The FAA has determined that notice of, and opportunity for prior public comment on, these special conditions are impracticable because these procedures would significantly delay issuance of the design approval and thus delivery of the affected aircraft. In addition, the substance of these special conditions has been subject to the public comment process in several prior instances with no substantive comments received. The FAA therefore finds that good cause exists for making these special conditions effective upon issuance.

We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.

We will consider all comments we receive on or before the closing date for comments. We may change these special conditions based on the comments we receive.

On February 9, 2009, Learjet Inc. applied for a type certificate for their new Model LJ-200-1A10 airplane (hereafter referred to as the “Model LJ-200”). The Model LJ-200 is a business class aircraft powered by two high-bypass turbine engines with an estimated maximum takeoff weight of 35,550 pounds and an interior configuration for up to 10 passengers.

The Model LJ-200 includes an automatic takeoff thrust control system (ATTCS) described as an automatic power reserve (APR) system. Learjet has requested approval to use the APR as the performance level in showing compliance with the approach climb requirements of Title 14, Code of Federal Regulations (14 CFR) 25.121(d). Part 25 appendix I limits the application of performance credit for ATTCS to takeoff only. Since the airworthiness regulations do not contain appropriate safety standards for approach climb performance using ATTCS, special conditions are required to ensure a level of safety equivalent to that established in the regulations.

Under the provisions of § 21.17, Learjet Inc. must show that the Model LJ-200 meets the applicable provisions of part 25, as amended by Amendments 25-1 through 25-127 thereto, and part 26, as amended by Amendment 26-1 through 26-2 thereto.

If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Model LJ-200 because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same or similar novel or unusual design feature, the special conditions would also apply to the other model under § 21.101.

In addition to the applicable airworthiness regulations and special conditions, the Model LJ-200 must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36, and the FAA must issue a finding of regulatory adequacy under § 611 of Public Law 92-574, the “Noise Control Act of 1972.”

The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type certification basis under § 21.17(a)(2).

The Model LJ-200 will incorporate the following novel or unusual design features: An automatic takeoff thrust control system (ATTCS) described as an automatic power reserve (APR) system that is available at all times without any additional action from the pilot. This applies during takeoff and go-around flight operations. The aircraft performance data is based on the availability of the uptrim power during takeoff and approach climb. This results in a novel or unusual design feature for which the applicable airworthiness regulations do not contain adequate or appropriate safety standards. Therefore, special conditions are required that provide the level of safety equivalent to that established by the regulations.

Learjet Inc. is proposing to use the APR function of the Model LJ-200 during go-around and is requesting approach climb performance credit for the use of the additional power provided by the APR uptrim. The Model LJ-200 powerplant control system comprises a full authority digital electronic control (FADEC) for the Pratt & Whitney Canada Model PW307B engine. The engine FADEC system includes the APR feature. The configuration provides for APR activation during go-around.

The APR system is available at all times without any additional action from the pilot. This applies during takeoff and go-around flight operations. The aircraft performance data is based on the availability of the uptrim power during takeoff and approach climb.

The part 25 standards for ATTCS, contained in § 25.904 and appendix I to part 25 specifically restrict performance credit for ATTCS to takeoff only. Expanding the scope of the standards to include other phases of flight, including go-around, was considered at the time the standards were issued. However, flightcrew workload issues in the event of an engine failure during a critical point in the approach, landing, or go-around operations precluded further consideration.

The ATTCS incorporated on the Model LJ-200 allows the pilot to use the same power setting procedure during a go-around regardless of whether or not an engine fails. Since the ATTCS is always armed, it will function automatically following an engine failure and advance the remaining engine to the APR power level. This satisfactorily addresses the flightcrew workload issues that were a concern when the ATTCS standards were originally promulgated.

Since the airworthiness regulations do not contain appropriate safety standards to allow approach climb performance credit for ATTCS, special conditions are required to ensure a level of safety equivalent to that established in the regulations. The definition of a critical time interval for the approach climb case, during which time it must be extremely improbable to violate a flight path based on the § 25.121(d) gradient requirement, is of primary importance. In the event of a simultaneous failure of an engine and the APR function, falling below the minimum flight path defined by the 2.5 degree approach, decision height, and climb gradient required by § 25.121(d) must be shown to be an extremely improbable event during this critical time interval. The § 25.121(d) gradient requirement implies a minimum one-engine-inoperative flight path capability with the airplane in the approach configuration. The engine may have been inoperative before initiating the go-around, or it may become inoperative during the go-around. The definition of the critical time interval must consider both possibilities.

For approval to use the power provided by the ATTCS to determine the approach climb performance limitations, the Model LJ-200 must comply with the requirements of § 25.904 and appendix I to part 25, including the following special conditions pertaining to the go-around phase of flight.

As discussed above, these special conditions are applicable to the Model LJ-200-1A10. Should Learjet Inc. apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, these special conditions would apply to that model as well.

This action affects only certain novel or unusual design features on one model of airplanes. It is not a rule of general applicability.

The substance of these special conditions has been subjected to the notice and comment period in several prior instances and has been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the substance contained herein. Therefore, the FAA has determined that prior public notice and comment are unnecessary and impracticable, and good cause exists for adopting these special conditions upon issuance. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above.

The authority citation for these special conditions is as follows:

Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Learjet Model LJ-200-1A10 airplanes.

1.General.An automatic takeoff thrust control system (ATTCS) is defined as the entire automatic system, including all devices, both mechanical and electrical, that sense engine failure, transmit signals, actuate fuel controls or power levers, or increase engine power by other means on operating engines to achieve scheduled thrust or power increases and furnish flight deck information on system operation.

2.ATTCS.The engine power control system that automatically resets the power or thrust on the operating engine (following engine failure during the approach for landing) must comply with the following requirements stated in paragraphs 2a, 2b, and 2c:

a. Performance and System Reliability Requirements. The probability analysis must include consideration of ATTCS failure occurring after the time at which the flightcrew last verifies that theATTCS is in a condition to operate until the beginning of the critical time interval.

b. Thrust or Power Setting.

(1) The initial thrust or power setting on each engine at the beginning of the takeoff roll or go-around may not be less than any of the following:

(i) That required to permit normal operation of all safety-related systems and equipment dependent upon engine thrust or power lever position; or

(ii) That shown to be free of hazardous engine response characteristics and not to result in any unsafe aircraft operating or handling characteristics when thrust or power is increased from the initial takeoff or go-around thrust or power to the maximum approved takeoff thrust or power.

(2) For approval of an ATTCS system for go-around, the thrust or power setting procedure for the operating engine(s) must be the same for go-arounds initiated with all engines operating as for go-arounds initiated with one-engine-inoperative.

c. Powerplant Controls. In addition to the requirements of § 25.1141, no single failure or malfunction, or probable combination thereof, of the ATTCS, including associated systems, may cause the failure of any powerplant function necessary for safety. The ATTCS must be designed to:

(1) Apply thrust or power on the operating engine(s), following any one engine failure during takeoff or go-around, to achieve the maximum approved takeoff thrust or power without exceeding engine operating limits; and

(2) Provide a means to verify to the flightcrew before takeoff and before beginning an approach for landing that the ATTCS is in a condition to operate.

3.Critical Time Interval.(Refer to figure 1 and figure 2 below.) The definition of the critical time interval in part 25 appendix I25.2(b) shall be expanded to include the following:

a. When conducting an approach for landing using ATTCS, the critical time interval is defined as follows:

(1) The critical time interval begins at point A on a 2.5 degree approach glide path. (Point A is the point on that glide path from which, assuming a simultaneous engine and ATTCS failure, the resulting approach climb flight path intersects, at point B, a flight path originating at a later point on the same approach path corresponding to the part 25 one-engine-inoperative approach climb gradient.) The period of time, time interval AB, must be no shorter than the time in figure 2, I25.2(b) time interval FG. Figure 2 is reproduced from appendix I and includes a change that identifies the time interval FG.

(2) The critical time interval ends at point D on a minimum performance, all-engines-operating go-around flight path from which, assuming a simultaneous engine and ATTCS failure, the resulting minimum approach climb flight path intersects the flight path (point E) corresponding to the 14 CFR part 25 minimum one-engine-inoperative approach climb gradient represented in figure 1 as the engine failed, ATTCS operating flight path.

The all-engines-operating go-around flight path and the 14 CFR part 25 one-engine-inoperative approach climb gradient flight path (engine failed, ATTCS operating flight path in figure 1) originate from a common point, point C, on a 2.5 degree approach path. The period of time, time interval DE, from the point of simultaneous engine and ATTCS failure, point D, to the intersection of these flight paths, point E, must be no shorter than the corresponding time in figure 2, I25.2(b) interval FG.

b. The critical time interval must be determined at the altitude resulting in the longest critical time interval for which one-engine-inoperative approach climb performance data are presented in the airplane flight manual.

c. The critical time interval is illustrated in figure 1.

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in theFederal Registeron August 28, 2012 (77 FR 51946). That NPRM proposed to correct an unsafe condition for the specified products. The Mandatory Continuing Airworthiness Information (MCAI) states:

We gave the public the opportunity to participate in developing this AD. We have considered the comment received.

All Nippon Airways (ANA) requested that Bombardier, Inc. Model DHC-8-314 airplanes be added to the applicability of the NPRM (77 FR 51946, August 28, 2012). ANA stated that Bombardier Service Bulletin 8-24-87, dated May 26, 2011, included Model DHC-8-314 airplanes in its effectivity, while Bombardier Service Bulletin 8-24-87, Revision A, dated October 5, 2011, excluded it.

We disagree with ANA's request. Bombardier, Inc. Model DHC-8-314 airplanes are not on the U.S. type certificate data sheet; therefore, no change is necessary. We have not changed this final rule in this regard.

We reviewed the available data, including the comment received, and determined that air safety and the public interest require adopting the AD as proposed.

We estimate that this AD will affect 94 products of U.S. registry. We also estimate that it will take about 9 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of this AD to the U.S. operators to be $71,910, or $765 per product.

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

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

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

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

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

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

3. Will not affect intrastate aviation in Alaska; and

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

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

You may examine the AD docket on the Internet athttp://www.regulations.gov;or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains the NPRM (77 FR 51946, August 28, 2012), the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone (800) 647-5527) is in theADDRESSESsection. Comments will be available in the AD docket shortly after receipt.

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

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in theFederal Registeron November 5, 2012 (77 FR 66409). That NPRM proposed to correct an unsafe condition for the specified products. The MCAI states:

We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM (77 FR 66409, November 5, 2012) or on the determination of the cost to the public.

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

• Are consistent with the intent that was proposed in the NPRM (77 FR 66409, November 5, 2012) for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM (77 FR 66409, November 5, 2012).

We estimate that this AD will affect 25 products of U.S. registry. We also estimate that it would take about 2 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Required parts would cost about $352 per product.

Based on these figures, we estimate the cost of this AD on U.S. operators to be $13,050, or $522 per product.

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

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

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

For the reasons discussed above, I certify this AD:

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

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

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

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

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

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in theFederal Registeron November 7, 2012 (77 FR 66762). That NPRM proposed to correct an unsafe condition for the specified products. The Mandatory Continuing Airworthiness Information (MCAI) states:

We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM (77 FR 66762, November 7, 2012) or on the determination of the cost to the public.

We reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed.

We estimate that this AD will affect 56 products of U.S. registry. We also estimate that it will take about 40 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Required parts will cost about $6,340 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these parts. As we do not control warranty coverage for affected parties, some parties mayincur costs higher than estimated here. Based on these figures, we estimate the cost of this AD to the U.S. operators to be $545,440, or $9,740 per product.

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

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

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

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

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

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

3. Will not affect intrastate aviation in Alaska; and

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

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

You may examine the AD docket on the Internet athttp://www.regulations.gov; or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains the NPRM (77 FR 66762, November 7, 2012), the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone (800) 647-5527) is in theADDRESSESsection. Comments will be available in the AD docket shortly after receipt.

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

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in theFederal Registeron November 5, 2012 (77 FR 66417). That NPRM proposed to correct an unsafe condition for the specified products. The MCAI states:

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

Dudley Clark of Ocean Air Flight Services stated that they found a crack on an airplane at less than 300 hours time-in-service (TIS). He stated we should decrease the initial inspection interval to 200 hours TIS and the continuing checks at 50 hours TIS until compliance is met with the replacement parts.

We do not agree because we have evaluated the compliance time utilized by the State of Design in the EASA AD and determined that it provides the acceptable level of risk to mitigate the unsafe condition. The compliance time in this AD is the same as in the EASA AD. We have also provided the information about this crack to EASA (the State of Design) for their consideration.

We are making no changes to the final rule AD based on this comment.

Dudley Clark of Ocean Air Flight Services stated that the labor time is understated by about half and does not include any time for painting. He recommends we increase the amount of labor required to 6 hours per wing, not including painting.

We do not agree with increasing the labor hours to 6 hours because we verified with the type certificate holder (manufacturer) that the labor rate of 3 hours takes into account service centers' knowledge of the airplane. The cost does not include the cost of painting and does not take into consideration varying circumstances and configurations of certain airplanes that may require additional work-hours to accomplish the actions.

We are making no changes to the final rule AD based on this comment.

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

• Are consistent with the intent that was proposed in the NPRM (77 FR 66417, November 5, 2012) for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM (77 FR 66417, November 5, 2012).

We estimate that this AD will affect 7 products of U.S. registry. We also estimate that it would take about .5 work-hour per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour.

Based on these figures, we estimate the cost of this AD on U.S. operators to be $297.50, or $42.50 per product.

In addition, we estimate that any necessary follow-on actions would take about 3 work-hours and require parts costing $460, for a cost of $715 per product. We have no way of determining the number of products that may need these actions.

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

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

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

For the reasons discussed above, I certify this AD:

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

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

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

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

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

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

On January 4, 2012, the FAA published a final rule entitled,“Flightcrew Member Duty and Rest Requirements” (77 FR 330). In that rule, the FAA created new part 117, which replaces the existing flight, duty, and rest regulations, contained in Subparts Q, R, and S, for part 121 passenger operations. As part of this rulemaking, the FAA also applied the new 14 CFR part 117 to certain 14 CFR part 91 operations, and permitted all-cargo operations operating under 14 CFR part 121 to voluntarily opt into the part 117 flight, duty, and rest regulations.

On April 5, 2012, the FAA published a notice explaining the procedures for submitting clarifying questions concerning these flight, duty, and rest regulations.1 Since then, the FAA received numerous questions concerning the new regulations. This is a response to those questions.

Airlines for America (A4A) asked whether previous interpretations of the part 121 flight, duty, and rest rules are applicable to part 117.

Part 117 creates a new flight, duty, and rest regulatory scheme for part 121 passenger operations. As such, some interpretations of the regulatory scheme that preceded part 117 may have limited or no applicability to the provisions of part 117. The FAA will decide on a case-by-case basis to what extent an existing flight, duty, and rest interpretation applies to part 117.

A4A asked whether carriers can implement more restrictive portions of part 117 before the effective date of the final rule that created part 117.

The flight, duty, and rest rule that created part 117 will become effective on January 4, 2014.2 Until then, passenger operations operating under part 121 must comply with the flight, duty, and rest requirements set out in Subparts Q, R, and S of part 121. If a carrier wishes to voluntarily comply with a provision of part 117 before January 4, 2014, the carrier can do so as long as it also remains compliant with the provisions of Subparts Q, R, and S as applicable.

For example, 14 CFR 121.471(b) and (c) specify the amount of rest that a flight crewmember on a domestic operation must receive in a 24-hour period. However, these subsections do not require that the rest period include an 8-hour sleep opportunity. Conversely, § 117.25(e) and (f)3 will require that a rest period have an 8-hour uninterrupted sleep opportunity when part 117 becomes effective. Thus, a certificate holder operating a domestic operation who wishes to voluntarily ensure that its flight crewmembers have an 8-hour sleep opportunity during a rest period can do so because the sleep opportunity will not violate the provisions of § 121.471(b) and (c).

The FAA emphasizes, however, that, before January 4, 2014, a certificate holder can only comply with those provisions of part 117 that do not contradict the requirements of Subparts Q, R, and S. For example, a certificate holder who wishes to engage in augmentation on domestic flights cannot do so before January 4, 2014, because, even though part 117 permits domestic augmentation, Subpart Q, which governs domestic operations, does not allow domestic augmentation. Likewise, a certificate holder operating supplemental passenger flights who wishes to avoid the compensatory rest requirements of Subpart S cannot rely on part 117 to do so before January 2014 because, even though part 117 largely eliminates compensatory rest, part 117 does not become effective until January 2014.

Air Line Pilots Association, International (ALPA) and an individual commenter asked what amount of rest is necessary between a part 121 passenger flight and a part 91 ferry flight so that the part 91 flight does not have to function under part 117. ALPA asked whether part 91 operations that are not conducted under part 117 count toward the cumulative limits of part 117. Alaska Air asked whether a pilot who is only assigned part 91 flights (and does not have any part 121 assignments) is subject to part 117.

Part 117 applies to all part 91 operations (other than Part 91 Subpart K) that are directed by a part 121 certificate holder “if any segment” is conducted as a part 121 passenger flight.4 Part 117 also applies to all flightcrew members who are participating in a part 91 operation (other than Part 91 Subpart K) on behalf of a part 121 certificate holder “if any flight segment” is conducted as a part 121 passenger flight.5 As an initial matter, we note that a flightcrew member who flies only on part 91 operations is not subject to part 117.6 In addition, because part 117 does not apply to part 91 operations that are not conducted by or on behalf of a part 121 certificate holder, the remainder of this answer discusses part 91 operations that are conducted by or on behalf of a part 121 certificate holder. This answer also assumes that the part 91 operations it discusses are not conducted under Subpart K of part 91.

The definition of flight duty period (FDP) in part 117 specifies that two flight segments are part of the same FDP if a “required intervening rest period” has not been provided between those flight segments.7 A “required intervening rest period” is the rest period that is specified in § 117.25. Pursuant to § 117.25(e), that rest period must be 10 consecutive hours of rest with an 8-hour uninterrupted sleep opportunity. However, depending on the specific nature of an individual flightcrew member's schedule, the other subsections of § 117.25 may require a longer rest period. For example, if a flightcrew member has not been provided 30 consecutive hours of rest in the preceding 168-hour period, the “required intervening rest period” would be 30 consecutive hours pursuant to § 117.25(b).

Applying this discussion to the questions raised above, if a flightcrew member flies a part 121 passenger flight segment and a part 91 ferry flight segment without being provided an intervening rest period that satisfies § 117.25, those flight segments would be part of the same FDP.8 Consequently, just like the part 121 passenger flights, the part 91 ferry flight segment would have to be conducted under the flight, duty, and rest rules of part 117.9 However, if a flightcrew member is provided with the rest period specified in § 117.25 between the part 91 ferry flight segment and the part 121 passenger flight segment, those flight segments would not be part of the same FDP. In that case, the part 91 ferry flight segment would not be subject to the flight, duty, and rest provisions of part 117. For purposes of this analysis, it is irrelevant whether the part 91 ferry flight segment takes place before or after the part 121 passenger flight segment—what matters is whether a rest periodthat satisfies § 117.25 was provided between the two flight segments.

We note, however, that the cumulative limitations set out in § 117.23 include “all flying by flightcrew members on behalf of any certificate holder or 91K Program Manager.”10 Thus, even if a part 91 flight is not operated pursuant to part 117, that flight still counts for purposes of the cumulative limitations of part 117 if it is flown on behalf of a certificate holder or 91K Program Manager.

The Southwest Airlines Pilots Association (SWAPA) asked whether a flightcrew member could deadhead beyond the limits of Table B. SWAPA also asked whether there was a limit to the period of time that a flightcrew could be engaged in deadhead transportation at the conclusion of an FDP.

Pursuant to the definition of FDP in § 117.3, deadhead transportation that is followed by a flight segment without an intervening rest period is part of an FDP and is subject to the FDP limits in Tables B and C. All other deadhead transportation is not part of an FDP and is not subject to any limits under part 117. However, if the deadhead transportation exceeds the limits of Table B, § 117.25(g) requires that the flightcrew member engaging in the deadhead transportation be provided with a compensatory rest period before beginning his/her next FDP.

ALPA asked whether there is a limit to how far a drive can be to still be considered transportation to/from a suitable accommodation.

The definition of deadhead transportation in § 117.3 states that “transportation to or from a suitable accommodation” is not deadhead transportation. “Transportation to or from a suitable accommodation” refers to transportation that is conducted for the purposes of a split-duty or mid-duty rest pursuant to § 117.15 and/or § 117.27. While this type of transportation is not deadhead transportation, it is part of an FDP as split-duty and mid-duty rest take place between flight segments. Accordingly, transportation for split-duty and mid-duty rest would be limited by the pertinent FDP limits.

The FAA emphasizes that transportation provided for a rest period required by § 117.25 would not be considered “transportation to or from a suitable accommodation” for deadhead purposes because there is no requirement in § 117.25 that rest periods must be provided in a suitable accommodation.

A4A asked whether a requirement in the collective bargaining agreement to check a schedule or calendar, or to acknowledge a trip assignment, is considered duty.

Section 117.3 defines duty as “any task that a flightcrew member performs as required by the certificate holder * * *” Thus, if a certificate holder requires that a flightcrew member check a schedule or calendar, or acknowledge a trip assignment, then the flightcrew member's compliance with that requirement would be considered duty. The collective bargaining agreement has no impact on this analysis, as this agreement simply provides the legal basis for the certificate holder to require a flightcrew member to perform certain actions.

SWAPA asked whether there are any limits on duty aside from the FDP limitations.

The flight, duty, and rest notice of proposed rulemaking (NPRM) proposed a set of cumulative duty-period limits. However, in response to comments, the final rule eliminated those limits.11 As such, duty periods that are not part of an FDP are only limited to the extent that they may cause a flightcrew member to be too tired to safely perform his or her assigned duties.

SWAPA asked for clarification about the type of duty that is part of an FDP. SWAPA provided the following three types of duty as examples, and it asked which of these examples would be part of an FDP: (1) duty prior to an FDP; (2) duty after an FDP; and (3) flight training device duty after an FDP.

The definition of FDP in § 117.3 states that “[a] flight duty period includes the duties performed by the flightcrew member on behalf of the certificate holder that occur before a flight segment or between flight segments without a required intervening rest period.” Thus, duty that occurs prior to an FDP is part of that FDP if there is no required intervening rest period between the duty and the flight segments that make up the FDP. Duty that takes place after an FDP, such as flight training device duty, is not part of an FDP, as it does not occur before a flight segment or between flight segments.

Horizon Air (Horizon) and Regional Airline Association (RAA) asked whether the phrase “further aircraft movement” in the FDP definition meant movement for the purpose of flight. These commenters provided the following example. An aircraft is parked following the last flight and passengers deplane. The pilot then repositions the aircraft on the ground to a hangar. The commenters asked whether, in this situation, the FDP ends when the aircraft is first parked and deplaned. Another commenter, Alaska Air, asked whether time spent repositioning a plane from customs to a domestic gate would be part of an FDP.

