Title III, Part B  1 of the Energy Policy and Conservation Act of 1975 (EPCA or the Act), Public Law 94-163 (42 U.S.C. 6291-6309, as codified) sets forth a variety of provisions designed to improve energy efficiency and established the Energy Conservation Program for Consumer Products Other Than Automobiles, 2 a program covering most major household appliances (collectively referred to as “covered products”), which includes the types of residential boilers and furnaces that are the subject of this notice. (42 U.S.C. 6292(a)(5)) Under the Act, this program consists essentially of three parts: (1) Testing; (2) labeling; and (3) establishing Federal energy conservation standards. Of particular relevance here, the statute authorizes the Secretary of Energy to prescribe test procedures that are reasonably designed to produce results which measure energy efficiency, energy use, or estimated operating costs, and that are not unduly burdensome to conduct. (42 U.S.C. 6293(b)(3)) Under EPCA's testing requirements, manufacturers of covered products must use these test procedures as the basis for certifying to DOE that their products comply with applicable energy conservation standards adopted pursuant to EPCA and for representing the efficiency of those products. (42 U.S.C. 6293(c); 42 U.S.C. 6295(s))

Pursuant to the amendments to EPCA contained in section 310(3) of the Energy Independence and Security Act of 2007 (EISA 2007), any final rule for new or amended energy conservation standards promulgated after July 1, 2010 must address standby mode and off mode energy use. (42 U.S.C. 6295(gg)(3)) Specifically, when DOE adopts an energy conservation standard for a covered product after that date, it must, if justified by the criteria for adoption of standards under 42 U.S.C. 6295(o), incorporate standby mode and off mode energy use into a single standard, if feasible, or, if that is not feasible, adopt a separate standard for such energy use for that product. (42 U.S.C. 6295(gg)(3)(A)-(B)) Because the current energy conservation standard rulemaking for residential furnaces will be completed after July 1, 2010, DOE conducted a test procedure rulemaking for these products and published a final rule in the Federal Register on October 20, 2010 (the October 2010 final rule), which included methods for measuring standby mode and off mode energy consumption. 75 FR 64621. More specifically, this test procedure final rule included a standby mode and off mode metric, E so , and modified the calculation of annualized auxiliary electrical use (E ae ) for gas or oil-fired furnaces or boilers and annual electric energy consumption (E e ) for electric furnaces or boilers to account for standby mode and off mode power consumption. Id. at 64632. The test procedure for residential furnaces and boilers is contained in title 10 of the Code of Federal Regulations (CFR) part 430, subpart B, appendix N.

The statute mandates that 180 days after an amended or new test procedure is prescribed, no manufacturer, distributor, retailer, or private labeler may make any representation about a product with respect to energy use or efficiency unless that product has been tested in accordance with such amended or new test procedure and the representation fairly discloses the results of such testing. (42 U.S.C. 6293(c)(2)) However, if a petition is submitted at least 60 days prior to the end of the initial 180-day period, the Secretary may extend the 180-day period by up to an additional 180 days (but in no event for more than 180 days) with respect to that petitioner, if it is determined that complying with the requirements of 42 U.S.C. 6293(c)(2) would impose an undue hardship on the petitioner. (42 U.S.C. 6293(c)(3))

Between February 14, 2011 and February 17, 2011, DOE received 29 petitions from 27 manufacturers  3 regarding the compliance date for the October 2010 test procedure final rule for residential furnaces and boilers. All of these petitions are available as part of Docket Number EERE-2008-BT-TP-0020. 4 Specifically, all but one petitioner requested that DOE extend the April 18, 2011 compliance date specified in the final rule by 180 days, arguing that compliance with the April 18, 2011 deadline would place an unnecessary burden upon each company. The remaining petitioner, Rheem Manufacturing Company, similarly requested DOE extend the compliance date; however, this company requested that the new compliance date be extended to end of the 2011 calendar year or by the maximum amount allowed by law, whichever is longer. The petitioners were: (1) Adams Manufacturing Company; (2) Allied Air Enterprises; (3) Bard Manufacturing Co. Inc.; (4) Boyertown Furnace; (5) Carrier Corporation; (6) Crown Boiler; (7) De Dietrich Boilers; (8) ECR International Inc.; (9) Goodman Manufacturing Company; (10) HTP Inc.; (11) Johnson Controls Inc.; (12) Laars Heating Systems Company; (13) Lennox International Inc.; (14) Lochinvar; (15) Newmac Furnace Company; (16) New Yorker Residential Heating Boilers; (17) Nordyne; (18) NY Thermal Inc.; (19) Peerless Boilers Heat LLC; (20) Raypak Inc.; (21) Rheem Manufacturing Company; (22) Slant/Fin; (23) Thermo Products LLC; (24) Trane; (25) Triangle Tube; (26) US Boiler Company; and (27) Weil-McLain. All petitions were timely filed, in that they were submitted prior to 60 days before the end of the 180-day period specified in 42 U.S.C. 6293(c)(3). All 29 petitions were very similar in form and content, as discussed in further detail below.

E ae is a measure of the electrical energy use of a gas or oil-fired furnace over a one-year period. The petitioners noted that the amended definition of E ae , which was redefined in the final rule to include E so , may be considered a representation of standby mode and off mode energy consumption now because it includes E so . However, because the final rule had focused on the E so descriptor itself and because manufacturers were under no obligation to publish results for E so by April 18, 2011, the petitioners only recently came to realize the indirect implications of the amended test procedure on the E ae metric, which is widely used in the industry. As a result, the petitioners all argued that under the current deadline the revisions to the E ae calculation to include E so would force the industry to either: (1) Retest all of its basic models in two months; or (2) remove the E ae listings from the AHRI product directory. On the first point, the petitioners asserted that it would be impracticable to conduct the requisite testing in the available time period, particularly given the substantial number of products to be tested and the limited capacity of facilities to conduct such testing. On the second point, the petitioners stated that the E ae listings are useful to customers, because many utilities and other third parties operate a variety of rebate programs and other programs predicated on the E ae descriptor. For this reason, the petitioners argued that removal of the listings would be undesirable for both manufacturers and consumers, potentially leading to confusion in the marketplace. Furthermore, the manufacturers would have to change all their product literature and Web sites where E ae is used by the current compliance date. In practice, manufacturers would have to communicate and explain the changes down their distribution chains to distributors, retailers and customers, and adjust inventory management and order systems. Because there is no requirement or reason to advertise E so at the present time, manufacturers argued these efforts would represent undue burden and unintended consequence of the October 2010 test procedure final rule.

Additionally, all petitioners made the point that the amended DOE test procedure for residential furnaces and boilers contains provisions for measuring standby mode and off mode energy consumption that reference the first edition of the International Electrotechnical Commission (IEC) Standard 62301, “Household electrical appliances—Measurement of standby power,” but that a draft second edition of that standard was issued on October 29, 2010, for a final approval vote. (DOE notes that IEC Standard 62301 (Second Edition) has been issued by the IEC with a final publication date of January 27, 2011.) According to the petitioners, granting the requested extension of the compliance date would allow DOE to update the relevant references in its test procedure, thereby ensuring that furnace and boiler manufacturers are not subject to procedures with obsolete references.

Fourteen petitioners from 13 companies also expressed concern about the effects of the amended test procedure on the “e” descriptor. While not an official DOE descriptor, “e” is used by utility incentive programs and certain Federal agencies to identify electrically-efficient furnaces. The value for this descriptor is dependent on E ae, and because the October 2010 final rule's amendments to the DOE test procedure redefined E ae , the petitioners argued that some models may no longer be considered electrically efficient. According to these petitioners, the revisions appear to disproportionately affect the “e” value of units with lower input capacities, meaning that the required changes to this calculation are not readily apparent and will require more testing than originally anticipated. Therefore, the requested extension of the compliance date would provide additional time for adequate consideration of the ramification of the changes to the “e” descriptor.

Through today's notice, DOE announces receipt of petitions requesting a 180-day extension of the April 18, 2011 compliance date in the October 2010 furnace and boiler test procedure final rule from the following 27 companies: (1) Adams Manufacturing Company; (2) Allied Air Enterprises; (3) Bard Manufacturing Co. Inc.; (4) Boyertown Furnace; (5) Carrier Corporation; (6) Crown Boiler; (7) De Dietrich Boilers; (8) ECR International Inc.; (9) Goodman Manufacturing Company; (10) HTP Inc.; (11) Johnson Controls Inc.; (12) Laars Heating Systems Company; (13) Lennox International Inc.; (14) Lochinvar; (15) Newmac Furnace Company; (16) New Yorker Residential Heating Boilers; (17) Nordyne; (18) NY Thermal Inc.; (19) Peerless Boilers Heat LLC; (20) Raypak Inc.; (21) Rheem Manufacturing Company; (22) Slant/Fin; (23) Thermo Products LLC; (24) Trane; (25) Triangle Tube; (26) US Boiler Company; and (27) Weil-McLain.

The intent of the amended test procedure was to require manufacturers to test for standby mode and off mode power at this time only if they intended to publicize such information, and for the above-stated reasons regarding the volume of and limited time available for testing, DOE agrees that requiring all basic models to be retested before April 18, 2011, would place an undue burden upon the petitioners. Likewise, DOE does not believe that it would be appropriate to prevent the dissemination of representations regarding auxiliary electrical energy consumption of residential furnaces and boilers, because consumers may find such information beneficial. Furthermore, DOE agrees that a 180-day extension would not be expected to harm consumers or undermine the purpose of the final rule. For these reasons, and given that the petitioners fulfilled their obligations under 42 U.S.C. 6293(c)(3), DOE hereby issues this Decision and Order which grants the 27 petitioners above an extension of 180 days for compliance with the amended provisions of the furnaces and boilers test procedure final rule that was published in the Federal Register on October 20, 2010. Accordingly, the petitioners must meet a new compliance date of October 15, 2011. With respect to Rheem's request that DOE extend the compliance date to the end of the calendar year 2011, DOE reiterates that the maximum extension allowed by the statute is 180 days. As such, DOE denies Rheem's request.

DOE notes that this extension does not release petitioners from the certification requirements set forth in 10 CFR 430.62.

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the Federal Register on November 23, 2010 (75 FR 71371). That NPRM proposed to correct an unsafe condition for the specified products. The MCAI states:

We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM.

We updated the revision levels to the two referenced Thielert Operation & Maintenance Manuals, and corrected a manual number reference error in paragraph (e)(2) of this AD.

We reviewed the available data and determined that air safety and the public interest require adopting the AD with the changes described previously. We determined that these changes will not increase the economic burden on any operator or increase the scope of the AD.

Based on the service information, we estimate that this AD will affect about 112 engines installed on airplanes of U.S. registry. We also estimate that it will take about 0.5 work-hour per engine to comply with this AD. The average labor rate is $85 per work-hour. There are no required parts cost. Based on these figures, we estimate the cost of the AD on U.S. operators to be $4,760.

