I. Background A. Public Participation

Interested persons are invited to comment on this notice by submitting written data, views, or arguments using any of the methods identified in the ADDRESSES section.

Instructions: All submissions must include the agency name and docket number for this notice. All comments received will be posted without change to http://www.regulations.gov.

Comments that include trade secrets information, confidential commercial or financial information, Sensitive Security Information (SSI), Protected Critical Infrastructure Information (PCII) or Chemical-terrorism Vulnerability Information (CVI) should not be submitted to the public docket. Please submit such comments separately from other comments on this notice. Comments containing trade secrets, confidential commercial or financial information, SSI, PCII, or CVI should be appropriately marked as containing such information and submitted by mail to the individual listed in the FOR FURTHER INFORMATION CONTACT section.

Docket: For access to the docket to read background documents or comments received, go to http://www.regulations.gov.

On January 18, 2011, the President issued Executive Order 13563, “Improving Regulation and Regulatory Review” (76 FR 3821) to ensure that Federal regulations seek more affordable, less intrusive means to achieve policy goals and that agencies give careful consideration to the benefits and costs of those regulations. The Executive Order reaffirms and builds upon governing principles of contemporary regulatory review, including Executive Order 12866, “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). To that end, Executive Order 13563 requires, among other things, that:

• Agencies propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs; and that agencies tailor regulations to impose the least burden on society, consistent with achieving the regulatory objectives, taking into account, among other things, and to the extent practicable, the costs of cumulative regulations; and that agencies select, in choosing among alternative regulatory approaches, those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity).

• The regulatory process encourages public participation and an open exchange of views, with an opportunity for the public to comment.

• Agencies coordinate, simplify, and harmonize regulations to reduce costs and promote certainty for businesses and the public.

• Agencies consider low-cost approaches that reduce burdens and maintain flexibility.

• Regulations be guided by objective scientific evidence.

Additionally, the Executive Order directs agencies to consider how best to promote retrospective analyses of existing rules. Specifically, each agency must develop a preliminary plan “under which the agency will periodically review its existing significant regulations to determine whether any such regulations should be modified, streamlined, expanded, or repealed so as to make the agency's regulatory program more effective or less burdensome in achieving the regulatory objectives.”

DHS's mission is to ensure a homeland that is safe, secure, and resilient against terrorism and other hazards. The Department carries out its mission through the Office of the Secretary and 28 components, including the following seven operational components: U.S. Citizenship and Immigration Services, U.S. Coast Guard, U.S. Customs and Border Protection, Federal Emergency Management Agency, U.S. Immigration and Customs Enforcement, U.S. Secret Service, and Transportation Security Administration.

Our mission gives us five main areas of responsibility: (1) Prevent terrorism and enhance security; (2) secure and manage our borders; (3) enforce and administer our immigration laws; (4) safeguard and secure cyberspace; and (5) ensure resilience to disasters. To further these areas, DHS has responsibility for a broad range of regulations. For example, to secure and manage our borders, DHS regulates people and goods entering and exiting the United States. DHS, to combat terrorism, regulates aviation security, high-risk chemical facilities, and infrastructure protection. DHS also issues regulations to administer immigration and citizenship benefits as well as regulations covering maritime safety and environmental protection. Finally, DHS promulgates a wide range of regulations concerning disaster preparedness, response, and recovery.

As a first step in launching its retrospective review under Executive Order 13563, DHS is issuing this notice seeking public comment. To facilitate public dialogue and cross-communication on these matters, in addition to the standard regulatory channels, DHS is also seeking comment through IdeaScale. IdeaScale is a Web-based platform that allows users to actively share information and expertise in a collaborative manner. IdeaScale allows commenters to submit ideas, discuss and refine others' ideas, and vote on each others' ideas. For instructions on how to use IdeaScale, see the ADDRESSES section above. DHS encourages public commenters to engage in dialogue through IdeaScale.

As a participant of IdeaScale, commenters can engage in dialogue in seven ways: (1) View, search, and explore all content on the site (no log-in required); (2) Submit an original idea to a particular category (log-in required); (3) Submit a comment about an idea (log-in required); (4) Vote on an idea (log-in required); (5) Flag inappropriate ideas and comments, as being either SPAM/Inappropriate or Duplicate (log-in required); (6) Share ideas through a Twitter feed or on your Facebook page (log-in required for IdeaScale, as well as an active Facebook and/or Twitter account); (7) Tag an idea (participants can assign key words or terms to ideas to help describe/categorize the idea, thus allowing the idea to be found again by Web 2.0 browsing or searching).

Pursuant to the Executive Order, DHS is developing a preliminary plan for the periodic review of its existing significant regulations. DHS's goal is to create a systematic method for identifying those significant rules that are obsolete, unnecessary, unjustified, or simply no longer make sense. Although this review will focus on the elimination of significant rules that are no longer warranted, DHS will also consider strengthening, complementing, or modernizing rules where necessary or appropriate—including, as relevant, undertaking new rulemakings. The Department stresses that this review is for existing significant rules; the public should not use this process to submit comments on proposed rules.

Despite best efforts at the time a rule is promulgated, it is generally difficult to be certain of the consequences of a rule, including its costs and benefits, until it has been tested. Because knowledge about the full effects of a rule tends to be widely dispersed in society, members of the public are likely to have useful information and perspectives on the benefits and burdens of existing requirements and how regulatory obligations may be updated, streamlined, revised, or repealed to better achieve regulatory objectives, while minimizing regulatory burdens. Interested parties may also be well-positioned to identify those rules that are most in need of review and, thus, assist the Department in prioritizing and properly tailoring its retrospective review process. In short, engaging the public in an open, transparent process is a crucial first step in DHS's review of its existing significant regulations.

Below is a list of preliminary questions, the answers to which will assist in informing the Department's efforts to develop a preliminary plan for the retrospective analysis of its existing regulations and to identify those regulations that may benefit from a retrospective analysis. In addressing these questions, commenters should identify, with specificity, the regulation at issue, providing the Code of Federal Regulation (CFR) cite where available. DHS also requests that the commenter provide, in as much detail as possible, an explanation why a regulation should be modified, streamlined, expanded, or repealed, as well as specific suggestions of ways the Department can better achieve its regulatory objectives. DHS encourages interested parties to provide specific data that document the costs, burdens, and benefits of existing requirements. Comments that rehash debates over recently issued rules will be less useful.

Commenters might also address how DHS can best obtain and consider accurate, objective information and data about the costs, burdens, and benefits of existing regulations and whether there are existing sources of data that DHS can use to evaluate the post-promulgation effects of its regulations over time. Particularly where comments relate to a rule's costs or benefits, comments will be most useful if there are data and experience under the rule available to ascertain the rule's actual impact. For that reason, we encourage the public to emphasize those rules that have been in effect for a sufficient amount of time to warrant a fair evaluation.

The below nonexhaustive list is meant to assist in the formulation of comments and is not intended to restrict the issues that commenters may address:

(1) How can the Department best promote meaningful periodic reviews of its existing significant regulations, and how can it best identify those rules that might be modified, streamlined, expanded, or repealed?

(2) What factors should the agency consider in selecting and prioritizing rules for review?

(3) Are there regulations that simply make no sense or have become unnecessary, ineffective, or ill advised and, if so, what are they? Are there rules that can simply be repealed without impairing the Department's regulatory programs and, if so, what are they?

(4) Are there rules that have become outdated and, if so, how can they be modernized to accomplish their regulatory objectives better?

(5) Are there rules that are still necessary, but have not operated as well as expected such that a modified, stronger, or slightly different approach is justified?

(6) Does the Department currently collect information that it does not need or use effectively to achieve regulatory objectives?

(7) Are there regulations that are unnecessarily complicated or could be streamlined to achieve regulatory objectives in more efficient ways?

(8) Are there rules that have been overtaken by technological developments? Can new technologies be leveraged to modify, streamline, or do away with existing regulatory requirements?

(9) Are there any of the Department's regulations that are not tailored to impose the least burden on society, consistent with achieving the regulatory objectives?

(10) How can the Department best obtain and consider accurate, objective information and data about the costs, burdens, and benefits of existing regulations? Are there existing sources of data the Department can use to evaluate the post-promulgation effects of regulations over time?

(11) Are there regulations that are working well that can be expanded or used as a model to fill gaps in other DHS regulatory programs?

(12) Are there any regulations that create difficulty because of duplication, overlap, or inconsistency of requirements?

The Department notes that this notice is issued solely for information and program-planning purposes. Responses to this notice do not bind DHS to any further actions related to the response.

This administrative action is instituted pursuant to the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.” This action is governed by the provisions of sections 556 and 557 of title 5 of the United States Code and, therefore, is excluded from the requirements of Executive Order 12866.

The Regulatory Flexibility Act (5 U.S.C. 601-612) seeks to ensure that within the statutory authority of a program, the regulatory and informational requirements are tailored to the size and nature of small businesses. Interested persons are invited to present evidence at the hearing on the possible regulatory and informational impacts of the proposals on small businesses.

The amendments proposed herein have been reviewed under Executive Order 12988, Civil Justice Reform. They are not intended to have retroactive effect.

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

The hearing is called pursuant to the provisions of the Act and the applicable rules and supplemental rules of practice and procedure governing the formulation of marketing agreements and orders (7 CFR part 900).

The proposed amendments were recommended by the Board and initially submitted to USDA on September, 2010. Additional information was submitted in November 2010 at the request of USDA and a determination was subsequently made to schedule this matter for hearing.

The proposed amendments to the order recommended by the Board are summarized as follows:

1. Amend the definition of “handle” in § 930.10 of the order so handler acquisition of grower diversion certificates is not considered handling.

2. Amend the “marketing policy” provisions in § 930.50 of the order so grower-diverted cherries are not counted as production in the volume control formula.

3. Amend § 930.58 of the order so grower-diverted cherries are not treated as actual harvested cherries.

The Board works with USDA in administering the order. These proposals submitted by the Board have not received the approval of USDA. The proposed amendments are intended to improve the operation and administration of the order.

In addition to the proposed amendments to the order, AMS proposes to make any such changes as may be necessary to the order or administrative rules and regulations to conform to any amendment that may result from the hearing.

The public hearing is held for the purpose of: (i) Receiving evidence about the economic and marketing conditions which relate to the proposed amendments of the order; (ii) determining whether there is a need for the proposed amendments to the order; and (iii) determining whether the proposed amendments or appropriate modifications thereof will tend to effectuate the declared policy of the Act.

Testimony is invited at the hearing on all the proposals and recommendations contained in this notice, as well as any appropriate modifications or alternatives.

All persons wishing to submit written material as evidence at the hearing should be prepared to submit four copies of such material at the hearing. Four copies of prepared testimony for presentation at the hearing should also be made available. To the extent practicable, eight additional copies of evidentiary exhibits and testimony prepared as an exhibit should be made available to USDA representatives on the day of appearance at the hearing. Any requests for preparation of USDA data for this rulemaking hearing should be made at least 10 days prior to the beginning of the hearing.

From the time the notice of hearing is issued and until the issuance of a final decision in this proceeding, USDA employees involved in the decisional process are prohibited from discussing the merits of the hearing issues on an ex parte basis with any person having an interest in the proceeding. The prohibition applies to employees in the following organizational units: Office of the Secretary of Agriculture; Office of the Administrator, AMS; Office of the General Counsel, except any designated employee of the General Counsel assigned to represent the Board in this proceeding; and the Fruit and Vegetable Programs, AMS.

Procedural matters are not subject to the above prohibition and may be discussed at any time.

This rule is issued under the Mango Promotion, Research, and Consumer Information Order (Order) [7 CFR part 1206]. The Order is authorized by the Commodity Promotion, Research, and Information Act of 1996 (Act) [7 U.S.C. 7411-7425].

The Office of Management and Budget (OMB) has waived the review process required by Executive Order 12866 for this action.

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

Section 524 of the Act provides that the Act shall not affect or preempt any other State or Federal law authorizing promotion or research relating to an agricultural commodity.

Under the Act, a person subject to an order may file a petition with the U.S. Department of Agriculture (Department) stating that an order, any provision of an order, or any obligation imposed in connection with an order, is not established in accordance with the law, and requesting a modification of an order or an exemption from an order. Any petition filed challenging an order, any provision of an order, or any obligation imposed in connection with an order, shall be filed within two years after the effective date of an order, provision, or obligation subject to challenge in the petition. The petitioner will have the opportunity for a hearing on the petition. Thereafter, the Department will issue a ruling on the petition. The Act provides that the district court of the United States for any district in which the petitioner resides or conducts business shall have the jurisdiction to review a final ruling on the petition, if the petitioner files a complaint for that purpose not later than 20 days after the date of the entry of the Department's final ruling.

In accordance with the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), AMS has considered the economic impact of this rule on small entities that would be affected by this rule. The purpose of the RFA is to fit regulatory action to scale on businesses subject to such action, so that small businesses will not be disproportionately burdened.

The Small Business Administration defines small agricultural producers as those having annual receipts of no more than $750,000, and small agricultural service firms as those having annual receipts of no more than $7 million (13 CFR part 121). First handlers, importers, wholesalers, and retailers would be considered agricultural service firms. Currently, fewer than five first handlers and 193 importers are subject to assessment under the Order. The majority of producers would be considered small businesses. The majority of these first handlers and importers would be considered small businesses, while wholesalers and retailers would not.

First handlers and importers who market or import less than 500,000 pounds of mangos annually are exempt from the assessment. Mangos that are exported out of the United States are also exempt from assessment. In addition, domestic producers, foreign producers, wholesalers, and retailers are not subject to assessment under the Order, but such individuals are eligible to serve on the Board along with importers and first handlers.

Section 1206.30 (c) of the Order requires that the Board review the volume and geographical distribution of mango production and imports at least once every five years. If warranted, the Board will recommend to the Department that membership on the Board be altered to reflect any changes in the volume and geographical distribution of mango production and imports.

The Order currently provides for a Board of 20 members including eight importers, one first handler, two domestic producers, seven foreign producers, and two non-voting wholesalers and/or retailers. At its November 16, 2010 meeting, the Board reviewed the volume and geographic distribution of mango production and imports from 2006 through 2009. Based on U.S. Customs data, the volume of mango imports to the U.S. declined from 666,772,761 pounds in 2006 to 627,271,605 pounds in 2009. The Board's eight importer seats are allocated based on the volume of mangos imported into each of the four Districts defined in the Order. The current allocation is two seats for District I, three seats for District II, two seats for District III, and one seat for District IV. The percentage of the total mango import volume imported into District I remained at 25 percent from 2006 to 2009. Imports into District II grew from 35 percent of the total in 2006 to 41 percent in 2009. Imports into District III fell from 28 percent of the total in 2006 to 23 percent in 2009. Imports into District IV fell from 12 percent of the total in 2006 to 11 percent in 2009. Much of the domestic mango production was adversely affected by Hurricanes during the early 2000s. Accordingly, data provided by the Board shows that in 2006, no assessments were collected on domestic mangos, while in 2009 assessments were collected on 1,539,306 pounds of domestic mangos. After reviewing the data regarding mango imports and domestic production, the Board voted to recommend that no changes be made at this time to the number of importer, first handler, domestic producer, or foreign producer seats; or to the allocation of importer seats among the four districts.

At the same meeting, the board voted to request elimination of the wholesaler/retailer positions from the Order. These positions were included so that the board would include members with direct customer sales experience. The Board has made numerous attempts to nominate individuals to those positions; however, wholesalers and retailers are not interested in or do not have the time to serve on the Board. As a result, the two wholesaler/retailer positions have been vacant since 2008. These two positions do not represent assessment payers. If the wholesaler/retailer positions are eliminated, the Board would consist of a total of 18 members including eight importers, one first handler, two domestic producers, and seven foreign producers.

Nominations and appointments to the Board are conducted pursuant to sections 1206.31 and 1206.33 of the Order. Appointments to the Board are made by the Secretary from a slate of nominated candidates. Pursuant to section 1206.31 of the Order, candidates for the importer, first handler, and domestic producer positions are nominated by their peers. Nominations for the foreign producer positions are solicited from foreign mango producer organizations. The Board nominates the wholesaler/retailer members. The Order requires that two nominees be submitted for each vacant position.

In accordance with OMB regulation [5 CFR part 1320], which implements information collection requirements imposed by the Paperwork Reduction Act of 1995 [44 U.S.C. 3501 et seq. ], there are no new requirements contained in this rule. In fact a decrease of .33 hours in the information collection burden for the mango program is expected. The information collection requirements have been previously approved by OMB under OMB control number 0581-0093.

The Department has not identified any relevant Federal rules that duplicate, overlap, or conflict with this proposed rule.

The Order, which became effective November 3, 2004, is authorized under the Act and administered by the Board. The Order provides for a 20-member Board consisting of eight importers, one first handler, two domestic producers, seven foreign producers, and two non-voting wholesalers and/or retailers.

Under the Order, the Board administers a nationally coordinated program of promotion, research, and information designed to strengthen the position of mangos in the marketplace and to develop, maintain, and expand the demand for mangos in the United States. The program is financed by an assessment of 1/2 cent per pound on first handlers and importers who market or import 500,000 pounds or more of mangos annually. Under the Order, first handlers remit assessments directly to the Board, and assessments paid by importers are collected and remitted by the United States Customs Service.

Pursuant to section 1206.30(c) of the Order, at least once in each five-year period, the Board shall review the volume and geographical distribution of mango production and imports and, if warranted, make a recommendation to the Secretary to alter the Board's membership. On November 16, 2010, at its fall meeting, the Board voted to recommend that no changes be made to the importer, first handler, domestic producer, or foreign producer positions, but that the non-voting wholesaler/retailer positions be eliminated. If the wholesaler/retailer positions are eliminated, the Board's membership would be reduced from 20 to 18.

Accordingly, the proposed rule would delete the definition of retailer in section 1206.19 and wholesaler in section 1206.24 and references to wholesalers in sections 1206.31 and 1206.32.

A 30-day comment period is provided to allow interested persons to respond to this proposal. Thirty days is deemed appropriate so that the proposed amendments, if adopted, may be implemented before the Board's 2012 term of office, which begins on January 1, 2012. All written comments received in response to this rule by the date specified will be considered prior to finalizing this action.

For the reasons set forth in the preamble, 7 CFR part 1206 is proposed to be amended as follows:

The mission of the Small Business Administration is to maintain and strengthen the Nation's economy by enabling the establishment and viability of small businesses, and by assisting in economic recovery of communities after disasters. In carrying out this mission, SBA has developed a regulatory policy that is implemented primarily through several core program offices: Office of Capital Access, Office of Disaster Assistance, Office of Entrepreneurial Development, Office of Government Contracting and Business Development, Office of International Trade, and Office of Investment and Innovation. SBA's regulations are codified at Title 13 Code of Federal Regulations, Chapter I, and consist of Parts 100 through 147.

On January 18, 2011, the President issued Executive Order 13563, “Improving Regulation and Regulatory Review,” that requires Federal agencies to seek more affordable, less intrusive means to achieve policy goals, and to give careful consideration to the benefits and costs of their regulations. The Executive Order also requires agencies to review existing rules to remove outdated regulations that stifle job creation and make the U.S. economy less competitive. Agencies are directed to develop a preliminary plan under which they will periodically review existing regulations to determine which should be maintained, modified, strengthened, or withdrawn in order to increase their effectiveness and decrease the burdens of the agency's regulatory program.

In compliance with the executive order, SBA seeks help in designing the plan it will use for the periodic review of its existing regulations and an initial list of candidate rules for review. The Agency's goal is to create a systematic method for identifying those significant rules that are obsolete, unnecessary, unjustified, or counterproductive. The public is first asked to comment on how SBA should devise its preliminary plan, with a defined method and schedule, for identifying certain significant rules that may be obsolete, unnecessary, unjustified, excessively burdensome, or counterproductive. It would be helpful for comments to address how SBA could best evaluate and analyze regulations in order to expand on those that work and to modify, improve, or rescind those that do not. Comments might address how SBA can best obtain and consider accurate, objective information and data about the costs, burdens, and benefits of existing regulations and whether there are existing sources of data that SBA can use to evaluate the post-promulgation effects of regulations over time. SBA is particularly interested in the public's views about how well its current processes for reviewing regulations function and how those processes might be expanded or otherwise adapted to meet the objectives of Executive Order 13563. SBA is also interested in comments about factors that we should consider in setting priorities and selecting rules for review.

