope of the statute. However, shark fishing activity that occurs in another nation's waters could be a basis for identification as IUU fishing if such activity violates a conservation and management measure required under an international fishery management agreement to which the United States is a party.

Comment 12:One commenter suggested removing text allowing NMFS to take into account relevant matters, including, but not limited to, the history, nature, circumstances, and gravity of the fishing activities that target or incidentally catch sharks beyond any national jurisdiction, when making identification decisions. The commenter is concerned that the language provides a loophole that could be used as a basis for not identifying nations that are harvesting and not sustainably managing shark species.

Response:The purpose of the language in the proposed rule is to acknowledge different circumstances that may lead to a nation's identification. The language provides discretion for practicable implementation of the law and allows NMFS to consider all relevant circumstances, such as whether a nation has repeatedly engaged in fishing activities of concern, when making identification decisions.

Comment 13:Several commenters suggested that NMFS examine the use of circle hooks by a nation identified for having vessels engaged in shark catch on the high seas when determining whether to issue a positive certification.

Response:When issuing a certification decision for a nation identified for having vessels engaged in shark catch on the high seas, when appropriate, NMFS will consider, among other things, whether circle hooks are required for U.S. fishermen in the same or similar fisheries, and determine whether the nation has measures in place that are comparable in effectiveness to those required in U.S. fisheries. NMFS will not mandate use of circle hooks in pelagic longline fisheries for shark certifications because such measures are not currently required in U.S. fisheries to mitigate shark bycatch, and may in fact increase shark mortality in some cases.

Comment 14:A commenter expressed concern that U.S. domestic regulations have not been proposed that would implement the requirement that U.S. fishermen must land sharks with their fins naturally attached. The commenter urged NMFS to move forward and issue implementing U.S. regulations immediately.

Response:These regulations only implement provisions of the Shark Conservation Act that amended the Moratorium Protection Act. NMFS will address the domestic fisheries provisions of the Act in separate rulemakings.

Comment 15:Several commenters suggested that NMFS encourage other nations to adopt a National Plan of Action for Sharks.

Response:The United States continues to encourage other nations to adopt and implement a National Plan of Action for Sharks.

Comment 16:When determining whether a nation has a comparable regulatory program to the United States, several commenters suggested that NMFS investigate whether the nation has domestic legislation to implement international requirements and their National Plan of Action for Sharks, as well as effective enforcement.

Response:If NMFS obtains information that a nation has vessels engaged in shark catch on the high seas, we will holistically examine that nation's regulatory program for sharks to determine if it is comparable to that of the United States, including domestic legislation and enforcement of the program. NMFS agrees that these issues are a critical part of a regulatory program and they will be considered.

Comment 17:One commenter discussed their opposition to state finning bans that are being considered for possible adoption.

Response:NMFS cannot address state finning bans in this rulemaking.

Comment 18:One commenter suggested that the goal of the proposed regulation is to address stateless vessels in the world's oceans that are not abiding by rules applicable to the U.S. fishermen are subject to. Therefore, they would like the IUU fishing definition amended to include stateless vessels that are engaged in IUU fishing.

Response:The Moratorium Protection Act authorizes NMFS to identify nations for having vessels engaged in IUU fishing, bycatch of protected living marine resources, and shark catch beyond any national jurisdiction. The fishing activities of stateless vessels cannot be addressed under the Moratorium Protection Act. IUU fishing activities by stateless vessels can be addressed pursuant to provisions of a number of international instruments, including the FAO Port State Measures Agreement, which will require the denial of access to ports and/or the withholding of port services to IUU vessels, including stateless vessels.

Comment 19:Several commenters suggested that the definition of IUU fishing be identical to the characterization of IUU fishing that was included in the FAO Port State Measures Agreement. This characterization of IUU fishing refers to the activities set out in paragraph three of the 2001 FAO International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (seehttp://www.fao.org/docrep/003/y1224e/y1224e00.htm).

Response:The Moratorium Protection Act sets forth the minimum elements that must be included in the definition of IUU fishing for purposes of the Act. The characterization of IUU fishing that was included in the FAO Port State Measures Agreement serves a different purpose than the definition of IUU fishing for purposes of the Moratorium Protection Act. Under the FAO Port State Measures Agreement, States and other entities commit to adopt measures to strengthen their ports against IUU fisheries products and to enhance port State measures through flag State control. Thus, the characterization of activities that can be considered IUU fishing under the FAO Port State Measures Agreement is broad enough to address specific fishing activities by individual vessels. In contrast, the Moratorium Protection Act provides authority to identify and certify nations for having vessels engaged in IUU fishing, which is defined based on statutory guidelines. For example, the fishing activities of stateless vessels, which are addressed under the Port State Measures Agreement, cannot be addressed under the Moratorium Protection Act, which establishes a process to identify and certify nations, rather than nations' vessels, to promote sustainable fishing activities by their vessels.

In addition, NMFS is not expanding the IUU fishing definition in this finalrule to encompass RFMOs to which the United States is not a member because it could result in a nation's identification for violations of international measures to which the United States is not bound, and was not involved in developing.

Comment 20:Several commenters expressed concern about the aspect of the IUU fishing definition that pertains to fishing activities that adversely impact vulnerable marine ecosystems (VMEs). Specifically, they requested that NMFS delete the term “significant” before “adverse impact,” so that the VME aspect of the IUU fishing definition can be interpreted more broadly.