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

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

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

For the reasons discussed above, I certify this AD:

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

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

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

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

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the Federal Register on December 21, 2010 (75 FR 79984), and proposed to supersede AD 2010-10-18, Amendment 39-16297 (75 FR 27406, May 17, 2010). That NPRM proposed to correct an unsafe condition for the specified products. The MCAI states:

We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM or on the determination of the cost to the public.

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

We 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 required different actions in this AD from those in the MCAI in order to follow our FAA policies. Any such differences are highlighted in a NOTE within the AD.

We estimate that this AD will affect about 67 products of U.S. registry.

The actions that are required by AD 2010-10-18 and retained in this AD take about 9 work-hours per product, at an average labor rate of $85 per work-hour. Required parts cost about $0 per product. Based on these figures, the estimated cost of the currently required actions is $765 per product.

We estimate that it will take about 1 work-hour per product to comply with the new basic requirements of this AD. The average labor rate is $85 per work-hour. Required parts will 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 this AD to the U.S. operators to be $5,695, or $85 per product.

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

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

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

For the reasons discussed above, I certify this AD:

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

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

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

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

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

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

The collections of information contained in these final regulations have been reviewed and approved by the Office of Management and Budget in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) under control number 1545-0951.

The collections of information in the regulations are in sections 901.1(i), 901.1(j), 901.10, 901.11(d), 901.11(f)(2)(D), 901.11(f)(2)(G) and (H), 901.11(f)(3)(ii), 901.11(g)(3), 901.11(j)(1), 901.11(j)(2), 901.11(k), 901.11(l)(4)(v), 901.12(e), and 901.54. These collections of information are required in order for the Joint Board to carry out its function under section 3042 of ERISA, which provides that the Joint Board shall, by regulations, establish reasonable standards and qualifications for persons performing actuarial services with respect to plans subject to ERISA and, upon application by any individual, shall enroll such individual if the Joint Board finds that such individual satisfies such standards and qualifications, and also provides that the Joint Board may, after notice and an opportunity for a hearing, suspend or terminate the enrollment of an individual who fails to discharge his duties under ERISA or who does not satisfy the requirements for enrollment.

An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a valid control number.

This document contains final regulations under section 3042 of the Employee Retirement Income Security Act of 1974 (88 Stat. 829), Public Law 93-406 (ERISA). Section 3042 of ERISA provides that the Joint Board for the Enrollment of Actuaries (Joint Board) shall, by regulations, establish reasonable standards and qualifications for persons performing actuarial services with respect to plans subject to ERISA and, upon application by any individual, shall enroll such individual if the Joint Board finds that such individual satisfies such standards and qualifications. Section 3042 also provides that the Joint Board may, after notice and an opportunity for a hearing, suspend or terminate the enrollment of an individual who fails to discharge his duties under ERISA or who does not satisfy the requirements for enrollment.

Consistent with section 3042, the Joint Board has promulgated regulations at 20 CFR part 901, addressing eligibility for enrollment, requirements for continuing professional education of enrolled actuaries, professional standards for performance of actuarial services under ERISA, bases for disciplinary actions and the procedures to be followed in taking those actions. The Joint Board last issued comprehensive amendments to the regulations regarding section 3042 in 1988 (53 FR 34484). In anticipation of amending the Joint Board regulations, the Joint Board issued a Request for Information (RFI) which was published in the Federal Register on June 30, 2004 (69 FR 39376). On December 21, 2007, the Joint Board issued final regulations relating to user fees for the initial enrollment and reenrollment as an enrolled actuary in the Federal Register (72 FR 72606). On September 21, 2009, the Joint Board issued proposed regulations under section 3042 (74 FR 48030). Written public comments were received on the proposed regulations, and a public hearing was held on February 25, 2010.

These regulations finalize the rules proposed in REG-159704-03 (published September 21, 2009), with certain modifications highlighted in this preamble.

These regulations provide that an individual applying to be an enrolled actuary must fulfill (1) an experience requirement, (2) a basic actuarial knowledge requirement, and (3) a pension actuarial knowledge requirement. All applicants for enrollment must agree to comply with these regulations and with any other guidance as required by the Joint Board.

These regulations provide two alternative ways of satisfying the experience requirement. Within the 10-year period immediately preceding the date of the application, the applicant must have completed either (1) at least 36 months of certified responsible pension actuarial experience, or (2) at least 18 months of certified responsible pension actuarial experience if the applicant has a total of 60 months of certified responsible actuarial experience.

These regulations retain the definitions of responsible actuarial experience and responsible pension actuarial experience. Responsible actuarial experience means actuarial experience (1) involving participation in making determinations that the methods and assumptions adopted in the procedures followed in actuarial services are appropriate in the light of all pertinent circumstances, and (2) demonstrating a thorough understanding of the principles and alternatives involved in such actuarial services. Responsible pension actuarial experience means responsible actuarial experience involving valuations of the liabilities of pension plans, wherein the performance of such valuations requires the application of principles of life contingencies and compound interest in the determination, under one or more standard actuarial cost methods, of such of the following as may be appropriate in the particular case: (1) Normal cost; (2) accrued liability; (3) payment required to amortize a liability or other amount over a period of time; and (4) actuarial gain or loss.

These regulations define certified responsible actuarial experience to mean responsible actuarial experience of an individual that has been certified in writing by the individual's supervisor. These regulations define certified responsible pension actuarial experience to mean responsible pension actuarial experience of an individual that has been certified in writing by the individual's supervisor if the supervisor is an enrolled actuary. If the individual's supervisor is not an enrolled actuary, these regulations provide that the pension actuarial experience must be certified in writing by both the supervisor and an enrolled actuary with knowledge of the individual's pension actuarial experience.

One commenter requested greater flexibility in satisfying the experience requirements for enrollment based on experience in more specialized pension areas of practice. These regulations retain the requirement that enrolled actuaries have certified responsible pension actuarial experience as previously defined because the Joint Board believes that a broad base of pension knowledge is necessary to recognize issues that may arise even in a specialized area of practice. Nonetheless, the Joint Board recognizes that the broad base of experience needed to become an enrolled actuary does not qualify an enrolled actuary to do every type of work for which an enrolled actuary is required.

In response to the proposed regulation, one commenter suggested that, given the pace of change and for consistency with the experience requirement for return from inactive status, all of an applicant's responsible pension experience should be completed within 5 years preceding enrollment (rather than 10 years). The commenter pointed out that for reenrollment under the proposed regulations, an inactive enrolled actuary would need more recent experience. These regulations retain the rule in the current regulations that requires the experience for initial enrollment to have been completed within the previous 10 years, and, as explained in more detail in section IV of this preamble (Inactive Enrolled Actuaries), they retain the requirements in the proposed regulations for an enrolled actuary who wishes to return to active status from inactive status that depends on how long the actuary has been on the inactive roster. The difference in the timing of the required experience for initial enrollment and for returning from inactive status reflects the different purposes served by the two requirements. The Joint Board requires enrolled actuaries who let their enrollment lapse into inactive status to demonstrate their return to active practice with more recent experience. It can be expected that, in general, such actuaries are farther along in their careers and are more likely to quickly build up, or return to, an active independent practice. For such actuaries, the Joint Board believes that recent pension experience is paramount. In contrast, it can be expected that newly enrolled actuaries will take longer to develop active independent practices. For these actuaries, the Joint Board believes that a longer look-back period is reasonable.

In response to the proposed regulations, one commenter suggested that, in order to make sure that an actuary does not lose the opportunity to get credit for responsible actuarial and responsible pension actuarial experience, enrolled actuaries should be required to certify the experience of potential candidates annually and when the potential candidate changes supervisor or employer. The Joint Board feels it is not necessary to add this additional paperwork requirement for enrolled actuaries who supervise and train actuaries who are not yet enrolled. The Joint Board will address on a case-by-case basis situations involving the inability of the Executive Director to obtain certification of an applicant's experience.

These regulations do not amend the definition of basic actuarial knowledge required for initial enrollment. Basic actuarial knowledge may be obtained in one of three ways—successful completion of a Joint Board basic examination; successful completion of one or more proctored examinations which are given by an actuarial organization and which the Joint Board has determined cover substantially the same subject areas, have at least comparable levels of difficulty, and require at least the same competence as the Joint Board basic examination; or receipt of a bachelor's or higher degree in either actuarial mathematics or another area which include at least as many semester hours or quarter hours as required by the Joint Board in mathematics, statistics, actuarial mathematics, and other areas determined by the Joint Board.

These regulations provide that an applicant may demonstrate pension actuarial knowledge through successful completion, within the 10-year period immediately preceding the date of the application for enrollment, of either the Joint Board pension examination (currently administered as the EA-2A and EA-2B), or an approved pension examination, or examinations, given by an actuarial organization which the Joint Board has determined cover substantially the same subject areas, have at least comparable levels of difficulty, and require at least the same competence as the Joint Board pension examination. For this purpose, these regulations provide that the date of successful completion of an examination is generally the date a candidate sits for the examination, provided that the candidate receives a passing grade on that examination. However, an applicant who sat for a given examination prior to the effective date of these regulations will be deemed to have sat for such examination on the effective date.

These regulations do not change the requirement that an enrolled actuary seeking to renew his or her enrollment must file an application for renewal of enrollment between October 1, 2010 and March 1, 2011, and between October 1 and March 1 of every third year thereafter. An enrolled actuary seeking renewal must complete the required continuing professional education hours prior to submitting an application for renewal, but in no event later than the December 31 immediately preceding the March 1 due date for the application for renewal. These regulations continue to provide that the effective date for renewal of enrollment for individuals who are currently enrolled (and in active status) and who file complete renewal applications by the March 1 due date shall be the April 1 immediately following the March 1 due date. The effective date of renewal of enrollment for an individual who files a complete renewal application after the March 1 due date is the later of the April 1 immediately following the due date of application and the date of the notice of renewal.

These regulations retain the general requirement that an enrolled actuary earn 36 hours of continuing professional education during each full enrollment cycle. These regulations define the enrollment cycle to mean the three-year period from January 1, 2011, to December 31, 2013, and every three-year period thereafter.

Several commenters suggested that the time period for earning continuing professional education credit should extend beyond the end of the enrollment cycle. The Joint Board decided that it is reasonable to expect enrolled actuaries to make time for satisfying their continuing professional education requirement during the enrollment cycle and that extending the end of each enrollment cycle so that it overlaps with the beginning of the next enrollment cycle would create an unnecessary complication. However, an enrolled actuary who does not complete the required hours by December 31 of the enrollment cycle may submit an application to return to active status after completing the required hours. Such an individual's reenrollment will be effective on the later of (1) the April 1 immediately following the end of the enrollment cycle or (2) the date that the Joint Board grants the application. These regulations include examples that illustrate when an enrolled actuary's reenrollment will be effective.

These regulations make no change to the rule that newly enrolled actuaries who are initially enrolled during the first year of an enrollment cycle must complete 24 hours of continuing professional education hours in the enrollment cycle during which they are enrolled. Newly enrolled actuaries who are initially enrolled during the second year of an enrollment cycle must complete 12 hours of continuing professional education hours in the enrollment cycle during which they are enrolled. Newly enrolled actuaries who are initially enrolled during the last year of an enrollment cycle are exempt from the continuing education requirements until the next enrollment cycle, but must file a timely application for renewal.

