On September 24, 2010, the U.S. Office of Personnel Management (OPM) issued a proposed rule (75 FR 58339) to redefine Upshur County, TX, from the Texarkana, TX, wage area to the Shreveport, LA, wage area and Oconto County, WI, from the Southwestern Wisconsin wage area to the Milwaukee, WI, wage area. These changes are based on recent consensus recommendations of the Federal Prevailing Rate Advisory Committee to best match the above counties to a nearby FWS survey area. The proposed rule had a 30-day comment period during which OPM received no comments.

I certify that these regulations will not have a significant economic impact on a substantial number of small entities because they will affect only Federal agencies and employees.

Accordingly, the U.S. Office of Personnel Management amends 5 CFR part 532 as follows:

On August 3, 2010, the U.S. Office of Personnel Management (OPM) issued a proposed rule (75 FR 45557) to define Tulsa County, Oklahoma, as an area of application to the Oklahoma, OK, nonappropriated fund (NAF) Federal Wage System (FWS) wage area and Angelina County, Texas, as an area of application to the Dallas, TX, NAF FWS wage area. The Federal Prevailing Rate Advisory Committee, the national labor-management committee responsible for advising OPM on matters concerning the pay of FWS employees, recommended these changes by consensus. The proposed rule had a 30-day comment period during which OPM received no comments.

In addition, this final rule corrects Appendix B to subpart B of part 532—Nationwide Schedule of Nonappropriated Fund Regular Wage Schedules by removing, under the State of California, “Santa Clara,” which was abolished as a NAF FWS wage area by a final rule (74 FR 9951) published on March 9, 2009.

I certify that these regulations will not have a significant economic impact on a substantial number of small entities because they will affect only Federal agencies and employees.

Accordingly, the U.S. Office of Personnel Management amends 5 CFR part 532 as follows:

The INA (Title 8 of the U.S. Code) provides foreign nationals an opportunity to participate in exchange programs in the United States under provisions of the Mutual Educational and Cultural Exchange Act (also known as the Fulbright-Hays Act) of 1961. At the conclusion of their program, an exchange program participant is expected to return to their home country to utilize the experiences and skills they acquired while in the U.S. INA Section 212(e) requires 2 years of foreign residence for individuals whose participation was financed by the U.S. Government, or by the government of their nationality or legal residence. Individuals admitted to the United States who possessed or intended to acquire specialized knowledge or skills that the Secretary of State has deemed necessary for the development of their country of citizenship or legal residence will also be subject to this 2-year requirement. A foreign national is ineligible for adjustment to permanent resident status, immigration to the United States, or receipt of an employment-based non-immigrant visa until the requirement has been satisfied.

The Secretary of the Department of Homeland Security may waive the 2-year foreign residence requirement with a favorable recommendation from the Secretary of State and pursuant to a request from an interested U.S. Government agency on behalf of foreign nationals actively and substantially involved in a program or activity sponsored by or of interest to such agency. In accordance with 22 CFR 41.63(c)(2)(3), the head of the agency or their designee shall submit a request in writing which fully explains why the granting of a waiver would be in the public interest and the detrimental effect that would result to the program or activity of interest to the requesting agency if the exchange visitor were unable to continue his/her involvement.

The Secretary of Agriculture has designated the Under Secretary for Research, Education, and Economics as USDA's authorized signatory for requests for all 2-year foreign residence waivers. Pursuant to 5 U.S.C. 553, notice of proposed rulemaking and opportunity for comment are not required, and this rule may be made effective less than 30 days after publication in the Federal Register . Further, since this rule relates to internal agency management, it is exempt from the provisions of Executive Order No. 12291. Finally, this action is not a rule as defined by Public Law 96-354, the Regulatory Flexibility Act and thus is exempt from the provisions of that Act.

Accordingly, the Department of Agriculture amends 7 CFR part 2 as follows:

Document Availability: In addition to publishing the full text of this document in the Federal Register , the Commission provides all interested persons an opportunity to view and/or print the contents of this document via the Internet through FERC's Home Page ( http://www.ferc.gov ) and in FERC's Public Reference Room during normal business hours (8:30 a.m. to 5 p.m. Eastern time) at 888 First Street, NE., Room 2A, Washington DC 20426.

From FERC's Web site on the Internet, this information is available in the eLibrary (formerly FERRIS). The full text of this document is available on eLibrary in PDF and Microsoft Word format for viewing, printing, and/or downloading. To access this document in eLibrary, type the docket number excluding the last three digits of this document in the docket number field and follow other directions on the search page.

User assistance is available for eLibrary and other aspects of FERC's Web site during normal business hours. For assistance, contact FERC Online Support at FERCOnlineSupport@ferc.gov or toll free at (866) 208-3676, or for TTY, contact (202) 502-8659.

The Federal Energy Regulatory Commission (Commission) is issuing this Final Rule to update filing fees that the Commission assesses for specific services and benefits provided to identifiable beneficiaries. Pursuant to 18 CFR 381.104, the Commission is establishing updated fees on the basis of the Commission's Fiscal Year 2010 costs. The adjusted fees announced in this notice are effective March 24, 2011. The Commission has determined, with the concurrence of the Administrator of the Office of Information and Regulatory Affairs of the Office of Management and Budget, that this Final Rule is not a major rule within the meaning of section 251 of Subtitle E of Small Business Regulatory Enforcement Fairness Act, 5 U.S.C. 804(2). The Commission is submitting this Final Rule to both houses of the United States Congress and to the Comptroller General of the United States.

The new fee schedule is as follows:

2. Review of a Department of Energy remedial order:

3. Review of a Department of Energy denial of adjustment:

4. Written legal interpretations by the Office of General Counsel. (18 CFR 381.305(a)) $6,750.

In consideration of the foregoing, the Commission amends Part 381, Chapter I, Title 18, Code of Federal Regulations, as set forth below.

Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its program includes, among other things, “a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of this Act * * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to this Act.” See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the Alabama program effective May 20, 1982. You can find background information on the Alabama program, including the Secretary's findings, the disposition of comments, and the conditions of approval of the Alabama program in the May 20, 1982, Federal Register (47 FR 22030). You can also find later actions concerning the Alabama program and program amendments at 30 CFR 901.10, 901.15, and 901.16.

By letter dated May 12, 2010 (Administrative Record No. AL-661), and revised on July 14, 2010 (Administrative Record No. AL-661-006), Alabama sent us an amendment to its program under SMCRA (30 U.S.C. 1201 et seq. ). Alabama sent the amendment at its own initiative.

We announced receipt of the proposed amendment in the September 30, 2010, Federal Register (75 FR 60371). In the same document, we opened the public comment period and provided an opportunity for a public hearing or meeting on the adequacy of the amendment. We did not hold a public hearing or meeting because no one requested one. The public comment period ended on November 1, 2010.

The following are the findings we made concerning the amendment under SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. We are approving the amendment as described below. Any revisions that we do not specifically discuss below concern nonsubstantive wording or editorial changes.

Alabama revised its code at Section 9-16-73(a) with several minor editorial changes.

There is no Federal counterpart to this section and we find the amendment of this paragraph does not make Alabama's program less effective than the Federal regulations. Therefore, we are approving it.

Alabama revised its code at Section 9-16-73(b). This change adds the requirements that members of the seven member Commission reflect the racial, gender, geographic, urban/rural and economic diversity of the state. This seven member board appointed by the Governor with the advice and consent of the Alabama State Senate is, pursuant to the approved state program, vested with the power and authority to implement the state Title V program acting through its director and staff. The full text of the changes is available in the Administrative Record.

There is no Federal counterpart to this section and we find the amendment of this paragraph does not make Alabama's program less effective than the Federal regulations. Therefore, we are approving it.

Alabama revised its code at Section 9-16-73(c) through (f) with several minor editorial changes.

There is no Federal counterpart to this section and we find the amendment of these paragraphs does not make Alabama's program less effective than the Federal regulations. Therefore, we are approving it.

Alabama revised its code at Section 9-16-73(g). This change authorizes the Commission to meet once every month rather than once every 30 days as previously required. The full text of the changes is available in the Administrative Record.

There is no Federal counterpart to this section and we find the amendment of this paragraph does not make Alabama's program less effective than the Federal regulations. Therefore, we are approving it.

Alabama revised its code at Section 9-16-73(h) through (j) with several minor editorial changes.

There is no Federal counterpart to this section and we find the amendment of these paragraphs does not make Alabama's program less effective than the Federal regulations. Therefore, we are approving it.

Alabama revised its code at Section 9-16-74(1) through (3) with several minor editorial changes.

There is no Federal counterpart to this section and we find the amendment of these paragraphs does not make Alabama's program less effective than the Federal regulations. Therefore, we are approving it.

Alabama revised its code at Section 9-16-74(4). This addition allows the Commission to promulgate rules and regulations charging reasonable fees for administration of these blasting rules, regulations, and standards including, but not limited to, fees for certifications, renewals, and continuing education for certified blaster applicants. The full text of the changes is available in the Administrative Record. There is no Federal counterpart to this section and we find the amendment of this paragraph does not make Alabama's program less effective than the Federal regulations. Therefore, we are approving it.

Alabama revised its code at Section 9-16-74(5) through (22) with several minor editorial changes.

There is no Federal counterpart to this section and we find the amendment of these paragraphs does not make Alabama's program less effective than the Federal regulations. Therefore, we are approving it.

Alabama revised its code at Section 9-16-77(a) with several minor editorial changes.

There is no Federal counterpart to this section and we find the amendment of this paragraph does not make Alabama's program less effective than the Federal regulations. Therefore, we are approving it.

Alabama revised its code at Section 9-16-77(b). This change amends existing provisions for the hiring or contracting with Hearing Officers to preside over administrative appeals of agency actions, continues the existing requirements that Hearing Officers be members in good standing with the Alabama State Bar and have no direct or indirect interests in a surface or underground coal mine operation, and adds a prohibition against hearing officers having been employed by or having represented a coal mine operator within the previous 24 months. This section corresponds to 30 CFR 705.1. The full text of the changes is available in the Administrative Record.

We find the amendment of these paragraphs does not make Alabama's program less effective than the Federal regulations. Therefore, we are approving it.

Alabama revised its code at Section 9-16-78(a) through (c) with several minor editorial changes.

There is no Federal counterpart to this section and we find the amendment of these paragraphs does not make Alabama's program less effective than the Federal regulations. Therefore, we are approving it.

Alabama revised its code at Section 9-16-78(d). This change deletes an existing provision of law that Hearing Officer facilities be located in a facility apart from Commission offices. The full text of the changes is available in the Administrative Record.

There is no Federal counterpart to this section and we find the amendment of this paragraph does not make Alabama's program less effective than the Federal regulations. Therefore, we are approving it.

Alabama revised its code at Section 9-16-81(a) with several minor editorial changes.

There is no Federal counterpart to this section and we find the amendment of this paragraph does not make Alabama's program less effective than the Federal regulations. Therefore, we are approving it.

Alabama revised its code at Section 9-16-81(b). This change amends the existing license statute to require that only citizens of the United States or persons legally present in the United States with appropriate documentation from the Federal government and that possess a mining license may engage in surface coal mining operations within Alabama. Additionally, several minor editorial changes were made. The full text of the changes is available in the Administrative Record.

There is no Federal counterpart to this section and we find the amendment of this paragraph does not make Alabama's program less effective than the Federal regulations. Therefore, we are approving it. Alabama revised its code at Section 9-16-81(c) and (d) with several minor editorial changes.

There is no Federal counterpart to this section and we find the amendment of these paragraphs does not make Alabama's program less effective than the Federal regulations. Therefore, we are approving it.

Alabama revised its code at Section 9-16-81(f). This change modifies existing law to remove a fixed $1,000 fee and allow the Commission to establish by rule the initial fee for a mining license and annual license update fees. Such fees must be reasonable in amount. Additionally, several minor editorial changes were made. The full text of the changes is available in the Administrative Record.

There is no Federal counterpart to this section and we find the amendment of this paragraph does not make Alabama's program less effective than the Federal regulations. Therefore, we are approving it.

Alabama revised its code at Section 9-16-93(b). This change deletes a requirement of existing law that cessation orders alleging imminent harm or danger include a citation for an expeditious hearing before an administrative hearing officer. The amendment conforms the Alabama Statute to the requirements of the corresponding Federal SMCRA provisions. The full text of the changes is available in the Administrative Record.

We find that the changes to this section make Alabama's program no less effective than its Federal counterparts at 30 CFR 840.13(b). Therefore, we are approving them.

Alabama revised its code at Section 9-16-93(c) through (f) with several minor editorial changes.

We find that the changes in Alabama's program are no less stringent than its Federal counterparts at 30 U.S.C. 1271 (a)(2). Therefore, we are approving them.

We asked for public comments on the amendment and received one concerning the proposed changes to Alabama Code § 9-16-73 with respect to the Alabama program requiring that members of the seven member Alabama Surface Mining Commission reflect the racial, gender, geographic, urban/rural and economic diversity of the state. The commenter objected to using gender and race as a basis for the selection by the Alabama governor of future members of the Commission. That commenter asserted “[t]here is no justification for discrimination in this particular context.” The commenter opined, “the best qualified individuals should be selected, without regard to race, ethnicity, or sex,” and requested that the words “racial” and “gender” be deleted from the proposed change to the Alabama program..

