This final rule is issued under Marketing Agreement No. 97 and Marketing Order No. 948, both as amended (7 CFR part 948), regulating the handling of Irish potatoes grown in Colorado, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

The Department of Agriculture (USDA) is issuing this rule in conformance with Executive Order 12866.

This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have retroactive effect.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.

This final rule revises the minimum size requirement under the order. This rule changes the minimum size requirement from 17/8 inches in diameter to 2 inches in diameter or 4 ounces minimum weight for all varieties of potatoes, except for round varieties. This rule was recommended by the Committee at a meeting on June 25, 2009.

Section 948.22 authorizes the issuance of grade, size, quality, maturity, pack, and container regulations for potatoes grown in the production area. Section 948.21 further authorizes the modification, suspension, or termination of requirements issued pursuant to § 948.22.

Section 948.40 provides that whenever the handling of potatoes is regulated pursuant to §§ 948.20 through 948.24, such potatoes must be inspected by the Federal-State Inspection Service, and certified as meeting the applicable requirements of such regulations.

Under the order, the State of Colorado is divided into three areas of regulation for marketing order purposes. Area No. 1, commonly known as the Western Slope, includes and consists of the counties of Routt, Eagle, Pitkin, Gunnison, Hinsdale, La Plata, and all counties west thereof; Area No. 2, commonly known as the San Luis Valley, includes and consists of the counties of Sanguache, Huerfano, Las Animas, Mineral, Archuleta, and all counties south thereof; and, Area No. 3 includes and consists of all the remaining counties in the State of Colorado which are not included in Area No. 1 or Area No. 2. The order currently regulates the handling of potatoes grown in Areas No. 2 and No. 3 only; regulation for Area No. 1 is currently not active.

Grade, size, and maturity regulations specific to the handling of potatoes grown in Area No. 2 are contained in § 948.386 of the order.

On June 25, 2009, the Committee unanimously recommended changing the minimum size requirement from 17/8 inches to 2 inches in diameter or 4 ounces minimum weight for all varieties of potatoes, except for round varieties. This had been the industry standard in place prior to the 2008-2009 season. Because severe and adverse weather conditions in 2008 significantly decreased yields and damaged the crop, the Committee had recommended for the 2008-2009 marketing season that the minimum size be reduced from 2 inches in diameter or 4 ounces minimum weight to 17/8 inches in diameter for all varieties of potatoes, except round varieties. The Committee believes it is now appropriate to return to the size regulations that were in place prior to the 2008-2009 season.

The Committee believes that quality assurance is very important to the Colorado potato industry. Providing acceptable quality produce that is appealing to consumers on a consistent basis is necessary to maintain buyer confidence in the marketplace and improve producer returns.

Under this final rule, potatoes other than round varieties will meet the size requirement if they are at least 2 inches in diameter or 4 ounces in weight. Some long, thin potatoes might be smaller than 2 inches in diameter, but weigh at least 4 ounces. These potatoes will meet the revised size requirement. Some potatoes might weigh less than 4 ounces, but be at least 2 inches in diameter. These potatoes will also meet the revised minimum size requirement.

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS) has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.

There are approximately 72 handlers of Colorado Area No. 2 potatoes subject to regulation under the order and approximately 175 producers in the regulated production area. Small agricultural service firms are defined by the Small Business Administration (SBA) (13 CFR 121.201) as those having annual receipts of less than $7,000,000, and small agricultural producers are defined as those having annual receipts of less than $750,000.

During the 2007-2008 marketing year, 14,225,568 hundredweight of Colorado Area No. 2 potatoes were inspected under the order and sold into the fresh market. Based on an estimated average f.o.b. price of $12.05 per hundredweight, the Committee estimates that 61 Area No. 2 handlers, or about 85 percent, have annual receipts of less than $7,000,000. In view of the foregoing, the majority of Colorado Area No. 2 potato handlers may be classified as small entities.

In addition, based on information provided by the National Agricultural Statistics Service (NASS), the average producer price for Colorado potatoes for 2007 was $9.85 per hundredweight. The average annual fresh potato revenue for each of the 175 Colorado Area No. 2 potato producers is therefore calculated to be approximately $778,455. Consequently, on average, the majority of the Area No. 2 Colorado potato producers may not be classified as small entities.

This rule changes the minimum size requirement from 17/8 inches in diameter to 2 inches in diameter or 4 ounces minimum weight for all potato varieties, except round varieties. Authority for this action is contained in §§ 948.21 and 948.22.

NASS estimated planted acreage for the 2007 crop in Area No. 2 at 59,200 acres, a decrease of 700 acres when compared with 59,900 acres planted in 2006. Based on Committee records, 88.4 percent of Area No. 2 potatoes entered the fresh market during the 2007-2008 marketing year (including potatoes produced for seed). Of those potatoes, Russet or long potato varieties accounted for 88.3 percent.

Only a small portion of the crop is expected to be negatively affected by this minimum size increase (i.e., that portion of the crop, other than round varieties, smaller than 2 inches in diameter or 4 ounces minimum weight, but larger than 17/8 inches in diameter) and thus no longer meet order requirements. However, due to current customer demand, many handlers are already shipping potatoes that measure 2-inches or greater. The Committee believes that the expected benefits of improved quality, increased purchases and sales volume, and increased returns received by producers will greatly outweigh the costs related to the regulation.

The Committee discussed alternatives to this rule. One alternative included making no change at all to the current regulation. However, the Committee did not believe this alternative would have met the needs of buyers or provided any benefit to the industry. The Committee believes that the change will increase returns to producers while supplying the market with a higher percentage of larger high quality potatoes.

This final rule changes the size requirement for all varieties of potatoes, except for round varieties. Accordingly, this action will not impose any additional reporting or recordkeeping requirements on either small or large potato handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.

AMS is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

As noted in the initial regulatory flexibility analysis, USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this final rule.

In addition, the Committee's meeting was widely publicized throughout the Colorado Area No. 2 potato industry and all interested persons were invited to attend the meeting and participate in Committee deliberations on all issues. Like all Committee meetings, the June 25, 2009, meeting was a public meeting and all entities, both large and small, were able to express views on this issue.

A proposed rule concerning this action was published in the Federal Register on November 23, 2009 (74 FR 61053). Copies of the rule were e-mailed or sent via facsimile to all Committee members and potato handlers. Finally, the rule was made available through the Internet by USDA and the Office of the Federal Register. A 15-day comment period ending December 8, 2009, was provided to allow interested persons to respond to the proposal. No comments were received.

A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/AMSv1.0/ams.fetchTemplateData.do?template=TemplateN&page=MarketingOrdersSmallBusinessGuide. Any questions about the compliance guide should be sent to Jay Guerber at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

After consideration of all relevant matter presented, including the information and recommendation submitted by the Committee and other available information, it is hereby found that this rule, as hereinafter set forth, will tend to effectuate the declared policy of the Act.

It is further found that good cause exists for not postponing the effective date of this rule until 30 days after publication in the Federal Register (5 U.S.C. 553) because handlers are already shipping potatoes from the 2009-2010 crop. Further, handlers are aware of this rule, which was recommended at a public meeting. Also, a 15-day comment period was provided for in the proposed rule.

This final rule is also accessible at http://www.gpoaccess.gov/fr.

On May 22, 2009, NMFS published a proposed rule in the Federal Register (74 FR 23965) that would add regulations at 50 CFR part 300, subpart O, in order to implement certain provisions of the Convention and decisions of the WCPFC. The proposed rule was open to public comment through June 22, 2009.

This final rule is implemented under authority of the WCPFC Implementation Act (16 U.S.C. 6901 et seq.), which authorizes the Secretary of Commerce, in consultation with the Secretary of State and the Secretary of the Department in which the United States Coast Guard is operating (currently the Department of Homeland Security), to promulgate such regulations as may be necessary to carry out the obligations of the United States under the Convention, including the decisions of the WCPFC. The authority to promulgate regulations has been delegated to NMFS.

The proposed rule includes additional background information, including information on the Convention and the WCPFC, the international obligations of the United States under the Convention, and the basis for the proposed regulations.

This final rule establishes the following requirements:

Owners or operators of U.S. vessels used for commercial fishing for highly migratory species (HMS) on the high seas in the Convention Area will be required to obtain a new NMFS-issued fishing authorization, called a “WCPFC Area Endorsement.” The definition of fishing will include, consistent with its definition under the WCPFC Implementation Act, receiving fish from another fishing vessel and bunkering or otherwise supplying or supporting a vessel that engages in fishing. Thus, carriers that receive HMS from another vessel, vessels that bunker vessels used to fish for HMS, and vessels that engage in operations at sea directly in support of, or in preparation for, fishing or transshipping by other vessels will also be subject to this and other requirements of the final rule. This new authorization will be issued by the Regional Administrator of NMFS, Pacific Islands Region, supplemental to, and as an endorsement on, the permits issued under the authority of the High Seas Fishing Compliance Act of 1995 (HSFCA; 16 U.S.C. 5501 et seq.) (hereafter, “high seas fishing permits;” see 50 CFR 300.13). The prerequisites to obtaining a WCPFC Area Endorsement will be: (1) Having a valid high seas fishing permit (or simultaneously applying for one); (2) submitting a complete application (see the next item, “vessel information”); and (3) paying the required administrative fee. The application form will be designed as a supplement to the application for a high seas fishing permit. The WCPFC Area Endorsement will become void upon expiration, suspension, or revocation of the underlying high seas fishing permit. The WCPFC Area Endorsement is also subject to suspension or revocation independent of the high seas fishing permit. Holding a WCPFC Area Endorsement will trigger a number of other requirements, as described in the elements that follow.

Vessel owners and operators that apply for WCPFC Area Endorsements will be required to submit to NMFS, in their application forms for WCPFC Area Endorsements, specified information about the vessel and its operator (i.e., the master on board and in charge of the vessel) that is not already collected via the high seas fishing permit application. This information includes the name and nationality of the vessel operator (or operators); all communication types used on the vessel (e.g., single sideband radio, voice Inmarsat, fax Inmarsat, e-mail Inmarsat, telex Inmarsat, or other type of satellite telephone), along with the communication service used and the identifying/contact number for each; the fishing methods used or intended to be used; the vessel's fish hold capacity, expressed in terms of either cubic meters or short tons; and the vessel's refrigeration and freezer capacity, including the types of refrigeration and freezer systems on board, the number of refrigeration and freezer units of each type, and the total refrigerating or freezing capacity of each type of system.

In addition, a bow-to-stern side-view photograph of the vessel that shows the vessel in its current form and appearance and that is no older than five years will have to be submitted to NMFS. The photograph can be in either paper or electronic format and must meet certain minimum specifications in terms of its size and resolution and the legibility of the vessel markings. Although the international radio call sign assigned to a given vessel is already collected in high seas fishing permit applications, an indication of whether or not an international radio call sign has been assigned to the vessel, and if so, the call sign itself, will have to be submitted to NMFS by applicants for WCPFC Area Endorsements. This is because of the importance under the Convention of a vessel's international radio call sign (e.g., see paragraph below on “vessel identification”) and NMFS' need to verify that the collected information is accurate. WCPFC Area Endorsement holders will have to submit to NMFS any subsequent changes to the submitted information within 15 days of the change.

In addition, owners or operators of any U.S. vessel used for fishing for HMS in the Convention Area in areas under the jurisdiction of any nation other than the United States (i.e., vessels for which a WCPFC Area Endorsement will not necessarily be required) will be required to submit to NMFS information about the vessel, its owners and operators and any fishing authorizations issued by such other nations. Specifically, all the information specified in the application for high seas fishing permits and in the application for WCPFC Area Endorsements will be required, as well as, for each fishing authorization issued by a nation or political entity other than the United States, the name of the nation or political entity, the name of the issuing authority, the authorization type, the period of validity, the specific activities authorized, the species for which fishing is authorized, the areas in which fishing is authorized, and any unique identifiers assigned to the authorization. Copies of any such fishing authorizations will also have to be submitted to NMFS. This information will be collected via a new form (hereafter, “Foreign EEZ Form”) designed for this purpose, and vessel owners/operators will be required to submit to NMFS any subsequent changes to the submitted information within 15 days of the change.

The collected information referred to above will be incorporated by NMFS into a record of U.S. fishing vessels authorized to be used for commercial fishing for HMS in the Convention Area beyond areas of U.S. jurisdiction. In accordance with the Convention, NMFS will keep this record updated and share it with the WCPFC, which will combine it with the records of its other Members and Cooperating Non-Members and make it publicly available via its Web site and other means.

Owners and operators of vessels with WCPFC Area Endorsements will be required to have installed, activate, carry and operate vessel monitoring system (VMS) units (also known as “mobile transmitting units”) that are type-approved by NMFS, and authorize the WCPFC and NMFS to receive and relay transmissions (also called “position reports”) from the VMS unit to the WCPFC and to NMFS. The WCPFC and NMFS will use the position reports as part of their respective VMS. Activation of a VMS unit will be required any time the unit is installed or reinstalled, any time the mobile communications service provider has changed, and any time directed by NMFS. Activation will involve submitting to NMFS a report (“activation report”) via mail, facsimile or e-mail with information about the vessel, its owner or operator, and the VMS unit, as well as receiving confirmation from NMFS that the VMS unit is transmitting position reports properly. The VMS unit will have to be turned on and operating (i.e., transmitting automated position reports) at all times while the vessel is at sea, both inside and outside the Convention Area. The VMS unit may be turned off while the vessel is in port, but only if the vessel operator notifies NMFS via mail, facsimile or e-mail prior to such shut-down. In such cases, NMFS must also be notified when the VMS unit is subsequently turned back on (these two types of notifications are called “on/off reports”), and the vessel operator must receive confirmation from NMFS that the VMS unit is functioning properly prior to leaving port. In the case of failure of the VMS unit while at sea, the vessel operator will be required to contact NMFS and follow the instructions provided by NMFS, which could include, among other actions: Submitting position reports at specified intervals by other means, ceasing fishing, stowing fishing gear, and/or returning to port; and repairing or replacing the VMS unit and ensuring it is operable before starting the next trip. To facilitate communication with management and enforcement authorities about the functioning of the VMS unit and for other purposes, operators of vessels with WCPFC Area Endorsements will be required to carry on board and continuously monitor while at sea a two-way communication device capable of real-time communication with NMFS in Honolulu. For the purpose of submitting position reports that might be required in the case of VMS unit failure, vessel operators must also carry on board a communication device capable of transmitting communications by telephone, facsimile, e-mail, or radio to the WCPFC in Pohnpei, Micronesia, while the vessel is on the high seas in the Convention Area.

The vessel owner and operator will be responsible for all costs associated with the purchase, installation and maintenance of the VMS unit, and for all charges levied by the mobile communications service provider as necessary to ensure the transmission of automatic position reports to NMFS. However, if the VMS unit is being carried and operated in compliance with the requirements in 50 CFR parts 300, 660, or 665 relating to the installation, carrying, and operation of VMS units, the vessel owner and operator will not be responsible for costs that are the responsibility of NMFS under those regulations. In addition, the vessel owner and operator will not be responsible for the costs of transmitting the automatic position reports to the WCPFC.

NMFS publishes separately type-approval lists of VMS units. The current type-approval lists can be obtained from the NOAA Office of Law Enforcement, 8484 Georgia Avenue, Suite 415, Silver Spring, MD 20910; by telephone at 888-210-9288; or by fax at 301-427-0049.

This final rule is worded so as to avoid duplication with other VMS requirements, such as those established under the Magnuson-Stevens Fishery Conservation and Management Act (MSA; 16 U.S.C. 1801 et seq.) and the South Pacific Tuna Act of 1988 (SPTA; 16 U.S.C. 973-973r). Compliance with the existing VMS requirements at 50 CFR parts 300, 660, and 665 will satisfy this new requirement, provided that the VMS unit is type-approved by NMFS specifically for fisheries governed under the WCPFC Implementation Act, the VMS unit is operated continuously at all times while the vessel is at sea, the vessel owner and operator have authorized the WCPFC and NMFS to receive and relay transmissions from the VMS unit, and the requirements in case of VMS unit failure are followed.

The operator of a vessel with a WCPFC Area Endorsement will be required to accept on board and accommodate observers deployed as part of the WCPFC “Regional Observer Programme” (WCPFC ROP) on fishing trips that are partially or fully in the Convention Area. Such observers include persons designated by the WCPFC Secretariat, by the United States or by other Members of the WCPFC. Persons will be designated as WCPFC observers by the United States or other WCPFC Members only if the national or sub-regional observer program that deploys such observers has been authorized by the WCPFC to be a part of the WCPFC ROP. Once an observer program of NMFS is determined by the WCPFC to meet specified minimum standards and incorporated into the WCPFC ROP, relevant data collected in the NMFS program will be submitted to the WCPFC and maintained and used by the WCPFC as data in its larger WCPFC ROP.

The preamble to the proposed rule inaccurately stated that the observer requirements would also apply to vessels used in areas under the jurisdiction of another Member of the WCPFC. This final rule clarifies that the observer requirements apply only to vessels that have, or are required to have, WCPFC Area Endorsements.

It is anticipated that the NMFS observer program operating out of Honolulu, Hawaii, and Pago Pago, American Samoa, will be among the first national observer programs to be authorized to be part of the WCPFC ROP. The NMFS observer program currently has interim authorization until July 1, 2012, and full authorization is anticipated after a successful audit of the program. Accordingly, NMFS expects there to be little, if any, change in the placement of observers on vessels in the longline fleets based in Hawaii and American Samoa. The WCPFC Secretariat may place an occasional observer as part of an auditing process to ensure that national and sub-regional observer programs are operating up to WCPFC standards.

It is also anticipated that U.S. purse seine vessels operating under the SPTA will continue to carry observers from the Pacific Islands Forum Fisheries Agency (FFA) observer program (a sub-regional observer program). If the FFA is unable to provide observers to meet increased coverage levels mandated by the WCPFC, those vessels may make other arrangements to obtain WCPFC-approved observers.

The responsibilities of vessel operators and crew members with respect to observers will include allowing and assisting observers to do the following: embark and disembark at agreed times and places; have access to and use of all facilities and equipment on board that are necessary to conduct observer duties; remove samples; and carry out all duties safely. The vessel operator also will be responsible for providing observers, while on board the vessel, with food, accommodation and medical facilities of a reasonable standard equivalent to those normally available to an officer on board the vessel. In the case of longline vessels in the Hawaii and American Samoa fleets, however, costs incurred for providing subsistence for NMFS observers will be eligible for reimbursement, as currently provided at 50 CFR Part 665.

Vessels with WCPFC Area Endorsements will be required to be marked in accordance with the Convention's requirements, which are based on the FAO Standard Specifications for the Marking and Identification of Fishing Vessels. Specifically, if assigned an international radio call sign (IRCS), the port and starboard sides of a vessel's hull or superstructure, as well as a deck, will have to be marked with the IRCS; if not assigned an IRCS, they will have to be marked with the vessel's official number (i.e., USCG documentation number or state or tribal registration number), preceded by the characters “USA” and a hyphen. In both cases, the specified marking will be the only allowable marking on the hull or superstructure apart from the vessel's name and hailing port. The markings will have to be placed so that they are clear, distinct, uncovered, and unobstructed. Any boats, skiffs, or other watercraft that are carried on board the vessel also will have to be marked with the same identifier as the fishing vessel. For some affected vessels, this marking requirement will conflict with other existing vessel marking requirements, such as those at 50 CFR 300.14 (under the HSFCA; applicable to vessels used for fishing on the high seas), 50 CFR 300.173 (under the legislation implementing the U.S.-Canada Albacore Treaty; applicable to vessels used for fishing under that treaty), 50 CFR 660.704 (under the MSA; applicable to vessels in West Coast HMS fisheries), and 50 CFR 665.16 (under the MSA; applicable to vessels in western Pacific fisheries). Accordingly, with respect to the vessel identification requirements at 50 CFR 300.14, this final rule will slightly modify those requirements to make them consistent with this new requirement. With respect to the vessel identification requirements at 50 CFR 665.16, NMFS has issued a proposed rule (74 FR 34707; July 17, 2009) to revise those requirements such that they do not conflict with the requirements of this final rule. NMFS anticipates issuing the final rule for that action nearly concurrently with this final rule, in which case there will be no conflict. With respect to the vessel identification requirements at 50 CFR 300.173 and 660.704, no regulatory action to revise those requirements has been undertaken to date, so the vessel identification requirements in this final rule are written such that they will not apply to fishing vessels subject to the requirements of either 50 CFR 300.173 or 660.704 until the conflicts have been reconciled and a notice to that effect has been published in the Federal Register.

Offloading fish from a U.S. purse seine vessel or using a U.S. fishing vessel to receive fish from a purse seine vessel at sea in the Convention Area will be prohibited. Transshipping at sea is already regulated for U.S. purse seine vessels licensed under the SPTA.

The owner or operator of any U.S. vessel used for commercial fishing for HMS anywhere in the Pacific Ocean will be required to maintain and submit to NMFS information on fishing effort and catch. The final rule was developed to avoid duplication with other effort and catch reporting requirements, particularly those established under the MSA, the HSFCA, the Tuna Conventions Act of 1950 (16 U.S.C. 951-961 et seq.), the SPTA, and the implementing legislation for the U.S.-Canada Albacore Treaty, as well as relevant State reporting requirements. Specifically, compliance with other existing reporting requirements will satisfy the new reporting requirement established in this final rule. The main effect of these new reporting requirements is to collect fishing effort and catch information under the authority of the WCPFC Implementation Act, which will enable NMFS to meet the reporting requirements of the WCPFC in accordance with the Convention and the decisions of the WCPFC. Confidentiality of information will be protected and handled by NOAA as required under U.S. laws, including the WCPFC Implementation Act and the regulations established in this final rule (see element 10 below). Once the information is submitted by NOAA to the WCPFC, it will be handled in accordance with policies and procedures adopted by the WCPFC.

A vessel with a WCPFC Area Endorsement will be prohibited from being used for fishing in areas under the jurisdiction of another nation unless it holds any license, permit or authorization that may be required by such nation to do so. When a vessel with a WCPFC Area Endorsement operates in the Convention Area in areas under the jurisdiction of a Member of the WCPFC other than the United States, it will have to be operated in compliance with the laws of that Member.

Additionally, the owner and operator of any U.S. fishing vessel used in the Convention Area in an area under the jurisdiction of another Member of the WCPFC, if used for fishing for, retaining on board or landing HMS, will be required to comply with the relevant laws of that Member, including any laws related to the use of VMS units.

It will be the responsibility of vessel owners and operators to ascertain the applicable laws and requirements of WCPFC members.

The operator and crew of a vessel with a WCPFC Area Endorsement, when in the Convention Area, will be subject to the following requirements:

• Carry on board any fishing authorizations issued by another nation or political entity, or copies thereof, and make them available to specified authorities, depending on the area of jurisdiction the vessel is in;

• Continuously monitor the international safety and calling radio frequency (156.8 MHz; Channel 16, VHF-FM) and, if equipped to do so, the international distress and calling radio frequency (2.182 MHz);

• Carry on board a copy of the International Code of Signals; and

• When engaged in transshipment, allow and assist transshipment monitors authorized by the WCPFC (if on the high seas) or other Members of the WCPFC (if within their areas of jurisdiction) to inspect the vessel and gather information and samples.

In addition, the operator of any U.S. fishing vessel that is used for commercial fishing for HMS, when present in the Convention Area in an area in which it is not authorized to fish (e.g., on the high seas without a valid WCPFC Area Endorsement or in an area under the jurisdiction of another nation without an authorization from that nation to fish in the area), will be required to stow all fishing gear and equipment so such materials are not readily available for fishing.

Further, the operator of any U.S. fishing vessel (regardless of the species for which it is used to fish), when on the high seas in the Convention Area, will be required to accept and assist boarding and inspection by authorized inspectors of other Contracting Parties to the Convention and of fishing entities that have agreed to be bound by the regime established by the Convention, provided that such boarding and inspection is undertaken in conformance with the WCPFC's adopted procedures. At present, Chinese Taipei (Taiwan) is the only fishing entity that has agreed to be bound by the regime established by the Convention.

As mandated by the WCPFC Implementation Act, the final rule includes procedures designed to preserve the confidentiality of information submitted in compliance with the WCPFC Implementation Act and its implementing regulations. In accordance with the Convention, the procedures allow for the disclosure of confidential information to the WCPFC. Once such information is held by the WCPFC, access to the information will be governed by the policies and procedures adopted by the WCPFC.

Public comments on the proposed rule, organized by subject, are summarized below, with responses from NMFS.

Comment 1: NMFS proposes to charge $25 (or $5 per year) for the WCPFC Area Endorsement. Although this is a small amount relative to vessel revenues, NMFS does not provide adequate reasoning of why or how this amount will recoup administrative costs, resulting in the perception of NMFS attempting to “nickel and dime” U.S. fishing vessels. NMFS should not charge any fees for WCPFC Area Endorsements, but if NMFS insists, then it should describe in the final rule or EA how the total amount of monies received from area endorsement applications would offset administrative costs.

Response: NMFS does not agree that an application fee should not be charged for WCPFC Area Endorsements. As stated in footnote 63 of the EA, the cost estimates for the application fee are based on the administrative cost burden incurred by NMFS, which is derived from agency practice and experience. The fee has been calculated in accordance with the NOAA Finance Handbook to recover the administrative costs of administering the permit program for WCPFC Area Endorsements, as authorized under section 506 of the WCPFC Implementation Act.

Comment 2: The new information that will be solicited from vessel owners, including nationality of vessel master, vessel communication types, type of fishing or method, color photograph of the vessel, and carrying capacity, including freezer type, capacity and number, and fish hold capacity, could generate confusion regarding the units of measurement related to capacity, as well as confusion on the level of detail of the required information. NMFS should produce a comprehensive compliance guide for vessel owners to follow.

Response: Clear instructions on the level of detail required, as well as the measurement units, will be included in the forms used to collect the required information. The requirements are also explained in the small entity compliance guide that has been prepared for this final rule, available at: http://www.fpir.noaa.gov/IFD/ifd_documents_data.html.

Comment 3: In 50 CFR 300.212(g) and 300.213(a) the proposed regulations call for any changes to vessel information to be reported to the NMFS Pacific Islands Regional Administrator within 15 days of the change. This requirement would be burdensome; 30 days would be much more manageable.

Response: The proposed 15-day requirement is necessary to satisfy the provisions of the Convention and decisions of the WCPFC with respect to the obligations of the United States to notify the WCPFC of changes to information associated with U.S.-flagged vessels authorized to fish in the Convention Area. Furthermore, the proposed 15-day requirement is consistent with the existing, related, 15-day requirement for changes to application information for permits issued under the HSFCA (50 CFR 300.13(g)). The requirement at proposed section 300.212(g) relates to application information for a WCPFC Area Endorsement, which would be issued supplemental to, and as an endorsement on, a permit issued under the HSFCA.

Comment 4: The proposed rule includes a requirement in § 300.219(c)(3)(iii) that prior to leaving port, a vessel owner and operator must “receive verbal or written confirmation from NMFS that proper transmissions are being received from the VMS unit.” The lack of availability of staff in the NOAA Office of Law Enforcement, Pacific Islands Division (“OLE-PID”), may cause an unreasonable loss of fishing time for fishing vessels, which do not operate on a 9 a.m. to 5 p.m. basis and operate in various time zones. There should be a system that allows confirmation of VMS unit operation outside the regular office hours of OLE-PID. One suggestion is to allow a vessel to contact, and receive confirmation from, a representative of the VMS unit manufacturer, after which the vessel could contact and receive confirmation from OLE-PID once it opens for business.

Response: The referenced requirement applies in the case that the vessel owner and operator have chosen to shut down the VMS unit while at port or otherwise not at sea. NMFS recognizes that the office hours of OLE-PID are somewhat constraining, but notes that the owner and operator of a fishing vessel need not wait until immediately prior to the port departure time to turn on the VMS unit and submit the on/off report to NMFS. In order to provide a few additional hours each day for these communication purposes, NMFS has made a revision to the final rule such that vessel owners and operators may submit the VMS unit on/off reports to, and receive confirmations from, either OLE-PID or the NOAA Office of Law Enforcement's VMS Helpdesk. The contact information and business hours for the latter are: telephone: 888-219-9228; e-mail: ole.helpdesk@noaa.gov; 7 a.m. to 11 p.m., Eastern Time.

Comment 5: Under the proposed rule, if a VMS unit fails while the vessel is at sea, the vessel owner, operator, or designee must contact OLE-PID by telephone, facsimile, or e-mail at the earliest opportunity during OLE-PID's business hours, identify the caller and vessel, and follow the instructions given by OLE-PID, which could include ceasing fishing, stowing fishing gear, returning to port, and/or submitting periodic position reports at specified intervals by other means. We expect that OLE-PID will be reasonable in the instructions it gives in these cases.

Response: In determining what instructions to give to the operator of a fishing vessel whose VMS unit has failed while at sea, OLE-PID would take into account the specific circumstances of the case, and determine the appropriate course of action consistent with this rule.

Comment 6: Given that albacore troll and baitboats are small, have little problems with bycatch, enforcement issues, or gear conflicts, land nearly all their fish on the U.S. west coast and document their catch in logbooks, and there are few marine protected areas in offshore regions where U.S. albacore troll vessels operate, how effective and useful will the required VMS data be?

Response: The United States is obligated, as a Contracting Party to the Convention, to implement Article 24 of the Convention, which calls for each WCPFC member to require that its fishing vessels used to fish for highly migratory fish stocks on the high seas in the Convention Area use near real-time satellite position-fixing transmitters while in such areas. In addition, NMFS believes that requiring U.S. albacore troll vessels to carry VMS units would provide important information that will aid in scientific and compliance-related purposes.

Comment 7: Why is it proposed that the VMS units have to be turned on 365 days per year? A declaration of departure and a check to see if the VMS unit is on should serve the purpose.

Response: Under the proposed rule, as well as this final rule, the VMS unit can be shut down while the fishing vessel is at port or otherwise not at sea, provided that NMFS is notified both in advance of the shut-down and upon turning the VMS unit back on, and that prior to subsequently leaving port, the vessel owner and operator receive verbal or written confirmation from NMFS that proper transmissions are being received from the VMS unit.

Comment 8: If the United States is requiring VMS units under the Convention then NOAA should pay for installation as in other fisheries. The U.S. albacore fleet is in economic distress and is an important component of the coastal rural economy; any new fees at this time would be detrimental to the family-owned U.S. albacore fleet and community at this time.

Response: NMFS is indeed requiring that VMS units be carried in order to implement the provisions of the Convention, and NMFS recognizes that the proposed VMS requirements would bring new costs to businesses that operate HMS fishing vessels in the Convention Area. NMFS does not agree that the U.S. Government is responsible for covering the cost of coming into compliance with this rule, but notes that it has conducted an analysis of the impact of this rule on small entities, in accordance with the Regulatory Flexibility Act (see IRFA and FRFA). In addition, fishermen may be eligible for full or partial reimbursement for the required purchase costs of authorized VMS units, to the extent appropriations allow. Questions concerning reimbursement eligibility can be directed to the NOAA Office of Law Enforcement VMS Support Center at 888-219-9228, and further information is available on the Web site of the Pacific States Marine Fisheries Commission: http://www.psmfc.org/Vessel_Monitoring_System.

Comment 9: According to the proposed rule and EA, 73 vessels would have to buy, install, and maintain VMS units as well as pay for VMS transmission costs. This would cost approximately up to $1,775 [per vessel] per year or $7,100 over the course of four years, which is a VMS unit's general lifespan. It does not make sense to break out the VMS unit cost by year, as the VMS unit itself costs approximately $4,000. The EA does not describe whether NMFS has pursued government funding to cover these costs for the 73 affected vessels. NMFS should find government funding to make this requirement equitable amongst fishery participants—the Western Pacific Regional Fishery Management Council strongly believes that NMFS should pay for the VMS costs for the two longline vessels operating out of the Commonwealth of the Northern Mariana Islands (CNMI), as well as for the albacore troll fleet. Furthermore, the proposed rule would require albacore trolling vessels to continue to transmit their VMS positions while fishing in the eastern Pacific Ocean (EPO). This seems particularly onerous and costly for this fleet, especially since the proposed rule is in response to WCPFC measures. The proposed rule would also require that vessel operators provide NMFS with a notice when they power down in port and shut off power supply to their VMS unit. Vessel operators would also have to inform NMFS that they have powered back on and that they are going on a fishing trip. As this is not current practice, NMFS will need to develop a detailed outreach plan to inform fishery participants.

Response: With respect to breaking out the VMS unit costs by year, NMFS annualized the estimated cost of purchasing and installing a VMS unit in order to express expected compliance costs in terms that could be compared with, and added to, the compliance costs of other aspects of the proposed requirements—that is, in annual terms (the annualized cost of a VMS unit that costs $4,000 to purchase and install and that has a lifespan of four years would be about $1,000).

With respect to who should pay the costs of the VMS-related requirements, NMFS does not agree that NMFS or the U.S. Government is responsible for covering the costs, but notes that vessel owners might be eligible for reimbursement for the cost of VMS units under a program administered by the NOAA Office of Law Enforcement (for more information, see the response to comment 8, above).