These regulations require at least 18 hours of continuing professional education in core subject matter during the enrollment cycle that ends December 31, 2010, for all enrolled actuaries enrolled during the entire cycle. Thereafter, for actuaries who have already been enrolled for at least one full enrollment cycle before the start of a new enrollment cycle, these regulations provide that only 12 of the 36 hours of required continuing professional education during the new enrollment cycle must consist of core subject matter.

These regulations provide that the required continuing professional education hours must be earned after January 1 of the year the enrolled actuary becomes enrolled. Half of the required hours for newly enrolled actuaries must be comprised of core subject matter.

The Joint Board received comments both in favor of and against the proposed two-tiered requirement that 18 hours of continuing professional education be core subject matter for enrolled actuaries during their first full enrollment cycle but only 12 hours be core subject matter for each subsequent enrollment cycle. In light of the complexity and rapid changes in core subject matter, the Joint Board feels that some ongoing education in core subject matter is always necessary. On the other hand, the Joint Board wishes to encourage enrolled actuaries at every level of experience to satisfy a portion of their continuing professional education requirement through participation in non-core programs that are designed to enhance their knowledge in matters related to the performance of pension actuarial services. The Joint Board feels that the two-tiered approach is the best way to achieve that result. Accordingly, these regulations adopt the two-tiered requirement as proposed.

For each full enrollment cycle beginning after December 31, 2010, these regulations require at least 2 of the required core hours of continuing professional education to relate to ethical standards. Some commenters suggested either not treating continuing professional education on ethical standards as core subject matter or increasing the number of hours required to consist of core subject matter by 2 hours to account for the ethics requirement. The Joint Board feels that fidelity to the high ethical standards of practice is as essential for enrolled actuaries as is knowledge of the technical rules studied in other core areas. Ethics have always been considered to be core subject matter, and an enrolled actuary who wishes to increase the number of hours spent studying the core technical rules may always undertake more than the minimum number of core hours. Accordingly, the Joint Board feels that including ethical standards as part of the required hours of core subject matter is appropriate.

In response to comments, these regulations clarify that when core subject matter hours are required (including when an individual seeks to return to active status from inactive status), an individual must complete a minimum of two hours of continuing professional education credit relating to ethical standards, regardless of the total number of core hours required.

The regulations require an enrolled actuary to retain certain records evidencing completion of continuing professional education for three years after the end of the enrollment cycle for which the enrolled actuary claims the credit. To receive credit based on participation in a qualifying program, the regulations require the enrolled actuary to retain the certificate of completion or certificate of instruction, as applicable. To receive credit for publications, these regulations require the enrolled actuary to retain the name of the publisher, the title and author of the publication, a copy of the publication, the date of publication, the total credit hours earned, and the total core and non-core credit hours earned. To receive credit for service on a Joint Board advisory committee, for preparation of Joint Board examinations, for passing examinations sponsored by professional organizations or societies, or for passing the Joint Board pension examination, these regulations require the enrolled actuary to retain sufficient documentation to establish completion of such hours.

All continuing professional education must be in either core or non-core subject matter. The Joint Board received a number of comments requesting expansion and clarification of the content that would be classified as core or non-core credit. These regulations adopt the same definition of core and non-core continuing professional education material as proposed. The Joint Board recognizes that more specific rules proscribing the required content could provide greater certainty for qualifying sponsors and enrolled actuaries regarding the designation of credits as core and non-core. However, given the frequent changes in pension law, the impact of new court decisions, and other changing factors that affect an enrolled actuary's practice, it is important to keep the definition of the content requirement somewhat flexible. The Joint Board relies on the integrity and judgment of the qualifying sponsors to provide appropriate material and to appropriately categorize the material as core or non-core.

Similarly, a number of commenters requested a more specific definition of ethical standards for purposes of meeting the ethics requirement of the continuing education requirement. Although the Joint Board has not amended the regulation, it notes that courses that include discussion of actuarial codes of conduct, actuarial responsibilities and any actions discussed in section 901.20 of the regulations would comply with this requirement.

These regulations redefine core subject matter as program content and knowledge that is integral and necessary to the satisfactory performance of pension actuarial services and actuarial certification under ERISA and the Internal Revenue Code. Such core subject matter includes the characteristics of actuarial cost methods under ERISA, actuarial assumptions, minimum funding standards, titles I, II, and IV of ERISA, requirements with respect to the valuation of plan assets, requirements for qualification of pension plans, maximum deductible contributions, tax treatment of distributions from qualified pension plans, excise taxes related to the funding of qualified pension plans and standards of performance (including ethical standards) for actuarial services. These regulations further specify that core subject matter includes all materials included on the syllabi of any of the pension actuarial examinations offered by the Joint Board during the current enrollment cycle and the enrollment cycle immediately preceding the current enrollment cycle.

These regulations retain the definition of non-core subject matter as program content designed to enhance the knowledge of an enrolled actuary in matters related to the performance of pension actuarial services. These regulations provide that examples of non-core subject matter include economics, computer programming, pension accounting, investment and finance, risk theory, communication skills, and business and general tax law.

These regulations do not change the requirement that a program used to earn continuing professional education credit must be a qualifying program. These regulations modify the definition of qualifying program to be a course of learning that—(A) Is conducted by a qualifying sponsor who identifies the program as a qualifying program; (B) is developed by individual(s) qualified in the subject matter; (C) covers current subject matter; (D) includes written outlines or textbooks; (E) is taught by instructors, discussion leaders, and speakers qualified with respect to the course content; (F) includes means for evaluation by the Joint Board of technical content and presentation; (G) provides a certificate of completion to those who have successfully completed the program; and (H) provides a certificate of instruction to those who have served as instructors, discussion leaders, or speakers.

These regulations provide that qualifying sponsors are sponsors recognized as such by the Executive Director and whose programs offer opportunities for continuing professional education in subject matter within the scope of the continuing professional education requirement. In response to comments, these regulations have been changed so that they do not prohibit a sole proprietor from being a qualifying sponsor. These regulations provide that those seeking recognition as a qualifying sponsor must file a request with the Executive Director and must provide all information deemed necessary for approval by the Executive Director, including information to establish that all programs identified as qualifying programs by the qualifying sponsor will satisfy the requirements for qualifying programs. These regulations provide that recognition as a qualifying sponsor by the Executive Director shall be effective when approved unless the Executive Director provides that it shall be effective on a different date, and shall terminate at the end of the sponsor enrollment cycle. The sponsor enrollment cycles are three-year periods that begin one-year later than the enrollment cycles, starting with the sponsor enrollment cycle beginning on January 1, 2012. For qualifying sponsors approved on or after January 1, 2008, and before January 1, 2012, the applicable sponsor enrollment cycle will end December 31, 2011.

These regulations provide that a program's qualifying sponsor shall furnish each individual who successfully completed the qualifying program with a certificate listing the name of the participant, the name of the qualifying sponsor, the title, location, and speaker(s) of each session, the date(s) of participation, the total credit hours earned, how many of those hours consisted of core and non-core subject matter, how many of those hours relate to ethics, and how many of the hours were earned for a formal program with respect to the participant. In response to comments, these regulations clarify that it is only the qualifying sponsor of a program that may issue a certificate of participation.

These regulations provide that qualifying sponsors shall provide each instructor, discussion leader, or speaker with a certificate of instruction that lists the name of the instructor, discussion leader, or speaker, the name of the qualifying sponsor, the title and location of each session at which the individual was an instructor, discussion leader, or speaker, the date(s) of the program, the total credit hours earned, how many of those hours consisted of core and non-core subject matter, how many of those hours relate to ethics, and whether the program is a formal program with respect to the instructor.

The proposed regulations would have defined separate types of qualifying programs for formal programs, correspondence and individual study programs, and teleconferencing programs. These regulations do not segregate qualifying programs into these types. Instead, these regulations provide that certain qualifying programs qualify as formal programs. Each type of program that would have been separately defined under the proposed regulations may still satisfy the requirements of a qualifying program.

In response to comments, the Joint Board notes that the qualifying sponsor must take reasonable steps to verify participation. The nature of the program will affect the means by which the qualifying sponsor verifies participation. Under this approach, a qualifying program that is either a teleconference or a program attended in person may be a formal program but the manner in which the qualifying sponsor verifies participation will be different depending on the manner of participation. In contrast, a correspondence or individual study program would never be a formal program but could nonetheless be a qualifying program if the qualifying sponsor verifies participation (for example, with a written examination).

In response to comments, these regulations clarify that a qualifying sponsor must maintain records to verify that each program it sponsors is a qualifying program, including the certificates of completion, certificates of instruction, and outlines and course material. In the case of programs with more than one session, the qualifying sponsor must keep records to verify which session(s) each participant completed. These regulations clarify that all of these records are required to be maintained for six years after the end of the sponsor enrollment cycle in which the program was held.

Several commenters asked for clarification on the ability to use emerging technologies for record retention and transmission. The regulations do not specify the format in which records must be maintained or provided but merely require that copies be provided and produced upon request. Accordingly, records may be maintained electronically so long as a copy can be produced upon request.

These regulations require at least one-third of the required hours to consist of participation in a formal program. In response to comments on the proposed regulations, these regulations expand the definition of a formal program to take into account modern technologies that permit participation and interaction among participants who are in different locations.

Under these regulations, whether a program qualifies as a formal program is determined on a participant-by-participant basis. These regulations provide that a qualifying program qualifies as a formal program with respect to a participant only if the participant simultaneously participates in the program in the same physical location with at least two other participants engaged in substantive pension service. The participants with respect to whom the program is a formal program must also have the opportunity to interact with another individual qualified with respect to the course content who serves as an instructor, whether or not the instructor is in the same physical location as the participants. Groups of three or more participants who are in the same physical location may participate in a formal program in person, via the Internet, videoconferencing, or teleconferencing. If the qualifying program is pre-recorded, to qualify as a formal program there must be a qualified individual who serves as the instructor and is available to answer questions immediately following the pre-recorded program.

Under these regulations, a qualifying program is a formal program with respect to the instructor only if the instructor is in the physical presence of at least three other individuals engaged in substantive pension service.

These regulations provide six ways to satisfy the continuing professional education requirement other than through participation in a qualifying program. First, up to half of the required hours may be satisfied by serving as an instructor, discussion leader, or speaker at a qualifying program. For this purpose the instructor, discussion leader, or speaker is credited with 4 hours of continuing professional education credit for each 50 minutes completed during a qualifying program. In response to a comment, these regulations clarify that if the program is a formal program with respect to the instructor, only the time spent during the actual program is counted toward satisfaction of the formal program requirement. The nature of the subject matter will determine whether the credit hours consist of core or non-core subject matter. These regulations expressly provide that panelists, moderators, and others who are not required to prepare substantive subject matter for their portion of the program are not entitled to credit as an instructor, discussion leader, or speaker, but they may qualify for participation in the program.

