Part 81 of Title 4 of the Code of Federal Regulations contains the procedures for members of the public to obtain GAO documents.

GAO is amending paragraph (b) of § 81.1 to remove all published GAO documents, such as reports and decisions, from this part's purview. All such documents are publicly available on GAO's Web site, http://www.gao.gov , and may also be ordered over the telephone. Accordingly, regulations governing requests for public disclosure of such documents are unnecessary. It is also well established that when an agency makes its documents widely available to the public, the agency need not reproduce those documents again in response to a Freedom of Information Act (FOIA) request. Department of Justice v. Tax Analysts , 492 U.S. 136, 152 (1989). While GAO is not subject to FOIA, the principle applies equally in this context.

Published GAO documents may be downloaded free of charge from GAO's Web site. Print copies may be ordered by telephone, but GAO charges a fee to print and ship documents requested this way, as provided in § 81.7, which is unchanged by this rule. Under this revised rule, GAO will no longer accept requests via fax or mail for published documents. Requests for GAO documents not available on GAO's Web site remain subject to this part and must be submitted in writing to GAO, via either mail or e-mail, in accordance with § 81.4. Technical amendments to paragraphs (a) and (c) of § 81.1 are made as needed to conform with these changes.

Paragraph 81.6(g) is amended to clarify the types of documents GAO considers to be compiled for law enforcement purposes. Such documents are not subject to disclosure under this part.

Although GAO is not a law enforcement agency, it occasionally collects, during the course of its audits and investigations, records from law enforcement agencies that those agencies compiled for their own law enforcement purposes. While GAO did not compile the records, they are nonetheless exempt from disclosure because they were originally compiled for law enforcement purposes and may still be used for such purposes by the originating agency. Disclosure of such records would undermine the originating agency's law enforcement mission.

During the course of its work, GAO also occasionally receives information from non-law enforcement sources that indicates possible civil or criminal wrongdoing by another party. GAO forwards such information to other Federal, State, or local agencies with enforcement jurisdiction over the matter. The receiving agencies may use the information for their own investigations, prosecutions, or other law enforcement matters. GAO considers such information to be compiled for law enforcement purposes if, at the time GAO receives a request under this part for the information, the receiving agency advises GAO that the information is being, or will be, used by that agency for a law enforcement purpose. In these circumstances, GAO's disclosure of the information could undermine law enforcement operations. “Law enforcement” in this context includes civil and administrative as well as criminal matters.

This policy is consistent with the United States Supreme Court's ruling that information not originally compiled for law enforcement purposes is nevertheless exempt from public disclosure if, at the time of a request, it is being used for law enforcement purposes. John Doe Agency v. John Doe Corp. , 493 U.S. 146, 153-55 (1989).

Section 81.8 is amended to advise individuals who wish to use GAO's public reading facility to schedule an appointment and to have GAO's staff determine whether the records sought are included in the public reading facility collection.

Section 81.2 is amended to clarify and identify the entity within GAO that administers this part. Section 81.4 is amended to delete language that GAO records may be requested via a link on GAO's Web site. GAO will continue to accept requests for GAO records by e-mail. Paragraph (m) of § 81.6 is amended to correctly identify the entity within GAO that operates GAO FraudNet.

GAO submitted for comment a proposed rule containing these amendments, which was published in the Federal Register on November 24, 2010 (75 FR 71567). GAO received no comments on the proposed rule.

GAO is not subject to the Administrative Procedure Act.

For the reasons stated in the preamble, the Government Accountability Office amends 4 CFR part 81 as follows:

The FAA finds that notice and public comment to this interim rule are impracticable. This rule, together with Airworthiness Directive 2011-04-09, addresses an emergency situation relating to a security vulnerability in transport category airplanes. These rules both mandate action necessary to address this vulnerability and provide interim relief from other regulatory requirements that would otherwise be violated by the mandated actions.

The FAA also finds good cause for making this interim rule effective upon publication. As discussed previously, this interim rule addresses an emergency situation, which makes it imperative that the provisions of this rule be implemented immediately.

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

This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General Requirements.” Under that section, the FAA is charged with promoting safe flight of civil aircraft in air commerce by prescribing minimum standards required in the interest of safety for the design and performance of aircraft; regulations and minimum standards in the interest of safety for inspecting, servicing, and overhauling aircraft; and regulations for other practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it revises the safety standards for design and operation of transport category airplanes.

The FAA has become aware of a security vulnerability with certain types of oxygen systems installed inside the lavatories of most transport category airplanes. As a result, the FAA has mandated that these oxygen systems be rendered inoperative until the vulnerability can be eliminated. However, by rendering the oxygen systems inoperative to comply with that mandatory action, operators will be out of compliance with the requirements of Title 14, Code of Federal Regulations (14 CFR) 25.1447, 121.329 and 121.333. In addition to the current fleet of in-service airplanes, newly manufactured airplanes and airplanes undergoing other modification will need to render the oxygen systems in the lavatories inoperative. This SFAR is needed so the affected airplanes can continue operating until the issue is resolved.

Section 25.1447 specifies the quantities and accessibility requirements for supplemental oxygen systems. The supplemental oxygen systems are necessary safety equipment in the event of loss of cabin pressure. Each occupant is required to have supplemental oxygen immediately available in the event that cabin pressure drops to a certain level. Specifically, the regulations require lavatories to be equipped with two oxygen masks and, for airplanes flying above 30,000 feet, the masks must be automatically presented to the occupants.

Two masks are required inside a lavatory to address the situation where one person may be assisting another, such as an adult with a small child. Lavatory oxygen systems are generally very similar to the systems provided for passenger and flight attendant use in the rest of the cabin. The intent of the supplemental oxygen requirements in § 25.1447 is reinforced in the operational requirements of §§ 121.329 and 121.333, although neither section specifically mentions lavatories.

Because of security vulnerability issues, the FAA has mandated that certain lavatory oxygen systems be rendered inoperative. This mandate creates a noncompliance with airworthiness and operational standards. This SFAR addresses this noncompliance by codifying relief from the relevant airworthiness and operational requirements while the issue is being resolved.

The FAA has conducted a risk analysis to assess the safety implications of temporarily not having supplemental oxygen available inside lavatories. To support the risk assessment, earlier studies involving passengers' use of oxygen were reviewed. For a different rulemaking, the FAA tasked the Aviation Rulemaking Advisory Committee (ARAC) to make recommendations for safety standards when airplanes are operating at high altitudes. As part of its effort, the ARAC did a comprehensive assessment of the frequency and nature of the need for supplemental oxygen systems in service. The ARAC identified 2,800 instances over a 40-year period and categorized them by cause, severity, and consequence. The majority of these instances were caused by malfunctions of the cabin pressurization system. However, in none of those 2,800 instances was there a loss of life due to lack of oxygen. The ARAC used these data in making recommendations to the FAA on future rulemaking.

The FAA has reviewed the service history since the ARAC recommendations were made and found that the types and frequencies of incidents, as well as their causes, are consistent with the historical record. The relative risks and service history have not changed in any significant way since the ARAC recommendations were issued. With respect to this SFAR, the only affected areas of the airplane are the lavatories, as opposed to the earlier assessments, which applied to the entire airplane. The lavatories are sporadically occupied during flight, and by a small number of passengers at any given time. This limits the potential impact on safety.

The ARAC found that the frequency of occurrences necessitating the use of oxygen was around 10 − 8 /flight-hour for causes other than a malfunction of the pressurization system (these tend to be slower losses of pressure, or are identified at lower altitudes, and therefore are not as critical for this action). The probability that a lavatory will be occupied at any given moment is not known. It is not 100% and it is not 0%. If, for the purposes of this assessment, we assume the probability is 50%, then the probability of a person in a lavatory needing oxygen is ~5 × 10 −9 /flight-hour.

The FAA envisions a two- to four-year regulatory process to restore the affected oxygen systems to their full operational capability. The FAA has determined that during this period, the slight increase in the safety risk to a small number of individuals is outweighed by the elimination of the greater security risk that prompted the original requirement to disable the lavatory supplemental oxygen system. Nonetheless, the FAA is aggressively pursuing design solutions that will eliminate the previously identified security concerns with lavatory oxygen systems and restore oxygen to the lavatories in an expeditious manner. Further rulemaking will consider the need for changes to the type certification rules and incorporation into the fleet via changes to the operating rules. The implementation of that rulemaking will correspond with the expiration of this SFAR.

This SFAR allows all air carriers that are required to render lavatory oxygen systems inoperative, as it pertains to the lavatory oxygen systems only, in accordance with an FAA directive to continue to operate without complying with specific regulations pertaining to supplemental oxygen systems. This SFAR also permits manufacturers and modifiers of transport category airplanes to deliver or return to service airplanes affected by the FAA directive with the same relief. In addition, this SFAR requires certain procedural and configuration enhancements to reduce the safety risk to passengers in the unlikely event that they should need oxygen while in a lavatory.

We intend to issue a new rule to address the safety concerns with lavatory oxygen systems within the duration of this SFAR. As noted above, the compliance date for that rule and the expiration of this SFAR will be aligned.

This rulemaking action is a significant rule within the meaning of Executive Order 12866 and DOT's Regulatory Policies and Procedures, because the subject matter is of significant interest to the public. Because this interim rule addresses an emergency situation, within the meaning of Section 6(a)(3)(D) of the Executive Order, the agency has notified the Office of Management and Budget of this rule but has not followed the coordination procedures specified in the Executive Order.

The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that the FAA consider the impact of paperwork and other information collection burdens imposed on the public. The FAA has determined that there is no new requirement for information collection associated with this interim rule.

In keeping with U.S. obligations under the Convention on International Civil Aviation, it is FAA policy to conform to International Civil Aviation Organization (ICAO) Standards and Recommended Practices to the maximum extent practicable. The FAA has determined that these regulations are not inconsistent with any ICAO Standards and Recommended Practices.

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

In conducting these analyses, the FAA has determined that this final rule: (1) Has benefits that justify its costs, (2) is not an economically “significant regulatory action” as defined in section 3(f) of Executive Order 12866, (3) is “significant” as defined in DOT's Regulatory Policies and Procedures; (4) will not have a significant economic impact on a substantial number of small entities; (5) will not create unnecessary obstacles to the foreign commerce of the United States; and (6) will not impose an unfunded mandate on State, local, or Tribal governments, or on the private sector

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

The FAA has become aware of a security vulnerability with certain types of oxygen systems installed inside the lavatories of most passenger-carrying part 121 transport category airplanes. As a result, in an earlier rule the FAA mandated that these lavatory oxygen systems be rendered inoperative until the vulnerability can be eliminated. However, by rendering the oxygen systems inoperative to comply with the mandatory actions, operators will be out of compliance with current FAA requirements. The affected fleet includes the current fleet of in-service and newly manufactured passenger-carrying transport category airplanes operated under parts 121 and 129 (U.S.-registered airplanes). This SFAR requires the removal of the inoperative oxygen masks for passenger safety. Also, this SFAR is needed so the affected airplanes can continue operating until the issue is resolved.

The FAA has determined that on average, part 121 passenger-carrying turbopropeller-driven airplanes (turboprops) have one lavatory; part 121 regional jets have two lavatories; part 121 narrow-body turbojet-powered airplanes (turbojets) have three lavatories; and part 121 wide-body turbojets have 10 lavatories per airplane.

The FAA has also determined that the time necessary to remove the inoperative oxygen masks is 10 to 15 minutes per airplane lavatory and will be performed by a qualified, FAA-certificated aircraft mechanic. In addition, the FAA has determined that there would be no extra parts necessary in removing the inoperative oxygen masks. Therefore, with no extra parts necessary, there are also no additional maintenance or fuel burn costs.

The FAA is using a $48.38 hourly rate for a mechanic working for an airplane manufacturer or modifier. We obtained the mechanic's hourly rate from the Bureau of Labor Statistics, Table 7.1. These rates include wages and benefits.

To estimate the total costs of the SFAR, the FAA had to analyze the current fleet of part 121 airplanes which are affected by the SFAR. We obtained a list of the current U.S.-operated, passenger-carrying civilian airplanes operating under 14 CFR part 121 from the FAA National Vital Information Subsystem (NVIS) database. 1 The FAA assumes that for newly-delivered, part 121 passenger-carrying airplanes, the inoperative oxygen masks will have already been removed. Based upon that assumption, we have matched each airplane with its average number of lavatories.

The following table shows the number of affected passenger-carrying, part 121 airplanes and the individual airplane costs for a turboprop, regional jet, and narrow- and wide-body turbojet.

The FAA calculated the range of the total costs of the SFAR by taking the product for each of the affected passenger-carrying, part 121 airplanes; the number of lavatories on each airplane; the hourly rate of a mechanic working for an airplane manufacturer; and the time it takes to render the oxygen systems inoperative. We then summed the costs for each of the affected part 121 airplanes to obtain a total cost for this SFAR. The SFAR's requirement to remove inoperative oxygen masks has a compliance time of a maximum of 30 days. The FAA is publishing the SFAR in 2011; therefore, all costs will be in nominal 2011 dollars.

The following table shows these total cost results by equipment group:

The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA) establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objectives of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the businesses, organizations, and governmental jurisdictions subject to regulation. To achieve this principle, agencies are required to solicit and consider flexible regulatory proposals and to explain the rationale for their actions to assure that such proposals are given serious consideration.” The RFA covers a wide range of small entities, including small businesses, not-for-profit organizations, and small governmental jurisdictions. Agencies must perform a review to determine whether a rule will have a significant economic impact on a substantial number of small entities. If the agency determines that it will, the agency must prepare a regulatory flexibility analysis as described in the RFA.

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

The net effect of the SFAR is to eliminate security vulnerabilities with certain types of oxygen systems installed inside the lavatories of most passenger-carrying, part 121 transport category airplanes. The SFAR requires the removal of the inoperative oxygen masks installed inside the lavatories of passenger-carrying, part 121 transport category airplanes.

Under the RFA, the FAA must determine whether a rule significantly affects a substantial number of small entities. This determination is typically based on small entity size and cost thresholds that vary depending on the affected industry.