With respect to the costs and burden of having to transmit position reports via VMS while a vessel is fishing in the EPO, outside the Convention Area, NMFS considered alternatives that would not require such reporting (see the IRFA, FRFA, EA, and RIR, particularly Alternatives B and C in the latter two). Position reports will cost about $1.50 per day, so the annual VMS-related compliance costs of Alternative B, which would require position reports to be transmitted only while the vessel is on the high seas in the Convention Area, would be about $105-$285 less than under the proposed rule for albacore troll vessels, depending on where they fish. However, allowing the VMS unit to be turned on and off depending on where at sea the vessel is would make it more difficult to ensure that position reports are transmitted while in the Convention Area, which would reduce the effectiveness of the VMS. For that reason, NMFS believes that the benefits of the preferred alternative of requiring position reports everywhere at sea outweigh the burden.

With respect to informing fishery participants about these new VMS-related requirements, NMFS does not intend to prepare an “outreach plan,” but it has prepared a small entity compliance guide, available at http://www.fpir.noaa.gov/IFD/ifd_documents_data.html, for this purpose, and NMFS will use various means to reach out to fishery participants to ensure they are aware of the new requirements.

Comment 10: The Western Pacific Regional Fishery Management Council strongly believes that NMFS should pay for the observer costs for the two longline vessels operating out of the CNMI, as well as for the albacore troll fleet.

Response: NMFS has analyzed the costs of accommodating observers in the IRFA and has assessed its impacts on small entities. NMFS believes that these costs are reasonable and properly should be borne by vessels that accept the benefits of commercial fishing for HMS in the Convention Area.

Comment 11: The EA is unclear on why alternatives were not identified or considered for implementation of the WCPFC observer program. The VMS category considered alternatives that would trigger VMS requirements if certain temporal and spatial characteristics were met. However, similar alternatives were [not] considered for the vessel observer program category. The EA does not provide any explanation on why NMFS has no discretion in implementing the WCPFC observer program. The observer requirements could be especially onerous for U.S. albacore fishermen who fish on relatively small vessels, and no reason is provided for potentially requiring them to carry observers when they may not be fishing in the Convention Area. NMFS should include and analyze this alternative that would avoid this situation in the Final EA.

Response: The observer requirements in the rule implement the specific requirements of the WCPFC ROP set forth in Article 28 of the Convention. The requirements will apply to any U.S. vessel used for commercial fishing for HMS on the high seas in the Convention Area (i.e., a vessel that has, or that is required to have, a WCPFC Area Endorsement). As explained below, NMFS has clarified in this final rule that fishing vessels with WCPFC Area Endorsements will be required to accept and accommodate observers only on trips that take place partially or fully in the Convention Area. The compliance costs for the observer requirements have been estimated accordingly, as described in the RIR and IRFA and summarized in the EA.

Chapters 1 and 2 of the EA set forth the discretionary provisions of the rule and the alternatives analyzed in the EA, while Appendix I of the EA describes the non-discretionary provisions of the rule. NMFS characterized the discretionary provisions as those for which reasonable and feasible alternatives could be considered and analyzed. As discussed in more detail in the response to Comment 27, below, the EA discussed the environmental impacts that could be caused by the non-discretionary provisions of the rule as part of the cumulative impacts analysis. The purpose of the rule is for NMFS to develop and promulgate domestic fishery regulations to implement the provisions of the Convention that are ready for implementation, while the need for the rule is to satisfy the obligations of the United States under the Convention. Thus, alternatives that would impose requirements on vessel owners and operators that would go beyond the requirements specified under the Convention would be outside the scope of this rule. Correspondingly, alternatives that would impose requirements on vessel owners and operators that would be less restrictive than the requirements specified under the Convention would not meet the purpose of and need for the rule. NMFS did consider alternatives for the VMS requirements that would apply on broader temporal and spatial scales than the VMS requirements specified in the Convention. However, these alternatives were considered primarily in terms of their capability to enhance the enforcement of and compliance with the VMS requirements specified in the Convention, concerns not applicable to the observer requirements. Alternatives to the observer requirements set forth in the rule, such as an alternative that would require vessels with WCPFC Area Endorsements to carry observers when operating outside of the Convention Area, or an alternative that would allow particular vessels to operate without observers, would either exceed the scope of the rule or not meet the purpose of and need for the rule.

Comment 12: With respect to the proposed vessel observer requirements, a clear list of questions that observers may appropriately ask should be developed and provided to vessel management, vessel operators, and observers. The proposed rule spells out the responsibilities of vessel operators and crew with respect to accommodating observers, but little information is provided on the expected behavior and responsibilities of observers.

Response: This final rule does not establish any new reporting requirements with respect to WCPFC observers.

With regard to the expected behavior and responsibilities of observers, under the WCPFC ROP, WCPFC observers must be trained to specified minimum standards, and they are obligated to behave and perform in conformance with principles and guidelines specified in the WCPFC Conservation and Management Measure for the Regional Observer Programme (Conservation and Management Measure 2007-01, available at: http://www.wcpfc.int/conservation-and-management-measures). In the case that a WCPFC observer is deployed as part of a NMFS observer program, NMFS would work to ensure that the observer behaves and performs in conformance with those principles and guidelines. If the WCPFC observer is deployed under some other program, such as the FFA observer program, NMFS would work with the personnel in that program, as well as in the WCPFC, to ensure, to the extent possible, that that program's observers behave and perform in conformance with the principles and guidelines established in the WCPFC ROP.

Comment 13: In order to provide timely feedback to vessel operators, which would improve their observer responsibilities, observers should be debriefed at the end of each fishing trip, such as by NMFS staff in the presence of the vessel captain.

Response: NMFS agrees that debriefings are important and should be an element of the WCPFC ROP. However, WCPFC observers are not necessarily deployed by NMFS or otherwise in the employ of the U.S. Government, so NMFS is not able to mandate that observer debriefings occur or that vessel captains be allowed to attend such debriefings. Instead, such provisions would have to be incorporated into the WCPFC ROP, the applicable provisions of which NMFS would then implement as needed. As part of U.S. delegations to the WCPFC, NMFS will keep this comment under consideration as the WCPFC further develops the WCPFC ROP.

Comment 14: The cost of carrying an observer is estimated in the IRFA to cost $20 per day, which, at a 5% coverage rate, would total $350 per trip, depending on the length of the trip. But because albacore vessels operating west of 150° W. long. would be at sea for 25 to 100 days, the cost would be more like $400 to $2,000 per trip. These costs should be clarified and a cap of $350 per trip should be considered.

Response: It is stated in the IRFA that at a daily cost of $20, a 5% coverage rate, and 170 to 350 days at sea per year, the annual (not per-trip) cost would be $170 to $350. This is an estimate of average annual costs; the cost would be greater in a year in which a vessel was required to carry an observer on more than 5% of its sea-days, and the cost would be less in a year in which the vessel was required to carry an observer on less than 5% of its sea-days. The estimated cost of an observed trip 100 days long would indeed be about $2,000, as indicated by the commenter. NMFS believes it to be appropriate that vessel owners and operators bear the entirety of these costs and that a cap is not appropriate.

Comment 15: Most albacore vessels are small compared to longline and purse seine vessels; a typical vessel operating west of 150° W. long. would be 50-100 feet in length and have a crew of 2-3 persons; most of the vessels in the 50-65-foot range have limited space for observers, especially on extended trips.

Response: NMFS recognizes that some fishing vessels have limited space and small crew sizes. If NMFS determines that deploying an observer on a particular vessel would compromise the safety of the observer or the vessel crew, it would not deploy the observer.

Comment 16: Considering that albacore troll vessels may be at sea for 25 to 100 days at a time and operate in a fishery with virtually no environmental or regulatory impacts, how practical is it to carry an observer?

Response: One of the purposes of deploying observers under the WCPFC ROP is to gather information that can be used to characterize fishing activities and their impacts on living marine resources. As more information is gathered and better characterizations are developed in a given fishery, such as the albacore troll fishery, NMFS expects that the coverage rate in that fishery would be adjusted by the WCPFC accordingly.

Comment 17: Albacore troll vessels operate at least 7-10 days away from any harbor and travel at only 7-9 knots; aborting a trip because of a health or other problem with an observer would be problematic; who would reimburse the vessel for potentially two to three weeks of lost time?

Response: NMFS recognizes that there may be instances in which the presence of an observer on board a fishing vessel could influence the course of a fishing trip. NMFS, however, believes that these occurrences will be rare. Accordingly, the final rule does not include any provisions for reimbursing or otherwise compensating vessel owners or operators for any losses incurred in such instances.

Comment 18: The proposed vessel identification requirements, which in the case of a vessel that has not been assigned an international radio call sign require that the vessel's Federal, State or other documentation number be preceded by the letters “USA”, might be a problem for some smaller albacore vessels because of space, particularly given that under the U.S.-Canada Albacore Treaty U.S. vessels are already required to put a “U” after the vessel's U.S. Coast Guard Documentation number or state registration number.

Response: The rule specifies minimum heights of the letters and numbers to be marked on the vessel that are proportional to the length of the vessel. The rule also specifies minimum widths of strokes, minimum hyphen lengths, and minimum sizes of the spaces between letters and numbers, all of which are expressed in terms of the letter height. In other words, the size specifications for the vessel markings explicitly take boat length into consideration.

It should also be noted that the vessel identification requirements under the U.S.-Canada Albacore Treaty (at 50 CFR 300.173) conflict with the vessel identification requirements established in this rule, and because of that, the requirements in this rule will become effective only when the requirements at 50 CFR 300.173 have been revised so as to remove the conflict.

Comment 19: The proposed rule's prohibition on purse seine transshipments at sea is appropriate. However, NMFS should provide information on the impact of the proposed rule's prohibition on purse seine transshipments at sea and also describe if the U.S. fleet has historically transshipped, including the locations of such transshipments, in past years.

Response: As described in the IRFA and RIR, U.S. purse seine vessels are already subject to substantial restrictions on at-sea transshipments under the SPTA, and U.S. purse seine vessels consequently do not, in practice, transship at sea. Accordingly, this requirement is not expected to bring a new compliance burden on affected fishermen or otherwise cause any impacts on purse seine transshipments at sea.

Comment 20: The proposed rule would require any U.S. commercial fishing vessel fishing for HMS anywhere in the Pacific Ocean to submit catch and effort information to NMFS. The preamble to the proposed rule indicates that these reporting requirements are already met by reporting requirements established under the MSA, the HSFCA, the Tuna Conventions Act of 1950, the SPTA, the implementing legislation for the U.S.-Canada Albacore Treaty, as well as relevant State reporting requirements. The proposed rule and EA do not include detailed information to verify NMFS' indication that this is applicable to 5,000 vessels, nor do they discuss in detail how NMFS is currently obtaining this important information.

Response: The proposed rule and EA include what NMFS believes to be sufficient detail to explain the proposed requirements and their basis and to assess their impacts. The rule at 50 CFR 300.218 details the specific regulations that contain the applicable catch and effort reporting requirements.

Comment 21: The proposed rule's requirement for owners and operators to comply with laws of other nations is appropriate. However, the EA does not provide any current or historical information on the number of U.S. vessels that fish in the exclusive economic zones of other member nations. To get a better understanding on the issue, the Final EA should include this information.

Response: Annex III, Article 2 of the Convention sets forth the specific provisions for complying with national laws that are being implemented in this rule. Providing current or historical information on the number of U.S. vessels that fish in the exclusive economic zones of other WCPFC members in the EA would not provide information relevant to the analysis or affect the proposed action. See the IRFA and FRFA for estimates of the numbers of vessels and small entities to which this requirement will apply.

Comment 22: The proposed rule states that the operator of any U.S. fishing vessel must accept and assist boarding and inspection by contracting parties of the WCPFC. As there are U.S. vessels that have Pacific Remote Island Areas bottomfish, lobster, and troll permits, NMFS should provide information to these vessel operators so that they are aware of potential boarding and inspection by non U.S. parties. The final rule and Final EA should describe this outreach as well as the number and type of other U.S. fishing vessels that could be subject to non-U.S. boarding and inspection.

Response: NMFS will endeavor to ensure that all affected U.S. fishing vessels are aware of this new requirement, such as by making copies of this final rule and its associated small entity compliance guide available to affected permit holders.

Comment 23: In the case of a high seas boarding and inspection of a U.S. vessel, NMFS or the U.S. Coast Guard should establish and maintain communication with the U.S. vessel during the boarding and inspection and should also follow up with the vessel afterwards to ascertain if any problems occurred. NMFS should also provide guidelines for U.S. vessel operators to follow in the event of a boarding on the high seas by a WCPFC member nation.

Response: U.S. Government entities such as NMFS and the U.S. Coast Guard will establish and maintain communications with U.S. vessels as required under applicable laws and in accordance with agency policies and practices. This rule establishes the requirements with which U.S. vessel operators must comply in the event of a boarding and inspection undertaken pursuant to WCPFC procedures. These requirements are also explained in the small entity compliance guide prepared for this rule, available at http://www.fpir.noaa.gov/IFD/ifd_documents_data.html.

Comment 24: The proposed rule and the EA offer no details on how the proposed procedures regarding the confidentiality of information vary or are consistent with current procedures, what specific procedures will be followed, or what specific information will be protected. Without this information, it is not possible to comment on this issue. All information submitted by or collected from vessel owners, operators, or crew must be treated as confidential business information and not released in any manner that reveals the identities, operations, or fishing locations of any individual vessel. Fishing operations, locations, and catches are considered to be proprietary business information and must be treated as such. Furthermore, the EA should discuss the current status of agreements within the WCPFC with respect to confidential information.

Response: NMFS does not believe that any of this further information was or is needed in the proposed rule or the EA. The procedures established in this rule regarding the confidentiality of information are consistent with, and implement, the requirements of the WCPFC Implementation Act, specifically section 506(d). The provisions of that section are substantially similar to the information confidentiality provisions of the MSA. Accordingly, the procedures established in this rule are substantially similar to the procedures established under the MSA (see 50 CFR part 600, subpart E), but tailored to conform to the provisions of the WCPFC Implementation Act. With respect to agreements with the WCPFC, there are no bilateral agreements between the U.S. Government and the WCPFC with respect to confidential information, such as an agreement that would prevent public disclosure of the identity or business of any person, as referred to in section 506(d)(1)(B) of the WCPFC Implementation Act. However, information held by the WCPFC is subject to rules and procedures concerning the protection of, access to, and dissemination of WCPFC-held data. These rules and procedures are available at: http://www.wcpfc.int/guidelines-procedures-and-regulations.

Comment 25: The definition of “fishing” should not include activities that take place in port, such as transshipping. The proposed definition, which would include transshipment, could improperly cause days in port to be counted against available fishing days.

Response: The definition of “fishing” in the regulations must be consistent with the definition in the WCPFC Implementation Act, which specifies that “fishing” includes transshipment, but only “at sea.” Accordingly, NMFS has revised the definition of “fishing” in the final rule to clarify that it includes transshipment, but only at sea.

Comment 26: Carriers and refueling vessels should not be treated as fishing vessels in virtually all ways; the United States should be careful to not impose more regulations on these vessels than are required; we hope the United States will continue to negotiate reasonable working arrangements for these vessels.

Response: The definition in this rule of “fishing vessel” includes carriers and bunkering and other support vessels, consistent with the definition of “fishing vessel” in the WCPFC Implementation Act. The scope of the regulations established in this rule as they relate to carriers and bunkers is consistent with the provisions of the Convention and the decisions of the WCPFC. NMFS, as part of U.S. delegations to the WCPFC, will continue to promote conservation and management measures that include appropriate and reasonable requirements for carriers and bunkers.

Comment 27: Overall, the EA should be improved to discuss the impact of the “non-discretionary” obligations.

Response: The EA addressed the “non-discretionary” provisions of the rule as part of the cumulative impacts analysis, as specified in Section 4.2.13 of the EA. The non-discretionary provisions would impose a financial burden on fishermen that is minor relative to the total gross revenue earned by each fishing vessel. Table 40 of the EA details this financial burden. Accordingly, the financial burden of the non-discretionary provisions in addition to the financial burden imposed on fishermen from the discretionary provisions, would enhance the likelihood and/or magnitude of the expected environmental impacts of the discretionary provisions of the rule (which are detailed in the EA), but only slightly so.

Comment 28: Table 41 of the EA indicates that NMFS contacted the Western Pacific Regional Fishery Management Council (Council) for information, but the Council has no record of this.

Response: As indicated in Section 1.3 of the EA, NMFS published a Notice of Intent (NOI) to prepare the EA in the Federal Register on February 26, 2007. During the time between the publication of the NOI and issuance of the EA, NMFS informally discussed the scope and contents of the EA with Council staff who have NEPA expertise. Thus, NMFS believed it appropriate to list the Council as a party that was contacted for information in Table 41 of the EA.

Comment 29: It is vital to the survival of the U.S. purse seine fleet that the United States negotiate measures in regional fisheries management organizations (RFMO) that impose a comparable burden on all participants in the fishery, and that U.S. fishermen do not bear an unfair amount of the conservation burden. Furthermore, it is critical to the survival of the U.S. purse seine fleet that domestic regulations implementing RFMO measures not be significantly more burdensome on the U.S. fleet than those imposed on the fleet's foreign competitors. Also, it is the responsibility of the U.S. Government to ensure that other governments implement substantially similar rules and regulations, and the U.S. Government should promptly give notice to the appropriate RFMO of any shortcomings in the regulations and enforcement by other member countries of the RFMO.

Response: This comment does not pertain to the proposed rule itself. NMFS, as part of U.S. delegations to the WCPFC and other RFMOs, shares the view that all participants in affected fisheries should share comparable burdens when seeking to achieve conservation and management objectives, and NMFS applies this principle in its role as part of U.S. delegations to the WCPFC and other RFMOs. As part of such U.S. delegations, NMFS routinely endeavors to determine whether all RFMO members are satisfying their obligations to implement the decisions of the RFMOs, and to alert the RFMOs, as appropriate, about any shortcomings in such implementation.

In the proposed regulations, regulatory instruction (3) said that “Subpart O, consisting of §§ 300.210 through 200.222, is added to part 300 to read as follows:” The instruction was meant to read “* * * consisting of §§ 300.210 through 300.222 * * *” and the corresponding instructions in this final rule are corrected accordingly.

The proposed rule that led to this final rule would have established a new subpart O in part 300 of title 50 of the Code of Federal Regulations, titled “Western and Central Pacific Fisheries for Highly Migratory Species.” However, on August 4, 2009, after publication of that proposed rule, NMFS published in the Federal Register a final rule to implement certain decisions of the WCPFC (74 FR 38544). That final rule (called here the “WCPFC purse seine rule”) established subpart O in part 300 of title 50, including some of the definitions and certain other regulations that would have been established in the proposed rule for this action. Consequently, the regulations in this final rule are written as amendments to the sections in subpart O, and since some of the regulations in the proposed rule for this action have already been established in the WCPFC purse seine rule, they need not be included in this final rule. Specifically, the following elements of the regulations in the proposed rule for this action are not included in this final rule: § 300.210, “Purpose and scope,” in its entirety; in § 300.211, “Definitions,” the introductory sentence and the definitions for all the terms needed in the WCPFC purse seine rule; in § 300.215, “Observers,” all of paragraph (c) except the sentence “All fishing vessels subject to this section must carry a WCPFC observer when directed to do so by NMFS” (which has been further revised—see below); and in § 300.222, “Prohibitions,” the introductory sentence.

In § 300.211, “Definitions,” the definition of “Fishing” has been revised to clarify that it includes transshipment only if the transshipment takes place at sea.

In § 300.212, “Vessel permit endorsements,” the following statement has been removed from paragraph (c)(3), which relates to the requirement that a photograph of the subject vessel be included with the application for a WCPFC Area Endorsement: “A vessel photograph submitted as part of an application for a high seas fishing permit will be deemed to satisfy the requirement under this section, provided that it clearly shows that the vessel is marked in accordance with the vessel identification requirements of § 300.217 and it meets the specifications prescribed on the WCPFC Area Endorsement application form.” This statement was included in the proposed rule in anticipation that the high seas fishing permit application requirements under 50 CFR 300.13 might be revised to require that the applicant provide a vessel photograph. The high seas permit application requirements have not been revised in that manner, so the statement has been removed from this final rule. Also in § 300.212, paragraph (f) has been revised to clarify that a WCPFC Area Endorsement shall be void whenever the underlying high seas fishing permit is void, “suspended, sanctioned or revoked,” and “is also subject to suspension or revocation independent of the high seas fishing permit.”

In § 300.215, “Observers,” paragraph (c) has been clarified to say that the requirement to carry a WCPFC observer when directed to do so by NMFS is limited to fishing trips during which the fishing vessel at any time enters or is within the Convention Area.

In § 300.216, “Transshipment,” paragraph (b) has been clarified to say that the restrictions apply to transshipments from purse seine fishing vessels “of the United States” and to transshipments from purse seine fishing vessels to fishing vessels “of the United States.”

In § 300.217, “Vessel identification,” a new paragraph (c) has been added to say that the section does not apply to fishing vessels that are subject to the vessel identification requirements of 50 CFR 300.173 or 660.704 until conflicts with those requirements are reconciled, and only upon publication in the Federal Register of a notice or final rule that includes a statement to that effect.

In § 300.218, “Reporting and recordkeeping,” paragraph (a)(1) has been clarified to say that the requirements of the section apply to fishing vessels “of the United States” used for commercial fishing for HMS in the Pacific Ocean.

In § 300.219, “Vessel monitoring system,” paragraph (a) has been revised to include the NOAA Office of Law Enforcement's VMS Helpdesk as a contact for the purpose of submitting on/off reports. Also in § 300.219, several references to “NMFS” have been replaced by “the SAC” in order to clarify that certain communications from NMFS can be expected to be received specifically from the SAC, which is the Special-Agent-In-Charge, NOAA Office of Law Enforcement, Pacific Islands Division, or a designee.

In § 902.1(b) of title 15 of the Code of Federal Regulations, which includes a table listing control numbers issued by the Office of Management and Budget (OMB) for collections of information required under NOAA regulations, new entries have been added for the OMB control numbers approved for the information collections required under §§ 300.212, 300.213, and 300.219 of title 50 of the Code of Federal Regulations.

Under NOAA Administrative Order 205-11, dated December 17, 1990, the Under Secretary for Oceans and Atmosphere has delegated authority to sign material for publication in the Federal Register to the Assistant Administrator for Fisheries, NOAA.

The NOAA Assistant Administrator for Fisheries has determined that this final rule is consistent with the WCPFC Implementation Act and other applicable laws.

NMFS prepared an Environmental Assessment (EA) that discusses the expected impacts that implementation of the rule would have on the environment. NMFS issued a draft version of the EA for public review and comment in conjunction with the proposed rule. Comments on the draft EA have been addressed in the preamble to the final rule. The final version of the EA is available at http://www.fpir.noaa.gov/IFD/ifd_documents_data.html. NMFS analyzed four action alternatives as well as the no-action, or baseline, alternative in the EA. The action alternatives include the provisions of the rule that are discretionary in nature (i.e., the provisions that allow NMFS discretion in the methods and means to implement them), while the other provisions of the rule were analyzed as part of the cumulative impacts analysis. The primary environmental effect of any of the action alternatives is that implementation of the requirements would make it more costly to fish, and thus, there could be a disincentive to fish, at least in the area of application of the requirements. However, the disincentive to fish would be expected to be minor for the majority of affected vessels. At most, the disincentive to fish could result in slight decreases in longline and/or albacore troll fishing effort on the high seas in the area of application of the Convention, and correspondingly slight increases in other areas. None of the requirements would directly control fishing practices per se, such as how much fishing effort is exerted, how much of a given resource may be caught, where fishing may take place, what type of fishing gear may be used, or how fishing gear may be deployed. None of the action alternatives would authorize or open the possibility for a new fishery or expand fishing opportunities. None of the action alternatives would be anticipated to result in an increase in fishing effort in the area of application of the Convention, and none would be expected to result in marked changes in fishing patterns anywhere. The non-discretionary provisions of the rule analyzed as part of the cumulative impacts analysis would also make it more costly to fish, and thus, would enhance the likelihood and/or magnitude of the expected impacts of the action alternatives, but only slightly so. The contribution to cumulative environmental impacts on the affected environment from any of the provisions in the rule would be minor. The final rule implements Alternative D, because it would achieve what NMFS believes is the best balance between the compliance costs that would be imposed on fishermen and the effectiveness of the resulting management regime. Based on the analysis in the EA, NMFS has determined that there will be no significant impact on the human environment as a result of this rule.

The economic impacts of the rule are addressed in the EA only insofar as they are related to impacts to the biophysical environment. They are addressed more fully in the RIR, IRFA, and FRFA. A copy of the EA is available from NMFS (see ADDRESSES).

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

NMFS prepared a final regulatory flexibility analysis (FRFA) for the rule, Initial Implementation of the Western and Central Pacific Fisheries Convention. The FRFA incorporates the IRFA prepared for the proposed rule (74 FR 23965; May 22, 2009; available from NMFS—see ADDRESSES). The analysis provided in the IRFA is not repeated here in its entirety.

The need for, reasons why action by the agency is being considered, and the objectives of the action are explained in the preambles to the proposed rule and final rule and are not repeated here. There are no disproportionate economic impacts between small and large vessels resulting from this final rule. Furthermore, there are no disproportionate economic impacts from this rule based on vessel size, gear, or homeport. The new recordkeeping or reporting requirements in this rule, as well as other compliance requirements, are described in the IRFA. This final rule is issued under authority of the WCPFC Implementation Act.

This final rule will apply to owners and operators of U.S. vessels used for fishing in the Pacific Ocean. Most elements of the proposed rule will apply to smaller subsets of that pool of vessels, as shown in Table 1. The numbering of the elements in Table 1 corresponds to the numbering used in the descriptions earlier in this section of the preamble. Table 1 also shows estimates of the numbers of vessels, broken down by vessel type where possible, to which each element of the rule will apply. Based on available financial information about the affected fishing fleets, NMFS believes that with the exception of most vessels in the purse seine and carrier and support vessel fleets, virtually all the affected vessels are owned by small business entities (i.e., they have gross annual receipts of no more than $4.0 million). In the purse seine fleet, NMFS believes that as many as 10 of the affected vessels are owned by small entities. In the carrier and support vessel fleet, NMFS believes that no vessels are owned by small entities. The estimated numbers of small entities that will be affected by each element of the rule are shown in parentheses in the last column of Table 1.

NMFS explored alternatives that would achieve the objective of this action (to satisfy the international obligations of the United States under the Convention and accomplish the objectives of the WCPFC Implementation Act) while minimizing economic impacts on small entities. As described in the IRFA, NMFS has limited discretion as to how to implement the provisions of the Convention and the decisions of the WCPFC. Consequently, NMFS was able to identify alternatives that would satisfy the Convention's provisions for only four elements of the rule, as identified in the IRFA: Element (1), authorization to fish; element (2), vessel information; element (3), VMS; and the high seas boarding and inspection component of element (9), facilitation of enforcement and inspection. NMFS was not able to identify any additional alternatives that would minimize significant economic impacts on small entities while satisfying the obligations of the United States under the Convention. The alternatives considered in the IRFA, and the reasons for preferring one over another, are summarized below.

With respect to element (1), authorization to fish, one alternative would be to rely on the existing high seas fishing permit requirement under the HSFCA (that requirement applies to the high seas globally, not just the high seas in the Convention Area), rather than establishing an additional authorization requirement. Although this would be less costly to affected small entities than the proposed action, this alternative would fail to identify the pool of vessel owners and operators interested in fishing on the high seas in the Convention Area and subject to all the other Convention-related requirements. As a consequence, it would be difficult to conduct effective outreach and enforcement activities to achieve a high level of compliance with those requirements. For that reason, this alternative was rejected. A second alternative would be to create a new stand-alone permit (WCPFC Area Permit) that would be required for any vessel used for commercial fishing for HMS on the high seas in the Convention Area but which, unlike the proposed WCPFC Area Endorsement (which would be an endorsement on a high seas fishing permit), would not be related in any way to the high seas fishing permit. This would be slightly more costly to affected small entities than the WCPFC Area Endorsement. For that reason, this alternative was rejected.

With respect to element (2), vessel information, one alternative would be to collect the needed information separately from any permit requirement; that is, as a stand-alone requirement for vessel owners to submit specified information to NMFS. The cost to affected small entities would be about the same as that of the proposed action, but because it would not be tied to obtaining a fishing authorization, compliance with this alternative would likely be poorer than for the proposed action. For that reason, this alternative was rejected. A second alternative would be to collect the needed information via the application for a WCPFC Area Permit. The cost to affected small entities under this alternative would be about the same as that of the proposed action, but because the cost of the WCPFC Area Permit alternative would be slightly more costly to affected small entities than the WCPFC Area Endorsement alternative (see above), this alternative was rejected.

With respect to element (3), VMS, one alternative would be to require that VMS units be carried and operated on vessels used for commercial fishing for HMS on the high seas in the Convention Area, but only when the subject vessel is actually on the high seas in the Convention Area. This could be slightly less costly to affected small entities because they would be allowed to turn off the VMS unit when not on the high seas in the Convention Area, but because vessel operators would be allowed to operate in many areas with their VMS units disabled, compliance with this alternative while on the high seas in the Convention Area would be expected to be lower than under the proposed action. That is, it is expected that more vessels would operate within the Convention Area more often without operating their VMS units. For that reason, this alternative was rejected. A second alternative would be to require that VMS units be carried and operated on vessels used for commercial fishing for HMS during the entirety of any trip that includes the high seas in the Convention Area. Like the previous alternative, this could be slightly less costly to affected small entities than the proposed action, but for the same reasons cited for the previous alternative, compliance with this alternative would likely be poorer than for the proposed action. For that reason, this alternative was rejected. A third alternative would be to require that a VMS unit be carried and operated at all times on any vessel with a WCPFC Area Permit. The costs to affected small entities under this alternative would be slightly more than under the proposed action. For that reason, and because the WCPFC Area Permit alternative would be slightly more costly to affected small entities than the WCPFC Area Endorsement alternative (see above), this alternative was rejected.

With respect to the high seas boarding and inspection component of element (9), facilitation of enforcement and inspection, one alternative would be to require that only operators of vessels used to fish for HMS (rather than for any species, as being proposed) on the high seas in the Convention Area accept and facilitate boarding and inspection by authorized inspectors of other members of the WCPFC. The number of affected small entities would be smaller than under the proposed action. However, since the inspectors of other members of the WCPFC may not be able to readily distinguish U.S. vessels used for fishing for HMS (which the WCPFC's boarding and inspection regime is designed to target) from other U.S. fishing vessels, an effective boarding regime may require that U.S. fishing vessels in the latter category accept boarding from inspection vessels of other members of the WCPFC in order to verify the fishing vessel's status. By applying this requirement to all U.S. fishing vessels, not just those used for fishing for HMS, non-HMS U.S. fishing vessels would be more prepared for the prospect of being boarded and inspected. As a consequence of such preparation, any boardings and inspections of non-HMS U.S. fishing vessels would be more likely to be completed quickly and without misunderstandings and the potential for conflict. NMFS believes that the proposed action would be safer and less costly to small entities than the alternative of applying the requirement only to operators of vessels used to fish for HMS. For that reason, the alternative of applying this requirement to just those vessels used for fishing for HMS was rejected.

The alternative of taking no action at all was rejected because it would fail to accomplish the objective of the WCPFC Implementation Act or satisfy the international obligations of the United States as a Contracting Party to the Convention.

The selected alternative would satisfy the international obligations of the United States as a Contracting Party to the Convention and thereby accomplish the objective of the WCPFC Implementation Act, and do so with minimal adverse economic impacts on small entities, and for these reasons was adopted in the final rule.

NMFS received a number of comments on the proposed rule that pertained to information in the IRFA. These were comments 7, 8, 9, 10, 11, 14, 15, 16, 17, 18, 19, 20, 22, and 23, as presented in a previous section of this preamble. These comments, and NMFS' responses, are incorporated by reference into this FRFA.

Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides.” The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. As part of this rulemaking process, a small entity compliance guide (the guide) has been prepared. The guide will be sent to all holders of relevant fishing permits and licenses. Copies of this final rule and the guide are available from NMFS (see ADDRESSES) and are available at: http://www.fpir.noaa.gov/IFD/ifd_documents_data.html.

This final rule contains collection-of-information requirements subject to the Paperwork Reduction Act (PRA). The collection of this information has been approved by the Office of Management and Budget (OMB) under OMB Control Numbers 0648-0595 (vessel information requirements) and 0648-0596 (VMS requirements). The public reporting burden for the vessel information requirements is estimated to average 60 minutes per WCPFC Area Endorsement application, with about one application per five years per respondent (i.e., 12 minutes per respondent per year, on average); and about 90 minutes per Foreign EEZ Form, with about one form per five years per respondent (i.e., 18 minutes per respondent per year, on average). The public reporting burden for the VMS requirements is estimated to average 5 minutes per activation report, with about one activation report per two years per respondent (i.e., 2.5 minutes per respondent per year, on average); 5 minutes per on/off report, with about 10 on/off reports per year per respondent (i.e., 50 minutes per respondent per year, on average); 4 hours per VMS unit purchase and installation, with about one purchase and installation per four years per respondent (i.e., 1 hour per respondent per year, on average); and 1 hour per year per respondent for VMS unit maintenance (i.e., 1 hour per respondent per year, on average). These estimated burdens include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding these burden estimates or any other aspect of this data information, including suggestions for reducing the burden, to NMFS (see ADDRESSES) and by e-mail to David_Rostker@omb.eop.gov, or fax to 202-395-7285.