SBA intends for its preliminary plan to include an initial list of candidate rules to review. SBA solicits suggestions for specific rules that should be on the list. In suggesting rules for review, commenters might usefully address, among other things, how SBA can use the retrospective review process to achieve the following objectives: (1) Promote economic growth, innovation, competitiveness, and job creation; (2) eliminate outdated regulations; (3) lessen the burdens imposed on those directly or indirectly affected by our regulations, particularly small entities; (4) increase the benefits provided to the public by our regulations, and improve the cost-benefit balance of our regulations; (5) eliminate duplicative or overlapping regulations; (6) reduce paperwork by eliminating duplication, lessening frequency, allowing electronic submission, standardizing forms, exempting small entities, or other means; (7) eliminate conflicts and inconsistencies in SBA's regulations; (8) simplify or clarify language in regulations; (9) revise regulations to address changes in technology, economic conditions, or other factors; (10) determine if matters in an existing regulation could be better handled fully by trade organizations or participants without Federal regulations; (11) reduce burdens by incorporating industry consensus standards into regulations; (12) reconsider regulations that were based on scientific or other information that has been discredited or superseded; and (13) expand regulations that are insufficient to address their intended objective or obtain additional benefits.

Comments should focus on regulations that have demonstrated deficiencies. Comments that rehash debates over recently issued rules will be less useful. The public should focus on rule changes that will achieve a broad public impact, rather than an individual, personal or corporate benefit. Where feasible, comments should reference a specific regulation, by Code of Federal Regulations (CFR) citation, and provide SBA information on what needs fixing and why. Comments do not necessarily have to address how to fix the perceived problem, though such comments are welcome. Lastly, we also want to stress that this review is for existing rules; the public should not use this process to submit comments on proposed rules.

With these factors in mind, SBA is contemplating focusing its retrospective review on the rules that govern the following programs: Small Business Investment Companies (Part 107); Surety Bond Guarantee (Part 115); Business Loans (Part 120); Disaster Loans (Part 123); Government Contracting (Part 125); and HUBZone (Part 126).

SBA has just completed a comprehensive review of the regulations for the 8(a) Business Development/Small Disadvantaged Business program (Part 124) pursuant to section 610 of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. The final rule reflects an extensive public participation process, including a lengthy notice and comment period, several public hearings in diverse areas of the country, and consultations with various groups. See, 76 FR 8221 (Feb. 11, 2011). SBA is currently conducting a similar review of its size regulations (Part 121) and will be soliciting specific comments on those regulations as they are developed and published in the Federal Register . In light of these comprehensive reviews, pursuant to the requirements of section 610 of the Regulatory Flexibility Act, SBA does not intend to include these two sets of regulations in the retrospective review under Executive Order 13563.

Consistent with the Agency's commitment to public participation in the rulemaking process, SBA is issuing this Request for Information (RFI) to solicit views from the public on how best to design a plan to conduct its retrospective analysis of existing SBA rules, and identify those rules that should be included in the plan for possible modification, streamlining, expansion or repeal. While SBA promulgates rules in accordance with the law and to the best of its capability, it is difficult to be certain of the consequences of a rule, including its costs and benefits, until it has been tested. Therefore, SBA invites interested parties to submit data that documents the costs, burdens, and benefits of existing regulations. The Agency believes that members of the public are likely to have useful information and perspectives on the benefits and burdens of existing regulations, and can assist SBA in identifying and prioritizing those rules that are most in need of review.

SBA is accepting your comments from now through April 1, 2011. Although the Agency will not be able to respond to every individual comment, your input is valued and your ideas merit careful consideration. By late May or early June, you will have the opportunity to review SBA's retrospective review plan on our Open Government webpage, http://sba.gov/opengovernment, as well as an initial list of regulations that we plan to review first.

As you comment, SBA requests that you keep these key considerations in mind:

• SBA must uphold its mission to strengthen America's economy by providing tools to help grow businesses, create jobs, and help victims recover from disasters.

• SBA's plan will be tailored to reflect its resources, rulemaking history, and volume.

• A number of laws or executive orders already direct the Agency to regularly review certain regulations. Your input is requested on developing a plan that is integrated with those existing requirements.

The list of questions below is designed to identify issues that might arise in the development of a preliminary plan for the retrospective analysis of the agency's regulations. This non-exhaustive list is meant to assist in the formulation of public comments and is not intended to restrict the issues that may be addressed. SBA requests that commenters identify the specific regulation at issue and explain, in as much detail as possible, why the regulation should be modified, streamlined, expanded, or withdrawn, as well as specific suggestions of ways SBA can better achieve its regulatory objectives.

(1) How can SBA identify those rules that might be modified, streamlined, expanded, or repealed?

(2) What factors should the agency consider in selecting and prioritizing rules for review?

(3) Are there regulations that have become unnecessary, or ineffective, and, if so, what are they?

(4) Are there rules that can be withdrawn without impairing SBA's regulatory programs and, if so, what are they?

(5) Are there rules that have become outdated and, if so, how can they be modernized to better accomplish their regulatory objectives?

(6) Are there rules that are still necessary, but which have not operated as well as expected such that a modified, stronger, or slightly different approach is justified?

(7) Are there regulations, or regulatory processes that are unnecessarily complicated or could be streamlined to achieve regulatory objectives more efficiently?

(8) Are there any technological developments that can be leveraged to modify, streamline, or repeal any existing regulatory requirements?

(9) Are there any SBA regulations that are not tailored to impose the least burden on the public?

(10) How can SBA best obtain and consider accurate, objective information and data about the costs, burdens, and benefits of existing regulations?

(11) Are there existing sources of data SBA can use to evaluate the post-promulgation effects of regulations over time?

(12) Are there regulations that are working well that can be expanded or used as a model to fill gaps in other SBA regulatory programs?

SBA notes that this RFI is issued solely for information and planning purposes and that the Agency is not bound to any further actions related to the comments submitted. All submissions will be made publically available on http://www.regulations.gov.

All comments received are considered part of the public record and made available for public inspection online at http://www.regulations.gov. Such information includes personal identifying information ( e.g. your name, address, etc.) voluntarily submitted by the commenter.

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2011-0158; Directorate Identifier 2010-NM-118-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed 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 proposed AD.

On October 19, 2009, we issued AD 2009-22-13, amendment 39-16066 (74 FR 55755, October 29, 2009), for certain Boeing Model 767-200, -300, -300F, and -400ER series airplanes. That AD requires an inspection to determine if certain motor operated valve (MOV) actuators for the fuel tanks are installed, and related investigative and corrective actions if necessary. That AD resulted from fuel system reviews conducted by the manufacturer. We issued that AD to prevent an ignition source inside the fuel tanks, which, in combination with flammable fuel vapors, could result in a fuel tank explosion and consequent loss of the airplane.

Since we issued AD 2009-22-13, Boeing issued a revision to Boeing Alert Service Bulletin 767-28A0090, dated July 3, 2008 (which was referenced as a source of service information in AD 2009-22-13). Boeing Service Bulletin 767-28A0090, Revision 2, dated September 2, 2010, corrects the group configuration assignment for certain airplanes, adds airplanes to the effectivity, and adds additional work for certain airplanes that accomplished Boeing Alert Service Bulletin 767-28A0090, dated July 3, 2008; or Boeing Service Bulletin 767-28A0090, Revision 1, dated April 1, 2010. The actions described in Boeing Service Bulletin 767-28A0090, Revision 2, dated September 2, 2010, are similar to those described in Boeing Alert Service Bulletin 767-28A0090, dated July 3, 2008.

The airplanes that were assigned to the wrong group configuration (Group 3 instead of Group 2) and accomplished the requirements of AD 2009-22-13 in accordance with Boeing Alert Service Bulletin 767-28A0090, dated July 3, 2008, need to do additional inspections to determine if certain motor operated valve actuators for the fuel tanks are installed, and related investigative and corrective actions if necessary, in accordance with Boeing Service Bulletin 767-28A0090, Revision 2, dated September 2, 2010 (the new group configuration has more work packages than the old group configuration).

The airplanes that were assigned to the wrong group configuration (Group 4 instead of Group 1) in Boeing Alert Service Bulletin 767-28A0090, dated July 3, 2008; or Boeing Service Bulletin 767-28A0090, Revision 1, dated April 1, 2010; and accomplished actions using either of those service bulletins need to do additional inspections to determine if certain MOV actuators for the fuel tanks are installed, and related investigative and corrective actions if necessary, in accordance with Boeing Service Bulletin 767-28A0090, Revision 2, dated September 2, 2010 (the new group configuration has more work packages than the old group configuration).

We have evaluated all pertinent information and identified an unsafe condition that is likely to develop on other airplanes of the same type design. For this reason, we are proposing this AD, which would supersede AD 2009-22-13 and would retain the requirements of the existing AD. This proposed AD would also require, for certain airplanes, accomplishing the actions specified in the Boeing Service Bulletin 767-28A0090, Revision 2, dated September 2, 2010, described previously.

There are about 398 airplanes of U.S. registry. The following table provides the estimated costs for U.S. operators to comply with this proposed 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.

We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would 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 the proposed regulation:

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

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

We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. See the ADDRESSES section for a location to examine the regulatory evaluation.

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

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2011-0159; Directorate Identifier 2010-NM-246-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on 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 proposed AD.

Transport Canada Civil Aviation which is the aviation authority for Canada, has issued Canadian Airworthiness Directive CF-2010-34, dated October 5, 2010 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

You may obtain further information by examining the MCAI in the AD docket.

Bombardier has issued Service Bulletin 670BA-27-058, dated August 31, 2010; and SAGEM has issued SAGEM Service Bulletin 8489-27-007, Revision 1, dated August 10, 2010. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.

This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.

We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information.

We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a Note within the proposed AD.

Based on the service information, we estimate that this proposed AD would affect about 387 products of U.S. registry. We also estimate that it would take about 9 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Required parts would cost about $0 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these costs. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $296,055, or $765 per product.

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

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

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

For the reasons discussed above, I certify this proposed regulation:

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

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

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

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

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2011-0216; Directorate Identifier 2010-NM-197-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on 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 proposed AD.

The Agência Nacional de Aviação Civil (ANAC), which is the aviation authority for Brazil, has issued Brazilian Airworthiness Directive 2010-08-02, dated September 20, 2010 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2011-0219; Directorate Identifier 2010-NM-228-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed 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 proposed AD.

Since May 2005, four operators have reported seven events of in-flight loss of the off-wing escape slides. The off-wing escape slides did not inflate in flight. Due to latching failures of the compartment doors for the off-wing escape slides, in-flight maneuvering resulted in the departure of the slides from the airplane. The loss of the off-wing escape slide could result in the unavailability of the escape slide during a time-critical evacuation. Additionally, the departed slide could cause damage to the fuselage, wing, flaps, or stabilizer, which could degrade flight control.

To address the in-flight loss of the off-wing escape slide we issued AD 99-17-20, Amendment 39-11266 (64 FR 45436, August 20, 1999), which was based on Boeing Service Bulletin 757-25-0182, Revision 1, dated June 12, 1997; and Boeing Service Bulletin 757-25-0200, dated January 21, 1999. AD 99-17-20 requires modification of the door latch system on the off-wing escape slide compartment and installation of a bumper assembly on the bottom of the off-wing escape slide carriers on certain Model 757-200 and -300 series airplanes. However, it has been shown through service history that more corrective actions, in addition to AD 99-17-20, are needed to correct the unsafe condition.

We reviewed Boeing Special Attention Service Bulletin 757-25-0298, dated October 16, 2008. This service bulletin describes procedures for modifying the forward and aft door latch fittings for the left and right off-wing escape slide systems and modifying the witness mark placards on the maintenance access door frames for the left and right off-wing escape slide systems. Additionally, this service bulletin specifies that the following three service bulletins should be done before or at the same time as Boeing Special Attention Service Bulletin 757-25-0298, dated October 16, 2008.

Boeing Service Bulletin 757-25-0182, Revision 2, dated January 11, 2001, specifies, for airplanes that have not been retrofitted using Boeing Service Bulletin 757-25-0182, dated October 10, 1996; or Boeing Service Bulletin 757-25-0182, Revision 1, dated June 12, 1997; procedures to modify the door latch system of the left and right off-wing emergency evacuation slide systems. The modification includes replacing the bearings and lockbase retainer in the compartment door latch assembly with new bearings and a new lockbase retainer, and relocating and adjusting the sensor target and the sensor proximity switch to forward locations on the evacuation slide compartment doors. For airplanes that have been retrofitted, Boeing Service Bulletin 757-25-0182, Revision 2, dated January 11, 2001, specifies testing to determine that the compartment door sensor, as retrofitted, provides an accurate indication of the door lock condition. For airplanes on which the test indicates that the compartment door is not locking positively, Boeing Service Bulletin 757-25-0182, Revision 2, dated January 11, 2001, specifies that the installed target is replaced with a new target and the switch is remounted on the new bracket.

Boeing Service Bulletin 757-25-0200, Revision 1, dated August 3, 2000 (for Model 757-200 and -200CB series airplanes); and Boeing Special Attention Service Bulletin 757-25-0219, dated August 3, 2000 (for Model 757-300 series airplanes); specify installing a bumper assembly on the left and right off-wing slide carriers, and installing new witness mark and instruction placards in the area of the maintenance access door.

We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type designs.

This proposed AD would require accomplishing the actions specified in the service information described previously.

We estimate that this proposed AD will affect 451 airplanes of U.S. registry.

We estimate the following costs to comply with this proposed AD:

We estimate the following costs to do any necessary replacements that would be required based on the results of the proposed test. We have no way of determining the number of aircraft that might need these replacements.

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

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

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

For the reasons discussed above, I certify this proposed regulation:

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

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

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

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

We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2011-0217; Directorate Identifier 2010-NM-165-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed 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 proposed AD.

We have received two reports of cracked vertical stabilizer skin at Station Zfs = 52.267. Subsequent inspection revealed a severed front spar cap and a cracked front spar web. Cracks were also found on several other Model MD-80 airplanes in the front spar cap bolt holes of the vertical stabilizer. The affected Model MD-80 airplanes had accrued between 39,749 and 56,212 total flight hours and between 32,176 and 44,001 total landing cycles when the cracks/anomalies were found. The cause of the skin cracks is high loading occurrences, such as, but not limited to, in-flight turbulence. Cracks in the vertical stabilizer leading edge and front spar cap could result in the structure being unable to support limit load, and could lead to the loss of the vertical stabilizer.

We are considering similar rulemaking for The Boeing Company Model MD-90-30 airplanes. The Model MD-90 airplane vertical stabilizer is similar in design and loading to that of the Model DC-9-81 (MD-81), DC-9-82 (MD-82), DC-9-83 (MD-83), DC-9-87 (MD-87), and MD-88 airplanes vertical stabilizer.

We reviewed Boeing Alert Service Bulletin MD80-55A067, dated June 24, 2010. The service information describes procedures for a detailed inspection to detect distress in and existing repairs to the leading edge structure of the vertical stabilizer at the splice at Station Zfs = 52.267, and corrective action if necessary. The corrective action is doing a leading edge repair, if the leading edge is distressed, by repairing or replacing the leading edge splice band of the vertical stabilizer. The service information defines “distress” as deformed holes, elongated holes, oversized holes or cracks in the leading edge skin and splice; and “existing repairs” as bushings, washers or reinforcing repairs to the leading edge.

The service information also describes procedures for repetitive inspections for cracking in the front spar cap of the vertical stabilizer using the inspections specified in Option 1 or Option 2 of the service information, and related investigative and corrective actions if necessary.

Option 1 involves an open hole eddy current high frequency (ETHF) inspection of the forward flanges and a radiographic testing inspection of the aft flanges; Option 2 involves an open hole ETHF inspection of the forward flanges and an ETHF surface inspection of the side skins of the aft flanges. For airplanes on which any cracking is found, the related investigative action is confirming the cracking through a specified evaluation/verification process. The corrective action is contacting Boeing and doing the repair in accordance with Boeing's instructions.

The service information also describes procedures for repetitive detailed inspections for indications of loose and missing fasteners of the stabilizer leading edge structure of the vertical at the splice at Station Zfs = 52.267, and corrective actions if necessary. The corrective action, if any loose or missing fasteners are found, is repairing the leading edge by repairing or replacing the leading edge splice band of the vertical stabilizer.

We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type designs.

This proposed AD would require accomplishing the actions specified in the service information described previously.

The service bulletin specifies to contact the manufacturer for instructions on how to repair certain conditions, but this proposed AD would require repairing those conditions in one of the following ways:

• In accordance with a method that we approve, or

• Using data that meet the certification basis of the airplane, and that have been approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) whom we have authorized to make those findings.

We estimate that this proposed AD will affect 668 airplanes of U.S. registry.

We estimate the following costs to comply with this proposed AD:

We have received no definitive data that would enable us to provide cost estimates for the on-condition actions specified in this proposed 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.

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

For the reasons discussed above, I certify this proposed regulation:

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

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

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

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

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

Comments Invited

We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2011-0218; Directorate Identifier 2010-NM-164-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed 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 proposed AD.

We have received a report of elongated fastener holes at the leading edge of the vertical stabilizer at station Zfs=52.267. The affected Model MD-90 airplane had accrued 15,555 total flight hours and 14,310 total landing cycles when the elongated fastener holes were found. Additionally, we have received two reports of Model MD-80 airplanes with cracked vertical stabilizer skin at station Zfs=52.267. Subsequent inspection revealed a severed front spar cap and a cracked front spar web. The affected Model MD-80 airplanes had accrued between 39,749 and 56,212 total flight hours and between 32,176 and 44,001 total landing cycles when the cracks/anomalies were found. Cracks were also found on several other Model MD-80 airplanes in the vertical stabilizer front spar cap bolt holes. The cause of the fastener damage, elongated fastener holes, and skin cracks is high loading occurrences, such as, but not limited to, in-flight turbulence. Cracks in the vertical stabilizer leading edge and front spar cap could result in the structure being unable to support limit load, and could lead to the loss of the vertical stabilizer.

We are considering similar rulemaking for The Boeing Company Model DC-9-81 (MD-81), DC-9-82 (MD-82), DC-9-83 (MD-83), DC-9-87 (MD-87), and MD-88 airplanes. The Model MD-90 airplane vertical stabilizer is similar in design and loading to that of the Model MD-80 airplane vertical stabilizer.

We reviewed Boeing Alert Service Bulletin MD90-55A014, dated June 24, 2010. The service information describes procedures for a detailed inspection to detect distress in, and existing repairs to the leading edge structure of the vertical stabilizer at the splice at Station Zfs=52.267, and corrective action if necessary. The corrective action is doing a leading edge repair, if the leading edge is distressed, by repairing or replacing the leading edge splice band of the vertical stabilizer. The service information defines “distress” as deformed holes, elongated holes, oversized holes or cracks in the leading edge skin and splice; and “existing repairs” as bushings, washers or reinforcing repairs to the leading edge.

The service information also describes procedures for repetitive inspections for cracking in the front spar cap of the vertical stabilizer using the inspections specified in Option 1 or Option 2 of the service information, and related investigative and corrective actions if necessary.

Option 1 involves an open hole eddy current high frequency (ETHF) inspection of the forward flanges and a radiographic testing inspection of the aft flanges; Option 2 involves an open hole ETHF inspection of the forward flanges and an ETHF surface inspection of the side skins of the aft flanges. For airplanes on which any cracking is found, the related investigative action is confirming the cracking through a specified evaluation/verification process. The corrective action is contacting Boeing and doing the repair in accordance with Boeing's instructions.

The service information also describes procedures for repetitive detailed inspections for indications of loose and missing fasteners of the leading edge structure of the vertical stabilizer at the splice at Station Zfs=52.267, and corrective actions if necessary. The corrective action, if any loose or missing fasteners are found, is repairing the leading edge by repairing or replacing the leading edge splice band of the vertical stabilizer.

We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type designs.

This proposed AD would require accomplishing the actions specified in the service information described previously, except as discussed under “Differences Between the Proposed AD and the Service Information.”

The service bulletin specifies to contact the manufacturer for instructions on how to repair certain conditions, but this proposed AD would require repairing those conditions in one of the following ways:

• In accordance with a method that we approve, or

• Using data that meet the certification basis of the airplane, and that have been approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) whom we have authorized to make those findings.

We estimate that this proposed AD will affect 19 airplanes of U.S. registry.

We estimate the following costs to comply with this proposed AD:

We have received no definitive data that would enable us to provide cost estimates for the on-condition action specified in this proposed 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.

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

For the reasons discussed above, I certify this proposed regulation:

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

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

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

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

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

The National Oceanic and Atmospheric Administration is a Federal agency that is part of the U.S. Department of Commerce. NOAA's mission is to understand and predict changes in the Earth's environment and conserve and manage coastal and marine resources to meet our Nation's economic, social, and environmental needs. NOAA administers a broad range of statutes, including, but not limited to the Endangered Species Act, 16 U.S.C. 1531, et seq.; Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. 1801, et seq.; Marine Mammal Protection Act, 16 U.S.C. 1361, et seq, National Marine Sanctuaries Act, 16 U.S.C. 1431 et seq.; Coastal Zone Management Act, 16 U.S.C. 1415, et seq.; and Land Remote Sensing Policy Act, 15 U.S.C. 5601, et seq.