Second, up to 25 percent of the required hours may be awarded to the author, co-author, or a person listed as a major contributor for each hour spent on the creation of peer-reviewed material for publication or distribution on matters directly related to core or non-core subject matter. To qualify, the material must be available on reasonable terms for acquisition and use by all enrolled actuaries.

If the material is re-published or re-distributed, credit will be awarded only for time spent revising a substantial portion of the material; for example, to reflect changes in law or practices relative to the performance of pension actuarial services.

Third, these regulations permit the Joint Board to award continuing professional education credit for service on (any of) its advisory committee(s), to the extent that the Joint Board considers awarding such credit is warranted by the service rendered. This provision recognizes the fact that the work done by the members of the advisory committee involves detailed review of materials that constitute core subject matter.

Fourth, these regulations permit the Joint Board to award education credit for participation in drafting questions for use on Joint Board examinations or in pretesting its examinations, to the extent that the Joint Board considers awarding such credit appropriate. These regulations limit the education credit for preparation of Joint Board examinations to 50 percent of the continuing professional education requirement for the applicable enrollment cycle.

One commenter suggested that the regulations should specify the number of continuing professional education credits that may be granted for service on an Advisory Committee to the Joint Board and other committees involved in the preparation of enrollment examinations, and to eliminate the 50 percent limit on continuing professional education requirements that can be satisfied by service on an examination writing committee. The regulations retain the Joint Board's authority to determine how many credits are granted for service rendered.

In the Board's experience, most actuaries who serve on an examination writing committee tend to work on only one of the examinations; the Board believes that the scope of the material covered on a given examination is not broad enough for service on a writing committee to count toward more than 50% of the continuing professional education requirements for a given enrollment cycle. Therefore, although the Board appreciatively acknowledges the substantial time and effort expended by members of the writing committees, the final regulations retain the 50% limit.

The commenter also suggested that service on an Advisory Committee to the Joint Board throughout an entire enrollment cycle fulfill all the continuing professional education requirements for that cycle, including the requirement to earn credits related to ethical standards. However, the Board does not believe that the exam syllabus or other work typically done by an Advisory Committee includes enough material directly related to ethical standards to fulfill the requirement for this type of credit. Therefore, the Board does not anticipate that credits related to ethical standards would be granted on the basis of service on an Advisory Committee.

Fifth, these regulations provide that individuals may earn continuing professional education credit for achieving a passing grade on proctored examinations sponsored by a professional organization or society recognized by the Joint Board. Separate provisions, described in the next paragraph, apply to the Joint Board's examinations. These regulations further provide that such credit is limited to the number of hours scheduled for the examination that are attributable to content that qualifies as either core or non-core subject matter and that, regardless of the nature of the content, none of the credit counts toward the core credit requirement. All of an enrolled actuary's non-core credit requirement may be satisfied with this type of credit.

Sixth, these regulations provide that enrolled actuaries who are enrolled prior to the beginning of an enrollment cycle may satisfy the entire continuing professional education requirement for the enrollment cycle by both (1) achieving a passing score on the Joint Board pension examination administered during the enrollment cycle and (2) completing a minimum of 12 hours of continuing professional education through participation in formal programs during the enrollment cycle.

These regulations permit the Executive Director to waive all or part of an enrolled actuary's continuing professional education requirement. An enrolled actuary seeking such a waiver must submit a request for a waiver to the Executive Director. This request must contain evidence sufficient to demonstrate that the enrolled actuary made every effort throughout the enrollment cycle to participate in one or more qualifying programs that would have satisfied the continuing professional education requirements. The enrolled actuary is required to submit supporting documentation with the waiver application as well as any additional documentation or explanation deemed necessary by the Executive Director. The proposed regulations would have imposed a deadline on the waiver application. Instead, these regulations provide that the enrolled actuary seeking to rely on a waiver must receive the waiver from the Executive Director before filing an application for renewal of enrollment.

These regulations provide that the Executive Director shall maintain a roster of individuals who are in inactive status, in addition to rosters of individuals who are duly enrolled and those whose enrollment has been suspended or terminated. These regulations also give the Executive Director explicit permission to publish any or all of the rosters, including display on the Joint Board's Web site, to the extent permitted by law.

These regulations extend the period of time that an individual may remain on the roster of inactive enrolled actuaries from three years to up to three enrollment cycles. Under these regulations, a person who is on the roster of inactive enrolled actuaries for three enrollment cycles without returning to active status must satisfy the requirements for initial enrollment to become an active enrolled actuary. For this purpose, these regulations provide a transition rule that treats enrolled actuaries who are inactive or retired as of April 1, 2010 as if they were placed on the roster of inactive enrolled actuaries on that date.

To remain on the roster of active enrolled actuaries, an enrolled actuary must submit a timely application for renewal showing satisfaction of the requirements for reenrollment, including completion of the required continuing professional education hours within the appropriate time frame.

The Executive Director will automatically move enrolled actuaries who do not submit a timely application for reenrollment and enrolled actuaries who submit an application that on its face does not show information sufficient to satisfy the requirements for renewal (for example, an application that does not show sufficient continuing professional education credits). Such enrolled actuaries will be placed on the roster of inactive enrolled actuaries as of April 1 following the March 1 due date for the application. Enrolled actuaries who submit an application that on its face does not show information sufficient to satisfy the requirements for renewal will not be entitled to a refund of the application fee. Enrolled actuaries who submit an application that on its face does not show information sufficient to satisfy the requirements for renewal will be considered inactive as of the April 1 immediately following the March 1 due date for the application even if the Executive Director does not become aware of the insufficiency of the application until after April 1.

In addition, the Executive Director may audit renewal applications to verify the information submitted. If the Executive Director determines that the information on the application is inaccurate, the Executive Director will move the enrolled actuary to the roster of inactive enrolled actuaries only after notifying the enrolled actuary of the Executive Director's intent to do so and giving the enrolled actuary 60 days to respond. The Executive Director will consider any written response in making a final determination as to eligibility for renewal of enrollment. The Executive Director will notify the enrolled actuary by mail of the final determination as to whether or not to place the enrolled actuary on the inactive roster at that time. If the Executive Director makes a final determination to place an individual on the roster of inactive enrolled actuaries, the individual may seek review of the determination from the Joint Board by submitting a request to the Joint Board within 30 days of the notice of final determination.

These regulations provide that while an individual remains on the roster of inactive enrolled actuaries, such person may not indicate to others that he or she is an enrolled actuary and is not eligible to perform actuarial services as an enrolled actuary under ERISA or the Internal Revenue Code. These regulations provide that an individual still on the roster of inactive enrolled actuaries who wishes to return to active status may file an application for renewal of enrollment, but the requirements for reenrollment are different depending on whether the applicant is in the first, second, or third enrollment cycle on the roster of inactive enrolled actuaries.

These regulations provide that individuals who apply for renewal of enrollment during their first enrollment cycle on the inactive roster must complete 36 hours of continuing professional education between the beginning of the prior enrollment cycle and the date of the application for renewal.

These regulations provide that individuals who apply for renewal of enrollment during their second enrollment cycle on the inactive roster must complete 48 hours of continuing professional education credit plus demonstrate 18 months of certified responsible pension actuarial experience. These regulations provide that the continuing professional education credit must have been earned since the beginning of the applicant's first enrollment cycle on the inactive roster. The qualifying responsible pension actuarial experience must have occurred after the beginning of the applicant's first enrollment cycle on the inactive list.

These regulations provide that individuals who apply for renewal of enrollment during their third enrollment cycle on the inactive roster must complete 60 hours of continuing professional education credit plus demonstrate 18 months of certified responsible pension actuarial experience. For this purpose, these regulations provide that the continuing professional education credit must have been earned since the beginning of the applicant's second enrollment cycle and the qualifying actuarial experience must have occurred after the beginning of the applicant's second enrollment cycle on the inactive list.

Regardless of when the inactive enrolled actuary applies for renewal, these regulations provide that any continuing professional education credit used to qualify for reenrollment may not also be used to satisfy the continuing professional education requirement during the applicant's first enrollment cycle back on the active roster.

These regulations also expand upon the standards of performance of actuarial services. These regulations add a requirement that an enrolled actuary shall perform actuarial services only in accordance with all of the duties and requirements for such persons under applicable law and consistent with relevant generally accepted standards for professional responsibility and ethics.

Several comments were received with respect to the standards of practice provisions that were modeled on the obligations set forth in Circular 230 of all persons practicing before the IRS. The Joint Board believes that the rules in Circular 230 pertaining to due diligence, solicitations, prompt disposition of pending matters, and the return of client records are equally pertinent to practice before the PBGC and DOL, as well as the IRS. These provisions have been retained unchanged from the proposal, except that with respect to the return of client records. With respect to the return of client records, a commenter asked that the provision be clarified to provide the ability to retain records that implicate intellectual property rights. The Board believes that the duty to return or make available records to the client should not be made narrower than the scope of the provision in Circular 230. Nonetheless, to conform more specifically to the concept of Circular 230 and the purpose of incorporating the provisions into these regulations, the provision regarding “Records of the client” for this purpose has been modified to provide only for the return of documents necessary to comply with legal obligations under ERISA and the Internal Revenue Code.

These final regulations modify the rules regarding conflicts of interest. The Joint Board received several comments on the proposed rule to require that disclosure of conflicts of interest be made in writing to all affected parties and that the affected parties agree in writing to the enrolled actuary performing the services. After consideration of these comments, the Joint Board has determined that it will adopt rules that are similar to the conflict of interest rules that apply to those practicing before the Internal Revenue Service. See Treasury Department Circular No. 230, 31 CFR 10.29. Accordingly, the regulations provide that, unless an exception applies, an enrolled actuary shall not perform actuarial services for a client if the representation involves a conflict of interest. A conflict of interest exists if either (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the enrolled actuary's responsibilities to another client, a former client, or by a personal interest of the enrolled actuary. Notwithstanding the existence of a conflict of interest, the enrolled actuary may represent a client if (1) the enrolled actuary reasonably believes that the enrolled actuary will be able to provide competent and diligent representation to each affected client, (2) the representation is not prohibited by law, and (3) each affected client waives the conflict of interest and gives informed consent, at the time the existence of the conflict of interest is known by the enrolled actuary.

Nothing in these final regulations is intended to alter the rules for practice before the Internal Revenue Service under Treasury Department Circular No. 230.

The proposed regulations would have imposed a requirement that, upon learning of another enrolled actuary's material violation of the standards of performance of actuarial services, an enrolled actuary report the violation to the Executive Director. The Joint Board received many comments in response to this proposal. Several commenters suggested the elimination of the proposed reporting requirement. In the alternative, commenters asked that the requirement be significantly modified. Commenters were concerned that the reporting requirement would discourage cooperation and sharing of information among enrolled actuaries and that it would conflict with other rules that require enrolled actuaries not to disclose confidential or privileged information. Commenters also suggested that an enrolled actuary should not be required to report violations that are resolved through discussion with the other enrolled actuary. Finally, commenters asked for a clarification of the term material violation.