Notwithstanding any other provision of the law, no person is required to respond to, and no person shall be subject to penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number.

Prior notice and opportunity for public comment are not required with respect to the revision to the table of OMB control numbers in 15 CFR 902.1(b) because this action is a rule of agency organization, procedure or practice under 5 U.S.C. 553(b)(A).

In the Federal Register of March 20, 2009 (74 FR 11883), the CPSC published a proposed rule that would establish guidelines and requirements for mandatory recall notices ordered by the Commission or a United States District Court under the Consumer Product Safety Act. The rule was intended to provide firms with a uniform set of information they can expect to find in a recall notice ordered by the Commission or a court. The Commission and a court's substantive authority to order that a mandatory recall notice be issued, including control over the final form and content of such notice, arises under sections 12, 15(c), and 15(d) of the CPSA. Section 214 of the CPSIA (Pub. L. 110-314) did not change this authority. Rather, section 214(c) of the CPSIA, which adds a new subsection 15(i) to the CPSA, requires the Commission to establish guidelines which set forth a uniform class of information that will be included in mandatory recall notices, and specifies certain content that must be included in mandatory recall notices. However, the Commission or a court ordering that a recall notice issue retains final authority over the form and content of mandatory recall notices. Accordingly, the Commission or a court may remove information that is unnecessary or inappropriate under the circumstances, or add additional appropriate information to a mandatory recall notice. Sections 15(i)(2) and 15(i)(2)(I) of the CPSA.

The preamble to the proposed rule contained detailed explanations of the proposed rule and described the basis for the proposed rule. See 74 FR 11883 through 11886. We refer readers to that preamble if they wish to obtain further information or explanation with regard to the rule. In brief, the Commission developed the proposed rule based on its expertise with recall notifications since the Commission's inception. Accordingly, the final rule is a culmination of the statutory requirements and the Commission's expertise, which is summarized in the Commission's Recall Handbook, available at http://www.cpsc.gov/BUSINFO/8002.html. Each section of the rule is either statutorily required by section 214 of the CPSIA, or the Commission has determined will likely increase recall effectiveness by helping consumers to: (a) Identify a product subject to a recall; (b) understand the hazard identified with such product; or (c) understand what remedy is being offered with regard to the recalled product.

The rule does not contain requirements for voluntary recall notices which result from corrective action settlement agreements with Commission staff. If the Commission decides to extend the requirements to voluntary recall notices, it would proceed with a separate rulemaking. While this rule may serve as a general guide for information to include on voluntary recall notices in some instances, we recognize that each voluntary recall is unique and is negotiated as such. Therefore, all recall notices issued, whether voluntary or mandatory, should be tailored to the specific product and circumstances of a recall. Section 214 of the CPSIA did not alter the Commission's ability to negotiate voluntary recall notices with a manufacturer and to tailor both voluntary and mandatory recall notices to a particular recall scenario.

The Commission received 43 substantive comments on the proposed rule. After reviewing the comments the CPSC made several changes to the rule. The changes between the proposed and the final rules are as follows:

The substantive authority for the Commission or a United States District Court to order that a firm issue a mandatory recall notice comes from existing statutes in sections 12, 15(c), and 15(d) of the CPSA. Section 15(c) of the CPSA specifically provides that, when the Commission orders that a firm conduct a mandatory recall, such order “shall specify the form and content of any notice required to be given * * *.” Section 214 of the CPSIA does not alter the Commission's or a court's authority over the final form and content of a mandatory recall notice. Section 214(c) of the CPSIA, which added subsection 15(i) to the CPSA, states that the Commission shall, by rule, within 180 days of the date of enactment of the CPSIA (August 14, 2008), establish guidelines which set forth a uniform class of information to be included in any recall notice ordered under sections 15(c) or (d), or by court order pursuant to section 12 of the CPSA. (15 U.S.C. 2061, 2064(c), or 2064(d)). Thus, the statute calls for a rulemaking which sets forth guidelines concerning information that firms can expect may be ordered in any Commission or court-ordered mandatory recall and the statute specifies specific content that must be included in mandatory recall notices.

Section 15(i) of the CPSA states that the guidelines established by the Commission must include information that would help consumers: (a) Identify a specific product; (b) understand the identified hazard; and (c) understand any remedy available to the consumer. Section 15(i) of the CPSA also requires that a recall notice include certain specific information, unless the Commission determines otherwise. This information includes, but is not limited to, descriptions of the product, hazard, injuries, deaths, action being taken, and remedy; identification of the manufacturer and retailers; identification of relevant dates; and any other information the Commission deems appropriate.

Finally, in addition to section 214 of the CPSIA, section 3 of the CPSIA grants the Commission general rulemaking authority to issue regulations, as necessary, to implement the CPSIA. Accordingly, the Commission has authority to implement section 15(i) of the CPSA, as amended by section 214(c) of the CPSIA, through section 3 of the CPSIA as well as section 214(c) of the CPSIA.

We describe and respond to significant issues raised by the comments below. To make it easier to identify comments and the Commission's responses, the word “Comment” will appear in italics before each comment description, and the word “Response” will appear in italics before the Commission's response. We have grouped comments based on their similarity and have numbered the comments to help distinguish between different comment themes. The number assigned to each comment summary is for organizational purposes and does not signify the comment's value, importance, or order in which it was received.

Additionally, on our own initiative, we have replaced “U.S.” with “United States” in the codified text to preclude any potential confusion as to what the abbreviation of “United States” means.

Comment 1—Administrative Procedure Act (APA)—One commenter states that the NPR is lacking because it does not contain a list of data or studies relied upon as required by the APA. Although the preamble to the proposed rule states that the agency relied on agency recall guidance materials, including but not limited to the Recall Handbook, the commenter maintains that these resources were not made available to the general public. The commenter believes that, at minimum, information on where to access the resources should be provided or, a Web link provided for direct access to the documents. The commenter states that no final rule should issue until the public has the opportunity to review the underlying data.

Response—The requirements for mandatory recall notices set forth in the proposed rule are largely dictated by section 214 of the CPSIA. The proposed rule also includes the Commission's interpretation and clarification of section 214 of the CPSIA, as well as additional guidelines. The preamble to the proposed rule states that, in drafting the proposed rule, the agency relied on its experience conducting recalls and recall effectiveness gained since the CPSC's inception, as well as agency recall guidance materials, including but not limited to the Recall Handbook. Contrary to the commenter's assertion that access to the Recall Handbook was not provided, the preamble to the proposed rule contained a link to the Recall Handbook (see 74 FR at 11883). Moreover, the Commission did not rely on quantifiable “data” in drafting the proposed rule; it relied on the text of the statute and more than thirty years of experience conducting recalls, which is summarized in the Recall Handbook. Recall templates and a recall checklist are also available to the public on the CPSC's Web site at http://www.cpsc.gov/businfo/corrective.html. These materials have been available to the public on the CPSC Web site long before passage of the CPSIA.

Comment 2—Regulatory Flexibility Act—Two commenters take opposite positions with regard to applicability of the Regulatory Flexibility Act (“RFA”) to the proposed rule. One comment states that the RFA should not be applicable to children's products so that small businesses will not be able to circumvent recall duties. Another commenter opines that the CPSC is attempting to evade the RFA when it states that small businesses will not be affected by the rule. The commenter takes this position based on the discretion the Commission has with regard to determining a “significant retailer,” which the commenter believes, depending on the definition, could have a large effect on small businesses. The comment suggests that a small business analysis should be done on the proposed regulation.

Response—The RFA generally requires that agencies review proposed rules for their potential economic impact on small entities, including small businesses. A regulatory flexibility analysis was not conducted pursuant to section 605(b) of the RFA, which states that the requirement to prepare and make available for public comment an initial regulatory flexibility analysis does not apply if the head of the agency certifies that the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities, and the agency provides an explanation for that conclusion.

As with the proposed rule, the final rule will have little to no effect on small businesses. First, the recall notice requirements set forth in the final rule are largely dictated by the CPSIA and are already in effect. Second, mandatory recalls are rare in the Commission's history, so, even if we were to assume that a significant economic impact would exist (and we do not claim that such an impact exists), the impact would not affect a “substantial number” of small entities. Third, the final rule will not alter the agency's reliance on voluntary recalls. Finally, the recall burden on small businesses will not be altered by the definition of “significant retailer.” The sole purpose of identifying retailers in the recall notice is to assist consumers with product identification. It has no effect on which firm issues a recall notice or has responsibility for conducting a recall.

Comment 3—Effective Date—Several commenters state that because they believe the proposed rule seeks to impose requirements that go beyond the CPSIA, firms require notice of the additional requirements and time to comply. Accordingly, these commenters state that the rule should not be effective upon publication, but should follow the standard of becoming effective 30 days after publication so that firms have time to comply. One commenter suggests further that the rule be clarified not to apply retroactively and that the requirements only apply to goods manufactured after August 14, 2009.

Response—The final rule applies only to mandatory recalls pursuant to a court order (section 12 of the CPSA) or an order of the Commission (sections 15(c), and 15(d) of the CPSA). Mandatory recalls are infrequent in the Commission's history, and currently there are no pending matters where a mandatory recall is at issue. Because of the length of time involved in litigating these issues in a United States district court or administratively, it is impracticable that any action would be litigated to conclusion and that an order requiring a mandatory recall notice would be issued in 30 days time. Therefore, setting the effective date 30 days after publication is appropriate and there is no good cause for shortening the period. Finally, the final rule does not go beyond the CPSIA. Section 214 of the CPSIA specifically provides that the Commission shall promulgate both guidelines and requirements for mandatory recall notices, and authorizes the Commission to issue additional requirements as it deems appropriate. Section 15(i)(2)(I) of the CPSA.

Comment 4—Many commenters seek clarification of the rule. Several are concerned that many requirements are unnecessary, extraneous, too complicated, and do not help consumers locate relevant products and determine what to do with them. In particular, several commenters are concerned about harm that could occur to business reputation based on the detailed requirements and the speed at which imperfect information may travel. Several commenters state that some information is burdensome for firms to maintain and report with no added benefit to consumers, and are concerned about the costs to maintain detailed records such as photographs and pricing information. These commenters prefer a shorter mandatory recall notice that would purportedly be more helpful to consumers.

Response—Most requirements set forth in the final rule are statutorily mandated, and the Commission has the authority to add requirements it determines are appropriate. A review of the CPSC Web site demonstrates that the use of many of the requirements in the final rule in previously issued voluntary recall notices have not resulted in lengthy recall notices. Moreover, the final rule is not burdensome because it does not impose any recordkeeping requirements on firms. Locating a photograph of the product and the price range has not been a significant issue for firms at the time of a recall. Finally, the Commission rejects the idea that a recall notice causes undue harm to business reputation. Responsible firms generally desire to move quickly to remove defective products from the marketplace because it is statutorily required, preserves their brand and consumer confidence, limits liability, and, most importantly, reduces the likelihood of injuries and deaths from unsafe products.

Comment 5—One commenter would create a mandatory recall notice template form that includes all required sections for a notice. The commenter believes that a template will be more efficient, save time and resources, and allow the Commission to quickly check for all requirements to speed approval of recall notices.

Response—The CPSC already has a bank of recall notice examples that staff provides to firms to help create a recall notice. To the extent such a template is revised, it can and should be done outside of this rulemaking process, to allow both the Commission and industry flexibility to update such templates as appropriate.

Comment 6—Several commenters discuss use of the words “should” and “must” in the proposed rule, and suggest that in the final rule, use of the word “should” should be changed to “must” to alleviate any confusion regarding the mandatory nature of the requirements.

Response—With regard to use of the words “should” and “must” in the final rule generally, the statute directs the Commission to issue both a guidance and requirements for mandatory recall notices. Guidance provided by the Commission regarding mandatory recall notices uses the term “should,” while requirements are described in the regulation using the words “must” or “shall.”

Comment 7—One commenter notes that the rule omits timeliness issues with regard to issuing a mandatory recall notice. This commenter argues that the rule should incentivize firms to comply in a timely fashion, and provide penalties for non-compliance.

Response—Timeliness is important with regard to both mandatory and voluntary recall notices. With regard to mandatory recall notices specifically, the Commission or a court will have control over the timing of recall notices once ordered.

Comment 8—One commenter suggests using the civil penalties in section 20(a) of the CPSA as a guideline for penalties for non-compliance with any time constraints imposed. Another commenter suggests adding a section on prohibited acts for non-compliance with part C generally.

Response—All prohibited acts over which the Commission has penalty authority are listed in section 19 of the CPSA, and the associated penalty amount provisions are located in section 20 of the CPSA. Section 19(a)(5) of the CPSA provides that it is unlawful for any person to “fail to comply with an order issued under section 15(c) or (d).” Accordingly, these penalty provisions already apply to mandatory recall orders and the Commission declines to duplicate these provisions in the rule.

Comment 9—FOIA Rights—One commenter suggests that the rule include a section on Freedom of Information Act (“FOIA”) rights.

Response—The Commission declines to address FOIA issues in the rule because a separate, pre-existing, rule on FOIA exists at 16 CFR part 1015.

Proposed § 1115.23 would describe the purpose for a new subpart C, “Guidelines and Requirements for Mandatory Recall Notices.” In accordance with direction in the CPSIA, the proposed rule would set out guidelines and requirements for recall notices issued under section 15(c) and (d) or section 12 of the CPSA.

Comment 10—One commenter believes that the proposed rule's purpose and reasoning section are too generic and lack specific information. The commenter suggests including specific rationales for why certain requirements will be effective and suggests adding specific examples or data to illustrate what the specific recall problem is and how the rule will address the problem.

Response—Section 214 of the CPSIA sets forth a uniform class of information to be included in mandatory recall notices. The final rule's requirements are largely dictated by the statutory language. Further, the Commission's interpretation of section 214 of the CPSIA is not based on a scientific study, but rather on the culmination of the Commission's and the staff's many years of experience conducting product safety recalls. Because of the wide variety of consumer products and industries that such recalls encompass, it is necessary to allow flexibility to tailor recall notices to a specific target consumer group, product, and hazard situation to effectively remove hazardous products from the hands of consumers. The statute and the final rule give the Commission and/or a court the flexibility to add or remove requirements from a particular recall notice as necessary and appropriate, keeping in mind the goal of increasing recall effectiveness, and to help consumers identify products, understand the product hazard, and understand any available remedy.

Proposed § 1115.24 would explain the requirements in subpart C apply to manufacturers (including importers), retailers, and distributors of consumer products. The preamble to the proposed rule (see 74 FR at 11883) explained that the rule would not contain requirements for recalls and recall notices that are voluntary and result from corrective action settlement agreements with Commission staff. The preamble to the proposed rule further noted that, if the Commission decides to extend the requirements to voluntary recalls, it would proceed with a separate rulemaking initiated by a separate notice of proposed rulemaking.

Comment 11—Many commenters note the Commission's statement that the proposed rule will apply to mandatory recall notices only and will serve as a guideline for voluntary recalls unless and until the Commission initiates a separate rulemaking to apply the requirements to voluntary recalls.

Comments from individuals and consumer groups generally support the extension of the mandatory notice requirements to voluntary recalls to promote uniformity and consistency in providing consumers recall data and to prevent firms from circumventing the requirements for a mandatory recall notice by agreeing to a voluntary recall. One commenter notes that voluntary recalls comprise the vast majority of recalls and that the protections and information afforded by the mandatory recall notice should be extended to consumers in voluntary recall notices as well. Some commenters believe that consumer safety is compromised by not using the same notice requirements for both mandatory and voluntary recalls. One commenter states that the mandatory recall notice requirements should at least be applied to voluntary recall notices for ultrahazardous products.

Industry commenters are generally opposed to extending the mandatory recall notice requirements to voluntary recall notices, arguing that important differences exist between a mandatory and voluntary recall. For example, one commenter states that, during a voluntary recall, the firm and the CPSC staff have time to develop an effective recall notice in a more positive environment. Depending on the nature of the product and the harm, the same level of detail may not be necessary for every recall to be helpful to consumers. These commenters support the current system whereby the final notice requirements are left for each specific recall situation working with the staff. One commenter notes the success of the Fast Track program and believes the Commission should continue to foster cooperation in that program and only impose mandatory recall procedures when absolutely required. Some commenters state that imposing mandatory notice requirements will discourage firms from conducting voluntary recalls, which is typically done to avoid the burdens of a mandatory recall. Less voluntary recalls will lead to over-burdening the Commission staff and resources.

A few commenters are concerned about the mandatory notice requirements even serving as a guideline for a voluntary recall notice and urge the Commission to withdraw this statement. One commenter believes that a heightened level of importance should be associated with mandatory recalls. Other commenters note that, even though the Commission acknowledges that a separate rulemaking will be necessary to extend the requirements to voluntary recalls, using the rule as a guideline is essentially a distinction without a difference. One commenter suggests that the Commission explicitly acknowledge in the preamble that a voluntary recall notice will not need to meet all of the guidelines for a mandatory recall notice in order to be approved for voluntary corrective action.

Response—While the Commission may use the mandatory recall requirements as a general guide for voluntary recall notices, we recognize that a separate rule on voluntary recall notices is needed to make these requirements uniform and required. The ultimate purpose of every recall notice is to get dangerous products out of the hands of consumers as quickly as possible, and each recall notice must be negotiated with that goal in mind. The Commission still retains the flexibility to work with firms to tailor voluntary recall notices to a particular product and particular recall circumstance.

Proposed § 1115.25 would define “recall,” “recall notice,” “direct recall notice,” and “firm.”

Comment 12—One commenter suggests that the final rule define “other persons,” who were mentioned in proposed § 1115.26. The preamble to the proposed rule explained that “the term `other persons' would include, but would not be limited to, consumer safety advocacy organizations, public interest groups, trade associations, other State, local and Federal government agencies, and the media.” 74 FR at 11884. Another commenter states that it is important to keep “other persons” in the rule to acknowledge that both governmental and non-governmental entities are involved in the dissemination of information in the interest of consumer safety.

Response—The Commission agrees that defining “other persons” in the rule acknowledges the importance that both governmental and non-governmental entities can play in the broad dissemination of consumer product safety information. Accordingly, the final rule adds the definition of “other persons” at § 1115.25(e) as follows: “Other persons means, but is not limited to, consumer safety advocacy organizations, public interest groups, trade associations, industry advocacy organizations, other State, local, and Federal government agencies, and the media.” This definition is the same as set forth in the preamble to the proposed rule, with the addition of “industry advocacy organizations,” to demonstrate the broad range of entities that assist in disseminating product safety information.

Proposed § 1115.26 provides general guidance and describes the policies pertaining to recall notices. The proposed guidelines would restate the goals delineated in section 214 of the CPSIA. The CPSIA requires the guidelines to include information helpful to consumers.

In general, proposed § 1115.26(a) would state general principles that are important for recall notices to be effective. For example, proposed § 1115.26(a)(1) would state that a recall notice should provide information that enables consumers and other persons to identify the product and take a stated action. Proposed § 1115.26(a)(2) through (a)(4) would provide guidance on the form of the recall notice, recognizing the various forms of notice and providing guidance concerning direct recall notices and Web site recall notices. Proposed § 1115.26(a)(4) would recognize that a direct recall notice is the most effective form of a recall notice, and proposed § 1115.26(b)(2) would state that when firms have contact information they should issue direct recall notices.

Comment 13—Many comments discuss § 1115.26(b)(2) on direct recall notices and § 1115.26(a)(4) which states that direct recall notices are the most effective form of a recall notice. Overall, individual consumer comments support the proposed rule with regard to direct recall notices, suggesting that consumers tend to tune out information not directed to them. One commenter notes that direct recall notices have worked effectively in Illinois since 2006. A few commenters suggest revising the rule to require firms to exhaust resources and to send direct recall notices via every means possible depending on the data they have, i.e., mail, electronic mail, and via telephone. One commenter suggests requiring e-mail notification when a firm has e-mail contact information. One commenter suggests asking consumers to forward e-mail notices to people they know have an interest in receiving the information in order to take advantage of social networking abilities. However, another commenter suggests that, because people ignore e-mails based on the large volume received, direct regular mail notices and automated phone messages would be more effective. Another commenter suggests that a direct recall notice be required in all cases where a firm has contact information unless the firm can prove by a preponderance of evidence that a direct recall notice will not be as effective as other forms of a recall notice.

However, one commenter urges that direct recall notices should only be required when a significant and imminent health and safety risk is involved because of the costs involved in direct notice and because over-warning can de-sensitize consumers. Moreover, section 15 of the CPSA recognizes that the form of notice depends on the risk involved and affords parties the opportunity for a hearing before the Commission can order a number of actions.

Response—Direct recall notices are the most effective form of a recall notice. 74 FR at 11886. The statement is based on the Commission's experience that one of the most important aspects of conducting a recall is to target recall notices to those consumers that are more likely to have purchased the product at issue. Direct recall notices have the advantage of reaching a large portion of the consuming public that may have actually purchased the product. Even if the product was not ultimately used by the purchaser, in the case of a parent buying a product for a child or a consumer buying a gift, the purchaser is in a good position to notify the product's user about the recall. Ensuring that notice of the recall is provided in a timely manner to the affected target audience is a major component of recall effectiveness, and direct recall notices are a key advantage in the recall process when this information is known. Moreover, the rule recommends, but does not require, use of direct recall notices. Assessing whether direct notice is necessary, appropriate, or possible in a particular mandatory recall is best done on an individual basis.

Comment 14—One commenter advocates a clear delineation in the rule with regard to responsibility for direct recall notices. This commenter argues that manufacturers should never have responsibility for a direct recall notice, but should have responsibility for broad dissemination through other means. Direct notice responsibility should fall to the product distributors and retailers that have such contact information.

Response—Determining which firms have responsibility for a recall and disseminating recall notices is beyond the scope of the rule, which solely relates to information categories required on a mandatory recall notice.

Comment 15—Some commenters note the limitations of relying solely on direct recall notices. One commenter states that direct recall notices are not the best method of notifying consumers, and should never be used as the sole method of notifying consumers because they miss third party consumers that purchase products second-hand or receive them as gifts. Considering the popularity of certain Web sites that sell, re-sell, or auction consumer products, direct recall notices could miss a large population of the consuming public. Additionally, the general public has an interest in knowing about recalled products, such that the recall strategy should be to reach the broadest possible audience.

Response—The Commission agrees that a direct recall notice should not be the sole form of recall notification because the purpose of a recall notice is to reach the broadest possible audience of consumers that may have purchased or received the products. Sole reliance on direct recall notices ignores the fact that other persons may benefit from receiving recall notices and assist in broad dissemination of recall notices. The final rule acknowledges this by adding § 1115.26(a)(5) stating that at least two of the recall notice forms listed in subsection (b) should be used.

Comment 16—One commenter asks the Commission to clarify the rule with regard to the factors for determining when a firm actually has direct contact information. This commenter states that firms have millions of bits of information, but being able to track the information to a specific time frame and product is time consuming and costly. Moreover, firms may have some information related to the sale, i.e., credit card information, but may not have all information without relying on a third party to match data, which can also be time consuming and costly. The commenter urges that the rule clarify that it only applies when accurate, up to date, contact information is readily and practically available, and is in fact in the firm's direct possession. Another commenter suggests adding “telephone number” to the list of contact information, and to prioritize the direct notice methods as follows: (1) Direct mail; (2) e-mail; and (3) telephone.

Response—Assessing when a firm has possession of direct contact information and when the information should be used is best done on an individual basis because of the variety of information that firms or third parties may possess. However, the final rule clarifies that “[a] direct recall notice should be used for each consumer for whom a firm has direct contact information, or when such information is obtainable, regardless of whether the information was collected for product registration, sales records, catalog orders, billing records, marketing purposes, warranty information, loyal purchaser clubs, or other such purposes.” The Commission or a court retains flexibility to determine when a firm has direct contact information and when a direct recall notice is appropriate. The final rule also clarifies that a telephone number is considered direct contact information: “[D]irect contact information includes, but is not limited to, name and address, telephone number, and electronic mail address.”

Comment 17—Some commenters are positive about the various methods available for dissemination of information, but want the Commission to make more than one form of notice mandatory. For example, one commenter would require multiple forms of dissemination so that firms cannot rely on a single press release and notice to retailers. Another commenter suggests requiring firms to contact national and local media. Another commenter is concerned that the rule does not require firms to ensure that notices are actually received and not dismissed as spam or junk mail and says requiring multiple dissemination methods would address this problem. Several commenters would require the use of paid advertisements, for example, where injuries and deaths have occurred. Similarly, another commenter suggests that the recall notice be required to be disseminated in the same manner as advertising and promotion for the product.

Response—Section 1115.26(a)(5) in the final rule provides that more than one form of recall notice should be used. The Commission declines to provide for any certain type of notice for every recall in the final rule. Recall notice forms may vary depending on the type of hazard, the severity of the risk, and the nature and distribution of the target audience. While circumstances will arise where paid advertisements are warranted and the Commission's or a court's order may require their use directed to certain target audiences, in certain time frames and intervals, retaining flexibility and creativity to adjust the forms of required recall notices to the specifics of each case and to allow for technological advancements in recall notice forms should be maintained.

Comment 18—Several comments support § 1115.26(b)(3), stating that a Web site recall notice should be prominent and clear on the first entry point of a Web site, such as a home page, and be interactive. Several commenters suggest making a Web site recall notice a mandatory requirement when a firm maintains a Web site. One commenter agrees that the information must be on the home page and urges the CPSC not to allow firms to bury recall notices deep within a Web site. These commenters support the idea of an interactive Web site that allows a consumer to seek a remedy on-line.

However, one commenter opposes placing a recall notice on a firm's home page and states that such a requirement goes beyond the CPSIA mandate. This commenter argues that manufacturers and distributors post Web site recall notices in a location where consumers have become familiar with locating the information. This commenter urges that the CPSC should not adopt a “one-size fits all” home page requirement and that the decision should be based on the circumstances of each case. Moreover, the requirement for an interactive Web site which allows a consumer to request a remedy does not make sense in all cases. The commenter gives the example of ATVs and RVs, which must be taken into an independent dealer for repair. Because section 214 of the CPSIA does not require an interactive Web site, the commenter would delete this section from the final rule.

Response—The Commission agrees that product safety information should not be buried in a firm's Web site. Since at least 2000, the CPSC has provided guidance to firms to post recall notices prominently on the home page of the firm's Web site. The Commission rejects the proposition that the rule goes beyond the requirements of the CPSIA with regard to providing an interactive Web site for recalls. First, the guidelines and policies set forth in section 1115.26 of the final rule are guidelines, not requirements. And, as reviewed above, section 214 of the CPSIA specifically provides that the Commission should “include any information that the Commission determines would be helpful to consumers” to identify the product, understand the hazard, and understand the proposed remedy. Although, for example, an ATV cannot be exchanged through a Web site, a prominently placed Web site recall notice that is interactive will expand the recall notice to the relevant target audience, and increase recall effectiveness by helping consumers with product identification, hazard identification and to understand the nature of the remedy being offered. Moreover, if the remedy is a repair, an interactive Web site can help consumers to locate a dealer to make the necessary repair and/or arrange an appointment for such repair at an appropriate dealer. While the content and nature of Web site interactivity may be product and remedy specific, the tool itself can be used in many ways to enhance consumer understanding and recall effectiveness.

Comment 19—Comments generally support § 1115.26(c), which states that the Commission or a court may require that a recall notice be in languages in addition to English “when necessary or appropriate to adequately inform and protect the public,” but would set mandatory criteria for recall notices in additional languages. For example, one commenter states that the phrase “necessary and appropriate” requires further clarification and an explanation of the criteria that will be used. Another commenter urges the Commission to consider languages likely used by consumers when reviewing and approving recall notices and to insure that recall hotlines and on-line forms should be made available in additional languages when the product was likely purchased by non-English speaking consumers.

Several commenters note the current demographic situation in the United States, stating that approximately 12% of the population speaks Spanish, and suggest that the Commission require that all recall notices be drafted in both English and Spanish. Another commenter suggests requiring that all recall notices be drafted in the top two or three other languages spoken in the United States.

Moreover, several commenters opine that the rule should contain criteria to help determine when recall notices in additional languages should be required. Suggestions for criteria for a mandatory language requirement include:

• When product labeling is primarily in a language other than English;

• When product instructions are written in more than one language; and

• When a product is marketed in a language other than English.

Finally, one commenter suggests that the Commission maintain a “bank” of standard recall information in other major languages spoken in the United States to help reduce the costs of providing recall notices in additional languages.

Response—The final rule clarifies when the Commission or a court may order that a recall notice be made in languages in addition to English by providing non-exhaustive examples. However, the Commission and/or a court retain flexibility to tailor recall notices to individual recall circumstances. Two criteria suggested by commenters have been added as examples in the final rule: When the product labeling is primarily in a language other than English and when a product is marketed in a language other than English. Both examples establish circumstances where it may be necessary or appropriate to issue recall notices in additional languages in order to increase the likelihood that audiences will understand the notices. The final rule, at § 1115.26(c), states one additional example: When a product is marketed or available in a geographic area where English is not the predominant language. This example demonstrates that even when a product's marketing or labeling is in English, there may be circumstances that arise in a mandatory recall scenario that still make it appropriate to distribute recall notices in languages in addition to English.

The Commission declines to adopt additional criteria in the final rule that would not result in an efficient use of staff resources. For example, insufficient information exists to impose a requirement that every mandatory recall notice be made available in two or three languages. Finally, maintaining a “bank” of standard recall information in other languages is something the Commission may consider doing as a matter of efficiency, but it is not within the scope of the rule.

Proposed § 1115.27 would set forth the recall notice content requirements specified in the CPSIA and would provide further details where appropriate. For example, proposed § 1115.27(a) would require that a recall notice include the word “recall” in the heading and text. As another example, proposed § 1115.27(b) would require the recall notice to contain the date of its release, issuance, posting, or publication.

Comment 20—One commenter would have the rule address the sequence of information found in a mandatory recall notice. The commenter would have the most important information appear at the top of the notice because it is more likely to be read. For example, the photograph of the product should appear at the top of the notice under the “recall” heading. The commenter would use the following order: Description of product hazard, type of hazard or risk, identification of retailers, etc. This commenter also suggests that the rule address readability issues, such as the use of bullet points over lengthy paragraphs.

Response—The Commission agrees that recall notices should be written with the intent to aid readability and understanding by consumers, but that this issue is best addressed on an individual, case-by-case basis. In a mandatory recall situation, the Commission or a court has control over the final form and content of a recall notice, and can require such notices to conform to the standard format already in use. The Commission declines to set a uniform sequence in the current rulemaking because what represents the most critical recall information may vary slightly depending on the circumstances surrounding the recall.

Comment 21—One commenter suggests adding a “Region” provision to mandatory recall notices to specify the geographic region in which the product was made available in order to narrow down areas of concern when a national retailer is involved. This commenter suggests that the “Region” should state whether the product was for sale on line, so that a consumer understands when the geographic area may have been broadened by Internet sales.

Response—When it is relevant, a specific geographic region where a product is sold or offered for sale is typically included in a recall notice. Although the proposed rule did not list “region” as part of the recall notice content requirements, adding a separate “region” requirement to a mandatory recall notice could help to narrow the geographic range for affected retailers and consumers (while not narrowing the range for dissemination of a recall notice generally), and would allow for a description of the region in situations where no significant retailer is identified. Designation of a region may help consumers to identify whether they have the product being recalled. Accordingly, the final rule adds a requirement for “Region” as a new § 1115.27(j), which provides that “[w]here necessary or appropriate to assist consumers in determining whether they have the product at issue, a description of the region where the product was sold, or held for purposes of sale or distribution in commerce, must be provided” and has renumbered the remaining paragraphs accordingly.

Comment 22—Most commenters support § 1115.27(a)'s requirement to use the word “recall” in the heading and text of the notice. A few commenters suggest use of the label “Safety Recall” in the heading to alert consumers to a safety issue with regard to the product. One commenter suggests using the term “Urgent Recall” in the heading whenever there is a serious risk of death or loss of limb. This commenter urges that the Commission use this designation to create a more serious class of product recalls.

One commenter dislikes using the word “recall” in every notice, arguing that it may be misleading and “unnecessarily harmful to the character of a product, manufacturer, importer, or retailer” by suggesting the harm is greater than it actually may be. This commenter suggests using language from the “action taken” section, which the commenter believes will be more accurate in describing the nature of the recall at issue. At minimum, the commenter suggests using “recall” along with the “action taken” in the header so that consumers can quickly and easily see the nature of the action being taken with regard to the product.

Response—As a matter of Commission policy for consistency and uniformity, use of the word “recall” is preferred because consumers and other persons recognize the word “recall” as meaning that a safety issue has arisen that requires action by the consumer. The CPSC's position on the title of a recall notice has been in the Recall Handbook for many years. The Commission does not agree that the dissemination of a recall notice necessarily harms manufacturers. As reviewed in the Recall Handbook, consumers no longer necessarily view product recalls in a negative light and are, instead, more likely to have a negative view of a firm if it does not take responsibility for conducting an effective recall. How well a company conducts a timely, reasonable recall of a product may have a strong influence on consumers' attitudes about the firm. Successful product recalls can result in continuing consumer support and demand for the firm's products.