The commenter cited three decisions by the U.S. Supreme Court [ Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995); Mississippi University for Women v. Hogan, 458 U.S. 718 (1982); Personnel Administrator of Mass. v. Feeney, 442 U.S. 256 (1979)] and one Federal statute [Title VII of the 1964 Civil Rights Act, 42 U.S.C. 2000e et seq. ] in support of his objection and request. However, the cases relied upon by the commenter do not make it unconstitutional for the Governor of Alabama to appoint people to the Commission who reflect the racial, gender, geographic, urban/rural and economic diversity of the state.

In fact, Adarand Constructors, Inc. v. Pena specifically holds, “government is not disqualified from acting in response to the persistence of both the practice and the lingering effects of racial discrimination against minority groups in the United States.” Rather than outlawing affirmative action as the commenter suggests, the Supreme Court requires that provisions like the one Alabama is proposing be narrowly tailored to further compelling government interests. The State of Alabama has decided that it has a compelling government interest in having the Alabama Surface Mining Commission reflect the racial, gender, geographic, urban/rural and economic diversity of the state.

In reviewing proposed amendments to the approved Alabama regulatory program, OSM does not second-guess the State's determinations about its compelling government interests. OSM's task is to determine whether the proposed regulatory changes render the Alabama program less effective than the Federal standards established by Congress. We have determined the proposed changes will not make the Alabama program less effective and we are therefore approving them.

On July 28, 2010, under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we requested comments on the amendment from various Federal agencies with an actual or potential interest in the Alabama program (Administrative Record No. AL-661.07). We did not receive any comments.

Under 30 CFR 732.17(h)(11)(ii), we are required to get a written concurrence from EPA for those provisions of the program amendment that relate to air or water quality standards issued under the authority of the Clean Water Act (33 U.S.C. 1251 et seq. ) or the Clean Air Act (42 U.S.C. 7401 et seq. ). None of the revisions that Alabama proposed to make in this amendment pertain to air or water quality standards. Therefore, we did not ask EPA to concur on the amendment. However, on July 28, 2010, under 30 CFR 732.17(h)(11)(i), we requested comments from the EPA on the amendment (Administrative Record No. AL-661.07). The EPA did not respond to our request.

Under 30 CFR 732.17(h)(4), we are required to request comments from the SHPO and ACHP on amendments that may have an effect on historic properties. On July 28, 2010, we requested comments on Alabama's amendment (Administrative Record No. AL-661.07), but neither responded to our request.

Based on the above findings, we approve the amendment Alabama sent us on May 12, 2010 and revised on July 14, 2010.

To implement this decision, we are amending the Federal regulations at 30 CFR Part 901, which codify decisions concerning the Alabama program. We find that good cause exists under 5 U.S.C. 553(d)(3) to make this final rule effective immediately. Section 503(a) of SMCRA requires that the State's program demonstrate that the State has the capability of carrying out the provisions of the Act and meeting its purposes. Making this rule effective immediately will expedite that process. SMCRA requires consistency of State and Federal standards.

This rule does not have takings implications. This determination is based on the analysis performed for the counterpart Federal regulation.

This rule is exempted from review by the Office of Management and Budget (OMB) under Executive Order 12866.

The Department of the Interior has conducted the reviews required by section 3 of Executive Order 12988 and has determined that this rule meets the applicable standards of subsections (a) and (b) of that section. However, these standards are not applicable to the actual language of State regulatory programs and program amendments because each program is drafted and promulgated by a specific State, not by OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State regulatory programs and program amendments submitted by the States must be based solely on a determination of whether the submittal is consistent with SMCRA and its implementing Federal regulations and whether the other requirements of 30 CFR Parts 730, 731, and 732 have been met.

This rule does not have Federalism implications. SMCRA delineates the roles of the Federal and State governments with regard to the regulation of surface coal mining and reclamation operations. One of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Section 503(a)(1) of SMCRA requires that State laws regulating surface coal mining and reclamation operations be “in accordance with” the requirements of SMCRA, and section 503(a)(7) requires that State programs contain rules and regulations “consistent with” regulations issued by the Secretary pursuant to SMCRA.

In accordance with Executive Order 13175, we have evaluated the potential effects of this rule on Federally-recognized Indian tribes and have determined that the rule does not have substantial direct effects 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. The basis for this determination is that our decision is on a State regulatory program and does not involve Federal regulations involving Indian lands.

On May 18, 2001, the President issued Executive Order 13211 which requires agencies to prepare a Statement of Energy Effects for a rule that is (1) considered significant under Executive Order 12866, and (2) likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866 and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required.

This rule does not require an environmental impact statement because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency decisions on proposed State regulatory program provisions do not constitute major Federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C)).

This rule does not contain information collection requirements that require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3507 et seq. ).

The Department of the Interior certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). The State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an economic analysis was prepared and certification made that such regulations would not have a significant economic effect upon a substantial number of small entities. In making the determination as to whether this rule would have a significant economic impact, the Department relied upon the data and assumptions for the counterpart Federal regulations.

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule: (a) Does not have an annual effect on the economy of $100 million; (b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and (c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation was not considered a major rule.

This rule will not impose an unfunded mandate on State, local, or tribal governments or the private sector of $100 million or more in any given year. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation did not impose an unfunded mandate.

For the reasons set out in the preamble, 30 CFR Part 901 is amended as set forth below:

In the Federal Register of February 9, 2011, in FR Vol. 76, No. 27, on page 7107, in the second column, correct the docket number [USCG-2011-0399] to read [USCG-2010-0399].

Under 38 U.S.C. 1722A(a), VA must require veterans to pay a $2 copayment for each 30-day supply of medication furnished on an outpatient basis for the treatment of a nonservice-connected disability or condition. Under 38 U.S.C. 1722A(b), VA may, by regulation, increase that copayment and establish a maximum annual copayment (a “cap”). We interpret section 1722A(b) to mean that VA has discretion to determine the appropriate copayment amount and annual cap amount for medication furnished on an outpatient basis for covered treatment, provided that any decision by VA to increase the copayment amount or annual cap amount is the subject of a rulemaking proceeding. We have implemented this statute in 38 CFR 17.110.

On June 9, 2010, we published a final rule that affirmed as final an interim final rule that amended § 17.110 to “freeze” at $8 the copayment required for prescription medications through June 30, 2010. 75 FR 32668. Also on June 9, 2010, we published an interim final rule amending § 17.110 such that the copayment amounts are fixed at $8 for veterans in enrollment priority categories 2 through 6 of VA's health care system, and at $9 for veterans in priority categories 7 and 8 through December 31, 2011. 75 FR 32670. Any changes to these copayment amounts that would take effect after December 31, 2011, would be based on changes to the CPI-P, as described in § 17.110(b)(1)(iv).

In addition, § 17.110(b)(2) includes a cap on the total amount of copayments in a calendar year for a veteran enrolled in one of VA's health care enrollment system priority categories 2 through 6. The amount of the cap for the period from January 1, 2010, through December 31, 2011 is fixed at $960. Also under paragraph (b)(2), the “cap of $960 shall be increased by $120 for each $1 increase in the copayment amount.”

In the June 9, 2010, interim final rule, we cited the previous interim final rule published on December 31, 2009 (adopted without change as a final rule on June 9, 2010 (75 FR 32668)), in which we stated that we had concerns about increasing copayments under the methodology in current 38 CFR 17.110(b)(1)(iv). 75 FR 32670. We stated that we needed “time to determine whether an increase [in copayments] might pose a significant hardship for certain veterans and if so, what alternative approach would provide appropriate relief for these veterans,” and therefore issued an interim final rule intended “to temporarily freeze copayments and the copayment cap, following which copayments and the copayment cap would increase as prescribed in § 17.110(b).” We then stated in the June 9, 2010 interim final rule that “[a]lthough we continue to believe that the CPI-P is a relevant indicator of the costs of prescriptions nationwide, we need additional time to ascertain whether there might be better indicators upon which we can base our copayment amounts.” Thus, we further delayed implementation of any increases for veterans in categories 2 through 6 based on the CPI-P until January 1, 2012. We stated that we would study this issue and, depending on the results of such study, may initiate a new rulemaking on this subject rather than continue to rely on the CPI-P escalator provision to determine the copayment amount. This study is ongoing. We did not delay increases for veterans in priority categories 7 and 8 in light of our statutory responsibility to control costs under 38 U.S.C. 1722A. Also, these veterans would be less affected by an increase in copayments than veterans in priority categories 2 through 6, who likely have a greater need for medical care due to their disabilities or conditions of service. Therefore, the copayment amount for veterans in priority categories 7 and 8 increased to $9.

We received one public comment on the interim final rule that extended the delay for veterans in priority categories 2 through 6. The commenter suggested that VA consider an alternative system for copayments, which would base the copayments on the actual costs of each medication rather than utilize a standard copayment rate. As noted above, we are currently considering copayment options; however, our study remains incomplete and we are not at this time ready to discuss the merits of any specific option. The commenter noted that increased copayment rates have been found in at least one study to decrease the patient's use of medical care. We are aware of this issue, and it is part of our ongoing study.

The commenter also noted that the $960 cap on copayments may be too high, and that some veterans may not have “sufficient income to support that cost.” This issue is beyond the scope of the interim final rule, which delayed increases in copayments for veterans in enrollment priority categories 2 through 6. We will carefully consider the commenter's suggestion that copayments may be too high in the context of our ongoing study. Depending on the results of the study we may choose to address this issue in a future rulemaking and will address the commenter's suggestion at that time. We also note that preventing the $1 increase in copayments for veterans in priority categories 2 through 6, which would have occurred absent this rule, also prevents an associated increase in the annual copayment cap to $1080 for those veterans. Lastly, for those veterans who may have difficulty paying copayments, VA offers repayment plans and waivers as assistance.

Accordingly, we adopt without change, the amendments made in the interim final rule.

The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in an expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any given year. This rule would have no such effect on state, local, and tribal governments, or on the private sector.

This document contains no provisions constituting a collection of information under the Paperwork Reduction Act (44 U.S.C. 3501-3521).

Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). The Executive Order classifies a regulatory action as a “significant regulatory action,” requiring review by the Office of Management and Budget (OMB) unless OMB waives such review, if it is a regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

The economic, interagency, budgetary, legal, and policy implications of this rule have been examined and it has been determined not to be a significant regulatory action under Executive Order 12866.

The Secretary hereby certifies that this regulatory amendment will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. This rule will temporarily freeze the copayments that certain veterans are required to pay for prescription drugs furnished by VA. The rule affects individuals and has no impact on any small entities. Therefore, pursuant to 5 U.S.C. 605(b), this rule is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.

The Catalog of Federal Domestic Assistance program number and title for this rule are as follows: 64.005, Grants to States for Construction of State Home Facilities; 64.007, Blind Rehabilitation Centers; 64.008, Veterans Domiciliary Care; 64.009, Veterans Medical Care Benefits; 64.010, Veterans Nursing Home Care; 64.011, Veterans Dental Care; 64.012, Veterans Prescription Service; 64.013, Veterans Prosthetic Appliances; 64.014, Veterans State Domiciliary Care; 64.015, Veterans State Nursing Home Care; 64.016, Veterans State Hospital Care; 64.018, Sharing Specialized Medical Resources; 64.019, Veterans Rehabilitation Alcohol and Drug Dependence; 64.022, Veterans Home Based Primary Care; and 64.024, VA Homeless Providers Grant and Per Diem Program.

The Secretary of Veterans Affairs, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. John R. Gingrich, Chief of Staff, Department of Veterans Affairs, approved this document on February 8, 2011, for publication.

Accordingly, VA adopts the interim final rule amending 38 CFR 17.110, which was published in the Federal Register at 75 FR 32670 on June 9, 2010, as a final rule without change.

This document identifies recent updates to the product lists, which appear as 39 CFR Appendix A to Subpart A of Part 3020—Mail Classification Schedule. 1 Publication of updated product lists in the Federal Register is consistent with the Postal Accountability and Enhancement Act (PAEA) of 2006.

Authorization. The Commission process for periodic publication of updates was established in Order No. 445, April 22, 2010.

Changes. Since publication of the product lists in the Federal Register on January 10, 2011 (76 FR 1357), the following changes to the competitive product list have been made:

1. Priority Mail Contract 30 (MC2011-9 and CP2011-44), added January 4, 2011 (Order No. 638);

2. Priority Mail Contract 31 (MC2011-10 and CP2011-46), added January 4, 2011 (Order No. 637);

3. Priority Mail Contract 32 (MC2011-11 and CP2011-47), added January 5, 2011 (Order No. 639);

4. Express Mail Contract 5 (MC2011-12 and CP2011-48), added January 6, 2011 (Order No. 640);

5. Priority Mail Contract 33 (MC2011-13 and CP2011-49), added January 6, 2011 (Order No. 641);

6. Express Mail Contract 11 (MC2011-14 and CP2011-50), added January 10, 2011 (Order No. 644);

7. Priority Mail Contract 34 (MC2011-17 and CP2011-56), added January 21, 2011 (Order No. 655);

8. Priority Mail Contract 35 (MC2011-18 and CP2011-57), added January 21, 2011 (Order No. 656);

9. Priority Mail-Non-Published Rates, added February 3, 2011 (Order No. 661); and

10. Priority Mail-Non-Published Rates 1 (MC2011-15 and CP2011-51), added February 3, 2011 (Order No. 661).

Updated product lists. The referenced changes to the competitive product list are included in the product lists following the Secretary's signature.