The definition of FDP in § 117.3 states that an FDP ends “when the aircraft is parked after the last flight and there is no intention for further aircraft movement by the same flightcrew member.” The phrase “further aircraft movement” in the FDP definition does not say that the movement must be for the purpose of flight. Rather, any aircraft movement by the flightcrew member is part of that flightcrew member's FDP. Thus, moving the aircraft between different gates or moving the aircraft to a hangar would be considered “aircraft movement” and it would be part of a flightcrew member's FDP.

Allied Pilots Association (APA) asked whether the 8-hour sleep opportunity required by § 117.25 must take place between the hours of 0100 and 0700.

Subsections (e) and (f) of § 117.25 require that immediately prior to beginning an FDP, a flightcrew member must be provided with a 10-hour rest period that includes an 8-hour uninterrupted sleep opportunity. These subsections do not require that the 8-hour sleep opportunity take place during a specific time of day—they simply require that an 8-hour sleep opportunity be provided at some point during the 10-hour rest period.

A4A asked about the publication date of Advisory Circular (AC) 121-31 Flightcrew Sleeping Quarters and RestFacilities. A4A also asked: (1) What the approval process will be like for rest facilities; and (2) what constitutes “near flat” for purposes of the Class 2 rest facility definition.

The AC that provides guidance for rest facilities has been renamed as AC 117-1, and was published on September 19, 2012. This AC discusses what “near flat” means for purposes of qualifying a rest facility as Class 2. As far as the approval process for rest facilities, the FAA will approve rest facilities through an Operation Specification (OpSpec) that will specify the class(es) of rest facility that are inside a certificate holder's aircraft.

APA asked whether a layover facility could be a suitable accommodation. APA also asked whether a room that has multiple reclining chairs with multiple individuals resting could be a suitable accommodation.

A layover facility could be a suitable accommodation if it meets the definition of suitable accommodation set out in § 117.3. A room that has multiple reclining chairs with multiple individuals resting could also be a suitable accommodation if it meets the suitable accommodation requirements of § 117.3. The FAA emphasizes that the definition of suitable accommodation in § 117.3 does not require that access to a suitable accommodation be limited so that only one person can use it at any given time.

A4A and Alaska Air asked whether flightcrew members could use electronic means, such as Aircraft Communications Addressing and Reporting System (ACARS) and cell phone applications, to certify their fitness for duty.

Subsection 117.5(d) states that “[a]s part of the dispatch or flight release, as applicable, each flightcrew member must affirmatively state he or she is fit for duty prior to commencing flight.” This subsection does not preclude a flightcrew member from making his/her fitness for duty statement through electronic means. However, the preamble to the final rule explains that the fitness for duty statement “must be signed by each flightcrew member.”12 Accordingly, if a flightcrew member chooses to submit his/her fitness for duty statement through electronic means, that flightcrew member would have to electronically sign the statement and the electronic signature would have to comply with the pertinent electronic signature requirements.

Horizon and RAA were concerned with the following scenario. A pilot reports fit for an FDP that includes 6 flight segments. After the fourth flight segment, the pilot notifies the company that he will be too fatigued to fly the sixth flight segment, but will be fit to fly the fifth flight segment. Horizon and RAA asked whether § 117.5(c) allowed the company to permit the pilot to fly the fifth flight segment.

Section 117.5 places a joint responsibility for fitness for duty on the certificate holder and the flightcrew member. The flightcrew member must: (1) Report for an FDP “rested and prepared to perform his/her duties;” (2) sign a statement before beginning a flight segment affirmatively stating that he or she is fit for duty; and (3) immediately notify the certificate holder if he/she is too fatigued to perform the assigned duties. For its part, the certificate holder must: (1) “Provide the flightcrew member with a meaningful rest opportunity that will allow the flightcrew member to get the proper amount of sleep;”13 (2) immediately terminate a flightcrew member's FDP if the flightcrew member does not affirmatively state before beginning a flight segment that he/she is fit to safely perform the assigned duties; and (3) immediately terminate a flightcrew member's FDP if the flightcrew member informs the certificate holder that he/she is too tired to safely perform the assigned duties.

In the example provided by Horizon and RAA, a flightcrew member certifies, pursuant to § 117.5(d), that he is fit to fly the fifth flight segment but will not be fit to fly the sixth flight segment. Because § 117.5 does not require a certificate holder to second-guess a fitness-for-duty certification made by a flightcrew member, the company would not violate § 117.5(c) if it permits the flightcrew member to take off on the fifth flight segment. However, the FAA emphasizes that the flightcrew member in this example would be in violation of § 117.5 if he certifies that he is fit for duty when he is actually too tired to safely perform the assigned duties.

The FAA also cautions certificate holders that, as the preamble to the final rule explains, “there are objective signs that could be used to identify crewmember fatigue.”14 “The FAA has simply chosen not to impose a mandatory regulatory requirement because the signs used to identify fatigue cannot be synthesized into a general objective standard.”15 Thus, § 117.5 should not be read as prohibiting a certificate holder from voluntarily terminating the FDP of a fatigued flightcrew member who does not self-report his/her fatigue. Indeed, the FAA strongly encourages certificate holders to voluntarily terminate the FDPs of flightcrew members who are showing signs of fatigue.

ALPA also asked: (1) Whether a certificate holder could use an FRMS to avoid a large portion of part 117 (e.g. all of Table A); (2) whether FRMS authorization is applied on a route-specific basis; (3) whether route-specific data could be used to justify an FRMS on another route; and (4) whether each certificate holder's FRMS request must be supported by data that is specific to that certificate holder.

Section 117.7 permits a certificate holder to exceed the provisions of part 117 pursuant to a Fatigue Risk Management System (FRMS) “that provides for an equivalent level of safety against fatigue-related accidents or incidents.” The preamble to the final rule clarifies that “a certificate holder may use an FRMS for any of the elements of the flight and duty requirements provided under this rule.”16 Thus, a certificate holder can submit a wide range of FRMS requests ranging from narrow requests concerning a specific route to broad requests that seek to establish alternatives to large portions of part 117. However, because an FRMS request has to be supported by evidence showing an equivalent level of safety if the FRMS is approved, a broad FRMS will likely be more difficult to obtain than a narrow FRMS.

The specific data that could be used to support an FRMS request would depend on the nature of the request and the nature of the certificate holder's operations. While certificate holders are not prohibited from using each other's data for an FRMS request, the FAA plans to evaluate each certificate holder's FRMS request on an individual basis. Because of the differences between certificate holders' specific operations, the FAA expects that each FRMS request will be tailored to therequesting certificate holder's operations, and the FAA will not allow multiple certificate holders to operate under the same FRMS.

ALPA asked whether a certificate holder could implement an FRMS before January 4, 2014.

The final rule that created the FRMS alternative for the flight, duty, and rest requirements in parts 117 and 121 will not become effective until January 4, 2014.17 While certificate holders can immediately begin gathering data that will be used to support an FRMS request, the FAA cannot actually approve an FRMS until the pertinent regulations become effective, which will be January 4, 2014.

Alaska Air pointed out that § 117.9(a) requires that a fatigue education and awareness training program must be approved by the FAA Administrator while § 117.9(c) requires that updates to the program must be accepted by the FAA Administrator. Alaska Air asked whether the fatigue education and awareness training program has to be approved or accepted by the Administrator.

Subsection 117.9(a) states that the initial fatigue education and awareness training program must be approved by the FAA and § 117.9(c)(1) states that updates to this program only need to be accepted by the FAA. The FAA considers a minor change to the program to be an update that does not need to go through the approval process. That is why § 117.9(c) only requires FAA acceptance for these types of changes. Conversely, the initial fatigue education and awareness training program and all non-minor changes to that program must receive FAA approval per § 117.9(a). The FAA emphasizes that a major change to the fatigue education and awareness training program would be considered a new program, and this change would have to be approved by the FAA before it is implemented.

A4A asked whether fatigue education and awareness training pursuant to § 117.9 must begin before January 4, 2014.

The final rule that created part 117 will not become effective until January 4, 2014.18 Accordingly, certificate holders are not required to comply with the fatigue education and training requirements of § 117.9 until January 4, 2014. The FAA notes, however, that a part 121 certificate holder is currently responsible for fulfilling its obligations under its Fatigue Risk Management Plan.

Alaska Air asked about the deadline by which initial fatigue education and awareness training needs to be completed. Alaska Air also asked whether training under § 117.9 is mandated every 12 months or every calendar year.

Subsection 117.9(a) requires that the fatigue education and awareness training program must provide “annual education and awareness training.” The FAA interprets the word “annual” as referring to a 12-calendar-month period. Because the training must be provided on an annual basis, the initial fatigue education and awareness training must be completed within 12 calendar months after the certificate holder's program has been approved by the Administrator.

Alaska Air also asked whether credit would be provided for previously-completed training.

The preamble to the final rule specifies that covered personnel do not need to repeat fatigue education and awareness training “if that training meets the requirements of [§ 117.9].”19

The FAA received a number of questions concerning FDP and flight time extensions. This section answers questions concerning the flight-time extension. Discussion of FDP extensions is set out in another section.

A4A and ALPA asked whether a crew can depart if they show up to the airport and the weather conditions indicate that the flight will exceed flight time limits. SWAPA asked whether an aircraft must return to the gate if, after taxi out but prior to takeoff a flightcrew member is forecast to exceed flight time limits.

Section 117.11 sets out the flight time limitations for augmented and unaugmented flights. Subsection 117.11(b) allows a flightcrew member to exceed these limitations to the extent necessary to safely land the aircraft at the next destination or alternate airport “[i]f unforeseen operational circumstances arise after takeoff that are beyond the certificate holder's control.” The preamble to the final rule explains that this exception was added to prevent diversions because “[i]f unexpected circumstances significantly increase the length of the flight while the aircraft is in the air, the only way for a flightcrew member to comply with the flight-time limits imposed by this rule would be to conduct an emergency landing.”20 However, the preamble emphasizes that “this extension only applies to unexpected circumstances that arise after takeoff,” and “[i]f a flightcrew member becomes aware, before takeoff, that he or she will exceed the applicable flight-time limit, that flightcrew member may not take off, and must return to the gate.”21

Thus, if a flightcrew member finds out before takeoff that the flight segment that he/she is about to fly will cause him/her to exceed the flight time limits, that flightcrew member may not take off. It does not matter if the flightcrew member acquires this knowledge after taxi out because, as the preamble to the final rule explains, until the flightcrew member actually takes off from the airport, that flightcrew member is still able to return to the gate without a diversion. Accordingly, if a flightcrew member finds out after taxi out but before takeoff that the flight segment that he or she is about to fly will cause him/her to exceed the pertinent flight-time limit, that flightcrew member must return to the gate.

SWAPA provided an example of a 4-leg FDP with a 9-hour flight-time limit in which the crew realizes, after Leg 2, that their total flight time will be 9 hours and 5 minutes if they complete the remaining two legs. SWAPA then asked whether the fligthcrew can depart on Leg 3 of this FDP. In response, the FAA notes that if completing Leg 3 of the scheduled FDP will not cause the flightcrew to exceed the 9-hour flight-time limit, then the flightcrew can take off on Leg 3.

SWAPA and ALPA also provided another example. In this example, a flightcrew member exceeds the limits of Table A and lands at an alternate airport due to unforeseen operational circumstances that arose after takeoff and were beyond the certificate holder's control. SWAPA and ALPA asked whether the flightcrew member could,after landing, proceed to a follow-on leg from the alternate airport to the original destination.

As discussed above, a flightcrew member cannot take off on a flight segment if he knows that taking off on that flight segment will cause him to exceed the pertinent flight-time limit. In SWAPA and ALPA's example, a flightcrew member exceeds his flight-time limit while flying to an alternate airport. Thus, the flightcrew member will have already exceeded the pertinent flight-time limit upon landing at the alternate airport. Accordingly, once the flightcrew member lands at the alternate airport, that flightcrew member cannot commence any flight segments under part 117 until he/she receives a legal rest period.

APA provided three scenarios in which an aircraft, prior to takeoff, waits for an hour at a holding spot on a ramp and then takes off. In two of the scenarios, the aircraft: (1) Taxies to the holding spot under its own power, (2) shuts down its engines once it reaches the holding spot; and (3) restarts its engines, finishes taxiing, and takes off once the one-hour wait is over. In the third scenario, the aircraft is towed to the holding spot for the one-hour wait, and once the wait is over, restarts its engines and proceeds to taxi out and takeoff. APA asked whether there was any difference as far as how flight time is calculated for these three scenarios.

Section 1.1 states that flight time “commences when an aircraft moves under its own power for the purposes of flight and ends when the aircraft comes to rest after landing.” The FAA has previously found that “the time spent towing the airplane prior to the moment it first moves under its own power for the purpose of flight is not flight time.”22 However, once the airplane moves under its own power with the intention to eventually take off, that movement is part of flight time even if the airplane shuts down its engines at some point during this process.23 Thus, the FAA concluded that if, before takeoff, an airplane taxies to a de-icing station on its own power, the de-icing procedures are part of flight time even if the airplane's engines are shut down during the de-icing process.24

Applying the above discussion to APA's scenarios, in the first two scenarios an airplane taxies to a holding spot under its own power with the intention of eventually taking off on a flight. In those two scenarios, the time spent taxiing to the holding spot and the time spent at the holding spot would be considered flight time. As the FAA's previous interpretations point out, the fact that the airplane shuts down its engines at the holding spot is irrelevant for flight time purposes, as the airplane has moved under its own power with the intention of eventually taking off. In APA's third scenario, the airplane is towed to the holding spot and does not arrive to that spot on its own power. In that scenario, the time spent towing the airplane and the time that the airplane spends at the holding spot would not be flight time because that time occurs prior to when the aircraft first moves under its own power.

Alaska Air asked whether time spent repositioning a plane from customs to a domestic gate would constitute flight time. For purposes of this question, we will assume that everyone, including the flightcrew, exits the plane at the customs gate in order to go through customs and passport control.

As discussed above, flight time “commences when an aircraft moves under its own power for the purposes of flight and ends when the aircraft comes to rest after landing.”25 An empty plane that is parked at a customs gate has come to a rest. As such, the flight time from the previous flight segment flown by that airplane is no longer running, as the plane has come to a rest after landing. When the airplane is subsequently moved from customs to a domestic gate, that movement would not be for purposes of flight because the purpose of the movement would be to move the plane to another gate. Accordingly, in Alaska Air's scenario, moving an airplane from customs to a domestic gate after a flight would not constitute flight time. However, we note that, as discussed above, this movement would be part of a flightcrew member's FDP.

A number of commenters also asked whether FDP start time of a flightcrew member could be delayed by notifying that flightcrew member of the delay before beginning his/her FDP.

In the preamble to the final flight, duty, and rest rule, the FAA stated that “FDP limits are determined by scheduled reporting time and not by actual reporting time.”26 The scheduled reporting time for an FDP is created once that FDP has been assigned to a flightcrew member. In order to change this scheduled reporting time, the flightcrew member would have to be shifted into either long-call or short-call reserve for the pertinent FDP.

If long-call reserve is used to change the FDP start time, the flightcrew member would have to be provided proper notification of the change to the previously-scheduled FDP. Pursuant to the definition of long-call reserve in § 117.3, a flightcrew member on long-call reserve must be notified of the change to FDP start time before he or she begins the rest period specified in § 117.25. In addition, if the FDP infringes on the window of circadian low (WOCL), § 117.21(d) requires that the flightcrew member receive a 12-hour notice of the change to the FDP start time.

If short-call reserve is used to change the FDP start time, the flightcrew member would have to be placed on short-call reserve at the time that his FDP was originally scheduled to begin. In that scenario, instead of beginning an FDP at the originally-scheduled start time, the flightcrew member would simply begin his reserve availability period (RAP) pursuant to § 117.21. The FAA emphasizes that if an FDP start time is not changed pursuant to the long-call or short-call reserve provisions of § 117.21, then the FDP begins at the time that it was originally scheduled to begin.27

A number of commenters asked whether a diversion on an unaugmented flight counts as a flight segment in Table B that would change a flightcrew member's maximum FDP limit. American Eagle (AE) asked whether cancelling previously-scheduled flight segments after an FDP has begun would affect the applicable FDP limit. Horizon asked whether a flight that is aborted after taxi out but before takeoff counts as a flight segment. Horizon also asked whether, in that situation, the taxi-out time would count as FDP and/or flight time.

The unaugmented FDP limits in Table B are determined using two pieces of information: (1) The time that the FDP is scheduled to begin, and (2) thenumber of flight segments that will be flown during the FDP. Once an FDP begins, the scheduled time of start cannot be changed, as that FDP has already started.28 However, a certificate holder can change the number of flight segments in an FDP after that FDP has started by either assigning the flightcrew members additional flight segments or cancelling previously-scheduled flight segments. A change in the number of flight segments assigned to a flightcrew member would change the pertinent FDP limit in Table B.

Thus, a certificate holder could potentially decrease or increase the applicable FDP limit by assigning additional flight segments or cancelling previously-assigned flight segments. For example, consider a 3-segment unaugmented FDP that begins at 1100. Pursuant to Table B, the FDP limit applicable to this FDP is 13 hours. However, if the certificate holder cancels one of the flight segments after the FDP begins, then the pertinent FDP limit would increase to 14 hours, as that is the limit that applies to a 2-segment unaugmented FDP that starts between 0700 and 1159.

The FAA cautions that changing the number of flight segments may not always change the pertinent FDP limit. For example, a flightcrew member could be assigned to an unaugmented FDP consisting of four flight segments that begins at 0800. The applicable FDP limit for that FDP would be 13 hours. If a certificate holder subsequently cancels one of the four segments, the applicable FDP limit would still be 13 hours because Table B assigns the same FDP limit to three and four-segment FDPs that are scheduled to start between 0700 and 1159.

Turning to diversions, the portion of the final rule preamble that discusses flight segments makes no mention of a diversion counting as a separate flight segment.29 Accordingly, because there was no intent to treat diversions as flight segments, a diversion does not constitute a new flight segment for purposes of part 117. However, we emphasize that, while a diversion may not count as a flight segment, the time spent on diversion would still count for purposes of the FDP and flight time limits. This is because the flight-time limit applies to all time that is spent piloting an aircraft and the FDP limit applies to all time between when a pilot first reports for duty with the intention of flying a plane and when the pilot completes his/her final flight segment.

With regard to cancelled flights, if a flight is cancelled before takeoff, then it does not count as a segment for Table B purposes. This is because a flight segment consists of a takeoff and a landing, and the lack of a takeoff/landing means that there is no flight segment. However, the taxi out time for the cancelled flight segment would still constitute FDP time because the taxi out would have taken place after the flightcrew member reported for duty with the intention of conducting a flight.30 If the aircraft moved under its own power for the taxi out, then the taxi out would also count as flight time because the aircraft would have moved under its own power for purposes of flight.31

A4A asked whether the maximum 14-hour split duty limit could be extended. In response, the FAA notes that § 117.15(f) explicitly states that the combined time of the FDP and the split-duty rest opportunity may not exceed 14 hours. Section § 117.15 does not indicate that there are any exceptions to this 14-hour limit. Thus, if the combined split duty rest opportunity and FDP time of a flightcrew member exceeds 14 hours, then the amount of split duty rest that caused the exceedance would not count as split duty. Instead, this time would simply count as part of the flightcrew member's FDP, and it would be subject to the FDP extensions specified in § 117.19.

An individual commenter asked about a situation in which the actual split duty rest exceeds the scheduled split duty rest. The individual commenter asked whether in that situation it would be the actual or scheduled rest that would be considered split-duty rest under § 117.15.

Subsection 117.15(d) states that the actual split-duty rest opportunity may not be less than the scheduled split-duty rest opportunity. However, § 117.15 does not prohibit actual split-duty rest from exceeding the scheduled split-duty rest. If the actual split-duty rest period exceeds the scheduled rest period, then the actual rest provided to the flightcrew member would be considered split-duty as long as that rest period is within the 14-hour limit specified in § 117.15(f).

Horizon and RAA asked whether the time zone used for § 117.15(a) is determined using base/acclimated or local time.

Subsection 117.15(a) states that the split-duty rest opportunity must be “provided between the hours of 22:00 and 05:00local time.”(emphasis added). Thus, in order to determine compliance with § 117.15(a), the certificate holder must use local time at the location where the split-duty rest is being provided regardless of whether the flightcrew member is acclimated to the theater that encompasses that location.

A4A and ALPA asked whether the three-flight-segment limit on augmented operations can be extended for diversions. ALPA also asked whether this limit could be extended if the diversion is for a fuel stop made necessary by winds or other operational issues.

Subsection 117.17(d) prohibits an augmented FDP from exceeding three flight segments. However, as discussed above, a diversion is not a flight segment. Accordingly, a diversion would not count toward the 3-segment limit that applies to augmented operations.

APA and ALPA asked whether augmentation could be used to increase the limits on an FDP that is already in progress. The FAA will assume that the FDP in question began as an unaugmented FDP.

In the preamble to the final flight, duty, and rest rule, the FAA explained that “if an FDP contains both an augmented and an unaugmented flight, that FDP is subject to the unaugmented FDP-limits set out in Table B and the unaugmented flight-time limits set out in Table A.”32 Accordingly, an unaugmented flightcrew member's FDP limit cannot be increased by augmenting the flightcrew.

ALPA asked whether there is any restriction on the amount of time that each flightcrew member on an augmented flightcrew can spend at thecontrols of the aircraft. Subsection 117.17(c) states that the pilot flying the aircraft during landing must be provided with a two-consecutive-hour in-flight rest opportunity in the second half of his/her FDP. This subsection also states that the pilot performing monitoring duties during landing must be provided with a 90-consecutive-minute in-flight rest opportunity. Apart from these required rest opportunities, there is no restriction as to the amount of time that a pilot can spend at the controls of an aircraft during an operation that meets the pertinent FDP, flight time, and cumulative limits.

ALPA asked a number of questions about how to treat a rest facility that is broken. First, ALPA asked whether an aircraft with a Class 3 rest facility can continue to operate under the Class 3 augmented FDP limits if the designated rest seat is inoperative. Second, ALPA asked whether an aircraft with a Class 2 rest facility with a non-functional privacy curtain would be subject to the Class 2 or Class 3 augmented FDP limits.

In order to qualify as a Class 1, 2, or 3 rest facility, a rest facility must meet the specific definition for the pertinent class of rest facility set out in § 117.3. The definitions of rest facility in § 117.3 presume that a rest facility is fully functional. Thus, if a required part of a rest facility stops functioning, the certificate holder would need to use the minimum-equipment-list (MEL) provisions of § 121.628 in order to prevent a downgrade of that rest facility. If the non-functional part of the rest facility does not meet the pertinent MEL requirements, then that part cannot be used to meet the rest-facility standards set out in § 117.3.

Turning to ALPA's questions, § 117.3 defines a Class 3 rest facility as “a seat in an aircraft cabin or flight deck that reclines at least 40 degrees and provides leg and foot support.” If a seat is inoperative and cannot recline at least 40 degrees, then, if it does not satisfy the MEL provisions of § 121.628, that seat would not meet the requirements for a Class 3 rest facility. Similarly, § 117.3 states that a Class 2 rest facility must, among other things, be “separated from passengers by a minimum of a curtain to provide darkness and some sound mitigation.” If a rest facility does not have a functional privacy curtain (or something similar) then, if it does not satisfy the MEL provisions of § 121.628, that rest facility would not meet the requirements for a Class 2 rest facility. That rest facility may, however, meet the requirements for a Class 3 rest facility.