On January 18, 2011, the President issued Executive Order 13563, “Improving Regulation and Regulatory Review,” to ensure that Federal regulations seek more affordable, less intrusive means to achieve policy goals, and that agencies give careful consideration to the benefits and costs of those regulations. Among other things, the Executive Order directed agencies to develop and submit a preliminary plan within 120 days that will explain how they will periodically review existing significant regulations to identify any regulations that can be made more effective or less burdensome in achieving regulatory objectives.

To implement the Executive Order, NOAA is taking several immediate steps to launch its retrospective review of existing regulatory requirements. Consistent with its commitment to public participation, NOAA is soliciting views from the public on how best to conduct its analysis of existing NOAA rules and how best to identify those rules that might be modified, streamlined, expanded or repealed. NOAA promulgates rules in accordance with applicable laws and based on best available scientific information, analyses of different alternatives for agency action, and public participation and input. However, important information as to the consequences of a rule, including its costs and benefits, comes from practical, real-world experience (both on the part of the public and on the part of the agency) after rules have been implemented. Regulated entities and members of the public affected by or interested in NOAA's regulations are likely to have useful information and perspectives on the benefits and burdens of existing requirements beyond what was available at the time regulations were issued. Interested parties may also be well-positioned to identify those rules that are most in need of review; NOAA would find such input helpful as it considers how to prioritize and properly tailor its retrospective review process for significant regulations. In short, engaging the public in an open, transparent process is a crucial step in NOAA's review of its existing regulations.

NOAA recognizes that the public comment period set forth in this Request for Information (RFI) is shorter than the 30-60 day (or longer) comment periods that may be used for proposed rules. That is because of consideration of the timing requirements under the Executive Order, and because NOAA is not asking for detailed comments on the substance of specific regulation, only comments pertaining to the retrospective review plan which is under development.

Comments will be most helpful if they provide examples and a detailed explanation of how the suggestion will support NOAA's mission in a way that is more efficient and less burdensome. In providing comments, please keep these key considerations in mind:

• Retrospective review does not allow NOAA to contravene requirements of its various statutory mandates. In addition, where NOAA's discretion has been limited by law, as is the case with fishery management plans and regulations developed by Regional Fishery Management Councils under the Magnuson-Stevens Act, 16 U.S.C. 304, NOAA's ability to modify, streamline, expand, or repeal regulations is similarly constrained.

• NOAA currently conducts periodic review of existing regulations pursuant to statutory mandates. For instance, NOAA's Office of National Marine Sanctuaries is required by the National Marine Sanctuaries Act, 16 U.S.C. 1434(e), to periodically review sanctuary management plans to ensure that sanctuary management continues to best conserve, protect, and enhance the nationally significant living and cultural resources at each site. Such review provides sanctuary management with an ongoing opportunity to review existing regulations, amend existing regulations (as deemed necessary), and generally outline future regulatory goals in the management plans. Similarly, pursuant to the Magnuson-Stevens Fishery Conservation and Management Act, NOAA's National Marine Fisheries Service (as delegated from the Secretary of Commerce) is required to review at routine intervals that may not exceed two years any fishery management plans, plan amendments, or regulations for fisheries that are experiencing overfishing or in need of rebuilding. 16 U.S.C. 1854(e)(7). For many fisheries, revisions to plans and regulations occur with even greater frequency, as National Standard 2 of the Magnuson-Stevens Act requires that conservation and management measures be based on the best scientific information available. Id. § 1851(a)(2). We seek your input on developing a review plan that is integrated with those existing requirements.

• Our plan will be tailored to reflect our resources, rulemaking history, and the volume of significant regulations at issue.

NOAA intends the questions below to elicit useful information as the agency develops a preliminary plan for possible review of its significant regulations. These questions are not intended to be exhaustive. You may raise other issues or make suggestions unrelated to these questions that you believe would help the agency develop better regulations.

(1) How can NOAA review its existing significant rules in a way that will identify rules that can and should be changed, streamlined, consolidated, or removed? NOAA encourages those submitting comments to include a proposed process under which such a review could be regularly undertaken.

(2) How can NOAA reduce burdens and maintain flexibility and choice for the public in a way that will promote and achieve its mission?

(3) Does NOAA have rules or guidance that are duplicative or that have conflicting requirements among its components or with other agencies? If so, please specifically identify the rules or guidance and suggest ways NOAA can streamline, consolidate, or make these regulations work better.

(4) Are there better ways to encourage public participation and an open exchange of views when NOAA engages in rulemaking?

(5) Are there rules or guidance that is working well that could be used as models for improving other regulations? If so, please specifically identify the rule or guidance.

(6) Are NOAA regulations and guidance written in language that is clear and easy to understand, consistent with statutory requirements? Please identify specific regulations and guidance that are good candidates for a plain language re-write and also identify regulations that are written clearly that could be used as models.

(7) What are some suggestions that NOAA can use to assure that its regulations promote and achieve its mission in ways that are efficient and less burdensome?

(8) Which significant regulations have proven to be excessively burdensome? What data support this? What suggestions do you have for reducing the burden and maintaining and achieving NOAA's mission?

(9) Which significant regulations could be made more flexible within the existing legal framework? What data support this?

(10) Are there regulations that have become ineffective or been overtaken by technological or other change and, if so, what are they? How can they be modernized to accomplish the statutory or regulatory objective better?

NOAA will consider public input as we develop a plan to periodically review the agency's significant rules.

NOAA notes that this Request for Information is issued solely for information and program-planning purposes. The agency will give careful consideration to the responses, and may use them as appropriate during the retrospective review, but we do not anticipate providing a response to each comment submitted. While responses to this RFI do not bind NOAA to any further actions related to the response, all submissions will be made publically available on http://www.regulations.gov.

The Fur Act prohibits misbranding and false advertising of fur products, and requires labeling of most fur products. 15 U.S.C. 69 et seq. Pursuant to this Act, the Commission promulgated the Fur Rules to establish disclosure requirements that assist consumers in making informed purchasing decisions. 16 CFR part 301. Specifically, the Fur Act and Rules require fur manufacturers, dealers, and retailers to place labels on products made entirely or partly of fur disclosing: (1) The animal's name as provided in the Name Guide; (2) the presence of any used, bleached, dyed, or otherwise artificially colored fur; (3) that the garment is composed of paws, tails, bellies, or waste fur, if that is the case; (4) the name or Registered Identification Number of the manufacturer or other party responsible for the garment; and (5) the garment's country of origin. 15 U.S.C. 69b(2); 16 CFR 301.2(a). In addition, manufacturers must include an item number or mark on the label for identification purposes. 16 CFR 301.40. The Fur Rules also provide requirements for advertising fur products. 16 CFR 301.38. Finally, to assist the Commission in enforcing these requirements, the Rules contain recordkeeping requirements. 16 CFR 301.37; 301.41.

Prior to amendment by TFLA, the Fur Act authorized the Commission to exempt fur products of “relatively small quantity or values from labeling requirements. 15 U.S.C. 69(d). Exercising this soon-to-expire authority, the Fur Rules contain a de minimis exemption” that provides:

On December 18, 2010, the President signed TFLA into law. That Act contains two amendments to the Fur Act. First, it eliminates the provision in Section 2(d) of the Fur Act that empowered the Commission to exempt fur products “of relatively small quantity or value of the fur or used fur contained therein 15 U.S.C. 69(d). This amendment is effective 90 days from TFLA's enactment—March 18, 2011. Public Law 111-113, § 2. Second, TFLA provides a new exemption for furs sold directly by trappers and hunters to end-use customers in certain face-to-face transactions (“hunter/trapper exemptions):

TFLA also directs the Commission to initiate a review and opportunity to comment on the Name Guide. TFLA gives the Commission 90 days from enactment to commence the review.

TFLA's amendments will require conforming changes to the Fur Rules. Specifically, there will no longer be a statutory basis for the Fur Rules' de minimis exemption, and previously exempted fur products will require labels. Therefore, the Commission must delete the exemption from its Rules. In addition, the Commission will propose revisions making clear that the Fur Rules do not apply to products covered by TFLA hunter/trapper exemption.

Accordingly, the Commission will issue a Notice of Proposed Rulemaking that will propose changes in light of TFLA and may propose other changes in response to comments solicited by this document. Meanwhile, fur products previously covered by the de minimis exemption will be subject to the Fur Act's disclosure requirements, as of March 18, 2011, even though the exemption will remain in the Fur Rules until the Commission issues final amendments. Congress has rescinded the Commission's authority to exempt such products, and, therefore, there is no longer a legal basis for the de minimis exemption.

In light of TFLA's directive, and consistent with the Commission's policy to periodically review its rules and guides, the Commission solicits comments on the Fur Rules in general and the Name Guide in particular. In addition to comments regarding the Name Guide, the Commission seeks comment on, among other things, the economic impact of, and the continuing need for, the Fur Rule provisions; the benefits of the Rules to consumers; and the burdens the Rules place on those subject to its requirements. The Commission seeks comment on the specific questions listed below in Section IV.

The Commission solicits comment on the following specific questions related to the Fur Rules:

Interested parties are invited to submit written comments electronically or in paper form. Comments should refer to “Fur Rules Review, Matter No. P074201” to facilitate the organization of comments. We must receive your comment by May 16, 2011. Please note that your comment—including your name and your State—will be placed on the public record of this proceeding, including on the publicly accessible FTC Web site, at http://www.ftc.gov/os/publiccomments.shtm.

Because comments will be made public, they should not include any sensitive personal information, such as any individual's Social Security Number; date of birth; driver's license number or other State identification number, or foreign country equivalent; passport number; financial account number; or credit or debit card number. Comments also should not include any sensitive health information, such as medical records or other individually identifiable health information. In addition, comments should not include “trade secret or any commercial or financial information which is obtained from any person and which is privileged or confidential” as provided in Section 6(f) of the Federal Trade Commission Act (AFTC Act), 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2), 16 CFR 4.10(a)(2). Comments containing matter for which confidential treatment is requested must be filed in paper form, must be clearly labeled AConfidential, and must comply with FTC Rule 4.9(c). 1

Because paper mail addressed to the FTC is subject to delay due to heightened security screening, please consider submitting your comments in electronic form. Comments filed in electronic form should be submitted using the following Web link: https://ftcpublic.commentworks.com/ftc/furrulesreview (and following the instructions on the Web-based form). To ensure that the Commission considers an electronic comment, you must file it on the Web-based form at the Web link https://ftcpublic.commentworks.com/ftc/furrulesreview. If this notice of proposed rulemaking appears at http://www.regulations.gov/search/Regs/home.html#home, you may also file an electronic comment through that Web site. The Commission will consider all comments that regulations.gov forwards to it. You may also visit the FTC Web site at http://www.ftc.gov to read the notice of proposed rulemaking and the news release describing it.

A comment filed in paper form should include the “Fur Rules Review, Matter No. P074201” reference both in the text and on the envelope, and should be mailed or delivered to the following address: Federal Trade Commission, Office of the Secretary, Room H-113 (Annex O), 600 Pennsylvania Avenue, NW., Washington, DC 20580. The FTC is requesting that any comment filed in paper form be sent by courier or overnight service, if possible, because U.S. postal mail in the Washington area and at the Commission is subject to delay due to heightened security precautions.

The FTC Act and other laws that the Commission administers permit the collection of public comments to consider and use in this proceeding as appropriate. The Commission will consider all timely and responsive public comments that it receives, whether filed in paper or electronic form. Comments received will be available to the public on the FTC Web site, to the extent practicable, at http://www.ftc.gov/os/publiccomments.shtm. As a matter of discretion, the FTC makes every effort to remove home contact information for individuals from the public comments it receives before placing those comments on the FTC Web site. More information, including routine uses permitted by the Privacy Act, may be found in the FTC's privacy policy, at http://www.ftc.gov/ftc/privacy.htm.

Section 1332 of the Patient Protection and Affordable Care Act (the Affordable Care Act) (Pub. L. 111-148, enacted on March 23, 2010) creates a new Waiver for State Innovation and authorizes the Secretary of Health and Human Services (HHS) and the Secretary of the Treasury (the Secretaries) to waive all or any of the following requirements falling under their respective jurisdictions for health insurance coverage within a State for plan years beginning on or after January 1, 2017:

• Part I of subtitle D of Title I of the Affordable Care Act (relating to the establishment of qualified health plans);

• Part II of subtitle D of Title I of the Affordable Care Act (relating to consumer choices and insurance competition through health benefit exchanges);

• Section 1402 of the Affordable Care Act (relating to reduced cost sharing for individuals enrolling in qualified health plans); and

• Sections 36B (relating to refundable credits for coverage under a qualified health plan), 4980H (relating to shared responsibility for employers regarding health coverage), and 5000A (relating to the requirement to maintain minimum essential coverage) of the Internal Revenue Code.

Section 1332 of the Affordable Care Act provides that references in that section to “Secretary” refer to the Secretary of Health and Human Services for waivers relating to Parts I and II of subtitle D of Title I of the Affordable Care Act and section 1402 of the Affordable Care Act, and refer to the Secretary of the Treasury for waivers relating to sections 36B, 4980H, and 5000A of the Internal Revenue Code.

Section 1332(a)(4)(B) of the Affordable Care Act requires the Secretaries to issue regulations that provide the following:

• A process for public notice and comment at the State level, including public hearings, that is sufficient to ensure a meaningful level of public input (section 1332(a)(4)(B)(i) of the Affordable Care Act);

• A process for the submission of an application that ensures the disclosure of (A) the provisions of law that the State involved seeks to waive, and (B) the specific plans of the State to ensure that the waiver will be in compliance with specified statutory requirements relating to the comprehensiveness of coverage, affordability of coverage, scope of coverage, and the effect on Federal deficit (as described below) (section 1332(a)(4)(B)(ii) of the Affordable Care Act);

• A process for providing public notice and comment after the application is received by the applicable Secretary or Secretaries, that is sufficient to ensure a meaningful level of public input and that does not impose requirements that are in addition to, or duplicative of, requirements imposed under the Administrative Procedure Act (APA), or requirements that are unreasonable or unnecessarily burdensome with respect to State compliance (section 1332(a)(4)(B)(iii) of the Affordable Care Act);

• A process for the submission to the applicable Secretary or Secretaries of periodic reports by the State concerning the implementation of the program under a waiver (section 1332(a)(4)(B)(iv) of the Affordable Care Act); and

• A process for the periodic evaluation by the applicable Secretary or Secretaries of the program under a waiver (section 1332(a)(4)(B)(v) of the Affordable Care Act).

Although section 1332 of the Affordable Care Act does not authorize waivers for related programs like Medicaid (title XIX of the Social Security Act) or the Children's Health Insurance Program (title XXI of the Social Security Act), those programs have existing waiver authorities. Section 1332(a)(5) of the Affordable Care Act requires the Secretaries to develop a process for coordinating and consolidating the State waiver processes applicable under the provisions of section 1332 of the Affordable Care Act with the existing waiver processes applicable under titles XVIII (Medicare), XIX (Medicaid), and XXI (Children's Health Insurance Program, or CHIP) of the Social Security Act, and any waiver processes under other Federal laws relating to the provision of health care items or services. Section 1332(a)(5) of the Affordable Care Act further requires the process developed by the Secretaries to permit a State to submit a single application for a waiver under any or all of those provisions.

This proposed rule would implement the procedural requirements of section 1332 of the Affordable Care Act. The proposed rule is intended to provide for a waiver application process that can be coordinated and consolidated with the processes for the submission of applications for waivers under titles XVIII, XIX, and XXI of the Social Security Act.

To implement the provisions of section 1332 of the Affordable Care Act, the Department of the Treasury proposes to add new part 33 to 31 CFR subtitle A and the Centers for Medicare & Medicaid Services, on behalf of the Department of Health and Human Services, proposes to add new part 155 to 45 CFR Subtitle A. These new parts would address procedures for State development and submission of an application for a Waiver for State Innovation under section 1332 of the Affordable Care Act (referred to in the proposed regulations as a section 1332 waiver), a process for providing public notice and opportunity for comment at the State and Federal levels, a process for the review of applications by the Secretaries, and processes for the monitoring and evaluation of approved section 1332 waivers by the States and the Secretaries, including the periodic submission of reports by the States to the Secretaries.

These proposed regulations at 31 CFR 33.102 and 45 CFR 155.1302 permit, but do not require, States to submit a single application for a section 1332 waiver and a waiver under one or more of the existing waiver processes applicable under titles XVIII, XIX, and XXI of the Social Security Act, or under any other Federal law relating to the provision of health care items or services, provided that the application is consistent with the procedures described in these proposed regulations, the procedures for section 1115 demonstrations, if applicable, and the procedures under any other applicable Federal law under which the State seeks a waiver. 1

The proposed regulations require a State seeking a section 1332 waiver to submit a waiver application to the Secretary of HHS. Upon receipt, the Secretary of HHS will transmit any application that includes a request for a waiver of provisions under the jurisdiction of the Secretary of the Treasury (sections 36B, 4980H and 5000A of the Internal Revenue Code) to be reviewed in accordance with the provisions of these proposed regulations. The Secretaries will coordinate the review of any application that includes a request for a waiver of provisions falling under the jurisdiction of each of the Departments of Health and Human Services and the Treasury (the Departments).

These proposed regulations establish procedures for the submission of applications for an initial section 1332 waiver.

Under 31 CFR 33.108(a) and 45 CFR 155.1308(a) of the proposed regulations, the Secretaries will subject each application for an initial section 1332 waiver to a preliminary review. The Secretaries will complete the preliminary review within 45 days after the application is submitted.

During this preliminary review period, the Secretaries will make a preliminary determination as to whether a State's application complies with the requirements set forth in 31 CFR 33.108(a)(2) and 45 CFR 155.1308(a)(2). If the Secretaries determine that an application is incomplete, the Secretary of HHS will send the State a written notice of the elements missing from the application. These proposed regulations provide that a preliminary determination that an application is complete does not preclude a finding during the 180-day Federal decision-making period that a necessary element of the application is missing or insufficient, rendering the application incomplete.

These proposed regulations provide that a submitted application will not be considered received until the Secretaries have made this preliminary determination that the application is complete. This timing protocol is necessary to ensure that the Federal public notice and comment period and the 180-day Federal decision-making period are based on applications that the Secretaries preliminarily determine to be complete, and that all relevant information is available for review during those periods.

The proposed regulations provide that, upon a preliminary determination by the Secretaries that an application they have received is complete, as defined under these proposed regulations, the Secretary of HHS will send the State a written notice informing the State that the Secretaries have made such a preliminary determination, and the date upon which they have made that preliminary determination. That date will also mark the beginning of the Federal public notice and comment period and the 180-day Federal decision-making period.

Under the proposed regulations, an application for initial approval of a section 1332 waiver will not be considered complete unless the application: (1) Complies with the application procedures of 31 CFR 33.108(a)(2)(iv) and 45 CFR 155.1308(a)(2)(iv); (2) provides written evidence of the State's compliance with the public notice requirements set forth in 31 CFR 33.112 and 45 CFR 155.1312; and (3) provides all of the following:

• A comprehensive description of the State legislation and program to implement a plan meeting the requirements for a waiver under section 1332, as required under section 1332(a)(1)(B)(i) of the Affordable Care Act;

• A copy of the enacted State legislation authorizing such waiver request, as required under section 1332(a)(1)(C) of the Affordable Care Act;

• A list of the provisions of law that the State seeks to waive including a brief description of the reason for the specific requests; and

• The analyses, actuarial certifications, data, assumptions, targets and other information sufficient to provide the Secretaries with the necessary data to determine that the State's proposed waiver:

+ Will, as required under section 1332(b)(1)(A) of the Affordable Care Act (the comprehensive coverage requirement), provide coverage that is at least as comprehensive as the coverage defined in section 1302(b) of the Affordable Care Act and offered through Exchanges established under Title I of the Affordable Care Act as certified by the Office of the Actuary of the Centers for Medicare and Medicaid Services based on sufficient data from the State and from comparable States about their experience with programs created by the Affordable Care Act and the provisions of the Affordable Care Act that would be waived;

+ Will, as required under section 1332(b)(1)(B) of the Affordable Care Act (the affordability requirement), provide coverage and cost sharing protections against excessive out-of-pocket spending that are at least as affordable as the provisions of Title I of the Affordable Care Act would provide;

+ Will, as required under section 1332(b)(1)(B)(C) of the Affordable Care Act (the scope of coverage requirement), provide coverage to at least a comparable number of its residents as the provisions of Title I of the Affordable Care Act would provide; and

+ Will not, as prohibited under section 1332(b)(1)(D) of the Affordable Care Act (the Federal deficit requirement), increase the Federal deficit.