Response:In the current regulations, NMFS harmonized the applicable section of the IUU definition to be consistent with international norms of the United Nations General Assembly and FAO. NMFS added “significant” before “adverse impact” in the definition to reflect the standard of significant adverse impact as established in United Nations General Assembly Resolutions 61/105, 64/72, and 66/88, as well as the FAO International Guidelines for the Management of Deep-sea Fisheries in the High Seas.

This final rule is published under the authority of the Moratorium Protection Act, 16 U.S.C. 1826d-1826k, as amended by the Shark Conservation Act (Pub. L. 111-348).

This rulemaking has been determined to be significant for the purposes of Executive Order 12866.

Pursuant to 5 U.S.C. 553(d)(3), NOAA finds that there is good cause to waive the 30-day delay in the effective date of this rule. This rule is procedural in nature: It only creates procedures for the agency to follow when determining the identification and certification of nations whose fishing vessels are engaged in shark catch beyond any national jurisdiction. Importantly, the rule does not modify, add, or revoke any existing rights and obligations of the public or any private parties, because the rule only applies to NOAA. Once this final rule is implemented, the public is not required to take any action to come into compliance. Accordingly, NOAA finds that there is good cause, within the meaning of 5 U.S.C. 553(d)(3), to waive the 30-day delay in effectiveness of this rule and to make this rule effective immediately.

Pursuant to section 605 of the Regulatory Flexibility Act, at the proposed rule stage, the Chief Council for Regulation of the Department of Commerce certified to the Chief Council for Advocacy of the Small Business Administration that this final rule would not have a significant economic impact on a substantial number of small entities. NMFS did not receive any comments on that certification. For any questions about the certification, please contact NMFS at the contact provided underFOR FURTHER INFORMATION.

This final rule contains collection-of-information requirements for §§ 300.206(b)(2), 300.207(c), and 300.208(c) subject to review and approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act (PRA). The collection-of-information requirements have been approved by OMB under control number 0648-0651.

For the reasons set out in the preamble, 50 CFR part 300 is amended as follows:

Specifications, as referred to in this rule, are the combined suite of commercial and recreational catch levels established for 1 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 Mid-Atlantic Fishery Management Council's (Council) process for establishing specifications relies on provisions within the Atlantic Mackerel, Squid, and Butterfish (MSB) Fishery Management Plan (FMP) and its implementing regulations, as well as requirements established by the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). Specifically, section 302(g)(1)(B) of the Magnuson-Stevens Act states that the Scientific and Statistical Committee (SSC) for each Regional Fishery Management Council shall provide its Council ongoing scientific advice for fishery management decisions, including recommendations for acceptable biological catch (ABC), preventing overfishing, maximum sustainable yield, and achieving rebuilding targets. The ABC is a level of catch that accounts for the scientific uncertainty in the estimate of the stock's defined overfishing level (OFL).

The Council's SSC met on May 23 and 24, 2012, confirming 2013 specifications forIllexand longfin squid and recommending ABCs for the 2013-2015 Atlantic mackerel (mackerel) and 2013 butterfish specifications. A proposed rule for 2013 MSB specifications and management measures was published on November 19, 2012 (77 FR 69426), and the public comment period for theproposed rule ended on December 10, 2012.

The MSB regulations require the specification of annual catch limits (ACL) and accountability measures (AM) for mackerel and butterfish (both squid species are exempt from the ACL/AM requirements because they have a life cycle of less than 1 year). In addition, the regulations require the specification of domestic annual harvest (DAH), domestic annual processing (DAP), and total allowable level of foreign fishing (TALFF), along with joint venture processing for (JVP) commercial and recreational annual catch totals (ACT) for mackerel, the butterfish mortality cap in the longfin squid fishery, and initial optimum yield (IOY) for both squid species. Details concerning the Council's development of these measures were presented in the preamble of the proposed rule and are not repeated here.

The Mid-Atlantic Research Set-Aside (RSA) Program funds research projects 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. NMFS solicited research proposals under the 2013 Mid-Atlantic RSA Program through a Federal Funding Opportunity announcement that published on February 17, 2012 (Funding Opportunity Number NOAA-NMFS-NEFSC-2013-2003258 ongrants.gov). Two projects were preliminarily selected by NMFS, although final grant approval by NOAA Grants is pending. Federally permitted vessels harvesting RSA quota are issued Exempted Fishing Permits in support of approved research projects, which would authorize them to exceed Federal possession limits and to fish during Federal quota closures. If approved, the projects would be awarded 589,800 lb (267,529 kg) of summer flounder, 958,950 lb (434,972 kg) of scup, 111,900 lb (50,757 kg) of black sea bass, 874,000 lb (396,440 kg) of longfin squid, 79,455 lb (36,040 kg) of butterfish for discards on longfin squid research trips, and 715,830 lb (324,695 kg) of bluefish. The research projects preliminary selected include the following:

• A near-shore trawl survey between Martha's Vineyard, MA, and Cape Hatteras, NC, in shallow waters unsampled by current Federal finfish bottom trawl surveys to provide stock assessment data for Mid-Atlantic RSA species, including summer flounder, scup, black sea bass, longfin squid, butterfish, and Atlantic bluefish, and assessment-quality data for weakfish, Atlantic croaker, spot, several skate and ray species, smooth dogfish, horseshoe crab, and several unmanaged but important forage species; and

• A fishery-independent black sea bass survey of four separate hard-bottom sites unsampled by current state and Federal finfish bottom trawl surveys in southern New England and Mid‐Atlantic waters using unvented black sea bass pots.