While the Commission categorizes recalls, as set forth in the Recall Handbook Section III, CPSC Evaluation of Section 15 Reports, the Commission has avoided categorizing recall notices because it wants consumers to review and respond to all recall notices. Consumers should have the opportunity to read each notice and make an informed decision regarding whether they have the product, whether the risk of injury applies to them, how to avoid injury, and how to take advantage of any remedy associated with the recall. Categorizing recalls by the severity of risk may hinder the overall goal of recall effectiveness.

Comment 23—A few commenters agree with proposed § 1115.27(c)'s requirements pertaining to a description of the product. However, one commenter suggests that it is unclear whether § 1115.27(c)(1) through (6) establishes requirements because the word “must” is not used. This commenter suggests clarifying the rule so that firms know whether all or some subset of these product identification guidelines are required.

Response—Section 15(i)(2) of the CPSA requires that a mandatory recall notice include a product description, including model numbers or SKUs, common product name(s), and a photograph of the product. The final rule is organized such that items in § 1115.26 are guidelines and policies, and items in § 1115.27 are requirements. Accordingly, § 1115.27(c) provides that “[a] recall notice must include a clear and concise statement of the information that will enable consumers and other persons to readily and accurately identify the specific product and distinguish it from similar products. The information must enable consumers to readily determine whether or not they have, or may be exposed to, the product.” The rule lists six types of descriptive information relevant to product identification, including the fact that a photograph “must” be included. The final rule clarifies that when the information specified under this section is applicable to a particular product, it must be included as part of the product description: “[T]o the extent applicable to a product, descriptive information that must appear on a recall notice includes, but is not limited to:” The list is not exhaustive, however, and additional product identification information may be required for a particular recall notice.

Comment 24—Several comments would strengthen the remedy requirements in proposed §§ 1115.27(d) and (m). One commenter observes that the remedy offered must be implementable by all parties. The commenter notes that there have been several instances where a manufacturer offered a remedy, such as a voucher or coupon, that was not recognized by all retailers' computer systems when presented by a consumer. Accordingly, consideration of different systems should be given when providing a remedy and approval by the CPSC.

A few commenters suggest limiting a manufacturer's ability to instruct consumers to discard products. They argue that this remedy should be limited to situations where a firm has gone out of business or the product is of nominal value. One commenter urges the Commission to not approve any recall notice that does not include replacement, repair, or refund of the purchase price as a remedy because consumers will be less likely to comply without compensation as they do not want to pay for the item twice. Finally, one commenter urges the Commission to include a section for “incentive” or “reward” to inform consumers about any additional incentives for the return of the product, or state that “none” are being given.

Response—The nature of remedies approved as part of a corrective action plan goes to the substance of a corrective action plan, which is not at issue in the final rule. With regard to the suggestion to include a category for a description of any recall incentive in a mandatory recall notice, while the Commission generally encourages firms to offer incentives for compliance with a recall, the Commission declines to require a separate category for such information. Incentives are properly part of the remedy being offered. An additional category for incentives in every recall notice, even when an incentive is not being offered, will lengthen the recall notice without improving the overall effectiveness of the notice or providing new or different information to help consumers understand the remedy being offered.

The Commission also notes that proposed § 1115.27(m) is now renumbered as § 1115.27(n) in the final rule.

Comment 25—Proposed § 1115.27(e) would require the recall notice to state the approximate number of product units covered by the recall, including all product units manufactured, imported, and/or distributed in commerce. Several comments suggest clarifying § 1115.27(e) by requiring a statement of the number of product units included in a recall notice. A few commenters state that the rule should only include products actually sold to consumers so that the number does not include products that were never sold to any distributor or retailer or are still in the hands of the manufacturer and were never imported. The commenters believe that these products are not subject to a recall and that it is inappropriate and beyond the scope of the CPSIA to include in the number of units products that have never been in the hands of consumers. Moreover, these commenters argue that including such data is misleading and distorting of the number of products actually subject to the recall and cannot be said to help consumers identify a product, understand a product hazard, or obtain a remedy.

One commenter suggests that product unit information is unnecessary, unhelpful to the consumer, and is likely to overwhelm the average consumer. According to this commenter, including product unit information only serves to frustrate the purpose of understanding the product's actual or potential hazard. This information could have a negative effect on the firm, and media and other groups could incorrectly focus on the number of products being recalled rather than any actual threat of public harm.

Response—Section 15(i)(2)(C) of the CPSA requires that a mandatory recall notice include “[t]he number of units of the product with respect to which the action is being taken.” Accordingly, firms must state product unit information in a mandatory recall notice pursuant to the statute. The Commission's interpretation of this section of the statute is consistent with past Commission practice for all recall notices, as set forth in the Recall Handbook, which is to list all units of a product manufactured, imported, and/or distributed in commerce. As for those comments suggesting that products that are not in the hands of consumers are not subject to a recall, the CPSC has jurisdiction over all consumer products subject to a recall, and all such products must be dealt with in a corrective action plan, regardless of where the product is in the supply chain. For example, in a mandatory recall situation, a manufacturer holding product could not sell, modify, or destroy product without CPSC authorization. Stating the number of product units involved informs consumers as to the scope of a recall, aids product identification, and increases recall effectiveness.

Comment 26—Many comments address proposed §§ 1115.27(f) and (l) regarding a description of substantial product hazard and a description of the incidents, injuries and deaths. Several commenters agree that requiring a mandatory recall notice to describe and state the number of injuries and deaths is helpful to consumers and will motivate them to comply with the recall. Many commenters, however, state that specific information on injuries and deaths is unnecessary and irrelevant, or suggest that the rule should be further clarified to prevent the recall notice from becoming a lengthy, multi-paged document. One commenter states that proposed § 1115.27(f) exceeds the scope of the intent of the CPSIA with regard to a description of the substantial product hazard and reason for action. This information may not be feasible for firms to provide and may be more misleading than informative because a firm may not know all of this information at the time of a recall. Further, several commenters state that reporting death statistics is outside the purpose of a recall, will not help consumers or their decision to participate in a recall, but will have an adverse effect on retailers and producers.

Response—Sections 15(i)(2)(D) and (G) of the CPSA require that a mandatory recall notice include “[a] description of the substantial product hazard and the reasons for the action,” as well as “[t]he number and a description of any injuries or deaths associated with the product, the ages of any individuals injured or killed, and the dates on which the Commission received information about such injuries or deaths.” Accordingly, the statute and the final rule require both a description of the substantial product hazard and specific information on injuries and deaths, including the number, description and ages of persons involved. However, recall notices will, by necessity, only include information regarding a substantial product hazard and any injuries or deaths that are known at the time of the recall notice.

The Commission also notes that it has renumbered § 1115.27(l) as § 1115.27(m) in the final rule.

Comment 27—Some commenters request clarification on what constitutes an injury that requires reporting, what the phrase “associated with the product” in proposed § 1115.27(f) means, what “product conditions or circumstances” can give rise to an injury or death related to a product, and what a “concise summary” constitutes. For example, one commenter opines that the term “injury” should be defined to only include injuries which require medical treatment, and to exclude minor injuries such as superficial scrapes and bruises. This commenter states that defining “injury” will make reporting consistent across recall notices. Another commenter states that “associated with the product” language could be interpreted broadly to require that all deaths or injuries be reported, even when there may be other causes, such as gross negligence or use contrary to warning labels. One commenter suggests that the rule address whether a manufacturer must list any death or injury, however tangential, or may qualify injuries where gross negligence and contrary use are involved. Finally, one commenter believes that requiring detailed information on injuries and deaths will expose firms to liability for acts that have not been proven in court to be causally linked to the products without providing any benefits to the consumer. Moreover, it could require corporations to implicate themselves criminally or civilly, in violation of the Fifth Amendment of the Constitution.

Response—With regard to the types of injuries required to be reported on a recall notice, the Commission interprets the statutory requirement consistent with past agency practice with regard to reporting injuries on a recall notice, which is to include all injuries, regardless of whether a consumer sought medical treatment, where the consumer product is present at the time of the injury and may have been a contributing factor.

A well-crafted recall notice does not necessarily subject a firm to increased product liability. The Commission's mandate is public safety, and effective recall notices can play an important role in enhancing public safety. Allowing a defective product to stay on the market without providing the public with timely hazard and recall information would likely result in increased liability for non-compliant firms, not only from potential civil and criminal penalties by the Commission, but from product liability lawsuits as well. Finally, no concern exists that providing information on injuries and deaths in a recall notice impairs any Fifth Amendment right against self-incrimination, as the Fifth Amendment protects individuals, not corporate entities. See, e.g., Bellis v. United States, 417 U.S. 85, 88-90 (1974) (reviewing history of decisions regarding the Fifth Amendment privilege and its inapplicability to corporations and stating that no artificial organization may utilize the personal privilege against self-incrimination to avoid producing corporate documents).

Comment 28—Several comments would clarify the rule to allow reporting of injuries and age ranges in the aggregate. These commenters argue that reporting specific ages is not necessarily helpful for the consumer to evaluate the risks involved. Moreover, if the rule is interpreted to require a description of each injury and the age of each person, this could turn the recall notice into a lengthy, multi-page document that defeats the purpose of efficiently and effectively identifying the product, explaining the hazard, and communicating a remedy to consumers. Age ranges can be described in numbered ranges, or, for example, as adult, child, infant. One commenter opines that the number of injuries is not as important as the details of the injuries and deaths, to distinguish minor injuries from other types of harm.

Response—Reporting of injuries and deaths, including the ages of individuals injured or killed, is statutorily required in a mandatory recall notice. Providing this information, however, need not result in a lengthy recall notice. Consumers and firms can find numerous examples of recall notices on the CPSC's Web site, and note that when age and injury information is detailed, it does not result in lengthy, unreadable recall notices. The Commission or a court retains the flexibility to craft effective recall notices for particular recall scenarios which are in the best interest of the consumer. The exact wording of any recall notice cannot be done before the fact, and the Commission declines to adopt a specific, one size fits all, approach to how this information is presented for every recall notice. Firms should anticipate that aggregation of age information will be required in limited circumstances.

Comment 29—One commenter states that information regarding injuries on exact dates can be considered confidential material supplied to staff under section 15(b) of the CPSA. Including such information in a recall notice would undermine confidentiality under section 6(b) of the CPSA and otherwise. Another commenter notes that the date of injury may be unrelated to when the consumer decides to report the injury and how accurately the injury is characterized. One commenter states that if the information must be provided, then the Commission should at least allow firms to provide a range of dates rather than exact dates, or a summary such as “prior to the time of this announcement.” Another commenter, however, agrees that the recall notices should include the dates or date ranges when the Commission received information about deaths or injuries, and suggests that the Commission further require the dates or date ranges when the recalling firm received information about deaths or injuries.

Response—Some commenters may misunderstand the statutory requirement with regard to reporting dates related to injuries. Neither the statute nor the rule require that a mandatory recall notice state the actual date that an injury or death occurred, or the actual date when a firm received information about an injury. Section 15(i)(2)(G) of the CPSA requires that a mandatory recall notice include “the dates on which the Commission received information about such injuries or deaths.” (Emphasis added.) At minimum, a month and year must be reported as to when the Commission received such information. Accordingly, aggregation of the month and year may occur when necessary or appropriate to shorten the information presented on a recall notice while not sacrificing appropriate and statutorily required detail. For example, if the Commission learns of three injuries on three separate dates in a single month, a mandatory recall notice may provide the month and year in which these injuries were reported, presenting accurate information in a shortened format. However, the Commission or a court retains the flexibility to order the use of exact dates or the use of a range of dates by month and year, depending, among other things, on the number of injuries and the risk involved, if it is more helpful to consumers.

Comment 30—One commenter suggests that information on injuries and deaths is a subpart of the section on substantial product hazard and should be moved under that section.

Response—A description of the substantial product hazard and a description of the associated injuries and deaths are separate categories of information presented on a recall notice. Both the statute and the final rule separate these categories of information. See, e.g., sections 15(i)(2)(D) and (G) of the CPSA. The information presented under substantial product hazard is a short, factual statement regarding the actual or potential harm, i.e., choking, laceration, drowning, while the number and description of injuries reports actual injuries that have occurred. In some instances, for example, the risk of injury for choking may be present, but no reported injuries have occurred.

Comment 31—Many comments address § 1115.27(h) regarding identification of manufacturers on a mandatory recall notice. A few comments are favorable, but many comments question the value of identifying a foreign manufacturer, and suggest that this information is confidential business information subject to trade secret protection.

A few comments simply state that while the identification of manufacturers may be helpful to the CPSC, it is not helpful to a consumer and may be confusing with regard to who is responsible for the recall. Several commenters opine that not only is the information irrelevant to an effective recall and the stated goals of a recall notice under section 214 of the CPSIA, but the identity of foreign manufacturers is proprietary, confidential business information which should only be required to be provided to the Commission under trade secret protection. These commenters state that the CPSIA does not require identification of a foreign manufacturer, and that the name of the importer and country of origin should be sufficient. Moreover, publishing the name of foreign manufacturers can cause significant harm to a firm and is information not shared with competitors. Naming a foreign manufacturer may cause confusion to consumers, and unfairly place blame on foreign manufacturers when the problem, for example, may actually be with the design of the product. Finally, one commenter opines that information on the country of origin is not helpful to the consumer and detracts from the overall effectiveness of a recall notice. Such information may confuse consumers to believe that all products manufactured in a country are dangerous.

Response—Section 15(i)(2)(E) of the CPSA requires that a mandatory recall notice shall include “[a]n identification of the manufacturers * * * of the product.” Section 3(a)(11) of the CPSA defines “manufacturer” as “any person who manufactures or imports a consumer product.” The term “manufactured” means to “manufacture, produce, or assemble.” Section 3(a)(10) of the CPSA. A consumer product includes “any article, or component part thereof, produced or distributed” for sale to consumers. Section 3(a)(5) of the CPSA. Thus, any firm that manufactures, produces, assembles or imports a consumer product, or any component part thereof, may be characterized as a product manufacturer. As is often the case, a consumer product may have more than one manufacturer. This fact is acknowledged both by the statute, which employs the plural term “manufacturers” and the rule, which provides that “[a] recall notice must identify each manufacturer (including importer) of the product and the country of manufacture.”

The identity of a foreign manufacturer is not a trade secret or commercially sensitive information in every case. For example, many voluntary recall notices issued in the past identify a foreign manufacturer. In the context of a mandatory recall situation, whether identification of a foreign manufacturer is indeed trade secret, confidential information, and/or whether an exception to section 6 of the CPSA applies, will necessarily be litigated in the judicial or administrative proceeding. These issues require a fact-dependent, individualized analysis in every case; it is not something that could ever be decided broadly and apply to all manufacturers. To the extent that section 6 of the CPSA is applicable, the Commission acknowledges that it, and a firm, must comply with the law and any exceptions thereto.

Comment 32—Another commenter opines that the rule is ambiguous as to whether different information is required from foreign and domestic manufacturers. The commenter would clarify the rule to state that a recall notice must identify a domestic manufacturer's legal name, city, and state of headquarters, or if a foreign manufacturer is involved, identify the city and country of its headquarters (but omit the name of the company). Another commenter agrees that the manufacturer name and country of manufacture should be on the recall notice, but not the city and state of the headquarters. This commenter does not see any added benefit to the consumer to have this information.

Response—The rule anticipates that many consumer products have both foreign and domestic manufacturers and importers, both of whom must be identified. The rule requires all manufacturers to be identified by their legal names. Additionally, domestic companies should be identified by the city and state of their headquarters, and foreign companies should be identified by the city and country of their headquarters. The Commission agrees that the language in the proposed rule was unclear with regard to what identifying information is required for foreign manufacturers. The final rule clarifies that foreign manufacturers must be identified by: (i) Legal name; (ii) city; and (iii) country of headquarters.

Comment 33—One commenter suggests that the Commission require a manufacturer's Web site address to be listed with the identification information, in addition to name, trade name, city, and state, to facilitate recall information dissemination and allow consumers to access recall and remedy information via the company's Web site.

Response—The Commission declines to require that a manufacturer's Web address be listed as identifying information in every mandatory recall notice. A Web address for recall information is already provided elsewhere on the recall notice. The manufacturer may or may not have a Web site and may or may not be the firm in charge of a recall. The Commission does not want consumers to be confused with regard to which entity is responsible for the recall, or to deluge the wrong firm with phone calls about a recall.

Comment 34—One commenter suggests excluding small importers that are not the sole importer or retailer from any provision that allows them to be characterized as a “manufacturer” or “significant retailer” for purposes of a recall, because the burden on small importers would be too great and they would not likely have the type of information available to manufacturers and retailers to implement a recall. However, another commenter observed that the burden on small businesses should not be great because there are few mandatory recalls.

Response—Determining which firm is responsible for conducting a recall is outside the scope of the final rule, which focuses on guidelines and requirements for information categories to include in a mandatory recall notice.

Comment 35—Many commenters request clarification of proposed § 1115.27(i) with regard to identification of “significant retailers,” arguing that the rule is too vague regarding what criteria will be used to determine a “significant retailer.”

One commenter opines that singling out retailers does not help to identify a product. This information is only relevant if the remedy is to return the product to the retailer, or if there is only one retailer. Moreover, several commenters prefer to keep the current system whereby no specific retailer is named, and the firm can rely on language such as “sold at department store and retail stores nationwide.”

Response—Section 15(i)(2)(E) of the CPSA requires that a mandatory recall notice include “[a]n identification of the * * * significant retailers of the product.” Thus, the statute requires the identification of “significant” retailers but does not define “significant.”

Comment 36—Several commenters believe the language regarding “significant retailers” should be expanded to include all retailers, instead of just “significant” retailers. Many commenters state that if only a few retailers are listed, consumers may be confused and believe that their product is not at issue in the recall simply because the retailer they purchased the product from is not listed. Moreover, this scenario would leave out the majority of retailers where the products were actually purchased and may compromise dissemination of recall information to the majority of the consuming public. One commenter suggests that, in order to keep the notice short, the Commission should require the notice to state that the retailer list is not exhaustive and to provide a Web site address where the consumer can find an exhaustive list of retailers. Several commenters claim that, because the definition of “significant retailer” is so vague, firms will simply list all retailers to avoid non-compliance. These commenters argue that a long list of retailers will increase the length of the notice and make it difficult for consumers to obtain the information required for an effective recall.

Response—Section 15(i)(2)(E) of the CPSA requires that a mandatory recall notice identify significant retailers of the product. Although the statute does not define “significant,” the Commission does not read it to mean identification of all retailers. While the Commission could identify all retailers on its Web site if it were in the interest of public safety, it declines to do so in every mandatory recall scenario. First, the statute requires identification of “significant” retailers, not all retailers. Second, it is unclear whether requiring every mandatory recall notice to include an exhaustive list of retailers on the CPSC Web site would increase recall effectiveness or would be an efficient use of Commission resources. Such a requirement may become burdensome with no added value to consumers. Finally, listing significant retailers will not result in a lengthy recall notice because the Commission retains the discretion to control the substance, format, and organization of recall notices in the interest of consumer safety and recall effectiveness.

Comment 37—Many commenters suggest that the concept of, and the criteria for, “significant retailer” be clarified and that § 1115.27(i)(5) should not contain a vague catch-all that allows the Commission to find a retailer significant if it “is in the public interest.” Many commenters request that the Commission set forth criteria the Commission will consider in determining what is in the public interest.

Response—The Commission's experience with recall notices and identification of retailers is that such information helps consumers to determine whether or not they may have the defective product. Accordingly, the rule provides four circumstances under which identifying a retailer may be helpful to consumers to identify a product: (i) An exclusive retailer; (ii) a retailer that is also an importer of the product; (iii) a retailer with national and/or regionally located stores; and (iv) a retailer that holds or sold a significant number of the defective products. The rule also provides the Commission, or a court, with the flexibility to determine that although a retailer may not fall into one of the four enumerated categories, circumstances may arise whereby designation of the retailer as “significant” for a particular mandatory recall would help consumers identify the product. The final rule maintains this flexibility because: (i) It is not possible to anticipate every circumstance where listing a particular retailer may become helpful to consumers beforehand; and (ii) the Commission, under sections 15(c) and (d) of the CPSA, and a court, pursuant to section 12 of the CPSA, already have final authority over the form and content of mandatory recall notices. Such authority is not altered by section 15(i) of the CPSA and the Commission declines to do so in the final rule.

Comment 38—Some commenters state that the Commission failed to define “regional retailer,” or “regionally-located.” Accordingly, these commenters argue that the rule is too vague.

Response—The term “regional” should be understood based on its ordinary and customary usage. For example, a regional chain could be located in one region of the state of California, it could comprise affiliated stores existing in an entire state, or it could comprise affiliated stores located in a group of states, or finally, stores located in one or more regions of the United States.

Comment 39—Some commenters note that there are many situations where regional chains or “mom and pop” stores sell the majority of the products and collectively outsell a national retailer, but the national retailer may end up being named as a “significant retailer” because, compared to any one store, it may have sold more products. Several commenters observe that the rule, as proposed, will likely result in a small number of national retailers being named in virtually every recall notice, which will dilute the purpose of the information. One commenter suggests addressing this problem by changing § 1115.27(i)(4) from “a significant number of the total manufactured” to “a majority of the total manufactured.” This commenter believes that naming one retailer where a majority of the products were sold would be more helpful to the consumer than listing every “significant retailer.”

Response—With regard to the idea that listing some, but not all, retailers will cause consumer confusion, this has not been the Commission's experience. For example, a recall notice can list major retail outlets, but also explain that the list of retailers is not exhaustive. In a situation where Store A sold 40% of the defective product and more than 50 smaller home centers and hardware stores sold the remaining 60%, a recall notice could employ additional, helpful language describing the types of stores where the product was sold without causing the notice to become unduly long and unreadable: “Product was sold nationwide at Store A and at home centers and hardware stores nationwide.”

The Commission declines to adopt the suggestion that the required statutory term “significant” be modified to mean a “majority” of the products. The statute itself requires identification of “significant” retailers. Many situations arise where there may be two or three retailers that sell 60% to 80% of the products. While no retailer individually sold a majority of the products, listing these retailers is helpful to consumers to determine whether or not they may have the defective product.

Comment 40—One commenter would expand the description of retailers to include contractors, so that contractors must notify consumers when the materials were used in building projects. The commenter cited, as an example, the drywall situation, where the nature of the product makes it difficult for consumers to discern whether the defective product is in their home.

Response—The Commission declines to include the term “contractors” in the description of retailers, but this does not preclude the fact that there may be situations when contractors may be considered to be retailers. Even if the Commission were to include contractors in the description of retailers, it would not address the commenter's primary concern that contractors notify homeowners about the materials used in building projects. The statute at issue here, section 15(i) of the CPSA, does not impose any specific obligation on a retailer to notify consumers. Being listed as a “significant retailer” does not create any obligation on the part of retailers so listed; the information is present solely to assist consumers with product identification.

Comment 41—One commenter opines that the dates of manufacture and sale under proposed § 1115.27(j) (now renumbered as § 1115.27(k) in the final rule) are too expansive. Manufacturers date code products by the date of manufacture, not the date of sale. Manufacturers often do not know the date a product first hits retail shelves. Providing more than manufacturing dates may be confusing to consumers. The current system of citing manufacturing dates by date code, or date of sale if known, has been successful.

Response—Section 15(i)(2)(F) of the CPSA requires that a mandatory recall notice include “[t]he dates between which the product was manufactured and sold.” The statute thus requires both the dates of manufacture and the dates of sale. If a manufacturer does not have this information, it is expected that, where available, it may be provided by retailers or distributors.

Comment 42—A few commenters suggest expanding the price requirement in proposed § 1115.27(k) (now renumbered as § 1115.27(l) in the final rule). One commenter would require suggested retail price, prices known to the manufacturer, and the highest and lowest retail price known. Another commenter suggests that the approximate price range is not helpful enough, and that the price range should be made specific for geographic locations.

One commenter opines that a price should only be required when the remedy is a purchase price refund. Otherwise, this information is unhelpful and clutters the recall notice.

Response—The Commission typically requires approximate price information in all recall notices to assist with product identification. We decline to require every price known to the manufacturer in every mandatory recall notice; the approximate price range is sufficient for product identification purposes, and to assist the consumer in understanding what the price refund may be. Further, providing a price range for each specific geographic location in every recall situation is not always practical. It is unclear whether such information will add sufficient value to the recall notice to offset the use of resources in every recall situation. The Commission retains the flexibility, however, to require more information on price if it would assist consumers.

Comment 43—One commenter states that proposed § 1115.27(n) (now renumbered as § 1115.27(o) in the final rule) regarding “other information” that the Commission or a court may deem appropriate for inclusion in a recall notice should state what types of additional information may be required to put firms on notice. The commenter argues that without such clarification an aggrieved party may later argue that a requirement placed on it is burdensome and not contemplated by the rule. Accordingly, the commenter suggests that the rule clarify that § 1115.27 is exhaustive as can be currently contemplated, but that other requirements will be included as the situation demands. At a minimum, the rule should state that future requirements will be based on a fair assessment of the situation.

Response—Section 15(i)(2)(I) of the CPSA provides that a mandatory recall notice must include “[o]ther information the Commission deems appropriate.” Moreover, when a mandatory recall notice is ordered by a court or the Commission, it has authority over the final form and content of the recall notice and can require additional information deemed appropriate in particular cases pursuant to sections 12, 15(c) and 15(d) of the CPSA. Thus, the authority to include any other information the Commission deems appropriate in a mandatory recall notice does not solely originate from section 15(i) of the CPSA. The rule reflects the Commission or a court's inherent authority with regard to the form and content of mandatory recall notices, and the Commission declines to limit its own authority in the rule.

Proposed § 1115.28 would require the notice for each product or model covered by a recall notice to meet the requirements of this subpart.

We received no comments on this provision and have finalized it without change.

Comment 44—Most commenters support § 1115.29 which states that the Commission or the Court has the final determination as to the form and content of a recall notice. Consumer groups, in particular, support this rule to level the influence that firms have traditionally had over form and content. One commenter suggests imposing a deadline on firms for disseminating the recall notice after Commission approval and immediate posting on the CPSC's Web site after approval. One commenter, however, feels that the rule is vague and allows the CPSC excessive discretion with regard to recall form and content. This commenter suggests more specificity and criteria be inserted into the rule to create more uniform expectations for firms. Another commenter suggests imposing a deadline on the Commission's approval process, and allowing firms to disseminate a recall notice if the Commission has not rejected or approved the proposed recall notice within the time frame in order to get recall information out to the public as soon as possible.

Response—The Commission and/or a court have statutory authority to control the final form and content of mandatory recall notices. Mandatory recall notices must be approved by the Commission before they are disseminated. Sections 15(c)(1) and 15(d)(2) of the CPSA. Nothing in section 15(i) of the CPSA or the final rule changes this control; the statute merely requires that the Commission provide guidance on a uniform set of information that firms can expect to find in a mandatory recall notice, as well as sets forth certain requirements for mandatory recall notices which can be altered by the Commission in particular recall scenarios as necessary or appropriate. Thus, the date of dissemination by both the CPSC and the firm is directed by the CPSC, and the CPSC posts all recall press notices on its Web site at http://www.CPSC.gov after approval by the Commission.

Generally, the Commission's regulations are considered to “have little or no potential for affecting the human environment,” and environmental assessments and impact statements are not usually prepared. See 16 CFR 1021.5(c). The final rule establishes requirements and guidelines for mandatory recall notices is not expected to have an adverse impact on the environment. Thus, the Commission concludes that no environmental assessment or environmental impact statement is required in this proceeding.

The rule does not impose information collection requirements. Rather, the rule sets forth a uniform set of information categories that are either statutorily required or provided as guidelines by the Commission for use in recall notices that are ordered by the Commission or a United States district court in individual enforcement actions under sections 12, 15(c) or 15(d) of the CPSA. Additionally, under 5 CFR 1320.4(a)(2), the Paperwork Reduction Act requirements do not apply to collections of information “during the conduct of a civil action to which the United States or any official or agency thereof is a party, or during the conduct of an administrative action * * * against specific individuals or entities.” Accordingly, it is not subject to the Paperwork Reduction Act, 44 U.S.C. 3501 through 3520.

According to Executive Order 12988 (February 5, 1996), agencies must state in clear language the preemptive effect, if any, of new regulations. The requirements and guidelines contained in the rule do not impact the States, as they only apply to mandatory recalls ordered by the Commission or a United States district court. Moreover, section 26 of the CPSA with regard to preemption only addresses the preemptive effect of consumer product safety standards under the CPSA. The current rule is not a consumer product safety standard under the Act. Accordingly, the Commission has determined that this rule does not contain requirements or guidelines that impact the States.

The Regulatory Flexibility Act (“RFA”) generally requires that agencies review proposed rules for their potential economic impact on small entities, including small businesses. Section 603 of the RFA calls for agencies to prepare and make available for public comment an initial regulatory flexibility analysis describing the impact of the proposed rule on small entities and identifying impact-reducing alternatives. 5 U.S.C. 603. Section 605(b) of the RFA, however, states that this requirement does not apply if the head of the agency certifies that the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities, and the agency provides an explanation for that conclusion.

This final rule will have little or no effect on small businesses. First, this rule consists of guidelines (which do not require a regulatory flexibility analysis) and recall notice content requirements that are largely dictated by the CPSIA. Second, these guidelines and requirements apply in the context of an administratively adjudicated order to a specific party to issue a recall notice. Such mandatory recalls have occurred infrequently in the Commission's history. Finally, the substantive authority for a court or the Commission to order that a mandatory recall notice issue comes from existing law, sections 12, 15(c) and 15(d) of the CPSA, rather than the final rule. Therefore, the Commission concludes that the final rule will not have a significant economic impact on a substantial number of small entities.

In the preamble to the proposed rule, the Commission indicated that the final rule would be effective upon publication in the Federal Register based upon good cause shown (74 FR 11885). However, in its vote to approve the issuance of the final rule, the Commission voted to follow the APA standard, codified at 5 U.S.C. 553(d), such that the effective date of the final rule is 30 days after publication in the Federal Register.

Under Section 14(a) of the Commodity Exchange Act, as amended, (“Act”), 7 U.S.C. 18(a), any person complaining of a violation of the Act or any rule, regulation, or order thereunder, by any person registered or required to be registered with the Commission, may file a complaint with the Commission seeking an award of damages.1

On January 22, 1976, the Commission issued its original “Rules Relating to Reparation Proceedings.” 2 17 CFR part 12. These rules originally were intended to conform to the procedural requirements of the Administrative Procedure Act (“APA”), as well as the guidelines established by section 14 of the Act.3

On January 11, 1983, Section 14(b) of the Act, 7 U.S.C. 18(b) was amended, effective May 11, 1983, to authorize the Commission to “promulgate such rules, regulations and orders as it deems necessary or appropriate for the efficient administration of this section.” Congress conferred this broad discretion upon the Commission “[t]o enable the Commission to simplify its rules of procedure regarding reparations and streamline the process,” H.R. Rep. No. 565, 97th Cong., 2d Sess. 55 (1982). In addition, the amendments to Section 14(b) were intended to authorize the Commission “to use its best judgment in fashioning appropriate procedures that will be both fair and efficient.” Id.

Currently, Rule 12.1(a), 17 CFR 12.1(a), provides that “[t]he rules in [17 CFR Part 12] shall be construed liberally so as to secure the just, speedy and inexpensive determination of the issues presented with full protection for the rights of all parties.”

The Commission generally has maintained a longstanding policy of liberally construing its Part 12 Reparation Rules. We have restated that policy in several decisions:

As we said in Wade v. Chevalier, [2007-2009 Transfer Binder] Comm. Fut. L. Rep. (CCH) ¶ 30,781 at 61,680 (CFTC Feb. 27, 2008), “Congress created the reparation forum as an informal venue and decreed that parties are not to be subjected to strict rules found in the courts.” In Sommer v. Conticommodity Services, Inc., [1987-1990 Transfer Binder] Comm. Fut. L. Rep. (CCH) ¶ 24,244 at 35,106 (CFTC May 20, 1988), we also said, that “Congress[] inten[ded] that the reparations program provide a more flexible and informal forum than that available in court * * *.” Further, in Cook v. Monex International, Ltd., [1984-1986 Transfer Binder] Comm. Fut. L. Rep. (CCH) ¶ 22,532 at 30,295 (CFTC Mar. 19, 1985) (citations to legislative history omitted), we held that “[a]s remedial legislation, the reparations procedure should be liberally interpreted to effectuate that congressional purpose.”

We stated elsewhere that the complexities and formalities of district court litigation are not involved in the reparation program. Nelson v. Chilcott Commodities Corp., [1982-1984 Transfer Binder] Comm. Fut. L. Rep. (CCH) ¶ 21,934 at 28,033 (CFTC Dec. 12, 1983). Furthermore, “[t]o remain inexpensive, the reparations forum must, at a minimum, remain hospitable to the participation of pro se parties.” Hall v. Diversified Trading Systems, Inc., [1992-1994 Transfer Binder] Comm. Fut. L. Rep. (CCH) ¶ 26,131 at 41,751 (CFTC July 7, 1994). “As a result, we have recognized that allowances must be made for pro se status in interpreting and applying procedural requirements.” Id.

Recently, we said in Moss-Thomas v. East Coast Commodities:

Notwithstanding this guidance, we have noticed that parties in some matters have been held to an unusually strict interpretation of the rules of practice, including nonsubstantive rules relating to document formatting. As a result, it is necessary and appropriate to issue this policy statement to clarify and provide further guidance to Commission staff and affected parties.