SWAPA asked whether the final check for a pre-takeoff FDP extension is done prior to takeoff. SWAPA provided an example in which after taxiing but before takeoff a flightcrew member realizes that he/she will exceed the limit of Table B or C by over two hours. SWAPA asked whether the flightcrew member in that example must return to the gate instead of taking off.

ALPA provided a scenario in which an FDP is scheduled near the FDP limit and the destination airport is forecast to be influenced by a typhoon. In that scenario, the certificate holder elects, before takeoff, to operate the flight as originally scheduled while simultaneously planning with a high degree of confidence for a diversion that would exceed the pertinent FDP limit. ALPA asked whether the certificate holder in this situation would be allowed to use the post-takeoff FDP extension.

Section 117.19 provides for two ways to extend a flightcrew member's FDP: (1) A pre-takeoff FDP extension, and (2) a post-takeoff FDP extension. The post-takeoff FDP extension applies to an FDP in which a situation arises after takeoff that would cause a flightcrew member to exceed the pertinent FDP limit. This type of extension is more generous than a pre-takeoff FDP extension because once an airplane is in the air, “the certificate holder and pilot in command have very little discretion concerning FDPs and flight time limits,” as they cannot change the flightcrew while the plane is in the air.33

For situations that are known before takeoff, the more stringent pre-takeoff FDP extensions can be utilized. That is because the certificate holder and pilot in command have more options for dealing with unexpected situations that arise while the plane is still on the ground. Thus, the distinction between pre- and post-takeoff FDP extensions comes from determining whether the flightcrew member and certificate holder had a reasonable expectation before takeoff that the flight segment would be completed within the pertinent FDP limit.

In SWAPA's example a flightcrew member realizes after taxi out but before takeoff that he will exceed the pertinent FDP limit by over two hours. In order for this flightcrew member to extend his FDP, he would need to use the pre-takeoff FDP extension because the plane was not airborne at the time that the flightcrew member realized that he would exceed the pertinent FDP limit. Since the pre-takeoff FDP extension is limited to two hours, the flightcrew member in SWAPA's example would be unable to commence a segment that exceeds his FDP limit by over two hours.

Turning to ALPA's example, the certificate holder has a high degree of confidence, before takeoff, that the destination airport will be hit by a typhoon. As discussed above, in order to utilize the post-takeoff FDP extension, the flightcrew and certificate holder have to have a reasonable expectation, prior to takeoff, that they will complete the flight segment within the pertinent FDP limit. Because the certificate holder in this example has a high degree of confidence that the destination airport will be hit by a typhoon, that certificate holder does not have a reasonable expectation that the flight segment will be completed as scheduled. Accordingly, the certificate holder would need to utilize a pre-takeoff FDP extension in order for the flightcrew in this example to exceed the pertinent FDP limits.

ALPA posed the following scenario. Unforeseen operational circumstances arise after takeoff that require a diversion to an alternate airport without an exceedance of the pertinent FDP limit. Once at the alternate airport, completion of the FDP to the intended destination will require an FDP extension. ALPA asked whether the post-takeoff FDP extension would apply to this scenario. SWAPA posed an alternative scenario in which the flightcrew members' FDP is extended in-flight by over two hours during the diversion to an alternate airport. In this alternate scenario, SWAPA asked whether the flightcrew would have to immediately enter a rest period upon reaching the alternate airport.

As discussed above, a post-takeoff FDP extension can be taken in response to a situation that arises after takeoff. However, under § 117.19(b)(1), the post-takeoff FDP extension only encompasses the time “necessary to safely land the aircraft at the next destination airport or alternate airport, as appropriate.” Thus, the post-takeoff FDP extension terminates once the airplane has landed.

Applying the above discussion to SWAPA's example, a situation arises mid-flight that requires a diversion. The diversion results in a flightcrew member exceeding his FDP limit by over twohours. This exceedance is valid under the post-takeoff FDP extension because that extension permits a flightcrew member to finish the flight during which unexpected circumstances arose. However, the extension terminates once the flight lands at the destination or alternate airport. As such, the flightcrew member in SWAPA's example would have to terminate his FDP once he lands at the alternate airport because at that time he would have exceeded the pertinent FDP limit by over two hours and the post-takeoff FDP extension would cease applying once the plane has landed.

Turning to ALPA's example, a flight is diverted but the diversion does not result in exceedance of the pertinent FDP limit. Because the flightcrew member's FDP does not need to be extended during the diversion, there is no need to utilize the post-takeoff FDP extension. Once the plane lands at the alternate airport, the PIC and certificate holder could utilize the pre-takeoff FDP extension to begin a new flight segment and fly the plane from the alternate airport to the destination airport. However, because the pre-takeoff FDP extension is limited to two hours, the certificate holder would be able to use this extension only if the new flight segment could be completed within the FDP-limit+two-hours timeframe.

ALPA posed another scenario in which a flightcrew member's FDP was extended using a post-takeoff FDP extension. ALPA asked whether the post-takeoff FDP extension would extend the flightcrew member's cumulative limits for the duration of the flight or for the entire cumulative period in which the flight took place.

Under § 117.19(b)(3), a post-takeoff FDP extension allows a flightcrew member to exceed the cumulative FDP limits. However, as discussed above, a post-takeoff FDP extension is limited in that it expires once the airplane lands. Once the flight on which the post-takeoff extension was used has been completed, the flightcrew member would again be bound by the cumulative FDP limitations. Thus, the post-takeoff FDP extension allows a flightcrew member to exceed the cumulative FDP limits only to the extent necessary to complete the flight on which the extension is utilized.

ALPA asked whether the PIC needed to concur if the PIC does not need an FDP extension but another flightcrew member needs an FDP extension in order to finish the assigned schedule. ALPA also asked whether the PIC could concur on the condition that only one hour of the two-hour FDP extension is utilized. A4A asked whether carriers could use existing procedures for acknowledging joint responsibility between pilots and carriers for extensions that exceed 30 minutes.

Under § 117.19(a)(1) the “pilot in command and the certificate holder” must both concur in order to utilize an FDP extension. Thus, § 117.19(a)(1) requires PIC concurrence for all FDP extensions taken pursuant to § 117.19, even if the PIC is not the flightcrew member who is using the extension. If the PIC believes that the flightcrew is too fatigued for a two-hour FDP extension, the PIC could concur to a shorter FDP extension that he/she believes could safely be carried out by the flightcrew. We also note that, pursuant to § 117.5, each flightcrew member would also have to certify that he/she would not be too fatigued to operate the aircraft during the extension.

A record of PIC concurrence can take any reasonable form as long as there is evidence that the PIC concurred with the extension. For example, the PIC could note his/her concurrence with an FDP extension on a flight release or in an ACARS message.

A4A, Alaska Air, and AE posed a scenario in which a flightcrew that has already used their over-30-minute FDP extension discovers, after takeoff, that they will need to again extend more than 30 minutes. The commenters asked whether the flightcrew in this scenario would need to divert in order to comply with the pertinent FDP limits.

Under § 117.19(a)(2) and (b)(2), an FDP extension of greater than 30 minutes can only be taken once before a flightcrew member is provided with 30 hours of rest pursuant to § 117.25(b). Thus, the flightcrew and the certificate holder in the above example would be in violation of part 117 if the flightcrew exceeds the pertinent FDP limits. It is irrelevant that the exceedance in this example was caused by unexpected circumstances because, at the time of the exceedance, the flightcrew members had each already used up their one over-30-minutes FDP extension. Accordingly, once a flightcrew member uses up their FDP extension, the FAA strongly recommends that the certificate holder: (1) adds buffers to that crewmember's schedule to account for possible unexpected events; and (2) provides the crewmember with a 30-hour rest period as soon as possible in order to reset the FDP extension.

APA asked whether the reserve period has to be physically located on airport property in order to be classified as airport/standby reserve. Horizon, Alaska Air, and RAA asked whether the time a pilot spends in airport reserve is considered FDP if that pilot does not pilot a flight during the reserve period.

Section 117.3 defines airport/standby reserve as a “duty period during which a flightcrew member is required by a certificate holderto be at an airportfor a possible assignment.” (emphasis added). In order to “be at an airport,” a flightcrew member would have to be physically located on airport property.

Turning to Horizon, Alaska Air, and RAA's question, § 117.21(b) states that “[f]or airport/standby reserve, all time spent in a reserve status is part of the flightcrew member's flight duty period.” Thus, all time that is spent on airport/standby reserve is part of a flightcrew member's FDP regardless of what happens during the airport/standby reserve.

ALPA and RAA asked at what time does a flightcrew member enter FDP Table B or C in order to determine the FDP + RAP limit. AE asked whether the RAP is associated with each specific crewmember.

The short-call reserve regulations in § 117.21 limit the total number of hours that a flightcrew member on short call reserve may spend in a RAP and an FDP. For an augmented operation, under § 117.21(c)(4), the combined number of hours spent in a RAP and an FDP may not exceed the pertinent FDP limit in Table C plus four hours. For an unaugmented operation, under § 117.21(c)(3), the combined number of hours spent in a RAP and FDP may not exceed the smaller of: (1) Pertinent FDP limit in Table B plus four hours; or (2) 16 hours.34

The RAP and RAP + FDP limits, as well as the other limits in § 117.21, apply to each flightcrew member individually. The pertinent FDP limit for the RAP + FDP regulations in § 117.21 is determined using the time at which the FDP begins. The examples below help illustrate how the RAP + FDP limit works.

For the first example, an acclimated flightcrew member begins a RAP at 0600. That flightcrew member is thenassigned to an unaugmented FDP that begins at 1200 and consists of two flight segments. According to Table B, the FDP limit for a two-segment FDP that begins at 1200 is 13 hours. The applicable 13-hour FDP limit plus 4 hours equals 17 hours. Because this is greater than 16 hours, under § 117.21(c)(3), the pertinent RAP + FDP limit for this unaugmented operation is 16 hours. Given that the flightcrew member in this example began his RAP at 0600, he will have 6 hours of RAP time by the time his FDP will start at 1200. As a result, to stay within the 16-hour RAP + FDP limit, this flightcrew member's FDP cannot exceed 10 hours without an extension, as his RAP will use up 6 hours of the 16-hour RAP + FDP limit.

For the second example, an acclimated flightcrew member begins a RAP at 1100. That flightcrew member is then assigned to an unaugmented FDP consisting of five flight segments that begin at 1500. According to Table B, the FDP limit for a five-segment FDP that begins at 1500 is 11.5 hours. The applicable 11.5-hour FDP limit plus 4 hours equals 15.5 hours. Because this is smaller than 16 hours, under § 117.21(c)(3), the pertinent FDP + RAP limit for this unaugmented operation is 15.5 hours. Since the flightcrew member in this example began his RAP at 1100, he will have 4 hours of RAP time by the time his FDP will start at 1500. Consequently, this flightcrew member can take the full 11.5-hour FDP as the 11.5-hour FDP plus the 4 hours of RAP will not exceed the 15.5-hour RAP + FDP limit.

RAA asked whether § 117.21 allows a RAP to be assigned upon completion of a multi-day trip when the flightcrew member still has not reached the FDP limits specified in Table B. To illustrate its question, RAA provided the following scenario. A reserve pilot is assigned a three-day trip. On Day 3, he begins an FDP at 0700, and flies one flight segment until 1430. Upon completion of the one flight segment, the flightcrew member arrives back on base and the carrier assigns him 3 additional flight segments. RAA stated that the revised schedule would not exceed the pertinent FDP or flight time limitations, and it would also not exceed any cumulative limitations. RAA asked whether this schedule would be permissible under § 117.21.

Subsection 117.25(e) prohibits a flightcrew member from beginning a RAP unless that flightcrew member receives 10 hours of rest with an 8-hour sleep opportunity immediately before the RAP. Thus, a flightcrew member cannot begin a RAP immediately after ending an FDP because that flightcrew member would not have received 10 hours of rest immediately before beginning the RAP.

However, as discussed above, the number of flight segments in an FDP can be changed after an FDP begins. Thus, in RAA's example a certificate holder could utilize a flightcrew member's remaining allowable FDP time by adding three more flight segments to the flightcrew member's FDP. However, the FAA emphasizes that: (1) the addition of flight segments to an FDP will require a recalculation of the pertinent FDP limit in Table B using the updated number of flight segments; and (2) the flightcrew member will have to reaffirm his or her fitness for duty before beginning each flight segment.

APA asked whether a pilot could be released from a RAP early without serving the entire permitted RAP period. APA also asked whether there is a requirement for a pilot in these circumstances to receive a physiological night's rest. RAA provided an example in which a pilot is assigned a RAP of 0700 to 2100. At 0800, the air carrier contacts the pilot and notifies him that his RAP has ended. The carrier then notifies the pilot that he is being given 10 hours of rest, and that he will begin a new RAP at 1800. RAA asks whether the air carrier's actions in this scenario are permissible under part 117.

The regulations in § 117.21 do not prohibit a certificate holder from releasing a flightcrew member from a RAP early. Thus, a flightcrew member completes a RAP once he or she has been released from that RAP by the certificate holder. However, once the flightcrew member is released from a RAP, § 117.25(e) requires that the flightcrew member be provided with 10 hours of rest that include 8 uninterrupted hours of sleep opportunity before the flightcrew member begins a new RAP. Section 117.25 does not require that this rest period be provided during a physiological night. Thus, RAA's example in which a certificate holder terminates a RAP early and then provides the flightcrew member with 10 hours of rest would be permissible under § 117.21 and § 117.25 because the certificate holder in that example would provide a legal rest period between two RAPs.

APA provided a scenario in which a pilot is assigned to a RAP. After 3 hours of being on-call during the RAP, the pilot is contacted to report for an FDP of 10 hours, all of which is in compliance with the pertinent provisions of part 117. APA asked how much of this time would count toward the cumulative FDP limitation of 60 hours in a 168-hour period. APA also asked whether this answer would change if the FDP was assigned during airport reserve instead of short-call reserve.

Short-call reserve consists of: (1) a RAP, and (2) an FDP if the FDP is assigned during the reserve. The RAP is not part of an FDP, and as such, the time spent on an FDP is the only aspect of short-call reserve that is counted toward the cumulative FDP limits. Thus, the 10 hours that the pilot in APA's example spent on an FDP would count toward the cumulative FDP limits while the 3-hours that pilot spent on a RAP would not count toward those limits.

This situation would change if the pilot was to be assigned to airport/standby reserve instead of short-call reserve. Under § 117.21(b), the entire time that is spent in airport/standby reserve is considered to be FDP. Thus, if the pilot in APA's example was to be assigned to airport/standby reserve, the entire 13 hours that he spends on reserve would be counted toward the cumulative FDP limits, as well as the daily FDP limits.

ALPA asked a number of questions about long-call reserve. First, ALPA asked whether, for long-call reserve that operates into the WOCL, the regulations require 12 hours of notice before beginning the FDP or 12 hours of rest. Second, ALPA also asked whether the 12-hour notice is required for an FDP that starts during the WOCL. Third, ALPA asked whether the WOCL is determined using local time or last-acclimated time. Finally, ALPA asked whether this same 12-hour-notice requirement applied to short-call reserve.

For long-call reserve, § 117.21(d) requires that flightcrew members assigned to an FDP “that will begin before and operate into the flightcrew member's window of circadian low * * * must receive a 12 hour notice of report time from the certificate holder.” Because this regulatory text specifies a “notice of report time” and does not set out any rest requirements, § 117.21(d) only requires a 12-hour notice and nota 12-hour rest period for long-call reserve that operates into the WOCL.

In addition, the 12-hour notice requirement is only applicable to FDPs that “begin before and operate into” the WOCL. Thus, this requirement would not apply to an FDP that begins during the WOCL, as that FDP would not begin before the WOCL. The time zone from the flightcrew member's last-acclimated theater is used to determine the WOCL period. This is because part 117 explicitly states when local time is to be used instead of last-acclimated time,35 and § 117.21(d) does not instruct the certificate holder to use local time. Finally, the 12-hour notice requirement does not apply to short-call reserve because the requirements of § 117.21(d) apply only to long-call reserve.

A4A and ALPA asked whether the flight time and FDP cumulative limits were hard limits or whether they could be extended under certain circumstances. ALPA provided the following example. The return segment of a trans-oceanic flight is scheduled within all FDP and flight-time limits. Due to unforeseen circumstances, the flight holds for an extended period and then diverts to an alternate airport. In order to begin a new flight segment from the alternate airport and complete the original schedule, one of the flightcrew members would have to exceed one of the cumulative flight time or FDP limits. ALPA asked whether the flightcrew member would be allowed to exceed the cumulative FDP limitations in this case.

The cumulative FDP and flight time limits of part 117 are set out in § 117.23. While these are generally hard limits, they can be extended in certain circumstances. For example, a post-takeoff FDP extension taken under § 117.19(b)(3) would be permitted to exceed the cumulative limits of § 117.23 and the flight-time limits of § 117.11 while a pre-takeoff FDP extension would not be permitted to exceed those limits.36

In ALPA's example a flightcrew member who is at an alternate airport seeks to begin a new flight segment that would exceed the cumulative FDP limits. Because that flightcrew member knows before takeoff that he will exceed the pertinent limits, he cannot utilize the post-takeoff FDP extension. Since the pre-takeoff FDP extension does not allow a flightcrew member to exceed the cumulative FDP limits, the flightcrew member in ALPA's example would not be allowed to begin a new flight segment from the alternate airport.

APA asked the FAA to define “uninterrupted sleep opportunity.” APA also asked whether the sleep opportunity has to take place at a specific location, such as the flightcrew member's home.

Subsection 117.25(e) requires a certificate holder to provide a flightcrew member with 10 hours of rest that includes an 8-hour uninterrupted sleep opportunity immediately before the flightcrew member begins a reserve or FDP. Subsection 117.25(f) requires the flightcrew member to notify the certificate holder if he or she determines that his/her rest period will not provide an 8-hour uninterrupted sleep opportunity.

A sleep opportunity generally commences once a flightcrew member is at a location where the flightcrew member can reasonably be expected to go to sleep and not have that sleep interrupted. The sleep opportunity does not need to take place at the flightcrew member's home, but it must take place at a location where the flightcrew member can reasonably expect to obtain 8 hours of uninterrupted sleep. In addition, as the FAA pointed out in the preamble to final rule, specific sleep situations “are difficult to capture in a regulatory standard.”37 That is why § 117.25(f) requires the flightcrew member to notify the certificate holder if the flightcrew member determines that he or she cannot get the requisite amount of uninterrupted sleep.

A4A, APA, and AE asked whether an interruption not from the air carrier, such as a hotel fire alarm, would interrupt the 8-hour sleep opportunity. A4A and AE asked whether the flightcrew member is required to inform the carrier if a sleep opportunity has been interrupted.

Subsection 117.25(f) requires a flightcrew member to notify the air carrier if the flightcrew member determines that his/her rest period will not provide 8 hours of uninterrupted sleep. This section provides the flightcrew member with discretion to determine whether his or her sleep has been interrupted. However, if the flightcrew member determines that his/her sleep has been interrupted, then the flightcrew member must notify the air carrier of the interruption. For this determination, it is irrelevant whether the interruption to the flightcrew member's sleep was caused by the air carrier.

Taking the fire alarm example, if the fire alarm sounds for only a few seconds, some flightcrew members may have no problem getting back to sleep, and they may determine that their sleep was not interrupted. Conversely, other flightcrew members may find it difficult to get back to sleep even if their sleep was interrupted for only a short period of time. These flightcrew members may determine that their sleep opportunity was interrupted, at which point they would have to notify the carrier of the interruption.

A4A and ALPA asked whether carriers could require a pilot to check a calendar, text, or email during a rest period. AE asked whether a pilot could check the schedule/calendar voluntarily during a rest period.

During a rest period, a crewmember must be free from all restraint by the certificate holder.38 If a crewmember is required to do something by the certificate holder, then that crewmember is not free from all restraint, and that crewmember is not on a valid rest period. Accordingly, a certificate holder cannot require a flightcrew member to perform any tasks during a rest period, including tasks such as checking the schedule/calendar, checking a text message, or checking an email message.

However, if a flightcrew member performs a task of his/her own volition without being required to perform the task by the certificate holder, then that task is not a restraint imposed by the certificate holder. Thus, it is permissible for a flightcrew member to voluntarily decide to check the schedule/calendar during his or her rest period. We emphasize, however, that a flightcrew member's decision to perform a task during a rest period must be entirely voluntary.

A number of commenters asked whether the required 8-hour sleep opportunity eliminates the one-phone-call rule or places additional restrictions on when the phone call can be made. ALPA asked whether a flightcrew member is required to notify thecertificate holder if the certificate holder's phone call prevents the flightcrew member from receiving an 8-hour sleep opportunity.

The FAA has a “one phone call” policy that “generally allows a certificate holder to initiate one phone call during [a] crewmember's rest period.”39 If the crewmember voluntarily chooses to answer this phone call, then the FAA does not view the call as disruptive and breaking the rest period.40 The sleep-opportunity requirements of § 117.25 do not eliminate this policy. However, the FAA cautions that a flightcrew member may have difficulty getting back to sleep after being woken up by a certificate holder's phone call. In that situation, a flightcrew member may notify the certificate holder, pursuant to § 117.25(f), that his or her sleep opportunity has been interrupted. Thus, a certificate holder runs the risk of interrupting a flightcrew member's sleep opportunity if the certificate holder calls a flightcrew member during the flightcrew member's rest period.

An individual commenter asked whether the point of reference for the 168-hour period specified in § 117.25(b) was the beginning of an FDP or the end of an FDP.

Subsection 117.25(b) originally stated that “[b]efore beginning any reserve or flight duty period a flightcrew member must be given at least 30 consecutive hours free from all duty in any 168 consecutive hour period.” In May 2012, the FAA issued a correction, changing the regulatory text of this subsection to require 30 hours free from all duty “within the past 168 consecutive hour period.”41 The FAA's correction explained that this change was made “to clarify that the `168 consecutive hour period' is the period that precedes the beginning of the flight duty period.”42 Thus, the point of reference for the 168-hour period specified in § 117.25(b) is the beginning of an FDP.

APA asked whether the 30-hour rest period in § 117.25(b) has to be prospectively identified. More specifically, APA asked whether a rest period that is scheduled for less than 30 hours can be extended to 30 hours to satisfy the requirements of § 117.25(b).

A rest period must be prospective in nature, which means that a flightcrew member must be told in advance that he or she will be on a rest period for a specified duration. This is so that a flightcrew member has an opportunity to plan out his or her rest period in order to maximize the sleep opportunities available during that rest period.

In this case § 117.25(b) requires that a flightcrew member be provided with a 30-consecutive-hour rest period in the 168-hour period immediately preceding an FDP. Because a flightcrew member would need to plan ahead in order to maximize the multiple sleep opportunities available during this 30-hour rest period, the flightcrew member must be told before the rest period begins that he/she will be receiving 30 hours of rest in order for that rest to satisfy § 117.25(b). The FAA notes that this approach is consistent with a 1991 interpretation in which the FAA stated that a pertinent rest period had to be identified in advance as a 24-hour rest period in order for that rest period to satisfy a regulation requiring 24 hours of rest.43

A4A and Alaska Air asked whether a rest period that is longer than the regulatory minimum could be terminated early if the resulting rest satisfied the minimum regulatory requirements. ALPA asked whether an air carrier could contact a flightcrew member when the flightcrew member is off duty but not on a rest period to give a flight assignment. If so, ALPA questioned whether the carrier must provide at least 10 hours of rest prior to the flight assignment. ALPA also asked whether a flightcrew member could voluntarily elect to “pick up a trip” from open time if he or she will have the requisite rest prior to the report time for that trip.