Section 1332(a)(3) of the Affordable Care Act requires that the Secretaries provide for an alternative means by which the aggregate amount of tax credits or cost-sharing reductions that would have been paid had the State not received a waiver, be paid to the State for purposes of implementing the waiver. This amount will be determined annually by the Secretaries, on a per capita basis, taking into consideration the experience of other States for participation in an Exchange and tax credits and cost-sharing reductions provided in such other States.

To provide information necessary for the Secretaries to determine (1) that the State's proposed waiver meets the comprehensive coverage requirement, the affordability requirement, the scope of coverage requirement and the Federal deficit requirement and (2) the annual amount, if any, of foregone tax credits and cost-sharing reductions that will be paid to the State for purposes of implementing the waiver pursuant to section 1332(a)(3) of the Affordable Care Act, the proposed regulation requires that a State's application contain:

(1) Actuarial analyses and actuarial certifications to support the State's estimates that the proposed waiver will comply with the comprehensive coverage requirement, the affordability requirement and the scope of coverage requirement.

(2) Economic analyses to support the State's estimates that the proposed waiver will comply with the comprehensive coverage requirement, the affordability requirement, the scope of coverage requirement and the Federal deficit requirement, including:

• A detailed 10-year budget plan that is deficit neutral to the Federal government, as prescribed in section 1332(a)(1)(B)(ii) of the Affordable Care Act, and includes all costs under the waiver, including administrative costs and other costs to the Federal government, if applicable; and

• A detailed analysis regarding the estimated impact of the waiver on health insurance coverage in the State.

(3) The data and assumptions used to demonstrate that the State's proposal is in compliance with the comprehensive coverage requirement, the affordability requirement, the scope of coverage requirement and the Federal deficit requirement, including:

• Information on the age, income, health expenses and current health insurance status of the relevant State population; the number of employers, categorized by number of employees and by whether the employer offers health insurance; cross-tabulations of these variables; and an explanation of data sources and quality; and

• An explanation of the key assumptions and methodology used to develop the estimates of the effect of the waiver on health insurance coverage in the State and on the Federal budget, such as individual and employer participation rates, behavioral changes, premium and price effects, and other relevant factors.

(4) Additional information supporting the State's proposed waiver, including:

• An explanation as to whether the waiver increases or decreases the administrative burden on individuals, insurers, and employers, and if so, how and why;

• An explanation of whether and how the waiver will affect the implementation of the provisions of the Affordable Care Act which the State is not requesting to waive in the State and at the Federal level;

• An explanation of how the waiver will affect residents who need to obtain health care services out-of-State, as well as the States in which such residents may seek such services;

• If applicable, an explanation of how the State will provide the Federal government with all information necessary to administer the waiver at the Federal level; and

• An explanation of how the State's proposal will address potential individual, employer, insurer, or provider compliance, waste, fraud and abuse within the State or in other States.

(5) For purposes of post-award monitoring, suggested quarterly, annual, and cumulative targets for the comprehensive coverage requirement, the affordability requirement, the scope of coverage requirement and the Federal deficit requirement of section 1332(b) of the Affordable Care Act.

(6) Other information consistent with guidance provided by the Secretaries.

Under the proposed regulations, there is no minimum time specified between the submission of an application and start date of the waiver. However, we solicit comments on whether a State should be required to submit an application at least 12 months in advance of the requested effective date, in order to allow for the effective implementation of approved waivers at the State level.

The requirement in the proposed regulation that a State provide certain analysis, certifications, data, assumptions, targets and other information as part of a section 1332 waiver application is designed to ensure that a State's development of a waiver proposal addresses major relevant issues for the State and provides the Secretaries with sufficient information to fully assess the projected impact of section 1332 waiver proposals for the statutory requirements and to accurately determine the amount to be paid to the State for purposes of implementing the waiver under section 1332(a)(3) of the Affordable Care Act. The Secretaries also solicit comments regarding these proposed requirements, as well as what other types of analysis, certifications, data, assumptions, targets and information States would consider useful in supporting an application for a section 1332 waiver and whether these regulations should specifically require such additional analyses, certifications, data, assumptions, targets and information to be included as part of a section 1332 waiver application.

Lastly, during the Federal review process, the proposed regulation provides that the Secretaries may request additional supporting information from the State as needed to address public comments or to address issues that arise in reviewing the application.

Consistent with the provisions of section 1332 of the Affordable Care Act, to facilitate public involvement in the review and approval of section 1332 waiver applications, 31 CFR 33.112(a)(1) and 45 CFR 155.1312(a)(1) of the proposed regulations require a State to provide a public notice and comment period sufficient to ensure a meaningful level of public input for a section 1332 waiver application prior to the submission of that application to the Secretary of HHS for review and consideration. In addition, the proposed regulations require a State with one or more Federally-recognized Indian tribes within its borders to consult with those Indian tribes in accordance with Executive Order 13175.

Because meaningful input requires notice of the nature of the section 1332 waiver application, as part of the State notice and comment period, the proposed regulations require a State to provide the public with the following prior to the submission of an application:

• A comprehensive description of the section 1332 waiver application to be submitted to the Secretary of HHS, including information and assurances related to all statutory requirements and other information consistent with guidance provided by the Secretaries;

• Where copies of the section 1332 waiver application are available for public review and comment;

• How and where written comments may be submitted and reviewed by the public, and the timeframe during which public comments may be submitted; and

• The location, date and time of public hearings that will be convened by the State to seek public input on the section 1332 waiver application.

31 CFR 33.112(a)(2) and 45 CFR 155.1312(a)(2) of the proposed regulations require States to conduct public hearings that provide interested parties with the opportunity to learn about and comment on the contents of the section 1332 waiver application.

The State public notice and comment process must comply with applicable civil rights rules for accessibility, which require, for example—

• The provision of auxiliary aids and services such as interpreters for persons with disabilities where necessary for effective communication;

• The use of accessible meeting places for the hosting of public forums provided for in the Rule;

• Reasonable steps to provide meaningful access for limited English proficient (LEP) persons, such as the inclusion of “tag lines” on State web sites containing phone numbers for LEP persons to call to reach “language line” interpreters for assistance; and

• Other civil rights requirements applicable to the States under the Americans with Disabilities Act, section 504 of the Rehabilitation Act of 1973 and Title VI of the Civil Rights Act of 1964, among others.

Consistent with section 1332 of the Affordable Care Act and the Secretaries' desire to implement a State waiver application process that promotes transparency, facilitates public involvement and input, and encourages sound decision-making at all levels of government, 31 CFR 33.116 and 45 CFR 155.1316 of the proposed regulations provide for a Federal public notice and comment period following a preliminary determination by the Secretaries that a State's application for a section 1332 waiver is complete. As required by section 1332 of the Affordable Care Act, the Federal notice and comment period is designed to ensure a meaningful level of public input, while avoiding the imposition of requirements that are in addition to, or duplicative of, those imposed under the APA or that are unreasonable or unnecessarily burdensome for State compliance.

To facilitate public participation in the section 1332 waiver application process, the proposed regulations require the Secretary of HHS to provide the public with notice of a section 1332 waiver application that has been preliminarily determined to be complete, including any supplemental materials received from a State during the Federal public notice and comment period, as well as regular updates for the status of a State's section 1332 waiver application. In addition, the Secretary of HHS will provide the public with information relating to (A) where copies of the section 1332 waiver application are available for public review and comment; (B) how and where written comments may be submitted and reviewed by the public, and the timeframe during which comments may be submitted; and (C) any public comments received during the Federal public notice and comment period.

Following the conclusion of the Federal notice and comment period, but in no event later than 180 days following the preliminary determination by the Secretaries that a State's application for a section 1332 waiver is complete, the final decision of the Secretaries on a State's section 1332 waiver application will be issued by the Secretary of HHS.

As section 1332 waivers are likely to a have a significant impact on individuals, States and the Federal government, the proposed regulations establish processes and methodologies to ensure that the Secretaries receive adequate and appropriate information regarding the effectiveness of section 1332 waivers (consistent with section 1332(a)(4)(B)(iv) of the Affordable Care Act).

Under 31 CFR 33.120(a) and 45 CFR 155.1320(a) of the proposed regulations, a State is required to comply with all applicable Federal laws, regulations, policy statements and Departmental guidance unless a law or regulation has specifically been waived. Further, the proposed regulations require a State to come into compliance with any changes in Federal law, regulation, or policy affecting section 1332 waivers within the timeframes specified in law, regulation, interpretive policy, or guidance, unless the provision being changed is expressly waived, and to comply with the terms and conditions of the agreement entered into between the Secretaries and the State to implement a section 1332 waiver, or the section 1332 waiver will be suspended or terminated in whole or in part by the Secretaries.

Under 31 CFR 33.120(b) and 45 CFR 155.1320(b) of the proposed regulations, as part of the terms and conditions of any section 1332 waiver, a State must conduct periodic reviews related to the implementation of the waiver. The Secretaries will review, and when appropriate investigate, documented complaints that a State is failing to materially comply with requirements specified in the terms and conditions of the section 1332 waiver. In addition, the Secretaries will share with the State any complaint that has been received, and notify the State of any applicable monitoring and compliance issues.

Under 31 CFR 33.120(c) and 45 CFR 155.1320(c) of the proposed regulations, to ensure continued public input after the initial 6 months of the waiver's implementation, and annually thereafter, States are required to hold a public forum at which members of the public have an opportunity to provide comments on the progress of the section 1332 waiver. The proposed regulation further requires States to include a summary of this forum to the Secretary of HHS as part of the quarterly and annual reporting requirements under 31 CFR 33.124 and 45 CFR 155.1324.

Under 31 CFR 33.120(c)(1) and 45 CFR 155.1320(c)(1) of the proposed regulations, States are required to publish the date, time, and location of the public forum in a prominent location on the State's public Web site at least 30 days prior to the date of the planned public forum.

Under 31 CFR 33.120(d) and 45 CFR 155.1320(d) of the proposed regulations, the Secretaries reserve the right to suspend or terminate a section 1332 waiver, in whole or in part, any time before the date of expiration, if the Secretaries determine that the State has materially failed to comply with the terms and conditions of the section 1332 waiver. In the event that all or a portion section 1332 waiver is terminated or suspended by the Secretaries, or if all or a portion of the section 1332 waiver is withdrawn, Federal funding is limited to normal closeout costs associated with an orderly termination of the section 1332 waiver, as described in 31 CFR 33.120(e) and 45 CFR 155.1320(e).

Under 31 CFR 33.120(f) and 45 CFR 155.1320(f) of the proposed regulations, in the event that the Secretaries undertake an independent evaluation of any component of the section 1332 waiver, the State must cooperate fully with the Secretaries or the independent evaluator selected by the Secretaries. This cooperation includes, but is not limited to, the submission of all necessary data and information to the Secretaries or the independent evaluator.

Section 1332 of the Affordable Care Act requires that the Secretaries provide for a procedure for the periodic submission of reports by a State concerning the implementation of the program under a section 1332 waiver.

In order for the Secretaries to effectively monitor the implementation of a waiver, the proposed regulations require a State to submit a quarterly progress report in accordance with the terms and conditions of the State's section 1332 waiver. States are also required to submit an annual report, as described in 31 CFR 33.124(b) and 45 CFR 155.1324(b), documenting the following:

• The progress of the section 1332 waiver;

• Data on compliance with section 1332(b)(1)(A) through (D) of the Affordable Care Act;

• A summary of the annual post-award public forum, including all public comments received regarding the progress of the section 1332 waiver and action taken in response to such concerns or comments; and

• Other information consistent with the State's approved terms and conditions.

Under 31 CFR 33.124(c) and 45 CFR 155.1324(c) of the proposed regulations, States are required to submit a draft annual report to the Secretary of Health and Human Services no later than 90 days after the end of each waiver year. Within 60 days of receipt of comments from the Secretary of Health and Human Services, a State is required to submit a final annual report for the waiver year to the Secretary of Health and Human Services. Finally, a State is required to publish the draft and final annual reports on the State's public Web site.

The Secretaries intend to issue future guidance under section 1332 regarding periodic reports.

Section 1332 of the Affordable Care Act requires that the Secretaries provide for a procedure for the periodic evaluation of section 1332 waivers by the Secretary or Secretaries with jurisdiction over the provisions for which the waiver was granted. These proposed regulations require that each periodic evaluation shall include a review of all annual reports submitted by the State in accordance with 45 CFR 155.1324 and 31 CFR 33.124 that relate to the period of time covered by the evaluation.

As part of this proposed regulation, the Secretaries are soliciting public comments regarding specific components of the periodic evaluation of a section 1332 waiver. Potential components of a periodic evaluation could include, but not be limited to, the impact of the waiver on the following:

• Choice of health plans for individuals and employers;

• Stability of coverage for individuals and employers;

• Small businesses, individuals with pre-existing conditions, and the low-income population;

• The overall health care system in the State; and

• Other States and the Federal government.

The Secretaries intend to issue future guidance under section 1332 regarding periodic evaluations.

Under the Paperwork Reduction Act of 1995, the Departments are required to provide notice in the Federal Register and solicit public comment before a collection of information requirement is approved by the Office of Management and Budget (OMB). To fairly evaluate whether an information collection should be approved by OMB, section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 requires that the Departments solicit comment on the following issues:

• The need for the information collection and its usefulness in carrying out the proper functions of the Departments.

• The accuracy of the Departments' estimate of the information collection burden.

• The quality, utility, and clarity of the information to be collected.

• Recommendations to minimize the information collection burden on the affected public, including automated collection techniques.

The Departments have no way to accurately quantify the burden until the provisions that section 1332 authorizes the Secretaries to waive pursuant to an application by a State take effect in 2014. The Departments are soliciting public comments on the annual number of waiver applications that the Departments may receive, and will reevaluate this issue in future guidance. With that said, the Departments have developed estimates of the burden associated with information collection requirements in this proposed regulation.

The Departments are soliciting public comment on each of these issues for the following sections of this document that contain information collection requirements (ICRs):

31 CFR 33.108 and 45 CFR 155.1308 of the proposed regulations establish the application process for section 1332 waivers. A State's application for approval of a section 1332 waiver must be submitted to CMS as both printed and electronic documents. Paragraph (a)(2)(iv) of 31 CFR 33.108 and 45 CFR 155.1308 specify that applications for a section 1332 waiver will not be considered complete if they do not contain written evidence of compliance with the State public notice and comment process described in 31 CFR 33.112 and 45 CFR 155.1312, as well as the information specified in paragraph (a)(2)(iv)(C) and (D) of 31 CFR 33.108 and 45 CFR 155.1308.

The burden associated with the requirements in 31 CFR 33.108 and 45 CFR 155.1308 is the time and effort necessary for a State to develop and submit a complete application for a section 1332 waiver. The Departments estimate that it will take 200 hours for a State to develop and submit a complete section 1332 waiver application, at a total cost of $4,134.

Paragraph (a)(1) of 31 CFR 33.112 and 45 CFR 155.1312 of the proposed regulations require a State to provide a public notice and comment period regarding applications for section 1332 waivers. 31 CFR 33.112 and 45 CFR 155.1312 specify that prior to submitting an application to HHS and Treasury for a section 1332 waiver, the State must provide a public notice and comment period sufficient to ensure a meaningful level of public input. The public notice must address the information requirements listed in paragraphs (b)(1) through (4) of 31 CFR 33.112 and 45 CFR 155.1312.

The burden estimate associated with this requirement is the time and effort necessary to develop and publish a public notice that complies with the aforementioned information requirements. The Departments estimate that each State submitting an application for a section 1332 waiver will require 40 hours to comply with the requirements in this section, at a total cost of $827 per State.

Paragraph (c) of 31 CFR 33.112 and 45 CFR 155.1312 specify that after issuing the public notice and prior to submitting an application for a section 1332 waiver, a State must conduct public hearings regarding the State's waiver application. The minimum burden associated with this requirement is the time and effort necessary for a State to conduct public hearings prior to submitting an application for a section 1332 waiver. While this requirement is subject to the PRA, the Departments believe the associated burden is exempt under 5 CFR 1320.3(h)(4). Facts or opinions submitted in response to general solicitations of comments from the public, published in the Federal Register or other publications, regardless of the form or format thereof, provided that no person is required to supply specific information pertaining to the commenter, other than that necessary for self-identification, as a condition of the agency's full consideration of the comment are not subject to the PRA.

Paragraph (a)(2) of 31 CFR 33.112 and 45 CFR 155.1312 require States with one or more federally-recognized Indian tribes to consult with such tribes before submitting a section 1332 waiver application. Paragraph (a)(2)(iv)(B) of 31 CFR 33.108 and 45 CFR 155.1308 explain that documentation of the State's public notice, which incorporates this consultation, must be included in the waiver application.

The burden associated with these requirements is both the time and effort necessary for a State to conduct its tribal consultations and the time and effort necessary to notify CMS of the State's compliance with paragraph (a)(2)(iv)(B) of 31 CFR 33.108 and 45 CFR 155.1308. The Departments estimate that each State submitting an application for a section 1332 waiver will require 40 hours to both conduct its tribal consultations and to submit the aforementioned evidence to CMS, at a total cost of $827.

31 CFR 33.120 and 45 CFR 155.1320 of the proposed regulations require States to periodically perform reviews of the implementation of the section 1332 waiver. The Departments estimate that it will take a State 40 hours annually to periodically review the waiver's implementation, at a total cost of $827.

Paragraph (c) of 31 CFR 33.120 and 45 CFR 155.1320 of the proposed regulations further specifies that at least 6 months after the implementation date of the waiver and annually thereafter, the State must hold a public forum to solicit comments on the progress of a section 1332 waiver. As proposed in paragraph (c)(1) of 31 CFR 33.120 and 45 CFR 155.1320, the State must publish the date, time, and location of the public forum in a prominent location on the State's public Web site, at least 30 days prior to the date of the planned public forum.

The burden associated with these provisions includes the time and effort necessary to conduct the public meeting and the time and effort necessary for a State to publish the date, time, and location of the public forum in a prominent location on the State's public Web site, at least 30 days prior to the date of the planned public forum. While these requirements are subject to the PRA, the Departments believe the associated burden is exempt from the PRA. As discussed previously in this collection, facts or opinions submitted in response to general solicitations of comments from the public, published in the Federal Register or other publications, regardless of the form or format thereof, provided that no person is required to supply specific information pertaining to the commenter, other than that necessary for self-identification, as a condition of the agency's full consideration of the comment are not subject to the PRA. Therefore, the burden associated with the annual public hearing requirement is exempt. Similarly, the Departments believe the time and effort necessary for a State to publish the date, time, and location of the public forum in a prominent location on the State's public Web site is a burden that would be incurred in the course of usual and customary State business practices and is therefore exempt from the PRA under 5 CFR 1320.3(b)(3).

Paragraph (a) of 31 CFR 33.124 and 45 CFR 155.1324 of the proposed regulations requires States to submit quarterly reports to CMS in accordance with the terms and conditions of a State's approved section 1332 waiver. The burden associated with this reporting requirement is the time and effort necessary to submit quarterly reports to CMS. The Departments estimate that it will take 10 hours per quarter for each State to comply with this reporting requirement, for a total of 40 hours per year, at a total annual cost of $827.

Paragraph (b) of 31 CFR 33.124 and 45 CFR 155.1324 of the proposed regulations requires States to submit annual reports to CMS documenting the information listed in paragraph (b)(1) through (4) of 31 CFR 33.124 and 45 CFR 155.1324. As part of the submission process, paragraph (c) of 31 CFR 33.124 and 45 CFR 155.1324 requires States to submit draft annual reports to CMS no later than 90 days after the end of each waiver year, or as specified in the State's terms and conditions. The burden associated with this reporting requirement is the time and effort necessary to submit draft annual reports to CMS. The Departments estimate that it will take 24 hours for each State to comply with this reporting requirement, at a total cost of $496.

Paragraph (c)(1) of 31 CFR 33.124 and 45 CFR 155.1324 of the proposed regulations specifies that within 60 days of receipt of comments from CMS, the State must submit to CMS the final annual report for the waiver year. While this requirement is subject to the PRA, the Departments believe the associated burden is exempt under 5 CFR 1320.3(h)(9). Facts or opinions obtained or solicited through non-standardized follow-up questions designed to clarify responses to approved collections of information are not subject to the PRA.

Paragraph (c)(2) of 31 CFR 33.124 and 45 CFR 155.1324 of the proposed regulations specify that the draft and final annual reports must be published on the State's public Web site. The burden associated with this is the time and effort required for a State to post the aforementioned information on the State's public Web site. The Departments estimate that it will take 2 hours for each State to comply with this requirement, at a total cost of $42.