Rule 12.1(a), 17 CFR 12.1(a), requires that rules of practice relating to reparation proceedings under 17 CFR part 12 “shall be construed liberally so as to secure the just, speedy and inexpensive determination of the issues presented with full protection for the rights of all parties.”

For example, the requirement in Rule 12.11, 17 CFR12.11, for documents filed with the Proceedings Clerk to be signed in ink should not be applied literally to documents filed by e-mail or facsimile. The formatting requirements need not be strictly enforced, as long as pleadings are legible. This policy statement does not affect the existing right of pro se parties to file handwritten pleadings. 17 CFR 12.11(c).

In another example, the forum does not require claimants to cite specific provisions of the Act, despite language in Rule 12.13(b)(iv)(A) requiring complainants to allege “each and every act or omission which it is claimed constitutes a violation of the Act.” 17 CFR 12.13(b)(iv)(A). The discussion of these rules is meant to be illustrative, not exhaustive. We expect the Commission's presiding officers, all of whom have extensive experience in this forum, to apply the Part 12 Rules generally in accordance with Rule 12.1(a).

The Commission has determined that this policy statement is exempt from the provisions of the APA, 5 U.S.C. 553, which generally requires notice of proposed rulemaking and provides opportunity for public participation. In accord with the exemptive language of 5 U.S.C. 553, this policy statement gives guidance to staff members and affected parties pertaining to the administration of reparation proceedings under 17 CFR part 12. In addition, this policy statement relates solely to “rules of agency * * * practice.” Therefore, the notice requirements under 5 U.S.C. 553 are not applicable.

The Regulatory Flexibility Act (“RFA”), 5 U.S.C. 601 et seq., requires agencies with rulemaking authority to consider the impact those rules will have on small businesses. With respect to persons involved in reparations proceedings, the interpretive rule imposes no additional burden, and in fact provides greater flexibility in complying with Part 12. Thus, the Chairman, on behalf of the Commission, hereby certifies, pursuant to 5 U.S.C. 605(b), that this policy statement will not have a significant economic impact on a substantial number of small businesses.

This policy statement concerning Part 12 does not impose a burden within the meaning and intent of the Paperwork Reduction Act of 1980, 44 U.S.C. 3501 et seq.

Section 15(a) of the Act, 7 U.S.C. 19(a), requires the Commission to consider the costs and benefits of its actions before issuing a new regulation. The Commission understands that by its terms, Section 15(a) does not require it to quantify the costs and benefits of a new regulation or to determine whether the benefits of the regulation outweigh its costs. Nor does it require that each rule be analyzed in isolation when that rule is a component of a larger package of rules or rule revisions. Rather, Section 15(a) simply requires the Commission to “consider the costs and benefits” of its action.

Section 15(a) further specifies that costs and benefits shall be evaluated in light of five broad areas of market and public concern: (1) Protection of market participants and the public; (2) efficiency, competiveness, and financial integrity of futures markets; (3) price discovery; (4) sound risk management practices; and (5) other public interest considerations. Accordingly, the Commission can, in its discretion, give greater weight to any one of the five enumerated areas of concern, and can, in its discretion determine that notwithstanding its costs, a particular rule is necessary or appropriate to protect the public interest, or to effectuate any of the provisions, or accomplish any of the purposes, of the Commodity Exchange Act.

This policy statement will not create any significant change in the Commission's reparation proceedings. This statement will enhance the protection of market participants and the public by providing greater flexibility in complying with Part 12. This statement will make it easier for parties to participate in reparations proceedings, either as complainants or respondents. The cost-benefit factors are not influenced by this policy statement, which simply articulates and clarifies applicable law and precedent in reparation proceedings.

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 immediate action is necessary to protect the public from the dangers inherent in the bridge demolition project. Also, establishing a safety zone on the Pequonnock River at this time of year should not hinder any appreciable recreational traffic and commercial traffic does not transit the portion of the river that will be impacted by the closure. The need for immediate action to protect the public makes a comment period impractical as a delay in the bridge demolition is contrary to public interest.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register. In addition to the reasons stated above, any delay encountered in the temporary rule's effective date would be contrary to the public interest given the immediate need to minimize danger to mariners prior to, during, and after demolition.

The Congress Street Bridge, owned by the City of Bridgeport, was closed in January 1999 due to deterioration of the structural and mechanical/electrical components. It is approximately 419 feet from abutment face to abutment face and consists of a center movable span and two fixed spans on each approach. The center movable span is a double leaf rolling bascule span. The bascule span was opened to allow marine traffic to pass and the leaves locked into the open position.

From January 1, 2010 through May 15, 2010 the City of Bridgeport's Engineering Department will be removing both bascule spans and the associated operating machinery of the Bridge. The existing fender system will remain in place and power will be re-routed on the bridge to allow the existing navigation lights to continue to function during and after construction. Mariners are advised to transit the area with extreme caution during this time.

The Coast Guard is establishing a safety zone in all waters of the Pequonnock River within 100-yards to either side of the Congress Street Bridge from February 1, 2010 through April 16, 2010 during the removal of the bascule spans. This portion of the Pequonnock River will be closed to all marine traffic due to construction hazards posed to recreational vessels attempting to transit the waterway. This safety zone is necessary to protect the safety of the boating community who wish to utilize the Pequonnock River during demolition. With the exception of the Bridgeport Fire Rescue Boats, entry into this zone is prohibited unless authorized by the Captain of the Port, Long Island Sound.

This regulation establishes a temporary safety zone on the waters of the Pequonnock River, at mile 0.4 within 100-yards to either side of the Congress Street Bridge. This action is intended to prohibit vessel traffic in a portion of the Pequonnock River in the City of Bridgeport, Connecticut to provide for the safety of the boating community due to the hazards posed by significant construction equipment and barges located in the waterway for the partial demolition of the bridge. The safety zone is being established from 11:59 p.m. on January 31, 2010, to 11:59 p.m. on April 16, 2010. Marine traffic may continue to transit the area during the January 1 to January 31 and April 17 to May 15 portions of the project. While the channel is open and the safety zone is not in place, mariners are still advised to transit the area with extreme caution. In the event of an emergency, a ten (10) foot wide passage will be maintained for the duration of the project exclusively for the passage of Bridgeport Fire Rescue boats. With the exception of these Fire Rescue boats, entry into this zone is prohibited unless authorized by the Captain of the Port, Long Island Sound.

Any violation of the safety zone described herein is punishable by, among other things, civil and criminal penalties, in rem liability against the offending vessel, and the initiation of suspension or revocation proceedings against Coast Guard-issued merchant mariner credentials.

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

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

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation is unnecessary.

This regulation may have some impact on the public, but the potential impact will be minimal for the following reasons: We do not anticipate that there will be any appreciable recreational traffic during the time the project will be taking place and commercial traffic does not transit the portion of the Pequonnock River that will be impacted by the closure. Vessels may transit in all areas of the Pequonnock River other than the area delineated for the safety zone.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule may affect the following entities, some of which may be small entities: the owners or operators of vessels intending to transit or anchor in those portions of the Pequonnock River in the city of Bridgeport, Connecticut covered by the safety zone. For the reasons outlined in the Regulatory Evaluation section above, this rule will not have a significant impact on a substantial number of small entities.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process. 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, Chief Petty Officer Christie Dixon, Prevention Department, USCG Sector Long Island Sound at 203-468-4459, christie.m.dixon@uscg.mil. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

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

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

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

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

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

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

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

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

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

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

We have analyzed this temporary final 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 creation of a regulation that establishes a safety zone and therefore is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction. An environmental analysis checklist and a categorical exclusion determination will be available in the docket where indicated under ADDRESSES.

Invitation to Comment:

We invite you to submit comments regarding these interim final requirements. To ensure that your comments have maximum effect in developing the final requirements, we urge you to identify clearly the specific section or sections of the interim final requirements that each of your comments addresses and to arrange your comments in the same order as the interim final requirements.

We invite you to assist us in complying with the specific requirements of Executive Order 12866 and its overall requirement of reducing regulatory burden that might result from these interim final requirements. Please let us know of any further opportunities we should take to reduce potential costs or increase potential benefits while preserving the effective and efficient administration of the SIG program.

During and after the comment period you may inspect all public comments about these interim final requirements by accessing Regulations.gov. You may also inspect the comments, in person, in room 3W100, 400 Maryland Avenue, SW., Washington, DC, between the hours of 8:30 a.m. and 4:00 p.m., Washington, DC time, Monday through Friday of each week except Federal holidays.

Assistance to Individuals with Disabilities in Reviewing the Rulemaking Record: On request, we will provide an appropriate accommodation or auxiliary aid to an individual with a disability who needs assistance to review the comments or other documents in the public rulemaking record for this notice. If you want to schedule an appointment for this type of accommodation or auxiliary aid, please contact the person listed under FOR FURTHER INFORMATION CONTACT.

Background: The Secretary published final requirements for the SIG program in the Federal Register on December 10, 2009 (74 FR 65618). Subsequently, on December 16, 2009, the President signed into law the Consolidated Appropriations Act, 2010, which contains FY 2010 appropriations for the Department, and which also includes two provisions applicable to the use of both FY 2010 SIG funds and FY 2009 ARRA SIG funds. First, the Consolidated Appropriations Act, 2010 expands eligibility for participation in the SIG program by permitting an SEA to award SIG funds for, and for an LEA to use those funds to serve, any school that is eligible to receive assistance under Title I, Part A and that: (1) Has not made adequate yearly progress (AYP) for at least two years; or (2) is in the State's lowest quintile of performance based on proficiency rates. With respect to secondary schools, the Consolidated Appropriations Act, 2010 gives priority to high schools with graduation rates below 60 percent. Second, the Consolidated Appropriations Act, 2010 raises the maximum subgrant size for a participating school from $500,000 to $2,000,000.1

These interim final requirements incorporate this new authority into the final SIG requirements that were published on December 10, 2009. Although the interim final requirements give an SEA discretion to expand the group of schools that are eligible to receive SIG funds, the purpose of the SIG program remains the same: to provide funds to LEAs that demonstrate the greatest need for the funds and the strongest commitment to use the funds to turn around their persistently lowest-achieving schools and significantly raise student achievement in those schools.

Waiver of Rulemaking and Delayed Effective Date: Under the Administrative Procedure Act (APA) (5 U.S.C. 553), the Department is generally required to publish a notice of proposed rulemaking and provide the public with an opportunity to comment on proposed regulations prior to establishing a final rule. However, we are waiving the notice-and-comment rulemaking requirements under the APA. Section 553(b) of the APA provides that an agency is not required to conduct notice-and-comment rulemaking when the agency for good cause finds that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest. Although these requirements are subject to the APA's notice-and-comment requirements, the Secretary has determined that it would be impracticable, unnecessary, and contrary to the public interest to conduct notice-and-comment rulemaking.

As noted above, these interim final requirements are needed to incorporate the new SIG authority provided by the Consolidated Appropriations Act, 2010 into the final SIG requirements published on December 10, 2009. Those final requirements take effect on February 8, 2010, also the date by which State applications for SIG funds are due to the Department. The Department must award FY 2009 SIG funds to SEAs by September 30, 2010 or the funds will lapse. Even on an extremely expedited timeline, it is impracticable for the Department to conduct notice-and-comment rulemaking and then promulgate final requirements in time to make grant awards to States by the September 30 deadline. Publishing a notice of proposed rulemaking, reviewing the public comments, and issuing final regulations normally takes at least six months. We are concerned that, when added to the time the Department will need to receive, review, and approve State applications for SIG funds, the Department may not be able to allocate FY 2009, including ARRA, SIG funds to all States by September 30, 2010. With $3.5 billion at stake, it would be impracticable and contrary to the public interest for the Department to take this risk. Issuing these interim final requirements permits the Department to maintain the current State application timeline.

Additionally, the Department has recently concluded notice-and-comment rulemaking on the final SIG requirements. These interim final requirements incorporate the new authority in the Consolidated Appropriations Act, 2010 into the existing final SIG requirements with only minimal, necessary changes. Accordingly, and in order to make timely grant awards for FY 2009, the Secretary is issuing these interim final requirements without first publishing proposed requirements for public comment.

Although the Department is adopting these requirements on an interim final basis, the Department requests public comment on these requirements. After consideration of public comments, the Secretary will publish final requirements.

The APA also requires that a substantive rule be published at least 30 days before its effective date, except as otherwise provided for good cause (5 U.S.C. 553(d)(3)). For the reasons outlined in the preceding paragraphs, the Secretary has determined that a delayed effective date for these interim final requirements would be unnecessary and contrary to the public interest, and that good cause exists to waive the requirement for a delayed effective date.

Summary of the Interim Final Requirements:

We discuss substantive changes to the final SIG requirements published on December 10, 2009 under the sections of the interim final requirements to which they pertain.

Section I.A.1—defining “greatest need”:

Statute: Section 1003(g) of the ESEA limits eligibility for school improvement funds to Title I schools in improvement, corrective action, or restructuring. The Consolidated Appropriations Act, 2010 expands the group of schools eligible to be served with SIG funds to include any school that is eligible to receive Title I, Part A funds (including schools that receive Title I, Part A funds and those that do not) and that (1) has not made AYP for at least two years, or (2) is in the State's lowest quintile of performance based on proficiency rates. In the case of secondary schools, the Consolidated Appropriations Act, 2010 requires that priority be given to those schools with graduation rates below 60 percent.

Current final requirements: Section I.A.1 defines three tiers of schools. A Tier I school is any Title I school in improvement, corrective action, or restructuring that is identified by the SEA as a “persistently lowest-achieving school.” As such, the school is among the lowest-achieving five percent of Title I schools in improvement, corrective action, or restructuring in the State (or the lowest-achieving five such schools) or is a Title I high school that has had a graduation rate that is less than 60 percent over a number of years.

A Tier II school is any secondary school that is eligible for, but does not receive, Title I, Part A funds and that is identified by the SEA as a “persistently lowest-achieving school.” As such, the school is among the lowest-achieving five percent of such secondary schools in the State (or the lowest-achieving five such secondary schools) or is a high school that has had a graduation rate that is less than 60 percent over a number of years.

A Tier III school is any Title I school in improvement, corrective action, or restructuring that is not a Tier I school.

Interim final requirements: The interim final requirements amend the definitions of Tier I, Tier II, and Tier III schools to incorporate the expanded eligibility provided for in the Consolidated Appropriations Act, 2010. The interim final requirements do not change the definition of “persistently lowest-achieving schools” as that definition is used to define Tier I and Tier II schools. An SEA must use this definition to identify the persistently lowest-achieving schools in the State, which will comprise at least part of the schools in Tier I and Tier II. The SEA must also identify the schools in Tier III—i.e., the Title I schools in improvement, corrective action, or restructuring that are not in Tier I. The interim final requirements permit an SEA, at its option, to identify additional schools in each tier.

With respect to Tier I, in addition to the Title I schools in improvement, corrective action, or restructuring that an SEA has identified as persistently lowest-achieving schools, the SEA may identify any elementary school that (1) is eligible to receive Title I, Part A funds (including schools that receive Title I, Part A funds and those that do not); (2) either has not made AYP for at least two consecutive years or is in the State's lowest quintile of performance based on proficiency rates on the State's assessments under section 1111(b)(3) of the ESEA in reading/language arts and mathematics combined; and (3) is no higher achieving on the State's assessments combined than the highest-achieving Tier I school that the SEA has identified under paragraph (a)(1)(i) of the definition of “persistently lowest-achieving schools.” These newly eligible schools may be Title I schools that are not identified for improvement, corrective action, or restructuring or schools eligible for, but not receiving, Title I, Part A funds, provided they meet the criteria in section I.A.1(a)(ii) of the interim final requirements.

With respect to Tier II, in addition to the secondary schools that are eligible for, but do not receive, Title I, Part A funds and that an SEA has identified as persistently lowest-achieving schools, the SEA may identify any secondary school that (1) is eligible to receive Title I, Part A funds (including schools that receive Title I, Part A funds and those that do not); (2) either has not made AYP for at least two consecutive years or is in the State's lowest quintile of performance based on proficiency rates on the State's assessments under section 1111(b)(3) of the ESEA in reading/language arts and mathematics combined; and (3) either is no higher achieving on the State's assessments combined than the highest-achieving Tier II school that the SEA has identified under paragraph (a)(2)(i) of the definition of “persistently lowest-achieving schools” or is a high school that has had a graduation rate that is less than 60 percent over a number of years. Tier II secondary schools that an SEA has identified as persistently lowest-achieving schools—i.e., secondary schools that are eligible for, but do not receive, Title I, Part A funds—are eligible without the need for an SEA or LEA to obtain a waiver of section 1003(g)'s limitation on serving only Title I schools in improvement, corrective action, or restructuring. Tier II also may now include Title I secondary schools that are or are not in improvement, corrective action, or restructuring if those schools meet the criteria in section I.A.1(b)(ii) of the interim final requirements and are not already captured in Tier I.

With respect to Tier III, in addition to any Title I school in improvement, corrective action, or restructuring that is not a Tier I school, an SEA may identify any school that (1) is eligible for Title I, Part A funds (including schools that receive Title I, Part A funds and those that do not); (2) has not made AYP for at least two years or is in the State's lowest quintile of performance based on proficiency rates on the State's assessments under section 1111(b)(3) of the ESEA in reading/language arts and mathematics combined; and (3) does not meet the requirements to be a Tier I or Tier II school. Thus, a Tier III school may be a Title I school in improvement, corrective action, or restructuring, a school that receives Title I, Part A funds that is not in improvement, or a school that is eligible for, but does not receive, Title I, Part A funds, provided the school meets one of the two criteria in section I.A.1(c)(ii)(A).

To illustrate further the changes we are making with respect to how an SEA identifies a newly eligible school as a Tier I, Tier II, or Tier III school, we are providing the following chart. The left column represents the schools an SEA must identify in each of Tiers I, II, and III; the right column represents the newly eligible schools based on the Consolidated Appropriations Act, 2010 that an SEA may, but is not required to, identify in Tiers I, II, and III.

Reasons: These changes are needed to incorporate into the final SIG requirements the expanded authority in the Consolidated Appropriations Act, 2010 with respect to eligible schools. It is important to note that an SEA has the option to add these newly eligible schools to its lists of Tier I, Tier II, and Tier III schools in accordance with these interim final requirements, but the SEA is not required to do so. Moreover, if an SEA chooses to add newly eligible schools at all, it has the flexibility to add only a subset of those schools to its lists of Tier I, Tier II, and Tier III schools. For example, an SEA might choose to add newly eligible schools to Tier I and Tier II but not to Tier III, or it might add to Tier III only newly eligible schools that are in the lowest decile (rather than quintile) of schools in the State based on proficiency rates.

An LEA may apply to serve only schools that are included in an SEA's definition of Tier I, Tier II, and Tier III schools.

We note that the Consolidated Appropriations Act, 2010 also requires that, “in the case of secondary schools, priority shall be given to those schools with graduation rates below 60 percent.” This priority is accounted for in the definition of “persistently lowest-achieving schools,” which requires an SEA to identify any Title I high school in improvement, corrective action, or restructuring and any secondary school that is eligible for, but does not receive, Title I, Part A funds that has a graduation rate of less than a 60 percent over a number of years.

Sections I.B.2 and I.B.3—waivers for Tier I and Tier II Title I participating schools:

Statute: Section 1116(b) of the ESEA prescribes a school improvement timeline for a Title I school that misses AYP for at least two consecutive years. Section 1114(a) of the ESEA authorizes a Title I school with a poverty percentage of at least 40 percent to operate a schoolwide program; a school that does not meet that poverty threshold may provide Title I services only to identified students who are failing, or most at risk of failing, to meet State standards.

Current final requirements: Section I.B.2 permits an SEA to seek a waiver of the school improvement timeline in section 1116(b) of the ESEA for any Tier I school—i.e., a Title I school in improvement, corrective action, or restructuring—that implements a turnaround or restart model as defined in section I.A.2(a) and (b). Section I.B.3 permits an SEA to seek a waiver of the poverty threshold in section 1114(a) for any Tier I school below that threshold in order that the school may implement one of the school intervention models defined in section I.A.2 through a schoolwide program.

Interim final requirements: The interim final requirements amend section I.B.2 to clarify that an SEA may seek a waiver of the school improvement timeline in section 1116(b) with respect to a Tier I or Tier II Title I participating school that implements a turnaround or restart model. The interim final requirements also amend section I.B.3 to clarify that an SEA may seek a waiver of the schoolwide program poverty threshold in section 1114(a) with respect to a Tier I or Tier II Title I participating school below that threshold in order that the school may implement one of the school intervention models through a schoolwide program.

Reasons: In expanding eligibility, the Consolidated Appropriations Act, 2010 created the possibility of identifying as Tier II schools secondary schools that receive Title I, Part A funds. It also created the possibility of identifying as Tier I schools elementary schools that are eligible for, but do not receive, Title I, Part A funds. Accordingly, we are clarifying in sections I.B.2 and I.B.3 that waivers of sections 1116(b) and 1114(a) of the ESEA would be appropriate for Tier II schools that receive Title I, Part A funds as well as for Tier I schools that receive Title I, Part A funds. The phrase “Title I participating school”—i.e., a school that receives Title I, Part A funds—has been added in both sections; waivers are not necessary for non-Title I schools in either Tier I or Tier II because the requirements in sections 1116 and 1114 do not apply to those schools.

Section I.B.4—waiver to serve a Tier II school:

Statute: Section 1003(g) of the ESEA requires an SEA to award SIG funds only to LEAs with one or more Title I schools in improvement, corrective action, or restructuring. The Consolidated Appropriations Act, 2010 expands the group of schools eligible to be served with SIG funds to include any school that is eligible to receive Title I, Part A funds, including Tier II secondary schools that are eligible for, but do not receive, those funds.

Current final requirements: Section I.B.4 permits an SEA to seek a waiver from the Secretary to enable an LEA to use SIG funds to serve a Tier II secondary school that is eligible for, but does not receive, Title I, Part A funds.

Interim final requirements: The interim final requirements remove section I.B.4.

Reasons: Section I.B.4 is no longer needed. Because the Consolidated Appropriations Act, 2010 authorizes an SEA and LEA to use SIG funds to serve secondary schools that are eligible for, but do not receive, Title I, Part A funds, an SEA no longer needs a waiver to do so.

Section II.A.1—LEA eligibility:

Statute: Section 1003(g) of the ESEA requires an SEA to award SIG funds only to LEAs with Title I schools in improvement, corrective action, or restructuring. The Consolidated Appropriations Act, 2010 expands this eligibility to permit an SEA to award SIG funds to LEAs that have a school eligible to receive assistance under Title I, Part A that has not made AYP for at least two years or is in the State's lowest quintile of performance based on proficiency rates.

Current final requirements: Section II.A.1 makes clear that, to apply for a SIG grant, an LEA must have one or more schools in Tier I or Tier III. In other words, the current requirements provide that, to be eligible for SIG funds, an LEA must have one or more Title I schools in improvement, corrective action, or restructuring.

Interim final requirements: The interim final requirements amend section II.A.1 to make clear that an LEA may apply for a SIG grant if the LEA receives Title I, Part A funds and has one or more schools that qualify under the State's definition of a Tier I, Tier II, or Tier III school.

Reasons: Based on the expanded eligibility authorized by the Consolidated Appropriations Act, 2010, an LEA may apply for a SIG grant even if it does not have any Title I schools in improvement, corrective action, or restructuring, provided the LEA has one or more schools that are eligible for Title I, Part A funds and meet the criteria in section I.A.1(a) (definition of Tier I schools), (b) (definition of Tier II schools), or (c) (definition of Tier III schools) as defined by the SEA. Accordingly, to be eligible, an LEA must have one or more schools that meet the SEA's definition of a Tier I, Tier II, or Tier III school.

Sections II.A.4 and II.A.5—LEA's budget:

Statute: Section 1003(g)(5) of the ESEA requires an SEA to allocate to an LEA “not less than $50,000 and not more than $500,000 for each participating school.” The Consolidated Appropriations Act, 2010 raises the maximum amount per participating school from $500,000 to $2,000,000.

Current final requirements: Sections II.A.4 and II.A.5 recognize that an LEA's budget will likely need to exceed the statutory maximum of $500,000 for most Tier I and Tier II schools in order for the LEA to implement fully and effectively three of the four school intervention models. Under the current final SIG requirements, additional funds needed to implement school intervention models in Tier I and Tier II schools would be generated by Tier III schools. Section II.A.5 provides that services for a Tier III school do not need to be commensurate with the funds an SEA allocates to the LEA for the school.

Interim final requirements: The interim final requirements remove language that is no longer necessary from sections II.A.4 and II.A.5 regarding an LEA's budget. In section II.A.4, we are removing the last two sentences. We are amending section II.A.5 to read “The LEA's budget for each Tier III school it commits to serve must include the services it will provide the school, particularly if the school meets additional criteria established by the SEA.”

Reasons: Because the Consolidated Appropriations Act, 2010 raises the maximum amount for each participating school from $500,000 to $2,000,000, an LEA's budget can reflect more accurately the actual amount needed to implement one of the four school intervention models in each Tier I and Tier II school the LEA commits to serve. Moreover, the LEA may budget more accurately for its Tier III schools without concern that they generate funds for the LEA's Tier I and Tier II schools.

Section II.A.6—SIG funds are supplemental:

Statute: Section 1114(a)(2)(B) of the ESEA requires an LEA to allocate to a Title I school operating a schoolwide program “the amount of funds that would, in the absence of [Title I, Part A funds], be made available from non-Federal sources for the school, including funds needed to provide services that are required by law for children with disabilities and children with limited English proficiency.”

Current final requirements: None.

Interim final requirements: The interim final requirements add section II.A.6, which requires an LEA that commits to serve one or more Tier I, Tier II, or Tier III schools that do not receive Title I, Part A funds to ensure that each of those schools receives all of the State and local funds it would have received in the absence of the SIG funds.

Reasons: Under the current final SIG requirements, a Tier I school must be a Title I school operating a schoolwide program in order to implement one of the school intervention models. Accordingly, under section 1114(a)(2)(B) of the ESEA, the LEA must provide the school all of the non-Federal funds that would have been available to the school in the absence of Title I, Part A funds. Thus, both Title I, Part A funds and SIG funds are supplemental to the State and local funds the school receives. To ensure that SIG funds are also supplemental in Tier II schools, which are not Title I schools under the final SIG requirements and, thus, are not covered by section 1114(a)(2)(B), we intended to condition a waiver permitting an LEA to serve Tier II schools on the LEA's providing all State and local funds to those schools that they otherwise would have received. Now that the Consolidated Appropriations Act, 2010 has made non-Title I schools eligible as Tier I, Tier II, and Tier III schools without need for a waiver, we cannot ensure that SIG funds will be supplemental to State and local funds without establishing the requirement in section II.A.6.

Sections II.B.4 and II.B.7—priority for funding Tier I and Tier II schools:

Statute: Section 1003(g)(6) of the ESEA requires an SEA to give priority, in awarding SIG grants, to LEAs that demonstrate the greatest need for the funds and the strongest commitment to ensuring that the funds are used to provide adequate resources to enable the lowest-achieving schools to raise student achievement.

Current final requirements: Section II.B.4 requires an SEA to give priority to LEAs that apply to serve both Tier I and Tier II schools and then give priority to LEAs that apply to serve Tier I, but not Tier II, schools. Section II.B.7 requires an SEA to award funds to LEAs that apply to serve only Tier III schools only after it funds all LEAs that apply to serve Tier I or Tier II schools.

Interim final requirements: The interim final requirements amend sections II.B.4 and II.B.7 (as well as various other sections—e.g., sections I.A.4(a), II.A.1, II.A.3) to give equal status to Tier I and Tier II schools. Accordingly, sections II.B.4 and II.B.7 make clear that an LEA that applies to serve either Tier I or Tier II schools receives priority before an LEA that applies to serve only Tier III schools. Moreover, as section II.B.7 makes clear, an SEA must award SIG funds to each LEA to serve the Tier I and Tier II schools that the SEA has approved the LEA to serve before awarding any funds to an LEA to serve a Tier III school. In other words, an SEA must ensure that all Tier I and Tier II schools are funded before it funds the Tier III schools identified in its LEAs' applications.

Reasons: These provisions incorporate the expanded eligibility provisions in the Consolidated Appropriations Act, 2010 to best carry out the statutory priority in the ESEA requiring an SEA to award SIG funds to LEAs with the lowest-achieving schools that demonstrate the greatest need for the funds and the strongest commitment to use the funds to raise student achievement substantially.

Section II.B.9—2010 SIG appropriations:

Statute: The Consolidated Appropriations Act, 2010 appropriated $546 million for SIG grants in FY 2010.

Current final requirements: Section II.B.9 requires certain SEAs and permits other SEAs to carry over 25 percent of their FY 2009 SIG funds and to combine those funds with FY 2010 funds “(depending on the availability of appropriations).”

Interim final requirements: The interim final requirements remove the phrase “(depending on the availability of appropriations)” in section II.B.9(a) and (b).

Reasons: Because the Consolidated Appropriations Act, 2010 appropriated SIG funds for FY 2010, this language is no longer necessary.

Section II.C—renewal for additional one-year periods:

Statute: Section 1003(g)(5)(C) of the ESEA permits an SEA to renew an LEA's SIG grant if schools are meeting the goals under section 1116 of the ESEA.

Current final requirements: Section II.C requires an SEA to renew the SIG grant for each LEA for one-year periods if the LEA demonstrates that its Tier I and Tier II schools are meeting the requirements in section II.A.7 of the final SIG requirements and that its Tier III schools are meeting their goals under section 1116.

Interim final requirements: The interim final requirements amend section II.C(a)(i) to require Tier III schools that receive SIG funds to meet “goals established by the LEA and approved by the SEA.”

Reasons: Under the expanded eligibility authority in the Consolidated Appropriations Act, 2010, non-Title I schools may now be served as Tier III schools if they have missed AYP for at least two years or are in the lowest quintile in the State in terms of proficiency on a State's reading/language arts and mathematics assessments combined. Because those schools are not subject to meeting goals under section 1116 of the ESEA, the interim final requirements include a provision addressing accountability for those schools. This provision in the interim final requirements, therefore, treats all Tier III schools the same; however, to the extent they apply, an LEA may use as the goals for a Tier III school the goals in its school improvement plan under section 1116 of the ESEA.

Interim Final Requirements:

For the reasons discussed previously, the Secretary amends the final SIG requirements published in the Federal Register on December 10, 2009 (74 FR 65618) as follows:

1. Section I.A.1 is amended to read as follows:

1. Greatest need. An LEA with the greatest need for a School Improvement Grant must have one or more schools in at least one of the following tiers:

(a) Tier I schools: (i) A Tier I school is a Title I school in improvement, corrective action, or restructuring that is identified by the SEA under paragraph (a)(1) of the definition of “persistently lowest-achieving schools.”

(ii) At its option, an SEA may also identify as a Tier I school an elementary school that is eligible for Title I, Part A funds that—

(A)(1) Has not made adequate yearly progress for at least two consecutive years; or

(2) Is in the State's lowest quintile of performance based on proficiency rates on the State's assessments under section 1111(b)(3) of the ESEA in reading/language arts and mathematics combined; and

(B) Is no higher achieving than the highest-achieving school identified by the SEA under paragraph (a)(1)(i) of the definition of “persistently lowest-achieving schools.”

(b) Tier II schools: (i) A Tier II school is a secondary school that is eligible for, but does not receive, Title I, Part A funds and is identified by the SEA under paragraph (a)(2) of the definition of “persistently lowest-achieving schools.”

(ii) At its option, an SEA may also identify as a Tier II school a secondary school that is eligible for Title I, Part A funds that—

(A)(1) Has not made adequate yearly progress for at least two consecutive years; or

(2) Is in the State's lowest quintile of performance based on proficiency rates on the State's assessments under section 1111(b)(3) of the ESEA in reading/language arts and mathematics combined; and

(B)(1) Is no higher achieving than the highest-achieving school identified by the SEA under paragraph (a)(2)(i) of the definition of “persistently lowest-achieving schools;” or

(2) Is a high school that has had a graduation rate as defined in 34 CFR 200.19(b) that is less than 60 percent over a number of years.

(c) Tier III schools: (i) A Tier III school is a Title I school in improvement, corrective action, or restructuring that is not a Tier I school.

(ii) At its option, an SEA may also identify as a Tier III school a school that is eligible for Title I, Part A funds that—

(A)(1) Has not made adequate yearly progress for at least two years; or

(2) Is in the State's lowest quintile of performance based on proficiency rates on the State's assessments under section 1111(b)(3) of the ESEA in reading/language arts and mathematics combined; and

(B) Does not meet the requirements to be a Tier I or Tier II school.

(iii) An SEA may establish additional criteria to use in setting priorities among LEA applications for funding and to encourage LEAs to differentiate among Tier III schools in their use of school improvement funds.

2. The introductory language in section I.A.4 is amended to read as follows:

4. Evidence of strongest commitment. (a) In determining the strength of an LEA's commitment to ensuring that school improvement funds are used to provide adequate resources to enable Tier I and Tier II schools to improve student achievement substantially, an SEA must consider, at a minimum, the extent to which the LEA's application demonstrates that the LEA has taken, or will take, action to—

Regulatory History, 74 FR 57538 (November 6, 2009).

The Postal Service seeks to add a new product identified as Express Mail Contract 7 to the Competitive Product List. For the reasons discussed below, the Commission approves the Request.