As discussed above, the start of a previously-scheduled FDP can only be changed by utilizing the reserve provisions of § 117.21. As such, a certificate holder that wishes to bump up the time of a previously-scheduled FDP would have to provide the flightcrew member with the pertinent long-call-reserve notice of the FDP change. Alternatively, if a certificate holder anticipates that it may need to call in a flightcrew member for an FDP, then that certificate holder should provide the flightcrew member with the required 10-hour rest period and then place the flightcrew member on short-call reserve.

These circumstances change if a flightcrew member decides, on his/her own initiative, to pick up a trip from open time, as the regulations do not prohibit this practice as long as the flightcrew member has received the required rest. However, the FAA cautions flightcrew members that § 117.5(a) requires a flightcrew member to “report for any flight duty period rested and prepared to perform his or her assigned duties.” The preamble to the final rule explains that this provision was added to the regulations to, among other things, “discourage flightcrew-member practices such as picking up extra hours.”44 Thus, while a flightcrew member is free to voluntarily pick up extra flight hours from open time, the flightcrew member may be in violation of § 117.5(a) if this activity results in the flightcrew member becoming unduly fatigued.

Turning to ALPA's other question, if a flightcrew member is not on a rest period, the certificate holder may contact the flightcrew member to schedule a flight assignment.45 However, pursuant to § 117.25(b) and (e), the certificate holder would then need to provide that flightcrew member with the requisite rest period prior to beginning the FDP. The certificate holder would also have to follow the FDP notification requirements of long-call reserve, as this type of contact and FDP assignment would qualify as long-call reserve pursuant to the definition of that term in § 117.3.

A4A and AE asked whether § 117.25(d) requires 60 degrees of travel in one direction and 168 consecutive hours away from the flightcrew member's home base together to trigger the 56 consecutive hours of rest requirement. ALPA asked whether the rest requirement of § 117.25(d) would trigger if a flightcrew member never enters a new theater. ALPA also provided an example in which a flightcrew member flies a series of two 144-hour time-away-from-base trips which are separated by a 10-hour rest period at home base. ALPA asked whether this situation would trigger the 56-hour rest requirement of § 117.25(d).

Subsection 117.25(d) requires that a flightcrew member be given a minimum of 56 consecutive hours of rest upon return to home base if that flightcrewmember has been away from home base for more than 168 consecutive hours as part of an FDP or series of FDPs that required that flightcrew member to travel more than 60 degrees longitude.46 Thus, in order to trigger the 56-hour rest requirement of § 117.25(d), a flightcrew member must satisfy both of the following requirements: (1) The flightcrew member has to be away from home base for over 168 consecutive hours; and (2) the time away from home base must take place during FDP(s) that require the flightcrew member to travel over 60 degrees longitude.

The requirement to travel over 60 degrees longitude refers to travel in a single direction, as a flightcrew member who travels 30 degrees in one direction and then 30 degrees back would wind up in the same place where he started. Because this requirement does not refer to theaters, it is irrelevant whether a flightcrew member changes theaters during his/her FDP(s)—all that matters is whether the flightcrew member has traveled more than 60 degrees longitude in one direction away from home base.

Turning to ALPA's example, in that example, a flightcrew member goes on two trips each of which requires him to spend 144 hours away from home base and has a rest period at home base between the trips. Because each trip does not exceed 168 hours away from home base, each of these trips is insufficient to trigger the rest requirement of § 117.25(d). In addition, it is important to note that a flightcrew member must be away from home base for more than 168 “consecutive” hours in order to trigger the rest requirement in § 117.25(d). Because the two trips in ALPA's example were separated by a rest period at home base, the time away from home for these two trips cannot be combined for § 117.25(d) purposes, as that time away from home was not consecutive. Thus, ALPA's example would not trigger the rest requirements of § 117.25(d), as the flightcrew member in that example would not spend over 168 consecutive hours away from home base. It would, however trigger the 30-hour consecutive-rest requirement of § 117.25(b) once the flightcrew member reached 168 hours.

The National Air Carrier Association (NACA) asked how the compensatory rest for deadheading is calculated if the deadhead has multiple legs with a sleep/rest opportunity between deadhead segments. RAA and AE provided the following scenario. A flightcrew member reports for duty at 0430 and operates a single flight that blocks in at 0800. At 1100 he starts to deadhead to another city to fly the next day and the series of deadhead flights arrives at 1530. RAA and AE asked how much rest this flightcrew member would need. RAA also asked how much rest this flightcrew member would need if this entire assignment had consisted solely of deadhead transportation.

Subsection 117.25(g) states that “[i]f a flightcrew member engaged in deadhead transportation exceeds the applicable flight duty period in Table B of this part, the flightcrew member must be given a rest period equal to the length of the deadhead transportation” but not less than the 10-hour rest period required by § 117.25(e). Because Table B is used to calculate FDPs, the total length of the deadhead is determined in a similar manner as the total length of an FDP. More specifically, flight segments that are not separated by a “required intervening rest period”47 would be considered part of the same deadhead. As discussed above, a “required intervening rest period” refers to a rest period specified by § 117.25. Thus, two deadhead segments that are separated by a five-hour rest period would be considered a single deadhead period because five hours is not a required intervening rest period. Conversely, two deadhead segments separated by 10 hours of rest with an 8-hour sleep opportunity would constitute two separate deadhead periods, as they would be separated by a required intervening rest period.

Turning to RAA and AE's scenario, a flightcrew member reports for a one-segment FDP at 0430 and flies a single flight segment that concludes at 0800. The FAA will assume that this flightcrew member is acclimated. Because the flightcrew member concludes his one flight segment at 0800, his FDP terminates at that time. Then, at 1100, the flightcrew member begins a series of deadhead flights that terminate at 1530. This deadhead assignment consists of 4.5 hours (the time from 1100 to 1530). While RAA and AE have not specified how many flight segments make up this deadhead assignment, the 4.5 hours of this assignment would be well within the bounds of any of the FDP limits in Table B. Because this deadhead assignment has not exceeded the pertinent FDP limits of Table B, § 117.25(g) would not require a compensatory rest period in this case.

If the entire assignment in RAA and AE's scenario consisted of deadhead transportation, then the total amount of deadhead transportation, which would take place from 0430 to 1530, would be 11 hours. This would exceed the pertinent limits of Table B, as the highest FDP limit for an FDP that begins at 0430 is 10 hours. Accordingly, § 117.25(g) would require a compensatory rest period equal to the length of the deadhead transportation before the flightcrew member begins a new FDP. In this case, the length of the compensatory rest period would be 11 hours.

A4A asked whether the consecutive-night-provisions of § 117.27 apply to augmented operations.

Section 117.27 requires that a flightcrew member be provided with a two-hour mid-duty rest break during each consecutive FDP that infringes on the WOCL in order for that flightcrew member to be scheduled for more than three consecutive nighttime FDPs. The preamble to the final rule rejected a commenter's suggestion to exempt augmented operations from this provision.48 The preamble explained this decision by pointing out that augmented operations need the mitigation provided by nighttime mid-duty breaks to the same extent as unaugmented operations.49 Accordingly, the consecutive-night provisions of § 117.27 apply to augmented operations that infringe on the WOCL.

A4A, Jeppesen, and Alaska Air asked whether an FDP that begins during the WOCL infringes on the WOCL for purposes of § 117.27.

As discussed above, § 117.27 prohibits a flightcrew member from accepting and a certificate holder from scheduling five consecutive FDPs “that infringe on the window of circadian low” if the flightcrew member assigned to these FDPs does not receive mid-duty rest periods that are specified in § 117.27. In the preamble to the final rule, the FAA explained that “[t]he consecutive-night limit is intended to apply to FDPs that infringe on the WOCL because operations conducted during the WOCL significantly increase cumulative fatigue.”50 Accordingly, anFDP “infringe[s] on the window of circadian low” for the purposes of § 117.27 if any portion of that FDP takes place during the WOCL.

Thus, an operation that begins during the WOCL would “infringe on the window of circadian low” and be subject to § 117.27 because a portion of that operation would be conducted during the WOCL. An operation that remains entirely free of the WOCL would not “infringe on the window of circadian low” for the purposes of § 117.27 because no portion of that operation would be conducted during the WOCL.

ALPA asked whether the two-hour mid duty rest break must be given on the day a pilot first reports for duty if he or she is scheduled for five days of flight that infringe on the WOCL.

Section 117.27 requires that, in order to exceed three consecutive nighttime FDPs, the two-hour mid-duty rest break be given “during each of the consecutive nighttime duty periods” that infringe on the WOCL. Accordingly, if a pilot is scheduled for five consecutive FDPs that infringe on the WOCL, that pilot must be provided with a two-hour mid-duty break during each of those FDPs. This would include the first FDP in the series that infringes on the WOCL.

SWAPA asked whether a RAP that infringes on the WOCL would trigger the requirements of § 117.27. Horizon and RAA asked whether a pilot can be scheduled for more than 3 consecutive airport reserve periods that infringe on the WOCL.

Section 117.27 only applies to “flight duty periods that infringe on the window of circadian low.” Because a reserve availability period is not a flight duty period, a RAP does not trigger the requirements of § 117.27. However, if a flightcrew member on short-call reserve is assigned an FDP at least a portion of which takes place during the WOCL, that FDP would infringe on the WOCL for purposes of § 117.27.

Turning to airport/standby reserve, § 117.21(a) states that “[f]or airport/standby reserve, all time spent in a reserve status is part of the flightcrew member's flight duty period.” Because time spent in airport/standby reserve is considered to be part of an FDP, consecutive airport reserve periods that infringe on the WOCL would trigger the requirements of § 117.27.

Alaska Air asked whether flight attendants operating under part 117 must comply with the fatigue education and awareness training program provisions of § 117.9. Alaska Air also asked whether these flight attendants must declare their fitness for duty pursuant to the provisions of § 117.5.

If a flight attendant operates under part 117, that flight attendant must comply with the provisions of part 117 that apply to flightcrew members. Flightcrew members are required to declare their fitness for duty pursuant to § 117.5(d) and go through fatigue education and awareness training pursuant to § 117.9. Accordingly, these requirements would also extend to flight attendants operating under part 117.

This rule implements the Debt Collection Improvement Act of 1996 (“DCIA”).1 The DCIA amended the Federal Civil Penalties Inflation Adjustment Act of 1990 (“FCPIAA”)2 to require each federal agency to adopt regulations at least once every four years that adjust for inflation the maximum amount of the civil monetary penalties (“CMPs”) under the statutes administered by the agency.3

A civil monetary penalty (“CMP”) is defined in relevant part as any penalty, fine, or other sanction that: (1) Is for a specific amount, or has a maximum amount, as provided by federal law; and (2) is assessed or enforced by an agency in an administrative proceeding or by a federal court pursuant to federal law.4 This definition covers the monetary penalty provisions contained in the statutes administered by the Commission. In addition, this definition encompasses the civil monetary penalties that may be imposed by the Public Company Accounting Oversight Board (the “PCAOB”) in its disciplinary proceedings pursuant to 15 U.S.C. 7215(c)(4)(D).5

The DCIA requires that the penalties be adjusted by the cost-of-living adjustment set forth in Section 5 of the FCPIAA.6 The cost-of-living adjustment is defined in the FCPIAA as the percentage by which the U.S. Department of Labor's Consumer Price Index for all-urban consumers (“CPI-U”)7 for the month of June for the year preceding the adjustment exceeds the CPI-U for the month of June for the year in which the amount of the penalty was last set or adjusted pursuant to law.8 The statute contains specific rules for rounding each increase based on the size of the penalty.9 Agencies do not have discretion over whether to adjust a maximum CMP, or the method usedto determine the adjustment. Although the DCIA imposes a 10 percent maximum increase for each penalty for the first adjustment pursuant thereto, that limitation does not apply to subsequent adjustments.

The Commission administers four statutes that provide for civil monetary penalties: The Securities Act of 1933; the Securities Exchange Act of 1934; the Investment Company Act of 1940; and the Investment Advisers Act of 1940. In addition, the Sarbanes-Oxley Act of 2002 provides the PCAOB (over which the Commission has jurisdiction) authority to levy civil monetary penalties in its disciplinary proceedings.10 Penalties administered by the Commission were last adjusted by rules effective March 3, 2009.11 The DCIA requires the civil monetary penalties to be adjusted for inflation at least once every four years. The Commission is therefore obligated by statute to increase the maximum amount of each penalty by the appropriate formulated amount.

Accordingly, the Commission is adopting an amendment to 17 CFR part 201 to add § 201.1005 and Table V to Subpart E, increasing the amount of each civil monetary penalty authorized by the Securities Act of 1933, the Securities Exchange Act of 1934, the Investment Company Act of 1940, the Investment Advisers Act of 1940, and certain penalties under the Sarbanes-Oxley Act of 2002.12 The adjustments set forth in the amendment apply to violations occurring after the effective date of the amendment.

To explain the inflation adjustment calculation for CMP amounts that were last adjusted in 2009, we will use the following example. Under the current provisions, the Commission may impose a maximum CMP of $1,425,000 for certain insider trading violations by a controlling person. To determine the new CMP amounts under the amendment, first we determine the appropriate CPI-U for June of the calendar year preceding the year of adjustment. Because we are adjusting CMPs in 2013, we use the CPI-U for June of 2012, which was 229.478. We must also determine the CPI-U for June of the year the CMP was last adjusted for inflation. Because the Commission last adjusted this CMP in 2009, we use the CPI-U for June of 2009, which was 215.693.

Second, we calculate the cost-of-living adjustment or inflation factor. To do this we divide the CPI for June of 2012 (229.478) by the CPI for June of 2009 (215.693). Our result is 1.0639.

Third, we calculate the raw inflation adjustment (the inflation adjustment before rounding). To do this, we multiply the maximum penalty amounts by the inflation factor. In our example, $1,425,000 multiplied by the inflation factor of 1.0639 equals $1,516,058.

Fourth, we round the raw inflation amounts according to the rounding rules in Section 5(a) of the FCPIAA. Since we round only the increase amount, we calculate the increased amount by subtracting the current maximum penalty amounts from the raw maximum inflation adjustments. Accordingly, the increase amount for the maximum penalty in our example is $91,072 (i.e.,$1,516,058 less $1,425,000). Under the rounding rules, if thepenaltyis greater than $200,000, we round theincreaseto the nearest multiple of $25,000. Therefore, the maximum penalty increase in our example is $100,000.

Fifth, we add the rounded increase to the maximum penalty amount last set or adjusted. In our example, $1,425,000 plus $100,000 yields a maximum inflation adjustment penalty amount of $1,525,000.13

Under the Administrative Procedure Act (“APA”), a final rule may be issued without public notice and comment if the agency finds good cause that notice and comment are impractical, unnecessary, or contrary to public interest.14 Because the Commission is required by statute to adjust the civil monetary penalties within its jurisdiction by the cost-of-living adjustment formula set forth in Section 5 of the FCPIAA, the Commission finds that good cause exists to dispense with public notice and comment pursuant to the notice and comment provisions of the APA.15 Specifically, the Commission finds that because the adjustment is mandated by Congress and does not involve the exercise of Commission discretion or any policy judgments, public notice and comment is unnecessary.16

Under the DCIA, agencies must make the required inflation adjustment to civil monetary penalties: (1) According to a very specific formula in the statute; and (2) within four years of the last inflation adjustment. Agencies have no discretion as to the amount of the adjustment and have limited discretion as to the timing of the adjustment, in that agencies are required to make the adjustment at least once every four years. The regulation discussed herein is ministerial, technical, and noncontroversial. Furthermore, because the regulation concerns penalties for conduct that is already illegal under existing law, there is no need for affected parties to have thirty days prior to the effectiveness of the regulation and amendments to adjust their conduct. Accordingly, the Commission believes that there is good cause to make this regulation effective immediately upon publication.17

The Commission is sensitive to the costs and benefits that result from its rules. This regulation merely adjusts civil monetary penalties in accordance with inflation as required by the DCIA, and has no impact on disclosure or compliance costs. The Commission notes that the civil monetary penalties ordered in SEC proceedings in fiscal year 2012 totaled approximately $1,021.0 million. Assuming that the Commission is successful in obtaining civil monetary penalties in fiscal years subsequent to the enactment of the new regulation in similar proportion to that obtained in fiscal year 2012, the inflationary adjustment pursuant to the new regulation would result in a maximum increase in the civil monetary penalties ordered of approximately 6.4%, or $65.3 million. This figure assumes that the Commission would obtain a civil monetary penalty equal to the maximum statutory amount in eachcase, which clearly overstates the effect of the adjustment to the penalties. The Commission further notes that, in many cases in which it has obtained large civil monetary penalties, such penalties were calculated on the basis of the gross pecuniary gain rather than the maximum penalty dollar amount set by statute that will be adjusted by this rule.18 In addition, the Commission notes that this figure includes penalties imposed for insider trading, for which the statutory maximum is stated as an amount not to exceed three times the profit gained or loss avoided as a result of the violation, rather than by reference to a statutory dollar amount that is affected by this regulation.19 Therefore, the Commission does not believe that adjusting civil monetary penalties will significantly affect the amount of penalties it obtains.

The benefit provided by the inflationary adjustment to the maximum civil monetary penalties is that of maintaining the level of deterrence effectuated by the civil monetary penalties, and not allowing such deterrent effect to be diminished by inflation. The costs of implementing this rule should be negligible, because the only change from the current, baseline situation is determining potential penalties using a new maximum dollar amount. Furthermore, Congress, in mandating the inflationary adjustments, has already determined that any possible increase in costs is justified by the overall benefits of such adjustments.

This rule does not contain any collection of information requirements as defined by the Paperwork Reduction Act of 1995 as amended.20

The Commission is adopting these amendments to 17 CFR Part 201, Subpart E pursuant to the directives and authority of the DCIA, Pub. L. No. 104-134, 110 Stat. 1321-373 (1996).

For the reasons set forth in the preamble, part 201, title 17, chapter II of the Code of Federal Regulations is amended as follows:

The value of cultural property is immeasurable. Such items often constitute the very essence of a society and convey important information concerning a people's origin, history, and traditional setting. The importance and popularity of such items regrettably makes them targets of theft, encourages clandestine looting of archaeological sites, and results in their illegal export and import.

The United States shares in the international concern for the need to protect endangered cultural property. The appearance in the United States of stolen or illegally exported artifacts from other countries where there has been pillage has, on occasion, strained our foreign and cultural relations. This situation, combined with the concerns of museum, archaeological, and scholarly communities, was recognized by the President and Congress. It became apparent that it was in the national interest for the United States to join with other countries to control illegal trafficking of such articles in international commerce.

The United States joined international efforts and actively participated in deliberations resulting in the 1970 United Nations Educational, Scientific and Cultural Organization (UNESCO) Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (823 U.N.T.S. 231 (1972)). U.S. acceptance of the 1970 UNESCO Convention was codified into U.S. law as the “Convention on Cultural Property Implementation Act” (Pub. L. 97-446, 19 U.S.C. 2601et seq.) (the Act). This was done to promote U.S. leadership in achieving greater international cooperation towards preserving cultural treasures that are of importance to the nations from where they originate and contribute to greater international understanding of our common heritage.

Since the Act entered into force, import restrictions have been imposed on the archaeological materials of a number of State Parties to the 1970 UNESCO Convention. These restrictions have been imposed as a result of requests for protection received from those nations. More information on import restrictions can be found on the Cultural Property Protection Web site (http://exchanges.state.gov/heritage/culprop.html).

This document announces that import restrictions are now being imposed on certain archaeological material from Belize.

Under 19 U.S.C. 2602(a)(1), the United States must make certain determinations before entering into an agreement to impose import restrictions under 19 U.S.C. 2602(a)(2). On September 19, 2012, the Assistant Secretary for Educational and Cultural Affairs, U.S. Department of State, made the determinations required under the statute with respect to certain archaeological material originating in Belize that are described in the designated list set forth below in this document. These determinations include the following: (1) That the cultural patrimony of Belize is in jeopardy from the pillage of archaeological material originating in Belize from approximately 9000 B.C. up to 250 years old representing the Pre-Columbian era through the Early and Late Colonial Periods (19 U.S.C. 2602(a)(1)(A)); (2) that the Government of Belize has taken measures consistent with the Convention to protect its cultural patrimony (19 U.S.C. 2602(a)(1)(B)); (3) that import restrictions imposed by the United States would be of substantial benefit in deterring a serious situation of pillage, and remedies less drastic are not available (19 U.S.C. 2602(a)(1)(C)); and (4) that the application of import restrictions as set forth in this final rule is consistent with the general interests of the international community in the interchange of cultural property among nations for scientific, cultural, and educational purposes (19 U.S.C. 2602(a)(1)(D)). The Assistant Secretary also found that the material described in the determinations meet the statutory definitions of “archaeological material of the state party” (19 U.S.C. 2601(2)).

On February 27, 2013, the United States and Belize entered into a bilateral agreement pursuant to the provisions of 19 U.S.C. 2602(a)(2). The agreement enables the promulgation of import restrictions on categories of archaeological material representing Belize's cultural heritage that is at least 250 years old, dating from the Pre-Ceramic (from approximately 9000 B.C.), Pre-Classic, Classic, and Post-Classic Periods of the Pre-Columbian era through the Early and Late Colonial Periods. A list of the categories of archaeological material subject to the import restrictions is set forth later in this document.

In accordance with the Agreement, importation of material designated below is subject to the restrictions of 19 U.S.C. 2606 and § 12.104g(a) of the U.S. Customs and Border Protection (CBP) regulations (19 CFR 12.104g(a)) and will be restricted from entry into the United States unless the conditions set forth in 19 U.S.C. 2606 and § 12.104c of the CBP regulations (19 CFR 12.104c) are met. CBP is amending § 12.104g(a) of the CBP regulations (19 CFR 12.104g(a)) to indicate that these import restrictions have been imposed.

The bilateral agreement between the United States and Belize includes, but is not limited to, the categories of objects described in the designated list set forth below. Any dimensions listed are approximations and the import restrictions include complete examples of objects and fragments thereof. These categories of objects are subject to the import restrictions set forth above, in accordance with the above explained applicable law and the regulation amended in this document (19 CFR 12.104(g)(a)).

The archeological material covered under this agreement originated in Belize, from the following periods: Archaic, Pre-Classic, Classic, Post-Classic, and Early and Late Colonial Periods. The import restrictions apply to archeological material, described below, ranging in date from approximately 9000 B.C. to at least 250 years old, including, but not limited to, objects comprised of ceramic, stone, metal, shell, bone, glass, and wood.

I. Ceramic/Terracotta/Fired Clay—Unpainted, monochrome, bichrome, and polychrome. Decorative motifs include human, animal, and hybrid figures; curvilinear and rectilinear abstract designs; mythological and historic scenes; and other motifs. Decorative techniques include: painting, fluting, gouging, incisions, and modeling, among others. Forms vary considerably, and may include lids, tripod feet, or other supplementary decoration.