For the reasons discussed in the preamble, the Postal Regulatory Commission amends chapter III of title 39 of the Code of Federal Regulations as follows:

I. Background

The term “fuel-burning equipment” was originally defined in order to differentiate between a boiler that involves the indirect heating of air or water and fuel-burning installations that involve direct heat exchange. Fuel-burning installations, such as a kiln, are subject to the general requirements for sulfur dioxide (SO 2 ) and particulate matter, whereas fuel-burning equipment is subject to different standards in the form of pounds of SO 2 per million (British thermal unit) Btu per hour heat input or the sulfur content of the fuel.

Since a “furnace” is usually direct heat exchange, the State of Maryland concludes that it should not be included in the definition of “fuel-burning equipment”. There is no Federal definition of the term “fuel-burning equipment,” however, the term “fuel-burning equipment” is consistent with the Federal definition of the term “boiler.”

On December 15, 2010, the State of Maryland submitted a formal revision (#10-10) to its State Implementation Plan (SIP). The SIP revision consists of amendments to Regulation .01 under COMAR 26.11.01, General Administrative Provisions and Regulation .01 under COMAR 26.11.09, Control of Fuel-Burning Equipment, Stationary Internal Combustion Engines, and Certain Fuel-Burning Installations. The revision removes the word “furnace” from the definition of “fuel-burning equipment” in COMAR 26.11.01.01 and also removes the redundant definition of “fuel-burning equipment” from COMAR 26.11.09.01.

EPA is approving Maryland's revision which removes the word “furnace” from the definition of “fuel-burning equipment” in COMAR 26.11.01.01 and also removes the redundant definition of “fuel-burning equipment” from COMAR 26.11.09.01. EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comment. However, in the “Proposed Rules” section of today's Federal Register , EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on April 25, 2011 without further notice unless EPA receives adverse comment by March 24, 2011. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

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

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

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

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

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

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 action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in 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 CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 25, 2011. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register , rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. This action which pertains to Maryland's amendment to the definition of “fuel-burning equipment” may not be challenged later in proceedings to enforce its requirements. ( See section 307(b)(2).)

40 CFR part 52 is amended as follows:

I. Background

The SIP is a living document which the State revises as necessary to address its unique air pollution problems. Therefore, EPA from time to time must take action on SIP revisions containing new and/or revised regulations as being part of the SIP. On May 22, 1997 (62 FR 27968), EPA revised the procedures for incorporating by reference Federally-approved SIPs, as a result of consultations between EPA and Office of the Federal Register (OFR). The description of the revised SIP document, IBR procedures and (“Identification”) of plan format are discussed in further detail in the May 22, 1997 Federal Register document. On December 7, 1998, (63 FR 67407) EPA published a document in the Federal Register beginning the new IBR procedure for the District of Columbia. On August 6, 2004 (69 FR 47773), September 6, 2005 (70 FR 52919) and March 19, 2009 (74 FR 11647), EPA published updates to the IBR material for the District of Columbia.

Since the publication of the last IBR update, EPA has approved the following regulatory changes to the IBR materials in paragraph 40 CFR 52.470(c):

1. The addition of 20 DCMR Chapter 15.

2. A revision to the Title of 20 DCMR Chapter 4.

3. The removal of Section 403 of 20 DCMR, Chapter 4.

In this action, EPA is doing the following:

1. Announcing the update to the IBR material as of December 1, 2010.

2. Correcting the title entry for 20 DCMR Chapter 4 in paragraph 52.470(c).

3. Making corrections to several table entries in paragraph 52.470(e) so that the date format in the “state submittal date” and “EPA approval date” columns are consistent with that of the table.

EPA has determined that today's rule falls under the “good cause” exemption in section 553(b)(3)(B) of the Administrative Procedures Act (APA) which, upon finding “good cause,” authorizes agencies to dispense with public participation and section 553(d)(3) which allows an agency to make a rule effective immediately (thereby avoiding the 30-day delayed effective date otherwise provided for in the APA). Today's rule simply codifies provisions which are already in effect as a matter of law in Federal and approved State programs. Under section 553 of the APA, an agency may find good cause where procedures are “impractical, unnecessary, or contrary to the public interest.” Public comment is “unnecessary” and “contrary to the public interest” since the codification only reflects existing law. Immediate notice in the CFR benefits the public by removing outdated citations and incorrect table entries.

Under the Clean Air Act (CAA), the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

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

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

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

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

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

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 . This rule is not a “major rule” as defined by 5 U.S.C. 804(2).

EPA has also determined that the provisions of section 307(b)(1) of the CAA pertaining to petitions for judicial review are not applicable to this action. Prior EPA rulemaking actions for each individual component of the District of Columbia SIP compilations had previously afforded interested parties the opportunity to file a petition for judicial review in the United States Court of Appeals for the appropriate circuit within 60 days of such rulemaking action. Thus, EPA sees no need in this action to reopen the 60-day period for filing such petitions for judicial review for this “Identification of plan” update action for the District of Columbia.

40 CFR part 52 is amended as follows:

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This SUPPLEMENTARY INFORMATION section is arranged as follows:

On July 18, 1997 (62 FR 38856), EPA promulgated an 8-hour ozone standard of 0.08 parts per million parts of air (ppm). EPA published a final rule designating and classifying areas under the 1997 8-hour ozone standard on April 30, 2004 (69 FR 23857). In that rulemaking, the Chicago-Gary-Lake County, Illinois-Indiana (IL-IN) and St. Louis, Missouri-Illinois (MO-IL) areas were designated as nonattainment for the 1997 8-hour ozone standard. The designations became effective on June 15, 2004.

Since the Illinois ozone nonattainment areas were classified as moderate nonattainment for ozone under subpart 2 of the CAA in the April 30, 2004, designation rulemaking, they became subject to the Oxides of Nitrogen (NO X ) emission control requirements of section 182(f) of the CAA. Section 182(f) requires States with areas classified as moderate nonattainment and above to adopt and implement the same level of NO X emission controls for major stationary sources as are required for major stationary sources of Volatile Organic Compounds (VOC). Major stationary VOC sources are subject to RACT requirements. Therefore, major NO X sources are also subject to RACT requirements. Section 182(f) also provides that these NO X emission control requirements do not apply to an area (outside of a designated ozone transport region) if EPA determines that additional reductions of NO X emissions would not contribute to attainment of the ozone standard. In areas where the ozone standard is attained, as demonstrated by complete, quality-assured air quality data, without the implementation of the additional section 182(f) NO X emission controls, it is clear that additional NO X emission controls required by section 182(f) would not contribute to attainment of the ozone standard since the standard has already been attained.

On July 29, 2010, the Illinois Environmental Protection Agency (Illinois EPA) submitted a request for a waiver of the NO X RACT requirements that would apply under section 182(f) of the CAA to the Illinois portions of the Chicago-Gary-Lake County, IL-IN and St. Louis, MO-IL ozone nonattainment areas. 1 Although Illinois has adopted NO X RACT rules for the ozone nonattainment areas, the 1997 8-hour ozone standard has been attained in the two ozone nonattainment area prior to the implementation of Illinois' NO X RACT rules.

On December 8, 2010 (75 FR 76332), EPA published a proposed rule reviewing Illinois' NO X control waiver request and proposing to grant this waiver under section 182(f) of the CAA. This proposed rule provides a detailed discussion of Illinois' requested NO X RACT waiver and the ozone air quality data supporting the granting of this waiver.

EPA received no comments on the December 8, 2010, proposed rule.

The 2007-2009 ozone data for the Chicago-Gary-Lake County, IL-IN and St. Louis, MO-IL 8-hour ozone nonattainment areas show attainment of the 1997 8-hour ozone standard. Based on this conclusion, we are approving Illinois' request for a waiver from the NO X RACT requirements of the CAA in the Illinois portions of the Chicago-Gary-Lake County, IL-IN and St. Louis, MO-IL 8-hour ozone nonattainment areas.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves State law as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law and the CAA. For that reason, this action:

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

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

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

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

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the State, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

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 action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in 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 CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 25, 2011. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. ( See section 307(b)(2).)

40 CFR part 52 is amended as follows:

This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. This table lists the types of entities that EPA is now aware could potentially be regulated by this action. Other types of entities not listed in the table could also be regulated. If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding FOR FURTHER INFORMATION CONTACT section.

The current information is as follows:

• Docket ID No. EPA-HQ-SFUND-2010-1068.

• Federal eRulemaking Portal: http://www.regulations.gov.

This technical amendment is a correction that is being issued to delete one of the telephone numbers, the facsimile number, and the telex number, and to provide a new facsimile number for the person in charge of a vessel or an offshore or an onshore facility to use to contact the National Response Center (NRC). The NRC is operated by the U.S. Coast Guard.

On April 4, 1985, (50 FR 13456) EPA issued a final rule in the Federal Register that provided telephone numbers for any person in charge of a vessel or an offshore or an onshore facility to use as soon as he or she has knowledge of any release (other than a federally permitted release or application of a pesticide) for the immediate notification to the NRC when there is a release of a hazardous substance from a vessel or facility in a quantity equal to or exceeding the reportable quantity in any 24-hour period ( see 40 CFR 302.6(a)). On July 9, 2002, EPA issued another final rule in the Federal Register that provided an additional telephone number, a facsimile number, and a telex number for the NRC. Recently, changes were made to these numbers.

Section 553 of the Administrative Procedure Act (APA), 5 U.S.C. 553(b)(B), provides that, when an Agency for good cause finds that notice and public procedure are impracticable, unnecessary or contrary to the public interest, the agency may issue a final rule without providing notice and an opportunity for public comment. EPA has determined that there is good cause for making this technical amendment final without prior proposal and opportunity for comment, because EPA is merely correcting information that has become out of date since the previously published final rule. The contact information for the NRC listed in 40 CFR 302.6 is no longer correct. Because the NRC receives notifications of hazardous substance release information, it is important that the public has the correct information to make such notifications. EPA finds that this constitutes good cause under 5 U.S.C. 553(b)(B).

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and is therefore not subject to OMB review. Because this action is not subject to notice and comment requirements under the Administrative Procedures Act or any other statute, it is not subject to the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) or Sections 202 and 205 of the Unfunded Mandates Reform Act of 1999 (UMRA) (Pub. L. 104-4). In addition, this action does not significantly or uniquely affect small governments. This action does not create new binding legal requirements that substantially and directly affect Tribes under Executive Order 13175 (63 FR 67249, November 9, 2000). This action does not have significant Federalism implications under Executive Order 13132 (64 FR 43255, August 10, 1999). Because this final rule has been exempted from review under Executive Order 12866, this final rule is not subject to Executive Order 13211, entitled Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq., nor does it require any special considerations under Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994). This action does not involve technical standards; thus, the requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply.

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. Section 808 allows the issuing agency to make a rule effective sooner than otherwise provided by the CRA if the agency makes a good cause finding that notice and public procedure is impracticable, unnecessary or contrary to the public interest. This determination must be supported by a brief statement. 5 U.S.C. 808(2). As stated previously, EPA has made such a good cause finding, including the reasons therefore, and established an effective date of February 22, 2011. 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 . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

For the reasons set out above, title 40, chapter I of the Code of Federal Regulations is amended as follows:

The NFIP enables property owners to purchase flood insurance which is generally not otherwise available. In return, communities agree to adopt and administer local floodplain management aimed at protecting lives and new construction from future flooding. Section 1315 of the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits flood insurance coverage as authorized under the NFIP, 42 U.S.C. 4001 et seq.; unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed in this document no longer meet that statutory requirement for compliance with program regulations, 44 CFR part 59. Accordingly, the communities will be suspended on the effective date in the third column. As of that date, flood insurance will no longer be available in the community. However, some of these communities may adopt and submit the required documentation of legally enforceable floodplain management measures after this rule is published but prior to the actual suspension date. These communities will not be suspended and will continue their eligibility for the sale of insurance. A notice withdrawing the suspension of the communities will be published in the Federal Register .

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

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

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

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

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

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

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

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

Accordingly, 44 CFR part 64 is amended as follows:

The Federal Emergency Management Agency (FEMA) makes the final determinations listed below for the modified BFEs for each community listed. These modified elevations have been published in newspapers of local circulation and ninety (90) days have elapsed since that publication. The Deputy Federal Insurance and Mitigation Administrator has resolved any appeals resulting from this notification.

This final rule is issued in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR part 67. FEMA has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR part 60.

Interested lessees and owners of real property are encouraged to review the proof Flood Insurance Study and FIRM available at the address cited below for each community. The BFEs and modified BFEs are made final in the communities listed below. Elevations at selected locations in each community are shown.

National Environmental Policy Act. This final rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. An environmental impact assessment has not been prepared.

Regulatory Flexibility Act. As flood elevation determinations are not within the scope of the Regulatory Flexibility Act, 5 U.S.C. 601-612, a regulatory flexibility analysis is not required.