At the end of October 2009, the Postal Service filed a formal request and associated supporting information pursuant to 39 U.S.C. 3642 and 39 CFR 3020.30 et seq. to add Express Mail Contract 7 to the Competitive Product List.1 The Postal Service asserts that the Express Mail Contract 7 product is a competitive product “not of general applicability” within the meaning of 39 U.S.C. 3632(b)(3). This Request has been assigned Docket No. MC2010-7.

The Postal Service contemporaneously filed a contract related to the proposed new product pursuant to 39 U.S.C. 3632(b)(3) and 39 CFR 3015.5. The contract has been assigned Docket No. CP2010-7.

In support of its Request, the Postal Service filed the following materials: (1) A redacted version of the Governors' Decision authorizing certain types of Express Mail contracts;2 (2) a redacted version of the contract;3 (3) a requested change in the Mail Classification Schedule product list;4 (4) a Statement of Supporting Justification as required by 39 CFR 3020.32;5 (5) a certification of compliance with 39 U.S.C. 3633(a);6 and (6) an application for non-public treatment of the materials filed under seal.7 The redacted version of the contract provides that the contract is terminable on 30 days' notice by either party, but could continue for 3 years from the effective date subject to annual price adjustments. Request, Attachment B.

In the Statement of Supporting Justification, Mary Prince Anderson, Acting Manager, Sales and Communications, Expedited Shipping, asserts that the service to be provided under the contract will cover its attributable costs, make a positive contribution to coverage of institutional costs, and will increase contribution toward the requisite 5.5 percent of the Postal Service's total institutional costs. Request, Attachment D, at 1. W. Ashley Lyons, Manager, Regulatory Reporting and Cost Analysis, Finance Department, certifies that the contract complies with 39 U.S.C. 3633(a). Id., Attachment E.

The Postal Service filed much of the supporting materials, including the supporting data and the unredacted contract, under seal. The Postal Service maintains that the contract and related financial information, including the customer's name and the accompanying analyses that provide prices, certain terms and conditions, and financial projections, should remain confidential. Id., Attachment F, at 2-3.8

In Order No. 331, the Commission gave notice of the two dockets, appointed a public representative, and provided the public with an opportunity to comment.9 On November 2, 2009, Chairman's Information Request No. 1 (CHIR No. 1) was filed. The due date for responding to CHIR No. 1 was set as November 9, 2009. On November 13, 2009, the Postal Service filed a partial response to CHIR No. 1.10 Seeking clarification of information contained in the Postal Service's November 13, 2009 partial response, Chairman's Information Request No. 2 (CHIR No. 2) was filed on November 16, 2009.11 The Postal Service responded to CHIR No. 2 on November 19, 2009.12 On December 9, 2009, the Postal Service filed its response to the outstanding questions in CHIR No. 1.13

Comments were timely filed by the Public Representative on November 9, 2009.14 No comments were submitted by other interested parties. The Public Representative states that the Postal Service's filing meets the pertinent provisions of title 39 and the relevant Commission rules. Id. at 1-3. He further states that the agreement is fair to the parties and employs pricing terms favorable to the customer, the Postal Service, and thereby, the public. Id. at 4-5. The Public Representative also believes that the Postal Service has provided appropriate justification for maintaining confidentiality in this case. Id. at 3.

The Commission has reviewed the Request, the contract, the financial analysis provided under seal that accompanies the Request, the responses to CHIR Nos. 1 and 2, and the comments filed by the Public Representative.

Statutory requirements. The Commission's statutory responsibilities in this instance entail assigning Express Mail Contract 7 to either the Market Dominant Product List or to the Competitive Product List. 39 U.S.C. 3642. As part of this responsibility, the Commission also reviews the proposal for compliance with the Postal Accountability and Enhancement Act (PAEA) requirements. This includes, for proposed competitive products, a review of the provisions applicable to rates for competitive products. 39 U.S.C. 3633.

Product list assignment. In determining whether to assign Express Mail Contract 7 as a product to the Market Dominant Product List or the Competitive Product List, the Commission must consider whether

Throughout this document, the terms “we,” “us,” and “our” refer to the U.S. EPA. Organization of this document: The following outline is provided to aid in locating information in this preamble.

On September 4, 1992, EPA promulgated 40 CFR part 55,1 which established requirements to control air pollution from OCS sources in order to attain and maintain Federal and State ambient air quality standards and to comply with the provisions of part C of title I of the Act. Part 55 applies to all OCS sources offshore of the States except those located in the Gulf of Mexico west of 87.5 degrees longitude. Section 328 of the Act requires that for such sources located within 25 miles of a State's seaward boundary, the requirements shall be the same as would be applicable if the sources were located in the COA. Because the OCS requirements are based on onshore requirements, and onshore requirements may change, section 328(a)(1) requires that EPA update the OCS requirements as necessary to maintain consistency with onshore requirements.

On March 3, 2009, (74 FR 1980), EPA proposed to approve requirements into the OCS Air Regulations pertaining to the State of Alaska. These requirements are being promulgated in response to the submittal of a Notice of Intent on January 9, 2009, by Shell Offshore, Inc. of Houston, Texas. EPA has evaluated the proposed requirements to ensure that they are rationally related to the attainment or maintenance of Federal or State ambient air quality standards or part C of title I of the Act, that they are not designed expressly to prevent exploration and development of the OCS, and that they are applicable to OCS sources. 40 CFR 55.1. EPA has also evaluated the rules to ensure that they are not arbitrary or capricious. 40 CFR 55.12(e). In addition, EPA has excluded administrative or procedural rules.

Section 328(a) of the Act requires that EPA establish requirements to control air pollution from OCS sources located within 25 miles of States' seaward boundaries that are the same as onshore requirements. To comply with this statutory mandate, EPA must incorporate applicable onshore rules into part 55. This limits EPA's flexibility in deciding which requirements will be incorporated into part 55 and prevents EPA from making substantive changes to the requirements it incorporates. As a result, EPA may be incorporating rules into part 55 that do not conform to all of EPA's State Implementation Plan (“SIP”) guidance or certain requirements of the Act. Consistency updates may result in the inclusion of State or local rules or regulations into part 55, even though the same rules may ultimately be disapproved for inclusion as part of the SIP. Inclusion in the OCS rule does not imply that a rule meets the requirements of the Act for SIP approval, nor does it imply that the rule will be approved by EPA for inclusion in the SIP.

EPA's March 3, 2009, proposed action provided a 30-day public comment period which closed on April 2, 2009. On April 2, 2009, the North Slope Borough submitted a summary of comments on EPA's proposed rules and also requested an extension of the public comment period in order to prepare and submit more detailed comments. On April 29, 2009, EPA reopened the public comment period for an additional 14 days. The reopened public comment period closed on May 13, 2009. During this period, we received one comment on the proposed action. This comment was submitted by the North Slope Borough by letter dated May 13, 2009.

Comment: The North Slope Borough seeks clarification on how the rules are rationally related to attainment or maintenance of Federal or State ambient air quality standards without data to support EPA's claim.

Response: EPA is required to perform consistency updates to maintain consistency with onshore regulations. In order to be considered for inclusion in the OCS rule, State and local requirements must have been formally adopted by the regulatory agency. Before a rule can apply to an OCS source, it must be incorporated into part 55 by formal rulemaking. EPA incorporates those onshore rules that comply with the statutory requirements of section 328 of the Clean Air Act that are rationally related to the attainment and maintenance of national or State ambient air quality standards and the prevention of significant deterioration of air quality. EPA must adopt the COA rules into part 55 as they exist onshore. This prevents EPA from making substantive changes to the rules it incorporates. In addition, rules incorporated cannot be used for the purpose or preventing exploration or development of the OCS.

For the proposed rule, EPA reviewed the ACC as amended through November 9, 2008 to identify which rules applicable to OCS sources are rationally related to the attainment or maintenance of Federal or State ambient air quality standards. These rules were incorporated into part 55. Rules that are arbitrary or capricious, administrative or procedural, regulate toxics, and/or designed to prevent exploration and development on the OCS were excluded from incorporation. Section 328 of the Act requires that the requirements for sources located within 25 miles of a State's seaward boundary, shall be the same as would be applicable if the source were located on the COA. EPA's action specifies the OCS requirements that will apply to any OCS source for which Alaska is the COA. The intended effect of approving the OCS requirements is to regulate emissions from OCS sources in accordance with the requirements onshore; to the extent those requirements are applicable to OCS sources and as modified by the requirements of section 328 and 40 CFR part 55. EPA determined that each of the Alaska rules proposed to be incorporated relate to the regulation of criteria pollutants or their precursors and therefore are related to the Federal or State air quality standards or relate to the prevention of significant deterioration. For example, this final rule includes the State of Alaska regulations regarding ambient air quality management including other provisions regarding major and minor stationary source permit, but does not include provisions unrelated to OCS sources or activities. Because EPA must adopt the COA rules into part 55 as they exist onshore, EPA does not make substantive changes to the rules it incorporates. After reviewing Alaska's rules, EPA determined that they are rationally related to the attainment or maintenance of Federal or State ambient air quality standards or part C of title I of the Act, that they are not designed expressly to prevent exploration and development of the OCS and that they are applicable to OCS sources.

Comment: The North Slope Borough requested clarification regarding changes made to the following AAC provisions, that were proposed to be incorporated by reference into part 55: 18 AAC 50.040 Federal Standards Adopted by Reference; 18 AAC 50.055 Industrial Processes and Fuel-Burning Equipment; 18 AAC 50.070 Marine Vessel Visible Emission Standards; 18 AAC 50.260 Best Available Retrofit Technology Under Regional Haze Rule; 18 AAC 50.321 Case-by-Case Maximum Achievable Control Technology; 18 AAC 50.502 Minor Permit for Air Quality Protection; and 18 AAC 50.542 Minor Permit Review and Issuance.

Response: The Alaska Department of Environmental Conservation (“ADEC”) Public Comment Draft dated November 21, 2007, is a marked-up copy detailing the changes it proposed for 18 AAC 50.040, 18 AAC 50.055, 18 AAC 50.502, and 18 AAC 50.542. This document entitled, the “Regulation Hygiene Regulations Explanation of Proposed Changes” identifies changes and rational for each change made in the rules. These changes include updating incorporations by reference; adoption clarifications to existing regulations to fix typos, incorrect references, and internal regulation conflicts; and changes to regulations to eliminate confusion with or misinterpretations of 18 AAC 50. ADEC's proposed rules “Regulation Hygiene Regulations Explanation of Proposed Changes” is included in the docket for this EPA action. The final changes made to 18 AAC 50.040, 18 AAC 50.055, 18 AAC 50.502, and 18 AAC 50.542 were the same as explained in the State proposal. The amended provisions were published in register 187 and were State effective on November 25, 2008.

ADEC's Public Comment Draft for changes made to 18 AAC 50.260 Best Available Retrofit Technology Under Regional Haze Rule, explains the changes the State made to that rule and is also part of the docket for this EPA action.

The North Slope Borough also requested clarification on changes made to 18 AAC 50.070 Marine Vessel Visible Emission Standards and 18 AAC 50.321 Case-by-Case Maximum Achievable Control Technology. EPA's review of these standards did not note any changes since the last final consistency update on February 8, 2007. 18 AAC 50.070 was last amended on June 21, 1998 and 18 AAC 50.321 was last amended on December 1, 2004.

Comment: The North Slope Borough requested an explanation of each change made to part 55, with a rational for each change.

Response: The changes to the regulations are explained above. This comment requesting that the rational for each change be explained is beyond the scope of this part 55 consistency update. In a consistency update, EPA updates part 55 as necessary to maintain consistency with the requirements of the onshore area in order to attain and maintain Federal and State ambient air quality standards and comply with part C of title I of the Act. EPA adopts the applicable COA rules into part 55 as they exist onshore and does not make substantive changes to the rules it incorporates. EPA does not, and is not required to, evaluate or consider the State's rational for each change.

Comment: The North Slope Borough requested an explanation as to why Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low Income Populations, and the potential environmental justice implications of the proposed action is not discussed.

Response: This rulemaking action implements the legal requirements set forth in section 328 of the Act and EPA is required to take the action and has no discretion to do otherwise. Moreover, even if EPA had some legal discretion, there is no reason to believe that the action would constitute a denial of fair treatment or meaningful participation to any person such as to have environmental justice implications. This final rule simply updates the existing OCS rules to make them consistent with the current COA requirements. The OCS rules already apply onshore in the COA and there is no evidence to suggest that the incorporation of the same rules into part 55 will cause any change. In those circumstances, there is no need for any additional review or analysis under Executive Order 12898.

Comment: The North Slope Borough requests clarification on why EPA's action is not significant.

Response: The consistency update simply updates the existing requirements for controlling air pollution from OCS sources to make them consistent with rules in the COA as specifically required by section 328 of the Act. This action does not involve the exercise of policy discretion on the part of EPA. Therefore, as explained in more detail in Section IV below, this action is not likely to have the type of effect or impact or involve the requisite issues to be a significant regulatory action within the meaning of Executive Order 12866, Regulatory Planning and Review.

Additionally, since the consistency update is not a significant regulatory action under Executive Order 12866, it is not a significant energy action under Executive Order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use. Even if the consistency update were a significant regulatory action under Executive Order 12866, EPA has no reason to believe that updating the existing requirements for controlling air pollution from OCS to make them consistent with rules already applied to sources in the COA would be “likely to have a significant adverse effect on the supply, distribution, or use of energy: Within the meaning of section 4(b)(1)(ii) of Executive Order 13211.” Therefore, even if the consistency update were a significant regulatory action under Executive Order 12866, which it is not, it would not be a significant energy action under Executive Order 13211.

Comment: The North Slope Borough wants to know how EPA will comply with the National Environmental Policy Act (“NEPA”).

Response: Congress expressly exempted EPA actions under the Act from NEPA requirements when it passed the Energy Supply and Environmental Coordination Act of 1974 (“ESECA”). The exemption provides: “No action taken under the Act shall be deemed a major Federal action significantly affecting the quality of the human environment within the meaning of National Environmental Policy Act * * *” (15 U.S.C. 793(c)(1)). Since section 328 of the Act requires EPA to establish requirements to control air pollution from OCS sources, and the ESECA exempts action taken under the Act from being deemed a major Federal action, NEPA requirements do not apply to this action.

Comment: The North Slope Borough would like to know how local laws and regulations, such as the North Slope Borough's Title 19 are considered in the consistency update.

Response: The North Slope Borough's Title 19 includes rules for the creation of the Department of Planning and Community Service (Chapter 19.05), General Provision (Chapter 19.10), and Definitions (Chapter 19.20). The Department of Planning and Community Service is responsible for administering the North Slope Borough's planning and zoning ordinances, the Costal Zone Management Plan, and the Barrow Zoning Ordinance; ensuring compliance with local, State, and Federal law regarding land use; providing review and comment on development issues; providing for a geographical database covering the entire North Slope Borough including mapping and graphic services; gathering information and developing a comprehensive capital improvement program plans for the North Slope Borough; providing teleconferencing facilities; gathering and preserving data regarding Inupiat history, language, and culture; and supporting the Simeon Paneak Museum in Anaktuvuk Pass.

As stated in title 19, the purpose of the General Provisions is to: (1) Achieve the goals and objectives, and implement the policies of, the North Slope Borough Comprehensive Plan, including its Costal Management Program; (2) ensure that the future growth and development of the Borough is in accordance with the values of its residents; (3) identify and secure, for present and future residents, the beneficial impacts of development; (4) identify and avoid, mitigate, or prohibit the negative impacts of development; and (5) ensure that future development is of the proper type, design and location, and is served by a proper range of public services and facilities. (Chapter 19.10.010)

After receiving the comment, EPA reviewed the North Slope Borough's Title 19 and determined that these rules are not related to the attainment or maintenance of the Federal or State ambient air quality standards or necessary to assure compliance with the provisions of Part C of subchapter I of the Act. Therefore, EPA determined that these rules are not appropriate for inclusion into part 55.

Comment: The North Slope Borough would like EPA to identify how part 55 will provide for the consideration of greenhouse gases.

Response: The comment goes beyond the scope of this rulemaking. As explained above, this rulemaking simply updates Part 55 by incorporating into those regulations the existing COA requirements related to the attainment or maintenance of the Federal or State ambient air quality standards and the standards necessary to assure compliance with the provisions of Part C of subchapter I of the Act. We take this action pursuant to section 328 of the Act. We believe we will, through this action, have incorporated all of the relevant requirements of the COA.

Comment: The North Slope Borough requested that EPA clarify what version of the State rules is being adopted into 40 CFR part 55 Appendix A.

Response: EPA reviewed the applicable dates in Appendix A and noted that some of the proposed rules contained out-of-date State effective dates. These have been corrected and all the rules listed in the Appendix now reflect current effective dates. A marked up copy of the changes are available in the docket.

Comment: The North Slope Borough requests that EPA clearly explain how the agency will ensure that the increments established to prevent significant deterioration (“PSD”) of air quality will be protected within 25 miles of Alaska's seaward boundary. The North Slope Borough specifically asks EPA to clarify the applicable baseline areas and baseline dates for OCS sources nearest Alaska and to clearly explain the requirements for new and modified OCS sources with respect to PSD increment analyses.

Response: The comment raises questions that go beyond the scope of this rulemaking. As previously explained, the purpose of this rulemaking is to update the OCS rules applicable to OCS sources located within 25 miles of Alaska's seaward boundary so that they remain consistent with the onshore rules. Section 328 of the Act requires EPA to establish requirements to control air pollution from OCS sources to attain and maintain Federal and State ambient air quality standards and to comply with the provisions of part C of title I (the provisions regarding prevention of significant deterioration). For OCS sources located within 25 miles of a State's seaward boundaries, these requirements are to be the same as would be applicable if the source were located in the COA.

EPA has met this requirement by incorporating the COA rules into the Federal rules for OCS sources, specifically into 40 CFR 55.14. In the case of the Alaska OCS, these rules include, among other things, the State's PSD permitting rule (18 AAC 50.306), the State rule that documents the PSD baseline areas and baseline dates for the COA (18 AAC 50.020) and the requirement for a PSD source to demonstrate that the allowable emissions from the new source or modification would not cause or contribute to a violation of an applicable PSD increment (see 40 CFR 52.21(k)(2)), incorporated by reference into ADEC's rules at 18 AAC 50.040(h). This update incorporates the current onshore rules regarding increment to make them consistent with the existing requirements in the COA.

Comment: The North Slope Borough also incorporated into its comments a letter it had previously sent to the Minerals Management Service (“MMS”) regarding the MMS' air quality analysis for the Beaufort Sea and the Chukchi Sea Planning Areas Oil and Gas lease sales 209, 212, 217 and 221 Draft Environmental Impact Statement OCS EIS/EA MMS 2008-0055.

Response: The comments contained in the letter to the MMS relate to the analysis the MMS conducted on the air impacts that could occur as a result of the actions authorized under the Draft Environmental Impact Statement. These comments do not relate to the proposed EPA action which is simply to incorporate the applicable onshore regulations into part 55. These comments are therefore beyond the scope of this rulemaking.

In this document, EPA takes final action to incorporate the changes proposed on March 3, 2009 except for 18 AAC 50.410 into 40 CFR part 55. Subsequent to EPA's March 3, 2009 proposed changes to 40 CFR part 55, the State of Alaska adopted regulation changes in Title 18, Chapter 50 of the Alaska Administrative Code (“ACC”). More specifically, as amended through June 18, 2009, Alaska revised the Air Emission User Fee provision in 18 AAC 50.410 to extend the date through which the current emission fee rates apply to stationary sources permitted under AS 46.14 from to June 30, 2009 to June 30, 2010 and clarified that the fee applies annually. EPA is taking direct final action, under Docket ID No. EPA-R10-OAR-2009-0799, to incorporate 18 AAC 50.410 as amended through June 18, 2009 rather than the version referenced on March 3, 2009 proposal, into 40 CFR part 55.

As described above, EPA is approving the action under section 328(a)(1) of the Act, 42 U.S.C. 7627. Section 328(a) of the Act requires that EPA establish requirements to control air pollution from OCS sources located within 25 miles of States' seaward boundaries that are the same as onshore requirements. To comply with this statutory mandate, EPA incorporates applicable onshore rules into part 55 as they exist onshore.

Under the Clean Air Act, the Administrator is required to establish requirements to control air pollution from OCS sources located within 25 miles of States' seaward boundaries that are the same as onshore air control requirements. To comply with this statutory mandate, EPA must incorporate applicable onshore rules into part 55 as they exist onshore. 42 U.S.C. 7627(a)(1); 40 CFR 55.12. Thus, in promulgating OCS consistency updates, EPA's role is to maintain consistency between OCS regulations and the regulations of onshore areas, provided that they meet the criteria of the Clean Air Act. Accordingly, this action simply updates the existing OCS requirements to make them consistent with requirements onshore, without the exercise of policy discretion by EPA. For that reason, this action:

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

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

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

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

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

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

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

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

In addition, this rule does not have Tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because 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, nor does it impose substantial direct compliance costs on Tribal governments, nor preempt Tribal law.

Under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. OMB has approved the information collection requirements contained in 40 CFR part 55 and, by extension, this update to the rules, and has assigned OMB control number 2060-0249. Notice of OMB's approval of EPA Information Collection Request (“ICR”) No. 1601.07 was published in the Federal Register on February 17, 2009 (74 FR 7432). The approval expires January 31, 2012. As EPA previously indicated (70 FR 65897-65898 (November 1, 2005)), the annual public reporting and recordkeeping burden for collection of information under 40 CFR part 55 is estimated to average 549 hours per response, using the definition of burden provided in 44 U.S.C. 3502(2).

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

Under section 307(b)(1) of the Clean Air, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by March 22, 2010. Filing a petition for reconsideration by the Administrator of this final action does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)).

Throughout this document, the terms “we,” “us,” and “our” refer to the U.S. EPA. Organization of this document: The following outline is provided to aid in locating information in this preamble

On September 4, 1992, EPA promulgated 40 CFR part 55,1 which established requirements to control air pollution from OCS sources in order to attain and maintain Federal and State ambient air quality standards and to comply with the provisions of part C of title I of the Act. Part 55 applies to all OCS sources offshore of the States except those located in the Gulf of Mexico west of 87.5 degrees longitude. Section 328 of the Act requires that for such sources located within 25 miles of a State's seaward boundary, the requirements shall be the same as would be applicable if the sources were located in the COA. Because the OCS requirements are based on onshore requirements, and onshore requirements may change, section 328(a)(1) requires that EPA update the OCS requirements as necessary to maintain consistency with onshore requirements.

Section 328(a) of the Act requires that EPA establish requirements to control air pollution from OCS sources located within 25 miles of States' seaward boundaries that are the same as onshore requirements. To comply with this statutory mandate, EPA must incorporate applicable onshore rules into part 55. This limits EPA's flexibility in deciding which requirements will be incorporated into part 55 and prevents EPA from making substantive changes to the requirements it incorporates. As a result, EPA may be incorporating rules into part 55 that do not conform to all of EPA's State Implementation Plan (“SIP”) guidance or certain requirements of the Act. Consistency updates may result in the inclusion of State or local rules or regulations into part 55, even though the same rules may ultimately be disapproved for inclusion as part of the SIP. Inclusion in the OCS rule does not imply that a rule meets the requirements of the Act for SIP approval, nor does it imply that the rule will be approved by EPA for inclusion in the SIP.

On March 3, 2009, (74 FR 1980), EPA proposed to approve requirements into the OCS Air Regulations pertaining to the State of Alaska. These requirements were promulgated in response to the submittal of a Notice of Intent on January 9, 2009, by Shell Offshore, Inc. of Houston, Texas. Subsequent to EPA's March 3, 2009 proposed changes to 40 CFR part 55, the State of Alaska adopted regulation changes in Title 18, Chapter 50 of the Alaska Administrative Code (“ACC”). More specifically, as amended through June 18, 2009, Alaska revised the Air Emission User Fee provision in 18 AAC 50.410 to extend the date through which the current emission fee rates apply to stationary sources permitted under AS 46.14 from to June 30, 2009 to June 30, 2010 and clarified that the fee applies annually. This direct final action relates only to the air emission user fee provision in 18 AAC 50.410.

EPA has evaluated the proposed requirements to ensure that they are rationally related to the attainment or maintenance of federal or state ambient air quality standards or part C of title I of the Act, that they are not designed expressly to prevent exploration and development of the OCS, and that they are applicable to OCS sources. 40 CFR 55.1. EPA has also evaluated the rules to ensure that they are not arbitrary or capricious. 40 CFR 55.12(e). In addition, EPA has excluded administrative or procedural rules.

Today EPA is taking direct final action to incorporate 18 AAC 50.410 as amended through June 18, 2009. This direct final rule will be effective March 22, 2010, without further notices, unless EPA receives adverse comment by February 22, 2010. If adverse comment is received, EPA will publish a timely withdrawal of the direct final rule incorporating 18 AAC 50.410 as amended through June 18, 2009 in the Federal Register informing the public that the rule will not take effect.

In this document, EPA takes direct final action to incorporate 18 AAC 50.410, as amended through June 18, 2009, into 40 CFR part 55. As described above, EPA is approving the action under section 328(a)(1) of the Act, 42 U.S.C. 7627. Section 328(a) of the Act requires that EPA establish requirements to control air pollution from OCS sources located within 25 miles of states' seaward boundaries that are the same as onshore requirements. To comply with this statutory mandate, EPA incorporates applicable onshore rules into part 55 as they exist onshore.

Under the Clean Air Act, the Administrator is required to establish requirements to control air pollution from OCS sources located within 25 miles of States' seaward boundaries that are the same as onshore air control requirements. To comply with this statutory mandate, EPA must incorporate applicable onshore rules into part 55 as they exist onshore. 42 U.S.C. 7627(a)(1); 40 CFR 55.12. Thus, in promulgating OCS consistency updates, EPA's role is to maintain consistency between OCS regulations and the regulations of onshore areas, provided that they meet the criteria of the Clean Air Act. Accordingly, this action simply updates the existing OCS requirements to make them consistent with requirements onshore, without the exercise of policy discretion by EPA. For that reason, this action:

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

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

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

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

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

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

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

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

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because 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, nor does it impose substantial direct compliance costs on tribal governments, nor preempt tribal law.

Under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. OMB has approved the information collection requirements contained in 40 CFR part 55 and, by extension, this update to the rules, and has assigned OMB control number 2060-0249. Notice of OMB's approval of EPA Information Collection Request (“ICR”) No. 1601.07 was published in the Federal Register on February 17, 2009 (74 FR 7432). The approval expires January 31, 2012. As EPA previously indicated (70 FR 65897-65898 (November 1, 2005)), the annual public reporting and recordkeeping burden for collection of information under 40 CFR part 55 is estimated to average 549 hours per response, using the definition of burden provided in 44 U.S.C. 3502(2).

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

Under section 307(b)(1) of the Clean Air, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by March 22, 2010. Filing a petition for reconsideration by the Administrator of this final action does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2.))

In rule document 2010-12 beginning on page 927 in the issue of Thursday, January 7, 2010, make the following corrections:

1. On page 929, in the first column, under the Revisions to the Falconry Regulations heading, in the third line, “(d)(1)(ii)(A)(4)” should read “(d)(1)(ii)(A)(4)”.

2. On the same page, in the second column, in paragraph (5), in the second line, “§21.29(d)(1)(ii)(A)(4)” should read “§21.29(d)(1)(ii)(A)(4)”.

Extensive supplementary information was provided in the proposed rule for this activity, which was published in the Federal Register on Thursday, April 30, 2009 (74 FR 20156). This information will not be reprinted here in its entirety; rather, all sections from the proposed rule will be represented herein and will contain either a summary of the material presented in the proposed rule or a note referencing the page(s) in the proposed rule where the information may be found. Any information that has changed since the proposed rule was published will be addressed herein. Additionally, this final rule contains a section that responds to the comments received during the public comment period.

Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of Commerce (Secretary) to allow, upon request, the incidental, but not intentional taking of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) during periods of not more than five consecutive years each if certain findings are made and regulations are issued or, if the taking is limited to harassment, notice of a proposed authorization is provided to the public for review.

Authorization shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses, and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such taking are set forth.

NMFS has defined “negligible impact” in 50 CFR 216.103 as:

The NDAA (Pub. L. 108-136) removed the “small numbers” and “specified geographical region” limitations and amended the definition of “harassment” as it applies to a “military readiness activity” to read as follows (Section 3(18)(B) of the MMPA):

On April 1, 2008, NMFS received an application, which was subsequently amended on February 12, 2009 with additional information, from the Navy requesting authorization for the take of 10 species of cetaceans incidental to the NSWC PCD's Research, Development, Test and Evaluation (RDT&E) mission activities over the course of 5 years. These RDT&E activities are classified as military readiness activities. The Navy states that these RDT&E activities may cause various impacts to marine mammal species in the proposed action area (e.g., mortality, Level A and B harassment). The Navy requests an authorization to take individuals of these cetacean species by Level B Harassment. Further, the Navy requests authorization to take 2 bottlenose dolphins, 2 Atlantic spotted dolphins, 1 pantropical spotted dolphin, and 1 spinner dolphin per year by Level A harassment (injury), as a result of the proposed mission activities. Please refer to Tables 6-3, 6-4, 6-6, 6-7, 6-8, and 6-9 of the Letter of Authorization (LOA) Addendum for detailed information of the potential marine mammal exposures from the NSWC PCD mission activities per year. However, due to the proposed mitigation and monitoring measures, NMFS estimates that the take of marine mammals is likely to be lower than the amount requested. Although the Navy requests authorization to take marine mammals by mortality, NMFS does not expect any animals to be killed, and NMFS is not proposing to authorize any mortality (severe lung injury) incidental to the Navy's NSWC PCD mission activities.

The proposed rule contains a description of the Navy's mission, their responsibilities pursuant to Title 10 of the United States Code, and the specific purpose and need for the activities for which they requested incidental take authorization. The description contained in the proposed rule has not changed (74 FR 20156; April 30, 2009; pages 20156-20157).

The proposed rule contains a complete description of the Navy's specified activities that are covered by these final regulations, and for which the associated incidental take of marine mammals will be authorized in the related LOAs. The proposed rule describes the nature and levels of the RDT&E activities. These RDT&E activities consist of surface operations, sonar operations, and ordnance operations. The narrative description of the action contained in the proposed rule has not changed. Tables 1 and 2 summarize the nature and levels of the sonar and ordnance operations. The level of the surface operations remains 7,443 hours per year, and is qualitatively described in the proposed rule (74 FR 20157; April 30, 2009) with no changes.

There are 30 marine mammal species with possible or confirmed occurrence in the NSWC PCD Study Area. As indicated in Table 3, there are 29 cetacean species (7 mysticetes and 22 odontocetes) and one sirenian species. Table 3 also includes the federal status of these marine mammal species. Seven marine mammal species listed as federally endangered under the Endangered Species Act (ESA) occur in the study area: the humpback whale, North Atlantic right whale, sei whale, fin whale, blue whale, sperm whale, and West Indian manatee. Of these 30 species with occurrence records in the NSWC PCD Study Area, 22 species regularly occur here. These 22 species are: Bryde's whale, sperm whale, pygmy sperm whale, dwarf sperm whale, Cuvier's beaked whale, Gervais' beaked whale, Sowerby's beaked whale, Blainville's beaked whale, killer whale, false killer whale, pygmy killer whale, short-finned pilot whale, Risso's dolphin, melon-headed whale, rough-toothed dolphin, bottlenose dolphin, Atlantic spotted dolphin, pantropical spotted dolphin, striped dolphin, spinner dolphin, Clymene dolphin, and Fraser's dolphin. The remaining 8 species (i.e., North Atlantic right whale, humpback whale, sei whale, fin whale, blue whale, minke whale, True's beaked whale, and West Indian manatee) are extralimital and are excluded from further consideration of impacts from the NSWC PCD testing mission. The Description of Marine Mammals in the Area of the Specified Activities section has not changed from what was in the proposed rule (74 FR 20156; pages 20160-20161).

An understanding of the basic properties of underwater sound is necessary to comprehend many of the concepts and analyses presented in this document. A detailed description of this topic was provided in the proposed rule (74 FR 20156; pages 20161-20162) and is, therefore, not repeated herein.

With respect to the MMPA, NMFS' effects assessment serves four primary purposes: (1) To prescribe the permissible methods of taking (i.e., Level B Harassment (behavioral harassment), Level A Harassment (injury), or mortality, including an identification of the number and types of take that could occur by Level A or B harassment or mortality) and to prescribe other means of effecting the least practicable adverse impact on such species or stock and its habitat (i.e., mitigation); (2) to determine whether the specified activity will have a negligible impact on the affected species or stocks of marine mammals (based on the likelihood that the activity will adversely affect the species or stock through effects on annual rates of recruitment or survival); (3) to determine whether the specified activity will have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (however, there are no subsistence communities in the NSWC PCD Study Area); and (4) to prescribe requirements pertaining to monitoring and reporting.

In the Potential Impacts to Marine Mammal Species section of the proposed rule, NMFS included a qualitative discussion of the different ways that sonar and underwater explosive detonations from ordnance operations and projectile firing may potentially affect marine mammals (See 74 FR 20156; April 30, 2009; pages 20162-20178). Marine mammals may experience direct physiological effects (such as threshold shift), acoustic masking, impaired communications, stress responses, and behavioral disturbance. The information contained in Potential Impacts to Marine Mammal Species section from sonar operations and underwater detonation from ordnance operations and projectile firing from the proposed rule has not changed.