Using the size standards from the Small Business Administration for Air Transportation and Aircraft Manufacturing, we defined companies as small entities if they have fewer than 1,500 employees. 2

The SFAR has a compliance time of a maximum of 30 days. The FAA believes the SFAR will be published in 2011; therefore, all costs will be in nominal 2011 dollars. For this analysis, we considered the economic impact of this SFAR on small-entity part 121 operators. We obtained a list of part 121 operators from the FAA Flight Standards Service NVIS database. 3 Using information provided by the U.S. Department of Transportation Form 41 filings, we obtained company revenue and employment for most of the part 121 U.S. operators.

Using the methodology discussed above, we determined that of the 55 part 121 U.S. operators that could be affected by the rule, there are 38 that reported annual employment data. Of the 38 air carriers that reported annual employment data, 14 air carriers meet the SBA size standard for small business of 1,500. All of the 14 air carriers reported annual revenue.

To assess the SFAR's cost impact to small-entity part 121 operators, the FAA has determined that the time necessary to render lavatory oxygen systems inoperative is 10 to 15 minutes per airplane lavatory and will be performed by a qualified, FAA-certificated aircraft mechanic. For this analysis, we will conservatively use the high time of 15 minutes.

The FAA is using a $48.38 hourly rate for a mechanic working for an airplane manufacturer or modifier. We obtained the mechanic's hourly rate from the Bureau of Labor Statistics, Table 7.1. These rates include wages and benefits.

The FAA calculated the total costs of the SFAR by taking the product for each of the affected passenger-carrying, part 121 airplanes; the number of lavatories on each airplane; the hourly rate of a mechanic working for an airplane manufacturer or modifier; and the time it takes to render the oxygen systems inoperative. We then summed the costs for each of the affected part 121 airplanes to obtain a total cost for this SFAR. We then measured the economic impact on small entities by dividing the estimated compliance cost by each of the 14 small entities' annual revenue.

The SFAR's cost is estimated to be less than one percent of annual revenues for all 14 small-entity operators. The following table shows these results.

Since the cost of the SFAR is less than one percent for each of the 14 small-entity operators, I certify that this SFAR will not have a significant economic impact on a substantial number of small entities.

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

The FAA has assessed the potential effect of this rule and determined that as the objective of this rule is aviation safety and it does not exclude imports, the rule does not create unnecessary obstacles to foreign commerce.

Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (in 1995 dollars) in any one year by State, local, and Tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.” The FAA currently uses an inflation-adjusted value of $143.1 million in lieu of $100 million.

This rule does not contain such a mandate. Therefore, the requirements of Title II of the Act do not apply.

The FAA has analyzed this interim rule under the principles and criteria of Executive Order 13132, Federalism. The agency determined that this action will not have a substantial direct effect on the States, or the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government, and, therefore, does not have Federalism implications.

Section 1205 of the FAA Reauthorization Act of 1996 (110 Stat. 3213) requires the FAA, when modifying its regulations in a manner affecting intrastate aviation in Alaska, to consider the extent to which Alaska is not served by transportation modes other than aviation, and to establish appropriate regulatory distinctions. We have determined that there is no need to make any regulatory distinctions applicable to intrastate aviation in Alaska.

FAA Order 1050.1E identifies FAA actions that are categorically excluded from preparation of an environmental assessment or environmental impact statement under the National Environmental Policy Act in the absence of extraordinary circumstances. The FAA has determined this rulemaking action qualifies for the categorical exclusion identified in paragraph 4j and involves no extraordinary circumstances.

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

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

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

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

3. Access the Government Printing Office's Web page at http://www.gpoaccess.gov/fr/index.html.

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

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

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

On February 10, 2011, we issued AD 2011-04-09, which applies to certain passenger-carrying transport category airplanes operating in 14 CFR part 121 air carrier service; or U.S.-registered and operating under 14 CFR part 129, with a maximum passenger capacity of 20 or greater; and equipped with any chemical oxygen generator installed in any lavatory.

This AD was prompted by reports that the current design of these oxygen generators presents a hazard that could jeopardize flight safety. We are issuing this AD to eliminate this hazard.

Since the unsafe condition described is likely to exist or develop on other airplanes of the same type design, we issued AD 2011-04-09 to eliminate a hazard with chemical oxygen generators in the lavatory, which, if not corrected, could jeopardize flight safety. The AD requires either activating all chemical oxygen generators in the lavatories until the generator oxygen supply is expended, or removing the oxygen generator(s); and, for each chemical oxygen generator, after the generator is expended (or removed), removing or re-stowing the oxygen masks and closing the mask dispenser door.

We have determined that notice and opportunity for prior public comment on AD 2011-04-09 were contrary to the public interest, and good cause existed to make the AD effective immediately by individual notices issued on February 10, 2011, to the known U.S. owners and operators of certain passenger-carrying transport category airplanes operating in 14 CFR part 121 air carrier service; or U.S.-registered and operating under 14 CFR part 129, with a maximum passenger capacity of 20 or greater; and equipped with any chemical oxygen generator installed in any lavatory.

These conditions still exist, and the AD is hereby published in the Federal Register as an amendment to section 39.13 of the Federal Aviation Regulations (14 CFR 39.13) to make it effective to all persons.

This Federal Register version of the AD is different from the individual notices previously issued. These individual notices contained a time-limited flight crew notification procedure. This procedure required that the pilot in command be notified that the oxygen generators in the lavatories had been rendered inoperative, and instructed the pilot in command to brief the crew that in the event of a rapid decompression the lavatories needed to be checked. Since flight crews have been made aware of this AD by the actions in the individual notices, and these procedures were to be applied for a limited time (30 days) only, the procedures are considered no longer necessary, and are not included in this AD. Flight crews are still made aware of corrective actions taken as a result of this AD since maintenance activities are recorded and available to the flight crew using existing maintenance procedures.

We are currently planning to issue a special Federal Aviation Regulation (SFAR) to address the regulatory compliance issues resulting from carrying out the actions required by this AD until the type certification and operational rules are modified.

This AD is applicable to U.S.-registered transport category airplanes operating under 14 CFR part 129 as identified in paragraph (c) of this AD. We will monitor actions taken by other airworthiness authorities to implement the requirements of this AD into their own fleets to determine if additional rulemaking actions are necessary.

This AD is applicable to all transport category airplanes identified in paragraph (c) of this AD. For the purposes of the FAA's responsibility to notify other airworthiness authorities of continued airworthiness issues under International Civil Aviation Organization (ICAO) Annex 8, this AD is considered an action by the State of Design for United States products.

This AD is a final rule that involves requirements affecting flight safety, and we did not provide you with notice and an opportunity to provide your comments before it becomes effective. However, we invite you to send any written data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2011-0157; Directorate Identifier 2010-NM-261-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD because of those comments.

We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this AD.

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

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

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

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

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

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

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

You can find our regulatory evaluation and the estimated costs of compliance in the AD Docket.

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

This action amends Title 14 Code of Federal Regulations (14 CFR) part 73 by changing the R-2203 and R-2205 using agency of Special Use Airspace to, “U.S. Army, AK (USARAK), Commanding General, Fort Richardson, AK”. This is an administrative change and does not affect the boundaries, or operating requirements of the airspace, therefore, notice and public procedures under 5 U.S.C. 533(b) is unnecessary.

Section 73.22 of Title 14 CFR part 73 was republished in FAA Order 7400.8S, effective February 16, 2010.

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

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

This rulemaking is promulgated under the authority described in subtitle VII, part A, subpart I, section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends Restricted Areas in Alaska.

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

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 73 as follows:

On February 28, 2002, the FAA issued a notice of proposed rulemaking seeking to revise the drug and alcohol testing regulations by amending the definition of employee (67 FR. 9366, 9377, Feb. 28, 2002). The FAA action addressed those individuals performing safety-sensitive functions under contract who may not have been subject to testing under the drug and alcohol testing regulations established in 1988 and 1994, respectively. Upon review of comments, the FAA, in 2004, issued a supplemental notice of proposed rulemaking to seek comment regarding how small entities would be impacted by this rule (69 FR 27980, May 17, 2004). From the comments received the FAA believed that the rule would not have a significant impact on a substantial number of small entities.

On January 10, 2006, the FAA issued the final rule (71 FR 1666). This rule requires that each person who performs a safety-sensitive aviation function directly for an employer is subject to testing and that each person who performs a safety-sensitive function at any tier of a contract for that employer is also subject to testing. This requirement includes contractors and subcontractors. Contracting companies have two testing options: Option one is for the contracting company to obtain and implement its own FAA drug and alcohol (D&A) testing programs. Under this option, the company would subject the individuals to testing. The other option is for the regulated employer to maintain its own testing programs and subject the individual to testing under these programs. To establish a D&A program a company would need to develop and maintain testing, training, and annual reporting requirements.

To comply with the Regulatory Flexibility Analysis (RFA), and to evaluate the impact on small businesses, the FAA described and estimated the number of affected businesses and estimated the economic impact. In the final regulatory flexibility analysis the FAA estimated that the costs were minimal, and that contractors would absorb some of these costs. In order to estimate the maximum impact of this regulation on regulated entities the FAA assumed that all of the additional cost would be passed along to regulated employers. Since costs were minimal, the FAA again certified that the rule would not have a significant economic impact on a substantial number of small entities. 71 FR 1666, 1674 (Jan. 10, 2006)

The Aeronautical Repair Station Association, Inc., (ARSA) and other affected businesses challenged the final rule on several grounds, including the FAA's compliance with the Regulatory Flexibility Act. The entities argued that contractors and subcontractors were directly affected by the final rule, and in failing to consider them in the final regulatory flexibility analysis, the FAA failed to comply with the RFA. Upon review, the U.S. Court of Appeals for the District of Columbia upheld “the substance of the 2006 final rule” and remanded “for the limited purpose of conducting the analysis required under the RFA, treating the contractors and subcontractors as regulated entities.” The Court found that contractors and subcontractors were directly affected by the final rule and that the FAA failed to comply with the RFA by not considering them in the analysis. To comply with the Court's ruling, the FAA has extended the regulatory flexibility analysis to include contractors and subcontractors as discussed below.

The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA) establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objectives of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the businesses, organizations, and governmental jurisdictions subject to regulation.” To achieve this principle, the RFA requires agencies to solicit and consider flexible regulatory proposals and to explain the rationale for their actions to assure that such proposals are given serious consideration.” The RFA covers a wide-range of small entities, including small businesses, not-for-profit organizations and small governmental jurisdictions.

Agencies must perform a review to determine whether a rule will have a significant economic impact on a substantial number of small entities. If the agency determines that it will, the agency must prepare a regulatory flexibility analysis as described in the RFA. However, if an agency determines that a rule is not expected to have a significant economic impact on a substantial number of small entities, section 605(b) of the RFA provides that the head of the agency may so certify and a regulatory flexibility analysis is not required. The certification must include a statement providing the factual basis for this determination, and the reasoning should be clear.

The Small Business Administration (SBA) has established small business size standards pursuant to the Small Business Act (Act) (Pub. L. 85-236, as amended) and related legislative guidelines. Using the NAICS (North American Industrial Classification System) classifications, the SBA classifies “small” businesses based on their employment or annual revenue. For this rule, part 145 certificated repair stations and their subcontractors are considered small businesses as defined by this definition. Repair stations are classified as “Other Support Activities for Air Transport” (488190) with small businesses defined as businesses with annual revenues of $7 million or less. Subcontractors, conversely, overlap several industries and have multiple NAICS codes. The SBA and ARSA provided a list of 21 NAICS codes for suppliers, parts fabricators and metal finishers, among others that may perform safety sensitive repairs and therefore would be considered a subcontractor under the rule. For these NAICS codes the definition of a small business ranges from 500 to 1,000 employees or annual revenues of $7 million or less.

Based upon data compiled by the Transportation Security Administration (TSA) for an aircraft repair station security rule, in the RFA the FAA estimated the number of small business repair stations. TSA used revenue and employment records from Dun & Bradstreet for approximately 2,276 domestic repair stations. 1 From this total they identified 2,123 that reflect small businesses as defined by the SBA. Their analysis indicates that most repair stations are small businesses. Accepting the TSA percentage of small entities for domestic repair stations and our internal data, the FAA has estimated that out of 4,105 domestic U.S. certificated repair stations 3,829 are small businesses with revenues of $7 million or less.

After estimating the number of small entity repair stations, we now focus on describing subcontractors impacted by this rule. In order to provide a description of subcontractors, the FAA examined the submitted list of 21 NAICS codes provided by the SBA and ARSA. There was some duplication in the codes, reducing the actual number of codes to be examined.

During the comment period ARSA not only provided a list of NAICS codes, but they also conducted and provided information on a Non-Certificated Maintenance Subcontractor (NCMS) Survey. Some of the information from the survey proved to be useful in determining the small business impact on subcontractors, particularly the responses to questions 1 (number of employees), 2 (annual revenue), 3 (an existing contract with a U.S. air carrier to perform maintenance), 4 (type of work). These responses are used, in this analysis, to determine the characteristics of these companies.

The FAA finds it appropriate to start with the responses to question 4, which deals with the work-related functions of the respondents, as a snapshot of some of the types of companies that need to be included in this analysis. The FAA grouped the responses to question 4 into the NAICS codes that both ARSA and the SBA provided and the FAA was able to correlate 98 of the 134 survey respondents with these codes; these 98 are shown in Table 1 below. While there are discrepancies with regard to the count, we can validate 98 of the 134 responses. This shows the wide spectrum of businesses providing contracting support.

Table 1 also indicates whether a specific function would require a D&A program. The last column is either marked with “Y” meaning yes, “N” meaning no, and “S” meaning some in this grouping might need such a program, as this work function conceivably could mandate such a program. Companies that have work that is strictly manufacturing will not be required to comply with the D&A testing rules. Several companies mentioned in their survey responses that they do not perform maintenance, and would not be included among companies required to set up and implement D&A testing. For example, the 14 companies characterized as 313320, which involves metal finishing including plating, may need to conduct D&A testing if some of the work they perform is considered maintenance under 14 CFR part 43.

The responses to questions 1 and 2 address the number of employees and the annual revenue reported by the surveyed companies. These responses are helpful in establishing the type of impact that this program will have on these companies. Question 1 asked “How many employees does your company have?” Table 2 summarizes the responses provided by the ARSA survey. All but two of the responses are in the category of 750 or below. The two responses for “1501+” are outliers and, for computational purposes, can be ignored. Approximately 75% of the respondents stated that they employed between 1 and 50 employees, indicating that the majority of subcontracting companies are small entities.