In light of the comments received, the Joint Board decided not to include the proposed reporting requirement as part of the standards of performance for enrolled actuaries. Without amendment, the regulations already include a rule that if an officer or employee of the Department of Treasury, the Department of Labor, the Pension Benefit Guaranty Corporation, or a member of the Joint Board has reason to believe that an enrolled actuary has violated any provision of the regulations, or if such person receives information to that effect, he or she may inform the Executive Director. Without amendment, the regulations already provide that others may make such a report to the Executive Director, an officer or employee of the Department of Treasury, the Department of Labor, the Pension Benefit Guaranty Corporation, or a member of the Joint Board. These regulations amend that provision only to provide that the optional report should be made directly to the Executive Director. Self-policing is an important part of maintaining the high standards of the profession, and the Joint Board encourages enrolled actuaries to report violations of the regulations to the Executive Director. However, in light of the concerns raised by commenters, the Joint Board decided not to change the existing rule except to provide that any report should be made directly only to the Executive Director.

In response to comments, these regulations clarify that the requirement for an enrolled actuary to ensure that the actuarial assumptions are reasonable individually and in combination, and the actuarial cost method and the actuarial method of valuation of assets are appropriate applies unless the actuarial assumptions or methods are mandated by law.

Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has been designated a “significant regulatory action” although not economically significant, under section 3(f) of Executive Order 12866. Accordingly, the rule has been reviewed by the Office of Management and Budget.

It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations. It is hereby certified that the collection of information imposed by these regulations will not have a significant economic impact on a substantial number of small entities. There are presently only about 4000 enrolled actuaries and the changes made by the final regulations will reduce the overall collection of information burden by removing the requirement for participants in continuing education courses to keep course materials. Qualified sponsors of continuing education courses, a few of which are small entities, have a paperwork burden under these regulations that is substantially the same as the pre-existing burden. Therefore, the economic impact of the collection of information requirement will not be significant and the number of small entities affected by the collection of information requirement will not be substantial. Accordingly, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. The notice of proposed rulemaking was submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.

The principal author of these regulations is Michael P. Brewer, IRS Office of Division Counsel/Associate Chief Counsel (Tax Exempt and Government Entities). However, other personnel from the Joint Board and the IRS participated in their development.

Accordingly, 20 CFR part 901 is amended as follows:

The sponsors of the 13 approved NADAs listed in table 1 have requested that FDA withdraw approval because the products are no longer manufactured or marketed.

Lysergic acid diethylamide (LSD) is a synthetic schedule I hallucinogen. It is the most potent hallucinogen known and only microgram amounts are required to produce overt hallucinations. It induces a heightened awareness of sensory input that is accompanied by an enhanced sense of clarity, but reduced ability to control what is experienced.

LSD has been manufactured illegally since the 1960s. A limited number of chemists, probably less than a dozen, are believed to be manufacturing nearly all of the LSD available in the United States. Clandestine laboratory operators must adhere to precise and complex production procedures, and production of LSD is relatively difficult.

LSD has historically been produced from lysergic acid, which is made from ergotamine or ergonovine, substances derived from an ergot fungus on rye, or from lysergic acid amide, a chemical found in morning glory seeds.

Because of the existing CSA regulatory controls on the LSD precursors lysergic acid, lysergic acid amide, ergotamine, and ergonovine, clandestine laboratory operators have sought uncontrolled sources of precursor material for the production of LSD. This has led to the illicit utilization of the precursor chemical ergocristine as a direct substitute for ergotamine and ergonovine for the illicit production of LSD. In fact, the largest clandestine LSD laboratory ever seized by DEA utilized ergocristine as the LSD precursor. Recipes documenting procedures for utilizing ergocristine in LSD synthesis are easily found on the Internet.

DEA has determined that ergocristine is readily available from commercial chemical suppliers. DEA has identified at least three suppliers of ergocristine, of which one distributor is located domestically; the other two are based in Germany and the Czech Republic.

This rule implements both domestic and import/export controls on ergocristine (and its salts). As noted in the February 24, 2010, Notice of Proposed Rulemaking (75 FR 8287), such controls are deemed necessary for law enforcement to identify domestic and international transactions in ergocristine, due to growing concerns regarding its use for the illicit manufacture of LSD.

The CSA, specifically 21 U.S.C. 802(34), and its implementing regulations at 21 CFR 1310.02(c), provide the Attorney General with the authority to specify, by regulation, additional chemicals as List I chemicals” if they are used in the manufacture of a controlled substance in violation of the CSA, and are important to the manufacture of the controlled substance. Ergocristine is being used in clandestine laboratories as the precursor material for the illicit manufacture of the schedule I controlled substance LSD. This rule implements the regulation of ergocristine as a List I chemical because DEA finds that it is used in the illicit manufacture of the controlled substance LSD and is important to the illicit manufacture of the controlled substance LSD.

Handlers of ergocristine shall be subject to the chemical regulatory provisions of the CSA, including 21 CFR parts 1309, 1310, 1313, and 1316. This rulemaking does not establish a threshold for domestic and import transactions of ergocristine pursuant to the provisions of 21 CFR 1310.04(g). Due to the high potency of LSD, even a single gram ( i.e., 1/28th of an ounce) of ergocristine can be used illicitly to make thousands of dosage units of LSD. Therefore, all ergocristine transactions, regardless of size, shall be regulated transactions as defined in 21 CFR 1300.02(b)(28). As such, all ergocristine transactions will be subject to recordkeeping, annual manufacturer reporting of inventory and use data, import/export controls, and other CSA chemical regulatory requirements.

DEA did not receive any comments in response to the February 24, 2010, Notice of Proposed Rulemaking (NPRM), which proposed the control of ergocristine. Therefore, this rule finalizes the NPRM, as proposed.

As such, effective May 2, 2011, handlers of ergocristine shall be subject to the chemical regulatory provisions of the CSA and its implementing regulations, including 21 CFR parts 1309, 1310, 1313, and 1316.

Chemical mixtures containing ergocristine will not be exempt from regulatory requirements at any concentration, unless an application for exemption of a chemical mixture is submitted by an ergocristine manufacturer and the application is reviewed and accepted by DEA under 21 CFR 1310.13 (Exemption by Application Process). Since even a small amount of ergocristine is able to be used in the illicit manufacture of a significant amount of LSD, the control of chemical mixtures containing any amount of ergocristine is necessary to prevent the illicit extraction, isolation, and use of the ergocristine. Therefore, all chemical mixtures containing any quantity of ergocristine will be subject to CSA control, unless the ergocristine manufacturer is granted an exemption by the application process discussed below. The Table of Concentration Limits in 21 CFR 1310.12(c) is hereby modified to reflect the fact that chemical mixtures containing any amount of ergocristine are subject to CSA chemical control provisions.

DEA has implemented an application process to exempt chemical mixtures from the requirements of the CSA and its implementing regulations (21 CFR 1310.13). Under the application process, manufacturers may submit an application for exemption for those mixtures that do not qualify for automatic exemption. Exemption status can be granted if DEA determines that the mixture is formulated in such a way that it cannot be easily used in the illicit production of a controlled substance and that the listed chemical cannot be readily recovered ( i.e., it meets the conditions in 21 U.S.C. 802(39)(A)(vi)).

The designation of ergocristine as a List I chemical subjects ergocristine handlers to all of the regulatory controls and administrative, civil, and criminal sanctions applicable to the manufacture, distribution, importing, and exporting of a List I chemical. Persons potentially handling ergocristine, including regulated chemical mixtures containing ergocristine, will be required to comply with the following List I chemical regulations:

Registration. Any person who manufactures, distributes, imports, or exports a List I chemical, or proposes to engage in the manufacture, distribution, importation, or exportation of a List I chemical, must obtain a registration pursuant to the CSA (21 U.S.C. 822, 957). Regulations describing registration for List I chemical handlers are set forth in 21 CFR part 1309. Consistent with 21 CFR parts 1309 and 1310, separate registrations will be required for manufacturing, distribution, importing, and exporting of ergocristine. Different locations operated by a single entity require separate registration if any location is involved with the manufacture, distribution, importation, or exportation of ergocristine. Further, a separate registration is required for each principal place of business at one general physical location where List I chemicals are manufactured, distributed, imported, or exported by a person (21 CFR 1309.23). Any person manufacturing, distributing, importing, or exporting an ergocristine chemical mixture will be subject to the registration requirement under the CSA as well.

DEA notes that warehouses are exempt from the requirement of registration and may lawfully possess List I chemicals, if the possession of those chemicals is in the usual course of business (21 U.S.C. 822(c)(2), 21 U.S.C. 957(b)(1)(B)). For purposes of this exemption, the warehouse must receive the List I chemical from a DEA registrant and shall only distribute the List I chemical back to the DEA registrant and registered location from which it was received. All other activities conducted by a warehouse do not fall under this exemption; a warehouse that distributes List I chemicals to persons other than the registrant and registered location from which they were obtained is conducting distribution activities and is required to register as such (21 CFR 1309.23(b)(1)).

Any person manufacturing, distributing, importing, or exporting ergocristine or a chemical mixture containing ergocristine will be subject to the registration requirement under the CSA. DEA recognizes, however, that it is not possible for persons who are subject to the registration requirement to immediately complete and submit an application for registration and for DEA to immediately issue registrations for those activities. Therefore, to allow continued legitimate commerce in ergocristine, DEA is establishing in 21 CFR 1310.09, a temporary exemption from the registration requirement for persons desiring to engage in activities with ergocristine, provided that DEA receives a properly completed application for registration on or before May 2, 2011. The temporary exemption for such persons will remain in effect until DEA takes final action on their application for registration or application for exemption of a chemical mixture.

The temporary exemption applies solely to the registration requirement; all other chemical control requirements, including recordkeeping and reporting, would become effective May 2, 2011. Therefore, all transactions of ergocristine and chemical mixtures containing ergocristine will be regulated while an application for registration or exemption is pending. This is necessary because not regulating these transactions could result in increased diversion of chemicals desirable to drug traffickers.

Additionally, the temporary exemption does not suspend applicable Federal criminal laws relating to ergocristine, nor does it supersede State or local laws or regulations. All handlers of ergocristine must comply with applicable State and local requirements in addition to the CSA regulatory controls.

Records and Reports. The CSA (21 U.S.C. 830) requires that certain records be kept and reports be made with respect to listed chemicals. Regulations describing recordkeeping and reporting requirements are set forth in 21 CFR part 1310. Pursuant to 21 CFR 1310.04, a record must be made and maintained for two years after the date of a transaction involving a listed chemical, provided the transaction is a regulated transaction.

Each regulated bulk manufacturer of a listed chemical will be required to submit manufacturing, inventory, and use data on an annual basis (21 CFR 1310.05(d)). Existing standard industry reports containing the required information will be acceptable, provided the information is readily retrievable from the report.