The Council recommended that up to 3 percent of the total ACL for mackerel, up to 3 percent of the IOY forIllexand longfin squid, and up to 2 percent of the butterfish ACT could be set aside to fund projects selected under the 2013 Mid-Atlantic RSA Program, where 59 mt could be set aside for butterfish discard on longfin squid research trips, and 151 mt could be set aside for directed butterfish landings. The final RSA awards are subtracted from the IOY for longfin squid, and the butterfish mortality cap in Table 1 below.

This action specifies the mackerel U.S. ABC at 43,781 mt. The status of the mackerel stock was assessed by the Transboundary Resources Assessment Committee (TRAC) in March 2010. The 2010 TRAC Status Report indicated reduced productivity in the stock and a lack of older fish in both the survey and catch data, and determined that the status of the mackerel stock is unknown because biomass reference points could not be determined. Due to uncertainty in the assessment, the TRAC recommended that total annual catches not exceed 80,000 mt (average total U.S. and Canadian landings from 2006-2008) until new information is available. The mackerel stock-wide ABC was set at 80,000 mt for 2012, consistent with the TRAC recommendation. Since a new mackerel assessment is not expected for several years, the SSC recommended maintaining the 2012 mackerel specification and specifying the stock-wide ABC for 3 years (2013-2015) at 80,000 mt. The Council recommended a U.S. ABC of 43,781 mt (80,000 mt—36,219 mt (2010 actual Canadian catch)). Due to the variability in recent Canadian catch, and the inability to predict Canadian catch for 2013, the SSC recommended the use of Canadian catch from 2010 (the same amount used for setting 2012 specifications).

Consistent with MSB Amendment 11, the Council recommended a recreational allocation of 2,714 mt (6.2 percent of the U.S. ABC). The proposed Recreational ACT of 2,443 mt (90 percent of the U.S. ABC of 2,714 mt) was reduced 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 would be the effective cap on recreational catch.

For the commercial mackerel fishery, the Council recommended a commercial fishery allocation of 41,067 mt (93.8 percent of the U.S. ABC, the portion of the ACL that was not allocated to the recreational fishery). The recommendedCommercial ACT of 34,907 mt (85 percent of 41,067) was reduced to address uncertainty in estimated 2013 Canadian landings, uncertainty in discard estimates, and possible misreporting. The Commercial ACT was further reduced by a discard rate of 3.11 percent (mean plus one standard deviation of discards from 1999-2008), to arrive at the proposed DAH of 33,821 mt. The DAH was proposed as the effective cap on commercial catch, as it has been in past specifications.

Consistent with the Council's recommendation, this action sets the 2013-2015 mackerel specifications so that the U.S. ABC/ACL is 43,781 mt; the Commercial ACT is 34,907 mt; the DAH and DAP are 33,821 mt; and the Recreational ACT is 2,443 mt. Additionally, as recommended by the Council, JVP is maintained as zero. There was no mackerel awarded for the RSA program for the 2013 fishing year.

The Magnuson-Stevens Act provides that the specification of TALFF, if any, shall be the portion of the optimum yield (OY) of a fishery that will not be harvested by U.S. vessels. TALFF would allow foreign vessels to harvest U.S. fish and sell their product on the world market, in direct competition with U.S. industry efforts to expand exports. While a surplus existed between ABC and the mackerel fleet's harvesting capacity for many years, that surplus has disappeared due to decreases in the specifications in recent years. Based on analysis and a review of the state of the world mackerel market 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, consistent with the Council's recommendation, NMFS is specifying the DAH at a level that can be fully harvested by the domestic fleet, thereby precluding the specification of a TALFF, in order to support the U.S. mackerel industry. NMFS concurs that it is reasonable to assume that in 2013 the commercial mackerel fishery has the ability to harvest 33,821 mt of mackerel.