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

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

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

Accordingly, 44 CFR part 67 is amended as follows:

I. Background

DoD published an interim rule at 75 FR 40714 on July 13, 2010, to implement section 820 of the Fiscal Year 2010 National Defense Authorization Act (Pub. L. 111-84), enacted October 28, 2009. The period for public comment closed on September 13, 2010. The interim rule added a requirement at DFARS 205.205-70 to publish a notification of the intention to bundle a DoD procurement at least 30 days prior to (1) the release of a solicitation or (2) placing an order without a solicitation. This notification requirement is in addition to the existing requirements for market research at DFARS 210.001 when an acquisition could lead to a consolidation of contract requirements ( see DFARS 210.001(c)(2)).

DoD received no comments on the proposed rule. Therefore, DoD is finalizing the interim rule without change.

This rule is not a significant regulatory action and therefore was not subject to Office of Management and Budget review under section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This is not a major rule under 5 U.S.C. 804.

This rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. However, DoD has prepared a final regulatory flexibility analysis consistent with 5 U.S.C. 603. A copy of the analysis may be obtained from the point of contact specified herein. The analysis is summarized as follows.

This final rule amends the DFARS to implement section 820 of the National Defense Authorization Act for Fiscal Year 2010. Section 820 requires DoD contracting officers to publish a notification consistent with the requirements of FAR 10.001(c)(2) on FedBizOpps.gov, or any successor site, at least 30 days prior to the release of a solicitation for a bundled acquisition. In addition, if the DoD agency has determined that measurably substantial benefits are expected to be derived as a result of bundling, the notification must include a brief description of those benefits. The objective of the rule is to enable small businesses to compete for more work of which the firms might otherwise have been unaware. The notification requirement will provide a much broader segment of the small-business community awareness of upcoming business opportunities and then allow the small business to either submit a proposal or interact with the requiring agency to request unbundling before the solicitation is finalized. No comments were received from small entities on this rule.

The rule does not impose any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

Accordingly, the interim rule amending 48 CFR parts 205 and 210 published at 75 FR 40714 on July 13, 2010, is adopted as final without change.

I. Background

DoD published an interim rule at 75 FR 32639 on June 8, 2010, to implement section 806 of the National Defense Authorization Act for Fiscal Year 2010 (Pub. L. 111-84), providing limitations on procurements with non-Defense agencies. The public comment period closed August 9, 2010. No comments were received in response to the interim rule.

This rule was not subject to Office of Management and Budget review under Executive Order 12866, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

DoD certifies that this final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because the rule addresses internal DoD procedural matters only. Specifically, this implementation of section 806 of the National Defense Authorization Act for Fiscal Year 2010, Treatment of Non-Defense Agency Procurements Under Joint Programs with Intelligence Community, amends the limitations placed on procurements by non-DoD agencies by exempting such procurements that are: (a) Entered into by a non-DoD agency that is an element of the intelligence community and (b) when the procurement is for the performance of a joint program conducted to meet the needs of DoD and the non-DoD agency. The statute resulted in changes to internal operating procedures with no impact on contractors or offerors.

The changes to the DFARS do not impose information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

Accordingly, the interim rule amending 48 CFR part 217 published at 75 FR 32639 on June 8, 2010, is adopted as final without change.

This final rule amends the Defense Federal Acquisition Regulation Supplement by deleting subpart DFARS 219.10 to meet the requirements of section 1335 of the Small Business Jobs Act of 2010, (Pub. L. 111-240). Section 1335 amended the Business Opportunity Development Reform Act of 1988 (Pub. L. 100-656) by striking title VII (15 U.S.C. 644 note). The repeal of the Small Business Competitiveness Demonstration Program became effective immediately upon the enactment. It will apply to the first full fiscal year after the September 27, 2010, date of enactment (Fiscal Year 2011). Therefore, the text at DFARS subpart 219.10 is obsolete.

This is not a significant regulatory action and, therefore, was not subject to review under Section 6(b) of the Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

The Regulatory Flexibility Act does not apply to this rule because an initial regulatory flexibility analysis is only required for proposed or interim rules that require publication for public comment (5 U.S.C. 603) and a final regulatory flexibility analysis is only required for final rules that were previously published for public comment, and for which an initial regulatory flexibility analysis was prepared (5 U.S.C. 604).

This final rule does not constitute a significant DFARS revision as defined at FAR 1.501-1 because this rule will not have a significant cost or administrative impact on contractors or offerors, or a significant effect beyond the internal operating procedures of the Government. Therefore, publication for public comment under 41 U.S.C. 418b is not required.

The final rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

Therefore, 48 CFR part 219 is amended as follows:

The Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq. ), is a law that was passed to prevent extinction of species by providing measures to help alleviate the loss of species and their habitats. Before a plant or animal species can receive the protection provided by the Act, it must first be added to the Federal Lists of Endangered and Threatened Wildlife and Plants; section 4 of the Act and its implementing regulations at 50 CFR 424 set forth the procedures for adding species to these lists.

On November 29, 2006, the U.S. Fish and Wildlife Service (Service) received a petition from the Center for Biological Diversity (CBD) to list 12 penguin species under the Act: emperor penguin ( Aptenodytes forsteri ), southern rockhopper penguin ( Eudyptes chrysocome ), northern rockhopper penguin ( Eudyptes moseleyi ), Fiordland crested penguin ( Eudyptes pachyrhynchus ), snares crested penguin ( Eudyptes robustus ), erect-crested penguin ( Eudyptes sclateri ), macaroni penguin ( Eudyptes chrysolophus ), royal penguin ( Eudyptes schlegeli ), white-flippered penguin ( Eudyptula minor albosignata ), yellow-eyed penguin ( Megadyptes antipodes ), African penguin ( Spheniscus demersus ), and Humboldt penguin ( Spheniscus humboldti ).

On July 11, 2007, we published in the Federal Register a 90-day finding (72 FR 37695) in which we determined that the petition presented substantial scientific or commercial information indicating that listing 10 of the penguin species as endangered or threatened may be warranted, but determined that the petition did not provide substantial scientific or commercial information indicating that listing the snares crested penguin and the royal penguin as endangered or threatened may be warranted.

Following the publication of our 90-day finding on this petition, we initiated a status review to determine if listing each of the 10 species was warranted, and sought information from the public and interested parties on the status of the 10 species of penguins. In addition, we attended the International Penguin Conference in Hobart, Tasmania, Australia, a quadrennial meeting of penguin scientists from September 3-7, 2007, to gather information and to ensure that experts were aware of the status review. We also consulted with other agencies and range countries in an effort to gather the best available scientific and commercial information on these species.

On December 3, 2007, we received a 60-day Notice of Intent to Sue from the CBD. On February 27, 2008, CBD filed a complaint against the Department of the Interior for failure to make a 12-month finding (status determination) on the petition. On September 8, 2008, we entered into a settlement agreement with the CBD, in which we agreed to submit to the Federal Register 12-month findings for the 10 species of penguins, including the southern rockhopper penguin, on or before December 19, 2008.

On December 18, 2008, we published three documents: (1) A warranted 12-month finding and proposed rule to list the African penguin as endangered under the Act (73 FR 77332); (2) a warranted 12-month finding and proposed rule to list the yellow-eyed penguin, white-flippered penguin, Fiordland crested penguin, Humboldt penguin, and erect-crested penguin as threatened under the Act (73 FR 77303); and (3) a warranted 12-month finding and proposed rule to list a significant portion of the ranfge (SPR) of the New Zealand/Australia distinct population segment (DPS) of the southern rockhopper penguin as threatened under the Act, together with a not-warranted 12-month finding to list the remainder of the range of the southern rockhopper penguin, as well as any portion of the range for the northern rockhopper penguin, macaroni penguin, and emperor penguin (73 FR 77264).

We finalized the actions listed in (1) and (2) above on September 28, 2010 (75 FR 59645), and August 3, 2010 (75 FR 45497), respectively. This final rule completes the action referred to in (3) above.

The SPR we proposed for listing for the southern rockhopper penguin on December 18, 2010 (73 FR 77264), was the Campbell Plateau portion of the New Zealand/Australia (NZ-AUS) DPS. We implemented the Service's peer review process and opened a 60-day comment period to solicit scientific and commercial information on the species from all interested parties following publication of the proposed rule.

On March 9, 2010, CBD filed a complaint against the Service for failure to issue a final listing determination for seven penguin species, including the Campbell Plateau SPR of the NZ-AUS DPS of southern rockhopper penguin, within 12 months of the proposals to list the species. In a court-approved settlement agreement, the Service agreed to submit a final listing determination for the Campbell Plateau SPR of the NZ-AUS DPS of southern rockhopper penguin to the Federal Register by February 18, 2011.

We base this final listing determination on a review of the best scientific and commercial information available, including all information received during the public comment period. In the December 18, 2008, proposed rule (73 FR 77264), we requested that all interested parties submit information that might contribute to development of a final rule. We also contacted appropriate scientific experts and invited them to comment on the proposed listing. We received 6 comments on our proposed action: 4 from members of the public and 2 from peer reviewers. Two members of the public indicated the species should be listed range-wide but did not provide new or additional information to support this claim. We also received several comments and new information pertaining to species, or portions of the southern rockhopper penguin's range, we determined in our 2008 status review (73 FR 77264) were not warranted for listing. We thank the public and peer reviewers for this information and request that the public and peer reviewers continue to submit to our office ( see ADDRESSES ) any new information concerning the status of, or threats to, these species. New information will help us monitor the status of the species.

We reviewed all comments we received from the public and peer reviewers for substantive issues and new information regarding the proposed listing of the Campbell Plateau SPR of the NZ-AUS DPS of southern rockhopper penguin. We address those comments below.

In accordance with our policy published on July 1, 1994 (59 FR 34270), we solicited expert opinions from three individuals with scientific expertise that included familiarity with the species, the geographic region in which the species occurs, and conservation biology principles. We received responses from two of the peer reviewers from whom we requested comments. They generally agreed that the description of the biology and habitat for the species was accurate and based on the best available information. New or additional information on the biology of, and threats to, the southern rockhopper penguin was provided and incorporated into this rulemaking as appropriate. In some cases, it has been indicated in the citations by “personal communication” (pers. comm.), which could indicate either an email or telephone conversation; in other cases, the research citation is provided.

(1) Comment: One peer reviewer found the analysis and approach used in the proposed rule to be appropriate and scientifically sound given the quality and patchiness of available data. However, this reviewer noted inconsistencies in the proposed rule related to trends on Macquarie Island. The reviewer noted that in the Campbell Plateau SPR analysis we stated “numbers at Macquarie Island are reported to be stable”, while in other sections of the proposed rule we indicated population trends on Macquarie Island were uncertain due to poor data. The reviewer also states that the Macquarie Island population is believed to have decreased from earlier reports of distribution and abundance, and that it would be more appropriate to describe the Macquarie Island population as possibly stable following a decrease during the past 30 or so years.

Our Response: We agree with the peer reviewer regarding inconsistencies in statements in the proposed rule related to Macquarie Island population trends. The evidence does not support our statement in the proposed rule that numbers at Macquarie Island are reported to be stable. Rather, reports indicate uncertain, or declining, population trends on the island. We appreciate the reviewer's clarification that numbers are believed to have decreased over recent decades from those of earlier estimates. We have made changes to this final rule to address the inconsistencies in the proposed rule and characterize the Macquarie Island population as decreasing.

(2) Comment: One commenter expressed concern over the listing of a species that occurs wholly outside the United States, and questioned the protections afforded by the Act.

Our Response: We appreciate this comment and the opportunity to clarify the stipulations of the Act. The Act stipulates that we are to list any species determined under the Act to be endangered or threatened throughout all or a significant portion of its range. The Act calls for this regardless of whether the species occurs partially or wholly within or outside the United States. Protections for foreign species under the Act include, among other things, prohibitions on import and export into or from the United States, and prohibitions on sale or commercial transport in interstate or foreign commerce. Protections also include provisions for: (1) Financial assistance to countries in which species listed as endangered or threatened under the Act occur; (2) encouragement of foreign programs to provide for the conservation of species, including those listed under the Act; (3) technical assistance from Department of the Interior personnel; and (4) law enforcement investigations and research abroad as deemed necessary to carry out the purposes of the Act. For more information on this subject, see Available Conservation Measures, below.

(3) Comment: One commenter asserted that the best available science on the taxonomic status of the southern rockhopper penguin indicates the species be classified as two subspecies, that we should have considered the southern rockhopper penguin as two subspecies, and that we should analyze population status and threats for each subspecies accordingly. The commenter further asserted that doing so may change our Significant Portion of the Range analyses and conclusions. The commenter also states that we failed to provide a justification as to why we accepted BirdLife International's (BLI) treatment of the taxa as two species but not BLI's treatment of the southern rockhopper species as two subspecies.

Our Response: We accepted BLI's assessment of the two genetic studies published in 2006, one which concluded that the taxa be considered two species (Jouventin et al. 2006), and one which concluded it be considered three species (Banks et al. 2006). BLI rejected Banks et al.' s (2006) conclusion on the basis of small sample sizes used in their study and limited morphological differences between the southern and eastern forms. We agreed with BLI's assessment of these two studies, and we accepted Jouventin et al. (2006) as the best available science on the taxonomy of the complex. The commenter provided no new information on this subject, and we uphold our decision to accept Jouventin et al. (2006) as the best available science in this final rule.