Title 21 CFR 1310.05(a) requires that each regulated person shall report to DEA any regulated transaction involving an extraordinary quantity of a listed chemical, an uncommon method of payment or delivery, or any other circumstance that the regulated person believes may indicate that the listed chemical will be used in violation of the CSA and its corresponding regulations. Persons are also required to report any proposed regulated transaction with a person whose description or other identifying characteristics the Administration has previously furnished to the regulated person; any unusual or excessive loss or disappearance of a listed chemical under the control of the regulated person; any in-transit loss in which the regulated person is the supplier; and any domestic regulated transaction in a tableting or encapsulating machine.

Import/Export. All imports, exports, and international transactions of a listed chemical shall comply with the CSA import and export provisions including 21 U.S.C. 957 and 971. Regulations for importation and exportation of List I chemicals are described in 21 CFR part 1313.

Security. All applicants and registrants shall provide effective controls against theft and diversion of chemicals as described in 21 CFR 1309.71.

Administrative Inspection. Places, including factories, warehouses, or other establishments and conveyances, where registrants or other regulated persons may lawfully hold, manufacture, distribute, dispense, administer, or otherwise dispose of a regulated chemical/chemical mixture or where records relating to those activities are kept or required to be kept, are controlled premises as defined in 21 CFR 1316.02(c). The CSA (21 U.S.C. 880) allows for administrative inspections of these controlled premises as provided in 21 CFR part 1316, Subpart A.

The Administrator hereby certifies that this rulemaking has been drafted in accordance with the Regulatory Flexibility Act (5 U.S.C. 601-612). DEA has been able to identify only one U.S. distributor that lists ergocristine among its products. Because most of the firm's product source appears to be located outside the U.S. and because DEA has not been able to identify any U.S. manufacturer that produces a product containing ergocristine, DEA does not consider it likely that this domestic distributor would be subject to the rule, unless they imported ergocristine. The only probable legitimate commerce in this chemical appears to be the use of ergocristine as precursor material for the synthesis of a research compound. If used for this purpose, then there would be a registration and recordkeeping requirement for this distributor to import the ergocristine. Such use would likely be extremely limited. Therefore, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities.

The Administrator certifies that this rulemaking has been drafted in accordance with the principles in Executive Order 12866 Section 1(b). It has been determined that this is “a significant regulatory action.” Therefore, this action has been reviewed by the Office of Management and Budget. DEA has not conducted an economic analysis of the final rule because DEA has been able to identify only one company with a U.S. address that lists ergocristine among its products. DEA was able to identify only two foreign firms that list ergocristine as a product. These firms appear to sell ergocristine as an active pharmaceutical ingredient, but a search of the Food and Drug Administration's database of approved drugs did not identify any drug with ergocristine as an active ingredient. Consequently, DEA does not believe that at this time any firm conducting legitimate business is likely to have to comply with the rule.

This regulation meets the applicable standards set forth in Sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform.

This rulemaking does not preempt or modify any provision of State law; nor does it impose enforcement responsibilities on any State; nor does it diminish the power of any State to enforce its own laws. Accordingly, this rulemaking does not have federalism implications warranting the application of Executive Order 13132.

This rule will not result in the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of $126,400,000 or more (adjusted for inflation) in any one year, and will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

This rule is not a major rule as defined by Section 804 of the Congressional Review Act/Small Business Regulatory Enforcement Fairness Act of 1996 (Congressional Review Act). This rule will not result in an annual effect on the economy of $100,000,000 or more; a major increase in cost or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

For the reasons set out above, 21 CFR part 1310 is amended as follows:

Background

The final and temporary regulations (TD 9515) that are the subject of this document are under section 1502 of the Internal Revenue Code.

As published, the final and temporary regulations (TD 9515) contain errors that may prove to be misleading and are in need of clarification.

Accordingly, 26 CFR part 1 is corrected by making the following correcting amendments:

On December 21, 2010, we published a direct final rule entitled “Protection for Whistleblowers in the Coast Guard” in the Federal Register. (75 FR 79956). That rule broadens the whistleblower protection already afforded uniformed members of the Coast Guard by conforming Coast Guard regulations to statutory changes made to broaden whistleblower protections for all members of the Armed Forces.

We published the rule as a direct final rule under 33 CFR 1.05-55 because we considered this rule to be noncontroversial and did not expect an adverse comment regarding this rulemaking. In the direct final rule we notified the public of our intent to make the rule effective on April 20, 2011, unless adverse comment or notice of intent to submit an adverse comment was received on or before February 22, 2011. We have not received any comments, or notice of intent to submit an adverse comment, on this rulemaking. Therefore the rule will go into effect as scheduled, on April 20, 2011.

Regulatory Information

The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM). This rule extends the existing temporary security zones that are a necessary and key component of the Coast Guard's maritime security mission in Southeastern New England, and a separate permanent rulemaking is being pursued under docket USCG-2010-0803, where the public will be afforded ample opportunity to comment. Providing a public notice and comment period for this temporary final rule is contrary to national security concerns and the public interest.

For the same reasons, under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register.

The security zones in place pursuant to the Temporary Final Rule at docket USCG-2010-0864 (75 FR 63714, October 18, 2010) were established to protect certain passenger vessels in the Southeastern New England Captain of the Port Zone from destruction, loss, or injury from sabotage, subversive acts, or other malicious acts of a similar nature. The authority for these security zones is set to expire on April 1, 2011. The Coast Guard is in the process of completing a separate rulemaking to create permanent security zones in these locations under docket USCG-2010-0803. The temporary security zones created by this rule ensures that there is no gap in authority relative to the Coast Guard's maritime security mission to protect passenger vessels from destruction, loss, or injury from sabotage, subversive acts, or other malicious acts of a similar nature while the rulemaking process is ongoing.

The Coast Guard is extending the effective date of security zones within a maximum 100-yard radius around passenger vessels that are moored, or in the process of mooring, at any berth or at anchor within the Sector Southeastern New England Captain of The Port Zone. This rule will also continue fixed moving security zones that will be in effect in waters up to 200 yards around escorted passenger vessels while underway in the navigable waters within the Sector Southeastern New England Captain of The Port Zone.

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

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order.

The Coast Guard expects the economic impact of this rule to be so minimal that a full regulatory evaluation under the regulatory policies and procedures of DHS is unnecessary. The effect of this rule will not be significant. Temporary moving security zones will only be in effect while escorted passenger vessels are underway, and the zone will not restrict any waterway for a long period of time. The vast majority of passenger vessel transits in the waters of Sector Southeastern New England Captain of the Port Zone are less than two hours. Temporary fixed security zones around passenger vessels that are moored, or in the process of mooring, at any berth or at anchor are anticipated to have minimal impact on vessel traffic because such vessels anchored or moored in designated anchorages or at waterfront facilities are away from navigation channels used by mariners. Additionally, vessels may be permitted to enter these security zones with expressed permission of the Captain of the Port, minimizing any adverse impact. It has been determined that the necessary security enhancements provided by this rule greatly outweigh any potential negative impacts.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

This rule may affect the following entities, some of which may be small entities: The owners and operators of vessels intending to transit the waters of Sector Southeastern New England Captain of the Port Zone while the security zones are enforced. These security zones will not have a significant impact on a substantial number of small entities for the following reasons: The moving security zones will only be enforced when an escorted passenger vessel is underway, and such transits in the Sector Southeastern New England Captain of the Port Zone are typically less than two hours in duration; the fixed security zones around passenger vessels moored, or in the process of mooring, at a berth or at anchorage, allow for vessel traffic to transit the navigable waters outside the zone. Additionally, vessels may be permitted to enter these security zones with the express prior permission of the Captain of the Port, minimizing any adverse impact.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. If you think your small business or organization would be affected by this rule and you have any questions concerning its provisions or options for compliance, please call Mr. Edward G. Leblanc at (401) 435-2351.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

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

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

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

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

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

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

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

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

The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this rule under and Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f), and have concluded this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2-1, paragraph (34)(g) of the Instruction. This rule fits the category selected from paragraph (34)(g), as it establishes a temporary security zone for a limited period of time. A final “Environmental Analysis Check List” and a final “Categorical Exclusion Determination” will be available in the docket where indicated under ADDRESSES .

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

Current mailing standards permit Parcel Select mailpieces to be forwarded, without an additional postage charge, when the old and new addresses are served within the same Post Office unit. With this final rule, Parcel Select mailpieces will no longer be handed-off to facilitate local delivery within the same office but rather sent to a Centralized Forwarding System (CFS) facility for automated handling. Recipients will now incur an additional service fee, plus the cost of Parcel Select barcoded nonpresort postage for mailpieces that are forwarded locally, just as they do for those mailpieces that are forwarded beyond the local area.

Additionally, with this final rule, mailers who do not wish to pay for forwarding outside the local area may no longer request that parcels not be forwarded. PS Form 3546, which notifies the postmaster of the old address to discontinue forwarding Package Services or Parcel Select, has been revised accordingly.

Prior to December 2006, Parcel Select was forwarded and returned at the Parcel Post price. With the classification of Parcel Select as a competitive product, the DMM was revised to accommodate these changes; however, the price to forward and return Parcel Select was not separately mentioned. With this notice, we are specifying that the price to forward or return Parcel Select pieces will now be the applicable Parcel Select barcoded nonpresort price, plus an additional service fee, which will cover the cost for forwarding or returning the Parcel Select mailpiece.

The Postal Service filed a Notice with the Postal Regulatory Commission (PRC) on March 16, 2011 regarding the forwarding and return service for Parcel Select mailpieces. The regulatory review may take up to 30 days from that date.

The Postal Service herby adopts the following changes to the Mailing Standards for the United States Postal Service, Domestic Mail Manual (DMM), which is incorporated by reference in the Code of Federal Regulations. See 39 CFR 111.1.

Accordingly, 39 CFR part 111 is amended as follows:

This new NSA for First-Class Mail and Standard Mail is based on the combined total revenue of First-Class Mail automation letters, Standard Mail automation letters, and Standard Mail carrier route barcoded automation-compatible letters.

The 3-year agreement is designed to maintain and grow the total contribution the Postal Service receives from First-Class Mail and Standard Mail and to provide an incentive for net contribution growth beyond that. The agreement has five main components: A revenue threshold using a participant-specific baseline, a revenue threshold adjustment, a postage commitment, a rebate on First-Class Mail, and a rebate on Standard Mail.

The revenue threshold is based on the amount of total postage paid for First-Class Mail automation letters, Standard Mail automation letters, and Standard Mail carrier route barcoded automation-compatible letters. The baseline for the revenue threshold is the total postage for these categories over the previous one-year period. The threshold is calculated at a negotiated percentage above the baseline for each year during the duration of the agreement.

The revenue threshold will be adjusted upward by a negotiated amount for every dollar decline in First-Class Mail postage. To qualify for rebates under this adjustment, a determined revenue amount of Standard Mail must be mailed to offset each dollar decline in postage from First-Class Mail.

The agreement contains a postage commitment, equal to the adjusted revenue threshold or any subsequent yearly adjusted threshold. If the amount of total postage from eligible mail in the first year of the contract is less than the adjusted threshold, a penalty is assessed for the difference between the adjusted revenue threshold and the actual total postage paid for contract year one. Subsequent year penalties for failing to meet the adjusted revenue threshold are negotiated by the parties prior to the end of the current contract year.