This action specifies the butterfish ABC at 8,400 mt. The current status of the butterfish stock is unknown because biomass reference points could not be determined in the SAW 49 assessment (February 2010); however, survey trends since the most recent assessment suggest an increase in butterfish abundance. In recommending 2013 specifications, the SSC considered multiple sources of information, including a recent analysis of the butterfish stock by Dr. Paul Rago and Dr. Tim Miller from NOAA's Northeast Fisheries Science Center (NEFSC). Because of the uncertainty in the most recent butterfish stock assessment, on April 6, 2012, the Council requested that NEFSC offer additional analysis of the butterfish stock to aid the SSC in the ABC setting process for the 2013 fishing year. The NEFSC analysis (May 2, 2012) applied ranges of a number of different factors (such as natural mortality and survey catchability) to develop a range of likely stock biomasses that would be consistent with recent survey results and observed butterfish catch. The NEFSC also examined a range of fishing mortalities that would result from these biomass estimates. The SSC used the NEFSC analysis, along with guidance (Patterson, 1992) that suggests maintaining a natural mortality/fishing mortality ratio of 67 percent for small pelagic species, to develop a proxy OFL for butterfish. Consistent with the 2010 butterfish assessment, the SSC assumed a high level of natural mortality (M = 0.8) and applied the 67-percent ratio to result in a fishing mortality rate of F = 0.536, which the SSC used as a proxy maximum F threshold for butterfish. In the NEFSC analysis, a catch of 16,800 mt would only lead to fishing mortality rates higher than F = 0.536 (i.e., rates consistent with overfishing based on the maximum fishing mortality rate threshold proxy) under very extreme assumptions. The SSC therefore adopted 16,800 mt as a proxy OFL. The SSC buffered the proxy OFL by 50 percent to reach the butterfish ABC of 8,400 mt. The SSC's justification for this buffer noted that the short life history of butterfish gives limited time for management to respond to adverse patterns, that recruitment of butterfish is highly variable and uncertain, that the stock status of butterfish is unknown, and that butterfish are susceptible to environmental and ecosystem variability, in particular inter-annual variability in natural mortality. A detailed summary of the SSC's rationale for its 2013 butterfish ABC recommendation is available in its May 2012 Report (available, along with other materials from the SSC discussion, at:http://www.mafmc.org/meeting_materials/SSC/2012-05/SSC_2012_05.htm).

The Council recommended setting the butterfish ACL equal to the ABC, and establishing a 10-percent buffer between ACL and ACT for management uncertainty, which would result in an ACT of 7,560 mt. Since discards have been roughly2/3of catch (1999-2008 average), the Council recommended setting the DAH and DAP at 2,570 mt (7,560 mt−4,990 mt discards). Since up to 3 percent of the ACL for butterfish may be set aside for scientific research, the Council recommended setting aside 2 percent of the butterfish ACT for research, where 59 mt would be set aside for butterfish discard on longfin squid research trips, and 151 mt would be set aside for directed butterfish landings. RSA projects were not awarded any directed butterfish, but were awarded 36 mt of butterfish to account for discards on longfin squid research trips. After accounting for 36 mt of RSA, the butterfish mortality cap on the longfin squid fishery was revised from 4,500 mt to 4,464 mt (59.05 percent of the ACT of 7,560 mt).

NMFS is implementing butterfish specifications for the 2013 fishing year, consistent with the Council's recommendations, that would set the butterfish ABC/ACL at 8,400 mt, the ACT at 7,560 mt, the DAH and DAP at 2,570 mt, TALFF at zero, and the butterfish mortality cap on the longfin squid fishery at 4,464 mt. Additionally, this action allocates the 2013 butterfish mortality cap by Trimester as follows:

Due to the increase in the recommended butterfish DAH and butterfish mortality cap, a variety of management measures were recommended by the Council to control fishing effort while allowing the expansion of a profitable directed butterfish fishery. The Council recommended, and this action implements, a three-phase management system for the directed butterfish fishery (Table 3) to allow for maximum utilization of the butterfish resource without exceeding the stock-wide ACL.

In phase 1, there is no trip limit for vessels issued longfin squid/butterfish moratorium permits using mesh greater than or equal to 3 inches (7.62 cm), a 2,500-lb (1.13-mt) trip limit for longfin squid/butterfish moratorium permits using mesh less than 3 inches (7.62 cm), and a trip limit of 600 lb (0.27 mt) forvessels issued squid/butterfish incidental catch permits. Once butterfish harvest reaches the trip hold reduction threshold to move from phase 1 to phase 2, the trip limit for longfin squid/butterfish moratorium permit holders will be reduced while in phase 2 to 5,000 lb (2.27 mt) for vessels using greater than or equal to 3-inch (7.62-cm) mesh and 2,500 lb (1.13 mt) for vessels using under 3-inch (7.62-cm) mesh. When butterfish harvest is projected to reach the trip hold reduction thresholds to move from phase 2 to phase 3, the trip limit for all longfin squid/butterfish moratorium permit holders will be reduced while in phase 3 to 500 lb (0.23 mt) to avoid quota overages. For phases 2 and 3, the quota thresholds to reduce the trip limits will vary bimonthly throughout the year, as shown in Tables 4 and 5.

Finally, during phase 3, the NMFS Regional Administrator has the authority to adjust the phase 3 trip limit for limited access vessels within the range from 250 (0.11 mt) to 750 lb (0.34 mt) so that butterfish harvest does not exceed the annual DAH.

The Council also recommended regulatory changes for the longfin squid fishery. Currently, vessels that intend to land greater than 2,500 lb (1.13 mt) of longfin squid are required to notify the Northeast Fisheries Observer Program (NEFOP) at least 72 hr in advance of the start of a trip. Longfin squid vessel owners have reported that the 72-hr call in notification is burdensome, as trips are often planned based on weather, sea conditions, and longfin squid movement patterns, which can be highly variable. Therefore, the Council recommended, and NMFS is changing the longfin pre-trip observer notification requirement from 72 to 48 hr. In addition, to avoid closing the directed longfin fishery close to the end of a trimester, the closure threshold for the directed longfin squid fishery will change on April 15 (2 weeks prior to the end of Trimester 1) and August 15 (2 weeks prior to the end of Trimester 2) of each year from 90 to 95 percent.