We agree with the commenter that treating the southern rockhopper penguin as comprising two subspecies may change our SPR analyses and conclusions. However, we do not accept BLI's treatment of the southern rockhopper penguin as two subspecies. Jouventin et al. (2006), which we accept as the best available information, did not make any conclusions regarding further divisions or subspecies classification within the taxa. They indicate that their research does not allow them to make conclusions beyond those made, i.e. that rockhopper penguins consist of two species. In addition, the three recent genetic studies (discussed above) include samples from only two of the three widely separated regions (Indian Ocean, Pacific Ocean, and Patagonia-Atlantic Ocean) in which southern rockhopper penguins occur. None of these studies analyzed samples from the Pacific Ocean region (the NZ-AUS DPS), and, as a result, subspecies relationships within the southern rockhopper species are uncertain. That the species taxonomy remains uncertain is supported by the fact that a comprehensive investigation of southern rockhopper penguin taxonomy is a key recommendation of a recent international workshop tasked with producing a plan for rockhopper penguin research and conservation (BLI 2010, p. 8). Because a complete taxonomy of southern rockhopper penguin is lacking, and because Jouventin et al. (2006), whom we have determined represents the best available science, were unable to make conclusions on subspecies classification, we treat the southern rockhopper penguin as one undivided species and consider our SPR analysis and conclusions to be appropriate.

As discussed in this final rule, recent evidence presented in de Dinechin et al. (2009) supports the conclusions of Banks et al. (2006) that the rockhopper taxa consists of three species. Therefore, this new evidence could also be interpreted as lending support to the commenter's assertion that the southern rockhopper penguin be considered two subspecies. However, as discussed above, BLI has yet to consider the new evidence provided in de Dinechin et al. (2009), and still considers the taxa as two species. Because we rely on BLI for expert assessment of the literature pertaining to the taxonomy of the species, and because there are current gaps in taxonomic research on the species, especially with respect to the NZ-AUS DPS, we continue to consider Jouventin et al. (2006) the best available science and, consequently, treat the rockhopper penguin as two species, and the southern rockhopper penguin as an undivided species.

We have made changes in this final rule to clarify our rationale and justification for why we did not accept BLI's treatment of the southern rockhopper penguin as two subspecies.

(4) Comment: The same commenter stated that our analysis of Factor A (the Present or Threatened Destruction, Modification, or Curtailment of Habitat or Range) omits any mention or discussion of ocean acidification, and thus fails to consider the best available science on the threat that ocean acidification poses to the southern rockhopper penguin's marine foraging habitat and prey species.

Our Response: We acknowledge that the issue of ocean acidification was not directly addressed in the proposed rule. With respect to penguins, the best available information does not address how ocean acidity would impact the physiology of, and food web associated with, this penguin species. We acknowledge that ocean acidification may be a concern, but at this time, any conclusion would be purely speculative regarding how much the oceanic pH may change in the penguins' habitat and how subsequent changes in the species' environments would interact with other known threats. The manner in which a change in ocean pH may affect penguins is currently unpredictable.

We fully considered comments from the public and peer reviewers on the proposed rule to develop this final listing of the NZ-AUS DPS of the southern rockhopper penguin. This final rule incorporates changes to our proposed listing based on the comments that we received that are discussed above, and newly available scientific and commercial information.

We made some technical corrections to this final rule, added clarifying language, and added new information where appropriate, based on comments we received and new information available. None of the information changed our determination that the southern rockhopper penguin within the Campbell Plateau region warrants listing as threatened. However, due to peer reviewer comments and newly available information, in this final rule we determine that the population on Macquarie Island is declining and is threatened by changes in the marine environment. We therefore determine that the species is threatened throughout the entire NZ-AUS DPS, and we list the entire DPS as threatened in this final rule. We feel that listing the entire DPS represents a relatively minor change from the proposed action. Although listing the entire DPS adds an additional range country to the affected area, it extends protections of the Act to penguins breeding on only one additional island in the Pacific Ocean region of the species' range.

Rockhopper penguins are among the smallest of the world's penguins, averaging 20 inches (in) (52 centimeters (cm)) in length and 6.6 pounds (lbs) (3 kilograms (kg)) in weight. They are the most widespread of the crested penguins (genus Eudyptes ), and are so named because of the way they hop from boulder to boulder when moving around their rocky colonies. Rockhopper penguins are found on islands from near the Antarctic Polar Front to near the Subtropical Convergence, in the South Atlantic, Pacific, and Indian Oceans (Marchant and Higgins 1990, p. 183).

The taxonomy of the rockhopper complex is contentious. Formerly treated as three subspecies (Marchant and Higgins 1990, p. 182), recent papers suggest that these should be treated as either two species (Jouventin et al. 2006, pp. 3,413-3,423) or three species (Banks et al. 2006, pp. 61-67; de Dinechin et al. 2009, pp. 693-702).

Jouventin et al. (2006, pp. 3,413-3,423), following up on recorded differences in breeding phenology, song characteristics, and head ornaments used as mating signals, conducted genetic analysis between northern subtropical rockhopper penguins and southern subantarctic rockhopper penguins using the Subtropical Convergence, a major ecological boundary for marine organisms, as the dividing line between them. Their results supported the separation of E. chrysocome into two species, the southern rockhopper ( E. chrysocome ) and the northern rockhopper ( E. moseleyi ).

Banks et al. (2006, pp. 61-67) compared the genetic distances between the three rockhopper subspecies and compared them with such sister species as macaroni penguins. Banks et al. (2006, pp. 61-67) suggested that three rockhopper subspecies—southern rockhopper ( E. chrysocome chrysocome ), eastern rockhopper ( E. chrysocome filholi ), and northern rockhopper ( E. chrysocome moseleyi )—should be split into three species.

More recently, de Dinechin et al. (2009, pp. 693-702) used gene sequences from Jouventin et al. (2006), Banks et al. (2006), and new samples from the Falkland Islands to determine divergence times between populations. Their results suggest the rockhopper complex consists of three species, supporting the conclusions of Banks et al. (2006).

Despite these three genetic studies, the taxonomy of rockhopper penguins remains uncertain due to gaps in the taxonomic research. For instance, the three genetic studies (discussed above) include samples from only two of the three widely separated regions (Indian Ocean, Pacific Ocean, and Patagonia-Atlantic Ocean) in which southern rockhopper penguins breed. None of these studies analyzed samples from the Pacific Ocean region (the NZ-AUS DPS).

BLI (2007, p. 1; 2008a, p. 1) reviewed the two papers published in 2006 and made the decision to adopt, for the purposes of their continued compilation of information on the status of birds, the conclusion of Jouventin et al. (2006, p. 3,419) that there are two species of rockhopper penguin. In doing so, they noted that the proposed splitting of an eastern rockhopper species from E. chrysocome had been rejected because of small sample sizes and weak morphological differentiations between the circumpolar populations south of the Subtropical Convergence (BLI 2008a, p. 1; Banks et al. 2006, p. 67). Thus, BLI considered Jouventin et al. (2006) the best available science. BLI has yet to consider the new evidence presented in de Dinechin et al. (2009), and still treats the rockhopper complex as consisting of two species.

We do not accept BLI's treatment of the southern rockhopper species as consisting of two subspecies. Jouventin et al. (2006), on which BLI based their decision to treat rockhopper penguins as two species, do not make any conclusions regarding further divisions within these species, or subspecies classification. They indicate that their research provides evidence for speciation between northern and southern rockhopper populations, but explicitly refrain from making conclusions on the taxonomic structure of rockhopper penguins as a whole, noting that further research is needed to determine the definitive taxonomy of the genus (Jouventin et al. 2006, pp. 3,421). In addition, existing genetic studies do not include analysis of samples from the NZ-AUS DPS, which comprises one of the three regions in the world in which southern rockhopper penguins breed. As a result, subspecies relationships within the southern rockhopper species are uncertain. The uncertainty of the species taxonomy is further supported by the fact that a comprehensive investigation of southern rockhopper penguin taxonomy was a key recommendation of a recent international workshop tasked with producing a plan for rockhopper penguin research and conservation (BLI 2010, p. 8). Because a complete taxonomy of southern rockhopper penguin is lacking, and because Jouventin et al. (2006, pp. 3,413-3,423), whom we have determined represents the best available science, were unable to make conclusions on subspecies classification, we treat the southern rockhopper penguin as one undivided species. However, we will continue to evaluate the taxonomy of rockhopper penguins as new information becomes available and will reevaluate their status as appropriate.

On the basis of our review, we accept Jouventin et al. (2006) as the best available science and treat the rockhopper penguins as two species, the northern rockhopper penguin ( E. moseleyi ) and the southern rockhopper penguin ( E. chrysocome ). We accept Jouventin et al. (2006) as the best available science because the rockhopper taxonomy is uncertain, because we accept BLI's assessment of the literature and determination that Jouventin et al. (2006) represents the best available science on the subject, and because BLI has yet to consider de Dinechin et al. (2009).

In general, southern rockhopper penguin breeding begins in early October (the austral spring) when males arrive at the breeding site a few days before females. Breeding takes place as soon as the females arrive, and two eggs are laid 4 to 5 days apart in early November. The first egg laid is typically smaller than the second, 2.8 versus 3.9 ounces (oz) (80 versus 110 grams (g)), and is the first to hatch. Incubation lasts about 33 days and is divided into three roughly equal shifts. During the first 10-day shift, both parents are in attendance. Then, the male leaves to feed while the female incubates during the second shift. The male returns to take on the third shift. He generally remains for the duration of incubation and afterward to brood the chicks while the female leaves to forage and returns to feed the chicks. Such a system of extended shift duration requires lengthy fasts for both parents, but allows them to forage farther afield than would be the case if they had a daily changeover. The newly hatched chicks may have to wait up to a week before the female returns with their first feed. During this period, chicks are able to survive on existing yolk reserves, after which they begin receiving regular feedings of around 5 oz (150 g) in weight. By the end of the 25 days of brooding, chicks are receiving regular feedings averaging around 1 lb 5 oz (600 g). By this stage they are able to leave the nest and group (crèche) with other chicks, allowing both adults to forage to meet the chicks' increasing demands for food (Marchant and Higgins 1990, p. 190).

During the breeding season, penguins are susceptible to local ecosystem perturbations because they are constrained by how far they can swim from the terrestrial habitat in search of food (Davis 2001, p. 9). Therefore, a decrease in food availability could have substantial consequences on reproductive success. Southern rockhopper penguins typically rear only one of two chicks, although those near the Falkland Islands are capable of rearing both chicks to fledging when conditions are favorable (Guinard et al. 1998, p. 226). Reported breeding success is highly variable, ranging from 0.23 to 0.91 chicks per breeding pair, with the greatest reported success rate (0.91 chicks per breeding pair) occurring at the Falkland Islands (Crawford et al. 2008, p. 186; Hull et al. 2005, p. 714; Raya Ray et al. 2007, p. 829; Poisbleau et al. 2008, p. 930; Clausen and Putz 2002, p. 51). Chicks fledge at around 10 weeks of age, and adults then spend 20 to 25 days at sea building up body fat reserves in preparation for their annual molt. The molt lasts for around 25 days, and the birds then abandon the breeding site. They spend the winter feeding at sea, prior to returning the following spring (Marchant and Higgins 1990, p. 185).

The southern rockhopper penguin is widely distributed around the Southern Ocean, breeding on subantarctic islands in the Indian, Pacific, and Atlantic Oceans (Shirihai 2002, p. 71; Otley and Thompson 2010, p. 28). Breeding islands are clustered in three different geographic regions: the Pacific Ocean region, which comprises the NZ-AUS DPS; the Patagonia region, which includes the Falkland Islands and breeding islands in the southeast Pacific Ocean and southwest Atlantic Ocean surrounding Patagonia; and the Indian Ocean region. Southern rockhopper penguin range includes island breeding habitat and marine foraging areas. In the breeding season, these marine foraging areas may lie within as little as 6 miles (mi) (10 kilometers (km)) of the colony (as at the Crozet Archipelago in the Indian Ocean), as distant as 97 mi (157 km) (as at the Prince Edward Islands in the Indian Ocean), or for male rockhopper penguins foraging during the incubation stage at the Falkland Islands in the Southwest Atlantic, as much as 289 mi (466 km) away (Sagar et al. 2005, p. 79; Putz et al. 2003, p. 141). Foraging ranges vary according to the geographic, geologic, and oceanographic location of the breeding sites and their proximity to sea floor features (such as the continental slope and its margins or the subantarctic slope) and oceanographic features (such as the polar frontal zone or the Falkland current) (Sagar et al. 2005, pp. 79-80). Winter at-sea foraging areas are less well-documented, but penguins from the Staten Island breeding colony at the tip of South America dispersed over a range of 501,800 square miles (mi 2 ) (1.3 million square kilometers (km 2 )) covering polar, sub-polar, and temperate waters in oceanic regions of the Atlantic and Pacific as well as shelf waters (Putz et al. 2006, p. 735) and traveled up to 1,242 mi (2,000 km) from the colony.