Question 2 of the survey asked about the company's annual revenues; Table 3 summarizes the survey responses:

Most of these companies reported average annual revenue of $7 million or less.

As noted above, ARSA did a survey and 134 members responded; the FAA believes that this is only a fraction of the total number of NCMS. As mentioned above, a small business is defined as having either 1,000 employees or less, or having revenue of $7 million or less, depending on the NAICS code. The majority of the companies in the ARSA survey are small entities which leads the FAA to believe that a substantial number of subcontractors will be small entities impacted by this rule.

The next step is to estimate the economic impact. The FAA rule requires small businesses to administer random drug tests to those employees who perform safety-sensitive functions. For a high cost estimate, the FAA based costs on subcontractors initiating and then implementing their own programs. It is important to note that these costs are much higher than when repair stations or contractors at higher tiers absorb some of the cost of D&A testing for the smaller firms. Moreover, most repair stations have drug and alcohol programs and therefore would not experience a cost burden based on the amendments to this rule. However, to estimate the maximum impact of this regulation on regulated employers, the FAA assumes that all of the additional cost for D&A testing is absorbed by each NCMS. The costs include: (1) Testing, (2) training and education, (3) program development and maintenance, and (4) annual documentation. The assumptions and calculations are described below:

Drug and alcohol tests are required periodically for all employees performing safety sensitive functions. The test costs approximately $45 or $35, respectively. The test includes specimen collection, laboratory processing, and MRO (medical review officer) verification. Testing takes place during an employee's shift. This is time not worked but still paid by the company and is included as part of the testing cost. Previously, the FAA estimated that the testing process would take 45 minutes, but because of industry comments the FAA has adopted a 2 hour testing window for this analysis. The total cost of testing is calculated by adding the 2 hour blended wage paid to the employee to the cost of the test. The total cost of testing sums to $113 per employee for a drug test and $102 per employee for an alcohol test.

Training costs are a combination of supervisor and employee training costs, plus the cost to establish and maintain a training program. For both the antidrug and alcohol misuse prevention programs, the employer will train supervisors to make reasonable cause/suspicion determinations. In addition, supervisors and employees will receive training on the effects and consequences of drug use on personal health, safety, and work environment, as well as the manifestations and behavioral cues that may indicate drug use and abuse. For supervisors, this training is initially estimated to take an hour and a half, followed by a recommended annual hourly refresher course. Employee training will also be given annually for approximately an hour. Training costs include the cost of the instructor at $84 per supervisor and $70 per employee.

Companies must also establish an education program that includes informational material, videos, etc. Per employee, these costs average $65 per person. Summing all of these together gives an estimated total education and training cost of either $149 per supervisor or $135 per employee per year.

Each subcontractor will have to devote resources to developing an antidrug and alcohol misuse prevention testing program. In addition, each of these subcontractors will have to spend time to produce information required for their registration and submit it to the FAA. At the FAA, this information will have to be processed, and entered into the appropriate database. The FAA estimates that development and maintenance of a drug and alcohol program would each require a minimum of 16 administrative hours per program at $21 per hour for a total of $336 per company per year.

Each subcontractor has to periodically submit documentation. They will be required to report or submit the following documents; Training records, reasonable suspicion cases of drug and alcohol misuse, a positive drug or alcohol test, an employee's refusal to submit to a drug or alcohol test, post-accident alcohol tests, and, if a post-accident alcohol test is not promptly administered, documentation stating the reasoning behind the delay. The FAA estimates that it will cost $1.29 to report each training record, to document each reasonable suspicious case, or to submit every rationale behind tests not being promptly administered. Notification of a positive drug or alcohol test or an employee's refusal to be tested is estimated to take .25 administrative hours at an hourly rate of $21 at roughly $5 per notification. The FAA projects that these documents will be submitted annually, but each company on average only submits a certain number of reports. Using this average, documentation cost is estimated at $50 per company for the first year and $4.50 per company for subsequent years.

We estimate that the typical subcontracting company has 25 employees. This number comes from Table 2 above, where 75% of the respondents have fewer than 50 employees. Several of the costs are variable costs and are dependent on the number of employees; testing costs, supervisor training, and employee training. For testing and training costs, the FAA multiplied the cost per employee by the average number of employees. For a small subcontracting company with 25 employees we estimate $2,825 for drug tests, $2,550 for alcohol tests, and $3,417 for training. Adding these numbers to per company cost of program development and maintenance and annual documentation costs gives the average cost per-company of $6,628 or $6,353 for drug testing and alcohol testing, respectively. Detailed calculations are done below. This value can be compared to annual revenues to determine the impact on companies with 25 employees. Using the survey results from Table 2 and 3 above, we believe that a subcontracting company with 25 employees will have annual revenues of $750,000 to $2 million. For a company with $750,000 to $2 million in annual revenue estimated costs of $12,981 is less than 2% of their annual revenue. From this example we conclude that even for firms with revenues less than $750,000 per year, if we underestimated the compliance cost by more than 10%, the compliance cost is still less than 2% of their annual revenue. Since most of the costs are employee driven the compliance cost will be less than 2% of annual revenue for all companies.

From this the FAA asserts that although there are a substantial number of small businesses the economic impact is minimal.

In the Federal Register of November 30, 2010 (75 FR 73951), FDA solicited comments concerning the direct final rule for a 75-day period ending February 14, 2011. FDA stated that the effective date of the direct final rule would be on April 14, 2011, 60 days after the end of the comment period, unless any significant adverse comment was submitted to FDA during the comment period. FDA did not receive any significant adverse comments.

Elanco Animal Health, A Division of Eli Lilly & Co., Lilly Corporate Center, Indianapolis, IN 46285, filed NADA 141-321 that provides for veterinary prescription use of TRIFEXIS (spinosad and milbemycin oxime) Chewable Tablets in dogs for the treatment and prevention of flea infestations and for the prevention and control of various internal parasites. The NADA is approved as of January 4, 2011, and the regulations in part 520 (21 CFR part 520) are amended by adding § 520.2134 to reflect the approval.

In accordance with the freedom of information provisions of 21 CFR part 20 and 21 CFR 514.11(e)(2)(ii), a summary of safety and effectiveness data and information submitted to support approval of this application may be seen in the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852, between 9 a.m. and 4 p.m., Monday through Friday.

Under section 512(c)(2)(F)(ii) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 360b(c)(2)(F)(ii)), this approval qualifies for 3 years of marketing exclusivity beginning on the date of approval.

FDA has determined under 21 CFR 25.33 that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808.

Therefore, under the Federal Food, Drug, and Cosmetic Act and under the authority delegated to the Commissioner of Food and Drugs and redelegated to the Center for Veterinary Medicine, 21 CFR part 520 is amended as follows:

Under Title VIII of the Alaska National Interest Lands Conservation Act (ANILCA) (16 U.S.C. 3111-3126), the Secretary of the Interior and the Secretary of Agriculture (Secretaries) jointly implement the Federal Subsistence Management Program. This program provides a preference for take of fish and wildlife resources for subsistence uses on Federal public lands and waters in Alaska. The Secretaries published temporary regulations to carry out this program in the Federal Register on June 29, 1990 (55 FR 27114), and final regulations were published in the Federal Register on May 29, 1992 (57 FR 22940). The Program has subsequently amended these regulations a number of times. Because this program is a joint effort between Interior and Agriculture, these regulations are located in two titles of the Code of Federal Regulations (CFR): Title 36, “Parks, Forests, and Public Property,” and Title 50, “Wildlife and Fisheries,” at 36 CFR 242.1-28 and 50 CFR 100.1-28, respectively. The regulations contain subparts as follows: Subpart A, General Provisions; Subpart B, Program Structure; Subpart C, Board Determinations; and Subpart D, Subsistence Taking of Fish and Wildlife.

Consistent with subpart B of these regulations, the Secretaries established a Federal Subsistence Board to administer the Federal Subsistence Management Program. The Board is currently made up of:

• A Chair appointed by the Secretary of the Interior with concurrence of the Secretary of Agriculture;

• The Alaska Regional Director, U.S. Fish and Wildlife Service;

• The Alaska Regional Director, U.S. National Park Service;

• The Alaska State Director, U.S. Bureau of Land Management;

• The Alaska Regional Director, U.S. Bureau of Indian Affairs; and

• The Alaska Regional Forester, U.S. Forest Service.

Through the Board, these agencies participate in the development of regulations for subparts C and D, which, among other things, set forth program eligibility and specific harvest seasons and limits.

In administering the program, the Secretaries divided Alaska into 10 subsistence resource regions, each of which is represented by a Regional Advisory Council. The Regional Advisory Councils provide a forum for rural residents with personal knowledge of local conditions and resource requirements to have a meaningful role in the subsistence management of fish and wildlife on Federal public lands in Alaska. The Regional Advisory Council members represent varied geographical, cultural, and user interests within each region.

The Board addresses customary and traditional use determinations during the applicable biennial cycle. Section ___.24 (customary and traditional use determinations) was originally published in the Federal Register on May 29, 1992 (57 FR 22940). The regulations at 36 CFR 242.4 and 50 CFR 100.4 define “customary and traditional use” as “a long-established, consistent pattern of use, incorporating beliefs and customs which have been transmitted from generation to generation. * * *” Since 1992, the Board has made a number of customary and traditional use determinations at the request of affected subsistence users. Those modifications, along with some administrative corrections, were published in the Federal Register as follows:

The Departments published a proposed rule on January 15, 2010 (75 FR 2448), to amend the fish and shellfish sections of subparts C and D of 36 CFR 242 and 50 CFR 100. The proposed rule opened a comment period, which closed on March 24, 2010. The Departments advertised the proposed rule by mail, radio, and newspaper. During that period, the Regional Councils met and, in addition to other Regional Council business, received suggestions for proposals from the public. The Board received a total of 21 proposals for changes to subparts C and D; this included 2 proposals that the Board had deferred from the previous regulatory cycle. Four proposals were withdrawn by the proponent prior to the start of the public review process. After the comment period closed, the Board prepared a booklet describing the proposals and distributed it to the public. The proposals were also available online. The public then had an additional 30 days in which to comment on the proposals for changes to the regulations.

The 10 Regional Advisory Councils met again, received public comments, and formulated their recommendations to the Board on proposals for their respective regions. The Regional Advisory Councils had a substantial role in reviewing the proposed rule and making recommendations for the final rule. Moreover, a Council Chair, or a designated representative, presented each Council's recommendations at the Board meeting of January 18-20, 2011. These final regulations reflect Board review and consideration of Regional Advisory Council recommendations and public comments. The public received extensive opportunity to review and comment on all changes. In section __.24(a)(2), corrections to the spelling of certain village names and an updated format have been made, resulting in a more readable document.

Of the 17 proposals, 15 were on the Board's regular agenda and 2 were on the consensus agenda. The consensus agenda is made up of proposals for which there is agreement among the affected Subsistence Regional Advisory Councils, a majority of the Interagency Staff Committee members, and the Alaska Department of Fish and Game concerning a proposed regulatory action. Anyone may request that the Board remove a proposal from the consensus agenda and place it on the non-consensus (regular) agenda. The Board votes en masse on the consensus agenda after deliberation and action on all other proposals. Of the proposals on the consensus agenda, the Board withdrew both proposals based on the request of the proponent. This action was consistent with Board policy and was supported by each of the Regional Advisory Council Chairs in the management area. Analysis and justification for each action are available for review at the Office of Subsistence Management, 1011 East Tudor Road, Mail Stop 121, Anchorage, Alaska 99503, or on the Office of Subsistence Management Web site ( http://alaska.fws.gov/asm/index.cfml ). Of the proposals on the regular agenda, the Board adopted one; adopted three with modification; rejected three; deferred four; took no action on two; and withdrew two based on the request of the proponent. In section __.22(b) an administrative change was made to reflect the current address of the Office of Subsistence Management.

The Board rejected, deferred, withdrew, or took no action on 11 non-consensus proposals. The rejected proposals were recommended for rejection by one or more of the Regional Advisory Councils unless noted below.

The Board withdrew 2 proposals in the Yukon-Northern Area based on the request of the proponent. This action was consistent with Board policy and was supported by each of the Regional Advisory Council Chairs in the management area.

The Board deferred a proposal in the Yukon-Northern Area to restrict customary trade of Chinook salmon on the Yukon River to allow time for a subcommittee made up of members from the three Yukon River Regional Advisory Councils to try to reach consensus on a recommendation to the Councils. The Board also took no action on a similar proposal based on the action of this proposal.

The Board rejected a proposal in the Yukon-Northern Area to restrict gillnet depth in Federal public waters of the Yukon River based on concerns that this proposal was not supported by substantial evidence and would be detrimental to the satisfaction of subsistence needs for some users.

The Board rejected a proposal in the Yukon-Northern Area to close Federal public waters of the Yukon River to the taking of first pulse Chinook salmon from the mouth to the Canadian border for 12 years. The Board took this action because Federal and State managers already have the authority to take action to close this fishery for conservation concerns and this proposal would be detrimental to the satisfaction of subsistence needs for some users.

The Board deferred a proposal in the Yukon-Northern Area to subdivide an existing subdistrict on the Yukon River. This action would allow for additional public input and time for Federal and State managers to consider possible courses of actions.

The Board took no action on a proposal to extend the sockeye salmon season in the Klawock River drainage and Klawock Lake in the Southeast Alaska Area based on its action on a similar proposal.

The Board deferred a proposal to close the eulachon fishery in sections 1C and 1D of the Southeast Alaska Area to allow time for additional public input and to address conservation concerns. This action was contrary to the Council recommendation, which was to adopt the proposal with modification.

The Board continued a previous deferral on a proposal to close Federal public waters in the Makhnati Island area of Southeast Alaska to the harvest of herring and herring spawn except by Federally qualified users. This action was requested by the Council to allow time for peer review of a study conducted by the Sitka Tribe of Alaska.

The Board rejected a previously deferred proposal in Southeast Alaska to determine a “no Federal subsistence priority” be made for all fish in the Juneau road system area. This action was based on concerns that the proposal was not supported by substantial evidence and would be detrimental to the satisfaction of subsistence needs for users.

The Board adopted or adopted with modification four non-consensus proposals. Modifications were suggested by the affected Regional Council(s), developed during the analysis process, or developed during the Board's public deliberations. All of the adopted proposals were recommended for adoption by at least one of the Regional Councils unless noted below.