31 CFR 33.128 and 45 CFR 155.1328 of the proposed regulations specify that the Secretary of Health and Human Services and the Secretary of the Treasury shall periodically evaluate the implementation of section 1332 waivers. One potential option for satisfying this requirement is for a State to design and conduct an evaluation, with Federal approval of the evaluation design and interim and final reports. The burden associated with this approach is the time and effort necessary to design and execute an evaluation for a section 1332 waiver. The Departments estimate that it will take a State 80 hours to develop an evaluation design, 80 hours to develop and submit an interim evaluation report, and 36 hours to publish CMS-approved evaluations on a State's public Web site. The Departments estimate that it will take a State 196 hours over the course of a 5-year waiver term to complete these activities at a total cost of $4,051.

On January 4, 2011, the Pennsylvania Department of Environmental Protection (PADEP) submitted to EPA a SIP revision concerning the adoption of the CTG for flat wood paneling surface coating processes.

Section 172(c)(1) of the CAA provides that SIPs for nonattainment areas must include reasonably available control measures (RACM), including RACT for sources of emissions. Section 182(b)(2)(A) provides that for certain nonattainment areas, States must revise their SIPs to include RACT for sources of volatile organic compounds (VOC) emissions covered by a CTG document issued after November 15, 1990 and prior to the area's date of attainment.

CTGs are intended to provide state and local air pollution control authorities information that should assist them in determining RACT for VOCs from various sources, including flat wood paneling surface coatings. In developing these CTGs, EPA, among other things, evaluated the sources of VOC emissions from this industry and the available control approaches for addressing these emissions, including the costs of such approaches. Based on available information and data, EPA provided recommendations for RACT for VOCs from flat wood paneling.

In June 1978, EPA published a CTG for flat wood paneling coatings (EPA- 450/2-78-034). This CTG discusses the nature of VOC emissions from this industry, available control technologies for addressing such emissions, the costs of available control options, and other items. EPA promulgated national standards of performance for new stationary sources New Source Performance Standards for the flat wood paneling industry and EPA also published a national emission standard for hazardous air pollutants (NESHAP) for this industry.

In 2006 and 2007, after conducting a review of currently existing state and local VOC emission reduction approaches for the flat wood paneling industry, reviewing the 1978 CTG and the NESHAP for this industry, and taking into account the information that has become available since then, EPA developed a new CTG for surface coating of flat wood paneling, entitled Control Techniques Guidelines for Flat Wood Paneling Coatings (Publication No. EPA 453/R-06-004). Flat wood paneling coatings means wood paneling products that are any interior, exterior, or tileboard panel to which a protective, decorative, or functional material or layer has been applied. Flat wood paneling, like most wood products, are vulnerable to light, moisture, and insects. Coatings are used for three purposes: Protection, appearance, and surface modification. Surface coatings are applied to reduce potential damage from environmental elements such as moisture and temperature extremes and other climate-related hazards and from insect infestation. Coatings are also applied to enhance surfaces to make other coatings more effective. Finally, coatings are applied to improve the appearance of the wood product. Releases of VOCs occur during the coating process as the coatings are mixed or thinned, as they are applied to the substrate, and as they dry and the VOCs within the coating evaporate into the air.

On January 4, 2011, PADEP submitted to EPA a SIP revision concerning the adoption of the CTG for flat wood paneling surface coating processes. EPA develops CTGs as guidance on control requirements for source categories. States can follow the CTGs or adopt more restrictive standards. Pennsylvania has adopted EPA's CTG standards for flat wood paneling surface coating processes. These regulations are in Chapter 121—General Provisions and in Chapter 129—Standards for Sources, in Title 25 of the Pennsylvania Code. Specifically, this revision amends the existing regulations at sections 121.1, 129.51, 129.66, and adds new section 129.52c. Several definitions were added in section 121.1 and section 129.51 was amended to extend coverage to flat wood paneling surface coating processes. New section 129.52c includes VOC emission limits, work practices, and recordkeeping and reporting requirements, all of which are consistent with EPA's CTG for flat wood paneling surface coating processes. The emission limits of VOCs for flat wood paneling surface coatings are shown in Table 1. These emission limits apply if the total actual VOC emissions from all flat wood paneling surface coating operations at the facility are equal to or greater than 15 pounds (6.8 kilograms) per day, before consideration of controls.

EPA is proposing to approve Pennsylvania's SIP revision for adoption of the CTG standards for flat wood paneling surface coating processes. EPA is soliciting public comments on the issues discussed in this document. These comments will be considered before taking final action.

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

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

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

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

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

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

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

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

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

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

In addition, this proposed rule concerning Pennsylvania's adoption of a CTG for flat wood paneling surface coating processes 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.

For further information, please see the information provided in the direct final action, with the same title, that is located in the “Rules and Regulations” section of this Federal Register publication. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

The Federal Emergency Management Agency (FEMA) publishes proposed determinations of Base (1% annual-chance) Flood Elevations (BFEs) and modified BFEs for communities participating in the National Flood Insurance Program (NFIP), in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR 67.4(a).

These proposed BFEs and modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are minimum requirements. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities. These proposed elevations are used to meet the floodplain management requirements of the NFIP and also are used to calculate the appropriate flood insurance premium rates for new buildings built after these elevations are made final, and for the contents in those buildings.

In the proposed rule published at 75 FR 68744, in the November 9, 2010, issue of the Federal Register , FEMA published a table under the authority of 44 CFR 67.4. The table, entitled “Gilmer County, Georgia, and Incorporated Areas” addressed the flooding source Cartecay River.

The proposed rule listed the location description for the proposed BFE of 1,290 feet, referenced to the North American Vertical Datum of 1988, as being approximately 0.24 mile upstream of the confluence with Owltown Creek. The correct location of this proposed BFE is approximately 1.12 miles upstream of Holt Bridge Road. The proposed rule also listed the location description for the proposed BFE of 1,519 feet, referenced to the North American Vertical Datum of 1988, as being approximately 1.12 miles upstream of Holt Bridge Road. The correct location of this proposed BFE is approximately 0.24 mile upstream of the Owltown Creek confluence.

This proposed rule correction is reopening the comment period for the Cartecay River, for the locations of the proposed BFEs of 1,290 feet and 1,519 feet, both referenced to the North American Vertical Datum of 1988, due to the error in listing the location descriptions for these BFEs in the previously published proposed rule at 75 FR 68744.

The Federal Emergency Management Agency (FEMA) publishes proposed determinations of Base (1% annual-chance) Flood Elevations (BFEs) and modified BFEs for communities participating in the National Flood Insurance Program (NFIP), in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR 67.4(a).

These proposed BFEs and modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are minimum requirements. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities. These proposed elevations are used to meet the floodplain management requirements of the NFIP and also are used to calculate the appropriate flood insurance premium rates for new buildings built after these elevations are made final, and for the contents in those buildings.

In the proposed rule published at 74 FR 47169, in the September 15, 2009, issue of the Federal Register , FEMA published a table under the authority of 44 CFR 67.4. The table, entitled “Sanpete County, Utah, and Incorporated Areas” addressed the flooding source South Creek. That table contained inaccurate information as to the location of referenced elevation, effective and modified elevation in feet, and/or communities affected for that flooding source. In this notice, FEMA is publishing a table containing the accurate information, to address these prior errors. The information provided below should be used in lieu of that previously published.

The Federal Emergency Management Agency (FEMA) publishes proposed determinations of Base (1% annual-chance) Flood Elevations (BFEs) and modified BFEs for communities participating in the National Flood Insurance Program (NFIP), in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR 67.4(a).

These proposed BFEs and modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are minimum requirements. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities. These proposed elevations are used to meet the floodplain management requirements of the NFIP and also are used to calculate the appropriate flood insurance premium rates for new buildings built after these elevations are made final, and for the contents in those buildings.

In the proposed rule published at 74 FR 46074, in the September 8, 2009, issue of the Federal Register , FEMA published a table under the authority of 44 CFR 67.4. The table, entitled “Troup County, Georgia, and Incorporated Areas” addressed the flooding source Shoal Creek. That table contained inaccurate information as to the location of referenced elevation, effective and modified elevation in feet, and/or communities affected for that flooding source. In this notice, FEMA is publishing a table containing the accurate information, to address these prior errors. The information provided below should be used in lieu of that previously published.

The Federal Emergency Management Agency (FEMA) publishes proposed determinations of Base (1% annual-chance) Flood Elevations (BFEs) and modified BFEs for communities participating in the National Flood Insurance Program (NFIP), in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR 67.4(a).

These proposed BFEs and modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are minimum requirements. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities. These proposed elevations are used to meet the floodplain management requirements of the NFIP and also are used to calculate the appropriate flood insurance premium rates for new buildings built after these elevations are made final, and for the contents in those buildings.

In the proposed rule published at 75 FR 75945, in the December 7, 2010, issue of the Federal Register , FEMA published a table under the authority of 44 CFR 67.4. The table, entitled “Skagit County, Washington, and Incorporated Areas” addressed the following flooding sources: Left Bank Overflow Main Stem Skagit River, Left Bank Overflow Main Stem Skagit River/South Fork Skagit River, Left Bank Overflow North Fork Skagit River, Main Stem Skagit River, North Fork Skagit River, Overflow from the Main Stem Skagit River between the North Fork Skagit River and the South Fork Skagit River, Padilla Bay, Right Bank Overflow Main Stem Skagit River, Right Bank Overflow Main Stem Skagit River/North Fork Skagit River, Right Bank Overflow North Fork Skagit River, Right Bank Overflow South Fork Skagit River, Samish Bay, Samish Bay/Padilla Bay, Simlik Bay, Skagit Bay, Skagit Bay/Swinomish Channel, Skagit River, Skagit River Delta Overbank Flowpath 1, Skagit River Delta Overbank Flowpath 2, Skagit River Delta Overbank Flowpath 3, South Fork Skagit River, and Swinomish Channel. That table contained inaccurate information as to the location of referenced elevation, effective and modified elevation in feet, and/or communities affected for these flooding sources. It also contained erroneous map repository addresses for the City of Burlington, the City of Sedro-Woolley, the Swinomish Indian Tribal Community, and the Town of Lyman. There were also some table formatting and alignment errors. In this notice, FEMA is publishing a table containing the accurate information, to address these prior errors. The information provided below should be used in lieu of that previously published.

This is a summary of the Commission's Notice of Proposed Rulemaking (NPRM) in CC Docket No. 80-286, FCC 11-34, released on March 1, 2011. The full text of this document is available for public inspection during regular business hours in the FCC Reference Center, Room CY-A257, 445 12th Street, SW., Washington, DC 20554.

1. Jurisdictional separations is the process by which incumbent LECs apportion regulated costs between the intrastate and interstate jurisdictions. The NPRM proposes extending the current freeze of part 36 category relationships and jurisdictional cost allocation factors used in jurisdictional separations, which freeze would otherwise expire on June 30, 2011, until June 30, 2012. Extending the freeze will allow the Commission to provide stability for, and avoid imposing undue burdens on, carriers that must comply with the Commission's separations rules while the Commission considers issues relating to comprehensive separations reform.

2. The 2001 Separations Freeze Order, 66 FR 33202, June 21, 2001, froze all part 36 category relationships and allocation factors for price cap carriers and all allocation factors for rate-of-return carriers. Rate-of-return carriers had the option to freeze their category relationships at the outset of the freeze. The freeze was originally established July 1, 2001 for a period of five years, or until the Commission completed separations reform, whichever occurred first. The 2006 Separations Freeze Extension Order, 71 FR 29843, May 24, 2006, extended the freeze for three years or until the Commission completed separations reform, whichever occurred first. The 2009 Separations Freeze Extension Order, 74 FR 23955, May 22, 2009, extended the freeze until June 30, 2010, and the 2010 Separations Freeze Extension Order, 75 FR 30301, June 1, 2010, extended the freeze until June 30, 2011.

3. In this NPRM the Commission seeks comment on extending the freeze for one year, until June 30, 2012. The proposed extension would allow the Commission to continue to work with the Federal-State Joint Board on Separations to achieve comprehensive separations reform. Pending comprehensive reform, the Commission tentatively concludes that the existing freeze should be extended on an interim basis to avoid the imposition of undue administrative burdens on incumbent LECs. The Commission asks commenters to consider how costly and burdensome an extension of the freeze, or a reversion to the pre-freeze part 36 rules, would be for small incumbent LECs, and whether an extension would disproportionately affect specific types of carriers or ratepayers. Incumbent LECs have not been required to utilize the programs and expertise necessary to prepare separations information since the inception of the freeze almost nine years ago. If the Commission does not extend the separations freeze, and instead allows the earlier separations rules to return to force, incumbent LECs would be required to reinstitute their separations processes. Given the imminent expiration of the current separations freeze, it is unlikely that incumbent LECs would have sufficient time to reinstitute the separations processes necessary to comply with the earlier separations rules.

4. The extended freeze would be implemented as described in the 2001 Separations Freeze Order. Specifically, price-cap carriers would use the same relationships between categories of investment and expenses within part 32 accounts and the same jurisdictional allocation factors that have been in place since the inception of the current freeze on July 1, 2001. Rate-of-return carriers would use the same frozen jurisdictional allocation factors, and would use the same frozen category relationships if they had opted previously to freeze those as well.

Pursuant to §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated in the DATES section of this document. Comments may be filed using: (1) The Commission's Electronic Comment Filing System (ECFS); (2) the Federal Government's eRulemaking Portal; or (3) by filing paper copies. See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121, May 1, 1998.

• Electronic Filers: Comments may be filed electronically using the Internet by accessing the ECFS: http://fjallfoss.fcc.gov/ecfs2/ or the Federal eRulemaking Portal: http://www.regulations.gov. Filers should follow the instructions provided on the Web site for submitting comments.

• For ECFS filers, if multiple docket or rulemaking numbers appear in the caption of this proceeding, filers must transmit one electronic copy of the comments for each docket or rulemaking number referenced in the caption. In completing the transmittal screen, filers should include their full name, U.S. Postal Service mailing address, and the applicable docket or rulemaking number. Parties may also submit an electronic comment by Internet e-mail. To get filing instructions, filers should send an e-mail to ecfs@fcc.gov, and include the following words in the body of the message, “get form.” A sample form and directions will be sent in response.

• Paper Filers: Parties who choose to file by paper must file an original and four copies of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number.

• Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail (although we continue to experience delays in receiving U.S. Postal Service mail). All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.

• All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St., SW., Room TW-A325, Washington, DC 20554. The filing hours are 8 a.m. to 7 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of before entering the building.

• Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.

• U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street, SW., Washington, DC 20554.

People with Disabilities: To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an e-mail to fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (TTY).

This matter shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's ex parte rules. See 47 CFR 1.1200 and 1.1206. Persons making oral ex parte presentations are reminded that memoranda summarizing the presentations must contain summaries of the substance of the presentations and not merely a listing of the subjects discussed. More than a one or two sentence description of the views and arguments presented generally is required. See 47 CFR 1.1206(b). Other rules pertaining to oral and written ex parte presentations in permit-but-disclose proceedings are set forth in § 1.1206(b) of the Commission's rules. 47 CFR 1.1206(b).

As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Commission has prepared this Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on a substantial number of small entities by the policies and rules proposed in this NPRM. Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments on the NPRM. The Commission will send a copy of the NPRM, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA). See 5 U.S.C. 603(a).

In the 1997 Separations NPRM, the Commission noted that the network infrastructure by that time had become vastly different from the network and services used to define the cost categories appearing in the Commission's part 36 jurisdictional separations rules, and that the separations process codified in part 36 was developed during a time when common carrier regulation presumed that interstate and intrastate telecommunications service must be provided through a regulated monopoly. Thus, the Commission initiated a proceeding with the goal of reviewing comprehensively the Commission's part 36 procedures to ensure that they meet the objectives of the 1996 Act. The Commission sought comment on the extent to which legislative changes, technological changes, and market changes might warrant comprehensive reform of the separations process. Because over twelve years have elapsed since the closing of the comment cycle on the 1997 Separations NPRM, and over eight years have elapsed since the imposition of the freeze, and because the industry has experienced myriad changes during that time, we ask that commenters, in their comments on the present NPRM, comment on the impact of a further extension of the freeze.

The purpose of proposed extension of the freeze is to ensure that the Commission's separations rules meet the objectives of the 1996 Act, and to allow the Commission additional time to consider changes that may need to be made to the separations process in light of changes in the law, technology, and market structure of the telecommunications industry.

The legal basis for the NPRM is contained in sections 1, 2, 4, 201-205, 215, 218, 220, 229, 254, and 410 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154, 201-205, 215, 218, 220, 229, 254 and 410, and §§ 1.1200 through 1.1216 of the Commission's rules, 47 CFR 1.1, 1.411 through 1.429, and 1.1200 through 1.1216.

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 proposed rules, if adopted. 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 section 3 of the Small Business Act. Under the Small Business Act, a “small business concern” is one that: (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).

We have included small incumbent LECs in this RFA analysis. As noted above, a “small business” under the RFA is one that, inter alia, meets the pertinent small business size standard established by the SBA, and is not dominant in its field of operation. Section 121.201 of the SBA regulations defines a small wireline telecommunications business as one with 1,500 or fewer employees. In addition, 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. Because our proposals concerning the part 36 separations process will affect all incumbent LECs providing interstate services, some entities employing 1500 or fewer employees may be affected by the proposals made in this NPRM. We therefore have included small incumbent LECs in this RFA analysis, although we emphasize that this RFA action has no effect on the Commission's analyses and determinations in other, non-RFA contexts.

Neither the Commission nor the SBA has developed a small business size standard specifically for providers of incumbent local exchange services. The closest applicable size standard under the SBA rules is for Wired Telecommunications Carriers. Under the SBA definition, a carrier is small if it has 1,500 or fewer employees. According to the FCC's Telephone Trends Report data, 1,311 incumbent LECs reported that they were engaged in the provision of local exchange services. Of these 1,311 carriers, an estimated 1,024 have 1,500 or fewer employees and 287 have more than 1,500 employees. Consequently, the Commission estimates that most incumbent LECs are small entities that may be affected by the rules and policies adopted herein.

None.

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

As described above, seven years have elapsed since the imposition of the freeze, thus, we ask commenters, in their comments on the present NPRM, address the impact of a further extension of the freeze. We seek comment on the effects our proposals would have on small entities, and whether any rules that we adopt should apply differently to small entities. We direct commenters to consider the costs and burdens of an extension on small incumbent LECs and whether the extension would disproportionately affect specific types of carriers or ratepayers.

Implementation of the proposed freeze extension would ease the administrative burden of regulatory compliance for LECs, including small incumbent LECs. The freeze has eliminated the need for all incumbent LECs, including incumbent LECs with 1500 employees or fewer, to complete certain annual studies formerly required by the Commission's rules. If an extension of the freeze can be said to have any affect under the RFA, it is to reduce a regulatory compliance burden for small incumbent LECs, by abating the aforementioned separations studies and providing these carriers with greater regulatory certainty.

None.

The NPRM does not propose any new or modified information collections subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, therefore, it does not contain any new, modified, or proposed “information collection burden for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, 44 U.S.C. 3506(c)(4).

For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR Part 36 as follows:

This is a synopsis of the Commission's Notice of Proposed Rule Making, MB Docket No. 11-38, adopted February 25, 2011, and released February 28, 2011. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC's Reference Information Center at Portals II, CY-A257, 445 Twelfth Street, SW., Washington, DC 20554. This document may also be purchased from the Commission's duplicating contractors, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 1-800-378-3160 or via e-mail http://www.BCPIWEB.com. This document does not contain proposed information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any proposed information collection burden “for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).

Provisions of the Regulatory Flexibility Act of l980 do not apply to this proceeding.

Members of the public should note that from the time a Notice of Proposed Rule Making is issued until the matter is no longer subject to Commission consideration or court review, all ex parte contacts are prohibited in Commission proceedings, such as this one, which involve channel allotments. See 47 CFR 1.1204(b) for rules governing permissible ex parte contacts.

For information regarding proper filing procedures for comments, see 47 CFR 1.415 and 1.420.

For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 73 as follows:

The Federal Transit Administration (FTA) is issuing a Notice of Proposed Rulemaking (NPRM) to update its bus testing protocols to carry out the bus testing program authorized at 49 U.S.C. 5318 and implemented by 49 CFR part 665. On October 5, 2009, FTA published a Final Rule in the Federal Register (74 FR 51083) that incorporated brake performance and emissions tests into FTA's bus testing program as required by 49 U.S.C. 5318, as well as several other non-statutory changes that will improve the program, including the establishment of protocols to determine the appropriate loading of vehicles during test procedures and addressing buses that exceeded weight limits when fully loaded.