To avoid closing the directed longfin squid fishery due to the butterfish mortality cap in the last 2 weeks of Trimester 1, NMFS is changing the closure threshold on April 15 of each year from 80 to 90 percent. In addition, NMFS will close the directed longfin squid fishery in Trimester 2 if 75 percent of the annual mortality cap is projected to be reached. As there is currently no closure mechanism for the butterfish mortality cap in Trimester 2, the entire annual butterfish mortality cap could potentially be harvested in Trimester 2, which would not leave any butterfish mortality cap quota for the Trimester 3 longfin squid fishery. This change is being implemented to avoid the entire allocation of the butterfish mortality cap being harvested prior to the start of Trimester 3 on September 1 of each fishing year.

This final rule also contains minor corrections to existing regulations. The corrections do not change the intent of any regulations; they only clarify the existing regulations by correcting minor errors. The current accountability measure regulations at § 648.24 state that NMFS will implement any changes to the ACL due to overages from the previous year through notification in theFederal Register, by March 31 of the fishing year in which the deductions will be made. However, due to delayed reporting and analysis time to estimate discards in the MSB fisheries, finalized data are not available until April 15 of each year. Therefore, NMFS will publish a notification in theFederal Registerannouncing any overage deductions by May 15 of the fishing year in which the deductions will be made.

This rule also corrects § 648.22(b)(2) regarding the mackerel ABC. This rule clarifies that the MAFMC's SSC recommends a stock-wide ABC, and that the Domestic ABC or ACL is calculated by deducting Canadian catch from the stock-wide ABC. This rule also corrects § 648.27(c) to clarify that the pre-trip notification requirement for vessels issued longfin squid/butterfish moratorium permits is for trips with landings greater than 2,500 lb (1.13 mt). While vessels previously issued longfin squid/butterfish moratorium permits intending to land greater than or equal to 2,500 lb (1.13 mt) were required to call into the pre-trip notification system, this action clarifies that only such vessels intending to land greater than 2,500 lb (1.13 mt) (ex. 2,501 mt) are required to call into the pre-trip notification system. Only those trips with longfin squid landings of 2,501 lb (1.13 mt) and greater will be used to estimate the butterfish mortality cap.

This rule also responds to comments on the 2012 Revised Butterfish Specifications, which were published in an interim final rule on November 9, 2012 (77 FR 67305). The 2013 butterfish specifications implemented in this rule supersede the 2012 Revised Butterfish Specifications implemented in that interim final rule. Therefore, instead of publishing a final rule to address comments received on the interim finalrule, such comments are addressed in this final rule.

NMFS received six comments on the 2013 MSB specifications from: One member of the public; one on behalf of Deep Sea Fish of Rhode Island, Inc. (a freezer/processor in Rhode Island); one on behalf of Seafreeze, Ltd. (a frozen seafood producer based in Rhode Island); one from the Garden State Seafood Association (GSSA) (an industry group representing members of the commercial fishing industry in New Jersey); one from Lund's Fisheries, Inc. (a seafood processing facility in New Jersey), and one from Tokai International, Inc. (an export business that ships seafood to Japan).

Comment 1:Deep Sea Fish of Rhode Island, Inc., Tokai International Inc., and SeaFreeze, Ltd., commented in support of increasing the 2013 butterfish specifications and are in favor of implementing the 2013 MSB specifications on or before January 1, 2013, so that the butterfish fishing industry can take advantage of the early winter Japanese export market when butterfish have the highest fat content. Tokai International, Inc., noted that the fat content of butterfish begins to decrease in February, making butterfish less marketable.

Response:NMFS has published this final rule as soon as possible so that the butterfish fishing industry can take advantage of the increase in quota for the directed fishery. We recognize that the increase in the directed butterfish fishery quota would be less valuable to the butterfish industry if delayed further into the fishing year. Due to concerns about the lost economic opportunity from delaying the effectiveness of this rule for 30 days to comply with the Administrative Procedure Act, there exists good cause to waive the 30-day effectiveness period and implements the 2013 MSB specifications on the date of publication in theFederal Register.

Comment 2:GSSA and Lund's Fisheries, Inc., commented in support of the increased butterfish specifications, the proposed management measures for butterfish and longfin squid, the butterfish mortality cap in the longfin squid fishery, and corrections to the MSB regulations.

Response:NMFS is implementing the proposed butterfish specifications, management measures for butterfish and longfin squid, the butterfish mortality cap, and the corrections to the MSB regulations in this final rule.

Comment 3:GSSA and Lund's Fisheries, Inc., commented in support of the 2013-2015 Atlantic mackerel specifications, but noted some changes to the mackerel specification setting process that should be considered for the future, such as modifying the method to account for Canadian catch, accounting for discards in the recreational fishery allocation, and reconsidering the buffer for management uncertainty in setting the commercial ACT. GSSA and Lund's expressed disappointment 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 suggested that Canadian underages should be added to the U.S. ABC in an in-season adjustment. GSSA and Lund's also commented that a discard rate should have been applied to the recreational allocation.