The Board adopted a proposal with modification to eliminate the defined sockeye salmon season and fishing schedule in the Klawock River drainage and Klawock Lake to provide additional opportunity for subsistence users.

The Board adopted a proposal to reduce the harvest limit of king crab from six to three per household. This action was based on continuing conservation concerns.

The Board adopted a proposal with modification to eliminate harvest limits associated with subsistence permits issued to Federally qualified subsistence users who fish for salmon in Federal public waters of the Kodiak Area that cannot be accessed from the Kodiak road system, except the mainland district, and changed the recording requirements from immediately upon landing a fish to prior to leaving the fishing site. This action was taken to allow additional opportunity and reduce the burden of reporting for subsistence users.

The Board adopted a proposal with modification to expand the areas for subsistence fishing using existing gear types, except gillnets. This action was taken to provide additional opportunity for subsistence users.

The Departments published a proposed rule on April 17, 2008 (73 FR 20884), to amend subparts C and D of 36 CFR part 242 and 50 CFR part 100. The proposed rule opened a comment period, which closed on June 30, 2008. The Departments advertised the proposed rule by mail, radio, and newspaper. During that period, the Regional Councils met and, in addition to other Regional Council business, received suggestions for proposals from the public. The Board received a total of 15 proposals for changes to subparts C and D. After the proposal period closed, the Board prepared a booklet describing the proposals and distributed them to the public; this was also available online. The public then had an additional 30 days in which to comment on the proposals for changes to the regulations. The 10 Regional Advisory Councils met again, received public comments, and formulated their recommendations to the Board on proposals for their respective regions. The Regional Advisory Councils had a substantial role in reviewing the proposed rule and making recommendations for the final rule. Moreover, a Council Chair, or a designated representative, presented each Council's recommendations at the Board meeting of January 13-15, 2009. The public had extensive opportunity to review and comment on all changes. One of the proposals rejected by the Board was FP09-07, which requested the Board to recognize a customary and traditional use determination for residents of Ninilchik for resident fish in the Kenai Peninsula District waters north of and including the Kenai River drainage. The Board based its decision on a lack of substantial evidence; this decision was contrary to the modified proposal recommendation of the Southcentral Regional Advisory Council.

On May 29, 2009, as provided for in 36 CFR 242.20 and 50 CFR 100.20, the Ninilchik Traditional Council submitted a request for reconsideration on the Board's decision to reject FP09-07. The Board accepted the request for reconsideration and initiated additional staff analysis and review; after public notice, the Board met again on November 9, 2010, and readdressed this proposal. After recommendations from the applicable Council Chair, comments from the Alaska Department of Fish and Game, and members of the public, the Board rescinded its earlier decision and recognized a customary and traditional use determination for residents of Ninilchik for all fish in the Kenai Peninsula District waters north of and including the Kenai River drainage. The Board based its decision on the available information on the residents of Ninilchik's use of resident fish species in the Kenai River area, the opportunistic nature of subsistence uses, and the demonstrated history of fishing activities by Ninilchik residents, and concluded that Ninilchik residents have customarily and traditionally used resident fish species in the river.

These final regulations reflect Board review and consideration of Regional Council recommendations and public comments. Because this rule concerns public lands managed by an agency or agencies in both the Departments of Agriculture and the Interior, identical text will be incorporated into 36 CFR part 242 and 50 CFR part 100.

The Board has provided extensive opportunity for public input and involvement in compliance with Administrative Procedure Act requirements, including publishing a proposed rule in the Federal Register , participation in multiple Regional Council meetings, additional public review and comment on all proposals for regulatory change, and opportunity for additional public comment during the Board meeting prior to deliberation. Additionally, an administrative mechanism exists (and has been used by the public) to request reconsideration of the Board's decision on any particular proposal for regulatory change (36 CFR 242.20 and 50 CFR 100.20). Therefore, the Board believes that sufficient public notice and opportunity for involvement have been given to affected persons regarding Board decisions.

In the more than 20 years the Program has been operating, no benefit to the public has been demonstrated by delaying the effective date of the subsistence regulations. A lapse in regulatory control could affect the continued viability of fish or wildlife populations and future subsistence opportunities for rural Alaskans, and would generally fail to serve the overall public interest. Therefore, the Board finds good cause pursuant to 5 U.S.C. 553(d)(3) to make this rule effective upon the date set forth in DATES to ensure continued operation of the subsistence program.

A Draft Environmental Impact Statement (DEIS) for developing a Federal Subsistence Management Program was distributed for public comment on October 7, 1991. That document described the major issues associated with Federal subsistence management as identified through public meetings, written comments, and staff analyses and examined the environmental consequences of four alternatives. Proposed regulations (subparts A, B, and C) that would implement the preferred alternative were included in the DEIS as an appendix. The DEIS and the proposed administrative regulations presented a framework for a regulatory cycle regarding subsistence hunting and fishing regulations (subpart D). The Final Environmental Impact Statement (FEIS) was published on February 28, 1992.

Based on the public comments received, the analysis contained in the FEIS, and the recommendations of the Federal Subsistence Board and the Department of the Interior's Subsistence Policy Group, the Secretary of the Interior, with the concurrence of the Secretary of Agriculture, through the U.S. Department of Agriculture—Forest Service, implemented Alternative IV as identified in the DEIS and FEIS (Record of Decision on Subsistence Management for Federal Public Lands in Alaska (ROD), signed April 6, 1992). The DEIS and the selected alternative in the FEIS defined the administrative framework of a regulatory cycle for subsistence hunting and fishing regulations. The final rule for subsistence management regulations for public lands in Alaska, subparts A, B, and C, implemented the Federal Subsistence Management Program and included a framework for a regulatory cycle for the subsistence taking of wildlife and fish. The following Federal Register documents pertain to this rulemaking:

An environmental assessment was prepared in 1997 on the expansion of Federal jurisdiction over fisheries and is available from the office listed under FOR FURTHER INFORMATION CONTACT . The Secretary of the Interior with the concurrence of the Secretary of Agriculture determined that the expansion of Federal jurisdiction did not constitute a major Federal action significantly affecting the human environment and, therefore, signed a Finding of No Significant Impact.

An ANILCA § 810 analysis was completed as part of the FEIS process on the Federal Subsistence Management Program. The intent of all Federal subsistence regulations is to accord subsistence uses of fish and wildlife on public lands a priority over the taking of fish and wildlife on such lands for other purposes, unless restriction is necessary to conserve healthy fish and wildlife populations. The final § 810 analysis determination appeared in the April 6, 1992, ROD and concluded that the Program, under Alternative IV with an annual process for setting subsistence regulations, may have some local impacts on subsistence uses, but will not likely restrict subsistence uses significantly.

During the subsequent environmental assessment process for extending fisheries jurisdiction, an evaluation of the effects of this rule was conducted in accordance with § 810. That evaluation also supported the Secretaries' determination that the rule will not reach the “may significantly restrict” threshold that would require notice and hearings under ANILCA § 810(a).

An agency may not conduct or sponsor and you are not required to respond to a collection of information unless it displays a currently valid Office of Management and Budget (OMB) control number. This rule does not contain any new collections of information that require OMB approval. OMB has reviewed and approved the following collections of information associated with the subsistence regulations at 36 CFR part 242 and 50 CFR part 100: Subsistence hunting and fishing applications, permits, and reports, Federal Subsistence Regional Advisory Council Membership Application/Nomination and Interview Forms (OMB Control No. 1018-0075 expires January 31, 2013).

The Office of Management and Budget (OMB) has determined that this rule is not significant and has not reviewed this rule under Executive Order 12866. OMB bases its determination upon the following four criteria:

(a) Whether the rule will have an annual effect of $100 million or more on the economy or adversely affect an economic sector, productivity, jobs, the environment, or other units of the government.

(b) Whether the rule will create inconsistencies with other agencies' actions.

(c) Whether the rule will materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients.

(d) Whether the rule raises novel legal or policy issues.

The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq. ) requires preparation of flexibility analyses for rules that will have a significant effect on a substantial number of small entities, which include small businesses, organizations, or governmental jurisdictions. In general, the resources to be harvested under this rule are already being harvested and consumed by the local harvester and do not result in an additional dollar benefit to the economy. However, we estimate that two million pounds of meat are harvested by subsistence users annually and, if given an estimated dollar value of $3.00 per pound, this amount would equate to about $6 million in food value statewide. Based upon the amounts and values cited above, the Departments certify that this rulemaking will not have a significant economic effect on a substantial number of small entities within the meaning of the Regulatory Flexibility Act.

Under the Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 801 et seq.), this rule is not a major rule. It does not have an effect on the economy of $100 million or more, will not cause a major increase in costs or prices for consumers, and 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.

Title VIII of ANILCA requires the Secretaries to administer a subsistence priority on public lands. The scope of this Program is limited by definition to certain public lands. Likewise, these regulations have no potential takings of private property implications as defined by Executive Order 12630.

The Secretaries have determined and certify pursuant to the Unfunded Mandates Reform Act, 2 U.S.C. 1502 et seq., that this rulemaking will not impose a cost of $100 million or more in any given year on local or State governments or private entities. The implementation of this rule is by Federal agencies and there is no cost imposed on any State or local entities or Tribal governments.

The Secretaries have determined that these regulations meet the applicable standards provided in §§ 3(a) and 3(b)(2) of Executive Order 12988, regarding civil justice reform.

In accordance with Executive Order 13132, the rule does not have sufficient Federalism implications to warrant the preparation of a Federalism Assessment. Title VIII of ANILCA precludes the State from exercising subsistence management authority over fish and wildlife resources on Federal lands unless it meets certain requirements.

The Alaska National Interest Lands Conservation Act does not provide rights to Tribes for the subsistence taking of wildlife, fish, and shellfish. However, the Board provided Federally recognized Tribes and Alaska Native Corporations an opportunity to consult on this rule. Consultation with Alaska Native Corporations is based on Public Law 108-199, div. H, Sec. 161, Jan. 23, 2004, 118 Stat. 452, as amended by Public Law 108-447, div. H, title V, Sec. 518, Dec. 8, 2004, 118 Stat. 3267, which provides that: “The Director of the Office of Management and Budget and all Federal agencies shall hereafter consult with Alaska Native Corporations on the same basis as Indian Tribes under Executive Order No. 13175.”

The Secretaries, through the Board, provided a variety of opportunities for Tribal consultation: Submitting proposals to change the existing rule, commenting on proposed changes to the existing rule; engaging in dialogue at the Regional Council meetings; engaging in dialogue at the Board's meetings; and providing input in person, by mail, e-mail, or phone at any time during this rulemaking process.

On January 18, 2011, the Board provided Federally recognized Tribes and Alaska Native Corporations a specific opportunity to consult on this rule prior to the start of its public regulatory meeting. Federally recognized Tribes and Alaska Native Corporations were notified by mail and telephone and were given the opportunity to attend in person or via teleconference.

This Executive Order requires agencies to prepare Statements of Energy Effects when undertaking certain actions. However, this rule is not a significant regulatory action under E.O. 13211, affecting energy supply, distribution, or use, and no Statement of Energy Effects is required.

Theo Matuskowitz drafted these regulations under the guidance of Peter J. Probasco of the Office of Subsistence Management, Alaska Regional Office, U.S. Fish and Wildlife Service, Anchorage, Alaska. Additional assistance was provided by

• Daniel Sharp, Alaska State Office, Bureau of Land Management;

• Sandy Rabinowitch and Nancy Swanton, Alaska Regional Office, National Park Service;

• Dr. Glenn Chen, Alaska Regional Office, Bureau of Indian Affairs;

• Jerry Berg, Alaska Regional Office, U.S. Fish and Wildlife Service; and

• Steve Kessler, Alaska Regional Office, U.S. Forest Service.

For the reasons set out in the preamble, the Federal Subsistence Board amends title 36, part 242, and title 50, part 100, of the Code of Federal Regulations, as set forth below.

Table of Contents I. What is the background for the actions? II. What are the actions EPA is taking? III. Why is EPA taking these actions? IV. Response to Comments V. What are the effects of these actions? VI. Final Action VII. Statutory and Executive Order Reviews I. What is the background for the actions?

On July 14, 2010, the State of Tennessee, through TDEC, submitted a request to redesignate the Knoxville Area to attainment for the 1997 8-hour ozone NAAQS, and for EPA approval of the Tennessee SIP revision containing a maintenance plan for the Area. In an action published on October 7, 2010 (75 FR 62026), EPA proposed approval of Tennessee's plan for maintaining the 1997 8-hour ozone NAAQS, including the emissions inventory submitted pursuant to CAA section 172(c)(3); and the NO x and VOC MVEBs for the Knoxville Area contained in the maintenance plan. At that time, EPA also proposed to approve the redesignation of the Knoxville Area to attainment. Additional background for today's action is set forth in EPA's October 7, 2010, proposal.

The MVEBs included in the maintenance plan are as follows:

In its October 7, 2010 proposed action, EPA noted that the adequacy public comment period on these MVEBs (as contained in Tennessee's submittal) began on June 15, 2010, and closed on July 15, 2010. No comments were received during the public comment period. Thus, EPA deemed the new MVEBs for the Knoxville Area adequate for the purposes of transportation conformity on September 15, 2010 (75 FR 55977).

As stated in the October 7, 2010, proposal, this redesignation addresses the Knoxville Area's status solely with respect to the 1997 8-hour ozone NAAQS, for which designations were finalized on April 30, 2004 (69 FR 23857).

In this final rulemaking, EPA is also noting minor corrections that the State of Tennessee made on September 2, 2010, and September 9, 2010, to amend its July 14, 2010, submittal. The changes reflect minor corrections to total values in several data tables for data consistency throughout the submittal. In addition, area source emissions inventory information for Knox County that was inadvertently omitted in the original submittal was added to Appendix A. The corrected submittal can be found in the docket EPA-R04-OAR-2010-0666 on the http://www.regulations.gov Web site. EPA's proposed action, published on October 7, 2010 (75 FR 62026), and today's final action, are not affected by these minor corrections. EPA is also noting a typographical error in the October 7, 2010, proposed rule. The last entry in Table 8 on page 62039 of the proposed rule should read “Non-road mobile source total (MLA)” instead of “Non-road mobile source total,” to distinguish the 2007 commercial marine vessels, locomotives and aircraft emissions from other non-road emission sources. See 75 FR 62039. EPA does not believe this minor typographical error affected the ability of the public to comment on this action because the actual inventory numbers were accurate and the public was provided with sufficient information to comment on the proposed actions.