The NZ-AUS DPS is comprised of the marine foraging area and four breeding islands within the Pacific Ocean region. These four islands are: Macquarie Island (in Australia waters); and Campbell, Auckland, and Antipodes Islands (in New Zealand waters) (BLI 2007, pp. 2-3; Woehler 1993, pp. 58-61; Gales et al. 2010, pp. 92-93). Southern rockhopper penguin breeding colonies within the NZ-AUS DPS inhabit a unique ecological and geographical position in the range of the species. The underwater topography and oceanography of this area is unique and has been described in detail in the Macquarie Island Management Plan (Parks and Wildlife Service (Australia) 2006, pp. 20-22). The islands sit in areas of relatively shallow water, generally less than 3,280 ft (1,000 m) deep. Macquarie Island is on the shallow Macquarie Ridge, which is associated with a deep trench to the east, and connects to the north with the broader Campbell Plateau, an extensive area of shallow water that is part of the continental shelf extending southeast from New Zealand. The New Zealand islands (Campbell, Auckland, and Antipodes) with breeding colonies of southern rockhopper penguins are located on the Campbell Plateau. This region and all their associated islands are located north of the Antarctic Polar Front Zone (APFZ), a distinct hydrographic boundary with cold, nutrient-rich, surface waters to the south and warmer, less rich, water to the north. In addition, the Macquarie Ridge and Campbell Plateau form a major obstruction to the Antarctic Circumpolar Current, which runs easterly at about 50° S latitude. This further increases the high degree of turbulence and current variability in the area and is likely to directly or indirectly encourage biological productivity (Parks and Wildlife Service (Australia) 2006, pp. 20-22).

Historical numbers of southern rockhopper penguins in this region may have been as high as 960,000 breeding pairs, with declines recorded from the New Zealand islands. Currently there are approximately 89,600-101,500 breeding pairs in the region, which represents 6 to 7 percent of the current estimated population of 1.4 million southern rockhopper penguin breeding pairs range-wide.

Order of magnitude estimates at Macquarie Island (Australia) reported 100,000-300,000 pairs in the early 1980s (Woehler 1993, p. 60; Taylor 2000, p. 54). The 2006 Management Plan for the Macquarie Island Nature Reserve and World Heritage Area reported that the total number of southern rockhopper penguins in this area may be as high as 100,000 breeding pairs. However, estimates from 2006-07 indicate 32,000-43,000 breeding pairs at Macquarie Island (BLI 2008, p. 2), an order of magnitude lower than the earlier categorical estimate. Given that the earlier estimate is categorical, quantitative data on trends on this island are not available. However, expert opinion suggests a declining trend on the island. Gales et al. (2010, p. 93) state that there are no reliable data on trends, but categorize the population, based on anecdotal observations, as having decreased. Hilton and Otley (2010, pp. 32-33) acknowledge the lack of quantitative information on the population but categorize the long-term population trend as decreasing. Woehler (2009, pp. 1-2) describes the population as possibly stable following a decrease during, approximately, the last 30 years. Given these expert opinions on long-term trends, Woehler's uncertainty about the current stability of the population, and a lack of evidence indicating the population is currently stable, we rely on these expert opinions to qualify the general long-term population trend on the island as decreasing.

In New Zealand territory, southern rockhopper penguin numbers at Campbell Island declined by 94 percent between the early 1940s and 1985 from approximately 800,000 breeding pairs to 51,500 (Cunningham and Moors 1994, p. 32). The majority of the decline appears to have coincided with a period of warmed sea surface temperatures between 1946 and 1956. It is widely inferred that warmer waters most likely affected southern rockhopper penguins through changes in the abundance, availability, and distribution of their food supply (Cunningham and Moors 1994, p. 34); recent research suggests they may have had to work harder to find the same food (Thompson and Sagar 2002, p. 11). According to standard photographic monitoring, numbers in most colonies at Campbell Island continued to decline from 1985 to the mid-1990s (Taylor 2000, p. 54), although the extent of such declines has not been quantified in the literature. The New Zealand Department of Conservation (DOC) provided preliminary information from a 2007 Campbell Island survey team that “the population is still in decline” (Houston 2008, p. 1), but quantitative analysis of these data has not yet been completed. At the Auckland Islands, a survey in 1990 found 10 colonies produced an estimate of 2,700-3,600 breeding pairs of southern rockhopper penguins (Cooper 1992, p. 66). This was a decrease from 1983, when 5,000-10,000 pairs were counted (Taylor 2000, p. 54). There has been a large decline at Antipodes Islands from 50,000 breeding pairs in 1978 to 4,000 pairs in 1995 (Tennyson et al. 2002, p. 244). There is no more recent data for Auckland or Antipodes Islands (Houston 2008, p. 1).

The IUCN (International Union for Conservation of Nature) Red List classifies the entire southern rockhopper penguin species as ‘Vulnerable’ due to rapid population declines, which “appear to have worsened in recent years.” Southern rockhopper penguins are listed under New Zealand's Threat Classification System as Nationally Endangered. The species is not listed in Australia, which maintains a list of, and provides protections to, species under their Environmental Protection and Biodiversity Conservation Act.

Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations at 50 CFR part 424 set forth the procedures for adding species to the Federal Lists of Endangered and Threatened Wildlife and Plants. A species may be determined to be an endangered or threatened species due to one or more of the five factors described in section 4(a)(1) of the Act. The five factors are: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; and (E) other natural or manmade factors affecting its continued existence. These factors and their application to the NZ-AUS DPS of southern rockhopper penguin are discussed below.

There are few reports of destruction, modification, or curtailment of the terrestrial habitat of the southern rockhopper penguin. Analyses of large-scale declines of southern rockhopper penguins have uniformly ruled out that impacts to the terrestrial habitat have been a limiting factor to the species (Cunningham and Moors 1994, p. 34; Keymer et al. 2001, pp. 159-169; Clausen and Huin 2003, p. 394), and we have no reason to believe threats to the terrestrial habitat will emerge in the future. We, therefore, find that impacts to terrestrial habitat are not a threat to the species.

Reports of major decreases in both southern and northern rockhopper penguin numbers have been linked to sea surface temperature changes and other apparent or assumed oceanographic or prey shifts in the vicinity of breeding colonies (Cunningham and Moors 1994, pp. 27-36; Crawford et al. 2003, pp. 487-498; Clausen and Huin 2003, pp. 389-402). Within the NZ-AUS DPS at Campbell Island, a 94 percent decrease in southern rockhopper penguin numbers occurred between the early 1940s and 1985 (Cunningham and Moors 1994, p. 32). Cunningham and Moors (1994, pp. 27-36) compared the pattern of the penguin decline (from 800,000 breeding pairs in the early 1940s to 51,500 pairs in 1985) to patterns of sea surface temperature change. The authors concluded that drastic southern rockhopper penguin declines were related to increased sea surface temperature changes at Campbell Island. They found that peaks in temperature were related to the periods of largest decline in numbers within colonies, in particular in 1948-49 and 1953-54. One study colony rebounded in cooler temperatures in the 1960s, when temperatures reached a minimum of 47.5 °F (8.6 °C); however, with temperature stabilization at higher levels (mean 49.5 °F (9.7 °C)) in the 1970s, declines continued. Colony sizes have continued to decline into the 1990s (Taylor 2000, p. 54), and preliminary survey data indicate that numbers at Campbell Island continue to decline (Houston 2008, p. 1).

Cunningham and Moors (1994, p. 34) concluded that warmer waters most likely affected the diet of the Campbell Island southern rockhopper penguins. In the absence of data on the 1940's diet of Campbell Island southern rockhopper penguins, the authors compared the 1980s diet of the species at Campbell Island to southern rockhopper penguins elsewhere. They found the Campbell Island penguins eating primarily fish—southern blue whiting ( Micromesisteus australis ), dwarf codling ( Austrophycis marginata ), and southern hake ( Merluccius australis )—while elsewhere southern rockhopper penguins were reported to eat mainly euphausiid crustaceans (krill) and smaller amounts of fish and squid. Based on this comparison of different areas, the authors concluded that euphausiids left the Campbell Island area when temperatures changed, forcing the southern rockhopper penguins to adopt an apparently atypical, and presumably less nutritious, fish diet. The authors concluded that this led to lower departure weights of chicks and contributed to adult declines (Cunningham and Moors 1994, p. 34).

Subsequent research, however, has not supported the theory that southern rockhopper penguins at Campbell Island switched prey as their “normal” euphausiid prey moved to cooler waters (Cunningham and Moors 1994, pp. 34-35). This hypothesis has been tested through stable isotope studies, which can be used to extract historical dietary information from bird tissues (e.g., feathers). In analyses of samples from the late 1800s to the present at Campbell Islands and Antipodes Islands, Thompson and Sagar (2002, p. 11) found no evidence of a shift in southern rockhopper penguin diet during the period of decline. They concluded that southern rockhopper penguins did not switch to a less suitable prey, but that overall marine productivity and the carrying capacity of the marine ecosystem declined beginning in the 1940s. With food abundance declining or food moving farther offshore or into deeper water, according to these authors, the southern rockhopper penguins maintained their diet over the long timescale, but were unable to find enough food in the less productive marine ecosystem (Thompson and Sagar 2002, p. 12).

Hilton et al. (2006, pp. 611-625) expanded the study of carbon isotope ratios in southern and northern rockhopper penguin feathers to most breeding areas, except those at the Falkland Islands and the tip of South America, to look for global trends that might help explain the declines observed at Campbell Island. They found no clear global-scale explanation for large spatial and temporal-scale rockhopper penguin declines. While they found general support for lower primary productivity in the ecosystems in which rockhopper penguins feed, there were significant differences between sites. There was evidence of a shift in diet to lower trophic levels over time and in warm years, but the data did not support the idea that the shift toward lower primary productivity reflected in the diet resulted from an overall trend of rising sea temperatures (Hilton et al. 2006, p. 620). No detectable relationship between carbon isotope ratios and annual mean sea surface temperatures was found (Hilton et al. 2006, p. 620).

In the absence of conclusive evidence for sea surface temperature changes as an explanation for reduced primary productivity, Hilton et al. (2006, p. 621) suggested that historical top-down effects in the food chain might have caused a reduction in phytoplankton growth rates. Reduced grazing pressure resulting from the large-scale removal of predators from the subantarctic could have resulted in larger standing stocks of phytoplankton, which in turn could have led to lowered cell growth rates (which would be reflected in isotope ratios), with no effect on overall productivity of the system. Postulated top-down effects on the ecosystem of southern rockhopper penguins, which occurred in the time period before the warming, first noted in the original Cunningham and Moors (1994, p. 34) study, are the hunting of pinniped populations to near extinction in the 18th and 19th centuries and the subsequent severe exploitation of baleen whale (Balaenopteridae) populations in the 19th and 20th centuries (Hilton et al. 2006, p. 621). While this top-down theory may explain the regional shift toward reduced primary productivity, it does not explain the decrease in abundance of food at specific penguin breeding and foraging areas.

Hilton et al. (2006, p. 621) concluded that considerably more development of the links between isotopic monitoring of rockhopper penguins and the analysis of larger-scale oceanographic data is needed to understand effects of human activities on the subantarctic marine ecosystem and the links between rockhopper penguin demography, ecology, and environment.

Meteorologically, the events described for Campbell Island from the 1940s until 1985, including the period of oceanic warming, occurred after a record cool period in the New Zealand region between 1900 and 1935, the coldest period since recordkeeping began (Cunningham and Moors 1994, p. 35). These historical temperature changes have been attributed to fluctuations in the position of the Antarctic Polar Front caused by changes in the westerly-wind belt (Cunningham and Moors 1994, p. 35). Photographic evidence suggests that southern rockhopper penguin numbers may have been significantly expanding as the early 1900s cool period came to an end (Cunningham and Moors 1994, p. 33) and just before the rapid decrease in numbers.

Without longer-term data sets pertaining to fluctuations in numbers of southern rockhopper penguins at Campbell Island and longer temperature data records at a scale appropriate to evaluating impacts on this particular breeding colony, it is difficult to draw conclusions on the nature or cause of the marine-based threat. It is reasonable to conclude, however, that the situation at Auckland and Antipodes Islands is similar to that on Campbell Island, given the shared location (on the Campbell Plateau) and similar population trends on these islands.

We found no information on the causes of the population decline on Macquarie Island, and we have not identified sea temperature or other oceanographic data on an appropriate scale to evaluate historical trends or make predictions on future trends at this site. Macquarie Island is located on Macquarie Ridge, south of the Campbell Plateau. Although oceanographic conditions surrounding Macquarie Island differ from those on Campbell Plateau, air temperatures at Macquarie Island are reported to be rising (Adamson et al. 1988, p. 107), and the island is reported to have experienced a marked shift in its climate since 1970 (Adams 2009, p. 1). Therefore, it is reasonable to conclude, given the relationships between climate and oceanographic conditions, that the marine environment near the island, on which breeding penguins depend for food, is also changing. Changes in the marine environment, and possible shifts in food abundance or distribution in the marine environment, have been cited as leading to historical and present-day declines on Campbell Island (Cunningham and Moors 1994, p. 32), and in other areas of the species' range (Crawford et al. 2003, p. 496; Crawford and Cooper 2003, p. 415; Clausen and Huin 2003, p. 394). Estimates from 2006-07 indicate 32,000-43,000 breeding pairs at Macquarie Island (BLI 2008, p. 2), an order of magnitude lower than earlier categorical estimates. Given that the earlier estimate is categorical, quantitative data on trends on this island are not available. However, expert opinion suggests a long-term declining trend on the island. Gales et al. (2010, p. 93) state that there are no reliable data on trends, but categorize the population, based on anecdotal observations, as having decreased. Hilton and Otley (2010, pp. 32-33) acknowledge the lack of quantitative information on the population but categorize the long-term population trend as decreasing. Woehler (2009, pp. 1-2) describes the population as possibly stable following a decrease during, approximately, the last 30 years. Given these expert opinions on long-term trends, Woehler's uncertainty about the current stability of the population, and a lack of evidence indicating the population is currently stable, we rely on these expert opinions to qualify the general long-term population trend on the island as decreasing. In the absence of any major factors on land, given the evidence for marine-based declines within the Campbell Plateau portion of the DPS and elsewhere in the species' range, and given we have no information indicating a reversal or abatement of the causes of these declines, the best available information indicates that some change in the oceanographic ecosystem has led to past declines and will likely lead to future declines in the southern rockhopper penguin population on Macquarie Island.