Response:The addition of a mechanism to increase the U.S. ABC if Canadian catches are smaller than predicted would represent a significant change to the commercial quota system for mackerel. Such an adjustment would need to be considered through the Council process, and could only be implemented through a framework adjustment or an amendment to the FMP, rather than through specifications. The Council would, therefore, have to consider such a mechanism in a future action. In addition, reliable discard estimates for the recreational fishery are not available. Given the past performance of the recreational fishery, and the 10-percent buffer, NMFS believes that the potential for discards was adequately accounted for. The Marine Recreational Information Program (MRIP) estimates three types of recreational catch: Fish brought back to the dock in a form that can be identified by trained interviewers; fish that are used for bait, released dead, or filleted and are identified by individual anglers; and fish that are released alive and are identified by individual anglers. The MRIP estimate of recreational catch in 2011, the most recent year of complete data, was 932 mt. As the MRIP data do include some limited information on recreational discards, the mackerel recreational allocation for 2013-2015 of 2,443 mt is likely sufficient to cover both recreational catch and discards. As NMFS improves recreational data collection, 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 and Lund's also commented that the commercial ACT should have been set equal to the commercial ACL, with zero buffer for management uncertainty (instead of the 15-percent buffer proposed for 2013-2015) considering the mackerel fishery's performance is consistent with the specifications that have been set for the fishery in recent years.

Response:Given recent performance of the fishery, NMFS, consistent with the Council's recommendation, determined that a 15-percent buffer between the commercial ACL and ACT was appropriate to prevent overages of the U.S. ABC, and to provide buffer for uncertainty in Canadian catch estimates. While preliminary information provided to the Council during its decision-making process showed Canadian catch in 2013 may be set at lower levels than 2012, it is unclear whether the decrease in Canadian catch is due to concerns about the status of the mackerel stock or other unknown factors. Therefore, NMFS concurs with the Council that setting Canadian catch and the buffer for management uncertainty at status quo levels (15 percent between the commercial ACL and ACT) is appropriate, due to the general uncertainty associated with the mackerel stock and the final Canadian assessment results. In addition, the buffer for management uncertainty includes consideration of management uncertainty issues for commercial catch estimation, including discard estimation and general imprecision in catch estimation.

Comment 5:A member of the public commented that the butterfish quotas should not be increased, but should be decreased by 75 percent instead.

Response:NMFS does not believe that there is any information to warrant a decrease in the butterfish specifications for 2013. On the contrary, the NEFSC analysis showed that the increasing the butterfish catch to 16,800 mt would not lead to overfishing.

NMFS recently published an interim final rule to revise 2012 butterfish specifications (77 FR 67305; November 9, 2012). The interim final rule raised the 2012 butterfish ABC to 4,200 mt (from 3,622 mt), and specified the butterfish ACT at 3,780 mt, the DAH DAP at 872 mt, and the butterfish mortality cap at 3,165 mt. The rationale for the interim final rule is discussed in the background section of the preamble for that action and is not repeated here.

The rule specified that these revised butterfish quotas would be effective from November 8, 2012, through the remainder of the 2012 fishing year (December 31, 2012), until superseded by 2013 MSB specifications. TypicallyNMFS would publish a rulemaking to finalize the measures put forward in an interim final rule, and use the final rule to respond to any comments on the interim final measures. Because of the timing of a rulemaking to finalize the revised 2012 butterfish specifications and the timing of this final rule to implement 2013 MSB specifications coincide, and because the 2013 MSB specifications would supersede the 2012 measures, NMFS decided to forego the publication of a rulemaking to finalize the revised 2012 butterfish specifications and to instead respond to comments on the revised 2012 butterfish specification in the final rule for 2013 MSB specifications. One individual submitted a comment on the interim final rule, and NMFS addresses the comment below, in two parts.

Comment 1:One individual commented that NMFS raised the ABC on a stock for which the overfished/overfishing status is unknown. The commenter stated that while NMFS previously classified butterfish as overfished with overfishing occurring, the SSC was forced by NMFS to change the determination so that the longfin squid fishery could continue to operate. The commenter stated that the butterfish stock is so depleted that the directed fishery has not attained its quota for the 2012 fishing year. The commenter also stated that the fishery did not catch the directed fishery quota in previous years because bycatch closures closed the directed fishery before the fish were available to fishery participants from southern states that rely on butterfish catch in the fall. Finally, the commenter stated that the longfin squid fishery is wasteful, and is characterized by the excessive catch of undersized fish due to the small mesh size used to prosecute the fishery.

Response:The commenter incorrectly characterizes the current and previous status of the butterfish stock. Until recently, NMFS listed butterfish as overfished (i.e., stock biomass below the overfishing threshold), with overfishing not occurring (i.e., fishing mortality was not occurring at a rate higher than the stock's natural replenishment rate) based on the results of the 38th Stock Assessment Review Workshop (SAW 38; 2004). NMFS, rather than the Council's SSC, officially changed the overfished status for butterfish to “unknown” in mid-2012, after a review of the results of the 49th Stock Assessment Review Workshop (SAW 49; 2010) suggested that the stock status reference points that resulted from SAW 38 (i.e. the overfished status from SAW 38) were inappropriate. The overfishing status for butterfish has not been changed. The change to the stock status determination was entirely separate from any 2012 rulemakings related to either the longfin squid or butterfish fisheries. NMFS did not change the butterfish overfished status from “overfished” to “unknown” to facilitate a longfin squid fishery during the 2012 fishing year.