Additional analyses on potential impacts to marine mammals from vessel movement within the NSWC PCD Study Area are added below.

There are limited data concerning marine mammal behavioral responses to vessel traffic and vessel noise, and a lack of consensus among scientists with respect to what these responses mean or whether they result in short-term or long-term adverse effects. In those cases where there is a busy shipping lane or where there is large amount of vessel traffic, marine mammals may experience acoustic masking (Hildebrand, 2005) if they are present in the area (e.g., killer whales in Puget Sound; Foote et al., 2004; Holt et al., 2008). In cases where vessels actively approach marine mammals (e.g., whale watching or dolphin watching boats), scientists have documented that animals exhibit altered behavior such as increased swimming speed, erratic movement, and active avoidance behavior (Bursk, 1983; Acevedo, 1991; Baker and MacGibbon, 1991; Trites and Bain, 2000; Williams et al., 2002; Constantine et al., 2003), reduced blow interval (Ritcher et al., 2003), disruption of normal social behaviors (Lusseau, 2003; 2006), and the shift of behavioral activities which may increase energetic costs (Constantine et al., 2003; 2004)). A detailed review of marine mammal reactions to ships and boats is available in Richardson et al. (1995). For each of the marine mammal's taxonomy groups, Richardson et al. (1995) provided the following assessment regarding cetacean reactions to vessel traffic:

Toothed whales: “In summary, toothed whales sometimes show no avoidance reaction to vessels, or even approach them. However, avoidance can occur, especially in response to vessels of types used to chase or hunt the animals. This may cause temporary displacement, but we know of no clear evidence that toothed whales have abandoned significant parts of their range because of vessel traffic.”

Baleen whales: “When baleen whales receive low-level sounds from distant or stationary vessels, the sounds often seem to be ignored. Some whales approach the sources of these sounds. When vessels approach whales slowly and nonaggressively, whales often exhibit slow and inconspicuous avoidance maneuvers. In response to strong or rapidly changing vessel noise, baleen whales often interrupt their normal behavior and swim rapidly away. Avoidance is especially strong when a boat heads directly toward the whale.”

It is important to recognize that behavioral responses to stimuli are complex and influenced to varying degrees by a number of factors such as species, behavioral contexts, geographical regions, source characteristics (moving or stationary, speed, direction, etc.), prior experience of the animal, and physical status of the animal. For example, studies have shown that beluga whales reacted differently when exposed to vessel noise and traffic. In some cases, naïve beluga whales exhibited rapid swimming from ice-breaking vessels up to 80 km away, and showed changes in surfacing, breathing, diving, and group composition in the Canadian high Arctic where vessel traffic is rare (Finley et al., 1990). In other cases, beluga whales were more tolerant of vessels, but differentially responsive by reducing their calling rates, to certain vessels and operating characteristics (especially older animals) in the St. Lawrence River where vessel traffic is common (Blane and Jaakson, 1994). In Bristol Bay, Alaska, beluga whales continued to feed when surrounded by fishing vessels and resisted dispersal even when purposefully harassed (Fish and Vania, 1971).

In reviewing more than 25 years of whale observation data, Watkins (1986) concluded that whale reactions to vessel traffic were “modified by their previous experience and current activity: Habituation often occurred rapidly, attention to other stimuli or preoccupation with other activities sometimes overcame their interest or wariness of stimuli.” Watkins noticed that over the years of exposure to ships in the Cape Cod area, minke whales (Balaenoptera acutorostrata) changed from frequent positive (such as approaching vessels) interest to generally uninterested reactions; finback whales (B. physalus) changed from mostly negative (such as avoidance) to uninterested reactions; right whales (Eubalaena glacialis) apparently continued the same variety of responses (negative, uninterested, and positive responses) with little change; and humpbacks (Megaptera novaeangliae) dramatically changed from mixed responses that were often negative to often strongly positive reactions. Watkins (1986) summarized that “whales near shore, even in regions with low vessel traffic, generally have become less wary of boats and their noises, and they have appeared to be less easily disturbed than previously. In particular locations with intense shipping and repeated approaches by boats (such as the whale-watching areas of Stellwagen Bank), more and more whales had P [positive] reactions to familiar vessels, and they also occasionally approached other boats and yachts in the same ways.”

In the case of the NSWC PCD Study Area, naval vessel traffic is expected to be much lower than in areas where there are large shipping lanes and large numbers of fishing vessels and/or recreational vessels. Nevertheless, the proposed action area is well traveled by a variety of commercial and recreational vessels, so marine mammals in the area are expected to be habituated to vessel noise.

As described in the proposed rule, typical vessel movement occurring at the surface includes the deployment or towing of mine counter-measure equipment, retrieval of equipment, and clearing and monitoring for non-participating vessels. The Navy estimates a total of up to 7,443 hours (310 vessel days) of surface operations per year. These operations are widely dispersed throughout the NSWC PCD Study Area.

Moreover, naval vessels transiting the study area or engaging in RDT&E activities will not actively or intentionally approach a marine mammal or change speed drastically.

The final rule contains additional mitigation measures requiring Navy vessels to keep at least 500 yards (460 m) away from any observed whale and at least 200 yards (183 m) from marine mammals other than whales, and avoid approaching animals head-on. Although the radiated sound from the vessels will be audible to marine mammals over a large distance, it is unlikely that animals will respond behaviorally to low-level distant shipping noise as the animals in the area are likely to be habituated to such noises (Nowacek et al., 2004). In light of these facts, NMFS does not expect the Navy's vessel movements to result in Level B harassment.

In order to issue an incidental take authorization (ITA) under Section 101(a)(5)(A) of the MMPA, NMFS must prescribe regulations setting forth the “permissible methods of taking pursuant to such activity, and other means of effecting the least practicable adverse impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.” The NDAA amended the MMPA as it relates to military readiness activities and the incidental take authorization process such that “least practicable adverse impact” shall include consideration of personnel safety, practicality of implementation, and impact on the effectiveness of the “military readiness activity.” The NSWC PCD's RDT&E activities are considered military readiness activities.

NMFS reviewed the Navy's proposed NSWC PCD's RDT&E activities and the proposed NSWC PCD's mitigation measures presented in the Navy's application to determine whether the activities and mitigation measures were capable of achieving the least practicable adverse effect on marine mammals.

Any mitigation measure prescribed by NMFS should be known to accomplish, have a reasonable likelihood of accomplishing (based on current science), or contribute to the accomplishment of one or more of the general goals listed below:

(1) Avoidance or minimization of injury or death of marine mammals wherever possible (goals (2), (3), and (4) may contribute to this goal).

(2) A reduction in the numbers of marine mammals (total number or number at biologically important time or location) exposed to underwater detonations or other activities expected to result in the take of marine mammals (this goal may contribute to (1), above, or to reducing harassment takes only).

(3) A reduction in the number of times (total number or number at biologically important time or location) individuals would be exposed to underwater detonations or other activities expected to result in the take of marine mammals (this goal may contribute to (1), above, or to reducing harassment takes only).

(4) A reduction in the intensity of exposures (either total number or number at biologically important time or location) to underwater detonations or other activities expected to result in the take of marine mammals (this goal may contribute to (1), above, or to reducing the severity of harassment takes only).

(5) A reduction in adverse effects to marine mammal habitat, paying special attention to the food base, activities that block or limit passage to or from biologically important areas, permanent destruction of habitat, or temporary destruction/disturbance of habitat during a biologically important time.

(6) For monitoring directly related to mitigation—an increase in the probability of detecting marine mammals, thus allowing for more effective implementation of the mitigation (shut-down zone, etc.).

NMFS reviewed the Navy's proposed mitigation measures, which included a careful balancing of the likely benefit of any particular measure to the marine mammals with the likely effect of that measure on personnel safety, practicality of implementation, and impact on the “military-readiness activity.”

The Navy's proposed mitigation measures were described in detail in the proposed rule (74 FR 20156, pages 20183-20185). The Navy's measures address personnel training, lookout and watchstander responsibilities, operating procedures for RDT&E activities using sonar and underwater detonations of explosives and projectile firing, and mitigation related to vessel traffic. No changes have been made to the mitigation measures described in the proposed rule except the following.

In the Personnel Training section, bullet number 3 is revised to read as:

• Marine Observers shall be trained in marine mammal recognition. Marine Observer training shall include completion of the Marine Species Awareness Training, instruction on governing laws and policies, and overview of the specific Gulf of Mexico species present, and observer roles and responsibilities.

This change is to reflect the NSWC PCD's RDT&E activities that use Marine Observers instead of watchstanders and lookouts in the range complexes training. In addition, a Personal Qualification Standard Program mentioned in the proposed rule (74 FR 20156; April 30, 2009; page 20184) does not exist for civilian Marine Observers.

In response to a comment from the Marine Mammal Commission on the Navy's Virginia Capes Range Complex training activities, NMFS will require the Navy to suspend its activities immediately if a marine mammal is injured or killed as a result of the proposed Navy RDT&E activities (e.g., instances in which it is clear that munitions explosions caused the injury or death), the Navy shall suspend its activities immediately and report such incident to NMFS.

In addition, a general condition is added to the Operating Procedures section to read: “The Test Director or the Test Director's designee shall maintain the logs and records documenting RDT&E activities should they be required for event reconstruction purposes. Logs and records will be kept for a period of 30 days following completion of a RDT&E mission activity.”

Also, since the term “Aircraft Control Units” is a fleet specific term and is not used during RDT&E activities, bullet number 7 of the Operating Procedures section in the proposed rule (74 FR 20156; April 30, 2009; page 20184) has been changed to read:

• Marine mammal detections shall be immediately reported to the Test Director or the Test Director's designee for further dissemination to vessels in the vicinity of the marine species as appropriate where it is reasonable to conclude that the course of the vessel will likely result in a closing of the distance to the detected marine mammal.

The following conditions under the Operating Procedures section, which appeared in the proposed rule (74 FR 20156; April 30, 2009; page 20184), have been removed because the Navy indicated that sonobuoys and helicopter dipping sonar are no longer part of the NSWC PCD RDT&E activities.

• Aircraft with deployed sonobuoys will use only the passive capability of sonobuoys when marine mammals are detected within 200 yards of the sonobuoy.

• Helicopters shall observe/survey the vicinity of mission activities for 10 minutes before the first deployment of active (dipping) sonar in the water.

• Helicopters shall not dip their sonar within 200 yards (183 m) of a marine mammal and shall cease pinging if a marine mammal closes within 200 yards (183 m) after pinging has begun.

The section titled “Proposed Mitigation Measures for Surface Operations and Other Activities” is changed to “Proposed Mitigation Measures for Surface Operations” to clarify the section (74 FR 20156; April 30, 2009; page 20185). One condition under this section, “(h) All vessels will maintain logs and records documenting RDT&E activities should they be required for event reconstruction purposes. Logs and records shall be kept for a period of 30 days following completion of a RDT&E mission activity,” is deleted as the Navy points out that small vessels do not have the capability to maintain records. Instead, RDT&E activity records will be maintained by the Test Directors as discussed above.

NMFS has determined that these mitigation measures are adequate means of effecting the least practicable adverse impacts on marine mammal species or stocks and their habitat while also considering personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity.

In order to issue an ITA for an activity, Section 101(a)(5)(A) of the MMPA states that NMFS must set forth “requirements pertaining to the monitoring and reporting of such taking.” The MMPA implementing regulations at 50 CFR 216.104(a)(13) indicate that requests for LOAs must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present.

Monitoring measures prescribed by NMFS should accomplish one or more of the following general goals:

(1) An increase in the probability of detecting marine mammals, both within the safety zone (thus allowing for more effective implementation of the mitigation) and in general to generate more data to contribute to the analyses mentioned below.

(2) An increase in our understanding of how many marine mammals are likely to be exposed to levels of HFAS/MFAS (or explosives or other stimuli) that we associate with specific adverse effects, such as behavioral harassment, TTS, or PTS.

(3) An increase in our understanding of how marine mammals respond to HFAS/MFAS (at specific received levels), explosives, or other stimuli expected to result in take and how anticipated adverse effects on individuals (in different ways and to varying degrees) may impact the population, species, or stock (specifically through effects on annual rates of recruitment or survival) through any of the following methods:

• Behavioral observations in the presence of HFAS/MFAS compared to observations in the absence of sonar (need to be able to accurately predict received level and report bathymetric conditions, distance from source, and other pertinent information).

• Physiological measurements in the presence of HFAS/MFAS compared to observations in the absence of sonar (need to be able to accurately predict received level and report bathymetric conditions, distance from source, and other pertinent information), and/or

• Pre-planned and thorough investigation of stranding events that occur coincident to naval activities.

• Distribution and/or abundance comparisons in times or areas with concentrated HFAS/MFAS versus times or areas without HFAS/MFAS.

(4) An increased knowledge of the affected species.

(5) An increase in our understanding of the effectiveness of certain mitigation and monitoring measures.

As NMFS indicated in the proposed rule, the Navy has (with input from NMFS) fleshed out the details of and made improvements to the NSWC PCD Monitoring Plan. Additionally, NMFS and the Navy have incorporated a suggestion from the public, which recommended the Navy hold a peer review workshop to discuss the Navy's Monitoring Plans for the multiple range complexes and training exercises in which the Navy would receive ITAs (see Monitoring Workshop section). The final NSWC PCD Monitoring Plan, which is summarized below, may be viewed at http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications. The Navy plans to implement all of the components of the Monitoring Plan; however, only the marine mammal components (not the sea turtle components) will be required by the MMPA regulations and associated LOAs.

A summary of the monitoring methods required for use during RDT&E activities in the NSWC PCD Study Area are described below. These methods include a combination of individual elements that are designed to allow a comprehensive assessment.

The Navy shall visually survey a minimum of 2 HFAS/MFAS activities and 2 explosive events per year. If the 53C sonar was being operated, such activity must be monitored as one of the HFAS/MFAS activities. For explosive events, one of the monitoring measures shall be focused on a multiple detonation event.

For underwater detonations, the size of the survey area shall be pre-determined based upon the type of explosive event planned and the amount of NEW used. As a conservative measure, the largest zone of influence (ZOI) associated with the upper limit of each NEW shall be surveyed during the RDT&E activities. For example, the Navy would be required to observe the following ZOIs and ensure they are clear of marine mammals prior to conducting explosive ordnance RDT&E activities: 2,863 m for NEW between 76-600 lb; 997 m for NEW between 11-75 lb; and 345 m for NEW less than 11 lb.

If animal(s) are observed prior to or during an explosion, a focal follow of that individual or group shall be conducted to record behavioral responses. The Navy will not begin activities if animals are observed within these ZOIs of the events listed above.

The visual survey team shall collect the same data that are collected by Navy marine observers, including but not limited to: (1) Location of sighting; (2) species; (3) number of individuals; (4) number of calves present, if any; (5) duration of sighting; (6) behavior of marine animals sighted; (7) direction of travel; (8) environmental information associated with sighting event including Beaufort sea state, wave height, swell direction, wind direction, wind speed, glare, percentage of glare, percentage of cloud cover; and (9) when in relation to the Navy RDT&E activities did the sighting occur (before, during or after RDT&E activities). Animal sightings and relative distance from a particular detonation site shall be used post-survey to estimate the number of marine mammals exposed to different received levels (energy and pressure of discharge based on distance to the source, bathymetry, oceanographic conditions and the type and size of detonation) and their corresponding behavior. For vessel-based surveys a passive acoustic system (hydrophone or towed array) or sonobuoys shall be used if operationally feasible to help determine if marine mammals are in the area before and after a detonation event.

Although photo-identification studies are not typically a component of Navy exercise monitoring surveys, the Navy supports using the contracted platforms to obtain opportunistic data collection. Therefore, any digital photographs that are taken of marine mammals during visual surveys shall be provided to local researchers for their regional research.

During sonar operations, an aerial survey team shall fly transects relative to a Navy surface vessel that is transmitting HFA/MFA sonar. The aerial survey team shall collect both visual sightings and behavioral observations of marine animals. These transect data will provide an opportunity to collect data of marine mammals at different received levels and their behavioral responses and movement relative to the Navy vessel's position. Surveys shall include time with and without active sonar in order to compare density, geographical distribution and behavioral observations. After declassification, related sonar transmissions shall be used to calculate exposure levels.

Behavioral observation methods shall involve three professionally trained marine mammal observers and a pilot. Two observers will observe behaviors, one with hand-held binoculars and one with the naked eye. If there is more than one whale, each observer shall record respirations of different animals, ideally from the same animal he/she is observing. In the case of large groups of delphinids, group behavior, speed, orientation, etc., shall be recorded. An observer shall use a video camera to record behaviors in real time. Two external microphones will be used and attached to the video camera to record vocal behavioral descriptions on two different channels of the video camera. The videotape shall be time-stamped and observers shall also call out times. The third observer shall record notes, environmental data, and operate a laptop connected to a GPS and the plane's altimeter.

Detailed behavioral focal observations of cetaceans shall be recorded, including the following variables where possible: Species, group size and composition (number of calves, etc.), latitude/longitude, surface and dive durations and times, number and spacing/times of respirations, conspicuous behaviors (e.g., breach, tail slap, etc.), behavioral states, orientation and changes in orientation, estimated group travel speed, inter-individual distances, defecations, social interactions, aircraft speed, aircraft altitude, distance to focal group (using the plane's radar) and any unusual behaviors.

In addition, to measure whether marine mammals are displaced geographically as a result of sonar operations, systematic line-transect aerial surveys shall be conducted on the two days before and a variation of one to five days after a NSWC PCD RDT&E testing activity to collect relative density data in the testing area for marine mammals in the area. Attempts shall be made to survey during a test event when operationally feasible during the NSWC PCD RDT&E activities. One survey day following the mission activity event shall be devoted to flying coastlines nearest the mission event to look for potential marine mammal strandings. If a stranding is observed, an assessment of the animal's condition (alive, injured, dead, and/or decayed) shall be immediately reported to the Navy for appropriate action and the information will be transmitted immediately to NMFS.

As with the aerial surveys, the vessel surveys shall be designed to maximize detections of any target species near mission activity events for focal follows. Systematic transects shall be used to locate marine mammals, and, the survey should deviate from transect protocol to collect behavioral data particularly if a Navy vessel is visible on the horizon or closer. The team shall go off effort for photo-id and close approach `focal animal follows' as feasible, and when marine animal encounters occur in proximity to the vessel. While in focal follow mode, observers shall gather detailed behavioral data from the animals, for as long as the animal allows. Analysis of behavioral observations shall be made after the RDT&E event. While the Navy vessels are within view, attempts shall be made to position the dedicated survey vessel in the best possible way to obtain focal follow data in the presence of the NSWC PCD test event. If Navy vessels are not in view, then the vessel shall begin a systematic line transect survey within the area to assess marine mammal occurrence and observe behavior. The goal of this part of the survey is to observe marine mammals that may not have been exposed to HFAS/MFAS or explosions. Therefore, post-analysis shall focus on how the location, speed and vector of the survey vessel and the location and direction of the sonar source (e.g. Navy surface vessel) relates to the animal. Any other vessels or aircraft observed in the area will also be documented.

If explosive events are planned to occur adjacent to nearshore areas where there are elevated coastal structures (e.g. lookout tower at Eglin Air Force Base) or topography, then shore-based monitoring, using binoculars or theodolite, may be used to augment other visual survey methods.

The Navy shall visually survey a minimum of 2 HFAS/MFAS activities and 2 explosive events per year. If the 53C sonar was being operated, such activity must be monitored as one of the HFAS/MFAS activities. For explosive events, one of the monitoring measures shall be focused on a multiple detonation event.

While conducting passive acoustic monitoring (PAM), the array shall be deployed for each of the days the ship is at sea. The array shall be able to detect low frequency vocalizations (less than 1,000 Hertz) for baleen whales and relatively high frequency vocalizations (up to 30 kilohertz) for odontocetes such as sperm whales. Since the publishing of the proposed rule (74 FR 20156; April 30, 2009; page 20188), the Navy stated that it does not have a working bottom set hydrophone array to perform the required PAM. Therefore, the language regarding the equipment used for PAM is changed to: `The Navy shall use towed or over-the-side passive acoustic monitoring device/hydrophone array when feasible in the NSWC PCD Study Area for PAM.'

Civilian Marine Mammal Observers (MMOs) aboard Navy vessels shall be used to research the effectiveness of Navy marine observers, as well as for data collection during other monitoring surveys.

MMOs shall be field-experienced observers who are Navy biologists or contracted observers. These civilian MMOs shall be placed alongside existing Navy marine observers during a sub-set of NSWC PCD RDT&E activities. This can only be done on certain vessels and observers may be required to have security clearance. Use of MMOs will verify Navy marine observer sighting efficiency, offer an opportunity for more detailed species identification, provide an opportunity to bring animal protection awareness to the vessels' crew, and provide the opportunity for an experienced biologist to collect data on marine mammal behavior. Data collected by the MMOs is anticipated to assist the Navy with potential improvements to marine observer training as well as providing the marine observers with a chance to gain additional knowledge of marine mammals.

Events selected for MMO participation will be an appropriate fit in terms of security, safety, logistics, and compatibility with NSWC PCD RDT&E activities. The MMOs shall not be part of the Navy's formal reporting chain of command during their data collection efforts and Navy marine observers shall follow their chain of command in reporting marine mammal sightings. Exceptions shall be made if an animal is observed by the MMO within the shutdown zone and was not seen by the Navy marine observer. The MMO shall inform the marine observer of the sighting so that appropriate action may be taken by the chain of command. For less biased data, it is recommended that MMOs should schedule their daily observations to duplicate the Navy marine observers' schedule.

Civilian MMOs shall be aboard Navy vessels involved in the study. As described earlier, MMOs shall meet and adhere to necessary qualifications, security clearance, logistics and safety concerns. MMOs shall monitor for marine mammals from the same height above water as the marine observers and as all visual survey teams, they shall collect the same data collected by Navy marine observers, including but not limited to: (1) Location of sighting; (2) species (if not possible, identification of whale or dolphin); (3) number of individuals; (4) number of calves present, if any; (5) duration of sighting; (6) behavior of marine animals sighted; (7) direction of travel; (8) environmental information associated with sighting event including Beaufort sea state, wave height, swell direction, wind direction, wind speed, glare, percentage of glare, percentage of cloud cover; and (9) when in relation to the Navy RDT&E activities did the sighting occur (before, during or after detonations/exercise).

During the public comment period on past proposed rules for Navy actions (such as the Hawaii Range Complex (HRC) and Southern California Range Complex (SOCAL) proposed rules), NMFS received recommendations that a workshop or panel be convened to solicit input on the monitoring plan from researchers, experts, and other interested parties. The NSWC PCD RDT&E proposed rule included an adaptive management component and both NMFS and the Navy believe that a workshop would provide a means for Navy and NMFS to consider input from participants in determining whether (and if so, how) to modify monitoring techniques to more effectively accomplish the goals of monitoring set forth earlier in the document. NMFS and the Navy believe that this workshop is valuable in relation to all of the Range Complexes and major training exercise rules and LOAs that NMFS is working on with the Navy at this time, and consequently this single Monitoring Workshop will be included as a component of all of the rules and LOAs that NMFS will be processing for the Navy in the next year or so.

The Navy, with guidance and support from NMFS, will convene a Monitoring Workshop, including marine mammal and acoustic experts as well as other interested parties, in 2011. The Monitoring Workshop participants will review the monitoring results from the previous two years of monitoring pursuant to the NSWC PCD RDT&E rule as well as monitoring results from other Navy rules and LOAs (e.g., AFAST, SOCAL, HRC, and other rules). The Monitoring Workshop participants would provide their individual recommendations to the Navy and NMFS on the monitoring plan(s) after also considering the current science (including Navy research and development) and working within the framework of available resources and feasibility of implementation. NMFS and the Navy would then analyze the input from the Monitoring Workshop participants and determine the best way forward from a national perspective. Subsequent to the Monitoring Workshop, modifications would be applied to monitoring plans as appropriate.

In addition to the site-specific Monitoring Plan for the NSWC PCD Study Area, the Navy has completed the Integrated Comprehensive Monitoring Program (ICMP) Plan by the end of 2009. The ICMP was developed by the Navy, with Chief of Naval Operations Environmental Readiness Division (CNO-N45) taken the lead. The program does not duplicate the monitoring plans for individual areas (e.g. AFAST, HRC, SOCAL); instead it is to provide the overarching coordination that will support compilation of data from both range-specific monitoring plans as well as Navy funded research and development (R&D) studies. The ICMP will coordinate the monitoring program's progress towards meeting its goals and developing a data management plan. The ICMP will be evaluated annually to provide a matrix for progress and goals for the following year, and will make recommendations on adaptive management for refinement and analysis of the monitoring methods.

The primary objectives of the ICMP are to:

• Monitor and assess the effects of Navy activities on protected species;

• Ensure that data collected at multiple locations is collected in a manner that allows comparison between and among different geographic locations;

• Assess the efficacy and practicality of the monitoring and mitigation techniques;

• Add to the overall knowledge-base of marine species and the effects of Navy activities on marine species.

The ICMP will be used both as: (1) A planning tool to focus Navy monitoring priorities (pursuant to ESA/MMPA requirements) across Navy Range Complexes and Exercises; and (2) an adaptive management tool, through the consolidation and analysis of the Navy's monitoring and watchstander/marine observer data, as well as new information from other Navy programs (e.g., R&D), and other appropriate newly published information.

In combination with the 2011 Monitoring Workshop and the adaptive management component of the NSWC PCD RDT&E rule and the other planned Navy rules (e.g. Virginia Capes Range Complex, Jacksonville Range Complex, Cherry Point Range Complex, etc.), the ICMP could potentially provide a framework for restructuring the monitoring plans and allocating monitoring effort based on the value of particular specific monitoring proposals (in terms of the degree to which results would likely contribute to stated monitoring goals, as well as the likely technical success of the monitoring based on a review of past monitoring results) that have been developed through the ICMP framework, instead of allocating based on maintaining an equal (or commensurate to effects) distribution of monitoring effort across range complexes.

The ICMP will identify:

• A means by which NMFS and the Navy would jointly consider prior years' monitoring results and advancing science to determine if modifications are needed in mitigation or monitoring measures to better effect the goals laid out in the Mitigation and Monitoring sections of the NSWC PCD RDT&E rule.

• Guidelines for prioritizing monitoring projects

• If, as a result of the workshop and similar to the example described in the paragraph above, the Navy and NMFS decide it is appropriate to restructure the monitoring plans for multiple ranges such that they are no longer evenly allocated (by rule), but rather focused on priority monitoring projects that are not necessarily tied to the geographic area addressed in the rule, the ICMP will be modified to include a very clear and unclassified record-keeping system that will allow NMFS and the public to see how each range complex/project is contributing to all of the ongoing monitoring programs (resources, effort, money, etc.).

The final regulations governing the take of marine mammals incidental to Navy's NSWC PCD RDT&E activities contain an adaptive management component. The use of adaptive management will give NMFS the ability to consider new data from different sources to determine (in coordination with the Navy) on an annual basis if mitigation or monitoring measures should be modified or added (or deleted) if new data suggests that such modifications are appropriate (or are not appropriate) for subsequent annual LOAs.

The following are some of the possible sources of applicable data:

• Results from the Navy's monitoring from the previous year (either from NSWC PCD Study Area or other locations)

• Findings of the Workshop that the Navy will convene in 2011 to analyze monitoring results to date, review current science, and recommend modifications, as appropriate to the monitoring protocols to increase monitoring effectiveness

• Compiled results of Navy funded research and development (R&D) studies.

• Results from specific stranding investigations (either from NSWC PCD Study Area or other locations)

• Results from general marine mammal and sound research (funded by the Navy or otherwise)

• Any information which reveals that marine mammals may have been taken in a manner, extent or number not authorized by these regulations or subsequent Letters of Authorization

Mitigation measures could be modified or added (or deleted) if new data suggests that such modifications would have (or do not have) a reasonable likelihood of accomplishing the goals of mitigation laid out in this final rule and if the measures are practicable. NMFS would also coordinate with the Navy to modify or add to (or delete) the existing monitoring requirements if the new data suggest that the addition of (or deletion of) a particular measure would more effectively accomplish the goals of monitoring laid out in this final rule. The reporting requirements associated with this rule are designed to provide NMFS with monitoring data from the previous year to allow NMFS to consider the data and issue annual LOAs. NMFS and the Navy will meet annually, prior to LOA issuance, to discuss the monitoring reports, Navy R&D developments, and current science and whether mitigation or monitoring modifications are appropriate.

In order to issue an ITA for an activity, Section 101(a)(5)(A) of the MMPA states that NMFS must set forth “requirements pertaining to the monitoring and reporting of such taking”. Effective reporting is critical to ensure compliance with the terms and conditions of a LOA, and to provide NMFS and the Navy with data of the highest quality based on the required monitoring. As NMFS noted in its proposed rule, additional detail has been added to the reporting requirements since they were outlined in the proposed rule. The updated reporting requirements are all included below. A subset of the information provided in the monitoring reports may be classified and not releasable to the public.

Navy personnel will ensure that NMFS (regional stranding coordinator) is notified immediately (or as soon as operational security allows) if an injured or dead marine mammal is found during or shortly after, and in the vicinity of, any Navy RDT&E activities utilizing underwater explosive detonations or other activities. The Navy will provide NMFS with species or description of the animal(s), the condition of the animal(s) (including carcass condition if the animal is dead), location, time of first discovery, observed behaviors (if alive), and photo or video (if available).

The NSWC PCD shall submit a report annually on October 1 describing the RDT&E activities conducted and implementation and results of the NSWC PCD Monitoring Plan (through August 1 of the same year) and RDT&E activities. The report will, at a minimum, include the following information:

• Date and time test began and ended.

• Location.

• Number and types of active sources used in the test.

• Number and types of vessels, aircraft, etc., participated in the test.

• Number and types of underwater detonations.

• Total hours of observation effort (including observation time when sonar was not operating).

• Total hours of all active sonar source operation.

• Total hours of each active sonar source.

• Wave height (high, low, and average during the test).

• Location of sighting.

• Species.

• Number of individuals.

• Calves observed (y/n).

• Initial detection sensor.

• Indication of specific type of platform observation made from.

• Length of time observers maintained visual contact with marine mammal(s).

• Wave height (in feet).

• Visibility.

• Sonar source in use (y/n).

• Indication of whether animal is < 200 yd, 200-500 yd, 500-1,000 yd, 1,000-2,000 yd, or > 2,000 yd from sonar source above.

• Mitigation implementation—Whether operation of sonar sensor was delayed, or sonar was powered or shut down, and how long the delay was.

• If the active MFAS in use is hull mounted, true bearing of animal from ship, true direction of ship's travel, and estimation of animal's motion relative to ship (opening, closing, parallel).

• Observed behavior—Marine observers shall report, in plain language and without trying to categorize in any way, the observed behavior of the animals (such as animal closing to bow ride, paralleling course/speed, floating on surface and not swimming, etc.).

• An evaluation of the effectiveness of mitigation measures designed to avoid exposing marine mammals to mid-frequency sonar. This evaluation shall identify the specific observations that support any conclusions the Navy reaches about the effectiveness of the mitigation.

The Navy will submit to NMFS a draft report that analyzes and summarizes all of the multi-year marine mammal information gathered during HFAS/MFAS and underwater detonation related mission activities for which annual reports are required as described above. This report will be submitted at the end of the fourth year of the rule (October 2013), covering activities that have occurred through May 1, 2013. The Navy will respond to NMFS comments on the draft comprehensive report if submitted within 3 months of receipt. The report will be considered final after the Navy has addressed NMFS' comments, or three months after the submittal of the draft if NMFS does not comment by then.

On April 30, 2009, NMFS published a proposed rule (74 FR 20156) in response to the Navy's request to take marine mammals incidental to conducting RDT&E activities in the NSWC PCD Study Area and requested comments, information and suggestions concerning the request. During the 30-day public comment period, NMFS received comments from 1 private citizen and comments from the Marine Mammal Commission (Commission). The comments are addressed below.

Comment 1: The Commission recommends that NMFS require the Navy to conduct an external peer review of its marine mammal density estimates, including the data upon which those estimates are based and the manner in which those are collected and used.

Response: As discussed in detail in the proposed rule (74 FR 20156, April 30, 2009), marine mammal density estimates were based on the data gathered in the Marine Resource Assessments (MRAs). The Navy MRA Program was implemented by the Commander, Fleet Forces Command, to initiate collection of data and information concerning the protected and commercial marine resources found in the Navy's Operating Areas (OPAREAs). Specifically, the goal of the MRA program is to describe and document the marine resources present in each of the Navy's OPAREAs. The MRA for the NSWC PCD, which includes Pensacola and Panama City OPAREAs, was recently updated in 2007 (DoN, 2008).

Density estimates for cetaceans were derived in one of three ways, in order of preference: (1) Through spatial models using line-transect survey data provided by the NMFS (as discussed below); (2) using abundance estimates from Mullin and Fulling (2004); or (3) based on the cetacean abundance estimates found in the NMFS stock assessment reports (SAR; Waring et al., 2007), which can be viewed at http://www.nmfs.noaa.gov/pr/sars/species.htm. For the model-based approach, density estimates were calculated for each species within areas containing survey effort. A relationship between these density estimates and the associated environmental parameters such as depth, slope, distance from the shelf break, sea surface temperature, and chlorophyll a concentration was formulated using generalized additive models. This relationship was then used to generate a two-dimensional density surface for the region by predicting densities in areas where no survey data exist.