EPA reviewed ozone monitoring data from ambient ozone monitoring stations in the Knoxville Area for the ozone seasons from 2007-2009. These data have been quality-assured and are recorded in Air Quality System (AQS). The fourth-highest 8-hour ozone average for 2007, 2008, and 2009, and the 3-year average of these values ( i.e., design values), are summarized in Table 2 of this final rulemaking. Preliminary monitoring data for the 2010 ozone season indicate that the Area is not violating the 1997 ozone NAAQS based on data from 2008-2010. These preliminary data are available in the Docket for today's action although it is not yet certified.

In today's rulemaking, EPA is approving: (1) Tennessee's emissions inventory which was submitted pursuant to CAA section 172(c)(3); (2) Tennessee's 1997 8-hour ozone maintenance plan for the Knoxville Area, including MVEB's (such approval being one of the CAA criteria for redesignation to attainment status); and, (3) Tennessee's redesignation request to change the legal designation of the Knoxville Area from nonattainment to attainment for the 1997 8-hour ozone NAAQS. The maintenance plan is designed to demonstrate that the Knoxville Area will continue to attain the 1997 8-hour ozone NAAQS through 2024. EPA's approval of the redesignation request is based on EPA's determination that the Knoxville Area meets the criteria for redesignation set forth in CAA, sections 107(d)(3)(E) and 175A, including EPA's determination that the Knoxville Area has attained the 1997 8-hour ozone NAAQS. EPA's analyses of Tennessee's redesignation request, emissions inventory, and maintenance plan are described in detail in the October 7, 2010, proposed rule (75 FR 62026).

Consistent with the CAA, the maintenance plan that EPA is approving also includes 2024 MVEBs for NO X and VOC for the Knoxville Area. In this action, EPA is approving these NO X and VOC MVEBs for the purposes of transportation conformity. For regional emission analysis years that involve the year 2024 and beyond, the applicable budgets (for the purpose of conducting transportation conformity analyses) are the new 2024 MVEBs.

EPA has determined that the Knoxville Area has attained the 1997 8-hour ozone NAAQS and has also determined that all other criteria for the redesignation of the Knoxville Area from nonattainment to attainment of the 1997 8-hour ozone NAAQS have been met. See CAA section 107(d)(3)(E). One of those requirements is that the Knoxville Area have an approved plan demonstrating maintenance of the 1997 8-hour ozone NAAQS. EPA is also taking final action to approve the maintenance plan for the Knoxville Area as meeting the requirements of sections 175A and 107(d)(3)(E) of the CAA. In addition, EPA is approving the emissions inventory as meeting the requirements of section 172(c)(3) of the CAA. Finally, EPA is approving the new NO X and VOC MVEBs for 2024 as contained in Tennessee's maintenance plan for the Knoxville Area because these MVEBs are consistent with maintenance of the 1997 ozone standard in the Knoxville Area. The detailed rationale for EPA's findings and actions are set forth in the proposed rulemaking and in other discussion in this final rulemaking. EPA received multiple comments from one commenter (hereafter referred to as the “Commenter”) which were generally adverse. The comments are summarized and responded to below.

EPA received one set of comments on the October 7, 2010, proposed approval to redesignate the Knoxville Area to attainment for the 1997 8-hour ozone NAAQS. 1 The comments focused on provisions in the Tennessee SIP regarding start-up, shutdown and malfunction emissions (sometimes referred to as SSM or excess emissions) that were not changed as part of the redesignation request and maintenance plan SIP submittal. The comments focused on provisions that the Commenter believes are “inextricably linked” to the redesignation, and as a result, the Commenter concludes that these provisions “have the potential to undermine the Knoxville Area's maintenance of the 1997 NAAQS for ozone.”

The provisions of the Official Compilation Rules & Regulations of the State of Tennessee (Tenn. Comp. R. & Regs.) identified by the Commenter, and a summary of the comments, are as follows. Some of the comments address the same State or Local provisions, but each comment is summarized individually.

First, the Commenter identified Tenn. Comp. R. & Regs. Rule 1200-3-20-.07(1) and (3). The Commenter believes that these provisions should be changed “to clarify that all excess emissions are violations regardless of cause” and notwithstanding any discretionary decision made by Tennessee regarding whether the violation is “excused.” The Commenter believes the “excuse” language included in the above-cited provisions is “sufficiently ambiguous that it should be revised.” The Commenter also raised concerns with the discretion afforded to the Technical Secretary to determine whether excess emissions are “violations” and that such a determination might negatively affect EPA or a citizen in pursuing enforcement of such excess emissions as violations.

Second, the Commenter again identified Tenn. Comp. R. & Regs. Rule 1200-3-20-.07, further elaborating on the discretionary determination that the Technical Secretary could make regarding excess emissions and whether such emissions are violations. The Commenter stated that “the SIP contains no regulatory standard whatsoever that defines how the Technical Secretary's discretion should be exercised.” The Commenter identifies five criteria enumerated in a February 15, 1983, Memorandum from Kathleen M. Bennett, Assistant Administrator for Air, Noise and Radiation (EPA) to Regional Administrators, Regions I-X, regarding Policy on Excess Emissions During Startup, Shutdown, Maintenance, and Malfunctions (1983 Bennett Memorandum). The Commenter explains that Tennessee's rules do not address criteria four and five identified by EPA in the 1983 Bennett Memorandum. The discussion in the comments suggests that all five criteria may be met by the Tennessee rules; however, this hinges on Tennessee's interpretation and implementation of its rules. Thus, the Commenter appears concerned that if the rules were interpreted or implemented in a certain way, the rules may not be consistent with the 1993 Bennett Memorandum.

Third, the Commenter identified Tenn. Comp. R. & Regs. Rules 1200-3-5-.02(1) and 1200-3-20-.07(1) regarding visible emissions and raised concerns that these rules “create an exception for visible emissions levels.” The Commenter explained that when these provisions are “incorporated into a permit, this rule operates as a blanket exemption for opacity violations.” The comment also raises a concern about discretion on the part of the Technical Secretary to exempt a facility's excess emissions and states that these provisions are “automatic exemptions” that the Commenter does not agree are consistent with EPA's interpretation of the CAA. The Commenter explained that Tenn. Comp. R. & Regs. Rule 1200-3-5-.07(1) must be amended so that excess visible emissions due to startup and shutdown are subject to enforcement and that Rule 1200-3-5-.02(1) should be eliminated entirely because the exceptions provided in that rule are “entirely inconsistent” with EPA's interpretation of the CAA.

Fourth, the Commenter identified Tenn. Comp. R. & Regs. Rule 1200-3-20-.06 as ambiguous about whether scheduled shutdown of air pollution control equipment is an excuse for excess emissions. The Commenter recommended that this provision be amended to clarify that scheduled maintenance is not an excuse for excess emissions unless the owner or operator can prove that better scheduling for maintenance and better operation and maintenance practices could not have prevented the violation. The Commenter cited to the 1983 Bennett Memorandum for support for this comment.

Fifth, the Commenter identified Tenn. Comp. R. & Regs. Rule 1200-3-20-.03 as a concern because it provides exceptions to the notification provisions regarding excess emissions. The Commenter explained that all owners/operators should be required to give notice for all excess emissions and Rule 1200-3-20-.03 should be amended to require such notice.

Sixth, the Commenter identified provisions in the Knox County Air Pollution Control Regulations (Knox Co Regulations) that raise concerns. The identified provisions are Knox Co Regulations 32.1(C) and 34.1(A) and (C). With regard to 32.1(C), the Commenter explained that this regulation should clarify the effect of an administrative determination on the capacity of citizens to bring a citizen suit on the same issue. With regard to 34.1(A) and (C), the Commenter explained that this regulation should state that advance notice and reports of excess emissions do not excuse such emissions.

Seventh, the Commenter submitted two comments on what was described as rule changes made by Tennessee that had been submitted to EPA as SIP revisions. The main focus of the comments appears to be that, “the inclusion of overly-broad SSM provisions in the SIP undermines the integrity of the State's emissions forecast and can threaten NAAQS compliance.” As a result, the Commenter suggests that EPA should condition any redesignation of the Knoxville Area on Tennessee's modification of its regulations as outlined in the comment letter.

EPA's Response. As a point of clarification, the issue before EPA in the current rulemaking action is a redesignation for Knoxville to attainment for the 8-hour ozone standard—including the maintenance plan. The SIP provisions identified above and in Commenter's letter are not currently being proposed for revision as part of the redesignation submittal. Thus, EPA's review here is limited to whether the already approved provisions affect any the requirements for redesignation in a manner that would preclude EPA from approving the redesignation request. Because the rules cited by the Commenter are not pending before EPA and/or are not the subject of this rulemaking action, EPA did not undertake a full SIP review of the individual provisions. It has long been established that EPA may rely on prior SIP approvals in approving a redesignation request ( See page 3 of the September 4, 1992, John Calcagni memorandum; Southwestern Pennsylvania Growth Alliance v. Browner, 144 F.3d 984, 989-990 (6th Cir. 1998); Wall v. EPA, 265 F.3d 426 (6th Cir. 2001)) plus any additional measures it may approve in conjunction with a redesignation action. See 68 FR 25413, 25426 (May 12, 2003).

There are two main rules identified by the Commenter. Tenn. Comp. R. & Regs. Rule 1200-3-20 is a rule entitled, “Limits on Emissions Due to Malfunctions, Start-Ups and Shutdowns.” The other rule, Tenn. Comp. R. & Regs. Rule 1200-3-5 is part of Tennessee's visible emissions rules. Rule 1200-3-20 was first approved into the SIP in 1980 with a revision in 1982. Rule 1200-3-5 was first approved into the SIP in 1972 and has undergone numerous revisions, with the most recent occurring in 1997. As noted above, the Commenter has also identified Knox Co. Regulations 32.1(C) and 34.1(A) and (C). These rules were initially incorporated into the SIP in 1972 and subsequently revised in the late 1980s. In the context of today's rulemaking, the Commenter appears to suggest that the cited State and County rules may impact maintenance of the 1997 8-hour ozone NAAQS due to flaws in the emissions forecasts because of possible future actions by Tennessee to excuse excess emissions as violations.

Following EPA's receipt of the comments, EPA contacted Tennessee and Knox County, requesting their interpretations of their respective rules per the issues identified by the Commenter. On November 18, 2010, Tennessee responded to EPA explaining that:

Letter from Barry Stephens, Director, Division of Air Pollution Control to Gwen Keyes Fleming, Regional Administrator, November 18, 2010. This letter affirms that Tennessee does not provide for any “blanket exemptions” for emissions. Further, Tennessee does not construe its rules to limit either EPA or citizen enforcement regardless of a decision by the State pursuant to its own enforcement discretion.

With regard to Knox County, a letter was provided from Lynne A. Liddington, Director of Air Quality Management to Gwen Keyes Fleming, Regional Administrator, on November 22, 2010. In that letter, Knox County first clarified the rules that are currently in effect in Knox County. The rules currently in effect in Knox County are not the SIP-approved rules, which are the rules that are Federally enforceable; the Commenter focused on the SIP-approved rules (which are the Federally-enforceable rules). Knox County's response is still relevant here because Knox County addresses two key concerns of the Commenter—excuse of violations by the County and citizen rights to pursue such violations. Knox County cited to Regulation 34.8, which states, “Nothing in this section shall be construed to allow the air contaminant source to violate the ambient air quality standards nor limit the authority of the Director and/or board to institute actions under other sections of these regulations.” The letter further underscored that EPA and citizen enforcement of the CAA is guaranteed by the CAA itself. Specifically, Knox County stated, “EPA is granted oversight and enforcement abilities through the Clean Air Act (CAA) Section 113 and no decision by the [Knox County Air Quality Management] Director limits EPA's authority to take enforcement action for violations of the CAA. The authority of citizens to bring enforcement suits is guaranteed by CAA Section 304.”

The letters from the State and County confirm EPA's interpretation of the SIP, i.e., that a determination of a State or County official regarding whether to pursue a violation of a SIP requirement, does not excuse that violation as a “violation,” and would not affect EPA's or a citizen's right to enforce such a violation. 2 EPA further notes, despite the fact that these rules have been approved into the SIP for many years, that the Commenter cites to no cases in which a court has interpreted these rules as a bar to EPA or citizen enforcement. For these reasons, EPA disagrees with the Commenter that these provisions may impact the enforceability of the emission reductions relied on in the maintenance plan.

Nonetheless, in response to concerns expressed by the Commenter that SSM emissions might affect the ability of the Area to maintain the NAAQS, EPA evaluated the application of these provisions to the largest relevant source in the Area—Tennessee Valley Authority's Bull Run facility—which is the source of approximately 76 percent of the NO X emissions in the inventory. EPA's evaluation found that the facility includes SSM emissions as part of the emission information reported to EPA under the CAA title IV requirements (the Acid Rain program), and the associated obligations for monitoring. EPA reviewed some of the reported SSM events for that facility for 2007 (through the Clean Air Markets Division (CAMD) Web site), and concluded that the emission inventory submitted to EPA by Tennessee appears consistent with the CAMD data ( i.e., it appears that the emission inventory accounts for start SSM events at the Bull Run facility). 3 As a result, it appears that at least with regard to the largest NO X source in the Knoxville Area, the emissions inventory includes SSM events such that the projections for future maintenance incorporate consideration of historic SSM. With this background, below are more specific responses to Commenter's concerns.

Contrary to the Commenter's assertion, there is nothing in the plain text of the above-cited rules that provides any sort of blanket exemption. Rule 1200-3-20-.07(1) simply explains what reporting is required upon excess emissions events, and Rule 1200-3-20-.07(3) appears to limit the evidentiary effect of the excess emissions report for a company in defense of enforcement. Together, the plain text of the rules and the above-quoted explanation by Tennessee make clear that there is no blanket exemption for excess emissions included in Rule 1200-3-20-.07(1) and (3). Thus, EPA does not see a basis for Commenter's claim that these rules compromise the emissions levels relied on to demonstrate maintenance of the 1997 8-hour ozone NAAQS.