The commenter does not present support for the statement that butterfish stock depletion has caused the fishery to catch less than the 2012 butterfish quota. To the contrary, recent trawl survey indices indicate that butterfish abundance is stable or increasing. In addition, management controls in recent years have constrained landings. While NMFS has increased the butterfish quota at several points during the 2012 fishing year, possession limits restrict the amount of butterfish that limited access and incidental butterfish permit holders can land on a given trip (up to 5,000 lb per trip for limited access permit holders, depending on mesh size, and up to 650 per trip for incidental permit holders). Further, the directed butterfish fishery quota (DAH) has been maintained at a low level since 2004 in order to limit fishing mortality on the butterfish stock following the “overfished” status determination in SAW 38. The previous low DAH, coupled with possession limits, has prevented the formation of a strong market for butterfish, and more likely explains why the DAH has not been attained in 2012 in spite of quota increases.

Comment 2:The commenter also stated that the directed fishery quota was not attained in previous years because “bycatch closures” closed the directed fishery before the fish were available to southern fishery participants in the fall.

Response:This comment is unclear. If the commenter is referring to closures of the directed butterfish fishery (based on the DAH) in recent years, these closures were the result of directed butterfish landings, not a result of bycatch limits due to butterfish bycatch in other fisheries. If the commenter is referring to the availability of butterfish mortality cap quota for fall participants in the longfin squid fishery, NMFS notes that the butterfish mortality cap was not constraining for fall participants in the longfin squid fishery in either 2011 or 2012, the only 2 years that the cap has been in operation. The Trimester III (September 1-December 31) longfin squid fishery operated without a closure related to butterfish for both years.

Finally, regarding incidental catch in the longfin squid fishery, NMFS notes that fishery management plans for managed species consider incidental catch and discards. This means that annual catch levels are set so that mortality from all sources, including incidental catch and discards in the longfin squid fishery, are accounted for. Thus, while there is incidental catch of other species in the longfin squid fishery, NMFS works to constrain such catch within the context of overall catch levels appropriate for each managed stock.

There are no changes from the proposed rule to the mackerel or butterfish specifications or management measures.

Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this final rule is consistent with the MSB FMP, other provision of the Magnuson-Stevens Act, and other applicable laws.

The Council prepared an EA for the 2013 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).

The Assistant Administrator for Fisheries finds good cause under section 553(d) of the Administrative Procedure Act to waive the 30-day delay in effectiveness for this action for all requirements except for those in 648.27. This action increases the butterfish harvest available to the fishing industry for the 2013 fishing year. The primary butterfish market available to the butterfish fishing industry occurs in late December through mid-February due to the high fat content of the fish after feeding during the early winter. In addition, the current regulations cap the butterfish trip limit at 5,000 lb (2,268 kg) for limited access permit holders, while this final rule implements an unlimited trip limit at the start of the fishing year. This change in the trip limit for the directed butterfish fishery will also allow the butterfish fleet to obtain as much profit early in the year as possible, when the market is available. If the effectiveness of this rule were delayed for 30 days from the date of publication, it would likely be effective after the butterfish market has decreased. Therefore, vessels fishing for butterfish would be unable to obtain theincreased economic opportunity this final rule provides by increasing the butterfish quota. Failure to make this final rule effective immediately will undermine the intent of the rule, which is to promote the utilization and conservation of the Atlantic mackerel, squid, and butterfish resource.

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 2013 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 proposes 2013-2015 specifications for mackerel and 2013 specifications for butterfish, along with management measures for longfin squid and butterfish. 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 or the economic impacts of the rule more generally raised in public comments.

Based on permit data for 2011, 3,405 commercial or charter vessels possessed MSB permits for the 2011 fishing year, and similar numbers of vessels are expected to have MSB permits for 2013. All but a few of these participants can be considered small businesses under the guidelines of the Small Business Administration (SBA). Small businesses operating in commercial and recreational (i.e., party and charter vessel operations) fisheries have been defined by the SBA as firms with gross revenues of up to $4.0 and $7.0 million, respectively. There are no large entities, as that term is defined in section 601 of the RFA, participating in this fishery. 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 rule.

The mackerel commercial DAH (33,821 mt) and recreational ACT/RHL (2,443 mt) implemented in this action represent no change from status quo. Commercial mackerel landings for 2011 were 1,463 mt, and recreational catch was 932 mt, and in both cases, catch was below the allocation. As of the publication of this rule, mackerel catch is estimated to be 5,325 mt and is not likely to increase significantly for the remainder of the year, which means that 2012 catch will also be below the 2012 DAH. Therefore, this action allows the mackerel fleet the opportunity to harvest more than they have in the previous year. Overall, this action is expected to generate revenue very similar to the 2012 revenue for vessels that participate in the commercial mackerel fisheries.

The butterfish DAH implemented in this action (2,570 mt) represents an increase of 1,698 mt over the 2012 DAH (872 mt). Due to market conditions, there has not been a directed butterfish fishery since 2001; therefore, recent landings have been low. The increase in the DAH has the potential to dramatically increase revenue for butterfish permitted vessels because the butterfish fishery has been an incidental catch fishery for several years.

In addition, the three-phased management system implemented for the directed butterfish fishery, which allows an unlimited quota until butterfish harvest reaches a particular threshold, allows vessels to harvest substantially more butterfish during the start of the fishing year, when the market is suspected to be available. The three-phased management system allows the potentially expanded directed butterfish fishery to increase catch without exceeding the ACL and having to pay back overages the following year.