A.Common Vessels

1.Vases and bottles—(10-50 cm ht).

2.Bowls—(5-25 cm ht).

3.Dishes and plates—(10-50 cm diam).

4.Jars—(10-100 cm ht).

5.Bottles—(5-50 cm ht).

B.Special Forms

1.Figurines—(5-20 cm ht).

2.Whistles, rattles and flutes—(5-20 cm ht).

3.Miniature vessels—(5-10 cm ht).

4.Stamps and seals.

5.Effigy vessels—(15-50 cm ht).

6.Incense burners—(25-50 cm ht).

7.Drums—(10-50 cm ht).

II. Stone—Objects in any type of stone, including jade, greenstone, obsidian, flint, alabaster/calcite, limestone, slate, or other.

A.Tools—forms such as points, blades, scrapers, hoes, grinding stones, eccentrics and, others.

B.Jewelry—forms such as necklaces, earplugs, pendants, beads, and others.

C.Monumental Stone Art—forms such as stelae, round altars, architectural elements, and others.

D.Vessels—forms such as bowls and vases.

E.Figurines—forms such as human, animal, and mythological creatures.

F.Masks—burial masks of variable stone composition.

G.Mirrors—round or rectangular forms composed of pyrite pieces.

III. Metal—Objects in copper, gold, silver, brass, or other. Beaten or cast into shape, often decorated with engraving, inlay, puncturing, or attachments.

IV. Shell—Objects made out of modified shell, often decorated with incisions or inlays.

V. Bone—Objects made out of modified human or animal bone, including tools, such as hooks and punches; jewelry, such as necklaces and pendants; and objects for ritual use.

VI. Glass—Objects made of glass, including utilitarian forms such as bottles, beads, figurines, and others.

VII. Wood—Objects made of wood, including utilitarian forms such as canoes, vessels, tools, and others; and ritual forms, such as crosses, figurines, and others.

This amendment involves a foreign affairs function of the United States and is, therefore, being made without notice or public procedure (5 U.S.C. 553(a)(1)). For the same reason, a delayed effective date is not required under 5 U.S.C. 553(d)(3).

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

Because this rule involves a foreign affairs function of the United States, it is not subject to Executive Order 12866.

This regulation is being issued in accordance with 19 CFR 0.1(a)(1).

For the reasons set forth above, part 12 of Title 19 of the Code of Federal Regulations (19 CFR part 12), is amended as set forth below:

Jefferson Parish has requested a temporary deviation from the operating schedule for the Bascule Span Bridge across the Harvey Canal Route, Intracoastal Waterway, mile 2.8 at New Orleans, Jefferson Parish, Louisiana. The bridge has a vertical clearance of 45 feet above mean high water in the closed-to-navigation position and unlimited in the open-to-navigation position. Vessels requiring a clearance of less than 45 feet may transit beneath the bridge during maintenance operations.

In accordance with 33 CFR 117.451(a), the bridge currently opens on signal for the passage of vessels; except that, from 6:30 a.m. to 8:30 a.m. and from 3:45 p.m. to 5:45 p.m. Monday through Friday except holidays, the draw need not be opened for the passage of vessels. This deviation allows the bridge to remain closed to navigation from 6 a.m. on Monday, March 18, 2013, until 6 a.m. on Monday, March 25, 2013. At all other times, the bridge will open on signal for the passage of vessels in accordance with 33 CFR 117.451(a).

The closure is necessary in order to change out the four drive panels for the motors that operate the bridge. This maintenance is essential for the continued operation of the bridge. Notices will be published in the Eighth Coast Guard District Local Notice to Mariners and will be broadcast via the Coast Guard Broadcast Notice to Mariners System.

Navigation on the waterway consists mainly of tugs with tows with some commercial fishing vessels and recreational craft. Coordination between the Coast Guard and the waterway users determined that there should not be any significant effects on these vessels. The bridge will be unable to open during these repairs; however, an alternate route is available via the GIWW (Algiers Alternate Route).

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

The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because doing so would be impracticable. The MODU KULLUK grounded during severe weather in the vicinity of Sitkalidak Island and response, recovery and salvage efforts began immediately. Following an assessment, it was determined that the MODU KULLUK required towing to Captains Bay, Unalaska for loading aboard a transport ship for further relocation. This new temporary final rule is established to cover the anticipated time necessary for the towing of MODU KULLUK to Captains Bay and the operations necessary to load the vessel onto the transport ship for transit to the vessels repair facility. Notice and comment rulemaking is impracticable because this transport for further repairs was unexpected and requiring notice and comment would create further delay in achieving those repairs and safeguarding the public from the significant amount of vessels and crew required to tow this MODU.

For similar reasons, 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 Registerbecause immediate action is needed to minimize potential danger to the public during the period of time when there will be unusually high vessel traffic during towing operations to Captains Bay, Alaska and the complexities of loading the MODU KULLUK aboard the transport ship.

The MODU KULLUK unexpectedly grounded during severe weather in the vicinity of Sitkalidak Island, Alaska, precipitating a salvage and recovery operation. The MODU KULLUK was towed to Kiliuda Bay for damage assessments. The Coast Guard believes a safety zone is needed based on the significant number of persons, vessels and activities necessary to tow and load the MODU KULLUK, a non-self-propelled vessel. The tow operations are expected to involve a large number of vessels, including tow vessels, and pollution response vessels. The tow and loading operation is anticipated to take up to 30 days.

A temporary safety zone is needed to ensure vessels engaged in the towing operation are able to maneuver unimpeded in the vicinity of the MODU KULLUK and to keep other mariners a safe distance from tow cables, vessels and other activities involved in the towing operations from Kiliuda Bay, AK to Captains Bay, AK and the loading of the MODU KULLUK onto the transport ship M/V XIANG RUI KOU that will take place within the navigable waters of Captains Bay, AK.

Previously, a temporary final rule (USCG-2011-0668) was issued on January 2, 2013, creating a safety zone one nautical mile around the MODU KULLUK. A second temporary final rule (USCG-2012-1088) was issued on January 6, 2013, creating a safety zone around the MODU KULLUK while it was towed and anchored for assessment and repairs in Kiliuda Bay.

For the reasons stated above, the Coast Guard is establishing a safety zone in the navigable waters, from surface to seabed, within a 1000 meter radius of the MODU KULLUK while it being towed to and anchored in Captains Bay, AK and while it is being loaded onto the M/V XIANG RUI KOU from February 20, 2013 through April 30, 2013. If the salvage and recovery operations are completed, and the safety zone is determined to be no longer necessary, enforcement of the zone will end prior to April 30, 2013.

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

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

The proposed rule is not a significant regulatory action due to the minimal impact this will have on standard vessel operations within the vicinity of transit route from Kiliuda Bay, AK to Captains Bay, AK during the winter months and it will be enforced for a short duration. The proposed safety zone is designed to allow vessels transiting through the area to safely travel around the MODU KULLUK during towing operations and loading area without incurring additional cost or delay.

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 term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule would not have a significant economic impact on a substantial number of small entities. This rule would affect the following entities, some of which might be small entities: The owners or operators of vessels intending to transit through or anchor in the transit route from Kiliuda Bay, AK to Captains Bay, AK or within Captains Bay, AK in the vicinity of the MODU KULLUK from February 20, 2013, to April 30, 2013.

This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: This rule will be effective for a short period of time, enforcement will end once the towing and loading operations are completed, and the zone is limited to the waters within 1000 meter radius of the MODU KULLUK while it is towed to or at anchor within Captains Bay.

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 employeeswho 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 the collection of new 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 INTFORMATION 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 affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

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

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and will 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 concluded this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This rule involves establishing regulations for a safety zone. This rule is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. An environmental 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 is amending 33 CFR part 165 as follows:

On January 9, 2013, we published a notice of proposed rulemaking (NPRM) entitled “Safety Zone, Change to Enforcement Period, Patapsco River, Northwest and Inner Harbors; Baltimore, MD” in theFederal Register(78 FR 1795). We received no comments on the proposed rule. No public meeting was requested, and none was held.

Historic Ships in Baltimore is planning to conduct its “turn-around” ceremony involving the sloop-of-war USS CONSTELLATION in Baltimore, Maryland on the Thursday before Memorial Day (observed). Planned events include a three-hour, round-trip tow of the USS CONSTELLATION in the Port of Baltimore, consisting of an onboard salute with navy pattern cannon while the historic vessel is positioned off the Fort McHenry National Monument and Historic Site. Beginning at 3 p.m., the historic Sloop-of-War USS CONSTELLATION will be towed “dead ship,” which means that the vessel will be underway without the benefit of mechanical or sail propulsion. The return dead ship tow of the USS CONSTELLATION to its berth in the Inner Harbor is expected to occur immediately upon execution of a tug-assisted “turn-around” of the USS CONSTELLATION on the Patapsco River near Fort McHenry. The Coast Guard anticipates a large recreational boating fleet during this event, scheduled on a late Thursday afternoon before the Memorial Day Holiday weekend in Baltimore, Maryland. Operators should expect significant vessel congestion along the planned route. In the event of inclement weather, the “turn-around” will be rescheduled for the Thursday following Memorial Day (observed).

To address safety concerns during the event, the Captain of the Port Baltimore is changing the enforcement period of a safety zone regulation for the annual movement of the historic sloop-of-war USS CONSTELLATION, conducted upon certain waters of the Patapsco River, Northwest Harbor and Inner Harbor. The change to the enforcement period of the safety zone will help the Coast Guard provide a clear transit route for the participating vessels, and provide a safety buffer around the participating vessels while they are in transit. This rule is needed to ensure safety on the waterway in the Port of Baltimore before, during and after the scheduled event.

The Coast Guard received no comments in response to the NPRM. No public meeting was requested and none was held.

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

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of 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 safety zone restricts vessel traffic through the affected area, the effect of this regulation will not be significant due to the limited size and duration that the regulated area will be in effect. In addition, notifications will be made to the maritime community via marine information broadcasts so mariners may adjust their plans accordingly.

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 term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard received no comments from the Small Business Administration on this rule. 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 would affect the following entities, some of which might be small entities: the owners or operators of vessels intending to operate or transit through or within the safety zone during the enforcement period. Before the effective period, maritime advisories will be widely available to the maritime community.

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 establishing a safety zone. This rule is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated underADDRESSES.

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

Entities potentially affected by this action are those involved with the production, distribution, and sale of transportation fuels, including gasoline and diesel fuel or renewable fuels such as ethanol and biodiesel. Regulated categories and entities affected by this action include:

This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. This table lists the types of entities that EPA is now aware could be potentially regulated by this action. Other types of entities not listed in the table could also be regulated. To determine whether your entity is regulated by this action, you should carefully examine the applicability criteria of Part 80, subparts D, E and F of title 40 of the Code of Federal Regulations. If you have any question regarding applicability of this action to a particular entity, consult the person in the precedingFOR FURTHER INFORMATION CONTACTsection above.

In this rulemaking, EPA is taking final action to identify additional fuelpathways that we have determined meet the greenhouse gas (GHG) reduction requirements under the Renewable Fuel Standard (RFS) program. This final rule describes EPA's evaluation of biofuels produced from camelina (Camelina sativa) oil, which qualify as biomass-based diesel or advanced biofuel, as well as biofuels from energy cane which qualify as cellulosic biofuel. This final rule also qualifies renewable gasoline and renewable gasoline blendstock made from certain qualifying feedstocks as cellulosic biofuel. Finally, this rule clarifies the definition of renewable diesel to explicitly include jet fuel.

EPA is taking this action as a result of changes to the RFS program in Clean Air Act (“CAA”) Section 211(o) required by the Energy Independence and Security Act of 2007 (“EISA”). This rulemaking modifies the RFS regulations published at 40 CFR § 80.1400et seq.The RFS program regulations specify the types of renewable fuels eligible to participate in the RFS program and the procedures by which renewable fuel producers and importers may generate Renewable Identification Numbers (“RINs”) for the qualifying renewable fuels they produce through approved fuel pathways. See 75 FR 14670 (March 26, 2010); 75 FR 26026 (May 10, 2010); 75 FR 37733 (June 30, 2010); 75 FR 59622 (September 28, 2010); 75 FR 76790 (December 9, 2010); 75 FR 79964 (December 21, 2010); 77 FR 1320 (January 9, 2012); and 77 FR 74592 (December 17, 2012).

By qualifying these new fuel pathways, this rule provides opportunities to increase the volume of advanced, low-GHG renewable fuels—such as cellulosic biofuels—under the RFS program. EPA's comprehensive analyses show significant lifecycle GHG emission reductions from these fuel types, as compared to the baseline gasoline or diesel fuel that they replace.

This final rule describes EPA's evaluation of:

Camelina (Camelina sativa) oil(new feedstock)

• Biodiesel, and renewable diesel, (including jet fuel, and heating oil)—qualifying to generate biomass-based diesel and advanced biofuel RINs

• Naphtha and liquefied petroleum gas (LPG)—qualifying to generate advanced biofuel RINs

Energy cane cellulosic biomass (new feedstock)

• Ethanol, renewable diesel (including renewable jet fuel and heating oil), and renewable gasoline blendstock—qualifying to generate cellulosic biofuel RINs

Renewable gasoline and renewable gasoline blendstock (new fuel types)

• Produced from crop residue, slash, pre-commercial thinnings, tree residue, annual cover crops, and cellulosic components of separated yard waste, separated food waste, and separated municipal solid waste (MSW)

• Using the following processes—all utilizing natural gas, biogas, and/or biomass as the only process energy sources—qualifying to generate cellulosic biofuel RINs:

○ Thermochemical pyrolysis

○ Thermochemical gasification

○ Biochemical direct fermentation

○ Biochemical fermentation with catalytic upgrading

○ Any other process that uses biogas and/or biomass as the only process energy sources

This final rule adds these pathways to Table 1 to § 80.1426. This final rule allows producers or importers of fuel produced under these pathways to generate RINs in accordance with the RFS regulations, providing that the fuel meets other definitional criteria for renewable fuel. The inclusion of these pathways creates additional opportunity and flexibility for regulated parties to comply with the requirements of EISA. Substantial investment has been made to commercialize these new feedstocks, and the cellulosic biofuel industry in the United States continues to make significant advances in its progress towards large scale commercial production. Approval of these new feedstocks will help further the Congressional intent to expand the volumes of cellulosic and advanced biofuels.

We are also finalizing two changes to Table 1 to 80.1426 that were proposed on July 1, 2011(76 FR 38844). The first change adds ID letters to pathways to facilitate references to specific pathways. The second change adds “rapeseed” to the existing pathway for renewable fuel made from canola oil.

This rule was originally published in theFederal Registerat 77 FR 462, January 5, 2012 as a direct final rule, with a parallel publication of a proposed rule. A limited number of relevant adverse comments were received, and EPA published a withdrawal notice of the direct final rule on March 5, 2012 (77 FR 13009). A second comment period was not issued, since the simultaneous publication of the proposed rule provided an adequate notice and comment process. EPA is finalizing several of the proposed actions in this final rule, but continues to consider determinations on biofuels produced from giant reed (Arundo donax) or napier grass (Pennisetum purpureum) or biodiesel produced from esterification. EPA will make a final decision on theses elements of the proposal at a later time.

In this action, EPA is issuing a final rule to identify in the RFS regulations additional renewable fuel production pathways that we have determined meet the greenhouse gas (GHG) reduction requirements of the RFS program. There are three critical components of a renewable fuel pathway: (1) Fuel type, (2) feedstock, and (3) production process. Each specific combination of the three components, or fuel pathway, is assigned a D code which is used to designate the type of biofuel and its compliance category under the RFS program. This final rule describes EPA's lifecycle GHG evaluation of camelina oil and energy cane.

Determining whether a fuel pathway satisfies the CAA's lifecycle GHG reduction thresholds for renewable fuels requires a comprehensive evaluation of the lifecycle GHG emissions of the renewable fuel as compared to the lifecycle GHG emissions of the baseline gasoline or diesel fuel that it replaces. As mandated by CAA section 211(o), the GHG emissions assessments must evaluate the aggregate quantity of GHG emissions (including direct emissions and significant indirect emissions such as significant emissions from land use changes) related to the full fuel lifecycle, including all stages of fuel and feedstock production, distribution, and use by the ultimate consumer.

In examining the full lifecycle GHG impacts of renewable fuels for the RFS program, EPA considers the following:

• Feedstock production—based on agricultural sector models that include direct and indirect impacts of feedstock production.

• Fuel production—including process energy requirements, impacts of any raw materials used in the process, and benefits from co-products produced.

• Fuel and feedstock distribution—including impacts of transporting feedstock from production to use, and transport of the final fuel to the consumer.

• Use of the fuel—including combustion emissions from use of the fuel in a vehicle.

Many of the pathways evaluated in this rulemaking rely on a comparison to the lifecycle GHG analysis work that was done as part of the Renewable FuelStandard Program Final Rule, published March 26, 2010 (75 FR 14670) (March 2010 RFS). The evaluations here rely on comparisons to the existing analyses presented in the March 2010 final rule. EPA plans to periodically review and revise the methodology and assumptions associated with calculating the GHG emissions from all renewable fuel pathways.

The following sections describe EPA's evaluation of camelina (Camelina sativa) as a biofuel feedstock under the RFS program. As discussed previously, this analysis relies on a comparison to the lifecycle GHG analysis work that was done as part of the Renewable Fuel Standard Program (RFS) Final Rule, published March 26, 2010 for soybean oil biofuels.

Camelina sativa(camelina) is an oilseed crop within the flowering plant family Brassicaceae that is native to Northern Europe and Central Asia. Camelina's suitability to northern climates and low moisture requirements allows it to be grown in areas that are unsuitable for other major oilseed crops such as soybeans, sunflower, and canola/rapeseed. Camelina also requires the use of little to no tillage.1 Compared to many other oilseeds, camelina has a relatively short growing season (less than 100 days), and can be grown either as a spring annual or in the winter in milder climates.2 3 Camelina can also be used to break the continuous planting cycle of certain grains, effectively reducing the disease, insect, and weed pressure in fields planted with such grains (like wheat) in the following year.4

Although camelina has been cultivated in Europe in the past for use as food, medicine, and as a source for lamp oil, commercial production using modern agricultural techniques has been limited.5 In addition to being used as a renewable fuel feedstock, small quantities of camelina (less than 5% of total U.S. camelina production) are currently used as a dietary supplement and in the cosmetics industry. Approximately 95% of current US production of camelina has been used for testing purposes to evaluate its use as a feedstock to produce primarily jet fuel.6 The FDA has not approved camelina for food uses, although it has approved the inclusion of certain quantities of camelina meal in commercial feed.7

In response to the proposed rule, EPA received comments highlighting the concern that by approving certain new feedstock types under the RFS program, EPA would be encouraging their introduction or expanded planting without considering their potential impact as invasive species.8 The degree of concern expressed by the commenters depended somewhat on the feedstock. As pointed out by the commenters, camelina and energy cane are not “native species,” defined as “a species that, other than as a result of an introduction, historically occurred or currently occurs in that ecosystem.” The commenters asserted that there is a “potential risk posed by the non-native species camelina and energy cane.” In contrast, comments stated that giant reed (Arundo donax) or napier grass (Pennisetum purpureum) have been identified as invasive species in certain parts of the country. These commenters asserted that the Arundo donax and napier grass pose a “clear risk of invasion.” Commenters stated that EPA should not approve the proposed feedstocks until EPA has conducted an invasive species analysis, as required under Executive Order (EO) 13112.9

The information before us does not raise significant concerns about the threat of invasiveness and related GHG emissions for camelina. For example, camelina is not listed on the Federal Noxious Weed List,10 nor is it listed on any state invasive species or noxious weed list. We believe that the production of camelina is unlikely to spread beyond the intended borders in which it is grown, which is consistent with the assumption in EPA's lifecycle analysis that significant expenditures of energy or other sources of GHGs will not be required to remediate the spread of this feedstock from the specific locations where it is grown as a renewable fuel feedstock for the RFS program. Therefore, we are finalizing the camelina pathway in this rule based on our lifecycle analysis discussed below.11

Camelina is currently being grown on approximately 50,000 acres of land in the U.S., primarily in Montana, eastern Washington, and the Dakotas.12 USDA does not systematically collect camelina production information; therefore data on historical acreage is limited. However, available information indicates that camelina has been grown on trial plots in 12 U.S. states.13

In response to the proposed rule, two commenters were supportive of the use of renewable feedstocks such as camelina oil to produce biofuels for aviation. One commenter noted that aviation is unique in its complete dependency upon liquid fuel—today and into the foreseeable future. Another commenter noted that development of additional feedstocks and production pathways should increase supply and ultimately move us closer to the day when renewable jet fuels are price-competitive with legacy fossil fuels and help cut our dependence on foreign oil. EPA also received comment regarding a concern that EPA did not adequately establish that camelina would only be grown on fallow land and therefore would not have a land use impact and that EPA overestimated the likely yields in growing camelina and therefore underestimated the land requirements.

In terms of the comment on camelina not being grown on fallow land, for the purposes of analyzing the lifecycle GHG emissions of camelina, EPA has considered the likely production pattern for camelina grown for biofuel production. Given the information currently available, camelina isexpected to be primarily planted in the U.S. as a rotation crop on acres that would otherwise remain fallow.14 Because camelina has not yet been established as a commercial crop with significant monetary value, farmers are unlikely to dedicate acres for camelina production that could otherwise be used to produce other cash crops. Since camelina would therefore not be expected to displace another crop but rather maximize the value of the land through planting camelina in rotation, EPA does not believe new acres would need to be brought into agricultural use to increase camelina production. In addition, camelina currently has only limited high-value niche markets for uses other than renewable fuels. Unlike commercial crops that are tracked by USDA, camelina does not have a well-established, internationally traded market that would be significantly affected by an increase in the use of camelina to produce biofuels. For these reasons, which are described in more detail below, EPA has determined that production of camelina-based biofuels is not expected to result in significant GHG emissions related to direct land use change since it is expected to be grown on fallow land. Furthermore, due to the limited non-biofuel uses for camelina, production of camelina-based biofuels is not expected to have a significant impact on other agricultural crop production or commodity markets (either camelina or other crop markets) and consequently would not result in significant GHG emissions related to indirect land use change. To the extent camelina-based biofuel production decreases the demand for alternative biofuels, some with higher GHG emissions, this biofuel could have some beneficial GHG impact. However, it is uncertain which mix of biofuel sources the market will demand so this potential GHG impact cannot be quantified.

Commenters stated that EPA failed to justify why camelina would be grown on fallow land and thus result in no land use change. In the proposed rule, EPA provided a detailed description of the economics indicating why producers are most likely to grow camelina on land that would otherwise remain fallow. This analysis formed the basis for why it was reasonable and logical for camelina to be grown on acres that would otherwise remain fallow. Comments also indicated that EPA's economic basis for assuming camelina would most likely be grown on fallow land was inadequate, especially if production of camelina was scaled up. However, the comment did not indicate any specific point of error in our economically based analysis. As we described in the proposed rule and discuss below, camelina is currently not a commercially raised crop in the United States, therefore the returns on camelina are expected to be low compared to wheat and other crops with established, commercially traded markets.15 Therefore, EPA expects that initial production of camelina for biofuel production will be on land with the lowest opportunity cost. Based on this logic, EPA believes camelina will be grown as a rotation crop, as discussed below, on dryland wheat acres replacing a period that the land would otherwise be left fallow.