Based on our review of the best available information, we conclude that changes to the marine environment, which influence the southern rockhopper penguin, have affected the NZ-AUS DPS of the species. In the absence of identification of other significant threat factors and in light of the best available scientific information indicating that prey availability, productivity, or sea temperatures are affecting southern rockhopper penguins within the DPS, we find that changes to the marine environment are a threat to southern rockhopper penguins throughout the NZ-AUS DPS.

Southern rockhopper penguins are not commercially traded. They are not listed under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), and we found no records of trade on the CITES trade database ( http://www.unep-wcmc.org/citestrade ). Tourism and other human disturbance impacts are reported to have little effect on the species (BLI 2007, p. 3). All New Zealand subantarctic islands, including Campbell, Auckland, and Antipodes Islands, are nationally protected and inscribed as New Zealand Subantarctic Islands World Heritage sites; thus, human visitation of the islands is tightly restricted at all sites where penguins occur (Taylor 2000, p. 54; BLI 2007, p. 4; United Nations Environmental Program, World Conservation Monitoring Center (UNEP WCMC) 2008a, p. 5). Macquarie Island is also a World Heritage site with limited and controlled visitation (UNEP WCMC 2008b, p. 6).

We have no information indicating overutilization for commercial, recreational, scientific, or educational purposes is a threat to any portion of the NZ-AUS DPS of southern rockhopper penguins, nor any reason to believe that levels of utilization will increase in the future.

Information on disease in the NZ-AUS DPS of southern rockhopper penguin is limited. We found no information on the occurrence of disease on Auckland, Antipodes, or Macquarie Islands. Investigations have ruled out disease as a significant factor in major population declines at Campbell Island in the 1940s and 1950s. De Lisle et al. (1990, pp. 283-285) isolated avian cholera ( Pasteurella multocida ) from the lungs of dead chicks and adults sampled during the year of decline 1985-86 and the subsequent year 1986-87. They were unable to determine whether this was a natural infection in southern rockhopper penguins or one that had been introduced through the vectors of rats, domestic poultry, cats ( Felis catus ), dogs ( Canis familiaris ), or livestock that have been prevalent on the island in the past. While the disease was isolated in four separate colonies along the coast of Campbell Island, and there was evidence of very limited mortality from the disease, the authors concluded there was no evidence that mortality from this pathogen on its own may have caused the decline in numbers at Campbell Island (Cunningham and Moors 1994, p. 34). Assays for a variety of other infectious avian diseases found no antibody responses in southern rockhopper penguins at Campbell Island (de Lisle et al. 1990, pp. 284-285).

In summary, we have no information indicating disease is a threat in any portion of the NZ-AUS DPS of southern rockhopper penguins, nor any reason to believe that levels of disease will increase in the future.

Several native predators, such as skuas ( Catharacta spp.), giant petrels ( Macronectes spp.), fur seals ( Arctocephalus spp.), and sea lions ( Otaris spp.), prey on rockhopper penguins (Quillfeldt 2010, p. 50). We found no information indicating predation by marine mammals is a threat to the NZ-AUS DPS of southern rockhopper penguins. Some studies, including some on penguins, have shown that avian predation is higher at the edges of bird colonies (Gilchrist 1999, pp. 21-29; Emslie et al. 1995, pp. 317-327; Spear 1993, pp. 399-414; Tenaza 1971, pp. 81-92). It has been suggested that, as a result, relative predation rates will increase with colony fragmentation and shrinkage due to the relationship between perimeter and area, and, therefore, that the population trajectory of small and fragmented colonies are more likely to be effected by avian predation (Jackson et al. 2005; Quillfeldt 2010, p. 50). Given the large decline in the numbers of southern rockhopper penguins on islands within the DPS, it is possible that avian predators may be having an increasing effect on the southern rockhopper population there. However, we found no information indicating that relative avian predation rates are increasing within the NZ-AUS DPS. We, therefore, find that predation by native birds and mammals is not a threat to the NZ-AUS DPS.

At Campbell Island in New Zealand, de Lisle et al. (1990, p. 283) ruled out Norway rats ( Rattus norvegicus ), which were present on the island at the time of precipitous declines, as a factor in those declines. Quillfeldt (2010, pp. 50-51) reports that there is little indication that mice, which occur on Auckland and Antipodes Islands, or Norway rats, which occur on Macquarie Island, prey on rockhopper penguins. Feral cats are present on Auckland Island, but have not been observed preying on chicks there (Taylor 2000, p. 55), and Dilks (1979, p. 65) found no rockhopper remains in the stomachs of feral cats on Campbell Island. Although it was suggested that introduced predators may affect breeding on Macquarie Island (Ellis et al. 1998, p. 49; Quillfeldt 2010, p. 50), no information was provided to support this idea. Therefore, we find that predation by introduced species is not a threat to the NZ-AUS DPS.

We found no information indicating disease or predation is a threat to southern rockhopper penguins in the NZ-AUS DPS. Therefore, based on our review of the best available information we find that neither disease nor predation is a threat to the NZ-AUS DPS of southern rockhopper penguin in any portion of its range, and no information is available that suggests this will change in the future.

The majority of subantarctic islands are under protected status. All New Zealand subantarctic islands, including Campbell, Auckland, and Antipodes Islands, are nationally protected and inscribed as the New Zealand Subantarctic Islands World Heritage sites. Human visitation of the islands is tightly restricted at all sites where penguins occur (Taylor 2000, p. 54; BLI 2007, p. 4; UNEP WCMC 2008a, p. 5). In Australia, Macquarie Island is also a World Heritage site with limited, controlled visitation and with management plans in place (UNEP WCMC 2008b, p. 6).

Based on our review of the existing regulatory mechanisms in place for each of these areas and our analysis of other threat factors, we find that existing regulatory mechanisms regarding the conservation of the southern rockhopper penguin (BLI 2007, p. 4; Ellis et al. 1998, pp. 49, 53) are adequate throughout the DPS. There is no information available to suggest these regulatory mechanisms will change in the future.

We examined the possibility that oil spills may impact southern rockhopper penguins within the NZ-AUS DPS. Such spills, should they occur and not be effectively addressed, can have direct effects on marine seabirds such as penguins.

We are aware of only one report of an oil spill incident within the NZ-AUS DPS. In December 1987, the Australian Antarctic Division (AAD) resupply vessel, the Nella Dan, ran aground in Buckles Bay, while transferring fuel to the Australian National Antarctic Research Expedition (ANARE) station on the northern end of Macquarie Island. Approximately 270,000 liters (71,326 gallons) of mostly light marine diesel fuel were released into the sea (Parks and Wildlife Service (Australia) 2006, pp. 122-123). The only reported impacts we found were to tidal and intertidal invertebrates in the Bay. It has been noted that an offshore oil spill at Macquarie Island, especially on the west (windward) side of the island, could be extremely serious given the abundance of shore-dwelling wildlife and the difficulties of conducting response operations in an isolated location where weather and sea conditions are usually severe. Australian Antarctic Division vessels and tourist vessels usually anchor one or more kilometers from shore on the leeward side of the island, which reduces the likelihood of an oil spill reaching the coast, although a fishing vessel regularly operates off the west side of the island (Parks and Wildlife Service (Australia), pp. 122-123). Parks and Wildlife Service (Australia) (2006, pp. 122-123) state that a Macquarie Island Station Oil Spill Contingency Plan provides policies and procedures for dealing with nearshore oil spills in the waters of Buckles Bay, but that it would be nearly impossible to contain an oil spill anywhere else. The National Plan to Combat Marine Oil Spills developed by the Australian Maritime Safety Authority concludes that, in the event of a spill, little could be done at Macquarie Island except for attempting to clean oil off critical species (Parks and Wildlife Service (Australia) 2006, pp. 122-123).

We found no information on oil spills within the New Zealand waters of the DPS. However, New Zealand has in place the New Zealand Marine Oil Spill Response Strategy, which provides the overall framework to mount a response to marine oil spills that occur within New Zealand's area of responsibility. The aim of the strategy is to minimize the effects of oil on the environment and human safety and health. The National Oil Spill Contingency Plan promotes a planned and nationally coordinated response to any marine oil spill that is beyond the capability of a local regional council or outside the region of any local council (Maritime New Zealand 2007, p. 1). Rapid containment of spills in remote areas and effective triage response under this plan have shown these to be effective regulatory mechanisms for containing spills and minimizing impacts to wildlife (New Zealand Wildlife Health Center 2007, p. 2; Taylor 2000, p. 94). For instance, outside the range of the NZ-AUS DPS of southern rockhopper penguin, the fishing Vessel Seafresh 1 sank in Hanson Bay on the east coast of Chatham Island in March 2000, and released 66 tons (60 tonnes (t)) of diesel fuel. Rapid containment of the oil at this very remote location prevented any wildlife casualties (New Zealand Wildlife Health Center 2007, p. 2). The same source reported that in 1998, the fishing vessel Don Wong 529 ran aground at Breaksea Islets, off Stewart Island. Approximately 331 tons (300 t) of marine diesel was spilled along with smaller amounts of lubricating and waste oils. With favorable weather conditions and establishment of triage response, no wildlife casualties of the pollution event were discovered (Taylor 2000, p. 94).

We recognize that an oil spill near a breeding colony could potentially have local effects on the NZ-AUS DPS of southern rockhopper penguin, particularly at Macquarie Island, where the ability to contain a spill may be limited. However, there are an estimated 89,600-101,500 breeding pairs of southern rockhopper penguins spread among four different island groups within the DPS, with an estimated 32,000-43,000 breeding pairs on Macquarie Island. Consequently, we find that oil and chemical spills do not rise to the level of threatening the species within the DPS given: (1) The size and distribution of breeding colonies among the four island groups within the DPS; (2) subantarctic breeding islands within the DPS are remote from shipping activity; (3) the frequency and severity of previous spills are low; (4) New Zealand has an effective New Zealand Marine Oil Spill Response Strategy; and (5) ships visiting Macquarie Island usually anchor well off the leeward coast of the island. Therefore, we find that oil spills are not a threat to the southern rockhopper penguin within the NZ-AUS DPS. Furthermore, we found no information indicating that the frequency or severity of oil spills in any portion of the species' range will increase in the future, or that existing containment capabilities will be weakened. Therefore, we conclude that oil pollution from oil spills is not a threat to the species in any portion of its range now or in the foreseeable future.

Incidental mortality of rockhopper penguins by fisheries operations does not appear to be significant. Munro (2010, p. 57) reported that rockhopper penguins are not particularly susceptible to mortality as bycatch, and that bycatch monitoring systems very rarely report mortality of rockhopper penguins. Southern rockhopper penguins could potentially be caught in trawl nets, but there are no records of their being caught in New Zealand subantarctic waters by this fishing method (Taylor 2000, p. 94), nor do we have information suggesting they are caught in Australian waters by this fishing method.

The Action Plan for Seabird Conservation in New Zealand (Taylor 2000, p. 94) reported that competition from fisheries may be a potential threat to southern rockhopper penguins, as there is a major fishery for southern blue whiting, a common prey species for this penguin in New Zealand subantarctic waters. However, no additional information was given, and we found no information suggesting impacts, or potential impacts, to southern rockhopper penguins from competition with any fisheries in New Zealand or Australian waters. Munro (2010, p. 57), in his assessment of fisheries interactions with rockhopper penguin, notes that fisheries within New Zealand and Australia are well regulated. He also does not identify competition with fisheries within the NZ-AUS DPS (the Pacific Ocean region) as a concern. Munro (2010, p. 57) states, however, that effects of fishery catch on marine ecosystems and apex predators like rockhopper penguins are not known in any of the areas where rockhopper penguins forage.

In our review of fisheries activities, we found no reports of documented fisheries interactions, or impacts from competition for prey species, between southern rockhopper penguins and commercial fisheries within the NZ-AUS DPS of the species. Nor did we find documentation of fisheries bycatch of the species. While fisheries activities have the potential to compete for the prey of southern rockhopper penguins, there is no information indicating competition with fisheries is a threat to the DPS of the species. Therefore, we find that fisheries interactions with southern rockhopper penguins are not a threat to species in any portion of the NZ-AUS DPS, and we have no reason to believe this will change in the future.

On the basis of analysis of potential impacts from oil spills and fisheries, we find that other natural or manmade factors are not threats to the southern rockhopper penguin in any portion of the NZ-AUS DPS, now or in the foreseeable future.