During the comment period leading to the Final Rule, FTA received two comments outside the scope of the notice recommending that FTA increase the simulated ballast weight from the proposed 150 lbs per passenger provided in the definitions of “gross vehicle weight” and “seated load weight” (the value that had been in use since the beginning of the program) to an amount that more accurately reflects the changes to the average weight of Americans over the last several decades. FTA acknowledged that the suggestion was well taken, but noted that the establishment of a more accurate average passenger weight was of Department-wide interest, and committed itself to initiate a new rulemaking to amend Part 665 only after consultations within the Department. FTA has consulted within the Department, and as a result of those consultations, is issuing this NPRM.

In its previous rulemaking action, FTA made note of the fact that a number of buses tested at the Bus Testing Center had not been tested in their fully loaded condition ( i.e., with all seats and standee positions occupied) because doing so would have caused their actual weight to exceed either their gross vehicle weight ratings (GVWR) or a front or rear gross axle weight rating (GAWR). Instead, buses were loaded to the maximum weight rating and a notation was made in the vehicle's final test report.

In its earlier NPRM, FTA noted that the test data might not reflect the actual performance of these buses in real-life service, particularly during rush hour when operators frequently allow all seats and aisles to be filled without regard to the GVWR or GAWR to avoid leaving passengers behind at a stop. FTA sought comment on three possible approaches for addressing this situation: (1) Performing tests on the test track (which is not a public roadway) with all seats and standee positions ballasted, (2) deleting ballast until the vehicle does not exceed its GVWR and noting such fact in the test report (which had been the policy up to that time), or (3) declining to test a bus that exceeds its GAWR or GVWR when loaded to full capacity.

FTA determined that declining to test a vehicle whose GVW exceeds its GVWR is impractical, noting that the entire purpose of the bus testing program is to carry out the statutory mandate of verifying that the bus can withstand the rigors of regular transit service, and testing a bus up to its GVWR but no higher, despite the inability to embark the equivalent of a full complement of passengers, is unrealistic and may not accurately reflect rush-hour operating conditions when every available seat is filled and drivers commonly allow “crush loads” of standees in the aisle.

Under FTA's revised testing protocol, buses are now ballasted with a fully loaded passenger complement of seated and standee passengers during the gross vehicle weight portion and with all seats filled during the seated load weight portion of the testing because FTA believes data on how a bus performs under fully loaded conditions is essential to the purchaser in supporting acquisition decisions, developing preventive maintenance schedules, and budgeting for unscheduled maintenance. In addition, purchasing a vehicle appropriate for actual operating conditions will lessen premature structural fatigue and assist in avoiding catastrophic failures caused by overstressed and overworked structural and operational components, ensuring the availability of such vehicles for passenger service.

This NPRM is based on modern scientific data. FTA's earlier selection of the 150 pound passenger weight assumption was based on the number established by FTA's sister DOT mode, the National Highway Traffic Safety Administration (NHTSA), in its calculation of the Gross Vehicle Weight Rating at 49 CFR 567.4(g)(3). Although NHTSA did not provide an explanation for this figure in its 1971 rulemaking documents, NHTSA staff believes their average was based on data derived from the National Health Examination Survey for 1960-1962. That survey has been continued by the Centers for Disease Control and Prevention (CDC) through the National Health and Nutrition Examination Survey (NHANES). In its October 22, 2008, National Health Statistics Report ( http://www.cdc.gov/nchs/data/nhsr/nhsr010.pdf ), the CDC's National Center for Health Statistics calculated a mean average weight of 194.7 pounds for male adults 20 years of age and older, and a median weight of 188.8 pounds. For women 20 years of age and older, the CDC calculated a mean weight of 164.7 pounds, and a median weight of 155.8 pounds.

Based on the suggestions from the commenters and confirmation using the statistical NHANES data from the CDC, FTA believes that 175 pounds is an appropriate average weight to assume for testing buses. This is also within the range of average passenger weights used by other transportation modes with regulatory authority such as the Federal Aviation Administration's 190 lb. summer weight and 195 lb. winter weight passenger weight averages ( See , Advisory Circular 120-27E, “Aircraft Weight and Balance Control,” June 10, 2005) and the United States Coast Guard's 185 lb Assumed Average Weight Per Person ( See, “Passenger Weight and Inspected Vessel Stability Requirements: Final Rule, 75 FR 78064, December 14, 2010).

Because of the increase in passenger weight, FTA is also commensurately proposing to increase the assumed dimensions for a standing passenger from 1.5 square feet of free floor space to 1.75 square feet of free floor space to acknowledge the expanding girth of the average passenger. FTA also seeks comments on this figure.

FTA wishes to emphasize that it is not proposing the increase to 175 pounds in order to “toughen” the testing protocol. Rather, this action is being proposed in order to ensure that the Bus Testing protocols better reflect the actual loads that buses are already carrying in service today.

To avoid conflicts with NHTSA's regulatory definition of gross vehicle weight in 49 CFR part 567 and elsewhere, FTA is proposing to remove the definition of “gross weight” or “gross vehicle weight” from the definitions in section 665.5 and inserting a new definition, “fully loaded weight,” which incorporates the heavier and wider dimensions of an average bus rider. FTA is also proposing to amend Appendix A, Section 5, replacing “gross weight” and “gross vehicle weight” with “full load weight” when conducting the structural integrity portions of the test.

Similar to the approach taken by FTA in the October 2009 Final Rule, FTA is proposing that the date on which a bus testing contract was signed will determine the applicability of the new testing procedures. New bus models for which testing contracts were signed before the effective date of the final rule and that continue to be produced without major changes in any structure or systems will not be required to return to the Bus Testing Center to undergo additional testing using the new fully loaded weight procedures. Buses required to undergo full or partial testing after the effective date would be subjected to the new procedures.

FTA is proposing to delay the effective date of the final rule for one year after publication. FTA believes this will give bus manufacturers adequate time to review the advertised passenger capacities of their product lines, to identify chassis suitable for the advertised passenger loads, and if necessary to redesign their vehicles to reduce passenger capacity and/or accommodate a heavier-duty chassis. FTA seeks comment regarding the adequacy of the phase-in period.

This rulemaking is issued under the authority of 49 U.S.C. 5318 and 49 U.S.C. 1.51.

Executive Order 13132 requires agencies to assure meaningful and timely input by State and local officials in the development of regulatory policies that may 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. This action has been analyzed in accordance with the principles and criteria contained in Executive Order 13132, and FTA has determined that this action will not have sufficient federalism implications to warrant additional consultation. FTA has also determined that this action will not preempt any State law or State regulation or affect the States' ability to discharge traditional governmental functions.

Executive Order 13175 requires agencies to assure meaningful and timely input from Indian tribal government representatives in the development of rules that “significantly or uniquely affect” Indian communities and that impose “substantial and direct compliance costs” on such communities. FTA has analyzed this action under Executive Order 13175 and believes that this will not have substantial, direct effects on one or more Indian tribes; will not impose substantial direct compliance costs on Indian tribal governments; and will not preempt tribal laws. Therefore, a tribal impact statement is not required.

Under the Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq. ) and Executive Order 13272, FTA must consider whether a proposed rule would have a significant economic impact on a substantial number of small entities. “Small entities” include small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations under 50,000. FTA does not expect this action will have a significant economic impact on a substantial number of small entities.

FTA has determined that this action is not considered a significant regulatory action under Executive Order 12866 and the Regulatory Policies and Procedures of the Department of Transportation (44 FR 11032). Executive Order 12866 requires agencies to regulate in the “most cost-effective manner,” to make a “reasoned determination that the benefits of the intended regulation justify its costs,” and to develop regulations that “impose the least burden on society.” Consistent with Executive Order 13563 (76 FR 3821, January 21, 2011), FTA has assessed the benefits of the NPRM against potential costs, has attempted to minimize any potential economic burdens, has based its determination on modern scientific data, and provides flexibility and freedom of choice for the affected entities.

The bus testing program itself is statutorily mandated and cannot be eliminated as a means of minimizing an economic burden. Under 49 U.S.C. 5318, FTA funds may not be used to acquire a new bus until a bus of that model has completed testing at a statutorily prescribed facility, with approximately 15 to 20 new bus models completing testing every year. These buses are tested in 4-, 5-, 7-, 10-, or 12-year service life categories as set forth in 49 CFR 665.11(e). In preparing this NPRM, FTA reviewed the data from ten recent test reports and found that one of the buses exceeded their GVWR at their seated load weight using either the 150 pound figure or the 175 pound figure. When tested at the gross vehicle load, i.e., carrying a full complement of seated and standing passengers, five bus models would have exceeded their GVWR using the 150 pound figure, with two more exceeding the GVWR using the 175 pound figure.

Testing buses using the 175 pound figure will not result in any mandatory additional costs on transit vehicle manufactures or the public transit operators that purchase such vehicles. Rather, FTA is attempting to modify its testing procedures to more accurately reflect a bus model's expected usage based on demonstrable scientific data, namely, the 2008 CDC Report and the most recent bus testing reports.

In addition to providing more accurate test data to assist buyers of public transit vehicles, the NPRM attempts to maximize flexibility and freedom of choice for transit operators who may refuse to carry standees to avoid exceeding a vehicle's GVWR now that the vehicle's carrying capacity has been identified in a test report, buyers may order vehicles with more durable components, or purchase a lighter-duty vehicle if they do not expect to carry capacity passenger loads. Transit vehicle manufactures similarly have the flexibility and freedom of choice to continue using the same components to meet buyers' needs, or they may choose to upgrade individual components, such as chassis, wheels, tires, brakes, or suspensions.

For those manufacturers that choose to upgrade their buses to a more robust configuration, FTA estimates the cost of upgrading a vehicle's components could be as low as $2,500 per vehicle in the 4- to 5-year paratransit-type vehicle categories, between $5,000 and $7,000 in the minibus categories, to as high as $25,000 per vehicle in the 10- to 12-year full-size bus categories. But as noted above, any necessary upgrades are not mandated by the NPRM, but rather, would be negotiated between the buyer and the manufacturer. FTA notes that any cost increase due to a decision to upgrade components would be offset by FTA's financial assistance program which covers at least 80% of a vehicle's capital costs, minimizing any economic impact of this rulemaking on public transit vehicles manufacturers and their customers.

This NPRM's benefits outweigh potential costs because the new testing protocol will allow transit agencies to more accurately identify vehicles that are more likely to meet service life expectations, advertised passenger capacities, and actual loading conditions. The acquisition of sturdier vehicles will decrease maintenance and replacement costs, ensure that vehicles meet their anticipated service lives, and thereby enhance the availability and reliability of transit vehicles for the riding public.

Although the result of this proposed rule may have the effect of encouraging transit agencies to modify their specifications on future procurements to reflect projected passenger loads or transit vehicle manufacturers to upgrade vehicle components to more accurately reflect advertised service loads, this proposed new testing procedure rule will affect only data collected for those vehicles procured with FTA financial assistance and will not directly affect vehicles acquired using private funds or funds from Federal agencies other than FTA, although non-FTA purchasers are likely to be indirect beneficiaries through reviewing the publicly-available bus testing reports prior to purchasing their vehicles and if vehicle manufacturers decide to use the FTA bus testing results as a basis to upgrade components across their full product line.

This action is not expected to adversely affect any sector of the economy. In addition, these changes will not interfere with any action taken or planned by another agency and will not materially alter the budgetary impact of any entitlements, grants, user fees, or loan programs.

This action will not impose unfunded mandates as defined by the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48). This action rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $128.1 million or more in any one year (2 U.S.C. 1532).

FTA has analyzed this action under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use dated May 18, 2001, and determined that this is not a significant energy action under that order, because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, a Statement of Energy Effects is not required.

Under the Paperwork Reduction Act of 1995, no person is required to respond to a collection of information unless it displays a valid OMB control number. This action does not propose any new information collection burdens.

The U.S. DOT assigns a regulation identifier number (RIN) to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN number contained in the heading of this document may be used to cross-reference this action with the Unified Agenda.

Anyone is able to search the electronic form for all comments received into any of our dockets by the name of the individual submitting the comments (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may view the U.S. DOT Privacy Act Statement by visiting http://docketsinfo.dot.gov/ or at 65 FR 19477 (April 11, 2000).

Accordingly, for the reasons stated in the preamble, 49 CFR part 665 is proposed to be amended as follows:

Atlantic bluefin tuna, bigeye tuna, albacore tuna, yellowfin tuna, and skipjack tuna (hereafter referred to as “Atlantic tunas”) are managed under the dual authority of the Magnuson-Stevens Act and ATCA. ATCA authorizes the Secretary of Commerce (Secretary) to promulgate regulations, as may be necessary and appropriate, to implement ICCAT recommendations. The authority to issue regulations under the Magnuson-Stevens Act and ATCA has been delegated from the Secretary to the Assistant Administrator for Fisheries, NOAA (AA).

On May 28, 1999, NMFS published in the Federal Register (64 FR 29090) final regulations, effective July 1, 1999, implementing the Fishery Management Plan for Atlantic Tunas, Swordfish, and Sharks (1999 FMP). The 1999 FMP included framework provisions to promulgate annual specifications for the BFT fishery, in accordance with ATCA and the Magnuson-Stevens Act, and to implement the annual recommendations of ICCAT. Since 1982, ICCAT has recommended a Total Allowable Catch of BFT, and since 1991, ICCAT has recommended specific limits (quotas) for the United States and other BFT Contracting Parties.

On October 2, 2006, NMFS published in the Federal Register (71 FR 58058) a final rule, effective November 1, 2006, implementing the 2006 Consolidated Atlantic Highly Migratory Species Fishery Management Plan (Consolidated HMS FMP), which consolidated management of all Atlantic HMS ( i.e., sharks, swordfish, tunas, and billfish) into one comprehensive FMP. The implementing regulations for Atlantic HMS are at 50 CFR part 635. Among other things, the Consolidated HMS FMP maintained an allocation scheme, established in the 1999 Fishery Management Plan for Atlantic Tunas, Swordfish, and Sharks (1999 FMP), for dividing the baseline annual U.S. BFT quota among several domestic quota categories.

Adjustment of the BFT annual quota is necessary to implement the 2010 ICCAT quota recommendation for western Atlantic bluefin tuna (western BFT), as required by ATCA, and to achieve domestic management objectives under the Magnuson-Stevens Act, including rebuilding stocks and ending overfishing. It is necessary to establish the 2011 quota specifications in order to adjust the 2011 BFT baseline quota and subquotas to account for dead discards as well as the amount of 2010 underharvest (of 2010 adjusted quota) allowed by ICCAT to be carried forward to 2011. In addition to modifying the BFT base quotas and establishing the quota specifications, NMFS is proposing three Atlantic tunas management measures, including reinstating pelagic longline vessel target catch requirements for retaining BFT in the Northeast Distant Gear Restricted Area (NED); clarifying the regulations concerning Atlantic tunas possession at sea and landing to allow removal of Atlantic tunas tail lobes; and clarifying the Atlantic tunas transfer at sea regulations to address concerns raised in a recent decision by a NOAA Administrative Law Judge (see Atlantic Tunas Transfer at Sea section for case reference).

NMFS has prepared a draft Environmental Assessment (EA), Regulatory Impact Review (RIR), and an Initial Regulatory Flexibility Analysis (IRFA), which present and analyze anticipated environmental, social, and economic impacts of several alternatives for each of the major issues contained in this proposed rule. The complete list of alternatives and their analysis is provided in the draft EA/RIR/IRFA, and is not repeated here in its entirety. A copy of the draft EA/RIR/IRFA prepared for this proposed rule is available from NMFS ( see ADDRESSES ).

NMFS plans to make daily retention limit adjustments, if needed, for the 2011 fishing year via Federal Register notices separate from the final quota specifications. Federal regulations at 50 CFR 635.23 allow the establishment and adjustment of General and Angling category retention limits via inseason actions, and NMFS has in the past used inseason actions for this purpose ( i.e., to adjust daily retention limits).

ICCAT adopted a western BFT Total Allowable Catch (TAC) of 1,750 mt annually for 2011 and 2012 after considering the results of the 2010 western BFT stock assessment and following protracted negotiations among western BFT Contracting Parties (ICCAT Recommendation 10-03—Supplemental Recommendation by ICCAT concerning the western BFT Rebuilding Program). The 1,750-mt TAC, reduced from 1,800 mt for 2010, is expected to allow for continued stock growth under both the low and high stock recruitment scenarios.

ICCAT Recommendation 10-03 includes a revised allocation scheme that now includes the United Kingdom (in respect of Bermuda), France (in respect of St. Pierre and Miquelon), and Mexico. These three ICCAT Contracting Parties previously received western BFT allocations as specific tonnage directly from the TAC prior to application of the agreed allocation scheme (to the United States, Canada, and Japan). The amount of TAC allocated to the Contracting Parties depends on the amount of the overall recommended TAC. For 2011 and 2012, the net effect is that these Contracting Parties will receive the same amounts as they did in 2009 and 2010 (i.e., 4 mt, 4 mt, and 95 mt, respectively, for the United Kingdom, France, and Mexico).

For 2011 and 2012, the ICCAT Recommendation makes the following allocations from the 1,750-mt TAC for bycatch related to directed longline fisheries in the Northeast Distant gear restricted area (NED): 15 mt for Canada and 25 mt for the United States. Following subtraction of these allocations directly from the TAC, the recommendation allocates the remainder to the UK (0.23 percent), France (0.23 percent), Mexico (5.56 percent), the United States (54.02 percent), Canada (22.32 percent) and Japan (17.64 percent). For the United States, 54.02 percent of the remaining 1,710 mt is 923.7 mt annually for 2011 and 2012. This represents the baseline annual U.S. BFT quota analyzed in this EA. Accounting for the 25-mt NED allocation, the total U.S. quota is 948.7 mt annually (i.e., a decrease of 28.7 mt or 2.9 percent from the 2010 total U.S. quota of 977.4 mt).

The current ICCAT recommendation also maintains a provision from previous recommendations allowing a Contracting Party with a quota allocation to make a one-time transfer within a fishing year of up to 15 percent of its quota allocation to other Contracting Parties with quota allocations. Contracting Parties with an allocation of 4 mt or less may transfer up to 100 percent of their allocation. The ICCAT recommendation stipulates that the quota transfer may not be used to cover overharvests, and that a Contracting Party that receives a one-time quota transfer may not re-transfer that quota. Further, as a method for limiting fishing mortality on juvenile BFT, ICCAT continues to recommend a tolerance limit on the annual harvest of BFT measuring less than 115 cm to no more than 10 percent of the total bluefin quota per Contracting Party over the 2011 and 2012 fishing period. The United States implements this provision by limiting the harvest of school BFT (measuring 27 to less than 47 inches (68.5 to less than 119 cm curved fork length)) as appropriate to not exceed the 10-percent limit over the 2-year period.

Notably, ICCAT Recommendation 10-03 limits the amount of unused quota Contracting Parties may carry forward to 2011 to 10 percent of their total quota. This would limit the amount of 2010 U.S. underharvest carried forward to 2011 to 94.9 mt (10 percent of the 948.7 mt total U.S. quota). Previously, ICCAT Recommendation 06-06 reduced the amount of underharvest parties could carry forward from 100 percent of a Contracting Party's total allocation to 50 percent. This aspect of the ICCAT recommendation was maintained through 2010, but ICCAT recommended in 2008 that the amount be reduced effective for 2011 onward (Recommendation 08-04).

The 1999 FMP and its implementing regulations established baseline percentage quota shares for the domestic fishing categories. These percentage shares were based on allocation procedures that NMFS developed over several years, based on historical share, fleet size, effort, and landings by category, and stock assessment data collection needs. The baseline percentage quota shares established in the 1999 FMP and continued in the Consolidated HMS FMP (effective since June 1, 1999), are as follows: General category—47.1 percent; Harpoon category—3.9 percent; Purse Seine category—18.6 percent; Angling category—19.7 percent; Longline category—8.1 percent; Trap category—0.1 percent; and Reserve category—2.5 percent. The second column of the table below shows the proposed quotas that result from application of the Consolidated HMS FMP quota shares to the 2010 ICCAT-recommended baseline annual U.S. BFT quota. These quotas would be codified at § 635.27(a) and would remain in effect until ICCAT adopts a subsequent ICCAT western BFT recommendation. Because ICCAT adopted TACs for 2011 and 2012 in Recommendation 10-03, NMFS currently anticipates these base quotas to be in effect for 2012. NMFS would adjust these base quotas for the 2012 fishing year based on the best estimate of dead discards and information regarding over- or underharvests when the 2012 BFT quota specifications are prepared (likely in early 2012). As described below, 160 mt is used as a proxy for dead discards based on the 2009 estimate, which is the latest and best available estimate.