The Commenter's focus here is on Rule 1200-3-20-.07(1) and specifically, the last phrase of the sentence that reads, “[t]he owner or operator of the violating source shall submit within twenty (20) days after receipt of the notice of violation the following data to assist the Technical Secretary in deciding whether to excuse or proceed upon the violation.” (Emphasis added.) While EPA agrees that this language could be more clearly phrased, as explained above, the State interprets this language not to excuse excess emissions as violations, but rather to establish its use of enforcement discretion in pursuing the violation in terms of an enforcement action. Specifically, the November 18, 2010, letter provided by Tennessee makes clear that Tennessee considers all excess emissions to be violations, but highlights that the State has enforcement discretion. In terms of the discretion and the consideration of the five elements cited by the Commenter (from the 1983 Bennett Memorandum), the items requested by Tennessee in Rule 1200-2-20-.07(2) do touch on the elements identified by EPA in the 1983 Bennett Memorandum. 4 While the Tennessee rule does not include the precise language from EPA's Guidance Memoranda, information consistent with the criteria EPA identified in the 1983 Bennett Memorandum are available to the State because such information must be submitted by sources as part of the excess emissions reports required by Tennessee's rule. In the absence of information indicating that Tennessee has inappropriately excused excess emissions as violations, and/or sources utilizing affirmative defenses to enforcement actions that are inconsistent with EPA's Guidance, EPA does not agree that today's rulemaking and the maintenance emissions analysis is undermined by the above-cited language in the Tennessee SIP. While EPA believes that the Tennessee rules could be more clearly drafted, there is no information demonstrating that Tennessee interprets its rules in a way that is inconsistent with the CAA and thus EPA does not believe that the rules would undermine the maintenance demonstration submitted by the State.

The Commenter's expressed concern focuses on the language in Rule 1200-3-5-.02(1) that states, “due allowance may be made for visible emissions in excess of that permitted in this chapter which are necessary or unavoidable due to routine startup and shutdown conditions.” As an initial matter, EPA notes that the “due allowance” language of Rule 1200-3-5-.02(1) cited above is preceded by the phrase, “Consistent with the requirements of Chapter 1200-3-20.” As discussed above, Tennessee's November 18, 2010, letter to EPA affirms that the State considers all excess emissions events to be violations and that no provision in Chapter 20 prohibits the Technical Secretary from taking enforcement action for excess emissions, including excess emissions resulting from SSM events. The Commenter states that “due allowance” is not defined, and therefore appears to believe that this provision results in an automatic exemption from compliance with underlying emission limits. While EPA agrees that the meaning of the language in Rule 1200-3-5-.02(1) is not clear based solely on the plain text, the Commenter has pointed to no evidence that the State has in fact interpreted this language to excuse sources from complying with emission limits during periods of startup and shutdown and EPA is not aware that the State has done so.

EPA notes that visible emissions are generally associated with particulate mass emissions, not ozone. In that context, however, the Commenter explains that nitrogen dioxide (NO 2 ), one of the components of visible emissions, is also a precursor for ground-level ozone. As noted above, the Commenter has not provided any evidence that the State has interpreted this provision in a manner that would undermine the 1997 ozone NAAQS maintenance plan and EPA does not have information indicating that Tennessee has acted to “excuse” such emissions under this provision. Furthermore, even if Tennessee were to interpret the provision in such a manner, there is no evidence that it might have a sufficient impact on emissions of NO 2 (or any other pollutant) that could impact ozone maintenance in the Knoxville Area. 5 Therefore, EPA has no reason to conclude that this provision will have an adverse effect on future maintenance.

Rule 1200-3-20-.06 requires advance notice of scheduled maintenance to the Technical Secretary. The Commenter appears to suggest that the above-referenced rule is vague because it is not clear whether giving advanced notice of maintenance is an excuse for excess emissions. EPA disagrees. This rule is simply a notification requirement and in the absence of regulatory language providing that such notification would exempt a source from compliance, EPA sees no support for the Commenter's concern. EPA supports the notification requirements—and notes that the more notifications that are required by the rules, the more transparency there is with regard to excess emissions. These types of notifications may support citizen and other enforcement of the SIP under the Act because without the notifications, citizens and others may not always have knowledge about the excess emissions. Therefore, EPA rejects the Commenter's contention, and concludes that this provision will have no adverse impact on continued maintenance after the Area is redesignated.

The Commenter asserts that this rule includes exceptions for required notifications for excess emissions and that it should be revised to eliminate the exceptions and require reporting for all excess emissions. The rule begins by stating that, “[w]hen any emission source, air pollution control equipment, or related facility breaks down in such a manner as to cause the emission of air contaminants in excess of the applicable emissions standards contained in these regulations, or of sufficient duration to cause damage to property or public health, the person responsible for such equipment shall promptly notify the Technical Secretary of such failure or breakdown and provide a statement giving all pertinent facts, including the estimated duration of the breakdown.” The rule also includes some limited exceptions to the notice provision, such as, “[v]iolations of the visible emission standard which occur for less than 20 minutes in one day [* * *] need not be reported.” Further exceptions are also identified for certain emissions in attainment or unclassifiable areas. While the rule does provide for exceptions to certain notifications of malfunctions, EPA notes that the excuse from notification is not an excuse from compliance with the applicable emission limit. Thus, these notification exceptions do not undermine the current emissions inventories and projections. EPA notes that the rule cited above is one of general applicability and many times, individual permit conditions may require additional reporting. This is precisely the case with the largest NO X emitter in the Area—TVA Bull Run (which must comply with the CAA title IV reporting requirements). While EPA believes it is possible that the rule could be clarified or improved; EPA does not agree that the rule undermines the maintenance plan for the 1997 8-hour ozone standard for the Knoxville Area or requires revision prior to the Area's final redesignation.

With respect to Knox County SIP regulations, the Commenter concedes that no provision “overtly creates excuses for excess emissions,” but suggests some changes that the Commenter believes would improve the clarity of the regulations. While EPA agrees that there is language in the Knox County regulations that could be clarified, the Commenter has provided no support for the proposition that these regulations would undermine the ability of the Knoxville Area to maintain the 1997 ozone NAAQS in accordance with the submitted maintenance plan. In fact, the Commenter appears to admit such by recognizing that the rules do not excuse compliance for periods of excess emissions. EPA notes the following with regard to the specific Knox County regulations identified by the Commenter. With regard to the notification elements from Knox Co Regulation 34.1(A) and (C), EPA supports their requirement for notification of excess emissions. Knox County Rules 34.1(A) and (C) require advance notice of scheduled maintenance to the Director and notifications regarding facility breakdowns that cause violations, but they provide no exemption from standards. As set forth above, EPA believes that there is no basis for interpreting notice provisions as providing relief from compliance with emissions limitations in the absence—as is the case here—of any specific regulatory language providing such relief. Furthermore, EPA has no information indicating that Knox County has interpreted this regulation such that the notification was construed as an exemption. In fact, as was explained earlier, Knox County sent EPA a letter dated November 22, 2010, affirming that no decision by Knox County limits EPA or citizen authority to take enforcement action for violations of the CAA and that nothing in the County's rules shall be construed to allow an air contaminant source to violate the ambient air quality standards nor limit the authority of the Director and/or board to institute actions. The other Knox County rules cited by Commenter fall into the same category—the rules themselves contain no language suggesting that there is any automatic or blanket exemption for excess emission.

In terms of the Commenter's overall stated concern, the record and EPA's proposal provide further supporting information (75 FR 62026) regarding the attainment and projected emission inventories. Specifically, in EPA's proposed approval of the redesignation and the associated maintenance plan, EPA explained its rationale for the approval of the maintenance plan and redesignation request based on the criteria required by the CAA, the implementing regulations, and EPA's longstanding guidance for redesignating areas from nonattainment to attainment. EPA evaluated the emissions reductions in association with the maintenance plan and fully considered whether it was reasonable to believe that these reductions are “permanent and enforceable” measures to support continued maintenance through the initial maintenance period. 6 The base year or “attainment level” emissions for the Knoxville Area as identified in the State's submission and EPA's proposed approval are 135.19 tpd for NO X and 112.28 tpd for VOC. Also, as provided in Tables 3 and 4 in the proposed rule, through the end of the maintenance period ( i.e., 2024), emission reductions realized through Federal, State and local measures are projected to result in emission levels of 79.08 tpd for NO X and 85.11 tpd for VOC. This indicates a 41.5 percent reduction in NO X and a 24.2 percent reduction in VOC for the Knoxville Area beyond the levels that brought the Area into attainment for the 1997 8-hour ozone standards. Thus, EPA believes that its analysis of Knoxville's ability to maintain the 1997 8-hour ozone NAAQS is conservative and supported by the evidence provided.

On the first page of the comment letter, the Commenter states that “[w]hile emissions of [NO X ] and [VOCs] have not caused NAAQS violations during the past few years at the monitoring locations, the required ‘permanent and enforceable’ measures that constrain emissions in the future cannot guarantee maintenance in light of the SSM provisions in the SIP.” In light of the Commenter's general reference to permanent and enforceable measures, the following provides general information regarding those measures in the SIP that support today's action.

The section of the proposed action entitled “Criteria (3)—The Air Quality Improvement in the Knoxville Area 1997 8-Hour Ozone NAAQS Nonattainment Area Is Due to Permanent and Enforceable Reductions in Emissions Resulting From Implementation of the SIP and Applicable Federal Air Pollution Control Regulations and Other Permanent and Enforceable Reductions,” on pages 62034-62035 of EPA's October 7, 2010, proposed rulemaking, there is an explanation of the permanent and enforceable emission reductions that are anticipated in the Knoxville Area over the maintenance period.

For the reasons provided above, EPA does not agree that there is any reasonable basis for concluding that the provisions cited by the Commenter will affect the Area's ability to maintain the 1997 ozone NAAQS over the maintenance period, nor that they in any way undercut the maintenance plan that the State has submitted and EPA intends to approve. However, EPA notes that if for any reason the Area does experience a violation of the 1997 8-hour ozone NAAQS after redesignation, the contingency measures contained in the maintenance plan associated with this redesignation would require Tennessee to implement measures to correct the violation. This accords with Congress's judgment, as reflected in the CAA, that even an approved maintenance plan could not guarantee that a violation might not occur after redesignation. Congress thus required in section 175A for contingency measures to, at a minimum, help correct such violations. See the discussion of contingency measures in Greenbaum v. EPA, 370 F.3d 527 (6th Cir. 2004).

Moreover, as is discussed in the proposal, while a violation of the NAAQS is the ultimate trigger for implementation of contingency measures to correct the violation, other contingency measures contained in the maintenance plan for Knoxville provide for early action to prevent violation. For example, the maintenance plan includes a contingency measure to launch an investigation if emissions projections indicate that a violation of the 3-year design value may be imminent. Another set of contingency measures are triggered where emissions projections exceed expectations by greater than 10 percent under the specified metrics. Thus, in addition to providing for prompt correction of any violations that may occur, the maintenance plan/contingency measures include provisions to account for potential future changes to emissions other than what was forecast. See the Contingency Measures Section of EPA's October 7, 2010, proposed rulemaking at 75 FR 62037, for further information.

Approval of the redesignation request changes the legal designation of Anderson, Blount, Jefferson, Knox, Loudon, and Sevier Counties in their entireties, and the portion of Cocke County that falls within the boundary of the Great Smoky Mountains National Park from nonattainment to attainment for the 1997 8-hour ozone NAAQS. EPA is modifying the regulatory table in 40 CFR 81.343 to reflect a designation of attainment for these full and partial counties. EPA is also approving, as a revision to the Tennessee SIP, Tennessee's plan for maintaining the 1997 8-hour ozone NAAQS in the Knoxville Area through 2024. The maintenance plan includes contingency measures to remedy possible future violations of the 1997 8-hour ozone NAAQS, and establishes NO X and VOC MVEBs for 2024 for the Knoxville Area. Additionally, this action approves the emissions inventory for the Knoxville Area pursuant to section 172(c)(3) of the CAA.

After evaluating Tennessee's redesignation request and considering the comments on the proposed rule, EPA is taking final action to approve the redesignation and change the legal designation of Anderson, Blount, Jefferson, Knox, Loudon, and Sevier Counties in their entireties, and the portion of Cocke County that falls within the boundary of the Great Smoky Mountains National Park from nonattainment to attainment for the 1997 8-hour ozone NAAQS. Through this action, EPA is also approving into the Tennessee SIP, the 1997 8-hour ozone maintenance plan for the Knoxville Area, which includes the new NO X MVEBs of 36.32 tpd and VOC MVEBs of 25.19 tpd for 2024. Additionally, EPA is approving the 2007 emissions inventory for the Knoxville Area pursuant to section 172(c)(3) of the CAA. In a previous action, EPA found the new Knoxville Area MVEBs adequate for the purposes of transportation conformity (75 FR 55977, September 15, 2010). Within 24 months from the effective date of EPA's adequacy finding for the MVEBs, the transportation partners are required to demonstrate conformity to the new NO X and VOC MVEBs pursuant to 40 CFR 93.104(e).

In accordance with 5 U.S.C. 553(d), EPA finds there is good cause for this action to become effective immediately upon publication. This is because a delayed effective date is unnecessary due to the nature of a redesignation to attainment, which relieves the Area from certain CAA requirements that would otherwise apply to it. The immediate effective date for this action is authorized under both 5 U.S.C. 553(d)(1), which provides that rulemaking actions may become effective less than 30 days after publication if the rule “grants or recognizes an exemption or relieves a restriction,” and section 553(d)(3), which allows an effective date less than 30 days after publication “as otherwise provided by the agency for good cause found and published with the rule.” The purpose of the 30-day waiting period prescribed in section 553(d) is to give affected parties a reasonable time to adjust their behavior and prepare before the final rule takes effect. Today's rule, however, does not create any new regulatory requirements such that affected parties would need time to prepare before the rule takes effect. Rather, today's rule relieves the State of various requirements for the Knoxville Area. For these reasons, EPA finds good cause under 5 U.S. C. 553(d)(3) for this action to become effective on the date of publication of this action.