We identified a number of potential stressors to this species within the NZ-AUS DPS, including: (1) Changes in the marine environment, (2) human use and disturbance, (3) disease and predation, and (4) oil spills and competition with fisheries. To determine whether these stressors individually or collectively rise to a “threat” level such that the southern rockhopper penguin is in danger of extinction throughout the DPS, or likely to become so within the foreseeable future, we first considered whether the stressors to the species were causing long-term, population- scale declines in penguin numbers, or were likely to do so in the future.

Historical numbers of southern rockhopper penguins for the NZ-AUS DPS may have been as high as 960,000 breeding pairs; they are currently estimated at 89,600-101,500 breeding pairs. Significant historical declines have been reported, in particular, at Campbell Island, where a decline of 94 percent was recorded between the early 1940s and 1985; at Antipodes Islands, where a decline of 94 percent was recorded; and at Auckland Islands, where the numbers halved between 1983 and 1990. At Macquarie Island, which represents 32 to 48 percent of this DPS, southern rockhopper penguin numbers were recently estimated to be an order of magnitude lower than previous categorical estimates, and expert opinion indicates a long-term declining trend in population on this island. Current quantitative data is not available to indicate whether, and to what extent, numbers throughout this DPS continue to decline, but qualitative evidence indicates that numbers continue to decline throughout the DPS.

In our five-factor analysis, we did not find evidence of any significant changes to the terrestrial habitat of the southern rockhopper penguin. Changes to the marine environment, however, are cited as factors that have led to historical or recent large declines within the Campbell Plateau portion of the range, and it is reasonable to conclude that changes in the marine environment are the cause of population affects at Macquarie Island. We have no reason to believe these changes in the marine environment will be ameliorated in the future; therefore, we find it reasonably likely that the effects on the species in this DPS will continue at current levels or potentially increase. On the basis of the best available scientific and commercial information, including evidence of precipitous decreases of penguin numbers in this DPS, we find that the present or threatened destruction, modification, or curtailment of its marine habitat or range is a threat to the southern rockhopper penguin throughout the NZ-AUS DPS.

On the basis of our five-factor analysis of the best available scientific and commercial information, we find that overutilization for commercial, recreational, scientific, or educational purposes; disease or predation; and inadequacy of existing regulatory mechanisms are not threats to the southern rockhopper penguin in any portion of the NZ-AUS DPS. On the basis of information on fisheries and oil spills, we find that other natural or manmade factors are also not a threat to the southern rockhopper penguin in any portion of the NZ-AUS DPS.

Having determined that changes in the marine environment are a threat to the NZ/AUS DPS of southern rockhopper penguin, we next determined whether changes in the marine environment rises to a “threat” level such that the DPS is in danger of extinction (“endangered” under the Act). We considered the historical data to identify any relevant existing trends that might allow for reliable prediction of the future (in the form of extrapolating the trends). We also considered whether we could reliably predict any future events (not yet acting on the species and therefore not yet manifested in a trend) that might affect the status of the species. The available data support a conclusion that there is a current overall declining trend in population numbers throughout the DPS as a result of changes in the marine environment. While the oceanographic factors contributing to declines within the DPS are not clearly understood, they appear to relate to changes in sea surface temperatures or to changes in marine productivity at scales affecting individual colonies or regions, causing reductions in food availability that may have occurred in short periods or extended over periods of years. Current qualitative information indicates that colonies are still in decline, although the rate of that decline is undocumented. According to the most recent estimates, there are approximately 90,000 to 100,000 breeding pairs of southern rockhopper penguins within the DPS, distributed over four breeding islands that are located in two different oceanographic regions (Campbell Plateau and Macquarie Ridge). Because declines appear to relate to changes in the marine environment at scales affecting individual colonies or regions, and the timing of these declines appears to vary, we are unable to predict the rate of current or future declining trends at each of these breeding locations. However, the presence of four breeding areas within this DPS provides a measure of resiliency against changes in the marine environment that may cause severe localized population declines within the DPS. We conclude that the current number of breeding pairs of southern rockhopper penguin within the NZ/AUS DPS and their distribution over four breeding locations provides resiliency to the population against the effects of marine-based threats such that the DPS is not currently in danger of extinction.

Next, we considered whether changes in the marine environment pose such a threat that the DPS is likely to become in danger of extinction in the foreseeable future (“threatened” under the Act). Though it is possible the magnitude of current threats may increase in the future, there is no evidence that any of the stressors or threats are growing in magnitude. Thus, the foreseeable future includes consideration of the ongoing effects of current threats at comparable levels on the viability of the DPS.

It is reasonably likely that changes in the marine environment will continue to affect the DPS at least at current levels, further reducing the population numbers. Given the magnitude of declines recorded in the Campbell Plateau region of the DPS during approximately the past 65 years, lower population numbers within the DPS are reasonably likely in the foreseeable future. Lower population numbers would cause this DPS to be more vulnerable to threats from changes in the marine habitat, and more vulnerable to potential impacts from oil spills and other random or catastrophic perturbations within the ecosystem. Loss of one or more of the four breeding concentrations, two of which number less than 4,000 breeding pairs, would significantly reduce the resiliency and redundancy of populations in this DPS and increase the impact of random or catastrophic perturbations on remaining population numbers in the DPS.

We conclude that a reduction in range or number of southern rockhopper penguins within the NZ/AUS DPS is likely in the foreseeable future, and that this reduction is likely to increase its vulnerability to changes in the marine environment and random or catastrophic perturbations to the point where the viability of the DPS would be in question. Therefore, on the basis of our analysis of the best available scientific and commercial information, we conclude that the southern rockhopper penguin throughout the range of the NZ-AUS DPS is likely to become in danger of extinction in the foreseeable future, and thus should be designated as a threatened species under the Act.

Having determined that the NZ-AUS DPS of southern rockhopper penguin meets the definition of threatened throughout its range, we must next consider whether there are any significant portions of the range of the species within the NZ-AUS DPS that meet the definition of endangered. The Act defines an endangered species as one “in danger of extinction throughout all or a significant portion of its range,” and a threatened species as one “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” For the purpose of this analysis, we considered a portion of the southern rockhopper penguin DPS's range to be significant if is important to the conservation of the DPS because it contributes meaningfully to the representation, resiliency, or redundancy of the DPS. For a contribution to be meaningful, its loss would at least have to result in a decrease in the ability to conserve the DPS.

We found that changes in the marine habitat threaten the species throughout the DPS. Although declines on the Campbell Plateau have been quantified to some extent, the lack of quantitative population trend information for Macquarie Island precludes a comparison of the declines in these two portions of the range. Further, we found no information indicating that the threat posed to the NZ-AUS DPS of southern rockhopper penguins by changes in the marine habitat are of greater magnitude or extent in either of these portions or any other portion of the range of the DPS. Therefore, we conclude that the threats to the species are essentially uniform throughout the DPS, and no portion of the NZ-AUS DPS is currently in danger of extinction.

Conservation measures provided to species listed as endangered or threatened under the Act include recognition, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing results in public awareness, and encourages conservation actions by Federal governments, private agencies and groups, and individuals.

Section 7(a) of the Act, as amended, and as implemented by regulations at 50 CFR part 402, requires Federal agencies to evaluate their actions within the United States or on the high seas with respect to any species that is proposed or listed as endangered or threatened, and with respect to its critical habitat, if any is being designated. However, given that the NZ-AUS DPS of the southern rockhopper penguin is not native to the United States, critical habitat is not being designated for this species under section 4 of the Act.

Section 8(a) of the Act authorizes limited financial assistance for the development and management of programs that the Secretary of the Interior determines to be necessary or useful for the conservation of endangered and threatened species in foreign countries. Sections 8(b) and 8(c) of the Act authorize the Secretary to encourage conservation programs for foreign endangered species and to provide assistance for such programs in the form of personnel and the training of personnel.

The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to all endangered and threatened wildlife. As such, these prohibitions would be applicable to the NZ-AUS DPS of the southern rockhopper penguin. These prohibitions, under 50 CFR 17.21 and applicable to threatened species through 50 CFR 17.31, make it illegal for any person subject to the jurisdiction of the United States to “take” (take includes harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, collect, or to attempt any of these) within the United States or upon the high seas, import or export, deliver, receive, carry, transport, or ship in interstate or foreign commerce in the course of a commercial activity, or to sell or offer for sale in interstate or foreign commerce, any threatened wildlife species. It also is illegal to possess, sell, deliver, carry, transport, or ship any such wildlife that has been taken in violation of the Act. Certain exceptions apply to agents of the Service and State conservation agencies.

We may issue permits to carry out otherwise prohibited activities involving endangered and threatened wildlife species under certain circumstances. Regulations governing permits are codified at 50 CFR 17.22 for endangered species, and at 17.32 for threatened species.

We have determined that environmental assessments and environmental impact statements, as defined under the authority of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq. ), need not be prepared in connection with regulations adopted under section 4(a) of the Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244).

A complete list of the references cited in this rule is available on the Internet at http://www.regulations.gov or upon request from the Branch of Foreign Species, Endangered Species Program, U.S. Fish and Wildlife Service ( see FOR FURTHER INFORMATION CONTACT ).

The authors of this rule are staff members of the Branch of Foreign Species, Endangered Species Program, U.S. Fish and Wildlife Service ( see FOR FURTHER INFORMATION CONTACT ).

Accordingly, we amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:

The fishery for coastal migratory pelagic fish (king mackerel, Spanish mackerel, cero, cobia, little tunny, dolphin, and, in the Gulf of Mexico only, bluefish) is managed under the Fishery Management Plan for the Coastal Migratory Pelagic Resources of the Gulf of Mexico and South Atlantic (FMP). The FMP was prepared by the Gulf of Mexico and South Atlantic Fishery Management Councils (Councils) and is implemented under the authority of the Magnuson-Stevens Fishery Conservation and Management Act by regulations at 50 CFR part 622.

Based on the Councils' recommended total allowable catch and the allocation ratios in the FMP (65 FR 41015, July 3, 2000) NMFS implemented a commercial quota of 3.87 million lb (1.76 million kg) for the Atlantic migratory group of Spanish mackerel. Atlantic migratory group Spanish mackerel are divided into a northern and southern zone for management purposes. The southern zone for Atlantic migratory group Spanish mackerel extends from 30°42′45.6″ N. lat., which is a line directly east from the Georgia/Florida boundary, to 25°20.4′N. lat., which is a line directly east from the Miami-Dade/Monroe County, Florida, boundary.

For the southern zone, seasonally variable trip limits are based on an adjusted quota of 3.62 million lb (1.64 million kg). The adjusted quota is calculated to allow continued harvest in the southern zone at a set rate for the remainder of the fishing year, February 28, 2011, in accordance with 50 CFR 622.44(b)(2). Beginning December 1, the trip limit is unlimited on weekdays and limited to 1,500 lb (680 kg) of Spanish mackerel per day on weekends. When 75 percent of the adjusted quota of Atlantic migratory group Spanish mackerel is taken until 100 percent of the adjusted quota is taken, Spanish mackerel in or from the EEZ in the southern zone may not be possessed on board or landed from a permitted vessel in amounts exceeding 1,500 lb (680 kg) per day.

NMFS has determined that 75 percent of the adjusted quota for Atlantic group Spanish mackerel has been taken. Accordingly, the 1,500-lb (680-kg) per day commercial trip limit applies to Spanish mackerel in or from the EEZ in the southern zone effective 6 a.m., local time, February 22, 2011, until 12:01 a.m., local time, March 1, 2011, unless changed by further notification in the Federal Register .

This action responds to the best available information recently obtained regarding the status of the fishery. The Assistant Administrator for Fisheries, NOAA, (AA), finds the need to immediately implement this commercial trip limit reduction constitutes good cause to waive the requirements to provide prior notice and opportunity for public comment pursuant to the authority set forth in 5 U.S.C. 553(b)(B), as such procedures would be unnecessary and contrary to the public interest. Such procedures would be unnecessary because the rule itself already has been subject to notice and comment, and all that remains is to notify the public of the trip limit reduction.

Allowing prior notice and opportunity for public comment is contrary to the public interest because of the need to immediately implement this action to protect the fishery resource because the capacity of the commercial fleet allows for rapid harvest of the quota. Prior notice and opportunity for public comment would require time and potentially result in a harvest well in excess of the established quota.

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

This action is taken under 50 CFR 622.43(a) and is exempt from review under Executive Order 12866.

NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679. Regulations governing sideboard protections for GOA groundfish fisheries appear at subpart B of 50 CFR part 680.

The A season allowance of the 2011 Pacific cod TAC apportioned to vessels harvesting Pacific cod for processing by the inshore component of the Western Regulatory Area of the GOA is 12,304 metric tons (mt), as established by the final 2010 and 2011 harvest specifications for groundfish of the GOA (75 FR 11749, March 12, 2010) and inseason adjustment (76 FR 469, January 5, 2010).

In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS (Regional Administrator) has determined that the A season allowance of the 2011 Pacific cod TAC apportioned to vessels harvesting Pacific cod for processing by the inshore component of the Western Regulatory Area of the GOA will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 11,304 mt, and is setting aside the remaining 1,000 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for Pacific cod by vessels harvesting Pacific cod for processing by the inshore component in the Western Regulatory Area of the GOA.

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

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the directed fishing closure of Pacific cod by vessels harvesting Pacific cod for processing by the inshore component in the Western Regulatory Area of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of February 15, 2011.

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

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