In the semi-arid regions of the Northern Great Plains, dryland wheat farmers currently leave acres fallow once every three to four years to allow additional moisture and nutrients to accumulate (see Figure 1). Recent research indicates that introducing cool season oilseed crops such as camelina can provide benefits by reducing soil erosion, increasing soil organic matter, and disrupting pest cycles. Although long-term data on the effects of replacing wheat/fallow growing patterns with wheat/oilseed rotations is limited, there is some data that growing oilseeds in drier semi-arid regions year after year can lead to reduced wheat yields.16 However, the diversification and intensification of wheat-fallow cropping systems can improve the long term economic productivity of wheat acres by increasing soil nitrogen and soil organic carbon pools.17 In addition, selective breeding is expected to reduce the potential negative impacts on wheat yields.18 Additional research in this area is needed and if significant negative impacts on crop rotations are determined from camelina grown on fallow acres EPA would take that into account in future analysis.

As pointed out by commenters, in the future camelina production could expand beyond what is currently assumed in this analysis. However, camelina would most likely not be able to compete with other uses of land untilit becomes a commercial crop with a well-established market value. EPA once again reiterates that we will continue to monitor the growing patterns associated with camelina to determine whether actual production is consistent with the assumptions used in this analysis. Monitoring will be done by tracking the amount of RIN generating camelina fuel produced through the EPA Moderated Transaction System (EMTS). We can compare the amount of RIN generating fuel against expected volumes from fallow acres in conjunction with USDA. Consistent with EPA's approach to all RFS feedstock pathway analyses, we will periodically reevaluate whether our assessment of GHG impacts will need to be updated in the future based on the potential for significant changes in our analyses.

USDA estimates that there are approximately 60 million acres of wheat in the U.S.19 USDA and wheat state cooperative extension reports through 2008 indicate that 83% of US wheat production is under non-irrigated, dryland conditions. Of the approximately 50 million non-irrigated acres, at least 45% are estimated to follow a wheat/fallow rotation. Thus, approximately 22 million acres are potentially suitable for camelina production. However, according to industry projections, only about 9 million of these wheat/fallow acres have the appropriate climate, soil profile, and market access for camelina production.20 Therefore, our analysis uses the estimate that only 9 million wheat/fallow acres are available for camelina production.

One commenter stated that EPA assumed more than 8 million acres would be used to produce camelina, even though a recent paper stated that only 5 million acres would have the potential to grow camelina in a sustainable manner in a way that would not impact the food supply. This commenter misinterpreted EPA's assumptions. EPA's assessment is based on a three year rotation cycle in which only one third of the 9 million available acres would be fallow in any given year. In other words, EPA assumed only 3 million acres would be planted with camelina in any given year. This number is less than the 5 million acres the Shonnard et. al. paper states would be available annually for camelina planting.

Based on these projections of land availability, EPA estimates that at current yields (approximately 800 pounds per acre), approximately 100 million gallons (MG) of camelina-based renewable fuels could be produced with camelina grown in rotation with existing crop acres without having direct land use change impacts. Also, since camelina will likely be grown on fallow land and thus not displace any other crop and since camelina currently does not have other significant markets, expanding production and use of camelina for biofuel purposes is not likely to have other agricultural market impacts and therefore, would not result in any significant indirect land use impacts.21 Yields of camelina are expected to approach the yields of similar oilseed crops over the next few years, as experience with growing camelina improves cultivation practices and the application of existing technologies are more widely adopted.22 Yields of 1650 pounds per acre have been achieved on test plots, and are in line with expected yields of other oilseeds such as canola/rapeseed. Assuming average US yields of 1650 pounds per acre,23 approximately 200 MG of camelina-based renewable fuels could be produced on existing wheat/fallow acres. Finally, if investment in new seed technology allows yields to increase to levels assumed by Shonnard et al (3000 pounds per acre), approximately 400 MG of camelina-based renewable fuels could be produced on existing acres.24 Depending on future crop yields, we project that roughly 100 MG to 400 MG of camelina-based biofuels could be produced on currently fallow land with no impacts on land use.25

We also received comments that we overestimated long term camelina yields. The commentors stated that reaching yields of 3000 pounds per acre may be attainable, but previous trials do not suggest that yields could reach this level in ten years. As a point of clarification, we did not assume that yields would need to be 3000 pounds per acre for biodiesel produced from camelina oil to qualify as an advanced biofuel. In the analysis presented below, EPA assumed yields of camelina would be 1650 pounds per acre. Since the use of camelina as a biofuel feedstock in the U.S. is in its infancy, it is reasonable to consider how yields will change over time. Furthermore, jet fuel contracts and the BCAP programs play a very important part in determining the amount of camelina planted, and therefore interest in increasing yields. As the commenter noted, this yield assumption is within the range of potential yields of 330-2400 pounds per acre found in the current literature.

Although wheat can in some cases be grown in rotation with other crops such as lentils, flax, peas, garbanzo, and millet, cost and benefit analysis indicate that camelina is most likely to be planted on soil with lower moisture and nutrients where other rotation crops are not viable.26 Because expected returns on camelina are relatively uncertain, farmers are not expected to grow camelina on land that would otherwise be used to grow cash crops with well established prices and markets. Instead, farmers are most likely to grow camelina on land that would otherwise be left fallow for a season. The opportunity cost of growing camelina on this type of land is much lower. As previously discussed, this type of land represents the 9 million acres currently being targeted for camelina production. Current returns on camelina are relatively low ($13.24 per acre), given average yields of approximately 800 pounds per acre and the current contract price of $0.145 per pound.27 See Table 1. For comparison purposes, the USDA projections for wheat returns are between $133-$159 per acre between 2010 and 2020.28 Over time, advancements in seed technology, improvements in planting and harvesting techniques, and higher input usage could significantly increase future camelina yields and returns.

In 1985, to further its accident investigation program, FRA began conducting alcohol and drug tests on railroad employees who had been involved in serious train accidents that met its specified criteria for post-accident testing (see49 CFR 219.201). Since the program's inception, FRA has routinely conducted post-accident tests for alcohol and for certain drugs classified by the Drug Enforcement Administration (DEA) as controlled substances because of their potential for abuse or addiction.Seethe Controlled Substances Act (CSA), Title II of the Comprehensive Drug Abuse Prevention Substances Act of 1970 (CSA, 21 U.S.C. 801 et seq.). As noted in the NPRM, FRA has historically conducted post-accident tests for alcohol and marijuana, cocaine, phencyclidine (PCP), and certain opiates, amphetamines, barbiturates, and benzodiazepines. The purpose of these tests is to determine if alcohol misuse or drug abuse played a role in the occurrence or severity of an accident.

On May 17, 2012, FRA proposed to add routine post-accident tests for certain non-controlled substances with potentially impairing side effects (77 FR 29307). As discussed in the NPRM, studies have shown a significant increase in the daily use of prescription drugs, OTC drugs, vitamins, and herbaland dietary supplements by both railroad workers and the general population. Although most prescription drugs and all OTC drugs are non-controlled substances, many commonly used ones, such as antihistamines and muscle relaxants (e.g., tramadol), carry warning labels against driving or moving heavy machinery because of their potential sedating effects. Furthermore, even prescription and OTC drugs that do not carry such warnings can have unintended side effects when taken in combination with other drugs, when not used in accordance with directions, or when a user has an unusual reaction.

In the NPRM, FRA discussed testing for two non-controlled substances: (1) Tramadol, which is available only by prescription, and (2) sedating antihistamines, which are available at both prescription and OTC dosages. FRA asked for comment on how the agency should handle test results for these first non-controlled substances to be tested for routinely in its post-accident testing program. In the NPRM, FRA proposed to continue its research testing related to sedating antihistamines and keep the test results confidential and not report to the relevant railroad or employee any sedating antihistamine post-accident test results. In the NPRM, FRA noted that although tramadol is a non-controlled substance, it is a prescription-only semi-synthetic opioid that can cause dizziness, and sought comment on how it should handle tramadol post-accident test results. FRA specifically requested comment as to whether the agency should release post-accident test results for tramadol as it does for other opioids that are controlled substances.

The NPRM also contained two announcements. To make its post-accident testing requirements and procedures easier to understand, FRA announced that its standard post-accident testing box would include new information and an updated and simplified form and instructions. FRA also announced that it was amending Appendix B to 49 CFR part 219 to designate Quest Diagnostics in Tucker, Georgia as its post-accident testing laboratory.

FRA received seven comments on the NPRM. FRA received comments from the Association of American Railroads (AAR), the American College of Occupational and Environmental Medicine (ACOEM), and a joint submission from the American Train Dispatchers Association, the Brotherhood of Locomotive Engineers and Trainmen, the Brotherhood of Maintenance of Way Employes Division, the Brotherhood of Railroad Signalmen, and the United Transportation Union (collectively referred to as “Rail Labor”); with the Transportation Trades Division, AFL-CIO filing a comment in support. FRA also received individual comments from three health care professionals (HCPs). FRA addresses the common issues raised by the commentators below instead of addressing each comment separately.

Comment was divided on FRA's proposal to add routine post-accident tests for non-controlled substances such as tramadol and sedating antihistamines. Rail Labor representatives, who were uniformly opposed, asserted that conducting post-accident tests for legal drugs would discourage railroad employees from using necessary prescription and OTC drugs, and that the resulting risks from untreated medical conditions could outweigh the possible adverse effects from the medications used to treat them. Rail Labor representatives also stressed the privacy interests employees have in their medical information and expressed concerns that the release of positive test results for sedating antihistamines could cause an employee to suffer discipline or dismissal for the use of a legal substance. The AAR supported FRA's proposal, and the ACOEM was strongly in favor of post-accident testing for non-controlled substances as a necessary first step in increasing employee and employer awareness of the risks of unintended drug interactions from polypharmacy (the use of multiple prescription and OTC drugs). The HCPs who submitted comments had varied views. One HCP supported the addition of sedating antihistamines, but not tramadol, because the HCP considered it to be a “mild opioid.” Another HCP supported the addition of both substances because of their tendency to induce drowsiness, but added that FRA needed to address the issue of fatigue among railroad workers. A third HCP, noting that any substance, including water, can be problematic if taken incorrectly or in too large amounts, questioned how FRA had selected tramadol and the four sedating antihistamines mentioned in the NPRM for post-accident testing.

Some commentators questioned whether FRA had proven that post-accident testing for non-controlled substances was necessary. Rail Labor pointed out that the independent studies FRA cited in the NPRM (Slone Epidemiology Center at Boston University, Patterns of Medications Use in the United States (2006), and National Community Pharmacists Association, Take as Directed: A Prescription Not Followed (2006)) concerned the prevalence of prescription and OTC drug use among the population in general, and not railroad workers in particular. An HCP also expressed the view that FRA had not shown that medication use was prevalent in the rail industry.

FRA notes that commenters provided no evidence that the use of prescription and OTC drugs by the railroad employee population is different than that of the general population studied inSloneandNational Community.In 2006, FRA published a study that it had commissioned from Foster-Miller, Inc. (GERTLER, J., HARTENBAUM, N., MD, VIALE, A., WITTELS, E., MD, S. ELLIS, ESQ. (2005) MEDICAL STANDARDS FOR RAILROAD WORKERS), which found over 60 percent of U.S. railroad workers to be males between 45-64 years of age. That same year,Slonefound that 30 percent of men between 45-64 years old self-reported using five or more prescription and OTC drugs in a week, while the corresponding figure for men between 18-44 years old was only eight percent.Sloneconcluded that the nearly one third of older men who use at least five drugs a week are at greater risk for unintended drug interactions.

Moreover, FRA's own research studies provided anecdotal evidence of multiple drug use among railroad employees. As discussed in the NPRM, from April 2002 to April 2009, FRA asked railroad employees who had been involved in reportable (seeFRA's accident reporting regulations at 49 CFR part 225) human-factor accidents to complete surveys on their recent prescription and OTC drug use. In eighty percent of the 294 railroad accidents at least partially attributed to human error during this period, one or more of the employees involved reported using at least one generic or brand name drug, and many employees reporting the use of multiple substances, including not only prescription and OTC drugs, but also herbal remedies and dietary supplements. FRA believes the actual use of prescription and OTC drugs by railroad employees is likely higher than that indicated in these self-reports, since some survey respondents may have omitted or forgotten drugs that they had used.

Rail Labor representatives commented that FRA had no data linking the use of tramadol or sedating antihistamines to an increased risk of rail accidents,whether due to an adverse side effect of the drug or an employee's failure to comply with HCP or manufacturer directions. This is correct. As FRA noted in the NPRM, FRA proposes to conduct post-accident testing for tramadol and sedating antihistamines for research purposes only to obtain such data and to determine whether their use presents a safety issue in the railroad industry. While the addition of any drug to FRA's post-accident testing panel indicates that the drug is of safety concern to FRA, FRA's purpose in adding routine post-accident tests for non-controlled substances is to obtain data, not to deter the use of legal drugs by railroad employees. FRA would not be fulfilling its accident investigation mission if it did not research the impact of legal drugs on the occurrence or severity of significant rail accidents, including the potential risks of using drugs with known adverse effects and the potential risks of using multiple prescription and OTC drugs which may cause unintended drug interactions.

One HCP cited several studies on the sedating effects of various antihistamines and asked how FRA decided to select diphenhydramine, chlorpheniramine, bromenphiramine, and doxylamine for post-accident testing. To clarify, FRA listed these drugs simply as examples, and not as an exhaustive list, of the sedating antihistamines that would be added to FRA's drug panel. As stated in the NPRM, the sedating antihistamines category “includes,but is not limited to,diphenhydramine, chlorpheniramine, bromenphiramine, and doxylamine” (77 FR at 29308, emphasis added). As explained below, the purpose of FRA post-accident testing is to obtain data on thepotentialcauses of major railroad accidents. FRA's ability to do so would be hampered if it could only post-accident test for four of the drugs in the sedating antihistamine class.

FRA is selecting tramadol and sedating antihistamines, both of which can cause drowsiness, as the initial non-controlled substances to be added to its standard post-accident testing panel. The widely used painkiller tramadol is a synthetic opioid similar to other synthetic opioids such as the controlled substances oxycodone and methadone. The use of sedating antihistamines, which is even more common, has been studied by the National Highway Traffic Safety Administration (NHTSA), which expressed concerns that “first generation antihistamines produce objective signs of skills performance impairment as well as subjective symptoms of sedation.”SeeMOSKOWITZ AND WILKINSON, ANTIHISTAMINE AND DRIVING-RELATED BEHAVIOR: A REVIEW OF THE EVIDENCE FOR IMPAIRMENT (2004). As explained in the NPRM, the addition of tramadol and sedating antihistamines to FRA's standard post-accident drug panel does not limit FRA's ability to conduct post-accident tests for other non-controlled substances, whether to investigate an individual accident or to conduct additional research.

As noted above, in the NPRM, FRA asked for comment on how it should handle post-accident test results for non-controlled substances such as sedating antihistamines and tramadol. Comment was divided on the issue of whether FRA should report tramadol post-accident test results. Rail Labor representatives and one HCP objected to the release of results for tramadol, on the grounds that it is a mild opioid that is not a controlled substance. Conversely, the AAR argued that as the primary guardians of rail safety, railroads had a need to know both tramadol and sedating antihistamines results to be able to address any concerns that could affect safe operations. With the exception of the AAR, all commentators supported FRA's proposal to continue the practice of not reporting post-accident test results for sedating antihistamines.

After reviewing the comments, FRA has decided to maintain its proposal to treat post-accident test results for non-controlled substances (including sedating antihistamines and tramadol) confidential. To this end, FRA is revising the regulatory text of § 219.211(b) as proposed in the NPRM to limit the reporting of post-accident testing results to results for controlled substances only. An employee's use of a non-controlled substance is legal and generally subject to few restrictions, and FRA is not convinced at this time that a railroad has a safety need to know whether an employee is using a non-controlled substance while subject to performing covered service. Thus, FRA will not report non-controlled substance post-accident test results to the railroads. FRA will report a post-accident test result for a non-controlled substance to an employer or a third party only if an employee has provided specific written consent for release of his or her test result to the employer or third party. (As has been its standard practice, FRA may also provide post-accident test results and post-mortem specimens to the National Transportation Safety Board upon request.See§ 219.211(f) and (h).) Except for these limited circumstances, all post-accident test results for non-controlled substances will be kept confidential. FRA will, however, continue to monitor its post-accident test results and other data to see if changes in policy or additional action are needed.

Several comments concerned both the addition of non-controlled substances to post-accident tests and FRA post-accident testing in general. An HCP commented that since the purpose of post-accident testing is to prevent accidents, FRA would better address non-controlled substance use by expanding the scope of its prohibitions instead of its post-accident testing program. Rail Labor representatives commented that FRA post-accident testing was exempt from DOT testing procedures (seeProcedures for Transportation Workplace Drug and Alcohol Testing Programs (49 CFR part 40)) only by “dint of history,” and that the proposed addition of non-controlled substances would make FRA's post-accident testing panel inconsistent with the drug panels used by other DOT programs. To address these comments, some of which reflect misperceptions of the nature and history of the program, FRA is providing an overview of the program's fundamentals.

While the purpose of other DOT agency workplace testing programs is to detect or deter drug abuse, the purpose of FRA post-accident testing is not to prevent, but to investigate the causes of significant railroad accidents and incidents; this is why the FRA's post-accident testing program has always tested for more controlled substances (e.g., barbiturates and benzodiazepines) than do other DOT agency testing programs. Furthermore, an examination of the history of FRA post-accident testing reveals that the program's exemption from part 40 coverage was deliberate. FRA pioneered transportation workplace testing (seeFinal Rule implementing FRA reasonable suspicion and post-accident testing, 50 FR 31508, August 2, 1985), and the Supreme Court upheld the Constitutionality of both programs inSkinnerv.RLEA,489 U.S. 602, 109 S. Ct. 1402 (1989). Congress took notice of this Court decision two years later when it enacted the Omnibus Transportation Employee Testing Act of 1991 (“Omnibus Act,” Pub. L 102-143, Oct. 28, 1991), by specifically exempting FRA post-accident testing from the Act, which required DOT and six of its operating administrations to implementtransportation workplace testing programs in accordance with standards set by the Department of Health and Human Services (HHS). DOT in turn exempted FRA post-accident testing from its part 40 procedures (see§ 40.1(c)), which implemented the Omnibus Act's mandates and govern all other types of FRA and DOT testing.

Although FRA encourages railroad employees to seek drugs with fewer potential side effects, FRA does not believe the addition of non-controlled substances to post-accident tests will discourage employees from seeking necessary treatment. As stated above, FRA will not report post-accident test results for non-controlled substances except with the permission of the employee. Moreover, the average employee will finish his or her railroad career without ever being required to provide post-accident test specimens. The number of post-accident tests conducted annually is only a fraction of the total number of FRA drug and alcohol tests conducted each year, because post-accident tests are conducted only on employees involved in rail accidents or incidents that meet FRA's criteria for a “qualifying event” (seethe four types of qualifying events described in § 219.201). In 2011, for example, there were only 87 qualifying events in which a total of 195 railroad employees were post-accident tested. This means that 195 post-accident drug tests and 195 post-accident alcohol tests were administered in 2011, while during that same year a total of 34,093 random drug tests and 42,289 random alcohol tests were administered to railroad employees. As previously mentioned, FRA has designated Quest Diagnostics as its post-accident testing laboratory. Again unlike other workplace testing programs, FRA post-accident testing specimens are analyzed only at a single laboratory. To be awarded the contract as FRA's designated post-accident testing laboratory, a laboratory must be able to meet not only the technical qualifications for HHS laboratory certification but also qualifications set by FRA specifically for its post-accident testing program. These include the capability to analyze a wider variety of specimens (unique among DOT testing programs, FRA post-accident tests blood from surviving employees and tissue and fluid specimens from fatalities), for a wider variety of substances (e.g., barbiturates, carbon monoxide) at lower levels of detection than other HHS-certified laboratories. FRA audits the post-accident laboratory's compliance and quality each quarter.

Rail Labor representatives also expressed misgivings related to railroad availability policies, unpredictable work schedules, and FRA post-accident testing cutoffs. Their concern was that a railroad employee could test above the cutoff for tramadol or a sedating antihistamine if the employee used the substance, received an unexpected call for duty, and was later involved in an accident or incident that qualified for post-accident testing. For the reasons outlined below, FRA believes this misgiving is unfounded.

FRA has consulted with forensic toxicologists to establish post-accident screening and confirmation cut-offs for tramadol and sedating antihistamines, as appropriate for purposes of accident investigation. The purpose of random and other types of workplace tests is to detect whether a substance or its metabolite in present in an employee's system, with the ultimate goal of deterring or detecting substance abuse. This is not the case with FRA post-accident testing. With the exception of major train accidents, where all crew members involved must be tested, a railroad supervisor on the scene must make a good faith determination that an employee may have played a role in the cause or severity of an accident before the employee is post-accident tested. When a significant accident occurs, the special features of the program—the requirement to collect blood from surviving employees, the requirement to collect and test specimens from fatalities, the requirement to use only FRA-issued specimen collection kits and forms, the requirement to follow FRA-only collection procedures, the requirement that all specimens be shipped to a single laboratory for analysis, the requirement that this laboratory exceed the qualifications for HHS certification, and the requirement that all test results be reviewed by FRA, which has sole control over whether they are reported to employees and employers—enable FRA to collect data as one part of its investigation of the cause of the accident. (SeeAppendix C to 49 CFR part 219.) Because the ultimate purpose of FRA's post-accident testing program is to determine the cause of an accident, an employee's post-accident test result is just one of the many things FRA investigates. The mere presence of a substance or metabolite in an employee's system is never considered in isolation and FRA retains control of all post-accident specimens and results to ensure that a post-accident test result is interpreted in the context of the overall investigation.

Accidents can occur at any time, under different circumstances, and for a variety of reasons. For this reason FRA will maintain its practice of adjusting the substances, cutoffs and protocols in its post-accident testing program without notice and as it has done since the program's inception. When a major accident happens, FRA cannot wait for notice and comment before deciding whether to test for a substance that is not on its routine post-accident testing panel if preliminary investigation shows the substance may have played a role in the accident's occurrence or severity. Publication of this final rule provides notice that FRA will routinely conduct post-accident tests for non-controlled substances but does not provide precedent that FRA will publish notice of future changes to its post-accident testing program.

Rail Labor representatives also questioned why FRA was proposing to add post-accident tests for prescription and OTC drugs, given the conclusions of a Working Group tasked by the Railroad Safety Advisory Committee (RSAC) to develop Medical Standards (Task Number 2006-03, Medical Standards for Safety-Critical Personnel). According to these commentators, the Working Group had concluded “that regulatory treatment of such usage [of prescription drugs, OTC drugs, dietary supplements, and herbal remedies] is inappropriate * * * and that FRA's current Safety Advisory [Safety Advisory 98-3,Recommended practices for the safe use of prescription and over-the-counter drugs by safety-sensitive railroad employees,63 FR 71334, December 24, 1998] continues to sufficiently address recommended practices for safe use of prescription and OTC drugs.” FRA believes that this characterization by these commentators is incorrect since the Medical Standards Working Group has made no consensus recommendations to the RSAC about the use of medications by safety-sensitive employees and Task 2006-03 remains open.