If the mailer holding the agreement meets or exceeds the adjusted postage thresholds in any given year of the contract, the mailer will earn a rebate on the qualifying First-Class Mail and Standard Mail postage. For First-Class Mail, the rebate will be equal to a negotiated percent of the increase in postage as a result of a subsequent cumulative price increase (relative to First-Class Mail prices in existence at the initiation of the agreement) for all qualifying pieces. For Standard Mail, the rebate will be equal to a negotiated percent of the increase in postage as a result of a subsequent cumulative price increase (relative to Standard Mail prices in existence at the initiation of the agreement) for all qualifying pieces.

The NSA expires three years from the effective date. Either party can terminate the agreement, without penalty, for convenience, in the first nine months of any contract year provided the terminating party gives 90 days written notice prior to the planned termination date to the other party.

In accordance with the Postal Accountability and Enhancement Act, on January 14, 2011, the Postal Service filed a Notice with the Postal Regulatory Commission (PRC) regarding the Market Dominant Negotiated Service Agreement (NSA) for First-Class Mail and Standard Mail and it was approved on March 15, 2011.

The Postal Service adopts the following changes to Mailing Standards of the United States Postal Service, Domestic Mail Manual (DMM), incorporated by reference in the Code of Federal Regulations. See 39 CFR 111.1.

Accordingly, 39 CFR Part 111 is amended as follows:

Regulations governing the spiny dogfish fishery are found at 50 CFR part 648. The regulations require annual specification of a commercial quota, which is allocated into two quota periods based upon percentages specified in the fishery management plan. The fishery is managed from Maine through Florida, as described in § 648.230.

The total commercial quota for spiny dogfish for FY 2010 is 15 million lb (6,803.89 mt) (75 FR 36012, June 24, 2010). The commercial quota is allocated into two periods (May 1 through October 31, and November 1 through April 30). Vessel possession limits were set at 3,000 lb (1.36 mt) for both Quota Periods 1 and 2. Quota Period 1 was allocated 8,685,000 lb (3,943.45 mt), and Quota Period 2 was allocated 6,315,000 lb (2,864.44 mt) of the commercial quota. The total quota cannot be exceeded, so landings in excess of the amount allocated to Period 1 have the effect of reducing the quota available to the fishery during Period 2.

The Administrator, Northeast Region, NMFS (Regional Administrator) monitors the commercial spiny dogfish quota for each quota period and, based upon dealer reports, state data, and other available information, determines when the total commercial quota will be harvested. NMFS is required to publish a notification in the Federal Register advising and notifying commercial vessels and dealer permit holders that, effective upon a specific date, the Federal spiny dogfish commercial quota has been harvested and no Federal commercial quota is available for landing spiny dogfish for the remainder of that quota period.

Section 648.4(b) provides that Federal spiny dogfish permit holders agree, as a condition of their permit, not to land spiny dogfish in any state after NMFS has published notification in the Federal Register that the commercial quota has been harvested and that no commercial quota for the spiny dogfish fishery is available. Therefore, effective 0001 hr local time, April 1, 2011, landings of spiny dogfish in coastal states from Maine through Florida by vessels holding commercial Federal fisheries permits will be prohibited through April 30, 2011, 2400 hr local time. The FY 2011 quota will be available for commercial spiny dogfish harvest on May 1, 2011. Effective April 1, 2011, federally permitted dealers are also advised that they may not purchase spiny dogfish from vessels issued Federal spiny dogfish permits that land in coastal states from Maine through Florida.

This action is required by 50 CFR part 648 and is exempt from review under Executive Order 12866.

The Assistant Administrator for Fisheries, NOAA (AA), finds good cause pursuant to 5 U.S.C. 553(b)(B) to waive prior notice and the opportunity for public comment because it would be contrary to the public interest. The regulations at § 648.231 require such action to ensure that spiny dogfish vessels do not exceed the FY 2010 quota. Data indicating the spiny dogfish fleet will have landed the FY 2010 quota have only recently become available. If implementation of this closure was delayed to solicit prior public comment, the FY 2010 quota would be exceeded, thereby undermining the conservation objectives of the FMP. The AA further finds, pursuant to 5 U.S.C. 553(d)(3), good cause to waive the 30-day delayed effectiveness period for the reasons stated above.

Background

The Atlantic bluefish fishery is managed cooperatively by the Mid-Atlantic Fishery Management Council (Council) and the Atlantic States Marine Fisheries Commission (Commission). The management unit for bluefish specified in the FMP is U.S. waters of the western Atlantic Ocean. Regulations implementing the FMP appear at 50 CFR part 648, subparts A and J. The regulations requiring annual specifications are found at § 648.16.

The FMP requires the Council to recommend, on an annual basis, a total allowable catch (TAC) and a TAL that will control fishing mortality. An estimate of annual discards is deducted from the TAC to calculate the TAL that can be made during the year by the commercial and recreational fishing sectors combined. The FMP requires that 17 percent of the TAL be allocated to the commercial fishery, as a quota (further allocated to the States from Maine to Florida in specified shares), with the remaining 83 percent of the TAL allocated as an RHL. The Council may also recommend a research set-aside (RSA) quota, which is deducted from the bluefish TAL (after any applicable transfer) in an amount proportional to the percentage of the overall TAL as allocated to the commercial and recreational sectors.

Pursuant to § 648.162, the annual review process for bluefish requires that the Council's Bluefish Monitoring Committee (Monitoring Committee) and Scientific and Statistical Committee (SSC) review and make recommendations based on the best available data, including, but not limited to, commercial and recreational catch/landing statistics, current estimates of fishing mortality, stock abundance, discards for the recreational fishery, and juvenile recruitment. Based on the recommendations of the Monitoring Committee and SSC, the Council makes a recommendation to the NMFS Northeast Regional Administrator. Because this FMP is a joint plan, the Commission also meets during the annual specification process to adopt complementary measures.

The Council's recommendations must include supporting documentation concerning the environmental, economic, and social impacts of the recommendations. NMFS is responsible for reviewing these recommendations to assure they achieve the FMP objectives, and may modify them if they do not. NMFS then publishes proposed specifications in the Federal Register , and after considering public comment, NMFS will publish final specifications in the Federal Register . The proposed specifications were published in the Federal Register on January 14, 2011 (76 FR 2640), with a 15-day comment period which ended on January 31, 2011.

According to Amendment 1 to the FMP (Amendment 1), overfishing for bluefish occurs when F exceeds the fishing mortality rate that allows maximum sustainable yield (F MSY ), or the maximum F threshold to be achieved. The stock is considered overfished if the biomass (B) falls below the minimum biomass threshold, which is defined as 1/2 B MSY . Amendment 1 also established that the long-term target F is 90 percent of F MSY (F MSY = 0.19, therefore F target = 90 percent of F MSY , or 0.17), and the long-term target B is B MSY = 324 million lb (146,964 mt).

An age-structured assessment program (ASAP) model for bluefish was approved by the 41st Stock Assessment Review Committee (SARC 41) in 2005 to estimate F and annual biomass. In June 2010, the ASAP model was updated in order to estimate the current status of the bluefish stock ( i.e., 2009 biomass and F estimates) and enable the Monitoring Committee and SSC to recommend 2011 specifications using landings information and survey indices through the 2009 fishing year. The results of the assessment update were as follows: (1) An estimated stock biomass for 2009, B 2009 = 343.901 million lb (155,991 mt); and (2) an estimated fishing mortality rate for 2009, F 2009 = 0.10. Based on the updated 2009 estimate of bluefish stock biomass, the bluefish stock is not considered overfished: B 2009 is greater than the minimum biomass threshold, 1/2 B MSY = 162 million lb (73,526 mt), and is above B MSY . Biomass has been above the target since 2007, and the stock was declared rebuilt in October 2009, satisfying the rebuilding program requirement to achieve rebuilding by 2010 that was established in Amendment 1. Estimates of F have declined from 0.41 in 1991 to 0.10 in 2009. The updated model results also conclude that the Atlantic bluefish stock is not experiencing overfishing; i.e., the most recent F (F 2009 = 0.10) is less than the maximum F overfishing threshold specified by SARC 41 (F MSY = 0.19).

The Council's SSC met in July 2010 to review updated stock status and other fishery independent and dependent data to recommend an acceptable biological catch (ABC) for the 2011 bluefish fishing year. Based on the updated bluefish assessment, the SSC recommended an ABC of 31.744 million lb (14,399 mt), which corresponds to an F of 0.15. Following the SSC meeting, the Monitoring Committee met to review the SSC's ABC determination and recommend bluefish management measures for 2011. The MC recommended an F target of 0.15 and a corresponding TAC of 31.744 million lb (14,399 mt). After subtracting an estimate of discards of 4.451 million lb (2,019 mt) (the average annual discard level from 2007-2009) from the TAC, the Monitoring Committee recommended a 2011 TAL of 27.293 million lb (12,380 mt). At its August 2010 meeting, the Council concurred with the recommendation of the Monitoring Committee for a TAC of 31.744 million lb (14,299 mt) and a TAL of 27.293 million lb (12,380 mt). The proposed TAL is a 7-percent decrease from the 2010 TAL of 29.264 million lb (13,274 mt) due to a slight decrease in the 2009 estimate of bluefish stock biomass. The discussion below describes the recommended allocation of TAL between the commercial and recreational sectors, and the proportional adjustments to account for the recommended bluefish RSA quota.

Based strictly on the percentages specified in the FMP (17 percent commercial, 83 percent recreational), the commercial quota for 2011 would be 4.640 million lb (2,105 mt) and the RHL would be 22.653 million lb (10,275 mt) in 2011. However, the FMP stipulates that, in any year in which 17 percent of the TAL is less than 10.500 million lb (4,763 mt), and the recreational fishery is not projected to land its harvest limit for the upcoming year, the commercial quota may be increased up to 10.500 million lb (4,763 mt), provided that the combined projected recreational landings and commercial quota would not exceed the TAL. The RHL would then be adjusted downward so that the TAL would be unchanged.

The Council postponed projections of estimated recreational harvest for 2011 until Marine Recreational Fisheries Statistics Survey (MRFSS) harvest data through Wave 5 of 2010 became available (six “Waves” of data are released each year by MRFSS). In the meantime, the 3-year average of annual recreational harvest from 2007 through 2009 (17.882 million lb (8,111 mt)) was applied as the estimated recreational harvest for 2011. As such, it was expected that a transfer of up to 4.772 million lb (2,164 mt) from the recreational sector to the commercial sector could be approved. This option represents the preferred alternative recommended by the Council in its specifications document.

Northeast Regional Office staff recently updated the recreational harvest projection using 2010 MRFSS data through Wave 6. The inclusion of Wave 6 data did not result in any quota overages for the fishing year and would, therefore, not impact the final quotas. Using the best available data, the 2011 recreational harvest was estimated to be 16.581 million lb (7,456 mt), or approximately 61 percent of the TAL. Consistent with the Council's recommendation, this allows for a transfer of 4.772 million lb (2,164 mt) from the recreational sector to the commercial sector. This results in an adjusted commercial quota of 9.411 million lb (4,269 mt) and an RHL of 17.882 million lb (8,111 mt).