In recommendations that applied from 1999 through 2006, ICCAT historically recommended a deduction of 79 mt from the TAC as an allowance for dead discards, and the U.S. portion of this allowance was 68 mt. ICCAT recommendations from 2006 onward have neither included a recommended dead discard allowance nor specified a dead discard reporting methodology for compliance purposes. Nevertheless, the ICCAT-recommended TAC and U.S. quota are inclusive of dead discards. The United States accounts for this mortality as part of the domestic specification calculation process and reports dead discard estimates to ICCAT annually.

In 2007 through 2010, NMFS accounted for pelagic longline dead discards within the Longline category quota, and deducted the best available estimate of dead discards from the current year Longline base quota. In the quota specifications for these years, NMFS also carried forward the full amount of prior-year underharvest allowed by ICCAT and distributed the underharvest to: (1) Ensure that the Longline category has sufficient quota to operate during the fishing year after the required accounting for BFT dead discards; (2) maintain 15 percent of the 2010 U.S. quota in Reserve for potential transfer to other ICCAT Contracting Parties and other domestic management objectives, if warranted; and (3) provide the non-Longline quota categories a share of the remainder of the underharvest consistent with the allocation scheme established in the Consolidated HMS FMP. The amount of prior-year underharvest allowed to be carried forward to 2007 through 2010 was sufficient to provide the Longline category enough quota to operate after the required accounting for BFT dead discards.

Since dead discard estimates for 2010 are not yet available, the 2009 estimate of 160 mt is used as a proxy. Estimates of dead discards from other gear types and fishing sectors that do not use the pelagic longline vessel logbook are unavailable at this time and thus are not included in this calculation. Use of the 2009 estimate as a proxy is appropriate because it is the best available and most complete information NMFS currently has regarding dead discards. In accordance with the 2010 ICCAT recommendation, the United States must subtract 160 mt from its baseline allocation.

It is important to note that the ICCAT recommendation to limit the carrying forward of underharvest to 10 percent of a party's total allocation, combined with the level of dead discards in recent years, makes using the method employed in 2007 through 2010 impracticable for 2011 onward. The amount of underharvest that the United States may carry forward to 2011 (94.9 mt) is insufficient to cover dead discards (160 mt). Deducting the dead discards from the Longline category (with a baseline subquota of less than 75 mt) would result in a subquota of 0 mt for the Longline category in 2011 and the need for reduction of the directed fishing category subquotas and the Reserve to make up the difference (i.e., about 85 mt). The Longline category baseline quota allocation (currently 8.1 percent of the baseline annual U.S. BFT quota) may need to be revisited in the future, although adjustments to the FMP-based allocation scheme would require an amendment to the Consolidated HMS FMP.

To establish the 2011 quota specifications, NMFS would subtract the dead discard estimate of 160 mt from the U.S. baseline quota of 923.7 and add the 94.9 mt of underharvest allowed to be carried forward, for an adjusted total of 858.6 mt. NMFS then would apply the allocation scheme established in the Consolidated HMS FMP to the adjusted total (as shown in the final column of the table below) and described here. Thus, in accordance with the ICCAT Recommendation 10-03, the Consolidated HMS FMP percentage shares for each of the domestic categories, and regulations regarding annual adjustments at § 635.27(a)(10), NMFS proposes domestic category quotas for the 2011 fishing year as follows: General category—404.4 mt; Harpoon category—33.5 mt; Purse Seine category—159.7 mt; Angling category—169.1 mt; Longline category—69.5 mt; and Trap category—0.9 mt. The amount allocated to the Reserve category for inseason adjustments, scientific research collection, potential overharvest in any category except the Purse Seine category, and potential quota transfers would be 21.5 mt.

The proposed General category quota of 404.4 mt would be divided into the time period allocations established in the Consolidated HMS FMP. Thus, 21.4 mt (5.3 percent) would be allocated to the General Category for the period beginning January 1, 2011, and ending January 31, 2011; 202.2 mt (50 percent) for the period beginning June 1, 2011, and ending August 31, 2011; 107.2 mt (26.5 percent) for the period beginning September 1, 2011, and ending September 30, 2011; 52.6 mt (13 percent) for the period beginning October 1, 2011, and ending November 30, 2011; and 21 mt (5.2 percent) for the period beginning December 1, 2011, and ending December 31, 2011.

The Angling category quota of 169.1 mt would be further subdivided, pursuant to the area subquota allocations established in the Consolidated HMS FMP, as follows: School BFT—94.9 mt, with 36.5 mt to the northern area (north of 39°18′ N. latitude), 40.8 mt to the southern area (south of 39°18′ N. latitude), plus 17.6 mt held in reserve; large school/small medium BFT—70.4 mt, with 33.2 mt to the northern area and 37.2 mt to the southern area; and large medium/giant BFT—3.9 mt, with 1.3 mt to the northern area and 2.6 mt to the southern area.

The Longline category would be subdivided in accordance with the North/South allocation percentages (i.e., no more than 60 percent to the south of 31° N. latitude) in the Consolidated HMS FMP. Thus, the proposed Longline category quota of 69.5 mt would be subdivided as follows: 27.8 mt to pelagic longline vessels landing BFT north of 31° N. latitude, and 41.7 mt to pelagic longline vessels landing BFT south of 31° N. latitude. NMFS would account for landings under the 25-mt NED allocation separately from other Longline category landings.

NMFS has implemented a series of management measures designed to regulate the incidental catch of BFT in non-directed Atlantic fisheries. Target catch requirements for the retention of BFT have been in effect for the pelagic longline fishery since 1981 (46 FR 8012, January 26, 1981) and are currently as follows: One large medium or giant BFT ( i.e., measuring 73 inches or greater) per vessel per trip may be landed, provided that at least 2,000 lb of species other than BFT are legally caught, retained, and offloaded from the same trip and are recorded on the dealer weighout slip as sold; two large medium or giant BFT may be landed incidentally to at least 6,000 lb of species other than BFT; and three large medium or giant BFT may be landed incidentally to at least 30,000 lb of species other than BFT (68 FR 32414, May 30, 2003).

Pursuant to a 2001 Biological Opinion, NMFS closed the NED in July 2002 to HMS-permitted pelagic longline vessels and conducted a research experiment in this area on various pelagic longline gear modifications to reduce sea turtle bycatch and bycatch mortality in the pelagic longline fishery (67 FR 45393, July 9, 2002). The NED is the Atlantic Ocean area bounded by straight lines connecting the following coordinates in the order stated: 35°00′ N. lat., 60°00′ W. long.; 55°00′ N. lat., 60°00′ W. long.; 55°00′ N. lat., 20°00′ W. long.; 35°00′ N. lat., 20°00′ W. long.; 35°00′ N. lat., 60°00′ W. long. This fishing ground covers virtually the entire span of the western north Atlantic, as far east as the Azores and the Mid-Atlantic Ridge.

The regulations were adjusted to allow vessels to fish in the NED if they met specific gear requirements and practiced safe handling and release of sea turtles during the research experiment. Beginning in November 2003, these vessels were allowed to retain all commercial-sized (large medium and giant) BFT taken incidental to fishing for other species while in that area, up to the 25-mt NED allocation with no attendant target catch requirement (68 FR 56788, October 2, 2003). However, after the research experiment was completed and the NED reopened, NMFS did not reinstate the target catch requirements. Under the current regulations, it is only once the 25-mt allocation is met that the target catch requirements apply in the NED.

From 2004 until 2009, NED landings were less than the available quota for that area (25 mt), despite the lack of NED target catch requirements. In 2009, the 25-mt NED allocation was met during the fishing year, while northern area longline activity was ongoing. As a result, the bluefin tuna target catch requirements specified for the longline category became applicable in the NED from October 20-December 31, 2009 (74 FR 53671, October 20, 2009).

NMFS proposes to reinstate target catch requirements for pelagic longline vessels fishing in the NED. This action would effectively remove the exemption from target catch requirements that has applied in the NED since November 2003. NMFS would remove the provision that allows unlimited retention of commercial-sized BFT taken incidental to fishing for other species in the NED up to the amount allocated for the NED (currently 25 mt). Instead, the same target catch requirements (described in the first paragraph of this section) would apply in all areas ( i.e., both inside and outside of the NED).

Reinstating the target catch requirements in the NED would result in the same target catch requirements applying to all Longline category participants regardless of where they fish. Over the last several years, many individuals and environmental organizations have expressed concern that the lack of target catch requirements in the NED provides economic incentive to increase fishing effort to retain BFT in what is intended to be an incidental fishery. This action would help NMFS align BFT catch (landings and discards) with available quotas. In 2009, approximately 51 mt of BFT were landed from the NED, and total landings were 131 mt, 31 percent greater than the total 100 mt (landings quota) available for the Longline category. Constraining Longline category BFT landings to its quota serves to allow the fleet to continue to participate in their directed fisheries ( e.g., Atlantic yellowfin tuna (YFT) and swordfish) year-round with less risk of fishery interruption due to insufficient BFT quota availability. Further, it would reduce the need for BFT quota reallocation from directed fisheries or the Reserve to cover excess pelagic longline BFT landings. To address similar issues, as well as to increase the survival of spawning BFT, NMFS published a proposed rule to require weak hook use in the Gulf of Mexico pelagic longline fishery (76 FR 2313, January 13, 2011), and final rulemaking is forthcoming. Both of these efforts regarding the pelagic longline fishery are consistent with the agency's efforts to address bycatch issues and manage BFT catch and landings within available quotas.

The sole criterion for determining the size and/or size class of whole or round (head on) Atlantic tunas is a curved fork length (CFL) measurement, which is the length of a fish measured from the tip of the upper jaw to the fork of the tail along the contour of the body in a line that runs along the top of the pectoral fin and the top of the caudal keel.

When the head of an Atlantic tuna is removed, pectoral fin curved fork length (PFCFL) is the legal means of measuring the fish. PFCFL is the length of a fish measured from the dorsal insertion of the pectoral fin to the fork of the tail measured along the contour of the body in a line that runs along the top of the pectoral fin and the top of the caudal keel. The fork of the tail must be attached to the fish to attain proper CFL and PFCFL measurements. For a BFT with the head removed, the CFL is determined by multiplying the PFCFL by a conversion factor of 1.35. The resulting CFL is the sole criterion for determining the size class of a BFT with the head removed. For a bigeye or yellowfin tuna, NMFS prohibits the removal of the head if the remaining portion would be less than 27 inches from the fork of the tail to the forward edge of the cut.

The regulations regarding possession at sea and landing specify that managed Atlantic tunas landed in an Atlantic coastal port must be maintained through offloading either in round form or eviscerated with the head and fins removed, provided one pectoral fin and the tail remain attached. NMFS has received requests from commercial Atlantic tuna fisheries participants in the last few years, including via the HMS Advisory Panel, to allow removal of Atlantic tuna tails at sea to make fish storage more efficient. NMFS proposes to clarify the regulations regarding Atlantic tunas possession at sea and landing to specify that as long as the fork of the tail remains intact, the upper and lower lobes of the tail may be removed (as shown in the figure below). This would balance the need for maintaining a standardized method of measuring Atlantic tunas with the request to allow Atlantic tunas to be stored at sea in a more efficient manner. This rulemaking will not affect the measurement methodology or requirements for species other than Atlantic tunas.

Currently, the regulations regarding transfer at sea specify that, with a specific exception for owners and operators of a vessel for which a Purse Seine category Atlantic Tunas category permit has been issued, persons may not transfer an Atlantic tuna in the Atlantic Ocean, regardless of where the fish was harvested. Following a recent NOAA Administrative Law Judge decision involving the transfer of a BFT at sea [In the Matter of Brant McMullan & Roger A. Gales, Docket No. SE0900591FM (December 7, 2010)], NMFS has decided to clarify the intent of the Atlantic tunas transfer-at-sea regulations and prohibitions. NMFS proposes to add a sentence to the regulatory text regarding transfer at sea of Atlantic tunas that would read: “Notwithstanding the definition of “harvest” at § 600.10, for the purposes of this part, transfer includes, but is not limited to, moving or attempting to move an Atlantic tuna that is on fishing gear in the water from one vessel to another vessel.” In the future, NMFS may make similar clarifications regarding transfer at sea for other Atlantic highly migratory species via separate actions pertaining to those species.

NMFS solicits comments on this proposed rule through April 14, 2011. See instructions in ADDRESSES section above.

The public hearings will be physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Sarah McLaughlin at (978) 281-9279, at least 7 days prior to the hearing date.

Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that the proposed rule is consistent with the 2006 Consolidated HMS FMP, the Magnuson-Stevens Act, ATCA, and other applicable law, subject to further consideration after public comment.

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

An IRFA was prepared, as required by section 603 of the Regulatory Flexibility Act. The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A description of the action, why it is being considered, and the legal basis for this action are contained in the preamble to this proposed rule. A summary of the analysis follows. A copy of this analysis is available from NMFS ( see ADDRESSES ).

In compliance with section 603(b)(1) of the Regulatory Flexibility Act, the purpose of this proposed rulemaking is, consistent with the 2006 Consolidated HMS FMP objectives, the Magnuson-Stevens Act, and other applicable law, to analyze the impacts of the alternatives for implementing and allocating the ICCAT-recommended U.S. quota for 2011 and 2012; adjusting the 2011 U.S. quota and subquotas to account for BFT dead discards and unharvested 2010 quota allowed by ICCAT to be carried forward to 2011; reinstating pelagic longline target catch requirements for retaining BFT in the Northeast Distant Gear Restricted Area; amending the Atlantic tunas possession at sea and landing regulations to allow removal of tail lobes; and clarifying the transfer at sea regulations for Atlantic tunas.

In compliance with section 603(b)(2) of the Regulatory Flexibility Act, the objectives of this proposed rulemaking are to implement ICCAT recommendations, including accounting for BFT dead discards and underharvest of the 2010 adjusted quota in the 2011 quota specifications, implement uniform target catch requirements for Longline category participants regardless of where they fish, and clarify the regulations concerning Atlantic tunas possession at sea and landing and Atlantic tunas transfer at sea.

Section 603(b)(3) requires Agencies to provide an estimate of the number of small entities to which the rule would apply. The proposed quota action would apply to all participants in the Atlantic BFT fisheries, all of which are considered small entities, because they either had average annual receipts less than $4.0 million for fish-harvesting, average annual receipts less than $6.5 million for charter/party boats, 100 or fewer employees for wholesale dealers, or 500 or fewer employees for seafood processors. These are the Small Business Administration (SBA) size standards for defining a small versus large business entity in this industry. This action would apply to all participants in the Atlantic BFT fishery, all of which are considered small entities. As shown in Table 5 of the IRFA, there are over 32,000 vessels that held an Atlantic HMS Charter/Headboat, Atlantic HMS Angling, or an Atlantic tunas permit as of October 2010. These permitted vessels consist of commercial, recreational, and charter vessels as well as headboats.

Reinstatement of target catch requirements in the NED would affect those Longline category permitted vessels that fish in the NED. As shown in Table 9 of the IRFA, over the last 5 years, an annual total ranging from 6 to 10 vessels have reported trips in the NED and an annual total ranging from 4 to 8 vessels have landed BFT from the NED. However, to the extent that this action could avoid the need for fishery interruption due to insufficient BFT quota availability, it could affect all 248 Longline category permitted vessels.

Clarification of the Atlantic tunas landing form and transfer at sea regulations would be informative to owners and operators of Atlantic tunas permitted vessels and Atlantic HMS permitted vessels fishing for tunas, although material impacts are not expected to occur from the related changes in this action.

Under section 603(b)(4) of the Regulatory Flexibility Act, agencies are required to describe any new reporting, recordkeeping and other compliance requirements. There are no new reporting or recordkeeping requirements in any of the alternatives considered for this action.

Under section 603(b)(5) of the Regulatory Flexibility Act, agencies must identify, to the extent practicable, relevant Federal rules which duplicate, overlap, or conflict with the proposed rule. Fishermen, dealers, and managers in these fisheries must comply with a number of international agreements, domestic laws, and other FMPs. These include, but are not limited to, the Magnuson-Stevens Act, the Atlantic Tunas Convention Act, the High Seas Fishing Compliance Act, the Marine Mammal Protection Act, the Endangered Species Act, the National Environmental Policy Act, the Paperwork Reduction Act, and the Coastal Zone Management Act. This proposed rule has also been determined not to duplicate, overlap, or conflict with any other Federal rules.

Under section 603(c) of the Regulatory Flexibility Act, agencies are required to describe any alternatives to the proposed rule which accomplish the stated objectives and which minimize any significant economic impacts. These impacts are discussed below and in the EA. Additionally, the Regulatory Flexibility Act (5 U.S.C. 603(c)(1)-(4)) lists four general categories of significant alternatives that would assist an agency in the development of significant alternatives. These categories of alternatives are: (1) Establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities; (3) use of performance rather than design standards; and, (4) exemptions from coverage of the rule for small entities.

In order to meet the objectives of this proposed rule, consistent with Magnuson-Stevens Act and the Endangered Species Act (ESA), NMFS cannot exempt small entities or change the reporting requirements only for small entities because all the entities affected are considered small entities. Thus, there are no alternatives discussed that fall under the first and fourth categories described above. NMFS does not know of any performance or design standards that would satisfy the aforementioned objectives of this rulemaking while, concurrently, complying with the Magnuson-Stevens Act. Thus, there are no alternatives considered under the third category. As described below, NMFS analyzed several different alternatives in this proposed rulemaking and provides rationale for identifying the preferred alternative to achieve the desired objective. The alternatives considered and analyzed are described below. The IRFA assumes that each vessel within a category will have similar catch and gross revenues to show the relative impact of the proposed action on vessels.

NMFS has estimated the average impact that the alternative to establish the 2011 and 2012 BFT quota for all domestic fishing categories would have on individual categories and the vessels within those categories. As mentioned above, the 2010 ICCAT recommendation reduced the U.S. baseline BFT quota for 2011 and 2012 to 923.7 mt and provides 25 mt for incidental catch of BFT related to directed longline fisheries in the NED. This action would distribute the baseline quota of 923.7 mt to the domestic fishing categories based on the allocation percentages established in the Consolidated HMS FMP.

In 2010, the annual gross revenues from the commercial BFT fishery were approximately $8.9 million. As of October 2010, there were 8,311 vessels permitted to land and sell BFT under four commercial BFT quota categories (including charter/headboat vessels). The commercial categories and their 2010 gross revenues are General ($7.8 million), Harpoon ($202,643), Purse Seine ($0), and Longline ($878,908).

For the allocation of BFT quota among domestic fishing categories, NMFS analyzed a no action alternative and Alternative A2 (preferred alternative), which would implement the 2010 ICCAT recommendation. NMFS considered a third alternative (A3) that would have allocated the 2010 ICCAT recommendation in a manner other than that designated in the Consolidated HMS FMP. Alternative A3 would result in a de facto quota reallocation among categories, and an FMP amendment would be necessary for its implementation. Preparation of an FMP amendment is not possible in the brief period of time between receipt of the ICCAT recommendation, which occurred in late November 2010, and the 2011 fishing year, the bulk of which begins in June. Therefore, Alternative A3 was not analyzed. But, if an FMP amendment was feasible, positive economic impacts would be expected to result on average for vessels in permit categories that would receive a greater share than established in the FMP, and negative economic impacts would be expected to result on average for vessels in permit categories that would receive a lesser share than established in the FMP. Impacts per vessel would depend on the temporal and spatial availability of BFT to participants.

As noted above, Alternative A2 would implement the 2010 ICCAT recommendation in accordance with the Consolidated HMS FMP and consistent with ATCA, under which the United States is obligated to implement ICCAT-approved quota recommendations, as necessary and appropriate. The preferred alternative would implement this quota and have slightly positive impacts for fishermen. The no action alternative would keep the quota at pre-2010 ICCAT recommendation levels (approximately 29 mt more) and would not be consistent with the purpose and need for this action, the Consolidated HMS FMP, and ATCA. The economic impacts to the United States and to local economies would be similar in distribution and scale to 2010 (e.g., annual commercial gross revenues of approximately $8.9 million, as described above), or recent prior years, and would provide fishermen additional fishing opportunities, subject to the availability of BFT to the fishery, in the short term. In the long term, however, as stock growth is hindered, negative impacts would result.