Finally, with regard to Safety Advisory 98-3, FRA notes that the stated purpose of that Advisory remains as important today as it was when the Advisory was issued—i.e., the recommendations in that Advisory are intended to ensure that transportation employees safely use prescription and OTC drugs. In that Advisory, FRA specifically noted that “FRA does not have a clear picture of the extent to which the performance of safety-sensitive employees is adversely affected by legal drug use.” FRA's promulgation of this final rule adding certain non-controlled substances to its standard post-accident testing panel is one step toward FRA's longstandinggoal of determining whether the performance of safety-sensitive employees is adversely affected by the use of prescription and OTC drugs.

As announced in the NPRM, FRA is amending the contents of its standard post-accident testing box. FRA is adding guidance on the basis, purpose, and requirements of its post-accident testing program and updating the information requests in FRA F 6180.74, Post-Accident Testing Blood/Urine Custody and Control Form. These amendments should make FRA's post-accident testing collection and shipping requirements easier to understand and follow. (FRA is not changing the contents of its fatalities post-accident testing box or changing the other form in its standard post-accident testing box, Form FRA F 6180.73, Accident Information Required for Post-Accident Toxicological Testing.)

FRA received no comment on its proposed definition of a non-controlled substance and is adding the definition as proposed.

FRA received one comment from an HCP who supported removal and reservation of this section. As proposed, FRA is removing the preemption language in paragraph (a) of this section because part 219 has preemptive effect by operation of law under the Federal Rail Safety Act (FRSA).See49 U.S.C. 20106. Also as proposed, FRA is moving the language in paragraph (b) of this section to a new paragraph (c) of § 219.17.

As discussed in the paragraph above and as proposed in the NPRM, FRA is adding a new paragraph (c) to this section to replace the language formerly contained in § 219.13(b). This new paragraph states that part 219 does not impact State criminal laws imposing sanctions for reckless conduct that leads to actual loss of life, injury, or damage to property, whether such provisions apply specifically to railroad employees or the public at large.

As proposed in the NPRM, in the second sentence of paragraph (a), FRA is replacing the phrase “alcohol and controlled substances specified by FRA” with “alcohol, controlled substances, and non-controlled substances specified by FRA” to accommodate the addition of routine testing for non-controlled substances to its post-accident testing program. As also proposed in the NPRM, FRA is deleting the reference to submittal of FRA post-accident testing protocols to HHS, since as detailed above, HHS standards do not apply to FRA post-accident testing and FRA is adopting language from the DEA by adding a sentence stating that substances may be tested for in any form, whether naturally or synthetically derived, since controlled substances can be derived from many sources (e.g., opiates can be natural, synthetic, or semi-synthetic in origin).

As discussed above, FRA will keep all non-controlled substance post-accident test results confidential. FRA is therefore amending the first sentence of paragraph (b) as proposed in the NPRM. This change is intended to make clear that FRA will report post-accident test results for controlled substances only.

Although not discussed in the NPRM, FRA is also amending the first sentence of paragraph (f)(1) of this section to state that post-accident test results for non-controlled substances will not be in the final toxicology report included in each FRA accident investigation report. In the NPRM, FRA asked for comment on whether non-controlled substance results should be reported to employers and employees; most commentators favored keeping these post-accident test results confidential. While FRA did not raise the issue of whether non-controlled substance post-accident test results should be included in FRA accident investigation reports, keeping these results confidential from employers and employees would be meaningless if FRA published them in its official reports. FRA will therefore redact non-controlled substance test results from a post-accident toxicology testing report before that report is published as part of an FRA accident investigation report. This amendment is necessary to ensure the complete confidentiality of non-controlled substance post-accident test results.

As announced in the NPRM, FRA is revising Appendix B to this part to designate Quest Diagnostics in Tucker, Georgia as its post-accident testing laboratory.

This final rule has been evaluated in accordance with existing policies and procedures under both Executive Order 12866 and 13563 and DOT policies and procedures.See44 FR 11034; February 26, 1979. FRA has prepared and placed in the docket (FRA-2010-0155) a regulatory impact analysis addressing the economic impact of this final rule.

As part of the regulatory impact analysis, FRA has assessed pertinent costs expected from the implementation of this rulemaking. FRA has not found any costs associated with this final rule. Additional costs are assumed by the Federal government in their entirety. Railroads will not be required to change their collection process and will have to follow the same collection, shipping, and handling processes they currently follow. This means that individuals subject to post-accident testing will provide the same specimens currently required, which will then be tested for tramadol and sedating antihistamines at FRA's expense. Since FRA will use these results for research and accident investigation purposes only, tramadol and sedating antihistamines test results will not be reported directly to either the employee or the employing railroad. This reporting process will apply to both surviving and fatally injured employees. No monetary costs will be imposed on the industry as a result of this addition.

As part of the regulatory impact analysis, FRA has explained what the likely benefits for this final rule will be, and provided numerical assessments of the potential value of such benefits. The inclusion of tramadol and sedating antihistamines will generate safety benefits. Qualitative benefits will be generated with the inclusion of sedating antihistamines and tramadol in the post-accident testing panel by providing FRA with the data necessary to carry out research to inform future policy on this topic. The final rule will generate quantifiable benefits upon the addition of sedating antihistamines to the post-accident testing panel by creating a small deterring effect on the use of sedating antihistamines by railroad workers and encouraging the use of alternative medications for allergic relief. A deterring effect will be generated by the regulatory signal FRA is sending to the regulated community about the safety concern related to these non-controlled substances. FRA expects some individuals to alter their usage of these substances and improve safety.Thus, in general, the final rule will reduce railroad accidents and their associated casualties and damages. FRA believes the value of the anticipated safety benefits will exceed the cost of implementing the final rule. Over a 10-year period, this analysis finds that $2.3 million in benefits will accrue through accident prevention. The discounted value of this is $1.9 million (PV, 7 percent). The table below presents the estimated benefits associated with the final rule.

FRA developed the final rule in accordance with Executive Order 13272 (“Proper Consideration of Small Entities in Agency Rulemaking”) and DOT's procedures and policies to promote compliance with the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) to ensure potential impacts of rules on small entities are properly considered. FRA certified pursuant to the Regulatory Flexibility Act (5 U.S.C. 605(b)) in the NPRM. Furthermore, FRA invited all interested parties to submit data and information regarding this certification and did not receive any comments about it during the public comment period.

The Regulatory Flexibility Act requires an agency to review regulations to assess their impact on small entities. An agency must conduct a regulatory flexibility analysis unless it determines and certifies that a rule is not expected to have a significant economic impact on a substantial number of small entities.

Consistent with societal trends, FRA is concerned about the increasing use of non-controlled drugs in the railroads labor force. With this final rule FRA will learn about the impact of some of these non-controlled substances on railroad safety by updating the definition of non-controlled substances, changing the reporting requirements related to the drug panel change, and including more drugs in the current post-accident testing panel. This Regulatory Flexibility Impact Analysis is presented to comply with Executive Order 13272 and with the Regulatory Flexibility Act as part of the formal rulemaking process required by law.

The final regulation is amending §§ 219.5 and 219.211 by providing for the routine post-accident testing for non-controlled substances. FRA will treat post-accident test results for non-controlled substances as confidential and will not disclose such results to the relevant railroad or employee.

The “universe” of the entities under consideration includes only those small entities that can reasonably be expected to be directly affected by the provisions of this final rule. For this final rule there is only one type of small entity that is affected: small railroads.

“Small entity” is defined in 5 U.S.C. 601. Section 601(3) defines a “small entity” as having the same meaning as “small business concern” under § 3 of the Small Business Act. This includes any small business concern that is independently owned and operated, and is not dominant in its field of operation. Section 601(4) likewise includes within the definition of “small entities” not-for-profit enterprises that are independently owned and operated, and are not dominant in their field of operations. Additionally, 5 U.S.C. 601(5) defines “small entities” as governments of cities, counties, towns, townships, villages, school districts, or special districts with populations less than 50,000.

The U.S. Small Business Administration (SBA) stipulates “size standards” for small entities. It provides that the largest a for-profit railroad business firm may be (and still classify as a “small entity”) is 1,500 employees for “Line-Haul Operating” railroads, and 500 employees for “Short-Line Operating” railroads.1

Federal agencies may adopt their own size standards for small entities in consultation with SBA, and in conjunction with public comment. Pursuant to the authority provided to it by SBA, FRA has published a final policy, which formally establishes small entities as railroads that meet the line haulage revenue requirements of a Class III railroad.2 Currently, the revenue requirements are $20 million or less in annual operating revenue, adjusted annually for inflation. The $20 million limit (adjusted annually for inflation) is based on the Surface Transportation Board's threshold of a Class III railroad, which is adjusted by applying the railroad revenue deflator adjustment.3 FRA is using this definition for this final rule.

FRA regulates a total 756 railroads. However, only 644 could be considered to be small for the purposes of this analysis because 7 are large Class I freight railroads, Amtrak and 26 commuter railroads serving communities larger than 50,000 people, and 12 are Class II railroads. All these railroads are not considered to be small. The rest of the railroads not included in this analysis do not operate in the general railroad system and are not subject to the final regulation. Two commuter railroads were included in this analysis, the Hawkeye Express and the Saratoga & North Creek Railway. The Hawkeye Express provides commuter service to Iowa City and is owned by a Class III railroad, a small entity. The Saratoga & North Creek Railway started operations in 2011, serving several stations between North Creek and Saratoga Springs, New York with three trains a day and meets the criteria to be considered a small entity.

It is important to note that the small entities being considered in this analysis are knowledgeable about current post-accident testing requirements. Most small railroads have experience on carrying out a post-accident test. Data from the FRA's Drug and Alcohol Program reveals that generally, about 4 or 5 percent of all post-accident testing qualifying events involve a small railroad. For example, in 2011 with a total of 87 post-accident testing events, four implicated Class III railroads. Similarly, in 2010, 85 post-accident testing events involved four Class III railroads.

This final rule does not increase costs for small railroads. The cost for testing additional drugs will be paid by the FRA through existing contracts. Railroads will follow the same collection and shipping process for urine and blood samples that is currently in place. Results originating from this regulatory change will only be used by FRA for research and investigation purposes only and will not be shared with external entities. Therefore, in the eventuality that an employee from a small railroad is found positive on any of these non-controlled substances neither the railroad nor the employee will face additional expenses to respond to that finding.

Previously, FRA sampled small railroads and found that revenue averaged approximately $4.7 million (not discounted) in 2006. One percent of that average annual revenue per small railroad is $47,000. FRA realizes that some railroads will have a lower revenue than $4.7 million. However, FRA estimates that small railroads will not have any additional expenses over the next ten years to comply with the new requirements in this final regulation. Based on this, FRA concludes that the expected burden of this final rule will not have a significant impact on the competitive position of small entities, or on the small entity segment of the railroad industry as a whole.

This final rule will likely burden all small railroads that are not exempt from its scope or application (See 49 CFR 219.3). Thus, as noted above this final rule will impact a substantial number of small railroads.

Pursuant to the Regulatory Flexibility Act (5 U.S.C. 605(b)), FRA certifies that this final rule will not have a significant economic impact on a substantial number of small entities. FRA invited all interested parties to submit data and information regarding the potential economic impact that will result from adoption of the proposals in the NPRM. FRA did not receive any comments concerning this certification in the public comment process.

The information collection requirements in this rule are being submitted for approval to the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501et seq.The section that contains the revised information collection requirement and the estimated time to fulfill that requirement is as follows:

All estimates include the time for reviewing instructions; searching existing data sources; gathering or maintaining the needed data; and reviewing the information. Pursuant to 44 U.S.C. 3506(c)(2)(B), FRA solicits comments concerning: whether these information collection requirements are necessary for the proper performance of the functions of FRA, including whether the information has practical utility; the accuracy of FRA's estimates of the burden of the information collection requirements; the quality, utility, and clarity of the information to be collected; and whether the burden of collection of information on those who are to respond, including through the use of automated collection techniques or other forms of information technology, may be minimized. For information or a copy of the paperwork package submitted to OMB, contact Mr. Robert Brogan, Information Clearance Officer, at 202-493-6292, or Ms. Kimberly Toone at 202-493-6132.

Organizations and individuals desiring to submit comments on the collection of information requirements should direct them to Mr. Robert Brogan or Ms. Kimberly Toone, Federal Railroad Administration, 1200 New Jersey Avenue SE., 3rd Floor, Washington, DC 20590. Comments may also be submitted via email to Mr. Brogan or Ms. Toone at the following address:Robert.Brogan@dot.gov; Kim.Toone@dot.gov.

OMB is required to make a decision concerning the collection of information requirements contained in this rule between 30 and 60 days after publication of this document in theFederal Register. Therefore, a comment to OMB is best assured of having its full effect if OMB receives it within 30 days of publication.

FRA is not authorized to impose a penalty on persons for violating information collection requirements which do not display a current OMB control number, if required. FRA intends to obtain current OMB control numbers for any new information collection requirements resulting from this rulemaking action prior to the effective date of the final rule. The OMB control number, when assigned, will be announced by separate notice in theFederal Register.

Executive Order 13132, “Federalism” (64 FR 43255, Aug. 4, 1999), requires FRA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” are defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under Executive Order 13132, the agency may not issue a regulation with federalism implications that imposes substantial direct compliance costs and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or the agency consults with State and local government officials early in the process of developing the regulation. Where a regulation has federalism implications and preempts State law, the agency seeks to consult with State and local officials in the process of developing the regulation. FRA has analyzed this final rule in accordance with the principles and criteria contained in Executive Order 13132. FRA believes this final rule it is in compliance with Executive Order 13132.

This final rule will not have a substantial effect on the States, on the relationship between the Federal government and the States, or on the distribution of power and responsibilities among the various levels of government. In addition, this final rule will not have any federalism implications that impose substantial direct compliance costs on State and local governments.

This final will have preemptive effect by operation of law under certain provisions of the Federal railroad safety statutes, specifically the former Federal Rail Safety Act (FRSA), repealed and recodified at 49 U.S.C 20106. The former FRSA provides that States may not adopt or continue in effect any law, regulation, or order related to railroad safety or security that covers the subject matter of a regulation prescribed or order issued by the Secretary of Transportation (with respect to railroad safety matters) or the Secretary of Homeland Security (with respect to railroad security matters), except when the State law, regulation, or order qualifies under the “local safety or security hazard” exception to section 20106.

FRA has evaluated this final rule in accordance with its “Procedures for Considering Environmental Impacts” (“FRA's Procedures”) (64 FR 28545, May 26, 1999) as required by the National Environmental Policy Act (42 U.S.C. 4321 et seq.), other environmental statutes, Executive Orders, and related regulatory requirements. FRA has determined that this final rule is not a major FRA action (requiring the preparation of an environmental impact statement or environmental assessment) because it is categorically excluded from detailed environmental review pursuant to section 4(c)(20) of FRA's Procedures. In accordance with section 4(c) and (e) of FRA's Procedures, the agency has further concluded that no extraordinary circumstances exist with respect to this regulation that might trigger the need for a more detailed environmental review. As a result, FRA finds that this final rule is not a major Federal action significantly affecting the quality of the human environment.

The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 2 U.S.C. 1531) 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 expenditures by State, local or tribal governments, in the aggregate, or by the private sector, of more than $100 million annually (adjusted annually for inflation with base year of 1995). The value equivalent of $100 million in CY 1950, adjusted annually for inflation to CY 2008 levels by the Consumer Price Index for All Urban Consumers (CPI-U) is $141.3 million. This assessment may be included in conjunction with other assessments, as it is here. This final rule will not create an unfunded mandate in excess of the threshold amount.

Executive Order 13211 requires Federal agencies to prepare a Statement of Energy Effects for any “significant energy action.” 66 FR 28355 (May 22, 2001). Under the Executive Order, a “significant energy action” is defined as any action by an agency (normally published in theFederal Register) that promulgates or is expected to lead to the promulgation of a final rule or regulation, including notices of inquiry, advance notices of proposed rulemaking, and notices of proposed rulemaking: (1)(i) That is a significant regulatory action under Executive Order 12866 or any successor order, and (ii) is likely to have a significant adverse effect on the supply, distribution, or use of energy; or (2) that is designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. FRA has evaluated this final rule in accordance with Executive Order 13211, and determined that it is not a “significant regulatory action” likely to have a significant adverse effect on the supply, distribution, or use of energy.

Anyone is able to search the electronic form of any comments or other written communications received into any of FRA's dockets, by the name of the individual submitting the comment or other written communication (or signing the comment or other written communication, if submitted on behalf of an association, business, labor union, etc.).See http://www.regulations.gov/#!privacyNoticefor the privacy notice of regulations.gov, or you may review DOT's complete Privacy Act Statement in theFederal Registerpublished on April 11, 2000 (65 FR 19477).

For the reasons stated above, FRA amends part 219 of chapter II, subtitle B of title 49, Code of Federal Regulations, as follows:

The reef fish fishery of the Gulf is managed under the Fishery Management Plan for Reef Fish Resources of the Gulf (FMP). The FMP was prepared by the Gulf Fishery Management Council and is implemented under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622. All gray triggerfish weights discussed in this temporary rule are in round weight.

The reauthorization of the Magnuson-Stevens Act implemented new requirements that ACLs and AMs be established to end overfishing and prevent overfishing from occurring. Accountability measures are management controls to prevent ACLs from being exceeded, and correct or mitigate overages of the ACL if they occur. Section 303(a)(15) of the Magnuson-Stevens Act mandates the establishment of ACLs at a level such that overfishing does not occur in the fishery, including measures to ensure accountability.

On July 3, 2008, NMFS issued a final rule (73 FR 38139) to implement Amendment 30A to the FMP. In part, Amendment 30A established commercial ACLs, commercial quotas (which were set lower than the ACLs to account for management uncertainty) and commercial AMs that would go into effect if the commercial quotas for gray triggerfish are reached or the ACLs are exceeded. In accordance with regulations at 50 CFR 622.49(a)(2)(i), when the applicable quota is reached, or projected to be reached, the Assistant Administrator for Fisheries, NOAA, (AA), will file a notification with the Office of the Federal Register to close the sector for the remainder of the fishing year. If despite such closure, landings exceed the ACL, the AA will reduce the quota the year following an overage by the amount of the ACL overage of the prior fishing year.

The Council requested and NMFS implemented a temporary rule to, in part, reduce the gray triggerfish commercial ACLs and ACTs (equal to the commercial quotas) (77 FR 28308, May 14, 2012). The gray triggerfish commercial sector AMs state that, in accordance with regulations at 50 CFR 622.49(a)(17)(i), when the applicable commercial ACT (commercial quota) is reached, or projected to be reached, the AA will file a notification with the Office of the Federal Register to closethe sector for the remainder of the fishing year. If despite such closure, landings exceed the ACL, the AA will reduce the commercial ACT (commercial quota) the year following an overage by the amount of the ACL overage of the prior fishing year. These interim measures were extended through May 15, 2013, to allow for the development and implementation of permanent measures through Amendment 37 to the FMP (77 FR 67303, November 9, 2012).

In 2012, the commercial sector for gray triggerfish exceeded the 64,100 lb (28,845 kg) commercial ACL by 9,298 lb (4,218 kg). Therefore, NMFS reduces the 2013 commercial ACT (commercial quota) for gray triggerfish through this temporary rule. The 2013 commercial ACT is set at 51,602 lb (23,406 kg).

The Regional Administrator, Southeast Region, NMFS, has determined this temporary rule is necessary for the conservation and management of the Gulf gray triggerfish component of the Gulf reef fish fishery and is consistent with the Magnuson-Stevens Act, the FMP, and other applicable laws.

The temporary rule has been determined to be not significant for purposes of Executive Order 12866.

These measures are exempt from the procedures of the Regulatory Flexibility Act because the temporary rule is issued without opportunity for prior notice and comment.

An EA was prepared for the interim measures contained in the May 14, 2012, final temporary rule (77 FR 28308). The EA analyzed the impacts of reduced gray triggerfish harvest through the 2012 fishing year, including the impacts related to the interim rule extension (77 FR 28308, November 12, 2012). Copies of the EA are available from NMFS (seeADDRESSES).

Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive the requirements to provide prior notice and opportunity for public comment on this temporary rule. Such procedures are unnecessary because the AMs (established by Amendment 30A), and the commercial ACT and commercial ACL (implemented by the temporary rule for interim measures), all located at 50 CFR 622.49(a), authorize the AA to file a notification with the Office of the Federal Register to reduce the commercial ACT (commercial quota) the following fishing year if a commercial ACL overage occurs. The final rule for Amendment 30A and the temporary rule for interim measures were already subject to notice and comment. Therefore, all that remains is to notify the public of the reduced 2013 commercial ACT (commercial quota) for Gulf gray triggerfish.

Additionally, prior notice and opportunity for public comment would be contrary to the public interest. Given the ability of the commercial sector to rapidly harvest fishery resources, there is a need to immediately implement the reduced commercial ACT (commercial quota) for the 2013 fishing year. Taking time to provide prior notice and opportunity for public comment creates a higher likelihood of the reduced commercial ACT (commercial quota) and the commercial ACL being exceeded.

For the aforementioned reasons, the AA also finds good cause to waive the 30-day delay in the effectiveness of this action under 5 U.S.C. 553(d)(3).

Background

Regulations from Amendment 16 to the Northeast (NE) Multispecies Fishery Management Plan (FMP) allow a groundfish sector to request exemptions from Federal fishing regulations through its annual operations plan. Based on catch data from a collaborative research project, referred to as REDNET, several NE multispecies sectors submitted a regulatory exemption request to fish with 4.5-inch (11.4-cm) codend mesh when targeting Acadian redfish (Sebastes fasciatus) in a portion of the Gulf of Maine, east of the year-round Western Gulf of Maine Closure Area. A detailed explanation of the REDNET research project, sector exemption requests to target redfish, and the development of this particular exemption request can be found in the proposed rule for this action (77 FR 66947; November 8, 2012). Those details are not repeated here.

Regulatory exemption requests are normally proposed, reviewed, and approved through the final rule implementing the annual sector operations plans. However, sectors can request exemptions at any time within the fishing year (for a more detailed explanation of the sector exemption request process and current sector exemptions, see 77 FR 8780; February 15, 2012). The New England Fishery Management Council (Council) has requested that we pursue exemptions allowing sector vessels to more efficiently target redfish, and the Council's Research Steering Committee has endorsed the approval of a 4.5-inch (11.4-cm) mesh exemption. Because of this, we proposed a 4.5-inch (11.4-cm)codend trawl mesh exemption for potential mid-year implementation. All measures that were proposed for this exemption are also extended to the 6-inch (15.2-cm) codend mesh exemption for trips targeting redfish, which is currently approved for fishing year 2012. Table 1 below provides a timeline summarizing the key events for this action.

This final rule authorizes a regulatory exemption for the remainder of fishing year 2012 that allows sector vessels to target redfish with codend mesh greater than or equal to 4.5 inches (11.4-cm) but less than 6.5 inches (16.5-cm) (the required minimum codend mesh size for the area fished).