Two research projects that would utilize bluefish RSA quota have been preliminarily approved and forwarded to NOAA's Grants Management Division. A 105,000-lb (48-mt) RSA quota is preliminarily approved for use by these projects during 2011. Proportional adjustments of this amount to the commercial and recreational allocations results in a final commercial quota of 9.375 million lb (4,253 mt) and a final RHL of 17.813 million lb (8,080 mt).

The current recreational possession limit of up to 15 fish per person is maintained to achieve the RHL.

The final State commercial allocations of the 2011 commercial quota are shown in Table 1, based on the percentages specified in the FMP.

Amendment 1, implemented in 2000, established a rebuilding schedule to rebuild the bluefish stock biomass to its biomass target using a graduated step reduction in F over a 9-yr period. Amendment 1 specified a target F of 90 percent of F MSY , to become effective after the rebuilding period. The regulations at § 648.160(a) state that the Council must set the TAL to “achieve the target fishing mortality rate (F) specified in the Fishery Management Plan for Atlantic Bluefish for the upcoming fishing year or the estimated F for the fishing year preceding the Council submission of the recommended specifications, whichever F is lower.” These regulations reflect the annual specification process during the rebuilding period; however, the regulations do not reflect the intent of the FMP for specification of the TAL after the rebuilding period. The “whichever F is lower” provision was only intended to apply to annual specifications during the rebuilding period. Therefore, this rule eliminates the “whichever F is lower” provision to more clearly reflect the intent of the FMP.

The public comment period for the proposed rule ended on January 31, 2011. Four comments were received. A summary and response to the concerns raised by the commenters are included below.

Comment 1: A member of the charter/party Atlantic bluefish fishery in New Jersey was supportive of the quotas, but feels the recreational bag limit of 15 fish per person per day is too high. The commenter stated that the combined pressure of recreational and party/charter, as well as a commercial presence in the Atlantic bluefish fishery, has caused significant reductions in catch levels. The commenter suggested a recreational bag limit of 5 fish per person per day.

Response: From 2000-2009, the recreational fishery overharvested its RHL in only 2 years, 2006 and 2007, with recreational landings of 16.752 and 21.163 million lb, respectively, or about 7 percent higher than the combined recreational harvest limit implemented those years. With the majority of the years from 2000-2009 having recreational landings well under the RHL for those years, and minimal overages occurring in 2006 and 2007, a reduction to the recreational bag limit from 15 fish per day to 5 fish would not allow the recreational fishery to achieve the RHL. The 15 fish per day limit is consistent with the conservation objectives in the Atlantic Bluefish FMP while allowing the recreational sector to achieve optimum yield.

Comment 2: Two comments suggested that the quotas were too high to be sustainable, and criticized the Council in general, but offered no scientific basis for this suggestion.

Response: Atlantic bluefish are not overfished, nor are they subject to overfishing; therefore, there is no scientific basis for reducing the quotas as suggested by these commenters.

Comment 3: One comment was in support of the quotas, but raised concerns regarding the IRFA. Specifically, the comment states that the IRFA should have used data through 2010 for all alternatives, rather than just for alternative 3. The comment also suggested that NMFS should conduct the analyses beyond Atlantic bluefish to include a comprehensive analysis of an entire suite of permits. The commenter stated that this could be performed by looking at the closure status of additionally permitted fisheries other than bluefish to quantify the fisheries a permit holder is able to participate in.

Response: Alternative 3 is the no action alternative and does not utilize 2010 data. If alternative 3 were to be the selected alternative, the 2011 specifications would remain the same as the 2010 Atlantic bluefish specifications. The no action alternative is considered to be synonymous with “status quo” management measures for 2010 since the alternative interpretation (failure to specify management measures) would be in violation of the Magnuson-Stevens Fishery Conservation and Management Act. Therefore, alternative 3 would not necessitate additional analysis and would maintain the 2010 quotas which rely upon the analysis used for setting the 2010 specifications. The analysis performed for alternatives 1 and 2 utilizes 2009 data and not the entire data set for 2010. At the time the data were presented to the Monitoring Committee and the Council, data were only available from the recreational fishery from Waves 1 and 2 of 2010. Historically, landings for Waves 1 and 2 comprise less than 5 percent, on average, of the total recreational landings since 2000. Therefore, it was suggested that this type of projection be postponed until more complete data are available. In the meantime, average recreational landings for 2007-2009 were used. After the proposed rule published on January 14, 2011, landings data through December 31, 2010, were utilized to determine if any quota overages occurred in 2010 and make any quota adjustments as necessary.

Section 603 of the Regulatory Flexibility Act requires that an IRFA be prepared for all proposed rules, describing the impacts of the proposed rule on small entities. The IRFA prepared for this rule analyzed the 2011 Atlantic bluefish specifications, including the considered alternatives and the expected impacts by the Council. Each of the statutory requirements of section 603(b) and (c) have been addressed and are summarized in the Classification section of this final rule. The portion of this comment regarding regulatory closures in fisheries outside of Atlantic bluefish is beyond the scope of an IRFA and this rulemaking.

Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), the NMFS Assistant Administrator has determined that this final rule is consistent with the Atlantic Bluefish FMP, other provisions of the Magnuson-Stevens Act, and other applicable law.

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

This final rule does not duplicate, conflict, or overlap with any existing Federal rules.

The FRFA included in this final rule was prepared pursuant to 5 U.S.C. section 604(a), and incorporates the IRFA and a summary of analyses completed to support the action. No significant issues were raised by the public comment in response to the IRFA, other than the comment noted above. A public copy of the EA/RIR/IRFA is available from the Council ( see ADDRESSES ).

The preamble to the proposed rule included a detailed summary of the analyses contained in the IRFA, and that discussion is not repeated here.

A description of the reasons why this action is being taken, and the objectives of and legal basis for this final rule are contained in the preambles to the proposed rule and this final rule and are not repeated here.

Four comments were submitted on the proposed rule. One comment was received that commented on the economic analyses summarized in the IRFA and the economic impacts of the rule more generally, but did not raise significant issues. The response to this comment is provided above in the “Comments and Responses” section of this preamble. The remaining 3 comments did not refer to the economic analysis summarized in the IRFA or the economic impacts of the rule more generally. No changes were made to the final rule as a result of the comments received.

Small businesses operating in commercial and recreational ( i.e., party and charter vessel operations) fisheries have been defined by the Small Business Administration as firms with gross revenues of up to $4.0 and $6.5 million, respectively. The categories of small entities likely to be affected by this action include commercial and charter/party vessel owners holding an active Federal permit for Atlantic bluefish, as well as owners of vessels that fish for Atlantic bluefish in State waters. All Federally permitted vessels fall into the definition of small businesses; thus, there would be no disproportionate impacts between large and small entities as a result of the final rule.

An active participant in the commercial sector was defined as any vessel that reported having landed 1 or more lb (0.45 kg) in the Atlantic bluefish fishery in 2009 (the last year for which there are complete data). The active participants in the commercial sector were defined using two sets of data. The Northeast dealer reports were used to identify 688 vessels that landed bluefish in States from Maine through North Carolina in 2009. However, the Northeast dealer database does not provide information about fishery participation in South Carolina, Georgia, or Florida. South Atlantic Trip Ticket reports were used to identify 908 vessels that landed bluefish in North Carolina, and 685 vessels that landed bluefish on Florida's east coast. Some of these vessels were also identified in the Northeast dealer data; therefore, double counting is possible. Bluefish landings in South Carolina and Georgia were near zero in 2009, representing a negligible proportion of the total bluefish landings along the Atlantic Coast. Therefore, this analysis assumed that no vessel activity for these two States took place in 2009. In recent years, approximately 2,063 party/charter vessels may have been active in the bluefish fishery and/or have caught bluefish.

No additional reporting, recordkeeping, or other compliance requirements are included in this final rule.

Specification of commercial quota, recreational harvest levels, and possession limits is constrained by the conservation objectives of the FMP, under the authority of the Magnuson-Stevens Act. The commercial quota contained in this final rule is 8 percent lower than the 2010 quota and 61 percent higher than actual 2010 bluefish landings. All affected States will receive reductions in their individual commercial quota allocation in comparison to their respective 2010 individual State allocations. However, the magnitude of the reduction varies depending on the State's respective percent share in the total commercial quota, as specified in the FMP.

The RHL contained in this final rule is approximately 4 percent lower than the RHL in 2010. The small reduction in RHL is a reflection of a declining trend in recreational bluefish harvest in recent years. Since the 2011 RHL is greater than the total estimated recreational bluefish harvest for 2010, it does not constrain recreational bluefish harvest below a level that the fishery is anticipated to achieve. The possession limit for bluefish will remain at 15 fish per person, so there should be no impact on demand for party/charter vessel fishing and, therefore, no impact on revenues earned by party/charter vessels. No negative economic impacts on the recreational fishery are anticipated.

The impacts on revenues associated with the proposed RSA quota were analyzed and are expected to be minimal. Assuming that the full RSA quota 105,000 lb (48 mt) is landed and sold to support the proposed research projects, then all of the participants in the fishery would benefit from the improved fisheries data yielded from each project.

Because both the RHL and the commercial quota being implemented in this final rule are slightly lower than the 2009 RHL and commercial quotas, and there will be no impacts from the RSA quota, the economic impacts are expected to be minimal.

Under alternative 2, which was not selected, a transfer of bluefish landings from the recreational to the commercial fishery would not occur. The absence of a quota transfer under this alternative would result in decreased commercial fishing opportunity compared to 2010, and is therefore associated with a higher probability of commercial revenue losses compared to the specifications being implemented in this final rule.

The not chosen alternative 3 would be the least restrictive alternative ( i.e., least restrictive commercial quota), but was not recommended because it is the status quo. Additionally, the TAC for alternative 3 would have been above the recommended acceptable biological catch which could possibly result in quota overages.

Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides.” The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. As part of this rulemaking process, a small entity compliance guide will be sent to all holders of Federal permits issued for the Atlantic bluefish fishery.

In addition, copies of this final rule and guide ( i.e., permit holder letter) are available from NMFS ( see ADDRESSES ) and at the following Web site: http://www.nero.noaa.gov.

For the reasons set out in the preamble, 50 CFR part 648 is amended as follows:

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

The B season allowance of the 2011 total allowable catch (TAC) of pollock in Statistical Area 610 of the GOA is 4,787 metric tons (mt) as established by the final 2011 and 2012 harvest specifications for groundfish of the GOA (76 FR 11111, March 1, 2011).

In accordance with § 679.20(d)(1)(i), the Regional Administrator has determined that the B season allowance of the 2011 TAC of pollock in Statistical Area 610 of the GOA will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 4,687 mt, and is setting aside the remaining 100 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for pollock in Statistical Area 610 of the GOA.

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

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of pollock in Statistical Area 610 of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of March 25, 2011.

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

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