The analyses for cetaceans were based on sighting data collected through shipboard surveys conducted by NMFS Northeast Fisheries Science Center (NEFSC) and Southeast Fisheries Science Center (SEFSC) between 1998 and 2005. Species-specific density estimates derived through spatial modeling were compared with abundance estimates found in the most current NMFS SAR to ensure consistency. All spatial models and density estimates were reviewed by and coordinated with NMFS Science Center technical staff and scientists with the University of St. Andrews, Scotland, Centre for Environmental and Ecological Modeling (CREEM). Draft models and preliminary results were reviewed during a joint workshop attended by Navy, NMFS Science Center, and CREEM representatives. Subsequent revisions and draft reports were reviewed by these same parties. Therefore, NMFS considers that the density estimates, including the data upon which those estimates are based and the manner in which those are collected and used, has already gone through an independent review process.

Comment 2: The Commission recommends the Navy provide additional details concerning its Integrated Comprehensive Monitoring Program, including an estimated time frame for its implementation.

Response: The Navy has developed the ICMP Plan and will distribute it to the Commission and other interested parties. The components of the ICMP Plan that were considered and incorporated into the final rules for the NSWC PCD include:

• A requirement to monitor Navy's RDT&E activities, particularly those involving sonar and underwater detonations, for compliance with the terms and conditions of ESA Section 7 consultations or MMPA authorizations;

• A requirement to minimize exposure of protected species from sound pressure levels from sonar and underwater detonations that result in harassment;

• A requirement to collect data to support estimating the number of individual marine mammals exposed to sound levels above current regulatory thresholds;

• A requirement to assess the adequacy of the Navy's current marine species mitigation;

• A requirement to document trends in species distribution and abundance in Navy mission activity areas through monitoring efforts;

• A requirement to compile data that would improve the Navy and NMFS' knowledge of the potential behavioral and physiological effects to marine species from sonar and underwater detonations.

The ICMP Plan will be used both as: (1) A planning tool to focus Navy monitoring priorities (pursuant to ESA/MMPA requirements) across Navy range complexes and exercises; and (2) an adaptive management tool, through the consolidation and analysis of the Navy's monitoring and watchstander (lookout) data, as well as new information from other Navy programs (e.g., research and development), and newly published non-Navy information. The ICMP Plan is described in the Navy's EIS and LOA application.

Comment 3: The Commission recommends that NMFS require the Navy to develop and implement a plan to evaluate the effectiveness of monitoring and mitigation measures before beginning or in conjunction with operations covered by the proposed incidental take authorization.

Response: NMFS has been working with the Navy throughout the rulemaking process to develop a series of mitigation, monitoring, and reporting protocols. These mitigation, monitoring and reporting measures include, but are not limited to: (1) The use of trained Navy marine observers who will conduct marine mammal monitoring to avoid collisions with marine mammals; (2) the use of exclusion zones that avoid exposing marine mammals to levels of sound likely to result in injury or death of marine mammals; (3) the use of MMOs/Navy marine observers to conduct aerial, vessel, and shore-based surveys; and (4) annual monitoring reports and comprehensive reports to provide insights of impacts to marine mammals.

NMFS has evaluated the effectiveness of the measures and has concluded they will achieve the least practicable adverse impact on the affected marine mammal species or stocks and their habitat. For example, operations will be suspended if trained Navy marine observers and/or MMOs detect marine mammals within the vicinity of the RDT&E activities, thereby preventing marine mammal injury or mortality (use of specified exclusion zones). In addition, prior to conducting RDT&E activities involving sonar or underwater explosive detonation, the Navy will be required to carry out monitoring to make sure that the safety zones are clear of marine mammals, and then during the test activity when feasible. These monitoring and mitigation measures will decrease the number of marine mammals exposed to underwater explosions and exposure to intense sounds from the detonations.

Over the course of the 5-year rule, NMFS will evaluate the Navy's RDT&E activities annually to validate the effectiveness of the measures. NMFS will, through the established adaptive management process, work with the Navy to determine whether additional mitigation and monitoring measures are necessary. In addition, with the implementation of the ICMP Plan by the end of 2009, and the planned Monitoring Workshop in 2011, NMFS will work with the Navy to further improve its monitoring and mitigation plans for its future activities.

Comment 4: The Commission recommends that NMFS implement a 60-minute waiting period when deep-diving species such as sperm and beaked whales or species that cannot be identified by watchstanders are observed within or are about to enter a safety zone.

Response: NMFS does not concur with the Commission's recommendation for the following reasons:

• The ability of an animal to dive longer than 30 minutes does not mean that it will always do so. Therefore, the 60-minute delay would only potentially add value in instances when animals had remained under water for more than 30 minutes.

• Navy vessels typically move at 10-12 knots (5-6 m/sec) when operating active sonar and potentially much faster when not. Fish et al. (2006) measured speeds of 7 species of odontocetes and found that they ranged from 1.4-7.30 m/sec. Even if a vessel was moving at the slower typical speed associated with active sonar use, an animal would need to be swimming near sustained maximum speed for an hour in the direction of the vessel's course to stay within the safety zone of the vessel. Increasing the typical speed associated with active sonar use would further narrow the circumstances in which the 60-minute delay would add value.

• Additionally, the times when marine mammals are deep-diving (i.e., the times when they are under the water for longer periods of time) are the same times that a large portion of their motion is in the vertical direction, which means that they are far less likely to keep pace with a horizontally moving vessel.

• Given that, the animal would need to have stayed in the immediate vicinity of the sound source for an hour and considering the maximum area that both the vessel and the animal could cover in an hour, it is improbable that this would randomly occur. Moreover, considering that many animals have been shown to avoid both acoustic sources and ships without acoustic sources, it is improbable that a deep-diving cetacean (as opposed to a dolphin that might bow ride) would choose to remain in the immediate vicinity of the source. NMFS believes that it is unlikely that a single cetacean would remain in the safety zone of a Navy sound source for more than 30 minutes.

• Last, in many cases, the marine observers are not able to differentiate species to the degree that would be necessary to implement this measure. Plus, Navy operators have indicated that increasing the number of mitigation decisions that need to be made based on biological information is more difficult for the lookouts (because it is not their area of expertise).

Comment 5: The Commission recommends that NMFS require the Navy to suspend an activity if a marine mammal is seriously injured or killed and the injury or death could be associated with the activity. Subsequently, the injury or death should be investigated to determine the cause, assess the full impact of the activity potentially implicated (e.g., the total of animals involved), and determine how the activity should be modified to avoid future injuries or deaths.

Response: Though NMFS largely agrees with the Commission, it should be noted that without detailed examination by an expert, it is usually not feasible to determine the cause of injury or mortality when an injured or dead marine mammal is sighted in the field. Therefore, NMFS has required in its final rule that if there is clear evidence that a marine mammal is injured or killed as a result of the proposed Navy RDT&E activities (e.g., instances in which it is clear that munitions explosions caused the injury or death) the Naval activities shall be immediately suspended and the situation immediately reported by personnel involved in the activity to the Test Director or the Test Director's designee, who will follow Navy procedures for reporting the incident to NMFS through the Navy's chain-of-command.

For any other sighting of injured or dead marine mammals in the vicinity of any Navy's RDT&E activities utilizing underwater explosive detonations for which the cause of injury or mortality cannot be immediately determined, the Navy personnel will ensure that NMFS (regional stranding coordinator) is notified immediately (or as soon as operational security allows). The Navy will provide NMFS with species or description of the animal(s), the condition of the animal(s) (including carcass condition if the animal is dead), location, time of first discovery, observed behaviors (if alive), and photo or video (if available).

Comment 6: The Commission recommends NMFS require the Navy to, in those cases where authorization is sought to take marine mammals by injury, consult with NMFS to consider whether the requested take levels are realistic and adequately take into account the schooling behavior of dolphins.

Response: As discussed in the Navy's LOA application and in the Proposed Rule (74 FR 20156: April 30, 2009), take of marine mammals by Level A harassment (injury) could occur as a result of the underwater detonation exposures in the range of 76-272 lb NEW (34-272 kg) in non-territorial waters. However, as noted by the Commission, due to the schooling behavior of some dolphin species, there is the question of whether the requested take levels are realistic. Although NMFS shares the Commission's view to some degree that schooling dolphins are not evenly distributed, due to the changing oceanographic regime and the large area being considered, NMFS considers that the Navy's modeling and analysis on the requested take levels are the best approximations. In addition, NMFS believes that the Navy's take estimates are conservative, and that with the implementation of aforementioned mitigation and monitoring measures, many of the Level A harassments (injury) can be prevented.

Comment 7: The Commission recommends NMFS require the Navy to submit annual reports that document in full the methods, results, and interpretation of all monitoring tasks.

Response: NMFS agrees with the Commission's recommendation. As described above, NMFS will require the Navy to submit a report annually on August 1 describing the RDT&E activities conducted and implementation and results of the NSWC PCD Monitoring Plan (through June 1 of the same year). A detailed description of report contents is provided above.

Comment 8: The Commission recommends that NMFS work with the Navy to develop a database for storing original records of Navy interactions with marine mammals, which will provide a basis for evaluating such interactions over long periods of time and across large areas.

Response: The Navy is required to document all marine mammal sightings through aerial, vessel, and shore-based survey by MMOs or Navy marine observers. Those records will be used to determine potential Navy interactions with marine mammals and to assess the impacts on marine mammals that may have resulted from the Navy's RDT&E activities. Currently there is no plan to develop a database for storing original records of Navy interactions with marine mammals due to limited resources. Nevertheless, NMFS will consider the Commission's recommendation when adequate resources are available to undertake such efforts.

Comment 9: One private citizen expressed general opposition to Navy activities and NMFS' issuance of an MMPA authorization because of the danger of killing marine life.

Response: NMFS appreciates the commenter's concern for the marine mammals that live in the area of the proposed activities. However, the MMPA allows individuals to take marine mammals incidental to specified activities if NMFS can make the necessary findings required by law (i.e., negligible impact, unmitigable adverse impact on subsistence users, etc.). As explained throughout this rulemaking, NMFS has made the necessary findings under 16 U.S.C. 1371(a)(5)(A) to support our issuance of the final rule.

As mentioned previously, with respect to the MMPA, NMFS' effects assessments serve four primary purposes: (1) To prescribe the permissible methods of taking (i.e., Level B Harassment (behavioral harassment), Level A Harassment (injury), or mortality, including an identification of the number and types of take that could occur by Level A or B harassment or mortality) and to prescribe other means of effecting the least practicable adverse impact on such species or stock and its habitat (i.e., mitigation); (2) to determine whether the specified activity will have a negligible impact on the affected species or stocks of marine mammals (based on the likelihood that the activity will adversely affect the species or stock through effects on annual rates of recruitment or survival); (3) to determine whether the specified activity will have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (however, there are no subsistence communities in the NSWC PCD Study Area; thus, there would be no effect to any subsistence user); and (4) to prescribe requirements pertaining to monitoring and reporting.

In the Estimated Take of Marine Mammals section of the proposed rule, NMFS related the potential effects to marine mammals from sonar operations and underwater detonation of explosives to the MMPA regulatory definitions of Level A and Level B Harassment and assessed the effects to marine mammals that could result from the specific activities that the Navy intends to conduct. The subsections of this analysis are discussed in the proposed rule (74 FR 20156; April 30, 2009). The only change in this section is that the sentence in the proposed rule (74 FR 20156; April 30, 2009; page 20179), “NSWC PCD RDT&E activities involve mid-frequency sonar operation for only 6 percent of operational hours,” is changed to “NSWC PCD RDT&E activities involve mid-frequency sonar operation for only 7 percent of operational hours.” The change is to fix the calculation error in the proposed rule.

In the Estimated Exposures of Marine Mammals section of the proposed rule, NMFS described in detail how the take estimates were calculated through modeling (74 FR 20156; pages 20178-20182; April 30, 2009). The following changes in this section have been made: (1) The first paragraph under Marine Mammal Sonar Exposures in Territorial Waters section of the proposed rule (74 FR 20156; April 30, 2009; page 20179), “rough-toothed dolphin” and one duplicated “Atlantic bottlenose dolphin” are deleted; and (2) the first paragraph under Marine Mammal Ordnance Exposures in Non-Territorial Waters section (74 FR 20156; April 30, 2009; page 20181), “rough-toothed dolphin” and “striped dolphin” are deleted. The deletion is to clarify that no rough-toothed dolphin or striped dolphin would be affected by these activities. In addition, Fraser's dolphin is added to Tables 11, 12, and 13 in the final rule (74 FR 20156; April 30, 2009; pages 20181-20182), with zero exposures. No other change has been made to the final rule.

A summary of potential exposures from sonar operations and ordnance (per year) for marine mammals in the NSWC PCD Study Area is listed in Table 4 (these exposure estimates are the same as those presented in the proposed rule, with the exception as noted above).

NMFS' NSWC PCD proposed rule included a section that addressed the effects of the Navy's activities on Marine Mammal Habitat (74 FR 20156; pages 20182-20183; April 30, 2009). NMFS concluded preliminarily that the Navy's activities would have minimal effects on marine mammal habitat. No changes have been made to the discussion contained in this section of the proposed rule.

Pursuant to NMFS' regulations implementing the MMPA, an applicant is required to estimate the number of animals that will be “taken” by the specified activities (i.e., takes by harassment only, or takes by harassment, injury, and/or death). This estimate informs the analysis that NMFS must perform to determine whether the activity will have a “negligible impact” on the species or stock. Level B (behavioral) harassment occurs at the level of the individual(s) and does not assume any resulting population-level consequences, though there are known avenues through which behavioral disturbance of individuals can result in population-level effects. A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (i.e., population-level effects). An estimate of the number of Level B harassment takes alone is not enough information on which to base an impact determination.

In addition to considering estimates of the number of marine mammals that might be “taken” through behavioral harassment, NMFS must consider other factors, such as the likely nature of any responses (their intensity, duration, etc.), the context of any responses (critical reproductive time or location, migration, etc.), as well as the number and nature of estimated Level A takes, the number of estimated mortalities, and effects on habitat.

The Navy's specified activities have been described based on best estimates of the number of HFAS/MFAS hours that the Navy will conduct and the planned detonation events. Taking the above into account, considering the sections discussed below, and dependent upon the implementation of the proposed mitigation measures, NMFS has determined that Navy's RDT&E activities utilizing HFAS/MFAS and underwater detonations will have a negligible impact on the marine mammal species and stocks present in the NSWC PCD Study Area.

As discussed in the Potential Effects of Exposure of Marine Mammals to HFAS/MFAS in the proposed rule (74 FR 20156; April 30, 2009) and illustrated in the conceptual framework, marine mammals can respond to HFAS/MFAS in many different ways, a subset of which qualifies as harassment. The take estimates do not take into account the fact that most marine mammals will likely avoid strong sound sources to one extent or another. Although an animal that avoids the sound source will likely still be taken in some instances (such as if the avoidance results in a missed opportunity to feed, interruption of reproductive behaviors, etc.) in other cases avoidance may result in fewer instances of take than were estimated or in the takes resulting from exposure to a lower received level than was estimated, which could result in a less severe response. The Navy proposes only 77 hours of mid-frequency sonar operations per year (Table 2) in the NSWC PCD Study Area, and the use of the most powerful 53C series sonar will be limited to just 4 hours per year. Therefore, any disturbance to marine mammals resulting from 53C and other MFAS is expected to be significantly less in terms of severity and duration when compared to major sonar exercises (e.g., AFAST, HRC, SOCAL). As for the HFAS, source levels of those HFAS are not as high as the 53C series MFAS. In addition, high frequency signals tend to have more attenuation in the water column and are more prone to lose their energy during propagation. Therefore, their zones of influence are much smaller, thereby making it easier to detect marine mammals and prevent adverse effects from occurring.

There is little information available concerning marine mammal reactions to MFAS/HFAS. The Navy has only been conducting monitoring activities since 2006 and has not compiled enough data to date to provide a meaningful picture of effects of HFAS/MFAS on marine mammals, particularly in the NSWC PCD Study Area. From the four major training exercises (MTEs) of HFAS/MFAS in the AFAST Study Area for which NMFS has received a monitoring report, no instances of obvious behavioral disturbance were observed by the Navy watchstanders in the 700+ hours of effort in which 79 sightings of marine mammals were made (10 during active sonar operation). One cannot conclude from these results that marine mammals were not harassed from HFAS/MFAS, as a portion of animals within the area of concern were not seen (especially those more cryptic, deep-diving species, such as beaked whales or Kogia sp.) and some of the non-biologist watchstanders might not have had the expertise to characterize behaviors. However, the data demonstrate that the animals that were observed did not respond in any of the obviously more severe ways, such as panic, aggression, or anti-predator response.

In addition to the monitoring that will be required pursuant to these regulations and subsequent LOAs, which is specifically designed to help us better understand how marine mammals respond to sound, the Navy and NMFS have developed, funded, and begun conducting a controlled exposure experiment with beaked whales in the Bahamas.

As noted in the proposed rule (74 FR 20156; April 30, 2009), many animals perform vital functions, such as feeding, resting, traveling, and socializing on a diel cycle (24-hr cycle). Substantive behavioral reactions to noise exposure (such as disruption of critical life functions, displacement, or avoidance of important habitat) are more likely to be significant if they last more than one diel cycle or recur on subsequent days (Southall et al., 2007). Consequently, a behavioral response lasting less than one day and not recurring on subsequent days is not considered particularly severe unless it could directly affect reproduction or survival (Southall et al., 2007).

In the proposed rule (74 FR 20156; April 30, 2009), NMFS discussed the fact that potential behavioral responses to HFAS/MFAS and underwater detonations that fall into the category of harassment could range in severity. By definition, takes by behavioral harassment involve the disturbance of a marine mammal or marine mammal stock in the wild by causing disruption of natural behavioral patterns (such as migration, surfacing, nursing, breeding, feeding, or sheltering) to a point where such behavioral patterns are abandoned or significantly altered. These reactions would, however, be more of a concern if they were expected to last over 24 hours or be repeated in subsequent days. For hull-mounted sonar 53C series sonar (the highest power source), the total time of operation is only 4 hours per year, with 3 hours planned in territorial waters and 1 hour in non-territorial waters. Different sonar testing and underwater detonation activities will not occur simultaneously. When this is combined with the fact that the majority of the cetaceans in the NSWC PCD Study Area would not likely remain in the same area for successive days, it is unlikely that animals would be exposed to HFAS/MFAS and underwater detonations at levels or for a duration likely to result in a substantive response that would then be carried on for more than one day or on successive days.

NMFS and the Navy have estimated that individuals of some species of marine mammals may sustain some level of TTS from HFAS/MFAS and/or underwater detonation. As mentioned previously, TTS can last from a few minutes to days, be of varying degree, and occur across various frequency bandwidths. The TTS sustained by an animal is primarily classified by three characteristics:

• Frequency—Available data (of mid-frequency hearing specialists exposed to mid to high frequency sounds—Southall et al., 2007) suggest that most TTS occurs in the frequency range of the source up to one octave higher than the source (with the maximum TTS at 1/2; octave above).

• Degree of the shift (i.e., how many dB is the sensitivity of the hearing reduced by)—generally, both the degree of TTS and the duration of TTS will be greater if the marine mammal is exposed to a higher level of energy (which would occur when the peak dB level is higher or the duration is longer). The threshold for the onset of TTS (>6 dB) for Navy sonars is 195 dB (SEL), which might be received at distances of up to 275-500 m from the most powerful MFAS source, the AN/SQS-53 (the maximum ranges to TTS from other sources would be less). An animal would have to approach closer to the source or remain in the vicinity of the sound source appreciably longer to increase the received SEL, which would be difficult considering the marine observers and the nominal speed of a sonar vessel (10-12 knots). Of all TTS studies, some using exposures of almost an hour in duration or up to 217 SEL, most of the TTS induced was 15 dB or less, though Finneran et al. (2007) induced 43 dB of TTS with a 64-sec exposure to a 20 kHz source (MFAS emits a 1-s ping 2 times/minute). The threshold for the onset of TTS for detonations is a dual criteria: 182 dB re 1 microPa2-sec or 23 psi, which might be received at distances from 345-2,863 m from the centers of detonation based on the types of NEW involved.

• Duration of TTS (Recovery time)—see above. Of all TTS laboratory studies, some using exposures of almost an hour in duration or up to 217 SEL, almost all recovered within 1 day (or less, often in minutes), though in one study (Finneran et al., 2007), recovery took 4 days.

Based on the range of degree and duration of TTS reportedly induced by exposures to non-pulse sounds of energy higher than that to which free-swimming marine mammals in the field are likely to be exposed during HFAS/MFAS testing activities, it is unlikely that marine mammals would sustain a TTS from MFAS that alters their sensitivity by more than 20 dB for more than a few days (and the majority would be far less severe). Also, for the same reasons discussed in the Diel Cycle section, and because of the short distance within which animals would need to approach the sound source, it is unlikely that animals would be exposed to the levels necessary to induce TTS in subsequent time periods such that their recovery were impeded. Additionally, though the frequency range of TTS that marine mammals might sustain would overlap with some of the frequency ranges of their vocalization types, the frequency range of TTS from MFAS (the source from which TTS would more likely be sustained because the higher source level and slower attenuation make it more likely that an animal would be exposed to a higher level) would not usually span the entire frequency range of one vocalization type, much less span all types of vocalizations.

For underwater detonations, due to its brief impulse of sounds, animals have to be at distances from 345-2,863 m from the center of detonation, based on the types of NEW involved to receive the SEL that causes TTS compared to similar source level with longer durations (such as sonar signals).

As discussed in the proposed rule (74 FR 20156; April 30, 2009), it is also possible that anthropogenic sound could result in masking of marine mammal communication and navigation signals. However, masking only occurs during the time of the signal (and potential secondary arrivals of indirect rays), versus TTS, which occurs continuously for its duration. Standard HFAS/MFAS sonar pings last on average one second and occur about once every 24-30 seconds for hull-mounted sources. When hull-mounted sonar is used in the Kingfisher mode, pulse length is shorter, but pings are much closer together (both in time and space, since the vessel goes slower when operating in this mode). For the sources for which we know the pulse length, most are significantly shorter than hull-mounted sonar, on the order of several microseconds to 10s of micro seconds. For hull-mounted sonar, though some of the vocalizations that marine mammals make are less than one second long, there is only a 1 in 24 chance that they would occur exactly when the ping was received, and when vocalizations are longer than one second, only parts of them are masked. Alternately, when the pulses are only several microseconds long, the majority of most animals' vocalizations would not be masked. Masking effects from HFAS/MFAS are expected to be minimal. Likewise, the masking effects from underwater detonation are also considered to be unlikely due to the much shorter impulsive signals from explosions. If masking or communication impairment were to occur briefly, it would be in the frequency range of MFAS, which overlaps with some marine mammal vocalizations; however, it would likely not mask the entirety of any particular vocalization or communication series because the pulse length, frequency, and duty cycle of the HFAS/MFAS signal does not perfectly mimic the characteristics of any marine mammal's vocalizations.

The Navy's model estimated that 1 individual of bottlenose dolphin and 1 individual of Atlantic spotted dolphin could experience severe lung injury (i.e., mortality) from explosive ordnance activities; and 1 individual each of bottlenose, Atlantic spotted, pantropical spotted, and spinner dolphins from slight lung injury (Level A harassment) as a result of the underwater detonation exposures in the range of 76-272 lb NEW (34-272 kg) in non-territorial waters per year. However, these estimates do not take into consideration the proposed mitigation measures. For sonar operations, NMFS believes that many marine mammals would deliberately avoid exposing themselves to the received levels necessary to induce injury (i.e., approaching to within approximately 10 m (10.9 yd) of the source). Animals would likely move away from or at least modify their path to avoid a close approach. Additionally, in the unlikely event that an animal approaches the sonar vessel at a close distance, NMFS believes that the mitigation measures (i.e., shutdown/power-down zones for HFAS/MFAS) further ensure that animals would not be exposed to injurious levels of sound. As for underwater detonations, the animals have to be within the 203 m ZOI to experience severe lung injury or mortality. NMFS believes it is unlikely that Navy observers will fail to detect an animal in such a small area during pre-testing surveys. As discussed previously, the Navy plans to utilize aerial (when available) in addition to marine observers on vessels to detect marine mammals for mitigation implementation and indicated that they are capable of effectively monitoring safety zones. When these points are considered, NMFS does not believe that any marine mammals will experience severe lung injury or mortality from exposure to HFAS/MFAS or underwater detonation. Instead, based on proposed mitigation and monitoring measures, NMFS preliminary determined that 2 individuals of bottlenose and Atlantic spotted dolphins, and 1 individual of pantropical spotted and spinner dolphins would receive slight lung injury (Level A harassment) as a result of underwater detonation exposures in the range of 76-272 lb NEW (34-272 kg) in non-territorial waters per year.

Based on the aforementioned assessment, NMFS determined that approximately 2 sperm whales, 2 melon-headed whales, 1 short-finned pilot whale, 2 Risso's dolphins, 614 bottlenose dolphins, 471 Atlantic spotted dolphins, 23 pantropical spotted dolphins, 5 striped dolphins, 23 spinner dolphins, and 5 Clymene dolphins would experience Level B harassment (TTS and sub-TTS) as a result of the proposed NSWC PCD RDT&E sonar and underwater detonation testing activities. These numbers represent approximately 0.12%, 0.08%, 0.14%, 0.07%, 2.85%, 1.25%, 0.07%, 0.08%, 1.16%, and 0.08% of sperm whales, melon-headed whales, short-finned pilot whale, rough-toothed dolphins, bottlenose dolphins, Atlantic spotted dolphins, pantropical spotted dolphins, striped dolphins, spinner dolphins, and Clymene dolphins, respectively in the vicinity of the proposed NSWC PCD Study Area (calculation based on NMFS 2007 US Atlantic and Gulf of Mexico Marine Mammal Stock Assessment).

In addition, the Level A takes of 2 bottlenose, 2 Atlantic spotted, 1 pantropical spotted, and 1 spinner dolphins represent 0.009%, 0.005%, 0.003%, and 0.050% of these species in the vicinity of the proposed NSWC PCD Study Area (calculation based on NMFS 2007 US Atlantic and Gulf of Mexico Marine Mammal Stock Assessment). Given these very small percentages, NMFS does not expect there to be any long-term adverse effect on the populations of the aforementioned dolphin species. No marine mammals are expected to be killed as a result of these activities.

Based on the supporting analyses, which suggest that that no marine mammals will be killed as a result of these activities, only 6 individuals of dolphins (2 bottlenose, 2 Atlantic spotted, 1 pantropical spotted, and 1 spinner dolphins) would experience injury (Level A harassment), and no more than a small percentage of the individuals of any affected species will be taken in the form of short-term Level B harassment per year.

Additionally, the aforementioned take estimates do not account for the implementation of mitigation measures. With the implementation of mitigation and monitoring measures, NMFS expects that the takes would be reduced further. Coupled with the fact that these impacts will likely not occur in areas and times critical to reproduction, NMFS has determined that the total taking over the 5-year period of the regulations and subsequent LOAs from the Navy's NSWC PCD RDT&E mission activities will have a negligible impact on the marine mammal species and stocks present in the NSWC PCD Study Area.

NMFS has determined that the total taking of marine mammal species or stocks from the Navy's mission activities in the NSWC PCD study area would not have an unmitigable adverse impact on the availability of the affected species or stocks for subsistence uses, since there are no such uses in the specified area.

There are six marine mammal species of which NMFS has jurisdiction that are listed as endangered under the ESA that could occur in the NSWC PCD Study Area: humpback whale, North Atlantic right whale, blue whale, fin whale, sei whale, and sperm whale.

Pursuant to Section 7 of the ESA, the Navy has consulted with NMFS on this action. NMFS has also consulted internally on the issuance of regulations under section 101(a)(5)(A) of the MMPA for this activity. The Biological Opinion was issued on September 15, 2009, and concludes that the proposed RDT&E activities are likely to adversely affect but are not likely to jeopardize the continued existence of these threatened and endangered species under NMFS jurisdiction.

NMFS participated as a cooperating agency on the Navy's Final Environmental Impact Statement (FEIS) for the NSWC PCD. NMFS subsequently adopted the Navy's EIS/OEIS for the purpose of complying with the MMPA.

Based on the analysis contained herein and in the proposed rule (and other related documents) of the likely effects of the specified activity on marine mammals and their habitat and dependent upon the implementation of the mitigation measures, NMFS finds that the total taking from the NSWC PCD's RDT&E activities utilizing MFAS/HFAS and underwater explosives over the 5 year period will have a negligible impact on the affected species or stocks and will not result in an unmitigable adverse impact on the availability of marine mammal species or stocks for taking for subsistence uses because no subsistence uses exist in the NSWC PCD Study Area. NMFS has issued regulations for these exercises that prescribe the means of effecting the least practicable adverse impact on marine mammals and their habitat and set forth requirements pertaining to the monitoring and reporting of that taking.

This action does not contain a collection of information requirement for purposes of the Paperwork Reduction Act.

The Office of Management and Budget has determined that this rule is not significant for purposes of Executive Order 12866.

The Chief Counsel for Regulation of the Department of Commerce certified at the proposed rule stage that this action will not have a significant economic impact on a substantial number of small entities. The Navy is the entity that will be affected by this rulemaking, not a small governmental jurisdiction, small organization or small business, as defined by the RFA. This rulemaking authorizes the take of marine mammals incidental to a specified activity. The specified activity defined in the final rule includes the use of underwater detonations, which are only used by the U.S. military, during RDT&E activities that are only conducted by the U.S. Navy. Additionally, any requirements imposed by a Letter of Authorization issued pursuant to these regulations, and any monitoring or reporting requirements imposed by these regulations, will be applicable only to the Navy. Because this action, if adopted, would directly affect the Navy and not a small entity, NMFS concludes the action would not result in a significant economic impact on a substantial number of small entities.

The Assistant Administrator for Fisheries has determined that there is good cause under the Administrative Procedure Act (5 U.S.C. 553(d)(3)) to waive the 30-day delay in effective date of the measures contained in the final rule. The U.S Navy has a compelling national policy reason to continue military readiness activities without interruption in its Gulf of Mexico Operating Areas, i.e., the NSWC PCD Study Area. As discussed below, suspension/interruption of the Navy's ability to train, for even a small number of days, disrupts vital sequential RDT&E activities and certification processes essential to our national security.

In order to meet its national security objectives, the Navy must continually maintain its ability to operate in a challenging at-sea environment, conduct military operations, control strategic maritime transit routes and international straits, and protect sea lines of communications that support international commerce. To meet these objectives, the Navy must continually conduct RDT&E activities. These activities are critical because individual Navy units and Strike Groups/Amphibious Readiness Groups (ARG) currently operate in, or need to utilize highly advantaged technologies to support mission activities.

This Federal Register document is also accessible at www.gpoaccess.gov/fr/.

This final rule revises the vessel identification requirements at 50 CFR § 665 to make them consistent with international requirements. Currently, each fishing vessel is required to display its official number (United States Coast Guard documentation or other registration number) on the port and starboard sides of the deckhouse or hull, and on an appropriate weather deck, so as to be visible from enforcement vessels and aircraft.

New international rules require each vessel that fishes on the high seas in the Area of the Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (Convention) to display its IRCS on the port and starboard sides of the hull or superstructure, and on a deck surface. If an IRCS has not been assigned, the vessel must display its official number preceded by the characters “USA” and a hyphen (i.e., “USA-”).

U.S. vessels fishing for pelagic species on the high seas of the Convention area would be required to display the international vessel markings (IRCS or USA-official number). A pelagic vessel that fishes only within the U.S. Exclusive Economic Zone (EEZ), or on the high seas outside the Convention Area, would have the option to display either the international markings or official number.

On July 17, 2009, NMFS published a proposed rule and request for public comment on the vessel identification requirements (74 FR 34707). The comment period for the proposed rule ended on August 3, 2009, and NMFS did not receive any comments.

This final rule modifies only the manner in which federally-permitted pelagic fishing vessels are identified, and does not change vessel operations or other aspects of pelagic fisheries. Additional background information on this final rule may be found in the preamble to the proposed rule, and is not repeated here.

NMFS made one administrative clarification to the final rule for consistency with a change implemented by a recent, separately published final rule in which NMFS restructured western Pacific fishing regulations. In that rule, former § 665.21, relating to pelagic fishing permits, was redesignated as § 665.801. This final rule updates the regulatory text to be consistent with the above change.

The Regional Administrator, Pacific Islands Region, NMFS, determined that this action is necessary for the conservation and management of western and central Pacific high seas pelagic fisheries, and that it is consistent with the Magnuson-Stevens Fishery Conservation and Management Act and other applicable laws.

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

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.

This final rule contains a collection-of-information requirement subject to the Paperwork Reduction Act (PRA), and which has been approved by the Office of Management and Budget (OMB) under control number 0648-0360. The one-time public reporting burden for vessel identification requirements is estimated at 45 minutes and $100 in supplies per vessel. This includes the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding this burden estimate, or any other aspect of this data collection, including suggestions for reducing the burden, to William L. Robinson (see ADDRESSES) and by e-mail to David_Rostker@omb.eop.gov, or fax to 202-395-7285.

Notwithstanding any other provision of the law, no person is required to respond to, and no person shall be subject to penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.