Sectors that intend to use this exemption must notify NMFS and receive amended letters of authorization prior to fishing. To aid in identifying trips targeting redfish with small-mesh nets, sector vessels intending to utilize this exemption are required to submit a trip start hail identifying the trip as one that will target redfish under the exemption. In addition, all sector trawl vessels that intend to target redfish with codend mesh less than 6.5 inches (16.5-cm) are required to have an observer or at-sea monitor on board. Mesh sizes are measured as described at 50 CFR 648.80(f).

To ensure that this exemption does not negatively impact fish stocks, we have established two catch thresholds that, if exceeded by a sector, could result in the NMFS Northeast Regional Administrator rescinding the approval of this exemption for the sector in question. First, to help ensure that vessels do not direct on other species of fish, monthly catch amounts of regulated groundfish (both landings and discards) when trawling small mesh under this exemption must be comprised of at least 80 percent redfish. Second, to help mitigate catches of sub-legal sized groundfish, total groundfish discards (including redfish discards), may not exceed 5 percent of all regulated groundfish caught monthly when trawling with small-mesh nets. These thresholds were determined to be consistent with catch information from REDNET research trips. The initial findings from the REDNET project, including catch data, were presented to the Council and its Research Steering Committee, both which endorsed the report and encouraged NMFS to approve an exemption which would allow redfish to be targeted with smaller mesh. A presentation on the proposed rule, including the thresholds, was also given to the Council's Groundfish Committee on December 19, 2012. Catch data recorded by the observer or at-sea monitor will be used to monitor these thresholds. The Regional Administrator retains the authority to further adjust these two thresholds, if necessary, to help ensure that vessels are directing on redfish and catching minimal amounts of undersized groundfish.

An interim reporting process is being developed to monitor catch under this exemption. Sector catch utilizing this exemption will be analyzed on a calendar monthly basis with a cumulative calculation throughout the fishing year. For example, if a sector discards 2 lb (0.91 kg) out of 100 lb (45.36 kg) of regulated groundfish caught (catch includes landings and discards) in month one, and 6 lb (2.72 kg) out of 200 lb (90.72 kg) of regulated groundfish in month two, the sector would have cumulatively discarded 8 lb (3.63 kg) out of 300 lb (136.08 kg), or 2.67 percent. If a sector exceeds either the 80 percent redfish threshold or 5 percent discard threshold, it would have 1 month to correct the overage(s) (i.e., the sector must be completely compliant with the thresholds by the end of the “correcting” month). If after 1 month the sector has still exceeded either threshold, the exemption for that particular sector could be revoked by the Regional Administrator for the remainder of the fishing year through a notice published in theFederal Register. Because of these catch thresholds, a catch monitoring program, and the requirement to submit a trip start hail, sector vessels are no longer required to submit daily catch reports when utilizing either this or the existing 6.0-inch (15.2-cm) codend mesh exemption for redfish. The reporting mechanisms used for submitting catch data may be adjusted at any time if deemed necessary by the Regional Administrator.

In addition, the Regional Administrator reserves the right to revoke this exemption on determining that the exemption is negatively impacting spawning fish, rebuilding efforts for any groundfish stock, or populations of stocks that the current minimum codend mesh size of 6.5 inches (16.5-cm) was intended to protect.

We specifically requested public comment on whether vessels requesting this exemption should be allowed to fish with both exempted small mesh and regulated codend mesh nets for other groundfish stocks on the same trip citing concern that some requirements could be circumvented. For example, because monitors do not observe every haul (fishing operations may occur while monitors are sleeping), exact catch from these hauls cannot be identified and included in catch thresholds.

This action allows vessels to fish with multiple mesh sizes while fishing on a trip targeting redfish with small mesh. As stated in the proposed rule, if the majority of hauls are not observed, the Regional Administrator could revoke the exemption. Vessels not fishing under an exempted redfish trip remain subject to the minimum mesh size requirements specified in the regulations.

All exempted small-mesh redfish trips will be observed and discard estimates on observed hauls will be used to calculate discards of unobserved hauls—a total amount of discards will then be derived for the entire trip. All groundfish catch from a declared small-mesh exempted redfish trip will be debited against the sector's allocation. No catch from small-mesh exempted redfish trips (even catch from mesh greater than 6.5 inches (16.5-cm)) will be factored into a sector's overall discard rate because targeted redfish trips may exhibit different behavior and/or catch rates.

As previously outlined, any sector vessel targeting redfish under a mesh size exemption is required to have an observer or at-sea monitor on board. Some sectors are concerned that vessels may lose flexibility if they have to wait to be randomly selected for a federally-funded observer or at-sea monitor through the existing monitoring programs. Several sectors asked to work with us to develop an industry-funded at-sea monitoring program to avoid delays while waiting for random monitoring selection. We have determined that we can support a small-scale industry-funded program. Limitations to the size of the program are due to a limited pool of available observers and at-sea monitors.

Four sectors (26 vessels) have expressed interest in funding additional at-sea monitoring coverage for exempted trips targeting redfish. Any sector interested in developing an industry-funded at-sea monitoring program will be required to develop a monitoring plan as part of its operation plan to be approved by NMFS. If NMFS determines the plan is sufficient, NMFS will approve it along with the rest of the sector's operations plan. For fishing year 2012, any approved monitoring program will be included as an addendum to the sector's operations plan.

A vessel fishing with an industry-funded at-sea monitor must notify NMFS at least 48 hours in advance of taking an exempted small-mesh trip targeting redfish. Instead of calling into the Pre-Trip Notification System currently established for sector vessels, the vessel will call into a separate system. Call-in information will be provided to the sector vessels utilizing the exemption upon implementation of the program.

We proposed that all vessels enrolled in a sector with an approved industry-funded program would forfeit the opportunity to have a randomly assigned federally funded observer or at-sea monitor. We also proposed that any vessel in a sector that has an approved industry-funded program and elects to target redfish under the exemption would be required to pay for at-sea monitoring coverage for that redfish trip. However, based on comments received, this final rule allows sectors to propose industry-funded at-sea monitoring programs that apply only to specific vessels within a sector. Vessels that intend to fish with industry-funded at-sea monitors must be identified in the sector's monitoring plan. Identified vessels may not opt-out of the industry-funded program until the following fishing year. While identified vessels may still be selected for random observer or at-sea monitoring coverage when not targeting redfish under this exemption, these vessels may not fish under this exemption with a randomly selected observer or at-sea monitor. All other vessels in the sector may only participate in the exempted small-mesh fishery if their trip is selected for random observer or at-sea monitoring coverage.

Ten public comments were received, seven of which are relevant to this action. Comments that were similar were combined and all relevant comments are responded to below. Comments submitted by the Council, Associated Fisheries of Maine, Maine Coast Fishermen's Association, State of Maine, and Northeast Sector Service Network all supported allowing vessels to target redfish with smaller mesh. The Pew Environment Group opposes the exemption. A coordinator for the REDNET project provided a clarification on the proposed rule. Several of the comments addressed more specific issues discussed below.

Comment 1:The Council, Associated Fisheries of Maine, State of Maine, and Northeast Sector Service Network commented that vessels should be provided the flexibility to use multiple meshes on trips targeting redfish with 100-percent observer coverage. They also clarified that vessels should not have mesh of less than 6 inches (15.2 cm) on board if not declared on an exempted redfish trip.

Response:We agree that this option would provide additional flexibility to fishermen. Each trip using the mesh-size exemption to target redfish will have an observer or at-sea monitor onboard the vessel which helps alleviate some concerns raised by opponents of allowing the use of multiple mesh sizes. Because all redfish trips will have an observer or at-sea monitor on board, and the need for additional flexibility, we are allowing vessels to fish multiple mesh sizes on these trips. We also agree that sector vessels cannot have mesh less than the regulated minimum mesh size requirement on board unless fishing under the small-mesh redfish exemption or unless otherwise exempted.

Comment 2:The Council, Associated Fisheries of Maine, State of Maine, and Northeast Sector Service Network suggested that sectors be permitted to allow a subset of their membership to participate in an industry-funded at-sea monitoring program, instead of requiring all members of a sector to participate in that program.

Response:We initially proposed that all sector members would have to participate in an industry-funded at-sea monitoring program submitted by a sector for trips targeting redfish because we felt it would be easier to implement and enforce. However, several comments indicated that not all sector members who wished to target redfish wanted to pay for additional coverage. We understand that the cost of requiring all members of a sector to participate in an industry-funded at-sea monitoring program as proposed for this exemption could prevent a sector from being able to develop and fund their own at-sea monitoring program. Therefore, this final rule allows a subset of sector members to participate in an industry-funded at-sea monitoring program for trips targeting redfish under this exemption instead of requiring all members of a sector to participate in that program, as explained in the preamble of this rule.

Comment 3:Associated Fisheries of Maine and the Northeast Sector Service Network argued that requiring industry to fund all at-sea monitoring coveragefor purposes of utilizing the small mesh redfish exemption is inconsistent with Amendment 16. They cited Amendment 16, which states that “[t]he industry-funded observer or at-sea monitor program will not replace the NMFS Observer Program. In the event a NMFS observer and a third party observer or at-sea monitor is assigned to the same trip, the NMFS observer will take precedence and the third party observer or at-sea monitor will stand down.”

Response:While the comment is unclear on this point, it appears that the commenters believe that vessels participating in an industry-funded at-sea monitoring program should be able to first call into the Pre-Trip Notification System (PTNS) and have the opportunity to receive a federally-funded NEFOP observer or at-sea monitor. Their position, however, is not supported by the quoted language from Amendment 16, which is taken out of context. As described in Amendment 16, NMFS annually establishes a minimum amount of at-sea monitoring coverage that is necessary for monitoring bycatch by all vessels in the groundfish fishery. Amendment 16 also stated that each sector would develop an at-sea monitoring plan to monitor bycatch across the fishery, and industry would pay for all of that at-sea monitoring by fishing year 2012. It was thus in the context of monitoring bycatch across the groundfish fishery that Amendment 16 explained that in the instance where an industry-funded at-sea monitor and Federal observer were assigned to the same trip, the at-sea monitor would “stand down.” The language cited in the comment above was included in Amendment 16 as a way to acknowledge that some trips would be selected for coverage by the NMFS Observer Program and industry would not be responsible for costs associated with those trips.

Furthermore, prohibiting vessels participating in an industry-funded program from calling into the PTNS system and fishing under the exemption with a federally-funded observer or at-sea monitor is necessary to reduce potential bias in data collected by the NMFS observer program. Sectors originally requested that vessels in an industry-funded at-sea monitoring program have the opportunity to receive a federally-funded at-sea monitor or observer prior to having to contract and pay for their own at-sea monitor coverage in order to take advantage of the small-mesh exemption. We had concerns about this approach because we believed that it could bias the federally-funded coverage. Essentially, any time a vessel interested in taking a trip targeting redfish under this exemption was assigned an at-sea monitor or observer, it would be highly likely that they would take a trip under the redfish exemption, thus biasing the nature of the trips on which observer coverage was provided. In the proposed rule, and as now approved in this final rule, we reduced this bias by prohibiting vessels that participate in a voluntary industry-funded at-sea monitoring program from fishing under this exemption on trips where they are randomly assigned a federally-funded observer or at-sea monitor. It should be noted that we are carefully evaluating this bias for sector exemptions that are being requested for fishing year 2013.

Finally, this comment suggests that vessels participating in an industry-funded at-sea monitoring program as approved in this rule have some type of right to request and potentially receive a NMFS observer. On the contrary, this action approves a voluntary sector exemption for vessels that receive random observer or at-sea monitoring coverage and an additional voluntary industry-funded at-sea monitoring program. In either circumstance, the exemption requires accepting several accompanying contingencies (e.g., catch thresholds, monitoring requirements, etc.). If a vessel or sector is unwilling to participate in an industry-funded at-sea monitoring program, then a vessel must wait to be selected for random coverage. Or, if a vessel or sector is unwilling to participate in an industry funded at-sea monitoring program and accept the other contingencies, it can choose not to fish for redfish under the exemption.

Comment 4:Associated Fisheries of Maine and the Northeast Sector Service Network expressed concern that if the redfish exemption trips are monitored only by the industry-funded program, they would never be monitored by the more rigorous Northeast Fishery Observer Program (NEFOP) protocol. While the comment is unclear on this point, it appears that the commenters are concerned that the protocols followed by at-sea monitors will not be sufficient to ensure compliance with the small mesh redfish exemption.

Response:NMFS-certified at-sea monitors record all the catch information necessary to adequately monitor the exemption's measures, as approved. While NEFOP Observers gather additional data not collected by at-sea monitors, much of it is data on gear and fishing practices that are not relevant to monitoring the catch thresholds critical to approving this exemption.

Comment 5:A coordinator for the REDNET project commented that the proposed rule incorrectly stated that the “final” report for Component 2 of the REDNET project was available for public review, when in fact it was a “draft” report.

Response:This clarification is correct. The report available for public review was a “draft” report. The “final” REDNET report was submitted to NMFS on January 23, 2013, and is currently under review. However, the catch data (landings and discards) from the REDNET project, which NMFS relied on to approve this exemption, is the same in both the final and draft report. The draft report was subject to the Council's and public's review. Further, there were no changes to the draft version that substantially affect anything in this rule. The final report added analyses on tow information and length/frequency distributions at particular depths. We continue to believe that the results from Component 2 of the REDNET project support the careful development of a targeted redfish fishery.

Comment 6:The Pew Environment Group expressed serious concerns with the exemption as currently proposed. Pew opposes allowing bottom trawl vessels to target redfish with smaller mesh and suggests that smaller fish will be caught with smaller mesh. Pew cited particular concerns with this exemption due to prior stock depletion as well as the slow growth and long life span of redfish. Pew also noted that additional analyses are necessary before they could support a “directed fishery” for redfish, the results of which may warrant an environmental impact statement (EIS).

Response:While we understand Pew's concerns with the exemption, we do not agree with their comments for several reasons. First, redfish are not overfished or subject to overfishing—the stock is one of the healthiest groundfish stocks. Most of the redfish allocation has recently gone unharvested; in fishing year 2010, only 31 percent of the allocation was harvested, and only 36 percent was harvested in 2011. The Magnuson-Stevens Act encourages fishing at maximum sustainable levels. It should be noted that redfish growth characteristics, such as growth rates and life spans, are considered when annual allocations are established.

Second, the REDNET research shows that smaller mesh can be used to target redfish without resulting in increased catches of juvenile fish. Importantly, because we recognize that these results are just from one study, we are requiring a bycatch threshold to further prevent increased catches of juvenile redfish and other groundfish while fishing with smaller mesh under this exemption. All trips targeting redfish will be monitoredby an observer or at-sea monitor and will provide additional beneficial data to increase our understanding of the fishery and allow us to closely monitor this exemption.

Third, measures in this action have been adequately analyzed in several environmental assessments. The environmental assessment for Framework Adjustment 47 analyzed allocations based on stock assessments that use the best available science, are subject to peer review, and include consideration of the growth rates and lifespan of redfish and other groundfish species. Importantly, this action only allows sector vessels an increased opportunity to harvest more of their allocation, which has previously been underharvested. The environmental impacts of sectors receiving an allocation and fishing under regulatory exemptions for fishing year 2012 are further analyzed in the Environmental Assessment for Fishing Year 2012 Sector Operations Plans and Contracts, which also tiers off the assessment for Framework Adjustment 47.

The environmental impacts specific to this action are analyzed in a Supplemental Environmental Assessment for Fishing Year 2012 Sector Operations Plans and Contracts. This assessment included a review of the REDNET study, which showed no increased catch of juvenile fish when fishing for redfish with 4.5 inch mesh nets. Because the REDNET information shows no increased catch of juvenile fish, and there were no significant impacts found in the EAs and specifications that considered the impacts of fishing for the total allocation, an EIS is unnecessary. Last, this action includes increased monitoring, catch thresholds, and we have stated that we will revoke the exemption if it is determined that fishing for redfish with smaller mesh is negatively impacting redfish or other groundfish stocks.

We had proposed that all vessels in a sector be required to fund their own at-sea monitoring coverage for trips targeting redfish under this exemption if the sector elected to develop an industry-funded at-sea monitoring plan. The final rule changes this requirement so that a subset of sector members may participate in an industry-funded at-sea monitoring plan that is subject to approval by NMFS.

The November 8, 2012, proposed rule stated that “* * * to help mitigate catches of sub-legal sized groundfish, total groundfish discards (excluding redfish discards) may not exceed 5 percent of all groundfish caught when directing on redfish with small-mesh nets.” This requirement was incorrectly stated in the proposed rule. Catch from the REDNET research project demonstrated that vessels discarded less than 5 percent of all groundfish caught (including redfish). A clarification was published in theFederal Registeron January 10, 2012 (78 FR 2249), with an additional 15-day period to comment on this clarification. No comments on this clarification were received. Redfish discards will be included in the discard threshold as intended and as stated in the EA completed for this action. Not incorporating discards of juvenile redfish could jeopardize the health of the stock.

The Administrator, Northeast Region, NMFS, has determined that this rule is consistent with the NE Multispecies FMP, other provisions of the Magnuson-Stevens Act, and other applicable law.

This action is exempt from review under Executive Order (E.O.) 12866.

Pursuant to the Regulatory Flexibility Act, 5 U.S.C. 605(b), the Chief Council for Regulation of the Department of Commerce certified to the Chief Council for Advocacy of the Small Business Administration during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. The factual basis for the certification was published in the proposed rule and is not repeated here. No comments were received regarding this certification. As a result, a regulatory flexibility analysis was not required and none was prepared.

NMFS published a proposed rule for Framework Adjustment 7 on December 13, 2012 (77 FR 74159). The proposed rule included additional background information and detail on why and how the Council developed Framework Adjustment 7, which NMFS has not repeated in this rule.

NFMS implemented the butterfish mortality cap on the longfin squid fishery as part of Amendment 10 to the Atlantic Mackerel, Squid, and Butterfish (MSB) Fishery Management Plan (FMP) (75 FR 11441, March 11, 2010) as a means of reducing fishing mortality to the butterfish stock. Butterfish discards in the longfin squid fishery account for the largest source of butterfish fishing mortality. The cap currently limits butterfish catch (both landings and discards) on directed longfin squid trips. The mortality cap accounts for fishery behavior in which fishermen discard most butterfish caught on a longfin squid trip and land only a small amount of butterfish, which has been the case since 2002. In response to new information that suggests increased butterfish abundance, the Council recommended and NMFS implemented on January 16, 2013, (78 FR 3346) a much higher butterfish quota for the 2013 fishing year. The increased quota will allow for a directed butterfish fishery for the first time in recent years.

NMFS currently calculates the butterfish mortality cap by extrapolating the observed butterfish catch (landings and discards) on longfin squid trips with an observer aboard to determine the butterfish catch on all unobserved longfin squid trips. The butterfish mortality cap calculations currently include all trips that land greater than or equal to 2,501 lb of longfin squid. With directed butterfish fishing, an observed trip could land a very large amount of butterfish and just enough longfin squid to qualify as a longfin squid trip, and we would include it as a butterfish mortality cap trip. This means that the cap estimation would include a number of trips that are not truly targeting longfin squid. In order to accommodate the directed butterfish fishery, Framework Adjustment 7 changes the butterfish mortality cap on the longfin squid fishery from a catch cap to a discard cap. If the Council specifies a butterfish quota that does not accommodate a directed fishery in future fishing years, it can change the butterfish discard cap to a catch cap as part of the specifications process.

This action also reduces the butterfish mortality cap for the 2013 fishing year by 13 percent (from 4,477 mt to 3,884 mt) to exclude butterfish landings that were previously included in the butterfish mortality cap allocation. NMFS has based this reduction on year-end butterfish mortality cap analyses for the 2011 fishing year, in which 13 percent of butterfish catch in the cap was retained, and 87 percent of butterfish catch in the cap was discarded. Although the total butterfish mortality allocation will decrease, NMFS expects the adjusted cap level to maintain overall butterfish mortality in the longfin squid fishery.

At the time the proposed rule for Framework 7 published, NMFS had not yet finalized the butterfish mortality cap allocation for 2013. Final Research Set-Aside (RSA) allocations for a given year are typically not available until final specifications, and the exclusion of the final RSA allocation results in slight decreases in a number of the specified allocations for a given species. We have since finalized in the 2013 MSB Specifications and adjusted the butterfish mortality allocation from 4,500 mt to 4,477 mt to account for allocated butterfish RSA.

The proposed rule included the 13-percent reduction to the mortality cap using the cap specified prior to final RSA allocation. For this final rule, we are adjusting the reduction of the mortality cap to include the RSA allocation. Thus, the final rule for Framework 7 applies the 13-percent discount to the butterfish mortality cap allocation presented in the final 2013 MSB Specifications (4,477 mt), which results in a 2013 butterfish mortality cap of 3,884 mt.

NMFS received one comment on the proposed rule for Framework Adjustment 7. The Garden State Seafood Association (GSSA), a New Jersey-based commercial fishing industry group, commented in support for the action and noted that it was consistent with the intent of Amendment 10 to limit butterfish discards and maintain the butterfish cap within the longfin fishery, while facilitating the directed butterfish fishery in 2013.

Response:NMFS agrees that the measures in Framework 7 will still limit butterfish discards in the longfin squid fishery. The measures implemented in the 2013 MSB Specifications facilitate the directed butterfish fishery, but this measure does allow additional landings of butterfish while on a directed longfin squid trip.

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 Atlantic Mackerel, Squid, and Butterfish FMP, other provision of the Magnuson-Stevens Act, and other applicable law.

The Assistant Administrator for Fisheries finds that the need to implement these measures in a timely manner to avoid premature closure of the longfin squid fishery constitutes good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in effective date. The 2013 MSB Specifications allocated a level of butterfish catch that may create enough butterfish market interest to cause a directed butterfish fishery for the first time in many years. This directed fishery is expected to be of the greatest value in late winter. If directed butterfish fishing increases without the measures included in this action, vessels that catch a high volume of butterfish on trips we determine to be longfin squid trips (i.e.,those trips that also land more than 2,500 lb of longfin squid), will cause the butterfish mortality cap in the longfin squid fishery to be quickly harvested, resulting in a premature closure of the longfin squid fishery. Because the measures in this action remove landed butterfish from the calculation of the longfin squid butterfish mortality cap, these measures would prevent such an early closure of the longfin squid fishery. A premature closure of the longfin squid fishery would be contrary to the public interest because it would cause unnecessary and unjustifiable economic harm to fishery participants.

Failure to implement this rule immediately will undermine NMFS' ability to accurately manage the butterfish resource by correctly estimating discards. This action has no other impacts on the fishing industry or other members of the public, and thus, the potential for closing the fishery during the normal 30-day delay in effectiveness would be contrary to public interest. Therefore, we are waiving the delay in effectiveness so that the final rule may be effective upon publication. Under MSA and other applicable law requirements, we have proceeded expeditiously with this action and factors out of our control resulted in the delay beyond the implementation of the 2013 MSB Specifications.

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

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. NMFS published the factual basis for this certification in the proposed rule and has not repeated it here. NMFS received no comments regarding this certification. As a result, NMFS was not required to prepare afinal regulatory flexibility analysis, and none has been prepared.