The butterfish mortality cap implemented in this action (4,464 mt) represents a 1,299-mt increase over the current 2012 cap level (3,165 mt). The increase in the butterfish mortality cap is less restrictive on the longfin squid fishery than the previous year. While longfin squid catch will still be restrained by the longfin squid DAH, there is less of likelihood that the longfin squid fishery will be closed due to the butterfish mortality cap. In addition, the management measures for the longfin squid fishery that are being implemented will ensure that the directed longfin squid fishery is not closed during the last 2 weeks of a particular Trimester, therefore causing economic harm to the fishing industry when there is still a small amount of catch available to the fleet. Therefore, the implementation of these actions could result in an increase in revenue for the longfin squid fishery for 2013.

TheIllexand longfin squid IOYs confirmed in this action (22,915 mt and 22,049 mt respectively) represent no change from the status quo. Thus, implementation of this action should not result in a reduction in revenue or a constraint on expansion of the fishery in 2013.

The Council analysis evaluated three alternatives to the specifications for mackerel. The first (status quo) alternative differed from the mackerel specifications implemented, only in that the status quo alternative recommends specifications for 1 year, while the final specifications are being implemented for 3 years (2013-2015). The status quo alternative would have set the stock-wide ABC of 80,000 mt, Canadian catch of 36,219 mt, and a U.S. ABC of 43,781 mt. The second alternative (the least restrictive) would have set the stock-wide ABC at 100,000 mt, maintained Canadian catch at 35,219 mt, and would have set a U.S. ABC at 63,781 mt. This alternative could have generated increased revenue if more mackerel became available to the fishery. The third alternative (the most restrictive) would have set the stock-wide ABC at60,000 mt, maintain Canadian catch at 36,219 mt, and would have set a U.S. ABC at 23,781 mt. This alternative could have generated the lowest revenue of all of the alternatives. These two alternatives were not selected because they were inconsistent with the ABC recommended by the SSC.

There were three alternatives to the butterfish specifications being implemented that were not selected by the Council. The first (status quo) alternative would have kept the butterfish ABC and ACL at 3,622 mt, the ACT at 3,260 mt, the DAH and DAP at 1,087, and the butterfish mortality cap at 2,445 mt. The second alternative (least restrictive) would have set the ABC and ACL at 10,500 mt, the ACT at 9,450 mt, the DAH and DAP at 3,213 mt, and the butterfish mortality cap at 5,625 mt, and would have generated the highest revenues of all of the alternatives. The fourth alternative (most restrictive) would have set the ABC and ACL at 6,300 mt, the ACT at 5,670 mt, the DAH and DAP at 1,928 mt, the butterfish mortality cap at 3,375 mt, and would have generated the lowest revenue of all of the alternatives. These three alternatives were not selected because they were inconsistent with the ABC recommended by the SSC.

The Council recommended the status quo as an alternative to changing management measures for the longfin squid fishery and for the butterfish mortality cap. The status quo alternative would have required vessels possessing 1,000 lb (0.45 mt) or more of butterfish to fish with a 3-inch (76-mm) minimum codend mesh. The status quo alternatives were considered, but not selected, because the measures implemented have the potential to increase economic opportunity for the fishing fleet while still ensuring the ACL for the longfin squid fishery and the butterfish mortality cap are not exceeded. There were also two alternatives to the proposed three-phase management system for the directed butterfish fishery. The first (status quo and most restrictive) would have maintained the 5,000-lb (2.27-mt) trip limit for vessels issued longfin squid/butterfish moratorium permits using over 3-inch (76-mm) mesh, 2,000-lb (0.91-mt) trip limit for vessels issued longfin squid/butterfish moratorium permits using under 3-inch (76-mm) mesh, and the 600-lb (0.27-mt) trip limit for vessels issued squid/butterfish incidental catch permits. Even with the increase in quota, the butterfish fishery may not have been able to harvest an increased amount of butterfish with these restrictive trip limits. Therefore, this alternative would have generated the lowest amount of revenue out of all of the alternatives. The second alternative would have provided a simpler management system for the directed fishery in which the trip limit for vessels issued longfin squid/butterfish moratorium permits would have been 20,000 lb (9.07 mt) for vessels issued longfin squid/butterfish moratorium permits using greater than 3-inch (76-mm) mesh, 2,500 lb (1.13 mt) for vessels using under 3-inch (76-mm) mesh, and 1,000 lb (4.54 mt) for vessels issued squid/butterfish incidental catch permits. If 80 percent of the DAH was projected to be harvested before October 1, the trip limit for all vessels would have been reduced to 250 lb (0.11 mt), and if the DAH was projected to be harvested on or after October 1, the trip limit for all vessels would have been 500 lb (0.23 mt). This alternative would have provided the butterfish fishery the opportunity to increase revenues over the first alternative, but not to the same extent as the alternative implemented in this action. While these alternatives were considered, they were not selected because the alternative being implemented has the potential to increase economic opportunity for vessels participating in the directed butterfish fishery while still ensuring the ACL is not exceeded. The other alternatives would not have been as effective for directed butterfish vessels to re-establish a butterfish market.

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