Under the CAA, redesignation of an area to attainment and the accompanying approval of the maintenance plan under CAA section 107(d)(3)(E) are actions that affect the status of geographical area and do not impose any additional regulatory requirements on sources beyond those required by State law. A redesignation to attainment does not in and of itself impose any new requirements, but rather results in the application of requirements contained in the CAA for areas that have been redesignated to attainment. Moreover, the Administrator is required to approve a SIP submission that complies with the provisions of the Act 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 these reasons, these actions:

• Are 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);

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

• Are 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. );

• Do 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);

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

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

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

• Are 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,

• Do 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 final 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 May 9, 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 parts 52 and 81 are 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:

This is a summary of the Commission's Third Report and Order ( Third R&O ) in EB Docket No. 04-296, FCC 11-12, adopted on February 2, 2011, and released on February 3, 2011. The full text of this document is available for inspection and copying during normal business hours in the FCC Reference Center (Room CY-A257), 445 12th Street, SW., Washington, DC 20554. The complete text of this document also may be purchased from the Commission's copy contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room, CY-B402, Washington, DC 20554. The full text may also be downloaded at: http://www.fcc.gov.

1. The Third R&O amends the Commission's part 11 rules governing the EAS to require: all EAS Participants to participate in national EAS tests as scheduled by the Commission in consultation with the Federal Emergency Management Agency (FEMA); that the first national EAS test use the Emergency Alert Notification (EAN), the live event code for nationwide Presidential alerts; that the national test replace the monthly and weekly EAS tests in the month and week in which it is held; that the Commission's Public Safety and Homeland Security Bureau (Bureau) provide at least two months public notice prior to any national test of the EAS; EAS Participants to submit test-related data to the Bureau within 45 days following a national EAS test; and that test data received from EAS Participants be treated as presumptively confidential, but allow test data to be shared on a confidential basis with other Federal agencies and State governmental emergency management agencies that have confidentiality protection as least equal to that provided by the Freedom of Information Act (FOIA). The Third R&O also notes that the Commission will shortly be releasing a public notice establishing a voluntary electronic reporting system that EAS test participants may use as part of their participation in the national EAS test. The Third R&O also delegates authority to the Bureau to determine, in consultation with FEMA and with other EAS stakeholders, as appropriate, various administrative procedures for national tests, including test codes to be used and pre-test outreach.

2. This document contains modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. It has been submitted to the Office of Management and Budget (OMB) for review under section 3507(d) of the PRA. OMB, the general public, and other Federal agencies are invited to comment on the new or modified information collection requirements contained in this proceeding. In addition, the Commission notes that pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), it previously sought specific comment on how it might further reduce the information collection burden for small business concerns with fewer than 25 employees.

3. In this present document, the Commission has assessed the effects of the information collection associated with national testing of the EAS, and finds that because this information collection requests information that is readily available and easily accessible to all EAS Participants, and, further, that may be submitted electronically, none of the requirements in the collection will pose a substantial burden for businesses with fewer than 25 employees.

4. The Commission will send a copy of this Third R&O in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act (CRA), see 5 U.S.C. 801(a)(1)(A).

5. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated into the Second Further Notice of Proposed Rulemaking in EB Docket 04-296 ( Second FNPRM ). The Commission sought written comment on the proposals in the Second FNPRM, including comment on the IRFA. This Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA.

6. This Third R&O seeks to ensure that the Commission's EAS rules better protect the life and property of all Americans. To further serve this goal, this Third R&O adopts a rule to implement national testing of the EAS through use of a coded EAS message which will replace a required monthly test, and requiring logging and provision to the Commission of test-related diagnostic information within 45 days of the test.

7. Specifically, this Third R&O:

• Requires all EAS Participants to participate in national EAS tests as scheduled by the Commission in consultation with FEMA;

• Requires that the first national EAS test use the EAN, the live event code for nationwide Presidential alerts;

• Requires that the national test replace the monthly and weekly EAS tests in the month and week in which it is held;

• Requires the Bureau to provide at least two months' public notice prior to any national test of the EAS;

• Requires EAS Participants to submit test-related data to the Bureau within 45 days following a national EAS test;

• Requires that test data received from EAS Participants be treated as presumptively confidential, but allow test data to be shared on a confidential basis with other Federal agencies and State governmental emergency management agencies that have confidentiality protection at least equal to that provided by the FOIA;

• Notes that the Commission will shortly be releasing a public notice establishing a voluntary electronic reporting system that EAS test participants may use as part of their participation in the national EAS test; and

• Delegates authority to the Bureau to determine, in consultation with FEMA and with other EAS stakeholders, as appropriate, various administrative procedures for national tests, including test codes to be used and pre-test outreach.

8. There were no comments that specifically addressed the IRFA.

9. The RFA directs agencies to provide a description of, and, where feasible, an estimate of, the number of small entities that may be affected by the rules adopted herein. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A “small business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA).

10. Television Broadcasting. The SBA has developed a small business sized standard for television broadcasting, which consists of all such firms having $14 million or less in annual receipts. Business concerns included in this industry are those “primarily engaged in broadcasting images together with sound.” According to Commission staff review of BIA Publications, Inc. Master Access Television Analyzer Database, as of May 16, 2003, about 814 of the 1,220 commercial television stations in the United States had revenues of $12 million or less. We note, however, that, in assessing whether a business concern qualifies as small under the above definition, business (control) affiliations must be included. Our estimate, therefore, likely overstates the number of small entities that might be affected by our action, because the revenue figure on which it is based does not include or aggregate revenues from affiliated companies. There are also 2,127 low power television stations (LPTV). Given the nature of this service, we will presume that all LPTV licensees qualify as small entities under the SBA size standard.

11. Radio Stations. The revised rules and policies potentially will apply to all AM and commercial FM radio broadcasting licensees and potential licensees. The SBA defines a radio broadcasting station that has $7 million or less in annual receipts as a small business. A radio broadcasting station is an establishment primarily engaged in broadcasting aural programs by radio to the public. Included in this industry are commercial, religious, educational, and other radio stations. Radio broadcasting stations which primarily are engaged in radio broadcasting and which produce radio program materials are similarly included. However, radio stations that are separate establishments and are primarily engaged in producing radio program material are classified under another NAICS number. According to Commission staff review of BIA Publications, Inc. Master Access Radio Analyzer Database on March 31, 2005, about 10,840 (95 percent) of 11,410 commercial radio stations have revenue of $6 million or less. We note, however, that many radio stations are affiliated with much larger corporations having much higher revenue. Our estimate, therefore, likely overstates the number of small entities that might be affected by our action.

12. Wired Telecommunications Carriers. The 2007 North American Industry Classification System (NAICS) defines “Wired Telecommunications Carriers” as follows: “This industry comprises establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using wired telecommunications networks. Transmission facilities may be based on a single technology or a combination of technologies. Establishments in this industry use the wired telecommunications network facilities that they operate to provide a variety of services, such as wired telephony services, including VoIP services; wired (cable) audio and video programming distribution; and wired broadband Internet services. By exception, establishments providing satellite television distribution services using facilities and infrastructure that they operate are included in this industry.” The SBA has developed a small business size standard for wireline firms within the broad economic census category, “Wired Telecommunications Carriers.” Under this category, the SBA deems a wireline business to be small if it has 1,500 or fewer employees. Census Bureau data for 2002 show that there were 2,432 firms in this category that operated for the entire year. Of this total, 2,395 firms had employment of 999 or fewer employees, and 37 firms had employment of 1,000 employees or more. Thus, under this category and associated small business size standard, the majority of firms can be considered small.

13. Wired Telecommunications Carriers—Cable and Other Program Distribution. This category includes, among others, cable operators, direct broadcast satellite (DBS) services, home satellite dish (HSD) services, satellite master antenna television (SMATV) systems, and open video systems (OVS). The data we have available as a basis for estimating the number of such entities were gathered under a superseded SBA small business size standard formerly titled Cable and Other Program Distribution. The former Cable and Other Program Distribution category is now included in the category of Wired Telecommunications Carriers, the majority of which, as discussed above, can be considered small. According to Census Bureau data for 2002, there were a total of 1,191 firms in this previous category that operated for the entire year. Of this total, 1,087 firms had annual receipts of under $10 million, and 43 firms had receipts of $10 million or more but less than $25 million. Thus, we believe that a substantial number of entities included in the former Cable and Other Program Distribution category may have been categorized as small entities under the now superseded SBA small business size standard for Cable and Other Program Distribution. With respect to OVS, the Commission has approved approximately 120 OVS certifications with some OVS operators now providing service. Broadband service providers (BSPs) are currently the only significant holders of OVS certifications or local OVS franchises, even though OVS is one of four statutorily-recognized options for local exchange carriers (LECs) to offer video programming services. As of June 2006, BSPs served approximately 1.4 million subscribers, representing 1.46 percent of all MVPD households. Among BSPs, however, those operating under the OVS framework are in the minority. The Commission does not have financial information regarding the entities authorized to provide OVS, some of which may not yet be operational. We thus believe that at least some of the OVS operators may qualify as small entities.

14. Cable System Operators (Rate Regulation Standard). The Commission has developed its own small business size standard for cable system operators, for purposes of rate regulation. Under the Commission's rules, a “small cable company” is one serving 400,000 or fewer subscribers nationwide. We have estimated that there were 1,065 cable operators who qualified as small cable system operators at the end of 2005. Since then, some of those companies may have grown to serve over 400,000 subscribers, and others may have been involved in transactions that caused them to be combined with other cable operators. Consequently, the Commission estimates that there are now fewer than 1,065 small entity cable system operators that may be affected by the rules and policies proposed herein.

15. Cable System Operators (Telecom Act Standard). The Communications Act of 1934, as amended, (“Act”) also contains a size standard for small cable system operators, which is “a cable operator that, directly or through an affiliate, serves in the aggregate fewer than 1 percent of all subscribers in the United States and is not affiliated with any entity or entities whose gross annual revenues in the aggregate exceed $250,000,000.” The Commission has determined that there are 67,700,000 subscribers in the United States. Therefore, an operator serving fewer than 677,000 subscribers shall be deemed a small operator, if its annual revenues, when combined with the total annual revenues of all its affiliates, do not exceed $250 million in the aggregate. Based on available data, the Commission estimates that the number of cable operators serving 677,000 subscribers or fewer, totals 1,065. The Commission neither requests nor collects information on whether cable system operators are affiliated with entities whose gross annual revenues exceed $250 million, and therefore are unable, at this time, to estimate more accurately the number of cable system operators that would qualify as small cable operators under the size standard contained in the Act.

16. Broadband Radio Service (FCC Auction Standard). The established rules apply to Broadband Radio Service (“BRS,” formerly known as Multipoint Distribution Systems, or “MDS”) operated as part of a wireless cable system. The Commission has defined “small entity” for purposes of the auction of BRS frequencies as an entity that, together with its affiliates, has average gross annual revenues that are not more than $40 million for the preceding three calendar years. This definition of small entity in the context of MDS auctions has been approved by the SBA. The Commission completed its MDS auction in March 1996 for authorizations in 493 basic trading areas. Of 67 winning bidders, 61 qualified as small entities. At this time, we estimate that of the 61 small business MDS auction winners, 48 remain small business licensees.

17. Wireless Telecommunications Carrier (except satellite). BRS also includes licensees of stations authorized prior to the auction. As noted above, the SBA has developed a definition of small entities for pay television services, Cable and Other Subscription Programming, which includes all such companies generating $15 million or less in annual receipts. This definition includes BRS and thus applies to BRS licensees that did not participate in the MDS auction. Information available to us indicates that there are approximately 392 incumbent BRS licensees that do not generate revenue in excess of $11 million annually. Therefore, we estimate that there are at least 440 (392 pre-auction plus 48 auction licensees) small BRS providers as defined by the SBA and the Commission's auction rules which may be affected by the rules adopted herein. In addition, limited preliminary census data for 2002 indicate that the total number of cable and other program distribution companies increased approximately 46 percent from 1997 to 2002.

18. Educational Broadband Service. The proposed rules would also apply to Educational Broadband Service (“EBS,” formerly known as Instructional Television Fixed Service or “ITFS”) facilities operated as part of a wireless cable system. The SBA definition of small entities for pay television services, Cable and Other Subscription Programming also appears to apply to EBS. There are presently 2,032 EBS licensees. All but 100 of these licenses are held by educational institutions. Educational institutions are included in the definition of a small business. However, we do not collect annual revenue data for EBS licensees, and are not able to ascertain how many of the 100 non-educational licensees would be categorized as small under the SBA definition. Thus, we tentatively conclude that at least 1,932 are small businesses and may be affected by the proposed rules.

19. Incumbent Local Exchange Carriers (LECs). We have included small incumbent LECs in this present IRFA analysis. As noted above, a “small business” under the RFA is one that, inter alia, meets the pertinent small business size standard ( e.g., a telephone communications business having 1,500 or fewer employees), and “is not dominant in its field of operation.” The SBA's Office of Advocacy contends that, for RFA purposes, small incumbent LECs are not dominant in their field of operation because any such dominance is not “national” in scope. We have therefore included small incumbent local exchange carriers in this RFA analysis, although we emphasize that this RFA action has no effect on Commission analyses and determinations in other, non-RFA contexts. Neither the Commission nor the SBA has developed a small business size standard specifically for incumbent local exchange services. The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 1,303 carriers have reported that they are engaged in the provision of incumbent local exchange services. Of these 1,303 carriers, an estimated 1,020 have 1,500 or fewer employees and 283 have more than 1,500 employees. Consequently, the Commission estimates that most providers of incumbent local exchange service are small businesses that may be affected by our proposed rules.

20. Competitive (LECs), Competitive Access Providers (CAPs), “Shared-Tenant Service Providers,” and “Other Local Service Providers.” Neither the Commission nor the SBA has developed a small business size standard specifically for these service providers. The appropriate size standard under SBA rules is for the category Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. According to Commission data, 769 carriers have reported that they are engaged in the provision of either competitive access provider services or competitive local exchange carrier services. Of these 769 carriers, an estimated 676 have 1,500 or fewer employees and 93 have more than 1,500 employees. In addition, 12 carriers have reported that they are “Shared-Tenant Service Providers,” and all 12 are estimated to have 1.500 or fewer employees. In addition, 39 carriers have reported that they are “Other Local Service Providers.” Of the 39, an estimated 38 have 1,500 or fewer employees and one has more than 1,500 employees. Consequently, the Commission estimates that most providers of competitive local exchange service, competitive access providers, “Shared-Tenant Service Providers,” and “Other Local Service Providers” are small entities that may be affected by our proposed rules.