It is difficult to estimate average potential ex-vessel revenues to commercial participants, largely because revenues depend heavily on the availability of large medium and giant BFT to the fishery. Section 6 of the EA/RIR/IRFA describes potential revenue losses per commercial quota category based on each category's proposed base quota reduction and price-per-pound information from 2010 ( i.e., $206,251 for the General category, $13,944 for the Harpoon category, $25,150 for the Longline category, and $1,093 for the Trap category); although the Purse Seine category had no BFT landings in 2010, potential revenue losses of $69,639 were estimated. As described in Section 4 of the EA/RIR/IRFA, because the directed commercial categories have underharvested their subquotas in recent years, particularly 2004-2008, the potential decreases in ex-vessel revenues above overestimate the probable economic impacts to those categories relative to recent conditions. Additionally, there has been substantial interannual variability in ex-vessel revenues per category in recent years due to recent changes in BFT availability and other factors. Generally, the interannual differences in ex-vessel revenues per category have been larger than the potential impacts described above.

Data on net revenues of individual fishermen are lacking, so the economic impact of the alternatives is averaged across each category. This is an appropriate approach for BFT fisheries, in particular because available landings data (weight and ex-vessel value of the fish in price-per-pound) allow NMFS to calculate the gross revenue earned by a fishery participant on a successful trip. The available data do not, however, allow NMFS to calculate the effort and cost associated with each successful trip ( e.g., the cost of gas, bait, ice, etc.), so net revenue for each participant cannot be calculated. As a result, NMFS analyzes the average impact of the proposed alternatives among all participants in each category.

Success rates vary widely across participants in each category (due to extent of vessel effort and availability of commercial-sized BFT to participants where they fish) but for the sake of estimating potential revenue loss per vessel, category-wide revenue losses can be divided by the number of permitted vessels in each category. Because HMS Charter/Headboat vessels may fish commercially under the General category quota and retention limits, Charter/Headboat permitted vessels are considered along with General category vessels when estimating potential General category ex-vessel revenue changes. Potential ex-vessel revenue losses are estimated as follows: General category (including Charter/Headboat vessels): $26; Harpoon category: $480; Longline category (incidental): $101; Trap category (incidental): $182; and Purse Seine category: $13,928. Section 6 of the EA/RIR/IRFA describes potential revenue losses per commercial quota category based on each category not having access to quota that would be available through the carrying forward of 2010 underharvest, were it not for the ICCAT recommendation that limits the amount that may be carried forward to 10 percent of a Contracting Party's total quota beginning effective for 2011. Potential ex-vessel revenue losses resulting from this change are estimated as follows: General category (including Charter/Headboat vessels): $107; Harpoon category: $4,808; Longline category (incidental): $1,014; Trap category (incidental): $519; and Purse Seine category: $139,278. These values likely overestimate potential revenue losses for vessels that actively fish and are successful in landing at least one BFT.

The proposed reinstatement of target catch requirements for pelagic longline vessels in the NED could, as described in Section 6.6.2 of the IRFA, result in a potential loss of $341,228. If this reduction is calculated for the universe of vessels participating in the NED over the last 5 years (range of 6-10 vessels), it would represent average potential ex-vessel reductions of $34,123-$56,871 per vessel. If the reduction is calculated across Longline category vessels, it would be $1,376 per vessel. In Section 6.6.2 of the IRFA, acknowledging that the 2009 number of BFT taken in the NED in 2009 may have been anomalous, NMFS also provided a figure for potential revenue loss of $42,408. This would represent average potential ex-vessel reductions of $4,241-$7,068 per vessel. If the reduction is calculated across Longline category vessels, it would be $171 per vessel.

However, the preferred alternative is expected to result in the most positive short and long-term socio-economic impacts for the majority of BFT fishery participants, including Longline category participants, as it would increase the likelihood that the Longline category quota will be available through the end of the year, without interruption, and decrease the potential need for reallocation from directed quota categories or quota reductions in subsequent years to cover Longline category excesses.

The other considered alternative was a no action alternative (maintaining the de facto exemption from target catch requirements for pelagic longline vessels fishing in the NED). The no action alternative risks exceeding the available Longline category quota, particularly in years where availability of commercial-sized BFT is high in the NED during directed pelagic longline activity for target species.

The modifications to the regulations concerning Atlantic tunas possession and landing form and Atlantic tunas transfer at sea are intended to facilitate Atlantic tunas storage and provide clarification, respectively. While these changes would apply to all vessels holding Atlantic tunas, HMS Charter/Headboat, and HMS Angling category permits (totaling approximately 33,000 vessels), they are not expected to have significant economic impacts. Therefore, NMFS has not analyzed alternatives beyond the preferred alternatives and no action. Specific estimates of economic impacts of these preferred alternatives are not quantifiable.

For the reasons set out in the preamble, 50 CFR part 635 is proposed to be amended as follows:

The Magnuson-Stevens Fishery Conservation and Management Act (MSA), 18 U.S.C. 1801 et seq., requires each regional fishery management council to submit any amendment to an FMP to NMFS for review and approval, disapproval, or partial approval. The MSA also requires that NMFS, upon receiving an amendment to an FMP, immediately publish notification in the Federal Register that the amendment is available for public review and comment. NMFS will consider the public comments received during the public comment period in determining whether to approve, disapprove, or partially approve Amendment 2.

Amendment 2 would revise the HMS FMP to ensure it is consistent with advisory guidelines published at 50 CFR 600.310. The guidelines describe fishery management approaches to meet the objectives of National Standard 1 (NS1) of the MSA, Section 301. The Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006 (MSRA) amended the MSA to include new requirements for annual catch limits (ACLs) and accountability measures (AMs) and other provisions regarding preventing and ending overfishing and rebuilding fisheries. NMFS revised NS1 Guidelines in response to these changes in the MSA. The NS1 Guidelines were published in the Federal Register on January 16, 2009. The Guidelines are intended to meet the objectives of NS1 by providing guidance on:

1. Specifying maximum sustainable yield (MSY) and optimal yield (OY);

2. Specifying status determination criteria (SDC) so that overfishing and overfished determinations can be made for stocks and stock complexes that are part of a fishery;

3. Preventing overfishing and achieving OY, incorporation of scientific and management uncertainty in control rules, and adaptive management using ACLs and measures to ensure accountability (AM); and

4. Rebuilding stocks and stock complexes.

The revisions to the NS1 guidelines also dictate that fisheries undergoing overfishing have ACLs and AMs in place to end overfishing by 2010, and all fisheries to have ACLs and AMs in place to prevent or end overfishing by 2011, and beyond. However, a stock or stock complex may not require an ACL and AMs if it qualifies for an MSRA-defined exception. The most important of these with respect to highly migratory species is the so-called “international exception” described at § 660.310(h)(2)(ii) for stocks managed under an international agreement to which the United States is a party. The NS1 Guidelines also have other provisions related to classifying stocks in the FMP.

In November 2009 the Council reviewed the Highly Migratory Species Management Team's (Management Team) recommendations on the range of issues related to amending the HMS FMP and provided further guidance on developing alternatives based on the following topics:

(1) Classification of stocks in the HMS FMP as management unit species or ecosystem component species;

(2) Potential application of the MSRA international exception for ACL requirements to management unit species in the HMS FMP;

(3) Determining the primary fishery management plan for managed species covered by both the HMS FMP and the Western Pacific Fishery Management Council's Pelagics Fishery Ecosystem Plan; and

(4) Establishing biological reference points and accountability measures.

At their April 2010 meeting, the Council adopted a set of alternatives for public review that were made available in the form of a preliminary draft environmental assessment. At the June 2010 meeting the Council took final action to adopt the preferred alternative, addressing the four issue areas listed above in the following manner: Bigeye thresher, Alopias superciliosus, and pelagic thresher, A. pelagicus, would be reclassified as ecosystem component species resulting in a total of 11 management unit species versus the current 13 management unit species under status quo. Based on these considerations there would be eight ecosystem component species included in the HMS FMP, including the two thresher shark species that are currently management unit species.

The international exception to setting ACLs described at § 660.310(h)(2)(ii) would be applied to all management unit species because they are subject to management by the Inter-American Tropical Tuna Commission, of which the U.S. is a member. The HMS FMP would be amended to discuss the process by which NMFS would make a determination of the primary FMP in consultation with the Western Pacific Fishery Management Council. The determination will be based on the stock, or portion of the stock (if stock structure is poorly understood and catch data is limited), for which reference points will be identified. The existing numerical estimates of MSY (or proxies), OY, and SDC, including the overfishing limit, would be retained. Upon the receipt of any new information based on the best available science, the Council may periodically adjust the numerical estimates of MSY, OY, and SDC. The adjustment would follow an established protocol whereby the HMSMT proposes MSY and OY estimates based on the best available science, which are included in the draft HMS Stock Assessment and Fishery Evaluation (SAFE) document submitted to the Council in June. The Council's Science and Statistical Committee would review the estimates and make a recommendation on their suitability for management. The Council would then decide whether to adopt updated numerical estimates of MSY and OY, which would be submitted as recommendations for NMFS to review as part of the management cycle process. This provides the opportunity for Secretarial review of revised MSY and OY estimates. In this process the Council would take final action in November and then NMFS would engage in rulemaking to implement the specifications and any management measures proposed by the Council.

The Council has submitted a proposed rule to implement Amendment 2 for Secretarial review. NMFS expects to publish and request public comment on the proposed rule in the near future.

The Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) requires that each regional fishery management council submit any fishery management plan amendment it prepares to NMFS for review and approval, disapproval, or partial approval by the Secretary of Commerce. The Magnuson-Stevens Act also requires that NMFS, upon receiving a fishery management plan amendment, immediately publish a notice in the Federal Register announcing that the amendment is available for public review and comment. This notice announces that proposed Amendment 34 to the Fishery Management Plan for Bering Sea/Aleutian Islands King and Tanner Crabs (Crab FMP) is available for public review and comment.

The king and Tanner crab fisheries in the exclusive economic zone of the Bering Sea and Aleutian Islands (BSAI) are managed under the Crab FMP. The groundfish fisheries in the exclusive economic zone of the Gulf of Alaska (GOA) are managed under the Fishery Management Plan for Groundfish of the Gulf of Alaska. The North Pacific Fishery Management Council (Council) prepared the Crab FMP and the Fishery Management Plan for Groundfish of the Gulf of Alaska under the Magnuson-Stevens Act. Amendments 18 and 19 amended the Crab FMP to include the Bering Sea and Aleutian Islands Crab Rationalization Program (CR Program). Regulations implementing Amendments 18 and 19 were published on March 2, 2005 (70 FR 10174), and are located at 50 CFR part 680. Regulations governing GOA groundfish fisheries are located at 50 CFR part 679.

The CR Program allocates BSAI crab resources among harvesters, processors, and coastal communities. The CR Program is a limited access privilege program for nine BSAI crab fisheries, in which participants receive exclusive harvesting and processing privileges for a portion of the total allowable catch (TAC) assigned to each crab fishery in the CR Program.

Under the CR Program, persons received quota share (QS) based on their historical participation in one or more of the CR Program crab fisheries during a specific time period. Quota share represents an exclusive but revocable privilege to receive an annual allocation to harvest a specific percentage of the TAC from a CR Program fishery. NMFS allocated QS to eligible harvesters in 2005, prior to the first year of crab fishing under the CR Program. Each year, a person who holds crab QS and submits a timely and complete crab permit application to NMFS receives an exclusive harvest privilege for a portion of the annual TAC for that crab fishery. This harvest privilege, called individual fishing quota (IFQ), is the annual allocation of pounds of crab for harvest that represent a QS holder's percentage of the TAC. Crab QS holders may form voluntary crab harvesting cooperatives to combine and cooperatively manage their aggregate QS holdings. Each cooperative that is approved by NMFS receives the amount of cooperative IFQ yielded by the aggregate QS holdings of all of the members of the cooperative.

The Council anticipated that crab harvesting cooperatives would significantly increase operating flexibility for crab fishermen because they could choose when and where to fish for IFQ. Crab fishermen in cooperatives also could potentially reduce costs by harvesting crab IFQs on fewer vessels during an extended season. The Council was concerned that increased flexibility for BSAI crab fishermen could give them an incentive to increase effort in other fisheries, which could economically disadvantage other participants in these fisheries.

The Council developed sideboards to prevent Bering Sea snow crab ( Chionoecetes opilio ) quota share recipients from increasing their participation in GOA groundfish fisheries, particularly in the GOA Pacific cod fishery. However, in order to enable those Bering Sea snow crab quota share recipients who also had significant participation in, or dependence on, the GOA Pacific cod fishery to maintain historical participation levels, the Council exempted certain qualified vessels and license limitation program (LLP) licenses from the GOA Pacific cod sideboard.

The CR Program's GOA groundfish sideboards were implemented in 2006. Under current regulations, CR Program sideboard limits apply to vessels that: (1) Harvest any species of GOA groundfish with the exception of sablefish harvested with fixed gear; (2) are not authorized to conduct directed fishing for pollock under the American Fisheries Act (AFA) of 1998 (Public Law 105-277, Title II of Division C); and (3) meet one or both of the following criteria: (a) Made a legal landing of Bering Sea snow crab between January 1, 1996, and December 31, 2000, that generated any amount of Bering Sea snow crab QS; or (b) are named on a GOA groundfish LLP license that was generated by the fishing history of a vessel that also generated Bering Sea snow crab QS. Vessels that meet these criteria subsequently will be referred to as “non-AFA crab vessels.” The CR Program did not establish sideboard limits for AFA vessels with historical participation in the Bering Sea snow crab fishery because these vessels are subject to GOA harvesting and processing restrictions under the AFA and in implementing regulations for the AFA (50 CFR 679.64(b)).

The Council primarily intended GOA groundfish sideboards to restrict vessels with Bering Sea snow crab catch history. However, the Council determined that, because LLP licenses are transferable, GOA groundfish sideboard limits should also apply to GOA groundfish LLP licenses derived from vessels with catch history that also generated Bering Sea snow crab QS. The LLP was implemented in 2000 to limit the number, size, and operation type (gear designation) of vessels that may be deployed in the groundfish fisheries in the exclusive economic zone of the BSAI and GOA, and in crab fisheries in the BSAI. Regulations require, with limited exceptions, that a vessel must be named on a legible copy of a valid LLP license that is on board the vessel in order to participate in a directed fishery for LLP species. NMFS issued LLP licenses based on the catch history of a vessel in specific fisheries (i.e., a vessel's qualifying catch history generated an LLP license). The Council extended the CR Program GOA groundfish sideboards to GOA groundfish LLP licenses derived from vessels with catch history that also generated Bering Sea snow crab quota to prevent crab QS recipients from circumventing the GOA groundfish sideboards by transferring an LLP license for use on a vessel that is not subject to the sideboards. Thus, any vessel named on a GOA groundfish LLP license that was generated by the GOA groundfish catch history of a non-AFA vessel that also generated Bering Sea crab QS is subject to the CR Program GOA non-AFA groundfish sideboards, even if the vessel named on the LLP license did not have historical landings that generated Bering Sea snow crab QS.

While most vessels and LLP licenses with catch history that generated Bering Sea snow crab QS are subject to the CR Program sideboard limits in GOA groundfish fisheries, some are exempt from the GOA Pacific cod sideboard. The Council established an exemption from the GOA Pacific cod sideboard limits for non-AFA crab vessels that demonstrated minimal participation in, or dependence on, the Bering Sea snow crab fishery and sufficient participation in, or dependence on, the GOA Pacific cod fishery from 1996 through 2000. Non-AFA crab vessels that are exempt from the GOA Pacific cod sideboard limits do not have to stop fishing for GOA Pacific cod when the sideboard limit is reached and may continue to fish as long as directed fishing for Pacific cod is open. The catch history of exempt participants is not included in the GOA Pacific cod non-AFA crab vessel sideboard limit calculations, and NMFS does not count the GOA Pacific cod catch of exempt vessels toward the non-AFA crab vessel sideboard limit.

Each year, NMFS calculates the non-AFA crab vessel sideboard limits for GOA groundfish species. The sideboard limit is calculated as a ratio of the amount of each groundfish species retained by non-AFA crab vessels from 1996 to 2000, relative to the total retained catch of each species by all vessels during the same period. This calculation yields a fixed ratio, or percentage, that is multiplied by the annual TAC for each GOA groundfish sideboard species to determine the non-AFA crab vessel sideboard limit (in metric tons) for GOA groundfish species.

NMFS opens directed fishing for a sideboard species for non-AFA crab vessels only when it determines that any directed fishery harvest for that species—and the incidental catch needs for that species by non-AFA crab vessels in other fisheries—would not exceed the sideboard limit. The CR Program GOA groundfish sideboard limits restrict the catch of non-AFA crab vessels in the aggregate. All targeted or incidental catch of a GOA groundfish sideboard species made by non-AFA crab vessels subject to the sideboard is deducted from the sideboard limit. NMFS closes directed fishing for vessels subject to a sideboard limit when NMFS determines that the remainder of a GOA groundfish sideboard limit is needed for incidental catch by non-AFA crab vessels in other fisheries.

Since 2006, NMFS has determined that only Pacific cod non-AFA crab vessel sideboard limits in two GOA management areas were large enough to open a directed sideboard fishery. Although NMFS opened directed fishing for Pacific cod for non-AFA crab vessels subject to the sideboard limit, the relatively small sideboard limit amounts prompted NMFS to close directed fishing for these vessels earlier than it closed directed fishing for vessels that were not subject to sideboard limits. All other GOA sideboard species, including pollock, have been closed to directed fishing by non-AFA crab vessels subject to the CR Program groundfish sideboard limits because the sideboard limits were determined by NMFS to be insufficient to support both directed and incidental catch needs for these vessels.

The Council was prompted to reexamine the CR Program GOA groundfish sideboard limits by non-AFA crab vessel operators who testified that some sideboard limits were too restrictive. These operators indicated that they had historically participated in GOA Pacific cod and pollock fisheries at levels that demonstrated sufficient dependence on these fisheries and had received Bering Sea crab quota share at levels that demonstrated minimal dependence on the Bering Sea snow crab fishery. Some Bering Sea snow crab QS recipients testified to the Council that the earlier closure of directed fishing for Pacific cod for non-AFA crab vessels subject to sideboard limits, as well as the complete closure of directed fishing for pollock for vessels subject to sideboard limits, represented a lost fishing opportunity for their vessels and thus, potential lost revenue from Pacific cod and pollock catch. Based on this public testimony and a review of the effects of the sideboard limits in the 2005/2006 and 2006/2007 crab fishing years, the first 2 years of the CR Program, the Council determined that the sideboard restrictions for the GOA Pacific cod and pollock fisheries should be re-examined. The Council initiated an analysis in December 2007 to examine alternatives that would expand the criteria for non-AFA crab vessels to qualify for an exemption from the Pacific cod sideboard limits and would extend a similar exemption to the pollock sideboard limits. In October 2008, the Council recommended Amendment 34 to the Crab FMP to exempt additional vessels and groundfish LLP licenses from the GOA Pacific cod and pollock sideboard limits.

Amendment 34 would implement two actions. Action 1 would revise the GOA Pacific cod sideboard limit exemption criteria for non-AFA crab vessels. Action 2 would establish new GOA pollock sideboard limit exemption criteria for non-AFA crab vessels. NMFS estimates that, in addition to the five vessels and five groundfish LLP licenses that are currently exempt, the Council's preferred alternative for Action 1 would exempt three non-AFA crab vessels and three groundfish LLP licenses from GOA Pacific cod sideboard limits, for an estimated total of eight vessels and eight LLP licenses that would be exempt from the GOA Pacific cod sideboard. For Action 2, NMFS estimates that the Council's preferred alternative would exempt one non-AFA crab vessel and one groundfish LLP license from the GOA pollock sideboard limits. Exemptions from the sideboard harvest limits would provide an opportunity for these crab QS recipients to participate in the GOA Pacific cod and pollock fisheries at historical levels. The Council determined that the potential increased participation by these participants in GOA Pacific cod and pollock fisheries was unlikely to significantly impact other participants in these fisheries.

The Regulatory Impact Review and Initial Regulatory Flexibility Analysis prepared for this action describes the costs and benefits of the proposed amendment ( see ADDRESSES ). All of the directly regulated entities would be expected to benefit from this action relative to the status quo because the proposed amendment would allow crab QS recipients with demonstrated dependence on GOA Pacific cod and pollock fisheries to participate in these fisheries at historical levels.

Public comments are being solicited on proposed Amendment 34 to the Crab FMP through the end of the comment period ( see DATES ). NMFS intends to publish in the Federal Register , and seek public comment on, a proposed rule that would implement Amendment 34, following NMFS's evaluation of the proposed rule under the Magnuson-Stevens Act. Public comments on the proposed rule must be received by the end of the comment period on Amendment 34 ( see DATES ) to be considered in the approval/disapproval decision on Amendment 34. All comments received by the end of the comment period, whether specifically directed to Amendment 34 or the proposed rule, will be considered in the FMP approval/disapproval decision. To be considered, comments must be received, not just postmarked or otherwise transmitted, by the close of business on the last day of the comment period. Comments received after that date will not be considered in the approval/disapproval decision on the amendment.