21. Satellite Telecommunications. The Commission has not developed a small business size standard specifically for providers of satellite service. The appropriate size standard under SBA rules is for Satellite Telecommunications. Under that category, such a business is small if it has $15 million or less in average annual receipts. Under the category of Satellite Telecommunications, Census Bureau data for 1997 show that there were a total of 324 firms that operated for the entire year. Of this total, 273 firms had annual receipts of under $10 million, and an additional twenty-four firms had receipts of $10 million to $24,999,999. Thus, the majority of Satellite Telecommunications firms can be considered small.

22. All Other Telecommunications. This category includes “establishments primarily engaged in * * * providing satellite terminal stations and associated facilities operationally connected with one or more terrestrial communications systems and capable of transmitting telecommunications to or receiving telecommunications from satellite systems.” Under that category, which is defined by the SBA, such a business is small if it has $25 million or less in average annual receipts. Of this total, 424 firms had annual receipts of $5 million to $9,999,999 and an additional 6 firms had annual receipts of $10 million to $24,999,990. Thus, under this second size standard, the majority of firms can be considered small.

23. This Third R&O requires that EAS Participants record and submit to the Commission the following test-related diagnostic information for each alert received from each message source monitored at the time of the national test: (1) Whether they received the alert message during the designated test; (2) whether they retransmitted the alert; and (3) if they were not able to receive and/or transmit the alert, their `best effort' diagnostic analysis regarding the cause or causes for such failure. It also requires EAS Participants to provide us with a description of their station identification and level of designation (PEP, LP-1, etc. ); the date/time of receipt of the EAN message by all stations; the date/time of PEP station acknowledgement of receipt of the EAN message to FOC; the date/time of initiation of actual broadcast of the Presidential message; the date/time of receipt of the EAT message by all stations; who they were monitoring at the time of the test, and the make and model number of the EAS equipment that they utilized. These requirements are intended to advance our public safety mission and enhance the performance of the EAS while reducing regulatory burdens wherever possible.

24. The RFA requires an agency to describe any significant alternatives that it has considered in developing its approach, which may include the following four alternatives (among others): “(1) the establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities; (3) the use of performance rather than design standards; and (4) an exemption from coverage of the rule, or any part thereof, for such small entities.”

25. The rules are designed to minimally impact all EAS participants, including small entities, while at the same time protecting the lives and property of all Americans, which confers a direct benefit on small entities. The Second FNPRM sought comment on how the Commission may better protect the lives and property of Americans. In commenting on this goal, commenters were invited to propose steps that the Commission may take to further minimize any significant economic impact on small entities. When considering proposals made by other parties, commenters were invited to propose significant alternatives that serve the goals of these proposals.

26. No commenters disputed the proposed requirement that all EAS Participants to participate in national EAS tests as scheduled by the Commission in consultation with FEMA. While some commenters opposed a requirement that the first national EAS test use the EAN, the live event code for nationwide Presidential alerts, there is at present no other way to test the entire system for propagation of a national-level EAS alert. No commenter opposed the requirement that the national test replace the monthly and weekly EAS tests in the month and week in which it is held and this requirement in fact serves to minimize burdens on all participants be relieving them of certain testing obligations. While some commenters sought more than two months notice, the Order requires the Bureau to provide at least two months' public notice prior to any national test of the EAS. The impact on small entities will be a factor considered by the Bureau in making its determination of notice period.

27. The new rule requires EAS Participants to submit test-related data to the Bureau within 45 days following a national EAS test. This was an extension of the 30 days initially proposed in the Second FNPRM and will minimize the burden on all participants. A number of commenters requested the ability to submit the required test data electronically and this Third R&O provides for this alternative method of data submission, also lessening the economic impact on all entities. The requirement that test data received from EAS Participants be treated as presumptively confidential, but allowing test data to be shared on a confidential basis with other Federal agencies and State governmental emergency management agencies that have confidentiality protection at least equal to that provided by the Freedom of Information Act (FOIA), has no economic impact on small entities. In delegating authority to the Bureau to determine, in consultation with FEMA and with other EAS stakeholders, as appropriate, various administrative procedures for national tests, including test codes to be used and pre-test outreach, the Commission has instructed the Bureau to factor in the needs of all stakeholders, including small business entities.

28. Report to Congress: The Commission will send a copy of the Third R&O including this FRFA, in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act. In addition, the Commission will send a copy of the Third R&O , including this FRFA, to the Chief Counsel for Advocacy of the SBA. A copy of the Third R&O and FRFA (or summaries thereof) will also be published in the Federal Register .

29. Accordingly, it is ordered that pursuant to sections 1, 2, 4(i), 4(o), 301, 303(r), 303(v), 307, 309, 335, 403, 624(g),706 and 715 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i) and (o), 301, 303(r), 303(v), 307, 309, 335, 403, 544(g), 606, and 615, this Third Report and Order is adopted.

30. It is further ordered that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Third Report and Order, including the Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 11 as follows:

The fishery for coastal migratory pelagic fish (king mackerel, Spanish mackerel, cero, cobia, little tunny, and, in the Gulf of Mexico only, dolphin and 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 (Magnuson-Stevens Act) by regulations at 50 CFR part 622.

On April 27, 2000, NMFS implemented the final rule (65 FR 16336, March 28, 2000) that divided the Florida west coast subzone of the Gulf of Mexico eastern zone into northern and southern subzones, and established their separate quotas. The king mackerel quota for the hook-and-line component of the commercial sector in the southern Florida west coast subzone is 520,312 lb (236,010 kg) (50 CFR 622.42(c)(1)(i)(A)( 2 )( i )).

In accordance with 50 CFR 622.44(a)(2)(ii)(B)( 2 ), from the date that 75 percent of the southern Florida west coast subzone's hook-and-line gear quota has been harvested until a closure of the subzone's hook-and-line component has been effected or the fishing year ends, king mackerel in or from the EEZ may be possessed on board or landed from a permitted vessel in amounts not exceeding 500 lb (227 kg) per day.

NMFS has determined that 75 percent of the quota for the hook-and-line component of the commercial sector for Gulf group king mackerel from the southern Florida west coast subzone has been reached. Accordingly, a 500-lb (227-kg) trip limit applies to vessels in the hook-and-line component of the commercial sector for king mackerel in or from the EEZ in the southern Florida west coast subzone effective 12:01 a.m., local time, March 8, 2011. The 500-lb (227-kg) trip limit will remain in effect until the commercial sector closes or until the end of the current fishing year (June 30, 2011), whichever occurs first.

The Florida west coast subzone is that part of the eastern zone located south and west of 25°20.4′ N. lat. (a line directly east from the Miami-Dade/Monroe County, FL boundary) along the west coast of Florida to 87°31′06′ W. long. (a line directly south from the Alabama/Florida boundary). The Florida west coast subzone is further divided into northern and southern subzones. From November 1 through March 31, the southern subzone is designated as the area extending south and west from 25°20.4′ N. lat. to 26°19.8′ N. lat. (a line directly west from the Lee/Collier County, Florida, boundary), i.e., the area off Collier and Monroe Counties. Beginning April 1, the southern subzone is reduced to the area off Collier County, Florida, between 25°48′ N. lat. and 26°19.8′ N. lat.

This action responds to the best available information recently obtained from the fisheries. The Assistant Administrator for Fisheries, NOAA (AA), finds that the need to immediately implement this trip limit reduction for the king mackerel hook-and-line component of the commercial sector in the southern Florida west coast subzone constitutes good cause to waive the requirements 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 prior notice and opportunity for public comment is unnecessary and contrary to the public interest. Such procedures would be unnecessary because the rule implementing the quota and the associated requirement for closure of the commercial harvest when the quota is reached or projected to be reached has already been subject to notice and comment, and all that remains is to notify the public of the closure.

Allowing prior notice and opportunity for public comment on this action would be contrary to the public interest because any delay in the trip limit reduction of the commercial harvest could result in the commercial quota being exceeded. There is a need to immediately implement this action to protect the king mackerel resource because the capacity of the fishing fleet allows for rapid harvest of the quota. Prior notice and opportunity for public comment would require time and would 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 the 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.

Background

On December 30, 2010, a final rule was published to implement Amendment 17B (75 FR 82280). That final rule established annual catch limits and accountability measures for nine snapper-grouper species in the South Atlantic region. One of these accountability measures prohibits the possession of deep-water snapper-grouper species in or from the South Atlantic exclusive economic zone in depths greater than 240 ft (73 m). After the regulations implementing Amendment 17B became effective on January 31, 2011, it was determined that two of the waypoints defining the 240-ft (73-m) depth contour were in State waters.

As published, the final rule contains errors in a table of coordinates in the regulatory text. In § 622.35, paragraph (o) contains a table of coordinates for the depth closure implemented in Amendment 17B for deep-water snapper-grouper. Within this table, an incorrect longitudinal coordinate was implemented for point K, and the coordinates for points O and U are within State boundaries. Through this correcting amendment, the longitudinal coordinate for point K will be corrected and the coordinates for points O and U, as published in the final rule implementing Amendment 17B, will be removed and replaced with new boundary coordinates to reflect the State/Federal boundary. These new coordinates and State/Federal boundary lines will be included in the revised depth closure table of coordinates. All other information remains unchanged and will not be repeated in this correction.

Pursuant to 5 U.S.C. 553(b)(B), the Assistant Administrator for Fisheries, NOAA, finds good cause to waive prior notice and opportunity for additional public comment for this action because any delay of this action would be unnecessary and contrary to the public interest. This correcting amendment includes minor, non-substantive changes to regulatory text to clarify the boundaries of the snapper-grouper depth closure contained in the final rule for Amendment 17B to the FMP. These amendments do not modify, add or remove any rights, privileges or obligations of any individuals. Rather, one of the longitudinal coordinates published in the final rule was incorrect and two of the coordinates published in the final rule occurred in State waters. The new coordinates and State/Federal boundary lines published in this correcting amendment will alleviate unnecessary confusion for South Atlantic snapper-grouper fishermen. There will be no adverse affect on fishing stocks as a result of this amendment. However, by immediately implementing this correcting amendment, fishermen will better be able to plan their fishing trips by incorporating the correct boundary coordinates into their business plans. Because this is a minor technical amendment that will benefit the affected entities, public comment is both unnecessary and contrary to the public interest.

For the reasons stated above, the Assistant Administrator also finds good cause, pursuant to 5 U.S.C. 553(d), to waive the 30-day delay in effective date for this correction amendment. These revisions are minor, non-substantive changes and do not change operating practices in the South Atlantic snapper-grouper fishery. The immediate publication of the correct coordinates will provide fishermen the information they need to plan their fishing trips and alleviate confusion.

Because prior notice and opportunity for public comment are not required for this rule by 5 U.S.C. 553, or any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., are inapplicable.

This correcting amendment is exempt from review under Executive Order 12866.

Accordingly, 50 CFR part 622 is corrected by making the following correcting amendments:

NMFS manages the groundfish fishery in the BSAI according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (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.

In accordance with § 679.22(a)(7)(i)(C), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that 113 metric tons of Pacific cod have been caught by catcher vessels less than 60 ft LOA using jig or hook-and-line gear in the Bogoslof exemption area described at § 679.22(a)(7)(i)(C)( 1 ). Consequently, the Regional Administrator is prohibiting directed fishing for Pacific cod by catcher vessels less than 60 ft (18.3 m) LOA using jig or hook-and-line gear in the Bogoslof Pacific cod exemption area.

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 closure of Pacific cod by catcher vessels less than 60 ft LOA using jig or hook-and-line gear in the Bogoslof Pacific cod exemption area. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of March 2, 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 § 679.22 and is exempt from review under Executive Order 12866.

NMFS manages the groundfish fishery in the Bering Sea and Aleutian Islands (BSAI) exclusive economic zone according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council (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.

In the Aleutian Islands subarea, the portion of the 2011 pollock total allowable catch (TAC) allocated to the Aleut Corporation's directed fishing allowance (DFA) is 15,500 metric tons (mt) and the Community Development Quota (CDQ) is 1,900 mt as established by the final 2011 and 2012 harvest specifications for groundfish in the BSAI (76 FR 11139, March 1, 2011).

As of March 1, 2011, the Administrator, Alaska Region, NMFS, (Regional Administrator) has determined that 12,500 mt of Aleut Corporation's DFA and 1,900 mt of pollock CDQ in the Aleutian Islands subarea will not be harvested. Therefore, in accordance with § 679.20(a)(5)(iii)(B)( 4 ), NMFS reallocates 12,500 mt of Aleut Corporation's DFA and 1,900 mt of pollock CDQ from the Aleutian Islands subarea to the 2011 Bering Sea subarea allocations. The 1,900 mt of pollock CDQ is added to the 2011 Bering Sea CDQ DFA. The remaining 12,500 mt of pollock is apportioned to the Bering Sea subarea by AFA sector. The AFA Inshore sector receives 6,250 mt (50 percent), the AFA catcher/processor sector receives 5,000 mt (40 percent), and the AFA mothership sector receives 1,250 mt (10 percent). The 2011 pollock incidental catch allowance remains at 33,804 mt. As a result, the harvest specifications for pollock in the Aleutian Islands subarea included in the final harvest 2011 and 2012 specifications for groundfish in the BSAI (76 FR 11139, March 1, 2011) are revised as follows. For the Aleutian Islands subarea, 3,000 mt to Aleut Corporation's DFA and 0 mt to CDQ pollock. Furthermore, pursuant to § 679.20(a)(5), Table 3 of the final 2011 and 2012 harvest specifications for groundfish in the BSAI (76 FR 11139, March 1, 2011) is revised to make 2011 pollock allocations consistent with this reallocation. This reallocation results in proportional adjustments to the 2011 Aleut Corporation and CDQ pollock allocations established at § 679.20(a)(5).

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 reallocation of AI pollock. Since the pollock fishery is currently open, it is important to immediately inform the industry as to the final Bering Sea subarea pollock allocations. Immediate notification is necessary to allow for the orderly conduct and efficient operation of this fishery; allow the industry to plan for the fishing season and avoid potential disruption to the fishing fleet as well as processors; and provide opportunity to harvest increased seasonal pollock allocations while value is optimum. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of March 2, 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.